Read On! National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within UNHCR Guidelines on International Protection

Emory International Law Review recently published my article which seeks  to evaluate UNHCR Guidelines on International Protection in order to examine whether there are discrepancies in the citation of national case law. Part I pursues quantitative analysis of UNHCR’s references to national case law in its guidelines. It is suggested that there are two main problems: first, the absence of reference to national case law in some guidelines and second, the dominance of common law/English-language national decisions in other guidelines which renders UNHCR output subject to legitimacy challenges as it seeks to provide objective guidance on interpretation of the 1951 Convention on the Status of Refugees. It also quantifies and discusses the nature of reference to case law from international human rights and criminal tribunals within UNHCR guidelines. Part II presents an alternative view on the importance of transnational judicial dialogues within Refugee Law, using as a case example the treatment of conscientious objectors seeking asylum in different national jurisdictions as juxtaposed to the UNHCR guidelines on military service. Part III assesses whether the Background Papers demonstrate parallel citation lacunae or biases. Part IV offers a conclusion calling for reform of UNHCR’s Department of International Protection in order to improve the compilation and reference to national case law by UNHCR in its soft law guidelines and policy documents, as well as improving the transparency of UNHCR’s Refugee Status Determination system so as to improve the legitimacy of the evolution of international refugee law.

The article may accessed here

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