Observations on EXCOM's 60th session (2009): does UNHCR need (more) EXCOM conclusions?

Author:Barutciski, Michael
 
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Introduction

Despite the lack of academic interest in the work of the Executive Committee of the Program of the UN High Commissioner for Refugees (EXCOM), there is arguably no forum that is more important in terms of international refugee protection than the annual EXCOM sessions. This is the public face of diplomatic efforts to promote international refugee protection. What goes on behind closed doors in EXCOM's Standing Committee may be more revealing in terms of the policy developments envisaged by influential states, but it cannot replace public declarations made by state representatives at the EXCOM sessions.

While there is a risk that its plenary sessions will be bogged down and become overly politicized, EXCOM should attract the attention of analysts concerned by refugee problems around the world. Indeed, UNHCR should be encouraged to make publicly accessible on its website the various state declarations so that we better understand the positions defended by our governments on the international stage.

The EXCOM session held in October 2009 was the 60th session held since the body was created fifty years earlier. The discussions in this important forum have evolved over the decades as new expressions have emerged that reflect Western intellectual trends: "human security," "delivering protection," "humanitarian space" (to be distinguished from "protection space"), etc. Yet refugee protection problems remain fundamentally similar to those preoccupying the governments that first created the post of High Commissioner for Refugees in 1921. For the most part, the formal questions associated with the origins of international refugee protection remain valid almost nine decades after they were being formulated in the early phases of the multilateral system created after the First World War. What obligations will states accept towards fleeing foreigners designated as "refugees"? What forms of international solidarity will states accept in order to help other states directly affected by refugee flows?

As UNHCR's governing body, EXCOM has to deal with the same difficult problem of fleeing refugees in a world of sovereign states that jealously guard their territorial sovereignty. Yet it also has to deal with the growing number of influential non-state actors in a new context in which it is no longer controversial to suggest that state sovereignty is not absolute. International refugee law, along with human rights law, has developed considerably since the first attempts to create international institutional structures during the first half of the twentieth century.

EXCOM and Its Structural Ambiguities

It is worth emphasizing that UNHCR, as a subsidiary organ of the UN General Assembly, is supposed to collaborate with governments which represent states. The first paragraph of UNHCR's 1950 Statute specifies that it "shall assume the function of providing international protection [for refugees] ... and of seeking permanent solutions ... by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation ... or their assimilation" (emphasis added).

The difficulties of international protection are illustrated by the fact that UNHCR is supposed to protect refugees in collaboration with UN members which are often reluctant host states. The requirement to co-operate with governments is also found explicitly and implicitly throughout paragraph 8 of the Statute that outlines the activities of UNHCR. This fundamental aspect of its mandate follows the traditional role of the High Commissioner as articulated in the 1920s. (1) There is a tension between two potentially contradictory functions: applying pressure on states to protect refugees and collaborating with governments. There are clearly limits to the pressure UNHCR can apply without indisposing the states that created it and thereby jeopardizing its future. (2) Watchdog-type roles or activities advocated by some (particularly Western) jurists who place their trust in mechanisms "untainted by the political control of states" (3) run counter to the logic of a system set up by states.

With its connection to a ninety-year institutional history, UNHCR has nevertheless acquired considerable authority in international law and should not be criticized lightly. However, it may be worth pointing out some basic confusion or misunderstanding about general aspects of the mandate.

During the last few years, some comments by UNHCR's most senior lawyers may be interpreted as suggesting UNHCR is an independent agency. The Director of International Protection has noted that "[t]here is the perennial issue in some quarters of a perceived lack of independence because UNHCR's budget hinges largely on the voluntary contributions of donor countries." (4) Similarly, the Assistant High Commissioner (Protection) has described UNHCR as "a humanitarian agency which operates independently of any political agenda ... [working] in accordance with basic principles of humanitarian action--notably impartiality and independence." (5)

Whereas the above statements are not unequivocal, the European Court of Human Rights has clearly described UNHCR as a body "whose independence, reliability and objectivity are, in [the court's] view, beyond doubt." (6) Yet nothing in the Statute suggests UNHCR was intended to operate as an independent agency. On the contrary, the reference to independence that was mentioned in the initial 1949 resolution calling for the creation of UNHCR was not included later in the subsequent 1950 resolution and Statute that actually created the agency. (7) Again, this echoes a basic issue that was considered carefully by the members of the League of Nations in the 1920s and 1930s. (8)

Even if we acknowledge that UNHCR is formally "dependent," decades of practice may have reinforced a de facto autonomy in the sense that credibility on protection requires that UNHCR not be perceived as a simple tool to be manipulated by states. Although it is relatively clear that many within UNHCR believe the agency's authority would suffer if it were to be perceived as lacking in independence, some of its actions, such as its long-standing efforts to initiate the process for the adoption of EXCOM conclusions, suggest that it has in fact exercised a certain amount of autonomy over the years.

It is also worth remembering that EXCOM was originally intended to advise the High Commissioner, not states. (9) While it is not clear that the mandate was to advise on protection (i.e. sensitive) matters, in practice EXCOM began addressing protection approximately three years after its creation. (10) A decade later it was directly advising states on protection problems. (11)

These developments occurred with the encouragement of the predecessors to the currently named Division of International Protection (DIP) which drafted and pushed for progressive conclusions on protection. (12) This situation eventually resulted in an ever-increasing number of EXCOM conclusions that were largely intended to defend previously adopted norms, rather than to respond to requests for guidance from the High Commissioner or states.

While it is understandable that an international cadre of UN specialists has developed unparalleled expertise in refugee protection, there are risks in having UNHCR assume the responsibilities that were reserved for states. (13) Perhaps the most striking example of the problems that arise from this institutional phenomenon is the aborted conference in early 1977 that convened under UNHCR's leadership in order to adopt a treaty on asylum. Indeed, a DIP-centred policy-making process runs the risk of complete failure in an international system that is ultimately based on voluntary state involvement. (14)

We may ask ourselves whether EXCOM has acted ultra vires or whether these important aspects of its practical evolution have been validated by the de facto acquiescence of member states. It could be argued that the legal maxim boni judicis est ampliare jurisdictionem justifies an enlargement of competence within tolerable limits. (15) The point being raised here is that an EXCOM under too much influence from UNHCR's protection specialists finds itself possibly exceeding the threshold limit. Contrary to the advice of some observers, it is unlikely that the solution to this complicated problem will be to recognize a de facto practice by providing EXCOM with a formal mandate to advise states on protection. (16)

As a governing body of UNHCR, EXCOM has to deal with various internal divisions from the perspective of states. Recent EXCOM sessions reveal that various participants have diverging views on such contentious issues as the institution's rapid expansion, the potential tension between protection and assistance, an asylum-centred focus as opposed to a comprehensive strategy, an activist as opposed to a conservative state-focused approach, etc.

Context of 60th Session and Governmental Delegations

There are various ways to interpret the appropriate role for UNHCR and its EXCOM, just as there are different approaches to ensure effective refugee protection. The pessimistic tone of recent Notes on International Protection prepared for EXCOM by UNHCR's Division of International Protection, as well as the harsh assessment of NGOs at the 60th session, suggests that new thinking is needed to improve the situation of the world's refugees.

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