Towards a Theoretical Account of the Refugee in International Law

Abstract

The ambition of this work is to describe what it would mean to interject the concept of the refugee into theoretical accounts of international law and to argue that this undertaking is overdue and increasingly necessary. The starting point is the twinned observations that the refugee is almost entirely absent from international legal theory, and that refugee law scholarship has rarely engaged with the dominant narratives of international legal theory. Despite being a creature of the law, the refugee is more theoretically anchored in accounts of international relations than in theoretical accounts of the law. The article begins outside legal theory, with Arendt and Haddad, arguing that work in international relations theory provides insight into how and why this inquiry is worthwhile. It then traces where refugee law scholarship has encountered theoretical accounts of international law, as well as some leading accounts where the figure of the refugee is notably absent. The article considers how a deeper engagement with the refugee informs our understandings of sovereignty, humanitarianism, and the nature of obligation in international law. It closes by advocating for a larger project of theorizing the refugee within international law.