The Constitutionalization of Human Rights Law

Abstract The Constitutionalization of Human Rights Law analyzes how lawyers representing refugees use human rights provisions in national constitutions to close the gap between law on the books and how that law is implemented by focusing on five countries (Colombia, Mexico, South Africa, Uganda, the United States) and how lawyers adapt creatively to social, political, and legal contexts. Many refugee-receiving states openly reject or passively ignore their obligation under international law to protect refugees. Given that law’s growing irrelevance, cause lawyers have turned to constitutionalized human rights law. While many countries are likely to have included such provisions in their Constitutions without intending to fulfill their commitments, cause lawyers have seized on them as a more enforceable means of rights protection. This book proposes a theory of a continuum of ever-more ambitious methods through which cause lawyers use constitutionalized human rights law to benefit refugees. Lawyers use different tools as they move along this continuum, including strategic litigation, training governmental officials in the applicable law, and various forms of informal advocacy. As to the effectiveness of human rights treaties, this book provides qualitative evidence of how such treaties achieve greater significance when incorporated into national constitutions. As to refugee law, it analyzes how international protections for refugees become stronger when domestic lawyers enforce them through national constitutions. And as to cause lawyering, it shows how refugee lawyers use constitutionalized human rights law to protect their clients.