Asylum law in the United States can be traced to the United Nations in 1950 through Resolution 428(V), as another post describes. That Resolution established the UNHCR. It also expressed the policy priorities the UN expected from its member states concerning the protection of refugees. The following year, in 1951, the UN’s member states—including the United States—entered the Convention Relating to the Status of Refugees (1951 UN Convention). This post takes a look at that agreement, and how it served as a foundation for subsequent domestic U.S. legislation on asylum.
The 1951 UN Convention came into force on April 22, 1954 and was originally intended to address the flight of persons in the aftermath of the Second World War. It has only been amended once—through the 1967 United Nations Protocol Relating to the Status of Refugees (1967 UN Protocol), which removed the Convention’s geographic and temporal limitations. The 1967 UN Protocol gave the Convention universal coverage. See Introductory Note, 1951 UN Convention at 2.
The United States did not sign the 1951 UN Convention, and so that Convention’s provisions are not binding on the country. But the United States agreed to the 1967 UN Protocol—and that Protocol incorporated Articles 2 through 34 of the Convention.
Congress eventually adopted into American law certain terms directly from the 1951 UN Convention, including the definition of ‘refugee’ and the principle of non-refoulment.
Establishing the definition of refugee and principle of refoulment
The first definition Congress incorporated directly from the 1951 UN Convention concerned what it means to be a ‘refugee.’ The Refugee Act of 1980 used language from Article 1 in the 1951 UN Convention, which remains effective today in 8 U.S.C. § 1101(a)(42).
Congress also reflected the 1951 UN Convention’s principle of non-refoulment from Article 33 of the Convention into 8 U.S.C. § 1231(b)(3). Non-refoulment is a foundational principle of asylum law—it establishes that countries shall not return a refugee to her country of persecution unless he or she has been convicted for a serious crime, among other reasons. The 1951 UN Convention states:
Article 33 Prohibition of expulsion or return (“refoulement”)
1. 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.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.1951 UN Convention at 30
By comparison, the corresponding provision in 8 U.S.C. § 1231(b)(3) provides (emphasis added):
(3) Restriction on removal to a country where alien’s life or freedom would be threatened
(A) In general. Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1231(b)(3)
In addition to the 1951 UN Convention’s Articles on the definition of refugee and non-refoulment, the Convention also referred to other rights that eventually were incorporated into the 1967 Protocol, to which the United States consented. Those rights include, among others:
- Favorable treatment regarding wage-earning employment (Article 17);
- Favorable treatment, or at least parity, regarding housing (Article 21);
- Same treatment on public education, at least regarding elementary school (Article 22);
- Same treatment regarding public relief as countries afford to their nationals (Article 23);
- Same treatment regarding labor legislation and social security (Article 24);
- Free movement within the territory, subject to the same restrictions as other aliens generally (Article 26);
- Travel documents for travel outside the territory, unless compelling reasons of national security or public order otherwise require (Article 28); and
- Prohibitions on penalizing refugees for their illegal entry or presence (so long as they present themselves to authorities with good cause and without delay) (Article 31);
Later posts will discuss the extent to which Congress has formalized those provisions from the 1967 UN Protocol/1951 UN Convention into rights for refugees and asylees on American soil. But some courts have recognized those provisions’ influence. For example, U.S. Supreme Court has explained “one of Congress’ primary purposes in passing the Refugee Act was to implement the principles agreed to in [the 1967 UN Protocol],” INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999). Accordingly, U.S. courts have relied on the UN’s guidance on the 1967 Protocol when interpreting certain facets of domestic asylum law. See, e.g., Zhang v. Gonzales, 426 F.3d 540, 549 n. 8 (2d Cir. 2005) (“The UN Handbook does not carry the force of law but ‘provides significant guidance in construing the [1968 United Nations] Protocol [Relating to the Status of Refugees], to which Congress sought to conform’ in enacting the asylum-related provisions of the INA.”) (quoting Osorio v. INS, 18 F.3d 1017, 1027 n. 4 (2d Cir.1994); INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987).