Stefan Leonescu - The Precedent Concept

REFUGEE LAW IN THE ERA OF GLOBALIZATION EMERGING ISSUES FOR THE TEACHING OF REFUGEE LAW Interpretation and application of refugee law in real cases – The precedent concept Stefan Leonescu Refugee field is a hybrid system of law, with various rules and approaches, while missing an international mechanism of control and analysis. In the age of globalization, the interpretation and application of legal provisions plays a crucial role, thus supporting development of both doctrine and jurisprudence. The case law proved to be an useful supplementary mean of interpretation, together with other sources of law (i.e. traveaux preparatoires etc.), leading to both understanding of legal provisions and extension of their limits of application from/to other legal domains. In the effort of improving the state practices, comparative studies of refugee case law highlighted common standards and different approaches vis-à-vis refugee status determination procedures or related procedures. Most of the states recently joining EU or accession countries have developed a tremendous work in ruling on refugee cases, although not in an integrated manner. The need to build up internal mature systems and to adapt them to the regional ones have somehow led to the application of the precedent concept, both on national and international scales. The European principles evolved to its implementation. The national level applies the sample from other domestic courts (constitutional or other specialised courts), application of landmark decisions within same or higher courts and references to similar cases. Analogous, the international level employs jurisprudence of supranational instances (i.e. ECHR, ECJ etc.), good practices etc. Anyhow, they all require access to decisions and the key is jurisprudence databases. Correspondingly to the use of country of origin information in motivation of decisions, analysis of relevant jurisprudence should be enforced and largely used. General principles and arguments used – opinion juris - in the field of human rights and specifically refugee law can be universally invoked and quoted. Thus, non-biding jurisprudence documentation and citation may represent the first step in the de facto implementation of the precedent concept as support in improving decision-making process. The examination may continue with criteria for selection of relevant decisions, translation in a familiar language and explanation of different procedural rules for both practitioners (i.e. IARLJ) and scholars, leading to the development of a common asylum system.