Refugee: A Legal Definition in Search of a Principled Interpretation by Domestic Fora
Revue Hellénique de Droit International, Vol. 52, pp. 151-190, 1999
40 Pages Posted: 26 Oct 2011
Date Written: December 5, 1998
The aim of this article is to highlight the legal characteristics of the concept of refugeehood, the concomitant problems of interpretation and the need for the use of binding rules of interpretation that should be consistently put into effect by domestic fora. The international refugee definition (contained in the UN Refugee Convention) is identified as a stipulative, synthetic one that, depsite its polarised historical background, is imbued with a unique, inherent dynamism founded on its own notional 'porousness' and the drafters' express wish for an application of the Refugee Convention that 'exceeds its contractual nature'. The article attempts to lay down and examine the potential for a contemporary, dynamic construction of refugeehood by domestic fora in the context of the Refugee Convention, the latter being viewed as a law-making treaty aimed at the effective protection of human rights and human dignity. The study puts forward Article 31 of the Vienna Convention on the Law of Treaties as a prototype that may well provide a sound and principled legal tool for interpretation, on condition that it is placed in the appropriate context of a humanitarian/human rights treaty that prescribes a dynamic interpretation of its terms. The author, using as examples case law from Germany and the United Kingdom, concludes showing the lack of an established, systematic contextual application by domestic fora of the Vienna Convention canons. He highlights the vital role that judicial fora may play in national asylum procedures and notes that they should realise their long-term potentials and responsibilities in the area of refugee protection and the need to use a principled framework for legal textual construction.
Keywords: Refugee Convention, asylum, definition, courts, treaties, interpretation, human rights, Vienna Convention, Germany, United Kingdom
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