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 November
14th was
the visit with non-governmental
organizations (NGOs) of Erika Feller,
Assistant High Commissioner -
Protection, United Nations High
Commissioner for Refugees (UNHCR).
UNHCR typically likes to meet with NGOs as is provided for in its founding statute. Also, Erika Feller will be a keynote speaker on "Protracted Refugee Situations, Rule of Law and Peacebuilding". James Milner, fellow at the Munk Centre for International Studies, University of Toronto will be the discussant. James is well able to deal with protracted refugee situations. And it is an important topic. The Rule of Law and Peacebuilding go beyond the mandate of the UNHCR. However, the real issue is what appears to be the end of an era for international protection by UNHCR. And that issue may remain hidden until the CCR meeting at the end of November. Erika Feller is and has been good news for international protection and for refugees. I first knew her way back when she negotiated a clause about non-refoulement into the Chicago Convention for UNHCR at the IATA meetings in Montreal around 1989. My rule of thumb has always been that UNHCR is generally a better bet for refugee interests than gangs of governments alone. So my default option was to support UNHCR to the extent integrity allowed. Since 2002, Erika and the protection side of UNHCR has pushed, in their professional way, "Agenda for Protection" with its aims and objectives. Now A4P seems to be essentially dead. A4P was originally a rather powerful international agreement because it was from the government signatories to the 1951 Convention. In international law, interpreting a treaty is in the light of subsequent agreements. Although this would not qualify as a later treaty, the International Court of Justice has drawn on such materials. And the ICJ is a relevant place for interpretation of the 1951 Convention. A4P rapidly added "Convention Plus." This was a UNHCR initiative which became an EXCOM vehicle with 3 thrusts towards more formal agreements among governments. The CP initiative was led by governments in each area: resettlement; burden sharing; and secondary migration. The resettlement area arguably came to a sort of agreement. The other two collapsed in 2005 but with some useful documents from UNHCR along the way - documents which risk being lost. ispite notions of CP having been "mainstreamed" the initiative must be considered dead. From 2002 to 2007 UNHCR has used the A4P as a reporting tool to "EXCOM", the Executive Committee of appointed governments which steer the UNHCR program. The 2007 web records of the Standing Committee of EXCOM show the protection side of UNHCR (Erika Feller and her Director) wanted to continue to hold states accountable and appear to have wanted to have a more formal review of state progress towards the "we will" of the A4P agreement. The record of the Standing Committee meetings earlier in 2007 now declares the rather brief exchange at this year's Standing Committee to have been the review! Imaginatively, Erika Feller tucked into one reported recent speech to the Standing Committee that, as I recall it, like the Human Rights Council, EXCOM might have a country by country review of refugee protection. That thought is consistent with the repeated requests from the CCR for an oversight mechanism in my activist days of the early and mid 90s. It was not taken up. In the web record of the Standing Committee leading up to this year's EXCOM, Erika Feller made no secret of the value she found in the "General Conclusion" on protection at EXCOM. Presumably her staff could use it against States. The West (where Canada typically acts as lead in refugee affairs negotiations) did not support this. The General Conclusion on Protection was to be discussed. By now it might have been dismissed. States may not find a useful nagging tool for UNHCR particularly valuable for them. In short, an era, the Agenda for Protection era seems over. There was no formal review of the A4P. The Convention Plus is dead. There is no General Conclusion on Protection. The UNHCR is drifting into extending its work to serve as lead agency for protection of Internally Displaced Persons within a "cluster" approach of relief agencies. Traditionally Canada appeared opposed the stretching of UNHCR outside its mandate, but the US seemed to support it. Refugee law scholar Guy Goodwin Gill opposed it on grounds of very different legal frameworks applicable to citizens and asylum seekers getting confused and muddied. Now, no one seems to be speaking against the drift. Erika Feller must surely care about all that. But there will be a short meeting with NGOs in Ottawa. Resettlement is the underlying topic of her lecture. Her new title from 2006, Assistant high Commissioner for Protection, is the one gesture towards protection on an otherwise rather gloomy international protection landscape. |
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