Ius cogens and constraints on administrative decision making in immigration and refugee cases

Abstract

This thesis considers whether peremptory norms of international law (ius cogens) can, regardless of source, serve as viable constraints on administrative decisions in common law systems and, in particular, how they can be applied in immigration and refugee cases. The starting premise is that the common law has failed to consistently articulate and apply a fundamental set of human rights norms or even a means of identifying these. This has been particularly true in immigration and refugee law. This is partly because this area is usually seen as having its origins in prerogative powers and the executive has therefore been given a freer hand. The deeper reason has been a view that there can be no fundamental rights since the only legitimate source of law in this area is Parliament. The courts' record in giving effect to international norms is then examined. A similar confusion exists here for similar reasons. In both cases, courts recognise that governments make statements about how they intend to treat persons but refrain from acting on such statements because of deference to Parliament as ultimate law-maker. The thesis then considers whether ius cogens norms could provide an objective source of fundamental rights. It consider the arguments for and against peremptory norms and argues that because ius cogens norms as defined in the Vienna Convention 1969 require the overwhelming support of the international community, they are more objective than other proposed controls on discretion. The thesis considers five paradigmatic norms of ius cogens potentially relevant to an immigrant or asylum-seeker: prohibitions on discrimination, slavery, torture, genocide and refoulement. Four cases from common-law jurisdictions which discuss ius cogens are then considered and it is found that the common law suffers from the same confusion here as was previously identified. The thesis argues that ius cogens norms deserve domestic recognition in their own right because they are supported both by international law and the common law itself. Unlike other human rights, ius cogens norms are both absolute and fundamental. They can be simply expressed and are likely to apply in relatively few cases. Their application is extremely clear and when they do apply, they must be given effect.