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North, Anthony M; Chia, Joyce --- "Towards Convergence in the Interpretation of the Refugee Convention: a Proposal for the Establishment of an International Judicial Commission for Refugees" [2006] AUYrBkIntLaw 5; (2006) 25 Australian Year Book of International Law 105

Towards Convergence in the Interpretation of the Refugee Convention: a Proposal for the Establishment of an International Judicial Commission for Refugees

Anthony M North[∗] and Joyce Chia[∗∗]

I. Introduction

There are, as most of us know, many problems with the Refugee Convention.[1] This paper will not discuss all of them. Nor, indeed, will it solve any of them. Rather, its purpose is to suggest one way of addressing a critical problem. The problem is that, while the Convention is a universal humanitarian treaty, designed to offer universal protection, the interpretation of the treaty differs from country to country, and even within countries. The result is that a refugee in Canada may not be a refugee in the United States, and vice versa. Seeking asylum, in the words of the European Council on Refugees and Exiles (ECRE), becomes a ‘dangerous lottery’.[2]

In this paper, we propose a practical way of addressing this issue. We acknowledge that our proposal will not solve the problem of conflicting interpretations. In the present climate, the obvious solution, an international court with the power to bind states parties, is not a practical one. Rather, we hope to create an international forum in which different interpretations can be discussed, and from which may be built an international consensus on the interpretation of the Convention.

The proposal is simple. We suggest that the United Nations High Commissioner for Refugees (UNHCR) establish an independent international judicial commission, comprised of a small number of eminent jurists and experts in refugee law. The function of the commission would be to provide carefully reasoned opinions on major questions relating to construction of the Convention. These opinions would be neither binding nor enforceable. Rather, their authority would be derived from their institutional mandate and their intellectual and practical quality.

In essence, this proposal continues and expands the second track of the Global Consultations process recently convened by UNHCR,[3] in which experts discussed difficult issues regarding the interpretation of the Convention and from which, subsequently, UNHCR produced legal guidance in the form of Guidelines on International Protection.[4]

Such a commission would provide useful international ‘soft law’, alongside the UNHCR Handbook, UNHCR Executive Committee conclusions and the Guidelines on International Protection. It would, however, have significant advantages over these other sources of soft law. As a permanent body, it will be able to address ongoing issues of interpretation in a detailed way, based on an extensive knowledge of the principles and practice of refugee law. Our hope is that these opinions will begin to shape the direction of domestic interpretations, and thus move us toward the convergence of interpretations of the Convention.

The aims of this paper are to make a case for further convergence in interpretation of the Convention and to attempt to formulate a method to promote such convergence. We hope to provoke and stimulate both debate and action. As such, the paper focuses on the practical aspects of the proposal, instead of attempting a scholarly disquisition on the niceties of treaty interpretation or international judiciaries. It is also, we emphasise, a proposal; namely, it is open to improvements, criticisms and changes.

The paper begins with an exploration of why, in our view, further convergence in the interpretation of the Convention is desirable, although it is not the purpose of this paper to discuss this at length. We then examine the prospects for further convergence through existing efforts and mechanisms, concluding that the prospects are inherently limited. In the third section of this paper, we explain the principles underlying our proposal, with reference to the experience of existing international judicial bodies. Finally, we set out the details of the proposal.

II. The Need for Convergence in Interpretation

In this section of the paper, we establish why, in our view, there is an unacceptable degree of diversity in the interpretation of the Convention.

(a) Like cases treated alike

It is an elementary principle of fairness that like cases ought to be treated alike in the application of laws. It is elementary common sense that a refugee, recognised as such pursuant to the definition in the Convention, should also be recognised as a refugee in another country using the same definition. As will be discussed later, this is far from the position today. As a consequence, the application of the Convention is unfair. It is unfair to refugees, who may be treated differently depending on which country they happen to end up in. It is also unfair to states who adopt more generous interpretations. This unfairness is most obvious in the case of refugee recognition, but it also extends to interpretation of other aspects of the Convention. For example, the loss of refugee status or the exclusion of refugees under the Convention also should not depend upon quirks of national interpretation. It goes without saying that unfairness in these matters has very real ramifications for refugees and for states.

Of course, the principle that like cases be treated alike does not compel uniformity of interpretation. Interpretation, we recognise, is a dynamic process, in which diversity of opinion is a necessary and healthy element. It is important, however, that in interpreting an international convention designed to offer universal protection we do not lose sight of this fundamental, and easily overlooked, principle of justice.

In the case of international refugee law, the present degree of diversity undermines this principle of justice. While diversity exists in domestic legal systems, the balance is held in check by forces such as the notion of precedent in common law systems. The pressures in favour of convergence are much looser in international law, where treaty interpretation is left up to the states parties and any adjudicatory mechanism they decide to adopt, subject to the accepted principles of treaty interpretation. As the Human Rights Committee has noted in relation to reservations, these principles do not operate adequately in relation to human rights treaties, because their state interests are rarely at stake.[5] Indeed, the Human Rights Committee has felt it necessary to perform the role of treaty interpretation in relation to reservations itself, vividly illustrating the need for greater consistency in treaty interpretation.

The purpose of the proposed commission is to correct the balance between uniformity and diversity in interpretation in respect of the Convention. It will encourage convergence of interpretation by exposing differences in interpretation of the Convention, and expounding and explaining the preferable construction.

We recognise that convergence of interpretation in itself will not remedy other aspects of unfairness, such as different procedures of refugee determination, which also have important effects on the fairness of the regime. However, while the convergence of interpretation will not solve all the world’s ills, it will be a concrete and achievable step towards improving the fairness of the current refugee regime.

(b) The special position of refugee law

It may be argued that the rules of treaty interpretation, which confer the right of interpretation upon states parties, do not place much emphasis on the principle that like cases be treated alike. However, there are at least four good reasons why international refugee law requires a different approach.

First, while the obligations under the Convention are owed by the states to each other, they are owed in relation to refugees, who are the substantive beneficiaries of the Convention.[6] While there may be some position of equality in the case of contracting parties, which all have the right to interpret a treaty, clearly this is not true in the case of refugees.

Second, the Convention is designed to be a universal humanitarian instrument, offering a regime of international protection to the most vulnerable. In this respect, the aims and context of the treaty are fundamentally undermined if there are substantial differences between the views taken by states parties of their obligations. Obviously, the rights of the refugee are impaired. Further, other states parties may be forced to shoulder a heavier burden. A stark illustration of this may be seen in the case of Adan v Secretary of State for the Home Department ,[7] in which three asylum-seekers who claimed persecution by non-state actors transited through Germany and France before arriving in the United Kingdom. At that time, unlike the United Kingdom, Germany and France did not recognise persecution by non-state actors as a Convention basis for refugee status. It was held that the United Kingdom Secretary of State was unable to authorise the asylum-seekers’ return to either Germany or France as ‘safe third countries’, resulting in the United Kingdom having greater obligations than other states parties.

The same case also illustrates the third point, namely that international refugee law includes a framework in which refugees are ‘shared around’ through the mechanisms of settlement and regional agreements. This international framework of refugee burden-sharing is impeded by the fact that a refugee in one country may not be considered a refugee in another country. Divergences in interpretation do not always favour the interests of states. The recent European Union Directive on the qualification of refugee status (see below) indicates that states may, in the context of regional burden-sharing and forum-shopping agreements, have a greater interest in harmonisation than in divergence.

Finally, while in some cases diversity in interpretation has roots in the recognition of legitimate differences, this is not true of interpretation of the Convention. Federalism and the doctrine of the ‘margin of appreciation’ in the European Union, for example, permit variations between states and member states on the basis of different values and systems that ought to be given due recognition. Such values may well justify differences in the procedures for refugee determination, but they do not sustain the more general differences in interpretation of the Convention, which rarely, if ever, arise out of such due deference.

(c) The present state of divergence in the interpretation of the Convention

The next logical step is to demonstrate that the present balance between consistency and diversity in interpretation is inappropriate. To many, this may be self-evident. As has been said, ‘the interpretation of the criteria for granting refugee status and asylum displays almost as many variations as there are countries’.[8]

This section of the paper sketches some of the areas of debate to demonstrate that the difficulties are substantial, and their impact substantial.

One indication of the extent of the difficulties is the existence of debate about the broad interpretative approach taken to the Convention. Judges of the High Court of Australia, for example, have disagreed as to whether the interpretation of the Convention should be confined by its original historical meaning, or whether an evolutionary approach should be taken.[9]

The most notable controversies, however, concern the definition of refugee enshrined in article 1A(2) of the Convention, which states that a ‘refugee’ is a person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Perhaps the most controversial element of this definition is the category of ‘membership of a particular social group’, which is the subject of one set of UNHCR Guidelines.[10] Does the particular group have to exist outside of a social perception of a group?[11] Most common law jurisdictions require it to, except Australia,[12] and the United States itself has applied two different tests in different Circuits.[13] In contrast, European civil law jurisdictions such as France, Germany and the Netherlands have avoided analysis of this ground.[14] The difference between approaches may result in differential recognition among, for example, women opposed to a prevalent practice of genital mutilation.[15]

Even where the case law is consistent, it is ‘lost in a mosaic when these definitions are applied to certain categories of persons’,[16] perhaps best illustrated by the controversy over China’s one-child policy.[17] In Australia, these asylum-seekers are not ‘members of a particular social group’,[18] although children born in contravention of that policy are members.[19] In the United States, the courts have rejected such claims made either on the ground of ‘political opinion’ or on the ground of ‘membership of a particular social group’, but Congress has overturned that interpretation.[20] In Canada, the courts are divided on the issue.[21] Such claims have been accepted in the Netherlands,[22] but not in France.[23]

Changes in methods of persecution have resulted in divergent views on the Convention’s application to cases of civil war[24] and to non-state agents of persecution,[25] while changes in perception such as the more recent concern with gender-sensitive interpretations of the Convention have also resulted in differences among countries,[26] even where gender guidelines have been issued.[27]

Recently, attention has shifted to the exclusion[28] and cessation[29] clauses (arts 1F and 1C) of the Convention. Article 1F excludes the application of the Convention in respect of those who have committed prohibited acts in certain categories, all three of those categories having no accepted definition.[30] All three are also subject to different procedures in terms of determining refugee status prior to applying the clause;[31] balancing the seriousness of the alleged crime against that of the feared persecution;[32] the level of evidence that constitutes ‘serious reasons for considering’;[33] and whether decision-makers can infer ‘serious reasons’ merely from the asylum-seeker’s membership of a particular organisation.[34]

Attention has also moved outside the text of the Convention on to practices in relation to the ‘safe third country’ concept,[35] the doctrine of ‘effective protection’,[36] and the ‘internal flight or protection’ alternative.[37] As already noted, the ‘safe third country’ concept depends on a similarity of interpretation between countries. Under the recent ‘safe third country’ agreement between the United States and Canada,[38] for example, different treatment of gender-related claims could result in Canada breaching its obligations under the Convention, as defined by Canadian law.

While diversity in interpretation is mainly a result of legitimate differences in judicial interpretation, there is a trend for governments to provide legislative definitions of key terms of the Convention. Foreign policy and domestic xenophobia often inform these definitions. Such legislative definitions obviously limit the extent to which convergence is possible, although a commission could examine whether such definitions are in breach of international law. Nevertheless, the majority of these conflicting interpretations are within the province of refugee decision-makers and judges, and it is to this interpretative community that the international judicial commission will be addressed.

It is, of course, impossible to gauge the numbers who are likely to be affected by these divergences, although it is fair to infer from the range and depth of these differences that the numbers are not insignificant. Wide variations in acceptance rates by different countries seem to support this inference,[39] although of course – as with all statistics – the numbers can be deceptive.[40] In the year 2004, for example, Jordan recognised 90 per cent of Iraqis as refugees; Belgium recognised 66.3 per cent as refugees; and the United Kingdom recognised 0.1 per cent of Iraqis as refugees.[41] Indeed, the ECRE declares that, even after five years of harmonisation, ‘a person can have a 90% chance of being accepted as a refugee in one EU country, while her chances are virtually nil next door’.[42]

(d) Redressing the balance

The preceding review suggests that there are significant differences in the interpretation of the Convention. These differences are, in the main, unjustified, particularly as the Convention is designed as a universal instrument of humanitarian protection. That the degree of divergence appears to lead to dramatically different results of acceptance in neighbouring countries, offends the normative goals of equality before the law, certainty and stability. It does so with, one can only imagine, tragic consequences. In the arena of refugee law, we need to tilt the balance between consistency and divergence in favour of greater consistency.

III. Prospects for further Convergence

If further convergence is desirable, the next question is whether we can achieve such convergence through existing initiatives and mechanisms. In this section, we review these and conclude that, while they are of some significance, their potential is limited.

(a) United Nations High Commissioner for Refugees

UNHCR has, of course, already made significant efforts in the area of interpretation. It publishes the leading soft law instrument, commonly known as the Handbook.[43] It has issued the previously mentioned Guidelines on International Protection, as well as a variety of position papers.[44] Occasionally, UNHCR intervenes in and presents amicus curiae briefs in significant cases.[45] Lastly, the Executive Committee sometimes gives interpretative guidance in its Conclusions.[46]

This work demonstrates the value of international ‘soft law’. These sources of guidance have substantially impacted upon the interpretation of the Convention, due to their institutional authority, their global nature, and their wide dissemination. The Handbook is routinely referred to by decision-makers. It is considered by the Council of the European Union ‘a valuable aid’.[47] The House of Lords views it as ‘high persuasive authority’,[48] while the Canadian Supreme Court views it as ‘highly relevant authority’;[49] and it provides ‘significant guidance’ to the United States Supreme Court.[50]

Such enthusiasm has not always been universal, as comments by Lord Bridge of Harwich[51] and a former Australian Chief Justice evidence.[52] Indeed, one Australian judge recently suggested that ‘a certain conservatism should attend’ usage of the Handbook, because of a ‘general lack of enthusiasm for using the Handbook’ among judges (a comment that was, however, disapproved of on appeal).[53] It remains true, at least in Australian courts, that where there is a conflict of opinion, greater weight is generally accorded to decisions of other common law courts and learned commentators.[54]

It is perhaps too early to say whether the recent Guidelines on International Protection carry more authority,[55] although in a recent Australian case they were considered to be ‘statements that should be taken into account’ by decision-makers, as they were ‘documents prepared by experts published to assist States … to carry out their obligations under the Convention’.[56] The Conclusions of the Executive Committee are in a slightly different position. In the United Kingdom they are regularly invoked,[57] but in Australia they are rarely used.[58]

Although there is potential to improve the acceptance of UNHCR instruments by decision-makers, there are inherent limitations on this potential. These instruments are published as and when time and resources permit. The Handbook has not been updated for more than ten years. This limits its usefulness as circumstances throw up new challenges for interpretation and jurisprudence evolves.[59] Even if it was to be updated more regularly, the Handbook can never be comprehensive and, to retain its utility, it must remain concise and therefore, to some degree, abstract. The Conclusions of the Executive Committee are adopted only sporadically, and although the Executive Committee’s intergovernmental character may lend it greater legitimacy, it also inhibits a consensus on politically controversial questions.[60] These instruments, therefore, cannot provide the kind of ongoing, context-specific jurisprudential reasoning that would be of particular use to the interpreters of the Convention.

(b) European Union common asylum policy

In the European Union, the much wider project of converging asylum and immigration policies[61] has included a Directive on minimum standards for the qualification of refugee status (the Qualification Directive),[62] which deals with some significant areas of divergence in interpretation. As this will have direct effect on the domestic law of the member states,[63] it is a much more effective method of harmonisation. Given the size of the European Union, the Directive is bound to have a significant impact on the deliberations of the proposed commission.

Nevertheless, although the Directive will reduce divergence in interpretation, it suffers from the same inherent limitations as the UNHCR publications: it cannot hope to anticipate that all future scenarios provide future guidance, it is not comprehensive, and speaks in general terms only.

Three other significant limitations arise. First, such a method cannot be exported outside of the European Union. Second, there is the potential for regional interpretations to undermine a universal regime. Third, and perhaps most importantly, the method of achieving such convergence is by political negotiation and compromise, rather than by the proper construction of the Convention, using the accepted tools of legal reasoning. Unfortunately, this can lead to a lowering of protection, a charge made by many observers. For example, a leading commentator ended a review of the harmonisation process on this bitter note:

[W]hen one comes to examine the developing EU acquis in the field one has the impression that the Member States are seeking to draw up a whole new acquis unencumbered by their international commitments. Indeed, the Member States have insisted on the inclusion in EU measures of provisions which either have already been criticised by the supra-national courts … or by national courts … They thereby give the impression that they wish to re-write the rules to get rid of inconvenient human rights issues. Some Member States appear to be seeking the right to crush protection seekers like soft drink cans which are no longer wanted.[64]

(c) Other efforts

Two other types of initiatives are worth mentioning. The first are other regional approaches, such as the work of the Council of Europe’s Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR).[65] CAHAR has issued several recommendations and resolutions directly relevant to the interpretation of the Convention.[66] Much less intensive, and not particularly useful, regional approaches exist in Africa, Latin America[67] and South Asia.[68] These suffer from the same limitations already mentioned, and also suffer from a lesser institutional authority.

The other category consists of efforts made by non-governmental organisations, academic experts, and legal associations. These include position papers by the ECRE;[69] guidelines published by the University of Michigan;[70] a project on the exclusion clauses funded by Human Rights First;[71] and workshops conducted by the International Association of Refugee Law Judges.[72] While these efforts are all valuable, and altruistically motivated, they lack institutional authority, are not always widely disseminated and, once again, are limited by their generality and abstraction from facts.

(d) Existing institutions with competence

The interpretation of the Convention is already within the institutional competence of a number of bodies. The International Court of Justice (ICJ) has direct institutional competence,[73] as does the Inter-American Court of Human Rights.[74] Refugee-related issues may be raised indirectly before the UN Human Rights Committee, the European Court of Human Rights (ECtHR), the European Court of Justice (ECJ) (through the Qualification Directive) and the UN Committee against Torture, although their role involves the interpretation of their own treaties.

Of these, the ICJ would be the preferred forum for resolving disputes about the interpretation of the Convention, because of its truly international character, its institutional competence as the court of the UN, and its judicial expertise. However, this jurisdiction of the ICJ has never been invoked, and the prospects of it being used are remote. States or even the UNHCR[75] are unlikely to go to the trouble and expense of beginning long and complex proceedings over these issues of interpretation, particularly as it is of no tangible benefit to the states. The adversarial procedure would be an extremely inefficient process of harmonisation, even if the docket of the Court was not already ‘full’.[76]

For this reason, it seems unprofitable to pursue convergence by adjudication. These comments apply a fortiori to the other courts, which suffer the additional problem of providing only regional solutions and, with respect to the European courts, would involve interpreting the Convention indirectly through the lens of the Qualification Directive (in the case of the ECJ) or the European Convention on Human Rights (in the case of the ECtHR). The European courts also suffer from large backlogs. Although these latter defects do not affect the Inter-American Court of Human Rights, disharmonies in interpretation are less pronounced in its member states as UNHCR assesses most of the claims for asylum, and because of the broader regional definition of refugee.

The problems of indirect interpretation and large backlogs also attend the use of the Human Rights Committee and the Committee against Torture, which are increasingly being used for refugee issues in the absence of a specific supervisory mechanism for the Convention.[77] (Indeed, most cases before the Committee against Torture now involve asylum-seekers.[78]) Additionally, the committees only meet part-time and their opinions have less normative force than the judgments of courts.

(e) Conclusion

Current prospects for minimising divergent interpretations of the Convention using existing mechanisms are not, in our view, promising. There are significant limitations in using general guides, which are not timely or context-specific: political methods of harmonisation appear undesirable in the present climate; and convergence by adjudication is not an efficient method of harmonisation.

However, this review does indicate that there is value in international soft law as a method of guidance. It also points to the following conclusions:

• The interpretation of the Convention should be global, not regional, in character.

• In order for such interpretation be accepted by national decision-makers, it should be arrived at by accepted judicial techniques and have an authority derived from the expertise and integrity of the institution.

• Such interpretations should address practical factual circumstances rather than general and abstract questions.

• There should be an ongoing interpretative body, to ensure continuity over time and relevance to the current needs of decision-makers.

• Such interpretations must be widely promoted and publicised to ensure that they come to the attention of decision-makers.

These conclusions have informed the design of the proposal, which we develop below.

IV. The Principles of the Proposal

(a) The purpose of the commission

The ultimate aim of this proposal is to promote greater consistency in the interpretation of the Convention, for the reasons outlined. This aim has shaped our proposal in distinctive ways.

The first distinctive feature is the judicial character of the commission. While the commission will not be a court, we aim to emphasise features that draw from the tradition of the judiciary, and in that broad sense the commission can be called ‘judicial’. This is partly for the practical reason that, in many countries, interpretation of the Convention is the province of the judiciary, and if we are to promote convergence of interpretations, the people who are best equipped to persuade judges are fellow jurists and experts. More importantly, however, the judicial character of the commission endows it with particular values such as independence, impartiality, intellectual integrity, and legal expertise. These are qualities which are essential to the enterprise of interpreting the Convention.

This feature draws upon the demonstrated value of present international judicial institutions. These perform useful functions in international law: they adjudicate disputes; interpret the law; supervise the development of the law; and legitimate the system by ensuring independent and (at least in theory) apolitical oversight. International judicial institutions have been responsible for greatly elaborating the content and extending the reach of international law, as well as providing an alternative discourse for international politics and the legitimacy of state actions. These would all be valuable additions to the present refugee regime.

The second distinctive feature is that, unlike most international judicial bodies, this body will not be an adjudicatory forum. The aim of promoting consistency can be more effectively achieved by addressing divergences directly, rather than waiting for applications to raise issues relevant to the development of the jurisprudence of refugee law.

Such a view is supported by the experience of the UN treaty committees. Among the many useful functions of these supervisory committees has been their elaboration of the various treaties that they monitor, primarily through the issuing of General Comments and consideration of individual complaints. However, the effectiveness of the committees has been undermined by large backlogs of complaints.[79] Further, such elaboration is an incidental function of the committees, and as a result the guidance given by these bodies in this respect, although useful, tends to be ad hoc and reactive.

In addition, the scale of resources required for adequate adjudication is immense, as the increasing workload of the ECtHR evidences.[80] Prior to its reform in 1998, the Court and its partner, the European Commission of Human Rights, had delivered a total of 38,389 decisions and judgments in 44 years; within the first five years of its operation since then, the Court had delivered 61,633 judgments.[81]

Although there is of course a practical value in allowing individual adjudication, the present proposal takes as its basis a primary purpose of convergence in interpretation. Adjudication is, as experience shows, a costly and time-consuming route to such interpretation, and for those reasons the proposed body would not have an adjudicatory function.

A third distinctive feature of the proposal is that the mission of the commission would be to promote reasoned discussion on the major interpretative controversies. The use of expository reasoned opinions should promote debate, and use a method of intellectual persuasion rather than the power of compulsion. By explaining different interpretations within these opinions, the commission’s opinions would allow room for the expression and testing of a diversity of opinions.

(b) Legitimacy

Two of the key measures of the success of an international (and indeed a domestic) court or tribunal are its legitimacy and its effectiveness. The two dimensions are, of course, related: illegitimacy undermines effectiveness, and ineffectiveness undermines legitimacy. However, the distinction is useful for analytical purposes.

Legitimacy involves the acceptance of the authority of the international judicial institution. The importance of legitimacy to the effectiveness of an institution is vividly illustrated by the routine protestations of illegitimacy by defendants such as Milosevic.[82] Legitimacy may be assessed in relation to the different actors involved: the parties involved; those directly affected by its outcome; the international political elite; states; the broader international legal community; and the population in general. From the perspective of the Rwandan government, for example, there have been serious doubts about the legitimacy of the ad hoc tribunal for Rwanda: the government voted against the establishment of the International Criminal Tribunal for Rwanda (ICTR),[83] and recently denounced a controversial acquittal.[84] Nor have the ad hoc tribunals necessarily gained legitimacy in the eyes of the communities they are meant to serve, with one opinion poll finding that 32 per cent of Serbs think the International Criminal Tribunal for the former Yugoslavia’s (ICTY) major goal is ‘to place all the blame for war suffering on Serbs’.[85] In contrast, the extremely heavy workload of the ECtHR indicates a perception of success among litigants.

Legitimacy may have different sources. An important, although not sole, source is institutional authority. For example, the ICJ enjoys great institutional authority as the principal judicial organ of the UN. The Statute of the International Criminal Court (ICC) is a source of great legitimacy, evincing as it does the consent of a large number of states to a pioneering court, a consent strengthened by its speedy ratification. The global character of the human rights treaties and their widespread ratification[86] confers legitimacy on the UN treaty committees.

In contrast, the institutional legitimacy of the ad hoc criminal tribunals has been questioned, based as it is on resolutions of the UN Security Council passed in a frenzied political climate.[87] This has hampered their functioning, with nations refusing to assist the tribunals in their work.[88]

However, the experience of the ad hoc tribunals also demonstrates that legitimacy need not merely be conferred; it can be self-generated. The persistence of dedicated personnel has generated more confidence about the usefulness of ad hoc tribunals among the human rights community and among states, a confidence that eventually enabled the fulfilment of the dream of an ICC.[89]

Another key source of legitimacy is the relationship between states and the institution. The textbook criticism of the ICJ, for example, is that too few states submit to its jurisdiction,[90] and too many states attack or ignore its decisions.[91] The institutional legitimacy conferred by treaties may be undercut by the political negotiations and compromises inherent in them, as was demonstrated by the lengthy negotiating process involved in the creation of the ICC, the flaws of which have been described at length elsewhere.[92] The UN treaty committees have complained of the delayed compliance or non-compliance of states with their obligations to report and their implementation of decisions on communications.[93]

State co-operation is vital to the success of the institution. Governments have obstructed the ad hoc tribunals from investigating, arresting[94] and extraditing suspects,[95] and the tribunals continue to rely on political and financial pressure from United States and European countries to procure reluctant co-operation.[96] Although it is too early to judge the success of the ICC, its legitimacy has been undermined by the wide-ranging attack by the United States on it,[97] and the failure by certain states to ratify it. The Inter-American Court of Human Rights was undermined when its rulings led to Peru seeking to withdraw from the Convention[98] and Trinidad and Tobago denouncing it.[99]

In contrast, one of the reasons for the success of the ECtHR and the ECJ is the general support and compliance of its states parties. A recent review of the ECtHR, for example, found that only a few decisions were not complied with for political reasons.[100]

The independence of members of the institution is also an important component of legitimacy. Allegations of horsetrading at the UN treaty committees and of close links between states and their representatives affect the perception of the committees, and therefore their legitimacy. External pressure has also been cited for the high rate of resignations of officials at the ad hoc tribunal for Rwanda.[101]

Legitimacy also depends upon the extent to which international judicial institutions are supported, not only by states but also by an international legal community and broader activist and popular communities. Although governments of states are frequently embarrassed by, or constrained by, international judicial institutions, support outside of the government encourages recognition of the normative force of the decisions, and in turn compliance with them. This is evidenced by recent studies that have concluded that the decisions of the ICJ are generally effective.[102]

Perhaps the importance of broader political support is most vividly illustrated in the differences between the ECtHR and the Inter-American equivalent. The European Court is supported by, and promotes, a well-versed human rights culture that accepts the authority of its decisions, and the importance of human rights. Its high-profile cases receive significant media attention and have worked dramatic changes on domestic laws, as the recent ruling on the requirement for legal aid in the long-running British ‘McLibel’ case demonstrates.[103]

The Inter-American Court has been notably less successful, having made decisions in only 71 cases,[104] although a large number of cases are dealt with by the Inter-American Commission on Human Rights. This is largely because states are reluctant to submit to its contentious jurisdiction,[105] with the Court confined mostly to an advisory jurisdiction during many of the worst abuses in the 1980s.[106] The obvious reason for this comparative lack of success is the lack of support of relevant institutions and a hostile political climate. People involved in cases in the 1980s, for example, were sometimes threatened or even murdered.[107] As the region has become more democratic, its effectiveness has revived, although states are still rarely prepared to investigate, try and punish the perpetrators.[108]

The difficulty for our proposal is that the traditional international law source of legitimacy for such an international judicial body, namely the consent of states in the form of a treaty, is likely to affect negatively its legitimacy in terms of its acceptance by the broader refugee advocacy community. The increasingly restrictive temper of many governments makes it more than likely that they will wish to control the composition of any commission and seek to influence its opinions in their perceived national interest. The form of the proposal therefore places emphasis on other sources of legitimacy.

(i) Creation under the supervisory mandate of the UNHCR

First, and foremost, it is proposed that the body be created under the supervisory mandate of the UNHCR. Paragraph 8 of the UNHCR Statute provides that the High Commissioner ‘shall provide for the protection of refugees falling under the competence of his Office by … promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’ (emphasis added). Articles 35 and 36 of the Convention provide for the corresponding obligations of states to co-operate with UNHCR in this respect.[109] The creation of the limited body we have described falls within that supervisory mandate, as described more fully by Kälin.[110] In essence, the proposal involves little more than giving the Global Consultations process a permanent form.

This method of creation has a number of advantages. First, the commission is designed to supplement, rather than usurp, the function of UNHCR. As mentioned earlier, it is in essence a continuation and expansion of UNHCR’s own supervisory efforts. Such a supplementary role also preserves the coherence of the international refugee regime, and ensures that the commission will be international in character.

Second, the mandate of the UNHCR is created by treaty. The creation of a commission within that mandate therefore does not trespass on sovereign rights. Rather, it serves to fulfil the expectations of the treaty.

Third, courts and decision-makers already refer to the ‘soft law’ created by UNHCR in fulfilment of its mandate. As has been discussed, the weight placed upon UNHCR’s interpretations varies. Nevertheless, UNHCR has an unrivalled institutional legitimacy in the minds of courts and decision-makers.

Fourth, there are some very considerable practical advantages in utilising UNHCR’s extensive experience in refugee law. UNHCR will be in touch with changing refugee realities and will inform the priorities of the commission.

Fifth, this more flexible method of creation will allow the commission to evolve with changing circumstances and needs. Experience often demonstrates flaws in the best-laid plans. Experience may also breed trust. As states and decision-makers become more comfortable with the new commission, changes in the commission’s function may become desirable. The evolution of the ECtHR, for example, suggests that we also take an evolutionary perspective in designing the commission.

(ii) Judicial character

A second source of legitimacy is the judicial character of the commission, which was briefly mentioned earlier. Two aspects of this warrant further discussion: 1) the separation of powers, and 2) the discipline of the law.

The principle of separation of powers has, to some extent, been translated at the international level[111] through the recent proliferation of international judicial and quasi-judicial bodies.[112] Independent experts have increasingly been entrusted with the job of monitoring the implementation of treaties, and independent dispute settlement mechanisms have either been introduced or strengthened in respect of a large number of important treaties. While the significance and practical effect of these institutions are often exaggerated, the trend expresses the value of an independent dispute settler in a way analogous to that of the domestic dispute settler.

The doctrine of separation of powers expresses the value of fragmenting the functions of governance. Adjudication of disputes is accepted as fair if, among other things, the adjudicator is impartial and independent. The independence of the judiciary, although not necessarily in the short-term interests of a government, legitimates executive power in the long run.

But the separation of the judiciary does more than simply legitimate the system of governance. It allows disputes to be resolved that cannot be resolved politically, not only in cases of high political importance such as the election of a President, but also in the detail of interpreting nuances of legislation and regulating the private disputes of citizens.

Unlike other major human rights conventions, the Convention presently does not have a separation of executive and interpretative power. Yet such a separation suits the hybrid nature of UNHCR. Presently, UNHCR is open to the charge that its operational needs undermine its authority as an interpreter of the Convention. A natural pressure exists upon UNHCR not to condemn a country that allows it to operate within its territory, or to condemn the handful of donor countries.[113] UNHCR can more effectively achieve both its supervisory and operational objectives by devolving some of its supervisory responsibility to an independent judicial body.[114]

Another factor underpinning the legitimacy of an independent judicial body is the special authority of law.[115] There is no hard and fast line between law and politics, and the notion of law as a morally or politically neutral sphere has long been exploded. Yet the law is a discipline and the rules of law are different from the rules of politics. The law is concerned with reasoning from principles and rules using accepted legal techniques, and the loyalty of lawyers and judges is to the law itself. Judges are servants of the law and owe their allegiance to it, not to the political masters of the day. In particular, they have a function in ensuring the legality of government and in restraining arbitrary exercises of power, a function and value which has special importance in the current age.[116]

(iii) International composition and representation

Of course, to some extent the value of the judiciary is already present in the international refugee regime, as in many countries the judiciary already plays a leading role in the interpretation of the Convention. However, an international judicial body would have other benefits. An international judicial body dedicated to refugee law would benefit from the special expertise of its members in international law and by its sole focus on refugee law.

An international judicial body is also particularly appropriate given the international nature of the Convention, and in light of the present state of disharmony that has resulted from divergent national interpretations. By looking at the Convention directly, rather than through the distorting lens of national legislation, an international body can see the Convention for what it is, namely, an international humanitarian instrument. It is likely that an international judicial body will have greater capacity to resist the politicisation of refugee law by national governments and will be able to expose breaches of international law with greater authority. The normative influence of a persuasive international judicial body is a resource for national courts, as recent judgments of the House of Lords demonstrate.[117] The principled development of international refugee law promotes a certainty and predictability that can only enhance the legitimacy of national judicial decisions.

(iv) The legitimacy of expertise

The contemporary world is the age of the expert. There are good reasons for this, but expertise is not a prerequisite for those currently involved in the interpretation of the Convention. While superior appellate courts often engage in sophisticated analyses of the Convention, this is not an option for most primary decision-makers. Refugee law also poses particular problems that even senior appellate judges may struggle to overcome. It lies at the intersection of humanitarian law and international law, two areas that have developed significantly since most judges were educated. Moreover, a sophisticated analysis requires access to, and understanding of, material across a variety of jurisdictions, and a range of international instruments. There are some landmark refugee cases that may have been decided differently if an expert in refugee law had been sitting.

(v) The thorny issue of state involvement

Despite the foregoing, it may be desirable to have some form of state involvement to assist in developing the legitimacy of the commission. States supporting the creation of such a body may, for example, have privileges in relation to the appointment of members or standing to make submissions to the commission. It may be desirable to bring together interested states parties for consultation prior to the creation of the commission, and it will be advisable to liaise with them through the process. However, a balance must be struck between co-operation and dialogue with states, and impermissible interference by the states. Furthermore, while engagement with states might be useful, the primary target audience of the commission are decision-makers and the judiciary. It will also be necessary to develop good working relationships with these people.

(vi) Absence of enforceability

It may be objected that the legitimacy of the commission will be greatly undermined by its lack of powers to enforce. To lawyers familiar with domestic courts, the enforcement powers of courts appear fundamental to their authority, and international bodies are often criticised for being no more than talking shops.

There are, however, insuperable difficulties in the way of establishing a body capable of delivering binding judgments. Specific consent by states parties would be required in order to make the opinions binding. Such consent is not likely to be forthcoming, and in some cases may be constitutionally impossible. The experience of the ICJ, and the small number of states parties that have agreed to accept its compulsory jurisdiction,[118] indicate the magnitude of the task.

Nevertheless, the experiences of the ICJ and other international bodies illustrate the normative value and political influence of judicial opinions,[119] even when their judgments are defied. What is more important, in our view, is a political and cultural acceptance of the legitimacy of the commission’s decisions.

Although enforcement is not a practical possibility, some powers could be assigned to the body by UNHCR. UNHCR could make the interpretations determinative for the purposes of the refugee status determination, which it conducts in many countries.[120] By making the opinions of the commission enforceable in this area, there is the potential to stimulate a pattern of state acquiescence.

The lack of power to enforce its opinions has two positive aspects for the commission. It makes the creation of the body simpler. The consent of states, which is essential for the creation of a court that renders binding judgments, is not necessary. And non-binding opinions attract less controversy and hence less resistance from states jealous of their sovereign powers.

(c) Effectiveness

Three aspects of effectiveness are addressed here. First, in order to be effective at all, the proposal has to be politically feasible. Second, effectiveness measures the gap between the objectives of the body and its performance. Third, effectiveness depends partly upon the efficiency of the body.

The first aspect explains why the proposal is modestly framed, with the commission’s function being limited to a traditionally judicial task, and with the commission being designed to supplement the existing refugee regime. It also explains why we do not favour the method of treaty creation. As the experience of the ICC has shown, such a method has as many risks as it has rewards. It also explains why we have opted for an advisory model.

The second aspect supports the narrow focus on the objective of promoting convergence in interpretation. Such narrow objectives are much more easily fulfilled than wide-ranging and broad objectives. This is supported by the experience of the UN treaty committees, in which grand objectives and multiple functions are placed upon part-time committees, with the inevitable result that few of the objectives can realistically be achieved. This tends to undermine the legitimacy of the bodies.

The third, related, aspect is the question of efficiency. Narrower objectives permit more carefully targeted use of resources. As already explained, the absence of an adjudicatory function promotes efficiency. In an adjudication, applications have to be received and processed, parties given due time to prepare and argue cases and, if necessary, appeal. Where such applications are in relation to human rights treaties with broad jurisdiction, there is almost invariably a mismatch between the number of applications and resources. Another mismatch often occurs, in which petitioners from particular countries are overrepresented, because they are aware of, and have greater access to, such courts and bodies. An obvious example is the difference in workload between the Inter-American Court of Human Rights and the ECtHR, which clearly does not reflect a difference in the extent of human rights abuses in the various regions.

The proposal takes into account the critical importance of resources. A persistent criticism of the UN treaty committees[121] and the ad hoc criminal tribunals[122] has been that resources are inadequate to meet the demands of wide-ranging briefs. The need for resources often also diminishes legitimacy, as the states that hold the purse strings can attach conditions to their financial support. In the case of the ad hoc criminal tribunals, overdue payments by states have resulted in large funding gaps,[123] and escalating costs have also motivated the decision to close the tribunals by 2010.[124]

We recognise that the budget of the UNHCR is stretched. For that reason, we have felt it important to develop a funding model that seeks support from committed private sources such as universities, law firms, and professional organisations and foundations. Further, the commission will seek to establish its secretariat within one or two academic centres devoted to refugee studies. It will be possible for appointees to serve part-time, and to minimise the costs of meeting by utilising electronic communications. A further advantage of such a model is that an independently funded commission will emphasise the independence of the body, thereby assisting the body to gain further legitimacy.

V. The Proposal

(a) Foundational principles

The essence of the proposal is that an international judicial commission be created under the supervisory mandate of the UNHCR, for the primary purpose of promoting convergence in the interpretation of the Convention by the method of producing authoritative opinions. A secondary purpose of such a commission will be to promote discussion about the interpretation of the Convention. It will not be involved in determining applications made by individual asylum seekers.

In order to achieve the primary objective the commission would produce compelling opinions analysing, and providing practical legal guidance in relation to, current divergences in interpretation. Such opinions, directed towards interpretation rather than adjudication, would consolidate and draw upon all sources of international and domestic law, and provide guidance both at the level of general principle and in relation to particular factual situations.

While presently the primary difficulties with divergence in interpretation focus upon the definition of refugees, the commission will also be well placed to consider the question of refugee rights, an issue that will probably become more prominent in the future. Indeed, the commission could fill a critical void on this subject.

As discussed above, the authority of the commission depends upon a mixture of its institutional mandate, its judicial character, its international composition, and, to a lesser extent, involvement by states parties to the Convention. It will also depend on the quality of its appointees and the conduct of the commission. It is imperative, therefore, that the commission be independent and composed of judges of the highest skill, reputation, and integrity.

(b) The role of UNHCR

As already explained, it is proposed that the commission be created pursuant to the existing supervisory mandate of UNHCR. In this way, the proposal supplements the authority of the UNHCR, and recognises its fundamental role in the international refugee regime. At the same time, the funding arrangements for the commission are designed to avoid adding to the financial burden on the UNHCR.

The commission can be created informally by UNHCR or perhaps by way of a formal resolution. The function of the commission is clearly within the supervisory mandate of UNHCR. Creation by treaty would, even if all states could be persuaded to participate, significantly delay the creation of the commission. Not all states will be persuaded to ratify, thereby fragmenting a universal regime. More importantly, there are likely to be compromises caused by bargaining between states, and the present trends in the refugee policies of many states, as well as the experience of the process of developing a common asylum policy in the European Union, suggests that the negotiation of any treaty may undermine, rather than strengthen, the protections of the Convention.

It is expected that UNHCR will play a significant role in the operation of the commission. We suggest that UNHCR have a role in appointments to the commission; have the right to apply for an opinion of the commission; and have the right to make submissions on any question before the commission. Former UNHCR officials would also be considered for appointment to the commission. The opinions of the commission could be used by UNHCR where it undertakes the role of status determination.

However the commission must be, and be seen to be, independent of UNHCR in the formulation of its opinions. Indeed, by separating the function of providing interpretations of the Convention from the other work of the UNHCR, the commission would benefit UNHCR by allowing it to concentrate on its protection mandate.

(c) Engagement with interested parties

The special relationship between the commission and the UNHCR will give the commission a certain immediate recognition. This is a starting point to dialogue and liaison between the commission and the participants in the world of refugee status determination and protection. As the commission will be a new and unique body it will need to advocate its reason for existence widely in order to gain the necessary acceptance. While the most persuasive form of advocacy will come from the quality of its opinions, certain arrangements are necessary to advance the cause of the commission.

It is proposed that a UN rapporteur be appointed to disseminate information about the work of the commission. A retired Chief Justice or like person would be ideal. The rapporteur will visit judges and decision-makers the world over to explain the work of the commission and encourage understanding of its opinions and their use in domestic decision-making. In the early stages there is a place for a liaison officer to assist the rapporteur while the reputation of the commission is being built.

(d) Methods of operation

This section of the paper makes some concrete proposals as to the operation of the commission. However, as we have noted, this remains a framework only, and one that is open to change. In particular, this proposal is directed toward the initial stage of setting up the commission. We envisage that, as with all institutions, the commission will evolve over time. The proposal therefore addresses the operation of the commission at the stage of inception.

(i) Composition of the commission

For the reasons already canvassed, the members of the commission should be eminent experts in international refugee law, whether that expertise be derived from academic, judicial or practical experience (such as former high-level UNHCR officials). Minimum legal qualifications would be required. However, a mixture of academic, judicial and practical experience is desirable.

The commission should initially comprise nine judges, in view of the heavy workload likely to be involved in establishing the institution and determining priorities in the early stages. A small number of judges is more practical, as they require fewer resources, are likely to produce opinions more quickly, and be more likely to achieve agreement. A larger number is not necessary as the task of the commission is quite confined, and because we propose that it have broad powers to set its priorities and organise its workload.

For similar reasons, part-time appointments are preferable. First, higher calibre personnel will be available, as many academics and sitting judges will be capable of engaging in the task part-time, but be unwilling or unable to give up their full-time positions. Second, such judges may well be able to rely on the institutional support of their staff in their full-time positions, thereby minimising the resources required by the body. Third, such appointments would not require full-time judicial salaries.

Part-time appointments have caused difficulty in other international bodies, most notably with the UN treaty committees. This is largely because of the increase in workload, although it has also been said that committee members are unable to devote the requisite time because of the demands of their primary employment. However, this may be suitably addressed at the appointment stage. Candidates unable to dedicate a certain amount of time to the task, or who have a potential conflict of interest, can be eliminated during the appointment process; and the terms of office may require that candidates who find themselves unable to fulfil their duties for whatever reason must resign.

As discussed earlier, part of the legitimacy of the commission will derive from its representation of different regions, cultures, legal systems, and genders. This is particularly important given that much of refugee law is context-dependent and involves dealing with a wide range of cultures.

(ii) Appointment and conditions of office

The appointment process, and the terms and conditions of office, should conform to the recently published International Law Association’s ‘Burgh House Principles on the Independence and Impartiality of the International Judiciary’.[125] In particular, in contrast to other international judicial bodies, states should not have control over the appointments process, although some form of state involvement might be desirable.

The experience of other institutions has been that selection by states has resulted in politicking. The political influence is said to be ‘omnipresent’, for example, in elections to the ICJ,[126] although judges are usually well-qualified.[127] The ECtHR has found it necessary recently to make reforms to counter criticisms concerning the independence of the judges.[128] Procedures such as standard curricula vitae and informal examination of the candidates[129] might be usefully adopted.

Appointments should be made by an appointments commission. The composition of this commission would be critical. It should include representatives of relevant organisations, such as the International Association of Refugee Law Judges, and involve sitting members of the commission. It may also be desirable to involve government representatives, to some degree.

In order to engage the wider refugee advocacy community, the first stage of the process might involve open nominations, in which individuals, non-governmental officers (NGOs), judges, legal practitioners and academics could formally propose names to the appointments commission. Vacancies, and the criteria for appointment, would be widely published. The appointments commission would adopt a transparent procedure for selection that would include consultation with relevant organisations and individuals.

Appointments would be for a term of five years, although this could be left up to the discretion of the appointments commission since it will depend on the preferences of candidates. As the appointment process is not politically determined, some flexibility in the length of terms and re-appointment could be permitted without undue interference. The appointments commission would have the power to require a resignation in the event of incapacity, misconduct, conflict of interest, and like specified circumstances.

In order to attract the highest calibre candidates, it will be necessary to remunerate them appropriately for their time. The conditions of office should be similar to those available to other international judges, albeit with appropriate recognition of the part-time nature of the duties.

(iii) Selection of cases

Given that the primary purpose of the commission is to promote convergence, the commission would isolate the major areas of debate over the construction of the Convention, and prioritise the delivery of its opinions accordingly. The commission would invite suggestions from UNHCR, leading academic commentators, governments, the legal profession and NGOs concerning the appropriate issues for consideration.

Additionally, the Commission may find it useful to allow certain parties, such as UNHCR, to ask the commission for its opinion. It would have discretion to accept or refuse such an application, so as to avoid becoming a tool for political causes, and to manage its resources wisely.

The commission should also be able to review or re-open opinions where it appears necessary to do so.

(iv) The deliberation process

The rules of the commission would be flexible, allowing it to choose the best procedure for determining each case. In some instances it may be appropriate to conduct oral hearings. But many issues could be determined from written submissions from invited parties and research papers prepared for the commission.

The commission would have power to invite submissions from any source it considered could usefully contribute, and would usually invite submissions from UNHCR, other NGOs, concerned governments, leading academic commentators, and refugee law practitioners. As judges are likely to be spread across the world, there may be a place for hearings by telephone or video conferencing. However, there is also value in providing for the members of the commission to meet and discuss the issues for opinion.

(v) Single or multiple opinions?

The civil law method that generally envisages the production of a single opinion by a judicial body has the value of certainty and of providing clear guidance for future cases. This system avoids the morass of separate opinions, which often arrive at the same conclusion with barely distinguishable paths of reasoning. Such decisions generate confusion in the administration of the law.

The virtue, however, of the common law tradition that allows for dissenting opinions, is that it exposes contrary standpoints, and thereby stimulates the development of the jurisprudence.

Given that the purpose of the commission is to promote convergence of interpretations, it is envisaged that initially, at least, it will produce joint opinions. However, such a rule need not be inflexible, particularly as the commission does not finally determine individual applications.

(vi) Funding and support of the commission

In order to hasten the creation of the commission, it is envisaged that public financial support would be minimal. Private foundations, leading law firms, and commercial organisations with an interest in the project would be invited to fund the salaries and travelling expenses of judges, a limited number of registry and support staff, as well as a space for its headquarters. Such a space could be usefully located in an academic centre for refugee studies, allowing access to expertise and relevant resources.

A novel approach to the funding of research support would be taken. Thus, the commission would offer to a recognised faculty or faculties a memorandum of understanding whereby academic staff would be made available to support the work of the commission. The support might also extend to the provision of information technology and translation facilities.

VI. Conclusion

As was noted in the Global Consultations process, ‘the viability of a universal commitment to protection [in refugee law] is challenged by divergence in State practice’.[130] This paper has set out a modest, and practical, proposal to address one aspect of divergence: the interpretation of the Convention.

The present inconsistency in the Convention’s interpretation is both undesirable and unjustifiable. The universal regime of international law envisaged by the Convention is, in practice, fragmented by diverging national interpretations. As has become evident in relation to many other international instruments, an international judicial authority is an essential element of a regime based on international law. This is not a problem that, as the present proposal indicates, demands significant resources or political will. It is a problem that is eminently capable of resolution by the international legal community. Indeed, it is a problem that can be addressed at minimal cost, and not at the expense of the pressing material needs of refugees.

For many commentators, the prospect of an international refugee court has been a pipe dream. Looked at closely, however, what is needed is not yet another court to determine refugee status, but an authoritative interpreter of the Convention.

That fundamental insight informs the proposal. A small number of internationally renowned experts in refugee law, endowed with the authority of UNHCR and with their own formidable intellectual, analytical and rhetorical gifts, would be an invaluable asset in the task of promoting convergence in the interpretation of the Convention. Funded by civil society and the legal community in particular, untainted by the political control of states, and untroubled by the procedural and administrative difficulties of deciding real cases, such a body would avoid many of the difficulties experienced by other international courts and tribunals. Instead, it could focus clearly on the task at hand: interpreting the Convention by the fearless and authoritative application of legal knowledge and rules.

[∗] The Hon Anthony M North is a Justice of the Federal Court of Australia.

[∗∗] BA (Hons), LLB (Hons) (Melb), MPhil candidate, University College London.
We gratefully acknowledge in particular the invaluable assistance of Elizabeth Lacey, LLB (Hons) (Mon), a previous Associate at the Federal Court of Australia, Bianca Hill, LLB (QUT), a former Research Associate, Federal Court of Australia, and Jessica Howard, Lecturer, The University of Melbourne. We extend our appreciation for the helpful comments of Professor James Hathaway, Professor Philip Alston, Professor Hilary Charlesworth and the referees. All errors and omissions remain our own.

[1] Hereafter the Convention. All references to the Convention are to the Convention relating to the Status of Refugees (28 July 1951), 189 UNTS 150 and the Protocol relating to the Status of Refugees, (31 January 1967), 606 UNTS 267.

[2] European Council on Refugees and Exiles, ‘Europe must end asylum lottery – Refugee NGOs’ (Press Release, 4 November 2004) PR6/11/2004/EXT/RW, <> .

[3] The Global Consultations on International Protection was an initiative of UNHCR which aimed to ‘rise to modern challenges confronting refugee protection, to shore up support for the international framework of protection principles, and to explore the scope for enhancing protection through new approaches’: E Feller, ‘Preface’ in E Feller, V Türk and F Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (2003) (‘Global Consultations’), xvii. It consisted of three ‘tracks’, the second of which consisted of expert roundtables held during 2001. The relevant material is collected in Global Consultations.

[4] For a summary, see V Türk, ‘Introductory note to UNHCR Guidelines on International Protection’ (2003) 15 International Journal of Refugee Law 303. UNHCR has issued the following Guidelines (available on its website): Gender-related persecution within the context of Article 1A(2) of the 1951 Convention/or its 1967 Protocol relating to the status of refugees, UN Doc HCR/GIP/02/01 (2002); ‘Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention/or its 1967 Protocol relating to the status of refugees, UN Doc HCR/GIP/02/02 (2002); ‘Internal flight or relocation alternative” within the context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the status of refugees (2003) 15 International Journal of Refugee Law 875, UN Doc HCR/GIP/03/04; Cessation of refugee status under Article 1C(5) and (6) of the 1951 Convention relating to the status of refugees (the “ceased circumstances” clauses) (2003) 15 International Journal of Refugee Law 307, UN Doc HCR/GIP/03/03; Application of the exclusion clauses: Article 1F of the 1951 Convention relating to the status of refugees (2003) 15 International Journal of Refugee Law 492, UN Doc HCR/GIP/03/05; and ‘Religion-based refugee claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the status of refugees’ (2004) 16 International Journal of Refugee Law 500, HCR/GIP/04/06.

[5] UN Human Rights Committee, General Comment No 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc CCPR/C/21/Rev.1/Add.6, (1994).

[6] But see the views of the majority of the High Court of Australia in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 213 ALR 668, [27]; and contrast the position of Kirby J at [68].

[7] [1999] EWCA Civ 1948; [1999] 3 WLR 1274; [1999] 4 All ER 774; affirmed [2000] UKHL 67; [2001] 2 AC 477.

[8] E Arboleda and I Hoy, ‘The Convention refugee definition in the West: Disharmony of interpretation and application’ (1993) 5 International Journal of Refugee Law 66, 76, quoting The UNHCR at 40: Refugee Protection at the Crossroads, Report of the Lawyers Committee for Human Rights, February 1991.

[9] Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, 46-57 (per Gummow J) and 70-71 (per Kirby J). See generally Sir E Lauterpacht and D Bethlehem, ‘The scope and content of the principle of non-refoulement: Opinion’, in Feller et al, Global Consultations, above n 3, 87, 104-106.

[10] See eg Applicant A v Minister for Immigration and Ethnic Affair (1997) 190 CLR 225, 259. This area is usefully summarised in the UNHCR Guidelines: ‘Membership of a particular social group” within the context of Article 1A(2) of the 1951 Convention/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/02 (2002). See also P Dimopoulos, ‘Membership of a particular social group: An appropriate basis for eligibility for refugee status’ [2002] DeakinLawRw 18; (2002) 7 Deakin Law Review 367.

[11] T A Aleinikoff, ‘Protected characteristics and social perceptions: An analysis of the meaning of “membership of a particular social group”’, in Feller et al, Global Consultations, above n 3, 263.

[12] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

[13] The line of authority in the Ninth Circuit differed from that adopted by the Board of Immigration Appeals (BIA) and other Circuits. The Ninth Circuit required a ‘cohesive, homogeneous group’: Sanchez-Trujillo v INS, [1986] USCA9 2002; 801 F 2d 1571 (9th Cir 1986), while the BIA and other Circuits required ‘a group of persons all of whom share a common, immutable characteristic’: Matter of Acosta Interim Decision No 2986, 1985, 19 I. & N. Decisions 211, BIA, 1 March 1985. In Hermandez-Montiel v INS, 225 F 3d 1984 (9th Cir 2000), 1093 the Ninth Circuit seemed to combine the two standards, holding that a particular social group was held as ‘one united by a voluntary association, including the former association, or by an innate characteristic that is so fundamental to the identities and consciences of it members that members either cannot or should not be required to change it’. See generally T Aleinikoff, above n 11, 275-80.

[14] See T Aleinikoff, above n 11, 280-85. This also appears true of Austria and Spain, while Belgium prefers the ‘protected characteristics’ approach and Denmark interprets the term very strictly: J Carlier, D Vanheule, K Hullman and C Peña Galiano (eds), Who is a Refugee? A Comparative Case Law Study (1997), 49 (Austria), 368 (Spain), 100-101 (Belgium), 330 (Denmark). In H Crawley and T Lester, ‘Comparative analysis of gender-related persecution in national asylum legislation and practice in Europe’, EPAU/2004/5, UNHCR Evaluation Report, May 2004, [379], it is said that only four of the surveyed countries had case law guidance on this definition (France, Lithuania, the Netherlands and the United Kingdom).

[15] See Aleinikoff, above n 11, 298.

[16] See Carlier et al, above n 14, 713.

[17] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, 261-63.

[18] Ibid. Whether they could rely on the ground of political opinion has not been definitively settled: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559.

[19] Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293.

[20] P Mathew, ‘Conformity or persecution: China’s one child policy and refugee status’ [2000] UNSWLawJl 56; (2000) 23 University of New South Wales Law Journal 103, 114. The definition was amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 USCS § 1101(a)(42).

[21] Compare Cheung v Canada [1993] 2 FC 314; (1993) 102 DLR (4th) 214 and Chan v Canada [1993] 3 FC 675, 692-93.

[22] Aleinikoff, above n 11, 284, citing Afdeling Bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State), 7 Nov 1996, RV 1996, 6 GV 18d-21 (China).

[23] Ibid 281, citing Zhang, CRR SR, Decision No 228044, 8 June 1993; Wu, CRR SR, Decision No 218361, 19 April 1994.

[24] See eg Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 (a 4-3 decision), esp 63-66 per Kirby J (dissenting); cf Adan v Secretary of State for the Home Department [1998] UKHL 15; [1999] AC 293. Compare Canada: Salibian v Canada (Minister of Employment and Immigration) [1990] 3 FC 250.

[25] See eg Arboleda and Hoy, above n 8, 86-87; R v Secretary of State for the Home Department, ex parte Adan [2000] UKHL 67; [2001] 2 AC 477, esp 490-93 (on the position of the UK in contrast to other European countries); European Council on Refugees and Exiles, Non-state agents and the inability of the State to protect, (2000), <> (on the position of Germany).

[26] See eg K Luopajärvi, Gender-related persecution as basis for refugee status: Comparative perspectives, Åbo Akademi University, Finland, Institute of Human Rights Research Report, No 19 (2003), <

programmes/norfa/Katja_Genderrelated_persecution.pdf>; Crawley and Lester, above n 14; A Macklin, ‘Cross-border shopping for ideas: A critical review of United States, Canadian, and Australian approaches to gender-related asylum claims’ (1998) 13 Georgetown Immigration Law Journal 25; R Haines QC, ‘Gender-related persecution’, in Feller et al, Global Consultations, above n 3, 319.

[27] Macklin, above n 26.

[28] See generally Lawyers Committee for Human Rights, ‘Safeguarding the rights of refugees under the exclusion clauses: Summary findings of the project and a Lawyers Committee for Human Rights perspective’ (2000) 12 Supp International Journal of Refugee Law 317, 324-25; P J van Krieken (ed), Refugee Law in Context: The Exclusion Clause (1999); G Gilbert, ‘Current issues in the application of the exclusion clauses’, in Feller et al, Global Consultations, above n 3, 425; J Handmaker, ‘Seeking justice, guaranteeing protection and ensuring due process: Addressing the tensions between exclusion from refugee protection and the principle of universal jurisdiction’ (2003) 21 Netherlands Quarterly of Human Rights 677.

[29] See generally J Fitzpatrick and R Bonoan, ‘Cessation of refugee protection’, in Feller et al, Global Consultations, above n 3, 491; D Milner, ‘Exemption from cessation of refugee status in the second sentence of Article 1C(5)/(6) of the 1951 Refugee Convention’ (2004) 16 International Journal of Refugee Law 91.

[30] See Gilbert, above n 28, 434-57 and W Kälin and J Künzli, ‘Article 1F(b): Freedom fighters, terrorists, and the notion of serious non-political crimes’ (2000) 12 Supp International Journal of Refugee Law 46.

[31] The UK says that the exclusion clauses should be applied after considering whether a person is a refugee; France increasingly agrees; Belgium’s practice is inconsistent; generally they do not in the US; and Canada has held there is normally no obligation: M Bliss, ‘“Serious reasons for considering”: Minimum standards of procedural fairness in the application of the Article 1F exclusion clauses’ (2000) 12 Supp International Journal of Refugee Law 92, 106-108. The Netherlands has put in place a special procedure for exclusion that precludes the inquiry into whether they are a refugee: Handmaker, above n 28, 685-86.

[32] Generally European countries engage in a balancing exercise, but this is not the case in common law countries: see T v Secretary of State for Home Department [1996] UKHL 8; [1996] AC 742 (UK); INS v Aguirre-Aguirre, 526 US 415 (1999); Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; (2002) 126 FCR 453 (Australia); Malouf v Canada (Minister of Citizenship and Immigration) [1995] 1 FC 537 (Canada).

[33] There is a conflict in Canada between ‘lower … than the balance of probabilities’: Ramirez v Canada [1992] 2 FC 306, 311-13; and ‘clear and convincing evidence’: Cardenas v Canada 23 Imm LR 92d, 244 (1994); in the UK the evidence must ‘point … strongly to his guilt’: T v Secretary of State for Home Department [1996] UKHL 8; [1996] AC 742; and in the US ‘probable cause’ is enough: Ofosu v McElroy, 933 F Supp 237 (SDNY 1995). UNHCR itself has proposed a ‘more likely than not’ test in its own practice: Lawyers Committee for Human Rights, above n 28, 329.

[34] Contrast eg the US Immigration and Nationality Act, § 219(a), 8 USC § 1189(a)(l), and T v Secretary of State for Home Department [1996] UKHL 8; [1996] AC 742. In the Netherlands, in practice the determination body pre-determines whether the organisation, and by association the applicant, has a ‘cruel purpose’: Handmaker, above n 28, 687.

[35] See eg G Bordelt, ‘The safe third country practice in the European Union: A misguided approach to asylum law and violation of international human rights standards’ (2002) 33 Columbia Human Rights Law Review 473.

[36] The doctrine was first developed in Minister for Immigration v Multicultural Affairs Thiyagarajah (1997) 80 FCR 543. This was strongly questioned, although followed, in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144, and the appeal was allowed by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 668; [2005] HCA 6. The legislature has also intervened, amending the relevant Act to include its own ‘safe third country’ exception: see s 36 of the Migration Act 1958 (Cth). See generally R Germov and F Motta, Refugee Law in Australia (2003) 463-75.

[37] J C Hathaway and M Foster, ‘Internal protection/relocation/flight alternative’ in Feller et al, Global Consultations, above n 3, 357.

[38] Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (5 December 2002) <> .

[39] Arboleda and Hoy, above n 8, 80-81.

[40] See eg P Mares, ‘The generous country? Asylum seeking in Australia: myths, facts and statistics’ (lecture delivered Storey Hall RMIT, 13 September 2001, Melbourne) <> .

[41] UNHCR, 2004 Global Refugee Trends: Overview of Refugee Populations, New Arrivals, Durable Solutions, Asylum-Seekers, Stateless and Other Persons of Concern to UNHCR, Table 8, available from UNHCR’s website <> .

[42] ECRE, above n 2.

[43] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UN Doc HCR/IP/4/Eng/REV.1, (1992) re-edited, Geneva, January 1992.

[44] These can be accessed from the UNHCR website <> .

[45] UNHCR has been involved in eg R v Immigration Officer at Prague Airport; ex parte European Roma Rights Centre [2004] UKHL 55; Sepet v Secretary of State for the Home Department [2003] UKHL 15; [2003] 1 WLR 856; [2003] 3 All ER 304; El-Ali v Secretary of State for the Home Department [2002] EWCA Civ 1707; [2003] 1 WLR 95; Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3; Islam v Secretary of State for the Home Department [1999] UKHL 20; [1999] 2 AC 629; and Haitian Centers Council v McNary [1992] USCA2 637; 969 F 2d 1326 (2nd Cir 1992), vacated as moot, 113 S. Ct. 3028 (1993). UNHCR’s documents for these can be found on its website.

[46] See generally J Sztucki, ‘The Conclusions on the international protection of refugees adopted by the Executive Committee of the UNHCR Programme’ (1989) 3 International Journal of Refugee Law 285. The conclusions are usefully compiled by: UNHCR, A thematic compilation of Executive Committee Conclusions, (2001) < & id=3d4ab3ff2> .

[47] ‘Joint position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term “refugee” in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees’ [1996] OJ L 63, 2 <> .

[48] R v Secretary of State for the Home Department, ex parte Adan [2000] UKHL 67; [2001] 2 AC 477, 520.

[49] Chan v Canada (Minister of Employment and Immigration) [1995] 3 SCR 593, 620, 628. See also Canada (Attorney-General) v Ward [1993] 2 SCR 689, 713-14.

[50] INS v Cardoza-Fonseca, [1987] USSC 32; 480 US 421 (1987), 439, fn 22.

[51] See eg Bugdaycay v Secretary of State for the Home Department [1986] UKHL 3; [1987] AC 514, 524.

[52] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 392.

[53] Savvin v Minister for Immigration and Multicultural Affairs [1999] FCA 1265; (1999) 166 ALR 348, 358, per Dowsett J; on appeal, Minister for Immigration v Savvin [2000] FCA 478; (2000) 98 FCR 168, 192-93.

[54] See eg Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; (2002) 126 FCR 453; Minister for Immigration and Multicultural Affairs v WABQ [2002] FCAFC 329; (2002) 121 FCR 251, 275-78. In particular, the texts by J Hathaway, The Law of Refugee Status (1991) and G S Goodwin-Gill, The Refugee in International Law (1983, 1996, 2nd ed) are often cited: at the time of writing, there were 65 cases that referred to either or both texts in the authorised reports of the Federal Court of Australia.

[55] In Australia, the Global Consultations were referred to in Applicant NADB of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 326; (2002) 126 FCR 453, 461, and were cited in support in dissent in Minister for Immigration and Multicultural v Applicant S [2002] FCAFC 244; (2002) 124 FCR 256, 269. In the US, the guidelines have been cited three times, as of February 2006. They were cited in support by the Court of Appeals in Mohammed v Gonzales, [2005] USCA9 150; 400 F 3d 785 (9th Cir 2005) and in Zhang v Ashcroft, [2004] USCA9 752; 388 F 3d 713 (9th Cir 2004) and in Castellano-Chacon v INS, [2003] USCA6 287; 341 F 3d 533 (6th Cir 2003), 548-49, where the Court noted that the definition of membership of a particular social group might evolve along the path indicated by the Guidelines. In Canada, the guidelines were cited in support in Rahaman v Canada (Minister of Citizenship and Immigration) [2002] 3 FC 537, 561-63. In the UK, at the time of writing, they have been cited in argument once: L v Secretary of State for the Home Department [2004] EWCA CIV 1441, [2004] All ER (D) 43 (Nov).

[56] QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363; [2005] FCAFC 136, [46], per Wilcox J.

[57] See eg R (on the application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55; A (FC) v Secretary of State for Home Department [2004] UKHL 56; [2005] 2 AC 68; R (on the application of Hoxha) v Secretary of State for Home Department [2002] EWCA Civ 1403; [2003] Imm AR 211. They were also cited in Rahaman v Canada (Minister of Citizenship and Immigration) 211 DLR (4th) 455, [45].

[58] In the Federal Court of Australia, since 1995 (at the time of writing) they have been cited only in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, [52]; Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554; (2000) 106 FCR 119, 128; and noted in Thiyagarajah v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 543, 561; Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported, Sackville J, 4 May 1995); and Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, 295.

[59] See eg in Australia Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405, 413; and in Canada Xie v Canada (Minister of Citizenship and Immigration) [2004] 2 FCR 372 (Canada), [25] and Pushpanathan v Canada (Minister of Employment and Immigration) [1996] 2 FC 49, [22]; reversed on appeal, [1998] 1 SCR 982.

[60] ‘The 44th session of the UNHCR Executive Committee: A view from the side’ (1994) 6 International Journal of Refugee Law 63.

[61] The Tampere program, which began in 1999, concluded in 2004: see ‘Area of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations (COM(2004) 0401 final, 2.6.2004, and its Annex I, ‘List of the most important instruments adopted’, SEC(2004) 680), (2004), <> . The next phase, the Hague Program, aims for a common European asylum system: see the Presidency Conclusions (4-5 November 2004) <> . For a recent overview, see P Shah (ed), The Challenge of Asylum to Legal Systems (2005); E Guild, ‘Seeking asylum: storm clouds between international commitment and EU legislative measures’ (2004) 29 European Law Review 198.

[62] Council Directive 2004/83/EC of 29 April 2004, On Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted [2004] OJ L 304, 12.

[63] See generally S Douglas-Scott, Constitutional Law of the European Union (2002), 288-91.

[64] Guild, above n 61, 218. See also generally Shah, above n 61.

[65] For a recent summary of the activities of the Council of Europe generally, M Ochoa-Llidó, ‘Recent and future activities of the Council of Europe in the fields of migration, asylum and refugees’ (2004) 5 European Journal of Migration and Law 497.

[66] ‘Recommendation No R (2004) 9 on the concept of “membership of a particular social group” (MPSG) in the context of the 1951 Convention relating to the status of refugees’, adopted by the Committee of Ministers on 30 June 2004. ‘Recommendation No. 4 (97) 22 to member states containing guidelines on the application of the safe third country concept’. See also ‘Recommendation No (98) 13 on the right to an effective remedy by rejected asylum-seekers against decisions on expulsion in the context of article 3 of the European Convention on Human Rights’, ‘Recommendation No. R (ii) 23 to member states on family reunion for refugees and other persons in need of international protection’ (2000) 12 International Journal of Refugee Law 281. For a full list, see <> .

[67] See generally J H Fischel de Andrade, ‘Regional policy approaches and harmonization: A Latin American perspective’ (1998) 10 International Journal of Refugee Law 391; and the San José Declaration on Refugees and Displaced Persons, adopted by the International Colloquium in commemoration of the ‘Tenth Anniversary of the Cartagena Declaration on Refugees’, San José, 7 December 1994, available on the UNHCR website.

[68] See generally P Oberoi, ‘Regional initiatives on refugee protection in South Asia’ (1999) 11 International Journal of Refugee Law 193.

[69] ‘Position on the Interpretation of Article 1 of the Refugee Convention’, September 2000, <> .

[70] J C Hathaway, ‘The Michigan Guidelines on the internal protection alternative’ (1999) 21 Michigan Journal of International Law 131. There are also Guidelines on Well-founded fear, and on Nexus: <> .

[71] Previously Lawyers Committee for Human Rights. See above n 28.

[72] See J C Hathaway, ‘A forum for the transnational development of refugee law: the IARLJ’s advanced refugee law workshop’ (2003) 15 International Journal of Refugee Law 418.

[73] See arts 36(2) and 65 of its Statute; and also art 38 of the Convention.

[74] See art 64(1) of the American Convention on Human Rights, which allows for interpretation of ‘other treaties concerning the protection of human rights in the American states’.

[75] At present, UNHCR is not authorised to request an advisory opinion, but this could be authorised by a resolution of the UN General Assembly. Further, it could ask a state party to raise the matter, as suggested by W Kälin, ‘Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and beyond’, in Global Consultations, above n 3.

[76] At the time of writing, there were 12 cases pending: see <> .

[77] See eg J M Fitzpatrick (ed), Human Rights Protection for Refugees, Asylum-seekers, and Internally Displaced Persons: A Guide to International Mechanisms and Procedures (2002); O Andrysek, ‘Gaps in international protection and the potential for redress through individual complaints procedures’ (1997) 9 International Journal of Refugee Law 392; S Takahasi II, ‘Recourse to human rights treaty bodies for monitoring of the Refugee Convention’ (2002) 20 Netherlands Quarterly of Human Rights 53; Amnesty International and the International Service for Human Rights, The UN and Refugees’ Human Rights, a Manual on How UN Human Rights Mechanisms Can Protect the Rights of Refugees, (1997) <$File/IOR3000297.pdf> .

[78] Of the 18 decisions made on the merits reported in the 2004 report of CAT to the UN General Assembly, 15 of those concerned asylum-seekers. The other three were cases brought by Tunisian nationals granted refugee status in Switzerland. See Report of the Committee against Torture, UN GAOR, 59th sess, annex VII, UN Doc A/59/44 (2004), (‘CAT Annual Report 2004’).

[79] See eg P Alston and J Crawford (eds), The Future of Human Rights Treaty Monitoring (2000); and A F Bayefsky, The UN Human Rights System: Universality at the Crossroads (2001).

[80] See eg P Mahoney, ‘New challenges for the European Court of Human Rights resulting from the expanding case load and membership’ (2002) Penn State International Law Review 101.

[81] Ibid.

[82] For an excellent account see P Hazan, Justice in a Time of War: The True Story behind the International Criminal Tribunal for the former Yugoslavia (2004), 159-70.

[83] S W Tiefenbrun, ‘The paradox of international adjudication: Developments in the International Criminal Tribunals for the Former Yugoslavia and Rwanda, the World Court, and the International Criminal Court’ (1999-2000) 25 NCJ International Law and Commercial Regulation 551, 557, 566-69.

[84] AllAfrica, Thousands demonstrate against UN tribunal, (2004), <> .

[85] Ana Uzelac, Hague prosecutors rest their case, (2004), <> .

[86] Bayefsky, above n 79, 7. The statistics for non-participation of UN member states by treaty given in that text are: 1% for the CRC, 13% for CEDAW, 19% for CERD , 23% for ICCPR , 25% for ICESCR, 35% for CAT.

[87] The ICTY was established by SC Res 827, UN SCOR, 48th sess., 3217th mtg., 1-2 (1993); 32 ILM 1159. The ICTR was established by its Statute annexed to and adopted by SC Res 955, UN SCOR 49th sess, 3453rd mtg, UN Doc S/RES/955 (1994); 33 ILM 1598.

[88] For a vivid account, see Hazan, above n 82.

[89] L Arbour and A Neier, ‘History and future of the International Criminal Tribunals for the former Yugoslavia and Rwanda’ (1997-1998) 15 American University International Law Review 1495, 1496-97.

[90] In 2005, only 65 of the 191 UN members have adhered to the ICJ’s compulsory jurisdiction, and the UK is the only permanent member of the Security Council that maintains a declaration under Article 36(2) of the Court’s statute: Report of the International Court of Justice, 1 August 2004-31 July 2005, UN GAOR, 60th sess, UN Doc A/60/4 (2005), [65].

[91] The Israeli reaction to the recent judgment on the Israeli security barrier is an example: see C McGreal, Israel lashes out at EU for backing UN vote on wall 2004 The Guardian <,,1266217,00.html> .

[92] See M Cherif Bassiouni, ‘Negotiating the Treaty of Rome on the establishment of an international criminal court’ (1999) 32 Cornell International Law Journal 443.

[93] See eg the statement of ‘deep concern’ at the situation in the Report of the Human Rights Committee, UN GAOR, 59th sess, UN Doc A/59/40 (2004), [256].

[94] Arbour and Neier, above n 89, 1501-502.

[95] Tiefenbrun, above n 83, 582; C Jen, ‘A Successful Permanent International Criminal Court … “Isn’t it Pretty to Think So?”’ (2004) Houston Journal of International Law 411, 426.

[96] See eg EU keeps pressure on Croatia before entry talks (2005) Reuters <> Serbia and Montenegro assistance (2005) Voice of America, <> .

[97] This includes a UN Security Council resolution which provides that for one year from its establishment, the ICC will not begin or proceed with investigations or prosecutions against current or former officials and personnel from a state contributing to a UN peacekeeping mission but not a party to the Rome Statute: SC Res 1422, UN SCOR, 4572nd Sess, UN Doc S/RES/1422 (2002); bilateral agreements purporting to invoke article 98(2) of the Rome Statute: see C Eubany, ‘Justice for some? US efforts under Article 98 to escape the jurisdiction of the International Criminal Court’ (2003) 27 Hastings International and Comparative Law Review 103; the American Service members’ Protection Act of 2002 which essentially proscribes American co-operation with the ICC: 22 USC §7421-432; and attempts to revise status of forces agreements. See generally Robert T Alter, ‘International criminal law: A bittersweet year for supporters and critics of the International Criminal Court’ (2003) 37 International Law 541, 547-50; Jen above n 95; D F Orentlicher, ‘Judging global justice: Assessing the International Criminal Court’ (2003) 21 Wisconsin International Law Journal 495, 495-96.

[98] On 9 July 1999, President Fujimori presented Peru’s declaration of withdrawal to the OAS Secretary-General, in response to the Court’s judgment in Castillo Petruzzi. However on 9 February 2001, the new Peruvian government presented the Court with a note re-affirming its acceptance of the contentious jurisdiction, without interruption, since its original declaration was deposited. See C M Cerna, ‘The Inter-American system for the protection of human rights’ (2003) 16 Florida Journal of International Law 195, 204, 206-208.

[99] See G McGrory, ‘Reservations of Virtue? Lessons from Trinidad and Tobago’s Reservation to the First Optional Protocol’ (2001) 23 Human Rights Quarterly 769.

[100] Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe, ‘Report on the execution of judgments of the European Court of Human Rights’, Doc 8808, adopted on 28 September 2000, reprinted in (2000) 21 Human Rights Law Journal 275; European Commission for Democracy through Law (Venice Commission), ‘Opinion 209: Implementation of the judgments of the European Court of Human Rights)’, reprinted in (2003) 24 Human Rights Law Journal 249.

[101] Rwanda alarmed by resignation of top Tribunal officials, (2004) Hirondelle News Agency <> .

[102] C Paulson, ‘Compliance with final judgments of the International Court of Justice since 1987’ (2004) 98 American Journal of International Law 434; C Schulte, Compliance with Decisions of the International Court of Justice (2004).

[103] Steel and Morris v United Kingdom, 15 February 2005, 68416/01; M Oliver and agencies, ‘McLibel two win legal case’ The Guardian, 15 February 2005.

[104] See the list of judgments at <> , as at 19 January 2005. Sixteen of those judgments were in 2005 alone.

[105] See generally A S Dwyer, ‘The Inter-American Court of Human Rights: Towards establishing an effective regional contentious jurisdiction’ (1990) 13 Boston College of International and Comparative Law Review 127.

[106] See generally ibid; D Shelton, ‘Improving human rights protections: Recommendations for enhancing the effectiveness of the Inter-American commission and Inter-American Court of Human Rights’ (1988) 3 American University of International Law and Policy 323.

[107] Dwyer, above n 105, 148.

[108] Cerna, above n 98, 203-204.

[109] See V Türk, ‘UNHCR’s supervisory responsibility’ (Working Paper No 67, UNHCR New Issues in Refugee Research, 2002) 19.

[110] Kälin, above n 75.

[111] See eg P Mahoney, ‘Separation of powers in the Council of Europe: The status of the European Court of Human Rights vis-à-vis the authorities of the Council of Europe’ (2003) 24 Human Rights Law Journal 152.

[112] See generally of C P Romano, ‘The proliferation of international judicial bodies: The pieces of the puzzle’ (1999) 31 New York University Journal of International Law and Politics 709; T Buergenthal, ‘Proliferation of international courts and tribunals: Is it good or bad?’ (2001) 14 Leiden Journal of International Law 267; P Dupuy, ‘The danger of fragmentation of unification of the international legal system and the International Court of Justice’ (1998-1999) 31 New York University Journal of International Law and Politics 791; J I Charney, ‘The impact on the international legal system of the growth of international courts and tribunals’ (1998-1999) 31 New York University Journal of International Law 697.

[113] According to UNHCR, ten donors provide 83% of its funding, with three donors covering 51% of its funding: UNHCR Global Appeal 2005, 23-24, < & src=static/ga2005/ga2005toc.htm> .

[114] See generally Takahasi, above n 77, 61-63.

[115] See M N Shaw, ‘The International Court of Justice: A practical perspective’ (1997) 46 International and Comparative Law Quarterly 831, 853.

[116] See eg Lord Steyn, Guantanamo Bay: The legal black hole (2003) British Institute of International and Comparative Law <> . For case law examples, see A (FC) v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68; Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577, Rasul v Bush [2004] USSC 2809; (2004) 542 US 466 and Rumsfeld v Padilla [2004] USSC 2816; (2004) 542 US 426.

[117] See eg A (FC) v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.

[118] See above n 90.

[119] See above n 102.

[120] See generally M Alexander, ‘Refugee status determination conducted by UNHCR’ (1999) 11 International Journal of Refugee Law 251.

[121] See generally E Evatt, ‘Ensuring effective supervisory procedures: The need for resources’ in Alston and Crawford (eds), above n 79, 461, and M Schmidt, ‘Servicing and financing human rights supervisory bodies’ in Alston and Crawford, above n 79, 481.

[122] See the (first) Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991, UN GAOR, 49th sess, UN Doc A/49/342-S/1994/1007 (1994), 28-51.

[123] See Ninth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December 1994, UN GAOR, 59th sess, UN Doc A/59/183–S/2004/601 (2004) (‘ICTR Annual Report 2004’); Eleventh Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN GAOR, 59th sess, UN Doc A/59/215 – S/2004/627 (2004).

[124] SC Res 1534, UN SCOR, 4935th mtg, UN Doc S/RES/1354 (2004).

[125] 25 November 2004 <> .

[126] N Blokker and S Muller, ‘The 1996 elections to the International Court of Justice: New tendencies in the post-Cold War era?’ (1998) 47 International and Comparative Law Quarterly 211, 213.

[127] See generally C F Amerasinghe, ‘Judges of the International Court of Justice – Elections and qualifications’ (2001) 14 Leiden Journal of International Law 335. Contrast the earlier comments by G M Wilner and T J Schoenbaum, however, that questioned the quality and independence of the judges: ‘Forum: American acceptance of the jurisdiction of the International Court of Justice: Experiences and prospects’ (1989) 19 Georgia Journal of International and Comparative Law 489, 497-500.

[128] Interights, London, ‘Judicial independence: Law and practice of appointments to the European Court of Human Rights’ (2003) 24 Human Rights Law Journal 262.

[129] See A Drzemczewski, ‘The European Human Rights Convention: A new Court of Human Rights in Strasbourg as of November 1, 1998’ (1998) 55 Washington & Lee Law Review 697 append IV and V, 723-24.

[130] Hathaway and Foster, above n 37, 358.

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