Working Paper No. 4: Investigative Capacity

1. Preceding papers in this series have examined and proposed various components of a potential supervisory body for the Refugee Convention .1. The core proposed components include a state reporting procedure, a complaints mechanism, and a general comments function. While such mechanisms may be considered distinct, they should also be seen as operationally interdependent, supplementing and enhancing the overall role of a supervisory body .2.

2. Just as state reporting and complaints procedures equip a committee with the background and perspective necessary to produce general comments, it can be said that a supervisory body's investigative capacity furnishes it with the tools necessary to carry out its reporting and complaints functions. It is in recognition of the interconnection between such traditional functions that this paper seeks to examine the potential utility of an auxiliary function: an investigative mechanism.

3. Investigative mechanisms are not new to the human rights field, though they are poorly understood. Inquiry procedures have been discussed in the international arena since the Hague Conventions of 1899 and 1907, yet are acknowledged as a "relatively uncharted area of international human rights law".3. Simultaneously, however, they have been characterized as being "at the heart of human rights activity".4. In recent years, investigative functions have proliferated in the human rights arena, to the extent that some commentators now consider them to be one of "the most important form[s] of supervision by or on behalf of an organization in the area of human rights" 5.

A. Objectives of Investigative Mechanisms

4. In the human rights treaty body context, the broad purpose of an investigative capacity is to enhance state compliance by supplementing the supervisory body's traditional functions. In relation to state reporting, for example, an investigative mechanism serves to corroborate, clarify, or call into question facts as presented by the state under review. Where a state is unresponsive to serious allegations, an investigative mechanism allows a treaty body to fill in the gaps by seeking information from alternative sources.

5. In the context of complaints mechanisms, investigations help to "clarify disputed facts"6. which may arise between states or between a state and an individual or group. In addition to assisting in the affirmative identification of violations, an investigative capacity can enable a treaty body to perform follow-up supervision, conduct a 'watch-dog' function of monitoring to ensure violations have ceased, and ascertain the extent to which states implement recommendations issued by the body.

6. From the above examples it is clear that an investigative mechanism does not consist of a single activity or component. Rather, it comprises an entire spectrum of methods, designed for and depending on the various needs of the treaty body and the circumstances of a given situation.7. Because of the flexible and tailored nature of investigative mechanisms, the shape of any treaty body investigation must conform to the larger policy objectives of such a body.8.

7. Among the possible policy objectives of any investigative mechanism, Ramcharan has observed three broad categories: 1) dialogue and diplomacy, in which ongoing diplomatic dialogue with the target state are prioritized; 2) truth and dialogue, which emphasizes establishing the facts in a manner which permits continued communications with the target state; and 3) truth and exposure, which emphasizes establishing facts and exposing states found to be violating human rights.9. These categories embody varying degrees of rigor, and each can be observed to some extent in existing treaty body models.

8. The least invasive model, that of dialogue and diplomacy, is perhaps best exemplified by the Committee which oversees the Covenant on Economic, Social and Cultural Rights (CESCR). The CESCR committee which has developed investigative options of 'increasing scrutiny' heavily favoring, above all else, continued dialogue and diplomatic communications.

9. An example of the truth and dialogue approach might be the Committee for the Convention on the Rights of the Child (CRC). This Committee has formalized involvement of NGOs and IGOs as a means of establishing objective evidence through alternatives to state-provided information ,10. while avoiding more confrontational processes which could endanger continued dialogue.

10. The truth and exposure policy, the most aggressive tactic available, has been regularly used by the Inter-American Commission on Human Rights (IACHR), the Committee for the European Convention for the Prevention of Torture (ECPT), and to some extent also the UN Committee Against Torture 11. (CAT).

11. In considering an underlying policy approach in the refugee context, it is perhaps useful to acknowledge the trend of treaty bodies to seek out and create more and more rigorous tools for treaty supervision. For instance, among the oldest treaty bodies, the Committee for the Convention on the Elimination of All Forms of Racial Discrimination (CERD)12. and the Human Rights Committee ,13. neither is considered to have a "clear cut fact-finding mandate".14. In contrast to these 'first generation' treaty bodies, however, committees for later treaties such as the CAT and the CRC appear to have advanced to more effective and aggressive investigative mechanisms.

12. It is also true that the most rigorous investigative tools are employed by the regional human rights treaty bodies, for example the IACHR and the ECPT. While the relative homogeneity of the European region may be a factor which explains and enables its fairly radical investigative capacity, the same cannot be said for the IACHR. Indeed, the IACHR could be a useful model for the refugee context precisely because of the extreme economic, political, and social heterogeneity of its member states, which span North, Central and South America. Thus, the success with which the regional treaty bodies have rigorously and creatively employed investigative mechanisms should not be discounted on the basis of its regional character alone.

13. In order for investigative mechanisms to achieve operational effectiveness, certain guiding principles concerning their structure and procedural framework are necessary. According to Ramcharan, "there are certain clearly established principles by which fact-finding should be guided on all occasions".15. These principles include independence, objectivity and impartiality of fact-finders; propriety in form and substance, equity and fairness; and responsiveness to, and effectiveness in dealing with, humanitarian problems.16.

14. The basis for these guiding principles is to establish procedural safeguards which lend credibility to the investigative process, and, by association, to the investigating body. Due to the inherently controversial and provocative nature of investigations in the diplomacy-laden human rights arena, such credibility is crucial to a treaty body for several reasons.

15. Initially, any state that is called upon to provide information, or consent to host an investigative team, will be more likely to comply with a request for assistance if the state perceives the process as impartial and objective. Additionally, any conclusions or findings resulting from a body's investigative work and ultimately released to the international community will have greater authority if produced under circumstances of procedural propriety and impartiality.

16. Thus, the very effectiveness of a treaty body in both gathering and producing information is to a real extent determined by the existence of stringent procedural safeguards. Stated more simply, "fact-finding depends for its credibility and potential impact upon the extent to which it is perceived to have been thorough, politically objective and procedurally fair."17.

B. Current Investigative Functions in the Refugee Context

17. Today, investigative mechanisms are already in use in the refugee context by the UN High Commissioner for Refugees (UNHCR), which supervises application of the Refugee Convention as part of its statutory responsibility to provide refugee protection.18. The investigative work conducted by UNHCR is therefore closely linked to its extensive protection activities around the world, and consists of both internal and external investigative review.

18. Among the internal investigative activities conducted by UNHCR are inspections and protection oversight, both of which evaluate the effectiveness of the agency's field operations. Protection oversight, in particular, involves, "undertaking selective monitoring of the protection aspects of UNHCR operations…selective review and evaluation exercises…and monitoring and providing support to protection field operations with a view to ensure consistency in the application of refugee standards and principles."19. As Kälin notes, "these reports…serve exclusively internal purposes and are not made public."20.

19. UNHCR's external investigative activities relate directly to its extensive field operations.21. Due to its protection mandate and its broad field presence, UNHCR is able to gather information not only from states, but also from its staff in the field concerning specific conditions and treatment of refugees. However, while UNHCR requests such information on a regular basis, the information it gathers is used as a "source for UNHCR's annual protection reports which remain confidential. This information gathering…has never been regularized, e.g. in the form of an obligation to submit State reports at regular intervals."22. Information is also gathered to address inquiries initiated by protection officers at headquarters or in the field, but it is also not usually publicly available.

20. Related to this, it can be said that confidentiality pervades much of UNHCR's investigative mechanisms. It has been observed that "[t]here is no 'freedom of information' component in UNHCR's Statute, nor any general culture of information sharing and dissemination." Regarding the production of investigative reports, "these may be circulated on a limited internal basis, but they are not otherwise made public or even shared regularly within UNHCR. It is therefore impossible to assess such efforts, to verify sources used and the soundness of judgments, or the extent to which, if at all, they make any contribution to UNHCR's capacity to fulfill its mandate responsibilities." 23.

21. Additionally, UNHCR's investigative functions are not focused simply on promoting respect for the Refugee Convention and Protocol. UNHCR has "specifically understood its control and monitoring functions to be applicable also in respect of international ad hoc arrangements and agreements of a less formal nature, whether in the context of voluntary repatriation operations or special international arrangements in the case of mass influx situations."24. Such situation-specific monitoring and investigative roles suggest an explanation for UNHCR confidentiality when state compliance may hinge on fragile diplomatic protection arrangements.

C. The Need for an Independent Investigative Function in the Refugee Context

22. It is clear that investigative mechanisms have become a common human rights tool and are already being used to a certain extent by the UNHCR in the refugee context. However, as observed above, UNHCR's own investigative mechanisms are internally, operationally oriented, and carry a heavy emphasis on promoting protection activities in the field. Further, while information is gathered and reports are produced, they are generally not publicly available or used to publicly expose or challenge a state's failure to comply with its obligations under the Refugee Convention. William Clarance has identified two broad categories of monitoring, one of which combines investigative activities with direct protection, while the other relies exclusively on investigative activities to produce a more indirect protection result. The first model bears a close resemblance to the investigative activities of the UNHCR in that, "[w]hile such monitors report back too, they also interact directly with the victims and local authorities in what is often a 'hands on' protective function." 25.

23. UNHCR is, however, poorly positioned to take on a more comprehensive investigative role, suffering as it does from an inherently conflicted position caused by co-existing protection and supervision roles. These competing mandates make the agency institutionally vulnerable to retaliatory action from states it may seek to investigate for possible abuses.26.

24. States which find themselves facing UNHCR criticism or accusations of noncompliance are well-positioned to take action against the agency, both through reduction in UNHCR funding or by refusal to cooperate with the agency's protection activities, each of which seriously undermines UNHCR's protection mandate. Even without a threat of state retaliation, the inherently political nature of UNHCR's supervision means that state "authorities will not accept [its] report[s] as independent, objective and unbiased but argue that the UNHCR as a party to the conflict is biased." 27.

25. Ultimately, the guiding principles of institutional idependence and impartiality, as well as UNHCR's own politically vulnerable protection mandate, argue against the placement of such an investigative mechanism within the agency. Rather, such a mechanism should operate independently, outside of UNHCR, and be implemented by non-UNHCR staff. The addition of an independent investigative mechanism to a supervisory entity for the Refugee Convention would provide increased overall effectiveness to the body as a whole, by strengthening all key monitoring components. It has even been suggested that such a framework would also further strengthen UNHCR's own protection mandate.28.

26. Professor Kälin's supervisory model similarly supports the separation of protection-oriented and supervision-oriented investigations, recognizing that where information collection is concerned, "it is preferable to clearly separate protection and supervision on the operational level" .29. Rather than establishing the supervision-based investigative function outside the institutional framework of the UNHCR, however, Kälin proposes an ExCom-based structure. Further, Kälin's proposal includes a system of Refugee Protection Reviews in which teams of peer reviewers travel to countries with large refugee populations "in order to talk to the government, members of parliament, and representatives of civil society and NGOs in order to get first hand information." 30. This is supplemented by the investigative capacity of Special Rapporteurs, who monitor treaty compliance on a thematic, rather than a country-specific basis.31.

27. The ExCom-based supervisory structure is problematic. Although Kälin argues that such a structure would not compromise the principles of independence, impartiality, and propriety, the opposite effect seems more likely. In fact, nearly every guiding principle discussed above would be potentially compromised by vesting an investigatory mechanism within the UNHCR structure. For these reasons, a completely independent structure seems warranted.

28. Effective supervision of the Refugee Convention hinges upon access to accurate information, which may include "access to systematic and authoritative reporting on conditions in any country which may bear on refugee flows, such as war or inter-communal conflict of an ethnic, religious, or political nature, widespread violations of human rights, and even ecological and natural disasters." 32. Given the broad-based information needs and rapidly changing conditions common to the refugee context, it may be that different, or additional elements than those proposed by Kälin could be warranted. The experiences of cognate human rights treaty bodies may be useful in this regard.

D. Lessons from Investigative Models in the Human Rights Context

29. In the reporting context, human rights treaty bodies rely on a variety of investigative methods in order to fill information gaps or address conflicting reports of alleged violations. Committees may rely on third-party information from states, NGOs, or other specialized agencies, or may conduct their own direct, first-hand information collection.

30. Further, when a committee has gathered enough information to identify violations or to confirm their existence, investigative mechanisms also promote follow-up activities. Once findings or recommendations are issued by a committee, there is an ongoing need to monitor the situation, both to ensure abuses have ceased and to evaluate the extent to which a target state is implementing the committee's recommendations.

31. In order to supplement the information provided by the state during the reporting process, several investigative methods have been relied upon by treaty bodies. Generally speaking, given the information needs that arise in the reporting context, the state under review is usually the first entity approached for additional information needed by the reviewing treaty body.

32. The CESCR has developed innovative ways of securing information needed for a thorough review of state reports, largely because it relies solely on a reporting mechanism 33. and does not have recourse to supplemental monitoring and enforcement elements existing in other treaty bodies. For example, it has developed a procedure that employs options of "increasing intensity" upon which the Committee may rely for additional information.34. Such options give the Committee flexibility depending on a variety of factors, such as: the urgency of a particular situation, the level of politicization of an issue, the responsive capacity of the state to provide further information, and the timeframe of the Committee itself.

33. The Committee's investigative options in the reporting context thus include: "1) addressing the problem in the Committee's next periodic report; 2) taking note in writing of the state's intent to submit further information in writing; 3) requesting specific information in writing from the state under review within a specified period, usually six months; 4) requesting specified information from the state within a much shorter time frame (2-3 months) in urgent situations; 5) requesting that a state accept a mission of fact-finders to gather information and/or to provide technical or advisory assistance; or 6) conducting ad hoc review before or between reporting deadlines."35. Aside from the last two options, the CESCR clearly prefers that the state under review provide the information needed by the committee for its examination.

34. Such an investigative component would be valuable in a supervisory body for the Refugee Convention precisely because it permits flexible and adaptive committee responses consistent with its investigative needs. Perhaps most importantly, its range of options all involve information coming from states, which are best positioned to provide the precise information required by a committee. Additionally, where underlying policy objectives emphasize dialogue and diplomacy, such a course offers significant flexibility.

35. Treaty bodies also have recourse to information provided by third party entities when seeking additional information during the reporting process. The committees for the CESCR36. and the CRC37. , for example, rely strongly on NGO reports and information to balance the information being presented by a state. In addition to reliance on the NGO community, the CESCR also has the capacity to call for information from other specialized agencies such as UNESCO, the ILO, and the WHO.38.

36. While most committees rely on report-enhancing investigative mechanisms through these outside entities, some commentators feel that NGO reliance is only a second-best alternative. Such observations have been based on the concern that NGO information is not adequately objective and unbiased, a claim which may be tempered when such information is provided in conjunction with other outside sources of information, such as specialized agencies.

37. In the refugee context, the importance of NGOs as an informational source is recognized in Kälin's model, which proposes that NGOs participate (via consultative status) in the reporting procedure and be tapped as an information source during in-state visits. While these contributions are important, a more formalized role procedure enabling committee recourse to supplemental sources of information would better serve a refugee body's investigative capacity. A formalized procedure is likely to streamline committee access to information, and may also facilitate information gathering by promoting coordination among the third party entities.39.

38. In addition to securing information indirectly from states or third party entities, supervisory bodies may also gather information first-hand. This is most commonly accomplished through in-state (or "in-loco") visits conducted either by a designated individual expert, such as a special rapporteur, or by a team of experts. Either way, the distinct advantage of this method is that the supervisory body is able to gather independent, first-hand information for its own interpretation.

39. Due to the inherent value of independent, objective information, in-state visits have been relied upon to supplement information provided through several components of treaty monitoring: state reporting, individual complaints, and inter-state complaint mechanisms. As noted earlier, the CESCR has recourse to in-state visits as one of its options of "increasing intensity" for soliciting information from states during or following the reporting process.40. The CRC and CERD committees also use in-state visits to enhance their reporting component. Under such circumstances, in-state visits are relied upon only in the most extreme situations; committees tend seldom resort to such visits unless prior information requests have been ignored, allegations of violations are particularly urgent and severe in scope and nature, or less invasive investigative methods have not yielded the necessary information.41.

40. Kälin's recognition of the inherent value of in-state visits is evident from the significant reliance placed upon them in his supervisory model. His proposal of in-state visits (via Refugee Protection Reviews) is designed to replace both state reporting and complaints procedures. The proposed use of in-state visits in conjunction with a thematic Special Rapporteur seems to combines all of the 'public scrutiny' advantages of country-specific investigations with the more politically palatable elements of thematic investigations.42. Such double-power investigative coverage could be extremely effective for a refugee supervisory body.

41. On the other hand, the model relies somewhat heavily on several assumptions. First, the design of Refugee Protection Reviews is based on the premise that in-state visits will be feasible. However, state consent to such visits is frequently an obstacle. Even if states do ultimately consent to host such visits, attempts to otherwise obstruct the process may hamper investigative efforts. In the highly politicized refugee arena, lack of state cooperation is likely to be a problem, at least in some instances, and therefore exclusive reliance upon state visits may foreclose investigative capacity altogether.

42. Further, in-state visits are neither necessary nor appropriate in every situation. In some cases, states may be forthcoming in the provision of requested information, or NGOs and specialized agencies may have precisely the information needed by the reviewing body. Alternatively, in-state visits may be exceedingly unsafe or imprudent due to some unstable element in the region. In such cases, alternative investigative methods may be a more appropriate means of obtaining the relevant information.

43. Treaty bodies similarly rely on a range of investigative functions to enhance the effectiveness of complaint procedures. In the case of individual complaints, the HRC has developed an evidentiary technique of giving a rebuttable presumption to the authencity of an individual claim when a state does not respond with its own version of the facts. According to the HRC, individual complaints involving "allegations supported by substantial witness testimony…and where further clarification of the case depends on information exclusively in the hands of the State Party, the Committee may consider such allegations as substantiated in the absence of satisfactory evidence and explanations to the contrary submitted by the state party." 43. The rule has since broadened to apply to cases where the state simply refuses to respond, whether or not it had exclusive information.

44. The IACHR relies on a similar technique in processing its interstate and individual complaints procedures. In such cases, "[i]f the government does not cooperate in the proceedings by providing the requested information within the time limit set by the Commission, article 42 of the Commission's regulations allows the Commission to presume that the facts in the petition are true, 'as long as other evidence does not lead to a different conclusion'."44.

45. The use of evidentiary presumptions against an unresponsive state is a helpful innovation, both because of the pressure it applies to the state under review, and because of the seeming fairness in giving additional weight to the complainant's allegations when a state is uncooperative. However, because such a mechanism derives its credibility from established authority, it would likely not be immediately successful in the refugee context. Nonetheless, while it may not be effective or appropriate for use by a newly established refugee body, an evidentiary technique is perhaps a useful complement to investigative capacity in at least the medium term.

46. Complaint mechanisms are also enhanced by in-state visits. In the case of the IACHR, for example, both individual and inter-state complaints may trigger an inquiry whereby "[t]he Commission has the powers to request information from the government concerned and, with the consent of the government, to investigate the facts in the complaint at the location of the alleged violation."45. Unlike reporting-based missions, visits triggered by complaints do not appear to be considered a method of last resort, and are more commonly relied upon.

47. As part of investigative follow-up to both reporting and complaints mechanisms, some supervisory bodies have adopted procedures to gather information after violations have been identified and recommendations have been issued. Follow-up procedures permit a committee continued engagement with violator states in an attempt to monitor the situation to ascertain whether violations are continuing or whether recommendations are being implemented. The underlying premise of such procedures is that the role of a treaty body is not merely to point out violations and move on. Rather, it is to ensure that identified violations do not persist.

48. Follow-up investigative mechanisms in the refugee context should be considered just as crucial as those mechanisms which identify the initial violations. While it is true everywhere that follow-up monitoring is important to treaty compliance, it is particularly true in the refugee arena where violations can spark mass migrations and displace enormous populations. In this sense, keeping an eye on identified abuses, whether through continued information requests from states, from third parties, or via in-state visits, is critical to keeping refugee problems from becoming regional emergencies.

49. Ad hoc inquiry procedures are another investigative tool used in the human rights arena. Such inquiries tend to combine and broaden the information-gathering components of individual and interstate complaints mechanisms to include submissions by NGOs and IGOs. The procedure allows a committee to open an inquiry whenever strong evidence of serious allegations of widespread human rights abuses is established. As long as the source of information is reliable, committees with such ad hoc inquiry procedures may open an inquiry to investigate the claims.

50. Such inquiries can range from simple requests for additional information to more rigorous investigations involving in-state visits, the drafting of reports on findings following a visit, and subsequent follow-up efforts. Article 20 of the CAT, for example, allows its supervisory Committee to open an inquiry in cases where it "receives reliable information which appears to it to contain well-founded indications that torture is being systematically practiced in the territory of a state party." 46. Following on the success of this innovation, CEDAW developed an Optional Protocol in 199947. which provides for a virtually identical procedure under article 21 to conduct inquiries into "grave or systematic violations".

51. Kälin's proposal does not directly support the idea of ad hoc inquiry procedures, though his proposed model (that only the only countries to be reviewed would be those with relatively large refugee caseloads) suggests something of an ad hoc element. It is clear that an ad hoc investigatory capacity in a refugee body would be of critical importance, allowing it the flexibility and authority to undertake inquiries where serious allegations surfaced, particularly in the early stages of a situation where relatively large population displacements may be foreseeable and imminent, and a timely response is necessary.

E. Summary

• Investigative capacity enhances the effectiveness of a supervisory body by supplementing and strengthening its traditional reporting and complaints functions. It is not a singular function, but a variety of tools. Flexibility is key.
• Procedural and structural safeguards are necessary to ensure effective investigative mechanisms and to promote the overall credibility and effectiveness of a refugee body. Investigative mechanisms should be independent, objective and impartial. Propriety in form and substance is critical.
• Due to the UNHCR's protection mandate and political vulnerability, it has neither the independence nor the impartiality to perform an investigative role in supervision of the Refugee Convention.
• Investigative capacity should include formalized procedures enabling recourse to supplemental information provided by NGOs and specialized agencies and the capacity to conduct in-state visits.
• Follow-up investigative mechanism should be employed to permit the body to monitor identified abuses or violations of the Refugee Convention.
• Investigative mechanisms should include formalized, ad hoc inquiries.

1.See Working Papers Nos. 1-3 in this series

2.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. Alston and Crawford, Cambridge University Press, Cambridge, New York, 2000), p. 21.

3.B.G. Ramcharan, International Law & Fact-Finding in the Field of Human Rights, (Martinus Nijoff, The Hague, 1982), p.2

4.Id., p. 1.

5.W. Kalin, 'Supervising the 1951 Refugee Convention; UNHCR's Role Under Article 35 CSR51' para 44

6.B.G. Ramcharan, The Concept & Present Status of the Int'l Protection of Human Rights (Martinus Nijhoff, Dordrecht, 1989), p. 182.

7.Quoting the Comments of the Government of Sweden: "[Given that situations of] many different kinds may arise in many different contexts, the methods of fact-finding must of necessity be of great variety…Between the oldest and the newest methods there is a whole spectrum of methods, designed to meet many various needs." B.G. Ramcharan, International Law & Fact-Finding in the Field of Human Rights, pp. 8-9.

8."if fact-finding is taking place within the context of the efforts of an international organization such as the United Nations to deal with a situation of violations of human rights within a country, then the fact-finder faces certain crucial policy choices." B.G. Ramcharan, The Concept & Present Status of the Int'l Protection of Human Rights, p. 184.

9.Id., p. 184

10.The CESCR calls upon specialized agencies to submit reports on progress made by states in ceasing violations or implementing recommended changes. Such specialized agencies include: UNESCO, ILO, WHO, as well as NGOs generally. D.J. Harris, Cases and Materials on International Law (5th ed., Sweet and Maxwell, London, 1998), p. 697.

11.Formally known as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee is formally known as the Committee against Torture (CAT article 17(1)).

12.CERD entered into force on January 4, 1969.

13.The Human Rights Committee has supervisory responsibility for the International Covenant on Civil & Political Rights (ICCPR art 28). The ICCPR entered into force on March 23, 1976.

14.F. Ermacora, 'The Competence and Functions of Fact-Finding Bodies', in International Law & Fact-Finding (ed. B.G. Ramcharan) p. 84.

15.B.G. Ramcharan, The Concept & Present Status of the International Protection of Human Rights, p. 182

16.Id., p. 182.

17.Steiner and Alston, International Human Rights in Context (2nd edn, Oxford University Press, New York, 2000), pp. 602-603

18.Kalin, paras 9-15, V. Turk, 'UNHCR and the Development of International Refugee Law' in Refugee Rights and Realities, Evolving International Concepts and Regimes (ed. F. Nicholson and P. Twomey, Cambridge University Press, New York), p. 160-161

19.EC/50/SC/INF.6 para 22

20.Kalin, para 66

21.UNHCR "has built up field capacity in terms of committed and experienced staff and the professional capacity for rapid and effective mobilization in emergencies that is significantly superior to that of an other UN agency in the field." W. Clarance, 'Field Strategy for Human Rights Protection' in International Journal of Refugee Law, vol. 9 no. 2 April 1997, p. 233

22.Kalin, paras 14-15.

23.G. Goodwin-Gill, 'Refugee Identity and Protection's Fading Prospect', in Refugee Rights and Realities, Evolving International Concepts and Regimes (ed. F. Nicholson and P. Twomey, Cambridge University Press, New York, 1999), p. 239 fn 82.

24.V. Turk, supra, p. 161

25.W. Clarance, supra pp. 237-238

26.Kalin, para 65: Noting that the UNHCR "is not even nominally independent but governed by the 54 governments forming the Executive Committee and forced to be sensitive to the main donor countries."

27.Kalin, paras 28-29.

28."The politics of the process clearly suggest that UNHCR's protection capacity would be strengthened by disassociation from direct information gathering and analysis, but by close association with independent and impartial monitoring." G. Goodwin-Gill, 'Refugee Identity and Protection's Fading Prospect' in Refugee Rights and Realities, p. 243

29.Kalin, para 66

30.Kalin, para 71 (iii)

31.Kalin, para 71(i), (ii): "The Executive Committee appoints, where appropriate and necessary, Special Rapporteurs with thematic mandates to look at issues of special concern (e.g. on female asylum seekers; on detention of asylum-seekers and refugees; or on armed attacks on refugee camps).

32.Goodwin-Gill, The Refugee in International Law (2nd edn, Clarendon, Oxford, 1996), p. 285.

33.D.J. Harris, supra, p. 697; B. Simma, 'The Examination of State Reports: International Covenant on Economic, Social and Cultural Rights', in The Monitoring System of Human Rights Treaty Obligations (E. Klein, Berlin Verlag, Berlin, 1998), p. 31.

34.B. Simma, supra, p. 39

35.Id., pp. 39-41.

36.S. Leckie, 'The Committee on Economic, Social and Cultural Rights: Catalyst for Change in a System Needing Reform', in The Future of UN Human Rights Treaty Monitoring (ed Alston and Crawford), pp. 133-134.

37.G. Lansdown, 'The Reporting Process Under the Convention on the Rights of the Child', in The Future of UN Human Rights Treaty Monitoring (ed. Alston and Crawford), pp. 118-122.

38.D.J. Harris, supra, p. 697.

39."Encouraging NGOs to submit reports has promoted the creation of national coalitions presenting information on behalf of the national NGO body as a whole. The information presented in such reports is likely to be more authoritative and comprehensive than the report of a single NGO and thus of considerably more value to the Committee." G. Lansdown in Alston and Crawford, supra, p. 121

40.B. Simma, supra, p. 39

41.CESCR has resorted to missions only once in its history, for a visit to Panama. Id., p. 41.

42.In the UN Human Rights Commission, the innovation of thematic Rapporteurs was seen as a creative means of side-stepping the political resistance which frequently resulted from the rather undiplomatic 'singling out' aspect of in-country investigations.

43.Bleir v Uruguay, (1982) 1 Selected Decisions H.R.C. 109 at 112 in Harris, supra, p. 651

44.C. Medina, 'The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture' in International Human Rights in Context (ed. Steiner and Alston) p. 873-4

45.Id., p. 873

46.In the case of the CAT, this procedure automatically applies to all states parties unless they specifically 'opt out' of the provision upon ratification. Art 20 CAT cited in Steiner & Alston, supra, p. 775.

47. http://www.un.org/womenwatch/daw/cedaw/protocol/index.html The Optional Protocol to the Convention entered into force December 22, 2000. As of October 28, 2001, there were 68 signatories and 28 parties to the Optional Protocol. States ratifying the Optional Protocol can opt out of this procedure but cannot enter reservations to limit it (article 17).