United Nations
High Commissioner
for Refugees

A. The "three circles" consultations

1. At the recently concluded 18th meeting of the Standing Committee of UNHCR's Executive Committee, UNHCR proposed that, in the run up to the 50th anniversary of the 1951 Convention relating to the Status of Refugees, UNHCR commence a process of globally based consultations, with senior government representatives, NGOs and other refugee protection experts, to clarify the scope and content of protection in different refugee producing situations, including those not covered by the 1951 Convention. This proposal was supported by the Standing Committee.

2. More specifically, a frame for these consultations was proposed, graphically represented by three concentric circles. The inner circle encompasses the basic, globally agreed framework principles of the 1951 Convention. A primary objective of the consultative process would be the re-affirmation of the enduring importance and relevance of the 1951 Convention, with its principles being the basis on which any new, or additional, approaches to refugee protection would have to be built. Promoting further accessions to the international refugee instruments, as well as ensuring their effective implementation will be part of this objective. In the next circle of issues would be found the interpretative questions regarding the Convention presently awaiting agreement. The consultative process should preferably lead to more uniform understandings, or, at a minimum, an agreed mechanism through which differing interpretations in any one case can be reconciled. In the outer circle are the gaps - that is, the situations the Convention does not adequately, or at all, cover. In addition, this circle would encompass aspects of the international protection system where greater consistency of approaches is called for, or where there are notable tensions, for example between migration concerns and refugee protection. The consultations should have as their third objective charting the course for further development of standards, mechanisms, or approaches in these various areas identified as protection system gaps or failures.

3. This "three circles" process would have as its overarching goal the re-invigoration of the refugee protection framework in its entirety through re-affirmation of its fundaments, clarification of disputed notions, and further development of operating approaches to address modern displacement challenges.

B. Background

4. Forced displacement has been a continuous feature of the international landscape over many years. This being said, there are a number of new elements that have singularly challenged existing instruments and arrangements available to States to structure their responses to displacement situations. The recurring cycles of violence and systematic human rights violations in many parts of the world are generating more and more intractable displacement situations. The changing nature of armed conflict and patterns of displacement, the more and more unfavourable cost/benefit equation of asylum, and serious apprehensions about "uncontrolled" migration in this era of globalization are increasingly part of the environment in which refugee protection has to be realized. Trafficking and human smuggling, abuse of asylum procedures and difficulties in dealing with unsuccessful asylum-seekers are additional, compounding factors. Many traditional receiving countries (and UNHCR as well) increasingly have a sense that they are forced to react to the pressure of these developments, rather than being able to take the initiative to act in the first instance. There is a growing impatience in asylum countries in many parts of the world with the lack of resolution of certain long-standing refugee problems, with urban refugee issues and irregular migration, and with a perceived imbalance in responsibility sharing. This has led, amongst other negative trends, to a level of discrimination in the offering of asylum, turn-arounds of traditionally accepted caseloads, non-acceptance of returning irregular movers, and arbitrary detention as a growing phenomenon. In some countries there has been a growth in an overly restrictive application of refugee protection principles coupled with the erection of obstacles to hinder access to territory. In parallel there has been a proliferation of alternative protection regimes to meet situations inadequately covered, or not at all covered, by the existing instruments.

5. Against this background, in UNHCR's view, a singular challenge facing refugee protection today is the possible fragmentation, or worse the disintegration, of the body of principles on which refugee protection is founded, on which UNHCR's authority to act is built, and which lends for all the necessary surety and predictability of responses to displacement situations. Refugee protection is at a crossroads and, in UNHCR's assessment, it is in the interest of both the refugees and those States who are called upon to protect them that there be some thoughtful innovations introduced into the protection framework so that it can continue to provide the necessary protection guarantees, and in a manner compatible with other legitimate concerns of States. Providing a forum for a multilateral dialogue where issues can be tabled and discussed in all frankness is key to forging better international co-operation and to designing practical responses to the multifaceted displacement issues of the present day. This would certainly contribute to furthering the overall purpose of any multi-lateral co-operative framework, which is protection of refugees through global responsibility sharing in an increasingly interconnected world.

6. UNHCR's approach rests on the understanding that refugee protection is first and foremost about meeting the needs of vulnerable and threatened individuals. The consultations must also, though, be sensitive to the fact that these needs have to be accommodated within a framework of the sometimes competing interests of other parties directly affected by a displacement problem, which include States, host communities, and the international community generally.

C. Methodology

7. Through these consultations, UNHCR hopes to promote with States and other refugee protection partners the principled application of existing refugee instruments, in tandem with new and flexible approaches to refugee protection in the light of changing needs and in response to systemic failures. The process inevitably will be a longer term one, structured to be comprehensive, as appropriate to be standard-setting, and to be responsive to State concerns and operational realities. A particular value of the process stems from the fact that, while in the past various aspects of the broader international protection system were examined in isolation, there has been no attempt hitherto to consolidate all these developments and to look at all issues in a cohesive and comprehensive manner.

8. As presently conceptualized, the consultations will take place over two time periods. In the period from July to October 2000, UNHCR will undertake discussions with a number of government and non-government partners, with a view to setting the substantive agenda for the consultations which will constitute the parameters for the more detailed examination to follow during the second period, from October 2000 throughout the 2001 anniversary year. This examination will be informed by, amongst other things, papers on a range of issues commissioned from government and other experts, by inter-governmental discussions and through compilations of State practice. Discussions will be directed at consolidating the various positions and practices, and at developing concrete recommendations on the way forward.

9. The Convention's anniversary next year offers an important opportunity to take stock of developments to date, to reinforce commitment to the Convention but also to present recommendations on the way forward. It is anticipated that a major event be organized at which the centrality and the global value of the 1951 Convention will be reaffirmed, conclusions arising out of the consultative process to that point would be endorsed and recommendations for the further necessary action will be made. This event should be seen as constituting the end of the beginning of the process to revitalize refugee protection.

D. Some Possible Issues

10. Various issues which have arisen in applying Convention provisions, including differing interpretations about persecution perpetrated by non-State agents, gender-based persecution and elements of the exclusion or cessation provisions, could be discussed in the context of these consultations. Other possible topics are the scope of protection and the modalities of return in mass influx situations, burden-sharing, a range of procedural issues, not least those arising in the context of irregular migration, misuse of procedures, secondary movements and interception practices. The various complementary forms of protection and their compatibility could also be discussed, as could the significance in the global context of important protections in regional instruments.

11. The above is clearly not an exhaustive listing of the issues that would be examined. It is hoped that during the first phase of the consultative process, the list could be appropriately developed. Recipients should also note that a process of this nature inevitably has important resource implications.

E. Conclusion

12. This paper has been prepared for the purpose of stimulating thinking on the direction and timeframes of the consultative process at this very early stage. It is in need of further elaboration, which can now best take place on the basis of thinking and ideas contributed by States and other major concerned actors. This thinking and these ideas are hereby invited and should be channelled to the Department of International Protection.

Department of International Protection
UNHCR Geneva
August 2000

Comments can be sent to the ICVA Secretariat, which will forward them to the Department of International Protection.