He criticized the guidelines for failing to cite an appeals decision by the House of Lords and accepting the views of the U. The Guidelines point out that,. Turkey , U. Republic of Korea , U. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
This is a significant shift, albeit it has been subject to individual concurring opinions. The right must not be impaired by coercion. The Guidelines may be considered to potentially support the crystallization the right of conscientious objection under international law. This is particularly delicate because one of the consultants for the Guidelines was Rachel Brett, of the Quaker U.
Hence, it is essential that the Guidelines contain proper citation of relevant national and international jurisprudence in order to avoid misrepresentation of the law. Instead, I suggest that more attention should be placed on tracing the transnational judicial dialogues addressing particular protection issues and normative interpretive questions within refugee law, as is discussed in the next section. The Guidelines are intended to reflect the actual state of law and practice, rather than promoting de lege ferenda.
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This underscores the importance of guidance by the UNHCR in terms of articulating universal protection standards. Nevertheless, I suggest that more attention needs to be paid to the evolution of the transnational judicial dialogue within refugee law. Specifically, there should be increased reference to national cases within UNHCR Guidelines in order to illuminate developments within jurisprudence and its impact on refugee law theory.
As an example one may consider the assessment of deserters who escape conscription within the Army and seek asylum abroad and the issue as to whether the desertion itself may be considered to ground a finding of a risk of persecution on account of imputed political opinion.
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Depending on the facts, an objection to military service. The act of desertion or evasion may in itself be, or be perceived to be, an expression of political views. France and Switzerland also upheld desertion as imputed political opinion within their case law. Lebon Fr. Contrary to the Israeli Population, Immigration and Border Authority articulated that they granted only two Eritrean deserters asylum because of their additional political engagement, thereby not relying on the desertion as imputing political opinion by itself. As a result of the change, the Federal Administrative Tribunal has refused to examine refugee claims on the basis of desertion.
Hence, there is disagreement among jurisdictions on this point, and it is suggested that the Guidelines would have benefitted from illuminating this.
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Ironically, these Guidelines were published in part in order to respond to the legislative amendment, thus it is problematic that there is no reflection within the Guidelines of the counter perspective taken by the state. Instead of ignoring discrepancies in national protection standards, it would be preferable for UNHCR to identify them and respond directly within its Guideline citations in order to ensure proper understanding of the evolution of refugee law. There are also examples of national case law which may give an expanded scope of protection beyond the Convention, such as the South African Refugee Act of , which incorporates the wider refugee definition provided by the OAU Refugee Convention.
In Katabana v. Chairperson of the Standing Committee for Refugee Affairs, et al. This, in turn, is supported by those Refugee Law scholars who have used references to pluralistic sources in order to expand our understanding of the non-refoulement principle beyond the Convention.
Press ed. Refugee Protection in International Law , supra note 3, at It further argues that:. Persons who evade or desert military service are regarded as disloyal and treasonous towards the Government and are punished for their perceived disloyalty. Hence, persons of, or approaching, military service age, who are medically fit, are at risk of persecution on return to Eritrea as actual or perceived draft evaders or deserters on the ground of imputed political opinion.
This section actually cites case law from Australia, New Zealand, and Canada. Canada Minister of Employment and Immigration ,  3 F. It is suggested that reference to these cases would have been positive for the UNHCR Guidelines on Military Service although they are all common law cases , and it is curious that they were omitted.
As a point of clarification, it should be noted that the UNHCR Refworld database contains a significant collection of jurisprudence that goes beyond the case citations in the guidelines and this is fully accessible to asylum adjudicators, including UNHCR staff. In addition, there are other refugee law databases that collect jurisprudence.
Nevertheless, these databases contain a majority of case law from the developed countries as opposed to developing countries. Moreover, even in the case of inclusion of a case from a developing country it is more likely to be a common law, English language decision. On a related issue, regarding the degree of risk of involvement in war crimes that a soldier has to show in order to receive protection, in Germany in , the Federal Bureau of Migration and Refugees initially rejected the asylum application of an American Deserter, Andre Shepherd, who did not want to deploy to Iraq.
Deichert, Is Germany the New Canada? Article 12 2 lists various refugee exclusions. Bundesrepublik Deutschland, E. The Court further concluded that the national authorities would have to carry out a factual assessment of the situation of the military service, also taking into account whether the military intervention was pursuant to a UN Security Council mandate or consensus on the part of the international community, or that the state or states conducting the operations prosecute war crimes.
Finally, the Court set forth that refusal to perform military service must be the only means by which the applicant could avoid participating in war crimes. Six UNHCR guidelines do not include any references to national case law: gender-related persecution, cessation of refugee status, internal flight alternative, exclusion clauses, religion-based claims, and victims of trafficking.
Background papers are commissioned from individual refugee law experts and therefore present the position of that consultant. It is noted that. The papers do not therefore purport to be a definitive position, but rather are part of a process of taking the debate forward on key issues of interpretation on which opinion and jurisprudence continue to differ. The background paper on cessation of refugee protection does not refer to any case law, relying instead on a rich collection of interviews, UNHCR and UN policy materials, and national administrative and legislative sources.
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The background paper on claims for protection on religion or belief states clearly that reference to jurisprudence is limited to the United States, Canada, New Zealand, and United Kingdom. The citations are indeed a thorough collection of common law decisions: United States 28 , United Kingdom 22 , New Zealand 37 , and Canada However, this is problematic in particular given the special nature of the topic which behoves a more universal perspective, including civil law cases and international jurisprudence.
Similarly, the background paper on Gender-related persecution contains citations of common law cases from the United States 3 , United Kingdom 9 , Australia 5 , and New Zealand 6. Kunarac, Kovac and Vukovic. There is improvement in the background note on membership of a particular social group which contains references to cases from both common law and civil law jurisdictions: the United States 17 , France 18 , Australia 5 , Germany 5 , United Kingdom 3 , New Zealand 3 , the Netherlands 1 , and Canada 1.
There is concern that there are procedural and substantive errors made in this type of analysis, and hence there is a need for protection guidance. The background paper on internal flight alternative reveals some improvement, as there is more inclusion of civil law cases, although common law cases remain in the majority: Canada 25 , United Kingdom 19 , Australia 19 , United States 11 , New Zealand 9 , Germany 10 , Switzerland 2 , the Netherlands 7 , Austria 1 France 1.
United Kingdom establishing that an internal flight alternative is not possible where the State police is the persecutor; this is also confirmed in Hilal v. The application of the exclusion clauses in Article 1 F of the Convention relating to crimes against peace, war crimes, crimes against humanity, serious crimes outside the country of refuge, or acts contrary to the purposes and principles of the United Nations the Convention is one of the most contentious issues within refugee law, in particular due to the escalation of the war on terror after September It is positive that the background paper on Exclusion contains a majority citation of civil law decisions, in spite of the fact that the author has a common law background himself: Switzerland 10 , Canada 3 , United Kingdom 3 , United States 2 , France 3 , and Belgium 2.
Akayesu, Case No. Kupreskic, Case No. Furundzija, Case No. Tadic, Case No. It cites the European Court of Human Rights to establish the non-refoulement standard and fair trial standards. United Kingdom, App. France, X Eur. France, App. Italy, IV Eur.
Switzerland, Communication No. Canada, Communication No. Drazen Erdemovic, Case No. The background paper is thoroughly researched and reveals even citations. The consultants who produced the background notes for these guidelines tend to come from common law backgrounds and hence this may in part explain the focus on common law cases, although there was one exception.
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Another worrisome trend, in like manner to the Guidelines, is the complete absence of references to cases from developing countries. At present, through selective citation of national case law, both the soft law UNHCR Guidelines and Background Papers appear to lack the universal characteristic they are intended to have and this requires rectification in order to preserve legitimacy of international law-making.
This Article pursued a deconstruction of the UNHCR Guidelines on International Protection and Background Papers in order to demonstrate the importance of increased pluralistic references to national case law. Change is required in order to ensure that citation of national case law is pursued in all guidelines, and that the bias towards common law judgments—as well as the omission of cases from the developing world—is corrected to avoid the appearance of selectivity in case law. Further, since there appears to be no political will to amend the Convention to recognize and address new forms of forced migration, it is likely that creation of international soft law in the form of guidelines will continue to be a primary means by which to evolve refugee law.
UNHCR is the only body with a global understanding of refugee status determination as it is carried out by individual states or its own staff in those cases where the state has delegated the function. What might be readily to hand in well-funded courts and tribunals in the global North, may be difficult to access and keep up to date elsewhere; equally, interpretations of the Convention can be driven by domestic or regional factors that are inappropriate for a universal treaty regime. Thus, the Guidelines on International Protection are an essential guarantee for the individual seeking refugee status.
Nevertheless, as long as the Guidelines have a common law bias in their citations and are devoid of references to cases from the developing world, they cannot be characterized as reflective of universal standards. Guy S. UNHCR should be given appropriate funding to strengthen the Department of International Protection in terms of competent staffing and related support.
At present it has only seven to eight lawyers and this renders the possibility of properly fulfilling the protection mandate very difficult.
Staffing and consultancy should ensure representativeness of civil law traditions as well as common law, in addition to developing country jurisdictions. The Department of International Protection should ensure close citation of national case law in its guidelines and publish compilations of national jurisprudence. UNHCR should be given additional funds to enable it to provide translations of key judgments in either English or French with abstracts in the other language. Greater pluralism in staffing will lead to greater legitimacy.
There is also a need for greater transparency of the role of the international civil servants, experts, NGOs, judges, and government officials in soft law evolution; for example, all Background Notes should be published. Indeed, many jurisdictions limit access to few, select cases from the higher appeals levels. The lack of openness at the national level limits the evolution of refugee law. Chimni stated: If a serious critique of Refugee Studies, in particular Refugee Law, is not forthcoming it is because the agenda of evolving Refugee Studies is set in the North.
All the major centres of Refugee Studies are located in the North. The key journals on refugee issues are published there. It is merely to stress the need for scholarship that questions the assumptions that inform dominant strands of Northern thinking with regard to the causes and solutions of refugee flows, and to advance alternative viable models of responsibility sharing and humanitarian assistance. It has meant that local knowledge, despite the overwhelming consensus on its need, has played a marginal role in shaping Refugee Studies. Refugee Stud. Nevertheless, it is important to recognize that developed states are also increasingly limiting access to their case law and may also be characterized as being subject to political pressure and harboring similar bias against refugees.
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Related Refugee Protection in International Law: UNHCRs Global Consultations on International Protection
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