Blog post by Associate Professor Kate Ogg, Australian National University
This blog piece was written on the lands of the Ngunnawal and Ngambri peoples. Sovereignty has never been ceded. I pay my respects to the elders of the Ngunnawal and Ngambri peoples, and all First Nations elders, past, present, and emerging. I thank them for their legal and moral leadership on refugee protection.
Zora Neale Hurston, the Black American anthropologist and author whose works were pilloried in her lifetime and lauded posthumously, described research as ‘formalised curiosity … poking and prying with a purpose’. In this blog, I suggest that the notion of ‘poking and prying with a purpose’ is a helpful way of conceiving feminist engagement with international law. Feminist international law scholarship provides an array of methodological tools to interrogate and expose the gendered nature of international law but also to envisage and build alternative futures.
In Part I of this blog, I outline what I mean by ‘feminism as method’ and why this is significant within the discipline of law. In Part II, I describe some archetypical research methods employed in feminist analyses of international law, highlight examples from refugee law scholarship and discuss how I use these methods in my research. This will serve as an introduction to feminist engagement with international law for those who are new to the field. By outlining the field through a prism of research methodology, it will also be useful for those already familiar with feminist analyses of international law. In Part III, I delve into the politics of listening, an emerging feminist international law research method, and discuss how it gives rise to new directions for feminist engagement with refugee law. The politics of listening paves the way for greater inclusion of refugee knowledges and starting a process of decolonising refugee law and policy.
Part I: Research Methods – A Lacuna in Legal Pedagogy
Traditionally, legal pedagogy does not focus on methods. Unlike our counterparts offering degrees in related subjects such as sociology and criminology and requiring students to complete a range of qualitative and quantitative methods courses, most law schools do not offer methods training beyond a basic introduction to using case law databases. Law PhD dissertations rarely mention method and, if they do, it is discussed only briefly. In other humanities disciplines, examiners would expect to see an entire chapter devoted to methodology.
My view is that as legal scholars and students, we deploy a broad range of research methods, but we do not explicitly name and discuss them – which is strange, especially for a discipline that is otherwise fixated on labelling and categorisation. Minow has published an excellent article that I recommend to all of my PhD and honours students in which she identifies and describes nine methodologies commonly used in legal scholarship. Most legal scholars and law students would recognise these approaches to legal research but may not have thought of them as forms of research methods or have named and distinguished them using methodological vocabulary.
Law PhD students are much more comfortable with theory than method. When I started writing my PhD, I included feminist and gender analysis within my theoretical framework. However, when I revisited the foundational texts on feminism and international law, I realised that it is more apt to position feminist engagement with international law as method. I outline the relationship between method and theory in feminist international law research in more detail in Part II, but my view is that, while much feminist international law scholarship is deeply theoretical, methods are what unites the field. Scholarship on feminism and international law provides techniques for how to do research (tools for ‘poking and prying’ at international law) and feminist researchers deploy a wide range of theoretical perspectives in their research but tend to steer away from building grand or overarching theories.
I think the reason why feminist international law scholarship developed in this manner is due to attempts to avoid essentialisation and homogenisation. Feminist scholarly endeavours across all areas of law have been rightly criticised for being dominated by Western scholars and liberal feminist thinking. Feminist engagement with international law has not been immune from these criticisms but, being global in nature and developing after feminist interventions in other areas of law (such as criminal and family law), the field evolved with a heightened awareness of these pitfalls. Scholars who led the creation of the field, such as Charlesworth, Chinkin and Wright, consistently stress that they cannot and do not speak for all women and that their views are shaped by their nationality, race, sexuality, and education. Unlike theories that tend to impose normative positions, I like to think that the tools used and developed by feminist international law scholars can be picked up by researchers from all backgrounds who can use them to poke and pry at international law and bring with them their own politics, perspectives, and worldviews. Thus, while much feminist international law scholarship is heavily theorised, methods are often the starting point.
Part II: Archetypal Feminist Methods for International Law Research
The classic feminist research method is asking the gender question. This does not mean that feminist methodology focusses only on women. Asking the gender question means analysing the different ways in which law impacts upon people of all genders as well as members of marginalised groups such as people with disabilities, children, religious and racial minorities, the elderly and people who are lesbian, gay, bisexual, transgender, gender diverse, intersex, queer, asexual and questioning. This includes examining how legal concepts are gendered and their gendered consequences, the gender patterns amongst legal actors (broadly defined as those who make, examine, use and are subject to international law) and how gender is constructed.
It is not possible to provide an overview of the rich and diverse ways feminist international law scholars have asked ‘the gender question’, so a few examples must suffice. The leading text on feminist and international law is Charlesworth and Chinkin’s The Boundaries of International Law. An example of how they ‘ask the gender question’ is their analysis of the gendered nature of language deployed in international law. They highlight that, in most contexts, the state is spoken about in masculine terms but is feminised when attacked. Manchanda documents how local women’s groups across Asia are left out of peace negotiations. Fynn-Bruey highlights that in international law-making fora concerning Indigenous peoples, female Indigenous representatives are overwhelmingly from higher income countries and Indigenous women from middle- and lower-income countries are underrepresented. Kapur criticises international law texts and international law scholars (including Western feminist scholars) for depicting women from lower- and middle-income countries as in need of saving which, she argues, reproduces rather than challenges patriarchal structures.
As with all research methodologies, there are risks and pitfalls in ‘asking the gender question’, one being a tendency to stereotype. Darwuni confronts this methodological challenge in her research on female African judges on international courts and calls out the tendency to speak about the experiences of ‘African women’ as if they are a homogenous group. She puts forward ‘matri-legal feminism’ as a conceptual framework that encapsulates different experiences, diversity and positionality but also recognises ‘the role matriarchy plays in the legal dissonance of African feminist thought’.
There are myriad examples of ‘asking the gender question’ in refugee law scholarship. Briddick observes that there are far fewer female refugees in Dublin Regulation cases. Arbel examines the different consequences for male and female refugees who are returned to the US pursuant to the US/Canada Safe Third Country Agreement. Tuitt highlights the gender discrimination inherent in refugee law’s exilic bias. In launching the Oxford Handbook of International Refugee Law, Judge Charlesworth observed that there are more female than male contributors in the Handbook and, while this is noteworthy, warned that some fields of scholarship can start to become devalued once female dominated.
Charlesworth and Chinkin use the metaphor of an ‘archaeological dig’ to describe the layers involved in asking the gender question. I found this analogy very helpful in analysing Kenyan forced encampment jurisprudence in my recent monograph, Protection from Refuge, which was based on my PhD. The first Kenyan case of this nature did not include any female petitioners. However, digging deeper into the judgment revealed that the Court included references to women refugee’s experiences, and these were central to its reasoning. Digging further, crucial to the decision was the notion of ‘vulnerability’ in Kenya’s Constitutional Bill of Rights, which is a highly gendered concept.
Identifying and analysing boundaries and binaries is another classic feminist research method. For feminist international law scholars, this means interrogating rules of law (such as treaties and custom) but also the issues that lie outside of law – those deemed irrelevant or insignificant. For example, one of the key issues in early feminist international law scholarship was the lack of explicit recognition in international law that sexual violence and domestic violence can amount to international crimes and human rights violations. While welcoming legal reforms addressing these issues, more recent feminist research highlights that international law provides women with a narrow framework in which to discuss their experiences of violence, serves to stereotype them as victims in need of saving and downplays their agency and acts of resistance.
Much of the feminist scholarship in refugee law that employs boundary and binary identification as a method is focussed on jurisprudence. When examining decisions by courts, tribunals and treaty bodies, identifying boundaries requires an investigation of both what the decision-maker took into account and also what factors were ignored. The most striking examples I came across in my PhD research were two decisions concerning article 1D of the Refugee Convention and, specifically, whether a Palestinian refugee’s decision to leave their place of habitual residence could be considered ‘forced’. One decision concerned a Palestinian man who was a photojournalist and had been shot at by Hamas and the Israeli army while documenting human rights abuses in Gaza. It was accepted that he was ‘compelled against his will’ to leave Gaza due to these threats to his life. However, the same decision was not reached for a Palestinian woman in Lebanon who was subject to forced marriage. Given the androcentric nature of the development of international law, it is perhaps easier to persuade a decision-maker that potentially lethal physical harm occurring in a public space would lead to involuntary departure as opposed to the prospect of forced marriage, which involves myriad harms that would most probably occur behind closed doors.
A related research method employed in feminist international law scholarship is ‘searching for silences’. Much of my research focuses on jurisprudence and I code judicial decisions in the same way a social scientist would code a narrative interview to identify themes. Often what is the most revealing aspect of this exercise is not discovering what was said but what was left unsaid – what were the themes that did not emerge or rarely emerged? In my PhD research, I was surprised to discover that issues of gender were not discussed across significant areas of jurisprudence. This led me to engage with Arbel, Dauvergne and Millbank’s book Gender and Refugee Law: From the Margins to the Centre – a rich and ambitious work focussing on refugee status determination. Searching for silences as a feminist method prompted me to grapple with why gender, which had gone ‘from the margins to the centre’ in refugee status determinations, remained peripheral or even absent in other areas of refugee law such as effective protection.
If feminism in international law scholarship is best understood as method, or a repertoire of methods, what does this mean for theory? I don’t want to be understood as drawing a hard distinction between method and theory – the two are intricately linked and feminist international law scholars have made significant contributions to theories of international law, such as fragmentation. One way I have approached the connection between method and theory is through a grounded theory approach. I use feminist methods such as identifying boundaries and binaries and searching for silences to identify themes and then I examine these themes through related feminist and critical theories. For example, the theme of vulnerability dominated the Kenyan and European jurisprudence I examined in my PhD, and this provided a link to Fineman’s and Nedelsky’s work on vulnerability. Race and the positioning of the Global South was a fixation in Article 1D and internal relocation jurisprudence, which prompted a connection to Tuitt’s feminist critical race scholarship and Achiume’s work on refugee law and empire. Emerging ideas from New Zealand decision-makers about international solidarity provided a bridge to Kritzman-Amir’s scholarship on refugee protection and feminist ethics of care.
Kritzman-Amir’s work on how international solidarity can be rethought is particularly instructive for feminist refugee law scholars. Otto highlights that future-imagining – envisaging future possibilities unshackled from existing structures and assumptions – is a key aspect of feminist international law scholarship. Kapur’s monograph on the futurity of human rights drawing on alternative non-liberal, non-Western epistemologies is an excellent example. I have drawn on feminist restorative justice theories to reposition normative grounds for providing refugee protection. Feminist judgment rewriting methodology is another form of future-imaging – depicting how judicial decisions could promote gender justice and gender equality if legal frameworks and legal institutions were freed from patriarchal ideas and influence. This is poking and prying with a purpose. In some areas of international law, feminist ideas have been transformative (albeit with unintended consequences) and the influential nature of feminist ideas in international refugee law has been documented and dissected.
Part III: New Directions for Feminist Engagement with Refugee Law
One of the most recent monographs on feminist approaches to international law is Heathcote’s Feminist Dialogues in International Law. Heathcote encourages scholars to embrace feminist methodologies to examine gendered assumptions and biases in foundational concepts in international law. A feminist method weaved throughout Heathcote’s work, which I think has salience for feminist refugee law scholars, is ‘the politics of listening’. Heathcote explains that the ‘diversity of transnational feminisms, and their histories, is continually pushed to the peripheries in exchange for projects of gender law reform that assert a narrow gender agenda’. As an Australian citizen living and working in the UK, the approach Heathcote takes to the politics of listening in her monograph is to surface scholarship written by First Nations Australian feminists and Black British feminists.
The politics of listening as a feminist method opens novel possibilities and challenges for feminist refugee law scholars. One question is whether the politics of listening extends to surfacing and listening to refugee voices and, if so, how do we do this? Part of my PhD required an investigation of the different meanings of ‘refuge’. I examined how scholars from a variety of disciplines understand this concept and to include and listen to refugee voices I drew on refugee memoirs.
Many researchers, especially those with a social science or anthropological background, would not condone the use of memoirs as a substitute for interviews or ethnographic fieldwork. However, I posit that it is, in some respects, a more genuine and ethical way of hearing and including refugee voices in scholarship. Unlike participating in an interview, a refugee who decides to write their memoir does it entirely on their terms. They are in complete control of how they tell their story with multiple opportunities to revise and rewrite and they can do so at times appropriate for them as opposed to being forced into a researcher’s timetable. Purchasing a published memoir also provides meaningful compensation to refugees in the form of royalties as opposed to the tokenistic (and often patronising) means of recognition favoured by university ethics committees. Purchasing multiple copies for personal use and donating to local libraries increases royalty revenue and enhances the memoir’s circulation and audience. These stories become more widely read as opposed to an interview transcript that remains with the researcher with only snippets being quoted in published scholarship. Unless published in open access platforms, these fragments of refugee stories will remain inaccessible to most outside the academy.
Of course, using refugee memoirs means only hearing select refugee voices. Refugees who have the necessary structural supports to publish their memoirs are often those who have established themselves in a higher-income country. I am not suggesting that use of refugee memoirs should wholly replace other research methods, therefore. But it is an underutilised way to engage in a politics of listening.
A commitment to the politics of listening as a feminist method requires a careful and considered approach to academic citation and an openness to different sources and forms of scholarly voice. In Heathcote’s deft hands, the citations of First Nations and Black British feminists initiate a dialogue and enable Heathcote to ‘write these voices into [her] thinking as a strategy of political listening’. The Australian First Nations scholars Heathcote quotes at length, are ones who were held up for me, when I was a law student in an Australian university, as leading legal scholars, and Heathcote treats them as such. But Heathcote reminds us of Charlesworth and Chinkin’s discussion of how privilege derived from nationality, class and race means that only certain people are in a position to produce the type of scholarship traditionally valued in the Western academy. This means that to engage in the politics of listening, we must be open to sources and styles of writing that may not fit with the rules and requirements set by the academy.
Having a more open mind is particularly crucial for feminist engagement with refugee law. I was humbled by an exchange I had recently with an emerging scholar. This person was seeking feedback on article that she hoped to submit to a leading journal. This person is a fluent but not a native English speaker. Part of my advice was that she should consider engaging some copy-editing assistance just to polish the language a little to suit the journal’s expectations. In an entirely polite and graceful rebuke of my advice (for which I am very grateful), she told me that she was not educated in a British boarding school, did not speak like someone who was, and wanted her genuine and authentic voice to shine through.
The politics of listening raises conundrums for refugee scholars living and working in settler colonial societies. Considering that many female First Nations Australian legal scholars are leaders in the field of international law, Heathcote’s engagement with their ideas, while innovative, is a natural fit in a monograph on international law. The connection is less straightforward for refugee law scholars. Dauvergne highlights that there is minimal scholarship on migration and refugee law and policy that engages with First Nations’ laws and perspectives. There is growing body of scholarship on First Nations’ laws and legal systems and First Nations’ critiques of, for example, colonial constitutional law or criminal law. However, refugee and migration law scholars have been slow to look beyond international and colonial law to consider how First Nations law may respond to or regulate asylum or migration. Also, First Nation elders and legal scholars are rarely invited to provide their perspectives on refugee and migration law and policy.
Rich material is available if we look outside the traditional refugee law cannon. Perera and Pugliese write about the ‘freedom flotilla’ that carried Aboriginal passports to refugees on Manus Island. The passports were ‘signed by a number of Indigenous elders’ and ‘mark the ongoing assertion of Indigenous sovereignty in defiance of the settler state’s violent refugee policies’. Solonec, a Nigena woman and the Indigenous rights manager at Amnesty International Australia, was vocal during the Syrian conflict about First Nations Australians’ lack of participation in refugee policies. She said: ‘It’s all being done without our participation and this is our land, you know, we need to be involved in those discussions. … We’re not racist, you know, we’re open to other people with different colours and dark skin like us, so I think we’d be a little bit more open minded about who comes here if we were allowed to talk and be part of the conversation’. As part of my research on international solidarity I have highlighted First Nations Australians’ activism in fights for justice for Palestinian refugees and the ways in which some Palestinian Australians support Indigenous rights movements.
My new project seeks to further engage with a politics of listening. Co-led with scholars from refugee backgrounds, it is based on feminist judgment rewriting methodology and involves scholars with lived experience of displacement and migration rewriting judicial decisions concerning refugees and migrants. The politics of listening is a research method that allows us to poke and pry at international law with a purpose. A more inclusive approach to law and policy making and legal pedagogy may be far off, but we are developing the tools to envisage this future and lay the foundation stones.
Dr Kate Ogg is an Associate Professor and Associate Dean at the Australian National University. Her recent monograph, Protection from Refuge: From Refugee Rights to Migration Management, was published by Cambridge University Press in 2022. In 2021, Kate was awarded (with Prof Susan Kneebone and Dr Anthea Vogl) an Australian Research Council grant to undertake the first comprehensive study of Australia’s refugee community sponsorship programs.
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