Progress Report on Informal Consultations on the Provision of International Protection to all Who Need It

EC/48/SC/CRP.32

PROGRESS REPORT ON INFORMAL CONSULTATIONS ON THE PROVISION OF INTERNATIONAL PROTECTION TO ALL WHO NEED IT

I. BACKGROUND

1. At the forty-fifth session of the Executive Committee of the High Commissioner's Programme, the Executive Committee took the position that there are persons, who, although not covered by the application of the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, are nonetheless in need of international protection. This was endorsed by the General Assembly in its resolution 50/152. The Executive Committee encouraged the High Commissioner to continue to promote international cooperation in providing international protection and to engage in consultations and discussions concerning measures, as well as guiding principles, to ensure that such international protection is extended to all who need it. In this regard, there had to be consensus on the measures to be taken, once the content and nature of such protection had been identified, without detracting from the international refugee instruments.

2. UNHCR thus initiated a series of meetings in Geneva, bringing together Government and academic experts for an informal exchange of views on various aspects of this broad subject. To date, five meetings have been held. The first meeting, held on 2 and 3 May 1996, helped to identify key areas in which unresolved issues have had a negative impact on persons in need of international protection. The second meeting, held on 17 and 18 December 1996, focused, in particular, on temporary protection and the scope of protection in cases of large-scale influx. The third meeting, held on 5 and 6 May 1997, advanced the discussion on UNHCR's supervisory role, statelessness and outstanding issues on temporary protection. The fourth meeting, held on 4 and 5 December 1997 discussed burden-sharing and detention of refugees, asylum-seekers and stateless persons. The fifth and last meeting in the series, held on 11 and 12 May 1998 focused on issues relating to internally displaced persons and to capacity-building.

3. A summary of the discussions held at the first meeting is contained in Executive Committee document EC/46/SC/CRP.34 of 28 May 1996 while a summary of the discussions held at the second and third meeting is contained in Executive Committee document EC/47/SC/CRP.27 of 30 May 1997. This Note contains the agreed summary of discussions at the fourth and fifth meetings. The summary synthesizes the issues raised, but does not reflect in detail all views expressed by the participants. It serves as one indication of current thinking on the issues discussed and provides a constructive basis for their further development.

II. SUMMARY OF DISCUSSIONS ON BURDEN-SHARING

4. At the outset of the discussions, the participants acknowledged generally that given the size of the refugee influxes in developing countries, there was a need for proportionate sharing of the burden. It was also stressed that the existence of burden-sharing could not be made a pre-requisite for meeting fundamental protection obligations. The participants then discussed a number of central questions regarding burden-sharing:

(a) Should there be any legal and statutory foundations for the international burden-sharing responsibility?Different views were expressed on the existence of an international legal obligation for burden-sharing. While it was pointed out that the principle of international cooperation in solving international humanitarian problems is provided for in a number of international instruments, including the United Nations Charter and the 1951 Convention Relating to the Status of Refugees, views were also expressed that some additional requirements may be needed to sustain the argument that burden-sharing is a legal obligation. Some participants suggested that it may not be necessary to go into detail on this issue as States have generally endorsed burden-sharing as an element of their shared commitment to international protection. It was emphasised that burden-sharing was a key to ensuring principled responses to influxes of asylum-seekers, particularly mass influxes into developing countries, which satisfy international protection requirements and comply with obligations towards refugees;

(b) Should the practice of burden-sharing in refugee influx situations be systematized or should it remain as an ad hoc response?While a number of participants noted that systematization may bring about equity, efficiency, and predictability to the way the burden-sharing responsibility is accomplished, as well as facilitate compliance with protection principles and ensure better preparedness for refugee influxes, some participants cautioned against systematization as it would represent a significant leap from the current ad hoc responses to mass-influx situations being practised by most States;

(c) If burden-sharing were to be systematized, around what central philosophy should it be built, that is, should an internationally applicable system of burden-sharing be attempted or should a system of burden-sharing be built around a regional or interest-convergence group? While there was broad rejection of purely region-based mechanisms of burden-sharing on the basis that this would be likely to lead to an inequitable sharing of responsibility, there were some suggestions that an international system of burden-sharing could be accomplished at the practical level through some interest convergence groups. It was generally stressed that the existence of any interest convergence groups should not lead States to derogate from their international responsibilities in solving humanitarian crises;

(d) At what point in a developing refugee situation should a system of burden-sharing be activated, and for what types of refugee situations? There was general agreement that the traditional view of burden-sharing responsibility being activated only after departure and in mass-influx situations, was too narrow an approach to burden-sharing responsibility. Views were expressed that any system would have to accommodate joint action and responsibility at all stages, from pre-departure (prevention), through the exodus (protection), and on to an approach for post-departure and search for solutions beyond the emergency phase. In response to the question as to whether there needs to be an indication of the receiving State's difficulties in coping in order to activate any mechanism, a view was expressed that capacity to cope is a relative term, and responsibility sharing should not have to depend on the level of desperation reached in the receiving State;

(e) What should be the component parts of a burden-sharing system?The participants recognized the impact of mass influxes in developing countries with limited resources. The discussions on this issue reflected that the word "burden" has a multi-faceted connotation which goes beyond financial costs and includes demographic aspects, competition for national food resources, medical services, jobs, and housing. In addition, other unquantifiable costs in terms of environmental and ecological damage, destabilizing effects on local populations, were also raised. Another aspect raised was that burden-sharing represents a recognition of the contribution and sacrifices made by receiving States and there was some support for the idea that these sacrifices and contributions needed to get more publicity in developed countries.

III. SUMMARY OF DISCUSSION ON DETENTION OF REFUGEES, ASYLUM-SEEKERS AND STATELESS PERSONS

5. The discussion on this topic revolved around the following questions:

(a) Whether the Executive Committee Conclusion on Detention of Refugees and Asylum-Seekers (A/AC.96/688, para. 128) is an adequate basis for dealing with problems of detention of asylum-seekers?There was consensus that the standards established by that Conclusion were still valid, and the problem lies mainly with their implementation. Nonetheless, it was generally agreed that there have been significant developments in international human rights law relating to detention since then and there are indeed issues which are not covered by that Conclusion;

(b) How do participants assess the UNHCR Guidelines on Detention of Asylum-seekers?While agreeing that the Guidelines were useful, participants agreed that they should be revised and updated in light of developments in international human rights law, in particular focusing on alternatives to detention;

(c) Should UNHCR be involved in issues of the detention of rejected asylum-seekers?In this context, some participants noted that UNHCR should not be operationally involved in the return of rejected cases, but may consider acting as a catalyst or facilitator if asked by States to do so. While there was a view that UNHCR should not have any role in developing standards on detention of rejected asylum-seekers, some other participants felt that this was an appropriate role;

(d) Would it be useful to elaborate alternatives to the detention of asylum-seekers? There was consensus on the need for a better understanding by States of alternatives to detention, and on the need for UNHCR to foster discussion in this area;

(e) Should the detention of stateless persons who are neither asylum-seekers nor refugees be addressed?It was suggested that given the lack of information in this area, UNHCR should develop approaches for the effective resolution of such cases whenever possible.

IV. SUMMARY OF DISCUSSIONS ON INTERNALLY DISPLACED PERSONS

6. The discussion highlighted the following main points:

(a) The Guiding Principles on Internal Displacement provide a practical legal tool for framing actions on behalf of internally displaced persons. The Principles should be widely disseminated by UNHCR and other organizations which are requested to provide protection and assistance to the internally displaced. The Guiding Principles should also be actively incorporated into the operations of all agencies involved with internally displaced persons;

(b) There is a need to operationalize the Guiding Principles, including by clarifying the institutional responsibilities of all concerned agencies. Certain concepts will also benefit from further clarification, including the concept of protection in the context of internal displacement;

(c) Primary responsibility for addressing internal displacement lies with States. The activities of organizations in this field should be geared towards underpinning the efforts of the authorities, and assisting them to understand and accept their primary responsibility for the internally displaced;

(d) Internal displacement issues exceed the capacity of any one agency and call for collaborative approaches among relevant institutions. Such approaches should avoid duplication of efforts and competition among agencies, but emphasize the respective strengths of each. UNHCR and other concerned organizations should fully support the "best practices" initiative of the Inter-Agency Standing Committee (IASC);

(e) There is a need to improve the effectiveness of the IASC/Office of the Coordinator for Humanitarian Affairs as the principal coordination mechanism within the United Nations system;

(f) The Commission on Human Rights (CHR) should continue to play a key role in monitoring respect for and compliance with relevant human rights instruments and with the Guiding Principles. Any further refinement by the CHR of norms relating to internal displacement should proceed in active consultation with concerned agencies such as UNHCR;

(g) Non-governmental organizations, both local and international, have an important role to play in addressing the needs of the internally displaced. UNHCR and other concerned agencies should support these organizations and further their cooperation with them;

(h) Interventions on behalf of the internally displaced should be rights-based. Attention should be paid to the protection needs of the internally displaced, and linkages between protection and assistance activities should be recognized and further developed;

(i) Where the causes of internal displacement include armed or other conflict, the protection needs of the internally displaced need also be addressed within the framework of a conflict-resolution process;

(j) To date, the UNHCR Executive Committee has made a contribution where issues of internal displacement have arisen in connection with specific UNHCR operations;

(k) The commendable role of the Representative of the Secretary-General for Internally Displaced Persons should be recognized, and his mandate should continue to receive support.

V. SUMMARY OF DISCUSSIONS ON INSTITUTION AND CAPACITY-BUILDING

7. The discussions highlighted the following salient points:

(a) Participants recognized that capacity-building has an important role to play, both in countries of origin and host countries, in the prevention and in the resolution of situations generating internal displacement and refugees. It was felt that capacity-building in this context should be directed at:

(i) improving the quality of protection for refugees;

(ii) ensuring the durability of return of refugees and IDP's; and

(iii) reinforcing mechanisms for the protection of human rights in order to avert forced population movements.

However, the specific capacity-building activity will depend on the needs of the country concerned and must be implemented in a manner responsive to local diversities.

(b) Participants acknowledged that capacity-building is essentially the responsibility of States and there is, therefore, the need for a political commitment on the part of Governments to ensure the success of capacity-building activities;

(c) Capacity-building involves activities aimed at developing legislation, as well as governmental and non-governmental structures. There was some consideration of the suggestion that capacity-building be undertaken within the framework of a developmental approach;

(d) UNHCR is mandated, through its Statute, to "promote through special agreements with Governments the execution of any measures calculated to improve the situation of refugees and to reduce the number requiring protection...". It also has a role to reduce statelessness. It was recognized that these two functions included a responsibility for capacity-building activities. Capacity-building in countries of origin should in no way undermine established standards for refugee protection, particularly in relation to the right to seek and enjoy asylum;

(e) Capacity-building includes collaborative efforts in partnership with United Nations Agencies, NGO's, and other Organizations;

(f) Capacity-building is inherently limited by the availability of resources. There is a need for agencies involved in capacity-building to optimize their resources by working together each in the area of its own expertise in a complementary manner. Action should be "results oriented" rather than "mandate oriented".

VI. CONCLUDING OBSERVATIONS

8. There was general satisfaction expressed at the last session with the results of the consultations and agreement that there was utility value in continuing discussion on discreet protection-related issues in such an informal forum. At the same time, encouragement was expressed for as wide a participation base as possible. There was some consideration on how to link the informal discussions with the Executive Committee process. The importance was noted of feeding back to capitals the results of the informal discussions given that there had been some significant progress achieved in advancing discussions on certain of the subjects. It was also recommended that the written papers prepared for the discussions by the independent experts be given a wider distribution.

9. The consultations have been labour and resource intensive for UNHCR which would have to be taken into account in any further continuation of the process. It was also agreed that the issues still requiring discussion and the frequency of future discussions were matters which required some additional consultation.

10. A range of issues have been considered in the course of the five informal consultations to date on measures to ensure international protection to all who need it. The key topics as earlier identified in this area have been covered. The Executive Committee may wish to consider what should be the next steps with this process, including in particular whether, and if so how, the observations and salient points arising out of the various discussions might be taken further forward. UNHCR looks to guidance from the Executive Committee in future action relating to the informal consultations.