Ii. Anerkendelsesprocedure

Abstract

AbstractThe distinction between the international refugee status and the national legal position as a refugee is important. The decision is based on different legal sources and taken by different competent bodies. Furthermore, different procedures should apply to the two different questions. In practice, however, the recognition procedure is often one and the same. The relation between the refugee and the country of asylum is the most important relation and this is where most problems come up. It is a serious problem, if states refuse to grant the international refugee status in order to regulate for instance the labour market. Furthermore, there is a legal dichotomy which may create difficulties in the fact that international law such as for instance the Refugee Convention of 1951 often regulates the international refugee status, as well as the legal position as a refugee in national law. In practice, the international rules apply only if a person has been recognized as belonging to the category of people defined as refugees. This is not logic, because the recognition as a refugee is declaratory not constructive. This is important, not just from a legal point of view, but also because of diplomatic and political considerations concerning the relationship between the country of asylum and the refugee's own country. The material question of defining who is a refugee is established in international treaties which also define the competence for recognizing refugee status. This competence lies with the potential country of Asylum. At the same time, however, the competence of recognizing a refugee under the statute of the UNHCR lies with the High Commissioner. This inconsistency, however, has not in practical terms led to too many unfortunate results. It is quite normal that it is left to the states to interprete international law embodied in the principle of autointerpretaion. Autointerpretation, however, does not include a right to autodecision. The interpretation which states attach to international law has to be acceptable for the international community and the spokesmen of the international community in this respect is Unied Nations High Commissioner for Refugees. While the material problems and the problems of competence are regulated in international treaties, these treaties are, however, silent about the procedure for recognition. Very few states have a formalized procedure for the recognition of refugee status. One argument, which has been put forward, is that national authorities are reluctant to recognize the international refugee status of a person, because this recognition will have effects in other countries particularly concerning entry and status in these other countries. The author suggests that even if it is desirable for the individual refugee that his status as a refugee is recognized once and for all by all contracting parties to the Refugee Convention, it appears obvious that the conventions leave it to each state to decide on the refugee status in relation to the individual refugee as well as in relation to other states. This legal situation has drawbacks, but it means on the other hand that states cannot deny refugee status with reference to the practice of other states. The author furthermore suggests that international harmonization of the recognition procedures is desirable probably only from a political point of view, namely that states in the same region solve the problems in common so that no single state escapes its international responsibility by a particularly restrictive practice. A harmonization does not appear to be necessary out of considerations for the individual refugee, and it would probably be impossible. Certain elements should, however, be included in every recognition procedure. As far as the evaluation of facts is concerned it is quite difficult to establish judicial or administrative bodies to deal effectively with this side of the problem. The author refers to the Danish solution according to which cases are referred to the Danish Refugee Council which is a private organization for the elucidation of facts involved in the case. The Council is in a position much more freely than the official administration to use its private international connection to receive information which is beyond the judicial official administrative system. As far as the legal aspects are concerned it is necessary that there is a close contact with the international community in order to make sure that the decision of the state is acceptable to the international community. The author points out that the decision of a person's international status as a refugee is a decision for life. It is therefore necessary that at least as many legal safeguards are included in this decision as in ordinary judical proceedings. Decisions should be made by legal authorities independent of the political structure. The legal guarantees should ensure that the decision is made by persons who are independent of the political power structure, that legal counsel is offered the applicant, that there is a possibility of appeal and that the decisions and proceedings to the widest possible extent are public. If there is not complete harmony between national and international law, it will be up to the national courts to point out that there is a breach of an international obligation. According to normal practice in the Nordic countries, the court will probably go far in constructing the national rules in conformity with the international obligations. Three points in conclusion and for debate: — A person's international refugee status is something that primarily comes out of international rules and the only purpose of the recognition procedure is to establish this in relation to the country of asylum. The decision is legal and should be taken in legal forms. A person's international refugee status and the legal position which a country normally gives refugees should not be confused.