The 1967 Refugee Protocol and the Progressive “Liberalization” of International Refugee Law, by Robert F. Barsky

by Guest Blogger — Thursday, Mar. 7, 2019

All around the world, refugees who are “lucky” enough to be rescued at sea, or to cross the border into a host country, are finding that the safe haven from persecution that they long for is being replaced with uncertainty (Malta), detention of children (Nauru), inhumane refugee camp conditions (Syria), financial ruin (Israel), forced return to widespread violence (Libya), and even refoulement (Trinidad and Tobago). And here in the United States, asylum seekers are forced to return to Mexico and remain there while their cases are considered, even after they prove that they have a credible fear.

The international refugee law regime wasn’t supposed to be like this, and I believe that the Travaux for the 1967 Protocol can help us make the case that current policies violate the intent of the many countries who acceded to that treaty, in particular in the case of the United States. The memos, letters, minutes and handwritten notes that make up the Protocol’s Travaux confirm the intention of the negotiators to broaden the refugee protections named in the 1951 Convention beyond the elimination of the timeline and the emphasis upon Europe. These Travaux can be used to bolster the efforts of those who wish to challenge efforts to restrict vulnerable people’s access to international protection.

The Travaux for the 1967 Protocol offer us privileged access to what state representatives were saying during that treaty’s negotiations and, furthermore, what their intentions were in acceding to it. This is especially important in the case of the United States (as well as Venezuela and Capo Verde), since they never signed the 1951 Convention; therefore, the treaty that governs their actions in regards to refugee protection is the 1967 Protocol, and the Travaux for that Protocol is what was said during those negotiations. As I wrote in my previous blog, since there is lots of ambiguity about what the US adherence to the international refugee law regime means, I think that we need to look at the Protocol’s Travaux for clarity. Therein, we find a far more liberal conception of refugee rights than what is being stated or practiced by the Trump administration. As such, I would suggest that the restrictive actions of this regime are violations of the treaty, and since that the Protocol is at the very heart of the 1980 INA, such actions represent a violation of US law.

The UN General Assembly Resolution 428 (V) of 14 December 1950, which created the Office of the United Nations High Commissioner for Refugees (UNHCR), entrusted it with the responsibility of providing international protection to refugees and other vulnerable migrants. Part of the UNHCR mandate was to work with national governments to seek durable solutions to upheaval by “[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto” (Id. ¶ 8(a)). The expectation was that new challenges would be met with new treaties and protocols, and the Protocol’s Travaux suggest that officials leading those negotiations anticipated that the definition of who qualifies for protection would not only be molded to address current crises, it would also be expanded with the passage of each new international and regional treaty.

This idea that the international refugee regime was designed to evolve in a more liberal direction, progressively according more rights to refugees over time, was consistent with the approach of G.J. van Heuven (the first High Commissioner for refugees). He envisioned that the Convention should become as universal as possible, and that it should evolve to include any future groups of refugees.[1] By the early 1960s, there was widespread belief amongst refugee advocates that the legal dimensions of refugee problems had to be explored more fully, and that States should be consulted on regional and international efforts to expand refugee rights. Frank E Krenz[2], in his 1966 assessment of refugee protections, described widespread support amongst state actors for enlarging the scope of the Convention, so as to allow for a more realistic application of it in the evolving political atmosphere.

At the same time, the Travaux make clear that Asian, African, and South American countries were experiencing their own challenges during the Protocol negotiations (1965-1967), and many state representatives at the time believed that a one-size-fits-all approach might not be the most appropriate path to take. This opened-up the possibility that regional agreements would prevail over a single universal Convention[3] which, as Volker Türk suggested in an interview with me[4], was of great concern within the UNHCR:

Ivor Jackson also told me that many African countries, through the decolonization process at the time, felt that the 1951 Convention, because of the temporal limitation, and the optional geographic one, didn’t make sense in their context. I think that there was a fear, in the office, that by regionalizing it, we would lose the universal nature of refugee law and refugee issues. As a result, I think that it really triggered efforts aimed at determining how could we deal with this lacuna in international law at that time. And increasingly so, because more and more refugee movements, even with a great stretch of the imagination, would not fit within the definition that would limit it to events having occurred before 1 January 1951. But it was clear that the UNHCR was given this universal responsibility of international protection. The challenge was to exercise this responsibility, which was all the more difficult since we had many states that were not living up to their international legal obligations that needed to be clarified. In a way, the Protocol served that purpose, to keep a strong universal base.

It’s not clear whether or not a collection of agreements, tailored to specific regional challenges, would have resulted in greater refugee protections than those offered by a more universalist approach would be an interesting issue to debate. It is my contention that the adoption of the Protocol following the Bellagio Colloquium of 1965 expanded the authority of the international refugee regime by providing a universal minimum standard of protection, and that its passage did nothing to impede the negotiation of new and more liberal regional agreements, including the OAS Convention on Territorial Asylum, the 1969 OAU Convention, or the Cartagena Agreement on Refugees.

The Travaux also show that key negotiators for the Protocol, notably Paul Weis, welcomed regional agreements as complements to UNHCR’s work, and saw them as valuable instruments to expand refugee protection. Many representatives took a similar position, favoring one international instrument working in conjunction with other regional approaches. In fact, even when the Proposed Measures to Extend the Personal Scope of the Convention Relating to the Status of Refugees of 28 July 1951 was submitted by the High Commissioner (in accordance with paragraph 5(5) of General Assembly Resolution 1166 (XII) of 26 November 1957[5]), it was stated in paragraph 5 that “such a Protocol, dealing with a most pressing immediate need, would not, of course, from a long-term point of view, in any way prevent States from proceeding to a revision of the Convention, should this be considered necessary at any time”. Volker Türk’s recollections and approach help clarify the relationship between universal and regional agreements in this context:

The purpose of the 1969 OAU Convention, which we will commemorate next year, was to highlight some of the causes that [OAU States] saw arise in Africa. But it would still be an emanation of the 51 Convention definition, as universalized through the 1967 Protocol. Colonialism, occupation, and events seriously disturbing public disorder grounds were essentially seen as mass movements experienced on the African continent; they did not represent extensions of the definition, but rather they were concrete applications of the definition in the particular circumstances of Africa.

I am working on a broad project to both represent key documents from the Travaux, and make them available as a means of strengthening the case to liberalize approaches that countries take to refugee protection. At the heart of this project is the idea that these treaties were designed as living documents, and that “living” in this context implies that they should be designed to adapt, expand, and broaden protection in a changing world. Volker Türk’s suggested to me that, at the level of principle, “the Protocol Relating to the Status of Refugees was more than just an effort to remove the timeline and geographical boundaries of the 1951 Convention: it was crafted to ensure its viability as an international tool that could be used by the entire world, supported and enforced by the UNHCR. Today, this is a danger, because I can hear from the far right, even in Europe, that the UNHCR and refugee lawyers are pushing the boundaries of the 1951 Convention, that they are basically broadening the base, and it was never intended to be like this. But it was. Historically they cannot argue this, because like any international treaty, the Convention was a living entity, designed to be adapted to contemporary realities. This always meant that you could apply it in certain circumstances.”

One worrisome “contemporary reality” is efforts exerted by many potential host countries to interdict refugees outside of its territories, so as to avoid having to provide the rights to protection afforded by both the Convention and the Protocol. A “Memorandum Opinion for the Legal Adviser to the Department of State” found that “in the context of the US, the Supreme Court notes that Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees does not impose any domestic legal obligations on the United States with respect to individuals interdicted outside its territory as part of an effort to control mass illegal migration to the United States”.[6] Reading the Travaux to the Protocol, it’s clear that both in letter and in spirit, the intention of Congress was to offer protections that are currently being ignored, to people who are being vilified, in places that agreed to provide assistance.

In the next installment, I’ll turn specifically to documents from the Travaux that bear upon the current situation in the United States, and thereby offer fuel for lawyers and advocates who wish to employ them as a means of determining what it was that Congress intended when it signed onto the Protocol.

 

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

[1] Gerrit Jan van Heuven Goedhart, “The Problem of Refugees”, 82, Recueil des Cours, Hague Academy of International Law 264, 292, 280 (1953).

[2] “The Refugee as a Subject of International Law” Author(s): Frank E. Krenz Source: The International and Comparative Law Quarterly, Vol. 15, No. 1 (Jan., 1966), pp. 90-116.

[3] The Handbook of Procedures and Criteria for Determining Refugee Status notes that: “In addition to the 1951 Convention and the 1967 Protocol, and the Statute of the Office of the United Nations High Commissioner for Refugees, there are a number of regional agreements, conventions and other instruments relating to refugees, particularly in Africa, the Americas and Europe. These regional instruments deal with such matters as the granting of asylum, travel documents and travel facilities, etc. Some also contain a definition of the term “refugee”, or of persons entitled to asylum.”

[4] Telephone conversation between Robert Barsky and Volker Türk, October 10th, 2018.

[5] A/AC.96/346, October 12th 1966.

[6] “Legal Obligations of the United States Under Article 33 of the Refugee Convention”, December 12, 1991, reiterated in Sale v. Haitian Centers Council, Inc.t 509 U.S. 155 (1993).

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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