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THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES AND THE SOURCES OF INTERNATIONAL REFUGEE LAW

Published online by Cambridge University Press:  13 January 2020

Guy S. Goodwin-Gill Open the ORCID record for Guy S. Goodwin-Gill [Opens in a new window]
Guy S. Goodwin-Gill*
Affiliation:
Professor of Law, University of New South Wales and Kaldor Centre for International Refugee Law, UNSW; Emeritus Fellow, All Souls College, Oxford; g.goodwin-gill@unsw.edu.au.
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Abstract

The role of international organisations in international law-making tends to be downplayed in this largely State-centric world. The practice of UNHCR, however, is reason enough for a more sophisticated appreciation of the role that operational entities can play in stimulating State practice, and of how they may interact with and guide domestic courts in treaty interpretation and application. The ILC's recently completed projects on customary international law and subsequent agreements and practice encourage a cautious approach, but the high degree of judicialisation in refugee decision-making, the strong legal content in the international protection regime and the impact of UNHCR's operational activities open the way for institutional and grass-roots developments, keeping the law in closer touch with social and political realities and with the needs of those displaced.

Keywords

public international lawsourcesUNHCRtreatiesinterpretationrefugeesmunicipal lawinternational law commissiondomestic courtsinternational organisations
Type
Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 1 , January 2020 , pp. 1 - 41
Copyright
Copyright © The Author (2020). Published by Cambridge University Press for the British Institute of International and Comparative Law.

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Footnotes

This article originated in a short course given in 2016 at the European University Institute, Florence. The author extends his thanks and appreciation to Professor Bhuta Nehal and the Institute for the opportunity to focus on these ideas, to colleagues and students at the Refugee Studies Centre, Oxford and here at UNSW for listening and contributing as they developed, and to this journal's reviewers for some very helpful suggestions.

References

1 See UNGA res. 73/203, ‘Identification of Customary Law’ (20 December 2018); Report of the International Law Commission: UN doc A/73/10 (2018); UN GAOR, 73rd Sess, Suppl No 10, Ch V (hereafter, ILC Report 2018, Ch V, ‘Identification of Customary International Law’); UNGA res. 73/202, ‘Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties’ (20 December 2018); Report of the International Law Commission: UN doc A/73/10 (2018), UN GAOR, 73rd Sess, Suppl No 10, Ch IV (hereafter, ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’).

2 Sarooshi, D, ‘The Legal Framework Governing United Nations Subsidiary Organs’ (1996) 67 BYBIL 413Google Scholar, 415: <https://doi.org/10.1093/bybil/67.1.413>. Sarooshi quotes Cot and Pellet (ibid 439): ‘Un organe subsidaire est créé par une manifestation de volonté de l'organe principal, quelque soit la dénomination précise de la mesure prise – résolution, recommandation, décision’ (emphasis in original: J-P Cot and A Pellet (eds), La Charte des Nations Unies (Economica 1985) 212).

3 See Articles 7, 22 and 68, UN Charter; also Higgins, R et al. , Oppenheim's International Law: United Nations (Oxford University Press 2017)Google Scholar Ch 6, ‘Subsidiary Organs’, 152, 159–60.

4 ECOSOC res. 248(IX), 6 August 1949 (emphasis added).

5 ibid.

6 UNGA res. 319(IV), ‘Refugees and Stateless Persons’ (3 December 1949); Annex, para 1. Also: UNGA res. 8(I) (12 February 1946).

7 Repertory of Practice of United Nations Organs. Charter of the United Nations, Ch IV, ‘The General Assembly’, art 22, vol 1 (1945–1954) 703, 726–7: <http://legal.un.org/repertory/art22.shtml>; Higgins et al., Oppenheim's United Nations (n 3) 162; Sarooshi, ‘Legal Framework’ (n 2) 416–17, 433; Lippold, M and Paulus, A, ‘Organs, Article 7’ in Simma, B et al. , The Charter of the United Nations: A Commentary, vol I, (3rd edn, Oxford University Press, 2012) 395–6Google Scholar.

8 Compare the views respectively of Eleanor Roosevelt (USA) and M Rochefort (France) in the Third Committee in November 1949, cited in ‘United Nations High Commissioner for Refugees: Election or Appointment?’ (1991) 3 IJRL 120–4.

9 Repertory of Practice (n 7) 667, paras 16–17; 669, para 26. According to Higgins et al., Oppenheim's United Nations (n 3) 188, the term ‘operational agencies’ fell out of use in the mid-1980s. The normative relevance of the operational dimension nevertheless remains.

10 Repertory of Practice (n 7) 669, para 25; Higgins et al., Oppenheim's United Nations (n 3) 161.

11 Repertory of Practice (n 7) 688, paras 109–111.

12 D-E Khan, ‘The General Assembly, Procedure, Article 22’ in Simma et al., The Charter of the United Nations (n 7) 721, 729.

13 Khan, ‘Article 22’ ibid 729, 731; Higgins et al., Oppenheim's United Nations (n 3) 163, 188–90. cf Venzke, I, How Interpretation Makes International Law: On Semantic Change and Normative Twists (Oxford University Press 2012)CrossRefGoogle Scholar Ch. III, ‘UNHCR and the Making of Refugee Law’ 72–134, who emphasises the ‘authority of international bureaucracies’: ibid 74.

14 cf Lippold and Paulus, ‘Organs, Article 7’ (n 7) 410: ‘Once established the subsidiary organ becomes part of the Organization. The legal personality of the UN that derives from Art. 104 extends to subsidiary organs … It does not possess a legal personality distinct from the parent organ and the UN, since it remains dependent on the parent principal organ.’ Also Khan, ‘Article 22’ (n 12) 721; Higgins et al., Oppenheim's United Nations (n 3) 190.

15 UNGA res. 42 (V) (14 December 1950) para 2(b); Annex, Statute of the Office of the United Nations High Commissioner for Refugees (‘UNHCR Statute’) para 8.

16 UNHCR Statute, para 16.

17 ibid, para 10; UNGA resolutions 538 (VI)B (2 February 1952) para 1; 832(IX) (21 October 1954) para 3.

18 UNHCR Statute, para 3.

19 ibid, para 9.

20 UNGA res. 58/153, ‘Implementing actions proposed by the United Nations High Commissioner for Refugees to strengthen the capacity of the Office to carry out its mandate’ (22 December 2003) para 9. See also UNHCR Statute, para 5; on its first review, the General Assembly decided on a further five-year period, and that the High Commissioner should also be elected for five years: UNGA res. 727 (VIII), ‘Prolongation of the Office of the United Nations High Commissioner for Refugees’ (23 October 1953) paras 1, 2.

21 UNHCR Statute, para 11; see also, UNGA res. 58/153 (n 10) para 10.

22 UNHCR Statute, para 13; ‘United Nations High Commissioner for Refugees: Election or Appointment?’ (1991) 3 IJRL 120-4.

23 UNHCR Statute, paras 14, 15.

24 ibid, paras 18, 20. The Office is nevertheless subject to the UN's financial rules and regulations, and to UN audit: ibid. paras 21, 22. cf Sarooshi, ‘An Entity Which Exercises Exclusive Control over Its Finances Cannot Be Considered a UN Subsidiary Organ’: ‘Legal Framework (n 2) 473.

25 Sarooshi, ‘Legal Framework’ (n 2) 447–58; Khan, ‘Article 22’ (n 12) 736.

26 Goodwin-Gill, GS and McAdam, J, The Refugee in International Law (3rd edn, Oxford University, 2007) 23–32Google Scholar, 428–36; see further below, and also UNHCR, Division of International Protection, ‘Note on the Mandate of the High Commissioner for Refugees and His Office’ (October 2013) <https://www.unhcr.org/uk/protection/basic/526a22cb6/mandate-high-commissioner-refugees-office.html>.

27 Alvarez, JE, International Organizations as Law-makers (Oxford University Press 2005) 595–6Google Scholar; Alvarez, JE, The Impact of International Organizations on International Law (2017) 346CrossRefGoogle Scholar, Ch VI, ‘Three Challenges Posed by International Organizations’.

28 For example, in the reception of refugees and asylum seekers, in the determination of refugee status, and in the promotion of solutions from local integration, third country resettlement, alternative pathways to protection, through to voluntary repatriation,

29 Through its direct or indirect participation in the judicial process, UNHCR can thus contribute to the process by which courts assist States to recognise and internalise rules: Koh, HK, ‘Why Do Nations Obey International Law?’ (1997) YaleLJ 2599Google Scholar.

30 UNHCR Statute, para 1.

31 ibid, para 4.

32 ECOSOC res. 393B(XIII) (10 September 1951).

33 ECOSOC res. 565(XIX) (31 March 1955) adopted further to the General Assembly's request in UNGA res. 832(IX) (21 October 1954) para 4.

34 ‘The Executive Committee of the Programme of the United Nations High Commissioner for Refugees’.

35 ECOSOC res. 672(XXV) (30 April 1958) further to UNGA res. 1166(XII), ‘International assistance to refugees within the mandate of the United Nations High Commissioner for Refugees’ (26 November 1957) para 5. Repertory of Practice of United Nations Organs. Charter of the United Nations Ch. X, ‘The Economic and Social Council, Article 68’ Supp No 1, vol 2 (1954–1955) 121, para 5; 123, para 11; Supp No 2, vol 3 (1955–59) 141, para 3; 144, para 15; 152, para 47; Supp No 3, vol 2 (1959–1966) 435 (n 46); 439 (n 111): <https://legal.un.org/repertory/art68.shtml>.

36 UNGA res. 1166(XII) (n 35) para 5.

37 ibid, para 5(b).

38 UNGA res. 1673(XVI), ‘Report of the United Nations High Commissioner for Refugees’ (18 December 1961) para 1; UNGA res. 1783(XVII), ‘Continuation of the Office of the United Nations High Commissioner for Refugees’ (7 December 1962) para 2.

39 ECOSOC res. 672(XXV) para 5. On the form and content of the High Commissioner's reporting, see UNGA res. 58/153, ‘Implementing actions proposed by the United Nations High Commissioner for Refugees to strengthen the capacity of his Office to carry out its mandate’ (22 December 2003) para 10.

40 Originally comprising 24 members, the Executive Committee has been progressively enlarged to its present (2019) membership of 102; see UNGA res. 72/151, ‘Enlargement of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees’ (19 December 2017); see further <https://www.unhcr.org/executive-committee.html>. As a purely academic issue, and one of little if any organisational relevance, the Executive Committee probably occupies a position of hybrid subsidiarity, sitting somewhere between ECOSOC and the General Assembly: Repertory of Practice (n 35) Supp No 3, vol 2 (1959–1966) refers to it as a body ‘not subsidiary to the Council’, but as one reporting to the Council which then transmits its reports to the General Assembly: 439, note 111.

41 Report of the 26th Session (1975): UN doc A/AC.96/521, para 69(h) in ‘Addendum to the Report of the United Nations High Commissioner for Refugees’ UNGAOR, 30th Sess, Suppl No 12A (A/10012/Add.1); Report of the 27th Sess (1976): UN do. A/AC.96/534 (20 October 1976) paras 51–87.

42 The substantive content of conclusions weakened around the turn of the century; see UNHCR, A Thematic Compilation of Executive Committee Conclusions (7th edn, UNHCR, Geneva, June 2014): <https://www.unhcr.org/53b26db69.pdf>; also J Sztucki, The Conclusions on the International Protection of Refugees adopted by the Executive Committee of the UNHCR Programme’ (1989) 1 IJRL 285; Hurwitz, A, The Collective Responsibility of States to Protect Refugees (Oxford University Press 2009) 252–64CrossRefGoogle Scholar.

43 See Report of the 46th Session: UN doc A/AC.96/860 (23 October 1995) para 32.

44 UNGA res. 73/151, ‘Office of the United Nations High Commissioner for Refugees’ (17 December 2018) para 3; see also UNGA res. 71/172 (19 December 2016) para 3.

45 As provided in the UNHCR Statute, para 4.

46 Lauterpacht, E and Bethlehem, D, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’ in Feller, E, Türk, V and Nicholson, F (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press 2003) 87Google Scholar, 148 (para 214). See also Heller, KJ, Specially-Affected States and the Formation of Custom’ (2018) 112 AJIL 191CrossRefGoogle Scholar; Lewis, C, ‘UNHCR's Contribution to the Development of International Refugee Law: Its Foundations and Evolution’ (2005) 17 IJRL 67CrossRefGoogle Scholar.

47 Feller and Klug note the Executive Committee's ‘growing influence’ over day-to-day management and policy work, which some see as a threat to independence, the tension now attaching to UNHCR's role in generating protection conclusions, and the difficulty in building consensus as a consequence of the extended membership: E Feller and A Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ in Max Planck Encyclopedia of Public International Law (online) (January 2013) paras 23, 27 and 28: <http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e530>.

48 Higgins et al., Oppenheim's United Nations (n 3) Ch 23, ‘Office of the United Nations High Commissioner for Refugees’ 879, 884–5; Feller & Klug, ‘Refugees, United Nations High Commissioner for (UNHCR)’ (n 47) para 25. cf Whaling in the Antarctic (Australia v Japan; New Zealand intervening) [2014] ICJ Rep 226, 247, para 46 (within the scheme of the International Whaling Convention, resolutions adopted by the International Whaling Commission by consensus or unanimous vote, ‘may be relevant for the interpretation of the Convention or its Schedule’).

49 See generally, Moreno-Lax, V and Papastavridis, E (eds), ‘Boat Refugees’ and Migrants at Sea: A Comprehensive Approach (Brill Nijhoff 2017)CrossRefGoogle Scholar; Mann, I, Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge University Press 2016)CrossRefGoogle Scholar.

50 See, for example, art 2, 1966 International Covenant on Civil and Political Rights: 999 UNTS 171; art 1, 1950 European Convention on Human Rights: ETS 5; 213 UNTS 221; art 1, 1969 American Convention on Human Rights: OAS Treaty Series No 36; 1144 UNTS 123; as well as the rules of customary international law on the responsibility of States for internationally wrongful acts.

51 See arts 29–32, 95–96, 1982 UN Convention on the Law of the Sea: 1833 UNTS 3.

52 1974 International Convention for the Safety of Life at Sea, as amended: 1184 UNTS 18961.

53 1979 International Convention on Maritime Search and Rescue, as amended: 1405 UNTS 97.

54 See arts 2(b), 6, 7, 14(1) 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime: 2237 UNTS 319; arts 16, 18(7), (8), 19(1), 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime: 2241 UNTS 507.

55 Including, for example, UNHCR Executive Committee Conclusion No 20 (XXXI) (1980), ‘Protection of Asylum Seekers at Sea’; and Conclusion No 23 (XXXII) (1981), ‘Problems related to the Rescue of Asylum Seekers in Distress at Sea’.

56 International Maritime Organization, ‘Principles Relating to Administrative Procedures for Disembarking Persons Rescued at Sea’ (22 January 2009) FAL.3/Circ.194.

57 For example, Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC: OJ L 251/1, 16.9.2016; Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code): OJ L 77/1, 23.3.2016; Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union: OJ L 189/93, 27.6.2014.

58 See, for example, the decisions of the European Court of Human Rights in Medvedyev v France, Appl no 3394/03 (10 July 2008) and Hirsi Jamaa v Italy, Appl no 27765/09 (23 February 2012).

59 This formulation already and intentionally introduces a contested category, ‘serious harm’, which the sources may help to define and describe, and thereby confirm, or not, the corresponding obligations of States.

60 Although ‘status’ is very much the province of the 1951 Convention/1967 Protocol, the sources may confirm, for example, that the ‘refugee’ exists in general international law, beyond or beside the particular treaties, and that he or she is entitled to the benefit of certain rights and/or ought to be treated in light of that other status.

61 Such procedures are often the ‘gateway’ to asylum and thus one of the State's mechanisms for control over the movement of people; neither goal tends to be achieved efficiently or expeditiously. Extensive practice in the judicial field has led to the creation of a specialised, ‘professional’ body, the International Association of Refugee and Migration Judges: <https://www.iarmj.org/>.

62 See, for example, D Daly, ‘Refugee and Non-Refoulement Law in Hong Kong: The Introduction of the Unified Screening Mechanism’ Hong Kong Lawyer: <http://www.hk-lawyer.org/practice-areas/immigration>.

63 Methymaki, E and Tzanakopoulos, A, ‘Sources and the Enforcement of International Law: Domestic Courts – Another Brick in the Wall?’ in d'Aspremont, J and Besson, S (eds), The Oxford Handbook of the Sources of International Law (Oxford University Press 2017) 812, 820–2Google Scholar.

64 IB Wuerth, ‘Sources of International Law in Domestic Law: Domestic Constitutional Structures and the Sources of International Law’ in d'Aspremont and Besson, The Oxford Handbook of Sources (n 63) 1119, 1126.

65 Methymaki and Tzanakopoulos (n 63) 832; White, ND, ‘Lawmaking’ in Cogan, JK, Hurd, I, and Johnstone, I, The Oxford Handbook of International Organizations (Oxford University Press 2016) 559Google Scholar, 562, 578.

66 S Besson, ‘Sources of International Human Rights Law: How General is General International Law?’ in d'Aspremont and Besson, The Oxford Handbook of Sources (n 63) 837, 856–7: ‘Customary international human rights law is … best appreciated as a bottom-up process of international law-making based on domestic human rights practice and constraining that practice in return.’ See also White (n 65) 564–5; Goodwin-Gill, GS, ‘The Dynamic of International Refugee Law’ (2013) 25 IJRL 651, 656–7CrossRefGoogle Scholar.

67 Alvarez, The Impact of International Organizations (n 27) 396.

68 UNHCR Statute, para 8(a). On UNHCR's contribution to treaty-making, see Goodwin-Gill, GS, ‘United Nations Treaty-Making: Refugees and Stateless Persons’ in Chesterman, S, Malone, D and Villalpando, S (eds), Oxford Handbook of United Nations Treaties (Oxford University Press 2019) 427Google Scholar.

69 Art 35, 1951 Convention; art II, 1967 Protocol. On closer cooperation with UNHCR, see ‘Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees’, doc HCR/MMSP/2001/09 (16 January 2002) paras 8, 9. See further, Türk, V, ‘The UNHCR's Role in Supervising International Protection Standards in the Context of Its Mandate’ in Simeon, J (ed) The UNHCR and the Supervision of International Refugee Law (Cambridge University Press 2014) 39Google Scholar; Zieck, Z, ‘Article 35 of the 1951 Convention/Article II of the 1967 Protocol’ in Zimmerman, A (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) 1511Google Scholar; W Kälin, ‘Supervising the 1915 Convention relating to the Status of Refugees: Article 35 and Beyond’ in Feller, Türk and Nicholson, Refugee Protection in International Law (n 46) 613.

70 cf Certain Expenses of the United Nations, Advisory Opinion, (1962) ICJ Rep 151, Judge Spender, Separate Opinion, 195, cited in Higgins et al., Oppenheim's United Nations (n 3) 162.

71 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva 1979). The Handbook was reissued in 2019, together with 13 ‘Guidelines on International Protection’: HCR/1P/4/ENG/REV.4. For background, see Goodwin-Gill, GS, ‘The Search for the One, True Meaning …’ in Goodwin-Gill, GS and Lambert, H (eds), The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union (Cambridge University Press 2010) 204CrossRefGoogle Scholar.

72 In reference to Conclusion 5: ‘Conduct as subsequent practice’, the ILC identified the UNHCR Handbook as potentially very important, so far as it was, ‘prepared on the basis of a mandate to provide accounts on State practice in a particular field’: ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 40.

73 Report of the 28th Session (1977): UN doc A/AC.96/549 (19 October 1977) para 36; Executive Committee Conclusion No. 8 (1977) (XXVIII) ‘Determination of Refugee Status’: ibid, para 53.

74 <https://www.refworld.org/>.

75 See above (n 69).

76 ‘Agenda for Protection’, UN doc A/AC.96/965/Add.1, 1 (26 June 2002), endorsed by the Executive Committee, ‘Report of the Fifty-Third Session of the Executive Committee of the High Commissioner's Programme’: UN doc A/AC.96/973 (8 October 2002) para 21. See generally Feller, Türk and Nicholson, Refugee Protection in International Law (n 46).

77 See generally, Türk, V, ‘The Role of UNHCR in the Development of International Refugee Law’ in Nicholson, F and Twomey, P (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press 1999) 153Google Scholar; Lewis, C, UNHCR and International Refugee Law: From Treaties to Innovation (Taylor and Francis 2012)CrossRefGoogle Scholar.

78 Protection guidelines issued so far cover claims based on or related to gender, social group, religion, sexual orientation, military service, and armed conflict, as well as cessation of refugee status, the internal flight alternative, exclusion, prima facie recognition of status, trafficking, asylum claims by children, and the applicability of art 1D: UNHCR Handbook (2019) (n 71). In UNHCR also issues specific guidance (‘eligibility guidelines’) on particular groups of asylum seekers in the light of international refugee law and country of origin conditions, which may contribute incrementally to the body of relevant practice. See, for example, UNHCR, ‘Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan’ (30 August 2018) doc HCR/EG/AFG/18/02: <https://www.refworld.org/docid/5b8900109.html>.

79 As noted in one UK decision, careful consideration needs to be given to the reasoning of courts of other jurisdictions and while considerable weight should be given to an interpretation which has received general acceptance, a ‘discriminating approach’ will be called for if decisions conflict. See Lord Hope in King v Bristow Helicopters Ltd (Scotland) [2002] UKHL 7, para 81 (cited in ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 57–8).

80 The Human Rights Committee is made up of elected members who serve in their personal capacity, being persons of ‘high moral character and recognized competence in the field of human rights’: Article 28 ICCPR66. See also <https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx>.

81 Human Rights Committee, ‘Working Methods. IX. General Comments/Recommendations’: <https://www.ohchr.org/EN/HRBodies/CCPR/Pages/WorkingMethods.aspx>; for the comments of all the treaty bodies, see <https://www.ohchr.org/EN/HRBodies/Pages/TBGeneralComments.aspx>. See also Keller, K and Grover, L, ‘General Comments of the Human Rights Committee and their legitimacy’ in Keller, H and Ulfstein, G (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press 2012) 116CrossRefGoogle Scholar.

82 Bailliet, CM, ‘National Case Law as a Generator of International Refugee Law: Rectifying an Imbalance within UNHCR Guidelines on International Protection’ (2015) 29 Emory International Law Review 2059Google Scholar. See further below.

83 UNHCR, Guidelines on International Protection No. 12, ‘Claims for refugee status related to situations of armed conflict and violence under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees and the regional refugee definitions’: HCR/GIP/16/12 (2 December 2016); Guidelines on International Protection No. 13, ‘Applicability of Article 1D of the 1951 Convention relating to the Status of Refugees to Palestinian Refugees’: HCR/GIP/17/13 (December 2017); Guidelines on International Protection No. 14, ‘Non-penalization of refugees on account of their irregular entry or presence and restrictions on their movements in accordance with Article 31 of the 1951 Convention relating to the Status of Refugees’: HCR/GIP/XX/14 (forthcoming). The last-mentioned had not been published at the time of writing, but the author had seen the near-final draft.

84 Goodwin-Gill, GS, ‘Editorial: The Dynamic of International Refugee Law’ (2013) 25 IJRL 651, 656–7CrossRefGoogle Scholar.

85 It therefore seems unlikely that, as Bailliet argues, ‘increased pluralistic references to national case law’ will come up with a ‘truly global assessment of protection standards as they evolve within refugee law tribunals around the world’ (n 82) 2079.

86 Such a paper could provide examples of the problem, of different approaches in different jurisdictions (drawing on case law, legislation and practice), of academic and other stakeholder comment, and of comparable questions in related disciplines, such as detention from a human rights or international humanitarian law perspective. At this and every stage, all due emphasis is required on the highest standards of scholarship.

87 There are resource implications at all stages, and internet-based solutions may provide viable alternatives.

88 See the discussion of MA (Somalia) and Youssef below.

89 See, for example, K and Fornah v Secretary of State for the Home Department [2007] 1 AC 412, [2006] UKHL 46, per Lord Bingham (para 15): the UNHCR Guidelines [on social group] were ‘clearly based on a careful reading of the international authorities, provide a very accurate and helpful distillation of their effect’. Usage varies between States. cf Jastram, K, ‘Left Out of Exclusion: International Criminal Law and the “Persecutor Bar” in US Refugee Law’ (2014) 12 JICJ 1183Google Scholar, 1195, noting that UNHCR's Handbook is hardly ever referenced in the US, and that its Guidelines on exclusion were not mentioned, even in passing, in over 100 US exclusion cases.

90 See, for example, M.M. v The Netherlands, Appl no 15993/09, Third Section (19 June 2017); A.G R. v The Netherlands, Appl No. 13442/08, Third Section (12 January 2016); Final (6 June 2016).

91 A.G R. v The Netherlands (n 90) paras 53, 54. See also Ilias and Ahmed v Hungary, Appl no 47287/15, Fourth Section (14 March 2017) paras 116, 125. This case was referred to the Grand Chamber on 18 September 2017, and a hearing was held on 18 April 2018: European Court of Human Rights, Press Release ECHR 150 (2018), 18.04.2018.

92 UNHCR, Guidelines on International Protection No. 5, ‘Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’: HCR/GIP/03/05 (4 September 2003) para 29.

93 A.A.Q. v The Netherlands, Appl No. 42331/05, Third Section (30 June 2015) para 46. See also M.M. v The Netherlands (n 90) para 140. cf J.K. and others v Sweden, Appl no 59166/12, Grand Chamber (23 August 2016) paras 52–54, 73 (referring to the Government's view that, ‘the UNHCR Handbook was an important source of law and the UNHCR reports and recommendations an important source of guidance which, however, had to be balanced against information about the situation in a given country’; also, paras 96–98 (the Court recognising UNHCR's views on the burden and standard of proof). In HF (Iraq) v Secretary of State for the Home Department [2013] EWCA Civ 1276, the Court acknowledged the ‘considerable respect' due to UNHCR material, but declined to confer any special evidential status on its eligibility guidelines, questions of weight being for the Court’: para 43. Cf. Hany El-sayed El-sebai Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933, where the Court referred expressly to the exclusion guidelines, noted the authority of the Handbook, and agreed with UNHCR's position on the ‘high threshold’ for exclusion: paras 39, 56–63, 82–83.

94 See Advisory Opinion OC-21/14, Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (19 August 2014) Series A No. 21 – extensive references to the UNHCR Handbook and to its guidelines on children, the best interests principle, trafficking, statelessness, gender and detention. Also, Advisory Opinion OC-25/18, The Institution of Asylum and its Recognition as a Human Right in the Inter-American System of Protection (30 May 2018) Series A No. 25, passim.

95 Opinion of Advocate General Sharpston (17 July 2014, A (C-148/13), B (C-149/13) and C (C-150/13) v Staatssecretaris van Veiligheid en Justitie: ECLI:EU:C:2014:2111, paras 53, 58; for judgment, see Joined Cases C 148/13, C 149/13 and C 150/13, A, B and C: ECLI:EU:C:2014:2406, CJEU, Grand Chamber (2 December 2014). See also Opinion of Advocate General Bot (24 January 2019) Affaire C-720/17, Mohammed Bilali c Bundesamt für Fremdenwesen und Asyl: ECLI:EU:C:2019:63, para 45 (relying on the Handbook for restrictive interpretation of the cessation clauses); also, paras 56–57; for judgment, see CJEU. Fifth Chamber (23 May 2019): ECLI:EU:C:2019:448, paras 57–58. cf Halaf, C-528/11, CJEU, Fourth Chamber (30 May 2013): ECLI:EU:C:2013:342, para 44.

96 In Gavrić v Refugee Status Determination Officer, Cape Town and Others [2018] ZACC 38, the South Africa Constitutional Court took account of UNHCR's role generally, its Handbook and reports on country conditions.

97 Banegas v Minister for Citizenship and Immigration 2015 FC 45, paras 17 (guidance on organized crime), 26 (particular social group), 28 (political opinion), 29. See also Immigration and Refugee Board of Canada, Chairperson's Guideline 9: ‘Proceedings before the IRB involving sexual orientation and gender identity and expression’ (1 May 2007) citing extensively to UNHCR guidance, for example, paras 7.2.4, 8.5.1.1, 8.5.3.1, 8.5.6.1 and 8.5.8.1.

98 Kenya National Commission on Human Rights v Attorney General [2017] eKLR: <http://www.kenyalaw.org>. Reviewing the Government's statement and proposal to close the refugee camps of Kakuma and Dadaab, the Court relied on UNHCR's position on the customary international law status of non-refoulement, as well as its views on expulsion and cessation.

99 Finland, Supreme Administrative Court (2 November 2018): ECLI:FI:KHO:2018:147 (summary translation: <https://www.refworld.org>) the Court relied on UNHCR's exclusion guidelines, above note 92, to support restrictive interpretation and allocation of the burden of proof to State authorities).

100 Bringas-Rodriguez v Sessions, 850 F.3d 1051 (9th Cir. 2017)—the Court relied on the Handbook to support its view that persecution by non-State actors is inherent in both Convention and US statutory definitions of persecution: para 17; it also referred to UNHCR's Guidelines on International Protection No. 8: ‘Child Asylum Claims’: HCR/GIP/09/08, 22 Dec. 2009, on the assessment of evidence by children: para 39.

101 E.M. v Ministry of Interior, Supreme Administrative Court: 4Azs 99/2007-93 (24 January 20—the Court relied on, and quoted extensively from, UNHCR Guidelines on International Protection No. 4, ‘“Internal Flight or Relocation Alternative” within the Context of Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees’: HCR/GIP/03/04 (23 July 2003).

102 A. and B. v Staatssekretariat für Migration, Bundesverwaltungsgericht, Abteilung IV, D-5779/2013: (25 February 2015) para 5.9.2 (no effective protection within the meaning of UNHCR Guidelines on Internal Flight). Also, X v Bundesamt für Migration, Schweizerische Asylrekurskommission, 9 Oct. 2006 – the specific role of UNHCR: para 8.2; gender-specific persecution and its correct interpretation (richtige Auslegung) by reference to UNHCR Guidelines on International Protection No. 1, and No. 2 on membership of a particular social group: paras 8.3, 8.5, 8.6.

103 Immigration Appeals Board v A, B, C, D, Case no 2015/203: HR-2015-02524-P, Supreme Court of Norway (18 December 2015)—noting acceptance of the UNHCR Guidelines on Internal Flight (n 101), as essentially ‘an appropriate and correct framework for the assessment of reasonableness’: paras 77–78; and that, ‘importance should be attached to individual considerations of the kind emphasised in the guidelines from UNHCR’: para 112. See also paras 230, 250, 251.

104 B.D. (Bhutan and Nepal) v Minister for Justice and Equality [2018] IEHC 461—the Court referred to the Handbook on statelessness (para 16), and noted UNHCR's ‘particularly helpful’ contribution to clarifying the position (para 27).

105 AE (Lebanon) [2019] NZIPT 801588—paras 48–51 (UNHCR's Guidelines on Article 1D, above n 83); also, AT (Zimbabwe) [2015] NZIPT 800798—paras 44–48 (UNHCR's Guidelines on International Protection No. 1: ‘Gender-Related Persecution’: HCR/GIP/02/01 (7 May 2002) cited for an understanding of terms).

106 BVerwG 10 C 23.12, Federal Administrative Court, Tenth Division (20 February 2013)— approving UNHCR's position on cumulative grounds by reference to the Handbook and the UNHCR Guidelines on International Protection No. 6: ‘Religion-Based Refugee Claims’: HCR/GIP/04/06 (28 April 2004): para 36. In BVerwG 10 C 33.07, the Federal Administrative Court, Tenth Division (10 February 2008) doubted the correctness of UNHCR's position on the criteria for cessation of refugee status: paras 26, 34. Its reference for a preliminary ruling to the CJEU resulted in an interpretation in accord with UNHCR's: Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Abdulla and Others v Bundesrepublik Deutschland, CJEU, Grand Chamber (2 March 2010); see also UNHCR, ‘Statement on the “Ceased Circumstances” Clause of the EU Qualification Directive’ (August 2008) issued in connection with the preliminary ruling proceedings.

107 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39—reference to the Handbook for the meaning of persecution: paras 84–87.

108 The above cases and many more are included in the case law section of UNHCR's Refworld database: <https://www.refworld.org>.

109 This view was put forward in the first, 1983, edition of GS Goodwin-Gill, The Refugee in International Law (133–5) and was largely unchanged in later editions; see the second edition (1996) 216–17, and the third edition (2007) 430–1.

110 See Judge Charlesworth, Separate Opinion, Whaling Case (n 48) [2014] ICJ Rep 456–9, para 15.

111 For a critical view of the UNHCR Guidelines on International Protection No. 10: ‘Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees’, HCR/GIP/13/10 (3 December 2013) and taking issue with certain views of the Human Rights Committee (although not with a General Comment), see Goodwin-Gill, ‘Dynamic of International Refugee Law’ (n 66) 657–61.

112 For UNHCR court interventions and amicus curiae briefs, see <http://www.refworld.org/type/AMICUS.html>.

113 Contrary to what was suggested by Arden LJ in Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994, para 57.

114 UNHCR, Guidelines on International Protection No. 3: ‘Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees (the “Ceased Circumstances” Clauses)’, HCR/GIP/03/03 (10 February 2003). See AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 873, para 61, confirming the value of UNHCR's ‘full discussion of factors relevant to the reasonableness analysis’, when determining whether it would be appropriate for an individual to relocate to avoid persecution.

115 Joined Cases C-175/08, C-176/08, C-178/08, C-0179/08, Abdulla v Bundesrepublik Deutschland, Court of Justice of the European Union (2 March 2010).

116 Secretary of State for the Home Department v MA (Somalia) [2018] EWCA Civ 994. The Court specifically quoted paras 15–16 of the Guidelines.

117 UNHCR, Guidelines on International Protection No. 5: ‘Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees’, HCR/GIP/03/05 (4 September 2003).

118 Youssef v Secretary of State for the Home Department [2018] EWCA Civ 933, para 39. The Court noted how previous judgments had made extensive use of the Handbook and the Guidelines: paras 56–59.

119 ibid, para 61.

120 ibid, paras 61–63. In SC res. 1373 (2001) the Security Council clearly ‘declared’ that terrorism was contrary to the purposes and principles of the United Nations, whereas in the present case the Court appears to have relied on the general language of later resolutions, particularly the preambular paragraphs of SC res. 2178 (2014), which it interpreted as sufficient to require States to take action against terrorism across a broader front: paras 41, 63. See also, Case C-573/14, Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani, CJEU, (Grand Chamber) (31 January 2017).

121 cf Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345. The Court of Appeal differed from UNHCR's position on the (in)applicability, in a cessation of refugee status context, of a change of circumstances in just part of the country; see para 17 of the Guidelines on Cessation (n 114). Underhill LJ did not find UNHCR's reasoning convincing, ‘given that the refugee would not have been granted protection in the first place if there were a part of his or her own country where they could be safe and to which it was reasonable for them to relocate’: para 82; see also Hamblin LJ, para 52. The Court's inclincation to the ‘mirror image’ approach to qualification as a refugee/cessation of refugee status, which has recently gained some currency (see Secretary of State for the Home Department v MA (Somalia) (n 116, per Arden LJ); however, the urge for symmetry comes with problematic theoretical, procedural and other baggage that will need to be explored another day.

122 Alvarez, The Impact of International Organizations (n 27) 345.

123 White, ‘Lawmaking’ (n 65) 565.

124 See Methymaki and Tzanakopoulos (n 63) 820–2.

125 cf Tzanakopoulos, A, ‘Judicial Dialogue as a Means of Interpretation’ in Aust, HP and Nolte, G (eds), Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (International Law and Domestic Legal Orders) (Oxford University Press 2014) 72Google Scholar.

126 cf Alvarez, The Impact of International Organizations (n 27) 351–3, 422.

127 Methymaki and Tzanakopoulos (n 63) 823.

128 ibid, 820–1. See also Tzanakopoulos, A and Tams, CJ (eds), ‘Symposium on Domestic Courts as Agents of Development of International Law’ (2013) 26 LJIL 531CrossRefGoogle Scholar; Tzanakopoulos, A, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’ (2011) 34 Loyola of Los Angeles International & Comparative Law Review 133Google Scholar; Roberts, A, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57CrossRefGoogle Scholar.

129 Methymaki and Tzanakopoulos (n 63) 823.

130 Crawford, J, Brownlie's Principles of Public International Law (9th edn, Oxford University Press 2019) 18CrossRefGoogle Scholar.

131 Kolb, R, ‘Principles as Sources of International Law (with Special Reference to Good Faith)’ (2006) 53 NILR 1, 3–4CrossRefGoogle Scholar. See also Clapham, A, Brierly's Law of Nations: An Introduction to the Role of International Law in International Relations (7th edn, Oxford University Press, 2012) 54CrossRefGoogle Scholar.

132 Jennings, RY and Watts, A, Oppenheim's International Law, vol 1, ‘Peace’ (9th edn, Oxford University Press 1991) 23Google Scholar.

133 Art 38(1), Statute of the International Court of Justice (18 April 1946): 33 UNTS 993.

134 Pellet, A, ‘Competence of the Court, Article 38’ in Zimmermann, A et al. (eds), The Statute of the International Court of Justice: A Commentary, (Oxford University Press, 2012), 731, 745–8Google Scholar.

135 Jennings and Watts, Oppenheim (n 132) 24.

136 ibid, 24, 25; also Pellet, ‘Competence of the Court’ (n 134) 802, fn 489.

137 1951 Convention relating to the Status of Refugees: 189 UNTS 150, entered into force 2 April 1954; 1967 Protocol relating to the Status of Refugees: 606 UNTS 267, entered into force 4 October 1967.

138 Aust, A, Modern Treaty Law and Practice (3rd edn, Cambridge University Press, 2013) 212–20CrossRefGoogle Scholar. See also further below, section IIIb.

139 See, for example, art 1, 1989 Convention on the Rights of the Child: ‘For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’: 1577 UNTS 3.

140 The first Arrangement of 5 July 1922 with respect to the Issue of Certificates of Identity to Russian Refugees: 13 LNTS No. 355 referred simply to ‘Russian refugees’, without further qualification, as did the High Commissioner's report of 17 March 1922: LoN doc. C.130. M. 77. 1922. No definition was included in the 1924 informal agreement extending certificates to Armenian refugees, but the 1926 Conference resolved to define Russian and Armenian refugees in the terms set out above; see Arrangement of 12 May 1926 relating to the Issue of Identity Certificates to Russian and Armenian Refugees, supplementing and amending the previous Arrangements dated 5 July 1922, and 31 May 1924: 89 LNTS No. 2004; Arrangement of 30 June 1928 relating to the Legal Status of Russian and Armenian Refugees: 89 LNTS No. 2005; Arrangement of 30 June 1928 concerning the extension to other categories of refugees of certain measures taken in favour of Russian and Armenian Refugees: 89 LNTS No. 2006.

141 UNGA res. 62 (I), ‘Refugees and Displaced Persons’ (15 December 1946) Annex.

142 Art 1A(2), 1951 Convention relating to the Status of Refugees: 189 UNTS 150; para 6, UNHCR Statute: UNGA res. 428(V) (14 December 1950) Annex. Both the Convention and the Statute include those considered as refugees under earlier instruments.

143 On development of UNHCR's mandate, beyond the terms of the Statute (particularly para 6), see Goodwin-Gill and McAdam, The Refugee in International Law (n 26) 23–32.

144 For the relevant dispute settlement provisions, see art 38, 1951 Convention; Art IV, 1967 Protocol; no inter-State dispute has ever been referred to the ICJ. Belgium had proposed including in the Final Act a recommendation that the General Assembly authorise the High Commissioner to request an advisory opinion from the ICJ, ‘on any legal question arising within the scope of his activities’: UN doc A/CONF.2/101 (21 July 1951); it was subsequently withdrawn: UN doc A/CONF.2/SR.32 (30 November 1951) 4. I am grateful to Emma Dunlop for bringing this to my attention.

145 The 1951 Convention entered into force in April 1954, and 149 States (out of a total United Nations membership of 193) have now ratified either the Convention or the 1967 Protocol, or both. See generally GS Goodwin-Gill, ‘United Nations Treaty-Making: Refugees and Stateless Persons’ in Chesterman et al., Oxford Handbook of United Nations Treaties (n 68) Ch 22; ‘Introduction to the 1951 Convention/1967 Protocol relating to the Status of Refugees’, UN Audio-Visual Library of International Law, Historic Archives (2009): <http://www.un.org/law/avl/>.

146 On the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa: 1000 UNTS 46, see Sharpe, M, The Regional Law of Refugee Protection in Africa (Oxford University Press 2018)CrossRefGoogle Scholar.

147 On Europe, see Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 20.12.2011, OJ, L 337/9; Charter of Fundamental Rights of the European Union, OJ 2012/C 326/02 (26 October 2012) 391, arts 18, 19; Moreno-Lax, V, Accessing Asylum in Europe, (Oxford University Press 2017)CrossRefGoogle Scholar; Costello, C, The Human Rights of Migrants and Refugees in European Law (Oxford University Press 2016)Google Scholar.

148 On Latin America, see the 1954 Caracas Convention on Territorial Asylum OAS Treaty Series, No. 19; 1438 UNTS 127 (No. 24378); the 1954 Caracas Convention on Diplomatic Asylum: OAS Treaty Series, No. 19; 1438 UNTS 101 (No. 24377); Goodwin-Gill, GS, ‘Asylum (Colombia v Peru), 1949 and Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v Peru), 1950’ in Almeida, –P Wojcikiewicz and Sorel, J-M (eds), Latin America and the International Court of Justice: Contributions to International Law (Routledge 2017) 170Google Scholar; the 1984 Cartagena Declaration on Refugees: UNHCR, ‘Cartagena Declaration on Refugees’: <http://www.unhcr.org/en-au/about-us/background/45dc19084/cartagena-declaration-refugees-adopted-colloquium-international-protection.html>; AG/RES. 774 (XV-O/85), ‘Legal Status of Asylees, Refugees, and Displaced Persons in the American Hemisphere’: Organization of American States, General Assembly, Fifteenth Regular Session, Cartagena De Indias, Colombia (5–9 December 1985). Proceedings, Volume I, 32: OEA/Ser.P/XV.O.2 (2 April 1986): <http://www.oas.org/en/sla/docs/ag03799E01.pdf>.

149 H Waldock, ‘General Course on Public International Law’ (1962) 101 Recueil des cours, vol. 1, 39, 49. He adds, ‘it is not necessary to show specifically the acceptance of the custom as law by that State; its acceptance … will be presumed so that it will be bound unless it can adduce evidence of its actual opposition to the practice in question’: ibid 50–1. On ‘objection’, see the ‘Observations of the United States’ (<https://2001-2009.state.gov/s/l/2007/112631.htm>) on the 2007 UNHCR, ‘Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol’: <http://www.refworld.org/docid/45f17a1a4.html>. cf the view and the evidence that the principle was already established and binding on the United States: Goodwin-Gill and McAdam, The Refugee in International Law (n 26) 246–50.

150 Cf. A Roberts, ‘Custom, Public Law and the Human Rights Analogy’: <http://www.ejiltalk.org/custom-public-law-and-the-human-rights-analogy/> (14 August 2013).

151 On the role of practice and the place of resolutions in the emergence of opinio juris, see the analysis and sources cited in Goodwin-Gill, GS, ‘Non-Refoulement, Temporary Refuge, and the “New” Asylum Seekers’ in Cantor, D and Durieux, J-F (eds), Refuge from Inhumanity? War Refugees and International Humanitarian Law (Brill Nijhoff 2014) 433Google Scholar.

152 Pellet, ‘Competence of the Court’ (n 134) 820. Roberts sees ‘modern’ customary international law as a deductive process that begins with statements of rules, rather than particular instances of practice; see ‘Traditional and Modern Approaches to Customary International Law’ (2001) 95 AJIL 757; Roberts, A, ‘Who Killed Article 38(1)(b)? A Reply to Bradley and Gulati’ (2010) 21 Duke Journal of Comparative and International Law 173Google Scholar.

153 UNGA res. 73/203, ‘Identification of Customary Law’ (20 December 2018) Annex; ILC Report 2018, Ch V, ‘Identification of Customary International Law 129–32, 147–9. The Special Rapporteur's Fifth report records the ‘widespread approval’ of Conclusion 12: International Law Commission, ‘Fifth report on Identification of Customary International Law’, Michael Wood, Special Rapporteur: UN doc A/CN.4/717 (14 March 2018) 42, paras 90–95. cf Clapham, quoting Jennings and Watts, ‘Today … the activities of states within international organizations contribute to a “more rapid adjustment of customary law to the developing needs of the international community”.’: Clapham, Brierly's Law of Nations (n 131) 30–1. See also Droubi, S, ‘Institutionalisation of Emerging Norms of Customary International Law through Resolutions and Operational Activities of the Political and Subsidiary Organs of the United Nations’ (2017) 14 IOLR 254Google Scholar.

154 Pellet, ‘Competence of the Court’ (n 134) 832; G Gaja, ‘General Principles of Law’ Max Planck Encyclopedia of Public International Law (online).

155 Jennings and Watts, Oppenheim (n 132) 37: ‘general principles’ are generally accepted rules of municipal law or, in Oppenheim's phrasing, ‘the general principles of municipal jurisprudence, insofar as they are applicable to relations of States'. This ‘provides a background of legal principles in the light of which custom and treaty have to be applied and as such … may operate to modify their application’: ibid 40.

156 Golder v United Kingdom, Appl 4451/70, European Court of Human Rights (21 February 1975) para 35: ‘Article 31 para 3 (c) of the Vienna Convention indicates that account is to be taken, together with the context, of “any relevant rules of international law applicable in the relations between the parties”. Among those rules are general principles of law and especially “general principles of law recognized by civilized nations” (Article 38 para 1 (c) of the Statute of the International Court of Justice). The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally “recognised” fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 para 1 (art. 6-1) must be read in the light of these principles.’

157 R (UNISON) v Lord Chancellor [2017] UKSC 51, para 66. See also P Erdunast, ‘The multiple legal sources of the Common Law Right of Access to the Courts’ (2018) PL 426.

158 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, [2012] ICJ Rep 10, para 44. The Court doubted, ‘whether the system established in 1946 meets the present-day principle of equality of access to courts and tribunals’.

159 Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against UNESCO, Advisory Opinion, [1956] ICJ Rep 77, 86, quoted with approval in Judgment No. 2867 ibid, para 44. cf 2000 EU Charter of Fundamental Rights (n 148) art 41, ‘Right to Good Administration’, and art 47, ‘Right to an Effective Remedy and to a Fair Trial’.

160 Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) [2012] ICJ Rep, 422, para 99: ‘That prohibition is grounded in a widespread international practice and on the opinio juris of States. It appears in numerous international instruments of universal application … and it has been introduced into the domestic law of almost all States; finally, acts of torture are regularly denounced within national and international fora.’

161 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), [2010] ICJ Rep 639, 668 (para 77), 671 (para 87), 691 (para 161).

162 Tzanakopoulos, ‘Judicial Dialogue as a Means of Interpretation’ (n 125). The use of comparative case law when interpreting the US Constitution may be controversial, but when treaties are involved, Justice Scalia recognised the relevance of judgments on their interpretation by the courts of other States parties. In Olympic Airways v Husain 540 U.S. 644 (2004), for example, he regretted in dissent the majority's, ‘failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us … One would have thought that foreign courts’ interpretations of a treaty that their governments adopted jointly with ours, and that they may have an actual role in applying, would be (to put it mildly) all the more relevant.’ Even at a relatively well-integrated regional level, the ‘exchange’ of jurisprudential experience can be quite infrequent; see Goodwin-Gill and Lambert, The Limits of Transnational Law (n 71); also Benvenisti, E, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 AJIL 241, 261–7CrossRefGoogle Scholar.

163 cf Pellet, ‘Competence of the Court’ (n 134) 855.

164 ibid, 856; Jennings and Watts, Oppenheim (n 132) 41–2; Crawford, Brownlie's Principles (n 130) 38–9.

165 Pellet, ‘Competence of the Court’ (n 134) 854. Not surprisingly, perhaps, Pellet regrets the word ‘subsidiary’, preferring ‘auxiliaire’ in the French version: ibid 853. See also Crawford, Brownlie's Principles (n 130) 35; Borda, A Zammit, ‘A Formal Approach to Article 38(1)(d) of the ICJ Statute from the Perspective of the International Criminal Courts and Tribunals’ (2013) 24 EJIL 649Google Scholar.

166 Pellet, ‘Competence of the Court’ (n 134) 862; cf Jennings and Watts, Oppenheim (n 132) 41–2; UNGA res. 73/203, ‘Identification of Customary Law’ (20 December 2018) Annex, Conclusion 13, ‘Decisions of Courts and Tribunals’; ILC Report 2018, Ch V, ‘Identification of Customary International Law’ 121.

167 Wood, Fifth report 2018 (n 153) para 99. See also ILC Report 2018, Ch V, ‘Identification of Customary International law’ 149–50, para (7).

168 ILC Report 2018, Ch V, ‘Identification of Customary International Law’, 149.

169 That activity could include, to use the ILC's words, ‘collecting, synthesizing or interpreting practice relevant to the identification of customary international law’: ILC Report 2018, Ch V, ‘Identification of Customary International law’ 142, para (1).

170 ibid, 150–151; Wood, Fifth report 2018 (n 153) paras 101–104. See also, Michael Wood, writing in an academic capacity, ‘Teachings of the Most Highly Qualified Publicists (Art. 38(1) ICJ Statute) Max Planck Encyclopedia of Public International Law (online).

171 Wood, Fifth report (2018 (note 153) paras 103–105. See also, Pellet, ‘Competence of the Court’ (n 134) 853–4: ‘ jurisprudence and doctrine were supposed to elucidate what the rules to be applied by the Court were, not to create them’.

172 Sivakumaran, S, ‘The Influence of Teachings of Publicists on the Development of International Law’ (2017) 66 ICLQ 1CrossRefGoogle Scholar, 2.

173 ibid 6.

174 ibid 23–37.

175 ‘Commentary’ on international refugee law began almost immediately, with Nehemiah Robinson's 1953 Convention relating to the Status of Refugees: Its History, Contents and Interpretation, New York: Institute of Jewish Affairs, World Jewish Congress (1953) still regularly cited. Other important works since then, besides those cited elsewhere in this article, include Grahl-Madsen, A, The Status of Refugees in International Law, vols. 1 & 2 (Sijthoff, 1966, 1972)Google Scholar; Grahl-Madsen, A, Commentary on the Refugee Convention 1951 (1962–63) (Geneva: UNHCR, 1997)Google Scholar; Zimmermann, A et al. (eds), The 1951 Convention relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press 2011)CrossRefGoogle Scholar; Hathaway, JC, The Rights of Refugees under International Law (Cambridge University Press 2005)CrossRefGoogle Scholar.

176 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, 179, para 109.

177 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), [2010] ICJ Rep 639, 663–4, para 66.

178 Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development, Advisory Opinion, [2012] ICJ Rep 10, para 39. See also para 44: ‘the principle of the equality of the parties follows from the requirements of good administration of justice’, referring to its earlier Advisory Opinion in Judgments of the Administrative Tribunal of the I.L.O. upon complaints made against UNESCO, Advisory Opinion, [1956] ICJ Rep 77, 85–6.

179 ILC Report 2018, Ch V, ‘Identification of Customary International Law’ 142–3, para (2).

180 ibid, 143, para (2).

181 There are thus two dimensions to UNHCR's ‘normative’ activities—first, shaping State practice through guidelines and advice, for example, on the interpretation and application of international refugee law; and secondly, generating opinio juris through its operational practice of protection. cf ILC Report 2018, Ch V, ‘Identification of Customary International Law’ 130–2, commenting specifically on the International Committee of the Red Cross: para (9).

182 UNHCR Statute, paras 3, 9.

183 See generally, Gardiner, R, Treaty Interpretation (2nd edn, Oxford University Press, 2015)Google Scholar.

184 Art 31, 1969 Vienna Convention on the Law of Treaties: 1155 UNTS 331.

185 Although scholars and advocates commonly invoke the travaux to the 1951 Convention, courts in the United Kingdom have rarely found them of great use; see, for example, Lord Steyn in Islam v Secretary of State for the Home Department [1999] 2 AC 629, at 638 (‘uninformative’); Lord Hoffmann, ibid 650 (‘shed little light’). By contrast, in R v Asfaw [2008] 2 WLR 1178, [2008] UKHL 31, Lord Mance, dissenting, relied extensively on the travaux and appended extracts to his judgment: paras 125–132. The US Supreme Court appears more open to the use of background materials; see Air France v Saks, 470 U.S. 392 (1985); Choctaw Nation of Indians v United States, 318 U.S. 423, 431 (1943). The value of the travaux at the international level is somewhat moot, given that only 26 of the 146 States currently party to the Convention actually participated in the drafting. See also Aust, Modern Treaty Law and Practice (n 138) 220; Clapham, Brierly's Law of Nations (n 131) 361–6.

186 Wemhoff v Germany, Appl no 2122/64 (27 June 1968) para 8; Brogan and others v United Kingdom, Appl nos 12209/84; 11234/84; 11266/84; 11386/85 (29 November 1988) para 59. Whether any particular treaty is ‘contemporary’ or ‘evolutive’ is itself a matter of interpretation; ‘Fifth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties’, G Nolte, Special Rapporteur: UN doc A/CN.4/715 (28 February 2018) paras 71–77; ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 64–70.

187 Mamatkulov and Askarov v Turkey, Appl nos 46827/99 and 46951/99 (4 February 2005) para 121; see also Johnston and Others v Ireland, Appl no 9697/82 (18 December 1986) para 53; Tyrer v United Kingdom, Appl no 5856/72 (25 April 1978) para 31.

188 Bayatyan v Armenia (Appl no 23459/03), Grand Chamber (7 July 2011) para 102.

189 ibid, paras 109–110. cf (on the obligation to provide a personal interview in expulsion cases), the partly dissenting opinion of Judge Serghides in Khlaifia and Others v Italy, Appl no 16483/12, Grand Chamber (15 December 2016) paras 16–19, 60.

190 CJEU, Case C-373/14, Opinion of Advocate General Sharpston (31 May 2016) para 16; see also, para 10.

191 ibid, paras 31, 54.

192 ibid, paras 41, 47 (referring to, among others, SC resolutions 1373 (2001) and 1377 (2001). See arts 24 and 25 of the UN Charter; see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] ICJ Rep 16, 53, paras 115, 116.

193 Among many others and in addition to commentary, see Territorial Dispute (Libyan Arab Jamahiriya/Chad) [1994] ICJ Rep 6, 21–2 (para 41–Article 31 VCLT reflects customary international law: ‘Interpretation must be based above all upon the text of the treaty.’); K v Secretary of State for the Home Department [2007 1 AC 412, [2006] UKHL 46, per Lord Bingham at para 10: while the Convention must be interpreted in accordance with its broad humanitarian objective and the principles set out in the preamble. ‘the starting point of the construction exercise must be the text of the Refugee Convention itself, because it expresses what the parties to it have agreed.’ cf N (FC) v Secretary of State for the Home Department [2005] 2 AC 296, [2005] UKHL 31, per Lord Hope at para 21.

194 Al-Sirri v Secretary of State for the Home Department [2012] UKSC 54. The Court endorsed para 17 of UNHCR's exclusion Guidelines: ‘Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's co-existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category’: ibid, para 38. Compare the joined appeal, DD v Secretary of State for the Home Department [2012] UKSC 54, in which the Court held that an armed attack against the NATO-led International Security Assistance Force (ISAF) in Afghanistan was in principle capable of being an act contrary to the purposes and principles of the United Nations, given that the aims and objectives of ISAF, as mandated by the Security Council, accorded with the purposes of the UN Charter, namely, maintaining international peace and security: ibid, paras 58, 63–68.

195 See, for example, Lord Bingham in Sepet v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, at para 6: ‘the Convention must be seen as a living instrument in the sense that while its meaning does not change over time its application will’. He also approved Sedley J's earlier observation in R v Immigration Appeal Tribunal, Ex p Shah [1997] Imm AR 145, 152: ‘Unless it is seen as a living thing, adopted by civilised countries for a humanitarian end which is constant in motive but mutable in form, the Convention will eventually become an anachronism’: ibid.

196 See Goodwin-Gill, ‘The Search for the One, True Meaning …’ (n 71) 204, 232–3, 239.

197 Golder v United Kingdom, Appl no 4451/70 (21 February 1975). See further, Letsas, G, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press 2007) 61–8CrossRefGoogle Scholar.

198 R v Asfaw (United Nations High Commissioner for Refugees intervening) [2008] UKHL 31, [2008] 2 WLR 1178, para 54 (emphasis added).

199 ibid, para 55.

200 Goodwin-Gill, ‘The Search for the One, True Meaning …’ (n 71) 227–9.

201 For example, in AS (Guinea) v Secretary of State for the Home Department (UNHCR intervening) [2018] EWCA Civ 2234, the UK Court of Appeal rejected UNHCR's argument for a lower standard of proof than balance of probabilities when deciding cases under the 1954 Convention relating to the Status of Stateless Persons, and for one more or less equivalent to the ‘serious reasons’ approach to the determination of refugee status under the 1951 Convention. The Court found significant differences in the procedures, particularly the general absence of risk for applicants, and noted that a statelessness claimant was also assured of the Secretary of State's assistance in making inquiries. The Court would accord due weight to UNHCR's views, but these remained advisory, and State practice, while relevant, was not persuasive in the instant case: ibid, paras 46–47, 57–58.

202 UNGA res. 73/202, ‘Subsequent agreements and subsequent practice in relation to the interpretation of treaties’ (20 December 2018) Annex, Conclusion 7: ‘Possible effects of subsequent agreements and subsequent practice in interpretation’; Conclusion 8: ‘Interpretation of treaty terms as capable of evolving over time’. cf Venzke's reference to ‘making law by clarifying it’: ‘UNHCR and the Making of Refugee Law’ (n 13) 114.

203 ibid, Conclusion 7(3). This is nevertheless without prejudice to amendment or modification under the VCLT or customary international law: ibid. The commentary on this presumption recognises that much will depend on the treaty: ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 58–63.

204 Art 31(3)(c), 1969 Vienna Convention on the Law of Treaties (n 129); Aust, Modern Treaty Law and Practice (n 138) 216–17; Clapham, Brierly's Law of Nations (n 184) 358–60.

205 For a defence and explanation of its ‘doctrinal responsibility to work for the progressive development of international refugee law’, see UNHCR, ‘Note on International Protection’ UN doc A/AC.96/728 (2 August 1989) para 3.

206 Goodwin-Gill, ‘The Search for the One, True Meaning …’ (n 71) 209–10.

207 Whether in relation to subsequent agreement or subsequent practice, the common requirement is that it shall concern ‘the interpretation of the treaty or the application of its provisions’: UNGA res. 73/202, (n 202) Conclusions 4, 5, 6; ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 27–45. On the relationship between ‘interpretation’ and ‘application’, see ibid 43–5.

208 See Clapham, Brierly's Law of Nations (n 131) 356–7.

209 UNGA res. 73/202, (n 202) Conclusion 3. In its Commentary on Conclusion 10: ‘Agreement of the parties regarding the interpretation of a treaty’, the ILC notes that, ‘what distinguishes subsequent agreements and subsequent practice as authentic means of interpretation …, on the one hand, and other subsequent practice as a supplementary means of interpretation …, on the other, is the “agreement” of all the parties regarding the interpretation of the treaty. It is the agreement of the parties that provides the means of interpretation under article 31(3), their specific function and weight for the interactive process of interpretation under the general rule of interpretation of article 31’: ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 75.

210 ILC Conclusion 10: ‘Agreement of the parties regarding the interpretation of a treaty’, UNGA res. 73/202, (n 202), Annex. Among the now 149 States party to the Refugee Convention and/or the Protocol, many do not have either a refugee status procedure or a related body of jurisprudence; judicial decisions are thus unlikely ever to present a picture of uniform and consistent interpretation common to all or most of the parties. See also ILC Conclusion 13: ‘Pronouncements of expert treaty bodies’ which ‘may give rise to, or refer to, a subsequent agreement or subsequent practice …’: ibid, para 3. In discussions a number of representatives stressed that treaty bodies, ‘should not overstep their mandates or attempt to modify or amend the treaty’, while others considered that UN treaty bodies, ‘greatly contributed to the development of international human rights law’: ‘Fifth report on subsequent agreements and subsequent practice in relation to the interpretation of treaties’, G Nolte, Special Rapporteur: UN doc A/CN.4/715 (28 February 2018) paras 122–143. The Commentary suggests that such pronouncements may fall more under art 32 VCLT, contributing to the determination of the ordinary meaning of terms in context and in light of the treaty's object and purpose; if this is not the practice of States parties strictly so called, it is nevertheless practice mandated by treaty: ILC Report 2018, Ch IV, ‘Subsequent Agreements and Subsequent Practice’ 106–16.

211 Art 32's use of the word ‘may’ emphasises the discretionary dimension to the use of supplementary means, as opposed to the mandatory (‘shall’) requirements of art 31.

212 See ILC Conclusion 9(3), UNGA res. 73/202, (n 202): ‘The weight of subsequent practice as a supplementary means of interpretation under Article 32 may depend on the criteria referred to in paragraphs 1 and 2’—viz clarity, specificity, and whether and how repeated.

213 ILC Report 2018, Ch V, ‘Identification of Customary International Law’ 142, para (1). cf Wouters, J and Man, P De, ‘International Organizations as Law-Makers’ in Klabbers, J and Wallendahl, A (eds), Research Handbook on the Law of International Organizations (Edward Elgar Publishing 2011) 190Google Scholar. At 207–8, suggesting that while the activities of international organisations may be ‘short-cuts for the time-consuming process of collecting, collating and assessing the evidence of State practice and opinio juris’, one should be mindful, ‘not to equate the practice of international organizations with state practice’. The difference here is the nature of the activity: judicial decisions are the acts of organs of the State, not simply resolutions, and while they may be ‘disowned’ or nullified by legislation, in the meantime they are that much closer to ‘practice’.

214 Boyle, A and Chinkin, C, The Making of International Law (Oxford University Press 2007) viiGoogle Scholar.

215 In practice, the links are extensive. In 2019, UNHCR's staff of 16,000 plus operated and inter-operated with States at the official level, in 138 countries worldwide.

216 UNHCR is relied on by many States to determine refugee status, both as a ‘delegated’ function in States lacking the necessary national infrastructure, and within the context of resettlement programmes. UNHCR also engages with national refugee status determination procedures, for example, as a member or observer on decision-making bodies, or through formal advice, for example, as intervener or amicus curiae.

217 See UNGA res. 73/151, ‘Office of the United Nations High Commissioner for Refugees’ (17 December 2018) paras 6, 32; UNGA res. 71/1, ‘New York Declaration for Refugees and Migrants’ (19 September 2016) paras 65, 67; ‘Global Compact for Refugees’, Report of the United Nations High Commissioner for Refugees, UNGAOR, 73rd Sess, Supp No 12: UN doc A/73/12 (Part II) (September 2018) para 5.

218 Alvarez, International Organizations as Law-makers (n 27) 647.

219 UNGA res. 73/1 (n 217) para 37.