The supervision challenge

In the course of UNHCR's Global Consultations on International Protection, the supervisory responsibility (under Article 35 of the 1951 UN Refugee Convention) of the organization was discussed by a gathering of distinguished experts. There was agreement that 'the identification of appropriate mechanisms should seek to preserve, even strengthen, the pre-eminence and authority of the voice of the High Commissioner. Anything that could undermine UNHCR's supervisory authority should be avoided'.[25]

On the other hand, some experts have been recommending that an independent committee be established with the task of ensuring the accountability of states under the 1951 UN Refugee Convention. These experts argue that UNHCR is unable to perform its supervisory role because of its financial dependence on donor countries and the absence of a clear procedure in the Convention on how the supervisory task assigned to it is to be carried out.

The challenge can be met if UNHCR takes steps identified in the course of the Global Consultations to strengthen its supervisory role.[26] Its adoption of a dialogic model in recent initiatives is a move in the right direction as it allows all stakeholders, including the refugee community, to express their concerns.

The partnership challenge

Within the UN system the primary responsibility for providing assistance and protection to refugees lies with UNHCR. In recognition of the expertise that other actors can bring in responding to and resolving refugee situations, in recent years UNHCR has worked to strengthen partnerships with governments, other UN agencies, NGOs, the private sector and the refugee community. It has continued to work with other UN agencies to assist refugees where their mandates meet. It has also invested particular efforts to strengthen collaboration with local and international NGOs, which are its main operational partners.

While much has been achieved, to identify and fill protection gaps the organization should go further in involving all relevant actors, including host governments, in assessing the needs of displaced people and in planning and implementing effective responses. By bringing in the expertise of others, UNHCR will complement its own work and capacity and therefore ensure that minimum standards of protection and assistance are met.

The accountability challenge

Critics of the organization contend that its internal accountability mechanisms are inadequate for 'they neither offer adequate sanctions nor remedies when fundamental rights of refugees and stateless persons have been directly violated by an act or omission of the UNHCR'.[27] While the practicalities of such a proposal may be questioned, more can certainly be done to increase the transparency and accountability of the organization.

Considering the fact that UNHCR is constantly making decisions that affect the lives of hundreds of thousands of displaced people, there is a real and vital need for the organization to be more accountable to its beneficiaries. One concrete area that requires attention is refugee status determination (RSD) conducted by UNHCR. The number of applications received by UNHCR offices worldwide nearly doubled from 1997 (45,000 persons) to 2004 (86,000 persons). In 2004, UNHCR eligibility decisions affected 54,000 persons in over 80 countries, two-thirds of which are parties to the 1951 UN Refugee Convention. UNHCR conducts RSD mostly in developing countries. In some of these, it conducts RSD 'jointly' with the national authorities, in a gradual process of building national asylum systems. In states where national RSD procedures are in place without yet offering the necessary safeguards, UNHCR closely monitors the processing of asylum claims by reviewing some claims in order to influence the decision of contracting states who may not otherwise grant refugee status to individuals deserving international protection. In other countries still, UNHCR carries out RSD as no national procedures yet exist.

RSD conducted by UNHCR may directly influence decisions regarding an asylum seeker's deportation, release from detention, resettlement to a third country or eligibility for humanitarian assistance. Researchers and refugee-rights advocates have noted several problems in the RSD process and detailed the standards that a fair, efficient and open RSD procedure should meet to comply with international human rights law.[28] UNHCR has responded positively to academic and NGO criticism and has drafted and started implementing in November 2003 its Procedural Standards for RSD under UNHCR's mandate, which were made public in September 2005.

The funding challenge

UNHCR has lacked sufficient core funding in recent years because nearly 85 per cent of the contributions to it have been earmarked.[29] International agencies need the freedom to allocate about 25 per cent of their funds freely if they are to function effectively.[30] Tight earmarking has also reduced the organization's flexibility, weakening its ability to balance financing between regions, countries and emergencies. Consequently, some refugee crises, mainly in Africa, received far less funding than was available for the crises in Afghanistan, the Balkans and Iraq. The organization has found itself reacting to donor demand instead of assessed needs.[31]

In addition, at the end of the 1990s, UNHCR also started experiencing funding shortages as contributions fell well behind the budgeted needs approved by its Executive Committee.[32] The organization's funding situation had substantially improved by 2004. The agency raised sufficient funding for all its programmes as donors responded positively in 2004 to appeals for flexible, early and prompt funding. In addition, several donors have increased their unrestricted contributions.[33] However, by the end of 2005, UNHCR's financial situation had deteriorated once again.

The IDP challenge

The need for clarity and consistency in UNHCR's response to internally displaced persons has been recognized.[34] On 12 September 2005, the Inter-Agency Standing Committee decided that when responding to situations of internal displacement certain agencies will lead preparedness and response on a global basis in nine sectors. Known as the Collaborative Approach, this is an important marker in a process to improve the overall humanitarian response to internal displacement, by reaching more systematic, predictable and less ad hoc responses.

UNHCR will be the leading agency for protection, camp coordination and management, and emergency shelter. Its role is pivotal because it addresses protection, an important gap in the system. There are, however, limitations on UNHCR's involvement. Its lead role in the three sectors would not apply where internal displacement is caused solely or very substantially by natural disasters or human-made calamities (such as a nuclear accident or any major ecological disaster). In addition, its involvement with internally displaced persons and affected populations will be limited or cease when such involvement poses a serious threat to the safety and security of refugees, its staff and operations.

Having agreed to expand its role to encompass the internally displaced, the organization is at a critical juncture after more than 50 years of existence. The effectiveness of the Collaborative Approach and the role of UNHCR remain to be seen. While UNHCR has extensive experience in dealing with refugee emergencies and providing refugee protection, it has limited experience with crises of internal displacement. In the context of UNHCR's new role within the Collaborative Approach, the organization will have to formulate guidelines on how to operationalize 'protection' in situations of internal displacement and train its staff accordingly. Additionally, the organization needs to develop its camp coordination function and devise operating standards. Furthermore, given that the number of internally displaced persons is substantially higher than that of refugees, UNHCR needs to strengthen and extend its emergency response capacity to meet the additional caseload. The fulfilment of these requirements depends on the availability of substantial funding.

The staff security challenge

Over the past few years the 'humanitarian space' for aid workers has been shrinking. Personnel of humanitarian agencies have increasingly become the target of violent attack. In September 2000, three UNHCR field workers were killed in Atambua, West Timor by rampaging militiamen.[35] To address this issue UNHCR has undertaken a review of its own security policies, and sought to implement measures to enhance staff security. These include security training and the deployment of more security advisors. In 2005, the UN General Assembly established a new Department of Safety and Security for all 400,000 UN staff and dependants.[36] These developments will go some way to safeguard those on whom the effective protection of displaced people depends.

Need for greater responsibility-sharing

An overriding consideration

Notes

25. E. Feller et al. (eds), Refugee Protection in International Law, p. 668.

26. See 'Summary Conclusions: Supervisory Responsibility', ibid., pp. 670-1.

27. Hoi Trinh, 'UNHCR and Accountability: the Non-reviewability of UNHCR Decisions' in A. Bolesta (ed.), Forced Migration and the Contemporary World: Challenges to the International System, Libra, Bialystok, 2003, p. 51.

28. For detailed recommendations see M. Alexander, 'Refugee Status Determination Conducted by UNHCR', International Journal of Refugee Law, vol. 11, no. 2, 1999, pp. 286-7.

29. I. Smillie and L. Minear, The Quality of Money, p. 21.

30. G. Everts, Guide for UNHCR Field Offices, p. 32.

31. Ibid.

32. See UNHCR, Global Report 2003 and Everts, Guide for UNHCR Field Offices, p.7.

33. UNHCR, Global Report 2004, p. 25.

34. V. Mattar and P. White, Consistent and Predictable Responses to IDPs: A review of UNHCR's Decision Making Processes, UNHCR, Evaluation and Policy Analysis Unit, EPAU/2005/2, March 2005, p. 1.

35. UNHCR, Refugees, vol. 2, no. 139, p. 8.

36. Ibid., p. 9.