Professor Cathryn Costello and Professor Michelle Foster (Melbourne Law School) have published the chapter ‘Non-refoulement as custom and jus cogens? Putting the prohibition to the test’ in a special edition of the Netherlands Yearbook of International Law which focuses on jus cogens. This is the first output of the Allan Myers Oxford-Melbourne research partnership on the New Dynamics of International Refugee Law.
In this publication, Costello and Foster note that while the norm of non-refoulement is at the heart of the international protection of refugees, there remains a lack of consensus as to its status. In this contribution, they examine the question of whether it has attained the status of a jus cogens norm. Adopting the methodology of ‘custom plus’, they 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 recognized 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.