What does the 1967 Protocol have to say about the Legal Obligations that the United States Owes to Asylum Seekers?, by Robert F. Barsky
The Trump administration’s claims and actions in regards to refugees and asylum seekers have led lawmakers, lawyers and the courts to consider a crucial question: What are the US government’s obligations towards refugees and asylum seekers? There are rights that are clearly stated in such work as Hathaway and Neve, which are rooted in the Convention Relating to the Status of Refugees (the “Convention”) and the 1967 United Nations Protocol Relating to the Status of Refugees (the “Protocol”) — which both amends Convention and acts as a stand-alone treaty. But world leaders have become increasingly creative in their efforts to deny refugees access to possible host countries, and increasingly militaristic in their treatment of them once they arrive, suggesting that the grey areas in treaties as to provide ways to circumvent them when (say) populist-style governments are looking to live up to their draconian election promises. In order to expand our sense of which rights are due to refugees and asylum seekers, I would suggest that courts look to the travaux of both the Convention and the Protocol, which in both cases suggest a surprisingly humanistic approach to refugees and asylum seekers. In a series of blog posts, dated February 21st, 2019 and March 7th, 2019, I have proposed that we look back in particular to the travaux of the Protocol, which is comprised of a portion of the memos, notes, minutes and letters that were circulated by negotiators involved in the crafting of the treaty, beginning in 1965 at the Villa Serbelloni, in Bellagio. These travaux have never been assembled into a coherent corpus, and to date nobody has looked into them as a means of interpreting the meaning of the 1967 Protocol. I am currently involved in both efforts. My claim is that, consistent with the 1980 Vienna Convention on the Law of Treaties, these travaux for the Protocol should be consulted as a means of uncovering the intentions of states that have acceded to it, which is especially important for the United States (as well as Capo Verde and Venezuela), since these three nations are party to the Protocol without ever having signed the Convention. In this post, I will focus in particular upon the United States, which vigorously supported negotiations for the Convention (the accession to which failed to pass the Senate), and for the Protocol. The US finally acceded to the international legal regime by acceding to the Protocol, through a 98-0 vote in the Senate.
In the case of GRACE, et al., Plaintiffs, v. MATTHEW G. WHITAKER Acting Attorney General of the United States, et al., Defendants, Emmet G. Sullivan, United States District Judge issued a December 17, 2018 opinion that begins with the following statement: “When Congress passed the Refugee Act in 1980, it made its intentions clear: the purpose was to enforce the “historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” This reference to Congress’s “intentions” is one of 24 times that Judge Sullivan uses the term, suggesting the degree to which his ruling is rooted in the history of US accession to international refugee law. He refers to the 1967 Protocol as the basis for US law, noting 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.” The United States is bound to the protocol since 1968 because the administration of Lyndon B. Johnson (LBJ) was committed to acceding to international refugee law during the international year for human rights. That this UNESCO human rights initiative led to “disappointment and frustration” rather than great advances is highlighted by, for example, human rights violations in Vietnam that same year, including the infamous Mai Lai Massacre. Nevertheless, the Protocol was a serious commitment on the part of LBJ and his administration to addressing the challenges of displaced peoples from a human rights perspective. It followed a string of monumental efforts that led to the passage of the Nationality Act of 1965, the Civil Rights Acts of 1964 and 1968 (Fair Housing Act), and the Voting Rights Act of 1965. It’s difficult to truly understand how the Johnson Administration justified this schizophrenic relationship to civil and human rights at home and abroad, except to say that it is but one of many such examples of Cold War politics that found the US acting as though it was willing to completely exterminate its Soviet enemy, or else committed to setting an example for the entire world of restraint, liberalism and generosity.
I would suggest that Congress’s intentions in passing these Acts (including the 1980 Immigration and Nationality Act (INA), which adopts the spirt and the substance of the 1967 Protocol) are important today for historical, political and, moreover, legal ends. These realms history, politics and law come together for Judge Sullivan when he makes reference to intent: “The Board of Immigration Appeals (BIA), has also recognized that Congress’ intent in enacting the Refugee Act was to align domestic refugee law with the United States’ obligations under the Protocol, to give statutory meaning to our national commitment to human rights and humanitarian concerns, and to afford a generous standard for protection in cases of doubt.” Judge Sullivan’s reference to this “generous standard” is consistent with what American negotiators were saying at the time of their consideration of the Protocol (in the period from 1965-1968), and his understanding of who qualifies for asylum relates back to the language and meaning of that treaty: “Indeed, when Congress accepted the definition of “refugee” it did so “with the understanding that it is based directly upon the language of the Protocol and it is intended that the provision be construed consistent with the Protocol.”
What is “consistent with the Protocol”? Dean Rush presented before the Senate Executive K, 90th Cong., 2d Session a statement concerning the implications of the United States’ accession to the Protocol, in which he stated that it “would promote our foreign policy interests through reaffirming, in readily understandable terms, our traditional humanitarian concerns and leadership in this field. It would also convey to the world our sympathy and firm support in behalf of those fleeing persecution”. He added that a “succession of special refugee immigration measures enacted since 1945 has been the chief element in our country’s bi-partisan program for accepting refugee immigrants and according them status promoting their assimilation in the United States as citizens”. And “it is considered that the Protocol-having no cut-off date for eligibility-is more clearly applicable to current and future refugee problems, and thus provides a more effective basis for accomplishment”, thus strengthening the Convention as an instrument of the United Nations.
In “Refugee Problems Today”, in the November 14th, 1966 State Department Bulletin, James Wine weaves together a sense of universal rights, US interests, and a belief that helping the displaced is an official part of US’s stated objectives of advancing peace and the American Way:
There are the many unknowns who created no great works of art or scientific theories but simply wove themselves into the national fabric. They are the ones laboring in our great industrial centers, toiling on our farms, manning the many small businesses, and otherwise adding a productive ingredient into the economy. By peaceable and profitable assimilation, great advantages have been delivered over to their adopted society in social, political, and economic terms. There is a third positive factor — the enrichment of one culture by another, which helps to make us mutually aware of and to appreciate different customs, thoughts, and attitudes and thus perhaps to come closer to the realization of individual human worth. Thus out of the refugee’s problem, grievous though it is, some good can come, and we in the United States should know this best of all. Certainly refugees have greatly added to the flavor of American life. One could even say that some-for instance, Charley and Pete Gogolak-have given it an extra kick. We as an immigrant nation have seen that refugees can produce-can increase the stability and productivity of individual societies, thus contributing to an important prerequisite for world peace”. (753)
The extra “kick” refers to Pete Gogolak, who was a Cornell graduate and the kicker for the Giants. His younger brother, Charlie, a Princeton alumnus, did the kicking for the Redskins. Together, they kicked 14 extra points to set an NFL record.
Public hearings on the Protocol were held in Washington, DC, on September 20th, 1968. Mr. Laurence Dawson, Acting Deputy Director for the Office of Refugee and Migration Affairs in the Department of State was there, accompanied by Eleanor McDowell of the Treaty section. They appeared before Senator Sparkman and Senator Pell, and a transcription of their comments provides a sense of US State Department’s approach to the Protocol. Dawson noted that “there could be no doubt that resolving refugee problems through the Protocol, which is a universal covenant designed to secure necessary protection in asylum countries for those fleeing from their homelands because of persecution, and also, importantly, those rights which are necessary to their re-establishment as self-supporting members of other societies”. He then added, in concordance with the Secretary and the President, that “refugees in the United States have long enjoyed the protection and rights which the protocol calls for, on at least a basis equal to that which signatories to the protocol would undertake to implement for refugees within their respective territories”. The US must accede in order to help refugees, he continued, because the accordance of these rights “are in all cases the difference between the opportunity to live in dignity as a decent, self-supporting, self-respecting human being, or else in the absence of such opportunity, to languish in camps or otherwise in a state of dependency.” Referencing the significance of signing in 1968, he notes that “our accession would convey to the rest of the world in a timely and conspicuous manner, and I cannot think of a more timely opportunity, the image of our traditional concern for refugees and for the individual human being which have long been embodied in our laws and consecrated in our traditions”. Indeed, “the United States is in a real sense a pioneer in the field of rights for refugees”, and “through consistently wise and farsighted action on the part of Congress, strongly supported by successive Administrations, virtually all of the rights embodied in the Convention and Protocol have been accorded since 1945 to refugees in this country”. In short, he concluded, “the Department of State is convinced that United States accession to the Protocol Relating to the Status of Refugees would enhance our foreign policy interests and our world image of humanity and concern for the individual”.
In response to questions from Senator Sparkman regarding the value of US accession if it already assists refugees, Eleanor McDowell reiterated the State Department’s sense of the US’s role in the world: “It has become important, more important to us, to project abroad the image of our own liberal practices in this country”, and to “use our influence” to encourage liberalism in other countries. Senator Sparkman then asks if the US is already admitting refugees, and what is the point in signing the Protocol. Again, the response is telling:
We think that the foreign policy interests that would be inherent in our accession form the basis for our strong recommendation that the United States accede. Those foreign policy interests are that they extend the image of the United States as a nation concerned with the persecuted and with the individual at a time when this is ever more important. Secondly, that it will enhance our diplomatic competence and our diplomatic effort to try to produce more and better acceptance of humane and civilized standards in other countries for refugees. These conduce to solutions to refugee problems and solutions to refugee problems conduce solutions to broader problems and to the removal of tensions and in the end to the preservation of peace.” (10)
Working towards the removal rather than the production of tensions is a salubrious point to be making a few days after the grizzly and frightening murder of 50 Muslims by an avowed neo Nazi in New Zealand who found affinity with groups and individuals that foster resentment and resistance to integration and harmony amongst groups.
President Johnson submitted the Protocol to the US Senate in August 1968, and on October 4th, it was ratified by unanimous vote. Johnson explained the meaning of this new treaty: “The Protocol constitutes a comprehensive Bill of Rights for refugees fleeing their country because of persecution on account of their political views, race, religion, nationality, or social ties …. Foremost among the humanitarian rights which the Protocol provides is the prohibition against expulsion or return of refugees to any country in which they would face persecution. Through a number of other specific guarantees, refugees are to be accorded rights which–taken together–would enable them to cease being refugees, and instead to become self-supporting members of free societies, living under conditions of dignity and self-respect.”
Representative to the UN, Ambassador James R. Yiggins, deposited the United States accession to the Protocol to the UN Secretary General U Thant. In so doing, he spoke of the more than one million refugees who had been admitted to the US since World War II, of America’s extension to refugees of those rights which the Protocol is intended to guarantee, and of the appropriateness of the US accession in the year set aside by the UN as an International Human Rights Year. Present at the ceremony were representatives of many voluntary organizations concerned with the welfare of refugees, which had urged United States accession to the Protocol, including the American Council for Nationalities Service, the American Council of Voluntary Agencies for Foreign Service, and the American Immigration and Citizenship Conference. Speaking to them, Ambassador Wiggins said that “No small part of US aid to refugees both here and overseas is due to the work of the organizations you represent. They have been indispensable partners in this humanitarian enterprise.”
In his 2018 decision in Grace v Whitaker, Judge Sullivan unequivocally states that “in interpreting the Refugee Act in accordance with the meaning intended by the Protocol, the language in the Act should be read consistently with the United Nations’ interpretation of the refugee standards.” He also insists that “the clear legislative intent to comply with the Protocol and Congress’ election to not change or add qualifications to the U.N.’s definition of ‘refugee’ demonstrates that Congress intended to adopt the U.N.’s interpretation of the word ‘refugee.’” The president cannot unilaterally alter US’s international obligations under the Protocol, although congress could if it so decided: “The Court also notes that domestic law may supersede international obligations only by express abrogation, Chew Heong v. United States, 112 U.S. 536, 538 (1884), or by subsequent legislation that irrevocably conflicts with international obligations, Reid v. Covert, 354 U.S. 1, 18 (1957).” “Congress,” notes Judge Sullivan, “has not expressed any intention to rescind its international obligations assumed through accession to the 1967 Protocol via the Refugee Act of 1980”. To ascertain just what these definitions are, and to assert a proper set of interpretations of US obligations in regards to the Protocol, Judge Sullivan makes important references to the intentions of Congress and to the Protocol, which means that we must consult the travaux. Interestingly, he also reference to the Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”).
In the next of this series of blogs, we’ll follow Sullivan’s lead by considering some of the challenges now before the courts, and how the Protocol’s travaux could be employed to meet them. We will then supplement this examination of the Protocol’s travaux by examining the Handbook, and the context within which it was drafted. As we’ll see, the Handbook and its travaux provide support for a human rights-based approach to asylum seekers, rather than one that emphasizes security and the perilous dehumanization of the other.
Robert F. Barsky is a Professor of Law, French, English, and Jewish Studies at Vanderbilt University.
 Submitted by Dean Rush to Senate Exec. K, 90th Cong., 2d Session). In Contemporary Practice of the United States Relating to International Law. The material for this section is compiled by Stephen L. Gibson, Special Assistant to the Legal Adviser, Department of State. Bruno A. Ristau, of the Department of Justice, provides material originating in that Department. 63 Am. J. Int’l L. 121 (1969)
 55 Dep’t St. Bull. 729 (1966).
 Report submitted by Mr. Sparkman, from the Committee on Foreign Relations, to the 90th Congress’s 2nd Session (September 30, 1968)
 Press release, American Council for Nationalities Service, November 15th, 1968.