Cornell Law Review Volume 102 Issue 5

The Political Economy of the Constitutional Right to Asylum

The issues of mass migrations, displaced persons, and refugees from war-torn countries are not new, but they have become particularly prominent and contentious in recent years and will garner even more attention as climate change refugees begin to cross borders seeking new homes in foreign countries. Academics and policy-makers have jointly turned to international law to remind states of their international legal obligations toward refugees; yet they are also quick to point out the inadequacies of the international legal framework. At the same time, efforts to address these inadequacies and to lay down general legal standards and policies to manage the growing migration flows have faltered.

Surprisingly, in light of the mounting crisis, it has largely escaped the attention of commentators that a substantial number of countries provide a right to asylum in their constitutions. Remarkably, constitutional asylum provisions often go beyond states’ international legal obligations and establish permanent legal solutions for those seeking sanctuary. In addition, constitutional provisions are insulated from changing political tides and encourage governments to honor their commitments even when doing so lacks popular support. These constitutional provisions thus hold substantial promise to address some of the most pressing legal problems of our time.

This Article offers the first systematic exploration of constitutional asylum provisions. It presents an original data set on right to asylum provisions in all national constitutions written since 1789, explores the first instances of adoption, and traces the right’s development over time. The data reveals that, currently, approximately thirty-five percent of all countries have constitutionalized the right to asylum. Drawing on both real-world examples and regression analysis, we find that constitutional asylum provisions serve a complicated purpose. Some constitutions frame asylum as a right for all those in need, thus, seemingly serving a true humanitarian purpose. Other states, however, use the right as an instrument to broadcast their doctrines and to cast judgment on the views of other countries by granting asylum only to those that share the ideology of the host nation. This latter version of the right to asylum is particularly prominent in authoritarian and socialist constitutions. Thus, asylum provisions can serve as both a humanitarian tool for providing state-sponsored sanctuary to persecuted persons and an overt instrument of foreign policy deployed to achieve the political objectives of the host nation.

We further find that the adoption of asylum provisions can be motivated by self-interest. Even when framed as a universal right, asylum might be a useful tool to condemn the human rights records of foreign countries. Moreover, we find that countries with net refugee outflows, such as some of the smallest and poorest African states, as well as nations with aging and declining populations, such as Germany, more readily entrench the right to asylum in their constitutions. We conclude that these apparently self-serving motivations for constitutionalizing asylum rights are not necessarily detrimental for asylum-seekers, nor do they necessarily undermine the right: appealing to self-interest, rather than self-sacrifice or humanitarian ideals, might actually prove more effective in motivating states to ensure adequate protection of human rights, including the right to asylum.

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