The Authority of International Refugee Law

45 Pages Posted: 22 Nov 2020

See all articles by Evan J. Criddle

Evan J. Criddle

William & Mary Law School

Evan Fox-Decent

McGill University - Faculty of Law

Date Written: November 18, 2020

Abstract

As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a non-derogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the authority that international law entrusts to states—including the sovereign power to regulate migration across national borders—can be legitimate only if states refrain from refoulement. For international legal order to claim to possess legitimate authority over exiled outsiders, it must treat non-refoulement as a jus cogens norm. A failure to regard non-refoulement as a peremptory norm would thus strip the international legal system of its claim to legality vis-à-vis asylum seekers, supplanting the rule of international law in this context with mere coercive force. To test this account of the authority of international refugee law, the Article surveys closed-border policies that states have adopted in response to COVID-19 and explains why the associated restrictions on non-refoulement are unjustifiable and incompatible with the rule of law. Even during a genuine national emergency, such as the COVID-19 pandemic, receiving states cannot return refugees to persecution without subverting their own claims to legal authority.

Keywords: refugees, international refugee law, non-refoulement, persecution, COVID-19, jus cogens, peremptory norm, emergencies, rule of law, fiduciary

Suggested Citation

Criddle, Evan J. and Fox-Decent, Evan, The Authority of International Refugee Law (November 18, 2020). William & Mary Law Review, Vol. 62 (2021 Forthcoming), Available at SSRN: https://ssrn.com/abstract=3733019 or http://dx.doi.org/10.2139/ssrn.3733019

Evan J. Criddle (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

Evan Fox-Decent

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec H3A 1W9
Canada

HOME PAGE: http://www.mcgill.ca/law/about/profs/fox-decent-evan

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