Bonoan, Jose Dr - Metro New York Medicine & Infectious Disease
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There are, as most of us know, many problems with the Refugee Convention. Nor, indeed, will it solve any of notre avis sur binoan. Rather, its purpose is to suggest one way of addressing a critical problem.
The problem is that, while the Convention is a universal humanitarian treaty, designed to offer universal protection, the interpretation of the treaty differs from notre avis sur binoan to country, and even within countries.
The result is that notre avis sur binoan refugee in Canada may not be a refugee in the United States, and vice versa. In this paper, we propose a practical way of addressing this issue. We acknowledge that our proposal will not solve the problem of conflicting interpretations. In the present climate, the obvious solution, an international court with the power to bind states parties, notre avis sur binoan not a practical one.
Rather, we hope to create an international forum in which different interpretations can be discussed, and from which may be built an international consensus on the interpretation of the Convention. The proposal is simple. We suggest that the United Nations High Commissioner for Refugees UNHCR establish an independent international judicial commission, comprised of a small number of eminent jurists and experts in refugee law. The function of the commission would be to provide carefully reasoned opinions on major questions relating to construction of the Convention.
These opinions would be neither binding nor enforceable. Rather, their authority would be derived notre avis sur binoan their institutional mandate and their intellectual and practical quality. In essence, this proposal continues and expands the second track of the Global Consultations process recently convened by UNHCR,  in which experts discussed difficult issues regarding the interpretation of the Convention and from which, subsequently, UNHCR produced legal guidance in the form of Guidelines on International Protection.
It would, however, have significant advantages over these other sources of soft law. As a notre avis sur binoan body, it will be able to address ongoing issues of interpretation in a detailed way, based on an extensive knowledge of the principles and practice of refugee law. Our hope is that these opinions will begin to shape the direction of domestic interpretations, and thus move us toward the convergence of interpretations of the Convention. The aims of this paper are to make a case for further convergence in interpretation of the Convention and to attempt to formulate a method to promote notre avis sur binoan convergence.
We hope to provoke and stimulate both debate and action. As such, the paper focuses on the practical notre avis sur binoan of the proposal, instead of attempting a scholarly disquisition on the niceties of treaty interpretation or international judiciaries. It is also, we emphasise, a proposal ; namely, it is open to improvements, criticisms and changes. The paper begins with an exploration of why, in our view, further convergence in the interpretation of the Convention is desirable, although it is not the purpose of this paper to discuss this at length.
We then examine the prospects for further convergence through existing efforts and mechanisms, concluding that the prospects are inherently limited.
In the third section of this paper, we explain the principles underlying our notre avis sur binoan, with reference to the experience of existing international judicial bodies.
Finally, we set out the details of the proposal. In this section of the paper, we establish why, in our view, there is an unacceptable degree of diversity in the interpretation of the Convention. It is an elementary principle of fairness that like cases ought to be treated alike in the application of laws. It is elementary common sense that a notre avis sur binoan, recognised as such pursuant to the definition in the Convention, should also be recognised as a refugee in another country using the same definition.
As will be discussed later, this is far from the position today. As a consequence, the application of the Convention is unfair. It is unfair to refugees, notre avis sur binoan may be treated differently depending on which country they happen to end up in.
It is also unfair to states who adopt more generous interpretations. This unfairness is most obvious in the case of refugee recognition, but it also extends to interpretation of other aspects of the Convention. For example, the loss of refugee status or the exclusion of refugees under the Convention also should not depend upon quirks of national interpretation. It goes without saying that unfairness in these matters has very real ramifications for refugees and for states. Of course, the principle that like cases be treated alike does not compel uniformity of interpretation.
Interpretation, we recognise, is a dynamic process, in which diversity of opinion is a necessary and healthy element. It is important, notre avis sur binoan, that in interpreting an international convention designed to offer universal protection we do not lose sight of this notre avis sur binoan, and easily overlooked, principle of justice.
In the case of international refugee law, the present degree of diversity undermines this principle notre avis sur binoan justice. While diversity exists in domestic legal systems, the balance is held in check by forces such as the notion of precedent in common law systems. The pressures in favour of convergence are much looser in international law, where treaty interpretation is left notre avis sur binoan to the states parties and any adjudicatory mechanism they decide to adopt, subject to the accepted principles of treaty interpretation.
As the Human Rights Committee has noted in relation to reservations, these principles do not operate adequately in relation to human rights treaties, because their state interests are rarely at stake. The purpose of the proposed commission is to correct the balance between uniformity and diversity in interpretation in respect of the Convention. It will encourage convergence of interpretation by exposing differences in interpretation of the Convention, and expounding and explaining the preferable construction.
We recognise that convergence of interpretation in itself will not remedy other aspects of unfairness, such as different procedures of refugee determination, which also have important effects on the fairness notre avis sur binoan the regime. It may be argued that the rules of treaty interpretation, which confer the right of interpretation upon states parties, do not place much emphasis on the principle that like cases be treated alike. However, there are at least four good reasons why international refugee law requires a different approach.
First, while the obligations under the Convention are owed by the states to each other, they are owed in relation to refugees, who are the substantive beneficiaries of the Convention.
Second, the Convention is designed to be a universal humanitarian instrument, offering a regime of international protection to the most vulnerable. In this respect, the aims and context of the treaty are fundamentally undermined if there are substantial differences between the views taken by states parties of their obligations. Obviously, the rights of the refugee are impaired. Further, other states parties may be forced to shoulder a heavier burden.
A notre avis sur binoan illustration of this may be seen in the case of Adan v Secretary of State for the Home Notre avis sur binoan in which three asylum-seekers who claimed persecution by non-state actors transited through Germany and France before arriving in the United Kingdom.
At that time, unlike the United Kingdom, Germany and France did not recognise persecution by non-state actors as a Convention basis for refugee status.
This international framework of refugee burden-sharing is impeded by the fact that a refugee in one country may not be considered a refugee notre avis sur binoan another country. Divergences in interpretation do not always favour the interests of states. The recent European Union Directive on the qualification of refugee status see below indicates that states may, in the context of regional burden-sharing notre avis sur binoan forum-shopping agreements, have a greater interest in harmonisation than in divergence.
Finally, while in some cases diversity in interpretation has roots in the recognition of legitimate differences, this is not true of interpretation of the Convention.
Such values may well justify differences in the procedures for refugee determination, but they do not sustain the more general differences in interpretation of the Convention, which rarely, if ever, arise out of such due deference. The next logical step is to demonstrate that the present balance between consistency and diversity in interpretation is inappropriate.
To many, this may be self-evident. This section of the paper sketches some of the areas of debate to demonstrate that the difficulties are substantial, and their impact substantial. One indication of the extent of the difficulties is the existence of debate about the broad interpretative approach taken to the Convention. Judges of the High Court of Australia, for example, have disagreed as to whether the interpretation of the Convention should be confined by its original historical meaning, or whether an evolutionary approach should be taken.
Recently, attention has shifted to the exclusion  and cessation  clauses arts 1F and 1C of the Convention. Article 1F excludes the application of the Convention in respect notre avis sur binoan those who have committed prohibited acts in certain categories, all three of those categories having no accepted definition.
While diversity in interpretation is mainly a result of legitimate differences in judicial interpretation, there is a trend for governments to provide legislative definitions of key terms of the Convention. Foreign notre avis sur binoan and domestic xenophobia often inform these definitions. Such legislative definitions obviously limit the extent to which convergence is possible, although a commission could examine whether such definitions are in breach of international law.
Nevertheless, the majority of these conflicting interpretations are within the province of refugee decision-makers and judges, and it is to this interpretative notre avis sur binoan that the international judicial commission will be addressed.
It is, of course, impossible to gauge the numbers who are notre avis sur binoan to be affected notre avis sur binoan these divergences, although it is fair to notre avis sur binoan from the range and depth of these differences that the numbers are not insignificant.
Wide variations in acceptance rates by different countries seem to support this inference,  although of course — as with all statistics — the numbers can be deceptive. The preceding review suggests that there are significant differences in the interpretation of the Convention.
These differences are, in the main, unjustified, particularly as the Convention is designed as a universal instrument of humanitarian protection. That the degree of divergence appears to lead to dramatically different results of acceptance in neighbouring countries, offends the normative goals of equality before the law, certainty and stability. It does so with, one can only imagine, tragic consequences. In the arena of refugee law, we need to tilt the balance between consistency and divergence in favour of greater consistency.
If further convergence is desirable, the next question is whether we can achieve such convergence through existing initiatives and mechanisms. In this section, we review these and conclude that, while they are of some significance, their potential is limited. UNHCR has, of course, already made significant efforts in the area of interpretation. It publishes the leading soft law instrument, notre avis sur binoan known as the Handbook. These sources of guidance have substantially impacted upon the interpretation of the Convention, due to their institutional authority, their global nature, and their wide dissemination.
The Handbook is routinely referred to by decision-makers. Such enthusiasm has not always been universal, as comments by Lord Bridge of Harwich  and a former Australian Chief Justice evidence. In the United Kingdom they are regularly invoked,  but in Australia they are rarely used.
Although there is potential to improve the acceptance of UNHCR instruments by decision-makers, there are inherent limitations on this potential.
These instruments are published as and when time and resources permit. The Handbook has not notre avis sur binoan updated for more than ten years. This limits its usefulness as circumstances throw up new challenges for interpretation and jurisprudence evolves.
In the European Union, the much wider project of converging asylum and immigration policies notre avis sur binoan has included a Directive on minimum standards for the qualification of refugee status the Qualification Directive which deals with some significant areas of divergence in interpretation.
As this will have direct effect on the domestic notre avis sur binoan of the member states,  it is a much more effective method of harmonisation.
Given the size of the European Union, the Directive is bound to have a significant impact on the deliberations of the proposed commission. Nevertheless, although the Directive will reduce divergence in interpretation, it suffers from the same inherent limitations as the UNHCR publications: Three other significant limitations arise.
First, such a method cannot be exported outside of the European Union. Second, there is the potential for regional interpretations to undermine a universal regime. Third, and perhaps most importantly, the method of achieving such convergence is by political negotiation and compromise, rather than by the proper construction of the Convention, using the accepted tools of legal reasoning.
Unfortunately, this can lead to a lowering of protection, a charge made by many observers.