1 Introduction
In recent years, a new field of academic research has started to provide critical insights into the ways in which states that are not signatories to the 1951 Convention or its 1967 Protocol1 have nonetheless been affecting the production, enactment and future of international refugee law and protection. This has coincided with an increasing recognition that refugee protection has long been, and continues to be, promoted through an international regime of institutions, laws, actors, and ideologies other than the post-1951 system overseen by the United Nations High Commissioner for Refugees (unhcr).
In this chapter I nonetheless focus on the approaches employed by unhcr to encourage increased state engagement with the 1951 Convention and with the organization itself. While states, civil society actors and refugees themselves have played a pivotal role in the promotion of international protection in non-signatory states, unhcr’s Statute clearly states the organization’s roles in “promoting the conclusion and ratification of international conventions for the protection of refugees”2 and in “promoting through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection.”3 As an example, in its recent celebrations to mark the 73rd anniversary of the 1951 Convention, the organization again “urge[d] the remaining 46
This raises the question as to how unhcr assembles various entities into the international refugee regime given the “hard work required to draw heterogeneous elements together, forge connections between them and sustain these connections in the face of tension.”5 The organization does not, for example, have the authority to operate through sovereign control over states’ actions; it cannot simply coerce non-signatory states into acting or engaging with international refugee law. It must instead exercise power in other ways, building an assemblage of actors to enact and affirm legal principles and protection practices, even if understandings of these principles and practices are not entirely aligned across the different stakeholders and forums it engages with, or even within the organization itself.
In the chapter that follows, I thus first analyze the growing body of literature on the relationship between unhcr and non-signatory states to identify common mechanisms and stages through which unhcr attempts to enroll these actors, their practices and citizens into networks of international protection. To do so, I apply a basic framework derived from Science and Technology Studies (sts) because of its emphasis on explaining how networks grow, with growth as the key motivator and endpoint, rather than necessarily on why this happens or on what the effects of this might be on the actors and entities enrolled. In this sense, I chose this interdisciplinary framework because it provides an implicit critique of how unhcr’s actions appear at times to prioritize expansion without critical, or even strategic, engagement with what the trade-offs of this might be. In the second half of this chapter, I then make this critique more explicit by using further frameworks from sts to highlight what effects unhcr’s varied, and sometimes fragmented, efforts to expand the international refugee regime in non-signatory states might have on the future governance, sites and experiences of protection.
2 Building Associations and Assemblages
In his path-defining study on the scallop industry of St Brieuc Bay, Callon sought to explain how a group of researchers built a broad consensus around how to conserve these creatures and the fishing industry that rested on them. The researchers’ aim, he shows, was to establish a group of actors who were aligned around their particular understanding of the industry’s situation, and committed to their proposed course of action for responding to it.6 To elucidate how this consensus was assembled, Callon elaborated on four forms of what he called “translation.” He saw this as a process through which entities are continually displaced, transformed and reassembled into an assemblage “during which the identity of actors, the possibility of interaction and the margins of maneuver are negotiated and delimited.”7 The desired end goal is that all the actors are then “obliged to remain faithful to their alliances”8 and committed to an aligned set of outcomes.
Callon identified the four at times overlapping and coincident stages of “translation” as follows. First came problematization, whereby the researchers defined the contours of the problem and then positioned themselves and their proposed course of action as an “obligatory passage point” through which the other actors, namely the scallops and the fishermen, had to pass to resolve the issue. Next was interessement, during which the researchers sought to manoeuvre, modify and “lock” these other actors into the roles and subject-positions that aligned with the researchers’ assessment of the problem and how to solve it. Drawing on the idea of “interesting” other actors sufficiently to secure their loyalty, this stage hence captured those mechanisms through which the researchers aimed to ensure that the other actors’ identities and actions were primarily aligned with them and their agenda rather than with any competing alliances. Then there was enrollment, as the researchers attempted to ensure that all other actors within the network were securely interconnected to each other as well as them. Finally, he notes a process of mobilization, which entailed the researchers working to ensure that the representatives for the various groups enrolled in this coalition (eg the fisherman tasked with being a spokesperson for their peers) could maintain the support of those they spoke on behalf of.9
For Callon, this framework provided a way to understand “the establishment and evolution of power relationships” and to show that “the capacity of certain actors to get other actors – whether they be human beings, institutions or natural entities – to comply with them depends on a complex web of interrelations.”10 While in some ways it may appear jarring to apply a framework originally intended for managing natural “things” to a system oriented around people, this is arguably another reason for using it. As an analytical tool, it mirrors the fact that much like Callon’s scallops, displaced populations are attributed agency within and by these assemblages. However, this is largely as errant bodies that need to be controlled rather than as political actors with preferred solutions of their own.
In this chapter, I thus draw upon Callon’s structure to explore some of the ways in which unhcr enrolls non-signatory states into the international refugee regime. This approach draws attention to mechanisms that are commonly identified in socio-legal studies of unhcr’s promotion of the 1951 Convention, namely socialization and norm promotion, but it importantly goes beyond these ideas (see chapter 1). In particular, it takes seriously those instances and acts of enrollment that are seemingly without any intent to transform states by socializing them into new courses of behavior. This opens up questions about what the longevity, risks and purposes of these actions might be, which I then explore in the penultimate section of the chapter by drawing on critiques of particular assemblages from within this field of scholarship.
As an example, Li uses this assemblages framework in her work on community management initiatives to illustrate how the focus on building and maintaining assemblages can reinforce the anti-politics machine. She highlights how international organizations are required to maintain amicable relationships with states in order to continue operating there. Fierce disagreement and explicit critiques by them are hence dulled and assemblages are maintained by what Li terms “harmony language, pointing to a way forward defined by more coordination, consultation, participation, constructive debate and mutual learning by all parties.”11 The result is often the avoidance of any calls for major structural change, or explicit condemnation of national policies, and a focus instead on either using the “carrot” to elicit political shifts or adopting the familiar and ahistorical position that “any engagement is better than nothing.”
While allowing unhcr to be foregrounded as the central actor forging these networks, frameworks from sts also push one to reflect on the other relationships, ideas and actors exerting pressure both within and upon a network, as well as how representative and stable these actors are. Through using it, I thus seek to affirm the importance of situating international refugee law as only one part of a broader network of actors and institutions providing international protection, as well as some of the dangers of pushing convergence and growth around too narrow an assemblage of representatives and approaches.
2.1 Problematization
For Callon, problematization involves an actor delimiting their own and others’ identities in such a way as to make themselves indispensable. We see this through unhcr’s varied attempts to establish its incommensurable role as an “obligatory passage point” in refugee protection, which includes negotiating an expansive array of roles in, and agreements with, non-signatory states. In Türkiye, for example, Gürakar Skribeland describes the “ever-changing role of unhcr” in supporting international protection applicants, including through monitoring foreigners in removal centers and providing entrepreneurship support to young refugees lacking employment opportunities.12 Importantly, it executes these roles in a context where its ability to support individual’s initial access to international protection has been severely curtailed. In the case of Saudi Arabia, Janmyr and Lysa note the pragmatic compromises that unhcr has made to sustain a relationship with the Kingdom, which has included promoting “protection space” to support displaced populations in the country instead of a more assertive agenda to secure accession to the 1951 Convention.13
In terms of agreements negotiated by unhcr to carve out a role in particular locations, this includes a wide range of Special Agreements and Cooperation Agreements (often collectively referred to as Memoranda of Understanding (MoUs)). These, respectively, establish mechanisms to support refugees or to reduce the numbers of refugees requiring assistance, and establish unhcr’s presence in a state (see chapter 10). The former may, therefore, as Janmyr, Hossain and Turner state, “compensate for the fact that the host state is not a party to any of the relevant refugee law instruments” through affirming states’ commitments to refugee protection and permitting unhcr to perform a relatively expansive suite of activities on these state’s territories.
An example of this “enrollment through agreements” can be seen in Zieck’s work looking at the history of unhcr’s support to Afghan refugees in Pakistan.14 She charts how unhcr encouraged, framed and facilitated the repatriation of Afghan refugees over the course of eight different agreements with the Pakistani and Afghan governments, and assesses the evolution in the meaning of terms and practices across them. While this allowed unhcr to consolidate a working relationship with the Pakistani government as a non-signatory to the 1951 Convention, Zieck notes the general confusion that this convoluted process entailed. Janmyr et al’s work similarly flags the many dangers of this ad hoc approach, not least in terms of their lack of transparency and accountability to displaced populations (see chapter 10). The network of international protection may thus expand or thicken through these documents, but this is largely oriented toward protection through management – with refugees objectified and corralled much like Callon’s scallops – rather than through changes to structural norms or refugees’ participation.
Alongside unhcr’s efforts to carve out new operational niches and agreements for itself, the physical presence and legal needs of large numbers of displaced people can serve as an initial entry point for unhcr to enroll states into the purview of the international refugee regime. Eritrea, for example, is not a signatory to the 1951 Convention but has, since it gained de facto independence from Ethiopia in 1991, had an almost continuous unhcr presence in the country. This was first because the newly formed Eritrean government requested unhcr’s assistance with the large number of Eritrean refugees wishing to repatriate in the early years of independence and then, more recently, it has emphasized unhcr’s responsibility to support Somali, Ethiopian and Sudanese refugees within its borders. The large number of Eritrean refugees claiming asylum outside of the country, and the Eritrean government’s scathing opposition to the “unhcr Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea,”15 has also ensured a continuous engagement – however negative – between the Eritrean government and unhcr.
The expansion of unhcr’s activities in Saudi Arabia was similarly greatly enabled by an acute humanitarian situation when Iraqi refugees in the demilitarized zone between Iraq and Saudi Arabia were airlifted to the Kingdom during the Gulf War.16 While the Saudi authorities could pay for the camps in which the Iraqi refugees were placed, they lacked expertise in administering these spaces and in securing durable solutions. unhcr was quick to point out its critical role in negotiating repatriation and resettlement on their behalf. The High Commissioner during this period also made an explicit link between the organization’s support for the timely resettlement of the Iraqi refugees, and what they expected in return from an indebted Saudi Arabia in terms of future funding for unhcr’s activities elsewhere. This was seen as particularly important as unhcr saw support from Saudi Arabia as opening the door to wider recognition of unhcr in the Gulf Cooperation Council (gcc) region.17 Displaced populations themselves thus also help to bind states to unhcr: whether it is refugees that arrive on a territory, or refugees from that territory, they bring states into a discussion about rights, responsibilities and solutions that create an opening for further consolidation of unhcr’s role (eg Saudi Arabia) even if via a point of collision (eg the Eritrean government). In other words, the basic act of hosting or creating refugees can be enough to establish an identity for states that initiates a point of entanglement with the assemblage of the international refugee regime.
Finally, however, unhcr’s attempt to position itself as a key intermediary in non-signatory states may nonetheless require a more active process of definition: unhcr may need to (re)define the identities of others in ways that render the nature of the network and its inter-relationships both beneficial and unquestionable. In the case of unhcr then, we can ask: how does it define the identities of the actors that it is seeking to engage in ways that make these roles and agreements possible? To what extent do these identities align with the core operational or legal roles of unhcr? And are there common or more successful strategies for (re)defining the identities of each actor, and why?
Importantly, we can see that unhcr does not see all non-signatory states as a homogenous collective, or as monolithic entities,18 but instead seeks to expound different features of their humanitarian identities. Part of this is because unhcr is itself not a homogeneous entity with one coherent global strategy and intent. Different employees, offices and eras of staff have clearly adopted and prioritized different approaches to promoting the organization’s role in international protection. As suggested above, however, I would contend that these have often converged around protecting more people in more places with more budget, ie around more growth.
A clear example of this can be seen through unhcr’s engagement with wealthy non-signatory states in the Gulf, where the organization’s focus seems to be on enrolling these states as humanitarian donors rather than socializing them into becoming hosting states or signatories. This fundraising strategy also exemplifies unhcr’s assertive and explicit attempts to position itself as an obligatory passage point for the effective protection of refugees. In recent years, it has courted wealthy non-signatory states and their populations (including, in unhcr’s words, “tech-centric Muslim Millennials”)19 to define them as vital donors to the international protection regime, while positioning itself as an essential conduit to ensure that these funds reach the most vulnerable. In particular, unhcr has encouraged the private sector and state-sponsored ngo s in the Gulf states and Indonesia to channel their Zakat contributions through unhcr to “maximize the power”20 and impact of these millennia-old donations, and publicly encouraged high net worth individuals in the Middle East and Islamic Finance players to uphold their “responsibilities” to displaced Muslims through channeling donations to unhcr.21
To encourage this support, unhcr has nonetheless had to adapt some of its practices to ensure that the recipients of these funds and the forms of their disbursal are Zakat-compliant, with implications for who the organization is able to support, how and where. Improved relationships with politicians and prominent businesspeople in these locations may therefore open the door for other protection-oriented conversations in places like Indonesia and Saudi Arabia that are being targeted for zakat. This practice may also, however, silence more assertive lobbying for protection “in situ” as unhcr wishes to avoid antagonizing these much-needed “growth markets” for plugging unhcr’s “funding gap.”22
This has appeared to suit these states well. Since its international isolation in 2017, for example, Qatar has sought to enhance its collaborations with United Nations (
unhcr has played off these projected identities to leverage support. In the case of Saudi Arabia, it suggested to the Saudi authorities that their failure to commit to supporting the administrative costs of a more permanent unhcr presence in the country might result in them being publicly shamed, with an associated loss in international legitimacy, as unhcr would be forced to ask the international community for financial support.26 A similar opportunity to buttress support accompanied the Saudi authorities’ request to unhcr to help them defend an incident of deadly violence in the Iraqi refugee camps in 1993. For unhcr, the Saudi government’s dependence on the organization for its “legitimacy on the international plane” presented an opportunity to affirm the value of the international refugee regime – not least as a key international forum for furnishing state’s reputations – as it sought to formalize its presence within the country.27 There is no guarantee, however, that unhcr’s political opportunism in response to these windows of opportunity has any enduring effects on state’s identities and practices.
2.2 Interessement and Enrollment
These stages are ultimately related to stabilization: once actors have their identities and goals defined and aligned, work needs to be done to maintain this situation. This can be tricky. Actors span networks, with no guarantee that their identities and goals in one network will be compatible with their position in another, and actors outside of these networks may be looking to define the identities of those actors within them in ways that threaten any alignment. In the field of transnational law, Canfield highlights this, noting that it “is constituted by networks of states, international institutions, multinational corporations, and transnational activists struggling for power by producing competing norms” while hoping to attain “interpretive authority.”28 Force, seduction, solicitation and other strategies may be required to cut off these competing alliances, with “fuzziness, adjustment and compromise” key to holding these assemblages together.29 For Callon, these strategies constitute enrollment as this is “the group of multilateral negotiations, trials of strength and tricks that accompany the interessements and enable them to succeed.”30
We see this clearly within the international refugee regime, with a perfect example from the Indonesian context detailed by Dewansyah in this volume (see chapter 5). unhcr is looking to shape the identities of states and other actors toward various goals at the same time that other states, political elites, the private sector, the voting public, multi-lateral organizations, etc. are also attempting to define them, potentially in mutually exclusive ways. The organization must therefore understand: which entities are trying to seduce states parties away? What are they trying to “interest” states parties (not) to do? What identities are these “spoilers” seeking to define for governments and states? What networks are they trying to promote? What strategies do they have in their arsenal to do so? And how might these be challenged by unhcr and other actors seeking to hold together the assemblage of international refugee protection?
Here, I focus on the various strategies adopted by unhcr in its attempts to lock actors into identities and courses of action, and to ensure that those within these networks remain tightly interconnected. unhcr appears to undertake much of this work through socialization, be it through the convening of particular spaces, partnering with certain institutions, or through the direct transmission of norms and values.
In terms of spatial mechanisms, unhcr organizes key international forums in which signatory and non-signatory states, as well as a wide range of other actors, converge to be socialized in international refugee law and protection norms, and to contribute toward their development. unhcr’s Executive Committee (ExCom) is one such example, where states adopt non-binding but highly influential conclusions on refugee protection. Membership is determined based “on the widest possible geographical basis from those states (members of the United Nations and Others) with a demonstrated interest in, and devotion to, the solution of refugee problems.”31 As a result, Bangladesh, India, Jordan, Lebanon, Pakistan and Venezuela are members of ExCom without being signatories to the 1951 Convention.32 The Global Refugee Forum is another key space, as were the multitude of events leading up to the adoption of the New York Declaration for Refugees and Migrants in 2016 and the Global Compact on Refugees (gcr) signed in December 2018.33 Within the gcr, the
Limited evidence indeed shows the power of these spaces in encouraging non-signatory states to improve the provision of protection to refugees. Chotinukul’s work, for example, attests to the significance of these global forums for driving conversations around protection in the Thai context (see chapter 8). At the 2016 Leaders’ Summit that ran adjacent to the
Similarly, albeit perhaps optimistically, Alexander and Singh suggest that India’s role in drafting the gcr and then endorsing it “demonstrates her willingness to usher in a uniform, fairer, and stronger course of action and procedure to accommodate and deal with large refugee movements.”36 As the authors themselves then note, however, the gcr is a non-binding instrument with no enforcement mechanisms that is contradictory in terms of whether it is political or not. As such, it was an easy thing for governments to commit to in principle, in spaces conducive to collective action, without providing a clear and enforceable pathway to improving refugees’ access to protection. In Arnold-Fernandez’s view, the gcr may even have worsened refugees’ abilities to access protection by allowing states to over-write their commitments to the 1951 Convention with new pledges to non-binding, and ultimately weaker, principles that states themselves had developed.37 Chotinukul’s conclusions on the introduction of the National Screening Mechanism in Thailand certainly echo this note of caution.
In terms of socialization through other institutions, the literature points to attempts by unhcr to buttress the assemblage through aligning its goals with other actors or networks promoting similar priorities. Janmyr and Lysa’s work shows that UNHCR’s early attempts to establish a presence in Saudi Arabia involved collaboration and networking with influential regional players such as the GCC, the Organization of Islamic Cooperation (oic) and the Islamic Development Bank (idb).38 Very recently, unhcr has attempted to link the Sustainable Development Goals (sdgs) with the Global Compact on Refugees. unhcr has sought to leverage states’ commitments within the sdgs to “leave no one behind” to ensure that refugees are effectively included, supported and monitored through national governments’ sdg plans.39 To do so, however, it has first had to tackle the “refugee gap”40 so that refugees are not only addressed through the non-specific indicator “well-managed migration policies.”41 Furthermore, while this may provide a route through which unhcr can encourage states to engage with refugee protection, they are, much like the gcr, ultimately unenforceable goals and few states submit annual monitoring reports on their progress toward attaining them.
Finally, unhcr works directly with institutions, universities (see chapter 11), government representatives, civil society actors and refugees to encourage their continued engagement with the network of international protection, and to ensure that numerous different actors are capable of exerting pressure on states parties to uphold key protection norms.42 In Bangladesh, for example, unhcr has worked to socialize the government into key hard and soft law mechanisms pertaining to international protection. This, buttressed by national judicial decisions, has contributed to the government largely adhering to the principle of non-refoulement with the Rohingya refugees since 2017.43 Suyastri et al’s study of legal protection in Indonesia highlights the role that refugees who have received information from unhcr and their peers about their legal entitlements have played in pushing for greater state provision of international protection.44 In their work on Thailand, Thanawattho et al suggest that while the success of civil society organizations in lobbying the Thai government has rested on local formulations of rights and responsibilities (see below), these initiatives have relied on funding from unhcr.45 The widespread socialization of key actors on the central norms of international refugee law indeed clearly diffuses responsibility for defining and maintaining the identities of states in more pro-refugee ways.
This then relates to an important final point on enrollment, which is that actors other than unhcr are of course playing critical roles in keeping the assemblage of international protection together, as extensively detailed in the Asian context by Barbour (see chapter 4). This includes refugees, through their sustained lobbying of non-signatory states to uphold the rights of displaced populations, and sub-national bodies, such as provincial courts. These courts may not have the authority to overturn national level laws and policymaking, but, as Ovacık and Johny detail in the case of India (see chapter 3), they do hold states to account for often highly politicized and inconsistent decision-making vis-à-vis asylum.46 It also includes non-signatory states themselves. As Fakhoury discusses, non-signatory states playing host to large numbers of displaced people in the Middle East have leveraged their position as “containers” of refugees to extract concessions from Global North countries whose political capital rests on these populations remaining on distant shores, as well as to strengthen alliances with the European Union and unhcr.47 Veiled threats to change the hosting arrangement in non-signatory states have thus ensured that signatory states in the Global North cannot entirely withdraw from the delicate global system of responsibility-sharing.
2.3 Mobilization
In Callon’s final stage of translation, that of mobilization, he asks us to consider: “who speaks in the name of whom? Who represents whom?” And how effective are they in this position? This is because in any assemblage, spokespeople are designated to represent what the “masses” want and need. It is only when the representatives or spokespeople go unchallenged that we see the construction of a reality in which a “constraining network of relationships has been built,” whereby “the margins of maneuver of each entity will then be tightly delimited.”48 Conversely, if the masses within these networks do not remain faithful to their representatives, or other representatives upset this equilibrium, the whole alignment falls apart.
This raises questions within the system of international protection. What, or who, are the representatives of non-signatory states, and the displaced people residing within them, within the network of the international refugee regime? Who are the “masses” that they claim to represent? Do these masses follow their representatives, or do these masses instead enact or challenge international refugee law through alternative channels and means? This might include displaced populations themselves, who contest the assumption that unhcr should be their spokesperson or mediator in contexts where more substantive rights might be better demanded through alternative channels.
Across the literature on non-signatory states there is indeed widespread evidence of the weaknesses of certain “representatives” and “spokespeople,” who may be promoting networks of international protection in one arena while they are being simultaneously ignored or disassembled in another. Kneebone et al’s work on Indonesia details the limits of regulations designed to offer protection to displaced populations when the immigration and legal institutions tasked with upholding them are not sensitized to their content. They argue that the introduction of Presidential Regulation No. 125 of 2016 concerning the Treatment of Refugees in Indonesia has not translated into meaningful and effective protection because of the political economic context at the level of local government, which is the main body responsible for providing services to refugees, as well as a lack of financial support and rights-based commitments from the national government.49
A recurrent theme therefore is the breakdown in alignment between legal “representatives” at an international level and the bureaucratic, judicial and political “masses” that surround them. In Birla’s work on India they state that though the Indian Constitution provides protection to refugees through Article 21 (the right to life), and protection against non-refoulement through the Universal Declaration of Human Rights (udhr),50 the International Covenant on Civil and Political Rights (iccpr),51 the Convention Against Torture (cat),52 and the
Li, Shaffer and Nam’s assessment of the success of mobilization in the Hong Kong context is much the same. There, the Court of Final Appeal held in C & Ors v the Director of Immigration and Another that as the Government voluntarily complies with the 1951 Convention despite not ratifying it, it must abide by its high standards of fairness and establish a Unified Screening Mechanism to prevent non-refoulement.55 While praised by some as a possible model for refugee protection in states that are not signatories to the 1951 Convention, Li, Shaffer and Nam note that less than 1 percent of claims are accepted. This, they argue, shows the precariousness of a system that lacks “moral commitment,” “the Refugee Convention’s normative foundations,” “a whole-of-society approach” and, critically, “political buy-in.”56 In other words, these examples show the potential precariousness of ad hoc approaches to building assemblages that focus on specific, rather than systemic, commitments to international protection.
3 The Risks of Assemblages
Contained throughout this brief discussion of how unhcr undertakes processes of “translation” vis-à-vis non-signatory states have thus been some of the pitfalls of the organization’s approach, including with regards to the long-term sustainability of a network built on short-term expediencies. We see this clearly in the work of Janmyr, Hossain and Turner on MoUs (see chapter 10). They highlight the risks for refugee protection of this fragmented parallel system of often opaque and unenforceable documents, as well as some of the unforeseen consequences of the pragmatic compromises involved in securing them.
While these agreements may enroll states into the international refugee regime at a particular location at a particular time, thus temporarily growing the network, there are nonetheless questions around to what end. Where is unhcr hoping that these agreements will take the organization and refugee protection in general? Are they part of any long-term strategy or purely indicative of short-term pragmatism? What is the afterlife of these compromises? And what are the implications for refugees themselves of the concessions accepted to secure these agreements, particularly given these affected populations have very little idea about what they contain? In concluding their piece on how unhcr consolidated its position in Saudi Arabia, Janmyr and Lysa indeed call for further research into the longer-term impacts of the pragmatic compromises that unhcr accepted in the early 1990s to consolidate its position in the country.57
There are also numerous operational examples of unhcr “sacrificing principles at the altar of pragmatism”58 to try to maintain a foothold in non-signatory states. With regards to the Gulf states, unhcr has partnered with these governments in the provision of humanitarian assistance that has furthered these states’ political, diplomatic and social objectives in neighboring countries, such as Yemen, in ways that may have actually exacerbated displacement in the region.59 When the Lebanese government started trying to induce Syrian refugees to return in 2017, unhcr began investigating whether it would be safe for these returnees in Syria. Threatened with the revocation of their staff’s residency permits by the Lebanese authorities, however, unhcr rowed back on this fundamental aspect of its protection mandate.60
This raises further questions about what the real purpose – or consistent principles – of this assemblage are, and whether unhcr even always knows. In seeking to get Bangladesh to accede to the 1951 Convention in 1978, the High Commissioner at the time, Poul Hartling, wrote that getting more states to accede to international refugee law instruments was “an important factor in resolving refugee problems.”61 unhcr indeed promotes international refugee law within the 1951 Convention as critical in providing solutions to the “problem of refugees,” albeit without any unified agreement as to what that problem might be. In her study of building assemblages around forest conservation and management, Li suggests that a weakness of that approach was that it started from a proposed solution – that those who live in closest proximity to forests are in the best position to protect it – rather than from any agreed definition amongst the numerous stakeholders of what the problem actually was.62 The same might be said of the international refugee regime. With no explicit, shared understanding of what the “refugee problem” is, the assemblage seems oriented to managing numerous “problems” and not resolving them or it.
There is also ample evidence of where formal involvement in the network of the international refugee regime does not necessarily equate to better protection. Clearly many signatory states who technically abide by refugee law outsource their non-conformity to other states, with externalization allowing states to unravel the assemblage while appearing to be a strong part of it. We see this through Kneebone, Missbach and Jones’ work on Indonesia. The Indonesian government’s very limited response to refugees was replaced by an approach focused almost exclusively on stopping “irregular migrants” travelling onwards to Australia, following heavy pressure from the Australian government.63 Chimni has indeed long cautioned against Asian states acceding to the 1951 Convention until it becomes a much more effective mechanism for sharing global responsibility rather than shifting it.64 As Janmyr states, “while there is a widespread and entrenched assumption that refugee protection is superior in signatory States when compared with non-signatories, there are no systematic and comparative studies supporting an argument that accession to the 1951 Refugee Convention automatically means better protection … and in some cases protection may even be better in non-signatory States than in signatory States.”65 Some of the alternatives promoted in these spaces may at the least become increasingly important as asylum systems around the world become more restrictive.66
3.1 Complementary and Contingent Networks
Here, the theoretical literature on assemblages helps deepen and extend this critique. As Callon states, his approach permits “an explanation of how a few obtain the right to express and to represent the many silent actors of the social and natural worlds they have mobilized.”67 When this process of translation has been successful, “only voices speaking in unison will be heard,”68 and other aspects or alternative approaches may be rendered “invisible or irrelevant.”69 Espeland and Stevens’ note the same dangers inherent to the related process of “commensuration,” which refers to the process of establishing common metrics, frameworks, approaches and discourses to enable the alignment of diverse actors. They suggest that in establishing commonalities and comparability between previously disparate things, this hugely political act can “radically transform the world by creating new social categories and backing them with the weight of powerful institutions”70 all while significantly changing, or as Callon suggests, invisibilizing, their prior meanings and significance.71 Put plainly, there are always costs to be identified and questioned whenever any single network is being established and promoted.
Numerous studies touch on the shortcomings of transforming the multiplicity of displaced people into the legal-bureaucratic category of “refugees” given refugee law can be seen “as a quintessential tool of commensuration.”72 This is precisely the point made by Mohammed and Jureidini.73 They discuss how ummatic principles74 and institutional collaborations practiced in Islamic, non-signatory States could enhance more secular understandings of refugee protection provided they are not simply collapsed into mainstream refugee law approaches. In their view, the ideologies associated with the bordered nature of the modern nation-state and the prominence accorded to national sovereignty are some of the most powerful forces in disassembling the networks of actors and spaces that could best protect displaced populations, and yet both of these principles are strongly reinforced by the 1951 Convention. As such, they suggest that the oic could collaborate with unhcr to promote the principles of umma alongside international refugee law, importantly while retaining the critical differences between these approaches. In terms of how this might be done practically, Kazmi and Shah discuss how university students as the influential “lawyers of tomorrow” can be taught creative approaches to enhancing international protection without elevating one conception of refugee law over other ways of protecting displaced populations (see chapter 11).
For De Sousa Santos, this requires a different form of “translation” rooted in a belief in “negative universalism.”75 This entails every actor recognizing both that their institutional culture is incomplete and can be enriched by dialogue and confrontation with others, and that there is no all-encompassing, singular approach to social transformation and justice that can ever feasibly work. Instead, they suggest that actors should be offering “a point of porosity” that makes them permeable to the practices, discourses and knowledges of others without destroying, redefining or homogenizing any identities in the process.
The work by Thanawattho et al in Thailand shows the value of this “negative universalism” for promoting international protection.76 They draw on the experiences of a coalition of refugee-focused organizations in the country, mainly led by Thai nationals and called the Coalition for the Rights of Refugees and Stateless Persons (crsp), to show the limits of commensuration. They detail the hostility that Thai government officials have shown toward transnational alliances seeking to push new policies and practices through the language of international human rights. In contrast, the crsp has managed to more successfully “enroll” the Thai government in protection initiatives by drawing on a high degree of contextual knowledge and local embeddedness, speaking in languages, values and discourses that these officials understand, and through appeals to crsp members’ rights as concerned citizens. While the crsp has drawn on pledges made by the Thai government at various international refugee forums, they have not called for ratification of the 1951 Convention given their uncertainty as to what this would achieve in the absence of political will to action it. Herein thus lies one of the benefits of localization when conceived of in terms of mutual learning and partnership, as opposed to the absolute convergence of identities in too tightly bounded an assemblage.
4 Conclusion
The focus in the first half of this chapter on schematizing the roles played by unhcr in its attempts to build and maintain assemblages of international protection in non-signatory states should thus in no way be treated as an endorsement of these activities. As detailed, these strategies differ from socialization in that they often entail short-term compromises and pragmatic alliances to ensure a combination of protection, relevance and growth. They risk both jeopardizing alternative ways of supporting displaced populations and unravelling over time. Callon indeed notes that the actors in his story worked “incessantly … defining and associating entities, in order to forge alliances that were confirmed to be stable only for a certain location at a particular time.”77 The assemblage he studied was extremely fragile and the process of interessement was always threatened due to the wide array of different actors, technologies, discourses, laws, populations and objects drawn together within it.
In reality, however, we see this fragility across the literature on the international refugee regime. There is evidently a marked lack of consistency in how states respond to displaced populations whether they have acceded to the 1951 Convention or not.78 This provides a further reason to analyze the provision of international protection as largely about contingent assemblages, with fragile bonds rooted in history, culture, funding, etc. that to some extent have to be forged afresh with each new caseload, drawing on the discursive, moral and legal resources available. International refugee law and unhcr may play key roles in these assemblages, but their limitations are certainly not the limits of the network of international protection broadly conceived and operationalized. As shown in this chapter, critiques derived from sts help to highlight what the possible risks of their further expansion might be, as well as the sorts of pluralistic and complementary assemblages that we might instead seek to encourage.
Convention relating to the Status of Refugees (adopted July 28, 1951, entered into force April 22, 1954) 189 UNTS 137; Protocol Relating to the Status of Refugees (adopted January 31, 1967, entered into force October 4, 1967) 606 UNTS 267.
Statute of the Office of the United Nations High Commissioner for Refugees, UNGA Res 428 (V) (December 14, 1950) ch 2, art 8(a).
ibid 2, art 8(b).
‘UN Refugee Agency marks 73 years of the Refugee Convention, urging universal accession’ (UNHCR 2024) <https://www.unhcr.org/news/briefing-notes/un-refugee-agency-marks-73-years-refugee-convention-urging-universal-accession> accessed August 15, 2024.
Tania Murray Li, ‘Practices of Assemblage and Community Forest Management’ (2007) 36(2) Economy and Society 263, 264.
Michel Callon, ‘Some Elements of a Sociology of Translation: Domestication of the Scallops and the Fishermen of St Brieuc Bay’ (1984) 32(1) The Sociological Review 196.
ibid 203.
ibid 224.
ibid 196.
ibid 201.
Li (n 5) 283.
Özlem Gürakar Skribeland, ‘Turkey: party or non-party state?’ (2021) 67 Forced Migration Review 46.
Maja Janmyr and Charlotte Lysa, ‘UNHCR’s Expansion to the GCC States: Establishing a UNHCR Presence in Saudi Arabia 1987–1993’ (2024) 33(1) Middle East Critique 45, 48; Maja Janmyr and Charlotte Lysa ‘Saudi Arabia and the International Refugee Regime’ (2023) 35(3) International Journal of Refugee Law 251, 265.
Marjoleine Zieck, ‘The Legal Status of Afghan Refugees in Pakistan, a Story of Eight Agreements and Two Suppressed Premises’ (2008) 20(2) International Journal of Refugee Law 253.
‘UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Eritrea’ (UNHCR 2009) <https://www.refworld.org/policy/countrypos/unhcr/2009/en/66801> accessed March 27, 2024.
Janmyr and Lysa (n 13).
ibid.
Janmyr and Lysa’s work shows how UNHCR’s efforts to consolidate their position within Saudi Arabia required different strategies when approaching the Ministry of Foreign Affairs versus the Ministry of Defense. This indicates the need to also be aware of the scale at which enrollment happens, which may well be nuanced at a sub-national level. See Janmyr and Lysa (n 13).
‘Refugee Zakat Fund: 2019 Mid-Year Report’ (UNHCR 2019) <https://zakat.unhcr.org/wp-content/uploads/2019/08/UNHCRs-Refugee-Zakat-Fund-Mid-Year-Report-2019-FINAL-v1.pdf> accessed May 12, 2024.
‘Ramadan’ (
Georgia Cole, ‘Non-signatory Donor States and UNHCR: Questions of Funding and Influence’ (2021) 67 Forced Migration Review 56.
‘UNHCR unveils the Refugee Zakat Fund, a global Islamic finance structure to help displaced populations worldwide’ (UNHCR 2019) <https://www.unhcr.org/hk/news/unhcr-unveils-refugee-zakat-fund-global-islamic-finance-structure-help-displaced-populations> accessed May 14, 2024.
Sultan Barakat, ‘Priorities and Challenges of Qatar’s Humanitarian Diplomacy’ (2019) 07 Chr. Michelsen Institute 1.
‘United Arab Emirates’ (UNHCR) <https://www.unhcr.org/asia/countries/united-arab-emirates> accessed April 11, 2024.
Deniz Gökalp, ‘The
Janmyr and Lysa (n 13).
ibid 58.
Matthew Canfield, ‘Banana Brokers: Communicative Labor, Translocal Translation, and Transnational Law’ (2019) 31(1) Public Culture 69, 69.
Li (n 5) 279.
Callon (n 6) 211.
UNGA, ‘International assistance to refugees within the mandate of the United Nations High Commissioner for Refugees 1166 (12)’ (26 November 1957) <https://www.unhcr.org/uk/publications/international-assistance-refugees-within-mandate-united-nations-high-commissioner-1> accessed 12 April 2024.
Ovacık and Johny’s work in this volume also details how these ExCom Conclusions and UNHCR’s Country of Origin Reports are drawn upon by legal actors, including domestic courts, in non-signatory states as respected sources of knowledge to advance refugee protection (see chapter 3).
Maja Janmyr, ‘Non-Signatory States and the International Refugee Regime’ (2021) 67 Forced Migration Review 39.
UNGA, ‘Global Compact on Refugees’ (United Nations 2018) para 6 <https://www.unhcr.org/media/global-compact-refugees-booklet> accessed March 21, 2024.
Naiyana Thanawattho, Waritsara Rungthong and Emily Arnold-Fernández, ‘Advancing Refugee Rights in Non-signatory States: the role of civil society in Thailand’ (2021) 67 Forced Migration Review 61.
Atul Alexander and Nakul Singh, ‘India and Refugee Law: Gauging India’s Position on Afghan Refugees’ (2001) 11(2) Laws 31, 33.
Emily E. Arnold-Fernández, ‘The Global Compact on Refugees: Inadequate Substitute or Useful Complement?’ (2023) 5 Frontiers in Human Dynamics.
Janmyr and Lysa (n 13) 39.
Mai Wardeh and Rui Cunha Marques, ‘Measuring the SDGs in Refugee Camps: An Insight into Arab States Bordering Syria’ (2003) 15(1) Sustainability 15, 1720.
International Rescue Committee, Missing Persons: Refugees Left Out and Left Behind in the Sustainable Development Goals (2019) <https://www.rescue.org/sites/default/files/document/4121/missingpersonreport100319.pdf> accessed April 16, 2024.
Chiara Denaro and Mariagiulia Giuffre, ‘
Janmyr (n 33).
M Sanjeeb Hossain, ‘Doing Legal History in Refugee Law: A Snapshot of Bangladesh’s Engagement with Non-Refoulment’ (2023) 36(4) Journal of Refugee Studies 1030.
Cifebrima Suyastri, Mohammad Thoriq Bahri, and Marhadi Marhadi, ‘Legal Gap in Refugee Protection in Non-Signatory Countries: An Evidence from Indonesia’ (2023) 14(3) Danube 193.
Thanawattho et al (n 35).
Aishwarya Birla, ‘Evaluating the Indian Refugee Law Regime: How Has the Judiciary Responded to Refugee Claims in Light of International Law Obligations, and How Can It Do Better?’ (2023) 35(1) International Journal of Refugee Law 81, 87.
Tamirace Fakhoury, ‘Refugee Return and Fragmented Governance in the Host State: Displaced Syrians in the Face of Lebanon’s Divided Politics’ (2021) 42(1) Third World Quarterly 162.
Callon (n 6) 218.
Susan Kneebone, Antje Missbach and Balawyn Jones, ‘The False Promise of Presidential Regulation No. 125 of 2016?’ (2021) 8(3) Asian Journal of Law and Society 431.
Universal Declaration of Human Rights (adopted December 10, 1948) UNGA res 217 A (3).
International Covenant on Civil and Political Rights (adopted December 16, 1966, entered into force March 23, 1976) 999 UNTS 171.
Convention against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June 26, 1987) 1465 UNTS 85 (CAT).
Convention on the Rights of the Child (adopted November 20, 1989, entered into force September 2, 1990) 1577 UNTS 3.
Birla (n 46) 100.
Brian Barbour, ‘Beyond Asian Exceptionalism: Refugee Protection in Non-signatory States’ (2021) 67 Forced Migration Review 42.
Rachel Li and Isaac Shaffer and Lynette Nam, ‘Hong Kong’s Unified Screening Mechanism: Form over Substance’ (2001) 67 Forced Migration Review 48.
Janmyr and Lysa (n 13).
Michael Barnett, UNHCR and the ethics of repatriation (Forced Migration Review 2001)
<https://www.fmreview.org/barnett/> accessed December 9, 2024.
Cole (n 21).
Fakhoury (n 47).
Cited in Hossain (n 43).
Li (n 5).
Kneebone et al (n 49).
B. S. Chimni, The Law and Politics of Regional Solution of the Refugee Problem: The Case of South Asia (Regional Centre for Strategic Studies, 1998).
Janmyr (n 33).
Georgia Cole ‘Sampling on the Dependent Variable: An Achille’s Heel of Research on Displacement?’ (2021) 34(4) Journal of Refugee Studies 4479; Charlotte Lysa ‘Governing Refugees in Saudi Arabia (1948–2022)’ (2023) 42(1) Refugee Survey Quarterly 1. Of course, social scientists are well aware of many of these discontents. As Li suggests, however, they often put forward a form of ‘contained critique’ to avoid ‘unravel[ing] the assemblage’ (Li (n 5) 13).
Callon (n 6) 224.
Callon (n 6) 223.
Wendy Nelson Espeland and Mitchell L. Stevens, ‘Commensuration as a Social Process’ (1998) 24(14) Annual Review of Sociology 313, 314.
ibid 323.
ibid 324.
Canfield (n 28).
Hossameldeen Mohammed and Ray Jureidini, ‘Umma and the Nation-state: Dilemmas in Refuge Ethics’ (2022) 7 Journal of International Humanitarian Action 1, 17.
Lysa provides historical examples of how the claim to asylum through the “Umma” has worked, such as with Uzbeks fleeing Soviet repression in the 1950s and Uighurs fleeing China two decades later to the Hijaz. See Charlotte Lysa, ‘Governing Refugees in Saudi Arabia (1948–2022)’ (2023) 42(1) Refugee Survey Quarterly 1.
Boaventura De Sousa Santos, ‘The Future of the World Social Forum: the work of translation’ (2005) 48(2) Development 2.
Thanawattho et al (n 35).
Callon (n 6) 222.
For examples from India see Alexander and Singh (n 36) 31; from Türkiye see Kemal Kirişci and Ayselin Yıldız, ‘Turkey’s asylum policies over the last century: continuity, change and contradictions’ (2023) 24(3–4) Turkish Studies 1; and from Lebanon see Maja Janmyr, ‘Sudanese Refugees and the “Syrian Refugee Response” in Lebanon: Racialised Hierarchies, Processes of Invisibilisation, and Resistance’ (2022) 41(1) Refugee Survey Quarterly 1.