Bringing Law into the Political Sociology of Humanitarianism¹

1. Introduction

Over the past few years, the study of humanitarianism has emerged as an interdisciplinary subfield in international political sociology. In this article, we will map out some preliminary ideas about the role of legal sociology in this project. Humanitarianism is many things to many people. Humanitarianism is ‘an ethos, a cluster of sentiments, a set of laws, a moral imperative to intervene, and a form of government’; it is ‘one way to «do good» or to improve aspects of the human condition by focusing on suffering and saving lives in times of crisis or emergency; for instance, humanitarians provide temporary shelter, food, and medical care during wartime or immediately after disasters’.² The actors involved include affected populations, civil society, host governments, the private sector, international organisations, humanitarian practitioners, the international humanitarian sector and donors.³ Historically, humanitarian action has been linked to the normative framework of international humanitarian law (IHL), while emerging as a largely unregulated field of practice.⁴ The study of IHL has overwhelmingly been the terrain of doctrinal legal scholars, while the apparent lack of other law has meant that, until recently, legal sociologists have paid little attention to the humanitarian sector.⁵ There has also been little scholarly concern regarding the consequences of not asking questions about the role of law in the humanitarian project.

In this article, we start from the following definition of the political sociology of humanitarianism:

The constitution of humanitarian crisis and crisis responses, and how relationships between crises-affected communities, humanitarian actors, host governments and donors emerge from and shape crisis and crisis responses.⁶

This definitional prism allows us to ask questions about authority, governance, legitimacy and power in the global emergency zone. In the following, we argue that legal sociology is of central analytical value to this prism, as it focuses on the study of rules, standards and norms in humanitarian governance. Humanitarian governance is generally understood as the attempt to govern individuals and human collectivities in the name of the preservation of life and the reduction of human suffering. It is exercised through a global system of international organisations, donors, troop-contributing nations and nongovernmental organisations (NGOs) operating in parallel with, as well as across, domestic state structures to respond to and administer a permanent and globalised condition of crisis.⁷ Specifically, we argue that legal sociology helps us understand how rules, standards and norms shape and are shaped by practices and interactions within and across humanitarian spaces globally.

We also argue that legal sociology offers important perspectives on the relative lack of regulation of the humanitarian space, and on the normative orderings that occupy this space in competition with, as a substitution for, or in parallel to legal norms. Humanitarian space is not only a term specific to the field of humanitarian action, but also a key concept in the academic discourse on humanitarian action. Humanitarian space is variously conceptualised as a space within which NGOs operate, as a field of humanitarian governance, and as a site where people of concern can claim protection and relief.⁸ As scholars specifically focused on the legal aspects of humanitarian space and the evolving law of humanitarian action, we are interested in normative constructions and contestations regarding conceptualisations of aid, agency, crisis, responsibility and rights within and across different social fields of regulation and governance.

We ask a set of basic questions concerning the relationship between humanitarian governance and law: what is the relationship and legal hierarchy of competing humanitarian values? What type of authority – and legal authority – do humanitarian actors have, and how is this authority produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies? What are the normative implications of enfranchising non-state actors to partially ‘see like a state’⁹ – and what are the implications for crisis-affected communities and individuals? What does this authority allow humanitarians to do, and to the extent that humanitarian actors are held accountable, how does this happen?

We suggest that in order to situate the contribution of legal sociology within the political sociology of humanitarianism, a four-step approach is useful. First, we begin by identifying a set of trends in contemporary humanitarian action that makes a greater engagement critical. We then move to provide an inventory of the disciplinary and thematic make-up of the emergent field of political sociology of humanitarianism. As a third step, we begin to articulate how we can explore the legal aspects of humanitarian action as transnational practice. In our fourth and final move, we offer a set of specific examples of such practice. Focusing on hard law, we consider the relationship between international humanitarian law and human rights law through a legal sociology lens. Next, we look at soft law and the dynamics of regularisation and norm development. We then turn our attention to the tension between classic notions of needs-based humanitarianism and newer conceptualisations of rights-based humanitarianism that ambiguously cast humanitarian organisations as duty holders. Finally, we consider the potential for a shift towards court-ordered humanitarian practice, as illustrated by the evolving juridification of humanitarian organisations’ duty of care for their staff. Scholarly focus on the litigation on behalf of individual humanitarian workers (and beneficiaries) against humanitarian organisations will also situate a legal sociology of humanitarianism more squarely within the methodological traditions and theoretical debates of the law and social change tradition within legal sociology. A brief conclusion follows.

2. Rationale: Why Do We Need a Political and Legal Sociology Lens on Humanitarianism?

In a series of seminal contributions, the geographer Derek Gregory has popularised the concepts ‘the global battlespace’ and ‘the everywhere war’ to describe late modern war as a war that can emerge everywhere.¹⁰ Drawing on his work, we propose that the terms ‘the global humanitarian space’ and ‘everywhere crises’ are analytically meaningful ways to describe a contemporary humanitarianism that experiences significant institutional expansion and securitisation. We argue that with the rise of a global humanitarian space, vulnerabilities are differentially distributed but widely dispersed, and in consequence humanitarianism is being changed by the slippery spaces through which it is conducted.

Our starting point is three central ideas in thinking about humanitarianism: first, that humanitarian action has traditionally been understood as a short-term and charitable transnational response to human need and human suffering; second, that humanitarian action is seen as driven by an emergency ethos, where the state is often unable or unwilling to protect and aid civilians in the context of conflict or disaster;¹¹ and third, that over time, there has been a persistent idea animating debates within the humanitarian enterprise that the humanitarian space is shrinking.¹² However, today, much is in flux: it is evident that humanitarian response is often neither short-term nor transnational nor necessarily benevolent in intention or effect. It is also not evident that humanitarian space is shrinking: as for humanitarians, there are more of them, they have more money, with which they do more things in more places than ever before, under a patchwork of voluntary accountability regimes.

Humanitarian action is commonly taken to be a short-term and emergency-oriented affair. However, for international humanitarian agencies, their average time in an emergency site is often multiple years, if not decades. While a humanitarian crisis can be officially declared to have ended, the sudden-onset disaster or upsurge in violence is often replaced by contexts of ‘regular’ poverty and vulnerability to new shocks. With the shifting temporal horizon, aid organisations alter the descriptions of their work, referring for example to ‘long-term emergency aid’.¹³

Our understanding of emergencies and where and why they happen is being upended. As illustrated by the European refugee crisis, border control and security practices may be the sources of humanitarian suffering.¹⁴ It also illustrates how humanitarianism increasingly comes with a preemptive streak: while humanitarian aid was once designated to assist and protect displaced civilians, humanitarian aid is today also targeted towards protecting our way of life against migration.¹⁵ This is particularly apparent in the new configuration of the Global War on Terror, where humanitarian aid is used for stabilisation as aid is channeled towards reducing risks of radicalisation – in a slightly different version than previous stabilisation paradigms, which were geared towards stabilising weak states, building democracy (and winning hearts and minds).¹⁶ In tandem with this ‘new’ stabilisation, another old debate is being revisited (yet again), namely that of the humanitarian-development nexus. At the 2016 World Humanitarian Summit in Istanbul, the ‘new and coherent approach’ was emphasised, highlighting the need to bring ‘humanitarian, development and peace-building efforts together’.¹⁷ We are now observing a shift where aid efforts are no longer legitimised as ‘mere humanitarian’, but are increasingly justified as means to an end in tandem with security and foreign relations interests.¹⁸ The point is not the use of humanitarian and development aid as soft power in international politics, but the articulation and justification of humanitarian and development aid as politics.

As the humanitarian community has struggled with the emergencies in Afghanistan, the Democratic Republic of the Congo, Darfur, Haiti, Iraq, Sri Lanka and Syria, a persistent concern has emerged that the humanitarian space is shrinking – a shift that is resulting in serious consequences for both the protection of civilians and the security of humanitarian workers.¹⁹ Collinson and Elhawary have observed that the various definitions of humanitarian space in circulation tend to coalesce around this ‘shrinking’ notion: the space has been described, for example, as being under siege and in need of safeguarding.²⁰ The notion of the shrinking humanitarian space is both a normative claim about the proper role of humanitarian actors and a set of claims about the nature of threats to the humanitarian space. Generally, observers have attributed the shrinking of the humanitarian space to the politicisation of humanitarian aid, which is viewed as detrimental to principled humanitarian action. In Darfur, Rwanda and Sri Lanka, among others, the perceived failure of humanitarian action was closely linked to the idea that humanitarian actors were seen as political actors with particular agendas. This de facto turn away from principled humanitarian action has been blamed, variously, on donors, stabilisation politics, mission creep and the increased outsourcing of aid delivery to commercial security providers. Some observers hold that the humanitarian space is shrinking because of declining adherence to humanitarian principles.

Dandoy and de Montclos argue, however, that the departure from patterns of the past was not as pronounced as had been suggested, and they question the perceived deterioration in operating environments.²¹ Other critics of the ‘shrinking space’ narrative have observed that humanitarian operations now address a broader range of situations in a larger number of places, entailing the expansion of the international humanitarian system into active conflict zones where the objective is to ‘stay and deliver’. This points to a need for further inquiry into the legal and institutional foundations of this expansion. This line of analysis must also be coupled with an analysis of the political economy of these claims about loss of humanitarian access, which are at odds with continuously expanding budgets, activities and institutional structures, and other factors that, similarly, contradict the notion that the humanitarian space is shrinking.

3. Disciplinary Context: The International Political Sociology of Humanitarianism

In order to situate our study of law, this part provides a genealogy of the disciplinary and thematic make-up of the emerging field of political sociology of humanitarianism, as situated within the broader rising field of humanitarian studies. In parallel to the expansion of the global humanitarian system, there has been a general rise of humanitarianism as a field of study. The most significant early contributions overlapped with critical development studies, articulating critiques of the ability of international aid to deliver. From the late 1990s, and again from the 2011 Libya intervention, there has been a significant concern with the militarisation of humanitarian aid as a form of global governance in the context of humanitarian intervention, human security and R2P (Responsibility to Protect), which has resulted in a massive literature. As part of this, there has also been rising interest in the historical development of humanitarianism, and its link with the postcolonial imagination. In the last ten years, however, ‘humanitarianism’ has been taken up as a focus of inquiry in several disciplines. We are beginning to see sustained engagement with the ‘economics of humanitarianism’, for example.²²

Partly due to the specific disciplinary history of sociology itself, the emergence of a political sociology of humanitarianism has been slow. As the systematic study of characteristics and patters of human interaction, sociology has been overwhelmingly linked to the nation state, equating the study of ‘the social’ with ‘the local’, and the nation state as the parameters of society.²³ In spite of the universalising ambitions of a number of its founding figures, it has taken a long while for the discipline to expand beyond its heartland of Western industrial societies.²⁴ In consequence, sociology arrived late to the study of human rights,²⁵ and is late to the table in the field of humanitarianism too.

As a result, the disciplinary backdrop for political sociology of humanitarianism can be found mainly in the fields of anthropology and international relations (including critical security studies and borrowings from science and technology studies), all of which have had sustained engagement with humanitarianism as a field of study. Of these, anthropology with its focus on non-Western contexts, institutions beyond the nation state and fieldwork-based methods has developed the most comprehensive literature. This literature has predominantly concerned itself with how people – decision makers, donors, recipients and practitioners – interact with the discourses, institutions, symbolisms, structures, and rules of humanitarianism.²⁶ Of particular interest have been practices and representations of testimonies and witnessing;²⁷ forced displacement²⁸ and refugee camps;²⁹ as well as humanitarian goods³⁰ and medical humanitarianism.³¹ The subfield of legal anthropology has also seen a rising engagement with humanitarianism.³² In international relations, studies have been concerned with the governance of the humanitarian field, focusing on its institutional designs and issues of legitimacy and legality.³³

What we understand as the specific body of literature that can be labelled ‘international political sociology of humanitarianism’ has in recent years given rise to three different strands of thematic arguments. They focus on: (1) borders, camps, and refugees; (2) material practices of aid; and (3) humanitarian governance, including the humanitarian space and the dichotomy between care and control in humanitarian governance. The largest body of scholarship concerns that of borders, camps and refugees. Here, contributions theorise the camp and other ‘bare life’ settings such as ‘the humanitarian border’ as political and social space,³⁴ and the processes of constituting refugees and displaced people as political subjects.³⁵ Significantly, much of this scholarship overlaps with refugee studies. On the material and spatial practices of aid, and the constitution of ‘recipients’ and ‘aid workers’, international political sociology has contributed to unpack the ‘rape-stove panacea’³⁶ or examined personal protective equipment in the context of the Ebola outbreak.³⁷ Attention has been given to the humanitarian concern with shrinking space,³⁸ more recently also with a focus on the role of technology and knowledge politics in constituting a humanitarian cyberspace³⁹ and with respect to the increasing use of biometrics.⁴⁰

From this disciplinary and thematic stocktaking follows two observations. First, that humanitarianism as both empirical practice and theoretical concept transgresses physical and disciplinary borders alike, and that this underlines the need for further inter-disciplinarity. Second, and in spite of operating in the liminal spaces of society and law, humanitarianism as a field of study is not yet approached from a legal sociology perspective. Indeed, an approach attuned to the intersection and relations of law and society for humanitarian action seems to be missing in action, both analytically and as an empirical object of study. In recognition that disciplinary perspectives determine approaches as well as questions asked, the rest of this article begins to explore the conceptual and thematic specificities of humanitarianism as legal sociology.

4. Methodology: Exploring Transnational Humanitarian Spaces through Law

First, building on the intellectual origins of sociological approaches to the study of law, we provide an analytical account of how we can make sense of the transnational and multileveled character of law in the humanitarian space. Rather than an efficiency-oriented study of law ‘on its own terms’ that seeks to understand law’s internal workings, or an external and evaluation-oriented approach that focuses on the normative justifiability of law, legal sociology can be conceptualized as an external and empirically-oriented analysis of the ‘characteristics of existing systems of law, including the state and development, the causes and effects, and the functions and objectives of the institution and practices of law’.⁴¹ This latter ideal-type places law in the context of society and social sciences, as law-in-society whose basic problematique is concerned with how law influences society, how society influences law, and how law and society are co-constituted.⁴² As is clear from the previous section, a disciplinary perspective determines more closely the particular type of questions asked in external analyses of law, as it does with other social institutions.

Humanitarianism is in its many reiterations – as empirical and disciplinary field, logic and sentiment, practice and space – primarily transnational in nature. This feature distinguishes it from national and other international social phenomena, and necessitates an analytical scale that transcends a nation state outlook on society and law.

One such methodological approach is provided by the coupling of Bourdieusian sociology to international relations, where Bourdieu’s ‘methodological toolbox’ is put to work in making sense of the formation and structuring of transnational fields of governance.⁴³ The notion of ‘field’ as a research tool is used to understand how the actions of certain actors structure the social world, but also how they are themselves structured by the social world.⁴⁴ Approaching fields as relational social spaces thus enables insights into how norms, rules and practices are shaped by power dynamics, practices and interactions of its agents, and provides tools for empirically ‘mapping’ or visualising how particular fields are constituted. As a place of struggle, this approach can increase our understanding of the distribution of power within a transnational field, including the relational dynamics between people, institutions and the forms of capital at play, such as authority and knowledge, advantages, education and skills – and, not the least, legal capital.

By focusing on the valorisation of law in humanitarian action, law is brought into the political sociology of humanitarianism. This approach thus emphasises what is elsewhere undermined in analysis of international legal practices: a focus on social structures,⁴⁵ while at the same time enabling a view of the particularity of the transnational as a site of political engagement. Humanitarianism as a ‘juridified’ transnational field thus emerges as a site of conflict rather than consensus.

In this manner, we can, for example, approach the notion of humanitarian space as a humanitarian field, giving emphasis to the conflicting actors, their positionalities and the differentiating sets of discourses and values at play. And yet while the field approach enables insight into conflicts, frictions, tensions and ultimately power in the humanitarian field/space, our legal sociology brings attention to the constitutive nature of law to this project – to the way in which law and legal capital constitute a power resource among different actors in the humanitarian field/space, as well as to the ways in which legal norms structure and are structured by these relations. Although this socio-legal perspective is new to the project of humanitarianism, there is an emerging body of scholarship on the force of law and lawyers in transnational fields.⁴⁶ Our approach is not only concerned with transnational legal power networks as they travel and impact upon separate but inter-connected fields (human rights law, international criminal law, international humanitarian law, etc.), but also how legal capital forms part of non-elite behavior.⁴⁷

Here, we also draw on the legacy of legal anthropology and Sally Falk Moore’s work and conceptualisation of social fields with porous qualities, with ‘flows’ between discrete but interconnected semi-autonomous social fields within which the actors operate.⁴⁸ The local, national and international humanitarian actions and the ‘international humanitarian community’ are conceptualised as social fields with a porous quality. Using the idea of semi-autonomous fields as a lens on the humanitarian governance structure, we further situate the inquiry by placing the constitutive nature of humanitarian action at the centre of the investigation. Humanitarian practice is at once a series of day-to-day bureaucratic encounters between crisis-affected people and humanitarians, and a complex transnational practice evolving out of the intricate processes of international policymaking, the domination of specific national agendas, and the ebb and flow of particular cosmopolitan discourses. The field of interaction between crisis-affected people and humanitarians can be described as a site of overlapping and parallel normativities. For example, different from other UN organisations, the UNHCR has a mandate that furnishes it with individual clients, the ‘populations of concern’. As shown in the field of refugee studies, both as a cause and an effect of this normative plurality, this site is pregnant with conflicting interests, misunderstandings and suspicion.

Our approach thus enables insight into how fields are simultaneously structured by national/transnational legal orders while having the capacity to generate their own (non-legal) obligatory norms to which compliance can be induced or coerced. As Falk Moore notes, ‘law is imposed with uneven and indeterminate consequences, and attention is drawn to the connection between the internal workings of an observable social field and its points of articulation in a larger setting’.⁴⁹ In what follows, we show how this conceptual framework is put to use in the analysis of four thematic articulations of law in humanitarianism.

5. Thematic Issues: Socio-legal Perspectives on Humanitarian Governance and Law

To illustrate the importance of developing socio-legal analysis of the humanitarian field, this section sketches out a set of inquiries concerning the relationship between humanitarian governance and law. As we see it, the level at which questions are asked is as important as the subject-matter of those questions. One place to start such an inquiry is at the formal level of codified norms: tensions in legal hierarchies and in the relationships between ‘good’ normative frameworks like IHL, IHRL and humanitarian imperatives and principles must be identified and analysed in the particular, as these tensions have direct impact on how and where aid and protection is allocated. Another important group of questions are those asking about what type of authority – and legal authority – humanitarian actors have, and how this authority is produced and constrained through rules, norms and standards; including soft regulation, contractual practices and financial policies. The political decisions and bureaucratic practice that partially or wholly enfranchise non-state actors to ‘see like a state’ engender significant normative implications.⁵⁰ This concerns both access to and absence of humanitarian aid, as well as the manner in which it is distributed. We need to ask about the direct consequences and distributive effects for crisis-affected communities and individuals. We must identify, analyse and understand the attributes of this authority and what it allows humanitarians to do. Finally, more socio-legal focus is needed with respect to how and to what degree humanitarian actors are held accountable through legal or quasi-legal mechanisms. Here, we focus on a specific instance of court-ordered practice: the evolving norm of a duty of care for humanitarian workers.

6. Conclusion: An Empirical and Theoretical Knowledge Deficit, Boomerang Effects and the New Humanitarian Space

Humanitarianism – as a transnational practice field and a cluster of cosmopolitan sentiments – is expanding. As part of this, the field is legalising. Beyond international humanitarian law, humanitarian action is increasingly compelled and constrained by a plethora of soft law and legal discourses, and what was once a largely unregulated field of practice is now emerging as a transnational humanitarian space where authority, governance, legitimacy and power is progressively invoked through law. There is therefore a significant need to re-conceptualise this humanitarianism in terms of power, legitimacy and regimes of control and surveillance. To this aim, this article represents a first attempt at thinking through the relationship between law and humanitarian governance from the perspective of political sociology. We have reflected on the types of overarching questions asked about law in this context: how does law influence humanitarian action, how does humanitarian action impact law, and how are they mutually constitutive? We have also outlined the ways in which the sociology of law offers a methodological and theoretical toolbox for unpacking this power.

Humanitarianism’s avowedly benevolent ambitions for ordering and eradicating crisis is manifested through a global system of organisations operating within, in parallel with, and above and across the domestic state system. Yet while it is legitimated by moral universals (neutrality, humanity etc.), humanitarianism is also a field epitomising global divisions and inequalities. In this highly stratified field of humanitarian action, the individual is increasingly becoming a subject of international law. How and with what implications this development is taking place, needs further investigation. Legal sociology locates the competing values between international human rights law and international humanitarian law, and unpacks the values shaping the dynamics of soft law. In this manner, legal sociology enables critical inquiry of ‘where’ and ‘by whom’ values and legal norms are accentuated, developed or undermined, for example by drawing on its well-established research tradition on the study of legal authority and professions. Similarly, we need a more comprehensive understanding of how and to what degree humanitarian actors are held accountable through legal or quasi-legal mechanisms, including but not limited to internal disciplinary procedures, law-based sanctions (such as fines), contractual mechanisms, negotiated settlements or court cases. Inquiries of this nature will contribute to making humanitarian governance more transparent which, in lieu of democracy, is fundamental to its legitimacy.