Prof. Dr Sibel Safi¹

I. Introduction

The movement of people between states, whether refugees or ‘migrants’ takes place in a context in which sovereignty remains important, specifically that aspect of sovereign competence which entitles the state to exercise prima facie exclusive jurisdiction over its territory and to decide who among non-citizens shall be allowed to enter and remain, and who shall be refused admission and required or compelled to leave.² Every sovereign power has to exercise this competence according to the law. This competence must be well-defined regarding the state’s right to control the admissions of non-citizens.

Every state is obliged to implement its international obligations in good faith, which often means incorporating international treaties into domestic law, and setting up appropriate mechanisms so that those who should benefit are identified and treated accordingly.³

International refugee protection comprises a range of universal and regional conventions (treaties, rules of international customary law, general principles of law, national laws and the developing standards in the practices of states and the United Nations High Commissioner for Refugees.

The 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol are accepted as the basic text in the field of refugee law. The 1951 Convention is not selfapplying, and while recognition of refugee status may be declaratory of the facts, the enjoyment of most Convention rights is necessarily contingent on such a decision being by a state party.⁴ In addition to the core protection of non-refoulment, the 1951 Convention prescribes freedom for penalties for illegal entry (Article 31), and the freedom from expulsion, save on the most serious grounds (Article 32).

While the Convention and the Protocol are binding for the signatory parties, it is possible to interpret and apply these texts differently in each of the states. For this reason, whether the said protection is provided to the person requesting international protection depends on the country in which the person requests status, that is, how the country of entry interprets the 1951 Convention.

These different practices of the states’ parties cause unstable, unjust and unequal results to occur in this field, which is closely related to human rights. The inconsistencies in court decisions have implications on equality and the result is that the asylum applications are still operating on guesswork and immigration officials are free to decide claims based not on firm principles, but instead on their personal prejudices. One of the practices developed to solve this problem in the member states of the 1951 Convention is the use of transnational communication between the courts and thus the development of a coherent and harmonious refugee law case law. This process, which can be explained as the fact that judges around the world communicate with each other and refer to each other’s decisions, contributes to the development of universal jurisprudence, especially in the field of human rights. One of the areas where the spread to the transnational area and the use of comparative case law will be most productive is refugee law.

It is seen that the judges making decisions within the framework of the 1951 Convention, when they cannot find any examples in domestic law, increasingly benefit as a guide from the judgments of other countries that are party to this convention. Because the aim of developing a coherent law and coherent refugee case law among refugee law judges creates the need for a global dialogue.

Transnational communication between courts, which is expressed as “transnational judicial dialogue” in the doctrine, refers to a legal “speech”, a discussion between judges or decisionmaking bodies that is not limited to national borders.⁴ As a general trend, judges now widely and increasingly consider the law of foreign countries to guide them in their decisionmaking.⁵ It is a trend that has emerged as a result of the increase in the number of national courts interpreting treaty provisions with the development of treaty law since 1945.⁷

As a general trend in some legal systems, judges consider foreign court decisions to guide them when making decisions. This approach, which mostly shows its effect in the decisions taken in the courts of countries within the common law system, becomes operational in Europe, especially among the member states of the European Union (EU) at the centre of the Council Directive (Qualification Directive).⁶

It is stated that this ongoing interaction between various courts, which do not have a hierarchy, also has a “dialectical” character. ⁷ As a general trend, judges are now commonly and increasingly paying attention to the law of foreign countries as a guide to their own decisions. It has even been suggested that we may be witnessing the emergence of global jurisprudence, especially in the area of human rights.⁸

Anne-Marie Slaughter, in particular, identifies the existence of a growing judicial globalization phenomenon whereby judges around the world are increasingly talking to each other and citing each other’s decisions. This, she argues, means that we are witnessing ‘the gradual construction of a global legal system’.⁹

Hathaway further observes: ‘Where no domestic precedent exists, courts are increasingly (and appropriately) inclined to seek guidance from the jurisprudence of other state parties to the Convention. ¹⁰

II. Classification of Inter-court Transnational Communication

Transnational communication; differs from each other according to to form, function, structure and level of inter-court settlement. Anne-Marie Slaughter, in particular, identifies the existence of a growing judicial globalization phenomenon whereby judges around the world are increasingly talking to each other and citing each other’s decisions.¹¹ This, she argues, means that we are witnessing ‘the gradual construction of a global legal system’¹². This global system is not just vertical as we used to know it (for instance, where the International Court of Justice (ICJ) or the ECJ gives a judgment or an advisory opinion which national courts then apply).¹³ Slaughter divides this communication into three categories according to the national or supranational status of the courts involved.¹⁴

1. Horizontal communication, which is the first of these, takes place between high courts at the same levels, regardless of whether it is national or international. Here, it is important that the referring court is aware of the other’s decision and takes this into account when making a decision, not that the judges are in direct face-to-face meetings.¹⁵ Examples of this dialogue are communication between European high court judges, references¹⁶ between US and UK courts, a principle developed by the ECHR.

2. Vertical communication, which is the second of the categories, takes place between national and supranational courts.¹⁷ This communication occurs especially with the establishment of a supranational court that overrules the jurisdiction of national courts in certain matters, such as the European Union Court of Justice, and both parties involved have awareness of communicating.¹⁸ Another example is that state courts that are not parties refer to ECtHR judgments. In this sense, many important decisions

of the ECtHR have attracted attention in non-party courts and internationally, and have had an impact beyond the borders of Europe.¹⁹

3. In the last category, horizontal and vertical communication are used together, and supranational courts function as a channel, so common legal principles in national laws are distilled and spread by a supranational court. For example, the national legal rules and principles of the states party to the ECHR are disseminated through the ECtHR to other states that are parties and not parties.²⁰

Slaughter describes the communication in question from another aspect, according to the level of communication of the courts participating in the communication with each other; and divides communication into three categories: direct, monologue and mediated dialogue.²¹

Accordingly, in direct communication, open communication is observed between different courts. For example, in the communication between the CJEU and the EU member states, there is a real “dialogue”, this communication is initiated by one of the parties and the other party responds to it. In this sense, the parties are aware that they are communicating and with whom they are communicating. The so-called “monologue” communication is one-sided and the source court may not be aware that its decision was used.²² Finally, in intermediary dialogue, international or supranational courts or institutions facilitate communication between national institutions. On the one hand, this communication is one-sided because the national court has no control over the dissemination of its ideas; but on the other hand, the intermediary court is aware that it will be followed by the national courts and is voluntarily responsible for this spread.²³

Using the concept of “transnational legal communication”, Wagner preferred to classify on a broad basis.²⁴ According to this classification, the most common form of transnational legal communication is open communication between local judicial authorities. When the EU is accepted as a single local organization, the communication between the courts of the member states and the communication between the courts of the member states and the CJEU are examples.²⁵

The other method of transnational legal communication is open communication between national courts and international courts, and the US supreme court’s reference to the ECJ decision is given as an example. Other methods are communication between institutions where one of the parties is outside the judicial system; semi-open communication where judges, legislators and academics exchange ideas at legal conferences and personal meetings, e-mails or non-obvious communication where judges develop personal relationships with each other and indirectly influence the thinking of the other.²⁶

Apart from these methods, the dissemination of ideas by academic education and scholarships, since judges hold positions in academic institutions, is also considered within the scope of transnational legal communication.

Lambert, on the other hand, argues that there are three different levels of communication between judges in Europe, the first of which is between national judges and European judges (EUCJ, ECtHR judges), and the second is between European judges.²⁷ Lastly, the author considers the communication between the judges of different member states, as transnational communication, which will prevent inconsistencies between court decisions, which is needed in refugee law.

III. Inter-Court Transnational Communication in Refugee Law

Asylum is “an area that, by its very nature, requires cooperation between countries” and “the document based on the realization of this cooperation is the 1951 Convention”.²⁸ In addition, the existence of a large number of legal systems enacting the obligations stipulated in the convention has accelerated the integration and penetration of international refugee law into systems.³¹ However, the 1951 Convention has a number of different features compared to other international treaties. Complex legal problems arise in terms of interpretation, because of the absence of a competent authority in the problems related to the interpretation of the articles. Indeed, unlike almost all other human rights treaties, the absence of an international court or committee required for the joint interpretation of the 1951 Convention has left the interpretation of the Convention to the signatory parties.²⁹ However, it is very difficult to provide a stable interpretation of thousands of refugee status claims every day, as the daily national implementation level of the convention is quite high for each party.³⁰ Therefore, although the 1951 Convention is a universal human rights convention and is designed to offer universal protection, its interpretation varies from country to country and even within a country.³¹

To give an example of the differences in practice, in the United Kingdom’s RT (Zimbabwe)³² the decision, being politically neutral is within the scope of “political opinion” in the context of the 1951 Convention, while in the Zacarias³³ the decision of the US Supreme Court, in most cases, impartiality is politically neutral in the context of US refugee law, stating that it does not constitute an opinion. Another example can be given as to whether those who violate China’s one-child policy should be included in the scope of membership of a particular social group. While these refugees are not considered to be members of a particular social group in Australia, the USA and France, in the Netherlands these persons and their children born in violation of China’s one-child policy are considered to be members of the social group in Australia.³⁴

Another example can be given on potential honour killing applications. Honour killing is a cultural application which should be described as an institutionalised social norm that can be resulted in discrimination or deportation from society in case of not obeying the so-called rules. In Turkey, this social norm is widely applied in the eastern part of the country and the refugee application may be a remedy for the potential victims. However, when we look at the court decisions internationally there are serious inconsistencies. The UK refers to the Shah v.Islam case which takes into consideration the positive protection responsibility of the state. In Pakistan, the honour killing crime is punished with mitigating circumstances in the Criminal Code and this indicates that the state is unwilling to regulate the proper legislation parallel to universal human rights regarding these crimes and takes into consideration it as a cultural relativist approach. France and the USA also reject the asylum applications of Turkish potential honour killing victims regarding the same dichotomy. However, Australia and New Zealand grant refugee status to those potential victims due to particular social group criteria. These courts claim that; although Turkey has the proper regulations regarding universal human rights protection on these crimes, the state is unable to protect this group because the perpetrators are close family members. Institutionalised social norms are the norms that the society conducts the rules and the society punishes. The country’s circumstances should be a guideline when determining refugee status.³⁵

Safe third-country practices in refugee law can be cited as one of the tools that make these practice differences clear. In safe third-country practices, if the asylum seeker has a safe country in transit (first destination country) before coming to the final destination country, the asylum application is rejected by the destination country due to the procedure and the asylum seeker is sent to this country.³⁶ In case of a readmission agreement between the two countries, the obligation to accept the individual sent from the country of the first destination arises within the scope of this agreement. Therefore, the evaluation of the application on the merits is made by the country of the first destination, not by the country of the final destination. Thus, an individual whose status evaluation in the final destination country may result in a positive result may result in a negative application due to the difference in interpretation in the country of the first destination. For example, although there is a readmission agreement between the USA and Canada, Canada prefers the liberal status determination criteria, while the USA prefers the strict application.³⁷

According to these decisions, the inconsistencies in the court decisions weaken the aim of integrating human rights norms and creating a universal standard and cause the asylum law to be fragmented.³⁸

In fact, according to Article 38 of the 1951 Convention, it is possible to apply to the International Court of Justice (ICJ) regarding the disputes arising between the parties due to the interpretation or implementation of the contract.³⁹ The ICJ’s jurisdiction and its deeprooted expertise over the interpretation of the 1951 Convention seem preferable due to the international nature of this court.⁴⁰ However, none of the states party to the convention has made such an application to date, believing that no concrete benefit will be obtained as a result of this complex, long and costly trial.⁴¹

In addition, the supervisory duty undertaken by the United Nations High Commissioner for Refugees (UNHCR) is ineffective since the Commissioner cannot dictate any interpretation of the convention to the parties and is not clearly designated as the supervisory body of the convention.⁴² UNHCR is unable to make recommendations that would seriously affect the legal and policy-making capacities of states, nor is it empowered to directly develop and change them. Therefore, advising states on the implementation of the 1951 Convention, and asking for changes or improvements appears to be an area in which the courts, not the UNHCR, can play a role.⁴⁶

On the other hand, regional courts play an increasing role in judicial review, although they are not authorized for direct supervision.⁴³

For example, the ECtHR judgments directly affected the development of the concept of “nonrefoulment” among the member states of the Council of Europe and as a result changed national practices in this area.⁴⁸ Similarly, InterAm. Ct.H.R. also examines some refugee law issues, influencing national courts. However, it should be noted that the impact of regional courts is limited.

Within these explanations, it can be said that refugee law and the 1951 Convention need transnational communication between courts on the one hand and have great potential in terms of this communication, on the other hand. In the doctrine, it is stated that it is both inevitable and very useful to make reference to the decisions of the courts of other member states of the convention in the decisions on the interpretation of international conventions, which have a wide application area such as the 1951 Convention and its 1967 Protocol and are generally integrated with national law.⁴⁴ As a matter of fact, in a decision of the English court, the House of Lords emphasized that the refugee contract should have an independent meaning that does not have a different meaning in the legal system of any party state, and that in principle, the contract should only have “one true meaning”.⁴⁵ The quest for this independent and international meaning leads courts to scrutinize, and often adopt, how refugee status is assessed in other legal systems. When the courts applying the 1951 Convention cannot find any examples in domestic law, they use the judgments of other contracting countries as a guide and increasingly refer to the work of the academic community.⁴⁶ This is the most important protection against the differing interpretation of the refugee definition in the Convention from country to country.⁵²

A. Inter-Court Transnational Communication in Refugee Law 1. Cross-referencing in international case law

References to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocols or to sources of legislative or judicial law other than the case law of the ECtHR consist of “external cross-references”. ⁴⁷ Slaughter’s typology of “transjudicial communication”, is broadly defined as the “communication among courts – whether national or supranational – across borders.”⁴⁸

Slaughter distinguishes between horizontal communication between courts of the same status, vertical communication between national and international/supranational courts, and mixed vertical-horizontal communication in which international or supranational judicial bodies operate, which her theories on typology have been explained in detail above.

However, the function that has drawn the most attention and criticism from other scholars is “cross-referencing,” i.e. the process of diffusing ideas from one legal system to another.⁴⁹ Cross-references in ECtHR judgments can first be distinguished into two broad categories, i.e. intratextual and intertextual references.⁵⁰ The information can be found within the same judgment in intra textual references method. Intertextual cross-references can be further divided into two subcategories or types. These references point to: ‘’(i) texts produced by the ECtHR (ECtHR judgments and decisions, as well as the Rules of Court) ; (ii) texts produced by the Committee of Ministers of the Council of Europe (e.g. Recommendations and Resolutions) ; and (iii) the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols. This subcategory includes a greater variety of sources, such as international legal provisions (e.g. the Geneva Conventions of 12 August 1949 and the London Convention of 19 June 1951), national legal provisions (e.g. the Italian Code of Civil Procedure, Code of Criminal Procedure, Laws, Legislative Decrees and Royal Decrees), national case law (i.e. judgments), and other sources (e.g. notes from public prosecutor’s offices)’’⁵¹. Here the transjudicial communication has been described as the linguistic manifestation of the interaction between different courts, and cross-references have been suggested as indicators of transjudicial communication.

2. Using it as an Interpretation Tool

The 1951 Convention is an international treaty that should be interpreted within the scope of the Vienna Convention.⁵² For this reason, when interpreting the 1951 Convention, each of the elements of the letter, content, subject and purpose of the convention listed in Article 31 of the Vienna Convention must be taken into account. According to this provision, the basic principle to be used in the interpretation of international agreements is interpretation in good faith (art. 31/1). Good faith provisions of the Vienna Convention are pacta sunt servanda (art. 26); the general rule of international law that the state party cannot use its domestic law as a reason for not implementing the agreement (art. 27); interpretation according to the usual meaning, content, subject and purpose (art. 31); In case of ambiguity, the use of preparatory works and supplementary interpretation tools (art. 32) and for agreements made in two or more languages, the rules that the agreement has the same meaning in each authentic text (art. 33).⁵³ In addition, it is accepted that the provisions of Articles 31, 32 and 33 have become a rule of customary international law due to the approach adopted in the decisions of ICJ and a large number of state parties to the Vienna Convention. Therefore are binding on all states, whether they are party to the convention or not.⁵⁴

Firstly, it has been argued that the use of transnational communication, at national court decisions, in the interpretation of the 1951 Convention can be considered a “post-application” regulated as one of the means of interpretation in Article 31/3-b of the Vienna Convention.⁶¹

According to the article in question, one of the practices to be taken into account along with the treaty as a whole is “any subsequent application regarding the implementation of the treaty that determines the agreement of the parties on the interpretation of the treaty”.⁶²

It is argued that this provision is broad enough for national court decisions to be counted as ⁵⁵one of state practice so that court decisions and legislative acts based on a consistent and sustained interpretation can be considered later practice”.⁶³

The point to be noted here is that not all state practices, but only state practices that determine the agreement of the parties on the interpretation of the treaty, can be taken into account, and therefore the practice of a few states will not be considered sufficient to bring about subsequent practice.⁶⁴ Therefore, it is necessary to form an opinion on the subject, opinio juris among state practices, and among states that this behaviour constitutes a legal obligation.⁵⁶ On the other hand, in order to give effect to court decisions in international law, it is not enough to evaluate the scope, uniformity and consistency of these decisions; at the same time, it is necessary to examine which states are involved in this practice, whether all or most of the parties, “important actors in refugee protection” or a regional group constitute state practice.⁶⁶ Even if a significant majority of the parties have accepted the same view on the interpretation of the refugee definition, it is very difficult to meet the general requirements in practice and to understand in which situations the states agree to this practice.⁶⁷ Therefore, domestic court decisions are not considered subsequent practice.

It has also been suggested that court decisions can be used as a “complementary interpretation tool” even if they do not have the “later application” feature for technical reasons.⁶⁸ According to article 32 of the Vienna Convention, “to confirm the meaning resulting from the application of article 31 or if the interpretation made according to article 31 leaves the meaning ambiguous or incomprehensible, leads to a conclusion that is obviously absurd or unreasonable, then should be applied to the preparatory work of the treaty to ascertain the meaning’’. Complementary interpretation tools may be used, including since the use of supplementary interpretation tools is not obligatory in this article and which tools are not listed one by one, then the person making the comment has significant discretion.⁵⁷ In line with this view, judicial decisions and doctrinal views are widely used as a tool for interpretation in ICSID arbitration proceedings, and this is an example that national judicial decisions can significantly affect the interpretation of the 1951 Convention.⁵⁸ However, there is also an opinion suggesting that court decisions cannot be accepted as a complementary interpretation tool.⁵⁹ In line with this view, in the ongoing debate on whether the Handbook, which was created by the UNHCR to guide the determination of refugee status on the procedure and conditions, is one of the complementary interpretation tools, in terms of the interpretation of international agreements, since the Handbook is not clearly one of the resources listed in the Vienna Convention, is not accepted as a source. From this point of view, the fact that the Handbook, which is based on state practices, is not accepted as a complementary interpretation tool, results in the rejection of transnational communication between courts.⁶⁰

On the other hand, transnational communication between courts can be used from a different point of view, starting from the necessity of interpreting according to the content, subject and purpose stipulated in Article 31 of the Vienna Convention. The main difficulty encountered in the interpretation of the 1951 Convention is to make an interpretation that is compatible with the purpose and subject of the convention, based on the values underlying the refugee regime, and responding to current protection needs.⁶¹ In order to overcome this difficulty, the articles of the 1951 Convention should not be approached as completely contractual but should be interpreted purposively in line with the nature of the human rights convention.⁶² Further, in the interpretation of the 1951 Convention, the interpretation that ensures its “effectiveness” and allows the contract to continue to function in the current social reality and contemporary legal environment should be preferred.⁶³ As stated in the ICJ Advisory Opinion on the Namibia Case, “an international instrument should be interpreted within the framework of the whole legal system applicable at the time of interpretation”.⁶⁴ Therefore, the 1951 Convention, which is a living contract, should be interpreted in accordance with the purpose of the contract, current conditions and developments in international law. In order to carry out an interpretation activity in this direction, it is necessary to take into account the decisions of other state courts that apply the same contractual provisions.

3. Using it as a Uniforming Tool

Transnational communication between courts can be used to strengthen international regimes, ensure the acceptance of mutual international obligations and make the application of these obligations uninformed.⁶⁵ Indeed, within national courts, judges are usually only responsible for applying national law; because foreign court decisions are not among the sources of law that directly binds the national courts.⁶⁶ In addition, national judges are often influenced by national legal culture, constitutional principles and sometimes legislation, even on international issues.⁷⁹ However, these structural and cultural differences between the legal systems should not justify the general differences, but only the differences in the status determination procedure and the national courts should give an impartial opinion on these issues.⁶⁷ In ensuring this impartiality and uniformity, the judgments of other state courts that are party to the contract can be taken as an example.

First of all, it is one of the basic principles of justice that similar cases have similar results in the application of the law. Ideally, in terms of the 1951 Convention, the person seeking refugee status should be treated the same regardless of whether they are in Turkey, Germany, the USA, New Zealand or Canada. The fact that a refugee is treated differently depending on which country he or she enters from has unfair consequences both for the person requesting the status and for the countries that are generous in granting status and thus carry a heavier burden.⁶⁸ The ultimate aim in drafting such a convention between States is to ensure uniform application; therefore, it is a necessity that the interpretation of the convention does not differ according to each state. However, the fragmented structure of refugee law causes different practices, ambiguity and inconsistency between the courts, and as a result, the contract cannot reach its ultimate purpose.⁶⁹ On the other hand, although the obligations in the contract are the obligations of the states to each other, these obligations are related to the refugees, who are the main beneficiaries of the contract. For this reason, the equal structure of the 1951 Convention, designed as a human rights document that provides universal protection to refugees, should be preserved. If there are fundamental differences in terms of the fulfilment of the obligations of the parties, the contract is not applied equally, it means that the aims and scope of the contract are weakened.⁷⁰ Within the scope of the Convention, transnational communication between courts should be used in order to “create more equitable and contemporary common interpretations”.⁷¹

The best example of using this communication as a means of uniformization is the International Association of Refugee and Migration Judges (IARMJ).⁸⁵ IARMJ is an independent association of refugee judges and quasi-judicial decision-makers from all over the world to standardize the practice and interpretation of refugee law. Since its establishment, the IARMJ has supported the basic education of its members in refugee law, organizes biennial conferences to discuss legal developments in refugee protection, advises judges on the establishment of refugee status, and raises awareness about the legislation.⁸⁶ Judges who are members of the union find this union very useful and more practical than official alternatives, as it opens different perspectives, prompts rethinking on the relevant issue and provides information sharing by operating outside the government hierarchy.⁷² In this way, it is stated that the best example of using this communication as a means of uniformization is the International Association of Refugee Law Judges (IARMJ).⁷³ IARMJ is an independent association of refugee judges and quasi-judicial decision-makers from all over the world to standardize the practice and interpretation of refugee law. Since its establishment, the IARMJ has supported the basic education of its members in refugee law, organizes biennial conferences to discuss legal developments in refugee protection, advises judges on the establishment of refugee status, and raises awareness about the legislation.⁷⁴ Judges who are members of the union find this union very useful and more practical than official alternatives, as it opens different perspectives, prompts rethinking on the relevant issue and provides information sharing by operating outside the government hierarchy.⁹⁰ To give an example in this context, refugee protection has been extended for people called “bootstrap refugees” as a result of the British High Court proceedings, which started with the Danian⁷⁵ case and in which the IARMJ took an active role.⁷⁶ Despite all these explanations, it should be noted that as long as the states parties do not agree to unite under the said union, the efforts of national judges to fill this gap will be limited⁷⁷ which creates an opportunity for the exchange of ideas and provides the development of special legal intuition and common sense in refugee law. Moreover, IARMJ also contributes to the reform of refugee law in terms of establishing the link between international human rights and refugee law and revising some concepts.

The best example of regional uniformization in the field of refugee law is the European Common Asylum System, formed by EU member states.⁷⁸ This system was established for the success of harmonization in the field of migration in the EU and for the development of common judicial understanding, principles and norms on refugee-related issues.⁷⁹ The basis for the obligation to communicate between national judges within the EU was laid at the Tampere meeting of the Council of Europe in October 1999.⁸⁰ In this meeting, in line with the partnership in the field of freedom, security and justice, fifteen member states were united and four directives and two statutes were issued in the field of asylum.⁸¹ The importance of adopting a comparative approach by judges for the development of a common, consistent and trust-based system in the EU has been understood and a Council Qualification Directive has been established within the scope of the common asylum system. According to this directive, each member state should designate a point of contact and the member states should take the necessary measures to ensure the exchange of information and cooperation between the competent authorities.⁸² In addition, the provisions envisaged in the Qualifications Directive should be interpreted in the light of the general practice of the Contracting States and UNHCR, in accordance with the subject and purpose of the relevant international convention, namely the 1951 Convention, which is the source of these provisions.⁸³

An example of the homogenization of refugee law through inter-court transnational communication can be given in terms of the concept of “membership of a particular social group (PSG)” in the context of judicial decisions. Before the Matter of Acosta decision, common law countries other than the USA did not use the “social visibility” or “social perception” approach for membership of a particular social group; On the other hand, nearly 10 European states, including France, Germany, Norway and Finland, used the “social perception” approach.⁸⁴ The “unchangeable qualities” approach adopted by the said decision was formulated by the US Board of Immigration Appeals, adopted by US courts, and improved and placed in their own systems by many foreign courts.⁸⁵ For example, this approach was developed and included in Canadian law in the Ward decision given by the Canadian courts, and the approach developed by the Canadian courts was later used by the US courts106. In this sense, although all the states party to the 1951 Convention did not unite in a single definition of membership of a particular social group, an important uniformity was achieved within the framework of the Matter of Acosta decision.¹⁰² Similarly, in the United Kingdom, Australian and New Zealand courts, it has been stated that foreign court decisions have been used in the interpretation of the 1951 Convention for some time.⁸⁶ This convergence between member states is undoubtedly the result of the effective use of transnational communication. In this regard, attention should be paid to the importance of technology in the homogenization of refugee law with inter-court transnational communication. Thanks to technology, refugee law case law has become more internationalized than could be imagined in 1951.⁸⁷ More and more refugee law decisions are made available on the Internet by different bodies. Thus, the internet facilitates the establishment of connections between judges from different countries and the realization of judicial communication.⁸⁸

4. Barriers to Its Use

Although the use of transnational communication between courts in refugee law is a very useful and desirable practice, as it has been tried to be explained, there are obstacles to the realization of this communication, both in general terms and arising from the characteristics of refugee law. In this context, Lambert divides the reasons why the courts do not make transnational references into two groups as rational and cultural, based on the decisions made on asylum in the United Kingdom and France.⁸⁹

The first of the rational barriers, not knowing the language in which the court decision was written, is the most important obstacle that causes limited access to the decisions.⁹⁰ Indeed, although the number of decisions made available on the Internet is increasing, these decisions are ineffective if the judges are not equipped to understand and evaluate the relevant decision. The other rational barrier is time and accessibility constraints. In this context, starting from the example of the United Kingdom and France, although the decisions are public and accessible in both countries, the deadlines in both countries in the field of refugee law are short in order to make quick decisions. Making a decision in a short time leads to the lack of time for sufficient research to start and finalize the transnational communication between the courts and, accordingly, to the inability to establish this communication in the field of refugee law. The last rational obstacle is the training and lack of knowledge of judges.⁹¹ As a matter of fact, the realization of transnational communication between the courts is closely related to how the judge is trained, how he is appointed, how he is promoted, and what kind of legal understanding he acquires.⁹² To give an example in this context, in French law, administrative courts decide that their members do not have to be lawyers, whereas, in the United Kingdom, the training of judges does not cover comparative law systems.¹¹⁰

The first of the cultural barriers, which is another reason why courts do not use transnational communication, is the style of judgment that affects the way court decisions are written. In this sense, for example, the French high courts traditionally give very short and concise decisions, especially in the field of refugee law, and in these decisions, after briefly mentioning the history of the asylum seeker, stereotypical sentences are used that indicate positive or negative results.¹¹¹ On the other hand, relatively long decisions are written in common law countries and German-speaking countries, and the language used in these decisions allows us to refer to foreign court decisions.⁹³ Another cultural barrier is the conceptual legal framework. In some legal systems, taking inspiration from other countries is a more acceptable practice for judges, while in other countries there may be social or legal restrictions in this sense.⁹⁴ In UK law, for example, the dominant source is quite flexible; UNHCR guidelines, academic articles and foreign court decisions can be cited easily due to cultural affinity. In the French legal system, as a characteristic feature of this system, the refugee law judge has to act with limited resources such as the constitution, international agreements, EU law and domestic legislation.⁹⁵

Since the case law is only seen as an example and is not binding, the refugee law judge in France cannot base his decisions on foreign court decisions. According to Lambert, the last cultural barrier is the internal dynamics in asylum cases. In this respect, for example, refugee law is not taught as a special subject in French universities, very few books are published on this subject, and no journals specific to this field are published; however, in the United Kingdom, refugee law appears to be a special topic that has been taught at universities for years and is of interest to the academic community.⁹⁶

Apart from this, the difficulties faced by institutions such as the UMHHB in finding the necessary funds to continue their activities and working together on a common platform can be counted among the obstacles to transnational communication.⁹⁷

Overcoming these barriers and ensuring a fully uniform system in the field of migration is a very challenging task.⁹⁸ In fact, it is argued that there are limits to international cooperation and this limit is up to the point where states continue to give their consent, and more should not be expected.⁹⁹

The binding source of the law derives from the written legal rule. ¹⁰⁰ One might argue that it is sufficient enough to obey the jurisprudence of the European Court of Justice (ECJ).¹⁰¹ However the ECJ can only respond to questions put by the national courts, and in order to ask suitable questions, those courts require a certain imagination and this imagination would be increased by the knowledge of foreign case law¹²¹.

IV. The Application of Transnational Communication in Turkish Law

Turkey currently hosts both a mass-influx refugee population from neighbouring Syria and a surging number of individually arriving asylum seekers of other nationalities, most principally originating from Iraq, Afghanistan, Iran and Somalia, among others. These two populations of protection seekers are subject to two different sets of asylum rules and procedures. As such, the Turkish asylum system has a dual structure.

Turkey maintains a “geographical limitation” to the 1951 Refugee Convention, and denies refugees from ‘non-European’ countries of origin the prospect of long-term legal integration in Turkey. In April 2013 Turkey adopted a comprehensive, EU-inspired new Law on Foreigners and International Protection (LFIP), which establishes a dedicated legal framework for asylum in Turkey and affirms Turkey’s obligations towards all persons in need of international protection, regardless of country of origin, at the level of binding domestic law. The new Law also created a brand new, civilian Directorate General of Migration Management (DGMM) mandated to take charge of migration and asylum.¹⁰²

Turkey implements a “temporary protection” regime for refugees from Syria, which grants beneficiaries the right to legal stay as well as some level of access to basic rights and services. The “temporary protection” status is acquired on a prima facie, group-basis, for Syrian nationals and Stateless Palestinians originating from Syria. DGMM is the responsible authority for the registration and status decisions within the scope of the “temporary protection” regime, which is based on Article 91 of the LFIP and the Temporary Protection Regulation (TPR) of 22 October 2014.¹⁰³¹⁰⁴

On the other hand, asylum seekers from other countries of origin are expected to apply for an individual “international protection” status under LFIP and are subject to a status determination procedure conducted by the DGMM.

As it is mentioned above due to the geographical limitation declared by Turkey on the definition of a refugee while accepting the 1951 Convention, only those who became refugees due to events that took place in Europe can be granted refugee status in Turkish law and benefit from the status.¹²⁴ Those who do not meet the definition of refugee or conditional refugee but are still in need of international protection can be protected under secondary protection status, provided that they meet the conditions. Thus, in Turkish law, international protection includes refugee, conditional refugee and secondary protection status. Since 2011, there has been no evaluation on the axis of international protection status for those who took refuge in Turkey due to the civil war in Syria; these persons are provided with temporary protection, which is valid in case of mass influx.¹²⁵

On the other hand, Conditional refugee status in Turkish legislation; refers to the status that is given to a person who as a result of events occurring outside European countries and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his citizenship and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear is unwilling to return to it.¹⁰⁵

From this, it is concluded that the number of those who are granted refugee status in Turkey is quite low. As a matter of fact, according to a report published in 2009, the number of people recognized as refugees in accordance with the 1951 Convention in Turkey was 43 until that date.¹²⁷ Accordingly, the interpretation rules in the Vienna Convention gain direct validity in a very limited way for Turkey. The fact that refugee status can be granted to a small number of people due to the geographical limitation in Turkish refugee law causes the 1951 Convention to be rarely applied in Turkish law in the context of being an international convention. On the other hand, especially in terms of conditional refugee status, since this status bears the same conditions as refugee status, apart from geographical restrictions¹⁰⁶, an evaluation is made based on the criteria set forth in the 1951 Convention, and in case these persons are sent to a third country that is a party to the convention, Turkey will transfer the case to the UNHCR in a sense that also assumes the third country’s authority to determine refugee status.¹⁰⁷ In addition, since the conditions for recognizing the secondary protection status include the fact that the individual cannot be qualified as a refugee or conditional refugee, it is also necessary to make an evaluation regarding the refugee or conditional refugee status at the point of determining the secondary protection status.¹⁰⁸ Therefore, it is of great importance for all foreigners who apply for international protection and temporary protection, regardless of which country they come from, and how the criteria in the 1951 Convention are interpreted in Turkish law.

Due to the fact that it has a large amount of refugee population in the world with over three million people and is on the route of forced migration, the average daily application rate of the 1951 Convention criteria integrated into national law is quite high for Turkey. In this context, information sharing between institutions is shown as one of the principles that Turkey should follow in its new asylum strategy.¹⁰⁹

First of all most of the decisions that refer to elements of foreign law refer to writings about the interpretation of the refugee definition in the Refugee Convention.

Expressing her opinion on the use of transnational communication between courts, Safi also argues that court decisions of other countries that are party to the 1951 Convention should be taken into account in order to eliminate the negative consequences of the safe third-country practice.¹¹⁰ In Turkish refugee law, there is no court decision regarding the use of transnational communication between national courts of other countries and Turkish courts.¹¹¹ The most important reason for this result, which was valid for the period before the LFIP came into effect, is that there was no special regulation allowing those who applied for international protection status to stay in the country until the final decision regarding their requests and the lack of guarantees for effective use of legal remedies against deportation proceedings in general.¹¹² Since the foreigner who applied for the status faced the danger of being deported until the result of his request became clear, he preferred to object to the deportation decision instead of objecting to the decision regarding the status request.¹¹³ This practice caused very few decisions to determine status in Turkish law until the LFIP. Although there has been an increase in the number of decisions on refugee law after the entry into force of the LFIP, it is seen that the court decisions of the states that are party to the 1951 Convention are referred to.

The enforcement of foreign court decisions in Turkey is regulated in Article 50 of MÖHUK numbered 5718 in order to enforce the court decisions given by foreign courts regarding civil lawsuits and finalized according to the laws of that state. In other words, enforcement is a court decision regarding the granting of the power to be enforceable in Turkey through the Turkish executive organs, in order for the foreign court decision to be deemed appropriate with the final judgment and conclusive evidence.

On the other hand, there is no data on inter-court communication in refugee cases, or even in any case. It can be seen that vertical communication takes place by referring to the ECtHR cases in some decisions of the Constitutional Court and the 10th Chamber of the Council of State.¹¹⁴ Apart from this, as a result of the reference to United Nations reports in some Constitutional Court decisions, there are examples of communication between institutions where one of the parties is outside the judicial system.¹¹⁵ In Turkey, in a way, a tradition of legal positivism has meant that the administrative judge is reluctant to evaluate the sovereign action of state authorities, and interaction between human rights and the law relating to aliens and refugees is found to be limited. Other considerations can be examined such as the role of the United Nations High Commissioner for Refugees (UNHCR) in the decision-making process, especially on conditional refugees. Sometimes claimants refer to UNHCR’s jurisprudence, or UNHCR’s current cases and country reports. However, the role of UNHCR plays a limited role.

In Turkey, during the foundation years of the Republic, matters on admittance and expulsion of foreigners were considered “acts of sovereignty” and “judicial restraint” was exercised by the administrative jurisdiction, thus they were out of the scope of judicial review¹³⁸. However, today, this approach has changed. Administrative jurisdiction can examine the acts established by the Ministry of Internal Affairs and the Directorate General of Migration Management from a judicial perspective.

However, in administrative jurisdiction review, judicial review cannot be carried out in a way that removes administrative discretion. Otherwise, the administrative jurisdiction would act as administration, which then would violate the principle of “separation of powers”, which accepts the separation of legislative, executive and judicial powers, and would be unconstitutional.¹¹⁶Admission or rejection to conditional refugee status is an individualprerequisite action under the material classification of administrative action. Thus, the person is admitted or removed from a certain legal status. Regarding administrative judgment;

The Competent Authority: according to Art. 78 of the Law on Foreigners and International Protection is the Directorate General of Migration Management. On Art. 78/1 of Law No. 6458, it is regulated that the Directorate General can delegate its powers to the governorships¹¹⁷.

The Cause: is the Art. 62 of Law No. 6458 on Foreigners and International Protection. In that respect, it is, a result of events occurring outside European countries and owing to a wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, being outside the country of their nationality and being unable or, owing to such fear, unwilling to avail himself or herself of the protection of that country; or being outside the country of former habitual residence as a result of such events, being unable or, owing to such fear, unwilling to return to it.

The Form: of the administrative action established in written form.

The Subject: is granting the person conditional refugee status.

The Purpose: is public interest. In order to determine public interest, the particular incident should be considered. It is aimed to protect human dignity and establish and protect public order and security.

Apart from the specific reason for deportation, almost all of the above-mentioned reasons that hinder the transnational communication between the courts are also valid in terms of Turkish law. To address these obstacles, first of all, in Turkish law, not by specialized courts, as in French law, but by administrative courts where members do not have to be lawyers, and the non-binding case law prevents the realization of transnational communication.¹¹⁸ On the other hand, due to the understanding of Turkish administrative law, court decisions are written in a short and unjustified manner.¹¹⁹ Especially in cases where the refugee status request is negative, writing the decision without justification causes the legislation and court decisions on which the judge is based in the decision-making process to remain ambiguous and does not allow communication with other courts. This situation leads to the absence of interpretations specific to Turkish law and to the lack of current developments in this field.¹⁴³ Another obstacle, which is valid for almost all countries, is the necessity of taking quick decisions in a short time, for reasons specific to the refugee law field. For example, in accordance with the relevant provisions of the LFIP, the court that examines the decision on the administrative detention of the applicants is 5 days; The court, which evaluates the objections against the expedited evaluation and the decision that the application is inadmissible, has to conclude the examination within 15 days.¹²⁰ These deadlines leave the courts of the first instance helpless with regard to transnational communication. Perhaps the main issue that needs to be intervened first and that will ensure the elimination of other obstacles is that refugee law is not seen as an independent and special area of expertise in Turkish law. Although the formation of a network with recognized expertise and authority in migration and asylum studies began to develop in Turkey in the 1990s, it is not yet possible to say that such a network of expertise has been fully formed, especially in the field of law.¹²¹ In this sense, one of the greatest achievements with the entry into force of the LFIP is the establishment of the Directorate General of Migration Management (GDMM). It is thought that leaving this area, which was previously administered by the security units, to an institution established specifically for this area, will enable specialization in refugee law.¹²² Finally, the lack of knowledge of the judges on foreign languages and comparative law in Turkish courts is also an important obstacle.

CONCLUSION

The field of refugee law, which is closely related to sovereignty, national security and public order, lays the groundwork for practices that vary according to legal systems, both because of its features and because of the characteristic features of the 1951 Convention. However, one of the main purposes of the 1951 Convention is to ensure uniform implementation. In this sense, refugee law is one of the areas where cooperation between countries is most needed. It is essential to ensure this uniform application by providing transnational communication between the courts and using them to examine and guide the court decisions of different countries. However, some obstacles, both concrete and cultural, hinder the development of this communication. These obstacles reach the highest level in the Turkish legal system and result in the fact that the progress observed in contemporary legal systems is not reflected in Turkish law. The use of transnational communication between courts by the Turkish judge applying the 1951 Convention does not seem easy within the current system. The barriers listed above, both in the context of the Turkish legal system and specifically in Turkish refugee law, make it difficult to use this communication. In this sense, it should be noted that the courts take hasty decisions without having sufficient expertise on the subject. This problem seems to be overcome by the establishment of particular specialized courts dedicated to the field of immigration law, training the judges by making use of the materials of the General National Assembly (GNA), and gaining experience by working in this field. In this context, it may be suggested to establish a special unit that will operate within the DGMM and examine the transnational effect between courts and collect comparative data in refugee law. Thus, one of the problems observed in the field of Turkish law, the shortage of immigration experts, will be overcome, and it will be possible to investigate the issue of how other state practices are and on what criteria foreign courts decide. In addition to these, it is worth noting that the refugee law education to be given at the undergraduate and graduate levels at universities can be effective in terms of raising awareness for those who can take part in decision-making or status determination in the future.

As a result of all these explanations, in today’s world where it is possible to access many court decisions, databases and libraries with a short search on the internet, it is not as impossible as it is thought for judges and courts to be aware of other judicial systems and to refer to these decisions by using these opportunities. It is almost an obligation for all actors operating in this field to make an assessment in the light of universal principles, in an order that is getting closer to each other and where borders are being lifted, and especially in an area that concerns all countries, such as refugee law. Because the inconsistencies in court decisions on refugee cases have serious implications for equality and human rights. The inconsistencies in the court decisions weaken the aim of integrating human rights norms and creating a universal standard and cause the asylum law to be fragmented.

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