The Interpretation of the Law Rather than the Law Itself, is What Matters Most in Asylum Cases – How to Improve the Roles of European Courts in the Interpretation and Application of the Asylum Law

Ćorić, Vesna and Knežević Bojović, Ana and Matijević, Milica (2017) The Interpretation of the Law Rather than the Law Itself, is What Matters Most in Asylum Cases – How to Improve the Roles of European Courts in the Interpretation and Application of the Asylum Law. In: Third International Academic Conference on Human Security. University of Belgrade – Faculty of Security Studies; Human Research Center, Belgrade, pp. 81-91. ISBN 978-86-80144-09-2

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Abstract

Th e plurality of sources is explicitly incorporated in the existing EU’s asylum regulatory framework, which makes it quite complex and multi-layered. In addition to various specifi c EU instruments, more precisely pieces of primary and secondary EU legislation, the European asylum system also encompasses regional and international instruments regulating refugee protection and human rights, such as the Geneva Convention on Refugees and the European Convention on Human Rights. Th e Court of Justice of the European Union, together with the European Court of Human Rights, have made signifi cant contribution to the development of the Common European Asylum System in the course of last two decades. Th e pivotal role played by the European courts in this regard is explained by the words of Professor Connie Oxford, who says that the interpretation of the law, rather that the law itself, is what matters most in asylum cases. However, regardless of the developments achieved both through the legislative and judicial actions, the key shortcomings of the existing framework are still apparent, and have been highlighted by the ongoing migration crisis, showing an evident need for reconceptualization. Th e paper will critically examine the case laws of two European courts in order to assess whether their approaches are consistent when it comes to asylum cases. Th e paper will further assess to what extent have their roles progressively contributed to the development of the asylum framework as well as it will identify weaknesses of their current approaches. Following this assessment, the authors will try to determine whether consistent approaches between two courts when it comes to the interpretation and application of the European asylum framework necessarily result in the full achievement of human security and strengthening of the human rights protection in this regard. Finally, the authors will explore additional measures which should be undertaken by these courts and off er concrete proposals aimed at strengthening the asylum protection in Europe.

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