Introduction

UNHCR envisages that the outcome of the first track will be an affirmation by States Party to the Refugee Convention supporting the underlying principles of the Convention. This affirmation will now take place at a Ministerial Meeting hosted by the Swiss Federal Council and UNHCR at the Palais des Nations in Geneva on 12 December 2001. It is the first such meeting of States Party since the adoption of the Convention: discussions are on-going about how to make the meeting more substantive in terms of outcome. A number of NGOs will be invited to attend the meeting.

Other than a re-affirmation of the value of the Refugee Convention and Protocol the substantive issues which are possibly going to arise at the Ministerial Meeting are:

• Accession to the Refugee Convention and/or Protocol and the withdrawal of geographical and temporal limitations on their application.
• Accession to the Statelessness Conventions.
• The withdrawal of reservations to the Refugee Convention and/or Protocol and the withdrawal of reservations concerning immigration, asylum and nationality to other human rights treaties.
• An improvement in the mechanisms for monitoring implementation of the Refugee Convention and Protocol.

1. Accession to the Refugee Convention and/or Protocol

About 137 States have acceded to the Refugee Convention or Protocol. A key aim of the Ministerial Meeting on 12 December 2001 is to ensure that more States become Party to the Convention and Protocol, especially in Asia. A connected aim will be to ensure that those States which have acceded to the Refugee Convention or Protocol drop any limitations concerning geography or time. Accession and the lifting of geographical and temporal limitations are closely linked with the issue of responsibility-sharing for refugee protection (see issues under Track 3).

The limitations concerning geography and time are different from reservations to the Refugee Convention and Protocol. The Refugee Convention was initially designed to deal with post-World War II refugees in Europe and contains an in-built limitation to those refugees, which can be lifted by a declaration from a State Party. Most States have lifted the limitations, but some, such as Turkey, have not. This means that Turkey does not recognise non-Europeans as refugees under the Convention.

2. Accession to the Statelessness Conventions.

In contrast to the number of States who are party to the Refugee Convention and Protocol, relatively few States have acceded to the Statelessness Conventions. These are:

• The 1954 Convention relating to the Status of Stateless Persons;
• The 1961 Convention on the Reduction of Statelessness.

UNHCR has a mandate for stateless persons and has been given responsibility to promote accession to the Statelessness Conventions. There is a close connexion between statelessness and refugee status: the absence of state protection is an essential element in the status of refugee. The connexion is especially obvious where denial of citizenship is based on one of the reasons in the Refugee Convention.

For someone who has been stateless prior to the occurrence of persecution, the country to which a stateless person cannot return is usually the country in which they have previously been living. If someone is forced to flee his or her country of former habitual residence then they are usually unable to return and have no right in international law to do so. In cases where a stateless person is found not to be a refugee then the Statelessness Conventions may apply, making accession by a host State to the Convention of critical importance. The Statelessness Conventions should be used more readily in the assistance of stateless persons than they are at present, and should lead to an appropriate status more so than now.

A related question is the invocation of Article 1D to deny refugee status. This Article should not be invoked to exclude a refugee unless it can be shown that the United Nations agency, which is mandated to take care of the person, has both an assistance and a protection mandate and is able to fulfil these responsibilities in practice. In particular, as a refugee will, by definition, be outside the area of the agency's mandate the asylum determination authorities must prove that the refugee can return to the agency's area of competence.

3. the withdrawal of reservations to the Refugee Convention and other instruments.

Aside from the limitations referred to above, a number of States have made reservations to the Refugee Convention and Protocol. For a full list of countries which have made reservations see the text of the Convention and Protocol at www.unhcr.ch/refworld/refworld/legal/instrume/asylum/1951eng.pdf in English (the document is available in French too). Many of the reservations refer to incompatibility with national law and it is not possible therefore to make any general suggestions about the withdrawal of reservations as this will depend upon national context. Interestingly, a number of European states- Belgium, Netherlands, Luxembourg, Italy, Germany and France- objected to the wide-ranging reservation of Guatemala upon accession in 1984 concerning compatibility with the Guatemalan Constitution.

The question of compatibility of the Refugee Convention with national law and which takes precedence is an important issue which could be raised at the Ministerial Meeting. Several countries have adopted refugee legislation which, in effect, amount to reservations to the Refugee Convention. These range from how the Article 1A(2) definition of a refugee is interpreted in the national context or what rights are granted to a refugee upon recognition of status. The Ministerial Meeting is a good opportunity to ask States to reflect upon their national legislation for compatibility with the Refugee Convention and Protocol and promise to make changes where necessary.

A related issue is an effective regional reservation to the Refugee Convention made by Member States of the European Union (although Belgium and Sweden have announced they will not apply the provision). The "Spanish Protocol" to the Treaty of Amsterdam limits asylum in EU states to "third country nationals", i.e. people who are not citizens of the EU. This limitation of the Refugee Convention's application on grounds of national origin is inconsistent with Article 3 of the Refugee Convention. The Spanish Protocol introduces, in effect, a geographical reservation, which is incompatible with the Protocol and is prohibited by Article 42 of the Convention, which does not allow reservations to certain provisions of the Refugee Convention, including Articles 1, 3 and 33.

A large number of countries have made reservations concerning immigration, asylum and nationality to the Convention on the Rights of the Child, including Germany, Indonesia, Thailand, Japan, Mauritius and the United Kingdom. Many of these reservations are wide-ranging and are incompatible with the object and purpose of the Convention, which is to protect all children, wherever they may be.

4. Improving the monitoring mechanism of the Refugee Convention.

A specific element of UNHCR's international protection function is its supervisory responsibility, as contained in paragraph 8 of the UNHCR Statute: this right and duty on the part of UNHCR to intervene corresponds to States' treaty obligations in this area, as foreseen by Article 35 of the Refugee Convention, Article II of its 1967 Protocol, Article VIII of the 1969 OAU Refugee Convention, and Recommendation (e) of the 1984 Cartagena Declaration. Pursuant to Article 35 (2) (b and c) of the 1951 Convention, States undertake to provide UNHCR, in the appropriate form, with information and statistical data concerning the implementation of the 1951 Convention, including laws, regulations and decrees relating to refugees.

The rationale behind UNHCR's supervisory function is the general idea that international supervision by an international organisation is indispensable for a functioning framework of international co-operation and to prevent the collapse of such a system. In the context of refugee protection, it is important to ensure the resolution of refugee problems and common interpretation and implementation of international refugee law on the basis of objective evaluations and judgements.

The following are essential elements for UNHCR to fulfil its supervisory duty effectively:

1. Monitoring: UNHCR is entitled to monitor refugee status determination and treatment in respect of individual cases, with a view to identifying major protection problems, and to recommend that Governments should contribute to achieving rapid solutions to such problems.
2. State reporting: UNHCR should follow up on the application and implementation of the Refugee Convention and Protocol as well as applicable regional instruments in various Member States, including national practice and procedures for the recognition of refugee status, and submit a report to the Executive Committee on the subject. Governments should co-operate with UNHCR in matters relating to the implementation of the international refugee instruments. In order to facilitate UNHCR's supervisory role, they should provide information and statistical data concerning implementation.
3. UNHCR access: UNHCR shall be given prompt and unhindered access to asylum applicants, refugees and returnees and shall be allowed to supervise the well-being of persons entering reception centres, camps or other refugee settlements. UNHCR may monitor the personal security of refugees and asylum-seekers and take appropriate action to prevent or redress violations thereof.
4. Right to contact UNHCR: asylum seekers and refugees, including those being detained, shall be entitled to contact UNHCR and should be duly informed thereof.
5. Participation in refugee status determination procedures: UNHCR may participate in various forms in procedures for determining refugee status. It may be necessary for UNHCR, with the consent of the authorities of the asylum country, to certify that a person is considered a refugee within the UNHCR mandate.
6. UNHCR advisory services: UNHCR should provide constant advice on the practical application of the provisions of international refugee instruments by countries exposed to large-scale influx of refugees. As for the application of the cessation clauses, UNHCR should be appropriately involved. It is considered important to maintain a constant dialogue on developing standards of protection with Governments, non-governmental organisations and academic institutions and to fill lacunae in international refugee law, particularly regarding asylum-seekers and the physical protection of refugees and asylum-seekers. The fact that UNHCR issued a Handbook relating to procedures and criteria for determining refugee status and that UNHCR was asked to circulate significant decisions on the determination of refugee status is indicative of UNHCR's role in any harmonisation process.
7. State practice: States' support of the various elements of UNHCR's supervisory function has found an important expression in the above-cited Conclusions of the Executive Committee. In general, most States foresee, at a minimum, an advisory-consultative role for UNHCR in national refugee status determination procedures. UNHCR is notified of asylum applications, is informed of the course of the procedures and has guaranteed access to files and decisions which may be taken up with the authorities, as appropriate. UNHCR is entitled to submit its observations on any case. Asylum applicants and refugees are granted access to UNHCR and vice versa, either by law or administrative practice. In some countries, UNHCR is more substantially involved in special procedures at the airport or in expulsion and deportation procedures affecting asylum-seekers and refugees. To ensure conformity with international refugee law and standards, UNHCR is entitled to seek to influence the legislative process and is generally requested to provide comments on and technical input into draft refugee legislation and related administrative decrees.

While the above paragraphs set out the basic framework for the exercise of UNHCR's supervisory role, there are areas that require further examination. These include the following:

1. in view of differing interpretation regarding the content/application of provisions of the international refugee instruments, the question of possible measures to reach a common understanding of these provisions;
2. State reporting as a whole in the refugee protection context;
3. the question of institutionalising a constructive dialogue with States Parties to the international refugee instruments on their implementation at regular intervals (with a comparison with the human rights treaty monitoring bodies); and
4. measures of enforcement, including models of international supervision that could usefully be adapted to the international refugee protection context.

ICVA will be working on the issue of an improved monitoring system for the Refugee Convention and will provide further substantive contributions during the year.