Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Confronting Complexity: Interpretation or Over-Interpretation?

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Confronting Complexity: Interpretation or Over-Interpretation?

Article excerpt

The interpretation and application of the 1951 Convention Relating to the Status of Refugees demands an approach which is consistent with general international law, whether it involves implementation through domestic legislation or in the judgments of courts and tribunals.

Since 1951--and since the mid-1970s especially--there has been a phenomenal growth in "refugee jurisprudence." UNHCR's Refworld database now holds over 10,000 decisions, which makes for a lot of "noise," out of which it can be hard to extract consistent and coherent lines of reasoning. Nevertheless, the primary focus remains the refugee definition, because satisfying its terms leads, in principle, to an international status and to protection. Moreover, although the 1951 Convention rarely mentions or speaks of rights, today we understandably do speak of refugee rights, such as the right not to be sent back to risk of persecution or other relevant harm, which is the reverse side of the state's duty of non-refoulement. And because rights are involved, correct interpretation becomes critical, requiring not just a measure of responsibility, but also an awareness and heightened sense of consequences. It is of concern, therefore, when perhaps well-intentioned rephrasing of treaty terms distorts meaning or focus, or when governments advance legally unsound interpretations with a view to limiting or avoiding their responsibilities.

Although some 148 states are now party to the 1951 Convention and/or the 1967 Protocol, there is no single body with the competence to pronounce with authority on the meaning of words, let alone their application in widely and wildly differentiated and evolving fact situations. In the first instance, it is therefore for each state party to implement its international obligations in good faith and, in its practice and through its courts and tribunals, to determine the meaning and scope of those obligations.

We begin with the words. As international lawyers, we take guidance from the general rule of treaty interpretation usefully codified in Article 31 of the 1969 Vienna Convention on the Law of Treaties, and from the supplementary means identified in Article 32. In particular, we come to the words of the refugee definition and interpret them in accordance with their ordinary meaning in context and in light of the object and purpose of the treaty in question. "Ordinary meaning" is important, because these are the words on which states have agreed, and which encapsulate international obligation.

Many states have incorporated their refugee obligations in municipal law, or use the refugee definition, in one way or another as the basis or criterion for asylum and non-removal policies. In the process of incorporation, some use the words of the Convention verbatim, while others may try to "improve" on the original, or variations may creep in through the accidents of the legislative process. Do any of these differences matter?

They can do, for practice shows that even apparently innocuous differences in wording can lead to deviations from the international standard. The test of compliance, however, remains the text of the treaty and its international meaning, so that domestic incorporation and application are to be judged in that light.

For example, the 1980 Refugee Act talks of being persecuted "on account of," not "for reasons of," race, religion, and so forth, and of membership "in," not "of," a particular social group. The differences may seem harmless, though the words "on account of" have in fact generated considerable forensic debate on the necessity for evidence of persecutory intent in the United States, which has not been replicated to the same extent in other jurisdictions using the language of "reasons." Why is not exactly clear.

However, it is not the varieties of the legislative language chosen to implement international legal standards which is the subject of these comments, interesting as they are. …

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