Overseeing the Refugee Convention: Taking Refugee Law Oversight Seriously

Abstract

At the Ministerial Meeting of States Parties to the 1951 Refugee Convention and 1967 Refugee Protocol held in Geneva on Dec. 12-13, states agreed formally to pursue efforts to reinforce effective implementation of their refugee protection treaty obligations. To that end, the International Council of Voluntary Agencies (ICVA), in collaboration with the University of Michigan's Program in Refugee and Asylum Law, convened a Global Consultation on International Protection in Geneva on Dec. 11. That meeting launched a process of careful review of options for the establishment of an independent supervisory mechanism for international refugee law based on a series of Working Papers.

The introductory paper, "Taking Oversight of Refugee Law Seriously," by Prof. James Hathaway of the University of Michigan Law School, makes the case for genuinely independent supervision of the Refugee Convention. In particular, it argues that scholars and activists must not be intimidated by institutional insistence that oversight of the Refugee Convention be a function exclusively of the UNHCR. The High Commissioner's duty to supervise implementation of the Convention and the more general obligation of state parties to take collective responsibility to oversee implementation of their treaty obligations are, in fact, compatible - not mutually exclusive - responsibilities.

The first four Working Papers in the series consider the usefulness in the context of the Refugee Convention of the most widely used mechanisms of treaty supervision which, as forcefully argued by Harvard?s Professor Henry Steiner, are mutually reinforcing and interdependent processes:

Working Paper No. 1 takes up the question of state reporting requirements, regularly reviewed through a "dialogue of justification" between the supervisory body and states, supported by strong non-governmental input. It emphasizes the value of carefully targeted, thematic reporting, rather than routine, generic reports; and outlines a well-prepared and forward-looking process of review;

Working Paper No. 2 looks at the possibility of a complaints mechanism under the Refugee Convention, and recommends in favor of a selective, group-based petition system as a means of injecting the voices of refugees directly into the supervisory process;

Working Paper No. 3 takes up the often-overlooked value of "general comments" issued by other human rights treaty bodies to codify their work on particular legal issues, which have had extraordinary value in influencing the work of domestic courts and tribunals. It recommends a staged process to conceive and review general comments, including an open debate in which NGOs and IGOs would participate actively;

Working Paper No. 4 proposes that the supervisory body have an auxiliary investigative capacity to supplement its reporting, complaints, and general comments functions. It stresses the importance of direct access to evidence on the ground as critical to the credibility and effectiveness of the supervisory body.

The final three papers speak to the process of overseeing the Refugee Convention:

Working Paper No. 5 draws the lessons from other treaty bodies' experience in involving both national and international NGOs in their work, and of linking the work of a supervisory body to the possibility of direct enforcement by judges and human rights commissions in state parties;

Working Paper No. 6 recognizes the importance of avoiding overlap between the work of a supervisory body for the Refugee Convention and that of other UN human rights treaty bodies, and proposes careful mechanisms of both close and diffuse cooperation with these and other oversight bodies to inspire them more effectively to take up the cause of refugee protection in their own work; and

Working Paper No. 7 makes the case for differentiating the protection work of UNHCR from that of an independent supervisory body for the Refugee Convention, and explains why it is in the best interests of both UNHCR and of states to commit themselves to an arms-length mechanism to oversee the Refugee Convention.