Research Paper Number

10/2014

Stephen Meili

Subsequently published in the Osgoode Hall Law Journal.

Document Type

Article

Publication Date

2014

Keywords

refugees; human rights treaties; gender; litigation; legal theory; persecution; asylum; cause lawyering

Abstract

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.

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