Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
5/17/2020 0 Comments
Malaysia’s pushback operations against Rohingya boats during the COVID-19 pandemic has once again stirred controversy. In the first article of this three-part series, we will examine whether any customary rule of non-refoulement can be derived from human right treaties in order to engage Malaysia’s international responsibility.
The Rohingyas hold the unenviable distinction as the ‘most persecuted minority in the world’. For decades, they have been subjected to violence — from murder to rape — in the northern Rakhine region of Myanmar. The slow pendulum swing of political power from the military junta to the quasi-democratic government steered by Nobel Laureate Aung San Suu Kyi has brought little respite.
The international community no longer watches in silence. In April 2017, the United Nations Human Rights Council (HR Council) undertook an international independent fact-finding mission in Myanmar. In September 2018, the HR Council reported that the Rohingyas suffered ‘systemic oppression and persecution’. In August 2019, the HR Council confirmed there are ‘reasonable grounds to conclude… that Myanmar incurs State responsibility under the prohibition against genocide and crimes against humanity, as well as for other violations of international human rights law and international humanitarian law’.
In 2020, the International Court of Justice (ICJ) granted an order of interim measure against Myanmar pursuant to Gambia’s claim accusing Myanmar of genocide. In parallel, the International Criminal Court (ICC) has approved investigations on the alleged mass deportation of Rohingyas to Bangladesh.
Sadly, closer to home, the Rohingyas are short of allies. Most South-East Asian countries turn a blind eye towards the atrocities committed by the Myanmar junta — the frequent excuse being that the ASEAN code of ‘non-interference’ forbids them to speak ill of their neighbours. Rohingyas braving the perils of the sea are regularly blocked by the navy. The Indian Ocean has become one of the ‘deadliest stretches of water in the world’ due to risk of starvation, dehydration, and drowning.
One exception is Malaysia. For decades, the government have welcomed the arrival of Rohingyas with open arms. As at 2020, the United Nations High Commissioner of Refugees (UNCHR) reports over 100,000 Rohingyas registered and residing there (whilst less than 1,000 are registered in Indonesia). Apart from Bangladesh, Malaysia has become a safe haven for Rohingyas to call home.
Not anymore. The COVID-19 pandemic has forced the hand of countries worldwide to shut borders. Malaysia has been under lockdown since 18 March 2020. More worryingly, the authorities have barred the entry of incoming Rohingyas. On 6 April, the navy intercepted a boat off the coast of Langkawi Island and handed over 202 Rohingyas to the Immigration Department. On 18 April, another boat approaching Langkawi spotted by patrolling air-force was intercepted and escorted out of Malaysia’s waters. The official reason — to prevent a mass influx of immigrants exceeding the government’s capacity to contain the coronavirus.
Predictably, human rights activists were quick to decry such maritime interdictions. According to the press release of the President of the Malaysian Bar Council, the Malaysian government ‘violated the customary international law principle of non-refoulement’. The emphasis on ‘custom’ is deliberate — Malaysia is not a signatory to the relevant human rights conventions.
Generally, the principle of non-refoulement raises two contentious issues. First, the beneficiary issue — who is protected from refoulement? According to conventional international refugee law, such protection is limited to only refugees i.e. those under a well-founded fear of persecution on the basis of race, nationality, religion and political affiliation. This excludes persons fleeing armed conflict, natural disaster or dire economic conditions.
Second, the breach issue — what act amounts to refoulement? Modern governments resort to a myriad of ‘creative’ non-admission measures to deny asylum-seekers from stepping foot on their soil i.e. interdiction at sea, visa controls, ‘first country of arrival’ rules, and ‘safe third country’ designation. Whether such non-entrée methods flout international law is contentious.
This article aims to answer the second issue — to what extent is Malaysia bound by any duty of non-refoulement under customary international law to refrain from turning away the Rohingya boats, and how best can such duty (or any other duty under international law) be legally and realistically discharged?
Our analysis is broken into three articles. First, we will redraw the battle-lines — by analysing whether any customary rule can be derived from multilateral human rights treaties, and where the starting point in the search for custom should be. Second, we will review the past battles fought across jurisdictions — by surveying the executive, legislative, and judicial practice of countries worldwide. Third, we will recommend pragmatic solutions to end this long-drawn battle – by examining other existing legal regimes at a multilateral level (i.e. the duty of search and rescue under the law of the sea) and regional level (i.e. European Union’s regime on asylum, immigration and border control).
II. PRINCIPLE OF NON-REFOULMENT UNDER TREATY
At this early juncture, an astute reader may already wonder — if our analysis is primarily concerned with custom, why is the starting point on treaty instead?
Indeed, such approach is questionable. However, in practice, many judges, lawyers and scholars frequently turn to treaty as the ‘first port of call’ in order to identify the existence and content of custom. This is especially true for the principle of non-refoulement in immigration cases before domestic courts (as will be further illustrated in Part II).
Hence, we must first fall back to basics. The concept of customary law is best appreciated not in microscopic isolation, but through the lens of treaty law as well.
A. Treaty versus Custom
Under international law, there are two main sources of law: convention and custom.
Convention — or better known as ‘treaty’ — refers to ‘an international agreement concluded between States in written form and governed by international law’. A treaty operates between States broadly in the same way that a contract operates between private parties under civil law. A treaty is a creature of consent, binds only State parties and not third States, and must be performed by State parties in good faith (‘pacta sunt servanda’).
Moreover, some multilateral treaties are akin to legislation operating on the international plane due to their ‘norm-creating character’. Both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) are regarded as the ‘International Bill of Rights’. The United Nations Convention on the Law of the Sea is known as the ‘constitution for the oceans’.
‘Custom’ reflects ‘general practice accepted as law.’ As its very name suggest — and unlike treaty — ‘custom’ exist beyond the written word. How is custom formed? Where can custom be found? Needless to say, the identification of custom remains a much-examined and hotly-debated issue amongst scholars even until today.
Custom consists of two constituent elements: state practice and opinio juris sive necessitasis. State practice refers to consistent conformity of States to a particular practice (which need not be absolute nor universal). Opinio juris refers to the subjective element i.e. the belief that such practice is obligatory by law. Both elements can be evinced in multiple forms, including treaties, UN General Assembly resolutions, judicial decisions of national courts, and so on.
Theoretically, there is no hierarchy between both sources of law. However, in practice, international courts typically examine States’ treaty obligations first, and if unable to find a breach thereunder, their customary obligations next.
In Nicaragua v US, the ICJ examined the legality of the US’ military intervention under the customary rules on non-use of force – as opposed to the Charter of the United Nations – simply because the ICJ lacked jurisdiction to determine the US’ obligations under the latter.
In Corfu Channel, Albania could not be held responsible for failing to warn approaching British warships of the existence of a minefield in Albanian territorial waters under the Hague Convention VIII which only applied during war and not peace-time. Nevertheless, the ICJ found Albania responsible based on ‘certain general and well-recognised principles’: (a) ‘elementary considerations of humanity’; and (b) ‘every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’ (later developed and known as the customary principle of prevention or due diligence).
Does this mean that treaty prevails custom? The same way, say, statute prevails over common law? Not necessarily so. Such practice is merely indicative of priority in methodology, not precedence in weightage.
Indeed, both treaty and custom co-exist independently and separately, even on areas of law with identical content. This was repeatedly emphasised — and succinctly explained — by the ICJ in Nicaragua v US:
‘…even if the customary norm and the treaty nom were to have exactly the same content, this would not be a reason for the Court to hold that the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm… More generally, there are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter "supervenes" the former, so that the customary international law has no further existence of its own.’
Further, in cases where both treaty and custom apply, treaty obligations are typically more expansive in depth and breadth, which renders any examination under custom as superfluous or inefficient. Hence, as a general rule, there is only a need to resort to custom in the absence of treaty (as in Nicaragua v US), or the applicable treaty has not kept in pace with the evolution of custom (as in Corfu Channel).
In short, the general preoccupation with treaty law is borne out of judicial economy, and not doctrinal precedence.
B. Deriving Custom from Treaties
Can principles that are embodied in treaties crystalise into customary law? The short answer is ‘yes, but not easy’.
In North Sea Continental Shelf, the ICJ recognized that the process of a treaty ‘pass[ing] into the general corpus of international law… so as to become binding even for countries which have never, and do not, become parties… is a perfectly possible one and does from time to time occur’. However, the ICJ was quick to add that ‘this result is not lightly to be regarded as having been attained’.
In Continental Shelf (Libya/Malta), the ICJ acknowledged that whilst ‘multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them’, it remains ‘axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States’.
In Ahmadou Sadio Diallo, Guinea sought to establish a change in the customary rule on diplomatic protection by relying on the Convention for International Centre for Settlement of Investment Disputes (ICSID), various bilateral treaties, and contracts between States and foreign investors. However, the ICJ was unmoved because the existence of such legal regimes ‘could equally show the contrary’. There is logic behind a seemingly counter-intuitive riposte – to depart from pre-existing custom may be precisely why a State keeps entering into multiple treaties over a subject matter. If custom is so well-entrenched, why the need for treaties?
This is no mere abstract rhetoric, but accords with real-world pragmatism. An (imperfect) analogy is the test on implied terms under English contract law — a term that had one party suggested to include, the other party would irritably respond: ‘Oh, but of course’. International relations having many layers of bureaucratic protocol moves with glacial pace. Governments do not belabor over negotiating treaties that are unnecessary and redundant, just as busy businessmen do not waste words over the blindingly obvious (nor do lawyers feel any pressing need to call for the Contracts Act to be amended to codify the ‘officious bystander’ test).
Moreover, the jurisprudence of the ICJ is replete with similar warnings from various eminent judges. For instance, Judge Read in South West Africa emphatically declared ‘that the parties to a multilateral treaty, regardless of their number or importance, cannot prejudice the legal rights of other States’. To remain on the conservative side of custom may be precisely why a State persistently holds out from joining a ‘popular’ legal regime.
It is not wrong to hunt for custom within treaties, of course. However, there is danger in reading too much into treaties, and conflating both sources in the way that the ICJ has regularly cautioned against.
C. Treaty Regimes on Non-Refoulement
Turning now to the relevant human rights treaties at hand (in chronological order).
The leading treaty is the Convention Relating to the Status of Refugees (Refugee Convention) adopted in 1951 and ratified by 146 State parties. The prohibition of refoulement is found in Article 33(1):
‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’
According to Article 33(2), such protection is not available to a refugee ‘whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country’.
The second treaty is the ICCPR adopted in 1966 and ratified by 173 State. Non-refoulement is not explicitly stipulated. However, there are several provisions of implicit relevance. Article 6 protects the right of life. Article 7 prohibits torture or cruel, inhuman or degrading treatment.
Both articles often come into the fray in deportation cases before the Human Rights Committee (HR Committee). In A.R.J. v Australia and Munaf v Romania, the HR Committee recognised that any deportation of a foreigner whose rights under both articles would be violated as a ‘necessary and foreseeable consequence’ would engage the State’s responsibility. Moreover, both rights are non-derogable even in times of emergencies and armed conflict.
The third treaty is the Convention against Torture (CAT) adopted in 1984 and ratified by 169 State parties. It is perhaps no coincidence that the President of the Bar gave specific mention to the CAT. Unlike the ICCPR, non-refoulement is explicitly embodied in Article 3(1):
‘No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’
Article 3(2) defines the scope of ‘substantial grounds’ as ‘all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights’.
Malaysia is not a state party to any of the three treaties. The critical question then becomes whether such treaties — individually or collectively — have elevated the principle of non-refoulement to customary status?
From a textual analysis alone, the answer is ‘no’ – or at most, a ‘highly qualified yes’.
The difficulty here lies in the inconsistency and indeterminacy of the scope of obligation arising from this trinity of treaties.
First, on inconsistency. The relevant provisions are couched in substantially different language. It is a basic canon of construction that treaties are to be interpreted ‘in good faith in accordance to the ordinary meaning to the terms of the treaty in their context and in the light of its object and purpose’. The ‘context’ of a treaty comprise the operative text, and also the preamble and annexes (if any). Recourse can be made, as a supplementary aid, to ‘the preparatory work of the treaty and circumstances of its conclusion’ where the ordinary meaning is ambiguous or obscure, or leads a manifest absurdity and unreasonableness. For instance, in Palestinian Wall, the ICJ examined the travaux préparatoires of both the Geneva Conventions and ICCPR.
Simply put, treaties are to be interpreted within the four corners of their text and ‘spirit’.
It is entirely possible for an identically-worded term in different treaties to carry different meaning. The word ‘refouler’ in Article 33(1) of the Refugee Convention continues to be highly contentious (as will be explored in the next article). Whatever its true meaning, we cannot automatically assume that the same meaning should be given to the very same term in Article 3 of the CAT. This is because their drafters are different people from different eras. The general rule of interpretation is that treaties must be interpreted at its time of conclusion, not time of application (i.e. the rule of inter-temporal law or contemporaneity).
Of course, it is tempting to treat human rights conventions as ‘living instruments’ to be interpreted in light of present-day conditions and developments of international law. However, such liberal approach adopted by the European Court of Human Rights (ECtHR) over the European Convention for the Protection of Human Rights and Fundamental Freedoms has yet to catch on and reverberate in the jurisprudence of other treaty regimes (e.g. the HR Committee over the ICCPR).
In any event, even if we were to interpret the relevant provisions according to their ordinary meaning, their linguistic differences are stark, as summarised in the table below:
Hence, it would hardly be proper to derive a singular customary principle from three separate treaty regimes with distinct content (and perhaps, varying degrees of intent and ambition).
The second factor is indeterminacy.
To keep matters into perspective, the crux of contention is Malaysia’s maritime interdiction operations against the Rohingya boats. It is one thing to say that the prohibition of torture as enshrined under the ICCPR and CAT is recognized under custom. It is quite another to make a leap of logic to infer that such customary rule also prohibits such extraterritorial non-entrée operations at sea.
For instance, the ICJ in Belgium v Senegal affirmed the prohibition of torture as a customary norm that ‘has become a peremptory norm (jus cogens)’. However, the ICJ stopped short from declaring the same for the ‘obligation to prosecute the alleged perpetrators of acts of torture’.
More tellingly, the ICJ only examined the scope of such obligation strictly under the CAT, and ultimately held that such obligation did not operate retroactively to ‘acts alleged to have been committed by Senegal before the Convention entered into force for Senegal’. This is an implicit recognition that no parallel obligation exists under custom. In a separate opinion, former President Abraham was even emphatic in rejecting Belgium’s ‘information’ on the legislations of 51 states as ‘quite insufficient to establish the existence of [such] customary obligation’.
At a domestic level, the New Zealand Supreme Court in Zaoui v Attorney-General (No 2) observed that ‘while there is overwhelming support for the proposition that the prohibition on torture itself is jus cogens, there is no support in the state practice, judicial decisions or commentaries to which we were referred for the proposition that the prohibition on refoulement to torture has that status’.
There are different levels of obligations at play — on a spectrum from general to specific. The customary status at every level must be examined independently. Needless to say, the difficulty of identifying custom increases in proportion to specificity.
There is no doubt that Malaysia has a general obligation to protect life and prohibit torture under custom akin to its treaty equivalent under the ICCPR and CAT (Level 0). What is contentious, however, is whether: (a) the scope of such customary obligation extends towards the principle of non-refoulement (Level 1); (b) including pushback operations at sea (Level 2); (c) occurring outside its territorial waters (Level 3). Likewise, Article 33 of the Refugee Convention merit a level-by-level analysis. Such process of ‘going from the general to specific’ is known as ‘deduction’ — a methodology commonly employed by international courts.
We must be mindful that non-refoulement in the conventional sense prohibits States from deporting aliens within their territory (Level 1). Here, the grey areas fall outside the ambit of such convention. Of course, it is possible that such treaties have evolved to cover such grey areas as well. Regardless, that is a matter of treaty interpretation which cannot bind third States (i.e. Malaysia), and more pertinently, cannot be determinative of custom. As cautioned by Professor Hathaway, state practice should not be conflated with subsequent practice of State parties to a treaty (and vice versa).
Moreover, each treaty stands on its own. Concomitantly, we cannot simply import or imply terms from one treaty to another interchangeably. For instance, consider the exception to the prohibition of non-refoulement in Article 33(2) of the Refugee Convention. If a State party subsequently ratifies the ICCPR and CAT as well, does it mean that the Refugee Convention is ‘amended’ to the render such exception void or nugatory due to the non-refoulement principles in the latter treaties being non-derogable? The answer is no.
That is not to say that the Refugee Convention is always more restrictive in comparison. Both the ICCPR and CAT contain territorial clauses which limits State parties’ extra-territorial obligations as a general rule. In contrast, the absence of such clause in the Refugee Convention broadens its scope of protection beyond State’s legal space (espace juridique).
Ultimately, these treaty regimes do not neatly complement each other, but rather form an intricate web of crisscrossing and mismatched principles. If treaty practice on non-refoulement is too indeterminate to reconcile, how can a common thread be found to establish state practice?
D. Legal Weight of UNHCR Publications
The subtle but critical distinction between treaty practice and state practice also undercuts another body of evidence often cited by some scholars and judges to broaden the scope of protection under international refugee law — the ‘soft law’ instruments of the UNHCR.
However, most domestic courts remain cautious in their probative legal weight. Whilst judicial deference to the UNHCR’s Handbook varies greatly from issue to issue, courts do not consider such works as binding on State parties and ‘necessarily reflect the correct interpretation’ of the Refugee Convention. At most, the UNHCR’s views are ‘highly persuasive authority’ and of ‘valuable guidance’.
For decades, there have been recurring declarations and opinions by the UNHCR to the unequivocal effect that the principle of non-refoulement is ‘imbedded in customary international law’. Even so, Professor Hathaway remains skeptical:
‘Yet even the opinio juris component of the test for customary status is not clearly satisfied, as most states of Asia and the Near East have routinely refused to be formally bound to avoid refoulement… Most fundamentally, however, it is absolutely untenable to suggest that there is anything approaching near-universal respect among states for the principle of non-refoulement. To the contrary, as the recounting of state practice at the beginning of this chapter makes depressingly clear, refoulement still remains part of the reality for significant numbers of refugees, in most parts of the world.’
More poignantly, Professor Hathaway is acutely aware of the relevant provisions in the Refugee Convention, ICCPR and CAT. Still, his sentiments are in consonance with our analysis:
‘It is of course true that when a treaty-based norm stimulates a broadly embraced sense of obligation and general practice among states in general (in particular, among non-party states), a cognate customary international legal obligation emerges. But there is no basis to assert that just because most countries have accepted some kind of non-refoulement obligation, applying to at least some kinds of cases, and in at least some contexts (many not involving refugees at all), it can now be concluded that there is a universally applicable duty of non-refoulement owed to refugees by all states -- including the forty-five or so which have opted not to accede to either the Refugee Convention or Protocol.’
Moreover, as Professor Goodwin-Gill even concedes, the exact role of the UNHCR in interpreting the Refugee Convention remains uncertain. The UNHCR is not a treaty supervisory body vested with judicial functions (unlike the HR Committee for the ICCPR or Committee against Torture for the CAT). Although its Handbook is an amalgamation of decades’ wealth of cross-jurisdictional experience, there is difficulty in differentiating their observations on actual state practice reflecting the law as it is (lex lata) and their recommendations on policies exhorting what the law should be (lex ferenda).
In sum, the UNHCR’s commentary on the Refugee Convention (and more so on the ICCPR and CAT) does not cast much light beyond the treaties themselves in the identification of the customary status (if any) of the principle of non-refoulement.
E. State’s Right to Expel Aliens under Custom
It is axiomatic that the search for custom requires empirical evidence. However, perhaps what is often overlooked is finding the starting point of such a search.
For international law rarely operates in vacuum (non liquet). Almost always, there are competing customary obligations at stake. In an adversarial environment where the battle lines between competing custom is blurred, it is critical to identify which side bears the burden of proof.
Another cautionary note must be made. Custom is often misconceived — or even mischaracterized — as principles of equity or constitutional law. Whilst many notable customary rules are humanitarian in nature (e.g. prohibition of torture), there are equally as many rules that uphold State sovereignty (e.g. immunity of foreign officials accused of torture).
However, in reality, custom is content-neutral. Custom does not side with individuals nor governments. Custom simply embodies the legal will of the international community (no matter how morally or immorally appealing). Indeed, the development of custom may seem unduly positivist. However, such rigidity is reasonable considering its onerous effect — binding States to legal obligations that they never explicitly consent to.
So where is our starting point on the refoulement of Rohingyas?
Unfortunately, as much as human rights activists may loth to admit, State sovereignty holds the upper hand in status quo. The onus falls on them to prove that a ‘new’ customary rule of non-refoulement has emerged to displace the ‘old’ customary rule on State’s right of expulsion of aliens. Such starting position is reflected in treaty, soft law instruments, and state practice as evinced by judicial decisions.
First, on treaty law. Article 13 of the ICCPR explicitly permits a State to expel an alien lawfully within its territory in pursuance to a decision reached in accordance with law. Concomitantly, their freedom of movement and choice of residence under Article 12 may be subject to restrictions that are ‘provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others’. Their dual relationship was elucidated by the HR Committee in General Comment No. 15:
‘The Covenant does not recognise the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise… Once an alien is lawfully within a territory, his freedom of movement within the territory and his right to leave that territory may only be restricted in accordance with article 12, paragraph 3.’
Further, Article 32 of the Refugee Convention stipulates that State parties ‘shall not expel a refugee lawfully in their territory save on grounds of national security or public order’ and that such expulsion ‘shall be only in pursuance of a decision reached in accordance with due process of law’. It is noteworthy that such article precedes Article 33 on the prohibition of non-refoulement. Despite being couched in negative terms, Article 32 quite evidently builds upon the underlying premise that expulsion of aliens is lawful.
Second, on soft law instruments. Article 14 of the Universal Declaration of Human Rights (UDHR) states that ‘everyone has the right to seek and to enjoy in other countries asylum from persecution’. However, the UDHR is not a treaty and lacks legal force. Further, such article was not ‘taken any further’ in the ICCPR, and its omission was deliberate. In any event, such right is ‘not accompanied by any assurance that the quest would be successful’. In short, the fact that the ‘weak’ aspirational terms in Article 14 failed to even materialize in subsequent treaties barely cracks a dent in the State’s right to refuse asylum.
Third, on judicial decisions. Both the apex courts of the UK and Australia are in unanimity. In Haji Ibrahim, Gummow J opined (with Gleeson CJ, Hayne J and Callinan J concurring):
‘First, it has long been recognised that, according to customary international law, the right of asylum is a right of States, not of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State of which that individual is not a national. The proposition that every State has competence to regulate the admission of aliens at will was applied in Australian municipal law from the earliest days of this Court.’
In European Roma Rights Centre, Lord Bingham neatly traces the historical evolution on the law of asylum (with Lord Steyn, Lady Hale and Lord Carswell concurring):
Even the ECtHR — well-known for their progressive human rights jurisprudence — starts off on similar footing. In Hirsi Jamaa v Italy, the Grand Chamber opined:
‘According to the Court’s established case-law, Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens… The Court also notes that the right to political asylum is not contained in either the Convention or its Protocols.’
The trajectory of international law is therefore clear. The starting point of custom is States’ sovereign right to expel aliens within their territory or reject aliens at their frontiers. The burden falls upon asylum-seekers to show to what extent (if at all) such customary rule has been diluted over time, or that a new opposing customary rule has emerged to override or restrict such rule.
In short, the ball is in the court of asylum-seekers.
III. PRELIMINARY CONCLUSION
In sum, there are no short-cuts in the search for custom.
Indeed, the crystallization of custom must be tread carefully. If one were to allow untrammeled expansion for the protection of human rights, what stops governments from closing ranks around the notion of State sovereignty? This is not fanciful thinking. For instance, the perceived erosion of diplomatic immunity founded on sovereign equality by the ICC’s rulings in Omar Al-Bashir against Jordan, South Africa, Malawi and Congo has stirred discontent in the African Union. This could possibly trigger an exodus of African States from the ICC — Burundi has already left. To allow either side to lightly invoke ‘custom’ risks defragmenting the international community.
Likewise, the existence of any customary principle of non-refoulement must be derived from objective legal recognition, and not subjective moral aspirations.
To briefly recap our analysis so far:
The only way to determine whether such operations fall afoul of custom is to examine the actual practice and belief of States as evinced by their executive policies, legislative acts, and judicial decisions. This will be explored in Part II with extensive empirical rigour across a plethora of jurisdictions (i.e. Europe, America, and Asia-Pacific).
After all, under international law — especially where custom is concerned — action speaks louder than words.
Written by Mr Raphael Kok, an alumnus and mooting coach of University of Malaya and Caysseny Boonsiri, a third year student of University of Malaya.
Edited by Ahmad Muntazar.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 12.
 Salim Bashir. “Press Release | The COVID-19 Pandemic Should Not be Used as an Excuse to Derogate from International and National Obligations”, Malaysian Bar, 24 April 2020, Retrieved from <https://www.malaysianbar.org.my/article/about-us/president-s-corner/pressstatements/press-release-the-covid-19-pandemic-should-not-be-used-as-an-excuse-to-derogate-from-international-and-national-obligations>.
 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 1(A)(2).
 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 248 (Dawson J); Horvath v Secretary of State for the Home Department  3 WLR 379, 385‑386 (Lord Hope).
 Hathaway J C, The Rights of Refugees under International Law, (Cambridge, England: Cambridge University Press, 2005), 290-291.
 See footnote 22 291-293
 See footnote 22 293-295
 See footnote 22 296-297.
 Ryngeart, C M J and Siccama, D W H, “Ascertaining Customary International Law: An Inquiry into the Methods Used by Domestic Courts”, (2018) 65 Neth Int Law Review 5.
 Statute of the International Court of Justice (adopted 1 December 1949, entered into force 26 June 1945) 33 UNTS 993, art 38(1)(a).
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 Vienna Convention On The Law Of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 2(1)(a).
 Talmon, S, “Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion,” (2015) 26(2) EJIL 417, 441.
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 North Sea Continental Shelf (Germany v Denmark; Germany v Netherlands)  ICJ 3, .
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 Tom Koh, T T B, “A Constitution for the Oceans”, 10 December 1982, Third United Nations Conference on the Law of the Sea, Retrieved from <https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf>.
 See footnote 27 art 38(1)(b).
 See footnote 30 419.
 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America)  ICJ 14, .
 See footnote 39 .
 See footnote 34 .
 Continental Shelf (Libyan Arab Jamahiriya/Malta)  ICJ 13, .
 See footnote 39 , ; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion)  ICJ 403, 
 Jurisdictional Immunities of the State (Germany v. Italy)  ICJ 99, .
 Crawford, J R, Brownlie’s Principles of Public International Law, (Oxford, England: Oxford University Press, 2012), 22.
 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(4).
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 Corfu Channel (United Kingdom v Albania) (Merits)  ICJ 4, 22.
 See footnote 48.
 Pulp Mills on River Uruguay (Argentina v Uruguay)  ICJ 14, ; Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica),  ICJ 664, .
 See footnote 39 .
 See footnote 39 .
 See footnote 34 .
 See footnote 42 .
 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of Congo) (Preliminary Objections)  ICJ 582, .
 See footnote 55 .
 Southern Foundries (1926) Ltd v Shirlaw  2 KB 206, 227-228 (MacKinnon LJ).
 International Status of South West Africa (Advisory Opinion)  ICJ 128 (Dissenting Opinion of Judge Read), 165.
 See footnote 20.
 State parties, reservations and declarations, September 2019, UNHCR, Retrieved from <https://www.unhcr.org/en-my/5d9ed32b4>.
 ICCPR (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171.
 Status of Ratification Interactive Dashboard. OHCHR, 15 May 2020 <https://indicators.ohchr.org/>.
 A.R.J. v Australia Communication No. 692/1996 (HRC, 11 August 1997), [6.15].
 Munaf v Romania Communication No. 1539/2006 (HRC, 13 July 2009), [14.2].
 Human Rights Committee, General Comment no. 36, Article 6 (Right to life), UN Doc CCPR/C/GC/35 (3 September 2019), ; Human Rights Committee, CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (10 March 1992), .
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 July 1987) 1465 UNTS 85.
 See footnote 62.
 See footnote 19.
 See footnote 29 art 31(1).
 See footnote 29 art 31(2).
 See footnote 29 arts 32(a)-(b).
 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  ICJ 136, .
 See footnote 72 .
 Kasikilil/Sedudu Island (Botswana/Namibia)  ICJ 1045, ; Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua)  ICJ 213, .
 Goodwin-Gill, G S, The Search for the one, true meaning… in Goodwin-Gill. G S and Lambert, H (ed). The Limits of Transnational law: Refugee law, Policy Harmonization and Judicial Dialogue in the European Union (Cambridge, England: Cambridge University Press, 2010), 207.
 Tyrer v United Kingdom App no. 5856/72 (ECtHR, 25 April 1978) ; K.U. v Finland App no. 2872/02 (ECtHR, 2 December 2008) .
 European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953).
 See footnote 61 art 7.
 See footnote 66 art 2.
 Prosecutor v Furundžija Case No IT-95-17/1-T (ICTY, 10 December 1998) , , -.
 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal)  ICJ 422, .
 See footnote 81 .
 See footnote 81 -.
 See footnote 81 - (Separate Opinion of Judge Abraham).
 Zaoui v Attorney-General (No 2)  NZSC 38,  (Keith J).
 See footnote 30 420.
 See footnote 22 69-71.
 See footnote 22 164.
 Chahal v the United Kingdom Application no. 22414/93 (ECtHR, 15 November 1996) .
 See footnote 85 
 See footnote 61 art 2(1).
 See footnote 66 art 2(1).
 Al-Skeini v the United Kingdom Application no. 55721/07 (ECtHR, 7 July 2011) .
 See footnote 22 169.
 Lauterpacht, E and Bethlehem, D, The scope and content of the principle of non-refoulement: Opinion in Erika Feller, E, Türk, V and Nicholson, F (ed), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge, England: Cambridge University Press, 2003), 116 , 125 -.
 Hirsi Jamaa v Italy Application no. 27765/09 (ECtHR, 23 February 2012), 65 (Concurring Opinion of Judge Pinto de Albuquerque).
 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. (January 1992).
 KK (Article 1F(c), Turkey)  UKIAT 00101, .
 Adan (Lul Omar) v Secretary of State for the Home Department  2 AC 477, 519 (Lord Steyn).
 Januzi v Secretary of State for the Home Department  UKHL 5,  (Lord Bingham)
 UNHCR, Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/MMSP/2001/09 (13 December 2001), .
 UNHCR, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligation under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. (26 January 2007), -.
 See footnote 22 364.
 See footnote 22 365.
 See footnote 75 218.
 See footnote 75 219.
 See footnote 61 arts 40-42.
 See footnote 66 art 19-22.
 See footnote 75 219.
 See footnote 102 at -.
 See footnote 30 at 420-421.
 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)  ICJ 226,  (Dissenting Opinion of Judge Higgins); Corfu Channel (United Kingdom v Albania) (Merits)  ICJ 4, 83 (Dissenting Opinion of Judge Azevedo).
 See footnote 30 427.
 See footnote 81 .
 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)  ICJ 3, .
 See footnote 30 430.
 See footnote 30 430.
 See footnote 30 430.
 See footnote 61 art 13.
 See footnote 61 art 12(3).
 Human Rights Committee, CCPR General Comment No. 15: The Position of Aliens Under the Covenant (11 April 1986), , .
 See footnote 20 art 32(1).
 See footnote 20 art 32(2).
 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217(III)A, art 14.
 Fitzpatrick, J, “Revitalizing the 1951 Refugee Convention”, (1996) 9 Harvard Human Rights Journal 229, 246.
 Minister for Immigration and Multicultural Affairs v Haji Ibrahim  HCA 55,  (Gummow J).
 See footnote 126  (Gleeson CJ).
 See footnote 126  (Hayne J).
 See footnote 126  (Callinan J).
 See footnote 126  (Gummow J).
 Regina v Immigration Officer at Prague Airport ex parte European Roma Rights Centre  UKHL 55,  (Lord Steyn).
 See footnote 131  (Lady Hale).
 See footnote 131  (Lord Carswell).
 See footnote 131  (Lord Bingham).
 See footnote 131  (Lord Bingham).
 See footnote 131  (Lord Bingham).
 See footnote 131  (Lord Bingham).
 See footnote 131  (Lord Bingham).
 See footnote 96 .
 See footnote 46 art 2(1).
 Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 April 1964) 500 UNTS 95, Preamble .
 Prosecutor v Omar Hassan Ahmad Al-Bashir (Judgement in the Jordan Referral re Al-Bashir Appeal)  ICC-02/05-01/09-397-Corr (ICC, 6 May 2019).
 Prosecutor v Omar Hassan Ahmad Al-Bashir (Decision under article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir)  ICC-02/05-01/09-302 (ICC, 6 July 2017).
 Prosecutor v Omar Hassan Ahmad Al Bashir (Corrigendum to the Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir)  ICC-02/05-01/09-139-Corr (ICC, 13 December 2011).
 Prosecutor v Omar Hassan Ahmad Al-Bashir (Decision on Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir's Arrest and Surrender to the Court)  ICC-02/05-01/09-195 (ICC, 9 April 2014).
 “African Union backs mass withdrawal from ICC”, BBC, 1 February 2017, Retrieved from <https://www.bbc.com/news/world-africa-38826073>.
 “Burundi leaves International Criminal Court amid row”, BBC, 27 October 2017, Retrieved from <https://www.bbc.com/news/world-africa-41775951>.