Much of traditional international law scholarship takes law as exogenous. That is, it starts with the law as enacted, and analyzes the morality or consequences of the law, or it makes a case for changing it to achieve more just results. But researchers over the last couple of decades have increasingly used the methods of international relations to tackle traditional questions of international law. Now, questions relevant to international lawyers are increasingly taken up by political scientists. Yet, due in part to the respective fields’ differing languages and methods, a sizeable gulf remains between them.
Studies like Sheppard and von Stein’s excellent article, Attitudes and Action in International Refugee Policy: Evidence from Australia, recently published in the journal International Organization, are helping to bring the two fields closer.
The authors are interested in measuring how different framings effect public support for an Australian refugee policy that turns back asylum-seekers bound for the country’s shores. They use a survey experiment conducted on over 2,000 Australian adults. Each respondent is given a background statement about the policy: the policy violates international law; it is immoral; it could damage Australia’s international reputation; or nothing (the control). Respondents are then asked how much they support the policy.
Although only one statement concerns international law per se, these three treatment framings can be thought to roughly track some of the main theories of how international law works. States are thought to value their reputations for international law compliance; some argue that states construct an identity for (non-)compliance; and the international law treatment may trigger fears that other states or organizations will retaliate against Australia for its violations (though in reality, this is unlikely in this scenario).
The study expands on previous work in a couple of ways. In addition to measuring support for the policy to repel refugees, the study seeks to measure willingness to take action to change the policy: Respondents are also asked whether they would sign an opposition petition, protest, or donate to an NGO to help oppose the policy. This innovation recognizes that opinion often doesn’t translate into action. While saying one is willing to do something doesn’t translate perfectly into action, it’s as good a measure as is likely available in this context.
The findings in some ways reinforce existing studies of how international law and norms affect support for migration policies. They find that invoking international law has the strongest positive effect on public opinion; that is, at least a fraction of the Australian population seems reticent to have its country violate international refugee law, even though those citizens may support the underlying policy on substantive grounds. This may surprise some skeptics of public international law’s efficacy. But to many others, it will be unsurprising, especially those familiar with studies conducted on U.S. residents on the normative force of international law. The morality treatment also significantly reduces support for the refugee-diversion policy, as does the reputational treatment, though not as strongly as the international law treatment.
In other ways, the results provide a unique perspective on what sort of institutions matter in international immigration law. For instance, much of the experimental research on the effect of international law on policy attitudes has been conducted on U.S. residents. Those studies generally found a positive response to international law. But more recent research conducted outside of the West has found mixed results, with respondents in Israel and Turkey exhibiting a backlash to international law concerning torture and refugees, respectively. The finding that people in Australia respond similarly to those in the United States may begin to paint a picture of Western countries’ responding positively. Perhaps this can be explained by the notion that international law is sometimes thought to be a largely Western-invented and developed institution; future research could explore this idea more directly.
Unfortunately, social-science journal word limits usually make it impossible to include in-depth theoretical discussions in an empirical study. But the article left me seeking an even deeper exploration of the normative mechanisms at work in shaping public opinion action. Scholars of law and of social psychology have long been interested in these questions, but only relatively recently have empiricists started to test the theories as they pertain to international legal compliance. For instance, the authors here don’t find a backlash, but where a legal treatment does prompt respondents to express an opinion or behavior contrary to the legal mandate, it is possible either that the subjects disapprove of the law, or that that subjects just don’t believe or agree with the surveyor’s characterization of the law. In other words, they may not effectively receive the “true” treatment of changing respondent beliefs.
Given that the international refugee law and most human rights treaties have weak, if any, formal enforcement mechanisms, these institutions depend in large part on public opinion and public action for state compliance. Sheppard and von Stein’s study takes an important step forward in furthering our understanding of how refugee advocates can bring that about.
