70 Years after the UN Refugee Convention, the US Needs to Commit to Helping Displaced PeopleRoundup
tags: war on terror, Afghanistan, immigration, refugees, Nativism
Linda K. Kerber is May Brodbeck Professor of History and Lecturer in Law at the University of Iowa. She is the author of No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, and has served on the inaugural Board of Trustees of the Institute on Statelessness and Inclusion, based in the Hague.
July 28 marked the seventieth anniversary of the United Nations Convention Relating to the Status of Refugees, the treaty that guarantees protection to people with a “well-founded fear” of returning to their home country. Now the U.S. response to the collapse of Afghanistan threatens to reduce it to a dead letter.
Few are aware that the United States played a major role in shaping the 1951 Refugee Convention, as it came to be known, nor that the country committed to it in 1967 and embedded it in U.S. statutes in 1980. Even fewer are aware that the U.S. State Department and an American lawyer played key roles in shaping its most important provisions. They made commitments the United States should be honoring—and strengthening—today.
Louis Henkin often thought of himself as a refugee. He arrived at Ellis Island as a child, his Jewish family desperate to escape the instability of Belarus. In 1950, when he was thirty-three years old with barely three years of legal experience behind him, the State Department appointed him to the UN’s ad hoc international drafting committee. Henkin always believed he was appointed because the United States had no intention of signing the Refugee Convention; a junior staffer with some legal experience could maintain a low public profile while following instructions.
The United States was still deeply committed to racial segregation, protected against interference by a poisoned alliance between Southern segregationists and opponents of internationalism who were fiercely hostile to the UN. It is likely that many in the State Department and the committee knew that to place the convention before the Senate for ratification by a two-thirds vote, as the U.S. Constitution requires, was very likely to put U.S. funding of and membership in the UN at risk.
The instructions given to Henkin were contradictory. Although he was told the United States could not sign the convention—which would have the force of a treaty—he also knew Secretary of State Dean Acheson wanted it enacted for the sake of major allies who were pushing for it, and out of the belief that U.S. law already duplicated most of its provisions. But Acheson wanted it to be framed within a narrowly limited set of commitments. Because the United States was paying for most of the UN’s expenses, a treaty that made expansive promises of support to refugees would have extended our financial commitment and called congressional attention to a revision of the budget. Therefore, throughout his time on the committee, Henkin walked a tightrope, caught in the political contradictions of preparing a convention that a sufficient number of other nations would be prepared to ratify even without a U.S. signature, satisfying the State Department.
The committee did make important interventions, including conceptualizing the “refugee” as a general subject under a working definition that remains in international law today:
A refugee is any person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. [emphasis mine]
However, the definition of refugee was limited by time (before 1951) and place (only from Europe), excluding refugees from other explosive situations, notably in Palestine and India. (The office of the United Nations High Commissioner for Refugees [UNHCR]—founded at the end of 1950, virtually simultaneously with the 1951 Convention—would soon expand its responsibilities to include refugees outside of Europe whose vulnerability postdated 1951.) Against the scorn of representatives from the UK and France, who explicitly (and correctly) accused the United States of taking this position “due to financial considerations,” Henkin insisted that “too vague a definition . . . would amount, so to speak, to a blank check.” And although the initial charge to the committee had included an instruction that its draft cover both refugees and the stateless (including those who had not left their country but who, like the Rohingya in Myanmar today, had been denationalized), there was general consensus to postpone consideration of the stateless, on the grounds that the categories largely overlapped.
As evidenced by confidential memos between Henkin and the State Department, the United States believed that refugees from Palestine and India had been created by the UK, not the allies as a group, and so the United States insisted that the UK should bear the full responsibility. It was a set of choices that sowed tragedy in both regions—and it was a principle to which the United States paid only limited attention.