Sunday, March 10, 2019
Professor Robert Barsky is engaged in a wide-ranging project on the Travaux for the 1967 United Nations Protocal Relating to the Status of Refugees. Early and summary findings can be found in his blog posts in the Yale Journal on Regulation, with more to follow.
"The international refugee law regime wasn’t supposed to be like this, and I believe that the Travaux for the 1967 Protocol can help us make the case that current policies violate the intent of the many countries who acceded to that treaty, in particular in the case of the United States. The memos, letters, minutes and handwritten notes that make up the Protocol’s Travaux confirm the intention of the negotiators to broaden the refugee protections named in the 1951 Convention beyond the elimination of the timeline and the emphasis upon Europe. These Travaux can be used to bolster the efforts of those who wish to challenge efforts to restrict vulnerable people’s access to international protection."
I have amassed close to a thousand pages of letters, minutes of meetings, memos and reports that from repositories of the UNHCR, the Rockefeller Foundation, the Carnegie Foundation, the Swiss archives, as well as various university library repositories. They offer precise details concerning the negotiations that produced the 1967 Protocol to the 1951 Geneva Convention, negotiations that are far more complex than what is generally reported, notably that the 1967 Protocol removed the temporal (pre-1951) and spatial (Europe) limitations imposed in the text of the Convention. Taken as a whole, these documents provide fascinating insights into the drafting history of the Protocol, revealing that the framers of that treaty (13 experts who met up in Bellagio’s Villa Serbelloni in 1965) and, subsequently, officials from UNHCR, were grappling with complex issues regarding international law including the challenge of bringing the United States, which was not signatory to the original Convention, into the universal refugee law regime. These documents bear witness to the high stakes of these negotiations, and since they provide the rationale and intended purpose of the Protocol, they describe a fascinating example of treaty making and, moreover, I believe that they can be treated as travaux préparatoires. If so, then they may be extremely valuable for lawyers who are challenging the growing array of assaults against refugee rights of those countries that signed it. In the context of the United States, I would suggest that because the US never signed the Convention, that the Protocol’s travaux are particularly valuable. The December 2018 decision in Grace v Whitaker, in the DC District Court, provides language to support such a claim."