The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union.
The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, Edited by Guy S. Goodwin-Gill & Helene Lambert, Cambridge University Press, 2010. ($90.00).
The current financial crisis gripping Europe has brought international attention to the unity and divisions of the European Union (EU). In The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, (1) the authors examine European cooperation from a perspective different than that widely discussed in the media: cooperation between judiciaries. Transnational law has long been important in the European system. EU legislation now "directly or indirectly" influences as much as sixty percent of national law in member states. (2) Refugee law, (3) however, has not enjoyed such a degree of region-wide integration. Helene Lambert, one of the volume's editors, suggests that this might be because refugee policy is a "value-laden issue" wrapped up in societal values and political considerations, making foreign law seem more contentious and less relevant in national courts. (4)
Despite this aspect of refugee law, editors Lambert and Goodwin-Gill argue that it is ripe for transnational dialogue and cooperation. Firstly, unlike many other international treaties, the Convention Relating to the Status of Refugees (5)--the main international treaty governing refugee law--is not overseen by an international court with the authority to rule on the appropriate interpretation of the Convention. The opportunity for a vertical oversight is therefore limited, making horizontal (i.e., transnational) dialogue the key to a shared interpretation of the Convention. (6) Secondly, for more than a decade, the EU has stated its collective intention of refugee policy harmonization. The member states have agreed to work towards a Common European Asylum System (CEAS), which began with EU-issued Directives and Regulations on asylum matters. The second phase of the CEAS is expected to be completed in 2012. This book addressed the current extent of the transnational dialogue on asylum, and the likelihood that present harmonization efforts will in fact lead to a more coherent EU asylum system.
This volume presented case studies of nine EU member states. (7) The case studies are authored by academics, practitioners, and one judge in the field of refugee law. The editors contribute an introduction and conclusion. In her introduction, Lambert sets out the thesis--that transnational jurisprudence is essential but as yet lacking from national judicial decision making on asylum. Lambert joins other authors in their optimism that transnational activity in refugee law is increasing, (8) or that it will begin taking hold in the near future. (9)
The case studies shared a common analytic structure. Authors first outlined a descriptive and historical account of how asylum decisions are made in each country. Next, they assessed the extent to which each judicial system showed an inclination towards transnational activity. Such activity was largely conceptualized as reference to foreign jurisprudence in judicial opinions. (10) Authors addressed how much activity occurred, and when and where foreign case law was referenced by judges. Where little or no reference was found--as was often the case--the authors suggested reasons for its absence, and debated the possibility of "invisible traffic," whereby transnational activity does exist but is more difficult to track than citations in judicial opinions. (11) The methodology in the case studies ranged from interviews with asylum law practitioners (12) to quantitative analysis based on surveys of judges. (13) All case studies included some sort of systematic search of the country's available judicial opinions for reference to foreign jurisprudence.
The case studies revealed that transitional activity is either low or essentially nonexistent in most countries investigated. Only for the United Kingdom and Ireland did the authors describe such activity as fairly common. In the United Kingdom, however, judges drew almost entirely on "Anglo-Saxon jurisprudence" from the United States, Canada, New Zealand, and Australia, to the exclusion of EU member states. (14) Ireland showed similar tendencies, and referenced jurisprudence almost exclusively from other common (versus civil) law countries. Interestingly, while most countries' aversion to transnational activity went hand-in-hand with a general trepidation about applying international law, the Irish judiciary appeared comfortable invoking case law of foreign nations, but uncertain about utilizing international legal norms. The chapters about the United Kingdom and Ireland did not specify the total amount of referencing, but rather described it as happening "often." (15) As a point of comparison, Carlier and Vanheule described the number of references to foreign case law (three percent of all asylum decisions at the court of first instance and 0.28 percent at the appellate level) by Belgian judges as "very few." (16)
If referencing was found, the authors considered where and when it was being used. Some judges expressed a concern with creating consistency in the refugee definition. (17) Other referencing involved interpretations of potentially controversial aspects of the refugee definition, such as state protection, "well-founded fear," and persecution by non-state actors. The most common areas where judges drew from foreign case law were in application of the Dublin Convention (18) and factual issues. Such factual issues mostly included country conditions in countries of origin or third countries. (19)
To explain the low level of judicial referencing, the authors evaluated "rational" and "cultural" explanations. (20) Rational explanations represented the opportunity costs of researching and utilizing foreign materials. The cultural rationale included judicial mentality about how judgments were (and should be) made, and prevailing attitudes about the general usefulness of foreign law. Although not always explicitly laid out by the authors, structural explanations appear to be a third salient category.
Most authors concluded that rational explanations did not fully explain the lack of judicial references. Some authors did, however, consider language, (21) access, (22) and lack of training (23) to be obstacles affecting the amount of referencing. All authors cited time constraints as a probable obstacle. Time constraint pressures came from volume of cases, lack of administrative support, and restricted decision-making time owing to the substance of certain cases. (24) The authors generally agreed that this rational account provided an incomplete explanation for low transnational activity.
Regarding cultural obstacles, many authors thought that judicial mentality was determinative of whether references to foreign case law appeared in decisions. In Sweden, for example, jurists were "characterized by carefulness, pragmatism and loyalty towards the state." (25) In France, Lambert and Silga noted an increase in transnational activity when the presidency of the Refugee Appeals Board was taken over by a comparative lawyer.
In addition to personal characteristics, cultural aspects appeared important in determining how judges viewed the law and the purpose of written opinions. Such considerations affected the likelihood of using foreign case law. Messineo noted a conception of "law as a discovery of (legal) truth" whereby foreign interpretations would merely distract, rather than contribute to interpretation. (26) Jurists in Germany described foreign case law as relevant, but not any more relevant or necessary than other sources of law. Some authors suggested that differences in history of immigration and national systems of asylum made foreign case law seem irrelevant, despite the relatively recent political unity of the EU. Even in Ireland, where foreign case law was often cited, national law has recently taken precedence: as the Irish judiciary developed more of its own refugee jurisprudence, fewer foreign references were made. The authors agreed that cultural reasons explained much about the lack of transnational activity.
Lastly, many structural reasons were used to explain the low levels of judicial referencing. The limited role of precedent in civil law countries proved an impediment to judicial referencing, since judges are generally not required to rely on precedent or cite it. Furthermore, some countries' judiciaries encouraged judges to write very short, concise, and prescribed opinions, which involved little explicit reasoning. Authors also raised some issues specific to the structure of refugee law. For instance, asylum opinions were often fact-heavy. Credibility was emphasized over interpretation of the refugee definition, which some judges considered so broad as to not require much argument. Vedsted-Hansen also noted that there was less transparency in asylum decisions in comparison to other parts of Danish law because of the degree of political attention attached to asylum and immigration issues, making refugee law "less susceptible to tendencies of internationalization" than the rest of the judiciary. (27) A final structural issue concerned the relationship between national and international law within each country. Some countries had pre-existing national refugee laws in addition to obligations under the Refugee Convention. (28) Such a "two-worlds doctrine" appeared to provide these countries a greater degree of discretion in interpreting the refugee definition, (29) even though a single definition should in theory bind all member states. The authors generally agreed that cultural and structural explanations were most important in determining the low level of judicial referencing of foreign case law.
Although this volume focused on judicial referencing, the authors debated the existence and extent of other forms of transnational activity. Although some authors were skeptical of such a possibility, (30) other authors provided examples of where such "invisible traffic" might occur. For example, in the United Kingdom, Lambert found references to general foreign practices without citation to specific foreign case law. Similarly, academic writing influencing judicial opinions may have incorporated foreign legal norms, however case law was not evident in citations. Lambert and Silga pointed to internal French judicial documents which were "inspired by foreign jurisprudence" (31) Vedsted-Hansen noted visits by other countries' "asylum authorities." (32) At times authors appeared to reach beyond the concept of transnationalism in order to find some activity to discuss. (33) The extent of transnational activity through the above and similar channels was a point of disagreement.
The final chapter of the volume offers an in-depth discussion of judicial reference to foreign jurisprudence in the context of complex issues surrounding international law and the Refugee Convention itself. Goodwin-Gill raises questions regarding which foreign jurisprudence should be used in national courts and how it should be utilized. He concluded that the ensuing ambiguity was a significant barrier to a well-functioning transnational system. As an illustration of these issues, the chapter tracked an ongoing discussion in U.K. courts regarding interpretation and application of the Refugee Convention. Goodwin-Gill also pointed out the potential (and limitations) of UNHCR to promote harmonization surrounding a common interpretation of the Refugee Convention. Finally, this chapter made the strongest case for why a more substantial transnational dialogue in refugee law is important for the EU. In addition to being politically important, transnational policy harmonization "need[s] to be addressed in the interests of local and regional goals, and [for] the international legal regime of refuge protection ... to remain responsive and effective." (34) This volume highlights important issues for the EU as a political entity, and for the future effectiveness of international refugee protection efforts. These are issues to watch as the region is threatened by increased fragmentation.
(1) THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION (Guy S. Goodwin-Gil & Helene Lambert eds., 2010).
(2) Helene Lambert, Transnational Law, Judges and Refugees in the European Union, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 1, 16 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010) (quoting Basil Markesinis & Jorg Fedtke, The Judge as Comparatist, 80 TUL. L. REV. 11, 77 (2005)).
(3) This term appears to be used interchangeably with asylum law.
(4) Lambert, supra note 2, at 16 (quoting BASIL MARKESINIS & JORG FEDTKE, JUDICIAL RECOURSE TO FOREIGN LAW 137-38 (2006)).
(5) Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 [hereinafter Refugee Convention].
(6) Editor Goodwin-Gill further illustrated this point in his final chapter: "By referring to each other's interpretation of shared text, they may not only signal readiness to cooperate, but also to a certain extent impede the future retreat of one of them from the shared interpretation: as courts carefully watch each other, the one that backs away has to offer an explanation to its peers." Guy S. Goodwin-Gill, The Search for the One True Meaning, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 204, 218 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010) (quoting Eyal Benvenisti, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AM. J. INT'L L. 241, 252 (2008)).
(7) Belgium, France, Germany, Italy, Spain, the United Kingdom, Ireland, Denmark, and Sweden
(8) In the United Kingdom, for instance, a small hut increasing number of appellate courts are requesting that advocates use foreign case law in their arguments.
(9) For example, author Vedsted-Hansen predicted that increasing European influence in Denmark will positively affect transnational activity in the Danish asylum system. For Sweden, author Stern suggested that a growing domestic interest in refugee law will spur more transnational dialogue.
(10) The authors also discussed judicial references to international treaties, tribunals, and publications of the United Nations High Commissioner for Refugees (UNHCR); however, the focus of the volume was on dialogue directly between national courts.
(11) Lambert, supra note 2, at 10.
(12) See Francesco Messineo, The Solipsistic Legal Monologue of Italian Authorities, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 85, 104 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010).
(13) See Paul Tiedemann, The Use of Foreign Asylum Jurisprudence in the German Administrative Courts, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 57, 73-74 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010). Such analysis did not include statistical testing or evaluations of significance, and the response rate to questionnaires was admittedly low and likely biased. See id. at 74-78. The results are however informative in showing a larger survey of judges than any other case study included herein, and some of the individual comments received revealed interesting perspectives. See id. at 76-78.
(14) Helene Lambert & Raza Husain, The British Judiciary and the Search for Reciprocal Relations with its Continental Partners, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 125, 131 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010).
(15) See id.
(16) See Jean-Yves Carlier & Dirk Vanheule, Where is the Reference? On the Limited Role of Transnational Dialogue in Belgian Refugee Law, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 17, 25 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010).
(17) This was evident, for example, in Belgium, Ireland, and the United Kingdom.
(18) See Lambert & Husain, supra note 14, at 139 ("When such referencing happens, it takes place mostly in the context of the application of the Dublin Convention/Dublin II Regulation (that is, when considering the likely conduct of a court in a third country)....").
(19) For example, Danish courts referred to foreign jurisdictions in considering countries where the asylum seeker had been, or where "family members, friends, political or organizational associates ... were staying." Jens Vedsted-Hansen, The Absence of Foreign Law in Danish Asylum Decisions--Quasi-Judicial Monologue with Domestic Policy Focus?, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE 1N THE EUROPEAN UNION 170, 177 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010). Irish judges used foreign materials to assess risk in countries of origin.
(20) Lambert, supra note 2, at 12.
(21) Authors discussed language as a barrier in, for example, the United Kingdom and Sweden.
(22) "Access" problems included limited access to foreign case law itself (e.g., in Germany) and access to meetings of the International Association of Refugee Law Judges (IARLJ) (e.g., in Spain).
(23) Such training obstacles ranged from limited training of those who make asylum decision in comparative law (e.g., in Ireland) to lack of specialization (e.g., in Denmark) to complete lack of training in law (e.g., in France and Sweden).
(24) In France, for example, judges have only ninety-six hours to come to a decision when the asylum seeker is put in detention.
(25) Rebecca Stem, Foreign Law in Swedish Judicial Decision-Making, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE IN THE EUROPEAN UNION 186,200 (Guy S. Goodwin-Gil & He1ene Lambert eds., 2010) (quoting A. Peczenik, Lagstiftningen, domstolarna, rattsmedvetandet och rattsvetenskapen, in SOU: LOSER JURIDIKEN DEMOKRATINS PROBLEM? 58 (1999)).
(26) Messineo, supra note 12, at 88 (quoting A. Baldassarre, La Corte costituzionale italiana e il metodo comparativo, 2 DIRITTO PUBBLICO COMPARATO ED EUROPEO, 983 (2006)).
(27) Vedsted-Hansen, supra note 19, at 183.
(28) In France and Italy for example, a right to asylum appeared in the constitution.
(29) Tiedemann, supra note 13, at 80.
(30) Author Tiedemann, a German administrative judge, thought it unlikely that German judges would fail to cite if their decisions were in fact influenced by foreign jurisprudence.
(31) Helene Lambert & Janine Silga, Transnational Refugee Law in the French Courts: Deliberate or Compelled Change in Judicial Attitudes?, in THE LIMITS OF TRANSNATIONAL LAW: REFUGEE LAW, POLICY HARMONIZATION AND JUDICIAL DIALOGUE 1N THE EUROPEAN UNION 35, 48 (Guy S. Goodwin-Gil & Helene Lambert eds., 2010).
(32) Vedsted-Hansen, surpa note 19, at 183.
(33) The multi-state process of "vertical" international law, for instance, was described as a potential source of transnational activity; however, this appears to blur the distinction between international and transnational activity. See Messineo, supra note 12, at 88.
(34) Goodwin-Gill, supra note 6, at 240.