Blog post by Niamh Kinchin, a senior lecturer at the School of Law, University of Wollongong, which she joined in January 2015. Prior to academia, she was employed for a number of years at the Commonwealth Administrative Appeals Tribunal as a legal officer. This post is based on her upcoming article in the Refugee Survey Quarterly of the same title.
The Global Compact on Refugees describes UNHCR as its ‘supportive and catalytic’ leader and its responsibilities, including ensuring regular reporting on the work of the Support Platforms and facilitating the exchange of good practices and information amongst States and relevant regional and sub-regional mechanisms, indicate that the agency is expected to support States in their practical efforts towards increased burden-sharing and durable solutions.
The ability for UNHCR to negotiate and collaborate within a highly political environment is critical to the Refugee Compact’s ongoing success. Burden sharing is a relatively weak concept, which is reliant upon the discretion of States, so for UNHCR to ‘be political’ within this forum is fitting. In bringing States together to recognise ways in which their contributions to asylum and burden sharing can be made compatible with their interests, UNHCR’s focus on negotiation and facilitation, rather than censure and criticism, is entirely appropriate.
However, the Refugee Compact is non-binding, which means that there is no call for UNHCR to exercise its supervisory mandate, which is the source of its authority to ensure that States are complying with their international protection obligations. A central part of supervision is enforcement, which is the prevention and redress of wrongful behaviour by means of either punitive or non-punitive measures. As UNHCR does not have a formal treaty compliance monitoring body or any way of officially sanctioning States, ‘enforcement’ in this context means ‘a wide range of intervention and advocacy activities…to ensure the adherence of States to internationally accepted standards of conduct with regard to refugees and asylum-seekers and to assist in building up the capacity of authorities to do so.’ For UNHCR, intervention and advocacy means ‘conducting a constructive dialogue’ with governments, relevant regional and local authorities, the parliament, the judiciary, the academic community and other relevant institutions, including non-State actors. UNHCR makes formal or informal representations, which, depending on the forum, are communicated as letters, notes verbales, aide-mémoires, public domain positions, amicus curiae briefs or other submissions to the judiciary or written or oral statements to parliamentary committees. A ‘constructive dialogue’ must also sometimes be censorious. When States breach their international obligations under the Refugee Convention and other relevant instruments, intervention and advocacy means admonishment and criticism as much as it means facilitation and negotiation.
The consequence of ‘sidelining’ UNHCR’s supervisory mandate is that the non-political element of the agency’s work is diminished. First, the most ‘non-political’ of UNHCR’s intervention and advocacy work is providing amicus curiae briefs in judicial proceedings and advising governments on legislation and administrative decrees that affect refugees and asylum-seekers. Submissions of this nature are directed to institutions that are often (but not always) separate from the political, or executive, arm of a government, and which have in-built accountability mechanisms that act as stalwarts against abuse of power and corruption. Amicus curiae briefs are received by domestic courts, which in democratic systems act as a check and balance on the executive or legislative branches of government. Amicus curiae briefs and submissions on legislation and administrative decrees are often censorious because they are created to comment on gaps, breaches and misunderstandings of legal principles and obligations. There is little need for placatory language in legal discourse, and criticism hides in plain sight within its rational, technical language. Such submissions have no relevance or utility where there are no legal obligations to comment upon.
Second, where traditional supervision is removed, there is no motivation for UNHCR to admonish States because criticism could potentially undermine its supportive, facilitative and catalytic role. If there is no structure within the Refugee Compact to address situations where States breach their legal obligations, tighten non-entrée regimes or infringe the human rights of refugees, it is easy to see how the ‘politics of protection’ will no longer best serve the ‘non-political’, which is, of course, the refugee.
A number of ramifications flow from the diminishment of UNHCR’s non-political role in this context. First, the absence of the need to consider enforcement created an opportunity for the drafters of the Refugee Compact to design the agreement with the interests of States and refugees in mind. Despite incentivizing negotiation, such a ‘balanced’ approach has the potential to undermine principles of international law and human rights. Chimni expresses concern that the Refugee Compact’s objectives may actually dilute principles of international law and infringe the human rights of refugees because its focus is on easing pressure on host countries, which he calls a ‘misplaced priority’, rather than dismantling non entrée regimes. Further, the Refugee Compact could lead to the erosion of rights of women and children as there is an absence of specific measures protecting women and a lack of specificity about non-custodial arrangements for children. In a similar vein, Maroud and Norman argue that ‘by furthering the premise that refugees should be accepted because of their potential for self-sufficiency—rather than out of a commitment to upholding international norms and the rights of refugees—the global compact may actually worsen their plight.’
By elevating State interests to those of refugees, the Refugee Compact ignores old problems. State contributions under the Refugee Compact are voluntary, with contributions to ‘be determined by each State and relevant stakeholder, taking into account their national realities, capacities and levels of development, and respecting national policies and priorities.’Whilst it is true that States will not be able to earmark their contributions, there is nothing preventing them from ‘cherry picking’ the ‘phrases and formulations’ of the Refugee Compact to leverage their contributions in order to reflect their own interests.
No capacity to enforce treaty obligations may also result in a lack of concrete outcomes, which is exacerbated by the fact that UNHCR has a vested interest in the representation of its outcomes in a positive light, regardless of reality. Whilst robust conversations may flourish within this forum, realizable outcomes will likely be undermined by ‘endless conversations’ and positive optics.
Finally, UNHCR’s moral authority, which stems from its embodiment of the protector of refugees, will not act as a motivation for State action. UNHCR derives its moral authority from its core international protection mandate, which the Refugee Compact does not support, clarify nor strengthen. UNHCR’s moral authority will not act as a motivation in a forum that accepts a diminished version of its international protection mandate. Instead, reform of burden sharing and durable solutions will depend entirely on the self-motivation of States, which has proven unreliable.
As long as UNHCR’s protection mandate remains core to its functions and purpose, the agency must be able to do two things. First, it must have an unencumbered ability to supervise relevant international law instruments. Second, UNHCR must ensure that the interests of refugees remain non-political, regardless of how political the action to protect those interests must be. A forum which sidelines the former risks destabilising the latter, leaving UNHCR with the difficult task of trying to avoid compromising protection whilst achieving positive, actual and realisable outcomes within the constraints of State self-interest and increasingly restrictive approaches to refugees.
An external refugee network, similar to that established for the Migration Compact, may be a more appropriate leadership framework for the Refugee Compact. The network could work closely with UNHCR, which would retain an advisory role but no longer ‘lead’ the process in the current fashion. Drawing upon UNHCR’s experience, knowledge and expertise, the network would support States in their collaborative efforts regarding burden-sharing and could report to the General Assembly on a biennial basis. If such a network was to lead the Refugee Compact, there would be no need to change nor fortify UNHCR’s current supervisory mandate. Although the issues surrounding UNHCR’s supervision and its relationship with States would not disappear, they would no longer affect the objectives and outcomes of the Refugee Compact. UNHCR could return to what it does best; reminding States of their duties and legal obligations through advocacy and representations through its role as ‘the voice of reason’. The Refugee Compact may then have a real opportunity to strike an appropriate balance between its stated objective of being ‘entirely non-political in nature’ (in the limited sense of prioritising humanitarian and social objectives in relation to the best interests of refugees) and the reality of international cooperation, which in relying upon the ‘political will and ambition of the international community … for strengthened cooperation and solidarity with refugees and affected host communities,’ is inherently political in nature.
Betts, Alexander, Gil Loescher, James Milner, The United Nations High Commissioner for Refugees (UNHCR): The Politics and Practice of Refugee Protection, London, Routledge, 2010.
Chimni, BS, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ 30(4) (2018) International Journal of Refugee Law 630-634.
Chowdhury, Tareq M.R. Legal Framework of International Supervision (Stockholm, University of Stockholm, 1986).
Türk, Volker, ‘UNHCR’s Supervisory Responsibility’ 14(1) (2001) Revue Quebecoise de Droit International 135-158.
Türk, Volker, ‘The UNHCR’s role in supervising international protection standards in the context of its mandate’ in J. C. Simeon (ed) The UNHCR and the Supervision of International Refugee Law, (Cambridge, Cambridge University Press, 2013).
Niamh Kinchin is a senior lecturer at the School of Law, University of Wollongong, which she joined in January 2015. Niamh specialises in teaching public law subjects, such as Administrative Law and Constitutional Law, as well as Refugee Law. Prior to academia, she was employed for a number of years at the Commonwealth Administrative Appeals Tribunal as a legal officer. Niamh’s primary research interests are in refugees, law and technology, global accountability, administrative justice and public law within the international and Australian contexts. Her current research includes projects on the potential and risks of artificial intelligence in refugee status determination, institutional accountability in the global space, the interpretation of the constitutions of international organisations and the evolution of Australian constitutional principles. Niamh has recently published a monograph with Edward Elgar Publishing (UK) focusing upon Administrative Justice within the UN.
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