Women in International Law Network

The Olive Schill Society

We are very happy to start our post series that will provide a new platform of discussion to young woman international lawyers. Our first post is by Jenny Poon who is a third-year PhD candidate at the Faculty of Law of the University of Western Ontario, a qualified Barrister & Solicitor in Ontario, Canada, and a former Visiting Study Fellow at the University of Oxford, Refugee Studies Centre. Jenny will be a Visiting Researcher at the Max Planck Institute for Comparative Public Law and International Law in Summer 2018. We invite all our readers to provide comments and questions on Jenny’s work.

The title of my Ph.D. research project is ‘Non-Refoulement in European and International Law: A Comparative Analysis between the United Kingdom and Germany’. In this article, I will explain the overview of my research, the attempt of my research to bridge the connection between refugee and human rights law as well as between European and international law. I will also briefly mention the methodology which my thesis employs, and end with a few challenge areas which I will attempt to reconcile in my doctoral research.

Research Overview

The norm of non-refoulement has existed, arguably, prior to the creation of the 1951 Convention Relating to the Status of Refugees (Refugee Convention). In fact, the concept of not returning people back to persecution arguably existed before the norm itself was made into treaty or custom. The word ‘refoulement’ itself was included in the drafting of the 1933 Convention Relating to the International Status of Refugees. Besides the Refugee Convention, the norm is incorporated into various international and regional human rights instruments. The norm is interpreted and applied differently by different courts, both internationally and regionally, and by different non-State actors such as the United Nations High Commissioner for Refugees (UNHCR). Given this level of incorporation of the norm in both treaty and custom, along with the long history of the existence of the norm (over 84 years), it is difficult to imagine that the norm itself has not evolved or has remained the same throughout time both in treaty and custom.

My Ph.D. research therefore looks at the evolution of this norm since the Common European Asylum System (1990) to the present day, and seeing how the norm has been interpreted and applied differently by European Union (EU) member states, European Court of Human Rights (ECtHR), Court of Justice of the European Union (CJEU), and in the domestic law of United Kingdom and Germany. I argue that this norm as it is currently interpreted and applied by various actors and at various levels, but through treaty and custom, is applied too narrowly and only in restrictive circumstances. The purpose of my research is to help clarify the norm so that its application and implementation can be strengthened domestically, regionally, and internationally – with a view to ultimately widening the scope of its application to protect more people who deserve it. Taking a human rights-based approach and making a lex ferenda argument, I propose that this restrictive, instrumentalist, and textual interpretation of the norm not only undermines the humanitarian objective of the Refugee Convention but also takes away protection for those who genuinely deserve it. I suggest that even in situations where refugees whose statuses have been revoked as a result of being deemed to have committed Article 1F(a) atrocities or who otherwise fall under the exception of Article 33(2), should not be sent back to persecution even where that persecution does not rise to the level of death or torture. I attempt to test my theory by analyzing domestic compliance of non-refoulement using both United Kingdom and Germany as case studies.

My research also explores the principle of non-refoulement as a norm in both international and European law. In this thesis, I consider the evolution of the principle of non-refoulement in international law and how that evolution informs the interpretation and implementation of the principle under European law. In considering whether the principle of non-refoulement has been complied with by States, I conduct a comparative analysis between the United Kingdom and Germany as they are both (currently) bound by EU law when implementing EU provisions and European Convention on Human Rights law as members of the Council of Europe. More specifically, I examine whether, and if so how, the Common European Asylum System including the Dublin Convention and Regulations as well as Key Directives permit the United Kingdom and Germany to comply with the principle of non-refoulement.

Intersection between Refugee and Human Rights Law

My thesis touches upon various branches of international law. This thesis considers the intersection between international refugee law and human rights law. Under the international refugee law framework, I examine the principle of non-refoulement as a principle of international refugee law and a cornerstone of the international refugee protection regime. I look at the norm under international treaty law, international customs, and evidence for the principle having raised to the level of a peremptory norm. Under the international human rights law framework, I examine the principle of non-refoulement as it is defined and expanded in scope in the international human rights law regime. In particular, I look at how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights permit the extraterritorial application of the principle.

My thesis also considers the intersection between these two branches of international law. For instance, the thesis considers whether the refugee definition of non-refoulement is considered lex specialis, and if so, whether the broader human rights definition of the principle should be displaced as a result. My thesis also examines whether the principle of non-refoulement is fragmented given the divergence between the broader human rights definition and the narrower refugee definition, and whether this normative conflict can be reconciled.

European Asylum Law

My thesis also examines the evolution of the norm of non-refoulement in the Common European Asylum System in the context of the EU. In particular, I look at whether, and if so how and to what extent, the Dublin Convention and Regulations and Key Directives permit the United Kingdom and Germany to comply with the principle of non-refoulement.

Methodology

My thesis employs a doctrinal analysis by utilizing the sources of international law as found under Article 38(1) of the Statute of the International Court of Justice. In particular, the thesis will be examining the origin of the principle of non-refoulement as well as its evolution under international law as primarily defined under the Convention Relating to the Status of Refugees as well as in other human rights instruments as stated above and how the principle informs the development of the European norm of non-refoulement and vice versa. Case studies on the United Kingdom and Germany will be conducted by looking at the domestic legislations of both countries to determine whether, and if so how, the national implementation of non-refoulement comply with the European and international standards.

Key Challenge Areas

In my research, I consider the current status and scope of the principle of non-refoulement under refugee and human rights law. For instance, I consider whether different formulations of non-refoulement under refugee and human rights law may be reconciled and whether non-refoulement is lex specialis and therefore displaces the human rights definition of non-refoulement. I also consider whether and if so, at what point does the human rights definition supersede the refugee law definition and in that situation, why should States still consider the refugee definition.

I also consider whether the Common European Asylum System (including key instruments such as the Dublin Convention, the Dublin II Regulation, and the Dublin III Regulation, as well as key directives such as the Qualification Directive of 2011/95/EU, the Asylum Procedures Directive 2013/32/EU, and the Reception Conditions Directive 2013/33/EU and their respective proposed amendments) permits the United Kingdom and Germany to comply with their non-refoulement obligations. For instance, what is the status of non-refoulement in British and German domestic law and how is the principle of non-refoulement being interpreted and applied by the domestic courts of these two countries? In my research, I also consider whether the interpretation and implementation of non-refoulement by domestic courts of United Kingdom and Germany comply with the standards set by European and international law.