Bridging the Gap: Humanitarian Protection and the Convergence of Laws in Europe

• Published date: 01 January 2014
• DOI: http://doi.org/10.1111/eulj.12054
• Author: Meryll Dean
• Date: 01 January 2014

Bridging the Gap: Humanitarian

Protection and the Convergence of Laws

in Europe

Meryll Dean*

Abstract: This article uses the thematic of humanitarian protection to examine the

convergence of laws in Europe. It considers the heterogeneous architecture of

the Refugee Convention and European Convention on Human Rights then analyses the

homogenous framework of the EU’s Common Asylum System and, in particular, the

Qualif‌ication Directive. It argues that in an area where international, regional and

national laws intersect, convergence needs to be underpinned by Member States

adopting a common interpretative methodology that has international law at its core.

Article 15 of the Qualif‌ication Directive (QD) is used to illustrate how this can be

achieved. The article adds to the growing literature on the convergence of laws in

Europe and illustrates the importance of adopting a common interpretative

methodology. It suggests a paradigm for protection regimes around the world and a

methodology that could be transplanted to other areas of law involving the intersection

of international, regional and national laws.

I Introduction

Although scholars have addressed convergence in terms of legal systems, in

particular the Civil and Common Law systems, more generally convergence occurs

where nations or regions experience similar problems and arrive at similar ways of

resolving those problems. Humanitarian protection is one such area. It is an area

where international, regional and national laws ‘collide,’ and it therefore provides

an opportunity to explore the way in which these legal regimes have converged to

provide protection solutions. Where different legal regimes make contact in the

same area, this can lead to divergent interpretations so that fragmentation of legal

systems can become an issue. In the case of humanitarian protection, divergent

approaches may create protection gaps, although the analysis in this article suggests

that the interaction of different legal regimes has enabled protection gaps to be

bridged. Nevertheless, where legal regimes make contact with the harmonised

framework of EU legislation, this article argues that a common interpretative

methodology will result in convergence and prevent protection gaps deve-

loping which result in the fragmentation of the Common European Asylum

System.

* Professor, School of Law, Oxford Brookes University, Oxford, United Kingdom.

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European Law Journal, Vol. 20, No. 1, January 2014, pp. 34–65.

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The development of the international protection regime in Europe has been a

continuing process of convergence. The founding ‘constitutional instruments’ were

the 1950 European Convention for the Protection of Human Rights and Fundamen-

tal Freedoms and the 1951 Geneva Refugee Convention. These were followed more

recently by the development of the EU’s Common Asylum System and, in particular,

the establishment of a harmonised humanitarian protection regime under the 2004

Qualif‌ication Directive. This article examines that development and focuses on Article

15(c) of the Directive to illustrate how convergence may occur within a harmonised

framework by Member States adopting a common approach to the interpretation of

legal terms. By examining the development and interaction between these legal

regimes, the article demonstrates how States have been able to respond to the chang-

ing nature of conf‌licts which generate population movements requiring humanitarian

solutions. Although the thesis put forward in this article is developed in the context of

humanitarian protection, it has the potential to be applied more widely in other areas

where international, regional and national laws ‘collide’ or intersect. Thus, although

focused on humanitarian protection, and more specif‌ically in the area of internal

armed conf‌lict, this article adds to the growing literature on the convergence of laws

in Europe.1

The article starts by providing the contextual background to the discussion and

then examines the evolution of the international protection regime. It explores the

early origins of convergence in Europe and considers the pragmatic responses used to

address protection gaps before moving to an analysis of how the 1950 European

Convention on Human Rights (ECHR) developed as a means of bridging protections

gaps. The article then examines the EU Qualif‌ication Directive as a further example

of convergence of laws on humanitarian protection. It focuses on Article 15(c) and, in

particular, the term ‘internal armed conf‌lict,’ as an example of the intersection of

international law and EU law. Finally, the article argues that, in order for conver-

gence within the EU to be effective in area of asylum and humanitarian protection

law, it is necessary to adopt a common interpretative methodology that has interna-

tional law at its core.

1B. Jackson, ‘Legal Visions of the New Europe: Ius Gentium, Ius Commune, European Law’, in

B. Jackson and D. McGoldrick (eds), Legal Visions of the New Europe (London: Graham and Trotman,

1993), at 3; D.H. Kötz, ‘Towards a European Civil Code’, in P. Cane and J. Stapelton (eds), The Law

of Obligations: Essays in Celebration of John Fleming (Oxford: Clarendon, 1998), at 243; P. Beaumont,

C. Lyons and N. Walker (eds), Convergence and Divergence in European Public Law (Oxford: Hart

Publishing, 2002); C. Harlow, ‘Voices of Difference in a Plural Community’, (2002) 50 American Journal

of Comparative Law 339; J. Smits, ‘Convergence of Private Law in Europe: Towards a New Ius

Commune?’ in E. Örücü and D. Nelkin (eds), Comparative Law: A Handbook (Oxford: Hart Publishing,

2007), at 219; P. Legrand, ‘European Legal Systems are Not Converging’, (1995) 45 ICLQ 52; W. van

Gerven, ‘European Court of Justice Case Law as a Means of Unif‌ication of Private Law’, (1996) 20(3)

Fordham International Law Journal 680; M. Parish, ‘International Courts and the European Legal

Order’, (2012) 23 European Journal of International Law 141. Convergence in the area of asylum law is

also a growing area for discussion. See E. Neumayer, ‘Asylum Recognition Rates in Western Europe:

Their Determinants, Variation, and Lack of Convergence’, (2005) 49 Journal of Conf‌lict Resolution 43;

S. Morano-Foadi and S. Andreadakis, ‘The Convergence of the European Legal System in the Treat-

ment of Third Country Nationals in Europe: The ECJ and ECtHR Jurisprudence’, (2011) 22 European

Journal Of International Law 1071; C. Costello, ‘Courting Access to Asylum in Europe: Recent Supra-

national Jurisprudence Explored’, (2012) 12 Human Rights Law Review 287.

January 2014 Bridging the Gap

35

© 2013 John Wiley & Sons Ltd.

II Convergence and Context

The subject of convergence has been examined by scholars both in the context of legal

systems, or legal traditions, and, more recently, in relation to specif‌ic areas of law.2

The Common and Civil Law systems have traditionally been viewed as distinctive and

divergent because they are derived from different legal traditions.3However, that

strict binary classif‌ication is increasingly being challenged by a growing convergence

of both legal systems and laws, particularly within Europe.4This process has occurred

either as a result of different jurisdictions experiencing similar legal problems and

arriving at similar ways of addressing those issues, or as a result of legislative har-

monisation. Even so, convergence does not exclude difference since the hierarchy of

sources, doctrinal analysis and the style of judicial decision will differ between juris-

dictions. This raises some further theoretical issues, full examination of which is

beyond the scope of this article.5However, in the European context, it is clear that

legal rules f‌low from different sources, be they international treaties, EU legislation or

national laws, and that convergence can take place outside the process of harmonising

legislation. On the other hand, if the convergence is the result of homogeneity brought

about by EU legislation, this article argues that the process needs to be underpinned

by a common interpretative methodology in order to prevent divergent interpreta-

tions undermining the coherence and strength of the legislation.

The legal instrument chosen to develop this argument is the EU Qualif‌ication

Directive, and in particular, Article 15.6The reason for this is that Article 15 is

the ‘most controversial provision’ and one where divergent interpretations can

2J.H. Merryman, ‘On the Convergence (and the Divergence) of the Civil Law and the Common Law’,

(1987) 17 Stanford Journal of International Law 357; H.P. Glenn, Legal Traditions of the World:

Sustainable Diversity in Law (Oxford: OUP, 2000); I. Chiu, Regulatory Convergence in EU Securities

Regulation (Leiden: Kluwer, 2008); M. Siems, Convergence in Shareholder Law (Cambridge: CUP,

2007); T. Henkels and J. Tib, ‘Towards Homogeneity in the Field of Legal Remedies: Convergence and

Divergence’, in Beaumont, Lyons and Walker (eds), ibid n 1; in the area of contract law, see the latest

commissions proposal: Commission Proposal for a Common European Sales Law COM(2011) 636

f‌inal, Brussels 11 October 2011 and L. Miller, The Emergence of EU Contract Law: Exploring Europe-

anization (Oxford: OUP, 2011).

3J.H. Merryman, The Civil Law Tradition (Stanford: Stanford University Press, 1969); R. David and

J. Brierley, Major Systems of the World Today (London: Stevens, 1968).

4R. Zimmerman, D. Visser and K. Reids (eds), Mixed Legal Systems in Comparative Perspective (Oxford:

OUP, 2004); R. Zimmerman, Roman Law Contemporary Law European Law: The Civilian Tradition

Today (Oxford: OUP, 2001); J. Smits, The Contribution of Mixed Systems to European Private Law

(Groningen: Intersentia, 2001); V. Palmer (ed.), Mixed Jurisdictions Worldwide: The Third Legal Family

(Cambridge: CUP, 2001); E. Örücü, ‘Mixed and Mixing Systems: A Conceptual Search’, in E. Örücü,

A. Attwooll and S. Coyle (eds), Studies in Legal Systems: Making and Mixing (London: Kluwer, 1996),

at 335; N. Burrows, ‘European Community: The Mega Mix’, in Örücü, Attwooll and Coyle (eds), (ibid);

J. du Plessis, ‘Comparative Law and the Study of Mixed Legal Systems’, in M. Reimann and

R. Zimmerman (eds), The Oxford Handbook of Comparative Law (Oxford: OUP, 2006), at 477.

5See discussion in the literature cited in n 1 and 2 supra.

6Council Dir 2004/83/EC of 29 April 2004 on the Minimum Standards for the Qualif‌ication and Status

of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need

International Protection and the Content of the Protection Granted [2004] OJ L304/12—hereinafter

referred to as ‘the Qualif‌ication Directive.’ The Directive has now been recast in a new ‘Qualif‌ication

Directive’ which will bind Member States from 21 December 2013, but Art 15 remains unchanged:

Council Dir 2011/95/EU of 13 December 2011 on Standards for the Qualif‌ication of Third-Country

Nationals or Stateless Persons as Benef‌iciaries of International Protection, for a uniform status for

Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection

European Law Journal Volume 20

36 © 2013 John Wiley & Sons Ltd.