Legal Statecraft in Global Refugee Policy

• In Event: Factors and Causes Shaping Great Powers

Abstract

This paper addresses the constraint mechanism of foreign policy strategy to refugee admissions. It shows how legal pluralism in refugee law can provide mechanisms of flexibility to foreign affairs leaders rather than law, especially international law, driving the admissions process. The usefulness of refugees’ identity to state goals can motivate leaders to search for executive-discretionary legal provisions, such as national security provisions, that enable them to circumvent certain statutes and achieve foreign policy goals within the boundaries of the domestic legal system. Constitutional constraints on foreign affairs leaders can push foreign policy leaders to find areas of law that provide the most flexibility. This paper will compare two states with civil law systems, France and Romania, to examine the legal mechanisms available to and used by executives in foreign policy decision-making.

The constitutional-legal context includes how international agreements are integrated into domestic law, which immigration laws apply, and who has authority to admit refugees. Rather than different levels of law constraining foreign policy options, divergent laws can offer options to implement foreign affairs strategies. Foreign affairs goals become the constraint on refugee admissions and law a mechanism of this statecraft.

Legal statecraft for refugee policy includes agenda setting work at the treaty drafting stage. A state’s initial position during treaty drafting relates to how it perceives itself in relation to the issue. For a refugee agreement, whether a state wants generous definitions, formulas for burden-sharing, or limitations depends on how it sees such clauses facilitating its own interests. A treaty is textually stuck in the timeframe in which it was written, but legal interpretation can be malleable. Thus, state leaders may use legal interpretation to avoid obligations or re-frame principles of international agreements. New protocols are another way that states can change existing conventions to update them to current state preferences.

Using treaty drafting history from the 1960s, the paper lays out the reasons that academic, state, and nongovernmental leaders met to expand the geographic and temporal reach of international refugee law. Refugees had continued to be part of the global community and not simply a remnant of World War II, which necessitated a global mandate for the international refugee regime. These discussions at the Bellagio Colloquium led to the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees.

Representatives from France, among others, attended. As a major host state for World War II refugees, France had contributed to the consultations that led to the 1951 Refugee Convention. It continued to admit and host refugees, as is indicated by UNHCR data. In 1971, it adopted the 1967 Protocol. Its foreign policy options in relation to some refugees shifted to monetary support rather than entrance. This section of the paper documents the embedding of international refugee law in France, as well as the French influence on the international agreements.

Romania, by contrast, did not have a representative at the Bellagio Colloquium and only adopted the 1967 Protocol in 1991. Romania’s few refugee admissions in the 1970s provide a good case study for a foreign policy strategy that was closed. In other words, the refugee regime norms and international agreements were not embedded. Yet foreign policy archives show discussion of refugee situations and their links to alliances, national strategies, and agreements. The paper will contrast how foreign policy leaders in France and Romania responded to the same set of refugees in the 1970s under the expanded UN regime.

Given that national security-sensitive documents are not published until decades later, the best way to examine this process for legal tool selection is in historical cases where archives permit examination of alternative choices for leaders considering large-scale refugee resettlement. This paper relies on digitized diplomatic documents from the French Ministry of Foreign Affairs and from the Romanian Ministry of Foreign Affairs. Using two primary source languages outside English provides a historical foreign policy and legal perspective on the global development of the refugee regime and the pluralist legal environments in which international obligations operate. The extent to which the state embeds the international agreements into its domestic legal system through both technical mechanisms and regime norms, will illustrate how the state functionally applies the law, with the consequence, whether intended or not, that duration of refugee rights depends on such embedding.

Author

• Megan Brand, Princeton University