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

57 Pages Posted: 20 Oct 2012 Last revised: 14 Jan 2015

See all articles by Stephen Meili

Stephen Meili

University of Minnesota Law School; University of Oxford - Border Criminologies

Date Written: June 7, 2012

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.

Keywords: asylum, human rights, lawyering profession

JEL Classification: K33, K40

Suggested Citation

Meili, Stephen, Do Human Rights Laws Help Asylum-Seekers? An Empirical Study of Canadian Refugee Jurisprudence Since 1990 (June 7, 2012). Law and Society Association Annual Meeting Honolulu, Hawaii, June 7, 2012; Minnesota Legal Studies Research Paper No. 12-59; Criminal Justice, Borders and Citizenship Research Paper No. 2164258. Available at SSRN: https://ssrn.com/abstract=2164258

Stephen Meili (Contact Author)

University of Minnesota Law School ( email )

Mondale Hall
229-19th Avenue South
Minneapolis, MN 55104
United States

University of Oxford - Border Criminologies ( email )

Manor Road Building
Manor Rd
Oxford, OX1 3UQ
United Kingdom

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