The U.S. law on asylum can be traced back to developments in international law after World War II. Today, international sources might still be relevant—U.S. courts and executive agencies like the Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services (USCIS) might consider international sources for guidance on how to interpret local statutes. Some courts also assign international sources some interpretive weight. This article examines two international frameworks—the UN’s Resolution 428(V), and the Convention Relating to the Status of Refugees in 1951 (1951 UN Convention)—which informed the asylum legislation eventually passed in the United States.
After World War II displaced millions of people, the United Nations (UN) passed the General Assembly Resolution 428 (V) of 14 December 1950, which created the Office of the United Nations High Commissioner for Refugees (UNHCR). The UNHCR’s was founded with the goal of protecting refugees: to “provid[e] international protection, under the auspices of the United Nations, to refugees[; and] … seek permanent solutions … to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.” See id. at 8.
The UN first intended to disband UNHCR by 1954, but instead it continued the UNHCR’s work. In 1956, the UNHCR led efforts to resettle 200,000 Hungarians in Austria after the Hungarian Revolution. In the 1960s, the UNHCR assisted with the refugee crises resulting in the African continent’s decolonization. In the 1970’s and 1980’s, the group helped refugees across Asia and Latin America. The UNHCR won its first Nobel Peace Prize in 1954, and its second in 1981. See UNHCR, History of the UNHCR.
The UNHCR has also grown in scale. The organization with a budget of USD $300,000 and a staff of 34 people, but today its staff numbers more than 5,500 in more than 116 countries, with an annual budget of more than USD$ 1 billion. See Martin Gottwald, “Competing in the Humanitarian Marketplace: UNHCR’s Organizational Culture and Decision-Making Processes”, UNHCR (DDES), New Issues in Refugee Research (2010, Research Paper No. 109) at 12.
Resolution 428(V)’s Requirements
In addition to creating the UNHCR, the UN’s Resolution 428(V) established certain policy expectations from member states, including the United States. Those requirements informed how the U.S. developed its law on asylum. Resolution 428(V) required its member states to:
(a) Become parties to international conventions that protect refugees, and to implement obligations under those conventions;
(b) Enter into special agreements with the UNHCR to help improve the refugees’ situation and decrease the numbers of those needing protection;
(c) Admit refugees into member states’ territories, even if those refugees might be considered destitute;
(d) Assist the UNHCR in its efforts to promote the voluntary repatriation of refugees;
(e) Promote refugee assimilation into member states, including through naturalization;
(f) Provide refugees with travel documents, and other documents that would otherwise be provided to those individuals by their home countries, especially documents needed to facilitate resettlement in their new home countries;
(g) Permit refugees to transfer assets, especially those necessary for their resettlement; and
(h) Provide the UNHCR with information on the number and condition of refugees, and on the domestic laws concerning them.
G.A. Resolution 428(V) at 6-7 (emphases added).
The 1951 UN Convention
After Resolution 428(V), in 1951, the UN adopted the Convention Relating to the Status of Refugees (1951 UN Convention). Among the Convention’s other significant terms, Article 1 officially defined “refugee”:
“(2) As a result of events occurring before 1 January 1951 and owing to 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.”1951 UN Convention at 14.
The 1967 UN Protocol, to which the U.S. was a signatory, eventually adopted the definition above. To comply with the 1967 UN Protocol’s terms, the U.S. Congress then enacted a similar definition in the Refugee Act of 1980:
(42) The term refugee means  any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion …Refugee Act of 1980
The 1951 UN Convention—and the U.S. Refugee Act of 1980, which it influenced—thus both set the cornerstone factors for refugee status:
(1) a well-founded fear;
(2) of being persecuted or of persecution;
(3) due to race, religion, nationality, membership in a particular social group, or political opinion; and
(4) the inability or unwillingness to avail of protections from the person’s home country due to such fear of persecution.
Table of Authorities
- Refugee Act of 1980
- United Nations Convention Relating to the Status of Refugees (1951 UN Convention)
- United Nations General Assembly Resolution 428 (V) of 14 December 1950
- UNHCR, History of the UNHCR
- Martin Gottwald, “Competing in the Humanitarian Marketplace: UNHCR’s Organizational Culture and Decision-Making Processes”, UNHCR (DDES), New Issues in Refugee Research (2010, Research Paper No. 109)