The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union

by Edited by Guy S. Goodwin-Gill , Hélène Lambert

• ISBN13: 9780521198202
• ISBN10: 0521198208
• Edition: 1st
• Format: Hardcover
• Copyright: 2010-04-30
• Publisher: Cambridge University Press

Summary

State authority and power have become diffused in an increasingly globalised world characterised by the freer trans-border movement of people, objects and ideas. As a result, some international law scholars believe that a new world order is emerging based on a complex web of transnational networks. Such a transnational legal order requires sufficient dialogue between national courts. This book explores the prospects for such an order in the context of refugee law in Europe, focussing on the use of foreign law in refugee cases. Judicial practice is critically analysed in nine EU member states, with case studies revealing a mix of rational and cultural factors that lead judges to rarely use each others' decisions within the EU. Conclusions are drawn for the prospects of a Common European Asylum System and for international refugee law.

Author Biography

Guy S. Goodwin-Gill is Professor of International Refugee Law at the University of Oxford, Senior Research Fellow at All Souls College, and a Barrister at Blackstone Chambers, London.
Helene Lambert is Reader in Law at the University of Westminster. She has written extensively on asylum, refugees and human rights, and acted as a consultant for the Council of Europe, and the Governments of Moldova, Ukraine and Serbia-Montenegro.

Table of Contents

Notes on contributors and editors	p. xi
Acknowledgements	p. xv
Abbreviations	p. xvi
Transnational law, judges and refugees in the European Union	p. 1
Transnational law, policy harmonization and refugees in the European Union	p. 3
Exploring transnational refugee law	p. 9
Where is the reference? On the limited role of transnational dialogue in Belgian refugee law	p. 17
Introduction	p. 17
The refugee status determination process in Belgium	p. 17
Migration and asylum law	p. 17
Admissibility of the claim	p. 18
From 1988 to 1 June 2007	p. 18
Since 1 June 2007	p. 20
Determination of the merits of the claim	p. 20
From 1988 to 1 June 2007	p. 20
Since 1 June 2007	p. 21
The legal framework within which the asylum authorities operate	p. 22
Survey of the case law in Belgium	p. 25
Detailed analysis	p. 25
The interpretation of the Refugee Convention	p. 25
Similar facts	p. 27
Civil law	p. 29
Judgments of the European Court of Human Rights	p. 29
On the absence of a transnational dialogue	p. 30
A rational account on the absence of a transnational dialogue	p. 30
Linguistic constraints	p. 30
Time constraints	p. 31
Access to foreign case law	p. 31
A cultural account on the absence of a transnational dialogue	p. 31
The style of judgments and the legal culture	p. 31
The conceptual legal framework within which the judge operates	p. 32
The domestic dynamic surrounding refugee law cases	p. 33
Transnational refugee law in the French courts: deliberate or compelled change in judicial attitudes?	p. 35
Introduction	p. 35
The asylum decision-making process in France	p. 37
The use of foreign law by French courts: empirical focus on refugees and asylum jurisprudence	p. 41
Methodology	p. 42
Council of State	p. 43
Refugee Appeals Board/National Asylum Court	p. 43
Reasons for the lack of transnational traffic of jurisprudence between France and its EU partners	p. 48
Rational account	p. 48
Language	p. 49
Time constraints and access	p. 49
Training	p. 50
Cultural account	p. 51
Style of judgments	p. 52
The conceptual legal framework within which the judge operates	p. 52
The domestic dynamic surrounding cases	p. 53
Conclusion	p. 55
The use of foreign asylum jurisprudence in the German administrative courts	p. 57
Introduction	p. 57
The role of jurisprudence and academic writing in German refugee law cases	p. 62
The role of jurisprudence and academic writing in the interpretation of the law	p. 62
The use of foreign law in the process of fact-finding	p. 66
The use of foreign jurisprudence by German courts - empirical study	p. 67
References and discussion of foreign case law in published court decisions	p. 67
Survey among German administrative court judges	p. 73
Reasons for the lack of reference to foreign jurisprudence	p. 78
Access and language	p. 78
The 'Two-Worlds Doctrine'	p. 80
The solipsistic legal monologue of Italian authorities	p. 85
A brief introduction to the Italian legal mind	p. 85
International protection in Italy: the institutional framework	p. 89
Old principles of recent implementation	p. 89
The comparatively small number of asylum applications until 2007 and the recent increase	p. 91
The two Italian asylum procedures	p. 92
Constitutional asylum: lack of implementing procedures	p. 93
Refugee status determination and subsidiary protection	p. 94
The use of foreign law by authorities deciding on international protection	p. 99
Deciding authorities	p. 99
Administrative authorities: Central, Local and Integrated Commissions	p. 99
Judicial authorities: administrative and civil courts	p. 102
The opinion of selected key practitioners	p. 104
Conclusion	p. 105
'Thou shalt not judge' ... Spanish judicial decision-making in asylum and the role of judges in interpreting the law	p. 107
Introduction	p. 107
Asylum as a subjective right of individuals in the Spanish legal order	p. 110
The Spanish asylum procedure	p. 114
Admissibility procedure	p. 114
Applications at the border	p. 115
In-country applications	p. 116
Examination on the merits	p. 116
The Spanish legal order: the role of judges in interpreting international treaties and the value of jurisprudence and precedent	p. 117
Analysis of case law and main findings	p. 119
Conclusion	p. 123
The British judiciary and the search for reciprocal relations with its continental partners	p. 125
Introduction	p. 125
Conception of asylum and the decision-making process in the United Kingdom	p. 127
Initial decision	p. 128
Appeals	p. 129
The use of foreign law in the British courts: empirical focus	p. 131
House of Lords	p. 132
English Court of Appeal and Scottish Court of Session	p. 134
High Court	p. 137
Administrative Court	p. 138
Asylum and Immigration Tribunal	p. 138
Reasons for the lack of traffic in jurisprudence between the UK and its EU partners	p. 140
Rational account	p. 141
Language	p. 141
Time constraints and access	p. 141
Training	p. 142
Cultural account	p. 143
Style of judgments	p. 143
The conceptual framework within which the judge operates	p. 144
The domestic dynamic surrounding refugee law cases	p. 145
Conclusion	p. 148
Speaking across borders: the limits and potential transnational dialogue on refugee law in Ireland	p. 150
Introduction	p. 150
Asylum determination in Ireland: the process	p. 153
Status of foreign case law	p. 159
Selected decisions of the Refugee Appeals Tribunal	p. 166
Conclusion	p. 168
The absence of foreign law in Danish asylum decisions - quasi-judicial monologue with domestic policy focus?	p. 170
Introduction	p. 170
Procedure and organization of the decision-making process	p. 171
General features of judicial control of the executive	p. 171
Admissibility issues and first instance examination of asylum applications	p. 172
Appeals procedure	p. 173
Special review procedure in manifestly unfounded cases	p. 175
The use and absence of foreign law	p. 176
Method and premise of the study	p. 176
Case law reports from the Refugee Appeals Board	p. 177
Survey of practising lawyers	p. 178
Explanatory context - and potential challenges to the absence of transnational law	p. 179
Denmark's reservation towards EC harmonization	p. 179
Finality clause: no ordinary judicial review	p. 181
Dualistic tradition and judicial pragmatism	p. 182
The 'domestication' dilemma - and the emerging challenges	p. 184
Foreign law in Swedish judicial decision-making: playing a limited role in refugee law cases	p. 186
Introduction	p. 186
Sweden and public international law	p. 187
The judicial system	p. 188
General comments	p. 188
The Swedish asylum procedure	p. 189
A survey of national case law on asylum	p. 191
Methodology	p. 191
Government	p. 192
Aliens Appeal Board	p. 193
Migration Courts	p. 194
Migration Court of Appeal	p. 194
'Invisible traffic'	p. 195
General comments on the survey	p. 196
Possible reasons for the lack of reference to foreign jurisprudence in Swedish refugee law judgments	p. 197
Rational account	p. 198
Cultural account	p. 199
Conclusion	p. 202
The search for the one, true meaning ...	p. 204
Introduction	p. 204
Basic principles of interpretation	p. 206
'Subsequent practice' and the UNHCR Handbook	p. 209
The theory and practice of treaty interpretation	p. 213
'Subsequent practice' and 'foreign citation'	p. 217
The role of UNHCR	p. 218
Approaches to interpretation in the case law of the United Kingdom	p. 220
The search for 'autonomous meaning'	p. 222
The place of the UNHCR Handbook in the pursuit of autonomous meaning	p. 224
Express words and the limits to interpretation	p. 227
Interpretation in the face of ambiguity or obscurity	p. 229
The 'living instrument' approach	p. 231
Conclusion	p. 237
Bibliography	p. 242
Index	p. 255
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