Comparative treaty law

Issue Vol. 12 No. 2 January 2010 By Adam Birnbaum

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
A wide-ranging database of national and international laws dealing with migration issues.

Council of Europe
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:
Provides country condition reports and general information.

Eurasylum 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:

Refugee Survey Quarterly (subscription required):
Published on behalf of the U.N. High Commissioner for Refugees. Provides a survey of recent developments in refugee and asylum law and issues.


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 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?

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 (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

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

16.    See e.g., Office Francais de Protection de Réfugiés et Apatrides [French Office for the Protection of Refugees and Stateless People], (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,

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; Royal Danish Ministry of Foreign Affairs, Official Denmark-The Legal System,; 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), (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.