International organizations were born in the aftermath of devastating world wars. Nations set up international institutions and covenants, seeking to never repeat the devastation arising out of those wars. But first, they had to tackle an unprecedented mass displacement crisis. Due to warfare, destruction, and persecution, millions of people were driven out of their homes.
The 1951 Refugee Convention (“Refugee Convention”) was one of the first international conventions drafted and discussed at the United Nations. But it was unlike the Universal Declaration of Human Rights (UDHR) adopted just three years before it. The UDHR is broad and expansive, setting out fundamental human rights to be observed and promoted by all nations, for all humans. In contrast, the Refugee Convention is stringent and particular.
The Refugee Convention was amended by the 1967 Protocol. Change was prompted by a wave of independence from colonial powers. And while it expanded protections, the promise of universal protection is unrealized without actual implementation. This backgrounder describes the history of the refugee definition through the Refugee Convention and the 1967 Protocol and how the United States implemented them.
Before 1951
Before the 1951 Refugee Convention, international agreements on the care and protection of refugees focused on specific nationals. The 1933 Convention relating to the International Status of Refugees applied to only Russian and Armenian refugees, and the 1938 Convention protected only refugees from Germany (and later, Austria).
In 1943, the United Nations Relief and Rehabilitation Administration (UNRRA) was created to provide aid to displaced persons. It had no limitations and could provide aid to all victims of war. UNRRA assisted people in Europe, the Middle East, Asia, and Africa. But when the International Refugee Organization (IRO) absorbed most of UNRRA’s responsibilities in 1946, its services were limited to refugees who were fleeing Nazi persecution, fascist regimes, and the Falangist regime in Spain, in addition to 1933 Convention refugees.
The IRO was meant to end operations on June 30, 1950. But new refugees from Central and Eastern Europe prompted the UN Economic and Social Council (ECOSOC) to study and write a report on stateless persons (refugees were considered to be de facto stateless) and the desirability of an international refugee convention. The study estimated that there were approximately 1.6 million refugees in Europe as a result of World War II, but other estimates place the number at 12.5 million refugees. Refugees in Asia were not systematically studied but estimates of internally displaced Chinese nationals range from 45 to 100 million. The study recommended that refugees and stateless persons be afforded a legal status, and that an international organization be tasked to serve and protect them.
The Drafters of the Refugee Convention
The UN formed an Ad Hoc Committee tasked with drafting the convention. Drafters included representatives from Belgium, Brazil, Canada, China, Denmark, France, Israel, Turkey, the United Kingdom (UK), the United States, and Venezuela. International and non-governmental organizations attended with observer status. Unfortunately, displaced persons were not formally consulted. As scholars point out, most of the drafters were from highly industrialized, colonial powers. The delegations had an interest in protecting their own sovereignty, maintaining their economic status, and restraining the increasing power of international organizations.
“Events occurring before 1 January 1951”
The drafters debated on using a universal refugee definition—one without time or nationality limitations. A universal definition would be adaptable to future refugee crises. A bloc of countries led by the United States was against it. The United States argued that the categories of protected refugees should be clearly enumerated and limited. The United States expressed concern for the inclusion of Palestinian refugees already protected under UN mandate and “the very numerous Kashmiri and Indian refugees.”
A group led by France and the United Kingdom proposed to craft a universal definition that would provide protection to new refugees. The French delegation warned that anything otherwise would authorize “discrimination among refugees, certain groups of which would be protected to the exclusion others.” The French delegation also pushed for a refugee definition that referenced Article 14 of the UDHR—the right to seek asylum. Other countries were against including it, so as to not imply an absolute right to asylum.
Other displaced populations—such as internally displaced and stateless persons—were also excluded. Because not all stateless persons are refugees, delegates felt that there was no need to address the problem of statelessness at large. Instead, they wanted to focus on refugees, which they decided was the priority. The United States, France, and the UK also wanted to exclude internally displaced persons.
Article I of the Refugee Convention defines refugees as individuals outside of their country of nationality or habitual residence with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion “as a result of events occurring before 1 January 1951.” The Refugee Convention became, in effect, time limited and of little future utility.
Countries, when signing onto the convention, had the option of further limiting protections to individuals displaced as a result of “events occurring in Europe before 1 January 1951,” despite the fact that millions of people were displaced in war-torn Asia and persecuted in colonial Africa. France, although it had advocated for a universal refugee definition, took the option of further limiting protections until 1971.
While the refugee definition did not automatically include future refugees, the Refugee Convention succeeded in creating an international system of protection for a category of refugees. And despite the United States’ position during drafting, it provided ad hoc protection to refugees not included in the Refugee Convention.
The United States’ Ad Hoc Approach
The United States did not sign onto the 1951 Refugee Convention. President Truman never presented it to the U.S. Senate for ratification, but he pushed for legislation to admit refugees and supported UN assistance to refugees.
In the 1952 Immigration and Nationality Act, refugee specific provisions were not included. The law retained a racialized quota system, which restricted immigration originating outside of Western Europe. But refugees were still admitted using ad hoc measures and executive parole authority. The Refugee Relief Act of 1953 allowed 214,000 refugees, mostly Europeans fleeing Communist expansion and 5,000 refugees from the Far East, to enter. Also, the Azorean Refugee Act of 1958 allowed refugees fleeing natural disaster entry into the United States.
In 1965, Congress amended the Immigration and National Act to move away from the quota system, which had dominated U.S. immigration policy. The Act added a provision for refugees, defining refugees as people fleeing communist countries or the Middle East (the area in between and including Libya, Turkey, Pakistan, Saudi Arabia, and Ethiopia) due to fear of persecution on account of race, religion, or political opinion. The Act also included people “uprooted by catastrophic natural calamity.” The Act authorized up to 17,400 refugees to enter each year.
1967 Protocol: Moving Towards a Universal Definition
At the international level, the 1967 Protocol removed the temporal limitation of the refugee definition, transforming the Refugee Convention from a time-specific tool to a universal ideal.
The need for a new refugee definition became a priority for the UN after French colonies declared independence and pushed for revisions. Refugee law experts were invited to a Colloquium to propose solutions to new and future refugee situations. Again, refugees and directly impacted people were not invited to the drafting process.
The Colloquium proposed to remove the dateline from the refugee definition. And while it debated removing the “events in Europe” language, it did not. Countries who initially opted into this limitation could keep this language, but new signatories had to adopt a universal definition, free of time and geographic bounds.
The United States acceded to the 1967 Protocol, which also incorporated the 1951 Refugee Convention.
U.S. Implementation of the Universal Definition
The United States did not adopt a comprehensive refugee framework until the 1980 Refugee Act. The Act utilized the 1967 Protocol amended definition of a refugee, one without temporal and geographical limitations.
Congressional hearings exposed tensions between a desire to admit refugees solely on the basis of recognized human rights and a desire to reserve spots for refugees of “special concern”—or from displacement situations that were impacted by U.S. political involvement. Examples provided at the time were refugees from Cuba, Eastern Europe, and Indochina—places where the United States had intervened militarily. The final bill authorized the President to allocate refugee admissions to individuals of “special humanitarian concern” and included executive authority to admit additional refugees in emergencies. Allocation, therefore, could be based on a combination of humanitarian, foreign policy, and national security interests.
A floor amendment added a provision for “presidentially specified persons” to be admitted as refugees, even if they have not fled a border. At the time, Congress was concerned with the ability to provide protection for people displaced internally. Examples provided at the time were arbitrarily detained persons in Argentina, Cuban political prisoners, and people seeking evacuation from the fall of Saigon.
The 1980 Refugee Act was transformative, not only because the United States adopted the 1967 Protocol refugee definition, but because it created a permanent administrative system for refugees to be processed, admitted, and supported. Before the Act, refugees were admitted on an ad hoc, emergency basis. In contrast, the U.S. Refugee Admissions Program (USRAP) created order and predictability that allowed communities, cities, and states to welcome new Americans. In building up USRAP, the United States established itself as a global leader in refugee resettlement. With the United States as a reliable participant, other countries were willing to work in tandem to ensure global stability.
A Universal Definition That Is Not Universally Implemented
Ultimately, refugee policy is interpreted and implemented by each country. The UN High Commissioner for Refugees (UNHCR)—the UN agency that protects refugees—can provide legal and technical guidance, but it cannot sanction countries who restrict refugee protection. Although the refugee definition provided by the Refugee Convention and 1967 Protocol is incorporated into U.S. law, restrictive interpretations by the Executive Branch have prevented women, LGBTQ+ individuals, and others from receiving protection. UNHCR’s position is that the refugee definition can cover individuals from many additional groups. But UNHCR guidelines are not binding, and UNHCR cannot punish a country for disregarding their guidance.
The Refugee Convention was born out of a revolutionary time of international coordination. Countries recognized the need for collective action when they were faced with an unprecedented mass displacement crisis after two world wars. Today, the world is facing a similar challenge. Over 120 million people are forcibly displaced, and refugee warehousing due to protracted displacement is impacting multiple generations. Some people debate whether the world needs a new convention. But in the meantime, we should do right by the refugees who are waiting for protection and highlight the intended flexibility of the current refugee definition. Persecution is, regrettably, timeless and diverse. Refugee protection should be, as well.
