Working Paper No. 6: "U.N. Linkages"

"Overseeing the Refugee Convention"

Working Paper No. 6:

"U.N. Linkages"

By
Aiman Mackie

A collaboration of the
International Council of Voluntary Agencies
and the
Program in Refugee and Asylum Law
University of Michigan

Prof. James C. Hathaway, Research Director

December 2001

1. The protection of refugees necessarily exists within a human rights context. Hence, at the most basic level, protecting refugees entails ensuring that their basic human rights are upheld wherever they are located throughout the world, especially by those states that are parties to the Refugee Convention. The complementarity between refugee rights and human rights brings about parallel, yet imperfect, complementarity between the actual provisions of the Refugee Convention and those delineated in the more general norms of international human rights law. In other words, there are missing links in the human and refugee rights systems, the result of which is a lack of adequate protection for refugees.

2. Before departing her post, High Commissioner for Refugees Ogata made clear that "there is an impressive array of international, regional, and national human rights standards and structures which must continue to evolve to ensure that gaps and weaknesses are identified."1. There is clearly a logic to cooperation between a supervisory body for the Refugee Convention and the supervisory bodies established for other the human rights regimes, particularly those within the United Nations system.

3. Ideally, cooperation should moreover move beyond the mostly ad hoc programs established intermittently in the past. The Joint Meeting of the Chairpersons of Human Rights Treaty Bodies (hereinafter, the Joint Chairpersons) has advocated more formal mechanisms of cooperation. As the UN human rights system moves towards consolidation and unification of all its parts, the case will be made here that the supervisory body of the Refugee Convention and those of the UN human rights treaties are necessary partners in implementation.2.

4. At the Cambridge Expert Roundtable, convened by UNHCR and the Lauterpacht Research Center for International Law, it was agreed that complementarity among the monitoring mechanisms should lead to cooperation, and avoid competition: There is no one single model used by treaty monitoring bodies with can simply be replicated and applied to supervising implementation of the 1951 Convention…There is also need to ensure complementarity with human rights treaty-based monitoring systems and to avoid competing interpretations which might arise with several with bodies with overlapping competencies. A need for confidentiality in certain circumstances need not rule out speaking out in others. 3.

5. Overlaps have led to both clear and subtle cases of discrepancies between and among the provisions of regional and international human rights treaties.4. Unsurprisingly, concluding observations among the treaty bodies may also vary.5. Yet, treaty bodies have mostly been able to "present a comprehensive and rounded picture of the situation of human rights in that country, each committee focusing on the implementation of their treaty with appropriate cross-referencing when necessary."6.

6. The past three consecutive sessions of the Joint Chairpersons of U.N. Treaty Bodies have focused on how to establish greater cooperation among the UN treaty bodies.7. This commitment is undoubtedly a response to criticism of the treaty system as a whole, which has been seen by many as lacking in both consistency and coherence.8. Just as significant, cooperation between the treaty bodies and other UN agencies has also figured in highly on the Joint Chairpersons' agenda. Indeed, this forum is perhaps the strongest catalyst in establishing cooperation among the supervisory bodies.9. Cooperation with agencies outside of the traditional human rights system is also undertaken. To this end, representatives from agencies such as UNHCR and ILO usually participate in this annual meeting to explore ways to foster "mutually beneficial" relationships in their human rights activities.10.

7. At their twelfth meeting in 2000, the Joint Chairpersons focused primarily on inter-body cooperation, from which a Four-Year Plan of Action emerged.11. While the Plan of Action stressed the need for increased administrative and financial assistance, the underlying aim is to channel resources towards activities that would strengthen the type of cooperation considered thus far. 12.

8. A key component of the Joint Chairperson's cooperation scheme is the creation of electronic databases that would include comprehensive information pertaining to state activities. Furthermore, these databases would assemble in one location the treaty bodies' full texts of significant documents, such as concluding observations, general comments, etc.13. This type of information sharing will be essential in creating a follow-up mechanism. The "detailed cataloguing of [state parties'] implementation actions" included in the databases will make it easier for the treaty bodies to effectively oversee states' implementation of recommendations specified in communications.14.

9. Cooperation among United Nations agencies in the human rights field stems from both a legal framework enshrined in the UN Charter and from the fact that treaty bodies have complementary mandates. Article 55 (c) of the Charter calls for the UN to promote "universal respect for, and observance of, human rights and the fundamental freedoms for all without distinction as to race, sex, language, or religion." Article 58 specifically concerns coordination of UN agencies which, as Article 63 delineates, can be achieved through the Economic and Social Council, under which the human rights treaty bodies operate.

10. Substantively, the Refugee Convention can, in many ways, be considered a "Refugee Bill of Rights." 15. For example, Article 3 stipulates that state parties cannot discriminate on the basis of race, religion or country of origin when applying the provisions of the Convention. Article 4 mandates freedom of religion. Article 16 provides for free access to courts and equal treatment within the legal system. Articles 17, 18 and 19 govern rights to engage in work and self-employment. Article 21 provides that the state parties must grant refugees access to public housing. 16.

11. Yet many of these same concerns are addressed under other U.N. human rights treaties. In particular, the Human Rights Committee (HRC), the treaty body of the ICCPR, has used the general comment procedure to clarify that virtually all of the civil and political rights provided for in the Covenant apply to "everyone," or to "all persons," or "every human being."17. Most explicitly, the HRC has asserted that all of the rights under the Covenant apply equally to both citizens and non-citizens.18. The sole exception noted is Article 25, which governs voting and participation in public affairs.19. Furthermore, the HRC has even affirmed that the Covenant extends to instances where the state party even has extraterritorial jurisdiction.20.

12. Other treaty bodies employ comparably broad language. Article 2 of the CAT requires a state to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." States that are party to CERD are required to "assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other state institutions." Article 2 of the CRC mandates that "state parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction."

13. Indeed, Gorlick leads us in the right direction by making the following observation relating the mandate of the human rights treaties to the situation of refugees: The consistency of the language used in the international human rights treaties, as well as the authoritative reasoning of the Human Rights Committee as well as other international and regional human rights bodies, would confirm the legal obligation of state parties to ensure that human rights are extended to individuals who [are subject to] a state's formal jurisdiction or exercise of authority. In the case of refugees, human rights principles are readily applicable as usually there is an identifiable state, as demarcated by a border or territorial crossing, which gives rise to a claim by a refugee to seek human rights protection from that state…These pronouncements by the treaty bodies are not hollow as they provide legal benchmarks which should serve to govern and inform state policy and practice, and not least they serve to progressively develop international law.21.

14. Article 22(1) of the Convention on the Rights of the Child (CRC) provides a unique textual basis for close cooperation in between a refugee treaty supervising body and another oversight body. Article 22(1) of the CRC provides for any refugee child to receive "appropriate protection and humanitarian assistance in the enjoyment of the applicable rights" included in the Convention and via other human rights mechanisms.

15. For these reasons, UNHCR has followed the work of the CRC closely. Gorlick reports that UNHCR has been represented at every session of the CRC since it began its work in 1991.22. The relationship takes on three interconnected purposes. The first involves information exchange between the Committee and UNHCR on refugee and asylum-seeking children. CRC also depends on information gathered from UNHCR field offices worldwide when considering its reports. UNHCR regularly dispatches reports to the CRC containing its policy principles, in particular those that form the basis of UNHCR's advocacy before the Committee. It has also not been unusual in the past for UNHCR field offices to facilitate CRC's in loco investigations.23.

16. The second type of cooperation takes the form of awareness-raising activities, whether through field offices or concluding observations, by both UNHCR and the CRC. The third type of cooperation encompasses programs for the advocacy of specific principles and concerns with regards to the protection of refugee children. This advocacy, of course, represents a fulfillment of both UNHCR and CRC mandates, even though it relates to a specific group of beneficiaries in both cases.

17. Indeed, the positive result of these activities can be observed in the substantive output of both agencies. CRC's concluding observations on state reports, which in many instances raise refugee protection issues, regularly refer to principles in the Refugee Convention. CRC- sponsored discussions have commonly featured UNHCR as a key and active participant.24. In turn, the UNHCR also has incorporated principles of the CRC into the development of its protection policies and responses for refugee children.25.

18. Beyond the logic of a close relationship based on CRC Art. 22, it is important also to note that the Refugee Convention does not contain any article mandating specific forms of family unity and the reunification of refugee children. Indeed, there is instead only a recommendation for "Governments to take the necessary measures for the protection of the refugee family…1) [to ensure family unity, and] 2) [to protect] refugees who are minors, in particular unaccompanied children and girls…"26. In contrast, the CRC is explicit in its Article 22(2), requiring states to ensure adherence to the principle of family unity for refugee children. Hence, in a situation where the Refugee Convention supervisory body is considering a case in which the state has clearly failed to ensure the protection to refugee children, in particular reunification with family, then this case could be referred to the CRC oversight body which, is legally empowered to enforce such concerns.

19. Like the CRC, the Convention Against Torture (CAT) presents a case for particularly close cooperation with a supervisory body for the Refugee Convention. One of the most important foundations in the international legal protection of refugees is the right of non-refoulement under Article 33 of the Refugee Convention. A comparable right is provided for under Article 3 of the CAT, albeit under a broader and more general mandate, which prohibits the return or expulsion of an individual to his country of origin where he or she could face torture.

20. While there has been cooperation between CAT and UNHCR, it has been sporadic and not close enough. UNHCR has been involved in the CAT process by sharing information and at times by following-up with the particular state party to monitor its compliance with the Committee's recommendations.27. Yet the argument for a much closer form of collaboration is clear. The scope of the CAT-based prohibition of refoulement is sometimes broader than that under Art. 33 of the Refugee Convention, specifically because it does not require that the risk be linked to civil or political status. Conversely, the duty of non-refoulement under the Refugee Convention may be more broad, as it prohibits return not only to the risk of torture, but to a much broader range of persecuting harms. Collaboration on all fronts - reports, complaints, general comments, and investigations - is clearly warranted by these mutually reinforcing mandates.

21. In this section, we consider cooperation between the Refugee Convention supervisory body and the human rights treaty bodies which do not explicitly have a mandate that resembles refugee law, but whose normative commitment nonetheless overlaps with refugee law. Specifically, this would include the HRC, CESCR, CEDAW, and CERD.

22. As discussed previously, rights under the ICCPR complement those in the Refugee Convention. The Human Rights Committee's general comments emphasize the universal applicability of the Covenant's principles to non-citizens, including refugees. However, the consideration and inclusion of refugee issues in the HRC's concluding observations on state reports remains inconsistent.28. Nonetheless, there have been several instances in which the HRC voiced its concerns with a state party's handling of refugee issues and which, in turn, resulted in affirmative action taken to implement a corrective measure.

23. The ICESCR recognizes the right of all individuals to an adequate standard of living, which includes the provision of food, clothing and accommodation. However, the rights provided by ICESCR are "to be achieved progressively," which will have to take into account the particular state's ability in meeting these needs.29. Hence, the ICESCR allows for "differential" treatment between nationals and non-nationals, specifically refugees, when it is based on "reasonable grounds."30. One particularly notable exception to the general rule of extending general human rights protection to refugees and other non-citizens is Article 2 of the Economic Covenant, which states that "developing countries" retain discretion as regards the extent to which they grant economic rights to "non-nationals." This critical gap calls for very close collaboration between the ICESCR Committee and a supervisory body for the Refugee Convention to ensure that concerns involving the violation of the economic rights of refugees are identified, since the Refugee Convention - unlike the ICESCR - does not exempt less developed states from the duty to guarantee economic rights to refugees.

24. Despite the fact that women and children constitute almost 80% of the world's refugee population, neither the Refugee Convention nor the definition of a refugee refers explicitly to sex or gender. In contrast, the CEDAW is one of the strongest, and most explicit, instruments in requiring states to protect and promote women's rights. For instance, Article 5 of CEDAW requires states to modify the social and cultural patterns that would give rise to discrimination. Thus, even though CEDAW does not explicitly mention refugee women it nonetheless can be considered a "women's bill of rights,"31. clearly enabling it to serve the needs for protection of many refugee women.32.

25. In pursuit of consistency with the rest of the treaty body system, CEDAW is revising its procedures for issuing general comments and conclusions. This entails primarily substantive considerations, but also extends to operational processes.33. To this end, the Committee adopted a statement on the "indivisibility of civil and political rights and economic, social and cultural rights and the centrality of gender awareness to the enjoyment of those rights for consideration by at least two other treaty bodies, the [HRC] and the [CESCR.]"34. This should come as a clear expression of CEDAW's intentions to establish effective cooperation to avoid inconsistency. Effective cooperation with the Refugee Convention's supervisory body would therefore likely be of interest to the CEDAW committee.

26. Finally, the commitment in the Refugee Convention to avoid all discrimination in the allocation of refugee rights (Art. 3) complements the position taken by the supervisory body for the Convention on the Elimination of all Forms of Racial Discrimination (CERD) in its General Comment 22, pursuant to which "everyone is entitled to all the rights and freedoms set out [in CERD]."

27. It may also be logical for a Refugee Convention supervisory body to consider relationships to advance refugee rights with organizations other than of UN treaty bodies. The ILO and UNESCO, in particular, have established supervisory procedures which may facilitate the indirect enforcement of refugee rights.

28. The ILO offers a supervisory mechanism to ensure implementation of its 175 Conventions. 35. Refugees might invoke rights, for example, under the conventions which deal with "all migrant workers."36. Much like the human rights treaty system, the process involves state reporting. These reports are examined through a unique process that begins with an independent body known as the Committee of Experts on the Application of Conventions and Recommendations. The Committee of Experts issues concluding observations that are then considered by a Special Tripartite Conference Committee, which involves representatives of the ILO, the national government, and employers.

29. The Committee of Experts often goes beyond government reports to consider comments made by employers and workers' organizations. A comment from one or both of these groups would prompt the "request of a report" from the government outside of the normal submission cycle. The Committee then decides whether to issue observations, which are published in an annual report. The reports are then passed on to the Conference Committee, which discusses the reports in public. Full reports of these discussions are then published in ILO's annual report and deposited in the ILOLEX database.

30. UNESCO also has institutionalized a supervisory mechanism with a limited mandate to consider violations of human rights in the fields of education, science, culture and information.37. Its supervisory body is known as the Committee on Conventions and Recommendations, which is a subsidiary of the UNESCO Executive Board.38.

31. Under a confidential complaints procedure, individuals, groups of individuals, and NGOs may submit reports of an alleged violation in the named fields of UNESCO's competence. Upon receipt of the complaint, the Committee alerts the national government concerned, which then has an opportunity to submit a reply. The government has the option of attending the Committee's meeting, with the purpose of assisting the Committee in deciding on both the admissibility and the merits of the complaint communication.

32. Neither the ILO nor UNESCO provides much room in their supervisory and implementation procedures for "interventions" by other human rights supervisory bodies. However, cooperation has taken place at the formative level, especially during the standard-setting periods of both agencies. For instance, UNESCO's resolution that created its supervisory committee calls for "close co-operation and co-ordination with the relevant United Nations organs so as to take advantage of their work and the lessons that can be learned from them in this field." 39. Furthermore, ILO and UNESCO are always represented at the Joint Chairpersons' meetings.

33. In this section we consider how to operationalize complementarity between the Refugee Convention's supervisory body and other relevant mechanisms. We first remind the reader of the essential roles of complementarity. Complementarity implies cooperation, and it arises in human rights treaty bodies when refugee rights are involved and, likewise, in the proposed Refugee Convention supervisory body when human rights violations are encountered. To this end, reciprocity and a reliable transfer of information are necessary features of cooperation schemes.

34. A first means of operationalizing cooperation would be to build upon the current efforts being undertaken by the Joint Chairpersons. Specifically, this involves the Common Early Entry Point System (CEEPS), which is a technical program being developed with the aim of promoting information exchange among the human rights treaty bodies. The case has already been made for for access by a Refugee Convention supervisory body to the state reports being considered by cognate treaty bodies, as well as to the concluding observations issued by them. Inclusion of the work products of the Refugee Convention's supervisory body in the CEEPS system would facilitate the ability of those bodies to take account of refugee-specific concerns in their work.

35. A second type of to collaboration might be modeled on the strong working relationship between UNHCR and the CRC treaty body. This might involve the appointment of liaison officers, whose responsibility would be to facilitate information exchange and monitor activities being undertaken by the relevant agencies, and for alerting the appropriate supervisory body of relevant work undertaken in the context of both human and refugee rights. Liaison officers could facilitate referrals among the different bodies, and could play a significant role in follow-up procedures.

36. Personnel exchange or representation between the human rights treaty bodies and other UN agencies is not new or foreign. Indeed, the UN Food Program Agency (UNFPA) seconds a full-time staff member to the Office of the United Nations High Commissioner for Human Rights (OHCHR) to enhance the collaboration between the two organizations.40. The Joint Chairpersons have indeed already show their support for those responsible for refugee treaty implementation to be an "implementation partner" at important discussion events such as thematic discussions, roundtables and even "general comments organized/developed by treaty bodies."41.

37. A fourth mode of cooperation would focus on rationalization of the duty of states to submit reports. One of the consequences of overlap in the mandates of the supervisory bodies is that states inevitably submit overlapping information in their various reports. If there is movement towards including refugee issues in state reports submitted to all treaty bodies, it is easy to see how this could create even greater duplication. A sensible answer to this concern would be to consider the viability of one consolidated and comprehensive report for human, and refugee, rights treaty bodies. At the very least, even if there are separate reports submitted, the supervisory bodies could deposit them into CEEPS so that cross-referencing by both the reporting states and supervising bodies is facilitiated.

38. Fifth, in relation to the complaints mandate of a refugee supervisory body, the absence of a purely individuated, "do justice" complaints procedure proposed here (see Working Paper No. 2) clearly calls for a system under which particularized complaints by refugees involving rights abuse under the jurisdiction of another human rights body's procedures are directed to that partner institution's procedure.

39. Human rights treaty bodies have in practice been most quite attentive to the work of other treaty bodies when drafting their general comments. It would make most sense for the proposed Refugee Convention supervisory body to follow this custom of careful consideration and attentiveness to the comments authored by other treaty organs. Equally important, the Refugee Convention supervisory body should carefully monitor efforts by other treaty bodies to draft general comments of relevance to the enforcement of refugee rights, and bring relevant considerations to the attention of those other bodies.

40. Cooperation in the exercise of investigative capacity, is also essential. It is quite conceivable that there will be instances where the Refugee Convention body will need to undertake a country investigation at the same time as human rights treaty body. Hence, coordination willbe essential, especially keeping in mind the state's likely reaction, which is usually averse to investigations. Furthermore, investigations should be undertaken with the fullest consideration of available information, which would promote a better understanding of the context of the investigation, and hence make investigations more strategic, and therefore, more effective. Information exchange and, in particular, personnel exchange among the treaty bodies will facilitate a more successful investigative role.

1.B. Gorlick, "Human Rights and Refugees: Enhancing Protection Through Human Rights Law" New Issues in Refugee Research. Working Paper No. 30. October 2000, pp. 5.

2.The NGO Community has also contributed much in its analysis of cooperation between a UNHCR supervisory body and other monitoring mechanisms. The San Jose Experts Meeting emphasized the need for complementarity between the HCR supervisory body and the supervisory bodies of regional mechanisms such as those bodies linked to the Inter-American system of Human Rights and "civil society organizations." [See Global Consultation on International Protection: San Jose Regional Experts Meeting, 7-8 2001. "Conclusions and Recommendations" at paras.26-29.] Indeed, while the principle of complementarity among supervisory mechanisms is of utmost importance, it is out of the scope of this paper to consider how regional mechanisms and CSOs, or NGOs, can complement a UNHCR supervisory body. Nonetheless, Working Paper No. 5 in this series analyzes the appropriate framework for establishing linkages with regional, or national, instruments and NGOs. Also see Rachel Brett (Quaker House United Nations Office) "Monitoring the Protection of Refugees: Some Thoughts and Comments on Walter Kalin's Paper," where concerns are raised about having complementarity, which could lead to "competition" in interpretation among various supervisory bodies.

3.Cambridge Expert Roundtable, Organized by the UNHCR and the Lauterpacht Research Centre for International Law (Cambridge University), 9-10 July 2001, at para. 9.

5.Tistounet reviews about 10 cases of where conclusions between, or among, treaty bodies differed on substantive, legal and other levels. See Tistounet supra at pp. 390-394.

7.In addition to the 2000 and 2001 sessions, there were also similar discussions at the eleventh meeting. See UN Doc. A/54/805 at paras. 25-30 for details.

8.S. Takashi, The Refugee Convention: the Search for Effective Monitoring. May 2001, pp. 15. Also see, Crawford in supra # 13.

13.Ibid. at Paras. 22-23. The treaty bodies' database will form the third component of the Common Early Entry Point System (CEEPS). The databases for the thematic mechanisms as well as the "1503" database, i.e. one specific to public discussions will be linked up together to create this comprehensive vehicle for information sharing; see UN Doc. No. HRI/MC/2001/2. Even though CEEPS was developed to be an integral instrument in the Treaty Bodies' operations, it is currently only utilized on an ad hoc basis, which, defeats its purpose in promoting effective cooperation. Also see, (HRI/MC/2001/Misc.3.

14.UN Doc. No. HRI/M/2000/4 at Para. 36. Another advantage expected output will be the availability of outlines of each Treaty body's concerns/questions raised during examinations of a specific state's report to that body. The Plan of Action also makes available additional resources to allow for each treaty body to convene during inter-session periods, providing much needed flexibility to respond to emergency situations.

17.Ibid., pg. 14. Specifically, CCPR General Comment 2, 23 and 24 relating to Articles 2, 27 and 41 contain language clarifying that the applicability of the rights in the Covenant apply to "all individuals under [a state party's] jurisdiction."

18.HRC General Comment No. 15 (1986) "The Position of Aliens Under the Covenant."

20.B. Gorlick, "Human Rights and Refugees," pp. 15. The Committee made this explicit in its concluding observations on a report submitted by the United States. These observations arose from the HRC's "disagreement" with the American government's infamous case of its handling of the situation of Haitian boat people in the mid-1990s. Comments of the Human Rights Committee, Fifty-third session, United States of America, at its 1403rd meeting held on 6 April 1995.

24.B. Gorlick, "Human Rights and Refugees" pp. 42. Recent discussions have focused on themes such as "The Administration of Juvenile Justice," "Protection of the Girl Child," and "International Cooperation and Technical Assistance."

25.Ibid. pp. 43. Gorlick provides specific instances and "landmark" cases in which the cooperation between HCR and CRC was integral.

26.Excerpt from the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, in Handbook on Procedures and Criterira for Determining Refugee Status. pg. 55-56

27.B. Gorlick, "Human Rights and Refugees," pp. 39. Gorlick also discusses specific cases in which CAT has been effective in persuading state parties to adopt national legislation specifically dealing with refugees. In many instances this has lead to the ratification of the Refugee Convention.

29.See UN Doc. No. EC/GC/01/17 at paras. 4-5, "Reception of Asylum-Seekers, Including Standards of Treatment, in the Context of Individual Asylum Systems."

30.See UN Doc. No. EC/GC/01/17 at paras. 4-5, "Reception of Asylum-Seekers, Including Standards of Treatment, in the Context of Individual Asylum Systems."

31.Refugee women are, however, identified and mentioned in Preamble to the Declaration. This is done in the context of identifying women who are vulnerable to violence.

32.For a comprehensive overview of international law instruments to protect (refugee) women, please see UN Doc. No. E/CN.4/1995/42, "Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission: Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms: Preliminary Report Submitted by the Special Rapporteur on Violence Against Women, its Causes and Consequences."

33.M. Bustello, "The Committee on the Elimination of Discrimination Against Women at the Crossroads," in The Future of Human Rights Treaty Monitoring. (ed. P. Alston and J. Crawford, Cambridge University Press, Cambridge, 2000) p. 97-98.

35.http://www.ilo.org/public/english/standards/norm/enforced/supervis/regsys2.htm

36.Specifically, ILO Conventions 97 and 143 as well as the 1990 Convention on the Protection of All Migrant Workers and their Families.

37.K. Samson, "The Protection of Economic and Social Rights Within the Framework of the International Labor Organisation,," (ed. K. Samson) The Implementation of Economic and Social Rights, pp. 634.