Working Paper No. 3: General Comments

1. Periodic reporting, complaints systems and general comments are three distinct activities that can be demonstrated to interact pervasively and should be considered as closely related, interdependent activities of a tripartite system of human rights supervision.1. The adoption of general comments, or "comments directed to all state parties that clarify states' obligations and interpret the substantive provisions of a given treaty or covenant,"2. is an often assumed but generally overlooked third important function of any supervisory body.3. General comments serve to enrich the tripartite system by rounding out the specificity of the first two functions and broadening their scope of authority.

2. First, comments can be used to universalize particular recommendations and decisions arrived at through reporting and complaints mechanisms respectively. The generalization of committee decisions and recommendations promotes their implementation through domestic legislation and application to specific cases by national decision-makers. More importantly, general comments lend a significant degree of legal authority to committee conclusions, as they have been conferred considerable weight by national courts throughout the world.4.

3. Second, general comments function as a means of providing authoritative guidance to a broader group of states than would be encompassed by the first two mechanisms (reporting and complaints)independently. Comments can be used to address states which are not parties to the Refugee Convention and which therefore have no obligation to submit reports or be scrutinized under a complaints mechanism.5. Indeed, UNHCR could legitimately look to general comments as guidance for its activities in states which are not parties to the Convention, and in setting the minimum conditions for assistance to such states.

4. Finally, general comments can be used to reinforce the necessary linkages to other international human rights organs and the international legal system as a whole.6. The general comments issued by a supervisory body for the Refugee Convention would ideally reflect determinations by other treaty bodies that significantly impact refugees, and may even draw upon the jurisprudence of national decision-makers. Through general comments the committee may lend its authority to UNHCR guidelines and documents as well.

5. To these ends, it is important that general comments remain firmly grounded in reality and avoid abstraction to the point of irrelevance. Comments should be delineated with the appropriate measure of specificity and structured on the concrete foundations of real life facts extracted from reporting recommendations and complaints decisions.

A. ExCom Conclusions, DIP Notes and Position Papers

6. The Executive Committee of the High Commissioner's Programme ('ExCom') and the Department of International Protection ('DIP') of the United Nations High Commissioner of Refugees ('UNHCR') both generate normative standards which, in rough terms, parallel general comments: ExCom 'conclusions,' DIP 'notes' and 'position papers.' The EXCOM conclusions have been accorded significant jurisprudential weight, due to UNHCR's role under Article 35 of the Refugee Convention; DIP notes and position papers, while of lesser legal and political weight, nonetheless benefit from greater substantive specificity.

7. ExCom conclusions, though not formally binding law, have been accorded "considerable weight" by national decision-makers with regard to the interpretation of refugee law.7. For example, the New Zealand Refugee Status Appeals Authority has stated that, by virtue of Article 35 of the Refugee Convention, the "conclusions of the Executive Committee of the UNHCR Programme… while not binding upon the Authority, are nonetheless of considerable persuasive authority."8. The House of Lords went so far as to quote ExCom conclusion 39 on 'Refugees, Women and International Protection' outright as per se on accurate statement of international law. 9.

8. Early on, ExCom conclusions were standard setting and illuminating propositions that expounded upon fundamental principles of refugee law. Of note were the conclusions reached in 1977 (No. 8, XXVIII) on determination of refugee status and 1981 (No. 22, XXXII) on protection of asylum-seekers in situations of mass influx.10. Later, ExCom conclusions became less probing and insightful, taking on a more perfunctory tone.11. The thought of ExCom "developing … or for that matter, even seriously discussing…" fundamental standards of refugee protection in the early nineties was noted as "almost impossible to imagine."12.

9. ExCom continued to evade serious debate throughout the 1990s, though a number of crucial protection issues required examination and refugee rights were being eroded. The situation was made worse when ExCom refused to affirm the legal importance and authority of its own conclusions.13. ExCom member States at times exacerbated the problem by issuing oral reservations to conclusions upon their adoption.14.

10. The substantive value of ExCom conclusions has not shown a marked improvement in recent years. The conclusions still lack overall specificity and fail to remark on fundamental refugee issues. For example, compare the most recent ExCom conclusion on the registration of refugee and asylum-seekers (No. 91, LII) from 200115. to the ExCom conclusion on the protection of asylum-seekers in situations of large-scale influx (No. 22, XXXII) from 1981.16. No. 22 was written in reaction to a "particularly acute" problem of refugee law, mass influxes, and uses commanding language to ensure the protection of refugees and their basic rights. On the other hand, No. 91 speaks mostly to procedural issues, using language of concession and creating latitude for states to compromise the protection of refugees.

11. More specifically, No. 22 singles out "the fundamental principle of non-refoulement," in a dedicated paragraph, and calls for the principle to be "scrupulously observed" in "all cases." 17. On the other hand, No. 91 "acknowledges the importance of registration" as a tool of protection against various problems, couching refoulement in a long list of problems and equating it with such concerns as family reunification.18.

12. UNHCR currently describes EXCOM conclusions as "not formally binding" though "relevant to the interpretation of the international regime,"19. reflecting national decision-makers recent affirmation of their legal legitimacy.20. However, UNHCR confuses matters by adding that the conclusions "constitute expressions of opinion which are broadly representative of the views of the international community." 21.

13. The implication that ExCom conclusions are mere 'expressions of opinion' detracts from the fact that conclusions are meant to clarify states' obligations and to interpret the substantive provisions of the Refugee Convention. Conclusions are not intended to encompass 'broad representative' views and summarize concerns, but to guide the understanding of refugee law through specific principles, arrived at by debate and through the consensus of member States. ExCom conclusions should expound upon international refugee law in a serious, probing and illuminating way.

14. This is not to convey the idea that UNHCR does not ever seriously contemplate the important issues of refugee protection. DIP position papers and notes address pressing refugee protection concerns, and have a tendency to do so in a probing way.22. These documents, though substantively serious, are however perceived to be insufficiently democratic in origin and authoritative in political pedigree to actually generate significant follow-through by national decision-makers. DIP position papers, rather than outlining a general topic for debate, are meant to clarify the position of UNHCR on specific topics of international concern. These documents are, also, usually drafted in isolation, without the consultation of outside experts, and are often issued without calling for further input or discussion.23.

15. For example, one of DIP's most recent position papers, interpreting Article 1 of the Refugee Convention,24. a topic of obvious magnitude, was issued without the consultation of outside experts or anyone beyond DIP. It stands as a transparent and unequivocal example of the non-democratic nature of the documents. As well, DIP's position paper on the 'Internal Flight Alternative' 25. appears to have been authored by departmental officials who did not take account of the extraordinary jurisprudential evolution that had been occurring on the subject. As a result, the New Zealand Refugee Status Appeals Authority explicitly rejected the DIP position paper on the grounds of its insufficiency.26.

16. In sum, even though ExCom conclusions carry significant jurisprudential weight, their relevance is in serious jeopardy due to their perfunctory tone and growing lack of specificity. More so, the weight accorded the conclusions by national decision-makers is minimized by ExCom's own disregard for their legal significance. DIP's notes and position papers have greater substantive specificity, yet lack significant authoritative value and legal legitimacy due to the fact that they tend to be drafted in an insular fashion.

B. General Comments Under Other UN Human Rights Treaties

17. All of the six bodies established under United Nations human rights instruments adopt general comments or recommendations. By April of 2001, the Human Rights Committee ('HRC'), the Committee on the Elimination of Discrimination against Women ('CEDAW'), and the Committee on the Elimination of Racial Discrimination ('CERD') had each adopted well over twenty general comments; the Committee on Economic, Social and Cultural Rights ('CESCR') fourteen; while the Committee on the Rights of the Child ('CRC') and the Committee against Torture ('CAT') each only one.27. In the past thirty years, a total of ninety-five comments or recommendations have been adopted by the UN human rights treaty bodies, this compared to the ninety-one adopted by ExCom alone since 1975.

18. The accumulated general comments of the UN human rights treaty bodies range from those spelling out internal procedures of the committees to others making interpretations of the substantive provisions of their respective covenants. Examples of more procedural comments are CESCR's first comment, setting out the requirements for reporting by states, 28. and the CERD recommendation from 1982 on overdue reports, which also invited the General Assembly to take note of states' failures to live up to their obligations under the Convention on the Elimination of Racial Discrimination.29.

19. Comments more substantive in nature resemble CAT's first comment on the implementation of article 3 of the Convention against Torture 30. and CESCR's comments from 1998 on the domestic application of the Covenant and the role of national human rights institutions in the protection of economic, social and cultural rights.31. Collectively, the general comments from the UN human rights treaty bodies comprise a fairly comprehensive and reasonably detailed interpretation of human rights law, developing significantly throughout the years.32.

20. Obviously, the underlying philosophy of general comments has changed and the texts have matured since the early seventies. General comments were first developed as a concession to the concerns put forth by the socialist members of the HRC, who strongly opposed critical evaluation of human rights conditions in any particular country.33. The compromise achieved was the formulation of comments addressed to all states, the focus of which was the interpretation of the substantive provisions of the convention.34. Facts discovered through state reports and the examination of cases under individual complaints procedures were obscured and used only to inform the development of the comments. With the dissipation of the East-West conflict, an egress from the compromise struck during the Cold War era began to emerge; recommendations directed at particular state parties were allowed to develop alongside general comments.

21. The best among the general comments of the HRC articulate not only a resolute position in an ordered way but also advance thought on difficult topics; they encourage debate while spreading and deepening the relevance of the International Covenant on Civil and Political Rights ('ICCPR') to human rights and international law.35. HRC General Comments No. 24 and 25 clearly stand out as purposeful decisions that articulate the linkages of human rights policy to international law in an illuminating manner.36. HRC General Comment No. 15 exemplifies a recommendation that expounds upon a general rule, guaranteeing civil and political rights for citizens and aliens without discrimination, in such a way that other treaty bodies and even national decision-makers could find highly relevant and meaningful, particularly in the refugee context.37.

22. It is important to remember that the sophistication of HRC comments developed over time; the first among them were more descriptive in nature whereas the latest provide a comprehensive interpretation of particular provisions of the convention.38. The first recommendations of CEDAW were short and more narrowly focused, resembling resolutions more than comprehensive legal analysis.39. As CEDAW developed, their recommendations became more extensive and sophisticated interpretations of the convention as well.

23. In 1991 CEDAW set up a long term program for producing general recommendations on substantive matters. Since then, CEDAW has adopted four substantial general recommendations that elaborate the content of convention norms: No. 19 (1992) concerning violence against women; No. 21(1994) on equality in marriage and family relations; No. 23 (1997) relating to women in public life; and No. 24 (1999) on women's health.40. Looking ahead, CEDAW has suggested that future recommendations should draw directly on the comments of other treaty bodies,41. and has even considered issuing joint recommendations on relevant concerns.42.

24. The comments of CESCR, have from the beginning tended towards expansive interpretation.43. Although the recommendations by CERD have changed noticeably over the years, they remain more descriptive than analytical, taking the form of pseudo-resolutions.44. The first comment by CRC, adopted just this year, is remarkably encyclopedic and draws directly from comments by other treaty bodies.45.

25. ExCom stands virtually alone as the UN body on a slide away from more expansive and illuminating comments towards those lacking specificity and more perfunctory in tone. In light of developments in the use of general comment by other treaty bodies, it is evident that in the refugee context comments must not only expound upon the Refugee Convention in a serious, probing and illuminating way, but also synthesize and demarcate the necessary linkages between and amongst refugee law, human rights law and international law more generally. In the refugee context, general comments should be used to ensure that the comments made by other treaty bodies on cognate rights are in fact taken into account, resulting in a synthesis of thought by experts in refugee-specific and more general areas of human rights law.

C. Benefits of General Comments: Few Shortcomings Overall

26. The challenges associated with periodic reporting and complaints mechanisms do not apply to general comments or observations. First, general comments are readily contextualized and function as a means for providing authoritative guidance to a broader group of states than would be encompassed by the first two mechanisms independently. As well, general comments benefit from the advantages of being flexible in their timing, open to evolution through revision and independent of a single set of facts; a committee can be proactive as well as reactive to situations in the creation of their observations. Finally, general comments are fundamentally transcendental, in that they encompass a variety of factual circumstances and are directed at all state parties; they are therefore clarifying, norm-creating and quasi-adjudicatory in nature as well.

27. The need for contextualization is easily satisfied, due to the fact that general comments "necessarily rely on documents and interpretations stemming from the works of other treaty bodies."46. When drafting comments, committees generally begin by surveying their own jurisprudence and practice, in the light of existing standards and the experience gained by other treaty bodies.47. The observations of the committee should therefore reflect refugee determinations outside their own recommendations and decisions. The supervisory body should take into account not only comments by other human rights committees, but also guidelines and documents issued by UNHCR. The supervisory body may even want to consider jurisprudence developed by national decision-makers.

28. Timing does not play as crucial a role as in the case of reporting. There is flexibility within the function of general comments that allows for development over time, resulting in well thought-out and sophisticated documents which come closest to presenting a consensus view. The supervisory body is not bound to produce text by a given date, but can instead take several sessions to concentrate its decision-making; treaty bodies have in fact taken several years to adopt comments of greater relevance.48.

29. Updates and revisions of comments can be accomplished without the fear of disturbing years of precedent, as is the case with complaints decision-making.49. New developments in the field of refugee law specifically and international law generally, can be most easily incorporated by the supervisory body through the use of general comments. Most uniquely, the supervisory body can react either subsequently or proactively in its creation of observations and incorporation of developments, as comments are not wholly dependent on specific facts for their creation.

30. The transcendental nature of general comments lends a clarifying or sharpening effect to the other functions of the committee.50. By elaborating and universalizing the effect of specific recommendations or decisions, the committee promotes the implementation and application by national decision-makers of the principles they embody. General comments help to encourage debate outside the convention, spreading and deepening the relevance of the issues articulated throughout the international community.

31. In the sense that they are rules formulated on a conceptual basis, comments are also norm-creating.51. Via norms, state parties gain insight into the actions required of them to comply with their obligations, which results in a more precise assessment of noncompliance in the future.52. Under a tripartite system, general comments may take on a quasi-adjudicatory character since their formulation is based on the consideration of specific facts illustrated by the reporting and complaints mechanisms.53.

D. Drawbacks of General Comments: the Pitfalls to be Avoided

32. It is from the abstract quality of general comments that the flaws derive. Foremost, general comments, being general by definition, have few boundaries and may encounter problems of appropriate scope and authority. Second, comments are open to manipulation, since they are essentially normative tools entrusted to implementation largely by domestic actors. Lastly, general comments have no formal authority to bind state parties, making the legal significance of comments dependent upon the esteem with which the supervisory body is held.

33. As methods of expounding, recommendations and decisions have some advantage over general comments because they stem from actual reports or complaints. Recommendations and decisions, "grow out of concrete controversies and facts that can enrich the discussion, set boundaries to an opinion, and lend reality to the committee's argument and decision."54. Without the harness of reality, the use of comments can lead to overreaching in scope and abuse of authority.

34. To abate concerns about such overreaching and abuse, general comments should function as part of a tripartite system in which reporting, complaints and comments function as interdependent tasks. The discussions surrounding general comments should derive substance from the broad review of particular issues via reports, and specificity from the factual circumstances uncovered via complaints. Under the tripartite structure, reality should govern every debate of the supervisory body, informing its decisions and imparting the necessary concrete structure to set boundaries for its scope and authority.

35. As is also evident from the review of general comments, in the hands of a majority of the committees, comments tend to substantially evolve overtime. It is the committees like HRC and CEDAW that are conscious of the linkages to the cognate recommendations of the other treaty bodies that tend to have developed significant comments. The tripartite structure could help to ensure the progress of general comments, through the shared evolution with reports and complaints decisions. Ultimately, it is up to the supervisory body to ensure that the proper linkages and conclusions are drawn from the informed debate.

36. Finally, it is generally noted that comments carry no formal authority to bind state parties. Rather like committee recommendations and decisions, the influence of comments rests "primarily on the quality of the argument put forth, and on the degree to which they expound a particular covensant in a serious, probing and illuminating way.55."

37. In the refugee law context, general comments have already been conferred significant legal status; as stated above ExCom conclusion have been accorded considerable weight by the national decision-makers. 56. Much of the authority of the ExCom conclusions is derived from the status of ExCom under Article 35 CSR51 of the Refugee Convention however.57. To the extent that the authoritative status of the proposed supervisory authority can be tied to Article 35 of the Convention, the legal significance of the general comments would likely be enhanced.

E. Procedures for Generating General Comments

38. HRC currently creates general comments within a closed session and issues them without advance warning. In order to promote the relevance of the comments and to engage states more deeply on issues of concern, it has been suggested that HRC should revise its procedures, first issuing a draft proposal of general comments.58. IGOs and NGOs, along with states, would be then invited to submit comments in an open forum.

39. CEDAW recently adopted a new, more public approach to its preparation of general recommendations, which allows the committee to take advantage of the expertise of its members, as well as to secure the input of other UN treaty bodies and NGOs.59. First, CEDAW runs a general discussion and exchange of views on the subject of the proposed general recommendations. Specialized agencies, other UN bodies, and NGOs are encouraged to participate, and to submit informal background papers. Second, a member of the committee, aided by the secretariat, draws the results of the discussion into a first draft. A working group discusses the draft, and once again NGOs are invited to participate. Finally, a revised draft is complied and distributed to all experts of the committee, who consider the draft with a view to its approval. The new system, encouraging wide UN system and NGO input, promises to improve

F. Summary

• The use of general comments, as the third interdependent function of a tripartite approach to overseeing the Refugee Convention, would enable the supervisory body to universalize particular recommendations and decisions arrived at through reporting and complaints mechanisms, thereby promoting their implementation through domestic legislation and application to specific cases by national decision-makers. General comments would lend a significant degree of legal authority to supervisory body conclusions, and also function as a means for providing authoritative guidance to states which are not parties to the Refugee Convention. Moreover, comments could be used to designate the necessary linkages among the Refugee Convention, other international human rights instruments and the international legal system as a whole, by reflecting comments by other treaty bodies that significantly impact refugees.
• National decision-makers now discouraged by the lack of significant guidance in most EXCOM conclusion would have an alternative source of authoritative interpretation.60. ExCom conclusions are in jeopardy of decline due to the current failures of the committee to impart minimal guidance which is specific and clear. The fact that DIP attempts to offer this badly needed guidance and specificity in its work does not resolve matters; the notes and position papers authored by DIP are often created in an insular fashion, resulting in their being found democratically deficient, and therefore of questionable legal authority.
• The fundamentally abstract nature of ExCom conclusions is their most fatal flaw. The fact that ExCom works in isolation, engaging few other than state representatives in debate, and reviewing only DIP notes to inform its discussions, severely diminishes the relevance of its conclusions. The lack of involvement by other than states severely limits the effectiveness of ExCom and DIP conclusions and guidelines. NGOs and IGOs must be meaningfully engaged in a discussions and debates in order for a supervisory body to be effective in its generation of serious, illuminating and probing general comments.
• General comments would allow the supervisory body to contextualize its decisions. With the use of general comments, the supervisory body could be proactive when dealing with particularly pressing issues of refugee protection.
• If conceived as part of an integrated tripartite system, many of the pitfalls of general comments could be avoided. The real life facts, gleaned from reports and complaints, would be the foundation for every debate and inform the supervisory body's general comments, imparting the necessary concrete foundation to abate problems such as overreaching and abuse. A tripartite system would limit the abstract character of general comments, remedying the problems of scope and authority.
• The procedure for adopting general comments might involve three fundamental stages. During the first stage, there would be an open debate of the proposed refugee protection issue held in a public forum. NGOs and IGOs would be encouraged to participate and to submit informal background papers to the committee to inform the debate. At the second stage, an initial draft of the comment would be issued, drawing upon the previous debate. The draft would then be subject for further debate, once again including NGOs and IGOs. Finally during the third stage, the committee would privately consider a revised draft of the comment with a view to its approval.

1.H. J. Steiner, 'Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?', in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 21.

2.See id.

3.L. MacMillian and L. Olsson, 'Rights and Accountability' from the website http://www.fmreview.org/1012.htm (FRM 10 April 2001) (making the case for the creation of an independent, impartial and effective body that has three main functions: securing reports, receiving complaints and advising on the interpretation the Convention.)

4.W. Kalin, 'Supervising the 1951 Refugee Convention: UNHCR's Role Under Article 35 CSR51,' a background paper commissioned by UNHCR and the Carnegie Endowment for International Peace as a background paper for the 2nd Expert Roundtable in Cambridge UK (9-10 July 2001) p. 8 (citing UK and US caselaw, stressing the point that conclusions offer significant guidance to questions of interpretation even though they do not carry the force of law); see also Y. Iwasawa, 'The Domestic Impact of International Human Rights Standards: The Japanese Experience' in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 259 (noting that the South African Constitution explicitly calls for the consideration of international law and Japan's Osaka High Court declared in 1994 that "general comments... should be relied upon as supplemental means of interpretation.")

5.R. Brett, 'Monitoring the protection of refugees: some thoughts and comments on Walter Kalin's paper' p. 3 (stating "clearly no system which did not address the Non-State Parties to the Convention/Protocol would be really satisfactory.")

6.Steiner, supra note 1 at pp. 20-21 [discussing the second role of the Human Rights Committee as "part of a complex structure of international human rights organs, both universal (some formed under the UN Charter and some under human rights treaties) and regional" going on to state that the Committee's role under its the covenant "and as part of an international system are in some measure complementary and interdependent." This same dual role is relevant to any supervisory body of the Refugee Convention.]

7.Kalin, supra note 4 at 8 (stating "while British Courts, for a long time, insisted on the non-binding nature of such documents and their corresponding irrelevance for judicial proceedings, their attitude has been changing recently.")

8.Refugee Appeal No. 1/92 Re SA, 30 April 1992 New Zealand Refugee Status Appeals Authority (noting the Authority's reference to ExCom conclusions on several occasions and citing both Article 35 and Sztuckiin in support of the proposition that conclusions are "sound in substance and consonant with the letter and the humanitarian spirit of both [the Refugee Convention] and other binding instruments relating to refugees…")

9.House of Lords, R v Immigration Appeal Tribunal and another, ex parte Shah; Islam and others v Secretary of State for the Home Department, (1999) 2 AC 629, (1999) 2 All ER 545 per Lord Hoffman.

10.G. Goodwin-Gill and D. Petrasek, 'The 44th Session of the UNHCR Executive Committee: A View from the Side', 6(1) International Journal of Refugee Law, 1994, pp. 63-65. (noting the 1977 and 1981 conclusions set out fundamental standards of refugee protection.)

11.UNHCR ExCom Conclusions, 'General Conclusion of International Protection', (No. 71 (XLIV) - 1993); see also UNHCR ExCom Conclusions, 'Personal Security of Refugees, (No. 72 (XLIV) - 1993); and also UNHCR ExCom Conclusions, 'Refugee Protection and Sexual Violence, (No. 73 (XLIV) - 1993).

12.Goodwin-Gill and Petrasek, supra note 18 at 63-65.

13.See id. at 63-64 (citing a lack of any general affirmation of the importance and authority of ExCom conclusions in the 1993 conclusions and recounting that both ExCom and UNHCR remained silent despite lobbying by NGOs on the very point.)

14.See id. at 64 (recounting that, at the adoption of the conclusion ensuring refugees fair procedures, the German Government issued a 'note verbale' to the ExCom secretariat stating that its own interpretation of the relevant paragraph did not preclude Germany from returning asylum-seekers to third countries.)

15.UNHCR ExCom Conclusions, 'Conclusion on Registration of Refugees and Asylum-seekers', (No. 91 (LII) - 2001).

16.UNHCR ExCom Conclusions, 'Protection of Asylum-Seekers in Situations of Large-Scale Influx', (No. 22 (XXXII) - 1981).

17.See id. at para. II.A.2..

18.UNHCR ExCom Conclusions, 'Conclusion on Registration of Refugees and Asylum-seekers', (No. 91 (LII) - 2001) para. (a).

19.UNHCR, 'Conclusions on International Protection', website http://www.unhcr.ch/cgi-bin/texis/home/.

20.Kalin, supra note 4 at 8.

21.UNHCR, 'Conclusions on International Protection', website http://www.unhcr.ch/cgi-bin/texis/home/.

22.UNHCR Position Paper, 'Gender-Related Persecution', January 2000; see also UNHCR Position Paper, "Relocating Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called 'Internal Flight Alternative' or 'Relocation Principle')", February 1999.

23.B. Simma, 'The Examination of State Reports: International Covenant on Economic, Social and Cultural Rights,' in The Monitoring System of Human Rights Treaty Obligations (ed. E. Klien, Berlin Verlag, Berlin, 1996) pp. 41-42 (noting that the most important aspect of abstract determinations, which lend a 'sharpening' and clarifying effect to reports, is first and foremost "the general discussion of a given topic... to which both governmental and intergovernmental organizations as well as experts are invited." )

24.UNHCR Position Paper, 'Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees', April 2001.

25.UNHCR Position Paper, "Relocating Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called 'Internal Flight Alternative' or 'Relocation Principle')", February 1999.

26.Refugee Appeal No. 71684/99, 29 October 1999, New Zealand Refugee Status Appeals Authority at para. 50 (stating "we have not found of any great assistance the UNHCR Position Paper, Relocating Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called 'Internal Flight Alternative' or 'Relocation Principle')…it suffers from the same weakness as does the Authority's own jurisprudence to date" and accepting, instead, the Michigan Guidelines on the Internal Protection Alternative which were noted to be more in accord with the current New Zealand jurisprudence on the issue and generated by a collective of legal international refugee law experts on the topic.)

27.UN International Human Rights Instruments, 'Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies': UN doc. HRI/GEN/1/Rev.5, 26 April 2001 (CRC having adopted its first general comment of the aims of education only just this year.)

28.UN Committee on Economic, Social and Cultural Rights General Comment, 'Reporting by States Parties', (No. 1 - 1989).

29.UN Committee on the Elimination of Racial Discrimination General Recommendation, 'Overdue Reports', (No. VI - 1985).

30.UN Committee Against Torture General Comment, 'Implementation of Article 3 of the Coonvention in the Context of Article 22', (No. 1 - 1996).

31.UN CESCR General Comment, 'The Domestic Application of the Covenant', (No. 9 - 1998) and General Comment, 'The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights', (No. 10 - 1998).

32.Steiner, supra note 1 at 22.

33. Y. Iwasawa, 'The Domestic Impact of International Human Rights Standards: The Japanese Experience' in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 257.

34.See id.

35.Steiner, supra note 1 at 52.

36.UN Human Rights Committee, 'General Comment on Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant', (No. 24 - 1994) and 'Article 25', (No. 25 - 1996).

37.UN Human Rights Committee, 'The Position of Aliens under the Convenant', (No. 15 - 1986).

38. E. Tistounet, 'The Problem of Overlapping Among Different Treaty Bodies', in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 395.

39.M. R. Bustelo, 'The Committee on the Elimination of Discrimination Against Women at the Crossroads', in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 96; see also Tistounet, supra note 47 at 395.

40.M. R. Bustelo, 'The Committee on the Elimination of Discrimination Against Women at the Crossroads', in The Future of UN Human Rights Treaty Monitoring (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000), p. 98 (highlighting the four general recommendations and stating that prior to 1997 the recommendations were more programmatic but have since moved line in with other treaty bodies.)

41.See id. at 98 (stating this would ensure the consistency of interpretation of human rights obligations across treaty bodies and ensure that the gender mainstreaming … is fully pursued where the other treaty bodies are concerned; CEDAW has gone as far as adopting statements for consideration and possible adoption by other treaty bodies.)

42.See id. at 98 (citing the Report of the Ninth Meeting of Persons Chairing the Human Rights Treaty Bodies, A/53/125, para. 34.)

43.Tistounet, supra note 47 at 395.

44.See id. at 395 (adding, "this is why, for instances, General Recommendation No. XI on non-citizens [by CERD] fell short of General Comment No. 15 of the HRC on the position of aliens under the Covenant.")

45.UN Committee on the Rights of the Child General Comment, 'The Aims of Education', (No. 1 - 2001), n. 1 and 4.

46.Tistounet, supra note 47 at 395. (noting that this is necessarily so due to the fact that general comments are theoretical exercises based on lengthy and technical discussion.)

47.See id. at 395.

48.Bustelo, supra note 49 at 395 (stating, "the latest comment by the HRC on article 25 of the ICCPR took several years before it was adopted.)

49.Tistounet, supra note 47 at 396 (noting, "Gen. Com. No. 4 of the HRC on the rights of women, which was adopted in 1981, is largely outdated and compares unfavorably with both its own practice and jurisprudence and that of the CEDAW Committee. The Committee has decided to update the text to enable it to take into account all developments in the area."); see also Bustelo, supra note 49 at 98 (recommending review and revision of some of CEDAW's earlier recommendations and combining several recommendations that address similar themes.)

50.Simma, supra note 31 at 41 (stating, "that the more abstract, that is not direct state-related tasks or activities of the Committee, will also have a 'sharpening' and clarifying effect on the examination of reports. The most important is, first the general discussion of a given topic… and secondly, the adoption of 'general comments' on certain questions.")

51.Iwasawa, supra note 42 at 257.

52.K. Samson, 'The Protection of Economic and Social Rights within the Framework of the International Labor Organisation,' in the Implementation of Economic and Social Rights: National, International and Comparative Aspects (ed. F. Matscher, N. P. Engel Verlag, Arlington, 1991) p. 126.

53.Iwasawa, supra note 42 at 258 (stating, "since their formulation is based on the experience of the committees in considering state reports and examining specific cases under individual communication procedures, they may also be regarded as adjudicatory in a sense.")

54.Steiner, supra note 1 at 52.

55.Steiner, supra note 1 at 52.

56.Kalin, supra note 4 at 8.

57.See id.

58.Steiner, supra note 1 at 52-3.

59.Bustelo, supra note 49 at 97.

60.Refugee Appeal No. 71684/99, 29 October 1999, New Zealand Refugee Status Appeals Authority at para. 50 (accepting the Michigan Guidelines on the Internal Protection Alternative rather than the DIP note on the subject.)