Jul 7 2017

Non-Refoulement as Lex Specialis?

By Jenny Poon*

Academic debates often surround whether refugee law is lex specialis, so that when both refugee law and human rights law apply in the same scenario, refugee law will take precedence over and displace the human rights law norm. I suggest that both refugee law and human rights law should apply in the scenario where the exception to non-refoulement applies – i.e. when a refugee is sent back where he or she has been deemed to be a danger to the community or a national security risk (Refugee Convention, art 33(2)). Here, a normative conflict arises where lex specialis as a legal interpretive tool may be potentially triggered. Displacing this norm is potentially dangerous in the scenario where the refugee is being sent back to persecution (currently permitted under Article 33(2)), when human rights law is supposed to protect the refugee from being sent back to torture or inhuman degrading treatment or punishment. However, where the future violation does not rise to the level of torture or inhuman degrading treatment or punishment, the refugee will be sent back to persecution. Here, neither a strict reading of refugee law nor human rights law is able to offer protection to the refugee being sent back under the exception to non-refoulement as a result of the operation of the lex specialis principle, permitting refugee law to displace human rights law.

Non-Refoulement as Lex Specialis in the Refugee Context

Lex specialis is a legal doctrine used to aid interpretation of legal norms in situations of normative conflicts (ILC report, p. 34-35). According to an International Law Commission (ILC) report, the maxim lex specialis states where a matter is being regulated by both a general and a specific rule, the latter will take precedence. Lex specialis should only be invoked as an interpretative aid in cases where there is some actual inconsistency between the general and specific rule, or otherwise in situations where the application of one provision will exclude the application of the other (‘Articles on State Responsibility’, art 55). As the International Court of Justice held in the Nuclear Weapons case, lex specialis was only invoked to determine the meaning of the general provision in the right not to be arbitrarily deprived of one’s life in the context of armed conflict in relation to the more specific rule applicable under international humanitarian law (‘Nuclear Weapons case’, p. 240).

According to Jane McAdam, the Refugee Convention is a type of lex specialis with respect to the status it confers on protected persons (McAdam, p. 4). McAdam asserts that although the Refugee Convention is considered lex specialis, it does not displace the lex specialis nature of human rights law, but rather complements and strengthens its application. In this sense, human rights law and refugee law act together and complement one another to broaden the scope of international protection for persons of concern. For instance, human rights law covers the gap that exists where non-refoulement obligations do not apply as is the case for asylum claimants found to be a danger to the community or national security of the country where they have been convicted of a serious crime under Article 33(2). As stated in the preamble of the Refugee Convention, the purpose of the instrument is to ensure ‘refugees [are given] the widest possible exercise of […] fundamental rights and freedoms’ (Refugee Convention, preamble). Furthermore, refugee law does not supersede human rights law as lex specialis where the human rights norm or instrument provides greater protection than offered by refugee law (Persaud, p. 5).

Non-Refoulement in the Broader Human Rights Context

Some scholars have posited that the lex specialis nature of non-refoulement in the refugee context is necessary to ensure adequate protection for persons of concern, including, but not limited to, asylum claimants and refugees. International human rights law in and of itself is inadequate as a source of substantive protection for asylum claimants and refugees. For example, although human rights law requires states to protect the rights of persons within their jurisdiction and control, the quality of such rights may vary depending on the legal status of the person concerned vis-à-vis the State (McAdam, p. 5). McAdam asserts that international human rights law creates a gap between rights guaranteed and rights implemented.

McAdam argues that, in contrast with human rights instruments, the Refugee Convention is ‘unique in creating a legal status for its beneficiaries,’ and, despite lex specalis, the rights contained in the Refugee Convention are not superior to those in universal human rights instruments, but are applied differently and have been extended by the latter (Complementary Protection, p. 6). According to McAdam, for international refugee norms, states tend to regard Convention rights as a status required by international law, while for human rights norms, state practice may not always follow as a result of poor implementation of those norms. Other scholars such as Vincent Chetail argue that the Refugee Convention cannot be lex specialis because general human rights norms cannot be dissociated from their treaty body interpretations, which may result in more precise understanding of the norm than their refugee law counterparts (Chetail, p. 19-72). Chetail argues that ‘human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role’.

I suggest that reading refugee law (or non-refoulement) as lex specialis so that it displaces human rights law in situations where the refugee is sent back to persecution as permitted under Article 33(2) may create the potential danger of overly emphasizing the Refugee Convention as a specialist instrument. At the same time, the intersections between refugee law and human rights law should not be understated. In spite of this, I suggest that the two branches of international law should be interpreted as working to complement one another to offer the widest possible protection for refugees and individuals seeking asylum, rather than an interpretation where one would take precedence over the other in situations where normative conflicts arise.

Works Cited

Convention Relating to the Status of Refugees 189 UNTS 137 (adopted 28 July 1951, entered into force 22 April 1954) at preamble, art 33(2)

International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006, pp. 34-35.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001 at art 55.

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, pp. 240.

Jane McAdam, “The Refugee Convention as a rights blueprint for persons in need of international protection”, UNHCR Research Paper No 125, July 2006, pp. 4-5.

Santhosh Persaud, “Protecting refugees and asylum seekers under the International Covenant on Civil and Political Rights”, UNHCR Research Paper No 132, November 2006, pp. 5.

Jane McAdam, “Complementary Protection in International Refugee Law” (Oxford: OUP, 2007), pp. 6.

Vincent Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law” in Ruth Rubio-Marin (ed) Human Rights and Immigration (Oxford: OUP, 2014), pp. 19-72.

*The author is a Barrister & Solicitor in Ontario, Canada, and a Ph.D. Candidate at the Faculty of Law of the University of Western Ontario, Canada, where her research looks at the principle of non-refoulement as a norm in both international and European law. The author was a Visiting Study Fellow at the University of Oxford, Refugee Studies Centre for Trinity Term 2017. All views and any errors are the author’s own.


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