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The Limits of Transnational Law

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

Author: Guy S. Goodwin-Gill; Hélène Lambert
Publisher: Cambridge University Press
ISBN: 9781107412729
Published In: February 2013
Format: Paperback , 280 pages
Jurisdiction: European Union ? Disclaimer:
Countri(es) stated herein are used as reference only

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State authority and power have become diffused in an increasingly globalized world characterized 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 2010 book explores the prospects for such an order in the context of refugee law in Europe, focusing 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.

• Analyses the prospects for the development of a Common European Asylum System, a key policy area in European asylum law

• Exploration of the prospects for a transnational legal order in the context of refugee law in Europe will appeal to readers interested in critical analysis of the evolution of these legal orders

• Case-study analysis of transnational judicial dialogue in nine European states helps readers understand the obstacles associated with the emergence of a judicial dialogue between common law and civil law countries

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

Guy S. Goodwin-Gill
All Souls College, Oxford

Hélène Lambert
University of Westminster

'… marvelous … thought provoking … this book was a pleasure to read. It is lively, entertaining and highly engaging. All the chapters are well written, not always the case when many of the authors do not have English as a mother tongue. For my part, my reflections on the question of cross-border judicial conversations have been much enriched by this book.' European Human Rights Law Review