London, 22 September 2000

Ms Erika Feller

Director

Department of International Protection

Office of the UN High Commissioner for Refugees

94 rue de Montbrillant

CH-1201, Geneva

Switzerland.

dear Erika

You have invited comments on the UNHCR consultation process on identifying gaps in international protection and, specifically, on your "Three Circles Concept Paper" of August 2000. Our Simon Russell has informally told you of our belief that the consultations are a good idea at the 18^th Standing Committee meeting and at lunch before the Carnegie Endowment/DIP meeting in July. I understand that he also told you that we are not entirely comfortable with the concept paper and of our expectation that NGOs will not have to fight to be involved in the consultations.

I am really pleased to note that you have taken on board our views about the place of NGOs in the consultations. Unsurprisingly, we believe that NGOs have much to contribute in identifying protection gaps. As PARinAC Focal Point for Europe, we also believe that we have already done a lot of work in advocating for good policy and practice in our region. I would like to take this chance to re-iterate that ECRE stands ready to support the consultation process and to advocate for a positive outcome.

I have to repeat, however, that we remain unconvinced that the concept for the consultations is the right one. Our fear about the concept paper is that the formulation of a second circle of interpretation puts too many fundamental principles on the table for consultation, which would erode rather than strengthen the Refugee Convention.  The paper explicitly includes in the second concentric circle as "interpretative issues" several areas on which NGOs have lobbied for favourable practice over many years. For example, these "interpretative issues" include "non-state agents of persecution", a matter that ECRE thought UNHCR considered a core principle (e.g. as in paragraph 65 of the Handbook).  We are deeply concerned that just at a time when we think we are making progress in those countries which continue to insist on the state accountability theory that UNHCR opens up its position for negotiation. At the regional level, we can see that states —such as the United Kingdom- would jump at the chance to level down their interpretations to be more restrictive. In the context of the EU harmonisation of asylum policy, this would be a disaster for refugee law.

As Simon has informally told you, we believe that in what is a highly-political arena, the first and second circles should be conflated, making the "interpretative issues" rather non-negotiable matters of principle. That is not to say that questions such as "membership of a particular social group" are not open to interpretation, they manifestly are, but that these consultations do not provide the disinterested forum necessary to advance protection principles. The risk is that you may not achieve your aim - to expand rather than contract the protection regime.

We would, therefore, endorse an approach suggested by our US colleagues:  to make the outermost circle the focal point of the consultations.  The key question would then be how could the protection regime be extended beyond the Refugee Convention?  We agree with our US colleagues that framing the consultation process in this way means that UNHCR would less likely find itself on the defensive, but rather would enable UNHCR to challenge states to do a better job of protecting persons fleeing war, internally displaced persons, stateless people, and others in need of complementary or temporary protection. 

I would like to thank you again for inviting responses to your paper.  We would be more than happy to continue discussions with you and to offer our assistance and support in bringing about a successful outcome to the consultations leading up to the 50th Anniversary of the Refugee Convention. Finally, I would like to thank you for your part in ensuring the attendance of Mme Ogata at our Biannual General Meeting on 30 September.

Yours sincerely

Peer Baneke