CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE TERM “INTERNATIONAL COOPERATION” IN REGARD TO THE ADMISSION … 3.2 The Convention Relating to the Status of Refugees TheConventionand the 1967Protocol (hereafter the “Protocol”) are themain international instruments for the protection of refugees. The Convention’s important contribution is that it defines the term “refugee” and determines the protection as a legal status with social rights granted to refugees. Thanks to the Protocol the scope of the Convention was extended also to the protection of non-European refugees. The Convention does not deal with international cooperation between the states in the case of refugee protection in its operative part. However, in Preamble, Recital 4, it states that “the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation.” The Preamble in which the principle of international cooperation is referred to is not a legally binding provision of the Convention. Generally a preamble can be used to explain the adoption of a treaty and to interpret the legal obligations laid down in the operative part. 38 Although this is not a legally binding provision, it can be important to explain what the states meant by the reference to international cooperation when adopting the Convention, especially for the current debate on responsibility-sharing. First, it should be mentioned that the Convention uses the term ”international cooperation“. On the other hand, the French version uses the term ”solidarité“, i.e. solidarity. In addition to the Preamble, international cooperation is also referred to in Article 35 of the Convention, which concerns the cooperation of the states with UNHCR, not the cooperation of states with each other. The terms responsibility-sharing and burden-sharing are not used in the Convention at all. 39 When interpreting the term “international cooperation”, eventually “international solidarity”, Article 31 and Article 32 of the Vienna Convention on the Law of Treaties concerning the interpretation of international treaties should be used. 40 To answer the question, it is therefore necessary to analyze the preparatory work of the Convention, the so- called travaux préparatoires . The travaux préparatoires shows that the individual delegates used the term international cooperation the most often (e.g. France, Italy), sometimes they used international solidarity as well (e.g. Great Britain). As Clair Inder states, travaux préparatoires does not mention why these terms were used during preparation of the Convention, it is not explained what their meaning is and whether there are any differences between them. 41 The only reference to the distinction between the terms of international cooperation and solidarity was made during the negotiation of the Convention’s text between France and 38 MBENGUE, M. M., Preamble. In: The Max Planck Encyclopedia of Public International Law, vol. VIII. New York: Oxford University Press, 2012, p. 399. ISBN 9780199291687. 39 In this case, these are new terms. The term “burden-sharing” has been used since the 1970s in connection with the Indochina crisis. The term “responsibility-sharing” has been used since the 1990s. More in INDER, ibid, p. 529. 40 Under Article 4 of the Vienna Convention on the Law of Treaties it applies only to treaties concluded between states after the Convention entered into force between them. Nowadays however, the provisions of Article 31-33 of the Vienna Convention are applied as part of customary law, even to treaties concluded before the Vienna Convention entered into force. The interpretative rules can therefore also be applied to the 1951 Convention Relating to the Status of Refugees. For additional information see HONUSKOVÁ, V., Definice uprchlíka a její výklad a aplikace v současném mezinárodním právu [ Refugee definition and its interpretation and application in contemporary international law ]. Praha: Univerzita Karlova v Praze, Právnická fakulta, Prameny a nové proudy právní vědy, 2011, p. 12. ISBN 978-80-87146-45-3. 41 INDER, ibid, pp. 529-530.

219