Do Human Rights Laws Help Asylum-Seekers? An Empirical Study of Canadian Refugee Jurisprudence Since 1990

Abstract:     
This paper analyzes the circumstances under which international human rights treaties help or hurt asylum-seekers. Many scholars and lawyers assume that such treaties invariably assist those seeking refuge from persecution. Yet there have been no empirical studies to test this assumption. Until now. Through a mixed method empirical approach combining a database of over 4,000 asylum decisions over the past two decades and interviews with Canadian lawyers who specialize in representing asylum-seekers, this paper identifies several factors which help to determine the impact of human rights treaties in individual cases. It focuses on Canada because of that country’s reputation for openness toward refugees, as well as the receptivity its judiciary has traditionally shown toward international law.

This paper advances three significant areas of socio-legal scholarship: the impact of international human rights law on state actors; the human rights approach to refugee law, and cause lawyering. The international human rights debate has reached a stalemate between those who believe that human rights laws have little or no impact on domestic processes and those who argue the opposite, citing advances in state compliance with human rights treaties. This paper proposes a more nuanced theory, positing that rather than an all or nothing issue, the impact of international human rights treaties in any given asylum case depends on a number of factors, including whether those treaties have been formally incorporated into domestic law, approved as precedent by the country’s highest court, and the gender of the applicant and judge. This paper also demonstrates that while such treaties help asylum-seekers in some cases, in others they may do more harm than good.

Number of Pages in PDF File: 57

Keywords: asylum, human rights, lawyering profession

JEL Classification: K33, K40

Accepted Paper Series