REFUGEE LAW IN THE ERA OF GLOBALIZATION

EMERGING ISSUES FOR THE TEACHING OF REFUGEE LAW

Interpretation and application of refugee law in real cases –

The precedent concept

Stefan Leonescu

Refugee field is a hybrid system of law, with various rules and approaches, while
missing an international mechanism of control and analysis. In the age of
globalization, the interpretation and application of legal provisions plays a
crucial role, thus supporting development of both doctrine and jurisprudence.
The case law proved to be an useful supplementary mean of interpretation,
together with other sources of law (i.e. traveaux preparatoires etc.), leading to
both understanding of legal provisions and extension of their limits of
application from/to other legal domains. In the effort of improving the state
practices, comparative studies of refugee case law highlighted common
standards and different approaches vis-à-vis refugee status determination
procedures or related procedures. Most of the states recently joining EU or
accession countries have developed a tremendous work in ruling on refugee
cases, although not in an integrated manner.

The need to build up internal mature systems and to adapt them to the regional
ones have somehow led to the application of the precedent concept, both on
national and international scales. The European principles evolved to its
implementation. The national level applies the sample from other domestic
courts (constitutional or other specialised courts), application of landmark
decisions within same or higher courts and references to similar cases.
Analogous, the international level employs jurisprudence of supranational
instances (i.e. ECHR, ECJ etc.), good practices etc. Anyhow, they all require
access to decisions and the key is jurisprudence databases. Correspondingly to
the use of country of origin information in motivation of decisions, analysis of
relevant jurisprudence should be enforced and largely used. General principles
and arguments used – opinion juris - in the field of human rights and specifically
refugee law can be universally invoked and quoted. Thus, non-biding
jurisprudence documentation and citation may represent the first step in the de
facto implementation of the precedent concept as support in improving
decision-making process. The examination may continue with criteria for
selection of relevant decisions, translation in a familiar language and
explanation of different procedural rules for both practitioners (i.e. IARLJ) and
scholars, leading to the development of a common asylum system.