Part VI Refugee Rights and Realities, Ch.49 National Constitutions and the Right to Asylum

Subject(s):

Asylum — Non-refoulement — Relationship between international and domestic law

This chapter studies the constitutional right to asylum, which until recently was a rather neglected backwater of international refugee law. This is due to a variety of factors, including the Refugee Convention’s domination of the refugee law regime, the weakness of the judiciary in many of the countries whose constitutions contain a right to asylum, and the non-humanitarian motivations for inclusion of that right in many constitutions. More recently, however, a combination of factors has breathed new life into the constitutional right to asylum in some countries. These factors include the limitations of the Refugee Convention, the rise in nationalism and anti-globalization, and the growing influence of refugee lawyers who are utilizing the constitutional right to asylum in domestic courts, particularly in Latin America. The chapter then traces the evolution of the constitutional right to asylum and considers how it has manifested itself in different countries and regions of the world over time. It also looks at recent strategic litigation in Latin America that has successfully utilized the constitutional right to asylum and may provide a blueprint for the effective use of such provisions in other countries.