International Refugee Law between Scholarship and Practice

Abstract

Current challenges to the traditionally privileged position of law in both refugee policy and refugee studies invite scholars to consider carefully the approach we take to our craft. This article argues that refugee law scholarship is surrounded by thin walls, as researchers broker the ‘dual imperative’ to simultaneously advance knowledge and protection in a field heavily influenced by policy interests and networks of practitioners that actively take part in, and promote, scholarly production. These close links between the field and the policy world continue to shape research agendas, methodologies, and scholarly positions. This article draws from Bourdieusian field theory and legal sociology to offer a prism through which to look at the forces that influence refugee law research and to consider their implications for scholarship. It is argued that greater sensitivity to the underlying dynamics of our profession is essential, not only to ensure more inclusivity in the community of scholars and expand the current canon of refugee law, but ultimately to sustain claims to policy relevance.

1. INTRODUCTION

International law has traditionally maintained a privileged position within both global refugee policy and refugee scholarship.¹ This is reflected in the early adoption of a binding international convention, the 1951 Convention relating to the Status of Refugees,² which since 1967 has served as the global governance framework for the international refugee regime. Despite waning political support for refugees, States have repeatedly confirmed their commitment to the core principles of international refugee law, most recently in the 2016 New York Declaration.³ Such formal endorsements notwithstanding, it is hard to escape the feeling that the privileged position of refugee law, and of refugee lawyers, is currently changing. Not simply because adherence to existing legal standards is faltering in many places – in itself hardly a new thing⁴ – but also because international law and legal expertise appear to be losing turf to other modes of governance in current discussions about global refugee policy.

The 2018 Global Compact on Refugees (GCR)⁵ is a case in point. States expressly rejected submitting themselves to any new legal commitments, leading to the diplomatic neologism of the ‘compact’ as a form of political and non-binding agreement previously reserved for corporate entities.⁶ References to existing standards and legal commitments in the text itself are moreover scant, with the emphasis instead placed on more technical and procedural aspects of refugee governance. Both in form and substance, the Compact represents a step back from international law as the otherwise preferred language of international relations.⁷

Distinct disappointment with law as the dominant mode of governance for refugee policy has further been expressed by scholars from other parts of refugee studies. In their book, Refuge, Alexander Betts and Paul Collier argue that ‘refugee law is no longer effective’ and that ‘its relevance should be an empirical question not an assumption’.⁸ Several governments seem to mirror that position, specifically seeking out expertise from other fields and disciplines in the ongoing discussions of both national and global political reforms. In a recent essay, David Cantor thus provocatively queries whether the international refugee legal framework has ‘outlived its utility’ and whether we may be seeing the ‘end days of refugee law’.⁹

Notwithstanding the inherent limits of refugee law and its protection regime, the current frustration with those who practise in the field is not without precedent. Howard Adelman, writing in 1995, argued that:

international lawyers concerned with refugees have become the super-egos of the refugee world, haunting consciences who continually hold up standards of the Refugee Convention, international human rights conventions, constitutions, due process, principles of natural and administrative justice, to show how far short current or proposed legislation fails from these standards.¹⁰

And according to Guy S Goodwin-Gill, former High Commissioner Sadako Ogata openly proclaimed her disdain for refugee lawyers, ‘whom she perceives as rigid and backwards looking, invoking the past to frustrate the realistic and pragmatic approaches to refugee problems which are considered to be the proper realm of the political scientist as pro-activist humanitarian’.¹¹

Such challenges are often directly related to shifting policy agendas.¹² Where States systematically begin to probe the boundaries of their legal commitments when existing principles fail to meet current political fashions, the law and lawyers tend to be among those blamed. Struggles over the relative importance of refugee law and legal expertise are thus to be expected, not least in times when existing policy paradigms are failing and new ones are being tested.¹³

At the same time, for an academic field so intimately related to the political world around it, we believe that this is a particularly important moment at which to reflect on the development and current state of refugee law scholarship. Challenges to international refugee law produce different and sometimes difficult academic, ethical, and political choices for legal scholars working on refugee issues. While some academics have become actively involved in various forms of activism and strategic litigation to counter or rein in government policies, others have launched reform proposals in the hope of rekindling State support. There is no consensus amongst refugee lawyers as to whether or how to engage with ongoing policy processes. While practice-oriented dialogues have always been a core feature of refugee law scholarship, more voices today approach these links from a critical perspective, warning that any kind of ‘solution-oriented’ input from scholars is open to corruption in the ensuing political process. Meanwhile some colleagues experience that their academic work and personal credibility become subject to politicized external critique. Navigating these choices requires continued reassessment of the political realities at stake for refugees and, we believe, a more open discussion amongst scholars to justify and reflect on the wider consequences of different strategies. Understanding the constitution and trajectory of international refugee law as an academic field serves as an essential baseline for this process.

Notably, there is not an extensive tradition for such introspection in refugee law scholarship. The small body of work that explores the academic field of refugee law was mostly written two decades ago, and mainly directed towards an external readership.¹⁴ Rather, the evolution of refugee law scholarship is often seen simply as the history of refugee law itself.¹⁵ So far, there is no parallel to the revisionism that has seized the wider fields of human rights and international law.¹⁶ Attempts to reflect on the development of refugee studies moreover often sidestep or bracket the legal discipline.¹⁷

This article seeks to revisit international refugee law by recognizing the influence of its position between the worlds of the academy, politics, and advocacy. It does so by exploring the intersections between refugee law scholarship and practice. We argue that, within the field, research is generally characterized by a ‘dual imperative’ to simultaneously advance scholarly and protection-oriented objectives. Externally, the academic field of refugee law is heavily influenced by international organizations and networks of practitioners that actively take part in and promote particular kinds of scholarly production. Ultimately, this has important implications for the kinds of questions raised by legal scholars, the methodologies applied, and the diversity of perspectives and pluralism enabled within the field. As challenges to the legitimacy of refugee law are once again mounting, there is an impetus for the profession at large to reflect on and critically reassess the current trajectory of the field.

In part 2, this article discusses the characteristics of refugee law as an academic field and the tensions that this creates for a profession seeking to advance protection at the intersection of scholarly and political spaces. Part 3 focuses on the distinctive ethos of refugee scholars to broker the ‘dual imperative’ between research and advocacy. This remains an underlying feature of methodological debate and places constraints on research that might risk undermining already fragile protection practices. Part 4 then delves into the research–policy nexus, exploring the implications of the heavy involvement of the professional community in scholarly production and the impact this has on approaches to refugee legal research and the development of the discipline. Part 5 concludes with a call for a deeper, reflexive conversation about our common profession.

2. THE THIN WALLS OF INTERNATIONAL REFUGEE LAW

Since the 1970s, international refugee law has evolved into a generally recognized sub-field within the legal discipline. Pierre Bourdieu’s work reminds us that this hard-earned standing as an academic field flows not simply from an expanding body of substantive scholarship, but also from the relative level of structural autonomy in relation to its political and economic environment, and the educational system within which it develops.¹⁸ Social fields can have a gravitational pull with far-reaching effects on the behaviour of actors, which they may, or may not, be aware of. For refugee law scholars, a degree of autonomy vis-à-vis the broader academy is achieved through, for example, the establishment of academic journals dedicated to the field, course programmes, and research centres. At the same time, however, refugee law delicately straddles the boundaries between research and policy. Acknowledging this central dynamic, also common to many other areas of international law, casts the traits of refugee scholarship into stark relief. Much refugee law scholarship is directly oriented towards the central actors, ideals, and processes underway in the wider asylum policy community. Yet it also, itself, draws non-academic actors and institutions into the process of scholarly production.

This double bind is a product of the particular institutionalization of refugee law. On the one hand, refugee law scholarship – like its sister discipline international human rights law – has protection as a paramount concern, imposing a ‘dual imperative’ for the field, with academics often fulfilling the roles of both scholar and advocate.¹⁹ Consequently, refugee law scholars are often invested in multiple types of ‘professional arenas’ beyond the academy through which other rewards are pursued alongside strictly scholarly expertise. Refugee law may in this respect be considered what some sociologists call a ‘weak field’ – closely tethered to both societal and political structures and shifting agendas within the academy.²⁰ Unsurprisingly, methodological and theoretical developments in refugee law often mirror broader trends across adjacent legal fields and the wider discipline.²¹ Legal sociology, and more generally field theory, offers a constructive prism through which to expose and engage with the underlying forces that influence knowledge production by scholars working within, around, and through the thin walls surrounding refugee law.²²

On the other hand, the relatively weak institutionalization of refugee law means that the relationship between scholarship and practice is organized differently in comparison to other ‘weak fields’, such as for instance human rights or European Union (EU) law.²³ Contrary to general human rights law, where the most prominent scholars have different options to serve as mandate holders, committee members, or judges within the United Nations (UN) or regional human rights architectures, few such positions exist beyond the national level in regard to refugee law.²⁴ Conversely, in the absence of an international court and dedicated treaty committees to support the international refugee law regime, the academic field becomes all the more important as a source of guidance for legal interpretation. The fragmentation of jurisprudence across national jurisdictions provides legal scholars with a unique role in terms of translating, linking, and synthesizing case law.²⁵ This affords a particular status to key textbooks in international refugee law, well-worn copies of which belong to case workers and adjudicators around the world. As Audrey Macklin further points out, refugee law is replete with examples where interpretations originally forwarded by prominent legal scholars have subsequently found favour within national jurisprudence.²⁶

The dual bind between scholarship and practice has several more practical implications. First, refugee law scholarship retains close connections to professional communities outside academia. This is true at the individual level where ‘revolving door’ dynamics or ‘double hatting’ is commonplace. Like many colleagues, both authors of this article have at various times in their careers taken on part-time or temporary assignments for refugee organizations, served as advisers or in appointed positions within national or regional human rights bodies, and either worked on or adjudicated asylum and immigration cases. Most refugee legal scholars are part of both transnational and national networks that are dominated by overlapping communities of scholars, decision makers, practitioners, and representatives of non-governmental organizations (NGOs). As Jeff Crisp comments, refugee law is a highly ‘networked’ field.²⁷

This holds true for financial structures as well. A substantial percentage of research funding in this area derives from policy-oriented donors. Specialized refugee research centres are often heavily dependent on support from sources beyond the university and traditional research councils. This is particularly pronounced within the EU. From 1994 onwards, when the then European Community turned towards funding social science research with institutions in Member States and ‘third party partners’, a significant number of projects have been funded in and around the field of migration and refugees.²⁸ Through its growing network of funding mechanisms, research that aligns with the policy objectives of the EU is prioritized, and projected impact is a central criterion for the assessment of research proposals.²⁹ Policy-oriented research funding is, in turn, amplified by a more general trend in the social sciences and within university faculties to assess research according to the opaque metrics of ‘impact’ and ‘civil engagement’.³⁰

International organizations are in addition well represented on the editorial boards of most leading refugee and migration journals. The International Journal of Refugee Law (IJRL) is an independent academic journal but has always maintained a close relationship with the United Nations High Commissioner for Refugees (UNHCR).³¹ The interdisciplinary journal International Migration is directly published by the International Organization for Migration (IOM). The UN GCR calls for the creation of:

a global academic network on refugee, other forced displacement, and statelessness issues ... involving universities, academic alliances, and research institutions, together with UNHCR and other relevant stakeholders, to facilitate research, training and scholarship opportunities which result in specific deliverables in support of the objectives of the global compact.³²

Many major refugee organizations themselves internalize research functions, and dedicated academic tracks are often organized as part of international policy processes. Refugee law scholarship, in other words, is not simply a free-floating intellectual history but very much a product of, and a response to, surrounding political developments.³³

One would generally assume scholarly consensus within such policy-oriented fields to loosely follow dominant political interests.³⁴ The quest for access, relevance, and impact may also create tensions with the academic’s mission. Edward Said’s reflections on the intellectual and society highlight the vulnerability of principled positions when confronted by fear of controversy, disapproval, and the hopes ‘to be asked back, to consult, to be on a board or prestigious committee, and so to remain within the responsible mainstream’.³⁵ Withstanding such pressures and incentives confronts many, if not most, researchers across disciplines; in ‘weak fields’, the challenge is simply more pronounced. This recognition was present at the inception of the Journal of Refugee Studies. In its first issue, in the inaugural editorial, Roger Zetter considered the impact on research of the ‘clientelist relationship’ with agencies. He argued that the highly sensitive and uncertain environment within which agencies and governments work has many factors that militate against independent examination and its capacity to question ‘fundamental and accepted tenets on which refugee assistance, law and administration have been based’. ‘Thus,’ he concluded, ‘the disturbing findings and the potential controversies are not welcomed’.³⁶

However, critical voices are present in refugee law scholarship, as a longitudinal reading of the IJRL readily demonstrates. In its most recent special issue focusing on the GCR, several contributors are disparaging of States, UNHCR, and other actors for their roles and the missed opportunities of the process.³⁷ Somewhat rarer within the wider refugee law literature are explicit reflections in terms of how policy interests, apprehensions, and funding impact research. In a recent article, Jaya Ramji-Nogales argues that the current political climate has made refugee law scholars particularly resistant to embracing new approaches and less open to accepting legal change.³⁸

Resistance does indeed seem to be a theme underlying much refugee law scholarship. Particularly since the end of the Cold War and the consequent decline in geopolitical support for refugee protection, international refugee law is often seen as a ‘bulwark’ against restrictive political developments, as Goodwin-Gill famously phrased it.³⁹ When forming alignments within political realms, refugee scholars thus tend to gravitate towards the transnational, focusing on international institutions, regional bodies, and international NGOs with similar rights-based mandates. As the following part will elaborate, this outlook continues to structure refugee law scholarship today and has important implications for how refugee lawyers are likely to respond to both specific policy developments and discussions about reforming global refugee policy more generally.

3. BROKERING THE ‘DUAL IMPERATIVE’ IN REFUGEE LAW

Refugee research is characterized by its reciprocal relationship between scholarship and advocacy.⁴⁰ The ‘dual imperative’⁴¹ to simultaneously undertake rigorous research and to promote the rights and agency of refugees, as it has been dubbed by scholars in other parts of refugee studies, is for most scholars a natural extension of the field’s subject matter. It is fundamentally difficult to justify research into situations of extreme human suffering unless the alleviation of that suffering is an explicit objective of one’s research agenda.⁴² This applies to legal scholarship as well – as Goodwin-Gill pointedly argues, international refugee scholarship should never be ‘just “academic”, divorced from the real problems of protection’.⁴³ Brokering this ‘dual imperative’, however, is not always straightforward, and can sometimes place competing demands on scholars.⁴⁴ Within refugee law, as with much legal scholarship, core academic debates typically are linked to real or potential litigation, policy processes, and practices on the ground.⁴⁵ This is a common trait in many domains of international law, with distinctive ramifications depending upon the given policy area. For refugee legal scholarship, the imperative advancement of individual protection occurs in a particularly politicized and, at times, hostile policy environment. The importance of scholarship to support refugee protection may further invite linkages with advocacy groups and organizations. As a result, refugee law scholarship can easily become, or be perceived to be, entwined with more partisan interests.

In order to expand the scope of protection and rein in new State practices, refugee law scholarship often pushes at the frontiers of interpretation. Within this process, internal struggles over treaty interpretation emerge, waged through claims about international legal methodology. This applies, for instance, to the rich debate around the geographical application of the non-refoulement principle that continues to evolve in tandem with State practice.⁴⁶ As Gregor Noll concluded early on, ‘the battle on the proper interpretation of Article 33 [of the 1951 Refugee Convention] can no longer be won on a substantial level. The decisive arguments are those relating to the interpretation of interpretative rules’.⁴⁷

The result of such methodological debates is a plethora of self-proclaimed positivist approaches striking different balances between, on the one hand, more dynamic interpretations and emphasis on object and purpose, and, on the other hand, emphasis on State practice and sovereigntist principles. Each of these may be subjected to critique on various bases. Teleologically driven approaches have faced criticism for failing to adhere to core methodological standards and hence amounting to little more than ‘wishful legal thinking’.⁴⁸ UNHCR-commissioned research and parts of the wider turn to human rights in refugee law have similarly been criticized for persistently overstating the reach of international refugee law in its construction of opinio juris and regime interaction.⁴⁹ More fundamentally, significant differences exist within the field in regard to core methodological issues, for instance the role of State practice and its implications for interpreting protection obligations, or the relative importance of the travaux préparatoires in deciphering the object and purpose of the Refugee Convention.⁵⁰

These central debates that relate to treaty interpretation or State practice concern the fundamentals of public international law, yet often occur as mere sidebar discussions amongst refugee legal scholars. Such disputes are often written off internally as simply a matter of poor legal craftmanship by opposing scholars. Doctrinal disagreement within the field may also, at least in part, come down to subjective differences – and consequent struggles – about interpretive outlook. At the same time, there is always a risk that an academic field characterized by strong policy imperatives may provide an echo chamber for well-intentioned but poorly developed legal methodologies. There is a point in this process where advocacy-driven approaches can risk further undermining support for international refugee law. As Goodwin-Gill warns: ‘[a] great, indeed damaging, disservice is done to the protection of refugees by pretending that rules exist where there are none’.⁵¹

How we as scholars navigate the ‘dual imperative’ has implications for the field’s relationship to the legal discipline more generally. As Karen Jacobsen and Loren Landau observe, the short-circuiting of methodological analysis has also been a problem in other disciplines.⁵² The centripetal orientation of refugee scholarship can lead to accusations of methodological sloppiness from colleagues in other sub-fields and disciplines.⁵³ In law, it is outside our comfortable community of refugee scholars that more confrontational discussions with colleagues from other legal fields about interpretation and what constitutes ‘good legal scholarship’ often take place. An engagement with these critiques by clearly setting out and justifying methodological choices to peers is important to ensure that refugee law is not marginalized or seen as becoming out of touch with other parts of the legal discipline.⁵⁴

The ‘dual imperative’ does not necessarily impair the strength of underlying methodologies, as the high standard of the canon of refugee legal scholarship attests. Its absence, however, would more likely invite analyses that push boundaries, even with discomforting outcomes. Within the current proliferation of wider scholarship on refugees, one can identify thousands of articles published in journals across disciplines.⁵⁵ Refugee legal scholarship is also published in a wide range of legal and other journals. It is remarkable, however, that it has long remained barely marginal in public international law journals.⁵⁶ With its centrality to our craft, there is a great deal that refugee law could gain and give by grafting refugee legal analysis more fully onto the debates of its parent discipline. The process of routine publication in journals and conferences where the ‘dual imperative’ is less pronounced to professional peers can provide a healthy environment to ensure that refugee legal scholarship withstands rigorous methodological scrutiny. It would also transmit the developed expertise in the discipline to a broader community of researchers. In turn, this may feed back into the field, leading to a more diversified body of scholars bringing new perspectives to refugee law.

The ‘dual imperative’ also matters in terms of how scholars position themselves and respond to new policy measures. Whereas previously, international organizations could generally count on support from scholars in regard to major policy processes, the restrictive climate for refugees in recent decades means that more refugee law scholars are likely to remain sceptical of new policy proposals. From the outset, these are met with a critical scrutiny of their reform claims and what can actually be achieved within the parameters of existing political mandates. From this vantage point, scholars may choose to refrain from policy engagement on the basis that input to these processes is easily compromised. Alternatively, they may spearhead alternative reform proposals based on either more idealist or realist conceptions.⁵⁷

Other scholars again have become involved in more bottom-up forms of refugee advocacy. There is a longstanding tradition of refugee law professors and, on occasion, their students, becoming involved in cases before both domestic courts and international human rights bodies. This has become institutionalized in several universities that have established legal aid clinics or centres offering assistance in accessing justice for refugees and asylum seekers, such as the Refugee Rights Unit at the University of Cape Town, the Refugee Law Project at Makerere University in Kampala, or the Clinical Legal Education programme with the University of Hong Kong and Chinese University of Hong Kong. In reforms underway in the central and eastern European States, the Open Society Institute and UNHCR have supported the establishment of refugee legal education through clinics within universities across the region.⁵⁸ A number of refugee scholars are currently engaged in pioneering strategic litigation that both in substance and choice of judicial fora is pushing beyond the traditional confines of international refugee law.⁵⁹

Again, these strategies are open to internal contestation. Those choosing to stand outside current policy processes such as the GCR argue that such initiatives are clouded by institutional interests, involve scholars in a largely symbolic manner, and are unlikely to be effective.⁶⁰ Conversely, alternative reform proposals advanced by academics have been accused of either being too far removed from the practical realities of States to have any impact, or inherently apologetic to the interests of powerful States, and open to misuse or partial application.⁶¹

Lastly, the article has been discussing how the profession brokers the ‘dual imperative’ with this assumption of its underlying desire to have a positive impact on refugee protection. There is an inverse assumption that the orthodox parameters of the types of protection-focused questions asked, and the kinds of answers we publish, can be influenced by the fear of a negative impact on refugees and protection. Such inhibitions, however, must not prevent a candid review of the nature and validity of the assumptions we hold as scholars about the use of legal research to advance protection. There is a general awareness, particularly acute in the current political climate, that research findings can be exploited, distorted, and manipulated to serve an anti-refugee political agenda. The as yet unmet challenge of the profession is to identify strategies and spaces for scholars exploring sensitive rights issues that limit these risks.

4. THE RESEARCH–POLICY NEXUS

If refugee law scholars are generally oriented towards policy and practice, refugee professionals and organizations are also deeply invested in research and academic production. Many refugee organizations maintain some form of internal research capacity. UNHCR has provided financial support to countless different research projects, but also to transnational educational platforms such as the Refugee Law Reader.⁶² Like several other refugee organizations, UNHCR maintains some degree of internal research capacity. The Evaluation and Policy Unit, established in 1999, was operational for many years, along with its working paper series, New Issues in Refugee Research. Further, several UNHCR flagship publications, including The State of the World’s Refugees and various thematic and global consultations,⁶³ are published with leading academic publishers rather than openly available as in-house reports. The call in the GCR for a ‘global academic network’ is similarly oriented towards realizing the Compact’s official objectives.⁶⁴

As mentioned above, refugee organizations and individual professionals are often heavily involved as contributors of scholarly publications and in editing academic journals and book series. The IJRL is an example in point. The journal was founded as an independent publication under Oxford University Press, but as stated in the editorial to its first edition in 1989, an open and close interaction with UNHCR has always been part of its raison d’être.⁶⁵ Like other practice-oriented law journals, the IJRL regularly includes relevant policy documents. UNHCR is represented on the journal’s Editorial Board, and a handful of long-time refugee professionals from different organizations feature among the most prolific contributors of articles to the journal. While that may be written off as the result of a few extraordinary individuals capable of maintaining a significant academic profile in addition to their professional positions, in an examination of the body of scholarly articles published in the IJRL since its inception, UNHCR – in addition to the official documents published – also appears as the second-largest institutional contributor of peer-reviewed articles. As the leading refugee law journal globally, the IJRL represents the extent to which the cross-fertilization between the policy and the academic worlds is deeply integrated into the canon of the profession.

The unusually engaged participation by international organizations and civil society activists in scholarly activities may be seen to reflect the centrality of the academic field of refugee law in negotiating and progressively developing refugee protection principles. Alongside the absence of international bodies and fora focused on refugee protection, is the enormous amount of domestic litigation in courts and administrative fora on the central tenets of substantive and procedural refugee law. Refugee law texts and articles play an important role in cataloguing, synthesizing, and disseminating this body of national jurisprudence. Against this backdrop, it is clear why positivist advocacy approaches towards refugee law are so dominant in the scholarship. The range of examples where academic interpretations have subsequently found favour with domestic courts or influenced State practice is a testament to that fact.

From an academic perspective, the close and interactive relationship between scholarship and practice in international refugee law entails several benefits and represents a likely point of envy for many scholars in other policy-relevant fields struggling to establish similar connections to non-academic audiences. The open interface between scholarly and policy communities offers critical insights into processes of legal and political deliberation that is often inaccessible to academics.⁶⁶ This helps scholars finetune their research agenda, sheds light on the reasoning behind particular legal outcomes, and creates feedback loops in terms of how academic opinions are received by decision makers and other stakeholders. Indeed, open dialogue and cross-fertilization between academia and practice is a major strength for any field engaged in empirically based and problem-solving research.⁶⁷ As Cantor notes, close collaborations between professionals and scholars are furthermore essential if international refugee law is to persevere in a world that is, as he puts it, increasingly ‘hostile to refugee protection’.⁶⁸

At the same time, the close relationship between scholarship and practice gives rise to some critical considerations. First, the narrow interface between scholarship and practice, centred around a handful of major international organizations, may, of course, make it more difficult for scholars to voice criticism regarding the role of these central institutions.⁶⁹ Historically, scholars who have done so have often found themselves standing outside research and policy-related fora where these organizations play a major role.⁷⁰ This has not been without contention, as can be seen by the intense scholarly debate about the role of UNHCR and IOM in the process and substance of the two UN Compacts.⁷¹ Reviewing UNHCR’s past engagement with scholars, Crisp notes ‘the organization’s hegemonic tendencies in relation to refugee issues and its sometimes tetchy response to external criticism’.⁷² As such, the success of the proposed academic network to be convened by UNHCR in relation to the GCR will rest, at least in part, on the presence of scholars representing constructive critiques and alternative approaches to mainstream practices which may, at times, run against UNHCR’s select policy agendas.⁷³

Secondly, it is important to ask how this relationship is being brokered, particularly in terms of inclusion and exclusion of voices in the field. International refugee law – perhaps more than other disciplines in refugee studies – has historically struggled to include perspectives from the global South.⁷⁴ Challenging the traditional and largely Eurocentric canon of modern refugee law, it is worth pointing out that one of the first articles dealing with legal regulation of refugees at the national level after the Second World War was authored by SP Chablani, an Indian scholar, who had been approached to carry out a study of the rehabilitation of refugees in the Federal Republic of Germany, based upon his work experience at the Indian Ministry of Rehabilitation.⁷⁵

Within refugee law specifically, a further concern is that the strong policy ties may favour particular kinds of research agendas and methodologies. According to BS Chimni, the close relationship to UNHCR has historically led to an emphasis on positivist scholarship with a liberal orientation, which lends itself more easily to policy purposes and can help legitimize a particular vision of international refugee law.⁷⁶ Yet refugee law scholarship today arguably represents a much more sprawling field. Several scholars explicitly distance themselves from positivist approaches and/or the perceived limits of acceptable interpretive outcomes that may pertain to policy-commissioned research. In their place, scholars have applied a range of different legal approaches to refugee law, including critical legal theory,⁷⁷ post-colonial and third world approaches,⁷⁸ feminist theory,⁷⁹ realism,⁸⁰ law and economics,⁸¹ and transnational law⁸² to name but a few. In addition, distinctly interdisciplinary approaches to international refugee law are today more commonplace,⁸³ with scholars drawing on, for example, political philosophy,⁸⁴ political science,⁸⁵ sociology,⁸⁶ anthropology,⁸⁷ psychology,⁸⁸ and forensic approaches.⁸⁹ In some cases, to the extent that different approaches to research challenge or engage awkwardly with commonly accepted refugee law categories, or fail to conform to mainstream visions of international law, they have been met with resistance or scepticism by policy organizations. A greater openness to insights from this broader academic landscape is essential if scholarship is to play a meaningful role in critically assessing and constructively informing policy.

And lastly, but not least, it is relevant to ask how and by whom the parameters for shared research agendas are set. While funding for refugee research has increased significantly in recent years, much of this funding is attached to predefined and specific requirements in terms of policy outcomes and impact. At a time when the political environment is particularly difficult for refugee protection, one may fear that earmarked and policy-driven research funding is too narrowly circumscribed by current political outlooks. More generally, research commissioned or edited by operational agencies is generally subject to very specific knowledge needs, often centred around the agency’s own work, that may ultimately limit its wider policy application.⁹⁰ As Oliver Bakewell argues, there is a case to be made for more prima facie ‘policy irrelevant research’ that can challenge the existing categories and priorities of policymakers and practitioners in their framing of research questions and subject areas.⁹¹

5. CONCLUSION

The thin walls between scholarship and practice shape both the internal logics of refugee law scholarship and the wider structural conditions of the academic field. This is exemplified by the ‘dual imperative’ of refugee law scholarship, and in the way that the field is institutionally organized with intimate ties to external stakeholders and the wider community of refugee professionals. Both factors help structure the trajectory of the field in terms of the scope of the research undertaken, the disciplinary and legal frameworks adopted for analysis, and the establishment of particular methodologies and interpretive outlooks as being within or outside the mainstream.

For many among us, these traits are readily welcomed. The ‘dual imperative’ is worn as a badge of honour and the interactive relationship with policy organizations and individual professionals is especially cherished at a time when overall political support for both international refugee law and fundamental protection principles is low. At the same time, the political environment within which refugee law scholars operate requires that we carefully navigate choices about how we broker the relationship between research and advocacy objectives, whether in our scholarship or when deciding if, and on what premises, to engage in processes related to policy reform, strategic litigation, or public debate.

Each of these issues is open to a range of positions depending on one’s theoretical, strategic, and political outlook. In this article, we have deliberately tried to refrain from passing judgment or taking sides in the ongoing debates about interpretation or policy engagements. As international refugee law is (yet again) receiving more attention both politically and within the broader academy, it nonetheless becomes important for refugee law scholars to reflect on and carefully stake out their interpretative outlook vis-à-vis the broader legal discipline. The increased integration of refugee legal research within our cognate legal communities, whether it be in public international, constitutional, administrative, or other areas of law, has the benefit of widening the reach of refugee law scholarship while testing it in an environment where similar protection-oriented modalities are either absent or weakened.

Similarly, as global policy processes currently call for even closer integration between scholarship and refugee professionals, it is important to question how this relationship is brokered. The analysis above is not intended as a criticism of individual scholars for maintaining close relations to policy actors – an accusation that readily applies to both authors of this article. The risk we see emerging from the collective constitution of the field is the extent to which it can encourage the exclusion of particular approaches, questions, or positions. An overly narrow construction of the research–policy nexus not only undermines the continued development of the field; it undermines the benefits of cross-sectoral engagement. Limiting research ultimately limits much-needed innovation in policy solutions.

Refugee law scholarship has so far avoided the kind of deep internal scrutiny characterizing related fields such as international human rights law and the broader interdisciplinary field of refugee studies. Understanding refugee law requires that we look more deeply at the implications of how the field straddles the realms of scholarship and policy. A turn to legal sociology and Bourdieu’s theory of fields as relational social spaces offers one constructive prism through which to look at the forces that influence our work. Greater sensitivity to the underlying dynamics of our profession is essential, not only to ensure inclusivity in the community of scholars and expand the current canon of refugee law, but ultimately to sustain claims to practice and policy relevance.

An exercise of this nature presents certain difficulties. Internal scrutiny within professions, such as that undertaken in this article, always entails methodological challenges in terms of establishing sufficient distance and objectivity.⁹² Moreover, openly engaging with the dynamics of external influences on scientific process – be it those of moral imperatives, global institutions, advocacy networks, or partisan priorities – can help facilitate political actors intent on dismantling already fragile refugee legal protections. The thin walls that separate refugee scholars from the politicized environment they inhabit have been a central theme in this article. Creating inclusive spaces for unhindered discussions to take place amongst refugee law scholars necessitates a continuous search for more effective strategies to deflect external fallout from a healthy internal critique of the field. In sum, we believe it will be by encouraging new perspectives, including more actors, posing new questions, experimenting with new methods, and introducing new paradigms, that the greatest promise lies for refugee law scholarship to effectively fulfil its dual mandate.

The authors are grateful to Till Tietz for his development of the dataset for this article, which includes a compilation of meta- and author data up to 2018 for the entire corpus of academic articles published in the International Journal of Refugee Law, as well as 1,003 articles on refugee law published in general law journals. The authors also extend their appreciation to Amal Al-Gergawi, Cristina Lupusor, Ciara O’Rourke, and Yao Xu for their much-valued research assistance, and to colleagues at the Sérgio Vieira de Mello Academic Chair, Brazil; the iCourts Centre of Excellence, University of Copenhagen; and the Identities Workshop, NYU Abu Dhabi (April 2019), for their thoughtful comments.

Footnotes

1

Liisa H Malkki, ‘Refugees and Exile: From “Refugee Studies” to the National Order of Things’ (1995) 24 Annual Review of Anthropology 495, 502; Roger Zetter, ‘Refugees and Refugee Studies: A Valedictory Editorial’ (2000) 13 Journal of Refugee Studies 349; Ralph Wilde, ‘The Refugee Convention at 50: Forced Migration Policy at the Turn of the Century. Report of the Seventh International Research and Advisory Panel Conference of the International Association for the Study of Forced Migration, January 2001’ (2001) 14 Journal of Refugee Studies 135.

2

Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).

3

New York Declaration for Refugees and Migrants, UNGA res 71/1 (3 October 2016).

4

James C Hathaway and R Alexander Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal 115.

5

Report of the United Nations High Commissioner for Refugees: Part II, Global Compact on Refugees, UN doc A/73/12 (Part II) (2 August 2018) (GCR).

6

Thomas Gammeltoft-Hansen, ‘The Normative Impact of the Global Compact on Refugees’ (2018) 30 International Journal of Refugee Law 605.

7

Tanja Aalberts and Thomas Gammeltoft-Hansen (eds), The Changing Practices of International Law (Cambridge University Press 2018) 5.

8

Alexander Betts and Paul Collier, Refuge: Transforming a Broken Refugee System (Allen Lane 2017) 208.

9

A question he ultimately ends by answering in the negative. David James Cantor, ‘The End of Refugee Law?’ (2017) 9 Journal of Human Rights Practice 203, 209.

10

Howard Adelman, ‘Refugees: A Conceptual View of Current Research and Towards a Research Framework for the 1990s’ in Ong Jin Hui, Chan Kwok Bun, and Chew Soon Beng (eds), Crossing Borders: Transmigration in Asia Pacific (Prentice Hall 1995) 140, 148. See also GJL Coles, ‘The Human Rights Approach to the Solution of the Refugee Problem: A Theoretical and Practical Enquiry’ in Alan E Nash (ed), Human Rights and the Protection of Refugees under International Law (Institute for Research on Public Policy 1988) 195.

11

Guy S Goodwin-Gill, ‘Refugee Identity and the Fading Prospects of International Protection’ (Refugee Rights and Realities conference, Human Rights Law Centre, University of Nottingham, November 1996).

12

ibid 9; Hathaway and Neve (n 4). This dynamic is not only limited to situations where international law frustrates the adoption of more restrictive policy measures. As Coles wrote in regard to the early years following the adoption of the Refugee Convention, ‘legal and general thinking, influenced by the 1951 Convention, failed to keep pace with the development of practice, and in the succeeding years, the gap between theory and practice widened increasingly. … Law especially became increasingly divorced from reality; instead of the law becoming a means to channel thinking and action along lines of humanity and practicality, it became, in many situations, a cause of distorted thinking and inappropriate action’. GJL Coles (n 10) 212.

13

Thomas Gammeltoft-Hansen and Nikolas F Tan, ‘The End of Deterrence and Future Directions for Global Refugee Policy’ (2017) 5 Journal of Migration and Human Security 28.

14

See notably Hélène Lambert, ‘International Refugee Law: Dominant and Emerging Approaches’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009); Colin Harvey, ‘Talking about Refugee Law’ (1999) 12 Journal of Refugee Studies 101; BS Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’ (1998) 11 Journal of Refugee Studies 350; David Kennedy, ‘International Refugee Protection’ (1986) 8 Human Rights Quarterly 1.

15

See, for instance, Guy S Goodwin-Gill, ‘International Law, Refugees and Forced Migration’ in Elena Fiddian-Qasmiyeh and others (eds), The Oxford Handbook of Refugee and Forced Migration Studies (Oxford University Press 2014) 36.

16

For example, see Stephen Hopgood, The Endtimes of Human Rights (Cornell University Press 2013); Samuel Moyn, The Last Utopia (Harvard University Press 2010); Eric Posner, The Twilight of Human Rights Law (Oxford University Press 2014); David Kennedy, The Dark Sides of Virtue (Princeton University Press 2004).

17

See Richard Black, ‘Fifty Years of Refugee Studies: From Theory to Policy’ (2001) 35 International Migration Review 57; Karen Jacobsen and Loren B Landau, ‘The Dual Imperative in Refugee Research: Some Methodological and Ethical Considerations in Social Science Research on Forced Migration’ (2003) 27 Disasters 185; Rosemary Byrne, ‘Refugee Advocacy Scholarship’ (2019) 8 Canadian Journal of Human Rights 103.

18

Pierre Bourdieu, ‘Rethinking the State: Genesis and Structure of the Bureaucratic Field’ (Loic JD Wacquant and Samar Farage, trs) (1994) 12 Sociological Theory 1, 2, 3; Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ [1987] Hastings International Law Journal 805; John Levi Martin, ‘What Is Field Theory’ (2003) 109 American Journal of Sociology 1; David L Swartz, ‘Bourdieu’s Concept of Field’ (Oxford Bibliographies, 2016) <http://www.oxfordbibliographies.com/view/document/obo-9780199756384/obo-9780199756384-0164.xml> accessed 28 February 2019.

19

Lambert (n 14) 345; Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone (eds), Tracing the Roles of Soft Law in Human Rights (Oxford University Press 2014). See further part 3.

20

Antoine Vauchez, ‘The Force of a Weak Field: Law and Lawyers in the Government of the European Union (For a Renewed Research Agenda)’ (2008) 2 International Political Sociology 128; Christian Topalov, ‘Le Champ réformateu’ in Christian Topalov (ed), Laboratoires du Nouveau Siècle: La nébuleuse réformatrice et ses réseaux en France 1880–1914 (l’EHESS 1999) 461.

21

Rosemary Byrne, Gregor Noll, and Jens Vedsted-Hansen, ‘Understanding the Refugee Law of Crisis’ 33 Leiden Journal of International Law (forthcoming).

22

For parallel studies of the role of scholarship in regard to other legal fields, see eg Mikke Jarle Christensen, ‘Preaching, Practicing and Publishing International Criminal Justice: The Role of Academic Expertise in the Development of an International Field of Law’ (2017) 17 International Criminal Law Review 239; Amalie Frese and Henrik Palmer Olsen, ‘Citing Case Law: A Comparative Study of Legal Textbooks on European Human Rights Law’ (2019) 11 European Journal of Legal Studies 91. See more generally Yves Dezalay and Mikael Rask Madsen, ‘The Force of Law and Lawyers: Pierre Bourdieu and the Reflexive Sociology of Law’ (2012) 8 Annual Review of Law and Social Science 433.

23

Stephanie Mudge and Antoine Vauchez, ‘Building Europe on a Weak Field: Law, Economics, and Scholarly Avatars in Transnational Politics’ (2012) 118 American Journal of Sociology 451. See further Bourdieu (1994) (n 18) 3.

24

Perhaps the closest, a Special Rapporteurship on the Human Rights of Migrants was created in 1999 and addresses the human rights of asylum seekers and refugees under its mandate. UN Commission on Human Rights, ‘Human Rights of Migrants’, UN res 1999/44 (27 April 1999).

25

Thomas Gammeltoft-Hansen, ‘Evolutions in International Refugee Law’, Inaugural professorial lecture, University of Copenhagen (12 April 2019).

26

Audrey Macklin, Book Review of James C Hathaway and Michelle Foster, The Law of Refugee Status (2017) 39 Human Rights Quarterly 220.

27

Jeff Crisp, ‘A Global Academic Network on Refugees: Some Unanswered Questions’ (2018) 30 International Journal of Refugee Law 640.

28

See Martin Baldwin-Edwards, Brad K Blitz, and Heaven Crawley, ‘The Politics of Evidence-Based Policy in Europe’s “Migration Crisis”’ (2019) 45 Journal of Ethnic and Migration Studies 2139.

29

For a discussion of how EU funding for social sciences is a recent phenomenon, see Kristoffer Kropp, ‘The European Social Survey and European Research Policy: Homological Structures and Conjunctural Alliances’ (2018) 5 European Journal of Cultural and Political Sociology 295, 306–08.

30

Andrew Gunn and Michael Mintrom, ‘Evaluating the Non-Academic Impact of Academic Research: Design Considerations’ (2017) 39 Journal of Higher Education Policy and Management 20.

31

This was made clear in the journal’s very first editorial. Guy S Goodwin-Gill and the Members of the Editorial Board, ‘Refuge Law and the Protection of Refugees’ (1989) 1 International Journal of Refugee Law 1, 3–4.

32

GCR (n 5) para 43 (emphasis added).

33

Vauchez (n 20) 136.

34

ibid.

35

Edward W Said, Representations of the Intellectual (Vintage 1994) 100.

36

Roger Zetter, ‘Editorial: Refugees and Refugee Studies: A Label and An Agenda’ (1988) 1 Journal of Refugee Studies 1.

37

See eg BS Chimni, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30 International Journal of Refugee Law 630; James C Hathaway, ‘The Global Cop-Out on Refugees’ (2018) 30 International Journal of Refugee Law 591.

38

Jaya Ramji-Nogales, ‘Moving beyond the Refugee Law Paradigm’ (2017) 111 American Journal of International Law Unbound 8.

39

Guy S Goodwin-Gill, ‘Refugee Identity and Protection’s Fading Prospects’ in Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (Cambridge University Press 1999).

40

Byrne (n 17).

41

Jacobsen and Landau (n 17). See, more generally, Black (n 17); Elena Fiddian-Qasmiyeh and others, ‘Refugee and Forced Migration Studies in Transition’ in Fiddian-Qasmiyeh and others (eds) (n 15).

42

David Turton, Migrants and Refugees (Africa World Press 1996) 96.

43

Guy S Goodwin-Gill, ‘Editorial: The Dynamic of International Refugee Law’ (2013) 25 International Journal of Refugee Law 651, 652.

44

Roger Cohen explicitly refers to the competing demands of scholarship and advocacy: ‘Can one possibly develop the distance, the techniques and methods to describe and analyse issues impregnated with need, with fear, irrationality and emotion? In other words, is there a hopeless and irredeemable conflict between scholarship on the one hand and advocacy on the other?’ Cited in Nicholas van Hear, ‘Editorial Introduction’ (1998) 11 Journal of Refugee Studies 341, 343.

45

For a discussion of advocacy in legal scholarship as a response to the impact of professional demands on the academy, see Mark Tushnet, ‘Legal Scholarship: Its Causes and Cures’ (1981) 90 Yale Law Journal 1205, 1205–06.

46

For an attempted overview, see Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press 2011).

47

Gregor Noll, Negotiating Asylum: The EU Acquis, Extraterritorial Protection and the Common Market of Deflection (Martinus Nijhoff Publishers 2000) 427.

48

Kay Hailbronner, ‘Non-Refoulement and “Humanitarian” Refugees: Customary International Law or Wishful Legal Thinking’ in David Martin (ed), The New Asylum Seekers: Refugee Law in the 1980s (Martinus Nijhoff Publishers 1988).

49

James C Hathaway, ‘Leveraging Asylum’ (2010) 45 Texas International Law Journal 503.

50

See eg Kay Hailbronner, Book Review of James C Hathaway, The Rights of Refugees under International Law (2006) 18 International Journal of Refugee Law 722; Violeta Moreno-Lax, Book Review of Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (2013) 26 Journal of Refugee Studies 318.

51

Guy S Goodwin-Gill, ‘Editorial: The International Protection of Refugees: What Future?’ (2000) 12 International Journal of Refugee Law 1, 6; Goodwin-Gill (n 39) 651.

52

Jacobsen and Landau (n 17).

53

Finn Stepputat and Ninna Nyberg Sørensen, ‘Sociology and Forced Migration’ in Fiddian-Qasmiyeh and others (eds) (n 15) 86; Black (n 17); ibid.

54

Black (n 17) 67; Chimni (n 14).

55

Bobby Thomas Cameron, ‘Reflections on Refugee Studies and the Study of Refugees: Implications for Policy Analysts’ (2014) 6 Journal of Management and Public Policy 4, 7.

56

See Rosemary Byrne, Book Review of James C Hathaway and Michelle Foster, The Law of Refugee Status (2015) 26 European Journal of International Law 564. A recently published special issue on ‘Framing Global Migration Law’ in the American Journal of International Law Unbound constitutes a notable exception, but one that according to the editors specifically served to question ‘the constraints and shortcomings of the primary contemporary governance structure [and] international refugee law’. Jaya Ramji-Nogales and Peter J Spiro, ‘Introduction to Symposium on Framing Global Migration Law’ (2017) 111 American Journal of International Law Unbound 1.

57

See eg Terje Einarsen, ‘Mass Flight: The Case for International Asylum’ (1995) 7 International Journal of Refugee Law 551; Hathaway and Neve (n 4); Peter H Schuck, ‘Refugee Burden-Sharing: A Modest Proposal’ (1997) 22 Yale Journal of International Law 243; Alexander Betts, ‘Survival Migration: A New Protection Framework’ (2010) 16 Global Governance 361; Michelle Foster, ‘Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform’ (2012) 24 International Journal of Refugee Law 168; Elspeth Guild, ‘Does the EU Need a European Migration and Protection Agency?’ (2016) 28 International Journal of Refugee Law 585; Robin Cohen and Nicholas van Hear, ‘Visions of Refugia: Territorial and Transnational Solutions to Mass Displacement’ (2017) 18 Planning Theory & Practice 494; Patrick Wall, ‘A New Link in the Chain: Could a Framework Convention for Refugee Responsibility Sharing Fulfil the Promise of the 1967 Protocol?’ (2017) 29 International Journal of Refugee Law 201; Kiran Banerjee, ‘Rethinking the Global Governance of International Protection’ (2018) 56 Columbia Journal of Transnational Law 313.

58

Stephan Anagnost, ‘The Challenge of Providing High Quality, Low Cost Legal Aid for Asylum Seekers and Refugees’ (2000) 12 International Journal of Refugee Law 577.

59

For instance, the Global Legal Action Network brought a 2017 submission to the International Criminal Court in regard to Australia’s offshore and privately operated detention centres, and in 2018 helped file a case to the European Court of Human Rights (ECtHR) in regard to the Italian–Libyan pullback scheme. See <https://www.glanlaw.org>.

60

Chimni (n 37); Hathaway (n 37).

61

Heaven Crawley, ‘Why We Need to Protect Refugees from the “Big Ideas” Designed to Save Them’ Independent (28 July 2018) <https://www.independent.co.uk/voices/refugee-immigration-europe-migrants-refugia-self-governance-a8467891.html> accessed 23 September 2019. For a summary of responses to earlier reform proposals by scholars, see Harvey (n 14).

62

This is an online refugee law curriculum that provides an adaptable third-level course syllabus in English, French, and Russian, 2015. See Jens Vedsted-Hansen (Editor-in-Chief), ‘The Refugee Law Reader’ (7th edn) (October 2014) <https://www.refugeelawreader.org/en/> accessed 11 February 2019.

63

See eg UNHCR, The State of the World’s Refugees: In Search of Solidarity (Oxford University Press 2012); Erika Feller, Volker Türk, and Frances Nicholson (eds), Refugee Protection in International Law (Cambridge University Press 2003); Volker Türk, Alice Edwards, and Cornelis Wouters (eds), In Flight from Conflict and Violence: UNHCR’s Consultations on Refugee Status and Other Forms of International Protection (Cambridge University Press 2017).

64

GCR (n 5) para 43.

65

Goodwin-Gill and the Members of the Editorial Board (n 31) 1.

66

See, for instance, Hugo Storey, Book Review of Volker Türk, Alice Edwards, and Cornelis Wouters (eds), In Flight from Conflict and Violence (2018) 30 International Journal of Refugee Law 178; Volker Türk and Madeline Garlick, ‘From Burdens and Responsibilities to Opportunities: The Comprehensive Refugee Response Framework and a Global Compact on Refugees’ (2016) 28 International Journal of Refugee Law 656; Jean-François Durieux, ‘Is a New European Refugee Regime Emerging?’ (2001) 20 Refugee Survey Quarterly 47.

67

Byrne (n 17); Black (n 17) 67.

68

David Cantor, ‘Refugee Protection in a Hostile World?’ (Third Annual Conference, Refugee Law Initiative, University of London, July 2018).

69

Chimni (n 14). UNHCR’s role in conducting refugee status determination constitutes a case in point. For a field concerned primarily with standards of protection on the ground, one would predict that this would be a natural focal point for scholars given that the Agency self-identifies as ‘the second largest RSD body in the world’: UNHCR (Ireland), ‘Refugee Status Determination’ <https://www.unhcr.org/en-ie/refugee-status-determination.html> accessed 23 March 2020. Yet only a relatively small body of scholarship specifically tackles this issue. See, in particular, Michael Alexander, ‘Refugee Status Determination Conducted by UNHCR’ (1999) 11 International Journal of Refugee Law 251; Michael Kagan, ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’ (2006) 18 International Journal of Refugee Law 1; Michael Kagan, ‘Frontier Justice: Legal Aid and UNHCR Refugee Status Determination in Egypt’ (2006) 19 Journal of Refugee Studies 45.

70

Conversely, it should be noted that some of the most insightful and nuanced critiques of various refugee organizations have often been forwarded by current or former professionals within the field.

71

See, for instance, the various contributions on the Global Compacts published in (2018) 30(4) International Journal of Refugee Law.

72

Crisp (n 27) 641.

73

ibid.

74

Cantor (n 9) 207; Chimni (n 14).

75

SP Chablani, ‘The Rehabilitation of Refugees in the Federal Republic of Germany’ (1957) 79 Wirtschaftliches Archiv 281.

76

Chimni (n 14) 350, 353; Harvey (n 14) 118.

77

Anne Neylon, ‘Ensuring Precariousness: The Status of Designated Foreign National under the Protecting Canada’s Immigration System Act 2012’ (2015) 27 International Journal of Refugee Law 297; Thomas Spijkerboer, ‘Analyzing European Case-Law on Migration’ in Loïc Azoulai and Karin de Vries (eds), EU Migration Law: Legal Complexities and Political Rationales (Oxford University Press 2014) 189.

78

Satvinder S Juss, ‘The Post-Colonial Refugee, Dublin II, and the End of Non-Refoulement’ (2013) 20 International Journal of Minority and Group Rights 307; Satvinder S Juss, ‘Complicity, Exclusion, and the Unworthy in Refugee Law’ (2012) 31 Refugee Survey Quarterly 1; Chimni (n 14).

79

Alice Edwards, ‘Transitioning Gender: Feminist Engagement with International Refugee Law and Policy 1950–2010’ (2010) 29 Refugee Survey Quarterly 21; Cecilia M Bailliet, ‘Examining Sexual Violence in the Military within the Context of Eritrean Asylum Claims Presented in Norway’ (2007) 19 International Journal of Refugee Law 471; Deborah E Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harvard Human Rights Journal 133.

80

Harvey (n 14).

81

Schuck (n 57).

82

Guy S Goodwin-Gill and Hélène Lambert (eds), The Limits of Transnational Law: Refugee Law, Policy Harmonization and Judicial Dialogues in the European Union (Cambridge University Press 2010); Itamar Mann, ‘Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993–2013’ (2013) 54 Harvard International Law Journal 315.

83

Hathaway’s 1997 edited volume, Reconceiving International Refugee Law, should be recognized here as an early example of a project including a range of scholars from other social science disciplines specifically engaging with international refugee law. James C Hathaway (ed), Reconceiving International Refugee Law (Kluwer Law International 1997).

84

Itamar Mann, Humanity at Sea: Maritime Migration and the Foundations of International Law (Cambridge University Press 2016); Matthew J Lister, ‘Who Are Refugees?’ (2013) 32 Law and Philosophy 645.

85

Daniel Ghezelbash, Refuge Lost: Asylum Law in an Interdependent World (Cambridge University Press 2018); Hélène Lambert and Jane McAdam (eds), The Global Reach of European Refugee Law (Cambridge University Press 2013); Gammeltoft-Hansen (n 46).

86

Moritz Baumgärtel, Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Rights (Cambridge University Press 2019); Thomas Spijkerboer, ‘Wasted Lives: Borders and the Right to Life of People Crossing Them’ (2017) 86 Nordic Journal of International Law 1; Lydia Morris, Asylum, Welfare and the Cosmopolitan Ideal: A Sociology of Rights (Routledge 2010); Maria Appelqvist, ‘Refugee Law and Cause Lawyering: A Swedish Study of the Legal Profession’ (2000) 12 International Journal of Refugee Law 71.

87

Silja Klepp, ‘A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea’ (2011) 23 International Journal of Refugee Law 538; Kate Ogg, ‘Protection from “Refuge”: On What Legal Grounds Will a Refugee Be Saved from Camp Life?’ (2016) 28 International Journal of Refugee Law 384; Carol Bohmer and Amy Shuman, Rejecting Asylum (Routledge 2007).

88

Pia Zambelli, ‘Hearing Differently: Knowledge-Based Approaches to Assessment of Refugee Narrative’ (2017) 29 International Journal of Refugee Law 10; Jane Herlihy and Stuart W Turner, ‘The Psychology of Seeking Protection’ (2009) 21 International Journal of Refugee Law 171; Jane Herlihy, ‘Evidentiary Assessment and Psychological Difficulties’, in Gregor Noll (ed), Proof, Evidentiary Assessment and Credibility in Asylum Procedures (Martinus Nijhoff Publishers 2005).

89

Emma Dunlop, ‘The Longest Journey: Law and Practice around Refugee and Migrant Deaths’ (2017) 29 International Journal of Refugee Law 662; Gregor Noll, ‘Junk Science? Four Arguments against the Radiological Age Assessment of Unaccompanied Minors Seeking Asylum’ (2016) 28 International Journal of Refugee Law 234. The Global Legal Advocacy Network collaborates with scholars from the Forensic Architecture and Forensic Oceanography research groups at Goldsmith College, London, in building support for the case raised against Italy at the ECtHR. See Charles Heller and others, ‘“It’s an Act of Murder”: How Europe Outsources Suffering as Migrants Drown’ New York Times (26 December 2018) <https://www.nytimes.com/interactive/2018/12/26/opinion/europe-migrant-crisis-mediterranean-libya.html> accessed 23 September 2019.

90

Black (n 17) 67.

91

Oliver Bakewell, ‘Research beyond the Categories: The Importance of Policy Irrelevant Research into Forced Migration’ (2008) 21 Journal of Refugee Studies 432.

92

An issue picked up by, among others, David Kennedy when reflecting on his time working as a protection officer at UNHCR. Kennedy (n 14) 2.