The contribution of the UNHCR Executive Committee to the development of international refugee law.

• Author: Corkery, Allison

Abstract

In recent decades, the rapidly changing character of modern refugee situations has not been paralleled by similar advancements in the international protection regime, established more than fifty years ago. Aside from the 1967 Protocol, there has been no new treaty-based response to these changes. This has created a 'gap' between the responsibilities delegated to UNHCR and the often limited treaty obligations accepted by States. As a consequence of the limited advancement of international refugee law at the treaty level, less formal 'soft law' standards are required to complement the provisions in the 1951 Convention. This article focuses on the potential of the Conclusions on International Protection adopted annually by the Executive Committee of UNHCR to provide such standards. In particular, it examines how the normative influence of the Conclusions might be enhanced so that they may play a greater role in the progressive development of international refugee law.

Introduction

Where there is law and principle, so there is strength and the capacity to oppose. Where there are merely policies and guidelines, everything, including protection, is negotiable, and that includes refugees. (1) Since the creation of the modern refugee law system in the early 1950s, both the nature and scope of the refugee situation has changed dramatically. At the end of 2006, the total number of persons of concern' under the mandate of the Office of the United Nations High Commissioner for Refugees ('UNHCR') had increased to 32.9 million, with the vast majority located in developing countries. (2) However rapid changes in refugee situations have not been paralleled by similar developments in international refugee law. Aside from the 1967 Protocol to the Convention relating to the Status of Refugees, (3) there has been no new treaty-based response to the changing refugee situation. This has created a 'gap' between the responsibilities entrusted to UNHCR by the international community and the often limited obligations that have been formally accepted by States. (4) As reflected in the opening quote, this gap has led to inconsistent interpretations of the international refugee instruments, and has left areas in the international legal framework for the protection of refugees undefined; challenging the ability of the framework created by the 1951 Convention relating to the Status of Refugees ('1951 Convention') to respond to these new refugee situations.

Despite this challenge, the 1951 framework is not obsolete, although to respond more effectively to the changing character of modern refugee situations, it needs to be supplemented. However the increasing regionalisation of refugee problems and the growing membership of the United Nations ('UN') have made it difficult to achieve the consensus required for the introduction of any new universal treaty on refugees. (5) For this reason, it is necessary to consider how the development of 'soft law' standards and principles can supplement the refugee protection framework to provide an alternative means to ameliorate this gap.

This article focuses on the Conclusions on International Protection adopted annually by the Executive Committee of UNHCR, as one possible means of influencing States, to fill some of the current gaps in the international protection regime. Although the Conclusions are not binding on States, the Executive Committee is the only specialised forum for the development of international refugee law standards at a global level. (6) The Conclusions therefore have the potential to have significant normative influence as an expression of the consensus of the international community on a specific protection matter. Despite, this however, they have generally been afforded relatively low status internationally. The aim of this article is to look at how the status of the Conclusions as a whole (while acknowledging that the specific content of a particular conclusion will affect its status) can be enhanced, so that they may play a greater role in the progressive development of refugee law.

To achieve this, Part 1 of this article provides a background for evaluating the Conclusions by looking at the role that the Conclusions were set up to play in the development of refugee law. Noting the obligation on States to advance international protection standards, it examines the development of the Executive Committee and the Conclusions process to consider how it might be a means to advance protection standards. As part of this examination, it analyses the status of the Conclusions as a form of 'soft' international law. Part 2 goes on to evaluate the factors that contribute to the normative significance of the Conclusions, demonstrating that there are weaknesses in the Conclusions process which detract from their potential significance. These weaknesses are considered further in the final part, which makes recommendations for how the status of the Conclusions may be enhanced.

1. Establishing the Role of the Conclusions

The international refugee protection regime consists of two key instruments: the 1950 UNHCR Statute and the 1951 Convention. This part begins with an overview of the development of this regime, demonstrating the disparities between the often limited, legally formalised obligations of States contained in the Convention and the increasingly expanded responsibilities of UNHCR. Having established that the principles in the international protection regime require further development, it then goes on to examine what obligations do exist on States to develop further standards in international refugee law.

In order to consider how this obligation might operate to require States to follow the Executive Committee's conclusions, this part then examines the history and evolution of the Executive Committee, specifically looking at the development of the Conclusions process. This examination reveals that there is nothing in the Committee's mandate which creates an obligation on States to follow the directions in the Committee's Conclusions. Although this is generally overlooked in practice, this shortcoming remains unresolved. The part concludes with an analysis of the status of the Conclusions as a form of 'soft' international law.

1. The Evolution of the International Refugee Regime

   Rather than granting control over the protection system to an international authority, such power remains firmly a State prerogative under the 1951 Convention. (7) As Professor James Hathaway argues, the result of this State-centred approach is to allow a substantial 'margin of discretion' in the interpretation of the Convention. In practice, the effect has been a further narrowing of the protection system, particularly since the end of the Cold War, with developed States applying increasingly restrictive interpretations of the Convention to build up a 'maze' of restrictive asylum practices, such as visa controls, deflection measures and complex determination systems. (8) In contrast to increasingly restrictive State action, the responsibilities entrusted to UNHCR have expanded significantly over the last 50 years in response to the needs of refugees in situations of large population displacement. The UNHCR Statute allows the UN General Assembly and the Economic and Social Council ('ECOSOC') to amend the High Commissioner's mandate (9) and also requires the High Commissioner to follow policy directives given to him or her by the General Assembly or ECOSOC. (10) Since the inception of UNHCR, both the General Assembly and ECOSOC have made amendments pursuant to these provisions, expanding UNHCR's mandate ratione personae, significantly beyond the actual provisions contained in the Statute.

   Events in Eastern Europe in the mid-1950s encouraged the first of what has now become a long succession of instances where UNHCR has been directed to act beyond the narrow compass of the Convention, when in 1956 the General Assembly passed a resolution authorising UNHCR to coordinate assistance following the uprising in Hungary. (11) The progressive development of UNHCR's mandate has expanded its competence to cover five main categories of 'persons of concern': refugees and asylum seekers; stateless persons; returness; internally displaced persons; and persons threatened with displacement or otherwise at risk. (12) This has resulted in the establishment of a broader institutional mandate for UNHCR, covering a wider range of displaced persons not falling within the narrow Convention refugee definition (13) and allowing for UNHCR involvement in the coordination of humanitarian aid programmes in Africa and Eastern Europe. (14)

   The consequence of this expansion has been that the legal basis for UNHCR's mandate has become both dynamic and fragmented. The 1950 Statute no longer encompasses the entire mandate of UNHCR, as activities that may have originally been outside UNHCR's competence have been later integrated by General Assembly Resolutions. (15) Furthermore, the divergence between the obligations of States established in the form of treaty law, and the responsibilities entrusted to UNHCR, creates, as Hathaway describes, a 'two-tiered protection system', which gives States the authority to administer refugee law in a manner consistent with their own national interests, but that falls far short of meeting the needs of refugees in a comprehensive manner. (16)

2. States' Obligation to Advance International Protection Standards

   It is clear that the further development of international refugee law is envisaged in both the Convention and the UNHCR Statute. Under paragraph 8 (a) of the UNHCR Statute, the High Commissioner is responsible for 'promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto'. (17) UNHCR acted on this competence in its role in the preparation of the 1967 Protocol; its involvement...