Academic journal article Harvard Law Review

American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis

Academic journal article Harvard Law Review

American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis

Article excerpt

INTRODUCTION

The international refugee regime is one of the most frequently applied bodies of international law in domestic settings worldwide. (1) The 1951 Convention Relating to the Status of Refugees (2) (Convention) and its subsequent amendment, the 1967 Protocol Relating to the Status of Refugees (3) (Protocol)--instruments that are fairly short and drafted broadly, with many important clauses open for interpretation--govern this regime. (4) Sometimes differing domestic laws relating to the status of refugees in the 148 states party to the Convention or Protocol (5) have proliferated, including in the united States, where the legislature, agencies, and courts have translated language in the Convention into domestic law.

The entity that most resembles a supervisory body of the Convention is the office of the united Nations High Commissioner for Refugees (UNHCR). Not only has the UNHCR promulgated its own interpretations of various provisions of the Convention, but it has also presented its opinions to national courts dealing with specific controversies worldwide. The U.S. Supreme Court's treatment of the UNHCR's views has, on the whole, varied from explicitly attending to and ultimately agreeing with the UNHCR's reasoning all the way to ignoring it or even criticizing considerations of its views by other federal courts; but the current trend is toward less rather than more consideration.

In order to further the goal of a unified treaty regime and provide a more consistent message to the lower courts--and to people applying for asylum in this country and worldwide--the Supreme Court should adopt a more explicit standard of deference to the UNHCR. This Note argues that the UNHCR's key role in a treaty regime that Congress elected to join, as well as its substantial expertise in interpreting and implementing the Convention, suggest that U.S. courts should presume the correctness of the UNHCR's interpretations of text in U.S. law derived directly from the Convention, unless this interpretation clearly conflicts with other domestic law or the UNHCR's own positions.

This Note first sets out a brief background about the Convention and the UNHCR. Then, it discusses several of the most important Supreme Court cases involving judicial interaction with the UNHCR to show the current trend of minimal and inconsistent consideration and explains why this state of affairs is problematic. Last, it outlines justifications for deferring to the UNHCR, drawing from existing patterns of deference to domestic agencies and foreign sovereigns.

I. THE NATURE OF THE CONVENTION AND THE UNHCR

The Convention was adopted in 1951 and entered into force in 1954. (6) The Convention provides a definition of the term "refugee" (7) and sets out obligations toward refugees as regards their legal status and various rights, (8) including exemption from penalties for illegally entering a country. (9) It also prohibits expulsion or refoulement (return to the origin country) of refugees under most circumstances. (10) States party to the Convention "undertake to co-operate with the Office of the United Nations High Commissioner for Refugees ... in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention." (11)

The UNHCR has a mixed supervisory and operational character. (12) Its activities range from promoting accession to the Convention, to processing asylum applications itself in states that are unable or unwilling to do so, to researching and recommending legislation, to providing supplies and cash assistance to refugees, to prototyping aid projects related to education and technology. (13) The UNHCR has also consistently provided guidance as to the interpretation of the Convention by publishing an official Handbook (14) and other periodic reports dealing with specific factual situations and legal interpretations, (15) as well as by issuing advisory opinions in specific instances of domestic and regional litigation related to the implementation of the Convention. …

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