Address by Ms. Erika Feller, Director, Department of International Protection, UNHCR, to the XXVIII Round Table on Current Problems of International Humanitarian Law (San Remo, 3 September 2004)

Strengthening Measures for the Respect and Implementation of International Humanitarian Law and Other Rules Protecting Human Dignity in Armed Conflict

Introduction

Sergio Vieira de Mello, then UN Under Secretary-General and Emergency Relief Coordinator, noted in a 1999 presentation, that 'in most contemporary conflicts, international humanitarian law, human rights and refugee law are unknown, ignored or willfully disrespected. The gulf between existing international norms and respect for them on the ground has probably never been so wide. Our greatest challenge is to bridge this gap through the realization of international laws and fundamental principles in practice'. The cost of failure was horribly underlined in Sergio's death at the hands of terrorists in August 2003, as the Iraq conflict continued to grind on, marked by startling acts of, to use Sergio's words, willful disregard of even basic standards of human decency.

The Sierra Leone conflict saw limbs of opponents regularly hacked off. Rape as a weapon of war was a characteristic of the conflict in Bosnia and Kosovo. Failure to respect the civilian and humanitarian character of the institution of asylum manifests itself frequently from Burundi to Northern Uganda to Ingushetia in militarization of camps and attacks on refugee camps and settlements. The murder of over 150 refugees a week or so ago in Gatumba Camp, Burundi, is a chilling recent reminder. Children are forcibly recruited into armed forces in many parts of the world. Displacement which takes the form of ethnic cleansing, ethnic engineering, is a prevalent feature of modern conflict, of which Darfur is but one recent example. Borders are closed to asylum seekers fleeing conflict, in many parts of the world . The reasons are various: the people have been brought by smugglers; others are responsible to receive them; the conflict is not a recognized one; security of people and the state takes precedence. Whatever the reason, the right to seek and enjoy asylum from persecution, the right to flee for your life, to protect the security and dignity of your person, takes poor second place.

This list could go on and on, unfortunately, and is in itself argument enough for reinforcing implementation of instruments bearing on refugee protection, which have as their purpose to bring back the standards of human decency and make them relevant to the pursuit of whatever may be the goals of any conflict. There are other arguments, though, in favour of a concerted effort to make international refugee law work, besides the fact that non-implementation violates the legitimate interests of refugees as well as their rights and guarantees provided for by international law.1

• Prolonged toleration of non-implementation by one State violates the rights of the other State Parties to the Convention and other relevant instruments for the protection of refugees. Non-implementation is detrimental to the material interests of those State Parties that scrupulously observe their obligations. Disregard for international refugee law may create secondary movement of refugees and asylum-seekers who have to look for a country where their rights are respected. It forces States that would be ready to treat refugees fully in accordance with international obligations to adopt a more restrictive policy in order to avoid a greater influx of refugees attracted by the higher degree of protection available on their territory. At a regional level, divergent interpretations of the refugee definition or non-compliance may complicate co-operation in the determination of the country responsible for examining an asylum request. Then there is the fact that the "implementation level", at a given time, of the provisions of the 1951 Convention by State Parties may affect the quality of refugee legislation adopted by newly acceding State Parties.

• Non-implementation is a serious obstacle for UNHCR in fulfilling its mandate properly and reduces its capacity to assist States in dealing with refugee situations.

• Prolonged toleration of non-implementation seriously undermines the system of international protection as it was established fifty years ago and threatens a regime that has often been able adequately and flexibly to address and solve instances of flight for Convention reasons. Non-implementation is thus detrimental to the proper management of current and future refugee crisis at the global level and thus hurts the interests of State Parties to the refugee instruments, notably 1951 Convention and 1967 Protocol, and even the international community as a whole.

Without wanting to simplify the problem, I would suggest the foregoing are among the more compelling arguments for better implementation. I should add that I come at this issue from the perspective of UNHCR. Non implementation of the refugee instruments has its consequences across the spectrum of flight, at the stage where conflict is forcing displacement internally, then externally, when war refugees are arriving in countries of first asylum seeking emergency sanctuary, as well as when they are able to move further afield. So for us the issue of implementation is not one confined, if you like, to the zone of conflict, but extends to the broader field of flight. I am accordingly now going to take the liberty of looking a little more generally at the dilemmas of non implementation of the standards we would like to see. In so doing I want to resurrect, to some extent, what has been actually a rather long standing discussion in our fora about implementation in particular of the 1951 Convention and what measure we might all collectively consider which could strengthen the Convention regime here.

For UNHCR, the agency mandated to provide international protection to refugees and work with states to find solutions to their problems, these rules, the framework of norms and principles which we work with, are essentially those in the 1951 Convention related to the Status of Refugees, its 1967 Protocol, several very important regional instruments, notably the 1969 OAU Convention for African refugees and the 1984 Cartagena Declaration, together with a range of human rights instruments bearing on refugee dilemmas. These latter include the so-called Bill of Rights, the Convention on the Rights of the Child, the Torture Convention and a number of regional human rights instruments. International Humanitarian Law, the 1949 Geneva Conventions and their Protocols, are also of fundamental importance.

Strengthened implementation of these instruments has been a goal of UNHCR for quite some years now. The promotion of this is a responsibility inherent in our mandate, spelled out quite specifically in our Statute. Article 35 of the 1951 Convention requires States to cooperate with UNHCR in the exercise of its functions, and in particular to facilitate its duty of supervising the implementation of the provisions of the Convention. This formulation is important in that it imposes a duty, not a discretion, to cooperate. In addition Art 35 is a twofold requirement, relating both to specific responsibilities for the Convention but also to all of the office's other functions. In other words, it establishes a duty to cooperate with UNHCR across the spectrum of its statutory responsibilities, which are much broader than monitoring the implementation of the Convention. It is also, as a consequence, an evolutive duty. In other words, as UNHCR's functions evolve, so does this duty, commensurately. Other instruments which confer on UNHCR a monitoring and implementation responsibility include article VIII of the OAU Convention and Recommendation II(c) of the Cartagena Declaration.

The fact of UNHCR`s creation and its specific role in relation to the Refugee Convention and others besides, was an effort by the international community to create a strengthened implementation capacity. UNHCR was one of the first treaty implementation bodies to be set up. It was, some would say, a rather cautious effort. Subsequent international instruments, such as the human rights texts, not only put in place oversight bodies, but also processes of compliance with the oversight function which are absent as far as UNHCR is concerned. There is for example no compulsory reporting mechanism, no required process by which states parties are held to account publicly for their performance or their failures. This has, over the years, led to calls from many quarters for improved implementation structures. I would like to use the remainder of my time today to examine this concern. Is UNHCR an imperfect implementation mechanism? What, if anything, more is required?

How does UNHCR fulfil its Article 35 responsibility?

International protection on behalf of refugees is UNHCR's core function. It has evolved from a surrogate for consular and diplomatic protection of refugees who can no longer enjoy such protection by their country of origin into a broader concept that includes protection not only of rights provided for by the 1951 Convention and the 1967 Protocol, but also of refugees' human rights in general. UNHCR's protection activities are listed in some detail in paragraph 8 of its Statute. The focus in the Statute is on enhancing the legal framework for refugee protection, promoting measures which improve the situation of refugees and reduce the numbers requiring protection and working with states to achieve admission, the grant of asylum on acceptable terms and the realization of solutions. The Executive Committee of UNHCR has continually encouraged the office to focus on promoting and realizing physical security and basic standards of treatment, notably of the particularly vulnerable, more efficient processes to receive refugees, determine their status and identify their needs, and ensuring the necessary infrastructure is in place for good if not optimal management of the problems. Particularly important components of the office's protection work include:

• Negotiating access to asylum-seekers and refugees;
• Intervening with the authorities;
• Ensuring physical safety;
• Protecting women, children and the elderly;
• Promoting national legislation and asylum procedures; Participating in national RSD procedures;
• Undertaking determination of refugee status;
• Providing advice and developing jurisprudence;
• Staff development.

In all of this, the 1951 Convention serves as the starting point, the broad frame, and indeed regularly the principle foundation. The degree to which it is respected and implemented may well critically determine the success or failure of these efforts.

In past discussions within the Executive Committee, UNHCR identified three categories of obstacles to the implementation of the 1951 Convention and 1967 Protocol2: socio-economic, legal and policy, and practical.

• Socio-economic obstacles: tensions between international obligations and national responsibilities, especially in States facing large-scale influx of asylum-seekers and refugees, but who are suffering their own severe economic problems, high unemployment, etc.

• Legal obstacles: inconsistencies between existing national laws and certain Convention obligations; failure to incorporate the Convention into national law through specific implementation legislation; or implementing legislation which defines not the rights of the individual but rather the powers vested in refugee officials; where the judiciary has an important role in protecting refugee rights, restrictive interpretation can also be an impediment; maintenance of the geographical limitation by some countries.

• Practical obstacles: bureaucratic obstacles, including lack of resources and/or poorly trained refugee/migration officials; also, there may be a problem of perception of governmental level, where the grant of asylum is perceived as a political statement and can affect inter-state relations.

The limits of UNHCR's supervisory functions

It is often said that violations which receive wide attention are more difficult to commit than those that remain unknown. The "Achilles heal" of UNHCR in this regard is that it is an operational organization that is not only providing humanitarian assistance but also carrying out protection work on the ground on a daily basis. In this role, UNHCR is an advisor to and an (often critical) partner of governments, as well as a supporter or advocate of refugees. It is necessary to distinguish between two distinctive features of UNHCR's protection role: its"operationality" and its "supervisory" functions. Both may complement each other, but they may also come into conflict, for instance if a strong critique of non-compliance would endanger operations on the ground. UNHCR's daily protection partnership with governments on the ground can of course facilitate supervision, in that staff are present and witness to not just the theory but the practice of asylum and international obligations. However, the fact that UNHCR has to rely on a functioning partnership for the carrying out of its operations is a limiting factor. There is also a tension between following up on monitoring through representations and advocacy on the one hand and, on the other, the office's dependence on voluntary contributions. In short operations and supervision follow a different logic.

These sorts of considerations have led many to recommend complementary models for supervision of implementation which would leave UNHCR as a key factor here, but not alone. Third party supervision of various sorts has been recommended in addition. The idea here is to put some distance between international critique and the operations. There is an increasingly strong body of opinion that believes that it is essential to separate the role of providing international protection and the process of supervising State Parties on the basis of Article 35 of the 1951 Convention from the highly visible task of third party monitoring of State behavior.

Many of you will have heard of UNHCR's two year process of Global Consultations on International Protection, which the office ran through 2001 and 2002. One of the purposes of that process was to reinforce the commitment of States to implement their international protection responsibilities more concertedly and thoroughly. Full and inclusive implementation of the 1951 Convention was one of the goals and the process led to a number of suggestions in this regard which found their place in the Agenda for Protection which the process put in place. Apart from the Agenda, another important product of the process was the greater clarity given to the meaning and current application of specific articles of the 1951 Convention. I mention this because one such article was Article 35, and the focus of attention here was on how to complement, without diminishing or undermining, UNHCR's supervisory role, all in the interests of strengthening implementation. A number of possible approaches were put forward for further reflection. They included:

• giving the Executive Committee a special role to review problems of implementation, and enabling this through the {re}creation of the a sub committee on protection;

• instituting a process of periodic meetings of states parties, along the lines of those organized by the ICRC;

• providing for forms of peer review and ad hoc mechanisms to allow for a more positive focus on best practices and collective discussion of shared problems which impede implementation, with trade policy review mechanisms as one model;

• more active resort to judicial forums of various sorts, both informal [IARLJ] and more formal [ICJ advisory opinions];

• nomination of expert advisors, Special Rapporteurs, even fact finding missions; UNHCR was, for example, recommended to put in place a process of independent expert reporting - a sort of Special Rapporteur mechanism, if you like - which would enable the High Commissioner to commission reports on any issue within the ambit of his concern which could then be submitted, either by the High Commissioner or directly, for international discussion in the ExCom, or indeed other UN bodies as appropriate.

Participants in the process all recognized that their discussions were only the beginning. Any new possibilities should only be explored in tandem with strengthening UNHCR's role, for example by increasing significantly the number of protection staff, by improving cooperation with regional bodies and by UNHCR strengthening its capacity to provide technical, legal and practical advice to governments. There was recognition that supervision is not simply about ascertaining violations, but, perhaps more importantly, it is also about constructive engagement, dialogue and coordination.. NGOs need to have a proper role in the process of supervision; information collection, research and analysis must be improved; and throughout there is a need to ensure complementarity with human rights treaty based monitoring systems and to avoid competing interpretations.

All in all participants felt that this process of reflection should continue, expanding to include other participants - as it was held at the expert level - and taking in other perspectives. This Round Table offers me a fine forum to put some of the thinking back on the table, open up the discussion again, and take back from this very interesting audience your recommendations on whereto from here.

1. For a detailed elaboration of the arguments (some of which follow) see in particular Kalin - "Supervising the 1951 Convention Relating to the Status of Refugees: Article 35 and Beyond" in Refugee Protection in International Law (ed Feller, Turk, Nicholson).

2. ExCom, Sub-Committee of the Whole on International Protection, "Implementation of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees - Some Basic Questions", UN doc.EC/1992/SCP/CRP.10, 15 June 1992, para.9.