Like most lawyers, advocates for asylum applicants are primarily
concerned with American laws and procedures. Unlike most lawyers,
however, advocates for asylum applicants, whether they consider it
on a regular basis or not, regularly deal with issues of treaty
interpretation, public international law and comparative law.
Most of the countries in the world are party to some or all of
the international instruments protecting the rights of refugees and
asylum seekers,1 but because there are several different
mechanisms by which states incorporate (or fail to incorporate)
international law into their domestic legal systems, there can be
widely divergent outcomes for the applicant depending on where he
makes his application. In order to be complete, the careful
advocate should consider not only the likely result of an
application made within the United States, but also the comparative
advantage, if any, that his client may gain by filing an
application elsewhere instead.
This article is by no means an exhaustive guide to foreign legal
practice with respect to asylum and refugee procedures. It is
merely meant to illustrate that the place of application can have a
dramatic impact on the likelihood of an asylum or refugee
application succeeding, and to serve as an introduction to the
subject and a guide to further research, almost all of which can be
undertaken with the resources readily available online. I will
discuss the three main regional systems for dealing with the rights
of asylum seekers and state duties to applicants (African, European
and Inter-American), and how those systems affect the practices of
states within their respective regions.
In cases where no application has been formally filed, or no
declaration of intent has yet been made, a thorough advocate should
consider whether the client might be better served by bringing his
application in another jurisdiction. There are, of course,
practical difficulties with this proposition; many states do not
allow applications for asylum to be made outside of their national
territory, so making this decision may necessarily involve the risk
of additional international travel. Not every state offers the same
benefits to successful applicants that the United States does,
although in certain cases, benefits abroad may be more
generous. Finally, the applicant may have an existing support
network in the United States that drove his decision to come here
to begin with, and this interest may override other
considerations.
International instruments and American law
We are all aware that, except in the case of self-executing
instruments, for a treaty to have legally binding effect in the
United States, it must be accompanied by enacting legislation.
Because American laws render nearly all multilateral international
agreements non-self-executing, and because the United States has an
uneasy relationship with both international law generally and
international dispute resolution bodies in particular,2
it is basically impossible to plead treaty provisions or to use the
legal tools that that would allow us to understand those treaties
in American courts. Should the American government fail to honor
its obligations under international instruments such as the 1967
Protocol to the United Nations Convention Relating to the Status of
Refugees,3 or the International Covenant on Civil and
Political Rights,4 we cannot avail ourselves of either
domestic courts or international bodies to resolve the
problem.5
That said, there are actually few global international
instruments which deal with the rights of asylum seekers and
refugees other than the ones mentioned above. In international law,
generally speaking, the right of asylum is still only a right to
seek asylum;6 there is no obligation on the
part of the receiving state to approve the application,
although the asylum seeker must be able to submit that
application.7 Indeed, the only absolute international
legal limitation on the receiving state's ability to send the
applicant back to his country of origin is the rule of
non-refoulement,8 which prevents the receiving state
from deporting the applicant to any country where he faces a threat
to his life or freedom. The degree of how much and what sort of
risk he must face is, of course, dependent on national
legislation.
The United States undoubtedly has one of the most generous
support systems in the world in place for those whose asylum or
refugee applications are approved.9 The application
process, standards on refoulement, the availability of the court
system to applicants, and national policy on pre-approval detention
is, unfortunately, not as generous here as it is in some other
countries.10 As most readers are probably aware, there
have been several categories of applications that the immigration
courts have approved only sporadically (by finding creative
applications/definitions of "social group" for example, some courts
find a place for homosexuals within existing law), or not at all
(e.g., refugees from generalized disorder or criminal violence not
sponsored by governmental or rebel groups). Detention, sometimes
long-term, of individuals bringing claims is also unfortunately
common.
Additionally, even in cases where the underlying claim may not
be meritorious, American immigration authorities may apply
overly-stringent burdens of proof upon the applicant concerning the
fear of torture or other serious abuse on return to his country of
origin. While the United States is not alone in these problems,
some other states in the Western Hemisphere (e.g., Canada and Costa
Rica11) and in Europe apply more forgiving standards to
applications in these circumstances. Possible outcomes can range
from positive consideration of an application that would be
virtually doomed in the United States, to equally negative
consideration that nonetheless results in non-deportability on
refoulement grounds. The authority deciding such cases either has a
different standard of proof or persuasion, or else avails itself of
different sources of information independently of any documentation
that the applicant can bring forward.12
International instruments as sources of foreign
law
Instead of universal treaties, some of the best protection for
the rights of displaced persons is actually enshrined in the three
main regional instruments - the 1969 Organization of African Unity
Convention on Refugee Problems in Africa ("OAU Convention"), the
1984 Cartagena Declaration on Refugees, and Europe's two main human
rights instruments, the Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 222, ("European
Convention") and the Charter of Fundamental Rights of the European
Union, [2000] OJ C364/1 ("European Charter"). All came after both
the U.N. Convention and its 1967 protocol, and while all of these
regional instruments only deal with a particular territory and
arose from a particular historical context, they all contain
elaborations of the original U.N. Convention that make them useful
launching points for further research into national laws and
practices.
As of the entry into force of the Lisbon Treaty in 2009, the
European Charter is "hard law" which can actually be used as a rule
of decision in courts, or used as a basis for actions before an
international tribunal, the European Court of Justice. Even though
they are "soft law," many of the state parties to the Cartagena
Declaration and the older African Unity Convention take their
responsibilities under those instruments seriously, and as time has
passed, the Cartagena Declaration in particular has grown in
importance as a regional source of persuasive law.
Because some of its language has been enshrined in the national
legislation of some states in the region, the declaration likewise
can act to bind national authorities to more inclusive definitions
that would otherwise be available under the United Nations
instruments. Both the OAU Convention and the Cartagena Declaration
establish a broader definition of what a refugee is than the
earlier U.N. Convention and its protocol; the OAU Convention in
particular is notable for expanding the definition of a refugee to
cover anyone compelled to "leave his place of habitual residence"
because of man-made disasters in even a part of his
country.13
The parties to the Cartagena Declaration initially included only
10 Central American states, plus Mexico. Today, the scope of the
declaration has grown to encompass much of Latin America and the
Caribbean. The degree to which the declaration has affected the
development of legal protection for asylum seekers varies from
country to country. Mexico, for example, was one of the original
parties to the declaration but only passed its first enacting
legislation for the U.N. Convention in 2000.14 It is
therefore best to not take it for granted that the state parties to
the Cartagena Declaration have extensively reformed their national
practices based on its provisions.
The European Convention is a general human rights document which
deals in Article 18 with the rights of asylum seekers. Because of
this inclusion, it has (thanks to jurisprudence of national and
international courts and other sources such as directives of the
Council of Europe) grown into a body of law that extends
significant protections to asylum seekers and refugees. The
collective effect of these is to prod the member states of the EU
to interpret the 1951 U.N. Convention and the 1967 protocol in a
"liberal" manner - e.g., to err on the side of extending protection
to displaced persons, and to refrain as much as possible from
employing adversarial procedures to asylum
application.15
Despite this, suits at the ECHR still occasionally crop up in
response to excessively restrictive or prejudicial procedures
employed in state parties to the European Convention. Because the
ECHR can and does apply general principles of international law
which are binding erga omnes, it has some flexibility to
consider general international human rights legal standards when
reviewing applications.
Practical research tips
If the client's case is of a type not likely to be approved in
the United States, the advocate should determine whether there are
alternative interpretations of the relevant international
instruments that might allow the client to more successfully apply
elsewhere. Differing standards for non-refoulement, different
methods of inquiry into country conditions, and varying
requirements for the gravity of the threat to the client's life,
freedom, etc., may all result in a more favorable application. This
will require the advocate to look into national legislation or
summaries of such legislation from local NGOs, a process which can
be greatly aided by inquiring into the jurisprudence of
international bodies. The case reports of the European Court of
Human Rights or the Inter-American Court of Human Rights, for
example, will often mention the relevant national legislation and
practices under review in its decisions.
Most developed countries have a ministry or department set up to
deal with refugee and asylum issues. A simple Web search will
usually turn up official homepages for these state agencies,
although the pages themselves are not always available in English.
The French government's Web portal for refugee and asylum issues,
for example,16 is available in French only. These Web
portals will usually include references to relevant statutes and
procedures used when assessing applications for asylum and refuge.
Even when the government in question does not maintain an
English-language Web page, however, local NGOs will often offer
guides with basic information on the application process and on
obtaining local legal representation in English.17
Most foreign legal systems do not make use of precedent in the
same manner that American or other common law courts do, and the
discovery of a court decision on point may thus not be as helpful
as it would be at common law. Nonetheless, most civil law countries
have a supreme court or constitutional court that does establish
binding or highly persuasive precedent, and if an advocate is armed
only with a foreign law statutory provision, then a search for that
provision within the reports of the high court may reveal
additional information on how these provisions are interpreted and
applied. In countries where international law is directly
integrated into the municipal legal system,18 a search by
name for the interpretation of national practices in the light of
regional or universal instruments can be particularly helpful.
Some final caveats
The advocate should be aware that in other nations, as in the
United States, the route that the applicant took to arrive at his
final destination, the relative safety he enjoyed within the
borders of other states before his arrival at that destination, and
the status of applications filed elsewhere (if any) can all have a
negative effect on a final decision on an application. Other states
can also have political problems harmonizing domestic laws with
international commitments, and so the appearance of a state as a
party even to a binding international instrument does not guarantee
observance of the standards enshrined within that instrument.
Finally, rules of statutory construction and interpretation vary
widely among different legal systems - unless the advocate has a
license in the foreign jurisdiction or has co-counsel with same,
when reviewing the meaning of a foreign legal provision, he must
always consult a member of that country's bar.
Further research
Many of the links below are to organizations or bodies mentioned
above, and are provided for the convenience of the reader.
International Organization for Migration
www.imldb.iom.int/
A wide-ranging database of national and international laws dealing
with migration issues.
Council of Europe
www.coe.int/t/e/legal_affairs/legal_co-operation/foreigners_and_citizens/
Select "Asylum, refugees and displaced persons"
The Council of Europe's Legal Affairs division. Contains an
archive of policy recommendations and reports of asylum and refugee
policy within Europe.
U.S. Committee for Refugees and Immigrants:
www.refugees.org/
Provides country condition reports and general information.
Eurasylum Portal:
www.eurasylum.org/Portal/
Provides links to national legislation and a country-by-country
list of NGOs dealing with refugee, asylum and general immigration
issues in Europe.
European Court of Human Rights Search Engine:
http://cmiskp.echr.coe.int/tkp197/search.asp
Refugee Survey Quarterly (subscription required):
http://rsq.oxfordjournals.org/
Published on behalf of the U.N. High Commissioner for Refugees.
Provides a survey of recent developments in refugee and asylum law
and issues.
Notes
1. 147 states are party to either the 1951
Convention or its 1967 Protocol, or both. A full list is kept by
the Secretary General of the United Nations as depositor of the
Convention, and may be accessed at http://treaties.un.org by
clicking on "Status of Treaties (MTDSG)," then selecting "CHAPTER
V," and then choosing either the Convention or its Protocol from
the list.
2. The most notable modern example is probably
the case at the International Court of Justice of Military and
Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 392
(June 27), which established a pattern of non-cooperation
reinforced in Case Concerning Avena and Other Mexican
Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31),
ultimately culminating in Medellín v. Texas, 552 U.S. 491
(2008).
3. The United States is not a party to the
Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 137 [hereinafter "U.N. Refugees Convention"] but is a
party to the Protocol Relating to the Status of Refugees, Oct. 4,
1967, 606 U.N.T.S. 267, which expanded the definitions and
geographical reach of the original convention.
4. The United States signed and ratified the
International Covenant on Civil and Political Rights, Mar. 23,
1976, 999 U.N.T.S. 171, in 1992, but made reservations and
declarations with respect to its ratification that, practically
speaking, robbed the covenant of all possible domestic effect.
See 138 Cong. Rec. S4781-01 (daily ed. April 2, 1992). It
is debatable whether the reservations were compatible even with
American law; they are almost certainly incompatible with
international law as they are in direct opposition to the purpose
and spirit of the instrument.
5. The United States has signed (in 1977) (but
not ratified) the American Convention on Human Rights, July 18,
1978, 1144 U.N.T.S. 123, but is, along with Canada and several
Commonwealth Caribbean states, not a member of the primary human
rights body in the Americas, the Inter-American Commission on Human
Rights. See Inter-American Commission on Human Rights,
What is the IACHR? www.cidh.oas.org/what.htm.
6. Universal Declaration of Human Rights, G.A.
Res. 217A (III), at 71, U.N. Doc. A/810 ( Dec. 12, 1948).
7. This situation may be changing in Europe.
See e.g., María-Teresa Gil-Bazo, The Charter of
Fundamental Rights of the European Union and the Right to be
Granted Asylum in the Union's Law, 27 Refugee Survey Quarterly
3:33, 33-52 (2008).
8. U.N. Convention, supra note 3,
art. 33(1) provides that "[n]o Contracting State shall expel or
return ('refouler') a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion." This
principle is also enshrined in the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3,
June 26, 1987 1465 U.N.T.S. 85.
9. See e.g., the U.S. Committee for
Refugees and Immigrant's Country Report for the United States,
available at www.refugees.org/countryreports.aspx?id=2177
(last visited Apr. 15, 2010).
10. Article 31(1) of the U.N. Refugees
Convention , for example, provides that:
The Contracting States shall not impose penalties, on account of
their illegal entry or presence, on refugees who, coming directly
from a territory where their life or freedom was threatened in the
sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to
the authorities and show good cause for their illegal entry or
presence.
For a summary of these issues and a discussion of the
incompatibility between American practice and international
humanitarian law standards, see e.g., Human Rights First,
U.S. Detention of Asylum Seekers (2009), available at
www.humanrightsfirst.org/pdf/090429-RP-hrf-asylum-detention-report.pdf.
11. See e.g., Ley 8487 - La Ley de
Migración y Extranjería [The Law of Immigration and Alienship]
(Costa Rica).
12. See e.g., Juliane Kokott, The
Burden of Proof in Comparative and International Human Rights Law,
Kluwer Law International, The Hague, (1998) (discussing comparative
burdens in American and civil code (in this case, Germanic) legal
systems).
13. Organization of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa, art.
2, June 20, 1974, 1001 U.N.T.S. 45.
14. Reglamento de la Ley General de Poblacion
[Regulation of the General Law on Population], Apr. 14, 2000
(Mexico).
15. This position is not a new one. See
e.g., Parliamentary Assembly of the Council of Europe,
Recommendation 434 on the granting of the right of asylum to
European refugees (Oct. 1, 1965) (dealing with the then-current
1951 U.N. Refugees Convention) available at www.unhcr.org/refworld/docid/3ae6b38110.html.
16. See e.g., Office Francais de
Protection de Réfugiés et Apatrides [French Office for the
Protection of Refugees and Stateless People], www.ofpra.gouv.fr/ (last
visited Apr. 15, 2010).
17. For instance, N.O.A.S., an organization
which provides assistance to displaced persons seeking refuge or
asylum in Norway, has several English-language informational pages.
See Norwegian Organization for Asylum Seekers, A Watchdog
for Asylum Seekers, www.noas.org/?p=news&news_id=66.
18. Estonia, Holland and Switzerland (for
example) all integrate international law directly into their
domestic legal systems. See generally Hannes Vallikivi,
Domestic Applicability of Customary International Law in
Estonia, 7 Juridica 28 (2002)
available at
www.juridicainternational.eu/public/pdf/ji_2002_1_28.pdf; Royal
Danish Ministry of Foreign Affairs, Official Denmark-The Legal
System,
www.um.dk/Publikationer/UM/English/Denmark/kap1/1-11.asp#1-11-3;
John H. Jackson, Status of Treaties in Domestic Legal Systems:
A Policy Analysis, 86 Am. J. of Int'l Law 310,
314-15 (1992) (explaining that "dualist" states require some action
before treaties are incorporated into local law, whereas "monist
states" immediately absorb treaties); Fridolin M.R. Walther,
Introduction to the Swiss Legal System: A Guide for Foreign
Researchers (Nov. 15, 2000), www.llrx.com/features/swiss.htm#Treaties
(describing Switzerland as a "monist" nation, therefore
automatically incorporating international law into its domestic
law).
The Author
Adam Birnbaum graduated in May
2009 from Santa Clara University School of Law, where he focused on
international public and international criminal law. He has a BA in
East Asian Studies from Wesleyan University. He was most recently
an intern for the Appeals Chambers of the International Criminal
Court.