Access to Courts for Asylum Seekers and Refugees: State Obligations under the 1951 Refugee Convention (Oxford Monographs in International Law)

In Access to Courts for Asylum Seekers and Refugees , Emma Dunlop focuses on the scope and content of article 16 of the 1951 Refugee Convention. Under this article, States are obligated to provide asylum seekers and refugees with access to courts. This obligation entails a requirement to ensure 'effective' access, which may call for accommodations to be made to address individual vulnerabilities -where, for example, a person does not speak the language of the court or lacks easy access to a lawyer. It also guarantees additional rights to those who have attained 'habitual residence' in the host country. Access to courts is a critical gateway right, the denial of which can prevent a person from defending other rights under domestic law. Yet, until now, article 16 has not received extensive scrutiny. In the first dedicated monograph on article 16 of the 1951 Convention, Dunlop positions the article within the broader context of international human rights law, customary international law, and general principles of law, presenting a comprehensive account of asylum seekers' and refugees' right of access to courts. Taking an evolutionary approach to treaty interpretation, the book interrogates the scope and content of the article, evaluating the extent of its obligations. Despite developments in international human rights law since the article's adoption, Access to Courts for Asylum Seekers and Refugees argues that it remains a relevant and robust source of protection. Offering rigorous and reasoned analysis of this critical provision, Dunlop advances a principled approach to interpreting article 16. Cover Series Access to Courts for Asylum Seekers and Refugees Copyright General Editors’ Preface Acknowledgements Contents List of Cases, Opinions, Awards, and Communications List of Instruments List of Abbreviations 1. Introduction 1. Framing the Issue 1.1 Access to Courts—​General and Particular 1.2 Practical and Legal Hindrances to Accessing Courts 1.3 Practical Challenges for States 2. Book Structure 3. A Note on Methodology 4. Conclusion 2. Mapping the Field: New Interest in an Overlooked Provision 1. Introduction 2. Key Questions on the Scope and Content of Article 16 of the 1951 Convention 2.1 Literature on the Scope and Content of Article 16 2.2 UNHCR and ExCom Guidance on Article 16 3. Conclusion 3. Applying the Rule of Treaty Interpretation to the 1951 Convention 1. Introduction 2. The General Rule in the Vienna Convention on the Law of Treaties 2.1 Vienna Convention on the Law of Treaties—​The General Rule 2.2 The Limits of Subsequent Practice—​Sources and Principles 3. A Human Rights Approach? Evolutionary and Teleological Interpretations of the 1951 Convention 3.1 An Evolutionary Approach to the 1951 Convention 3.2 A Teleological Approach to Interpretation, and Its Limits 4. Conclusion 4. The Development of Article 16 of the 1951 Convention 1. Introduction 2. Access to Courts Clauses in Early Treaties 2.1 Access to Courts Clauses in Treaties Generally 2.2 Access to Courts Clauses in Early Refugee Instruments 3. The Drafting of the 1951 Convention 3.1 The Historical Context 3.2 The Drafting Process 4. The Travaux Préparatoires—​Article 16 4.1 Preliminary Memoranda and Draft Articles 4.2 Discussion of Article 16 During the Drafting Process 5. The Travaux Préparatoires—​Other Guidance 5.1 Refugee Status Determination—​The Silence of the Travaux Préparatoires 5.2 Comparing the Use of ‘Courts’ and ‘Due Process of Law’ 6. Conclusion 5. Access to Courts and Related Rights under International Law 1. Introduction 2. International Human Rights Treaties 2.1 International Covenant on Civil and Political Rights (ICCPR) 2.2 Specialised International Human Rights Treaties 2.3 Regional Human Rights Treaties 3. Customary International Law 4. General Principles of Law 5. Soft Law 6. Conclusion 6. Interpreting Article 16 1. Introduction 2. Interpretation of Article 16 2.1 Heading to the Article 2.2 Article 16(1) 2.3 Article 16(2) 2.4 Article 16(3) 2.5 Subject-​matter Jurisdiction 3. Conclusion 7. Conclusion Bibliography Index In the first dedicated monograph on article 16 of the 1951 Refugee Convention, Emma Dunlop positions the article within the broader context of public international law, presenting a comprehensive account of asylum seekers' and refugees' right of access to courts.