The proposed project will develop an empirically-tested theory about when international human rights law is referenced in asylum cases. It will analyze asylum decisions by courts and administrative tribunals since 1990 in the United Kingdom according to the way that judges rely on or otherwise reference human rights treaties. Decisions will be coded in order to determine whether the impact of such treaties depends on factors such as incorporation of the treaty into domestic law, the country of origin of the asylum applicant, and the gender of the applicant and judge. The project also features semi-structured interviews with U.K. refugee lawyers to determine the circumstances under which they believe invoking human rights treaties helps or hurts their clients.
The proposed project advances three interrelated branches of socio-legal scholarship: the efficacy of international human rights treaties; the human rights approach to refugee law, and cause lawyering. It takes a nuanced approach toward the efficacy debate, positing that rather than an all or nothing matter, the impact of human rights treaties depends on several factors, including those identified above. Rather than assuming that such treaties invariably benefit refugees, the project asserts that in some cases they may do more harm than good. And the project examines how cause lawyers representing non-citizens utilize human rights law.
The project impacts legal advocacy, legal training, and legal scholarship. First, it will identify ways that lawyers representing asylum-seekers might use international human rights law to more effectively advocate for their clients. Second, it will educate future lawyers by incorporating law students into a team-based project that includes training in empirical methods and complex case analysis. And third, it will contribute to the scholarly debate over principled and strategic uses of international law, focusing on asylum and human rights.
This project analyzes the circumstances under which international human rights treaties have helped or hurt asylum-seekers in the United Kingdom over the past two decades. Through a mixed method empirical approach combining a database of approximately 1,700 published asylum decisions and 51 interviews with U.K. lawyers who specialize in representing asylum-seekers, this project identifies several factors which help to determine the impact of human rights treaties in individual cases. The project focuses on the U.K. because it has ratified or otherwise adopted numerous human rights treaties over the past twenty years, and U.K. refugee lawyers regularly invoke those treaties on behalf of their clients. The findings of the study include the following: human rights treaties are more likely to help asylum-seekers when (1) the treaty has been incorporated into domestic law, whether through formal legislative action, precedential decision by the nation's highest court, or administrative mandate; and (2) the applicant is a female. The project also finds that there is not a statistically significant relationship between the way a treaty is referenced in judicial decisions and several other variables, including the gender of the judge, the level of the adudication (the upper level of the asylum tribunal and the appellate courts) and the applicant's country of origin. The findings from this project mirror those in my earlier study of the impact of human rights treaties on asylum jurisprudence and practice in Canada during a similar time period. As such, I conclude that the findings are generalizeable to other common law countries, including the United States, and thus have important implications for U.S. refugee lawyers. Among other things, they caution refugee lawyers to be judicious in their utilization of arguments based on human rights treaties. While such arguments can help asylum-seekers in some cases, in others they may be seen by a judge as a sign of desperation, obfuscating an otherwise stratightforward and strong legal arbument. The findings of this project also suggest that if lawyers wish to make human rights-based arguments in asylum cases, they should do so early in the process, as judges at the tribunal level (at least the higher portion of it) are just as receptive to treaty-based arguments as appellate court judges. Accordingly, this project has the potential for a significant impact on the practice of refugee law, and, by extension, on the lives of refugees. The project affords lawyers (and other advocates) with guidance for utilizing human rights treaties to improve their client's chance of success. The findings from this project fill significant gaps in the academic literature on international law (in particular the literature on human rights treaty effectiveness), the human rights approach to asylum law, and cause lawyering. For example, this project analyzes the effectiveness of treaties in the ligitation context (specifically asylum litigation) whereas most studies of treaty effectiveness focus on state policies and practices. It contains a large database of asylum case decisions which allow for broad conclusions regarding the impact of human rights law and norms at the domestic court level. Second, most studies of the the effectiveness of human rights treaties examine the impact of such treaties on states' behavior toward their own citizens: do they torture them, deny them due process, etc. This study analyzes the impact of treaties on state behavior toward non-citizens, a group often left unprotected (and often discriminated against) by receiving states. Third, the qualitative data from this project (interviews with refugee lawyers) contextualize the quantitative data, offering the perspective of those who actually utilize huma rights treaties on behalf of their clients on a daily basis. Finally, many human rights scholars and activists assume that invoking human rights treaties on behalf of asylum-seekers in domestic courts inevitably inures to their benefit. This project demonstrates that the reality is more complicated, and that in some circumstances invoking a human rights treaty can do more harm than good. As such, this project provides a more nuanced approach to treaty effectiveness in the asylum context, thereby providing insight into those situations where a treaty is most likely to be helpful to asylum-seekers. I
