Notice & Comment

International Law and the Cold War — the Case of the 1967 Refugee Protocol, by Robert F. Barsky

Cambridge University Press has just published a fascinating new volume of essays about International Law and the Cold War, edited by Matthew Craven, Sundhya Pahuja, and Gerry Simpson. This volume covers a broad array of topics, including the crucial question of how Cold War politics affected or inspired new legal instruments. Tensions between ‘East’ and ‘West’ are in evidence in, for example, the negotiations leading up to the 1976 Convention on Environmental Modification Techniques (ENMOD), the Landmines Convention, the relations between parties in the so-called Division Space (two parallel worlds reflecting the Cold War fault lines), various instruments of international human rights law, as well as in other cultural, economic, sociological and historical instances that reflect a world divided into two complexly constituted sides. That international legal instruments would have been inspired or affected by the dynamics of the Cold War is unsurprising. But by focusing on legal aspects of the Cold War, this volume draws attention to the complex task that negotiators of any international legal instrument would have faced, in light of the political and social exigencies of the time. For example, any legal treaty, or efforts towards drafting one, would have had to account not only for legal precedents and objectives, but also the ‘effect’ of the eventual text on the allies, enemies, and those who could be swayed to join one side or another.

An example of such international legal dynamics that is not discussed in this new volume is the negotiation of the 1967 Protocol to the 1951 Refugee Convention. This process is worth examining for a number of reasons, many related to Cold War dynamics: first, the Protocol had to eliminate the temporal (pre-1951) and spatial (Europe) components that were limiting the viability of the Convention for new refugee situations, particularly in Africa; second, if a new treaty was not negotiated, the entire grounds upon which International Refugee Law was founded would eventually become obsolete (along with the UNHCR, a ‘temporary’ agency that was irrevocably tied to its mission of promoting and operationalizing IRL); third, the negotiations were international, involving Western and Eastern Bloc powers, as well as States in Africa, Asia or Latin America whose affiliation to one side or the other might be affected by the eventual outcome; fourth, the rhetoric of the negotiation had to be designed for broadcast to interested parties in a way that might promote their respective causes in regards to the spatial and ideological rifts that the Cold War had created; and finally, the negotiation of the Protocol reflected a new way of doing international law, because it involved months of informal discussions between different State and UNHCR representatives who were consulted on an individual basis rather than in a gathering of all interested parties.

In order to document these many discussions, I have been engaged in a review of memos, personal notes, minutes and official statements that provide the legal, political and historical context of the negotiations that led up to the 1967 Protocol . This review is part of a much broader project that I will continue to document in this blog, in order to provide heretofore neglected details of a treaty that stands at the very heart of International Refugee Law. The era in which these negotiations occurs begins almost immediately after the  ratification of the 1951 Convention, since it was obvious that new refugee situations were bound to occur, even after the challenges posed by persons rendered stateless by WWII were addressed. This effort began in earnest when the UNHCR began planning the “Colloquium on the Legal Aspects of Refugee Problems”, which brought together experts charged with establishing a formal apparatus to amend or replace the Convention. The Colloquium was organized by the Carnegie Endowment for International Peace, with the support of the Swiss Government. Thanks to the Rockefeller Foundation, the Colloquium participants were able to gather in the Villa Serbelloni in Bellagio, Italy, from 21 to 28 April 1965, and therein the 19 legal experts managed to agree on a Draft Protocol.

The conclusion of the Colloquium by no means marked the end of the negotiations; in fact, the Colloquium’s participants agreed that their ‘draft’ was only a starting point, and that it might be necessary for them to reconvene at some later date to finalize their work. They had hoped to broaden the definition, and thereby render the Convention more liberal, and more broadly applicable, but they were working against the clock. Something had to be done soon, because new refugee situations were emerging, and new regional agreements were being negotiated that might undermine or usurp an international treaty. Furthermore, the United States was anxious to sign the new treaty, undoubtedly to mark a crucial Cold War victory over the Soviet Union whose reluctance was known amongst State and UNHCR negotiators. In spite of the urgency of the task, and the will of the parties, there was also considerable concern amongst the participants that this was not the right time to push for substantial revisions to the Convention. As a result, the initial draft Protocol was rather modest in its objectives: remove the timeline, eliminate the focus on Europe, and see in subsequent discussions with representatives whether States would be willing to add more protections. It was felt that even this process of consultation with states was a risky proposition, because one or several countries could insist on the UNHCR convening a new Conference of Plenipotentiaries, the outcome of which was very uncertain. It was possible that the Convention could be strengthened, so that it would apply to more refugees, but it was also possible that States wouldn’t agree on a final draft, and therefore the UNHCR might be forced to abandon the idea of international refugee law altogether.

It’s fascinating to examine the primary documents relating to these negotiations, because they reveal the dynamics of making international law during the Cold War, and they call to our attention the personality of State representatives charged with this task. Amongst the many official memos, proposed drafts, minutes, and handwritten notes that record the negotiations leading up to the presentation of the Protocol to the General Assembly, there are glimmers of the tensions that in some ways were driving this new treaty. For example, the Soviet representative to these negotiations, V. I. Kastalskaya, used the negotiations as a platform to voice his sympathy on behalf of the Soviet Union with the suffering endured in African nations. In a memo dated 6 December 1966 (10 days before the proposed Resolution),11.This memo is classified as PW/PR/HCR/BSN/13/12, and it’s part of the repository of documents from Paul Weis, housed in the archives of Oxford University’s Bodleian Library. we find recorded his insistence that other delegations should heed the advice from the Tanzanian delegate, who had called for an end to colonialism and apartheid on account of the human suffering that they cause.

It’s not surprising that Cold War foes would seek to use the Protocol negotiations to gain advantages, and that attempts would be made by both sides to influence the procedure by which any new treaty might be presented. Kastalskaya is quoted as stating that ‘the [1951 Refugee] Convention had not been adopted by the United Nations but by a conference of plenipotentiaries at which only 26 States had been represented, of whom only 21 were members of the United Nations’. ‘Now,’ the Statement continued, ‘the Committee was asked to approve a Protocol which in fact amended the Convention’. He noted that a procedure was already in place, according to article 45[IJRL1] , which can ‘only be revised by the same body which had adopted the Convention’. As such, ‘to adopt provisions  which would revise the original document would be legally incorrect[IJRL2] ’. Kastalskaya also questioned the procedure, whereby ‘the Committee was asked to adopt a resolution on the Protocol by which it would take note of it and ask the Secretary General to circulate it to states without the Committee being able to examine its substance’. The Soviet Union, he said, would have been open to the Protocol had it been ‘open to accession to states parties to the Convention only’, and it ‘was ready to support the High Commissioner so that he could concentrate on African refugees but could not support the Protocol’. He also noted that ‘the USA and other members were not parties’ to the Convention, and it ‘had been prepared by a seminar of lawyers who had not represented their governments. The USSR had not been consulted, and could not vote in favor of the resolution’.22.Ibid. The Weis repository contains a note labeled ‘USSR’ in Weis’s handwriting that summarizes the Statement’s contents, but provides no rejoinder.

We can but marvel at such statements, uttered by a representative of a Soviet government that had invaded Hungary in 1956, and which was about to invade Czechoslovakia. They are consistent with other examples of political posturing made by all of the State representatives who asserted strong support for human rights, even as their own governments were involved in nasty military engagements. Herein we can include the many uplifting statements of the French representative, despite his government’s ongoing actions in Algeria, or the heavy emphasis upon human rights from American representatives, who were well aware of their government’s violent 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 historical underbelly of the Protocol’s negotiations. To consider some of these documents as part of this history 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.

Notwithstanding  USSR’s protestations, Weis drafted Interoffice Memorandum No 3 in January of 1967, and addressed it to all Substantive Officers, UNHCR Headquarters, Branch Offices, and all UNHCR Correspondents. In that memo, he recapped discussions about the Convention, the Draft Protocol, and the Executive Committee sixteenth session. He recalled that the document had been submitted by the High Commissioner to the General Assembly through ECOSOC, so that the Secretary General might be authorized to open up the Protocol for accession by Governments. He recorded that in Resolution 2198 (XXI) adopted on 16 December 1966, the General Assembly took note of the Protocol, and requested that the Secretary-General transmit it for accession by States.

Tucked inside the Paul Weis papers, which provide written testament to these resolutions, are three little handwritten notes.33.PW/PR/HCR/BSN/13. I assume, based on a comparison of the handwriting with other documents in the file, that Weis himself jotted them down in the course of a discussion with the Soviet representative. Amidst various (sometimes illegible) scribbles are statements such as: ‘Conv[ention] not adopted by UN but by Conf[erence] only’; ‘Not [unreadable] present 1/6 of UN members’. ‘Now we are asked to approve a Great Revision provided for by art. 45’. ‘Only by the same body that adopted’. ‘To adopt provisions which did not revise original document would be legally incorrect’. ‘Requires new doc[ument] by large number of states [illegible] or art. 45 procedure’. ‘Otherwise by a Resolution [unreadable]’, ‘Substance to circulate to all certain states’. ‘What would be the reaction?’ ‘We did not participate in the drafting’. ‘We are not parties but would as [unreadable] to apply provisions of C.[onvention]’. ‘Would be acceptable to States tactics’. ‘A would support C[onvention] to concentrate on African rel.[ations] but not Prot.[ocol which we cannot support 1915 – no commitment’. ‘Every provision must be carefully examined’. ‘Comp. job of the C[ommittee]’. ‘Difficult situation because they would become a party to the C.[onvention]’. ‘US – other states member of the UN’. ‘If only open to Parties would be better’. ‘Prepared by a Seminar – not repres[entatives] of States. USSR was not consulted. Cannot vote in favor’. The gist, from what I can be decipher based on my reconstitution of the conversation, seems pretty clear, despite some missing details.

In the end, and in spite of the reticence of the Soviet representative, a document that resembled the original draft protocol was passed through the Economic and Social Council (ECOSOC) as an addendum to the High Commissioner’s report concerning measures to extend the personal scope of the Convention relating to the Status of Refugees. ECOSOC passed resolution 1186 (XLI)1 of 16 November 1966, noting with approval the draft Protocol, and transmitting it to the General Assembly, which took note of it in resolution 2198 (XXI)2 of 16 December 1966. The Council asked the Secretary-General “to transmit the text of the Protocol to the States mentioned in article V thereof, with a view to enabling them to accede to the Protocol”, which he did, successfully.

Today, there are 146 countries party to the Protocol, including three States (Cabo Verde, the United States, and Venezuela) who never acceded to the Convention. Examining the details of its negotiations, and considering them against the backdrop of the Cold War, provides not only historical and political details worth considering, but details as well of State intentions in signing-on to International Refugee Law, details that might help us interpret state responsibilities towards refugees in the current moment.

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

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