The Peremptory Nature of Non-Refoulement Obligation: Juridico-Ethical Argument for Humanity

Abstract: First, the thesis establishes that non-refoulement obligation is jus cogens norms. Before establishing the peremptoriness of the given legal norm, the account of the concept of jus cogens is proposed within which such elevation occurs. The argument suggests that jus cogens non-refoulement obligation complemented with the various conceptual and normative objections undermine the conceptual viability of the phenomena of rightlessness in international law, particularly concerning jus cogens non-refoulement obligation. Second, it argues for and proposes sui generis interpretive legal consequences – as opposed to another kind of legal consequences – arising from the peremptoriness of non-refoulement obligation. The first and second arguments propose the explication of how the legal relationship between non-refoulement obligation, State jurisdiction, and human rights obligations is best construed and as an application of the proposed framework briefly considers SS et al. v. Italy pending before the ECtHR.