The duty not to return: non refoulement as a jus cogens norm in international law

Abstract

This thesis examines to what extent the principle of non-refoulement can be recognised as a jus cogens norm under international law. While non-refoulement enjoys broad acceptance, it is frequently circumvented through pushbacks, offshore processing, and extraterritorial controls, raising doubts about its legal force. Moreover, no prior study has systematically applied the International Law Commission’s Draft Conclusions on Peremptory Norms to this question, leaving a significant gap in scholarship. Using a doctrinal methodology, it analyses treaties, jurisprudence, the interpretations of human rights bodies, domestic legislation, and scholarly commentary. The study finds that non-refoulement meets the cumulative criteria for jus cogens as it has been established as customary law with widespread state practice and opinio juris, alongside near-universal recognition of its non-derogable character. Recognising non-refoulement as jus cogens has critical implications. The principle functions as a procedural safeguard essential to enforcing the prohibition of torture and other absolute rights, binding all states without exception. Even persistent circumvention efforts affirm the normative authority of non-refoulement due to the implicit acknowledgement and lack of contestation regarding its legally binding character. Finally, framing non-refoulement as performing a surrogate protection function underscores its role as a last-resort guarantee of human dignity when national protection fails, reinforcing its status as an erga omnes obligation that transcends state consent. 1