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

Abstract

The evolution of international refugee law is marked by the fact that it lacks an international refugee court to provide authoritative statements on the interpretation of the 1951 Convention on the Status of Refugees. Instead, it relies on soft law guidelines produced by the United Nations High Commissioner for Refugees (UNHCR), case law emitted at the national level by refugee tribunals, administrative agencies and other courts; as well as decisions from international courts from other regimes, such as human rights or international criminal law. This paper will seek to discuss discrepancies in citation of national case law in the evolution of refugee law within the UNHCR Guidelines on International Protection. Part 2 will assess the UNHCR's limited references to national case law in its Guidelines. It is suggested that there is a dominance of common law/English-language national decisions which renders the 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 will also discuss the nature of reference to case law from international human rights and criminal tribunals within the UNHCR Guidelines. Part 3 will present an alternative view on the importance of transnational judicial dialogues within refugee law. Part 4 will assess whether the Background Papers demonstrate parallel citation biases. Part 5 will offer a conclusion calling for greater pluralism in the reference to national case law by the UNHCR in its soft law guidelines and policy documents in order to improve the legitimacy of international refugee law.