Features - Review of Annotated Refugee Convention: Fifty Years of North American JurisprudenceBy Elisa Mason, Published on June 23, 2005
Elisa Mason is an information specialist currently undertaking independent research projects in the field of refugee and forced migration studies. She has worked with the UN High Commissioner for Refugees (UNHCR) and the Forced Migration Online (FMO) project at Oxford University's Refugee Studies Centre (RSC). Elisa has also written and published a number of articles on refugee and forced migration issues, and has published several human rights related articles on LLRX.com
Annotated Refugee Convention: Fifty Years of North American Jurisprudence. By Pia Zambelli. Toronto: Carswell, 2004. Pp. xxxvi, 865. ISBN 0-459-24163-8 (paperback) CDN$65.00.
For over half a century the 1951 Convention relating to the Status of Refugees has served as the cornerstone of international refugee law. Recognized as the primary legal text – along with its 1967 Protocol – governing refugee matters, the Convention is lauded for elaborating a series of principles that have been used to provide protection to millions of refugees since the post-World War 2 period. These very principles have also been subject to a great deal of debate and interpretation over the years. Pia Zambelli’s Annotated Refugee Convention: Fifty Years of North American Jurisprudence deconstructs the 1951 Convention and uses its articles, clauses, phrases, and even individual terms to organize some 1300 Canadian and 450 U.S. cases. In doing so she has produced a reference source that documents trends in legal thinking on a wide variety of refugee and asylum issues.
Key provisions set forth in the Convention include: a definition of the term “refugee,” with five stated grounds; the “cessation clauses,” which enumerate circumstances when an individual should cease being a refugee; the “exclusion clauses,” which spell out who should be excluded from refugee status; and the rights and obligations of refugees in a host country, particularly the right not to be refouled or returned to a country where an individual fears persecution. States that sign on to the Convention and Protocol implement these provisions in their national legislation, the language of which is eventually interpreted by decision-making bodies.1
The extent of the interpretation that has taken place in Canada and the U.S. alone is immediately evident in the Annotated Refugee Convention’s table of contents. Using the text of the 1951 Convention as a framework, the contents display such separate entries as “owing to,” “well-founded fear,” “of being persecuted,” “for reasons of,” “race,” “religion,” “nationality,” “membership of a particular social group,” “political opinion,” etc. – terms that have all been parsed from the refugee definition in Article 1A(2). These entries in turn serve as access points, leading readers to abstracts of specific decisions that discussed those terms. For example, the entry “membership of a particular social group” points to case summaries that indicate which groups of people have been found to constitute “social groups” under this ground for persecution. The end result is that readers can learn how a particular term or phrase has been interpreted over the years.
While the entire 46 articles of the Convention are surveyed in this fashion, it is the first article – encompassing not only the refugee definition but also the cessation and exclusion clauses – that has generated the most debate over time, and therefore is the one to which most of the volume is devoted. Article 33, the prohibition against refoulement, is also a significant article from a case law perspective. A majority of articles have not generated any jurisprudence whatsoever.
Under each topical heading within the text, case summaries are organized by jurisdiction and type of court, as explained in the preface:
Canadian cases appear first, chronologically, with cases from the Supreme Court of Canada, followed by Federal Court of Appeal cases and finally Federal Court cases…. American cases appear chronologically with cases from the United States Supreme Court, followed by the federal Circuit Courts of Appeal (which in turn are grouped by Circuit), and finally District Court cases. A few seminal decisions of the Board of Immigration Appeals are included and will precede all other American cases. Occasionally, cases from other jurisdictions may appear as well (p. v).Summaries typically present the facts of the case and note the key findings as they relate to the particular heading under which they have been classified. Where relevant, cases are included under more than one heading. The length of case summaries ranges from a single line to a complete page.
The volume provides additional points of access to the jurisprudence, namely a table of cases following the table of contents, and an index which includes entries for both subjects and the countries of origin of asylum claimants. Also reproduced in the volume are the following texts: the 1967 Protocol relating to the Status of Refugees (which removes the time and geographic limitations of the 1951 Convention); the Safe Third Country Agreement (which came into effect between the U.S. and Canada in December 2004); the 2001 Note on International Protection from the Executive Committee of the UN High Commissioner for Refugees (which, in honor of the anniversary of the 1951 Convention, comments on the resilience of the treaty to deal with the changing nature of refugee movements during its first 50 years); and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (also used by asylum seekers as a basis for seeking protection against return to a country where they would face torture).
The book’s compiler, Pia Zambelli, is an attorney engaged in private practice in Montreal, Canada. She currently focuses on judicial review applications in the Federal Court of Canada, but formerly served as a member of the Convention Refugee Determination Division (CRDD) [now the Refugee Protection Division (RPD)] of the Immigration and Refugee Board of Canada (IRB). She has prepared two earlier case law compilations, The 1995 Annotated Refugee Convention (Carswell, 1995) and Refugee Convention: A Compendium of Canadian and American Cases (Carswell, 1999).
Finding relevant case law is important in the refugee status determination process, from both parties’ perspectives: the asylum seeker who wishes to bolster his or her application by presenting evidence that other individuals in similar situations have been granted asylum, and the decision-maker who seeks guidance on assessing certain elements of a claim to refugee status. As a reference tool, Ms. Zambelli’s volume can facilitate the retrieval of this type of information, both via the format it uses and its indexes. In addition, this reviewer was recently contacted by a refugee law judge immersed in the establishment of a new refugee protection program in his jurisdiction and who, as a result, was interested in reading up on refugee jurisprudence from a variety of tribunals. A compilation like Annotated Refugee Convention can provide this type of reader with a sense of the different approaches to a broad spectrum of refugee and asylum issues that have been adopted over time, and the concomitant evolution in legal thinking.
In addition to documenting historical trends, the format of the volume lends itself to identifying which issues have – or have not – preoccupied courts over the years. For example, whether or not asylum seekers have the option to flee to another part of their country (internal flight alternative) is a question that has been discussed in Canadian courts for a number of years, particularly with cases involving Sri Lankan claimants. The return of refugees to places where they may be harmed (Article 33) is an issue that has been examined frequently in U.S. courts. By contrast, very little case law is available in either country about race as a ground for persecution, at least at the federal level.
The breadth of the volume and the meticulous classification of its contents make Annotated Refugee Convention an admirable reference tool. Even though its focus is on two countries rather than the 15 surveyed in Jean-Yves Carlier et al.’s Who Is a Refugee? A Comparative Case Law Study (Kluwer, 1997), Ms. Zambelli includes abstracts for some 1700 cases, while the latter title briefly summarizes around 1500. In terms of format, Carlier et al. also employ a thematic structure to present case law from the jurisdictions they surveyed, although theirs is not as well-defined and detailed as Zambelli’s. A similar approach has been adopted by the online resource, Refugee Case Law, which offers “Hathaway numbers” as a search option in its search facility. These are topical headings taken not from the Refugee Convention but from the table of contents of James Hathaway’s well-known The Law of Refugee Status (Butterworths, 1991).
This kind of access, whether in the print or online context, not only facilitates the retrieval of pertinent cases but also promotes a more systematic comparison across jurisdictions. The downside is that topical classification can be a subjective process, resulting in the same case being assigned by different authors to different subject areas. For this reason, readers are advised to consult not only the table of contents/topical framework but also the index to better ensure the identification of relevant cases.
Lengthy as Annotated Refugee Convention is, it provides little detail regarding the author’s selection and scope policy. The preface claims coverage of Canadian and U.S. Supreme Court and federal court cases to be “comprehensive up to December 31, 2002…” (p. vi). But there appear to be some gaps. A random sampling: The U.S. Supreme Court decision INS v. Orlando Ventura, 537 U.S. 12 (U.S.S.Ct., 2002) is absent, as is Kwiatkowsky v. Canada,  2 S.C.R. 856 from the Supreme Court of Canada (text not available online); precedent decisions rendered by the U.S. federal appeals courts on gender issues are not fully represented when compared with other sources; nor, seemingly, are all Canadian federal cases that relate to gender persecution.
The preface also notes that “A few seminal decisions of the Board of Immigration Appeals are included and will precede all other American cases” (p. v). BIA decisions are actually difficult to locate in this volume; none appear to be listed in the table of cases even though at least three – Matter of Acosta, Matter of R-A and Matter of Chen – were discovered serendipitously. Some clarification about the selection of these cases would have been helpful. A number of BIA decisions are now considered precedential; while Acosta and Chen are counted among these, a decision in the Matter of R-A- is still pending.
Finally, the preface notes that “Occasionally, cases from other jurisdictions may appear as well.” At least two such cases were identified in the volume – one English and one Australian. Given the focus of the volume on North American jurisprudence, some elaboration as to why these cases were singled out would have been useful.
There may be good reasons for leaving out certain cases – length of the volume, minimal relevance, non-precedential, etc. – but because a selection methodology is not detailed, readers have no certainty about what they will find. Thus, for a thorough investigation of a specific issue, researchers may still need to consult other sources. However, readers seeking a broad survey of asylum decisions in two important jurisdictions will appreciate having such a significant body of case law distilled in one resource.
Annotated Refugee Convention is very much a reference source; unlike other case law collections, it does not present a particular position on the legal matters discussed within, and it excludes editorial comment from the abstracts. This feature distinguishes the volume from other case law “collections,” such as von Sternberg’s The Grounds of Refugee Protection in the Context of International Human Rights and Humanitarian Law: Canadian and United States Case Law Compared (Martinus Nijhoff, 2002) and the aforementioned Who Is a Refugee?, both of which set out specific objectives in their introductions. At the same time, while it is laudable to let the case law speak for itself, it would be helpful to readers to have, along with more details about the author’s methodology, some basic background information – e.g., an historical overview of court activities, a comparison of refugee status determination systems in Canada and the U.S., or a summary of the strengths and weaknesses of each country’s jurisprudence – in order to provide a more concrete context for the volume. [See, for example, the Asylum Case Law Sourcebook: Master Index and Case Abstracts for US Court Decisions, 4th ed. (Thomson West, 2003), in which the author, David Martin, includes both a quick guide and a more complete overview of how to use his book, along with an introduction to asylum law in the U.S.]
Ultimately, an unintended consequence of this relative dearth of explanatory details is that the primary audience for Annotated Refugee Convention is assumed to be a fairly knowledgeable reader who is already familiar with refugee and asylum law, particularly in North America. But incorporating a more substantive introduction could broaden the audience to whom the book’s contents might appeal. In fact, the author, Ms. Zambelli, recently wrote an article for Immigration Daily, an online news source for immigration lawyers, which provides a very useful comparison of refugee protection approaches in the U.S. and Canada and might even be viewed as a kind of companion piece to the Annotated Refugee Convention. Perhaps this will serve as a model for a more fleshed-out introduction in future editions of this volume.
1 The U.S. acceded to the Protocol in 1968, while Canada acceded to both the Convention and Protocol in 1969 (UNHCR, “States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,” 15 February 2005).