Wither Policy? Southern African Perspectives on Understanding Law, 'Refugee' Policy and Protection

Abstract

Global, regional and national refugee law and policy present important sites for contestation, agenda setting, normative pronouncements and symbolic action. But international and even domestic legislation seldom realize the promises of protection. In the kind of weakly legalized environments in which many self-settled refugees reside, progressive protection regimes may be far removed from the realities of refugees’ lives. Drawing primarily on research from South Africa, this paper makes a two-part argument. The first highlights the narrow practical and analytical value of focusing on legal reforms and formal ‘refugee’ policy as determinants of protection, given that legal status and documentation have only limited practical protection effects. The second argument is that even in analysing refugee policy, we must grant considerable space for bureaucratic autonomy. The paper concludes with a dual call: first, to broaden our focus of refugee law and policy to include a range of other social and political policy fields so that formal commitments to refugee protection can be translated into practical protection; second, it asks analysts to take sub-national bureaucracies far more seriously as sites of policy formation and practice. Such a perspective requires introducing a spatialized, socialized and politicized understanding of institutional incentives and operations. Together these will offer a more realistic understanding of protection possibilities through policy and illuminate the practices associated with state actions relating to the displaced.

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