When Do Human Rights Treaties Help Asylum-Seekers? A Study of Theory and Practice in Canadian Jurisprudence Since 1990
Osgoode Hall Law Journal 51:2, Forthcoming
43 Pages Posted: 28 Jan 2014 Last revised: 21 Feb 2015
Date Written: January 2014
This article supports a new theoretical approach to the utilization of human rights treaties in refugee status adjudications in domestic courts. The existing literature on treaty effectiveness is divided between several optimistic and pessimistic perspectives, none of which adequately predict the circumstances under which domestic courts in Canada reference treaties in ways that help refugees obtain relief. This new theoretical approach adds to the literature on treaty effectiveness in the litigation context by suggesting that the extent to which Canadian domestic courts reference treaties in ways that help refugees depends on several factors, including the manner in which those treaties are integrated into domestic law. It also demonstrates that invoking human rights treaties indiscriminately can be detrimental to the interests of refugees, as it can create the impression that the refugee’s lawyer is desperate.
Keywords: refugees, human rights treaties, gender, litigation, legal theory, persecution, asylum, cause lawyering
JEL Classification: J71, J78, K19, K33, K39, K41, K49
Suggested Citation: Suggested Citation