- Australia
Niamh Kinchin
University of Wollongong, Faculty of Business and Law, Faculty Member
- Administrative Law, Public Law, Global Administrative Law, Global Justice, Constitutional Law, Constitutionalism, and 9 moreTheories of Justice, Humanitarian Intervention, Humanitarianism, Humanitarian Assistance and Disaster Relief, Administrative Justice, Judicial review, Human Rights Law, Human Rights, and Comparative Public Lawedit
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The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and... more
The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and decision-makers that occupy the \u27global space\u27, a context central to global governance yet beset with accountability challenges. If feasible solutions to an accountability deficit in the global space are to be realised, the importance of contextually responsive accountability must be recognised. And if accountability is to be contextually responsive, the pluralism inherent in the global space must be acknowledged, \u27Acknowledging pluralism\u27 means appreciating that the unique relationships of a global actor are the basis for its accountability obligations, not preconceptions of what it - and every other global body - should be accountable for. UNHCR is a subsidiary organ of the UN, yet it retains significant functional autonomy. It has a traditional protection role, which has gradually shifted to one of increased humanitarian intervention and \u27pragmatism\u27 (Loescher 2001). Its\u27 supervisory mandate has been compromised by State self-interest, increasingly restrictive asylum policies and States\u27 position as voluntary contributors to UNHCR\u27s funding. Although refugees and beneficiaries remain of crucial importance to any accountability discussion involving UNHCR, each of these characteristics impacts UNHCR\u27s relationships in a way that produces accountability obligations that are unique to it. When accountability is perceived through the lens of pluralism, UNHCR\u27s discrete accountability obligations can be identified, and the way those obligations intersect and potentially conflict with each other understood. Without such insight into the complexity of UNHCR, accountability solutions risk becoming aspirational tools that \u27say the right thing\u27 yet remain ineffectual because of their failure to understand and respond to their subject appropriately
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The General rules of interpretation in the Vienna Convention on the Law of Treaties (vclt) do not only apply to treaties; they also apply to the constitutions of International Organizations (io). A holistic approach to treaty... more
The General rules of interpretation in the Vienna Convention on the Law of Treaties (vclt) do not only apply to treaties; they also apply to the constitutions of International Organizations (io). A holistic approach to treaty interpretation that combines a textual application of the vclt with a teleological approach to the constitution’s “object and purpose” responds to the need to consider it as a living instrument. However, traditional treaty interpretation is less able to respond to an io’s need to behave as an organization with values and responsibilities that reflect contemporary expectations of accountability. Such challenges could be addressed through the adoption of an extended teleological approach, being the extension of the doctrine of implied powers to implied obligations. The application of implied obligations to the ‘responsibility to protect’ transforms it from a norm to binding legal duty and in doing so, addresses accountability gaps in international governance.
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The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in... more
The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in the domestic context, as well as for global accountability. An example of a contested area of global accountability is the lack of independent review available for United Nations High Commissioner’s (UNHCR) refugee status determination (RSD) procedures. Using Australia’s own RSD as a case study, this paper will argue that Australia’s refugee policies have implicitly contributed to an acceptance of UNHCR’s comparatively limited RSD procedural standards as a valid part of the international refugee system. In particular, the way that Australian policy has contributed to the significant workload of UNHCR and has helped to concretise UNHCR’s RSD standards as ‘best practice’ in certain circumstances must be of concern. A material cause of UNHCR’s lack of accountability in its own RSD procedures is States’ tendency to prioritise self-interest over international obligations. Accordingly, any ‘solution’ that addresses UNHCR’s lack of accountability must be done so on both a global and domestic level. For Australia, acknowledging the negative impacts of its refugee policies on its legal, political and fiscal accountability may just provide an impetus for the rejection of its subversion of traditional administrative decision-making in a way that denies access to administrative justice to a select few. In turn, such an acknowledgment could contribute to the development of better procedural safeguards for RSD at the global level.
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ABSTRACT The Global Compact for Refugees describes UNHCR as its ‘supportive and catalytic’ leader. The ability for UNHCR to negotiate and collaborate within a highly political environment is critical to the Refugee Compact’s ongoing... more
ABSTRACT The Global Compact for Refugees describes UNHCR as its ‘supportive and catalytic’ leader. The ability for UNHCR to negotiate and collaborate within a highly political environment is critical to the Refugee Compact’s ongoing success. However, the Refugee Compact is non-binding, which means that there is no call for UNHCR to exercise its supervisory mandate. By removing the impetus for enforcement, which includes submissions to courts and parliaments, and State admonishment, the Refugee Compact diminishes the non-political elements of UNHCR’s work. The consequence of sidelining UNHCR’s supervisory mandate is that State interests are elevated above those of refugees, which risks diluting principles of international law and human rights. Entrenched problems of voluntary funding are ignored, and whilst robust conversations may flourish within this forum, realizable outcomes will be undermined by ‘endless conversations’ and positive optics. UNHCR’s moral authority, which stems from its embodiment of the protector of refugees, will not act as a motivation for State action. A reconsideration of UNHCR’s role is required in order to allow UNHCR to refocus on its supervisory mandate and to ensure the Refugee Compact can strike a balance between being “entirely non-political in nature” and the reality of international cooperation, which is inherently political.
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The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from... more
The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from an administrative decision may not accommodate the philosophy, logistics and procedures of mediation. The power dichotomy of the disputants, inflexible decisions within institutionalised contexts and public policy concerns all work together to present mediators with challenging environment for open and earnest negotiation. Consideration of the appropriateness of mediation within this forum must take into account both the context (the objectives of the court or tribunal, the potential for bias, and whether mediation is mandatory) and the content (the power differences of the parties, the appropriateness of confidentiality and the ability to monitor ‘fairness’) of the decision being reviewed. Only then can the objectives of mediation and administrative merits review be accommodated.
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Beyond the boundaries of sovereignty and international law exists a space where global administration transcends traditional treaty-based diplomacy and multilateral cooperation. Diverse actors, collectively known as global decision-making... more
Beyond the boundaries of sovereignty and international law exists a space where global administration transcends traditional treaty-based diplomacy and multilateral cooperation. Diverse actors, collectively known as global decision-making bodies, carry out the decision-making and regulation in this ‘global space’. Largely unshackled from international diplomacy, these bodies possess the ability to engage in standard setting and decision-making in a dynamic, flexible way. Yet global decision-making bodies make decisions that affect the rights and obligations of States, intergovernmental bodies and private actors without the accountability oversight inherent in comparable domestic decision-making. In this thesis the case for a plural approach to accountability in the global space is presented. A plural approach to accountability means identifying what a global decision-making body is accountable for by reference to its unique relationships rather than by reference to external percepti...
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The drive for innovation, efficiency, and cost-effectiveness has seen governments increasingly turn to artificial intelligence (AI) to enhance their operations. The significant growth in the use of AI mechanisms in the areas of migration... more
The drive for innovation, efficiency, and cost-effectiveness has seen governments increasingly turn to artificial intelligence (AI) to enhance their operations. The significant growth in the use of AI mechanisms in the areas of migration and border control makes the potential for its application to the process of refugee status determination (RSD), which is burdened by delay and heavy caseloads, a very real possibility. AI may have a role to play in supporting decision makers to assess the credibility of asylum seekers, as long as it is understood as a component of the humanitarian context. This article argues that AI will only benefit refugees if it does not replicate the problems of the current system. Credibility assessments, a central element of RSD, are flawed because the bipartite standard of a ‘well-founded fear of being persecuted’ involves consideration of a claimant’s subjective fearfulness and the objective validation of that fear. Subjective fear imposes an additional bu...
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The General rules of interpretation in the Vienna Convention on the Law of Treaties (vclt) do not only apply to treaties; they also apply to the constitutions of International Organizations (io). A holistic approach to treaty... more
The General rules of interpretation in the Vienna Convention on the Law of Treaties (vclt) do not only apply to treaties; they also apply to the constitutions of International Organizations (io). A holistic approach to treaty interpretation that combines a textual application of the vclt with a teleological approach to the constitution’s “object and purpose” responds to the need to consider it as a living instrument. However, traditional treaty interpretation is less able to respond to an io’s need to behave as an organization with values and responsibilities that reflect contemporary expectations of accountability. Such challenges could be addressed through the adoption of an extended teleological approach, being the extension of the doctrine of implied powers to implied obligations. The application of implied obligations to the ‘responsibility to protect’ transforms it from a norm to binding legal duty and in doing so, addresses accountability gaps in international governance.
Research Interests:
The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and... more
The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and decision-makers that occupy the \u27global space\u27, a context central to global governance yet beset with accountability challenges. If feasible solutions to an accountability deficit in the global space are to be realised, the importance of contextually responsive accountability must be recognised. And if accountability is to be contextually responsive, the pluralism inherent in the global space must be acknowledged, \u27Acknowledging pluralism\u27 means appreciating that the unique relationships of a global actor are the basis for its accountability obligations, not preconceptions of what it - and every other global body - should be accountable for. UNHCR is a subsidiary organ of the UN, yet it retains significant functional autonomy. It has a traditional protection role, which has gradually shifted to one of increased humanitarian intervention and \u27pragmatism\u27 (Loescher 2001). Its\u27 supervisory mandate has been compromised by State self-interest, increasingly restrictive asylum policies and States\u27 position as voluntary contributors to UNHCR\u27s funding. Although refugees and beneficiaries remain of crucial importance to any accountability discussion involving UNHCR, each of these characteristics impacts UNHCR\u27s relationships in a way that produces accountability obligations that are unique to it. When accountability is perceived through the lens of pluralism, UNHCR\u27s discrete accountability obligations can be identified, and the way those obligations intersect and potentially conflict with each other understood. Without such insight into the complexity of UNHCR, accountability solutions risk becoming aspirational tools that \u27say the right thing\u27 yet remain ineffectual because of their failure to understand and respond to their subject appropriately
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The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from... more
The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from an administrative decision may not accommodate the philosophy, logistics and procedures of mediation. The power dichotomy of the disputants, inflexible decisions within institutionalised contexts and public policy concerns all work together to present mediators with challenging environment for open and earnest negotiation. Consideration of the appropriateness of mediation within this forum must take into account both the context (the objectives of the court or tribunal, the potential for bias, and whether mediation is mandatory) and the content (the power differences of the parties, the appropriateness of confidentiality and the ability to monitor ‘fairness’) of the decision being reviewed. Only then can the objectives of mediation and administrative...
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The Global Compact for Refugees describes UNHCR as its ‘supportive and catalytic’ leader. The ability for UNHCR to negotiate and collaborate within a highly political environment is critical to the Refugee Compact’s ongoing success.... more
The Global Compact for Refugees describes UNHCR as its ‘supportive and catalytic’ leader. The ability for UNHCR to negotiate and collaborate within a highly political environment is critical to the Refugee Compact’s ongoing success. However, the Refugee Compact is non-binding, which means that there is no call for UNHCR to exercise its supervisory mandate. By removing the impetus for enforcement, which includes submissions to courts and parliaments, and State admonishment, the Refugee Compact diminishes the non-political elements of UNHCR’s work. The consequence of sidelining UNHCR’s supervisory mandate is that State interests are elevated above those of refugees, which risks diluting principles of international law and human rights. Entrenched problems of voluntary funding are ignored, and whilst robust conversations may flourish within this forum, realizable outcomes will be undermined by ‘endless conversations’ and positive optics. UNHCR’s moral authority, which stems from its em...
Research Interests:
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The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in... more
The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in the domestic context, as well as for global accountability. An example of a contested area of global accountability is the lack of independent review available for United Nations High Commissioner’s (UNHCR) refugee status determination (RSD) procedures. Using Australia’s own RSD as a case study, this paper will argue that Australia’s refugee policies have implicitly contributed to an acceptance of UNHCR’s comparatively limited RSD procedural standards as a valid part of the international refugee system. In particular, the way that Australian policy has contributed to the significant workload of UNHCR and has helped to concretise UNHCR’s RSD standards as ‘best practice’ in certain circumstances must be of concern. A material cause of UNHCR’s lack of accountability in its own RSD procedures is States’ tendency to prioritise self-interest over international obligations. Accordingly, any ‘solution’ that addresses UNHCR’s lack of accountability must be done so on both a global and domestic level. For Australia, acknowledging the negative impacts of its refugee policies on its legal, political and fiscal accountability may just provide an impetus for the rejection of its subversion of traditional administrative decision-making in a way that denies access to administrative justice to a select few. In turn, such an acknowledgment could contribute to the development of better procedural safeguards for RSD at the global level.
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Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the... more
Human vulnerability is at the core of refugee status determination and human rights provides its regulatory frame, so to speak of artificial intelligence within the refugee context may seem troubling at least, dystopian at worst. But the rapid development of artificial intelligence in government decision-making will unlikely be slowed by such ethical quandaries. The potential integration of automation, machine learning and algorithmic decision-making into global migration regulation and policy has far-reaching implications for refugee law. The consequences for efficiency, legality, accountability, transparency and human rights warrant a timely and critical conversation about the possible impact of existing and future technologies on refugee status determination. Predictive analytics, biometrics, automated credibility assessments and algorithmic decision-making are technologies that could have utility for refugee status determination processing, credibility assessments and decision-m...
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This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their... more
This article looks at the recent Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020, which was in force in New South Wales from 31 March 2020 to 14 May 2020. The order allowed police to fine people who left their houses without a ‘reasonable excuse’. This article considers the confusion around the order in the community and upper levels of the government. Publicly available information about the fines issued by the police is analysed and it is argued that an overly narrow application of the order by police meant that its application was not reasonably proportionate to the authorising legislation, the Public Health Act 2010 (NSW). It is concluded that if future lockdowns are required, care will need to be taken to ensure that Ministerial orders are crafted in line with the legislation and that police officers clearly understand their operation.
Research Interests: Law and Federal law
Administrative law presents distinct pedagogical challenges for its teachers. Despite its potential rich subject matter and its ability to underpin and intersect with other areas of law, a lack of perceptible cohesion and a disconnect... more
Administrative law presents distinct pedagogical challenges for its teachers. Despite its potential rich subject matter and its ability to underpin and intersect with other areas of law, a lack of perceptible cohesion and a disconnect with the ‘real world’ continues to vex students and teachers of administrative law alike. Might assessable mooting help students of administrative law understand how an administrative law matter proceeds through the levels of review and at the same time, create that elusive connection between theory and practice? This paper, which reports upon on a three-year pilot of an assessable moot that was introduced into administrative law at the University of Wollongong in 2016, evaluates and considers the pedagogical and administrative challenges and successes of moots in promoting a skills-based, student-centred learning experience that encourages the development of advocacy skills and substantive knowledge. Although challenges and opportunities for development became apparent throughout the pilot, there was little doubt that assessable moots can introduce students to a dynamic, engaging way to study and importantly, understand, administrative law in a cohesive way that connects what is learnt from the page and lectures to what happens in professional practice.
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The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in... more
The negative consequences for domestic accountability of a State that fails to respect its international law obligations or undermines international institutions has the potential to be a powerful stimulus for administrative justice in the domestic context, as well as for global accountability. An example of a contested area of global accountability is the lack of independent review available for United Nations High Commissioner’s (UNHCR) refugee status determination (RSD) procedures. Using Australia’s own RSD as a case study, this paper will argue that Australia’s refugee policies have implicitly contributed to an acceptance of UNHCR’s comparatively limited RSD procedural standards as a valid part of the international refugee system. In particular, the way that Australian policy has contributed to the significant workload of UNHCR and has helped to concretise UNHCR’s RSD standards as ‘best practice’ in certain circumstances must be of concern. A material cause of UNHCR’s lack of accountability in its own RSD procedures is States’ tendency to prioritise self-interest over international obligations. Accordingly, any ‘solution’ that addresses UNHCR’s lack of accountability must be done so on both a global and domestic level. For Australia, acknowledging the negative impacts of its refugee policies on its legal, political and fiscal accountability may just provide an impetus for the rejection of its subversion of traditional administrative decision-making in a way that denies access to administrative justice to a select few. In turn, such an acknowledgment could contribute to the development of better procedural safeguards for RSD at the global level.
Amongst the discourse surrounding the potential for non-State actors to hold human rights obligations are complex questions around what those rights entail, where they derive from and in what circumstances they apply. In an attempt to add... more
Amongst the discourse surrounding the potential for non-State actors to hold human rights obligations are complex questions around what those rights entail, where they derive from and in what circumstances they apply. In an attempt to add clarity to that discussion, this article identifies the implied powers of the United Nations High Commissioner for Refugees (UNCHR) as a potential catalyst for the creation of its human rights obligations. As a subsidiary body of the UN, UNHCR is imbued with the capacity to hold human rights obligations through attribution and derivative international legal personality, as well as via its status as an organisation to which the ‘general rules of international law’ apply. UNHCR has implied powers to administer refugee camps and conduct Refugee Status Determination (RSD). It is argued that when the ‘quasi-sovereign’ character of camp administration is considered in light of the particular vulnerability of refugees’ human rights, their protection cannot be separated from camp administration or from the camp administrator itself, meaning that UNHCR has an obligation to respect, protect and fulfil the human rights of the inhabitants of the camps it administers. It is also argued that the unambiguous obligation for all parties that undertake RSD to respect non-refoulement, which is a human rights principle that is considered the ‘cornerstone’ of international protection, creates a concurrent obligation to ensure that RSD procedures are ‘fair, efficient and effective’. Although the identification of rights obligations of non-State actors inevitably faces challenges from the lack of available remedies for individuals who seek liability for human rights breaches, as long as UNHCR undertakes activities that places it in direct contact with individuals, it is imperative that it retains limited human rights obligations that exist alongside of, and not in substitution for, those of States.
Research Interests:
The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from... more
The benefits of mediation within the litigious realm have long been established. But what happens when the dispute falls within the forum of administrative merits review? The unique characteristics of a dispute created by an appeal from an administrative decision may not accommodate the philosophy, logistics and procedures of mediation. The power dichotomy of the disputants, inflexible decisions within institutionalised contexts and public policy concerns all work together to present mediators with challenging environment for open and earnest negotiation. Consideration of the appropriateness of mediation within this forum must take into account both the context (the objectives of the court or tribunal, the potential for bias, and whether mediation is mandatory) and the content (the power differences of the parties, the appropriateness of confidentiality and the ability to monitor ‘fairness’) of the decision being reviewed. Only then can the objectives of mediation and administrative merits review be accommodated.
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This article argues that the essential factors of a public service code of ethics can be divided into five categories. These categories or principles are fairness, transparency, responsibility, efficiency and conflict of interest. These... more
This article argues that the essential factors of a public service code of ethics can be divided into five categories. These categories or principles are fairness, transparency, responsibility, efficiency and conflict of interest. These principles are identified in this article as being the basic elements of democratic accountability in relation to public sector decision-making. The issues explored are not only the obstacles that the public service decision-maker faces in internalising these principles but, also, the challenges for a pro-active management in fostering such internalisation.
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This is a chapter in the recently published book - Kristin Bergtora Sandvik and Katja Lindskov Jacobsen (eds) UNCHR and the Struggle for Accountability Technology, Law & Results-Based Management (2016, Rutledge) The United Nations High... more
This is a chapter in the recently published book - Kristin Bergtora Sandvik and Katja Lindskov Jacobsen (eds) UNCHR and the Struggle for Accountability Technology, Law & Results-Based Management (2016, Rutledge)
The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and decision-makers that occupy the ‘global space’, a context central to global governance yet beset with accountability challenges. If feasible solutions to an accountability deficit in the global space are to be realised, the importance of contextually responsive accountability must be recognised. And if accountability is to be contextually responsive, the pluralism inherent in the global space must be acknowledged, ‘Acknowledging pluralism’ means appreciating that the unique relationships of a global actor are the basis for its accountability obligations, not preconceptions of what it - and every other global body - should be accountable for. UNHCR is a subsidiary organ of the UN, yet it retains significant functional autonomy. It has a traditional protection role, which has gradually shifted to one of increased humanitarian intervention and ‘pragmatism’ (Loescher 2001). Its’ supervisory mandate has been compromised by State self-interest, increasingly restrictive asylum policies and States’ position as voluntary contributors to UNHCR’s funding. Although refugees and beneficiaries remain of crucial importance to any accountability discussion involving UNHCR, each of these characteristics impacts UNHCR’s relationships in a way that produces accountability obligations that are unique to it. When accountability is perceived through the lens of pluralism, UNHCR’s discrete accountability obligations can be identified, and the way those obligations intersect and potentially conflict with each other understood. Without such insight into the complexity of UNHCR, accountability solutions risk becoming aspirational tools that ‘say the right thing’ yet remain ineffectual because of their failure to understand and respond to their subject appropriately.
The United Nations High Commissioner for Refugees (UNHCR) is an organisation that is distinctive, multifaceted and quite unlike any other body within or outside of the UN system. It is also one of a diverse number of actors and decision-makers that occupy the ‘global space’, a context central to global governance yet beset with accountability challenges. If feasible solutions to an accountability deficit in the global space are to be realised, the importance of contextually responsive accountability must be recognised. And if accountability is to be contextually responsive, the pluralism inherent in the global space must be acknowledged, ‘Acknowledging pluralism’ means appreciating that the unique relationships of a global actor are the basis for its accountability obligations, not preconceptions of what it - and every other global body - should be accountable for. UNHCR is a subsidiary organ of the UN, yet it retains significant functional autonomy. It has a traditional protection role, which has gradually shifted to one of increased humanitarian intervention and ‘pragmatism’ (Loescher 2001). Its’ supervisory mandate has been compromised by State self-interest, increasingly restrictive asylum policies and States’ position as voluntary contributors to UNHCR’s funding. Although refugees and beneficiaries remain of crucial importance to any accountability discussion involving UNHCR, each of these characteristics impacts UNHCR’s relationships in a way that produces accountability obligations that are unique to it. When accountability is perceived through the lens of pluralism, UNHCR’s discrete accountability obligations can be identified, and the way those obligations intersect and potentially conflict with each other understood. Without such insight into the complexity of UNHCR, accountability solutions risk becoming aspirational tools that ‘say the right thing’ yet remain ineffectual because of their failure to understand and respond to their subject appropriately.