The Constitutional Right to Asylum: The Wave of the Future in International Refugee Law?
43 Pages Posted: 28 Feb 2018
Date Written: February 19, 2018
Domestic constitutions may be the best way to protect refugees in an era when the international refugee protection system has failed so miserably. The current refugee crisis in Syria and elsewhere has created the greatest number of displaced persons in history, bringing the inadequacies of the refugee system into even sharper relief. The 1951 Refugee Convention, the principle international treaty aimed at protecting asylum-seekers, does not account for the increasingly complicated reasons compelling people to leave their homelands and seek refuge elsewhere, such as ever-expanding armed conflict and the ravages of climate change. Neither of these phenomena are likely to abate any time soon.
This article argues for the increased utilization of an oft-ignored legal protection for refugees: constitutional asylum. The right to asylum has proliferated in national constitutions over the past two decades, a microcosm of the trend toward constitutionalized human rights law more generally. While usually nothing more than words on paper, these provisions have sometimes been used by lawyers, particularly in Latin America, to expand protections for refugees beyond the scope of the Refugee Convention. Such strategies might also provide greater protection for refugees in the Global North, particularly Europe, where nearly half of the national constitutions contain a right to asylum. This article concludes that the factors underlying successful utilization of constitutional asylum in Latin America are present in at least two EU Member States with broad constitutional rights to asylum: France and Italy.
Emphasizing constitutional asylum is strategically wise in an era of growing nationalism, where state actors in many countries have become increasingly critical of globalization and other manifestations of what they – and their constituents – view as international pressure on domestic decision-making. In such an environment, a constitutionalized right to asylum cannot be characterized as an imposition from an international body or treaty; rather, it is part of the highest law of the land. As such, it is immune from the kind of nationalist critique that has weakened international protection for refugees.
Keywords: International Law, Immigration Law
JEL Classification: K33, K37
Suggested Citation: Suggested Citation