The Human Rights of Non-Citizens: Constitutionalized Treaty Law in Ecuador
31 Georgetown Immigration Law Journal 347 (2017)
Criminal Justice, Borders and Citizenship Research Paper No. 3042671
41 Pages Posted: 27 Sep 2017
Date Written: September 25, 2017
This article provides a nuanced empirical study of the circumstances under which constitutionalized human rights law increases the likelihood of positive rights outcomes for non-citizens. Several statistically-based quantitative studies suggest that when countries include human rights law in their constitutions, their overall human rights performance improves. However, there is little qualitative research about how those laws may improve rights practices in any given case, particularly in the context of non-citizens in developing countries. This article addresses that gap in the treaty effectiveness literature by analyzing how lawyers utilized human rights law in Ecuador’s 2008 Constitution to challenge a presidential decree limiting the rights of asylum-seekers, mostly refugees from Colombia’s armed conflict.
Ecuador is an ideal site for this analysis, given that it has the largest number of refugees in Latin America, a constitution containing more human rights than any other country in the world, and a small but active civil society. Drawing on interviews with domestic and transnational lawyers who litigated the case before Ecuador’s Constitutional Court, the article identifies several circumstances under which constitutionalized human rights laws can improve rights outcomes for non-citizens. These circumstances include the presence of domestic and transnational lawyers able to navigate the local legal and political landscape in order to maximize positive outcomes for their clients, the state’s global reputation for protecting non-citizens, the degree to which a constitutional challenge on behalf of non-citizens threatens key state actors, and whether the state has other means to accomplish its objectives, short of violating the rights of non-citizens.
Keywords: Human Rights, Asylum, Constitutionalization of Human Rights
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