Transnational judicial dialogue harmonization and the Common European Asylum System

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Lambert, Helene

Increased policy harmonization on refugee matters in the European Union (EU), namely the creation of a Common European Asylum System (CEAS), has created the imperative for a transnational judicial comparative dialogue between national courts. This article is based on a structured, focused comparison approach to examining a key element of a transnational European legal dialogue, namely, the use of foreign law by national judges when making their own decisions on asylum. It does so by examining two countries, France and Britain, as representative of the difference in legal tradition and culture within the EU in terms of the civil–common law divide. Both case studies are structured around a common set of empirical and jurisprudential research questions. The empirical findings reveal a surprising lack of transnational use of national jurisprudence on asylum between judges. Nonetheless, a slight but noticeable increase in the use of transnational asylum jurisprudence in the British and French courts must be noted. Two broad accounts—one rational, the other cultural—are applied in each of the case studies to explain this empirical finding. This article concludes on the broader implications of these findings for the establishment of a CEAS by 2012.
  • References (62)
    62 references, page 1 of 7

    8 V Guiraudon 'European Court and Foreigners' Rights: A Comparative Study of Norms Diffusion' (2000) 34 Intl Migration Rev 4 1088-1125, 1107.

    9 A-M Slaughter (n 2) 121 and 127. On the use of comparative law in the UK since the HRA, see D McGoldrick 'The United Kingdom's Human Rights Act 1998 in Theory and Practice' (2001) 50 (4) ICLQ 901.

    10 AM North and J Chia, 'Towards Convergence in the Interpretation of the Refugee Convention: A Proposal for the Establishment of an International judicial Commission for Refugees' in J McAdam (ed) Forced Migration, Human Rights and Security (Hart Publishing, Oxford, 2008) 225-261.

    11 JC Hathaway The Rights of Refugees under International Law (Cambridge, Cambridge University Press, 2005) 1-2, see also 116. Referring in particular to A-M Slaughter (n 2) 99, and to the University of Michigan's Refugee Caselaw Site and the establishment of the International Association of Refugee Law Judges in 1995. See also, D E Anker 'Refugee Law, Gender, and the Human Rights Paradigm' (2002) 15 Harv Human Rts J 133, 136.

    12 H Storey 'The Advanced Refugee Law Workshop Experience: An IARLJ Perspective'(2003) 15 (3) Intl J Refugee L 423.

    13 Author's discussions with Dr Hugo Storey (Senior Judge at the Asylum and Immigration Tribunal, and member of the IARLJ).

    14 AL George, 'Case Studies and Theory Development: The Method of Structured, Focused Comparison' in PG Lauren (ed) Diplomacy: New Approaches in History, Theory and Policy (Free Press, New York, 1979) 43-68. Agenda for 2009', available at http://www.statewatch.org/analyses/eu-sw-analysis-2009-jhaagenda.pdf

    18 Brussels, 06/06/2007, COM (2007) 301, final. See also, the Hague Programme 'Strengthening Freedom, Security and Justice in the European Union' Presidency Conclusions, Brussels, 4-5 November 2004.

    19 Note that the original, formal deadline was 2010 but this has been postponed to 2012. European Pact on Immigration and Asylum, adopted at the Council of European Union Meeting in Brussels, 16 Oct 2008, D/08/14.

    20 Author's interview with Zeta Georgiadou and Doede Ackers (policy officers, European Commission, Directorate General Justice, Freedom and Security, Directorate Immigration, Asylum and Borders) Brussels, 27 June 2007.

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