Negotiating the 1967 Protocol in the Midst of the Cold War, by Robert F. Barsky

by Guest Blogger — Wednesday, Apr. 10, 2019

I have been engaged in a review of documents that in my opinion constitute the travaux préparatoires to the 1967 Refugee Protocol. This repository is unexpectedly rich, and in the preceding three blog posts devoted to this research, I have made a number of claims about its historical, political, sociological and legal importance.

First, these negotiations, which were undertaken in earnest at the Rockefeller Villa Serbelloni in Bellagio in 1965, were not confined to simply eliminating the timeline and geographic restrictions of the 1951 Convention. In fact, discussion amongst the 19 participants to the Bellagio Colloquium, and those involved in the subsequent negotiations with States through the UNHCR and other interested parties, was complex, diverse, and in many senses reflected an original way of creating international law.

Second, the travaux confirm that negotiators and State representatives worked under the assumption that the refugee definition will be expanded and rendered more liberal in time, both through negotiations of this kind, and also through the passage of regional agreements.

Third, negotiators were concerned about bringing the tenets of the Convention into line with the needs of regions that had heretofore considered it overly European. In that regard, there is considerable discussion of finding common grounds with States in Latin America and Africa, in particular, and with ensuring the eventual adherence of the United States.

Fourth, these latter objectives required that negotiators create a treaty that could stand-alone, and therefore not simply be a modification of the 1951 Protocol.

Fifth, the UNHCR had to tread very carefully, and their approach was to seek input about the draft Protocol from States in such a way as to ensure that the entire Convention wouldn’t be re-opened for consideration in, say, a Conference of Plenipotentiaries. Such a conference was deemed to pose great political risks, since there was general agreement that there was less consensus in 1965 than there had been in 1951 about the importance of a universal international refugee law.

And finally, the United States was deemed to be of particular value for the current exercise, since the administration of Lyndon B. Johnson had made it clear that they wanted to sign onto the new treaty in 1968 (International Human Rights Year), both to send a message to the Soviet Bloc, and also because of the fear, soon to be realized, that they would lose the next election.

Questions remain about the motivation of the Johnson administration in regards to this negotiations process, and for this blog entry, it seems valuable to consider events leading-up to the eventual US accession to the Protocol, and the integration of that treaty to the 1980 INA, against the backdrop of the Cold War. There are many texts that contribute to a legislative history of this period, but I’ll rely here upon Deborah E. Anker and Michael H. Posner entitled “The Forty Year Crisis: A Legislative History of the Refugee Act of 1980”.

The role of the US in the negotiations for a new international refugee treaty is in my sense a part of this forty year “crisis”, and considering it as such may shed some light upon that legislative history. The meaning of this “crisis” is captured nicely in the reference that Anker and Posner make to the amendments in the 1965 Immigration and Naturalization Act, which “represented legislative recognition of the permanent nature of the refugee crisis and the United States’ responsibility to contribute to its alleviation” (17). Anker and Posner show that until 1970, the US had responded to individual crises with temporary responses designed to address current emergencies. The US accession to the Protocol in 1968, and the integration of the Protocol into the INA of 1980, go beyond this mode of addressing refugee crises as “emergencies”, and perhaps, in the current “crisis” facing this country, we can look to the travaux of the Protocol to see a reasoned and consistent approach to providing safe haven to refugees.

The legislative history of refugee policy in the US that lead up to the 1980 INA requires an examination of a long series of acts, amendments and practices which tended, generally, towards a universalization of the procedures for refugee admission, and a recognition that refugee crises weren’t a temporary phenomenon. Until 1980, refugees were often admitted outside of a codified and permanent refugee scheme, which seems to have accorded with a general desire on the part of Congress to support anti-communists rather than provide humanitarian assistance based on consistent norms. This link between policies aimed at assisting refugees and Cold War anti-communism is crucial if we are to understand the many contradictory signals that the US policies were giving in regards to human rights, refugee rights, and its relationship to international law.

By way of example, the 1953 Act allowed  for the admission of victims of natural calamities, refugees from areas of Europe and the Middle East that were dominated by communists, and refugees from “Sweden, Iran, and Greece (countries viewed as bulwarks of democracy against Soviet expansionism” (Anker and Posner 14). The flight of 200,000 refugees from Hungary created special pressure on the US to act decisively and with compassion, if it was to send a message to the world divided by the Cold War. So Eisenhower proposed a series of measures including the “parole authority” and the 1960 Fair Share Law to help Hungarians who were seeking protection. Described in detail by Anker and Posner, these legislations were passed to respond to the crisis in a way that would make a statement to the world about the largesse of the US in the face of Soviet aggression. When the Refugee Act was extended in 1957 “visas were issued to ‘refugee escapees’ defined as victims of racial, religious, or political persecution who were from communist or communist-dominated countries or a country in the Middle East” (ibid.). These were “circumscribed” efforts that undercut entreaties from the State Department to broaden the refugee admission criteria, entreaties which were addressed when the US considered acceding to the Protocol.

The Migrations and Refugee Assistance Act of 1962 expanded assistance to Cubans, and provided more funding to the parole authority. Moreover, it was the first measure to validate and adopt a nondiscriminatory definition of refugees, dropping references to communist areas, and Cold War responsibilities. By providing the grounds for a more universal approach to refugees, it also offered the possibility that the US could provide a safe haven to some of the many displaced peoples from Africa during this period, and from Asia in the years to come. But the contradictions of promoting a “nondiscriminatory” definition of refugees, and formally recognizing that refugee crises were to be a permanent part of geopolitical politics, has to be understood against a backdrop of anticommunism. Otherwise it seems to me to be impossible to understand how the US could be justifying its vast military incursions, on the one hand, while at the same time expanding protection for refugees, promoting (at least in name) human rights, and, on the home front, promoting the kinds of civil rights legislation described in my previous blog.

The first permanent statutory basis for the admission of refugees was established by the 1965 Amendments to the INA, the context and consequences of which is described in great detail in Gabriel J. Chin and Rose Cuison Villazor (eds) The Immigration and Nationality Act of 1965. The amendments codified restrictive refugee standards from Acts passed in 1948 and 1957, but also repealed the national origins system, and replaced it with a system of national priorities that were based primarily on job skills, and the reunification of families. The liberalization of the policy didn’t quite extend to refugees, however, since their admission was still limited by geography and ideology. Further, as Anker and Posner demonstrate, this Act did not, despite Congress’s intention, eliminate the parole authority, which continued the long, camouflaged tradition of “an unstated, hidden and ad hoc refugee admission policy” that confirms the kinds of insights found in such books as Beyond Charity, by Gil Loescher. It’s interesting that President Johnson signed the 1965 Amendments “while simultaneously announcing the Cuban airlift program, which thereby initiated an open-ended invitation for thousands of Cuban refugees to enter the United States” (p. 19), another example of the kind of policy schizophrenia that abounded within Johnson’s administration.

Anker and Posner state in colorful prose that “the Refugee Act was not a Minerva springing from the heads of Senator Edward Kennedy and Congresswoman Elizabeth Holtzman”, but “was, instead, the culmination of various attempts during the 1970’s to complete the tasks begun with passage of the 1965 Amendments to the INA”. Many gaps remained, and “the first congressional efforts to change refugee policy emerged as parts of other bills that were attempting to satisfy the objectives of the 1965 Amendments”. But between the 1965 INA and the 1970 hearings on 3 bills designed to fill some of these gaps[1] came the negotiations regarding the draft protocol of 1965, and the new treaty that was passed in 1967 and then presented to the Senate for passage in 1968.

The travaux of the Protocol confirm many of the insights of the Anker and Posner narrative, but they further highlight the fascinating contradictions of LBJ’s administration. In his first and only full term, Johnson finally opened the door to US adherence to international refugee law through its accession to the Protocol, even as his administration deepened their engagement in Vietnam. It had to have been clear to the State Department that the actions of the US military were going to lead to massive upheaval in Southeast Asia (and beyond) and concomitant displacement of vulnerable refugees. It did, of course, and thousands of refugees eventually made asylum claim through the international refugee law that was guaranteed by the Protocol when they came to US shores as “boat people”.

One way of viewing these Cold War politics play out is to look at the proceedings of the Economic and Social Council, which met for its 1,438th meeting in Geneva on July 26th, 1966. The provisional summary of Extracts contain comments of participants and of the UNHCR High Commissioner, Prince Sadruddin Aga Khan. He notes that with the proposed Protocol, “international protection was not limited to the ‘old’ refugees but also applied to refugees in the developing countries”, and that “any artificial distinction between those two types of refugees would be unthinkable”. The refugee was “legally a foreigner deprived of the protection of his national authorities” in Africa and Asia, and new refugees were not covered by the 1951 Convention, which had led to the current effort to extend of the Convention through the draft protocol.

Many of these same points were raised by members States, including by the US representative, who noted that refugee issues are increasingly complex, and are spreading to other regions, most notably in Africa and Asia. This, he said, requires further participation of states, and expanded contributions to cover the responsibilities that they have to address the situation faced by refugees. The French delegation called attention to the heavy charge that Africa now had, in the face of huge refugee flows. M Waldron-Ramsey, of Tanzania, raised the question of what causes such upheaval, pointing to apartheid in South Africa and Rhodesia, the persistence of colonialism, particularly in Portuguese colonies, and unwelcome foreign elements meddling in the affairs of African states.

V. I. Kastalskaya, the representative from the Soviet Union, recalled the points made by the Tanzanian delegation, insisting that other delegations should heed the advice given by them regarding colonialism and apartheid, practices that must be ended given the human suffering that they cause. We can but marvel at such a statement, uttered by a representative of a Soviet government that had invaded Hungary in 1956 and was about to invade Czechoslovakia, or statements of the French representative in light of his government’s actions in Algeria, or American representatives given their engagements in Southeast Asia at the time. Such statements by representatives of Western powers, Soviet powers, and victims of colonialism are, I think, best understood as the political underbelly of the Protocol’s negotiations. Such a dialogue, reflecting lofty ambitions, political posturing, and diplomacy can, and in this instance did, lead to a powerful international accord between many powers. The Cold War discussions that stand behind the Protocol and some of the crucial US legislation regulating refugee law are part of a fascinating history of which I have but scratched the surface here. To consider some of these documents as part of this history, and as travaux to the Protocol, may also help us to define the meaning of the treaty in question, and what it meant to negotiate it at that particular historical moment.

 

Robert F. Barsky is a Professor of Law, French, English, and Jewish Studies at Vanderbilt University.

[1] As Anker and Posner record, one bill was introduced in the Senate by Sen. Kennedy. S. 3202, 91st Cong., 1st Sess., 115 CONG. REC. 36964 (1969). Three bills were introduced in the House: H.R. 15093, 91st Cong., 1st Sess., 115 CONG. REC. 36942 (1969) (Companion bill to S. 3202 introduced by Congressman Feighan); H.R. 9112, 91st Cong., 1st Sess., 115 CONG. REC. 6731 (1969) Congressman Celler; HR.. 17370, 91st Cong., 2d Sess., 116 CONG. REC. 13823(1970) Congressman Rodino. Congressmen Celler’s and Rodino’s bills contained similar refugee provisions (footnote 50, p. 21).

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