Shifting the Epistemological Compass: The Decolonial Mandate for Refugee Law

Jun 24, 2026 | General content | 0 comments

By Ester Nergis Canefe

Forced migration studies has been undergoing a significant epistemological shift during the last two decades. Historically, discussions on human mobility, asylum, and borders have centered on the Westphalian state system and humanitarian models. Increasingly, a new direction is emerging, moving away from state-driven crisis management toward a global critique informed by Third World Approaches to International Law (TWAIL), post-colonial theory, critical race theory, and critical border studies. By focusing on the legacies of empire, post-imperial collapse, settler-colonial erasure, and racial capitalism, contemporary forced displacement is understood as a direct result of historical global inequalities, rather than a series of isolated events. For legal scholars and practitioners, this is not just an academic exercise; it is a structural mandate to examine how legal systems divide our shared world. In this brief commentary, I argue that the future of refugee law depends on its capacity to shed its state-centric foundations and refuse complicity in the preservation of colonial borders. Charting a course away from traditional legal isolationism, the commentary outlines three transformative legal paradigms essential for the next generation of international lawyers to engage with decoloniality: Reparative Legality over Humanitarian Aims, Jurisprudence of the Commons, and Epistemic Inversion in Legal Doctrine. Together, these paradigms would structurally transform refugee law from an instrument used to govern and manage global inequality into an active mechanism for collective liberation and borderless justice.

Dismantling Extractive Knowledge Production

Decolonizing forced migration studies requires altering our ways of how knowledge is produced, translated, and validated. Displaced populations from the Global South have often been viewed as data sources or passive recipients of Western aid, while migration theory and legal authorship has remained largely in the Global North. As Estella Carpi and Portia Owusu (2022) note, academic structures frequently overlook the historical connections between current displacement and past realities such as slavery, resulting in ahistorical legal analyses. Similarly, non-Western scholars often undergo a challenging double translation to meet Eurocentric publishing standards. Displaced academics face additional structural barriers, experiencing what Amani Akkad (2026) calls ‘academic poverty’ or even ‘academic death’ before achieving ‘academic re-existence,’ highlighting the real costs of exclusion.

To address epistemic extractivism, decolonial forced migration scholarship promotes responsibility, collaborative co-creation, and refugee-led research. Decolonial qualitative research should move beyond ‘owning’ data and prioritize accountability to the communities involved. This strategy is exemplified in the application of feminist and intersectional approaches and using arts-based methods to support resistance and self-representation among refugee women, making research outcomes clear and actionable. Overall, the decolonial approaches intentionally challenge the tendency to depoliticize refugees as passive ‘persons of concern,’ or ‘victims’, leading to the production of legal categories that obscure the imperial, military, and socio-economic violence underlying displacement. Instead, by recovering collective memory through projects like mapping Palestinian Oral Histories in Lebanon or creating anti-oppressive community archives, researchers seek to preserve histories of border control and resistance that formal legal frameworks often overlook.

Border Imperialism, Spatial Containment, and the Weaponization of Time

Contemporary asylum system, rooted in mid-20th-century European context, has often been used to contain rather than protect people from the Global South. In regions such as Southwest Asia, Africa, and Latin America, decolonial scholarship documents how state bureaucracies deliberately create precarity and ‘legal illegality’ to control and usurp migrant mobilities while denying formal rights. This form of systemic oppression is evident in several key dynamics worldwide:

  • Outsourced Containment and Externalization: The Global North leverages funding and advanced surveillance to turn transit states into containment buffers. A clear case of this is in West Africa, where migration management in countries like Senegal is shaped by external funding. Similarly, in North Africa and the Middle East, migration diplomacy and the politics of refoulement are used to obscure and manage regional deportations, such as returns to Syria, illustrating how externalization functions in practice.
  • Spatial Encampment: States often use physical containment to control mobility, in particular mass exodus due to war and conflict. In East Africa, for instance, the prolonged encampment of Somali refugees in Kenya clearly exemplifies this approach as analyzed by Mwangi (2024). In the Middle East, as Sari Hanafi (2023) examines, ‘spacio-cide’ and the biopolitics of encampment are used to manage unwanted populations. Similarly, in Turkey, Lebanon and Jordan, Syrian refugees remain in a prolonged ‘guest status,’ lacking lasting legal certainty, highlighting the costs of containment, while European Union regularly transfers funds and resources for the continuation of these practices. In fact, across the MENA region, state actors deliberately co-opt humanitarian channels to manage regional deportations. This weaponization of strategic ignorance and administrative obscuration is analyzed under the framework of the ‘agnopolitics of refoulement’ by Stel (2025).
  • Racialization and Temporary Accommodation: Border violence extends beyond physical boundaries into domestic spaces. In temporary asylum accommodations, daily racialization often criminalizes those seeking safety. Even policies presented as progressive, such as complementary labor pathways, require scrutiny through a decolonial feminist lens to assess whether they truly empower individuals or primarily serve market interests.
  • The Chronopolitics of Limbo: Time is used as a tool of control and discipline. Fragmented transit, extended asylum delays, and arbitrary legal limbo are systematically employed to exhaust and manage racialized individuals. As Kudakwashe Vanyoro (2024) observes, this ‘chronopolitics’ is central to modern border regimes, transforming administrative delays into punitive legal tools.
  • Planetarity from Below and Alternative Cartographies The need for a decolonial perspective is especially clear at the intersection of ecological collapse and forced migration. Traditional legal frameworks insist on treating ‘climate refugees’ as a new issue, separating environmental displacement from the historical context of colonial resource extraction and global capitalism, resulting in an incomplete understanding. In contradistinction, a decolonial approach promotes Planetarity from Below as argued by Zong (2026). framing environmental migration as ecological and economic reparation. Indeed, vernacular transnationalism support regional hospitality and shared survival. Legal scholars must examine these alternative pathways, such as the ECOWAS protocol in West Africa and refugee frameworks in South Asia, as alternatives to restrictive Northern asylum models. These approaches offer concrete alternatives to the legal and physical barriers that limit human mobility today when forced migration is the only means left for survival.

Expanding the Legal Lexicon: A Conceptual Baseline

To engage with these shifting paradigms, practitioners and scholars can refer to the collection of texts in the “IASFM Decolonizing Forced Migration Planetary Bibliography“. Legal researchers looking to decenter Eurocentric legal doctrine are invited to prioritize the following thematic clusters in particular as a starting point:

Legal researchers looking to decenter Eurocentric legal doctrine should prioritize the following thematic clusters, embedded with direct hyperlinks to their source records:

1. Foundational Legal and Structural Critiques

2. Border Imperialism and Regional Realities

3. Epistemic Justice and Methodology

The Future of Refugee Law

As Tuck and Yang (2012) emphasize, decolonization is not simply about academic diversification or adding new readings to our syllabi. It requires dismantling the legal, spatial, and epistemic borders that divide our world. With the limitations of mid-20th-century asylum systems now clear, refugee law must move beyond its state-centric and Europe-focused foundations. The field should shift from enforcing borders to promoting global accountability and reparative justice. Legal scholars and practitioners are now pursuing three transformative legal paradigms:

  • Reparative Legality over Humanitarianisms: Future legal frameworks should treat migration as a form of historical, economic, and ecological reparation, not as state-sanctioned charity. By linking current displacement to colonial resource extraction, post-imperial collapse, and racial capitalism, international refugee law can hold the Global North accountable for the conditions driving migration.
  • Jurisprudence of the Commons: The field must challenge Westphalian ‘sovereign exceptions and outsourced border regimes that create legal voids in transit spaces. Legal scholarship should draw on alternative, regional, non-Western, and indigenous traditions to establish binding protections that support regional hospitality, sanctuary, and shared survival.
  • Epistemic Inversion in Legal Doctrine: Legal advocacy, case strategies, and tribunal frameworks must be restructured. Instead of requiring displaced persons to conform to rigid, Eurocentric definitions, future refugee law should center the political agency, oral testimonies, and critical legal perspectives of displaced scholars and communities.

Ultimately, decolonizing the future of this field entails acknowledging that refugee law cannot remain complicit in upholding colonial borders. Sources such as the IASFM Decolonizing Forced Migration Planetary Bibliography provide a foundation for this transition. The next generation of international lawyers must reform legal institutions, transforming refugee law from a tool of maintaining inequality into a mechanism for borderless justice. This involves questioning the fundamental principles of state sovereignty, borders, and exclusionary legal categories. We must actively center refugees and internally uprooted populations as equal, sovereign partners across the full life cycle of academic research, heavily leaning on South-led, anti-oppressive frameworks. We must also embrace a radical ethics of care. While big data and automated predictive modelling are used for live tracking, without protection, they expose communities to surveillance and technological risks. Adopting a radical ethics of care ensures that informed consent leads to tangible, localized legal protections. Legal scholarship should commit to continuously building a collective repository for communal use, moving forced migration studies away from a tool of containment and toward a site of genuine sanctuary and global justice.

Professor Ester Nergis Canefe (SJD, PhD) is an international legal scholar and political theorist based at York University, Canada, currently serving as the IASFM President.  Her research is at the intersection of critical legal studies, public international law, TWAIL, and forced migration in the Global South and East. She is the author of 7 books and over 50 academic articles. 

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.

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