James Thomson Director of Policy and Advocacy

1. Introduction to UNHCR’s Decision-Making and Consultative ProcessesUNHCR’s Annual Consultations with NGO’s, Executive Committee, Standing Committee, the High Commissioner’s Dialogue and the Annual Tripartite Consultations on Resettlement James Thomson Director of Policy and Advocacy Act for Peace: the international humanitarian and development agency of the National Council of Churches in Australia Asia Pacific Consultation on Refugee Rights, Kuala Lumpur, Malaysia, 19-21 November 2008

2. What is UNHCR? • 262 offices in 116 countries • 7,000 staff - 80 % are field based • 1 staff for every 3,300 people of concern • UNHCR’s 2008 programmes amount to USD 1.8 billion - 25% goes to 550 NGO implementing partners • UNHCR depends on voluntary contributions from member states • 94% of UNHCR’s Budget comes directly from states (around 10 donors contribute the majority)

3. Who is the High Commissioner? • The current High Commissioner is Mr. Antonio Guterres, former Prime Minister of Portugal • Nominated by the S-G & elected (by acclamation) by the UN General Assembly for a 5-year term (2005-10) • Follows policy directives by UNGA or ECOSOC (ExCom does not substitute for these functions, but has its own executive and advisory functions) • His “Programme” is under the authority of UNGA

4. UNHCR’s MandateUN General Assembly Resolution 428 (14 December 1950) • By its statute, the Office of the High Commissioner (UNHCR) is entrusted to: • provide international protection to refugees; • seek durable solutions for ”the problem of refugees by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities”; • promote and supervise the applications of international conventions; • administer and distribute funds to agencies assisting refugees. • UNHCR’s work is humanitarian and non-political.

5. UNHCR MandateAdditional to Original UNGA Resolution • Duty of supervising the application of provisions of the 1951 Refugee Convention/1967 Protocol (Article 35 of Refugee Convention) • Responsibility for persons who fall under the 1961 Convention on the Reduction of Statelessness pursuant to UNGA Resolutions • IDPs pursuant to UNGA Resolutions

6. ExCom’s Predecessors • 1951-58 Advisory Committee on Refugees • 15 Members (mostly European, inc. Aust) • “demonstrated interest in … the solution of the problems of refugees” • 1955-58 UN Refugee Fund Executive Committee • 6 Members added

7. History of ExCom • 1958 - ExCom established • at request of General Assembly (Res. 1168 (XII)) • by ECOSOC • with same 21 Members and an additional 4 Member • then expanding until 76 Members as of 2008 • functions as subsidiary body of UNGA (its documentation is issued in a UNGA series and its annual report is submitted directly to UNGA) • 1988 – Observers (e.g. NGOs) allowed • 1995 – Sub-Committee on Int’l Protection and Administration/Finance merged to create a Standing Committee, which meets quarterly.

8. Membership CriteriaSet out in UNGA and ECOSOC Resolutions • Signing or ratifying the 1951 Convention & its 1967 Protocol is not a requirement for ExCom membership • What is? • Membership of the UN or UN Specialised Agency • Demonstrated interest in solving refugee problems • Widest possible geographical representation

9. How to become a Member • 1 – Apply in writing to S-G • 2 – S-G passes to ECOSOC • 3 – ECOSOC asks UNGA to enlarge number of ExCom Members • 4 – UNGA increases number and asks ECOSOC to elect new Members • 5 – ECOSOC elects State • No state has ever had their membership revoked!

10. Bureau of the Executive Committee • The ExCom Bureau has three office holders: • Chairman, • Vice-Chairman • Rapporteur. • The Bureau is elected at the end of ExCom’s annual plenary session in October. • By tradition, the chair is held in alternating years by donor and non-donor representatives. • It is customary for the Vice-Chairman to be elected Chairman the following year (started mid-1980s).

11. Annual Cycle of Meetings • ExCom is not a one-off event where states make decisions. It is part of a year-round cycle of meetings! • Feb/March Standing Committee (programme) • June Standing Committee (protection) • Sept Standing Committee (financial) • Oct ExCom Plenary Session (annual) • Dec Planning Meeting

12. Annual Report Flow Chart • July – ECOSOC takes note of High Commissioner’s Annual Report • November - General Assembly (Third Committee) examines High Commissioner’s Annual Report and the ExCom Report and prepares GA resolutions on the work of the Office; (Fifth Committee examines financial reports and proposes resolution) • December – General Assembly (plenary) adopts resolutions with regard to work of the Office

13. ExCom’s Mandate • Advise the High Commissioner – at his request - in exercise of his/her functions • Review use of funds and programmes • Approve funds for coming year and projects for assistance to refugees

14. ExCom’s Four Functions • Governance • Advisory • Normative • Exchange of Information

15. ExCom’s Annual Session • Reviews the work of the Standing Committee and establishes its programme of work for the next year (SC reports are received at ExCom) • Examines UNHCR’s financial requirements for the coming year and approves the annual programme budget target • Adopts conclusions, notably on international protection, as well as decisions on a range of administrative, financial and procedural issues

16. Standing Committee • Examines thematic issues • Reviews activities and programmes • Adopts decisions and conclusions (delegated power from ExCom) • Discusses other issues of concern • Reports to the annual ExCom Plenary, where its work is reviewed and its work program is set.

17. Significance of ExCom Conclusions • Agreed by a consensus of all ExCom members through a multi-lateral drafting procedure – rather than by vote! - hence their status as an important ‘body of international opinion’ • Not binding on states, but considered ‘soft law’, minimum standards and international norms • Expression of consensus on legal matters concerning refugees not foreseen by the 1951 Convention/1967 Protocol • Fill gaps in the international refugee law regime not foreseen by the 1951 Convention or 1967 Protocol • Used by judges, lawyers, states, NGOs and other actors to back up their arguments related to state obligations • Note: if Conclusions are water-down to the lowest common denominator during the multilateral drafting process they are often shelved rather than risking undermining existing standards.

18. What Rules Apply to ExCom? • The rules are laid down in the Committee's Rules of Procedure.  The items they cover range from the election of officers to documentation and languages.  Sessions are open to the public.  At the opening of each session, the Executive Committee elects its Chairman, Vice-Chairman and Rapporteur for the next year.  The Vice-Chairman this year becomes the Chairman next year, according to a tradition which began in the early 80s.   • There are no formal votes.  Decisions are reached by consensus.  In cases where there are strong discussions, delegations may request that their views be reflected in the summary records of the sessions.   • The process of decision by consensus is also the one used by the Third Committee of the General Assembly (the one concerned with humanitarian affairs) in New York, when it adopts the High Commissioner's report.   • The reason behind this tradition has to do with the humanitarian and non-political character of the Office.  It makes it possible to agree on humanitarian issues where there are political overtones, whereas a formal vote could create divisions.

19. ExCom: What it is not! • ExCom is not a treaty monitoring body. There are no individual complaints procedures and ExCom has no enforcement mechanism. The 1951 Refugee Convention does make provisions for supervision but this has never been enacted. • Nor is it like the UN Human Rights Council. There is no ‘peer review’ mechanism and states and NGOs do not denounce or name and shame member states. • It composed of UN member states, some of which have signed the Convention and others who have not.

20. Key Features of ExCom • ExCom is a consensus-based body. This is an imperative to ensure against political polarisation in decision making. • ExCom has never voted on a Conclusion – all have been adopted by consensus! • States do not have to be signatories to the Refugee Convention and no state has ever had their membership revoked or challenged! • By convention, states are not named and shamed (although it does happen).

21. Why such a collaborative and inclusive approach? • Relies on state recognition of the non-political nature of asylum. • International refugee protection regime relies on ‘responsibility-sharing’. • UNHCR must work with states to assist them meet their protection obligations toward refugees, IDPs and stateless people. • UNHCR relies on voluntary state contributions

22. Implications of Collaborative & Inclusive Approach • Most UNHCR decision-making and consultative processes rely on developing consensus! • States are not coerced through rewards and punishments (carrot and stick) but persuaded through 1) framing (appealing to state interests and using arguments that resonate with states); 2) Cuing (using good facts and research to discredit counter arguments); 3) Acculturation

23. Examples • HC selecting focus issues to built consensus • ‘Back-patting’ reinforces good state behavior • The Conclusions on Women and Girls at Risk and Children at Risk – would have been morally repugnant to criticise so it was passed, but the problem will be implementation.

24. The Role of NGOs • NGO ‘observers’ are permitted to attend ExCom’s Annual Plenary and Standing Committee meetings, but not the Informal Consultations on decisions and Conclusions (separate consultative arrangements are in place). NGOs have, however, initiated Conclusions. • NGOs are permitted to make one Statement per agenda item. • The Rapporteur of UNHCR’s Annual Consultations with NGOs is permitted to present a written and verbal report to the ExCom Plenary in October each year. • NGO-organised ExCom Side-Meetings (e.g. Convention Supervision). • NGO Representatives on ExCom State Delegations. • Informal meetings with states in capitals or the coffee lounge.

25. UNHCR’s Annual Consultations with NGOs • Has been running since the early 1980s, but has evolved significantly. • Started as a half-day UNHCR-NGO meeting to strategise before ExCom – indeed, it is still referred to as ‘Pre-ExCom’ for this reason. • Now runs over three days with simultaneous sessions on a wide variety of subjects of interest to NGOs and UNHCR. • In 2008, over 350 representatives from 206 different organisations attended, including 93 representatives of national NGOs.

26. Annual Consultations Cont. • No longer just a UNHCR-NGO dialogue. It has become the major international meeting point for community-based refugee organizations, UNHCR’s operational partners, human rights and humanitarian agencies and other NGOs. • Provides a forum to exchange views with UNHCR, network, gather and share information, hear about new policies and best practice, discuss protection gaps and identify joint solutions. • Composed of Plenary, Regional and Thematic Sessions with a series of side meetings run by NGOs. • Recognised by ExCom who permits a report from the Rapporteur to be delivered at its annual October Plenary Session.

27. Other Consultative and Decision-Making Processes • Annual Tripartite Consultations on Resettlement • High Commissioner’s Dialogue (asylum-migration, protracted refugee situations, urban refugees). • UNHCR’s Global Consultations on Int’l Protection with NGOs (accountability, IDP Cluster Approach and urban refugees). • UNHCR’s Internal Field Reference Group – NGOs are hoping to be included

28. NGO Guide to Participation • Despite the importance of these meetings, very little information has been available to help NGOs participate and advocate more effectively. This lack of information and advice has made it particularly difficult for new participants and smaller, or less-well funded, national or indigenous NGOs without a Geneva office. • Indeed, first-time attendees often end up spending much of their time working out how to get involved, rather than actually taking advantage of the opportunities available. Hence the comment: “I was just finding my feet when it was time to leave”. • This guide aims to provide information and advice to help NGOs participate in the Annual Consultations and ExCom and hence strengthen the partnership between NGOs and UNHCR in providing protection and assistance to persons of concern. • You can use the Guide either as a straightforward guide to participation and advocacy with UNHCR, or you can use it as a basis for developing a better understanding of UNHCR decision-making and consultative processes. • The Guide was funded by UNHCR and produced by James Thomson and Eileen Pittaway with the support of UNHCR’s IAU and ICVA. • ww.ncca.org.au/actforpeace/protect_refugees/issues/guide_to_participation