National Case Law as a Generator of International Refugee Law
Professor Cecilia M. Bailliet has recently published an article entitled "National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within the UNHCR Guidelines on International Protection". Read the article in the Emory International Law Review.
International refugee law is characterized by its lack of an international refugee court to provide authoritative statements on the interpretation of the 1951 Convention on the Status of Refugees (1951 Refugee Convention). Instead, it relies on soft law guidelines provided by the United Nations High Commissioner for Refugees (UNHCR), case law emitted at the national level by refugee tribunals, administrative agencies and other courts; as well as decisions from international courts from other regimes, such as human rights or international criminal law.
In her paper, Bailliet explores the discrepancies in citation of national case law in the evolution of refugee law within the UNHCR Guidelines on International Protection. It is suggested that there is a dominance of common law/English-language national decisions. This dominance renders the UNHCR output subject to legitimacy challenges as it seeks to provide objective guidance on interpretation of the 1951 Refugee Convention. She concludes by calling for greater pluralism in the reference to national case law by the UNHCR in its soft law guidelines and policy documents in order to improve the legitimacy of international refugee law.