- Winter Newsletter 2023, Issue 11
- <strong>Assessing Realistically the UNHCR’s “Supervisory Responsibility” in International Refugee Law</strong>
- CARFMS 2023 STUDENT ESSAY CONTEST / ACERMF CONCOURS 2023 D’ESSAIS POUR LES ÉTUDIANTS
- CARFMS23 Call for Papers
- CARFMS/LERRN Lived Experiences of Displacement Essay Award
Assessing Realistically the UNHCR’s “Supervisory Responsibility” in International Refugee Law
by James C. Simeon
Associate Professor, School of Public Policy and Administration, Faculty of Liberal Arts & Professional Studies, York University
The 1951 Convention relating to the Status of Refugees assigns the UNHCR at Article 35, Co-operation of the National Authorities with the United Nations, that states “… shall in particular facilitate its duty of supervising the application of the provisions of this Convention.” And it further specifies that States undertake to provide “… (c) Laws, regulations and decrees which are, or may hereafter be, in force.” To ensure that the 1951 Convention is applied and interpreted appropriately and consistently across States Parties is a vital task that the UNHCR is expected to fulfil in an effort to ensure that all those who claim refugee protection are treated justly and fairly.
Before seriously considering UNHCR’s role as the UN agency with the responsibility for supervising the application and interpretation of International Refugee Law, one should take note of some fundamental and, rather, basic points. It is important to keep in mind that the UNHCR is not the only UN agency that oversees the protection of refugees, writ large. There are, of course, UNWRA (United Nations Relief and Works Agency for Palestine Refugees in the Near East), IOM (International Organization for Migration), and UNICEF (formerly the United Nations International Children’s Emergency Fund and now formally the United Nations Children’s Fund). There are many organizations outside the United Nations that service the forcibly displaced including, of course, the International Committee of the Red Cross (ICRC), Amnesty International (AI), Human Rights Watch (HRW), the International Rescue Committee (IRC), Refugees International (RI), Save the Children, Médecins Sans Frontières (MSF), among many more international humanitarian organizations. The UNHCR’s approved budget of 2023 is about $10.211 billion US, with a total staff of about 19,000 working in some 137 countries, and with 91 percent of its staff working in the field. However, it is also important to keep in mind that the UNHCR works with many other organizations to deliver its services to refugees. In fact, 40 percent of the UNHCR’s budget is entrusted to its partner organizations who deliver programs and projects for those who are forced to flee. It is also worth noting that UNHCR is virtually entirely dependent on voluntary contributions for its operations and that 85 percent of these funds come from governments and the European Union.
Further, it is trite to note that some countries are refugee producing and others are refugee receiving countries. All UN member States are obligated to support the work of the UNHCR in the fulfilment of its onerous duties of protecting refugees. But, clearly, not all countries have the capacity to do so. Indeed, the work of the UNHCR requires it to be in those countries that are experiencing refugee flows and often within the context of “mass forced displacement,” as a consequence of armed conflict, and, typically, “protracted armed conflict.” This is most evident by the fact that 69 percent of all refugees and Venezuelans come from a mere five countries: Syrian Arabic Republic; Venezuela; Afghanistan; South Sudan; and Myanmar. This does not include all of those who have been forcibly displaced by the war in the Ukraine. Since Russia’s brazen full-scale aggression of Ukraine on February 24, 2022, there has been an additional some 14 million people displaced, both internally and externally. This has increased the number of forcibly displaced people in the world to well over 100 million.
The ”supervisory responsibilities” of the UNHCR under Article 35 of the 1951 Convention and Article II of its 1967 Protocol, directly apply to State Parties to those refugee rights instruments. However, this applies to 149 State Parties to either/or, or, to both international instruments out of the 195 States in the world today. This leaves about 46 States or about one quarter of the world’s States who have not ratified these or any other international refugee rights instruments that are concentrated mostly in the Middle East and Southeast Asia. Further, given the varying capacities of States and the fact that some States Parties to the 1951 Convention and 1967 Protocol are entirely dependent on the UNHCR, and other UN agencies, and donor States for their subsistence, it is the UNHCR that bears the responsibility for servicing the refugees within those States’ territories. Other States are on the other end of the capacity spectrum and can afford to deliver services to refugees in conjunction with the UNHCR.
It is evident that in many situations and circumstances, it is the UNHCR, with the consent of the States involved, of course, that are delivering services to the refugees, whether it is RSD (refugee status determination), refugee camp assistance, the provision of water and food, other essential supplies, medical services, and the like. “Supervisory responsibility,” in these instances, would be perfunctory or superfluous, at best, would it not? For those States that are on the other end of the capacity spectrum and are also probably the most desired resettlement countries by refugees, are those where the “supervisory responsibilities” are most relevant and most likely to come into play.
The Meaning of Supervisory Responsibility
Here it might be useful to make a distinction between concepts such as coaching/capacity building, monitoring/observing adherence to standards, and compliance/upholding standards that are, I think, encompassed to some degree, in the notion of “supervisory responsibility.” It seems counterproductive and futile, to say the least, to impose a compliance model in a situation where the State does not have the capacity to adhere to whatever the international standard may be for the provision of refugee protection. They cannot meet the needs of their own population, for instance, yet are expected to service refugees. In this instance, the UNHCR is clearly assisting those States to build their capacity to assist the refugees who are seeking asylum within their borders.
The matter is different, of course, where States have the “ways and means” to protect refugees but then fail to do so. In those cases where a State is not adhering to its legal obligation to protect refugees, the UNHCR has to play a compliance “enforcement role” to encourage States and urging them to fulfill their legal obligations. This raises a further and perhaps more important question: “Given the situation and circumstances of the UNHCR, how can it best realize its “supervisory responsibilities” in those situations where States have the capacity to protect refugees?”
Keep in mind that the UNHCR must answer to its Executive Committee (EXCOM), the United Nations Economic and Social Committee (ECOSOC), and the UN General Assembly (UNGA). Many of the State Parties are, of course, members of its immediate governing bodies as well as being its principal donors. Given this context how does UNHCR try to achieve its “supervisory responsibilities” for International Refugee Law? Let me give you a few concrete illustrations.
- The UNHCR is one of the largest RSD organizations in the world. It not only conducts its own RSD under its Statute or Mandate, but it conducts RSD on behalf of States or in collaboration with States.
- It is important to point out that the UNHCR can observe any refugee status determination hearing as an observer, provided the refugee applicant and their representative approves.
- Regular meetings are held between the senior officials of the refugee adjudication tribunals of the State and UNHCR officials to discuss concerns and areas that require improvement.
- UNHCR officials are available to assist in training refugee law adjudicators on issues of concern.
- The UNHCR maintains RefWorld, an online refugee law platform, for all those involved in refugee law decision-making. It issues its UNHCR Guidelines on special issues in international refugee law. Prepares amicus curia briefs for high profile and potentially landmark refugee cases.
- UNHCR consults with governments when they are contemplating legislative, regulatory, and policy changes dealing with refugees in their jurisdiction.
- And, if the situation arises, they will intervene with the Government of the day to seek to have a failed refugee applicant’s case be reconsidered, after all court appeals have been exhausted.
- It promotes events to raise the awareness of the contribution of refugees to their host societies such as World Refugee Day ceremonies and celebrations.
The multitude of interventions and overlapping and interconnected activities that take place within a single jurisdiction and across jurisdictions helps to shape the culture and environment in which refugee adjudication takes place. And, taken together across all State and non-State Parties, that is, collectively, at the transnational and international levels, it influences the shape of international refugee law and practice.
The Supervision of International Refugee Law in Practice
The UNHCR, as one actor, an international organization (IO), on an international stage, must collaborate with other humanitarian organizations and States in protecting refugees. This implies that there must be a degree of communications, coordination, and cooperation across humanitarian organizations and host States to serve effectively and efficiently the needs of those most in need, the refugees.
This can involve such broad based international legal norms as procedural fairness/due process, independence of the judiciary, the rule of law, non-discrimination, non-refoulement, respect for human dignity, and so on. These fundamental legal norms are relevant and important for other human rights treaties such as the Convention Against Torture and Other Cruel, Inhumane and Degrading Treatment and Punishment, the International Bill of Rights, Convention on the Elimination of All Forms of Discrimination Against Women, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child, International Convention on the Protection of the Rights of Migrant Workers and Their Families, Convention on the Rights of Person’s with Disabilities, International Convention for the Protection of All Persons from Enforced Disappearances.
The role of the UNHCR, like other humanitarian agencies, is premised, at least to some degree, on the four core humanitarian principles of humanity, neutrality, impartiality, and independence. The work of the UN High Commissioner for Refugees is to be of a non-political nature. But this does not imply that it is of a non-diplomatic nature.
As already alluded to, the UNHCR cannot take the same approach with all State Parties to the 1951 Convention and its 1967 Protocol. Given the capacity of the State it may take a “coaching/capacity building” approach, so that the State can meet its obligations under international law, and with other States it may simply be playing a monitoring/observing role to ensure that the State is complying with international norms, and still with others it may be more of a compliance/upholding standards role, insisting that the State follows their international obligations when they have the capacity to do so.
Given the situation and circumstances of the UNHCR, they are required to take the diplomatic approach to try to address those States that are not complying with their international obligations when they are clearly capable of doing so. This requires, undoubtedly, open communications, dialogue, and support from ‘like minded’ State Parties. This does not imply, of course, that the UNHCR will always be successful in persuading a State to mend its ways and do so.
This diplomatic approach is implied within Article 35 that does not provide any enforcement means for holding States accountable for not fulfilling their international obligations to refugees.
There are other ways in which the UNHCR might incentivize States to fulfill their responsibilities to all those who are on the move and, specifically, those who are forcibly displaced. One concrete example is their collaboration and partnership with professional associations such as the International Association of Refugee and Migration Judges (IARMJ) that bring together Justices, Judges, and independent refugee and migration law decision-makers in tribunals on a regular basis, whether regionally or internationally, to provide ongoing professional development, support and assistance, networking opportunities, as well as guidance and advice on important international refugee law issues and concerns. The IARMJ is a community of jurists who have a common task to apply and interpret the two seminal refugee rights instruments and do it consistently and harmoniously to ensure that refugee rights are protected and promoted. The IARMJ is comprised of Regional Chapters who hold their own conferences with their members in the year following the biennial IARMJ World Conferences where the UNHCR plays an important role. The UNHCR contributes to the IARMJ and other professional associations in various ways to advance common objectives such as ongoing professional development of refugee and migration law judges and decision-makers in their adjudication and appeals of claims to refugee protection to help ensure a consistent and harmonious application and interpretation of international refugee law.
The Deft Diplomatic Supervision of International Refugee Law
Any realistic assessment of the “supervisory responsibilities” of the UNHCR in International Refugee Law must be cognizant of the context in which the UNHCR, one of several UN agencies that work directly with refugees, within a vast array of other international humanitarian organizations that also work directly with refugees and other forcibly displaced persons, and given its financial and operational dependency on States and its reporting requirements within the UN, it must, by necessity, use diplomacy with the support of other ‘like-minded States,’ through both formal and informal channels, to urge and to encourage States, within a broader coalition of support, to fulfill their legal as well as moral obligations for the protection of refugees and other forcibly displaced persons.
 Convention relating to the Status of Refugees, Geneva, 28 July 1951, in force 22 April 1954, 1989 UNTS 137 and the Protocol relating to the Status of Refugees, New York, 31 January 1967, in force 4 October 1967,19 UNTS 6223, 6257.
 UNHCR, Global Focus, Budget and Expenditure, https://reporting.unhcr.org/financial. (accessed February 3, 2023), UNHCR, Figures at a Glance, UNHCR Personnel, https://www.unhcr.org/figures-at-a-glance.html. (accessed February 3, 2023)
 UNHCR, Non-Governmental Organizations, https://www.unhcr.org/non-governmental-organizations.html. (accessed February 3, 2023)
 UNHCR, Figures at a Glance, How is UNHCR funded, https://www.unhcr.org/figures-at-a-glance.html. (accessed February 3, 2023)
 UNHCR, Figures at a Glance, 69% originated from just five countries, https://www.unhcr.org/figures-at-a-glance.html. (accessed February 4, 2023)
 Centre for Preventive Action, Global Conflict Tracker, Conflict in the Ukraine, November 8, 2022, https://www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine. (accessed February 4, 2023)
 UNHCR, Operational Data Portal, Ukraine Refugee Situation, January 31, 2023, https://data.unhcr.org/en/situations/ukraine. (accessed February 4, 2023)
 United Nations, UN News, 2022 Year in Review: 100 million displaced, ‘a record that should never have been set,’ December 26, 2022, https://news.un.org/en/story/2022/12/1131957#:~:text=The%20100%20million%20figure%2C%20which,some%2090%20million%20in%202021. (accessed February 4, 2023)
 Maja Janmyr, The 1951 Refugee Convention and Non-Signatory States: Charting a Research Agenda, International Journal of Refugee Law, Volume 33, Issue 2, June 2021, Pages 188–213, https://doi.org/10.1093/ijrl/eeab043. (accessed February 4, 2023); It is important to point out that there is a League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab Countries but it has not been ratified by its member States. See League of Arab States, Arab Convention on Regulating Status of Refugees in the Arab Countries, 1994, https://www.refworld.org/docid/4dd512312.html. (accessed February 4, 2023)
 UNHCR, Refugee Status Determination, Wherein it states that the UNHCR conducts RSD under its mandate in around 50 countries. This does not include those countries where it participate in the RSD systems of those countries. https://www.unhcr.org/refugee-status-determination.html. (accessed February 5, 2023)
 UNHCR, World Refugee Day, “Each year on June 20, the world celebrates World Refugee Day.” https://www.unhcr.org/world-refugee-day.html. (accessed February 5, 2023)
 European Commission, European Civil Protection and Humanitarian Aid Operations, Humanitarian Principles, https://civil-protection-humanitarian-aid.ec.europa.eu/who/humanitarian-principles_en#:~:text=The%20principles%20of%20humanity%2C%20neutrality,are%20fundamental%20to%20humanitarian%20action. (accessed February 4, 2023), OCHA on Message: Humanitarian Principles, What are the humanitarian principles? July 2022,
https://www.unocha.org/sites/unocha/files/OOM_Humanitarian%20Principles_Eng.pdf. (accessed February 4, 2023)
 UNHCR, Statute of the Office of the United Nations High Commissioner for Refugees, General Assembly Resolution 428 (V) of 14 December 1950. Chapter 1, General Provisions, Article 2, https://www.unhcr.org/protection/basic/3b66c39e1/statute-office-united-nations-high-commissioner-refugees.html. (accessed February 4, 2023)
 IARMJ, International Association of Refugee and Migration Judges, https://www.iarmj.org/en/. (accessed February 5, 2023)