Peremptory International Legal Norms and the Democratic Rule of Law

Sonja Grover

• Publisher: Routledge
• Year: 2020
• eBook ISBN: 9781000731576
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Peremptory International Legal Norms and the Democratic Rule of Law explores the risks to the democratic State inherent in the attempt to divorce the notion of democratic rule of law from respect for and adherence to peremptory international legal norms which allow for no derogation therefrom such as the prohibition of torture and inhumane treatment or punishment by the State.

The chapters address, with specific current case examples, in what ways the democratic rule of law within certain democratic States risks being undermined through those States acquiescing to the erosion of peremptory international law norms in the domestic and international context. The book therefore explores the question of in what ways such democratic State acquiescence in effect may ultimately disrupt the investment within the State in the shared culture of core human rights values that underlies democratic rule of law itself and highlights the fragility of that shared culture. The contributors argue for a renewed commitment in principle and practice to the democratic rule of law and to its human rights international normative underpinnings.

Peremptory International Legal Norms and the Democratic Rule of Law will be of great interest to scholars of international law, human rights and democracy. The chapters originally published as a special issue of The International Journal of Human Rights.

International order, the rule of law, and US departures from refugee protection

Alise Coen iD

ABSTRACT

Compliance with international human rights norms and respect for the rule of law are mutually sustaining pillars of a liberal international order. State behaviours undermining customary and jus cogens legal norms are exceptionally disruptive to possibilities of global justice. This article posits that non-refoulement and a responsibility to protect refugees are connected to universally binding and peremptory norms in important ways such that state violations of these principles undermine the premises of international legal order. The article focuses on US norm violations in these areas, contextualising policy changes under the Trump administration within previous US departures from refugee protection principles. Given the position of the United States as a hegemonic and democratic actor in the international system, the article argues that US actions contra non-refoulement and efforts to shirk refugee responsibility-sharing in the wake of jus cogens crimes are particularly damaging to the foundations of global human rights governance and attendant notions of legitimacy and the rule of law.

Introduction

Diverse perspectives within International Relations (IR) theory have converged around the notion that the global architecture underpinning the contemporary world order is at a crossroads.¹ At the heart of this juncture is the crisis of a distinctly liberal international order built on a rules-based system of multilateralism, democratic solidarity and human rights.² There are robust foundations for connecting norm-violating behaviour to this crisis and its attendant erosions of the rule of law at both domestic and international levels. Much work has focused on the rule of law as a state-level attribute, demonstrating the centrality of fair, impartial and effective institutions for democratic political systems.³ Applied to the international domain, the rule of law anticipates that states and other actors will adhere to a wide range of principles prescribed by legal norms to ensure a sense of fairness, procedural transparency and predictability.⁴ Violations of customary and peremptory legal norms – universally binding norms of a jus cogens nature from which no derogations are permitted – can cripple the expectations associated with these components of international order and justice. Deviations from human rights principles are particularly problematic since the rule of law depends on equally enforced laws ‘consistent with international human rights norms and standards’.⁵

The responsibility for adhering to these principles arguably rests first and foremost with powerful states that possess the governance capacity to comply with them, as weaker states sometimes lack the durable administrative institutions needed to enforce human rights laws within their territories.⁶ Strong states espousing a liberal democratic identity are particularly integral to sustaining the normative and legal power of international human rights instruments since they possess both material and ideational conditions supportive of human rights compliance. What, then, are the implications for global human rights governance when a democratic, hegemonic actor violates core human rights principles? This article focuses on US norm violations in the realm of refugee protection to explore this question. Violations of the principle of non-refoulement and efforts to shirk refugee responsibility-sharing in the wake of mass atrocity crimes are highlighted as two important realms in which US behaviours undermine the rule of law and weaken international order.

The article proceeds in four parts. The first section provides an overview of salient connections between international order and the rule of law, defining these concepts and highlighting their intertwinement with human rights norms. The second section discusses core human rights principles manifest in two realms of refugee protection that bear important connections to jus cogens and customary legal norms: the obligations of non-refoulement and a responsibility to protect refugees fleeing mass atrocity crimes. The third section of the article explores US norm violations in these and other relevant areas, contextualising policy changes during the first year of the Trump administration within previous US departures from refugee protection principles. The article concludes with a consideration of the consequences of these norm violations for notions of legitimacy, the rule of law and international order.

International order and the rule of law

Member states at the United Nations (UN) World Summit in 2005 committed to ‘actively protecting and promoting all human rights, the rule of law and democracy’, recognising the ‘interlinked and mutually reinforcing’ nature of these concepts.⁷ At the international level, the rule of law provides an important sense of stability and predictability in the absence of a centralised world polity. While definitions of the concept vary, the rule of law might be conceptualised as entailing four main principles: governments and other actors are accountable under the law; laws are just and applied evenly, and protect fundamental rights; the processes by which laws are enacted and enforced are accessible and fair; and the delivery of justice is competent and ethical.⁸ Accountability under the law and the equal enforcement of laws protecting basic human rights are particularly central in enabling states and other actors to maintain standards of fair behaviour. When states fail to comply with their legal commitments and uphold fundamental human rights protections, the principles of accountability, fairness and equal enforcement underpinning the rule of law are undermined. Moreover, because the efficacy of international law depends on its successful internalisation and enforcement among states, widespread violations of international standards can precipitate a breakdown in global justice.⁹

Encroachments on the international rule of law simultaneously encroach on international order. International order encompasses ‘the body of rules, norms, and institutions that govern relations among the key players in the international environment’.¹⁰ Contemporary international order depends particularly on adherence to liberal political norms upholding human rights. Noncompliance with such norms is often understood as endangering human rights and international stability writ large.¹¹ For democracies, human rights violations can jeopardise the rule of law and notions of legitimacy at domestic and international levels. States’ adherence to human rights norms represents an important signalling of their commitment to democracy¹² as well as their membership in a club of nations that adhere to ‘laws of universal conscience’.¹³ Expectations that democracies fulfil their moral commitments under international law have intensified as notions of international order have increasingly linked democracy with human rights.¹⁴ Compliance with human rights norms has become paramount to shared understandings of global governance, justice and accountability, such that states are increasingly willing to prioritise commitments to international human rights law over short-term material interests, even at significant economic costs.¹⁵

When such norms have acquired peremptory or jus cogens status, they are especially foundational to preserving the rule of law on which international order depends. Jus cogens status signals acceptance by the international community of states as a whole, and states cannot derogate from or opt out of jus cogens obligations, even by treaty.¹⁶ Greater attention to the connection between jus cogens norms and international order is needed within IR, as these binding international standards are arguably central to the ethos of the international community. Conklin posits that violations of these norms call into question the very existence of the international legal order, for ‘when a state contravenes the peremptory norm, the legitimacy/authority of the international community in which the preemptory norm is nested is annulled’.¹⁷ Widely accepted examples of jus cogens norms include prohibitions against attacks on civilians, genocide and torture.¹⁸ Such prohibitions represent the extent to which core values of the international community surrounding human rights have become ‘so fundamental to the system that the law could not survive without them’.¹⁹

Core human rights principles and refugee protection

International human rights law provides a fundamental basis for the protection of asylum-seekers, refugees and forcibly displaced persons by shielding these individuals from violations of accepted international norms.²⁰ This section of the article outlines two areas of refugee protection that merit attention: the principle of non-refoulement and the responsibility to protect refugees fleeing mass atrocity crimes. Because these realms might be considered intrinsically connected to peremptory human rights norms of a ju...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• Notes on Contributors
• Introduction
• 1 International order, the rule of law, and US departures from refugee protection
• 2 The harbinger theory of terrorism and the rule of law: the danger of ‘balancing’ non-derogable rights against security when relying on threat assessments produced by self-interested intelligence agencies
• 3 Citizenship by descent: how Canada’s one-generation rule fails to comply with international legal norms
• 4 Securitisation, non-refoulement and the rule of law in Kenya: the case of Somali refugees
• 5 The widespread use of torture in Mexico and its impacts on the rule of law
• 6 EU membership conditionality in promoting acceptance of peremptory human rights norms: a case study in Albania considering public opinion
• Index