By Dr Justin Glyn

Pages:  196

Price:  $125 (+ GST for Australian orders)
Publication: May 2009

Format:  hardback

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ISBN: 978-0-9804994-8-3

This book examines whether peremptory norms of international law (ius cogens) could provide an objective source of fundamental rights that can legitimately be used to constrain administrative decision-making in immigration and refugee cases.

The common law has failed to consistently articulate and apply a fundamental set of human rights norms or even to supply a means of identifying such norms. This has been particularly true in immigration and refugee law, partly because this area is usually seen as having its origins in prerogative powers, giving the executive a freer hand, and partly because of the positivistic assumption that parliament is the only legitimate source of fundamental rights.

Arguments for and against peremptory norms in international law are considered and the manner in which they could be applied in domestic law is analysed through studies of cases from Australia, the UK, Canada and New Zealand involving five ius cogens norms relevant to immigrants and asylum-seekers: namely, the prohibitions on discrimination, slavery, torture, genocide and refoulement. While the book focuses on the immigration and refugee context, many of its analyses and conclusions are relevant to other fields of administrative decision-making.

The author argues that ius cogens norms are both absolute and fundamental, can be simply expressed and implemented in a clear manner and, where applicable, should be given full effect by decision-makers and judges.

Jurisdiction(s)

Australia, UK, Canada, New Zealand

About the Author 

Dr Justin Glyn first practised law as an attorney in South Africa. After immigrating to New Zealand, Justin worked initially as a barrister sole and subsequently in major commercial law firms in Auckland. He served on the Auckland District Law Society’s Immigration and Refugee Law Committee from 2006-09.