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.
What’s more, the definition of refugee assumed that refugees would have somehow made their way outside their country (an option denied to Afghans today, whose borders are practically sealed by the Taliban) and have what the prospective host recognizes as a “well-founded” fear. Throughout this convention, and all other UN conventions, there is no guarantee that any state has the obligation to offer asylum.
Despite the shortcomings of the treaty, there were important victories. The signers promised refugees the same treatment they extended to nationals, including access to elementary education, freedom to practice their religion, and the power to claim copyright on their own intellectual property. The element of the 1951 Refugee Convention that Henkin remembered with most pride was a clause added as the deliberations were winding down. “I’d like to take credit, not for the term but for the idea,” he said later. He remembered joining with the French representative, Pierre Ordonneau, who said, “we have to end this convention with something that says ‘you can’t send Jews back to the Gestapo.’” Where the draft read that signatories undertook a promise “not to turn back” refugees, Henkin made a crucial intervention that widened the meaning of “non-refoulement,” adding the words “not to expel or turn back” to cover people who had crossed the borders illegally. He also added, “No consideration of public order should be allowed to overrule that guarantee.” The provision that resulted, Article 33, reads:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. [emphasis mine]
At the negotiations in Geneva in 1951, where the final version of the convention was signed by higher-ranking representatives, and where there were worries about finding enough signers to bring the convention into effect, a new paragraph was added denying the “benefit’’ of non-refoulement to a refugee “for whom there are reasonable grounds for regarding as a danger to national security.” The signers had spies in mind. As a mark of its importance, Article 33 is one of the few provisions to which signatories may not make reservations. Still, not until mid-1954 did the requisite six nations ratify the 1951 convention. Others trickled in very slowly. The United States never signed.
Some sixteen years later, in 1967, Henkin again served on a UN committee charged with updating the responsibilities of the Refugee Convention. In this new political context and under the leadership of Senator Edward Kennedy, the United States ratified an updated version of the convention that expanded its scope to the entire world—as the UNHCR had already done in practice. Article 33 remained, now elevated to a U.S. treaty obligation. And when the Refugee Act of 1980 embedded the Protocol of 1967 in U.S. law, it made non-refoulement mandatory.
Though Henkin was gladdened by the adoption of the 1967 protocol, he was bitterly disappointed by its reluctant implementation. In general, the United States interpreted non-refoulement narrowly and accompanied its signatures to other human rights covenants with reservations that made its commitment empty. In the 1980s, during the administrations of Ronald Reagan and George H.W. Bush, executive orders included a “Haitian Interdiction Program” that turned Haitian refugees on international waters back to Haiti. In a deposition included in Sale v. Haitian Centers Council, a 1992 challenge to the Coast Guard’s interception of Haitian refugees on the high seas, Henkin explained that the authors of the 1951 convention had recognized that no nation was prepared permanently to offer asylum. But, he said, “as an exceptional, humanitarian act, governments were asked to commit themselves not to prevent a person from escaping oppression and not to become an accomplice to their oppression.” The Supreme Court paid no attention; the plea of the Haitians was denied eight to one.
For a thirty-year period, the 1951 Refugee Convention sustained humanitarian treatment of refugees. Even though the United States and many other nations would chip away at its universal reach (as the United States did in the case of the Haitian refugees) the convention’s principles continued to have traction within the legal community and for defenders of immigrant rights. In some countries, Canada and the United States among them, non-refoulement was expanded to cover not only fear of state violence but also “private” violence—gang violence and domestic violence.
But in recent years, resentment, hostility, and anger at refugees throughout the world has undermined this brave cornerstone of international law. Donald Trump’s administration made over 400 changes to immigration law and policy, regularly denying claims of a “well-founded fear” of persecution. Ignoring the commitment to non-refoulement, the United States regularly forced asylum seekers over the border to Mexico or to their home countries without, or with only the most cursory, asylum hearings. Using COVID-19 as an excuse, U.S. embassies and consulates throughout the world ceased processing visa applications. It became near impossible for refugees to claim asylum. For years the United States has returned asylum seekers to places—notably El Salvador, Guatemala, and Honduras—where they have good reason to fear for their lives.
And even as Afghanistan was falling, the United States delayed visas for Afghans even with the most solidly grounded fear for their lives or safety on account of their “membership in a particular social group or political opinion”—the translators and guides to journalists and military personnel, the women who ran schools for girls and shelters for women, the academics and other intellectual leaders. Although visa programs are not included in the convention, that decision will likely force more people into leaving the country and becoming refugees. As these Afghans wait for the United States to do the right thing, they are trapped in a country now run by the Taliban, a group whose tortures include beheading. Many desperate civilians have been given only promises. And some European countries, fearing the resurgent nationalism of the far right, have made it clear that they believe the Afghan refugees should be other nations’ problem. The abject failure to prepare for the collapse of Afghanistan and to protect allies and dependents there means that a vast number of Afghans are turned into potential refugees.
Our thickly connected world of continuing wars, failed states, climate change, and pandemics has only made adherence to the letter and spirit of the Refugee Convention even more necessary. In the face of present terror, President Biden needs to move quickly to restore the integrity of our immigration and asylum policies by greatly strengthening the airlift, admitting refugees, working with allied nations to find them other places of refuge, and supporting them in their new lives. Afghans will not be helped by vague promises.
Amid the current agony, there appears to be a good deal of support for taking in Afghan refugees, likely much more public support than in the past. Perhaps there is still a chance for Biden to reframe U.S. experience and goals as upholding the principles of international law.
A generation seared by the trauma of the Holocaust once committed itself to new international moral obligations. President Biden and the rest of the world need to remember that we have treaty obligations to refugees, from Afghanistan and elsewhere. We should bring to this challenge the humane commitment and practical effort Henkin brought to it in 1951, building new frameworks even when the political possibilities to do so seem dim.
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.