Working Paper No. 7: Coordination with UNHCR and States

1. The 50th anniversary of the Refugee Convention provides an opportunity to evaluate critically the current protection system. As the 2001 UNHCR Note on International Protection sets out in a grim catalogue, state parties to the Refugee Convention regularly disregard their obligations. Often, state parties do not even understand their obligations. There is an urgent need for states, and others, to know in clear and certain terms what their duties and responsibilities are, and to be held accountable for them.

2. Given its mandate to supervise the Convention, UNHCR is tasked to set universal standards and oversee the implementation of the Convention. However, UNHCR is dependent on states for its existence the mandate of the High Commissioner has to be renewed periodically; and for its effectiveness - UNHCR depends upon states for voluntary contributions to its budget and for agreeing to access to refugees. Consequently, UNHCR is constrained in terms of the depth of its criticism of states, and in terms of the transparency of its work with states to address violations of the Convention.

3. In order to provide direct and needed protection to refugees, UNHCR must maintain a presence on the ground. However, if UNHCR crosses a certain threshold and takes a hard line against a government, the agency risks losing its access to refugees. There is a common sense case therefore, as Professor Walter Kälin asserts, for saying that it is "clearly advisable to separate protection and supervision on the operational level."1.

4. The need for the Convention to be interpreted in a way that allows state parties to understand their responsibilities and to be monitored in a way that holds states accountable demands an independent mechanism that is unburdened by the constraints upon UNHCR. A mechanism separate from UNHCR should ideally supplement the protection work of UNHCR and fill in the gaps in supervision rather than detract from the organization's work. Effective supervision of the treaty would allow UNHCR to focus on its protection work, could foster state compliance in a way that would ease interstate tension, and ultimately would improve refugee protection. Whatever new mechanism is proposed to enhance the supervisory duty of UNHCR, critical questions to consider include its relationship to UNHCR, specifically the Department for International Protection; and to states, specifically to the Executive Committee of the High Commissioner's Programme (ExCom), the governing body of UNHCR, composed of 56 states held to have a special interest in solutions to refugee concerns.

A. UNHCR's Mandate.

5. UNHCR derives its mandate from several sources. These include the Refugee Convention, the 1950 Statute of the Office of the United Nations High Commissioner for Refugees (the Statute), ExCom Conclusions, state practice, General Assembly decisions and decisions of the Economic and Social Committee (ECOSOC). The mandate of UNHCR is unique, and cannot be devolved. However, as UNHCR has recognized in terms of its protection work, the responsibility for execution of this mandate can be shared with others.

6. Article 35 of the Refugee Convention grants UNHCR the authority to supervise "the application of the provisions of [the] Convention."2. What that entails is largely spelled out in Paragraph 8 of its Statute. The section provides that:
The High Commissioner shall provide for the protection of refugees falling under the competence of his Office by :
(a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto;
(b) promoting through special agreements with governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection;
(c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation within new national communities;
(d) Promoting the admission of refugees, not excluding those in the most destitute categories, to the territories of states;
(e) Endeavoring to obtain permission for refugees to transfer their assets and especially those necessary for their resettlement;
(f) Obtaining government information concerning the number and conditions of refugees in their territories and the laws and regulations concerning them;
(g) Keeping in close touch with the Governments and inter-governmental organizations concerned;
(h) Establishing contact in such manner as he may think best with private organizations dealing with refugee questions;
(i) Facilitating the co-ordination of the efforts of private organizations concerned with the welfare of refugees.3.

7. Para 8 (a) of UNHCR's Statute concerns UNHCR's supervisory role. That role is generally accepted to include:
(a) working with states to design operational responses which are sensitive to and meet protection needs, including the most vulnerable;
(b) making representations to governments and other relevant actors on protection concerns and monitoring, reporting on and following up these interventions with governments regarding the situation of refugees (e.g. on admission, reception, treatment of asylum-seekers and refugees);
(c) advising and being consulted on national asylum or refugee status determination procedures;
(d) intervening and making submissions to quasi-judicial institutions or courts in the form of amicus curiae briefs, statements or letters;
(e) having access to asylum applicants and refugees, either as recognized in law or in administrative practice;
(f) advising government and parliaments on legislation and administrative decrees affecting asylum-seekers and refugees at all stages of the process, and providing comments on and technical input into draft refugee legislation and related administrative decrees;
(g) fulfilling an advocacy role, including through public statements, as an essential tool of international protection and the Office's supervisory responsibility;
(h) strengthening capacity e.g. through promotional and training activities;
(i) receiving and gathering data and information concerning asylum-seekers and refugees as set out in Article 35(2) of the 1951 Convention.4.

8. The mandate and role of UNHCR are, therefore, fairly clear and original. However, despite its legal authority, supervising implementation of the Convention by the UNHCR is wrought with difficulties.

B. How UNHCR lives up to its mandate.

9. UNHCR faces an inherent tension in discharging its mandate. It is charged with being an apolitical protection agency, but simultaneously with supervising the performance of states, the latter function being intrinsically political in nature.5. Performing one function well practically precludes UNHCR from performing the other function well. In order to carry out daily protection activities, UNHCR needs access to refugees, but if UNHCR vociferously criticizes states, UNHCR risks being thrown out of the country and losing its access to refugees.6. Despite its mandate to remain a non-political actor, UNHCR is highly politicised and is limited by states' concerns regarding sovereignty. Because it relies on states for its very existence, UNHCR must defer to the interests of its donors and host governments.7.

10. UNHCR is both politically and financially dependent on states. Less than 3% of UNHCR's funding comes from the UN's general budget. For the rest of its budget, UNHCR must rely on voluntary contributions, which in practice come from a very small group of states.8. Furthermore, UNHCR is governed by the 56 governments that comprise ExCom. UNHCR's existence and efficacy depend almost entirely on the wishes of the very states it oversees.

11. As a result, UNHCR is constantly in a position of compromise. UNHCR has all too often been forced to choose between providing direct assistance to refugees in need and indirectly protecting those refugees through critically evaluating state compliance with the Convention.

12. UNHCR's current priority is maintaining presence in countries of asylum and operating massive relief operations.9. In addition to the immediate and obvious benefits of such direct assistance, UNHCR defends its priority of maintaining a presence by asserting that effective monitoring can only be achieved through such presence. However, the monitoring which does take place is mostly secretive in nature, and UNHCR's ability to criticize governments if they do see problems is fatally hindered by its lack of independence.10.

13. In the last two decades, UNHCR's focus has shifted from legal protection to emergency assistance.11. The shift to humanitarian assistance has also led to a shortage of resources being directed towards refugee protection, manifested in the low ratio of protection officers to refugees, the infrequent intervention in asylum adjudication, and sometimes-poor quality of responses to draft legislation.12.

14. Despite these problems, the efforts of UNHCR in the arena of direct protection are varied, numerous and have largely been very successful as measured by their impact in the lives of refugees. UNHCR is involved, inter alia, with receiving asylum-seekers and refugees. Because of its presence in the field, UNHCR is able to play an active role in monitoring how states receive and protect refugees. For example, in a number of countries UNHCR has established monitoring arrangements at the border and has set up material assistance programs. The effectiveness of these programs depends on UNHCR's direct and unhampered access to refugees. Although mostly successful, this function has, unfortunately, been hindered by denial of access by states, insecurity and funding constraints.13. Anything that could be done to remove these obstacles would be beneficial.14.

15. UNHCR makes regular formal and informal representations to governments in order to improve admission and treatment of refugees.15. It undertakes the daunting and dangerous challenge of ensuring that refugees are safe in camps, and coordinates with national law enforcement to help strengthen the rule of law within refugee populated areas. Although physical safety of refugees remains a problem,16. and one for which there is no final solution, without UNHCR's efforts, there is no question that violence and mayhem would dominate in the camps.

16. In addition, UNHCR plays a role in promoting national legislation and asylum procedures. UNHCR has worked to strengthen national judiciaries. It helps draft legislation and comments on draft legislation to foster compliance with international refugee law as well as UNHCR guidelines.17. UNHCR will also draft advisory opinions in relation to individual cases, when those cases pose novel issues. States rely on UNHCR for this guidance, without which, domestic legislatures and judiciaries would often overlook or avoid their international obligations. Furthermore, refugee advocates as well as refugees themselves rely on UNHCR to help them establish their cases.

17. UNHCR systematically participates in national refugee status determination procedures. UNHCR has had a consistent advisory or consultative role in refugee status determinations. This means UNHCR is generally informed about cases, has access to applicants and can intervene when desired. Furthermore, in many states, UNHCR is responsible for conducting the actual determinations.18. In the latter case, UNHCR may represent the only opportunity a refugee has to access the asylum system and its benefits.

18. Facilitating voluntary repatriation is another of UNHCR's primary activities. UNHCR works to promote the safe and voluntary return of refugees when possible. This involves concluding voluntary repatriation agreements with states, which allow for assessment visits, monitoring, international access and reintegration. UNHCR's presence in countries of origin allows UNHCR to carry out many varied activities, which aim at encouraging a smooth repatriation process. Not only does UNHCR work to ensure a safe return, but UNHCR also works to ensure that once home, the returning refugees will find a sustainable situation. When voluntary repatriation or local integration are not realistic, safe options, UNHCR also works to resettle refugees to third countries.

19. In addition to these types of direct assistance activities, UNHCR's work takes the form of indirect protection. Indirect protection activities include education, teaching, training, advisory services, reconstruction assistance, publications, promotion and dissemination. 19. Indirect protection may also include standard setting and has, in some cases, become "soft law".

20. The activities described above are critical to the maintenance of the refugee protection regime. No new monitoring mechanism can or should seek to replace these activities. The trick of any new mechanism, then, is to ensure that its work complements and enhances the work of the UNHCR not merely formally - in the sense of supporting or even highlighting the mandate of the High Commissioner - but in practical ways to assist the daily protection activities of the Office.

C. Four new proposals.

21. As explained in greater detail in Working Papers Nos. 1-4 of this series, a new monitoring mechanism for the refugee protection regime can draw on four existing types of review: state reports, a complaints procedure, the issuance of general comments, and an investigative function. 20.

22. Although no attempt has been made to implement any kind of complaints procedure, UNHCR has, to varying degrees, engaged in each of the other three functions. Under its Article 35 power, UNHCR can request reports from states, and there is nothing formally to prevent UNHCR from issuing reports on compliance with the Convention or from publicly criticizing a state Party. However, state cooperation with UNHCR in providing information on compliance with the Convention has been extremely poor to date, and has been the subject of attempts by the EXCOM to remedy the situation. Furthermore, there is no formalized reporting procedure in place.

23. Both ExCom and the Department of International Protection (DIP) produce what resemble general comments.21. EXCOM is comprised of representatives from 56 countries and meets annually to review and approve the material assistance program of the High Commissioner, as well as to advise the High Commissioner on the exercise of his or her functions under the Statute. EXCOM is responsible for publishing Conclusions on International Protection, Notes on International Protection and annual reports.

24. Like any treaty, the Refugee Convention must be interpreted strongly, clearly and uniformly. Although early EXCOM conclusions once arguably satisfied these tests, in recent years EXCOM conclusions have lost their force and authority, largely due to the fact that bargaining about the wording of Conclusions has driven agreement down to the lowest common denominator.22. They have, at best, become vague aspirations for states, becoming vaguer and more aspirational as the reality moves further away.

25. In contrast, DIP position papers are more specific and relevant to current protection problems. However, there is neither routine state nor expert input into these statements, and they are therefore not accorded much deference.23.

26. The UNHCR Handbook, UNHCR guidelines and statements address a wide range of general interpretative issues such as, inter alia, detention, gender-sensitivity and the status of unaccompanied minors. Although none of these guidelines is binding upon states, they are widely considered to be authoritative and to provide guidance in interpreting state obligation under the Convention.24. It is when UNHCR engages in this kind of law and policy review that it most closely resembles a treaty monitoring body. However, although UNHCR has produced some very useful guidelines, they need to be supplemented with more comprehensive, systematised, uniform comments. In addition, its efforts at actual supervision are inadequately implemented; not only by states, but by UNHCR itself.25.

27. UNHCR also performs an investigative function. UNHCR may, under its Article 35 power, make information requests and conduct fact-finding. Because UNHCR often has a ground presence, its staff may witness first hand how states treat refugees. They are thus in a position to collect information on how states are living up to their Convention responsibilities. Fact-finding is one of UNHCR's strengths. However, as noted above, the information that it collects is kept confidential and is not released in protection reports on a consistent basis.26. Yet there are exceptions to this general rule: for example, in publishing information on the need for resettlement of refugees from countries of first asylum, UNHCR will often detail how such states are failing in their obligations, sometimes in compelling detail.27.

28. Although several treaty bodies maintain confidentiality in fact-finding, there are many benefits to regularly or selectively publicizing information that indicates state failure to cooperate.28. The shaming factor so consistently utilized in the international human rights system can only work if information on state compliance or more precisely, lack thereof, is made public.

29. One of the major problems for UNHCR in criticizing states is the need to maintain access to its populations of concern and, more and more critically, the need to maintain a secure operating environment. The difficulty of "bearing witness" to human rights violations in the field of operation is one that confronts all humanitarian actors. A satisfactory answer has yet to be found: one approach suggested by the UNHCR-NGO Reach-Out consultations in 1999 was for information to be passed from the field to a disinterested mechanism outside the area of operations.

30. One way of criticizing states "by remote" has been the increasing willingness to share supervisory responsibility within the UN system. For example, the High Commissioner for Human Rights has several times taken the lead in criticizing states for human rights violations against refugees and for not living up to their obligations while the UNHCR has been in the background. These examples of a "joined-up" response to refugee protection concerns have enabled the UNHCR to carry on with their tasks while at the same time the state concerned has been called to account. While this has worked in some cases to date, there is a potential weakness in such an approach because it is the UNHCR who is responsible for the implementation of measures to provide protection to refugees and no other UN agency. In this sense, it would have to be UNHCR who is able to demonstrate a need for action.

31. In sum, UNHCR is not in a position to provide critical, direct evaluations of states. A mechanism less susceptible to the pressures which bear upon UNHCR could better respond to state reports29. , review complaints,30. produce general comments ,31. and conduct investigations 32. by drawing fire away from the institution uniquely mandated to provide refugee protection.

32. Given its "legitimate concerns about the security of UNHCR staff in a country, the likelihood of being expelled from the country and donor pressure" it is unlikely that UNHCR will ever be able to perform the four mechanisms described above, (reporting, complaints, general comments, investigative capacity), with any greater transparency or effectiveness than it does now.33. As long as UNHCR is governed by states and dependent on states for its survival, access and ability to perform its mandate, it will continue to face the seemingly insurmountable challenges which currently prevent it from effectively supervising the Convention to the extent that a more removed mechanism could.

33. If UNHCR were allowed to focus its resources on protection, it would be able to achieve a greater degree of success.34. This would improve UNHCR's reputation, strengthen its legitimacy in the international community, and reduce state anxiety over UNHCR presence. Most importantly, it would enable UNHCR to better protect refugees.

D. Supervising UNHCR.

34. A complicating factor in the establishment of a new mechanism is that it is not only states that have obligations and responsibilities under the Refugee Convention. UNHCR has a duty to protect the refugees who fall under its mandate and in doing so is very often exercising quasi-state powers. In some cases, UNHCR is often better resourced and more powerful than the authorities in the country of operation, yet UNHCR is not formally answerable to the people it is supposed to serve. UNHCR ought, therefore, be held accountable to the "beneficiaries of its activities."35.

35. UNHCR has recognized a need for accountability and uniformity within its own organization. Accordingly, an internal supervisory mechanism, the Inspection and Evaluation Service, was established in March 1995.36. The creation of this mechanism indicates an acceptance by UNHCR that oversight of its activities is necessary, and as noted by ICVA, it has been useful in creating a culture of learning lessons. Nonetheless, UNHCR's internal inspection and evaluation activities are insufficient on their own to change practice. The Evaluation and Policy Analysis Unit is an additional useful tool in learning lessons. However, it is not competent to monitor UNHCR's performance or to enforce changes in culture or practice.37. Truly objective monitoring is unlikely to be accomplished by a supervisory body which is not wholly independent of UNHCR.38.

36. In addition to its inability to objectively monitor its own protection activities, the majority of the inspection and evaluation function deals with issues relating to management and personnel, not supervision. As noted by UNHCR, the inspection findings indicate that improvement is needed in the areas of "overall management; planning and strategy development; external relations; programme management; protection; office administration including organization and staffing; and staff security and welfare." Except for oversight of protection, these areas can be left to UNHCR to address.

37. Whatever method is selected to enhance supervision of the Refugee Convention, many of these weaknesses will have to be corrected, such as devoting more resources to protection. While UNHCR is in the best position to address its own operational difficulties, many of the problems which plague UNHCR are embedded in its incompatible roles, as described above, and are thus impenetrable by UNHCR. Only an independent mechanism could achieve the level of transparency, clarity and frankness which is necessary to ensure that refugees around the world are provided with the uniform and consistent protection to which they are entitled under the Convention, without jeopardising daily operations. E. What will UNHCR's role in relation to a new monitoring mechanism be?: Article 35 constraints and procedural concerns.

38. A new monitoring mechanism should be impartial, transparent and independent of everyone. It is possible that an Optional Protocol would be required in order to create a body capable of fulfilling all of the functions necessary to ensure adequate supervision.39. Yet, the very reason that a new supervisory body is needed is because state parties are not fulfilling their current obligations under the Convention, including their obligation to cooperate with UNHCR. Convincing states to sign on to an additional Protocol would be extremely difficult given the reality that the current trend among states is to pull back from existing protection standards.40.

39. In contrast, it would be easier to establish a new monitoring mechanism using powers already authorized by Article 35 of the Refugee Convention. Article 35 states that:
The Contracting states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention. 41.

40. When states signed on to the Convention, they agreed via this provision to cooperate with UNHCR. The question thus becomes how closely linked UNHCR must be to any new supervisory body in order for states to be obligated, under Article 35, to cooperate with the new body.

41. Kälin's model of a Sub-Committee created by EXCOM appears attractive at first glance because it clearly would fall under the Article 35 duty.42. However, his model fails his own tests for independence and transparency because of its location within EXCOM. Furthermore, EXCOM is considered by many to be overly formalized and completely devoid of real world connections. This criticism is easily highlighted by the budget-setting exercise: EXCOM Member states annually set a budget but have no responsibility for ensuring that the budget is funded. In standard-setting, the failure to tackle protection issues in any really consistent or serious way is due in part to the diminution of the role of the NGO community. Any body located within EXCOM will have difficulty adequately supervising the Convention because states are unlikely to criticize each other for practices in which all states are involved.43. The very reason a new supervisory body needs to be created is to liberate the oversight function from these inherent constraints. Although the additional review by Kälin's proposed sub-Committee and expert review team would lessen the effect of politics, it would not eliminate it,44. and thus the effectiveness of any body located within EXCOM would inevitably be compromised.

42. In order to avoid the need for an Optional Protocol an option could be for ECOSOC or UNHCR itself to create a separate supervisory body that would operate with independence and transparency.

43. One useful model of how this could be achieved is that of the Committee on Economic, Social and Cultural Rights (CESCR). Unlike UNHCR, the CESCR was created after the treaty that it oversees. Rather, ECOSOC created the Committee in 1985, without an Optional Protocol. The Committee thus derives its legal authority from ECOSOC. The Committee is the primary organ responsible for supervising the implementation of the ICESCR by states, and it does so with operational independence from ECOSOC.45.

44. One significant distinction should be noted. Article 16 of the ICESCR obligates states to submit reports regarding implementation of the Covenant, but it does not specify to whom states must submit their repots. In contrast, in the refugee context, it is the body that is specified, not the specific duties. Thus, states have agreed to cooperate with UNHCR in unspecified ways (which could include, inter alia, submitting reports or accepting a complaints mechanism). If a new supervisory mechanism were sufficiently linked to UNHCR, Article 35 would require states to cooperate with it.

45. The way in which EXCOM was created also indicates that a new body could be created without the need for an Optional Protocol, and could exist with operational and financial independence from UNHCR. EXCOM was created well after the Convention, in 1958, without an Optional Protocol. The decision to create EXCOM was taken by the General Assembly, which made ECOSOC responsible for its establishment. Nonetheless, it is functionally a part of UNHCR, and therefore states are obligated to co-operate with it.46.

46. As these two models suggest, UNHCR or ECOSOC could, without the need for an Optional Protocol, create a new body entrusted with supervising the Convention, which could operate with operational and financial independence from UNHCR, while remaining structurally connected to UNHCR. As part of their duties under Article 35, states would be required to cooperate with such a body.

47. The High Commissioner would be able to refer issues to such a new mechanism, but the mechanism must also be empowered to consider issues on its own initiative. The reports produced by the mechanism would be submitted to the High Commissioner and issued as public documents. The latter point is crucial, as it would be the responsibility of the High Commissioner to act on the report and to ensure that its findings were implemented. It might be wise to create a new responsibility to ensure that this does happen: a new mechanism could not work if its reports were subsequently sat upon by a High Commissioner. Absent such a responsibility, a strong NGO coalition would be needed to ensure action was taken in furtherance of a report.

48. In the same way that UNICEF provides support to the UN Committee on the Rights of the Child, a new mechanism would also benefit from a close working relationship with UNHCR in which the advisers or secretariat of the mechanism would second some of its staff from UNHCR, and the mechanism would have direct and unhindered access to all other departments within UNHCR. 47. The sharing of staff between UNHCR and the secretariat of the new mechanism would ensure that the mechanism understood the work of UNHCR and enjoyed the confidence of its staff. This is important for a number of reasons: with offices in numerous countries and operations all over the World, UNHCR has unparalleled access to information regarding refugees. In order to work effectively, a new mechanism would need free access to the information gathered by UNHCR staff. Further, while being independent of UNHCR, the new mechanism would need to be able to rely on the expertise of UNHCR in interpreting information before it and in technical expertise, such as interpretation of Article 1A(2) of the Refugee Convention.

49. One of the difficulties UNHCR has faced recently in criticising a state party to the Convention for its actions is the perception that a democratically elected government was being admonished by a faceless institution staffed by bureaucrats who represent no-one. This charge (while it lacks substance, it has a powerful political resonance) can be deflected when criticism of a state comes from the High Commissioner himself, as he is elected by the General Assembly (only the UN Secretary-General is similarly placed in office). But if the High Commissioner were to intervene on the basis of views or conclusions adopted by a genuinely independent and expert interstate supervisory authority, his legitimacy and political clout could only be enhanced.

F. States.

50. Much of the failure of implementation can be attributed to state parties to the Convention. Certainly, there are states that knowingly and consistently violate accepted provisions of the Convention. A supervisory mechanism would address those violations, but in addition, much non-compliance by states can be ascribed to the lack of uniformity in interpretation and resulting confusion over state responsibility. This would also have to be addressed by the supervisory mechanism. The purpose of monitoring is not to punish states, but to offer guidance to states and help them to fulfil their obligations.48.

51. Thus any effective supervisory body would have to "encourage and cultivate national implementation of, and compliance with" the Refugee Convention.49. Because enforcement measures in international law are mostly dependent upon diplomatic strategies, a system of positive incentives might be explored. Incentives might include technical assistance or different reporting schedules for developing countries that may lack resources rather than the will to implement the Convention.50. Other inducements could include training programs and materials or access to technology.51.

52. Enhanced oversight of the Convention would benefit states in several ways. For one, non- implementation by some state parties places additional burdens on other state parties who are implementing the Convention in accordance with its object and purpose.52. Therefore, more uniform application of the Convention is both in the national interest of countries concerned and in the interest of the international community at large, as uniformity would help stabilize population movements by reducing secondary movement pressure.53. Furthermore, strengthening the international supervisory mechanism would remove the need for intervention by regional mechanisms that could undermine the universality of the Convention.54.

53. Another potential benefit to states is that overlapping reporting to multiple treaty bodies could be eliminated. If states were reporting to a refugee treaty body, that body could share its information with other treaty bodies such as the Committee Against Torture or the Human Rights Committee, removing the need for unnecessary, time consuming, repetitious reports. Similarly, the inconsistencies which often arise from having multiple unrelated treaty bodies address the refugee issue could be eliminated, as the refugee treaty body would clarify what is expected of states.55.

54. In order to be most effective, a new mechanism would need to develop a culture not of blame, but of helping states to learn lessons from refugee protection situations and promote practical solutions to them. An example of how this might look would be a call for other states to assist a particular country that was under examination by the monitoring mechanism.

55. It is in the interest of all state parties that the Refugee Convention be implemented uniformly. States have an interest in maintaining order, especially in an order that they took part in creating and which expresses a common interest. 56. States would be assured that their interests were in fact represented if the new supervisory body were composed of experts who represented a diversity of experience and a diversity of normative facts.57. In other words, the body should be composed of experts who represent both universal and culturally particular viewpoints. This would assure that all states' interests warerepresented.

56. Except for those states who are simply unwilling to implement the Convention, states should welcome a new supervisory mechanism. Better implementation of the Convention would not only bring more order and uniformity to the refugee context, but would provide the critical conditions within which burden and responsibility sharing among states could proceed without hindrance.

G. Summary

The difficulties seen in international refugee protection can be largely attributed to poor, incomplete implementation, lack of uniformity and lack of supervision or oversight. A treaty needs to be interpreted, and this must be done in a clear, uniform way. States need to know what their obligations are, and they need to be held accountable for those obligations. The UNHCR is structurally compromised in a way that makes it difficult for the organization to provide the guidance and the enforcement that are required to ensure that states keep their promises, both to other states, to the UNHCR, and most importantly, to refugees. Because of UNHCR's political and financial dependence on the very states it is supposed to be supervising, UNHCR is politically hamstrung. A new treaty body should be created to perform the oversight functions that UNHCR cannot reasonably be expected to fulfil, while simultaneously buttressing the activities of UNHCR that are so vital to refugees and to a strong system of international refugee protection. Thus, to conclude:

• UNHCR's political and financial dependence on states prevents it from comprehensively overseeing the Convention.
• UNHCR's main strength is found in its protection activities. These protection activities ought to be supported and supplemented by a new supervisory mechanism.
• In order to ensure that the Refugee Convention is implemented properly, in the best interest of refugees, states and the international community as a whole, a new treaty body needs to be created that would be independent, transparent, and effective.
• In the same way that a new treaty body would supervise states, it could also supervise UNHCR, in order to ensure that UNHCR fulfilled its obligations to refugees.
• Article 35 is one possible legal basis for the establishment of a supervisory body. But it is possible, as seen in the history of the CESCR and ExCom that the UNHCR or ECOSOC could create a supervisory body that could achieve the necessary independence and transparency, without need for a protocol or other formal agreement to be negotiated among states.
• Better implementation is not only in the best interest of refugees, but of states as well, who would benefit from increased guidance and assistance in implementation.