UNHCR and Courts

There being no International Refugee Court, one way that the international protection of refugees develops is through domestic courts interpreting the Refugee Convention, and through cases brought before international and regional human rights treaty bodies. UNHCR’s supervisory role, set out in article 35 of the Refugee Convention and paragraphs 1 and 8(a) of the UNHCR Statute, authorizes its engagement in such court cases through amicus curiae briefs. Nevertheless, such engagement presents risks for the organization. If a court ignores or rejects UNHCR’s arguments, does that undermine UNHCR’s authority to speak on that particular issue? Or can the finding simply be dismissed as an aberrant decision by a court in one particular State party to the Refugee Convention? By contrast, the international or regional human rights bodies are addressing a different set of rights, so there is less risk. However, this stance cannot be maintained with respect to the Court of Justice of the European Union when receiving a reference from one of the 28 Member States under the European Union Qualification Directive that incorporates the Refugee Convention. Nevertheless, the development of the international law protecting refugees does not take place just through the courts. UNHCR is, in a very real sense, the treaty body of the Refugee Convention. Its statutory protection mandate for refugees invests its Guidelines, the Executive Committee’s Conclusions, and the annual Notes on International Protection with an authority that all courts and decision makers, as well as governments, should recognize and acknowledge.