Notice & Comment

Employing the Travaux préparatoires of the 1967 Protocol to Defend the Rights of Vulnerable Migrants, By Robert F. Barsky

I have amassed close to a thousand pages of letters, minutes of meetings, memos and reports that from repositories of the UNHCR, the Rockefeller Foundation, the Carnegie Foundation, the Swiss archives, as well as various university library repositories. They offer precise details concerning the negotiations that produced the 1967 Protocol to the 1951 Geneva Convention, negotiations that are far more complex than what is generally reported, notably that the 1967 Protocol removed the temporal (pre-1951) and spatial (Europe) limitations imposed in the text of the Convention. Taken as a whole, these documents provide fascinating insights into the drafting history of the Protocol, revealing that the framers of that treaty (13 experts who met up in Bellagio’s Villa Serbelloni in 1965) and, subsequently, officials from UNHCR, were grappling with complex issues regarding international law including the challenge of bringing the United States, which was not signatory to the original Convention, into the universal refugee law regime. These documents bear witness to the high stakes of these negotiations, and since they provide the rationale and intended purpose of the Protocol, they describe a fascinating example of treaty making and, moreover, I believe that they can be treated as travaux préparatoires. If so, then they may be extremely valuable for lawyers who are challenging the growing array of assaults against refugee rights of those countries that signed it. In the context of the United States, I would suggest that because the US never signed the Convention, that the Protocol’s travaux are particularly valuable. The December 2018 decision in Grace v Whitaker, in the DC District Court, provides language to support such a claim.

Article 31.1 of the Vienna Convention on the Law of Treaties[1] sets out that “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Article 32 sets out that “recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”. According to Volker Türk, the Assistant High Commissioner for Refugees, “In the context of the Protocol, because of its very special, unusual way of lawmaking, I think that you are right to say that the Travaux are these internal memos, the deliberations in Bellagio, and the various other elements you have found…. The Travaux isn’t just what the delegates said at this and that moment, it’s also the whole context within which the ideas and the concepts were developed.[2]

These Travaux for the Protocol and for the Handbook are particularly crucial for the US (as well as Venezuela and Capo Verde) because it’s by this treaty, and not the 1951 Convention, that the US acceded to international standards for refugee determination. These international standards are under assault on all fronts, as we’ve seen in other blogs on this site. Donald Trump, who “peddles in the politics of hate and fear”,  is enforcing executive overreach as a means of putting into place “an increasingly draconian legal regime of restrictions against immigrants”. The dizzying array of tactics employed to undermine firmly-ensconced rights of vulnerable migrants have included measures that a few short years ago would have been practically unthinkable. The separation of children from their parents, the detention of a record number of unaccompanied minors, the end to the policy of “catch and release” for families seeking asylum, the unfurling of razor-wire fencing by US military deployed to the border, the use of tear gas against migrants attempting to cross the US-Mexico line, and a memorandum announcing that “people who are trying to exercise their legal right to seek asylum will be barred from the US for as much as a year” (a policy that, untested by the courts, went into effect on the following day). All such tactics now seems like the new normal for border control. This makes of this period rather more than just another bleak moment for vulnerable migrants seeking asylum, because so many of the assumptions under which we, and indeed the migrants themselves, have been operating have been thrown into unprecedented doubt. The avalanche of memoranda, rules, policies and procedures are overwhelming our ability to even keep up, and the ground shifts so quickly as to give the impression that we’re likely to lose substantial precedential territory that could be irrevocably lost. Is there a strategy that future litigants could employ to take back the lost ground?

Geoffrey A. Hoffman has adroitly observed that the “shattering” changes that have already been proposed or passed represent “the tip of the iceberg”, and that “the future may hold new, and even more insidious ways, to continue to revamp the immigration legal landscape in ways injurious to immigrants’ rights.” He, like many others, has also applauded rulings from the bench, noting that “there has been an uptick in favorable district court cases, which have pushed back against the onslaught of bizarre policy choices promulgated by the administration”. In one such “watershed” ruling, Judge Emmet Sullivan struck down a June 2018 “expedited removal” policy that gutted asylum protections for immigrants fleeing domestic violence and gang brutality. The Court found that “several of the new credible fear policies, as articulated in Matter of A-B- and the Policy Memorandum, violate both the APA and INA” and that “many of these policies are inconsistent with the intent of Congress as articulated in the INA”. Judge Sullivan scolded the administration, noting that “because it is the will of Congress—not the whims of the Executive—that determines the standard for expedited removal, the Court finds that those policies are unlawful”.  It was hard to repress our enthusiasm when reading the words of Jennifer Chang Newell, Managing Attorney, California Office, ACLU Immigrants’ Rights Project, in the announcement that “the Trump administration’s campaign to dismantle our asylum system just suffered another major setback”. This administration is accustomed to “setbacks” and, as we saw with the Muslim ban, Trump and his henchmen remain tenacious, and they know that they have allies on the Supreme Court, as Trump himself suggested in his announcement about emergency funding for the border wall.

Hidden in plain view within Judge Sullivan’s ruling are two seemingly innocent references that could, in my opinion, offer fodder for efforts aimed at thwarting or even derailing this administration’s efforts to circumvent the Immigration and Nationality Act (INA), the U.S. Constitution and/or other legal authorities such as international legal norms and instruments, most notably the 1967 Protocol. Sullivan references the Protocol repeatedly, writing that the “motivation for the enactment of the Refugee Act” was the “United Nations Protocol Relating to the Status of Refugees [“Protocol”],” INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987), “to which the United States had been bound since 1968,” id. at 432–33. He calls attention to the importance of US accession to that treaty, noting that “it was clear that its intent in promulgating the Refugee Act was to bring the United States’ domestic laws in line with the Protocol. See id. at 437 (stating it is “clear from the legislative history of the new definition of ‘refugee,’ and indeed the entire 1980 Act . . . that one of Congress’ primary purposes was to bring United States refugee law into conformance with the [Protocol].”). He further adds that “the UNHCR defined the provisions of the Convention and Protocol in its Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and that, “as the Supreme Court has noted, the UNHCR Handbook provides “significant guidance in construing the Protocol, to which Congress sought to conform . . . [and] has been widely considered useful in giving content to the obligations that the protocol establishes.” What are those obligations? And what was Congress’s “intent” upon acceding to the Protocol? My on-going work on the Travaux préparatoires to the Protocol and the Handbook both demonstrate that the US should be bound by intentions described to Congress at the time of the LBJ administration’s accession to the Protocol, in 1968.

Negotiations and consultations with UNHCR officials, NGO representatives and country representatives began in earnest after the release of the Draft Protocol by participants in the Bellagio Colloquium in 1965. LBJ’s administration was strongly in favor of signing that treaty, even though the US was not party to the 1951 Convention. Negotiators had to work out a strategy whereby US accession to the Protocol would bring them into conformity with the tenets of the 1951 Convention. State Department officials held hearings and negotiations with senators concerning that Protocol, which eventually led to a 98-0 Senate vote in favor of US accession. Viewed from the current context such a tabulation seems impossibly harmonious, and even at that historical juncture it seems unlikely, given that only 14 years earlier the Senate failed to ratify the 1951 Convention.

The US was party to negotiating that 1951 Convention, and Travaux for that Treaty has been assembled and is available online. But since it is the Protocol (and not the 1951 Convention) that serves as the treaty for the sake of US accession to international refugee law, then in my opinion we are justified in looking to the context within which that accession occurred. Judge Sullivan referred directly to the “intent” of Congress in aligning the 1980 INA with the Protocol, which invokes the Convention that it modifies, as well as the Handbook that provides the means to interpret it. But 1965-1968 is important for all parties, and in my opinion especially for the United States, which under this Administration seems to have challenged some of the very basic principles that its own officials had set forth when they participated in the drafting and signing of a Protocol to a Convention to which they weren’t party[3].

In the next blog entry, I’ll outline critical passages from those Travaux that detail how the Draft Protocol was negotiated in 1965, and how this Draft came to be adopted by the UNHCR. I will then turn to the documents that indicate the intention of the US drafters, providing a way forward for those who wish to employ this drafting history to defend the rights of vulnerable migrants.

[1] Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331.

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

[3] Protocol relating to the Status of Refugees, done Jan. 31, 1967, entered into force Oct. 4, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. The US ratified the Protocol in 1968, and in so doing bound itself to respect Articles 2 through 34 of the 1951 Convention relating to the Status of Refugees, done July 28, 1951, entered into force Apr. 22, 1954, 189 U.N.T.S. 137. Through the Refugee Act of 1980 (Refugee Act, Pub. L. No. 96-212, 94 Stat. 102), Congress conformed U.S. refugee law to our international legal obligations.

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


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