THE TRANSNATIONAL JUDICIAL COMMUNICATION IN REFUGEE CASES BETWEEN THE COURTS
Revista Geopolitica, vol.1, no.110, pp.1-25, 2026 (Peer-Reviewed Journal)
- Publication Type: Article / Article
- Volume: 1 Issue: 110
- Publication Date: 2026
- Journal Name: Revista Geopolitica
- Journal Indexes: Index Copernicus
- Page Numbers: pp.1-25
- Dokuz Eylül University Affiliated: Yes
Abstract
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