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The jus cogens Nature of

non-refoulement

JEAN ALLAIN∗

Abstract
In this article, the author notes that the principle of non-refoulement has acquired the status
of jus cogens, that is, a peremptory norm of international law from which no derogation
is permitted. The article briefly examines the origins of the concept and then considers
the views expressed by States, particularly in the UNHCR Executive Committee. The
author emphasises that the jus cogens nature of non-refoulement is of critical importance
today, especially now that the Security Council has begun to adopt resolutions which
may have a direct impact on the right of people to leave in search of asylum and not to
be sent back to where their lives or freedom may be in danger. The author examines
SC Resolution 1373, and considers how the measures required by the Security Council
may lead to the return of refugees unless the jus cogens nature of non-refoulement is maintained.
The author also examines various measures taken within the European Union, and argues
similarly that restrictive policies are likely to be best countered by arguments founded on
the peremptory norm of non-refoulement.

1. Introduction
It has been said that, ‘refugee law remains the unwanted child of States’.1
States, while giving lip service to the obligations enshrined in the 1951
Convention, have thus sought to limit the possibility of individuals to
benefit from the rights to which they had agreed some 50 years ago. Half
a century on, the cornerstone of the 1951 Convention remains intact,
but under attack. The provisions of Article 33, the non-refoulement provisions
which preclude States from returning individuals to countries where they
might face persecution, must act as the final bulwark of international
protection. States may, individually or collectively, attempt to introduce
policies which have the effect of violating the provisions of Article 33,
yet if it can be demonstrated that the notion of non-refoulement has
attained the normative value of jus cogens, then States are precluded from

∗ Assistant Professor of Public International Law, Department of Political Science, American


University in Cairo, Egypt.
1
Rosemary Byrne and Andrew Shacknove, ‘The Safe Country Notion in European Asylum Law’,
9 Harv. Hum. Rights J. 187 (1996).
International Journal of Refugee Law Vol. 13 No. 4
 Oxford University Press 2002. All rights reserved
534 Jean Allain
transgressing this norm in anyway whatsoever. Much can be gained by
insisting on the jus cogens nature of non-refoulement.
The 1951 Convention obliges States party not to refoule ‘a refugee in
any manner whatsoever’.2 Yet, of late, States have sought through
collective efforts to do just that — to return refugees to ‘territories where
[their] life or freedom would be threatened’. This article considers the
nature of the norm of non-refoulement, in order to assess whether it is a norm
of such importance to the international community that no derogation is
permitted. In other words, is the norm of non-refoulement a peremptory
norm of international law — a norm of jus cogens? The relevance of this
question is that if refoulement is beyond the reach of States, then such
institutions as the United Nations Security Council, through its resolutions,
or the European Union, with its asylum policies, may not seek to achieve
collectively what they are prohibited from doing individually.

2. Jus cogens
The notion of jus cogens is expressed in international law through Articles
53 and 64 of the 1969 Vienna Convention on the Law of Treaties. These
provisions provide that treaties may be invalidated upon their ratification
or may later be terminated if their content ‘conflicts with a peremptory
norm of general international law’, which is ‘accepted and recognized by
the international community of States as a whole as a norm from which
no derogation is permitted’.3 This is a manifestation of an international
community of States which has determined that there are two types of
laws which rule their behaviour: jus cogens and jus dispositivum. Jus dispositivum
are laws from which States may deviate, that is, there may be situations
where States, although violating an international obligation, may claim

2
Art. 33 (Prohibition of Expulsion or Return (‘Refoulement’)) of the 1951 Convention reads: ‘1.
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion. 2. The benefit of the present
provision may not, however, be claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which he is, or who, having been convicted
by a final judgment of a particularly serious crime, constitutes a danger to the community of that
country.’
3
See Art. 53 (Treaties conflicting with a peremptory norm of general international law (jus cogens))
of the Vienna Convention on the Law of Treaties: ‘A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law. For the purposes of the present
Convention, a peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the same
character.’ See also Art. 64 (Emergence of a new peremptory norm of general international law (jus
cogens)): ‘If a new peremptory norm of general international law emerges, any existing treaty which
is in conflict with that norm becomes void and terminates.’
The jus cogens Nature of non-refoulement 535
4
circumstances which preclude their wrongfulness. Norms of jus cogens, by
contrast do not allow for such deviation — they are higher norms of
which no violation is allowed. In no circumstance may a State legally
transgress the norms of jus cogens, for they are considered norms so essential
to the international system that their breach places the very existence of
that system in question.
The notion of jus cogens is, by international law standards, a relatively
new concept. While embryonic forms were mentioned by both Grotius
and Vattel, and can be found in separate and dissenting opinions of the
Permanent Court of International Justice,5 it was only after the Second
World War that the concept of jus cogens gained a foothold internationally.
In 1953, Hersch Lauterpacht, in his role as Special Rapporteur of the
International Law Commission, prepared a draft convention on the law
of treaties which included a provision whereby a treaty could be deemed
void if it was inconsistent with ‘such overriding principles of international
law which may be regarded as constituting principles of international
public policy (ordre international public)’.6 The incorporation of the notion
of peremptory norms into the Vienna Convention acknowledged the fact
that there were such principles which States could not simply legislate
away, or agree amongst themselves to abrogate.
The notion of jus cogens is not limited to the Vienna Convention, but
is of general application. It is not simply a matter of States finding their
treaty obligations invalidated, as being in conflict with jus cogens; on the
contrary, any action which falls within the domain of jus cogens, be it a
unilateral, bilateral, or multilateral act is, by definition, prohibited as
being illegal.
Since the end of the Second World War and the establishment of the
United Nations Organization, the international community has slowly
distanced itself from the conception of the ‘law of nations’, replacing it
with ‘international law’ stricto sensu.7 The community of States has moved
towards the multilateral creation of law at the expense of the former
4
Consider Chapter V of the articles on State Responsibility adopted by the International Law
Commission in 2001, detailing circumstances which preclude wrongfulness including: consent of the
other party; countermeasures; force majeure; distress; states of necessity; and self-defence. Note Art. 26
(Compliance with peremptory norms): ‘Nothing in this Chapter precludes the wrongfulness of any
act of a State which is not in conformity with an obligation arising under a peremptory norm of
general international law’: ‘Titles and texts of the draft articles on Responsibility of States for
internationally wrongful acts adopted by the Drafting Committee on second reading’: UN doc. A/
CN.4/L.602/Rev.1, 26 Jul. 2001. See also International Law Commission Report, 1999, A/54/10, paras.
306–18.
5
See Michael Byers, ‘Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules’,
66 Nordic Journal of International Law, 211–39, 213–14 (1997).
6
Hersch Lauterpacht, ‘Report on the Law of Treaties’: UN doc. A/CN.4/63 (1953), 155, quoted
in A. Mark Weisburd, ‘The Emptiness of the Concept of Jus Cogens, as Illustrated by the War in
Bosnia-Herzegovina’, 17 Michigan Journal of International Law 13 (1995).
7
See Nagendra Singh, ‘The UN and the Development of International Law’, Adam Roberts &
Benedict Kingsbury, eds., United Nations, Divided World, 1993, 388.
536 Jean Allain
system of bilateralism, creating in its wake an international system in
which States are bound, not only owed to each other, but also to
the community at large. The notions of obligations ‘erga omnes’8 and
‘intransgressible principles’9 can thus be seen as manifestations of this
growing cosmopolitanism of international relations. Likewise, the
conception of jus cogens has now stepped firmly beyond the Vienna
Convention, having been introduced by the Special Rapporteur dealing
with state responsibility within the International Law Commission (ILC).
The regime of State Responsibility10 under the guidance of the Special
Rapporteur, James Crawford, has moved away from the notion of
‘international crimes’11 towards differentiating between obligations owed
to a single, wronged, State and one due to the international community
as a whole. First, in 1999, Crawford introduced the notion that compliance
with a norm of jus cogens should constitute a circumstance that precludes
the wrongfulness of an otherwise illegal act.12 Second, the Commission,
after more than four decades of consideration, finalized its work on State
responsibility in 2001 and took Crawford’s lead by adopting articles
related to serious breaches of essential obligations to the international
community, their consequences, and the ability to invoke responsibility

8
The lead pronouncement of the notion of obligations erga omnes is that of the International
Court of Justice in the Barcelona Traction case ICJ Reports, 1970: ‘33. . . . In particular, an essential
distinction would be drawn between the obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State . . . By their very nature the former are the
concern of all States. In view of the importance of the rights involved, all States can be held to have
a legal interest in their protection; they are obligations erga omnes. 34. Such obligations derive, for
example, in contemporary international law, from the outlawing of acts of aggression, and of
genocide, as also from the principle and rules concerning the basic rights of the human person,
including the protection from slavery and racial discrimination.’ See further, Mauricio Ragazzi, The
Concept of International Obligations Erga Omnes, 1997; Mauricio Ragazzi, ‘International Obligations
Erga Omnes: Their Moral Foundation and Criteria of Identification in Light of Two Japanese
Contributions’, in G. S. Goodwin-Gill & Stefan Talmon, eds., The Reality of International Law: Essays
in Honour of Ian Brownlie, 1999, 455–77; André de Hoogh, Obligations Erga Omnes and International Crimes:
A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States, 1996.
9
The International Court of Justice spoke of such principles in its Advisory Opinion on the Legality
of the Threat or Use of Nuclear Weapons, ICJ Reports, 1996: ‘79. It is undoubtedly because a great many
rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the
human person and “elementary considerations of humanity” as the Court put it in its Judgment of
9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva
Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed
by all States whether or not they have ratified the conventions that contain them, because they
constitute intransgressible principles of international customary law.’ [Emphasis added]
10
For links to items relating to State Responsibility, see the ‘State Responsibility Project’ of the
Lauterpacht Research Centre for International Law, Cambridge University: www.law.cam.ac.uk/
rcil.
11
Art. 19(2) of the 1996 Draft Article on State Responsibility reads: ‘An internationally wrongful
act which results from the breach by a State of an international obligation so essential for the
protection of fundamental interests of the international community that its breach is recognized as
a crime by that community as a whole constitutes an international crime.’
12
See above n. 3.
The jus cogens Nature of non-refoulement 537
13
over such breaches. Crawford’s justification for introducing jus cogens
notions into the regime of state responsibility was, in part, to give the
concept its proper standing on the international plane. While the cases
of invoking jus cogens as a ground for invalidating a treaty have been ‘very
rare’, the concept of peremptory norms has a wider breadth which the
Commission has recognized. Crawford explains:
The problem stemmed partly from the way in which the system established by
the Vienna Convention on the Law of Treaties operated in cases of jus cogens.
The invocation of jus cogens invalidated the treaty as a whole. Such cases
were very rare. Usually, breaches of jus cogens occurred through the continued
performance of a perfectly normal treaty in the event of, for example, a proposed
planned aggression or the supply of aid to a regime that became genocidal. Such
breaches were thus to be considered as ‘occasional’ or ‘incidental’: they did not
arise from the terms of the treaty as such but from the circumstances which had
arisen.14
Here, then, is an acknowledgment that jus cogens norms exist beyond the
parameters of the regime, and that State actions, whatever their basis,
could encompass violations of peremptory norms of international law.
Peremptory norms thus limit the actions and interaction of States on
the international plane. The question is, how to identify the norms of jus
cogens, and whether the prohibition against refoulement meets those standards.
If so, much can be achieved by insisting on the jus cogens nature of the
principle non-refoulement,15 including holding the United Nations Security
Council and the European Union accountable for actions which result
13
See International Law Commission, articles on State Responsibility, above n. 4. In relation to
serious breaches of obligations under peremptory norms of general international law, the following
articles are among those that have been adopted: Article 40 (Application of this Chapter): ‘(1) This
Chapter applies to the international responsibility which is entailed by a serious breach by a State
of an obligation arising under a peremptory norm of general international law. (2) A breach of such
an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfil
the obligation.’ 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.’ Article 50 (Obligations not affected by countermeasures): ‘(1) Countermeasures
shall not affect: (a) The obligation to refrain from the threat or use of force as embodied in the
Charter of the United Nations; (b) Obligations for the protection of fundamental human rights; (c)
Obligations of a humanitarian character prohibiting reprisals; (d) Other obligations under peremptory
norms of general international law. (2) A State taking countermeasures is not relieved from fulfilling
its obligations: (a) Under any dispute settlement procedure applicable between it and the responsible
State; (b) To respect the inviolability of diplomatic or consular agents, premises, archives and
documents.’
14
International Law Commission Report, 1999, UN doc. A/54/10, para. 306.
15
I therefore disagree with Goodwin-Gill, who is of the view that, ‘Although a sound case can
be made for the customary international law status of the principle of non-refoulement, its claim to be
part of jus cogens is far less certain, and little is likely to be achieved by insisting on its status as such’:
Goodwin-Gill, G. S., The Refugee in International Law, 2nd edn, 1996. 168, n. 234.
538 Jean Allain
in violations of the principle of non-refoulement, and providing the possibility
of third States to challenge their policies.

3. Non-refoulement as a norm of jus cogens


To determine whether the norm prohibiting refoulement16 has attained the
normative value of jus cogens, one must investigate the dual requirements
of its acceptance ‘by the international community of States as a whole’
and ‘as a norm from which no derogation is permitted’. In other words,
short of an international convention stating that the norm of refoulement
is jus cogens; one must investigate its introduction into the corpus juris gentium
via customary international law.17 State practice must be considered
against the backdrop of a double opinio juris, wherein States must
demonstrate that they are undertaking their obligation not to refoule on
two grounds.18 The practice of States in not forcibly repatriating refugees
must thus be shown to be based on the belief (opinio juris) that they
themselves are bound by a legal obligation not to do so, and that such
an obligation is binding on them as a matter of jus cogens.
At present, it is clear that the norm prohibiting refoulement is part of
customary international law, thus binding on all States whether or not
they are party to the 1951 Convention.19 What remains uncertain is
whether that norm has achieved the status of jus cogens. The fact that non-
refoulement is a customary norm, means that State practice exists; but are
States undertaking not to refoule because they believe that the norm has
16
The content of the norm of non-refoulement can be derived, in part, from the following Executive
Committee conclusions: ‘General Conclusion on International Protection’, Conclusion No. 81, 1997:
‘(i) . . . non-refoulement, which prohibits expulsion and return of refugees in any manner whatsoever to
the frontiers of territories where their lives or freedom would be threatened on account of their race,
religion, nationality, membership of a particular social group or political opinion, whether or not
they have formally been granted refugee status, or of persons in respect of whom there are substantial
grounds for believing that they would be in danger of being subjected to torture, as set forth in the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’. See
also ‘Conclusion on International Protection’, Conclusion No. 85, 1998: ‘(q) . . . refoulement in all its
forms, including through summary removals, occasionally en masse, and reiterates in this regard the
need to admit refugees to the territory of States, which includes no rejection at frontiers without
access to fair and effective procedures for determining their status and protection needs.’
17
Customary international law requires two elements: State practice, accompanied by the opinion
of States, either overtly or through acquiescence, that they are undertaking such practice because
they are under a legal obligation to do so. See the Nicaragua case where the International Court of
Justice speaks of settled practice and opinio juris sive necessitatis. ICJ Reports, 1986, para. 77.
18
See for instance A. Gómez Robledo, ‘Le ius cogens international’, Collected Courses of The Hague
Academy of International Law, Vol. 172, 1981, 104–8 (‘Le double consentement’); or Phillipe Cahier,
‘Cours général de droit international public’, Collected Courses of The Hague Academy of International Law,
Vol. 195, 1985, 198.
19
Although questions remained as to the customary nature of the norm of non-refoulement during
the Cold War era, it is clear that since the end of the Soviet era, the norm quickly attained a
customary nature. For practice before 1989, see Gunnel Stenberg, Non-Expulsion and Non-Refoulement,
1989, 288; for practice after 1989, see G. S. Goodwin-Gill, The Refugee in International Law, 2nd edn.,
1996, 166–7 (‘The principle of non-refoulement in general international law’).
The jus cogens Nature of non-refoulement 539
the status of jus cogens? Perhaps the most important forum for identifying
the value attributed to the norm of non-refoulement is in the Conclusions
adopted by the Executive Committee of the programme of the United
Nations High Commissioner for Refugees (UNHCR). Such Conclusions
reflect the consensus of States, acting in an advisory capacity where issues
of protection and non-refoulement are addressed internationally. Their
pronouncements carry a disproportionate weight in the formation of
custom, as they are the States most specifically affected by issues related
to non-refoulement.20
The first tentative mention of the norm of non-refoulement as jus cogens
was broached by the Executive Committee in Conclusion No. 25 of 1982,
where the States members determined that the principle of non-refoulement
‘was progressively acquiring the character of a peremptory rule of
international law’.21 By the late 1980s, the Executive Committee concluded
that ‘all States’ were bound to refrain from refoulement on the basis
that such acts were ‘contrary to fundamental prohibitions against these
practices’.22 Finally in 1996, the Executive Committee concluded that
non-refoulement had acquired the level of a norm of jus cogens when it
determined that the ‘principle of non-refoulement is not subject to
derogation’.23 As such, the member States of the Executive Committee
— those States whose interests are most specifically affected by the
safeguarding of international protection and prohibiting refoulement —
concluded by consensus that the norm of non-refoulement was in fact a
norm of jus cogens from ‘which no derogation is permitted’.
Further evidence of the jus cogens nature of non-refoulement is to be found
in the State practice which has emerged in Latin America on the basis
of the 1984 Cartagena Declaration on Refugees.24 This Declaration
recognizes, among others,
20
This is so, because, as the International Court of Justice has noted, for a new rule of custom
to evolve, practice ‘should have been both extensive and virtually uniform’, but must also include
the practice of States ‘whose interests were specifically affected’. See the North Sea Continental Shelf
cases, ICJ Reports, 1969, at 42, para. 73.
21
Executive Committee Conclusion No. 25, ‘General Conclusion on International Protection’,
1982: ‘(b) Reaffirmed the importance of the basic principles of international protection and in
particular the principle of non-refoulement which was progressively acquiring the character of a
peremptory rule of international law.’
22
Executive Committee Conclusion No. 55, ‘General Conclusion on International Protection’,
1989: ‘(d) Expressed deep concern that refugee protection is seriously jeopardized in some States by
expulsion and refoulement of refugees or by measures which do not recognize the special situation
of refugees and called on all States to refrain from taking such measures and in particular from
returning or expelling refugees contrary to fundamental prohibitions against these practices.’
23
Executive Committee Conclusion 79, ‘General Conclusion on International Protection’, 1996:
‘(i) Distressed at the widespread violations of the principle of non-refoulement and of the rights of
refugees, in some cases resulting in loss of refugee lives, and seriously disturbed at reports indicating
that large numbers of refugees and asylum-seekers have been refouled and expelled in highly dangerous
situations; recalls that the principle of non-refoulement is not subject to derogation.’
24
See Arthur Helton and Eliana Jacobs, ‘What is Forced Migration?’, 13 Geo. Imm. L.J. 526
(1999).
540 Jean Allain
. . . the importance and meaning of the principle of non-refoulement (including the
prohibition of rejection at the frontier) as a corner-stone of the international
protection of refugees. This principle is imperative in regard to refugees and in
the present state of international law should be acknowledged and observed as
a rule of jus cogens.25
As Joan Fitzpatrick has noted, the acceptance by Latin American States
of the norm of non-refoulement as jus cogens has been manifest in
‘Intergovernmental bodies like the Inter-American Commission on
Human Rights and the OAS General Assembly which have acknowledged
the conclusions of the Cartagena colloquium with approval’.26 Finally as
a subsidiary means of determining the nature of non-refoulement, scholars
have pointed to various elements of State practice and have determined
that, in the words of Harold Koh, ‘[n]umerous international publicists
now conclude that the principle of non-refoulement has achieved the status
of jus cogens’.27
Any lingering doubt as to the jus cogens nature of non-refoulement due to
the increased violations of the norm should be set aside as irrelevant to
its legal standing. Although the Executive Committee noted in its
Conclusion for the year 2000 that it is ‘deeply disturbed by violations of
internationally recognized rights of refugees [including] refoulement’,28
and despite the fact that UNHCR itself, ‘did sign a refoulement agreement
with Tanzania’,29 this does not weaken the peremptory character of non-
refoulement. As the International Court of Justice noted in the Nicaragua
case:
The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule.
In order to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent with such rules, and
that instances of State conduct inconsistent with a given rule should generally
have been treated as breaches of that rule, not as indications of the recognition
of a new rule.30
Thus, although States may wish to backtrack from their obligations,
having committed themselves to the jus cogens nature of non-refoulement,
they are estopped from acting as against the norm. As long as there is
an insistence on the non-derogable nature of non-refoulement, its status is
25
See United Nations High Commissioner for Refugees, Collection of International Instruments and
Other Legal Texts Concerning Refugees and Displaced Persons: Regional Instruments, 1995, 206, para. 5.
26
Joan Fitzpatrick, ‘Temporary Protection of Refugees: Elements of a Formalized Regime’, 94
AJIL 284 (2000).
27
Harold Hongju Koh, ‘The Haitian Centers Council Case: Reflections on Refoulement and Haitian
Centers Council’, 35 Harv. Int’l L.J. 30 (1994).
28
Executive Committee Conclusion No. 89, ‘Conclusion on International Protection’, 2000.
29
G. S. Goodwin-Gill, ‘Refugees: Challenges to Protection’, Conference Paper: Commemorating
UNHCR at 50: Past, Present, and Future, 16–18 May 2000, New York, 4. Emphasis in the original.
30
Case concerning Military and Paramilitary Activities in and Against Nicaragua, ICJ Reports, 1986, 98.
The jus cogens Nature of non-refoulement 541
31
secure. In fact, if one follows the logic of the International Court of
Justice, violations may in fact strengthen the norm of non-refoulement. The
Court so explained in the Nicaragua case:
If a State acts in a way prima facie incompatible with a recognized rule, but
defends its conduct by appealing to exceptions or justifications contained within
the rule itself, then whether or not the State’s conduct is in fact justifiable on
that basis, the significance of that attitude is to confirm rather than to weaken
the rule.32

4. Insisting on the jus cogens nature of non-refoulement


The point of insisting on the jus cogens nature of non-refoulement is to stress
that it is a norm which cannot, in any circumstances, be overridden.33
Thus, beyond the States party to the 1951 Convention, all States are
bound to respect the obligation not to refoule individuals, either unilaterally
or in cooperation with other States, bilaterally or multilaterally. This
leads to the conclusion that a collection of States forming an inter-
governmental organization is not exempt from the peremptory nature of
non-refoulement, and one must question the ability of institutions such as
the United Nations Security Council or the European Union to violate
such norms through their collective endeavours.34
The growth of internationalization qua globalization since the end of
the Cold War, has meant that States have been willing to cooperate in
new and expanding fields. This, in turn, has meant that increasingly States
have moved to establish or reinvigorate inter-governmental institutions for
the purposes of coordinated action. These institutions, to some extent,
31
Secure unless there emerges a new norm of jus cogens in line with Art. 64 of the Vienna
Convention, above n. 3.
32
Ibid.
33
Lauri Hannkainen has argued that, as Art. 33(2) CSR51 provides the possibility of an exception,
the norm of non-refoulement can never attain the status of jus cogens because the possibility of derogation
is built in: Lauri Hannkainen, Preemptory Norms (Jus Cogens) in International Law: Historical Development,
Criteria, Present Status, 1988, 261–3. However, as Weis noted, quoting the words of the UK Delegate
at the 1951 Conference, ‘The principle of proportionality has to be observed, that is . . . whether
the danger entailed to the refugee by expulsion or return outweighs the menace to public security’:
Paul Weis, The Refugee Convention, 1951: The Travaux Preparatoires Analyzed with Commentary, 1995, 342.
More recently, Dugard and Van den Wyngaert have noted that since the norm of non-refoulement has
been recognized as jus cogens by States, it must ‘trump’ even extradition treaties where issues of
human rights violations are concerned: John Dugard & Christine Van den Wyngaert, ‘Reconciling
Extradition with Human Rights’, 92 AJIL 187, 194–5 (1998).
34
As has been noted by a Trial Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in a case related to SFOR (UN Stabilization Force) and its cooperation with the
Tribunal: ‘On its terms, Article 29 [related to State cooperation] applies to all States, whether acting
individually or collectively. In principle, there is no reason why Article 29 should not apply to
collective enterprises undertaken by States, in the framework of international organisations and, in
particular, their competent organs such as SFOR in the present case’. Prosecutor v. Simic et al., Decision
on Motion for Judicial Assistance to be Provided by SFOR and Others, Trial Chamber III, 18 Oct.
2000, para. 64.
542 Jean Allain
have escaped the scrutiny that ordinarily would be felt at the national
level. With no true constituency to monitor their international activities
and being one further step removed from a general public to which they
are accountable, States have sought and often achieved collectively what
they could not accomplish individually.35 Thus, there is a need to hold
inter-governmental institutions to their obligations and, in the case of
non-refoulement, to ensure that States, acting within such institutional
frameworks, understand that they have agreed to its jus cogens nature.
4.1 The United Nations Security Council
The United Nations Security Council has been accorded primary
responsibility for the maintenance of international peace and security by
the Member States of the United Nations Organization. By virtue of
Chapter VII of the UN Charter, the Security Council may take action
when it perceives that there exists a threat or breach of the peace or an
act of aggression.36 Having so determined it may take a variety of
measures, including the use of force under Article 42 or other measures
under Article 41. As the organ vested with the ‘primary responsibility for
the maintenance of international peace’,37 the Security Council has near
autonomy in its actions under Chapter VII. Although its unfettered ability
to act has been challenged through the Lockerbie case,38 the Member States
have agreed ‘to accept and carry out the decisions’39 of the Security
Council. Further, by virtue of Article 103, if there is a conflict between
a State’s UN obligations and its ‘obligations under any other international
agreement, their obligations under the . . . Charter shall prevail’.
Following the dictates of Article 103, if there was a conflict between
an obligation towards a Security Council Resolution, on the one hand,
and an obligation under, say, the 1951 Convention on the other hand,
then the obligation under the Charter would prevail. It would thus
appear that the Security Council could sanction refoulement, if it made a
determination under Chapter VII that such an action was required as a
means of restoring international peace and security. However, insisting
on the jus cogens nature of non-refoulement places contemplation of such
action beyond the pale of Security Council actions. As Alain Pellet has

35
Consider, for instance, the example of the role of the European Court of Justice and the fact
that it ‘pushed for economic integration where States themselves could not’. Jean Allain, ‘The
European Court of Justice is an International Court’, 68 Nordic Journal of International Law, 272–3
(1999).
36
See Art. 39, UN Charter.
37
Art. 24(1), UN Charter.
38
Consider, for example, Vera Gowlland-Debbas, ‘The Relationship between the International
Court of Justice and the Security Council in Light of the Lockerbie Case’, 88 AJIL 643–77 (1994); or
more generally, Mohammed Bedjaoui, The New World Order and the Security Council — Testing the Legality
of its Acts, 1994.
39
Art. 25, UN Charter.
The jus cogens Nature of non-refoulement 543
noted, the Security Council ‘has an absolute obligation to respect jus
cogens’.40 In mining the same vein, Bardo Fassbender has written that
‘obligations of States arising from decisions of the Security Council only
lawfully arise “under the present Charter” (Article 103) if those decisions
are in accordance with the constitutional law of the international
community, including the peremptory norms . . .’41
Acting as Ad Hoc Judge in the Genocide case, brought by Bosnia
and Herzegovina against Yugoslavia, Elihu Lauterpacht declared with
reference to genocide and its relation to Article 103 of the Charter:
The concept of jus cogens operates as a concept superior to both customary
international law and treaty. The relief which Article 103 of the Charter may
give the Security Council in case of a conflict between one of its decisions and
an operative treaty obligation cannot — as a matter simply of hierarchy of
norms — extend to a conflict between a Security Council resolution and jus
cogens. Indeed, one only has to state the opposite proposition thus — that a
Security Council resolution may even require participation in genocide — for
its unacceptability to be apparent.42
Applying this approach to the principle of non-refoulement, one can see that
not insisting on its jus cogens character would license the Security Council,
to draw on the analogy used by Judge Lauterpacht, to adopt resolutions
which allowed or required refoulement.
4.1.1 Resolution 688
The Security Council came quite close to such an exercise in allowing
for refoulement in 1991 when, with Resolution 688, it expressed its grave
concern over Iraqi Kurds seeking safety in Turkey and Iran and considered
that such ‘massive flow of refugees towards and across international
frontiers . . . threaten international peace and security in the region’.
While Resolution 688 did not specifically call for the refoulement of
Kurdish refugees, it had the effect of alleviating the pressure placed on
Turkey ‘to provide aid and sanctuary for the one million starving and
freezing refugees along its border’.43 The willingness of the international
community to acquiesce in Turkey’s closed border policy and provide
comfort to the Kurds by the establishment of a safe haven, challenged

40
‘Là, je pense, s’arrête le balancier: Le Counseil de sécurité a l’obligation absolue de respecter
le jus cogens et la Charte des Nations Unies. Ce sont les limites, et les seules limites, à son action’:
Alain Pellet, Société Française pour le droit international, Le Chapitre VII de la Charte des nations unies,
Colloque de Rennes, 1995, 237.
41
Bardo Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective, 1998,
126.
42
Separate Opinion of Judge Lauterpacht, Further Request for the Indication of Provisional
Measures, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Order, 13 Sept. 1993, 440.
43
Fernando R. Téson, ‘Collective Humanitarian Intervention’, 17 Michigan Journal of International
Law, 344.
544 Jean Allain
the principle of non-rejection at the frontier’44 as an element of the norm
of non-refoulement. Goodwin-Gill has noted that this resolution remains
‘ambiguous’ and ‘controversial’,45 in part, because while not saying so, it
sanctioned Turkey’s policy and sought to work around it.46 In light of
the action of the Security Council to accommodate Turkey, one should
consider the further insights provided by Judge Lauterpacht:
Now, it is not to be contemplated that the Security Council would ever deliberately
adopt a resolution clearly and deliberately flouting a rule of jus cogens or requiring
a violation of human rights. But the possibility that a Security Council resolution
might inadvertently or in an unforeseen manner lead to such a situation cannot
be excluded.47
One need go no further than to examine the effects of the sanctions
against Iraq to understand the nature of harm which Security Council
resolutions can cause.48 Taken from this perspective, it is imperative to
insist on the jus cogens nature of non-refoulement so as to ensure that
the Security Council understands that, either through the adoption
of resolutions or their effects, the norm of non-refoulement cannot be
transgressed.
4.1.2 Resolution 1373
As a result of the attacks of 11 September 2001 against the New York
World Trade Center and the Washington, D.C., Pentagon buildings,
the Untied Nations Security Council adopted Resolution 1373.49 The
Resolution, passed unanimously, reaffirmed the Security Council’s
‘unequivocal condemnation’ of ‘the terrorist attacks’ and expressed ‘its
44
Goodwin-Gill, above n. 14, 289. Earlier, Goodwin-Gill notes: ‘Turkey’s decision to close its
border to Kurdish refugees, and the support or non-objection of a substantial number of members
of the international community, if it did not breach non-refoulement (understood as a general principle
of international law that includes the dimension of non-rejection at the frontier), certainly consolidates
the exception provided by safe havens’: 141.
45
Ibid., 286.
46
As has been noted ‘UN Resolution 688 is important both for what it does and does not say’.
Bill Frelick, ‘Refugee Rights: The New Frontier of Human Rights Protection’, 4 Buffalo Human Rights
Law Review, 265 (1998).
47
Above n. 42, 440–1.
48
Consider the following excerpt from Andrew K. Fishman, ‘Between Iraq and a Hard Place:
The Use of Economic Sanctions and Threats to International Peace and Security’, 13 Emory
International Law Review, 687 (1999) (footnotes in the original omitted): ‘In Iraq, two million men,
women, and children have died over the span of nine years. This is the legacy of the United Nations
sanctions regime imposed on Iraq. Critics of the sanctions consider the system a modern holocaust
and a heinous crime against humanity. Yet the passage of time and the death toll exacted from the
Iraqi people has caused neither the UN nor the primary advocates of the sanctions regime, the
United States and Great Britain, to reexamine the policy or acknowledge the profound moral
dilemma it raises. In an interview broadcast on the CBS television program “60 Minutes”, interviewer
Leslie Stahl asked then United States UN Ambassador Madeleine Albright the following question:
“Half a million Iraqi children have died — more children than died in Hiroshima. Is the price
worth it?” Albright responded: “yes, we think the price is worth it”.’
49
UN Security Council Resolution 1373, 28 Sept. 2001, UN doc. S/RES/1373 (2001).
The jus cogens Nature of non-refoulement 545
determination to prevent all such acts’. In so doing, the Security Council
adopted wide ranging measures meant to suppress in the territory of
Member States, ‘through all lawful means, the financing and preparation
of any acts of terrorism’. Acting under Chapter VII, the Council decided
that all States were to deny ‘safe haven to those who finance, plan,
support, or commit terrorist acts, or provide safe havens’.50 In operative
paragraph 3, it further called on States, inter alia, to:
(f ) Take appropriate measures in conformity with the relevant provisions of
national and international law, including international standards of human rights,
before granting refugee status, for the purpose of ensuring that the asylum-seeker
has not planned, facilitated or participated in the commission of terrorist acts;
(g) Ensure, in conformity with international law, that refugee status is not abused
by the perpetrators, organizers or facilitators of terrorist acts, and that claims of
political motivation are not recognized as grounds for refusing requests for the
extradition of alleged terrorists . . .
These stipulations seek to modify Article 1(F)(b) of the 1951 Convention
which establishes that individuals who, despite having a well-founded fear
of persecution and thus being eligible for the rights and benefits of refugee
status are nevertheless excluded where there is serious reason to consider
that the individual:
. . . has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee . . .
Resolution 1373, seeks to ‘amend’ this provision by removing the ‘non-
political’ rider from Article 1(F)(b), thus calling on States to deny refugees
status to those who have been involved in serious political crimes, by way
of having ‘planned, facilitated or participated in the commission of terrorist
acts’. This modification removes much of the underlying justification for
the 1951 Convention and challenges the conceptual raison d’être of ‘refugee
status’. Putting aside the magnitude of the crimes committed on 11
September 2001, the notion of ‘terrorist acts’ lacks a definition under
international law. If refugees are to be denied status because they have
been involved in so called ‘political crimes’, then very little substance
remains in the term ‘refugee’. Granted that the 1951 Convention is meant
to protect those with a well-founded fear of being persecuted for reasons,
among others, of political opinion, and not political action; yet before
Resolution 1373, acting upon one’s political opinion was not a basis for
exclusion. In fact, often refugees are wanted for ‘serious political crimes’
in the State from which they have fled, because States often tailor their
laws to criminalize dissent. The uncertain nature of the term ‘terrorist
acts’ means that if a State considers that armed rebel forces are to be
labelled ‘terrorists’, then these individuals are to be denied refugee status.
50
Ibid., para. 2(c).
546 Jean Allain
If a State labels a political opposition group a ‘terrorist organization’, will
this mean that individual members of this group will be denied refugee
status? Under Resolution 1373, this could transpire. The result would be
the denial of refugee status to those who, more often than those have
fled persecution for reasons of race, religion, nationality, or membership
of a particular social group, would face the wrath of a State if they were
to be returned.
Standing against the possibility of encroachments as a result of
Resolution 1373 is the final bulwark of international protection — the
notion of non-refoulement — which, as the above analysis has demonstrated,
has attained the normative value of jus cogens. The insistence of the
peremptory value of non-refoulement must thus be taken into consideration
when States seek to implement Resolution 1373.51 Such an insistence is
of vital importance to those who may be denied refugee status on
Resolution 1373 grounds of being involved in ‘terrorist acts’. Suppressing
the adjective ‘non-political’ in Article 1(F)(b) of the 1951 Convention has
repercussions beyond the exclusion clause. If so-called ‘terrorist acts’ are
to be considered as grounds for the denial of refugee status and ‘claims
of political motivation’ are no longer ‘recognized as grounds for refusing
requests for the extradition of alleged terrorists’, then the content of the
norm of non-refoulement is deprived of much of its content, thereby opening
a door to the possibility of return to persecution.
By basing themselves on Resolution 1373, States may look to breathe
new life into Article 33(2) of the 1951 Convention, which allows for an
exception to non-refoulement. Article 33(2) reads:
The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of
the country in which he is, or who, having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the community of that
country.
As Resolution 1373 effectively removes the ‘non-political’ element from
Article 1(F)(b), it reconstitutes ‘terrorist acts’ as ‘serious crimes’ and thus
precludes the individual, prima facie, from the benefit of the right not to
be refouled. In her 1988 study of jus cogens, Lauri Hannkainen argued that
because Article 33(2) of the 1951 Convention provides the possibility of
51
The extent to which States are under a legal obligation to implement para. 3 of SC res. 1373
is unclear. By virtue of Art. 25 UN Charter, the Member States have an obligation to carry out the
decisions of the Security Council, yet this paragraph falls within the section of the Resolution which
simply ‘calls upon States’ to act against those elements identified in paras. 1 and 2 of the resolution,
where the Council ‘decides that all State shall’ act. Thus, while States have an obligation to deny
safe haven to those committing ‘terrorist acts’, each State is left to determine the means by which
it will do so, taking into consideration the provisions of para. 3(f ) and (g). Cf. European Union Law,
and the analogy which may be drawn with the different legal effects flowing from Regulations and
Directives; see Art, 249, Consolidated version of the Treaty establishing the European Community
(Treaty of Amsterdam), 2 Oct. 1997.
The jus cogens Nature of non-refoulement 547
an exception, the norm of non-refoulement could never attain the status of
jus cogens because the possibility of derogation is inherent.52 Since her
study, however, the Member States of the Executive Committee have
affirmed the norm’s jus cogens nature, recalling that ‘the principle of non-
refoulement is not subject to derogation’.53 This being the case, a proper
reading of paragraph 3(g) of Resolution 1373, which calls upon States to
act ‘in conformity with international law’, would preclude the return of
individuals to a State where their life or liberty would be threatened even
if they had committed so-called ‘terrorist acts’. As a result, ‘claims of
political motivation’ are irrelevant as grounds for extradition where
refoulement is at issue. In other words, as Dugard and Van den Wyngaert
have noted, since the norm of non-refoulement has been recognized as jus
cogens by States it must ‘trump’ even extradition treaties where issues of
human rights violations are concerned.54 Thus, in their application of
Resolution 1373, States are precluded from opening the back door to
refoulement which appears to have been opened by the Security Council;
in effect, it must be understood to have been closed by the jus cogens
imperative.
4.2 The European Union
The regime for dealing with refugees and asylum seekers in Europe is
currently in flux. With the coming into force of the Treaty of Amsterdam
in 1999, the European Union (EU) members, in their quest towards
creating an ‘ever closer union amongst the peoples of Europe’,55
determined that they will establish a common policy regarding asylum.
By virtue of the Amsterdam Treaty, States have committed themselves
to adopting, within a five-year period, common policies for dealing with
issues of ‘visas, asylum, immigration and other policies related to the free
movement of persons’.56 These commitments are then to be placed under
the supervision of the European institutions, thereby losing their current
intergovernmental status. In other words, the Treaty of Amsterdam moves
asylum issues from the purview of State capitals and ‘the intergovernmental
third pillar of Maastricht’ to Brussels and ‘the first pillar of the European
Community’.57
It was also agreed at Amsterdam that the Schengen Agreement —
allowing for the free movement of people within a number of Western
European States — previously undertaken outside the framework of the
52
Lauri Hannkainen, Preemptory Norms, above n. 33, 261–3.
53
See Executive Committee Conclusion No. 79, above n. 23.
54
John Dugard & Christine Van den Wyngaert, ‘Reconciling Extradition with Human Rights’,
92 AJIL 187, 194–5 (1998).
55
See Preamble to the Treaty of Amsterdam amending the Treaty on European Union, The
Treaties establishing the European Communities and certain related Acts, 1 May 1999.
56
See Art. 67 and, more generally, Title IV of Treaty of Amsterdam.
57
Andrew Duff, The Treaty of Amsterdam: Text and Commentary, 1997, xxxiii.
548 Jean Allain
European Communities, was to be brought into the fold, and would now
apply to all Members of the European Union.58 As a result there is, on
the one hand, an existing asylum acquis which has been established prior
to, and including, Amsterdam;59 and on the other hand, there are those
commitments to forge a common asylum policy mandated by Amsterdam
to come into force by 1 May 2004.60 The final element which adds to
the fluid nature of issues of asylum and refuge in Europe is the enlargement
process, which took a further step towards incorporating a number of
States contiguous to the Union from Central and Eastern European with
the signing of the Treaty of Nice in December 2000. These candidate
States will be required to accede to the totality of the asylum acquis and,
to that end, have incorporated much of the EU legislation into their
domestic legal systems.61 It is within these existing and evolving legal
regimes that European States are moving towards collectively establishing
policies which, in clear instances, are against the individual’s right not to
be refouled.
Human Rights Watch noted, in a study related to the 50th anniversary
of UNHCR, that asylum ‘is under serious threat, not least from European
States which were the primary architects of the international refugee
regime fifty years ago’.62 In part, this is because Western European States
have collectively, through the European Union harmonized ‘towards the
lowest common denominator in terms of human rights and refugee
protection standards’.63 The European Union’s move towards a common
asylum policy ‘served as a justification for restrictive policies’,64 and these
have, in many ways, institutionalized procedures which have the effect
of refoulement on individuals who clearly meet the refugee definition in the
1951 Convention. Without mentioning the Union by name, the Executive
Committee noted, in its 1999 General Conclusion, that policies such as
58
See P.J. Kuijper, ‘Some Legal Problems Associated with the Communitarization of Policy on
Visas, Asylum and Immigration under the Amsterdam Treaty and Incorporation of the Schengen
Acquis’, 37 Common Market Law Review, 345–66 (2000). Note, however, that the United Kingdom
and Ireland opted out of this move; see Protocol annexed to the Treaty on European Union and
to the Treaty establishing the European Community — Protocol Integrating the Schengen Acquis
into the Framework of the European Union, Official Journal C 340, 10 Nov. 1997, p. 0093.
59
Of note here is the Dublin Convention Determining the State Responsible for Examining
Applications for Asylum Lodged in One of the Member States of the European Community, which
came into force in 1997.
60
Since Amsterdam, two significant documents have been produced by the EU, related to this
move toward 2004, namely, the Vienna Action Plan of 1998, and the Tampere Declaration of 1999.
See Cornelis D. de Jong, ‘The Long and Winding Road from Amsterdam via Vienna to Tampere’,
Peter van Krieken (ed.), The Asylum Acquis Handbook, 2000, 21–36.
61
See Sandra Lavenex, Safe Third Countries: Extending the EU Asylum and Immigration Policies to Central
and Eastern Europe, 1999.
62
Human Rights Watch, UNHCR at 50: What Future for Refugee Protection?, 12 Dec. 2000, 3:
www.hrw.org/campaigns/refugees.
63
Ibid.
64
Sabine Weidlich, ‘First Instance Asylum Proceedings in Europe: Do Bona Fide Refugees Find
Protection?’, 14 Geo. Imm. L.J. 644 (2000).
The jus cogens Nature of non-refoulement 549
those initiated by the EU, based on notions of ‘safe country of origin’
and ‘safe third country’ lack, in practice, the necessary safeguards to
ensure that individuals are not refouled.65 The introduction of such elements
into the asylum acquis of the EU opens the door for individuals to be
returned to a State where their lives would be threatened in clear violation
of Article 33 of the 1951 Convention. Other restrictive policies introduced
in Europe since the early 1990s also fail to provide the safeguards required
to ensure that individuals are not repatriated to situations where they are
placed at risk.
As Lode van Outrive has observed, sustained criticism of EU policy
on asylum only truly emerges as a result of the meetings which produced
the ‘London Declarations’ of 1992.66 At London, Ministers (of what was
then the European Community States) responsible for immigration set a
number of conclusions and resolutions meant to guide their common
agenda regarding issues of asylum. These Declarations, which embrace
the terminology of ‘safe country of origin’ and ‘safe third country’, were
not legally binding, yet they have been the basis upon which much of
the reformulation of asylum policies in Europe have been predicated. As
the Declarations are not binding they do not form part of the acquis, thus
they remain beyond the consideration of European institutions and as a
result States ‘remain completely free to interpret them in whatever manner
they deem justified’.67 With an eye toward 2004 and a common asylum
policy, the European Commission proposed a Directive which
incorporates these concepts into the legal framework of the European
Union. Yet, despite the fact that these notions may be elevated to the
European qua supranational level, such initiatives do not escape the jus
cogens imperative regarding non-refoulement.
4.2.1 ‘Safe country of origin’
All EU states are presumed, inter se, to be safe, and no EU citizen has,
in the ordinary scheme of things, a basis for seeking refuge in another
Member State. So far as non-EU citizens are concerned, and following
the dictates of the London Declarations, a Draft Directive formulated by
65
Executive Committee Conclusion No. 87, ‘General Conclusion on International Protection’,
1999, reads in part: ‘( j) Reiterates that the institution of asylum is of crucial importance to the
international protection of refugees; re-emphasizes the importance of ensuring access to asylum
procedures; recalls Conclusions No. 15 (XXX) of 1979 and No. 58 (XL) of 1989 on refugees without
an asylum country and irregular movement of asylum-seekers; and affirms, in this regard, that
notions such as “safe country of origin”, “internal flight alternative” and “safe third country”, should
be appropriately applied so as not to result in improper denial of access to asylum procedures, or
to violations of the principle of non-refoulement . . .’
66
Lode Van Outrive, ‘Les controverses autour de la politique européenne envers les réfugés’,
Jean-Yves Carlier & Dirk Vanheule, eds., Europe and Refugees: A Challenge?, 1997, 249.
67
See Cornelis D. de Jong, ‘Is There a Need for a European Asylum Policy?’, in Frances
Nicholson & Patrick Twomey, eds., Refugee Rights and Realities: Evolving International Concepts and Regimes,
1999, 362.
550 Jean Allain
the EU Commission set out ‘Principles with Respect to the Designation
of Safe Country of Origin’,68 intended to govern those asylum seekers
arriving from outside the Union. If such individuals are nationals of a
State where basic human rights standards are generally observed, they
may have their application considered manifestly unfounded and thus be
subject to an accelerated process, with limited procedural safeguards, of
refugee determination. In both cases, the presumption of safety is drawn
from the general situation in the country and projected onto the individual;
at the expense of safeguards meant to protect the individualized right of
non-refoulement. In this vein, Goodwin-Gill questions whether countries
which European States deem to be safe can always be considered as
such: ‘How can we be sufficiently sure that even the most respectable
and reputable of regimes has not, just this once, produced a refugee?’.69

4.2.1.1 Citizens of European Union States Attached to the Treaty of


Amsterdam is the Protocol on Asylum for Nationals of Member States
of the European Union.70 European States consider that, given the ‘level
of protection of fundamental rights and freedoms’ within the EU, Member
States constitute ipso facto ‘safe countries of origin’. As a result, an
application by an EU citizen for asylum in another Member State will
not, in principle, be considered. If a State does wish to proceed with such
an asylum claim, it has the obligation to inform the European Council
and to deal with the claim ‘on the basis of the presumption that it is
manifestly unfounded’.71 Member States are also given the possibility to
consider asylum cases from other EU States in extraordinary situations,
for example, where the State from which the individual is claiming asylum
has declared a state of emergency and suspended European human rights
provisions, or where the European Council has determined that there exists
within such a State ‘a serious and persistent breach of EU principles’.72
As has been pointed out by Roland Bank, the Protocol ‘represents a
text of primary European law which is contrary to international law
binding upon all members states of the EU in the form of the 1951

68
Annex II, Proposal for a Council Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status, EU Commission Proposal 500PC0578, 27 Dec.
2000.
69
G. S. Goodwin-Gill, ‘Safe Country? Says Who?’, 4 IJRL 248 (1992).
70
See Treaty of Amsterdam amending the Treaty of European Union, the Treaties establishing
the European Communities and Certain Related Acts, signed 2 Oct. 1997.
71
Protocol on Asylum for Nationals of Member States of the European Union, Sole Article,
Section (d).
72
Section (a) of the Protocol deals with States which have invoked Art. 15 ECHR50 (Derogation
in Time of Emergency), while Section (c) relates to EU principles (Liberty, democracy, respect for
human rights and fundamental freedoms and the rule of law) found at Article F.1(1) of the Treaty
on European Union.
The jus cogens Nature of non-refoulement 551
73
Geneva Convention on the Status of Refugees’. Bank notes the imposition
of a new territorial limitation on the Convention and the fact that the
Protocol is in breach of the provisions of Article 3, which calls on States
party to apply the Convention, ‘without discrimination as to race, religion,
or country of origin’.74 Bank goes on to conclude that by establishing,
this geographical limitation EU members states have obliged themselves to in
principle exclude EU nationals from their asylum procedures without granting
the individual applicant any opportunity to demonstrate persecution in his
particular case.75
As a result of this Protocol, EU States have limited the possibility for
their nationals to seek asylum within the Union, thus potentially exposing
individuals who may have a well founded fear of persecution to refoulement.

4.2.1.2 Non-Citizens of the European Union Under Article 63 of the Treaty


of Amsterdam, EU States have committed themselves, by 2004, to develop
measures in a number of areas, including: ‘(d) minimum standards on
procedures in Member States for granting and withdrawing refugee
status’. Within this framework, the European Union has sought to
‘communitarize’ the notion of ‘safe countries of origin’ as it applies to
non-EU citizens. The European Commission’s Proposal for a Council
Directive on Minimum Standards on Procedures in Member States for
Granting and Withdrawing Refugee Status76 allows States to dismiss
applications for asylum as being ‘manifestly unfounded’ if an individual
is considered to be from a ‘safe country of origin’.77 The elements of safe
country of origin are developed in the proposed Directive, as follows:
Article 30
1. Member States may consider a country as a safe country of origin for the
purpose of examining applications for asylum only in accordance with the
principles set out in Annex II.
2. Member States may retain or introduce legislation that allows for the
designation by law or regulation of safe countries of origin. This legislation shall
be without prejudice to Article 31.
3. Member States which, at the date of entry into force of this Directive,
have in force laws or regulations designating countries as safe countries of origin
and wish to retain these laws or regulations, shall notify them to the Commission
within six months of the adoption of this Directive and notify as soon as
possible any subsequent relevant amendments. Member States shall notify to

73
Roland Bank, ‘The Emergent EU Policy on Asylum and Refugees: The New Framework Set
by the Treaty of Amsterdam: Landmark or Standstill?’, 68 Nordic Journal of International Law, 26
(1999).
74
Emphasis added.
75
Bank, above n. 73, 26.
76
Above n. 68.
77
Art. 28(1)(e).
552 Jean Allain
the Commission as soon as possible any introduction of laws or regulation
designating countries as safe countries of origin after the adoption of this Directive,
as well as any subsequent relevant amendments.
Article 31
A country that is a safe country of origin in accordance with the principles set
out in Annex II can only be considered as a safe country of origin for a particular
applicant for asylum if he has the nationality of that country or, if he is a stateless
person, it is his country of former habitual residence, and if there are no grounds
for considering the country not to be a safe country of origin in his particular
circumstances.
Whether an individual will have their claim heard through the ‘regular
procedure’ or through the ‘accelerated procedure’, intended for
applications suspected of being ‘manifestly unfounded’, will depend on
whether an individual’s country of origin meets the criteria set out in
Annex II, this provides as follows:
Principles with Respect to the Designation of Safe Countries of Origin
I. Requirements for designation
A country is considered as a safe country of origin if it generally observes the
basic standards laid down in international human rights law from which there
may be no derogation in time of war or other public emergency threatening the
life of the nation, and it:
A. has democratic institutions and the following rights are generally observed
there: the right to freedom of thought, conscience and religion, the right to
freedom of expression, the right to freedom of peaceful assembly, the right to
freedom of associations with others, including the right to form and join trade
unions and the right to take part in government directly or through freely chosen
representatives;
B. allows monitoring by international organisations and NGOs of its observance
of human rights;
C. is governed by the rule of law and the following rights are generally observed
there: the right to liberty and security of person, the right to recognition as a
person before the law and equality before the law;
D. provides for generally effective remedies against violations of these civil and
political rights and, where necessary, for extraordinary remedies;
E. is a stable country.
II. Procedure for designation:
Every general assessment of the observance of these standards for the purpose
of a designating a country as a safe country of origin must be based on a range
of sources of information, which may include reports from diplomatic missions,
international and non-governmental organisations and press reports. Member
States may in particular take into consideration information from the UNHCR.
The report of the general assessment shall be in the public domain.
Thus, if it is determined that an individual is from a country which has
been designated as being safe by virtue of the above Principles, then the
The jus cogens Nature of non-refoulement 553
application may be fast-tracked as ‘manifestly unfounded’; ‘accelerated
procedure’ provides for limited safeguards, and does not guarantee a
personal interview.78
As Rosemary Byrne and Andrew Shacknove have noted, the ‘safe
country of origin notion is an unhelpful innovation’,79 and they challenge
the ability for States to make a determination that a particular country
is, in fact, ‘safe’. Their research shows that ‘country of origin information
is often insufficient to support general conclusions about safety’.80 On this
basis, the fast-tracking of individuals from a so-called ‘safe country of
origin’ must be considered suspect. This then leads, in Byrne and
Shacknove’s words, to ‘damaging consequences’:
The reduced safeguard provided under accelerated procedures may be inadequate
to counter the bureaucratic and foreign policy pressures to deny claims from
countries officially designated as ‘safe’. In such cases, the safe country of origin
notion serves de facto as an automatic bar, denying asylum-seekers an effective
opportunity to have their claims assessed.81
Considered in this light, the proposed Directive fails, in regard to ‘safe
country of origin’, to meet the test of Article 63(1) of the Treaty of
Amsterdam which requires that the Minimum Standards on Procedures
in Member States for Granting or Withdrawing Refugee Status be
established ‘in accordance with the Geneva Convention of 28 July 1951’.
Specifically, the notion of ‘safe country of origin’, like the notion of ‘safe
third country’, fails to provide adequate protection against the cornerstone
of the 1951 Convention: an individual’s right not to be refouled.

4.2.2 ‘Safe third country’


The European Commission is also seeking to introduce the notion of
‘safe third country’ into European law via the proposed Directive regarding
the granting and withdrawing of refugee status. In this context, a ‘safe
third-country’ is ‘a country in which the asylum seeker has either found
protection, or reasonably could have done so’,82 before arriving in Europe.
This concept first appeared in the Schengen Accord and the Dublin
Convention, and the Directive seeks to ‘communitarize’ the concept so
as to ensure that there is consistency in its application. As Elspeth Guild
has noted:

78
See generally Chapter IV, Section 2, and with respect to personal interviews see Art. 29(3).
79
Byrne & Shacknove, above n. 1, 227.
80
Ibid., 194. The article by Byrne and Shacknove seeks to rebut many of the assertions made in
Kay Hailbroner, ‘The Concept of “Safe Country” and Expeditious Asylum Procedures: A Western
European Perspective’, 5 IJRL 31–65 (1991)
81
Byrne & Shacknove, above n. 1, 219.
82
Ibid., 189.
554 Jean Allain
So long as the legal protection of asylum seekers and the rights of appeal against
refusal of their asylum applications continue to vary among the members states,
let alone outside the EU, the system of sending asylum seekers back to the first
safe country they reach on fleeing persecution may result in real detriment to
their chance of finding protection from persecution. In other words, unless
asylum applications are determined in an equivalent manner across the EU and
subject to a supervisory appellate structure to ensure consistency among Member
States (and any other States to which asylum seekers are sent), the protection
against refoulement may not be guaranteed.83
While the notion of ‘safe country of origin’ could be used to place an
individual into the ‘accelerated procedure’, the proposed Directive seeks
to limit the ability of individuals even to make claims, by reference
to the concept of ‘safe third-country’. As noted in the Explanatory
Memorandum to the proposed Directive, ‘under Article 21(1) Member
States can use the safe third-country concept to dismiss applications as
inadmissible if the designation of a country as a safe third country is in
accordance with the principles laid down in Annex I’.84 The Principles
with Respect to Designation of Safe Third Countries in Annex I require
that a ‘safe third country’ meet, in the first instance, ‘standards laid down
in international law for the protection of refugees’.85 This would include,
for those States which are party to the 1951 Convention, procedures in
accordance with the following principles:
(1) The asylum procedure is prescribed by law.
(2) Decisions on applications for asylum are taken objectively and impartially.
(3) Applicants for asylum are allowed to remain at the border or on the territory
of the country as long as the decision on their application for asylum has not
been decided on.
(4) Applicants for asylum have the right to a personal interview, where necessary
with the assistance of an interpreter.
(5) Applicants for asylum are given the opportunity to communicate with the
UNHCR or other organisations that are working on behalf of the UNHCR.
(6) There is provision for appeal to a higher administrative authority or to a
court of law against the decision on each application for asylum or there is an
effective possibility to have the decision reviewed.
(7) The UNHCR or other organisations working on behalf of the UNHCR
have, in general, access to asylum applicants and to the authorities to request
information regarding individual applications, the course of the procedure and

83
Elspeth Guild, ‘The Impetus to Harmonise: Asylum Policy in the European Union’, Frances
Nicholson & Patrick Twomey, eds., Refugee Rights and Realities: Evolving International Concepts and Regimes,
1999, 321.
84
See Art. 21, Comments on Articles, Explanatory Memorandum, Proposal for a Council
Directive on minimum standards on procedures, EU Commission Proposal 500PC0578, 27 Dec.
2000.
85
Annex II, Proposal for a Council Directive on minimum standards on procedures, above n.
78.
The jus cogens Nature of non-refoulement 555
the decisions taken and, in the exercise of their supervisory responsibilities
under Article 35 of the Geneva Convention, can make representations to these
authorities regarding individual applications for asylum.

In the case of a third State not party to the 1951 Convention, it must be
shown that:

(1) it generally observes the principle of non-refoulement as laid down in the OAU
Convention governing the specific aspects of refugee problems in Africa of 10
September 1969 and has in place with respect to the persons who request asylum
for this purpose a procedure that is in accordance with the above mentioned
principles; or
(2) it has followed the conclusions of the 19–22 November 1984 Cartagena
Declaration of Refugees to ensure that national laws and regulations reflect the
principles and criteria of the Geneva Convention and that a minimum standard
of treatment for refugees is established; or
(3) it nonetheless generally observes in practice the standards laid down in the
Geneva Convention with respect to the rights of persons in need of international
protection within the meaning of this Convention and has in place with respect
to the persons who wish to be so protected a procedure which is in accordance
with the above mentioned principles; or
(4) it complies in any other manner whatsoever with the need for international
protection of these persons, either through cooperation with the Office of
UNHCR or other organisations which may be working on behalf of the UNHCR
or by other means deemed in general to be adequate for that purpose as evinced
by the Office of the UNHCR.

In the second instance, the State designated as a ‘safe third country’ must
abide by the following ‘basic standards laid down in international human
rights law’:

(1) Any country that has ratified either the 1950 European Convention for the
Protection of Human Rights and Fundamental Freedoms or both the 1966
International Covenant on Civil and Political Rights and the 1984 Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, and generally observes the standards laid down therein with respect
to the right to life, freedom from torture and cruel, inhuman or degrading
treatment, freedom from slavery and servitude, the prohibition of retroactive
criminal laws, the right to recognition as a person before the law, freedom from
being imprisoned merely on the ground of inability to fulfil a contractual
obligation and the right to freedom of thought, conscience and religion.
(2) Observance of the standards for the purpose of designating a country as a
safe third country also includes provision by that country of effective remedies
that guarantee these foreign nationals or stateless persons from being removed
in breach of Article 3 of the European Convention or Article 7 of the International
Covenant and Article 3 of the Convention against Torture.
556 Jean Allain
Having laid down the Principles regarding ‘safe third country’, Article
22 of the proposed Directive provides that this notion will hold ‘for a
particular applicant’, if the individual has a connection or close links with
the ‘safe third country’, or had the opportunity, while in that country, to
seek protection, and that the applicant will be re-admitted. In such a
situation, and where there are no grounds for considering that the country
‘is not a safe third country in his particular circumstances’, the application
can be considered inadmissible, and the individual can be returned to
the ‘safe third country’. While Article 32 of the proposed Directive states
that ‘applicants for asylum have the right to appeal against any decision
taken on the admissibility or the substance of their application for asylum’,
Article 33 does not guarantee that the individual will be able to remain
in the State pending the outcome. This is true where the application was
dismissed as ‘manifestly unfounded’ on grounds such as ‘safe country of
origin’, and also in cases where individuals are deemed to have travelled
through a ‘safe third country’, and failed the test of Article 22. While
Article 33(3) allows for a individual to seek leave to remain, yet ‘no
expulsion may take place until the competent authority has taken a
decision on this request, except in cases where a country which is not a
Member State is considered as a safe third country for the applicant
pursuant to Articles 21 and 22’. This may thus result in an individual
being returned to a State which may not be safe or which may, in turn,
expel that individual to a State which is not safe, in violation of the norm
of non-refoulement.
Byrne and Shacknove consider that the ‘safe third country’ notion
‘rests on several infirm empirical assumptions about the extent of human
rights violations and cultural affinities in the regions of origin, [and] the
statutory basis and procedural sophistication for eligibility determination
in transit countries’.86 The doubtful ability to establish whether a State is
in fact a ‘safe third country’ and the procedural impediments to judicial
redress mean that individuals may well be returned to States which are,
from the perspective of European States ‘safe’, but may not, in fact, be
safe. As Byrne and Shacknove have noted, both ‘safe country of origin’
and ‘safe third country’ has ‘resulted in cases of refoulement’ by European
States.87 Their study takes issue with these notions:
A basic ingredient in the transformation of European asylum law and policy is
the safe country notion. The notion’s core intuition is that an asylum-seeker is
coming from a country in which he or she was safe from persecution and to
which safe return is possible. Although this idea appears obvious, the safe country
notion challenges core principles enshrined in the 1951 Geneva Convention and
in long-settled administrative law doctrine. It raises basic jurisprudential questions

86
Byrne & Shacknove, above n. 1, 227.
87
Ibid., 189.
The jus cogens Nature of non-refoulement 557
about the place of the individual in international human rights law. Its application
raises concern about the return of bona fide refugees to situations of persecution
and about the maintenance and evolution of an inclusive, international asylum
regime.88

As the European Union moves toward the 2004 deadline established by


the Treaty of Amsterdam for common asylum policies, it is apparent
that, by establishing minimum standards, Member States are introducing
concepts which, in their application, will violate the individual right of
the refugee not to be refouled. The institutionalization of the notions of
‘safe country of origin’ and ‘safe third country’ is likely to lead to Member
States refouling individuals. Raising these, and other ‘containment’89 policies
to the supranational level of European legislation does not alter the jus
cogens imperative of ensuring that an individual is not sent back to a
situation in which life or freedom would be threatened. The ‘safe country
of origin’ concept, whether applied to individuals from inside or outside
the European Union, and the notion of ‘safe third country’ both fail to
ensure that a particular individual will not be refouled, despite the imperative
requirements of this norm as embodied in Article 33 of the 1951
Convention.

5. Conclusion
Consideration of the norm of non-refoulement in the light of its jus cogens
character has demonstrated that States are prohibited from violating its
provisions, either individually or collectively. Insisting on the jus cogens
nature of non-refoulement takes the question beyond the policy considerations
of entities such as the United Nations Security Council or the European
Union, confirming the unlawfulness of actions which would violate an
individual’s right not to be returned to a State where he or she might
face persecution. By playing this ‘trump’ card, which places the
individualized right of non-refoulement above all other considerations not
meeting the threshold of jus cogens means that individuals can challenge
the actions of States and hold them accountable. A fundamental weakness
of international law is the limited access of individuals to international
adjudication. The process of refugee determination implicitly required
by the 1951 Convention means that States must make decisions which
are susceptible to review at the municipal level. Even decisions taken by
the State in a regional, supranational or international context must be

88
Ibid., 186.
89
See Andrew Shacknove, ‘From Asylum to Containment’, 5 IJRL 516–33 (1993).
558 Jean Allain
implemented naturally. It is here that advocates can point to the jus cogens
nature of non-refoulement and insist that, whatever the policy and wherever
it may emanate from, it ought not to be applied in such a manner as to
send a person back to a State to face the risk of persecution.