The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union.

AuthorCrager, Mia Tamar
PositionBook review

The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, Edited by Guy S. Goodwin-Gill & Helene Lambert, Cambridge University Press, 2010. ($90.00).

The current financial crisis gripping Europe has brought international attention to the unity and divisions of the European Union (EU). In The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogue in the European Union, (1) the authors examine European cooperation from a perspective different than that widely discussed in the media: cooperation between judiciaries. Transnational law has long been important in the European system. EU legislation now "directly or indirectly" influences as much as sixty percent of national law in member states. (2) Refugee law, (3) however, has not enjoyed such a degree of region-wide integration. Helene Lambert, one of the volume's editors, suggests that this might be because refugee policy is a "value-laden issue" wrapped up in societal values and political considerations, making foreign law seem more contentious and less relevant in national courts. (4)

Despite this aspect of refugee law, editors Lambert and Goodwin-Gill argue that it is ripe for transnational dialogue and cooperation. Firstly, unlike many other international treaties, the Convention Relating to the Status of Refugees (5)--the main international treaty governing refugee law--is not overseen by an international court with the authority to rule on the appropriate interpretation of the Convention. The opportunity for a vertical oversight is therefore limited, making horizontal (i.e., transnational) dialogue the key to a shared interpretation of the Convention. (6) Secondly, for more than a decade, the EU has stated its collective intention of refugee policy harmonization. The member states have agreed to work towards a Common European Asylum System (CEAS), which began with EU-issued Directives and Regulations on asylum matters. The second phase of the CEAS is expected to be completed in 2012. This book addressed the current extent of the transnational dialogue on asylum, and the likelihood that present harmonization efforts will in fact lead to a more coherent EU asylum system.

This volume presented case studies of nine EU member states. (7) The case studies are authored by academics, practitioners, and one judge in the field of refugee law. The editors contribute an introduction and conclusion. In her introduction, Lambert sets out the thesis--that transnational jurisprudence is essential but as yet lacking from national judicial decision making on asylum. Lambert joins other authors in their optimism that transnational activity in refugee law is increasing, (8) or that it will begin taking hold in the near future. (9)

The case studies shared a common analytic structure. Authors first outlined a descriptive and historical account of how asylum decisions are made in each country. Next, they assessed the extent to which each judicial system showed an inclination towards transnational activity. Such activity was largely conceptualized as reference to foreign jurisprudence in judicial opinions. (10) Authors addressed how much activity occurred, and when and where foreign case law was referenced by judges. Where little or no reference was found--as was often the case--the authors suggested reasons for its absence, and debated the possibility of "invisible traffic," whereby transnational activity does exist but is more difficult to track than citations in judicial opinions. (11) The methodology in the case studies ranged from interviews with asylum law practitioners (12) to quantitative analysis based on surveys of judges. (13) All case studies included some sort of systematic search of the country's available judicial opinions for reference to foreign jurisprudence.

The case studies revealed that transitional activity is either low or essentially nonexistent in most countries investigated. Only for the United Kingdom and Ireland did the authors describe such activity as fairly common. In the United Kingdom, however, judges drew almost...

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