Legal Statecraft in Global Refugee Politics

Abstract

How do foreign policy leaders navigate hierarchies of international, statutory, and constitutional law when they conflict? What consequences do differences in legal authority have on the outcomes of refugee agreements? While previous scholarship has emphasized economic, legal, or humanitarian responses to refugees, my research links the constitutional politics of forced migration to strategic interests. My research examines how foreign policy leaders’ use of law is an act of political judgement when multiple levels of law provide ambiguity. Inconsistencies among available laws provide the opportunity for foreign affairs leaders to exercise choice in the mechanism they use to admit or exclude refugees. The usefulness of refugees’ identity to a state’s grand strategy can motivate leaders to search for executive-discretionary legal avenues, such as national security provisions, that enable them to circumvent inconvenient sources of law and achieve foreign policy goals within the boundaries of the domestic legal system. This selectivity can be seen as a type of flexibility, contributing to international relations research on compliance. At the same time, if international and domestic levels of laws converge, more limited foreign policy options might not be in the strategic interest of leaders who face these constraints. When embedded international law constrains strategic decision-making, states will seek to revive their autonomy. One mechanism is redesigning an existing international regime through agreement proliferation. New treaties layer on top of old ones, providing legal diversity that restores executive choice, limits how the earlier agreements apply, and pushes burdens of compliance to other states. The manuscript documents the design and strategic use of global, Middle Eastern, and European agreements on refugees from the 1950s to the present. The work traces their integration across common law, civil law, and mixed law systems in the U.S., UK, Jordan, Egypt, Romania, and France. The comparative case studies show how states’ strategic goals drive the legal tools that executives choose when responding to large-scale refugee events.