C and Others v. Director of Immigration and Another (United Nations High Commissioner for Refugees intervening)

Aliens — Refugees — Applicants seeking refugee status in Hong Kong — Convention relating to the Status of Refugees, 1951, and 1967 Protocol (“Refugee Convention”) — Article 33(1) of Refugee Convention — Non-refoulement principle — Whether part of customary international law — Whether acquiring status of jus cogens — Determination of refugee status by Hong Kong Sub-Office of United Nations High Commissioner for Refugees (“the UNHCR”) — Exercise of discretion by Director of Immigration — Whether Director of Immigration under legal obligation to determine refugee status — Whether Director of Immigration having legal obligation to inquire into non-refoulement claims Relationship of international law and municipal law — Refugee Convention — Refugee Convention not extended to Hong Kong — Immigration Ordinance Cap. 115 1972 — Customary international law — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — Whether rule incorporated into Hong Kong domestic law — Judicial review — Whether decision to refoule subject to judicial review — Whether high standard of fairness applicable Sources of international law — Customary international law — Jus cogens — Whether rule of customary international law prohibiting refoulement of refugees — Whether rule acquiring peremptory norm status — The law of the Hong Kong Special Administrative Region of the People’s Republic of China

The Compelling Law of Jus Cogens and Exceptions to Peremptory Norms

In this chapter, the problematic of exceptions to peremptory norms is investigated in view of the defining feature of jus cogens rules as not admitting of derogation. This problematic appears singularly concerned with exceptions to the prohibition of the use of armed force, since that prohibition is regularly claimed to constitute a peremptory norm but admits of exceptions. Different legal constructions have been proposed to explain why exceptions would not amount to derogation. One construction, logically coherent but not (fully) borne out by positive law, is to see exceptions as limiting and lying outside of the substantive scope of a general rule and thus not amounting to derogation. Another construction concerns the claim that the prohibition of the use of armed force is not a jus cogens rule but rather the prohibition of aggression. As such, exceptions such as self-defence, force pursuant to a Security Council authorization, and consent would not amount to derogation, since they would not entail the commission of aggression. This construction would allow for the conclusion that peremptory prohibitions are absolute in character and not subject to exception or justification. Circumstances precluding wrongfulness, as general exceptions, appear to qualify as derogation, since Article 26 of the Articles on the Responsibility of States bars their invocation when conduct would be contrary to a peremptory norm. Finally, a narrow interpretation of the word derogation, as being involved only when states attempt to legalize or justify conduct in relation to already existing, concrete circumstances, could also explain why exceptions to peremptory prohibitions may be considered admissible.

Developments Concerning Immunity from Seizure for Cultural State Property on Loan

This chapter examines recent developments supporting a recently emerging rule of customary international law that cultural objects belonging to foreign States and on temporary loan for an exhibition are immune from seizure. It assesses, in particular, the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, a declaration on jurisdictional immunities of State-owned cultural property in the Committee of Legal Advisers on Public International Law of the Council of Europe, a Draft Convention by the International Law Association on immunity from suit and seizure for all cultural property on loan, as well as legal developments in the United States, Europe, and Australia. These developments strengthen the existence of the rule of customary international law on immunity from seizure for cultural State property on loan, though they also confirm certain exceptions to that rule, namely that the rule does not extend to those cultural objects which have been the subject of a serious breach of an obligation arising under a peremptory norm of general international law, or which are already subject to return obligations under international or European law.

Crimes against humanity as a peremptory norm of general international law (jus cogens): There really is no doubt? But so what?

In 2019 the International Law Commission adopted two texts providing for the peremptory character of the prohibition of crimes against humanity, namely the draft articles on the prevention and punishment of crimes against humanity and the draft conclusions on peremptory norms of general international law. While both of these instruments recognise the peremptory character of the prohibition of crimes against humanity, neither of them address the consequences of the peremptory character of the prohibition of crimes against humanity. This article, on the basis, inter alia, of the internal processes leading to the adoption of these instruments, addresses the consequences of the peremptory character of the prohibition of crimes against humanity.

Humanitarian Intervention: Fairy Tale about One Swallow Which Made Summer?

Summary In its final report on aggression and the use of force, the International Law Association opined that the only way in which unilateral humanitarian intervention could possibly be seen as a legal exception to the prohibition of the use of force is if State practice and opinio juris were to be found establishing its status as an additional exception in customary international law. After the airstrikes conducted by the US, the UK, and France against Syria in April 2018, which took place in reaction to unprecedented usage of chemical weapons against civilian population by regime of Bashar Asad, some States and part of scholars argued that this permissive rule (exception) has already crystalized and humanitarian intervention became part of international law. The aim of this article is to assess whether these opinions are relevant or whether they are simply premature. The text is divided into three parts. Firstly, legality of humanitarian intervention is considered in the framework of the UN Charter and customary international law on the use of force based on evaluation of scholarly debates and the most prominent examples of State practice before 2018. Then, the article describes methodology that is employed in relation to the creation (modification) of customary international law in general and peremptory norm concerning the prohibition on the use of force in particular. This part analyzes how possible normative changes of jus ad bellum should be assessed. The third part evaluates justifications and reactions of States with respect to the use of force against Syria in April 2018 that were presented by the international community of States. The article concludes that the concept of humanitarian intervention remains still illegal even after the airstrikes against Syria from 2018, what conforms to the prevailing opinion presented in contemporary scholarly literature. Even though the positive echoes identified in State practice (and doctrine) are yet premature, they indicate that process of gradual normative change has already been triggered. At the same time, the expectations concerning crystallization of a new possible exception to the general prohibition on the use of force should not be too exaggerated.

Myanmar

This chapter discusses international law in Myanmar. The efforts of the International Labour Organization (ILO) Commission of Inquiry to eradicate the use of forced labour in Myanmar, and the nature of the military regime’s response to these efforts, represent a remarkable chapter in the history of international law. Of note, first, is the determination of the ILO to test the limits of its power to enforce compliance with the resolutions of its governing body. Second, Myanmar’s engagement with the ILO clarified the vexed issue of what constitutes a peremptory norm of international law. Third, civil litigation in the United States around the issue of forced labour by transnational corporations in Myanmar uncovered the scope and potential for domestic courts to apply international law. Finally, Myanmar’s variable and often extreme responses to the Commission’s findings demonstrate the dynamics of state resistance to and engagement with international law.

Treaty Bodies

This article contributes to existing understandings about the influence of human rights treaty bodies on the development of customary international law. It offers a method of assessing State responses to treaty body jurisprudence for the purposes of determining to what extent the responses push toward the reaffirmation or crystallisation of a customary rule of international law, namely the prohibition against torture. It speaks to the way in which, despite its status as a peremptory norm, the content of the norm is often challenged, but also incrementally expanding due in large part to the way in which treaty bodies engage and guide States both inside and outside of the primary reporting procedures. Ultimately, this article demonstrates that State practice and opinio juris are increasingly influenced by treaty bodies.