Transnational Judicial Dialogue, Harmonization And the Common European Asylum System

International and Comparative Law Quarterly, Vol. 58, pp. 519-543, July 2009

U. of Westminster School of Law Research Paper No. 09-14

26 Pages Posted: 9 Sep 2009 Last revised: 16 Sep 2009

See all articles by Helene Lambert

Helene Lambert

University of Technology Sydney; University of Westminster - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: July 1, 2009

Abstract

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.

Keywords: transnational judicial dialogue, Common European Asylum System, CEAS, asylum

Suggested Citation

Lambert, Helene, Transnational Judicial Dialogue, Harmonization And the Common European Asylum System (July 1, 2009). International and Comparative Law Quarterly, Vol. 58, pp. 519-543, July 2009; U. of Westminster School of Law Research Paper No. 09-14. Available at SSRN: https://ssrn.com/abstract=1470825

Helene Lambert (Contact Author)

University of Technology Sydney ( email )

Sydney
Australia

University of Westminster - School of Law ( email )

4 Little Titchfield Street
London, England W1W 7UW
United Kingdom

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