Helene Lambert

Protection Against Refoulement from Europe: Human Rights Law Comes to the Rescue

A growing opinion has appeared in refugee and human rights discourse that the 1950 European Convention on Human Rights and Fundamental Freedoms (the European Convention) provides more extensive protection against refoulement than the 1951 UN Convention relating to the Status of Refugees (the Refugee Convention). However, uncertainties remain as to whether the protection offered by the 1984 UN Convention against Torture (the Torture Convention) and the 1966 UN International Covenant on Civil and Political Rights (the Political Covenant) may substitute, or, rather, reinforce, that of the European Convention. Which of these four instruments offers the greatest protection against a decision of refoulement from a European country? The answer to this question is far from being academic. The rule that an international organ may only be competent to consider an individual petition or communication provided “the same matter is not being examined under another procedure of individual investigation or settlement” is embodied in all three instruments providing a procedure for individual complaints. It is therefore crucial for an asylum-seeker to give his or her best shot first, even if, as rightly pointed out by Liz Heffernan, the Strasbourg organs and the Geneva organs are not in competition. This article will review the scope of protection afforded under the three of these treaties which provide an international enforcement mechanism to persons who have sought refugee status in the domestic jurisdiction.

International Law and International Relations: The law in world politics

Part I. The Foundations: 1. The nature of international law 2. The evolution of international law 3. Three lenses: realism, liberalism, constructivism Part II. The Law in World Politics: 4. Use of force 5. Human rights 6. International crimes 7. International trade 8. The environment Part III. Conclusions: 9. International law in a unipolar age.

Courting Controversy: International Law, National Norms and American Nuclear Use

In July 1996, the International Court of Justice (ICJ) issued a controversial Advisory Opinion on the legality of nuclear use (including, threat of use). The ICJ found that ‘nuclear use would generally be contrary to the rules of international law’, but it failed to conclude that nuclear use would be unlawful in all circumstances. The major reason for this was because it recognized nuclear norms (that is, the practice of deterrence) to which many states adhered. Taking the American case, this article examines norms of nuclear non-use and nuclear targeting. It shows where these national norms came from, and how they came to be empowered in US policy and embodied in American practice. It is critical of the ICJs conclusion because, while the norm of non-use is consistent with international law, it finds American targeting norms to be contrary to humanitarian law.

Transnational Judicial Dialogue, Harmonization And the Common European Asylum System

Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil–common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts—one rational, the other cultural—are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.

Family Unity in Migration Law: The Evolution of a More Unified Approach in Europe

This chapter examines the centrality of the family, both nuclear and extended, in the international legal framework in a migration context. It focuses particularly on family unity and family reunification of persons in need of protection, that is, on already established families of refugees and asylum seekers and the resulting legal issues arising from the refusal to enter or the proposed deportation of a family member. This chapter does not therefore discuss families in formation or immigration for the purpose of marriage. It is divided into five sections. Section two examines the international legal framework that establishes the protection of the family as a human right. It argues that a subjective right to family clearly exists under international human rights law but that the status of a ‘right’ to family unity/reunification is less clear in international law for two main reasons: first, the lack of a universal definition of ‘family’ underlying the concept of family reunification, and two, the protection of family reunification requires positive steps on the part of states. Sections three and four explore the contributions of the European Court of Human Rights and the European Union, respectively, to the enjoyment of a right to family reunification, and discuss the relationship between the two courts in this context. In a concluding section five, this chapter draws on selective comparisons with other regional legal systems and identifies areas of controversy that require further development in law and practice.

Seeking Asylum on Gender Grounds

This article discusses whether the criteria and procedures which are currently being used in European states offer fair treatment and sufficient protection to women seeking asylum on the ground of a gender-related persecution. Under the 1951 Convention relating to the Status of Refugees, a refugee must show a well-founded fear of persecution on at least one of five grounds: race, religion, nationality, membership of a particular social group or political opinion. Gender is not covered. There are essentially three ways in which states can address the problem of gender specific threat to the security of women. The first option, which is to do nothing or very little about it, was chosen by European states although most of them are now slowly moving towards the next option. This is to agree on a liberal interpretation of existing criteria, in particular, ‘social group’. This second option is already applied in Canada. No state or court has so far addressed the question of amending the 1951 Convention in order to add gender as a ground of persecution on its own. Yet this third option presents practical advantages and, more importantly, it has also become a necessity in principle.

Comparative perspectives on arbitrary deprivation of nationality and refugee status

The question of whether arbitrary deprivation of nationality constitutes persecution for the purposes of a determination of refugee status has received increased attention in recent jurisprudence. However, no systematic argument has been made to date on the ordinary meaning of words, context, object and purpose of Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as it applies to stateless refugees. This is an important question because the absence of determination procedures and a protection regime specifically for stateless persons in many jurisdictions makes refugee and/or complementary protection the only options. This article examines existing landmark judicial decisions worldwide, relevant UN documents, and academic writing on whether arbitrary deprivation of nationality, either on its own or when taken with other forms of harm, amounts to persecution within the meaning of Article 1A(2) of the 1951 Refugee Convention, and if so on what grounds. It concludes by suggesting when (arbitrary) deprivation of nationality should lead to a finding of persecution, based on good practice, and points to a global consensus on a new rights perspective concerning nationality.

Introduction: European refugee law and transnational emulation

Europe has the most advanced regional protection regime in the world. The regime has taken shape through a series of legal undertakings on asylum, refugee law principles and human rights betweenMember States of the European Union (EU), aiming at an ever-greater uniformity in the law and practice of its members. The EU sought to codify a common regional system of asylum by 2012, in order to provide a single asylum procedure and a uniform protection status. A regime covering twentyfour countries, including some of the most developed and powerful in the world, is bound to exert considerable influence beyond Europe. The predicted impact of this body of EU norms has been widely identified in the academic literature as one that will have a ‘ripple effect’ beyond the EU, particularly with respect to the evolving content of international refugee law by means of changing customary law and UNHCR practice. However, very few studies have noted the fact that the European protection regime has already influenced the law and practice of States

Transnational law, judges and refugees in the European Union

State authority and power have become diffused in an increasingly globalized world characterized by the freer trans-border movement of people, objects, and ideas.1 This has led some international law scholars, working from the American liberal tradition, to declare the emergence of a new world order based on a complex web of transgovernmental networks.2 The European Union (EU) is held as a prime example of this development, and indeed of the future trajectory of this world order. This volume explores the prospects for a transnational legal order in the context of refugee law in Europe.3 Asylum is a policy area that, by its very nature, demands inter-state cooperation and the 1951 Convention Relating to the Status of Refugees (Refugee Convention)4 is the basic instrument that provides for this. Within the EU, the imperative for deeper cooperation is

International Law and International Relations: Three lenses: realism, liberalism, constructivism

There is a certain irony in the mutual antipathy displayed by the disciplines of International Relations (IR) and International Law (IL). For as it happens, both disciplines are (and have been) united by common theoretical divisions. That is to say, the dominant paradigms in both disciplines are similar in their core ontological assumptions about the world; the main challengers in each discipline also share remarkably similar worldviews. The dominance of realism in IR is matched by the dominance of positivism in IL. Both realism and positivism offer structural approaches to their subject that prioritise the role of states and instrumental action, and downplay the significance of domestic politics, norms and ethics. Just as liberal institutionalism developed to challenge the dominance of realism in IR from the 1950s onwards, so legal positivism was challenged by the emerging legal process school from the 1940s onwards. These liberal challengers offer agent-centric approaches that highlight a plurality of actors in addition to states, as well as the role of domestic processes, normative action and ethical considerations in world politics. As we noted in the Introduction, there is growing appreciation among some IR and IL scholars that there is much to learn from each others discipline. But this appreciation is confined to liberal scholars in IR and IL; realists still have little time for law, and legal positivists still consider politics and policy to be none of their concern. To be sure, liberalism should be naturally inclined to take law seriously, given its focus on norms, regimes and institutions. Equally, the legal process school explicitly seeks to situate the law in broader socio-political contexts. At the same time, given realisms and legal positivisms shared worldviews, an engagement between these two disciplinary giants is long overdue.