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Ethnographic Approaches and International Refugee Law

Ethnographic Approaches and International Refugee Law Abstract International refugee law permeates a plethora of international, national and local arenas and is developed, interpreted and applied by a wide range of very different actors. In this diversity of contexts, how do we best study the role and place of this body of law? This article advocates for the application of ethnographic approaches in the study of international refugee law, where the positivist legal approach heavily dominates the field. It argues that ethnography’s contribution to knowledge on international refugee law lies not only in its methods, but also in its perspectives on questions of power, knowledge, reflexivity and subjectivity. The article illustrates the value of the ethnographic approach through three vignettes focusing on (i) the concept of ‘refugee’; (ii) refugee rights-claiming and rights-mobilization; and (iii) actors and processes in the creation and spread of international refugee law norms. Introduction International refugee law (IRL) is not only found in legislation or judicial decisions; it exists in the corridors of power in Geneva and New York and takes place on the dusty sidewalks of Amman and Cairo. Take, for instance, the refugee protesters I met some years back who camped outside of UNHCR’s office in Beirut. Their appeals evidenced an unmistakable engagement with the IRL regime; embedded in their calls were not only general requests related to recognition of their refugee-nature, but also concrete demands, including speedier process for determining refugee status, the opening of closed files, legal assistance for those detained for illegal entry or stay, and quicker resettlement to third countries for recognized refugees. They were essentially users (Desmet 2014) of IRL, and their actions had the very real potential of influencing the implementation of IRL on the ground. In the words of one female protester whose closed file had been re-opened and UNHCR refugee status subsequently granted: For sure, if I didn’t protest, my file wouldn’t have been processed. I wouldn’t have taken my right. The sit-in gets results, you’re not harming anyone, you’re just asking for your rights.1 The users—and makers—of IRL are thus not only decision makers, judges, lawyers and bureaucrats but also refugees and asylum seekers. International refugee law permeates a plethora of international, national and local arenas and is developed, interpreted and applied by a wide range of very different actors. In this diversity of contexts, how do we best study the role and place of this body of law? This article advocates for the application of ethnographic approaches in the study of IRL, where the positivist legal approach heavily dominates the field. The doctrinal approach2 falls short of capturing the complexities of IRL in action and is also unable to fully explain how this field of law is created, developed and implemented (Bianchini 2021). Core legal concepts and debates may indeed be better understood by adopting ethnographic approaches. In addition, judicial decisions have long been the main way of studying state practices, even though, in the countries of the global South where the vast majority of the world’s refugees are hosted, such decisions are rare and a more comprehensive conception of (international) refugee law is warranted. As this article intends to show, then, by applying elements of ethnography in their research, refugee law scholars can arguably gain deeper insights into how IRL is produced and operates in practice. This article is divided into two main parts: Part I describes what ethnography is, what the benefits of this field are to IRL, and what, more precisely, an ethnographic approach to IRL can entail. It argues that ethnography’s contribution to knowledge on IRL lies not only in its methods, but also in its perspectives on questions of power, knowledge, reflexivity and subjectivity. Part II outlines the importance of the relationship between IRL and ethnography within my own research. I illustrate the value of the ethnographic approach through three vignettes: (i) in my understanding of the concept of ‘refugee’ in Lebanon; (ii) when researching refugee rights-claiming at UNHCR Beirut; and (iii) in the exploration of the relation between the international refugee regime and states that have not ratified the 1951 Convention relating to the Status of Refugees. Ethnography and International Refugee Law Ethnography as Research Method Ethnography has much to contribute to knowledge production in terms of method. As a research tradition, ethnography has developed a comprehensive and dynamic literature on methods, in both sociology and anthropology (Atkinson et al. 2001; O’Reilly 2005; Hammersley and Atkinson 2007). However, there is no single agreed-upon approach as to what constitutes ethnographical methods; a leading handbook on ethnographic research even defines ethnography crudely as ‘participant observation plus any other appropriate methods’ (Crang and Cook 2007: 35). In general, however, ethnography can be seen as a distinctive method of research that involves in-depth, case-oriented study, including long-term fieldwork and open-ended, often narrative-oriented interviews. Ethnographers employ a wide range of techniques that enable them to immerse themselves in a social field, including ‘participant observation, interviewing, conducting surveys, engaging in naturally occurring conversations, and collecting documents as well as audio-visual materials’ (Bens and Vetters 2018: 240). Good ethnography is, as Ingold (2017: 21) notes, ‘sensitive, contextually nuanced, richly detailed, and above all faithful to what it depicts’. As Bens and Vetters (2018: 240) further explain, ‘ethnographic data is an artefact produced through constantly interrelated processes of collection, interpretation, analysis and representation—processes in which writing constitutes a central part’. As with any research, however, ethnographic approaches both shape and are shaped by contexts of study, not only describing but also helping to produce the reality they understand (Law 2004: 5). Long-term engagement is a key feature of ethnographic research, providing, as it does, a greater depth of understanding than many other methods of the social sciences, such as surveys or even structured or semi-structured interviews. Sustained, direct contact with people through participant observation allows for a more in-depth understanding of a social phenomenon. But the research process is often unpredictable, and the knowledge that is produced does not emerge quickly, nor is it amenable to direct replication (McConnachie 2019). As Duffield (2018: 51–52) has noted, ‘participant observation cannot be rushed. Ideas and conjectures grow at walking pace, and insights and discoveries worthy of the name reveal themselves slowly’. The way data are collected through participant observation is thus not necessarily straightforward and entails more than merely a technical approach; as Ingold (2017: 23) warns, ‘[p]articipant observation … is not a technique of data gathering but an ontological commitment’. Advocating for a closer understanding of what it means to participate and to observe, Ingold (2017: 23) moreover argues that: There is something deeply troubling, as we all know, about joining with people, apparently in good faith, only later to turn your back on them so that yours becomes a study of them, and they become a case. But there is really no contradiction between participation and observation; indeed, you simply cannot have one without the other. The great mistake is to confuse observation with objectification. To observe is not, in itself, to objectify. It is to notice what people are saying and doing, to watch and listen, and to respond in your own practice. Thus, there is increasing recognition of the need for ‘[a] practice of observation grounded in participatory dialogue’ (Ingold 2007: 87) and to ‘think with’ (Strathern 2004; Haraway 2016) participants. In the same vein, recent scholarship has emphasized the importance of engaged listening to the ethnographic project, with Forsey (2010: 561) arguing that ethnography is ‘more aural than ocular, the ethnographer more participant listener than observer’. With an emphasis precisely on dialogue, the unstructured interview is similarly conducted more as an egalitarian conversation, co-producing and co-creating knowledge. For Kvale (1996: xvii), ‘[i]nterviews are conversations where the outcome is a coproduction of the interviewer and the subject’. Participatory dialogue is in this sense also an important part of the writing process (Mosse 2006). Ethnographic research thus requires time and resources, as well as (often lengthy) negotiations of access to relevant institutions and communities. This type of ‘slow’ ethnography is nonetheless, as noted by McConnachie (2019: 196), currently endangered by the increasing focus in academia and among research funders to ‘privilege[s] the creation and manipulation of “data” (statistically valid numbers, large-scale surveys, replicable findings) over the more subjective “knowledge” that is gained by immersion, questioning and reflecting’. An increase in ‘limited, drop-in fieldwork,’ is seen especially in situations of displacement crises, with Cabot (2019: 264) warning about the implications of doing ethnographic research as business: Security regimes, humanitarian intervention, and scholarship alike often find purpose and funding in sites and times of “crisis.” This aspect of the business of anthropology encourages crisis chasing in scholarship on displacement, as opposed to contesting or undermining crisis critically. Indeed, as Cabot (2019: 267) stresses, it is ‘especially in moments that appear to demand urgent response’ that we need ‘meaningful, ethnographically grounded interventions’. A recognition of the necessity of such slow scholarship is well underway in many parts of the global academy (Hartman and Darab 2012; Mountz et al. 2015). Ethnography as Attitude Ethnography is often understood as more than a set of research methods; it is, as Juris and Khasnabish (2015: 3) point out, ‘an attitude and a perspective’ as well as a ‘mode of analysis and writing’. Ethnography pays particular attention to everyday lived experiences and struggles, thereby capturing the complexity of important empirical issues. As Bianchini (2021: 5) writes about anthropology, the discipline has ‘given voice to the stakeholders, taking into account sensitive cultural, political, and religious matters, and has put emphasis on “voices from below”’. Indeed, a hallmark of ethnographic research in refugee studies is precisely the recognition of refugees’ and asylum seekers’ agency (Malkki 1996; Peteet 2005). Ethnographers’ insights into structure(s) of authority make them sensitive to issues of power—not only in what and who are researched but also in how this research is conducted. While the ethnographic method was for many years closely bound to the quasi-colonial pursuit of understanding ‘the other’, recent generations of researchers have begun shifting this focus to one that more thoroughly engages with questions of power, knowledge, reflexivity and subjectivity (Ahmed 2000; McConnachie 2019). In the field of migration studies, scholars have increasingly pointed to the geopolitics of knowledge production, and the need for ‘decentering’ global North knowledge as well as for ‘decolonizing’ migration research (Achiume 2019; Vanyoro 2019; Fiddian-Qasmiyeh 2020; Mayblin and Turner 2021). Such approaches constitute a set of alternative knowledge production strategies that pay attention to interdependencies of power, knowledge and inequality as well as to the colonially created knowledge patterns of migration research (Gutiérrez Rodríguez 2018; Amelina 2022). The ‘reflexive turn’ in ethnographic research is essentially the recognition that the ethnographer’s social position shapes the research process, relationships with research subjects, as well as their representation and interpretation of their social world (Denzin and Lincoln 1998; Collins and Gallinat 2013). It stresses the importance of reflecting on the role of social identity and positionality. Reflexivity in writing acknowledges that, as Clifford (1986: 2) holds, ethnography is ‘always caught up in the invention not the representation of cultures’ and is as such always contingent and partial. Thus, ‘even the best ethnographic texts—serious, true, fictions—are systems, or economies, of truth. Power and history work through them, in ways their authors cannot fully control’ (p. 7). Knowledge is as such also ‘situated’ (Haraway 1988: 592). Despite the growing awareness of questions of power, knowledge, reflexivity and subjectivity, critical voices are raised about the ethics of ethnographic encounters. Ethnography continues to be criticized for its ‘orientalizing and harmful potentials’ (Twigt 2022: 41). In a critique of the reflexivity turn, feminist and postcolonial scholars such as Ahmed (2000) have pointed to a risk of ethnographers becoming absorbed with themselves or reifying ‘them’ into a construction of themselves. Similarly, rather than being a relic of the past, ethnography’s emphasis on refugee stories may ‘reproduce[s] long-standing patterns in both anthropological and humanitarian thinking grounded in fascination with a suffering, “innocent” Other’ (Cabot 2019: 268). The ethnographic approach is also inherently deeply intrusive (Sukarieh and Tannock 2012). In this sense, we are reminded of Yousif M Qasmiyeh’s intimate and powerful poetry collection ‘Writing the Camp’, based on his experiences of growing up in Baddawi camp in Lebanon and heavily influenced by his interactions with foreigners and anthropologists seeking to make the camp intelligible. In ‘Anthropologists’, Qasmiyeh (2021: 17) writes that ‘Upon the doorstep you observe what they observe with a lot of care’ and ‘You suddenly develop a fear of imitating them whilst they imitate you.’ The poem closes distressingly: ‘After spending hours with us, in the same room, she left with a jar of homemade pickles and three full cassettes with our voices.’ Along these lines, scholars have increasingly insisted that some ‘refugee stories’ may be better left untold. In the words of Cabot (2019: 270): It is worth asking whether a focus on border crossers’ perspectives is welcome or productive, whether they benefit in any way from sharing their “stories” with anthropologists, and whether anthropological research is just another invasive practice that seeks to co-opt refugee experiences. Similarly, as a way of counteracting the co-optation of their stories, Khosravi (2018) advocates for a research subject’s ‘right to opacity’ in encounters with researchers, that is the right not to be known and represented. An additional way of countering this risk is moreover the recognition of ethnography as particularly apt for an action research approach, described by McConnachie (2019: 197; see also Reason and Bradbury 2001) as a combination of ‘applied social science research with action intended to progress social welfare’. In the view of MacKenzie, McDowell and Pittaway (2007: 299), researchers have an ‘obligation to design and conduct research projects that aim to bring about reciprocal benefits for refugee participants and/or communities.’ As Engle Merry (2005: 240) also reminds us, ‘academic and activist endeavors are never autonomous, despite our analytical assumptions of separateness’. While no specific ethical guidelines for research on refugee- and migration issues existed until recently, a major step forward was also the development of the Ethical Guidelines for Good Research Practice adopted by the Refugee Studies Centre at the University of Oxford (Refugee Studies Centre 2007). Since then, a broader Code of Ethics has also been developed by the International Association for the Study of Forced Migration (Clark-Kazak 2017). A growing literature similarly focuses on the ethics of qualitative research with refugees more generally, and on the ethics of ethnography more specifically (Jacobsen and Landau 2003; MacKenzie et al. 2007; Hugman et al. 2011a, 2011b; Sukarieh and Tannock 2012; Omata 2019; Müller-Funk 2021). Ethnography and International (Refugee) Law Because ethnographic methods and perspectives can be applied to study a range of legal phenomena, they are a rich tool for IRL scholars. One of the most productive sites of knowledge exchange between anthropological and legal scholarship has precisely been the field of international law (Merry 2006a, 2006b; Dann and Eckert 2021). As Sarfaty (2021: 129) observes, ‘anthropological theory and methods enable the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level.’ Through ethnographic research, it is thus possible to explore the social, political and economic contexts, including individual actions and power dynamics, that shape the development and practice of international law. Building on in-depth ethnographies, theories of (global) legal pluralism are also helpful in explaining the transnational circulation of global norms and local settings where these multiple orders interact (Moore 1973; Merry 2007; Berman 2012). There is a multiplicity of contradictory, intersecting and competing normative frameworks in today’s globalized world. As Darian-Smith (2020: 1) argues, these frameworks ‘are recognized as having some form of legal authority through which people imaginatively organize their social relations and everyday behaviours’. Law is thus shaped by, and shapes, networks of cultural political, and economic relations that ‘crisscross local, national, international, regional, and global domains and spatial scales’ (Darian-Smith 2013: 524). International refugee law, implemented in a space where bureaucratic-, international law- and domestic norms typically overlap and sometimes conflict, appears particularly apt to an ethnographic approach. Studies in this vein have analysed the management of asylum by state bureaucracies, domestic and international courts or international agencies, as well as the experiences of asylum seekers in their countries of asylum (Fassin 2018; Dembour 2020; Bianchini 2021). Ethnographic approaches have a major contribution to make in the exploration of the social meanings of the legal concepts of asylum and refugee as defined in international conventions (Harrell-Bond and Voutira 1992). Recently, for example, Wissing (2022) analysed forced migrants’ perceptions of (international) ‘protection’, coined by Wissing as ‘protection consciousness’. By empirically assessing legal issues, ethnography can also enrich our understandings of how IRL is implemented. A growing body of scholarship focuses on refugee experiences and understandings of the bureaucratic systems they need to navigate when seeking protection (Bloch et al. 2011; Griffiths 2012; Özkul and Jarrous 2021). In her contribution on anthropology and IRL, Bianchini (2021: 1) highlights precisely how the anthropological approach ‘shifts the focus from states, borders and citizenship towards the individual by combining and embedding human interpretations, behaviours, cultural contexts and personal interactions with the law.’ The ethnographic focus on participatory approaches is especially warranted in the study of IRL, where there is an increasing recognition also of the need for refugee law to ‘progress through dialogue among participants’ (Bianchini 2021: 4). In other words, refugees should be directly included in discussions about everything from refugee status determination to UNHCR accountability. The ethnographic approach can also shed important empirical light on why certain refugee law norms are adopted and internalized, the process by which IRL is implemented, and the interaction between legal and non-legal norms. Examples include the organizational behaviour of international institutions like UNHCR and the internalization of IRL norms in local communities. As Sarfaty (2021: 137) has observed with regard to international law more generally, ‘when legal norms are localized, they are not just transplanted but are adapted in a variety of ways.’ Indeed, ‘the implementation of law is always contingent upon a range of social and political factors that may not be obvious and may differ dramatically across particular contexts’ (Moore 2015). Finally, ethnographic approaches, including a more comprehensive conception of IRL, may help counter the ‘methodological nationalism’ (Wimmer and Schiller 2003) that currently prevails in IRL scholarship (Bianchini 2021; Cole 2021). There is a considerable geographic gap in the study of refugee law, explained by Cantor (2017) as due to an ‘international and Western bias’ towards the practice of certain States such as Australia, Canada, New Zealand, the United States, and countries in Western Europe. These states host a miniscule portion of the world’s refugees and their jurisprudence represents just a fraction of global refugee law practice. In this vein, the salience of empire and race have been pointed to as factors that have shaped the development of IRL (Chimni 1998; Achiume 2021). Three Vignettes on Ethnographic Approaches to International Refugee Law Part II seeks to further the insights discussed in Part I by offering some reflections on how I have employed ethnographic methods and ways of thinking in my own research on IRL. I pursue three vignettes: the first seeks to discuss the concept of ‘refugee’ in Lebanon, the second explores rights-claiming among Sudanese refugees and asylum seekers at UNHCR Beirut, while the third reflects over what ethnographic approaches generally can bring to the study of IRL norms in states that are non-signatory to the 1951 Refugee Convention. Lebanon and the ‘Refugee’ Concept A major area of debate in the positivist literature concerns the definition of ‘refugee’ and how it is interpreted and applied. In a context in which the legal doctrinal method has proven insufficient in describing and analyzing the legal reality facing refugees, my research with Syrian refugees in Lebanon has to a large extent revolved precisely around understanding the concept of ‘refugee’. Not being a signatory to the 1951 Refugee Convention, and long insisting that it is not a ‘country of asylum’, Lebanon essentially does not have any formal domestic refugee and asylum legislation (Janmyr 2017). This does not mean, however, that the country lacks any legal, social, political and economic structures and policies targeting Syrian refugees. Refugee protection in Lebanon is an obvious site of legal pluralism. Ethnographic approaches helped me illustrate local processes and thicken the scant legal scholarship on refugees in Lebanon. Studying the transnational circulation of IRL norms—predominantly through the interactions between UNHCR and Lebanese government entities—provided me with unique insights into the micro-level processes on the local, state and international level. The ethnographic lens particularly shed light on the many ways in which international law shapes how local and state actors approached the protection of refugees. Understanding these dynamics arguably also provided key insights into the global workings of IRL; UNHCR’s operation in Lebanon is one of its largest ever, and as Crisp (2021) has noted, the Syrian refugee response has had a broad impact on the global refugee regime more generally. With the presence of refugees being politically sensitive in Lebanon, any research into the ordering and categorization of the refugee presence is socially and politically complex. Researchers commonly need to ‘negotiate their presence in the field with local (in)formal authorities and epistemic power-holders’ (Carpi 2020). Building these relationships of trust was a time-consuming process, but one that was necessary for the integrity of my research. It was also explicitly included in the design of my research approach; rather than ‘drop-in fieldwork’ (2019: 264), I was fortunate to have both research funding and time to spend almost 3 years in Lebanon. My research data were collected through interviewing and participant observation, and participants—refugees, government officials and humanitarian workers—were carefully selected through snowball sampling. Yet, I was acutely aware of my position as a privileged white researcher from a northern European university and of how this position played out and affected the research process. If refugees, state actors and humanitarians were situated historically and politically in local and global structures of power, so was my own position. My methods and physical presence were admittedly part of the webs they sought to analyse and brought their own set of relations, experiences, personal histories and sociocultural preconceptions and practices. In this way, of course, my method helped produce the reality I describe. One obvious example is the ways in which categorizing and labelling are inherently the privilege of the most powerful actors, and how through our research on these issues we are part of migration governance systems—and thus part of the power constellations that make sense of the world in a way that is shaped in a context of power (Byrne and Gammeltoft-Hansen 2020; Stierl 2020; Skilbrei 2021). I was thus wary about the political interests I might inadvertently help to promote through this research on categories and labels. In Lebanon, the ‘refugee label’ has been politically loaded for more than a half century and my research discusses in detail why and how the Lebanese government seeks to avoid the application of that label (Janmyr 2017). In light of this seemingly fixed government position, I examined how UNHCR became increasingly juxtaposed between the principles of IRL and local views on asylum (Janmyr 2018). My research uncovered how the reluctance of the Lebanese government and UNHCR’s attempts to accommodate that reluctance entailed that Syrians were received into an intricate, ad hoc system in which some were registered as official refugees, some were not, and yet others occupied ambiguous in-between statuses. The ethnographic study of the labelling of Syrian nationals in Lebanon arguably shed light on the complexity of the intersecting structures that shape the experiences of refugees. Building upon these insights, I subsequently collaborated with political scientist Lama Mourad to explore more deeply how and with what consequences individuals fleeing the Syrian conflict to Lebanon were given various legal, bureaucratic and social labels by humanitarian, state and local government actors (Janmyr and Mourad 2018). Our work speaks to the recognition in the ethnographic study of law that is it difficult, if not impossible, to ‘differentiate between formal and informal modes of governance strictly by referring to official or unofficial settings’ (Bens and Vetters 2018: 243). We found that each legal, bureaucratic and social label given to Syrians in Lebanon reproduced a certain mode of ordering, each with its own set of implications for what a Syrian may do, how their presence is understood by others in the community, and what type of rights and protections they may have access to. We could also unpack how the emergence of labels in one arena often influenced how and why another set of labels took shape in another. This allowed us to argue that the categories do not operate distinctly and membership in one may create constraints or opportunities in another. Rights-Claiming at UNHCR Beirut Another strand of my work concerns rights-mobilization and collective action among Sudanese refugees and asylum seekers in Lebanon (Janmyr 2021a, 2022). I examined two key collective action approaches through which Sudanese refugees sought to access better protection and assistance from UNHCR: the establishment of representative refugee committees, on the one hand, and refugee protest, on the other. Through interviews and participant observation, I was able to explore the engagement(s) and relation(s) between UNHCR staff and the rights claimants, and thus, in extension, IRL in action. Extensive periods of fieldwork allowed me to understand more intimately the experiences of legal precarity among refugees, as well as the motivations and aspirations of those protesting their marginalization. We know from studies elsewhere that the capacity of refugees to engage in collective action is often severely restricted (Chimienti and Solomos 2011). By applying an ethnographic approach to this phenomenon, I was thus also hoping to respond to questions such as: What possibilities do refugees have to claim rights and challenge boundaries of rights? Through which means can potential claims for the realization of human rights of refugees be articulated? Which processes are seen as legitimate and why? For a period of a year and a half, I did ethnographic fieldwork at a protest camp that had been set up on the sidewalk outside UNHCR’s office in Beirut. I had been introduced to the protesters through my engagement with a local human rights organization that supported and knew the protesters well. Overall, I took an action research approach that combined my research with advocacy intended to progress the welfare of my interlocutors. While I did not follow up on individual UNHCR cases, I did raise the situation of Sudanese refugees in Lebanon as often as possible, including through seminars and the writing of opinion pieces, as well as in my conversations with UNHCR and other humanitarian- and political actors. Years later, I continue to follow up on the personal circumstances of several of my interlocutors, and, to the extent possible, seek to weave participatory dialogue into the writing processes that stem from my fieldwork. In addition to doing recurrent, individual interviews, I participated in the everyday ordinary activities of the sit-in and developed close relationships with several of the protesters. The individual interviews were conducted at locations other than the sit-in—at the local organization, in my own home or in the homes of the protesters—but I would continuously follow-up on some of the conversations more informally also at the camp. That said, the conversations at the sit-in were first and foremost guided by the refugee protesters themselves. This bottom-up approach allowed me to partake in the issues most salient to discuss at any one point in time; our conversations spanned everything from funeral arrangements and grief to humorous accounts of ordinary happenings in community life. The sit-in setting and my prolonged attachment to it allowed for more authentic interactions to take place than would have been the case only with more formal interviews. Yet, the obvious and intersecting, unequal power relations between me as a researcher and those whose lives and experiences I ultimately researched were ever present. My own social position inherently shaped the research process and my relationships. One blatant example is of course the relative ease with which I crossed UNHCR-protester boundaries; unlike my interlocutors, I had fairly straightforward access to UNHCR and regularly had meetings within UNHCR premises. Seeing me coming and going, my interlocutors were fully aware of this access, and there was as such also an expectation on me to further their demands in my interactions with UNHCR staff. In this sense, then, I represented an additional vessel through which the protesters could make their claims heard. Over the course of the research process, I spent much time contemplating how best to mitigate the effects of intersecting, unequal power relations. I was agonizingly aware of the limitations of the type of research I was doing and of my ability to fully understand the experiences of the Sudanese protesters. In fact, we had many conversations about this at the protest camp, and about the value that lies in even attempting to understand their situation. While some protesters initially may have had unrealistic expectations of the benefits of the research and of my ability to influence their individual cases, we had open discussions about being part of the research and what my research approach entailed. While interviewees were not financially renumerated for their participation, I did occasionally bring food items such as lentils, onions or cooking oil. At the same time, I was aware of the intrusiveness of the ethnographic approach and was as such also fearful of any co-optation of my interlocutors’ experiences and stories. While there was a general agreement among the protesters to allow my presence at the sit-in, not everyone wanted to participate in the research. A couple of individuals opted to disengage entirely with the research process, while another chose to disengage 6 months in but allowed me to use the material I had collected until that time. A difficult ethical situation also arose when one of my main interlocutors unexpectedly passed away; being dedicated to ‘doing no harm’, I initially opted to exclude them from my research but pressure from the family that their story not remain untold essentially forced me to reconsider this choice. In understanding and analyzing refugee action, I used as inspiration conceptual tools from legal mobilization- and legal consciousness studies (Burstein 1991; McAdam et al. 1996; Ewick and Silbey 1998; Bernstein 2001; Halliday and Morgan 2013). Sudanese collective action in Beirut sought not only to bring to an end the marginalization and discrimination faced by many Sudanese on a daily basis, but also to reopen closed files and to speed up resettlement to third countries. Rights-claiming through protest was by many protesters considered to be a successful strategy in the sense of being a catalyst for opening closed files and refugee recognition, and for speeding up resettlement processes (Janmyr 2021a). My work explicitly details the power relations between UNHCR and the Sudanese refugees and asylum seekers, including how humanitarian actors reify and reproduce globally circulating colonial hierarchies of race (Benton 2016) as well as the inherent tension in the policy and practice of refugee presence in and around UNHCR premises. Non-signatory States and the International Refugee Regime A third research strand in which I make use of ethnographic approaches in the study of IRL concerns the relation between the IRL regime and states that are non-signatory to the 1951 Refugee Convention (Janmyr 2021b). While 149 states are party to the Convention, its 1967 Protocol, or both, 44 members of the UN are not. The non-signatory states are commonly viewed as ‘exceptions’ (Jones 2017) to the international refugee regime, and their experiences of, and relation to, IRL have only rarely been considered to warrant closer examination. This research strand seeks to disrupt the hegemonic emphasis only on signatory states in discussions of IRL by asking questions such as: What is the influence of the 1951 Refugee Convention in non-signatory States? How do non-signatory States engage with, and help to create, the international refugee regime? The research agenda necessitates an in-depth discussion of who makes the ‘norms’ and who are the ‘actors’ making them, which, as Juss (2021: 218) has observed, are questions rarely addressed in mainstream works of refugee law. As is further noted by Dann and Eckert (2021: 1), ‘norms often emerge in complex and often continuous processes of agenda setting, negotiation, and consensus building that involve a range of actors, while various political, economic, and social factors play a role in determining participants, issues, and normative outcomes.’ A variety of actors, processes and forums beyond conventional understandings are often involved; in the case of IRL these would notably include non-governmental organizations, refugee lawyers, UNHCR, decision-making authorities and refugees and asylum-seekers themselves (Bianchini 2021). Thus, by combining ethnographic and legal methods in the examination of the practice of, and interaction between, actors on a global, national, and local level more closely, we may gain a deeper and more nuanced understanding of the interplay between IRL and non-signatory States. In the study of global institutions, ethnographic approaches may facilitate the study of organizations such as UNHCR from the top-down as well as the bottom-up. There is an emerging body of scholarship taking an ethnographic approach to global legal institutions that may well serve as inspiration to the study of global (and regional) refugee law organizations (Schia 2013; Niezen and Sapignoli 2017; Sapignoli and Niezen 2021). This type of research may, as noted by Sarfaty (2021: 132–133), uncover ‘the formal and informal norms and the decision-making processes within the institutions that shape state behavior.’ Along these lines, we may also build upon the existing, albeit limited, scholarship on the diffusion of refugee law and transnational refugee law (Goodwin-Gill and Lambert 2010; Lambert et al. 2013; Kneebone 2016; Nah 2016; Juss 2021). This literature has, for example, evaluated the extent to which European legal norms of refugee protection have been emulated in other parts of the world by focusing first on influence, and then on the processes whereby emulation of the European protection regime has occurred (Goodwin-Gill and Lambert 2010). As an extension of this, we can also draw inspiration from the broader body of interdisciplinary scholarship on the global spread of human rights norms more generally (Keck and Sikkink 1998; Goodman and Derek Jinks 2004; Goodliffe and Hawkins 2006; Hathaway 2007; Risse et al. 2013). In my work on studying the relation between non-signatory states and the IRL regime I have taken particular inspiration from Koh’s (1996, 1998) transnational legal process theory of norm compliance. Transnational legal process is ‘the theory and practice of how public and private actors—nation-states, international organizations, multinational enterprises, non-governmental organizations, and private individuals—interact in a variety of public and private, domestic and international fora to make, interpret, enforce, and ultimately, internalize rules of transnational law’ (Koh 1996: 183–184). The theory allows in particular a more precise focus on the socialization processes of legal argument and doctrine. An ethnographic approach in this strand thus spotlights the norm emergence and internalization processes by which ‘international norms penetrate domestic legal systems on the local level’ (Sarfaty 2021: 129). Building upon these theoretical and methodological insights, my work explores more closely the many ways in which IRL norms are spread and used in non-signatory States (Janmyr 2021b). One example is through the presence of UNHCR. As Goodwin-Gill (2020: 40) has noted, UNHCR’s operations, interventions and initiatives influence IRL, not least because ‘its activities can and do generate relevant practice and, in turn, lead to the emergence of opinio juris’. UNHCR thus functions as an important norm-entrepreneur in many non-signatory states; its promotion of IRL takes various forms—including through involvement in domestic legal reform and collaborations with universities—and it is often key in the creation of national spaces where State actors are socialized into the IRL regime. Conclusions The ethnographic endeavour is a fertile point of convergence to make empirically grounded and theoretically ambitious contributions to the investigation of IRL. Through its distinctive methodology of long-term fieldwork and its perspectives on questions of power, knowledge, reflexivity and subjectivity, ethnographic research can provide a comprehensive analysis of the development and implementation of IRL. As this article nonetheless emphasizes, there is no single ‘ethnographic approach’; the field is not static, rather it is dynamic and continually redefined through scholarly exchanges. A warning must thus be had about the risk of essentializing the ‘ethnographic gaze’, as well as that of co-opting the stories of our interlocutors. The ethnographic approach may indeed be inherently deeply intrusive and critical voices are thus continuously—and rightly—raised about the ethics of ethnographic encounters. This article has illustrated how IRL is typically implemented in a space where bureaucratic-, international law- and domestic norms overlap and sometimes conflict. Ethnographic approaches have a major contribution to make in the study of these spaces, including in the management of asylum by state bureaucracies, domestic and international courts or international agencies, as well as in the more informal experiences of asylum seekers in their countries of asylum. By empirically assessing legal issues, ethnography is able to enrich our understandings of how IRL is implemented. Not only may core legal concepts and debates be more deeply understood through an ethnographic lens, but ethnographic approaches—including a more comprehensive conception of IRL—may help counter the ‘methodological nationalism’ that currently prevails in IRL scholarship. Following a discussion about what ethnography is and what an ethnographic approach to IRL entails, the article provided three vignettes, each exemplifying the different ethnographic approaches to IRL that I have taken in my own work. These vignettes illustrated the value of the ethnographic approach to legal discussions on the concept of ‘refugee’; on refugee rights-claiming and rights-mobilization; and, finally, on actors and processes in the creation and spread of IRL norms. While the examples each deal with very different aspects of IRL, a cross-cutting issue in all is the recognition that ethnographic research necessitates time and resources. As has been emphasized, this type of slow-paced ethnography is currently under pressure in academia and among research funders in favour of more rapid ‘drop-in’ fieldwork and fast ‘ouputs’. Thus, the importance of carving out space for extended and reflective ethnographic scholarship on IRL cannot be emphasized enough. Footnotes 1 Interview, female protester, Beirut, 19 January 2016. 2 Doctrinal research essentially seeks to systematize, interpret and define the content of current positive law (de lege lata) and/or to offer suggestions on how the content of positive law should be changed or improved (de lege ferenda). Acknowledgements The author wish to thank Nora Milch for research assistance. 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Ethnographic Approaches and International Refugee Law

Janmyr, Maja
Journal of Refugee Studies , Volume Advance Article – Aug 2, 2022
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Abstract

Abstract International refugee law permeates a plethora of international, national and local arenas and is developed, interpreted and applied by a wide range of very different actors. In this diversity of contexts, how do we best study the role and place of this body of law? This article advocates for the application of ethnographic approaches in the study of international refugee law, where the positivist legal approach heavily dominates the field. It argues that ethnography’s contribution to knowledge on international refugee law lies not only in its methods, but also in its perspectives on questions of power, knowledge, reflexivity and subjectivity. The article illustrates the value of the ethnographic approach through three vignettes focusing on (i) the concept of ‘refugee’; (ii) refugee rights-claiming and rights-mobilization; and (iii) actors and processes in the creation and spread of international refugee law norms. Introduction International refugee law (IRL) is not only found in legislation or judicial decisions; it exists in the corridors of power in Geneva and New York and takes place on the dusty sidewalks of Amman and Cairo. Take, for instance, the refugee protesters I met some years back who camped outside of UNHCR’s office in Beirut. Their appeals evidenced an unmistakable engagement with the IRL regime; embedded in their calls were not only general requests related to recognition of their refugee-nature, but also concrete demands, including speedier process for determining refugee status, the opening of closed files, legal assistance for those detained for illegal entry or stay, and quicker resettlement to third countries for recognized refugees. They were essentially users (Desmet 2014) of IRL, and their actions had the very real potential of influencing the implementation of IRL on the ground. In the words of one female protester whose closed file had been re-opened and UNHCR refugee status subsequently granted: For sure, if I didn’t protest, my file wouldn’t have been processed. I wouldn’t have taken my right. The sit-in gets results, you’re not harming anyone, you’re just asking for your rights.1 The users—and makers—of IRL are thus not only decision makers, judges, lawyers and bureaucrats but also refugees and asylum seekers. International refugee law permeates a plethora of international, national and local arenas and is developed, interpreted and applied by a wide range of very different actors. In this diversity of contexts, how do we best study the role and place of this body of law? This article advocates for the application of ethnographic approaches in the study of IRL, where the positivist legal approach heavily dominates the field. The doctrinal approach2 falls short of capturing the complexities of IRL in action and is also unable to fully explain how this field of law is created, developed and implemented (Bianchini 2021). Core legal concepts and debates may indeed be better understood by adopting ethnographic approaches. In addition, judicial decisions have long been the main way of studying state practices, even though, in the countries of the global South where the vast majority of the world’s refugees are hosted, such decisions are rare and a more comprehensive conception of (international) refugee law is warranted. As this article intends to show, then, by applying elements of ethnography in their research, refugee law scholars can arguably gain deeper insights into how IRL is produced and operates in practice. This article is divided into two main parts: Part I describes what ethnography is, what the benefits of this field are to IRL, and what, more precisely, an ethnographic approach to IRL can entail. It argues that ethnography’s contribution to knowledge on IRL lies not only in its methods, but also in its perspectives on questions of power, knowledge, reflexivity and subjectivity. Part II outlines the importance of the relationship between IRL and ethnography within my own research. I illustrate the value of the ethnographic approach through three vignettes: (i) in my understanding of the concept of ‘refugee’ in Lebanon; (ii) when researching refugee rights-claiming at UNHCR Beirut; and (iii) in the exploration of the relation between the international refugee regime and states that have not ratified the 1951 Convention relating to the Status of Refugees. Ethnography and International Refugee Law Ethnography as Research Method Ethnography has much to contribute to knowledge production in terms of method. As a research tradition, ethnography has developed a comprehensive and dynamic literature on methods, in both sociology and anthropology (Atkinson et al. 2001; O’Reilly 2005; Hammersley and Atkinson 2007). However, there is no single agreed-upon approach as to what constitutes ethnographical methods; a leading handbook on ethnographic research even defines ethnography crudely as ‘participant observation plus any other appropriate methods’ (Crang and Cook 2007: 35). In general, however, ethnography can be seen as a distinctive method of research that involves in-depth, case-oriented study, including long-term fieldwork and open-ended, often narrative-oriented interviews. Ethnographers employ a wide range of techniques that enable them to immerse themselves in a social field, including ‘participant observation, interviewing, conducting surveys, engaging in naturally occurring conversations, and collecting documents as well as audio-visual materials’ (Bens and Vetters 2018: 240). Good ethnography is, as Ingold (2017: 21) notes, ‘sensitive, contextually nuanced, richly detailed, and above all faithful to what it depicts’. As Bens and Vetters (2018: 240) further explain, ‘ethnographic data is an artefact produced through constantly interrelated processes of collection, interpretation, analysis and representation—processes in which writing constitutes a central part’. As with any research, however, ethnographic approaches both shape and are shaped by contexts of study, not only describing but also helping to produce the reality they understand (Law 2004: 5). Long-term engagement is a key feature of ethnographic research, providing, as it does, a greater depth of understanding than many other methods of the social sciences, such as surveys or even structured or semi-structured interviews. Sustained, direct contact with people through participant observation allows for a more in-depth understanding of a social phenomenon. But the research process is often unpredictable, and the knowledge that is produced does not emerge quickly, nor is it amenable to direct replication (McConnachie 2019). As Duffield (2018: 51–52) has noted, ‘participant observation cannot be rushed. Ideas and conjectures grow at walking pace, and insights and discoveries worthy of the name reveal themselves slowly’. The way data are collected through participant observation is thus not necessarily straightforward and entails more than merely a technical approach; as Ingold (2017: 23) warns, ‘[p]articipant observation … is not a technique of data gathering but an ontological commitment’. Advocating for a closer understanding of what it means to participate and to observe, Ingold (2017: 23) moreover argues that: There is something deeply troubling, as we all know, about joining with people, apparently in good faith, only later to turn your back on them so that yours becomes a study of them, and they become a case. But there is really no contradiction between participation and observation; indeed, you simply cannot have one without the other. The great mistake is to confuse observation with objectification. To observe is not, in itself, to objectify. It is to notice what people are saying and doing, to watch and listen, and to respond in your own practice. Thus, there is increasing recognition of the need for ‘[a] practice of observation grounded in participatory dialogue’ (Ingold 2007: 87) and to ‘think with’ (Strathern 2004; Haraway 2016) participants. In the same vein, recent scholarship has emphasized the importance of engaged listening to the ethnographic project, with Forsey (2010: 561) arguing that ethnography is ‘more aural than ocular, the ethnographer more participant listener than observer’. With an emphasis precisely on dialogue, the unstructured interview is similarly conducted more as an egalitarian conversation, co-producing and co-creating knowledge. For Kvale (1996: xvii), ‘[i]nterviews are conversations where the outcome is a coproduction of the interviewer and the subject’. Participatory dialogue is in this sense also an important part of the writing process (Mosse 2006). Ethnographic research thus requires time and resources, as well as (often lengthy) negotiations of access to relevant institutions and communities. This type of ‘slow’ ethnography is nonetheless, as noted by McConnachie (2019: 196), currently endangered by the increasing focus in academia and among research funders to ‘privilege[s] the creation and manipulation of “data” (statistically valid numbers, large-scale surveys, replicable findings) over the more subjective “knowledge” that is gained by immersion, questioning and reflecting’. An increase in ‘limited, drop-in fieldwork,’ is seen especially in situations of displacement crises, with Cabot (2019: 264) warning about the implications of doing ethnographic research as business: Security regimes, humanitarian intervention, and scholarship alike often find purpose and funding in sites and times of “crisis.” This aspect of the business of anthropology encourages crisis chasing in scholarship on displacement, as opposed to contesting or undermining crisis critically. Indeed, as Cabot (2019: 267) stresses, it is ‘especially in moments that appear to demand urgent response’ that we need ‘meaningful, ethnographically grounded interventions’. A recognition of the necessity of such slow scholarship is well underway in many parts of the global academy (Hartman and Darab 2012; Mountz et al. 2015). Ethnography as Attitude Ethnography is often understood as more than a set of research methods; it is, as Juris and Khasnabish (2015: 3) point out, ‘an attitude and a perspective’ as well as a ‘mode of analysis and writing’. Ethnography pays particular attention to everyday lived experiences and struggles, thereby capturing the complexity of important empirical issues. As Bianchini (2021: 5) writes about anthropology, the discipline has ‘given voice to the stakeholders, taking into account sensitive cultural, political, and religious matters, and has put emphasis on “voices from below”’. Indeed, a hallmark of ethnographic research in refugee studies is precisely the recognition of refugees’ and asylum seekers’ agency (Malkki 1996; Peteet 2005). Ethnographers’ insights into structure(s) of authority make them sensitive to issues of power—not only in what and who are researched but also in how this research is conducted. While the ethnographic method was for many years closely bound to the quasi-colonial pursuit of understanding ‘the other’, recent generations of researchers have begun shifting this focus to one that more thoroughly engages with questions of power, knowledge, reflexivity and subjectivity (Ahmed 2000; McConnachie 2019). In the field of migration studies, scholars have increasingly pointed to the geopolitics of knowledge production, and the need for ‘decentering’ global North knowledge as well as for ‘decolonizing’ migration research (Achiume 2019; Vanyoro 2019; Fiddian-Qasmiyeh 2020; Mayblin and Turner 2021). Such approaches constitute a set of alternative knowledge production strategies that pay attention to interdependencies of power, knowledge and inequality as well as to the colonially created knowledge patterns of migration research (Gutiérrez Rodríguez 2018; Amelina 2022). The ‘reflexive turn’ in ethnographic research is essentially the recognition that the ethnographer’s social position shapes the research process, relationships with research subjects, as well as their representation and interpretation of their social world (Denzin and Lincoln 1998; Collins and Gallinat 2013). It stresses the importance of reflecting on the role of social identity and positionality. Reflexivity in writing acknowledges that, as Clifford (1986: 2) holds, ethnography is ‘always caught up in the invention not the representation of cultures’ and is as such always contingent and partial. Thus, ‘even the best ethnographic texts—serious, true, fictions—are systems, or economies, of truth. Power and history work through them, in ways their authors cannot fully control’ (p. 7). Knowledge is as such also ‘situated’ (Haraway 1988: 592). Despite the growing awareness of questions of power, knowledge, reflexivity and subjectivity, critical voices are raised about the ethics of ethnographic encounters. Ethnography continues to be criticized for its ‘orientalizing and harmful potentials’ (Twigt 2022: 41). In a critique of the reflexivity turn, feminist and postcolonial scholars such as Ahmed (2000) have pointed to a risk of ethnographers becoming absorbed with themselves or reifying ‘them’ into a construction of themselves. Similarly, rather than being a relic of the past, ethnography’s emphasis on refugee stories may ‘reproduce[s] long-standing patterns in both anthropological and humanitarian thinking grounded in fascination with a suffering, “innocent” Other’ (Cabot 2019: 268). The ethnographic approach is also inherently deeply intrusive (Sukarieh and Tannock 2012). In this sense, we are reminded of Yousif M Qasmiyeh’s intimate and powerful poetry collection ‘Writing the Camp’, based on his experiences of growing up in Baddawi camp in Lebanon and heavily influenced by his interactions with foreigners and anthropologists seeking to make the camp intelligible. In ‘Anthropologists’, Qasmiyeh (2021: 17) writes that ‘Upon the doorstep you observe what they observe with a lot of care’ and ‘You suddenly develop a fear of imitating them whilst they imitate you.’ The poem closes distressingly: ‘After spending hours with us, in the same room, she left with a jar of homemade pickles and three full cassettes with our voices.’ Along these lines, scholars have increasingly insisted that some ‘refugee stories’ may be better left untold. In the words of Cabot (2019: 270): It is worth asking whether a focus on border crossers’ perspectives is welcome or productive, whether they benefit in any way from sharing their “stories” with anthropologists, and whether anthropological research is just another invasive practice that seeks to co-opt refugee experiences. Similarly, as a way of counteracting the co-optation of their stories, Khosravi (2018) advocates for a research subject’s ‘right to opacity’ in encounters with researchers, that is the right not to be known and represented. An additional way of countering this risk is moreover the recognition of ethnography as particularly apt for an action research approach, described by McConnachie (2019: 197; see also Reason and Bradbury 2001) as a combination of ‘applied social science research with action intended to progress social welfare’. In the view of MacKenzie, McDowell and Pittaway (2007: 299), researchers have an ‘obligation to design and conduct research projects that aim to bring about reciprocal benefits for refugee participants and/or communities.’ As Engle Merry (2005: 240) also reminds us, ‘academic and activist endeavors are never autonomous, despite our analytical assumptions of separateness’. While no specific ethical guidelines for research on refugee- and migration issues existed until recently, a major step forward was also the development of the Ethical Guidelines for Good Research Practice adopted by the Refugee Studies Centre at the University of Oxford (Refugee Studies Centre 2007). Since then, a broader Code of Ethics has also been developed by the International Association for the Study of Forced Migration (Clark-Kazak 2017). A growing literature similarly focuses on the ethics of qualitative research with refugees more generally, and on the ethics of ethnography more specifically (Jacobsen and Landau 2003; MacKenzie et al. 2007; Hugman et al. 2011a, 2011b; Sukarieh and Tannock 2012; Omata 2019; Müller-Funk 2021). Ethnography and International (Refugee) Law Because ethnographic methods and perspectives can be applied to study a range of legal phenomena, they are a rich tool for IRL scholars. One of the most productive sites of knowledge exchange between anthropological and legal scholarship has precisely been the field of international law (Merry 2006a, 2006b; Dann and Eckert 2021). As Sarfaty (2021: 129) observes, ‘anthropological theory and methods enable the study of how international law operates in practice, from how it is produced on a global scale to its localization on the micro-level.’ Through ethnographic research, it is thus possible to explore the social, political and economic contexts, including individual actions and power dynamics, that shape the development and practice of international law. Building on in-depth ethnographies, theories of (global) legal pluralism are also helpful in explaining the transnational circulation of global norms and local settings where these multiple orders interact (Moore 1973; Merry 2007; Berman 2012). There is a multiplicity of contradictory, intersecting and competing normative frameworks in today’s globalized world. As Darian-Smith (2020: 1) argues, these frameworks ‘are recognized as having some form of legal authority through which people imaginatively organize their social relations and everyday behaviours’. Law is thus shaped by, and shapes, networks of cultural political, and economic relations that ‘crisscross local, national, international, regional, and global domains and spatial scales’ (Darian-Smith 2013: 524). International refugee law, implemented in a space where bureaucratic-, international law- and domestic norms typically overlap and sometimes conflict, appears particularly apt to an ethnographic approach. Studies in this vein have analysed the management of asylum by state bureaucracies, domestic and international courts or international agencies, as well as the experiences of asylum seekers in their countries of asylum (Fassin 2018; Dembour 2020; Bianchini 2021). Ethnographic approaches have a major contribution to make in the exploration of the social meanings of the legal concepts of asylum and refugee as defined in international conventions (Harrell-Bond and Voutira 1992). Recently, for example, Wissing (2022) analysed forced migrants’ perceptions of (international) ‘protection’, coined by Wissing as ‘protection consciousness’. By empirically assessing legal issues, ethnography can also enrich our understandings of how IRL is implemented. A growing body of scholarship focuses on refugee experiences and understandings of the bureaucratic systems they need to navigate when seeking protection (Bloch et al. 2011; Griffiths 2012; Özkul and Jarrous 2021). In her contribution on anthropology and IRL, Bianchini (2021: 1) highlights precisely how the anthropological approach ‘shifts the focus from states, borders and citizenship towards the individual by combining and embedding human interpretations, behaviours, cultural contexts and personal interactions with the law.’ The ethnographic focus on participatory approaches is especially warranted in the study of IRL, where there is an increasing recognition also of the need for refugee law to ‘progress through dialogue among participants’ (Bianchini 2021: 4). In other words, refugees should be directly included in discussions about everything from refugee status determination to UNHCR accountability. The ethnographic approach can also shed important empirical light on why certain refugee law norms are adopted and internalized, the process by which IRL is implemented, and the interaction between legal and non-legal norms. Examples include the organizational behaviour of international institutions like UNHCR and the internalization of IRL norms in local communities. As Sarfaty (2021: 137) has observed with regard to international law more generally, ‘when legal norms are localized, they are not just transplanted but are adapted in a variety of ways.’ Indeed, ‘the implementation of law is always contingent upon a range of social and political factors that may not be obvious and may differ dramatically across particular contexts’ (Moore 2015). Finally, ethnographic approaches, including a more comprehensive conception of IRL, may help counter the ‘methodological nationalism’ (Wimmer and Schiller 2003) that currently prevails in IRL scholarship (Bianchini 2021; Cole 2021). There is a considerable geographic gap in the study of refugee law, explained by Cantor (2017) as due to an ‘international and Western bias’ towards the practice of certain States such as Australia, Canada, New Zealand, the United States, and countries in Western Europe. These states host a miniscule portion of the world’s refugees and their jurisprudence represents just a fraction of global refugee law practice. In this vein, the salience of empire and race have been pointed to as factors that have shaped the development of IRL (Chimni 1998; Achiume 2021). Three Vignettes on Ethnographic Approaches to International Refugee Law Part II seeks to further the insights discussed in Part I by offering some reflections on how I have employed ethnographic methods and ways of thinking in my own research on IRL. I pursue three vignettes: the first seeks to discuss the concept of ‘refugee’ in Lebanon, the second explores rights-claiming among Sudanese refugees and asylum seekers at UNHCR Beirut, while the third reflects over what ethnographic approaches generally can bring to the study of IRL norms in states that are non-signatory to the 1951 Refugee Convention. Lebanon and the ‘Refugee’ Concept A major area of debate in the positivist literature concerns the definition of ‘refugee’ and how it is interpreted and applied. In a context in which the legal doctrinal method has proven insufficient in describing and analyzing the legal reality facing refugees, my research with Syrian refugees in Lebanon has to a large extent revolved precisely around understanding the concept of ‘refugee’. Not being a signatory to the 1951 Refugee Convention, and long insisting that it is not a ‘country of asylum’, Lebanon essentially does not have any formal domestic refugee and asylum legislation (Janmyr 2017). This does not mean, however, that the country lacks any legal, social, political and economic structures and policies targeting Syrian refugees. Refugee protection in Lebanon is an obvious site of legal pluralism. Ethnographic approaches helped me illustrate local processes and thicken the scant legal scholarship on refugees in Lebanon. Studying the transnational circulation of IRL norms—predominantly through the interactions between UNHCR and Lebanese government entities—provided me with unique insights into the micro-level processes on the local, state and international level. The ethnographic lens particularly shed light on the many ways in which international law shapes how local and state actors approached the protection of refugees. Understanding these dynamics arguably also provided key insights into the global workings of IRL; UNHCR’s operation in Lebanon is one of its largest ever, and as Crisp (2021) has noted, the Syrian refugee response has had a broad impact on the global refugee regime more generally. With the presence of refugees being politically sensitive in Lebanon, any research into the ordering and categorization of the refugee presence is socially and politically complex. Researchers commonly need to ‘negotiate their presence in the field with local (in)formal authorities and epistemic power-holders’ (Carpi 2020). Building these relationships of trust was a time-consuming process, but one that was necessary for the integrity of my research. It was also explicitly included in the design of my research approach; rather than ‘drop-in fieldwork’ (2019: 264), I was fortunate to have both research funding and time to spend almost 3 years in Lebanon. My research data were collected through interviewing and participant observation, and participants—refugees, government officials and humanitarian workers—were carefully selected through snowball sampling. Yet, I was acutely aware of my position as a privileged white researcher from a northern European university and of how this position played out and affected the research process. If refugees, state actors and humanitarians were situated historically and politically in local and global structures of power, so was my own position. My methods and physical presence were admittedly part of the webs they sought to analyse and brought their own set of relations, experiences, personal histories and sociocultural preconceptions and practices. In this way, of course, my method helped produce the reality I describe. One obvious example is the ways in which categorizing and labelling are inherently the privilege of the most powerful actors, and how through our research on these issues we are part of migration governance systems—and thus part of the power constellations that make sense of the world in a way that is shaped in a context of power (Byrne and Gammeltoft-Hansen 2020; Stierl 2020; Skilbrei 2021). I was thus wary about the political interests I might inadvertently help to promote through this research on categories and labels. In Lebanon, the ‘refugee label’ has been politically loaded for more than a half century and my research discusses in detail why and how the Lebanese government seeks to avoid the application of that label (Janmyr 2017). In light of this seemingly fixed government position, I examined how UNHCR became increasingly juxtaposed between the principles of IRL and local views on asylum (Janmyr 2018). My research uncovered how the reluctance of the Lebanese government and UNHCR’s attempts to accommodate that reluctance entailed that Syrians were received into an intricate, ad hoc system in which some were registered as official refugees, some were not, and yet others occupied ambiguous in-between statuses. The ethnographic study of the labelling of Syrian nationals in Lebanon arguably shed light on the complexity of the intersecting structures that shape the experiences of refugees. Building upon these insights, I subsequently collaborated with political scientist Lama Mourad to explore more deeply how and with what consequences individuals fleeing the Syrian conflict to Lebanon were given various legal, bureaucratic and social labels by humanitarian, state and local government actors (Janmyr and Mourad 2018). Our work speaks to the recognition in the ethnographic study of law that is it difficult, if not impossible, to ‘differentiate between formal and informal modes of governance strictly by referring to official or unofficial settings’ (Bens and Vetters 2018: 243). We found that each legal, bureaucratic and social label given to Syrians in Lebanon reproduced a certain mode of ordering, each with its own set of implications for what a Syrian may do, how their presence is understood by others in the community, and what type of rights and protections they may have access to. We could also unpack how the emergence of labels in one arena often influenced how and why another set of labels took shape in another. This allowed us to argue that the categories do not operate distinctly and membership in one may create constraints or opportunities in another. Rights-Claiming at UNHCR Beirut Another strand of my work concerns rights-mobilization and collective action among Sudanese refugees and asylum seekers in Lebanon (Janmyr 2021a, 2022). I examined two key collective action approaches through which Sudanese refugees sought to access better protection and assistance from UNHCR: the establishment of representative refugee committees, on the one hand, and refugee protest, on the other. Through interviews and participant observation, I was able to explore the engagement(s) and relation(s) between UNHCR staff and the rights claimants, and thus, in extension, IRL in action. Extensive periods of fieldwork allowed me to understand more intimately the experiences of legal precarity among refugees, as well as the motivations and aspirations of those protesting their marginalization. We know from studies elsewhere that the capacity of refugees to engage in collective action is often severely restricted (Chimienti and Solomos 2011). By applying an ethnographic approach to this phenomenon, I was thus also hoping to respond to questions such as: What possibilities do refugees have to claim rights and challenge boundaries of rights? Through which means can potential claims for the realization of human rights of refugees be articulated? Which processes are seen as legitimate and why? For a period of a year and a half, I did ethnographic fieldwork at a protest camp that had been set up on the sidewalk outside UNHCR’s office in Beirut. I had been introduced to the protesters through my engagement with a local human rights organization that supported and knew the protesters well. Overall, I took an action research approach that combined my research with advocacy intended to progress the welfare of my interlocutors. While I did not follow up on individual UNHCR cases, I did raise the situation of Sudanese refugees in Lebanon as often as possible, including through seminars and the writing of opinion pieces, as well as in my conversations with UNHCR and other humanitarian- and political actors. Years later, I continue to follow up on the personal circumstances of several of my interlocutors, and, to the extent possible, seek to weave participatory dialogue into the writing processes that stem from my fieldwork. In addition to doing recurrent, individual interviews, I participated in the everyday ordinary activities of the sit-in and developed close relationships with several of the protesters. The individual interviews were conducted at locations other than the sit-in—at the local organization, in my own home or in the homes of the protesters—but I would continuously follow-up on some of the conversations more informally also at the camp. That said, the conversations at the sit-in were first and foremost guided by the refugee protesters themselves. This bottom-up approach allowed me to partake in the issues most salient to discuss at any one point in time; our conversations spanned everything from funeral arrangements and grief to humorous accounts of ordinary happenings in community life. The sit-in setting and my prolonged attachment to it allowed for more authentic interactions to take place than would have been the case only with more formal interviews. Yet, the obvious and intersecting, unequal power relations between me as a researcher and those whose lives and experiences I ultimately researched were ever present. My own social position inherently shaped the research process and my relationships. One blatant example is of course the relative ease with which I crossed UNHCR-protester boundaries; unlike my interlocutors, I had fairly straightforward access to UNHCR and regularly had meetings within UNHCR premises. Seeing me coming and going, my interlocutors were fully aware of this access, and there was as such also an expectation on me to further their demands in my interactions with UNHCR staff. In this sense, then, I represented an additional vessel through which the protesters could make their claims heard. Over the course of the research process, I spent much time contemplating how best to mitigate the effects of intersecting, unequal power relations. I was agonizingly aware of the limitations of the type of research I was doing and of my ability to fully understand the experiences of the Sudanese protesters. In fact, we had many conversations about this at the protest camp, and about the value that lies in even attempting to understand their situation. While some protesters initially may have had unrealistic expectations of the benefits of the research and of my ability to influence their individual cases, we had open discussions about being part of the research and what my research approach entailed. While interviewees were not financially renumerated for their participation, I did occasionally bring food items such as lentils, onions or cooking oil. At the same time, I was aware of the intrusiveness of the ethnographic approach and was as such also fearful of any co-optation of my interlocutors’ experiences and stories. While there was a general agreement among the protesters to allow my presence at the sit-in, not everyone wanted to participate in the research. A couple of individuals opted to disengage entirely with the research process, while another chose to disengage 6 months in but allowed me to use the material I had collected until that time. A difficult ethical situation also arose when one of my main interlocutors unexpectedly passed away; being dedicated to ‘doing no harm’, I initially opted to exclude them from my research but pressure from the family that their story not remain untold essentially forced me to reconsider this choice. In understanding and analyzing refugee action, I used as inspiration conceptual tools from legal mobilization- and legal consciousness studies (Burstein 1991; McAdam et al. 1996; Ewick and Silbey 1998; Bernstein 2001; Halliday and Morgan 2013). Sudanese collective action in Beirut sought not only to bring to an end the marginalization and discrimination faced by many Sudanese on a daily basis, but also to reopen closed files and to speed up resettlement to third countries. Rights-claiming through protest was by many protesters considered to be a successful strategy in the sense of being a catalyst for opening closed files and refugee recognition, and for speeding up resettlement processes (Janmyr 2021a). My work explicitly details the power relations between UNHCR and the Sudanese refugees and asylum seekers, including how humanitarian actors reify and reproduce globally circulating colonial hierarchies of race (Benton 2016) as well as the inherent tension in the policy and practice of refugee presence in and around UNHCR premises. Non-signatory States and the International Refugee Regime A third research strand in which I make use of ethnographic approaches in the study of IRL concerns the relation between the IRL regime and states that are non-signatory to the 1951 Refugee Convention (Janmyr 2021b). While 149 states are party to the Convention, its 1967 Protocol, or both, 44 members of the UN are not. The non-signatory states are commonly viewed as ‘exceptions’ (Jones 2017) to the international refugee regime, and their experiences of, and relation to, IRL have only rarely been considered to warrant closer examination. This research strand seeks to disrupt the hegemonic emphasis only on signatory states in discussions of IRL by asking questions such as: What is the influence of the 1951 Refugee Convention in non-signatory States? How do non-signatory States engage with, and help to create, the international refugee regime? The research agenda necessitates an in-depth discussion of who makes the ‘norms’ and who are the ‘actors’ making them, which, as Juss (2021: 218) has observed, are questions rarely addressed in mainstream works of refugee law. As is further noted by Dann and Eckert (2021: 1), ‘norms often emerge in complex and often continuous processes of agenda setting, negotiation, and consensus building that involve a range of actors, while various political, economic, and social factors play a role in determining participants, issues, and normative outcomes.’ A variety of actors, processes and forums beyond conventional understandings are often involved; in the case of IRL these would notably include non-governmental organizations, refugee lawyers, UNHCR, decision-making authorities and refugees and asylum-seekers themselves (Bianchini 2021). Thus, by combining ethnographic and legal methods in the examination of the practice of, and interaction between, actors on a global, national, and local level more closely, we may gain a deeper and more nuanced understanding of the interplay between IRL and non-signatory States. In the study of global institutions, ethnographic approaches may facilitate the study of organizations such as UNHCR from the top-down as well as the bottom-up. There is an emerging body of scholarship taking an ethnographic approach to global legal institutions that may well serve as inspiration to the study of global (and regional) refugee law organizations (Schia 2013; Niezen and Sapignoli 2017; Sapignoli and Niezen 2021). This type of research may, as noted by Sarfaty (2021: 132–133), uncover ‘the formal and informal norms and the decision-making processes within the institutions that shape state behavior.’ Along these lines, we may also build upon the existing, albeit limited, scholarship on the diffusion of refugee law and transnational refugee law (Goodwin-Gill and Lambert 2010; Lambert et al. 2013; Kneebone 2016; Nah 2016; Juss 2021). This literature has, for example, evaluated the extent to which European legal norms of refugee protection have been emulated in other parts of the world by focusing first on influence, and then on the processes whereby emulation of the European protection regime has occurred (Goodwin-Gill and Lambert 2010). As an extension of this, we can also draw inspiration from the broader body of interdisciplinary scholarship on the global spread of human rights norms more generally (Keck and Sikkink 1998; Goodman and Derek Jinks 2004; Goodliffe and Hawkins 2006; Hathaway 2007; Risse et al. 2013). In my work on studying the relation between non-signatory states and the IRL regime I have taken particular inspiration from Koh’s (1996, 1998) transnational legal process theory of norm compliance. Transnational legal process is ‘the theory and practice of how public and private actors—nation-states, international organizations, multinational enterprises, non-governmental organizations, and private individuals—interact in a variety of public and private, domestic and international fora to make, interpret, enforce, and ultimately, internalize rules of transnational law’ (Koh 1996: 183–184). The theory allows in particular a more precise focus on the socialization processes of legal argument and doctrine. An ethnographic approach in this strand thus spotlights the norm emergence and internalization processes by which ‘international norms penetrate domestic legal systems on the local level’ (Sarfaty 2021: 129). Building upon these theoretical and methodological insights, my work explores more closely the many ways in which IRL norms are spread and used in non-signatory States (Janmyr 2021b). One example is through the presence of UNHCR. As Goodwin-Gill (2020: 40) has noted, UNHCR’s operations, interventions and initiatives influence IRL, not least because ‘its activities can and do generate relevant practice and, in turn, lead to the emergence of opinio juris’. UNHCR thus functions as an important norm-entrepreneur in many non-signatory states; its promotion of IRL takes various forms—including through involvement in domestic legal reform and collaborations with universities—and it is often key in the creation of national spaces where State actors are socialized into the IRL regime. Conclusions The ethnographic endeavour is a fertile point of convergence to make empirically grounded and theoretically ambitious contributions to the investigation of IRL. Through its distinctive methodology of long-term fieldwork and its perspectives on questions of power, knowledge, reflexivity and subjectivity, ethnographic research can provide a comprehensive analysis of the development and implementation of IRL. As this article nonetheless emphasizes, there is no single ‘ethnographic approach’; the field is not static, rather it is dynamic and continually redefined through scholarly exchanges. A warning must thus be had about the risk of essentializing the ‘ethnographic gaze’, as well as that of co-opting the stories of our interlocutors. The ethnographic approach may indeed be inherently deeply intrusive and critical voices are thus continuously—and rightly—raised about the ethics of ethnographic encounters. This article has illustrated how IRL is typically implemented in a space where bureaucratic-, international law- and domestic norms overlap and sometimes conflict. Ethnographic approaches have a major contribution to make in the study of these spaces, including in the management of asylum by state bureaucracies, domestic and international courts or international agencies, as well as in the more informal experiences of asylum seekers in their countries of asylum. By empirically assessing legal issues, ethnography is able to enrich our understandings of how IRL is implemented. Not only may core legal concepts and debates be more deeply understood through an ethnographic lens, but ethnographic approaches—including a more comprehensive conception of IRL—may help counter the ‘methodological nationalism’ that currently prevails in IRL scholarship. Following a discussion about what ethnography is and what an ethnographic approach to IRL entails, the article provided three vignettes, each exemplifying the different ethnographic approaches to IRL that I have taken in my own work. These vignettes illustrated the value of the ethnographic approach to legal discussions on the concept of ‘refugee’; on refugee rights-claiming and rights-mobilization; and, finally, on actors and processes in the creation and spread of IRL norms. While the examples each deal with very different aspects of IRL, a cross-cutting issue in all is the recognition that ethnographic research necessitates time and resources. As has been emphasized, this type of slow-paced ethnography is currently under pressure in academia and among research funders in favour of more rapid ‘drop-in’ fieldwork and fast ‘ouputs’. Thus, the importance of carving out space for extended and reflective ethnographic scholarship on IRL cannot be emphasized enough. Footnotes 1 Interview, female protester, Beirut, 19 January 2016. 2 Doctrinal research essentially seeks to systematize, interpret and define the content of current positive law (de lege lata) and/or to offer suggestions on how the content of positive law should be changed or improved (de lege ferenda). Acknowledgements The author wish to thank Nora Milch for research assistance. 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Journal of Refugee Studies – Oxford University Press

Published: Aug 2, 2022

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