I. INTRODUCTION
The International Law Commission's recently completed projects on the identification of customary law and on subsequent agreements and subsequent practice in relation to the interpretation of treaties,Footnote 1 provide useful entry-points for a review of the role of the Office of the United Nations High Commissioner for Refugees (UNHCR) in providing international protection, supervising the application of conventions, and developing international refugee law.
Initially set up as a temporary, ‘non-operational’ entity with a largely passive protection role, UNHCR, its governance, and its place in the international refugee regime have all evolved. With the increasing ‘judicialisation’ of refugee protection in many States, UNHCR has built on its legal standing in supervising the application of refugee treaties, and has become an important participant in legal discourse, with a distinct, if non-traditional role in making and interpreting the law. Among other activities, it publishes guidelines on the interpretation of treaties, ‘intervenes’ in domestic proceedings, and works together with States ‘on the ground’, as they deal with refugee movements. To date, most of its guidelines have focussed on the principal ‘protection’ articles of the 1951 Convention/1967 Protocol (refugee definition, non-penalisation for irregular entry, non-refoulement), but UNHCR has also taken positions on related issues, such as interception at sea, the best interests of the child, and the reduction of statelessness. In any such exercise, its authority and credibility will depend, first, on its methodology and on its capacity to draw on principle and practice in pursuing its mandate goal of international protection.
This inquiry into UNHCR's role raises questions about the adequacy of traditional ‘sources’ doctrine to account for ‘other’ factors, such as international organisation ‘practice’ and municipal judgments, even when they clearly influence the interpretation, application and development of international law. This is not to suggest that ‘States’ or ‘consent’ are no longer in the picture, for clearly the legal ‘products’ of an organisation such as UNHCR need to be ‘received’ or accepted; here, domestic courts are commonly the medium. In the highly judicialised field of international refugee law, these State organs become the focal point in which a variety of juridical influences converge, and out of which doctrine emerges and is increasingly refined. These influences encompass all that is offered by traditional sources and models of interpretation, but also demand a fresh look at the law-making role of international organisations and domestic courts.
A. UNHCR as a ‘Subsidiary Organ’
In 1949, the General Assembly decided to set up the Office of the United Nations High Commissioner for Refugees as a subsidiary organ under Article 22 of the Charter, and adopted its Statute in December 1950. The Charter does not define the term ‘subsidiary organ’, and there are no strict requirements of form binding on a principal organ when it establishes a subsidiary.Footnote 2 None of the General Assembly or ECOSOC resolutions laying the groundwork for and establishing UNHCR refers expressly to the relevant Charter provisions,Footnote 3 but in 1949 ECOSOC had requested the Secretary-General to prepare ‘a plan for such organization within the framework of the United Nations as may be required to enable the United Nations to discharge the function of international protection …’.Footnote 4 It proposed two alternatives, either a High Commissioner's office, ‘under the control of the United Nations’, or a service within the UN Secretariat.Footnote 5 The General Assembly opted for a High Commissioner's Office, emphasising that while it would operate within the UN framework, it should nevertheless possess, ‘the degree of independence and the prestige required for the effective performance of the High Commissioner's duties’.Footnote 6
The Repertory of Practice of United Nations Organs lists ‘a certain degree of independence’ from the principal organ as being both important and necessary to distinguish subsidiary organs from those that are simply an integral part of the principal.Footnote 7 ‘Independence’ had also been stressed during debate in the Third Committee, and was the reason why a High Commissioner's office was preferred to a service within the Secretariat, and why election by the General Assembly was preferred to appointment by the Secretary-General.Footnote 8
Initially, a number of subsidiary organs, including UNICEF, UNRWA and UNHCR were classified as ‘operational’, being financed largely by voluntary contributions rather than under the regular budget of the UN, and because they were entrusted with executing programmes of relief, rehabilitation and other forms of assistance, either to governments or directly to beneficiaries.Footnote 9 The legal powers of such agencies included ‘the authority to enter into contracts, to sue, to acquire, hold and transfer property, and to take any other legal action required in the performance of their functions’.Footnote 10 While their capacity to act in the private sphere is thus beyond doubt, it does not necessarily follow that their activities on the international plane do or can contribute to the law-making process. However, the Repertory of Practice expressly mentions UNHCR as having been authorised to negotiate or act in consultation with governments, and to consult with specialised agencies and other organisations,Footnote 11 and these characteristics, among others, have led to UNHCR being identified as falling within a group of ‘special organs’.Footnote 12 In Khan's assessment, these are largely autonomous or semi-autonomous, established for particular operational functions, and their independence is, ‘evident in the mostly self-directed execution of their functions, in the nature of their financing, often through voluntary contribution …, in the complex organizational structure of their administrative staffs …’, and in their emphasis on ‘technical and institutional assistance to accomplish the GA's given or self-given objectives, such as the protection of refugees.’Footnote 13
Still, they do not possess a legal personality of their own. UNHCR's standing in international law—its international legal personality—derives directly from the United Nations.Footnote 14 Its attributions and functions, set out in various General Assembly and ECOSOC resolutions and much built upon in practice, include UNHCR entering into special agreements with governments, promoting the conclusion and ratification of treaties for the protection of refugees, supervising their application and proposing amendments.Footnote 15 In addition, the High Commissioner is to consult with Governments on the need to appoint local representativesFootnote 16 and, subject to prior General Assembly approval, he or she may be authorised to appeal for funds.Footnote 17
UNHCR's standing in relation to the UN and its principal organs is also clear from the terms of its Statute. The High Commissioner is to follow policy directives from the General Assembly or ECOSOC,Footnote 18 and to engage in such additional activities as the General Assembly may determine.Footnote 19 After some 50 years regularly reviewing whether to continue the Office, in 2003 the General Assembly decided that it should be maintained, ‘until the refugee problem is solved’.Footnote 20 In addition, the High Commissioner is required to report annually to the General Assembly, through ECOSOC, and the report is to be considered as a separate item on the General Assembly's agenda.Footnote 21 He or she is elected by the General Assembly on the nomination of the Secretary-General,Footnote 22 and is authorised to appoint a deputy and the staff of the office.Footnote 23 While the Secretary-General is required to provide the High Commissioner with all necessary facilities, within budgetary limitations, and the administrative expenditures of the Office are to be paid under the budget of the UN, all other expenditure is to be financed by voluntary contributions.Footnote 24 A measure of independence notwithstanding, the principal organ necessarily retains authority and control,Footnote 25 and the impact of the General Assembly in enlarging UNHCR's mandate beyond the refugee strictly so-called is clearly evident over nearly 70 years of practice.Footnote 26
UNHCR's greatest interaction with States at the point where international law might be clarified or developed flows from its prescribed function of ‘providing international protection’, and the impact of this particular ‘operational’ dimension on law creation and development is the subject of what follows. As José Alvarez observed in 2005, ‘the greatest single challenge to Article 38 sources is that much of the standard-setting in which international organizations engage does not readily fit into any of the three established sources of law’ This in turn led him to hint that what they do is a sort of ‘law-making by subterfuge’.Footnote 27 In the case of UNHCR, however, it is not subterfuge that is involved, so much as an interstitial process, in which norms, standards, rules and practices are developed, refined and applied in a more or less collaborative environment.Footnote 28 This may explain why relatively little weight has hitherto been given to this type of international organisation practice over the years. The context demands not so much an assessment of resolutions, guidance and other pronouncements, bounded by ‘consent’, consensus, statements in explanation of vote, and the like, as an evaluation of the more mundane, practical, hands-on, daily practice of UNHCR, for example, in the determination of refugee status, the provision of legal advice and representation, the organisation of reception and assistance, or interventions to ensure the protection of basic rights, such as non-refoulement. In these and similar circumstances, UNHCR acts as the intermediary and interlocutor between refugees and asylum seekers, on the one hand, and States and their organs and officials, on the other. Such interventions, moreover, may occur not just at the diplomatic level, but also at borders in maritime zones, in courts and tribunals,Footnote 29 in settlements, in policy- and law-making, all within the context of a ‘regime’ in which States have a number of forums in which they can formally voice their concerns, apprehensions, or appreciation.
B. The ‘Other’ Subsidiary Organ: UNHCR's Executive Committee
The UNHCR Office is more than just a High Commissioner and staff. Today, it is part also of a regime that comprises a series of universal and regional treaties on refugees, a global network of non-governmental organisations which partner UNHCR in the delivery of both protection and assistance, and a series of mechanisms that facilitate the participation of States in influencing the direction of refugee law and policy, in addition to their formal involvement in the General Assembly and ECOSOC.
The need for the active engagement of States was recognised from the start, and the UNHCR Statute calls upon the High Commissioner, particularly where difficulties arise, to request the opinion of the advisory committee on refugees, if it is created.Footnote 30 Paragraph 4 of the Statute provides, in turn, that ECOSOC may establish such a committee, to consist of ‘representatives of States Members and States non-members of the United Nations, to be selected by the Council on the basis of their demonstrated interest in and devotion to the solution of the refugee problem’.Footnote 31 ECOSOC duly set up such a committee in September 1951,Footnote 32 which was reconstituted as the UN Refugee Fund Executive Committee in 1955.Footnote 33 The UNHCR Executive Committee in its present formFootnote 34 was established by ECOSOC in 1958, again at the request of the General Assembly.Footnote 35
ECOSOC was instructed to appoint from 20 to 25 members of the UN or of any of the specialised agencies (thus keeping membership open to States not then UN members, such as Switzerland), the members to be elected according to the criteria laid down in the UNHCR Statute.Footnote 36 The Executive Committee's terms of reference include advising the High Commissioner, on his or her request, in the exercise of functions under the Statute; for example, this may include the appropriateness of assistance being provided to help solve specific refugee problems, authorising the High Commissioner to appeal for funds to that end, and approving assistance projects accordingly.Footnote 37 The General Assembly has also occasionally requested the High Commissioner, ‘to abide by directives’ which the Executive Committee might give in regard to refugee situations.Footnote 38 ECOSOC, in turn, has required Executive Committee reports to be attached to the High Commissioner's annual report to the General Assembly,Footnote 39 and it continues to be responsible, again at the request of the General Assembly, for regular elections enlarging Committee membership.Footnote 40
In 1975, the Executive Committee set up a Sub-Committee of the Whole on International Protection to study, ‘the more technical aspects of the protection of refugees and … report to the Committee on its findings’.Footnote 41 Conclusions adopted on the basis of this work were especially common in the period 1977–1994,Footnote 42 but the Sub-Committee was abolished in 1995, when the Executive Committee decided to reorganise itself around one annual plenary session and a number, generally three, of inter-sessional meetings of a new Standing Committee of the Whole having general competence over protection, programmes and finance.Footnote 43 The practice of adopting conclusions on specific protection issues fell away somewhat; it picked up slightly in 2016–17, and although none was adopted in 2018 or 2019, the General Assembly has nevertheless stressed the ‘relevance’ of the practice and encouraged the Executive Committee to continue the process.Footnote 44
When adopted in plenary by consensus, Executive Committee conclusions will not be formally binding, but may nevertheless be highly relevant to the legal background of refugee protection. In a 2001 Opinion, Lauterpacht and Bethlehem considered the extent of consistent practice and general recognition of the principle of non-refoulement. They found that Executive Committee conclusions were particularly important, given that membership comprised States having ‘a demonstrated interest in, and devotion to, the solution of the refugee problem’,Footnote 45 which is to say, of States ‘whose interests are specially affected’. With participation then (2001) of 57 States, they were of the view that Executive Committee Conclusions can,
be taken as expressions of opinion which are broadly representative of the views of the international community. This is particularly the case as participation in meetings of the Executive Committee is not limited to, and typically exceeds, its membership. The specialist knowledge of the Committee and the fact that its decisions are taken by consensus add further weight to its Conclusions.Footnote 46
The substantial increase in membership since 2001 adds to the authority of this view, even if the Executive Committee's output is somewhat reduced.Footnote 47 Following the International Law Commission's analysis, the Conclusions can therefore be evidence of opinio juris, whether in highlighting the protection needs of particular groups of asylum seekers, confirming or improving standards of treatment, or promoting consistent interpretation by resolving differences between States or between States and UNHCR.Footnote 48
C. UNHCR's Role in the Scheme of International Protection
International refugee law is clearly engaged when the question of protection arises, for example, where large groups of people in search of refuge cross or are about to cross an international frontier; or when those in flight find themselves at the intersection of apparently conflicting or incompatible legal regimes—rescued at sea or intercepted, perhaps, and unable to disembark in a place of safety.Footnote 49 The rules that govern or even just touch on such an increasingly common situation include those on jurisdiction,Footnote 50 the law of the sea,Footnote 51 safety of life at sea,Footnote 52 maritime search and rescue,Footnote 53 or trafficking and smuggling,Footnote 54 and may also invite consideration of non-binding standards, such as the conclusions of the UNHCR Executive Committee,Footnote 55 or the recommendations of the International Maritime Organization.Footnote 56 The search for the applicable law may be helped or hindered, in turn, by the content of regional law,Footnote 57 and by the judgments of regional courts having treaty supervisory competence.Footnote 58
But international refugee law is no less likely to be engaged by the individual seeking protection in a migration and border control context in which States seek jealously to guard their sovereign competence, to limit exceptions and to minimise their international obligations. Here again, sources can be especially relevant for the practitioner, insofar as the legal system within which he or she works allows reference to international law, either because it is directly applicable or because it is accepted as relevant to the interpretation and application of domestic legislation. Among other things, ‘international protection’ is about using the available legal tools to ensure that the refugee in search of asylum is not penalised, expelled or refouled, that is, sent back or on to any country in which he or she is at risk of death, torture, persecution, or other relevant serious harm;Footnote 59 that every refugee enjoys the full complement of rights and liberties to which he or she is entitled as a refugee;Footnote 60 and that the human rights of every refugee are respected and secured.
Whereas the origins of international refugee law (and organisation) lie in a ‘groups and categories’ approach, in which the displaced were the objects of attention and neither rights nor agency played a significant role, today the individual is very much at the centre. The rights of the refugee and the asylum seeker vis-à-vis the State or States of prospective refuge are now contested in a world both globalised and securitised. Moreover, the growth in national refugee status determination procedures and the judicialisation of processFootnote 61 have led the 1951 Convention to be one of the most litigated treaties at the domestic level, with courts and tribunals around the world engaged almost daily in a common purpose—elucidating the meaning of and applying the refugee definition and other Convention provisions relevant especially to admission, residence and non-removal. Even in States or territories having no refugee status determination procedure, or not formally bound by the 1951 Convention/1967 Protocol, questions of refugee protection can and do enter the jurisprudence, for example, because of constitutional or other guarantees of rights.Footnote 62
This immediately broadens the picture, showing the potential of domestic courts as ‘agents of development’,Footnote 63 where both customary law and treaty interpretation are concerned. Indeed, the absence of a centralised authority or treaty supervisory body in the traditional sense, means that such courts have particular responsibilities in compliance and development.Footnote 64 At the same time, UNHCR's standing in relation to the application of the 1951 Convention enables it to influence those decision-makers who, in turn will shape the content and meaning of rules found among the traditional sources.Footnote 65 Article 38 of the ICJ Statute is thus much more of an open box than might be assumed. Samantha Besson makes the point, especially pertinent where refugee law is concerned, that the relationship between international human rights and domestic human rights is not one way, but mutual; not static, but dynamic.Footnote 66 Considered from an international organisations perspective, ‘Power … flows both ways: the global empowers the local and the local's view of what international rules mean influence the global.’Footnote 67 The intersection of interpretation and application is precisely the space in which UNHCR is able to operate.
The extent of State compliance with international law is clearly within the competence of the Office of the United Nations High Commissioner for Refugees. UNHCR's statutory responsibilities in the context of providing ‘international protection’ specifically include, ‘promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’.Footnote 68 States party to the 1951 Convention/1967 Protocol have accepted specific obligations in this regard, agreeing to co-operate with the Office to provide information and in particular to ‘facilitate its duty of supervising the application of [their] provisions’.Footnote 69
Whatever this responsibility may entail—and the travaux préparatoires offer little or no guidance—UNHCR is neither a party to the 1951 Convention/1967 Protocol, nor clearly a treaty supervisory body as that is understood today. It does not formally review State party performance, does not consider individual applications alleging breach of Convention provisions, does not possess the necessary legal standing to pursue its protection mandate by initiating proceedings against States, and does not claim to be, and is not accepted as, the final authority on the meaning of words. UNHCR must therefore employ other means, for example, through arguing its case at the diplomatic level, or in forums such as the Executive Committee, or by intervening in litigation, issuing guidelines, or giving advice. UNHCR alone, however, remains competent to interpret its own Statute,Footnote 70 which includes a definition of the refugee substantially similar to that accepted by States. This may result in a tension between institutional and sovereign competences, and if it is to be resolved and UNHCR is to fulfil its supervision mandate effectively and authoritatively, process will be key. Like any other international actor, UNHCR will need to ensure that its legal position is soundly based in international law; and that it has properly and effectively navigated the ‘sources’ which are the foundation of its authority, its competence, and its actions, as well as of the rights and obligations which it is charged to supervise.
D. UNHCR and the Identification of the Applicable Law
In 1977, UNHCR submitted a note to its Executive Committee on the determination of refugee status, pointing out that, although the basic criteria were the same for all parties to the 1951 Convention, the large number of States involved and the diversity of national systems, could result in discrepancies in interpretation and practice. One State suggested that it would be useful if the Office would prepare ‘a simple but authoritative handbook on criteria and procedures’ for use by governments, and the Executive Committee approved. The Handbook on Procedures and Criteria for Determining Refugee Status was duly drafted, essentially in-house and with little, if any, external input, and published in 1979.Footnote 71 It remains in print, re-edited and re-issued from time to time, but otherwise unchanged.
In 1979, the Handbook represented a distillation of some 25 years of UNHCR experience cooperating with States in applying the 1951 Convention/1967 Protocol, but it included very little case law.Footnote 72 Only in the mid-1970s did national refugee status decision-making procedures begin to take off—the Executive Committee had adopted its first conclusion on the subject in 1977Footnote 73—and there has since been an exponential growth in decision-making, not only on the refugee definition in all its dimensions—inclusion, cessation, exclusion—but also on cognate issues within the human rights field, including non-refoulement/non-return to the risk of harm, the detention and treatment of refugees and asylum seekers, children's rights, family and private life, and non-penalisation for illegal entry.
UNHCR began to collect relevant jurisprudence seriously in the 1980s, and Refworld, its online database, now contains over 12,000 decisions from courts and tribunals from every region.Footnote 74 If any of this is to have persuasive value in the subsequent interpretation, application and possible development of the law, then organisation, analysis and assessment are needed within the framework of international protection. The decisions of national courts, as organs of the State, may amount or contribute to practice for customary international law purposes, but while they may implicate the State in question, any wider juridical influence can hardly be assumed. The judicial and administrative material could possibly be distilled quantitatively, but even then a clear outcome favouring one or other interpretation seems unlikely, and there is no doctrine of binding precedent by numbers.
Following the 2001 Declaration of States Parties,Footnote 75 UNHCR initiated the ‘Global Consultations on International Protection’, which were intended to ‘provoke both reflection and action to revitalise the 1951 Convention framework and to equip States better to address the challenges in a spirit of dialogue and cooperation’.Footnote 76 Among other tasks, the 2002 Agenda for Protection expressly called on UNHCR to produce complementary guidelines to the Handbook, to organise expert discussions, ‘also involving State practitioners’, and to continue to participate in activities on refugee law organised by States, regional organisations and other partners, including NGOs and universities. This gave impetus to the project, which has allowed UNHCR to contribute to the promotion of an interpretative approach to key Convention terms rooted in the principles of protection.Footnote 77 Since 2002, UNHCR has issued 14 ‘guidelines’ on international protection, each of them springing from doubts or possibilities latent in the refugee definition or in contemporary challenges.Footnote 78
1. Methodology
If UNHCR's own views and guidelines on the interpretation and application of international refugee law are to be accepted, then methodology requires very careful consideration. First, this means identifying protection ‘needs’ with some precision: the area or issue should be one in which guidance is evidently necessary, and where clarification or development of the refugee definition or other provisions of the Convention is feasible. Second, guidelines must be soundly based in general international law, particularly the principles of treaty interpretation and customary law development, and sensitive, for example, to the work of the International Law Commission on issues such as State responsibility, expulsion, and disaster law. Third, they will need to factor in and closely analyse and understand, even if they do not adopt, the reasoning and approaches of national and international courts, as well as the views and practices of stakeholders in refugee protection.Footnote 79
The Human Rights Committee and the other UN treaty supervisory bodies have all developed the practice of adopting ‘General Comments’, which aim to set out each committee's views on the scope and content of the obligations accepted by States, and so facilitate implementation and compliance. In the case of the Human Rights Committee,Footnote 80 these are developed with input from specialised agencies, national human rights institutions, civil society, academics, other UN and regional human rights treaty bodies, and member States, before being finalised ‘internally’.Footnote 81
In the highly judicialised environment of refugee status determination, drafting guidelines which focus on the interpretation of the Convention calls for close attention to trends in the case law across different jurisdictions. In her review of UNHCR Guidelines published between 2002 and 2013, Cecilia Bailliet finds major discrepancies in citation, with a preponderance of English-language, common law jurisprudence.Footnote 82 This, she suggests, raises ‘legitimacy challenges’, so far as the guidelines purport to provide ‘objective guidance’. Principle would indeed demand a wider range and greater awareness of what is going on in civil law jurisdictions and, in particular, in the developing world. To a certain extent, this seems to be happening, and the most recent sets of Guidelines on International Protection make extensive references to case law from different countries.Footnote 83 The Guidelines on conflict and violence, for example, refer to some 29 cases from nine national jurisdictions (including three non-Anglophone States), 13 decisions from regional courts or treaty supervisory bodies, three decisions from three international criminal tribunals, and three judgments from the International Court of Justice. The Article 31 Guidelines draw on practice in 12 countries (23 cases overall, including six non-Anglophone and two African States), and six decisions from four regional courts or treaty supervisory bodies. The Guidelines on Palestinian refugees are lower in the citation table, but relatively fewer claims invoke Article 1D; in this case, five judgments from three countries are cited (Belgium, New Zealand and the United Kingdom), and five from the Court of Justice of the European Union.
However, another question must also be answered: Why and to what purpose is national, or even international, case law, being used? If a ‘balance’ is necessary, what should it be a balance of, apart from numbers? Case law used to illuminate developments serves an essentially narrative purpose (‘objective guidance’?), and the net should be drawn as wide as possible; but if it is to be a basis from which to advocate a more purposive approach to protection, then a certain selectivity may be in order. National case law is indeed potentially fruitful, for it is often at the domestic grass-roots level, that ‘new’ protection issues are first contested.Footnote 84 Given the variety of jurisdictions and natural differences in the flows of asylum seekers, it is nevertheless unlikely that national case law will ever produce universal consensus.Footnote 85
Collection, analysis and evaluation are therefore needed, taking due account of the standing and authority of the court or tribunal in question, the questions for decision, the quality of the analysis and reasoning, and the sources used. While being constantly aware of the criteria determining choice, it may be enough to look for the ‘higher’ court, but that can be offset, for example, where those courts have limited jurisdiction, or where specialist tribunals actually deal with and apply refugee law.
Substantive evaluation, with all the incidental challenges of language and legal culture, demands expertise and application, which in turn will require building up a cadre of ‘interpreters’ able to relate the local to the international. Even if there is no formal place for international law in domestic judicial decision-making, legal reasoning and outcomes may nonetheless reflect analogous constitutional principles, for example, on access to the courts. The evaluation of judicial trends, whether they conform to, advance on, or step back from established interpretations, will then need to be reviewed against the UNHCR's position on international refugee law and the fact that it is the one body charged with providing international protection to refugees. A serious deviation may call, not for a guideline, but for more tailored treatment, such as ‘intervention’ in the judicial process where permitted, or at the executive or legislative levels if substantive changes are required.
Once having identified areas of activity potentially calling for guidelines and the relevant juridical issues, at least in outline, then process becomes important: Transparency, consultation and comment, when managed openly and effectively, will contribute overall to the authority of the final output while, as the ILC has rightly remarked, much will ultimately depend on the reaction of States.
Here, the process adopted by the treaty supervisory bodies can be instructive, although the nature of the materials and the practice in refugee protection may call for different approaches. UNHCR's Global Consultations model nevertheless offers a basic, sound approach: A background or issues paper is prepared, either in-house or by an external consultant;Footnote 86 a workshop or round table of ‘experts’ is held, which produces ‘reasoned debate’ and conclusions; comments on the report and/or conclusions are invited; UNHCR then decides whether to go ahead with guidelines, with the option of putting a draft out for further comment.Footnote 87 One question will always be, how widely to spread the net of consultation. A certain level of representativeness among stakeholders is clearly needed, but expertise and practical experience are no less important; ultimately, the decision is for UNHCR.
Once guidelines are issued, however, they will need regular review, to determine their strengths, weaknesses and effectiveness, to see whether they have been overtaken by events or new thinking,Footnote 88 and to prepare revisions or addenda, as appropriate.
2. Authority
UNHCR's views, like the Handbook, may not be formally ‘binding’, but while courts in certain jurisdictions have sometimes sought to avoid following along, others have expressly adopted and applied them.Footnote 89 In fact, this appears to be an increasing tendency across jurisdictions. For example, the European Court of Human Rights, needs frequently to assess the risks inherent in the removal of non-citizens, and it refers to UNHCR's eligibility guidelines almost as a matter of routine.Footnote 90 In A.G.R., the Court stressed that it does not ‘examine the actual asylum applications or verify how the States honour their obligations’ under the 1951 Convention, neither asylum nor the right to residence being guaranteed as such under the European Convention, but that it must be satisfied when reviewing expulsion decisions that assessments are ‘adequate and sufficiently supported’ by the evidence, particularly that from ‘reliable objective sources’, such as UN agencies.Footnote 91 In addition, the Court has referred to UNHCR on issues of principle, and in A.A.Q. v The Netherlands, it accepted UNHCR's interpretation of Article 1F of the 1951 Convention,Footnote 92 to the effect that an excluded individual is not able to rely on the right to family unity in order to secure protection as a refugee through his or her connection to family members recognised as refugees in their own right.Footnote 93
The Inter-American Court of Human Rights has also relied extensively on UNHCR Guidelines,Footnote 94 as have Advocates General to the Court of Justice of the European Union. In her Opinion in Joined Cases C 148/13, C 149/13 and C 150/13, A, B and C, for example, Advocate General Sharpston recalled that, in relation to claims based on gender or sexual orientation, ‘The French, German and Greek Governments agree that the UNHCR Guidelines provide helpful guidance relating to the process of assessing credibility’, as did Belgium, and that UNHCR's submissions were particularly helpful.Footnote 95
At the national level too, courts frequently rely on both UNHCR guidelines and reports, whether in South Africa,Footnote 96 Canada,Footnote 97 Kenya,Footnote 98 Finland,Footnote 99 USA,Footnote 100 Czech Republic,Footnote 101 Switzerland,Footnote 102 Norway,Footnote 103 Ireland,Footnote 104 New Zealand,Footnote 105 GermanyFootnote 106 or Australia,Footnote 107 to name just a few.Footnote 108
Given the developments highlighted above, the ‘light touch’, ‘good faith’ consideration,Footnote 109 argued for in the past is no longer enough, and the duty of cooperation may now require of a State party that it ‘show genuine willingness to reconsider its position’,Footnote 110 in light of UNHCR's views. UNHCR possesses not only legal standing on refugee matters by reason of the authority conferred on it as a subsidiary organ of the General Assembly, but also the authority incidental to its other institutional features, namely, its mandate to supervise the application of the refugee treaties, the thoroughness of its work, its operational links to State practice, and its more ‘formal’ relationship with States through the General Assembly, ECOSOC, and the Executive Committee.
For the most part, the Guidelines on International Protection issued since 2002 are clearly rooted in international practice and in reasoned national and international decision-making.Footnote 111 Together with the views expressed in formal interventions in domestic litigation,Footnote 112 they ought to be accorded far more weight. They are certainly no less authoritative than the Handbook,Footnote 113 are much more up-to-date, and should be seen in the same light as equivalent work, such as the ‘General Comments’ of the Human Rights Committee acknowledged in the jurisprudence of the International Court of Justice.
Like the ‘General Comments’ themselves, this does not mean that UNHCR views are not susceptible to change, whether from without or within. In two 2018 judgments of the Court of Appeal for England and Wales, one on cessation of refugee status, the other on exclusion, it was indeed held that the relevant guidelines, both published in 2003, had to be read in the light of later developments. In MA (Somalia), the Court held that if, as was argued by the claimant, UNHCR's 2003 Guidelines on cessationFootnote 114 went beyond the words of the Convention and the EU Qualification Directive to require consideration of humanitarian standards before bringing refugee status to an end (which was by no means evident), then they would not be followed, in particular, because they had been issued before the 2010 judgment of the Court of Justice of the European Union in Abdulla,Footnote 115 which was binding on the Court.Footnote 116
In Youssef, UNHCR's 2003 Guidelines on exclusion were in issue,Footnote 117 paragraphs 17–18 were quoted in full,Footnote 118 and the Court also cited extensively from General Assembly and Security Council resolutions. Nevertheless, the Court concluded that the indication in paragraph 17 of the Guidelines that only those who have been in positions of power in a State or State-like entity would appear capable of committing acts contrary to the purposes and principles of the United Nations, ‘cannot any longer be considered accurate guidance’.Footnote 119 Again, the Court's disagreement was justified by reference specifically to Security Council resolutions adopted in 2005 and 2014, that is, after the Guidelines were published.Footnote 120
Neither of these judgments qualifies the authority of UNHCR's views as argued for here.Footnote 121 What they do, rightly, is to remind us that international refugee law, and the 1951 Convention/1967 Protocol in particular, is part of a dynamic regime, which will necessarily evolve to address the protection challenges raised by present and future displacements. As the International Court of Justice, the Human Rights Committee and the European Court of Human Rights have all recognised, this means remaining sensitive to the needs of those in search of protection, keeping abreast of legal developments and reasoning, especially as that may be reflected in judicial decision-making which is otherwise consistent with the international legal framework of protection, and being open to change and evolution. Where UNHCR's guidelines and interventions remain close to these standards and the comprehensive, transparent, sourced and reasoned methodology described above, then they will be fully entitled to the authority which is integral to UNHCR's international mandate.
The remainder of this article looks more closely at UNHCR's role in the development of international refugee law, taking its lead from Article 38(1) of the ICJ Statute, not as a ‘closed system’,Footnote 122 but with an eye to the varieties of influence on norm creation in a dynamic regime.Footnote 123 It focuses on the ways in which UNHCR is, or may be, either a source of law, or something of a hybrid, combining the roles of actor on the international plane, codifier, and progressive developer, though always in relation to and together with States.
II. SOURCES OF INTERNATIONAL REFUGEE LAW
The preceding section reviewed aspects of UNHCR's role in providing international protection to refugees and supervising the application of relevant conventions. It focussed on the preparation and publication of various forms of guidance, intended to move protection ahead through the clarification of texts and the adoption of preferred interpretations of international legal criteria. It demonstrated some of the impact and influence of UNHCR's work in an environment which remains sensitive to sovereign concerns, but in which domestic courts have assumed the multifaceted role of source and enforcer of international refugee law and as ‘agents of development’.Footnote 124 As those examples show, something of a judicial dialogue, often mediated by UNHCR, is already under way between courts and across jurisdictions.Footnote 125 When assessing State behaviour in relation to refugees, therefore, it is no longer enough to look only to treaty and custom for the applicable law, and evidence that does not fit neatly into traditional categories must also be factored in.Footnote 126
The present section briefly reviews the traditional sources, primarily with a view to considering how UNHCR can draw on them effectively in support of its international protection role, and at the same time contribute to clarifying and developing their meaning and application in concrete cases. The State and State consent have not left the scene, of course, but treaties such as the 1951 Convention are dynamic and evolving, and international organisations such as UNHCR contribute almost daily to the body of norms, influencing and shaping ‘the existence, content and meaning of the rules stemming from the formal sources’.Footnote 127 Here, in its work on legal protection in particular, UNHCR facilitates and enables courts to identify and validate customary law and interpretative norms and, through the dissemination of its perspective, it helps to mould the law. From a positivist perspective, domestic decisions may be just facts, but courts are organs of the State and their judgments can reflect State practice;Footnote 128 moreover, when viewed as ‘subsidiary means’, they can also be more or less authoritative glosses on rules that originate in those formal sources.Footnote 129
These sources are traditionally examined in the context of inter-State relations, where there is no formal law-making machinery and where the system works, ‘on the basis that the general consent or acceptance of states can create rules of general application’.Footnote 130 ‘Sources’ here means either the method by which law is created or, as Robert Kolb puts it, where to find the law.Footnote 131 The range of potentially relevant ‘material sources’ is broad, and the challenge is to determine the extent to which they contribute to the creation or consolidation of rules of law.Footnote 132 Article 38 of the Statute of the International Court of Justice directs the Court what to apply, when deciding in accordance with international law such disputes as are submitted to it,Footnote 133 and this is the common starting point when looking for international law in all its dimensions.Footnote 134 These sources, it is said, reflect that ‘common consent of the international community which is the basis of international law’, but this does not mean that, ‘the source of every rule … is to be found in the consent of states’,Footnote 135 or that the will of States therefore plays an unrestricted role. Custom, ‘the oldest and the original source of international law as well as of law in general’, is itself ‘a matter of general rather than universal consent’.Footnote 136
A. Treaties and Custom
Discussion of the sources of international refugee law usually begins (and sometimes ends) with the 1951 Convention and the 1967 Protocol relating to the Status of Refugees.Footnote 137 Customary international law, however, is no less important, both in its own right and as a necessary and complementary dimension to interpretation and application. The general rule in Article 31 of the 1969 Vienna Convention on the Law of Treaties, for example, refers not only to the ordinary meaning of words in context, but invites consideration, as appropriate, of subsequent agreement, subsequent practice, and any relevant rules of international law applicable in the relations between the parties. Article 32 also accepts the use, in certain cases, of ‘supplementary means of interpretation’.Footnote 138
Another starting point in the discussion of international refugee law, understandably, concerns its scope: Who is a refugee? Just as other instruments define their beneficiaries—such as the childFootnote 139—so international refugee law also begins by delineating the field. The first instruments, ‘arrangements’ for the issue of identity certificates to refugees, described the intended recipients by reference to their country of present or former nationality and to the fact that they no longer enjoyed its protection or that of another nationality.Footnote 140 The 1946 Constitution of the International Refugee Organization combined a list and generalised approach,Footnote 141 while both the 1951 Convention and the UNHCR Statute have adopted a definition framed in terms of a well-founded fear of being persecuted.Footnote 142 Considerable interpretative jurisprudence has built up on this definition, its limits and its exclusions, so that the identification of the applicable law is very much a dynamic issue wherever the courts are involved.Footnote 143 Not surprisingly, these issues arise primarily in the context of disputes and claims for protection at the individual, municipal law level, rather than between States.Footnote 144
The 1951 Convention relating to the Status of Refugees, with just one ‘amending’ and updating Protocol adopted in 1967, remains the principal treaty in today's international regime of refugee protection.Footnote 145 This is now complemented by regional instruments specifically oriented to refugees, and by the often parallel systems of human rights protection in Africa,Footnote 146 Europe,Footnote 147 and Latin America.Footnote 148 Many of the principal refugee-receiving countries in recent years have not been party to the 1951 Convention/1967 Protocol, however, so that the customary international law of refugee protection can be critically important in identifying key principles relating to definition or description, admission and non-refoulement, and standards of treatment. Insofar as States may also incline to ‘re-visit’ their Convention obligations, customary international refugee law is no less important as a further indicator of what is or is not permitted. For a customary rule once established is then a general rule of international law applicable to every State, subject only to the exception of the persistent objector.Footnote 149
It is in the nature of customary international law to be contested, of course, particularly in the absence of a final authoritative ruling by a competent international tribunal.Footnote 150 Nevertheless, it continues to be a powerful guide to the practice of States, and it is crucial to be clear, not only about how it comes into being, but also about how it continues in force.Footnote 151 In fact, the central principles of international refugee law are supported both by long-standing State practice and by a substantial number of statements on the rules to be followed, which are to be found in declarations and resolutions adopted by the UNHCR Executive Committee, the UN General Assembly, and regional bodies.Footnote 152 In addition, Conclusion 12, adopted by the International Law Commission (ILC) in 2016 in the context of its work on the identification of customary international law, and now ‘taken note of’ by the General Assembly, confirms that while a resolution adopted by an international organisation or at an international conference cannot of itself create a rule of customary international law, ‘it may provide evidence for establishing the existence and content’ of such a rule, or contribute to its content, and that ‘it may reflect a rule … if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris)’.Footnote 153
B. General Principles
The inclusion of ‘general principles’ among the sources of international law in Article 38(1)(d) has been explained as, ‘a response to the need for completeness’, and to avoid a non liquet.Footnote 154 From UNHCR's perspective, and given its regular interactions with States in addressing the practical protection needs of refugees and asylum seekers, general principles can provide additional authority in support of law-based and rights-oriented responses.Footnote 155
In the field of international refugee (and human rights) law, certain principles of ‘public law’ have certainly been accepted, particularly in the procedural sphere where the rights of the individual are involved. Their legal weight often derives from a combination of acceptance at the municipal level with a body of authoritative judicial practice regionally and nationally, where a strong current of cross-fertilisation is to be found. The identification of such general principles is thus assisted through judicial decisions when interpreting and applying the State's treaty obligations, or drawing out elements considered fundamental to a functioning legal system.
For example, the right of recognised refugees to access the courts is expressly stated in Article 16 of the 1951 Convention, but those seeking protection whose status is not yet determined may need to rely on the general principle. In Golder v United Kingdom, the European Court of Human Rights described the individual's right of access to the courts as one of the ‘universally “recognised” fundamental principles of law’, no less than the rule of international law forbidding denial of justice,Footnote 156 and the United Kingdom Supreme Court recently confirmed it as a constitutional right, ‘inherent in the rule of law’.Footnote 157 The principle of equality of the parties could also claim a place in the procedural aspects of international refugee law, for example, with regard to access to appellate remedies,Footnote 158 for it ‘follows from the requirements of good administration of justice’.Footnote 159
C. Judicial Decisions
Even though no dispute relating to the interpretation of the 1951 Convention/1967 Protocol has ever reached the International Court of Justice, the Court has frequently confirmed the customary international law status (or higher) of principles and rules central to refugee protection. In Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), for example, the Court stated that the prohibition of torture is part of customary international law and a peremptory norm.Footnote 160 In Diallo, it considered that the guarantees of liberty and security of person in Article 9 ICCPR66 extend also to administrative detention, and are not confined to criminal proceedings; that, taking account also of Articles 7 and 10(1), ‘the prohibition of inhuman and degrading treatment is among the rules of general international law which are binding on States in all circumstances, even apart from any treaty commitments’; and from what was arguably a customary international law interpretation perspective, it considered that compensation, in addition to a judicial finding, was due, given ‘the fundamental character of the human rights obligations breached’.Footnote 161
In common law jurisdictions, the relevance of case law is generally undisputed, although the precedential value of judgments will vary according to system and circumstance. Judicial ‘borrowing’ is increasingly common, although the citation of ‘foreign’ decisions, even simply as illustrative of analysis, reasoning and conclusions, can be controversial. In principle, such a dialogue would seem to make good sense between courts and jurisdictions when engaged on a common purpose, such as interpreting the 1951 Convention to which they are all party.Footnote 162 The question is, how and when might judicial decisions—the jurisprudence, perhaps, rather than the single decisionFootnote 163—have influence or impact as ‘subsidiary means for the determination of rules of law’. A key factor will be ‘the persuasiveness of the legal reasoning’,Footnote 164 and even though Alain Pellet reiterates that, ‘jurisprudence and doctrine are not sources of law … they are documentary “sources” indicating where the court can find evidence of the existence of rules’,Footnote 165 that line may be less significant when it comes to practical decision-making.
The value of judicial decisions at the national level thus falls somewhere between evidence of State practice and evidence of opinio juris, while also serving as ‘subsidiary means’.Footnote 166 In the ILC's work on the identification of customary international law, Conclusion 13 draws a clear distinction between the decisions of national and international courts, with ‘greater caution’ called for in relation to the former, ‘which may reflect a particular national perspective’.Footnote 167 Conclusion 13 therefore specifically identifies international decisions as a subsidiary means, and simply adds that ‘regard may be had, as appropriate, to decisions of national courts concerning the existence and content of rules of customary international law’.Footnote 168
Nevertheless, in practice, judicial dialogue across jurisdictions can become an important dynamic. National courts tend to look to customary international refugee law for interpretative guidance, especially in the evolution of terms, such as persecution, protection, social group, or political opinion in the refugee definition; and it is here that, properly assisted and thereafter mediated through the treaty supervision agency,Footnote 169 their decisions may not only contribute to the identification of rules of general application to the Convention, but also, being formulated or re-formulated, to the evolution of those rules.
D. Doctrine
The ILC's treatment of ‘teachings’ in Conclusion 14 and its commentary is succinct and cautious.Footnote 170 In the words, of the Special Rapporteur, it was ‘not intended to suggest that teachings are not important in practice’, but that, once again, caution is needed when drawing on them.Footnote 171 By contrast, Sandesh Sivakumaran is more sanguine, finding that the category of ‘publicists’ is not homogeneous and identifying at least three types: ‘entities that have been empowered by States to conclude teachings, such as the International Law Commission; expert groups, both standing and ad hoc; and “ordinary” publicists’.Footnote 172 He identifies UNHCR and the International Committee of the Red Cross as falling within the State-oriented first type, adding that,
The teachings of State-empowered entities are thus of a different order … Indeed, from a non-formalist perspective, State-empowered entities might best not be considered publicists at all. State-empowered entities have a close relationship with States in a way that ordinary publicists do not. They are empowered by States to carry out a law-making function broadly defined – for present purposes, to develop a teaching.Footnote 173
‘Ordinary’ publicists do, of course, have a role in discrete areas of international law and, even if they are rarely cited in the International Court of Justice, other tribunals and advocates will frequently refer to monographs and more general commentaries. As Sivakumaran explains,Footnote 174 assessing influence is another matter; the role of the publicist is not to create law but, by distilling the practice and views of States through the prism of objectivity and principle, to show where and how the law can be found.Footnote 175
Treaty supervisory bodies may possess some of the characteristics of ‘expert groups’, such as the International Law Association or the Institute of International Law, but their ‘treaty status’ is good reason to consider them as something of a hybrid when identifying the applicable law. In its Advisory Opinion in The Wall, the Court referred to the ‘constant practice’ of the UN Human Rights Committee on States’ exercise of jurisdiction outside national territory, and noted that this interpretation was supported by the travaux préparatoires.Footnote 176 Similarly, in Diallo, the Court again called in aid the Human Rights Committee's ‘considerable body of interpretative case law’ with regard to the procedural guarantees against expulsion set out in Article 13 ICCPR66, which had been developed in responding to individual communications and in ‘General Comments’.
Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.Footnote 177
In its 2012 Advisory Opinion on Judgment No. 2867, for example, the International Court of Justice used the ‘significant differences’ between two Human Rights Committee General Comments on Article 14(1) ICCPR66, (one adopted in 1984, the other in 2007), to illustrate the development of the principle of equality of access to courts and tribunals since 1946, when the ILO review procedure was established.Footnote 178
One might hesitate before supposing too close an analogy, but when providing guidance on interpretation and ‘the law’, UNHCR shares certain characteristics with the International Law Commission (ILC). In its 2018 commentary on the identification of customary international law, the ILC itself observed that, so far as its determination as to the existence or non-existence of rules of law had any value, it flows,
from the Commission's unique mandate, as a subsidiary organ of the United Nations General Assembly, to promote the progressive development of international law and its codification; the thoroughness of its procedures (including the consideration of extensive surveys of State practice and opinio juris); and its close relationship with the General Assembly and States (including receiving oral and written comments as it proceeds with its work).Footnote 179
The exact value of its work, of course, will turn on other factors as well, including States’ ‘reception of its output’.Footnote 180
Returning to UNHCR, it can be appreciated that its views, guidelines and interventions could occupy a similar place, even if it is a different type of treaty supervisory body, being also ‘operational’ in its own right, as a subsidiary organ of the General Assembly.Footnote 181 On the one hand, UNHCR is alone competent to interpret paragraphs 6 and 7 of its Statute (its own refugee definition) and, within the field of policy directives issued by the General Assembly and ECOSOC,Footnote 182 to determine the scope of its mandate. On the other hand, reading paragraph 8(a) of the Statute together with Article 35 of the Convention and Article II of the Protocol, UNHCR can also be seen as competent, together with States, to interpret Article 1A(2) of the Convention and its other provisions. Here, UNHCR may have something of an advantage, so far as its legal ‘output’ is quickly included in national decision-making processes.
III. TREATY INTERPRETATION
Working within a dynamic legal environment such as international refugee law requires knowledge of the formal sources and where to find them, knowing how to access the ‘interpretative tools’ that govern the normative regime in practice, and then adopting the appropriate ‘interpretative approach’.Footnote 183 Article 31 of the 1969 Vienna Convention on the Law of Treaties provides the general rule of interpretation (good faith, ordinary meaning, context, object and purpose),Footnote 184 while Article 32 permits the use of ‘supplementary means of interpretation’ in order to confirm or determine meaning in cases of ambiguity or obscurity, or to avoid manifestly absurd or unreasonable results. ‘Supplementary means’ include, but are not limited to, the travaux préparatoires.Footnote 185
While the primary focus is on the text and the ordinary meaning of the terms in context and in the light of the treaty's object and purpose, something more may be needed in the protection of individual rights. The ‘living instrument’ approach, for example, is well established in the jurisprudence of the European Convention on Human Rights, which is to be interpreted so as best to realise the aim and achieve the object of the treaty, and not so as to limit, to the greatest possible degree, the obligations undertaken by States.Footnote 186 Moreover, it is to be ‘applied in a manner which renders its rights practical and effective, not theoretical and illusory. It is a living instrument which must be interpreted in the light of present-day conditions.’Footnote 187
Where necessary, that means change and a departure from previous decisions. In Bayatyan v Armenia, the European Court of Human Rights noted that it,
must have regard to the changing conditions in Contracting States and respond … to any emerging consensus as to the standards to be achieved … Furthermore, in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs. The consensus emerging from specialised international instruments may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases ….Footnote 188
In this case, the Court put aside an earlier line of case law concerning conscientious objection and held that, ‘opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person's conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9’ of the Convention.Footnote 189
A. Applying the ‘Living Instrument’ Approach to the 1951 Convention
The refugee definition in Article 1 of the 1951 Convention covers inclusion, exclusion, cessation, de facto citizenship and the always political question of Palestine refugees, in a frequently contested field that engages sovereign discretion with the demands of protection. Many key terms, such as ‘well-founded fear’, ‘particular social group’, ‘political opinion’, and ‘being persecuted’, were left to be defined or worked out in the practice of States, and increased judicialisation has led to a fertile interpretative environment. As illustrated above, UNHCR's frequent engagement with municipal courts in multiple jurisdictions throws new light on sources and law-creating processes.
Not surprisingly, the living instrument approach to interpretation of the 1951 Convention has also found a place in European Union law. As Advocate General Sharpston once recalled, the Convention is ‘the cornerstone of the international legal regime for the protection of refugees’,Footnote 190 which ‘should be interpreted in the light of present-day conditions and in accordance with developments in international law’.Footnote 191 For example, in order to apply the criteria for exclusion from refugee status set out in Article 1F(c) and to understand ‘acts contrary to the purposes and principles of the United Nations’, it is essential to look at what the Security Council has said and at the ‘measures combatting international terrorism’ which States are required to take.Footnote 192 However, the starting point must always be the text of the treaty;Footnote 193 while the phrase ‘acts contrary to the purposes and principles of the United Nations’ must have an autonomous meaning in the Convention, States implementing Security Council decisions must nevertheless keep within the bounds of its object and purpose, and are not free to adopt their own definition of terrorism.Footnote 194
In general, UK courts have incorporated the ‘living instrument’ thesis into their approach to the 1951 Convention,Footnote 195 although they have not always made best use of the available evidence.Footnote 196 In an approach reminiscent of that adopted by the European Court of Human Rights in Golder v United Kingdom,Footnote 197 Lord Bingham nevertheless remarked that,
the best guide is to be found in the evolutionary approach that ought to be taken to international humanitarian agreements. It has long been recognised that human rights treaties have a special character. This distinguishes them from multilateral treaties that are designed to set up reciprocal arrangements between states … Their object is to protect the rights and freedoms of individual human beings generally or falling within a particular description ….Footnote 198
Looking at the interpretation of Article 31(1) of the 1951 Convention, which provides for the non-penalisation of refugees who enter or are present illegally, he added that he,
… would not confine the meaning … to the particular situations that the framers had in mind … The overall context is provided by the preamble to the Convention. It refers to the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. It states that ‘the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’. This is an indication that a generous interpretation should be given to the wording of the articles, in keeping with the humanitarian purpose that it seeks to achieve and the general principle that the Convention is to be regarded as a living instrument.Footnote 199
Interpretation, working within the text, can thus be the medium for change. What it cannot do alone, however, is to replace express words, read in what is not there,Footnote 200 or always be sure of prevailing.Footnote 201 There is certainly scope for evolution in the interpretation of treaty obligations, and while clarification, ‘may result in narrowing, widening, or otherwise determining the range of possible interpretations, including any scope for the exercise of discretion’,Footnote 202 substantive changes will require something else. ILC Conclusion 7 on ‘Subsequent agreements and subsequent practice’ also notes the presumption that parties intend by agreement or practice, ‘to interpret the treaty, not to amend or to modify it. The possibility of amending or modifying a treaty by subsequent practice of the parties has not been generally recognized.’Footnote 203
What remains as yet relatively unexplored, however, is whether the ‘supplementary means’, acknowledged in Article 32 VCLT as potentially relevant where there is ambiguity or obscurity, or to avoid manifestly absurd or unreasonable results, have unrealised potential. For example, free of the formal constraints of ‘agreement’, they might offer a way in for judicial decisions and/or UNHCR guidance, which seek to clarify the interpretative approach, to identify ‘relevant rules of international law applicable in the relations between the parties’,Footnote 204 or to promote the progressive development of international refugee law by strengthening implementation at the municipal level.Footnote 205
B. ‘Subsequent Practice’, ‘Supplementary Means’ and ‘Subsidiary Means’Footnote 206
Article 31(3)(b) of the Vienna Convention on the Law of Treaties refers to ‘subsequent practice in the application of the treaty’,Footnote 207 Article 32 recognises that use may be made of ‘supplementary means’, and Article 38(1)(d) of the ICJ Statute identifies judicial decisions and teachings as ‘subsidiary means for the determination of rules of law’.
Conceivably, ‘subsequent practice’ might include the decisions of national courts among the possible relevant juridical acts, but the requirements for such practice to give rise to a new, binding interpretation are so strict as to make that likelihood extremely remote.Footnote 208 ILC Conclusion 3 emphasises this when it characterises subsequent agreements and subsequent practice as ‘being objective evidence of the understanding of the parties’ and as ‘authentic means of interpretation’.Footnote 209 The practice revealed by the judicial decisions in question would thus need to be such as ‘establishes the agreement of the parties regarding … interpretation’ of the convention, and therefore common to and/or accepted by all, or at least a substantial number of the parties.Footnote 210
Article 32 of the Vienna Convention permits recourse to ‘supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion’, but only to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31, ‘(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable’.Footnote 211 ‘Progressive development’ does not appear to be what ‘supplementary means’ are intended to achieve. Where obscurity, ambiguity, likely absurdity or unreasonable results are not the issue, then the relevance and normative force of jurisprudence (and doctrine) will need a different entry point if international refugee law is to ensure that protection is effective and in accord with changing times and circumstances.
Here, judgments from various jurisdictions may have weight, not because they meet the Vienna Convention requirements of ‘subsequent practice’ or ‘supplementary means’, but as ‘subsidiary means’ within the sense of the ICJ Statute, and therefore subject to a different evidential standard. In brief, and as illustrated in the examples above, they can be the material which demonstrates the existence of applicable rules in practice, and their acceptance as binding by States.Footnote 212 However, judicial decisions ‘may assist in collecting, synthesising or interpreting practice relevant to the identification of customary international law’, to borrow the ILC's words in its commentary on the significance of certain materials.Footnote 213 Building on this base, UNHCR may in turn actively contribute to the elucidation of relevant and applicable law and principle, in the exercise of its supervisory role under the 1951 Convention/1967 Protocol.
IV. CONCLUDING, AND MOVING ON …
International refugee law draws its rules from the traditional sources—treaties, custom and general principles—but it benefits from the background of law and principle which governs relations between States, between States and international organisations, and between States and individuals. From a law-creation perspective, international refugee law is also influenced by the operations, interventions and initiatives of UNHCR, not because UNHCR makes law in a strictly formal sense, but because its activities can and do generate relevant practice and, in turn, lead to the emergence of opinio juris.
UNHCR's singular role stems from the international protection mandate conferred by the General Assembly in 1950, but now accepted by all States members of the United Nations; and from its specific responsibility to supervise the application of treaties for the protection of refugees. Its authority to speak is strengthened further by its field presence and by its engagement, together with States and domestic courts, in the practical application of the law to the lives of individuals in search of refuge and protection. If law-making is ‘no longer the exclusive preserve of states’,Footnote 214 the task still remains of identifying the source and confirming its content and binding nature. In the field of international refugee law, that role now falls on UNHCR, both as the ‘provider’ of subsidiary means for the determination of rules of law, and as an authoritative interpreter of international agreements for the protection of refugees.
This combination of activities, together with its operational role in relation to material assistance,Footnote 215 no less than the determination of refugee status,Footnote 216 has ensured that UNHCR remains an integral part of the international refugee regime, at the policy level, in protection in individual cases, in the implementation of treaties, and in the progressive development of international refugee law. Although not a treaty supervisory body in the sense generally understood today, UNHCR's roles with governments and with civil society give it distinctness. UNHCR is thus often well placed to influence national protection institutions, even if its primary protection responsibility can lead to confrontation with governments over the refugee status of individuals, or the treatment generally of refugees and asylum seekers; here, its role straddles the interpretation/application divide, but there are challenges ahead.
Recent large-scale movements of refugees, asylum seekers and migrants have found governments uncertain about how to react, and/or unwilling to pursue policies that have protection at their core and internationally acceptable and agreed solutions as their goal. International refugee law nevertheless provides the essential framework and the overarching principles. Together with complementary and often intersecting rules drawn from, among others, human rights law and the doctrine of State responsibility, these show what should or should not be done, and provide the markers of progress. The 2018 Global Compact for RefugeesFootnote 217 may help to put cooperation in the search for permanent solutions to the problem of refugees on a more predictable and equitable base, but its foundations lie in that body of international refugee law which has been evolving now for close on 100 years. If it is to continue to do so, then UNHCR will need actively to lead the process, as the responsible international agency and as the authoritative voice in identifying, clarifying and developing the law. Integrity of methodology and rigour of analysis will be crucial to successful advocacy and, just as the Global Compact recognises within its own area of focus, a key contributor to success is and will be civil society. Today, there can be ‘little doubt’ that the institutionalisation of public international law, ‘has radically altered how state power, hard or soft, is exercised’.Footnote 218 That said, this is nevertheless an area that demands a critical, sometimes sceptical approach, rather than idealised suppositions of obligation that resonate more in rhetoric, than in the reality of lives in search of refuge.
In determining and advancing international refugee law, UNHCR's future work will necessarily continue to engage with the interests of States, but it will also need a firm rooting in the broad, now global constituency of advocates and non-governmental organisations active in local communities. Here, the rights of the displaced are no less important, and face to face with the ever-evolving needs of those in search of refuge, it is commonly their efforts, canvassed before national courts and tribunals, which first push the envelope of protection; in the words of the UN General Assembly, ‘a dynamic and action-oriented function’, indeed.Footnote 219
