Working Paper No. 5: "NGO/National Linkages"

1. Compliance with treaty obligations and the protection of refugees are ultimately within the jurisdiction of each state; as such, the realization of treaty-based rights is highly dependent on the strength of domestic institutions. In order for any human rights monitoring system to be truly effective, it must therefore have the ability to influence states to establish and operate domestic mechanisms that are consistent with the objectives of the given human rights treaty. Because "international instruments and institutions of refugee protection are only as strong as states allow," 1. it is important for the Refugee Convention monitoring body to create formal and systematic national linkages and partnerships that will lead to domestic enforcement of international standards of refugee protection.

2. Deciding how to proceed in establishing the necessary connections between the monitoring process and the actual implementation of international standards, however, is neither simple nor obvious. The issue raises many questions about which entities are appropriate to include in the monitoring system, and how much of their participation should be expected. Drawing upon the ideas elaborated in the preceding working papers in this series, this paper considers ways in which the Refugee Convention monitoring body can impact states to act in accordance with the treaty through the creation of NGO and national linkages. Particular attention is paid to collaboration with both national and international NGOs, and tothe involvement of state judicial systems and national human rights commissions. It will examine various methods employed by other treaty bodies in their attempts to enhance state cooperation and strengthen domestic institutions. Finally, it will put forth several options for systematizing NGO participation and the inclusion of national institutions in monitoring the Refugee Convention.

3. To start, it is important to outline some of the "desired outcomes" of a monitoring system that serve to reinforce the rights of refugees on the national level. These may include, among others, adopting policies and legislation that are conducive to refugee protection; creating domestic institutions, or strengthening existing ones, through which violations can be addressed; and disseminating information about the Refugee Convention, state compliance; and accessible recourse on the national and international level when violations occur. It is important to keep these in mind while exploring the ways in which formal NGO and national linkages can strengthen the Refugee Convention monitoring system and generate significant results on the domestic level.

A. The Importance of Creating NGO and National Linkages

4. "There is an urgent need to create a system of accountability to expose the failure of states in their responsibilities to provide refugees with the protection they are due under agreed international standards."2. Any effective system of accountability will "necessarily involve the close cooperation of host governments, governments in countries of origin, donor governments, intergovernmental organizations, and, in particular, a host of international regional, and national NGOs."3. As described in Working Papers Nos. 1 though 4 in this series, such a system could be initiated by the creation of a reporting mechanism, a complaints procedure, the adoption of strong general comments, and an investigative capacity. These are fundamental aspects of an effective monitoring system, and serve a number of important purposes including providing a way for the monitoring body to examine a state's compliance with the treaty, to collect additional information about human rights violations occurring within the states, and to universalize its recommendations and standards for refugee rights protection.

5. The conclusions of human rights treaty bodies that emerge from monitoring processes are not legally binding on states. Rather, they are of "persuasive authority" since they "[represent] the views of the international community." 4. Consequently, one cannot ensure that the necessary changes will take place within a state as a result of carrying out the functions elaborated in Working Papers Nos. 1-4. Since there is no legal recourse when states refuse to fulfill their treaty obligations, reprimanding states for poor protection of refugee rights will not necessarily lead to concrete change on the domestic level. Indeed, there is the risk that states will "view the array of obligations stemming from human rights treaties solely through the lens of the reporting process."5. States that are "intent on skirting their legal obligations" are likely to evade or manipulate the monitoring system "given the nature of states and [their] interests."6.

6. Certainly, it is not always the case that states prefer to circumvent their responsibilities under the treaty; other factors may also come in to play, such as limited availability of resources to produce elaborate reports, political implications of enacting new legislation, etc. With this in mind, the work of the monitoring body should not be limited to the functions outlined in Working Papers 1-4, but should instead focus on ways to forge strong and effective linkages with states, invoking the participation of NGOs and national institutions. This will better allow the monitoring body to translate its efforts and conclusions into real improvements in human rights protection.

7. The inclusion of NGOs and national judicial and human rights bodies systems as integral components of a monitoring system does not in itself mobilize domestic actors and promote cooperation. Rather, it is the knowledge "that pronouncements by the treaty bodies may serve some practical purpose in defending rights" that encourages NGOs and other institutions "to internationalize what may be otherwise local and even isolated events." 7. The ICESCR Committee provides a good example of this. The ICESCR Committee often makes specific suggestions that states enact legislation, as well as detailed guidance as to the nature of such legislation. In some instances, this has mobilized national or local NGOs and generated support for the legislation, thereby creating links between state governments and civil society. Clearly, the relationship of NGOs and national institutions to the monitoring body is mutually reinforcing, as the participation of NGOs and national institutions strengthens the conclusions of the monitoring body, while the forceful conclusions of the monitoring body, in turn, encourage the participation of NGOs and national institutions.

B. NGO Participation in Monitoring Human Rights

8. NGOs play an increasingly valuable role in the protection of human rights. The 1993 World Conference on Human Rights officially acknowledged the importance of national and international NGO efforts in the "effective implementation of all human rights instruments." 8. This global recognition is reflected in the numerous functions that NGOs perform in the human rights treaty monitoring systems. "It is widely accepted that compliance to international standards is significantly enhanced through systems of accountability and in this regard the role of both human rights and humanitarian assistance NGOs is indisputable." 9. More and more, NGOs are being called upon to participate in monitoring human rights. While NGO access to the monitoring system varies widely, it is useful to consider the roles NGOs play in the various treaty bodies. The following examples will be drawn upon later in this paper when considering NGO participation in monitoring the Refugee Convention.

9. The International Covenant on Economic, Social, and Cultural Rights (ICESCR) Committee, for example, encourages NGO participation throughout its monitoring process. 10. The Committee makes a significant effort to increase NGO involvement with the monitoring system, for example by facilitating the flow of supplemental information about a state's compliance with the treaty from NGOs to the treaty body. This, in turn, provides much-needed momentum for NGOs to continue working towards the realization of the treaty's objectives on the national level.

10. A number of advantages have flowed from the Committee's efforts to foster NGO participation. The ICESCR Committee's willingness, in some instances, to accept the credibility of alternative sources of information has lent increased legitimacy and international support to the treaty body.11. The diversification of sources of information has improved decision-making processes by creating a better-informed monitoring body, and has led to the adoption of more forceful concluding observations. In particular, NGOs often prepare alternative country reports, which highlight inaccurate or distorted information provided in governmental reports. The alternative reports may provide new information and ideas for more appropriate policies and legislation, as well as act as a catalyst in the formation of new coalitions among previously unconnected groups. Leckie refers to examples in the Dominican Republic, Panama, the Philippines, and Israel, in which the formation of new coalitions has given rise to greater reliance on international human rights standards as a basis for pursuing demands on the state.12.

11. NGOs also play an important role in the monitoring process of the Committee for the Convention on the Rights of the Child (CRC). The CRC Committee's monitoring process is intended to promote social mobilization and encourage collaboration among governmental officials, NGOs, and other entities for the realization of the treaty's objectives in protecting children. Article 45 of the CRC expressly allows the Committee to request expert advice from competent bodies, including NGOs, on areas falling within their particular mandates. Under this article, the Committee actively encourages NGOs to submit alternative reports to provide more complete and critical information about the state of children's rights in a particular country.13. The CRC Committee is unique in that it not only encourages NGOs to participate in its monitoring functions, but also explicitly encourages states to collaborate with NGOs when preparing state reports. The Committee holds a weeklong pre-sessional working group at the end of each session to consider questions to be addressed to state parties at the next session. The pre-sessional working groups are closed to state representatives, and no public record of the discussion is produced. At these presessional meetings, individual NGOs and coalitions of NGOs that have submitted alternative reports are invited to comment on the state report.14.

12. Consistent with its efforts to increase collaboration, the Committee asks NGOs to comment specifically on the production of the report and the extent to which NGOs were consulted in the process. "The treaty bodies should support involvement of NGOs in the process of preparing the report. Treaty bodies should ask questions about NGO involvement. Treaty bodies should recommend that governments create a permanent mechanism to monitor implementation of the Convention, and that monitoring involve the cooperation of non-governmental organizations."15.

13. The CRC Committee has also benefited from the systematic inclusion of NGOs in its monitoring procedures. For example, increased access to evidence submitted by NGOs and other sources allows the Committee to recognize discrepancies between the way state parties interpret their own efforts to realize children's rights and the actual conditions that exist on the national level. 16. Alternative and complementary information also allows the Committee to be more focused in its questioning of state parties and compels state parties to submit more complete reports. Similar to the ICESCR, submission of NGO reports has led to the creation of national coalitions to monitor compliance with the CRC at the national level. Through the reporting process and procedures for NGO participation, NGO coalitions have the opportunity to disseminate information and increase awareness of the CRC, which may in turn lead to increased media attention. Moreover, the Committee's emphasis on NGO coalitions encourages collaboration between a variety of groups and strengthens the report both in the eyes of the Committee and domestically. Thus, there seems to be a reciprocal relationship between the efforts of NGOs and the CRC, each reinforcing and increasing the legitimacy of the other.

14. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Committee has received strong support from the NGO community since its inception. 17. Historically, NGOs have voluntarily presented the Committee with pertinent information for reviewing and analyzing state reports and provided input for general recommendations. While there is no treaty-based provision for NGO participation in the work of the CEDAW Committee, the committee has become increasingly open to, and reliant on NGO contributions. This is reflected in 1998 and 1999 decisions made by the CEDAW Committee to allow NGOs to provide country-specific information on state parties in preparation for the review of state reports coming under consideration and, in addition, to participate in plenary, informal meetings.18.

15. Increasingly, the Convention Against Torture (CAT) Committee also relies on NGO information throughout the reporting process, and often makes explicit references to NGO reports during discussions with state parties.19. This is, in part, a function of limited resources, which the Committee seeks to use more efficiently by encouraging NGO efforts to facilitate and strengthen the reporting process. The CAT Committee also uses the information in NGO reports to place the burden of proof on national governments. If a state report does not contest information submitted by NGOs, the Committee assumes that the allegations are correct.20. Again, through the use of alternative sources of information, the Committee is able to lead more informed discussions, improve the quality of questions posed to state parties, and compel governments to submit more thorough and accurate reports.

16. NGOs also play an increasingly important role in the Human Rights Committee (HRC), which supervises the International Covenant on Civil and Political Rights (ICCPR), and the Committee of the Convention to End All Forms of Racial Discrimination (CERD). In the HRC, NGOs see the monitoring process as a forum in which to provoke public discussion, and to pressure governments to comply with treaty obligations.21. In the CERD Committee, NGOs are a link between individuals and the treaty body, as they have the ability to advance individuals' views and experiences.22. In the 1990s, the CERD Committee also started accepting commentary on state reports from national NGOs and, in some cases, meeting with NGO representatives before considering state reports.23. The founding of the Anti-Racism Information Service in 1993 has helped to strengthen the treaty body by collecting information from various sources and supplying it to the Committee. 24.

17. The examples above show that a general practice exists for involving NGOs in the process of treaty supervision throughout the United Nations human rights system. NGO participation in the various treaty bodies has added considerable value to the monitoring of human rights. The systematic inclusion of NGOs has the potential to make a significant contribution to the Refugee Convention monitoring system as well. In fact, some international NGOs have made significant contributions to the discussion on refugee protection over the years, although this has usually occurred on an issue-specific basis and with no formal role for NGOs in the monitoring process.

C. NGO Participation in Monitoring the Refugee Convention

18. NGOs have been referred to as the "right arm" of UNHCR; "without them," it is said, "UNHCR would be totally impotent."25. In an effort to enhance its partnership with NGOs, UNHCR launched the Partners in Action (PARinAC) process, which brought together over 450 NGOs to synthesize the proposals that emerged from the 1994 Oslo Declaration and Plan of Action.26.

19. In 2000, UNHCR entered into project agreements with 398 national and 138 international NGOs27. , but these partnerships have primarily served to provide refugees with direct services, particularly in the areas of humanitarian assistance, legal aid, and advocacy. In general, NGOs undertake activities related to resettlement and integration of refuges into society, assistance in seeking asylum, public awareness and research concerning refugees, job and housing placement, emergency and non-emergency health care, sanitation, and so on. 28. On some occasions, NGOs also help respond to emergency situations, "sounding the alarms when floods of refugees appear on the horizon."29. In times of crisis, NGOs "are often the only channel of information to the rest of the world."30. While these functions are critical to UNHCR's operational capacity, NGOs have not traditionally played a role of comparable significance in promoting the monitoring of the Refugee Convention.

20. Despite this recognition that NGOs have received both internationally and within UNHCR, official access to UNHCR's current institutional supervisory mechanisms remains limited. For example, the lack of NGO access to UNHCR's Executive Committee (ExCom) is evident, in that NGOs are currently permitted to submit only one statement per agenda item. Although this approach ensures that statements are of very high quality, too much emphasis is necessarily placed on them and divergent opinions among NGOs are never able to be resolved.

21. Although encouraging participation of a wide range of NGOs, both national and international, would provide important benefits to the process of monitoring the Refugee Convention, there is a particular need to involve NGOs that work on-site and have direct contact with refugee populations, especially NGOs that include refugees. Encouraging meaningful participation on the part of refugees would strengthen the monitoring body's beneficiary orientation and enhance the social validity of the monitoring process. One way to accomplish this is to explicitly encourage "the establishment of specialized NGOs in the field of refugee rights…, along with information dissemination, advocacy, and legal aid,"31. making special efforts to include refugees in meaningful ways.

22. As mentioned previously, various treaty bodies, particularly those that monitor ICESCR, CRC, CAT, and CEDAW, encourage NGO contributions to supplement the information received in state reports (see Working Paper No.1, "Reporting"). Likewise, for the Refugee Convention, NGOs could provide the monitoring body with comprehensive and, at times, more critical information about the protection of refugees in states coming under consideration by submitting alternative, or "shadow," reports.32. This practice could have a number of advantages for the Refugee Convention monitoring body. Firstly, the knowledge that NGO-provided information is both encouraged and viewed as credible will compel states to take the reporting responsibility more seriously, and to present more in-depth and accurate information in their reports. Secondly, a better-informed monitoring body will be capable of asking more focused and pertinent questions of the state parties and may also inspire more forceful and poignant concluding observations. Thirdly, encouraging NGO participation in the reporting process may have the effect of inducing state-NGO collaboration (as in the case of the CRC Committee, which actively encourages this type of collaboration). Lastly, given the high level of delinquency in reporting, the monitoring body can utilize NGOs to encourage states to comply by "feeding information received from NGOs to those governments that have failed to fulfill their reporting obligation."33.

23. To take NGO involvement in the reporting process a step further, NGOs could be encouraged to participate in pre-sessional or plenary meetings, during which human rights monitoring committees generally prepare for the following review session by focusing on important issues they will address. NGO input during the pre-sessional meetings could help to strengthen the discussion, bring out the most important issues, and generally improve the quality of the review. Looking to the ICESCR Committee as an example, the monitoring body could facilitate NGO participation in the pre-sessional meetings by informing NGOs of the ways they can contribute to the monitoring process and sending copies of state reports coming under consideration to a range of NGOs in the countries concerned.34. Still further, NGOs could also be invited to participate in review sessions and allowed to informally intervene to provide individual members of the monitoring body with information. This will encourage the monitoring body to ask more pertinent questions and follow up on evasive responses during review sessions.

24. There is an important role for NGOs within a complaints process as well (see Working Paper No. 2, "Complaints"). One responsibility that NGOs could take on is that of advancing complaints to the monitoring body in cases of egregious violations of refugee rights. NGOs could help organize complainants and serve as a vehicle through which collective complaints are submitted to the monitoring body. Under certain circumstances, this role would involve encouraging affected individuals to identify as a group, educating them about the complaints procedures to make their experiences and concerns known to the international monitoring body, and subsequently assisting the group to submit a collective complaint. This would be an appropriate role for NGOs that are currently on-site working with individuals on a daily basis, since the transition from their current activities to fulfilling this function within the complaints process need not be a drastic one. Additionally, the monitoring body could request information from NGOs when deciding whether or not to pursue a complaint. In this capacity, NGO input can be of great use in determining the merits of a complaint and narrowing down the number of rightful complaints, especially given the scarcity of time and resources.

25. A primary purpose of general comments is to "universalize specific recommendations arrived at the through the reporting and complaints process." They are intended to "clarify states' obligations and interpret the substantive provisions of a given treaty or covenant" 35. (see Working Paper No. 3, "General Comments"). As important players in refugee protection, NGOs could contribute to the process of adopting general comments as well.

26. Consulting NGOs (and judges, which will be discussed later) in the process may increase their forcefulness and the way that general comments will influence states. Referring to the example of the CEDAW Committee, NGOs could become "part of the… formal process of preparing general recommendations,"36. in which case guidelines for their involvement would have to be carefully detailed. Alternatively, NGOs could be consulted at a certain point in the drafting process so as to broaden the scope of information underlying the general comments.

27. There is a great deal of overlap in NGO participation within the reporting and complaints procedures, and the investigative mechanism of the monitoring body (see Working Paper No. 4, "Investigative Capacity"). NGOs provide information during the reporting process, which in turn, may prompt the body to pursue an investigation. Another way NGO efforts can lead to an investigation is through the complaints procedure and their activities organizing complainants and submitting collective complaints. In addition to these functions, however, NGOs could participate in the process of deciding if investigative action is appropriate in a given situation. National NGOs especially could be consulted prior to and during the investigation to help ensure its effectiveness.

D. Potential Challenges of NGO Participation

28. While NGO participation adds a great deal of value and legitimacy to the monitoring system, it is also important to acknowledge some potential problems. First, large numbers of NGOs submitting alternative reports and wishing to participate in pre-sessional meetings and review sessions may increase the inefficiency of the monitoring body. This concern may be exacerbated by the competing agendas of diverse groups of NGOs. Given this problem, the monitoring body may have to limit NGO participation to some degree by granting "consultative status" to a given number of NGOs. Alternatively, the monitoring body could encourage NGOs to form coalitions to reduce the number of representatives involved in the process. In doing so, however, the monitoring body should be careful not limit NGO involvement so much as to reduce the value-added they bring to the process.

29. Another potential problem has to do with accountability. While states generally send government delegates to represent state interests in review sessions (and, in at least most cases, these delegates are accountable to some degree to the citizens to the county they represent), it is not always obvious to whom NGOs are accountable. This situation is especially apparent in the case of international NGOs who often represent the rights of people outside their own countries. With considerable effort, issues of accountability can be resolved if the monitoring body thoroughly analyzes the legitimacy of NGOs participating in the process of supervision. The body could establish clear guidelines for choosing the national and international NGOs to be involved. Again, the monitoring body should take heed not to hinder NGO participation by establishing overly restrictive guidelines.

30. Thirdly, NGOs may not always understand the constraints faced by UNHCR and the monitoring body. "They often criticize, without realizing that, while a given solution we put for the for a specific case may not be ideal, it is often the lesser of evils and the best for refugees."37. NGOs may become frustrated with UNHCR's tedious bureaucratic processes, since most often they are less constrained by institutional "red tape."38. Additionally, NGOs may feel that their efforts are underutilized and even thwarted by lack of information about opportunities to participate in the monitoring process. A possible solution to the issues mentioned here is to create a systematic channel of communication between the monitoring body and NGOs to both enhance and facilitate NGO participation. "The flow of information [between treaty bodies and NGOs]…depends on the access which NGOs have to the process."39. This will help reduce tensions between the two groups, allowing NGOs to better understand the reasons and processes underlying the monitoring body's decisionmaking. Referring back to the example of the ICESCR Committee, a system could be established to make the most effective use of NGO efforts by continuously updating NGOs on the growing opportunities for contributing to the monitoring process. 40.

31. A fourth issue that arises is that state members of the Refugee Convention may be reluctant to accept the presence of NGOs in the monitoring system. In fact, this was observed in the case of the Commission of Human Rights Committee. But as Alston notes, the "position [of NGOs] will never be accepted more than grudgingly by the States that make up the Commission [on Human Rights]. If it were otherwise, it would be safe to say that NGOs were not behaving as they should: in an informed, independent, critical, and uncompromising manner." 41. Additionally, in some cases, states may doubt the sincerity of NGO efforts to protect refugee rights, choosing to believe instead that NGOs have a "hidden agenda" to cast doubt on the "moral status" of states.42. In extreme cases, this difficulty may prevent states from complying with their reporting obligations altogether, or likewise deter non-member states from signing on to the Refugee Convention to begin with. This, however, may be an insurmountable problem associated with formalized NGO participation, since states and NGOs will likely continue to have competing agendas: the states to prove their efforts to comply with the Convention, and the NGOs to highlight any shortcomings. Despite the perhaps necessarily antagonistic nature of state-NGO relations, the systematic inclusion of NGOs is still overall beneficial in the monitoring system bearing in mind that the ultimate goal is the stronger protection of refugees.

32. To a certain degree, states have been prepared to accept NGO participation in the process of monitoring human rights treaties. For instance, strategic use of NGOs' time and energy assures a process of meaningful scrutiny, rather than rendering it a superficial exercise. Additionally, NGOs provide valuable information using their own pool of resources, significantly easing the financial burden on the treaty bodies to accumulate the necessary information. NGO participation increases the efficiency of information flows to the monitoring body and eliminates the need to create additional bureaucratic processes for information to be gathered and circulated.

E. The Role of Judges and National Legal Systems

33. Iwasawa notes that, "[a] prominent feature of contemporary international law is the growing interaction between international law and national law, and the area of human rights is no exception."43. Much of the success of any treaty monitoring body will depend on the extent of this interaction. In other words, it will depend on the domestic realization of international human rights norms and the application of these norms in the substantive decisions of domestic courts and tribunals and the policies implemented by the government.44. This involves undertaking the challenge of convincing domestic judges, policymakers, etc. that international "human rights law is law."45.

34. The domestic application of international law "by municipal courts and other domestic legal operators is the keystone of international law itself."46. Indeed, this places a great deal of importance on the role and the attitudes of the judiciary in determining the domestic effect of international law, and on the activities of national human rights commissions in ensuring the compliance of laws and practices with the state's treaty obligations. Thus, an effective monitoring body should essentially work to empower domestic actors to carry out the necessary changes to protect refugees.

35. There are a number of state actors that can influence the domestic implementation of international standards for refugee protection: judges, national human rights commissions, policymakers, legislators, government agencies and administrators, ombudspersons, etc. This section emphasizes the role of judges, in particular, given their relative impartiality, independence, and potential to effectuate legal change. The following section will go on to describe potential contributions of national human rights commissions in monitoring the Refugee Convention.

36. While the independence of judges likely precludes them from participating as individuals in monitoring activities that entail assessing the adequacy of judicial decisions rendered at the national level (i.e. reviewing state reports), there are several possibilities for involving judges in the monitoring process, with a view towards the creation and implementation of legislation to protect refugees on the domestic level.

37. First it is important to recognize the remarkable developments over the last several years of an international assembly of judges from nearly all legal cultures and parts of the world responding to issues related to refugees. Largely in response to the vast growth in asylum seekers over the last decade, the International Association of Refugee Law Judges (IARLJ) was created in 1997 and brings together 423 judges and adjudicators from 66 countries to work collectively on the interpretation and application of refugee law.47. As an international body, the IARLJ is relatively independent, and removed from the particularized responsibilities of individual judges. Because of this unique characteristic, the IARLJ as an organization may be able to participate in a broad range of supervisory activities.

38. Secondly, even individual judges could be called upon to advise on the preparation of general comments. Inviting participation of judges in this way would increase the likelihood that the comments do not "fall on deaf ears," as the saying goes, since judges would now be more invested in ensuring that the conclusions are referred to on the domestic level. Judicial involvement would also help to avoid pitfalls in the realization of general comments by increasing awareness within the supervisory body of domestic legal concerns that might hinder adequate implementation. As experts in legal institutions, judges may have more insight into the variety of factors that affect domestic implementation of general comments, as well as realistic expectations for state compliance given these factors. Third and related, the monitoring body could consult judges throughout the monitoring process in matters that require legal interpretation. "An informal system of review by judges could be established… [to] offer a forum in which adjudicators can discuss the interpretation and the implementation on an advisory and informal basis." 48. This type of "judicial body" could be a way for judges to provide preliminary opinions on relevant issues that may arise.49. Judges would be well suited to interpret highly legalized articles in the Refugee Convention, particularly articles 1 and 31-33.

39. A fourth, more inclusive option is to incorporate judges in the process of resolving collective complaints, along with members of the monitoring body. Of course, this type of arrangement would necessitate measures to ensure that no judge would be called upon to hear a complaint arising out of his or her own jurisdiction. For example, the IARLJ might play a part in naming judges to a panel that examines collective complaints. As participants in a review panel, judges have the potential to establish a rapport with other national judges, and to influence the enforcement of treaty-based rights. Involving judges in the work of the monitoring body would also create stronger national linkages, which is what will essentially help to universalize the rights of refugees put forth in the Refugee Convention.

40. More consistent interrelationships with judicial and administrative procedures could help increase the strength and legitimacy of international effort to oversee the Refugee Convention ,50. as well as increase efficiency. As the Refugee Convention becomes formally integrated into "the law of the land," judges and policymakers will be expected to apply its provisions,51. and the responsibility protecting refugees will be placed more at the national level. This would help to ensure the viability of the collective complaints process, for example, as complainants would be required to exhaust the domestic solutions reasonably available to them before filing a collective complaint with the Refugee Convention. As more states introduce or strengthen domestic mechanisms to address complaints,52. the number of complaints to be resolved by the Refugee Convention monitoring body will be reduced.

41. There are, however, some potential weaknesses associated with involving judges in oversight of the Refugee Convention. For instance, some judges may be "tempted to adopt a 'minimalist' or passive interpretation" of the Refugee Convention.53. The Supreme Courts of Denmark, Norway, Sweden, and Finland provide good examples of this in their approach to implementation of the European Convention on Human Rights (ECHR). These courts seem to have taken fairly passive positions in the application of the ECHR, such that "if no precedent can be found, the Convention need not be applied."54.

42. Another possible complication is that judges may seek to promote existing domestic mechanisms, such as "drawback doctrines" in the United States, which would restrict the applicability of international norms in certain cases.

43. On the other hand, judges may also be expected to take a more "active" approach to the domestic application of the treaty, which would require them "to develop international human rights law by giving new answers to new questions." Clearly, the complex system of human rights treaties, international organizations, and the emergence of new cases and conclusions facilitates the success of this approach to domestic implementation of human rights norms by providing a wide range of information to judges. For example, "the concluding observations adopted by the United Nations treaty bodies or the case law emerging from the application of the European Social Charter (ESC) can be sources of inspiration for a creative judge at the national level." 55.

F. National Human Rights Commissions and the Refugee Convention

44. A number of possibilities also exist for involving national human rights commissions in the monitoring process. Many countries have established (or are in the process of establishing) human rights commissions to facilitate the implementation of both domestic and international human rights standards. Gallagher defines these institutions as "independent entities which have been established by the government under the constitution or by a law and entrusted with specific responsibilities in terms of the promotion and protection of human rights."56. Like courts, national human rights commissions have a significant advantage over international bodies in the enforcement of human rights in that they are in a position to carefully consider "national peculiarities," such as cultural, religious, and ethic diversity, and carry out their activities "in a more informed and sensitive manner than any international body."57. Their "national character" allows them to "translate [universal principles] into practical measures at the level where it most matters."58.

45. Many national human rights commissions are explicitly assigned a role in monitoring compliance vis-à-vis international human rights treaties.59. The monitoring role of national commissions often includes responsibility for ensuring that national laws and practices are consistent with the state's treaty obligations. For example, the Australian Human Rights and Equal Opportunity Commission (HREOC) is the implementing agency for several human rights treaties including ICCPR, CEDAW, CRC, and CERD.60. The Commission was established by the Human Rights and Equal Opportunity (HREO) Act of 1986 and is responsible for promoting human rights education, investigations into alleged infringements of human rights, and the attempted resolution of complaints.61. HREOC has often served a vital role in advocating for the fair treatment of asylum seekers.

46. Like judges, representatives from national human rights commissions could be called upon to review general comments, as they could lend unique insight into domestic application of international standards for refugee protection. Perhaps more logically than judges, representatives from national human rights commissions could participate in the process of reviewing state reports, serving in an ad hoc capacity alongside the members of the monitoring body.

G. Summary

• The effectiveness of a monitoring body largely depends on its ability to establish national linkages by formally involving NGOs, judges and judicial systems, as well as and national human rights commissions in the monitoring process.
• As borne out in the experience of other treaty bodies, NGO participation could significantly enhance effectiveness of mechanisms established to monitor the Refugee Convention (i.e reporting, complaints, general comments, and investigations). NGOs could participate in the monitoring process at various levels. These may include providing information to supplement state reports; attending pre-sessional or plenary meetings to comment on reports coming under consideration; organizing groups of refugees and advancing collective complaints; assisting in the preparation of general comments; and fulfilling an advisory role in the investigative process.
• Judges also have a role to play in the monitoring process, most obviously in regard to questions of legal interpretation. An informal system of review by judges could be established as a forum for discussing the interpretation and the implementation of refugee law. IARLJ may be a suitable partner with which to design the modality of participation.
• Judges could also be involved in reviewing general comments. This would both sensitize judges to the content of general comments and increase awareness of domestic concerns that affect their implementation. Judges could also participate in resolving collective complaints, so long as no judge is called upon to hear a complaint from his or her own jurisdiction.
• Representatives from national human rights commissions could participate in the monitoring process by reviewing general comments and, in particular, by serving as ad hoc members of the supervisory body for purposes of reviewing state reports.

1.L. MacMillan and L. Olsson, 'Rights and Accountability,' Forced Migration Review, 10 April 2001, p. 5. (http://www.fmreview.org.1012.htm)

2.Ibid., at p. 1.

3.Ibid., at p. 2.

4.S. Takahashi, 'The Refugee Convention: the Search for Effective Monitoring' (May 2001), p. 2. (quoting G. Goodwin Gill)

5.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 (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 132.

6.Ibid., at p.131.

7.Ibid., at p. 133

8.M.R. Bustelo, 'The Committee on the Elimination of Discrimination Against Women at the Crossroads,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 104.

9.MacMillan and Olsson, n. 1 above, p. 5.

10.Leckie, n. 5 above, at p. 130.

11.Ibid., at p. 130.

12.Leckie, n. 5 above, at p. 134

13.G. Lansdown, 'The Reporting Process Under the Convention on the Rights of the Child,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 119.

14.Ibid., at p. 119; Takahashi, n. 4 above, p. 10.

15.International Law Association, Helsinki Conference (1996), Committee on International Human Rights Law and Practice, First Report of the Committee 'Report on the UN Human Rights Treaties: Facing the Implementation Crisis.'

16.Lansdown, n. 13 above, at p. 119

17.Bustelo, n. 8 above, at p. 104

18.Bustelo, n. 8 above, at pp. 106-107

19.R. Bank, 'Country-Oriented Procedures Under the Convention Against Torture: Towards a New Dynamism,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p 151.

20.Andrew Clapham, 'UN Human Rights Reporting Procedures: An NGO Perspective,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p 186-87.

21.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 (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 51.

22.Banton, n. 19 above, at pp. 69-70

23.Ibid., at p. 72.

24.Ibid., at p. 72.

25.C. Berthiaume, 'NGOs: Our Right Arm,' UNHCR, http://www.unhcr.ch.

26.UN doc. A/AC.96/847, 7 August 1995; UNHCR, http://www.unhcr.ch.

27.UNHCR, http://www.unhcr.ch.

28.Berthiaume, n. 25 above.

29.Ibid.

30.Ibid.

31.Ibid.

32.Global Consultations on International Protection, Expert Roundtable, Cambridge, UK, 9-10 July 2001, "African Perspectives on Article 35 Supervision of the 1951 Refugee Convention and Complementary Monitoring Mechanisms," (submitted by WARIPNET/RADDHO, Africa Legal Aid, and Lawyers for Human Rights), p. 4.

33.Bank, n. 19 above, p. 148.

34.Bustelo, n. 8 above, p. 107.

35.Steiner, n. 21 above, at p. 21.

36.Bustelo, n. 8 above, at p. 107.

37.Berthiaume, n. 25 above. (quoting Dessalegn Chefeke, Director of UNHCR's Regional Bureau for the Americas and the Caribbean)

38.Ibid.

39.International Law Association, Helsinki Conference (1996), n. 15 above.

40.Bustelo, n. 8 above, at p. 107

41.P. Alston, 'The Commission on Human Rights,' in The United Nations and Human Rights: A Critical Appraisal (ed. P. Alston, Clarendon Press, Oxford, 1992), p. 203.

42.Ibid.

43.Y. Iwasawa, 'The Domestic Impact of International Human Rights Standards: The Japanese Experience,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 245.

44.M. Scheinin, 'Domestic Implementation o International Human Rights Treaties: Nordic and Baltic Experiences,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), p. 231.

45.Ibid., at p. 241.

46.Ibid., at p. 231. (quoting B. Conforti)

47.International Association of Refugee Law Judges, http://www.iarlj.nl.

48.Cambridge Expert Roundtable, n. 31 above, para. 10(e).

49.Ibid.

50.Global Consultations on International Protection, San Jose Regional Experts Meeting, 7-8 June 2001, para XXX.

51.Scheinin, n. 46 above, p. 230.

52.Ibid.

53.Ibid., at p. 232.

54.Ibid.

55.Ibid.

56.A. Gallagher, 'Making Human Rights Treaty Oblligations a Reality: Working with New Actors and Partners,' in The Future of UN Human Rights Treaty Monitoring (eds. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2001), pp. 202-203.

57.Countries that have established national human rights institutions included: Australia, Cameroon, Canada, Ghana, India, Indonesia, Latvia, Liberia, Mexico, New Zealand, the Philippines, South Africa, Sri Lanka, Uganda, and Zambia. Many others have made significant steps in this direction.

58.Gallagher, n. 60 above, p. 203.

59.Ibid., at p. 211.

60.Ibid., at p. 212.

61.Australian Human Rights and Equal Opportunity Commission, http://www.