Exclusion from Protection as a Refugee

An Approach to a Harmonizing Interpretation in International Law


Author: Yao Li
In Exclusion from Protection as a Refugee, Yao Li analyses Article 1F of the 1951 Refugee Convention. She argues that the exclusion clause is a quasi-punitive provision and must therefore be interpreted with due regard to (International) Criminal Law. Having developed an interpretation approach to consider external legal notions, Li provides a solution for all the relevant issues in the context of Article 1F, based on a “harmonizing interpretation”. The study therefore not only comprehensively examines the exclusion clause at the intersection of International Refugee Law and International Criminal Law, but also contributes to anti-fragmentation efforts in International Law.

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Yao Li, Ph.D. (2016), University of Cologne, former research assistant at the Institute for International Law, University of Cologne, is a research assistant at the Chair for Criminal Law and Criminal Procedure Law, University of Potsdam.
"The topic of this book is especially pertinent considering the revival of the exclusion clause in recent decades rendering it a ‘regular feature in refugee status determination hearings...The exclusion clause is a key provision in refugee law which ‘helps to preserve the integrity of the asylum concept’. It is vital, as the author has shown, that it is applied restrictively and that there is consistency in its interpretation and application. The study is exceptionally clear and concise particularly when analysing and interpreting key instruments such as the Refugee Convention, which can be arduous and convoluted....Li makes a compelling argument for a harmonizing approach to interpret the exclusion clause in which she successfully illustrates that this approach ‘contributes to a more human rights sensitive’ application of the exclusion clause, as well as establishing that such an approach will lead to a more comprehensive and cohesive utilization of the exclusion clause. This argument renders this study an important contribution, whereby a restrictive and human rights-centred application of the exclusion clause is welcomed, a particularly positive conclusion given recent developments in State practice." (International Journal of Refugee Law, 30/4, December 2018)
List of Abbreviations

1 Introduction
 A The Undeserving Refugee
 B Objective and Methodology

2 Exclusion at the Intersection of Different Legal Systems
 A Introduction
 B Implications of International Refugee Law
  i Objectives of International Refugee Law
  ii The Nature of Granting Asylum
  iii Conclusion
 C Exclusion
  i Objectives of the Exclusion Clause
  ii Consequences of Exclusion
  iii Consequences of Non-exclusion
  iv Conclusion
 D Implications of International Criminal Law
  i Interrelations with Exclusion in Refugee Law
  ii Conclusion
 E Implications of Human Rights Law
  i Differences between Human Rights Law and Refugee Law
  ii Relationship between Human Rights Law and Refugee Law
  iii International Human Rights Law and Non-refoulement Obligations
  iv Conclusion
 F Intersections with Extradition Law
  i Principles of Extradition Law
  ii Hierarchy of Obligations
  iii Intersections of Refugee Law and Extradition Law
  iv Intersections of Article 1F CSR51 and Extradition Law
  v Conclusion
 G Conclusion: Complementarities of International Refugee Law, International Criminal Law, Human Rights Law, Extradition Law, and the Exclusion Clause

3 Harmonizing Interpretation in International Law
 A Introduction
 B The Objective: Including Principles with a Principled Method
 C Interpretation According to Article 31(1) VCLT69
  1 Ordinary Meaning
  2 Context
  3 Object and Purpose
  4 Good Faith
 D Interpretation beyond Article 31(1) VCLT69
  i Subsequent Agreement and Subsequent Practice
  ii Evolutionary/Dynamic Interpretation
  iii Analogy
  iv Fundamental Change Pursuant to Article 62 VCLT69
 E Harmonizing Interpretation
  i “Systemic Integration” Pursuant to Article 31(3)(c) VCLT69
  ii Practical Concordance
  iii Harmonizing Interpretation of Article 1F CSR51
 F Conclusion

4 Exclusion in the Light of Harmonizing Interpretation
 A Introduction
 B General Matters in Article 1F CSR51
  i Exclusion Assessment v. Criminal Trial
  ii Proportionality
  iii Inclusion before Exclusion
  iv Procedural Matters
  v Substantive Matters
  vi Terrorism
 C Article 1F(a) CSR51
  i International Instruments
  ii Crimes against Peace
  iii War Crimes
  iv Crimes against Humanity
  v Genocide
 D Article 1F(b) CSR51
  i Crime
  ii Serious
  iii Non-political
  iv Outside the Country of Refuge/Prior to His Admission
 E Article 1F(c) CSR51
  i Residual Character
  ii “Guilty”
  iii Acts Contrary to the Principles and Purposes of the United Nations
  iv Offenders within Article 1F(c) CSR51
 F Conclusion

5 Conclusion
Scholars, lawyers, judges, government officials, IO and NGO staff, as well as legislators engaged and interested in international and domestic refugee law, refugee status determination and Article 1F in particular.