Interpretation of the Definition of 'Refugee' under Art. 1(A)(2) of the Convention Relating to the Status of Refugees, with a View to the Elaboration of a Community Instrument to Guide the Application of the Refugee Convention Pursuant to Art.63(1)(c) of the Treaty of the European Communities

Authors

James C. Hathaway, University of Michigan - Ann ArborFollow

Document Type

Report

Publication Date

2001

Abstract

In approaching the task of recommending how to structure a Directive on common minimum standards for the recognition ofrefugee status in the Member States of the European Union, I have struggled to avoid two extremes. On the one hand, my recommendations might simply have reflected a search for the common denominator of relevant practice. The risk of this sort of analysis is, of course, that it clearly promotes a "race to the bottom," in which those States which presently fully implement their international obligations are encouraged to reduce the standard of protection. The alternative extreme would have been to define ideal standards. This approach is also risky, in that any significant dissonance between the common standard proposed and the reality of contemporary State practice might stymie the political project of harmonizing interpretation of the refugee definition. In view of the system of shared responsibility to protect refugees already in force among European Union states, failure to reach agreement on a common standard for recognizing refugee status will result in unfairness to asylum seekers, and potentially in unfounded refusals to recognize their entitlement to international protection.

I have therefore sought to stake out a middle ground defined by a search for what I view as "best practice" on interpretation of the refugee definition. I have struggled to define potential rules which are accepted in at least some, if not all, Member States; and which have a foundation in much, if not all, leading official statements of refugee law doctrine. In devising proposed rules, I have to the greatest extent possible retained concepts and language previously adopted by Member States in the 1996 Joint position on the harmonized application of the definition of the term 'refugee. ' But my primary point of reference is the duty to define Refugee Convention norms in line with prevailing international standards for treaty interpretation. In particular, I have been guided by the exhortation of the British House of Lords in Horvath (July 2000) that" ... [r]egard must be given to the purpose of the Convention and the object which it seeks to serve. While the language of the article has to be respected, any preoccupation with the precise words may fail to meet the broad intent of the Convention, and any detailed analysis of its component elements may distract and divert attention from the essential purpose of what is sought to be achieved ... "

The Study is organized around the precise language of the Convention refugee definition. There are eleven sections, comprising discussion of two general introductory concerns (general interpretive principles and the nature of asylum), followed by nine subject-specific discussions. This approach reflects the critical importance of anchoring analysis of the refugee definition firmly in the actual terms of the refugee definition as codified in international law. Within each of the eleven substantive sections, the analysis is divided between a proposed rule (shown the left column) and selective support for that proposed rule (shown in the right column). Because this Study was required within weeks of its commission, the sources cited in the right column are in no sense comprehensive, nor necessarily representative of dominant practice or all doctrinal positions. They are intended to enable the reader to have some sense of the extent to which the particular rules proposed are reflective of standards recognized in the jurisprudence of Member States and/or in the primary standards of international refugee law. Reference to norms derived other than from European Union or United Nations practice is exceptional, reflecting the commitment of the Study to seeking out "best practice" from within the realm of the normative standards embraced by Member States.

Comments

This study was prepared for the European Commission by Prof. James C. Hathaway, Senior Visiting Research Associate at the Refugee Studies Centre, Queen Elizabeth House, Oxford University. The analysis presented here is solely that of the author of the study, and may not reflect the views of the Refugee Studies Centre, Queen Elizabeth House, or Oxford University.

Unless otherwise indicated (e.g. in individual copyright notices), content owned by the EU is licensed under the Creative Commons Attribution 4.0 International (CC BY 4.0) licence. This means that reuse is allowed, provided appropriate credit is given and changes are indicated.

Creative Commons License

This work is licensed under a Creative Commons Attribution 4.0 International License.

Recommended Citation

Hathaway, James C. Interpretation of the Definition of 'Refugee' under Art. 1(A)(2) of the Convention Relating to the Status of Refugees, with a View to the Elaboration of a Community Instrument to Guide the Application of the Refugee Convention Pursuant to Art.63(1)(c) of the Treaty of the European Communities. Brussels: European Commission, 2001.