July 27, 2021
The 1951 Refugee Convention is a landmark international treaty that defines what it means to be a refugee, as well as the rights of—and legal obligations toward—people who have been forcibly displaced across borders. But seventy years on, the Convention deserves scrutiny, as the world grapples with new drivers of mass displacement.
Refugees International hosted a conversation on the seventieth anniversary of the 1951 Refugee Convention. How are governments interpreting their obligations under the Convention today? Does the Convention adequately address forced displacement resulting from natural hazards, often exacerbated by climate change, gang violence, gender-based violence, and trafficking? Should governments and international organizations be doing more to protect people forced to flee their homes and by what means? How can displaced people themselves be more meaningfully included in decision-making on these issues?
U.S. Representative Joseph D. Neguse, co-chair of the Refugee Caucus and Vice Chair of the Immigration Subcommittee
Harold Hongju Koh, Sterling Professor of International Law at Yale Law School and Senior Advisor, Office of the Legal Adviser, U.S. Department of State.
Eric Schwartz, president of Refugees International
Mustafa Alio, co-managing director of Refugees Seeking Equal Access at the Table (R-SEAT)
Rez Gardi, co-managing director of Refugees Seeking Equal Access at the Table (R-SEAT)
Yael Schacher, U.S. senior advocate at Refugees International
Hello everyone. I’m Eric Schwartz, and I’m the president of Refugees International. Tomorrow marks the 70th anniversary of the adoption of the 1951 Convention relating to the status of refugees. We are delighted to have you join us today for our commemoration of this event and discussion of the implications of the convention and the 1967 refugee protocol. By their terms, the convention and its protocol aspire to provide protection to those who have fled their countries of origin and have well-founded fears of persecution based on race, religion, nationality, membership in a social group, or political opinion. But the convention has also served as a critical guidepost to assess both progress and failures in the effort to protect those who must flee. And as some 80 million people worldwide are now displaced due to persecution, due to violations of human rights, due to conflict, and as the world grapples with new drivers of forced displacement, the convention merits our scrutiny.
For this reason, we are delighted to host this event, featuring the honorable Harold Hongju Koh, who is currently senior advisor to the State Department’s Office of the Legal Advisor. Harold, whom I will introduce shortly, will offer remarks and then have a brief discussion with the distinguished panel. If, and as our time permits, we will also field questions from our audience. But first we will have the pleasure of hearing from U.S. Representative Joseph D. Neguse of Colorado who will join us by video. Representative Neguse, whose parents fled Eritrea in the early 1980s, now serves as vice chair of the House of Representatives Judiciary Subcommittee on Immigration and Citizenship. He has been strong advocate for the protection of people around the world who have fled persecution and violence. It is my honor to introduce Representative Joseph Neguse.
Hi, my name is Joe Neguse, and I have the honor of representing Colorado in the United States Congress. I’m so honored to join you for this virtual event on the 70th anniversary of the Refugee Convention. And I want to give a big thank you to Refugees International for your consistent, passionate work in advocating for life-saving assistance, human rights, and protection for displaced peoples. At a time when the international community’s ability to respond to these crises is stretched so thin, your powerful advocacy is more important than ever. And your voice, your expertise is crucial as we work to repair America’s moral authority on refugee resettlement in the wake of the Trump administration’s full-scale assault on our American ideals. America has long been a beacon of hope to refugees around the world, including to my own family. This is part of our legacy as a country and one we must continue to protect and uphold.
My parents came to the US over 40 years ago, fleeing a war-torn country in East Africa. They became naturalized citizens and they never took for granted the freedoms and the opportunities that the United States gave them and their children. They were able to make a home in America. Able to offer me and my sister a life full of opportunity, safety, and security because of the core value and promise that America was founded on, to accept those uprooted by war, and persecution, and violence. We have to ensure that this promise remains attainable always to other immigrants and other refugees like my parents. As you know while in office, President Trump set historically low targets for refugee admissions, abandoning America’s commitment to those that need us most. That is not a legacy that we can continue.
As the co-chair of the Bipartisan Refugee Caucus, I have joined with my colleagues in imploring President Biden and his administration to raise US refugee admission targets from the historically low levels set under President Trump. I’m grateful that President Biden has begun to make progress in this regard, but there remains more work to be done. We can once more lead the world in refugee resettlement and stand firm in our values of compassion, of offering shelter and safety to those around the world fleeing from unfathomable harm and violence. This issue is a personal one for me and my family, and as long as I’m in Congress, I’ll continue to advocate for the rights of refugees seeking shelter in our country. Thank you to Refugees International for inviting me to share my story with all of you, and for giving me the chance to discuss how I think that we can improve our treatment of refugees through congressional leadership. I wish you the best for a spirited panel discussion, and I’m grateful again for the work that you are doing to support and advocate for refugees. Thanks so much.
Thank you, Representative Neguse for those really meaningful remarks. It is now my distinct pleasure and honor to introduce State Department Senior Advisor, Harold Hongju Koh, whom we’ve asked to deliver keynote remarks on the convention. I could spend the rest of the hour on Harold Koh’s biography, a Sterling Professor of International Law at Yale Law School and former dean of that institution, former State Department legal advisor, former assistant Secretary of State for democracy, rights, and labor, and one of the country’s leading experts on public international law. I will also take a moderator’s prerogative to note that I’ve worked closely with and across from Harold Koh, I think for about 30 years. In fact, back in 1992 when I was a staff consultant on the House Foreign Affairs Committee, Harold Koh testified and advocated on behalf of the International Refugee Protection Act, which my boss at the time, Steve Solarz had sponsored in response to the George H. W. Bush Kennebunkport Order restricting entry of Haitian refugees.
And I had the distinct pleasure of working with Harold in both the Clinton and Obama administrations. After Senior Advisor Koh offers his remarks, we’ll have a panel with three distinguished guests, Mustafa Alio, Rez Gardi, and Yael Schacher, whom I will introduce in greater detail after Senior Advisor Koh completes his remarks. So it is my distinct pleasure to introduce the honorable Harold Hongju Koh.
Harold Hongju Koh:
Thank you, Eric. On behalf of the Biden-Harris administration, I want to thank Dean Eric Schwartz, who as he mentioned is my long time brother in the foxhole and your invaluable organization, Refugees International, to give me this opportunity to reflect on the Refugee Convention at 70. For me, this 70th anniversary, which as you mentioned we mark tomorrow, is both a personal and professional milestone for me. It’s a personal one because the lifetime of the convention has encompassed my own lifetime dating back to the ’60s when America took in my late father, a political refugee from South Korea, when the Democratic government was deposed by a military coup. He served the Democratic government and was exiled to the United States, which gave him political asylum, and which made my life in America possible.
It’s a professional milestone because of the years I’ve spent both inside and outside the government fighting to enforce the convention’s provisions. America’s profound refugee legacy includes so many refugee offspring like Representative Neguse who have supported your cause these many years. And so many like me who have been moved by the gift we’ve received from the convention to try to repay our debt through government service around the world. As Eric mentioned, this is my fourth time in the U.S. Government and my fifth decade working on refugee issues. I started in the ’80s at the Office of Legal Counsel at the Justice Department. Second, in the ’90s, litigating against the U.S. Government on behalf of Haitian and Cuban refugees, and working with Eric at the House Foreign Affairs Committee, later as Assistant Secretary for Democracy, Human Rights and Labor in the Clinton administration, working hand in glove with Eric when he was Senior Director of Humanitarian Affairs at the National Security Council.
In the 2000s and 2010s, we were both at the State Department, Eric at the Refugee Bureau and I as legal advisor under President Obama and then Secretary Hillary Clinton, working to promote United States’ adherence to our convention obligations. Today in 2021, I speak as senior Biden appointee currently at the same office of the legal advisor describing our efforts in these first 200 days to advance the sound development of international law and the practices taken pursuant to the protocol. Let me do two things on this 70th birthday, first, celebrate the historic accomplishments of the convention as landmark events in international law, but the convention and the protocol were watershed achievements that continue to guide the international community in its approach to refugee crisis.
Second, let me reaffirm a basic reality that I hope is evident to all of you. The Biden-Harris administration is committed to restore America’s highest values to the center of our foreign policy and to offer reassurances to persecuted people. We will protect vulnerable people. Even in this time of challenge and stress under the Biden-Harris administration, the U.S. is determined to alleviate the suffering of refugees globally through leadership and refugee affairs. Whether that means refugee resettlement, promoting durable solutions for refugees, providing humanitarian assistance and diplomacy, improving refugee protection, or upholding our international legal obligations. Let me speak first about the achievement. 70 years after the fact, international lawyers sometimes forget what a stunning advance in international law this treaty marked.
Like earlier efforts, the ’51 convention was directed to fix a particular problem. It was adopted after World War Two when the international community was confronting a massive refugee crisis but for refugees of European origin. In the preceding decades, a handful of ad hoc movements had sought to address specific refugee situations such as persons displaced from the former Ottoman Empire, the USSR, or Nazi Germany. But while these efforts furthered the idea of international protection persecuted groups, their scope was narrow, not global. They applied only to specific national, ethnic, or religious groups, or to those who had been displaced from a particular country. Indeed, even the predecessor organization to the UN High Commissioner for Refugees focused only on displacement of the Nazis and the fascists as well as other people who were considered refugees before World War Two.
So the original convention was narrowly drawn, it had temporal limits. To be a refugee, an individual had to have been displaced because of events occurring before January 1, 1951. It had geographic limits. State parties could, if they wanted, only treat persons as refugees if they had been displaced by events that occurred in Europe. But the core concept of the convention were global and groundbreaking. It was negotiated by delegates from 26 countries from every continent. And 16 years later, the 1967 protocol eliminated these temporal and optional geographic limitations. Today’s convention is capacious, inclusive, and global in focus and scope. 149 countries are now party to the convention or protocol. The UN High Commissioner on Refugees is currently working in 132 countries, some of which are not even parties to the convention or protocol demonstrating the convention’s global normative impact.
The two great intellectual advances of the convention were Article one, this remarkably broad and forward-looking definition of refugee, and Article 33, the non-refoulement provision, the historic protection against refoulement, the forced return of rescues to their persecutors. Accompanied by a set of core civil, political, economic, social, and cultural rights and protections designed to increase based upon a refugee’s level of attachment to the state in which they were located. As Eric mentioned, the convention’s first article defines a refugee as someone outside the country of his or her nationality, who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and is unable or owing to such fear, unwilling to avail himself or herself of the protection of that country.
The advantages, unlike earlier efforts, this forward-looking definition was not restricted by national or ethnic group. It was not limited to people fleeing specific persecutors. The drafters declined to define and limit the scope of what would qualify as either political opinion or a particular social group. So this broad definition of language as supplemented by the ’67 convention has, over the decades, enabled the convention to adapt to changing circumstances and to become even more central to the international system protection today than it was at its adoption. The core of the Article 33, non-refoulement provision was simple and clear. As my late boss Harry Blackmun put it in the Haitian refugee case, “Vulnerable refugees shall not be returned.”
This bedrock principle of non-refoulement has guided international responses to crises recently in Burma, Syria, Congressman Neguse’s home country of Ethiopia and elsewhere requiring continued vigilance and support to refugee-hosting countries. I’d love to say that the decades since 1951 have been years of unbroken progress. But as everyone here knows, we observed the sobering anniversary while we’re experiencing the highest displacement worldwide ever recorded. As of 2020, more than 82 million people were forcibly displaced, of whom more than 26 million were refugees. Plainly, the convention cannot and has not been a cure all for the global displacement crises. By only addressing refugees across borders, the convention famously did not purport to address persons who are internally displaced or displaced solely for reasons other than persecution, for example, by war, generalized violence, natural disasters, climate change, or dire economic circumstances.
Although the convention’s preamble recognizes that durable solutions require international cooperation, the convention creates no burden-sharing mechanism or obligation. As time has gone on, new and unanticipated sources of upheaval including COVID-19, protracted conflicts, accelerating impacts of climate change, have made this a time of historic global displacement. Given these challenges, Eric, your work and that of Refugees International, other refugee organizations and all who support these organizations in enforcing the centrality of the Refugee Convention and Protocol has never been more vital. Which brings me to the second half of these remarks. Given these enormous challenges, how is the Biden administration working in its first months to restore and strengthen our leadership in four vital areas? One, refugee resettlement. Two, humanitarian assistance and diplomacy. Three, protection, and four, long-term solutions.
Let me say a word about each. First, refugee resettlement. The Biden administration has continued to significantly increase refugee resettlement to the United States, in particular, settlement of refugees from Central America. At state the Bureau of Population, Refugees, and Migration, which Eric led so ably, heads in humanitarian response to refugee and migration crises, including by managing the U.S. Refugee Admissions Program in coordination with DHS and HHS. In so doing, U.S. domestic treatment of refugees and asylum seekers strengthens U.S. Humanitarian leadership globally, modeling good practice, and, we hope, persuading other governments to strengthen their own protection policies. As everybody knows, after four dark years, the US is finally taking up the mantle of leadership on refugee resettlement again, including through the US Refugee Admissions Program, which has settled more than 3.1 million refugees since 1980.
We’ve already taken the critical steps of raising the annual refugee admissions target to 62,500 for fiscal year 2021, and restored regional allocations for resettlement to ensure that access to that program is based on refugee vulnerability. We’re trying to build a system that responds effectively to emergency need for resettlement across all regions of the world, and that reflects the U.S. tradition of welcoming and not scapegoating refugees. Second, humanitarian assistance and diplomacy. The U.S. remains the world’s largest single donor of humanitarian assistance providing more than 10 and a half billion in the last fiscal year globally, including for refugees. By so doing, we play a central role in mobilizing and strengthening the international response to displacement crises. U.S. contribution support the UN High Commissioner for Refugees mandate and we compliment our financial support with rigorous oversight of UNHCR’s operations and policies.
It’s not just money. Through diplomacy led by Eric’s old bureau, PRM, the U.S. supports a range of international organizations and non-governmental organizations to help protect the rights of refugees and promote respect for the principle of non-refoulement. Just last month, for example, the U.S. participated in the Venezuela Donors Conference. Our UN ambassador Linda Thomas-Greenfield commended the governments and citizens of 17 countries throughout the region that generously hosted the majority of 5.6 million Venezuelans who have been forced to flee their country. Efforts by the governments of Columbia, Ecuador, Peru, and other countries to regularize the status of Venezuelan refugees and migrants to strengthen access to asylum and access to healthcare and legal employment, all find their roots in the core principles of the Refugee Convention and Protocol.
Area three, expanding protection. While protection gaps remain, the international community has taken steps to address other situations of vulnerability, whether it’s through offering temporary protection to displaced persons, broadening the scope of protection through regional arrangements or treaties, and supporting the visions and principles of the Global Compact for Refugees, including regional implementation of the comprehensive regional response framework. With regard to Article 33, the U.S. remains committed to respect the ultimate protection principle, the prohibition against non-refoulement, and we urge all countries to follow this cardinal principle of protection. The U.S. remains further committed to providing safe and orderly processing of humanitarian protection seekers. In our own country, the United States is rebuilding our humanitarian protection system, unwinding policies that required non-citizens to, ‘Remain in Mexico’ pending adjudication of [inaudible 00:20:55] cases in the United States.
We are suspending in terminating three bilateral agreements that allow for the transfer of certain qualifying humanitarian protection seekers to Guatemala, Honduras, and El Salvador for these non-citizens to seek asylum or equivalent temporary protection there instead. Amid a global public health crisis, we of course must continue to prioritize public health and safety at the borders during the pandemic. But at the same time, we’re working to streamline the system for identifying and processing into the United States, particularly vulnerable individuals who weren’t humanitarian exemptions to the public health order under Title 42 of the U.S. Code. We’re working to ensure that this global system of protection is more inclusive of and responsive to the needs of less visible minorities. For example, LGBTQI persons who across the world are threatened, tortured, and killed for sexual orientation, gender identity, sex characteristics, or because they may not conform to dominant social and cultural norms.
These persons continue to face serious threats at home and in countries of asylum where they may be isolated and reluctant to help. Section four of executive order 14010 from February of this year directs Homeland Security and the Department of Justice to publish by October 30th, 2021, a joint rule that addresses the circumstances in which a person should be considered a member of a particular social group as that term is used in the definition of refugee as derived from the Refugee Convention and the Protocol. Since then a working group comprised of participants from DHS, DOJ, and the State Department has been convened diligently to discuss the policy principles and legal considerations relevant to this rulemaking, which will conclude by the end of the year.
Fourth and finally, searching for broader solutions. This administration is doing its utmost to address the root causes of irregular migration in Central America, including forced displacement of refugees and internally displaced persons. As I’ve long argued in my academic work, all too often the U.S. reacts robustly to the fallout of refugee crises without addressing the root causes. We address the symptom and not the disease. But upon taking office, the Biden administration immediately laid out a comprehensive approach to migration that includes addressing root causes of irregular migration, collaboratively managing migration in the region, expanding lawful pathways for protection and opportunity in the U.S. This approach includes a root causes strategy supported by a comprehensive multi-year $4 billion plan in Central America that aims to expand economic opportunity, strengthen democratic governments and root out corruption, to bolster human rights, to improve citizens’ security, and put an end to pervasive gender-based violence in North and Central America over the long term so that individuals can be safe and prosper and be at home.
Our comprehensive approach includes the so-called CMMS, the Comprehensive Collaborative Migration Management Strategy. It’s the first US whole of government effort focused on creating and expanding lawful pathways and services for individuals in North and Central America who are already migrating, displaced, or contemplating leaving their homes. The CMMS calls for a range of actions including, enhancing access to international protection and in-country protection, promoting temporary labor programs within the region, strengthening legal pathways for those who choose to migrate or are forcibly displaced from their homes, and fostering humane border management practices. In our effort to find broader solutions, we’re focused not just on the most challenged geographic regions. Indeed, following executive order 14013, the State Department is working others across the federal government to prepare a report to the president on the global impacts of climate change on migration.
Refugee International’s Task Force on climate change and migration has been a key interlocutor for us during the external consultations to formulate this report. We’re so grateful for the willingness of RI and others to share their expertise on this complex topic. In closing, obviously I’ve only scratched the surface of the challenges we face together, but we have not yet been in office for 200 days. I know it feels like a long time, but it’s not been that long. This is only one of the challenges we’ve been tackling along with climate change, a global, as we see, resurging pandemic, America’s physical and human infrastructure, voting rights, and restoring America’s image and influence in the world. Like any 70-year-old legal instrument, the Refugee Convention does not address every problem we face today. It cannot be the only international legal means of protection for forced migrants.
As the decades have unfolded, it’s become clear that we must do this through a public-private partnership whereby refugee-led organizations like RI engage with national governments, international organizations, and UNHCR to promote greater inclusion in national and international policy-making on refugee issues. But while our time has been short, this administration is determined to listen, to act, and to offer root cause solutions. Even in just half a year, we hope that you, the audience, are feeling the difference. After all, as they say, we’ve only just begun. Thank you so much for listening. I’m honored to be here. I thank my good friend, Eric, and I very much look forward to the conversation that will follow.
Well, thank you, Harold so much for those comments, and you will get a lot of questions, as you know, some of which will be critical. But I just want to say, getting a public and comprehensive statement from the administration on an issue like this one is so extremely valuable. I think we all benefit by having a statement of that comprehensiveness out there in the public domain, so thank you for that, and thank you for your comments, and thank you for your commitment. So now what we’re going to do is spend probably about… we have until about 2:10. Not until about 2:10, we have until 2:10. We’re going to use that time, probably about half the time, we’ll have a panel discussion and questions to Harold, and then the rest we will field questions from the audience.
So, let me, introduce our panelists. Mustafa Alio is currently the managing director of R-SEAT, which is, Refugees Seeking Equal Access at the Table. R-SEAT is an international project that aims to increase refugee inclusion at global policymaking tables within 20 countries across the world. During the Global Refugee Forum in December, 2019, Mustafa became the first ever refugee advisor to a Canadian delegation at a meeting of the International Refugee System. We will also be joined by Rez Gardi, co-managing director of R-SEAT. Rez is a human rights lawyer and activist who was born in a UN refugee camp in Pakistan after her Kurdish family had fled Kurdistan. She was awarded the Young New Zealander of the Year in 2017 for her services to human rights. She represented New Zealand in the first ever Global Refugee Youth Consultations and helped form the Global Youth Advisory Council to the United Nations High Commissioner for Refugees. Both Mustafa and Rez are involved in the noble effort to translate the vision of refugee agency and inclusion in global decision-making into reality. And our eagerness to have them join this panel reflects our perspective on the importance of the work in which they are engaged.
We look forward to their comments and questions on the relevance of refugee inclusion in meeting the objectives of the convention at 70. And will be joined by Yael Schacher, a senior U.S. advocate at Refugees International, where she focuses on asylum, U.S. refugee admissions, temporary protected status, and immigration practices that have protection implications. Before Refugees International, Yael spent a decade researching the relationship between immigration and refugee policy for her forthcoming book on the history of asylum. She’s also taught at the University of Connecticut and lectured on immigration history and refugee policy at Harvard Law School, and the University of Minnesota. Go Gophers, and at the Connecticut Institute for Refugees and Immigrants focused on direct legal representation on behalf of those seeking asylum.
Before I turn to our panelists, I’m going to, again, use the moderator’s prerogative to ask Harold an initial question, and then we will turn to Mustafa and Rez, and then following that to Yael. Harold, if I may ask an initial question, over the years, UNHCR has produced a handbook interpreting the convention, numerous legal papers to guide state practice. The 1980 Refugee Act incorporated the UN’s refugee definition into U.S. law. And an important early decision interpreting the act, the Refugee Act, the Supreme Court recognized the UN Handbook as a guide. In the 1990s as well, UNHCR and Canadian guidelines helped US officials develop policies regarding the handling of refugee claims by women and children. How do you think UNHCR and other state interpretations of the convention as a living document might or should inform US policymakers today?
Harold Hongju Koh:
Yeah. Thank you for asking that question, Eric. This might seem like a narrow question of law jurisprudence, but it’s actually a huge issue with regard to how much legal protection the United States is required to give to refugees. There are basically, in legal circles, two approaches. One is what I would call an outward-looking approach, the one that you just described. Which is to see the Refugee Act as part of a broad global legal landscape. In fact, the words are the same words, including words like political opinion or particular social group. All the more important is that a particular social group could extend to people like women or women facing gender violence or domestic violence, or LGBTQ individuals who are not protected by the traditional categories of race, nationality, or religion that are enumerated in the text.
So construction of this language will determine, Steve Rogowski recently put in a blog post, “the three little words that mean the difference between life and death.” Now, if you take this outward-looking approach and you look to see how you UNHCR has construed it, and you see how other countries have construed these same words, and you engage in an act of intellectual dialogue. And there, you know, the Canadians, the New Zealanders, have taken a very broad and capacious view. The other way to look is what I call a nationalist approach or a textualist approach, which we associate in this country with Justice Scalia and a particular movement within the legal academy, which says, “What does particular mean? What does social mean? What does group mean?” That does not want to look to legislative history, that does not want to look to the history of the treaty, that doesn’t want to look to foreign influences and says, “This is American law, and we should construe it in light of these American words.”
As you can imagine, that approach, which was particularly taken by the Trump administration, leads to a much more restrictive reading of a term like particular social group. Part of the exercise that’s going on on the inter-agency is a discussion about whether, in construing these words for the Biden administration and beyond, we should be adopting an approach that shares and borrows from other countries, or whether we should maintain restriction to a purely American approach. There are people who say, “You shouldn’t borrow.” In constitutional law justices it’s Alito or John Roberts would say, “This is American law. You can’t borrow from some other country.” To which my response is, “Have you ever had a kimchi taco? Have you ever had an American eat a taco in which they put kimchi in it? That’s what Americans do, they’re borrowers. Kimchi tacos are as American as Frankfurters, or hot dogs, or apfelkuchen, or, you know, apple pie. We are borrowers.
And so, the outward-looking borrowing comparing to the globe approach is the approach which is uniquely American. After all the Declaration of Independence said we pay decent respect to the opinions of mankind. We’re not just operating in a bubble. So, this seemingly technical jurisprudential debate about whether you take an outward-looking approach or an inward-looking, textualist approach will be very meaningful in terms of the actual breadth of the convention’s interpretation in our country in the years ahead. So thank you for asking the question.
Thank you, Harold. I’m keeping an eye on the clock, and with that in mind I’m going to propose something because I want to turn to Mustafa and to Rez. We hadn’t discussed who of the two of you would speak first, but what I’d like to do is invite each of you to comment and raise a question for Harold and ask him to field or react to both of your comments. Again, with a view towards looking at the clock, if that works for each of you. Mustafa?
I was going to say, Rez, ladies first.
Yeah, sure. Hi everyone, it’s a pleasure to join you all on an esteemed panel, and it’s a pleasure to be invited by Refugees International. I guess I just wanted to really emphasize what Senior Advisor Koh has said about the nature of the convention, the fact that it was developed in and for a different era. But of course, while the convention’s criteria are limited and outdated, as to be expected with any international treaty, and it’s wording is vague, overall the convention’s definition of a refugee has proven itself capable of a dynamic interpretation over time. We have seen this common pattern in Western countries, or a creative interpretation and expansion of convention grounds by the judiciary, attempting to include modern day people and situations under its protection that reflect the era that we now live in. For instance, gender related persecution is now being accepted around the globe in refugee claims, and even so in the United States jurisprudence.
I would really like to, really go to the aspect of how displaced people can be more meaningfully included in decision-making. We have seen the importance of refugee participation highlighted in a number of fora in terms of the positive benefits it has, although a number of obstacles still hinder that participation of refugees, indicating that we need to develop more effective measures. I would like to ask Senior Advisor Koh, how can we turn this rhetoric of commitment to refugee participation and the support and pledges that have been made around the globe, and turn that into meaningful change and practice for refugee participation being included and policy?
Thank you for that, Rez. I’m going to turn to Mustafa, and then we’ll ask Senior Advisor Koh to field both sets of questions, if that’s okay. Mustafa?
Thank you so much, Eric, for the invitation, really appreciate it. Thank you for everyone attending today and listening to us and having the time to join in the conversation, and Senior Advisor Koh for your remarks. I think also my question would be around the topic. We often from different stakeholders in terms of the role of the states and the role of the UNHCR and the regime and the international organization. Those are greatly important and no one can deny it in any form. Yet in a convention, that’s something you always see those roles being amplified and all of that. But then can they actually do everything? Maybe the best example was the recent pandemic and COVID-19, where we’ve seen that the states and international organizations, or even UNCHR, that has a very important role in the refugee regime, that were not actually enough.
The one who were responding at that point where the refugees and refugee-led organizations on the ground has always been the first responders to crisis. I think more clearly back when the pandemic actually hit. Clearly today that kind of international regime needs to unlock the potential of refugees. Need to, a bit, rearrange and reshift that kind of a perception about refugees and one ping as if all vulnerable because they are different in their situations and all of that. But given this, and even the Global Compact on Refugees, we know that paragraph 34 also indicated about the refugee inclusion in those policy and design and the implementation. We’ve seen about over 30 countries that spoke in favor of refugee participation, just to both those actors.
But it’s still, that being said, I would really would like to know, in the light of pandemic, how do you think can the refugee regime build back better and include [inaudible 00:41:13] as part of the planning and delivery program. Maybe more specific to the U.S., how do you think the Biden and Harris administration can leverage actually U.S. leadership within the refugee regime, trying to claim back this kind of position to enhance the role of refugee-led organization and the function of refugee?
Harold Hongju Koh:
Both of you asked a excellent question. In a way they’re two sides of the same coin. I’d identify three things. One is, Rez asked, how do you turn commitment into sustained action? I think the basic idea we’re developing here is that a treaty like the Refugee Convention is not the total solution. It is a normative focal point on which public and private action and resources can converge. Without the normative focal point, people don’t know what principles they’re fighting for, and they don’t know where to coordinate their resources, but that the treaty is more like the skeleton for the regime that comes out of it. We now have Refugee Convention, which addresses people who cross borders, when two thirds of the people who are displaced don’t cross borders. Still there’s, the basic ideas are forming a normative focal point in which governments and non-governmental actors and intergovernmental organizations can coordinate their activities.
Now, you notice that the same kind of thing is going on with regard to fighting the pandemic. The governments are just at peace with it. Some of the governments, as you can tell, are riddled with conflict, but we’re also working with nation states, state and local governments, vaccine companies, intellectual property distributors, GAVI, CEPI, and all of these are an effort to create a regime that can react and respond to the latest refugee challenges. But point two is, these entities don’t work without someone leading. What we saw for the last four years is, when US leadership is not there or worse when the US appears to be opposed to and destructive of the regime, it creates massive dislocation and distrust. I think a key of this is rebuilding a bipartisan appreciation for refugees and how much they have contributed to our societies.
I think it’s important for somebody like Congressman Neguse to speak about his refugee heritage, because he was part of the constitutional discussion about impeachment, and what it means to have a constitutional democracy, and what it means to violate the core principles of constitutional democracy. The answer is that he is every bit as much an American as the people who came over on the Mayflower. In fact, maybe someone to whom the words of the constitution and the Declaration of Independence mean more because of what he struggled through to get here. Third, I think the tricky question is, how can you combine these public and private resources and norms to create something that’s larger than the parts? To create synergies and force multipliers. I think that’s a central challenge that we face. One of the things that groups like Refugees International or other refugee organizations do is they facilitate that communication and catalyzing function now aided by the tool of social media and instantaneous communication, which didn’t exist not that long ago.
Eric and I aren’t that old, I don’t think. But when we started out, we didn’t have, you know, the fax machine was a new thing. Now you can see refugees being refouled in real time. People can point to violations of the core norms immediately, and it can get immediate attention and it doesn’t have to be on mainstream media, it can be through someone’s cell phone camera. That doesn’t guarantee action. For example, we saw the Syrian refugee crisis play out horribly, but without action to address the root causes. I think the great danger that we face is always this from states, which is, some sort of crisis occurs, refugees start to flow out, other governments watching this don’t do anything, so the first periods or period of inaction. Then they start to realize that the refugee outflow is its own problem. Then they react against the refugee outflow, not against the core problems. As a result of which they go into court and rationalize a response which is tough on the refugees and unsympathetic to human rights, and then that becomes the law.
It then takes a while to get back to address the root causes. I think back to ’94, when Eric was so much of a part of the effort to restore the Haitian government. Because at the end of the day, the way to end the refugee outflow was to bring back some semblance of democratic government in Haiti. But here we are in 2021 and Haiti is in crisis again. It just goes to show that it’s a continuing struggle, and those of us who have been at this for a while have to recognize the patterns and try to warn against repetition of bad patterns, but also see the opportunities for regime building and private-public response. I think that that’s one of the messages of the 70th anniversary. You can spend a lot of time trying to create a new focal point for the normative process, but it would take years to get a new convention, or we can build around the framework we’ve got, and that’s really our only real option at this point, our only practical and realistic option.
Thank you, Harold. I’m going to turn to Yael in a second, but I’m also going to comment, if I may, on Rez and Mustafa’s, and my comment will be very simple. Not having been in government for some years, I don’t know what’s already being done, and so I make this suggestion at the risk of being told that it’s already happening. But faced with the questions that you raised about refugee inclusion, my suggestion, if I were assistant secretary, would be, let’s create a $100 million fund, which represents about 3% of our overall budget, maybe less, and devote it exclusively to support for refugee-led organizations and global consultations. Either channel it through UNHCR or use it on our own. Now, maybe that’s already being done. But if it’s not being done, I can’t fathom a reason why it shouldn’t. I know there are some former colleagues who are on the call, I’ve checked, so they now have a proposal. All right. Yael, the floor is yours.
Thanks so much. It’s a real honor to be here. I guess I have just one major question for Harold. As you noted in your historical discussion non-refoulement is a linchpin of the convention. The writers of the convention noted in its opening that, “the grant of asylum may place unduly heavy burdens on certain countries”, but it encouraged government “to continue to receive refugees in their territories.” Louis Henkin, the official U.S. delegate to the committee writing the convention at the time, claimed that refoulement was not something the United States had to deal with, particularly because it was “not so geographically situated as to receive many illegal entrants.” So the drafters did not fully anticipate that one of today’s biggest challenges for asylum seekers would be simply accessing territory, especially in the global north. Or the extent to which first asylum countries would externalize refugee status determination in a way that might lead to refoulement.
Further, even as additional human rights treaties, such as the International Covenant on Civil and Political Rights have incorporated an obligation of non-refoulement. Countries like the United States have tried to limit impediments to removing non-citizens, even if it means sending them to inhumane treatment or serious harm. Basically, my basic question is, how would you assess the state of non-refoulement today, and what future do you see for territorial asylum specifically?
Harold Hongju Koh:
Well, that was the subject, Yael, of our patient litigation back in the ’90s, we’ve been litigating that issue over and over again since. Most of the jurisprudence of the European convention on human rights has been more favorable to the refugees than has U.S. jurisprudence. But I agree with you that, pushing the border out and externalizing these asylum determinations has been the main move. That’s what we’ve seen, for example, with regard to the Northern Triangle. You would think that the main approach ought to be administrative in the sense of huge amount, more resources for asylum officers to be available at the point of contact to make a full-scale asylum determination. Because, you know, there are differences between people who have bonafide asylum claims and those who don’t.
But we also all know from our work that asking somebody the right set of questions yields different answers. You ask someone, “Are you fleeing from persecution?” and they say, “Yes, because I was a member this political party and a friend of mine who was in the same party was targeted and killed, and so I think I’m going to be killed by persons entitled to asylum.” But if you ask the same person, “Would you want to come to America so your children have a better economic future?” They’d answer yes to that too. I mean, I know my parents would have answered yes to that. And so, a lot of that turns on not on the substance of someone’s case, but on how well their representatives or themselves are able to negotiate a complex and confusing legal system. Now, the Trump administration adopted approach of really, I think they just simply treated refugees, as not only as not a protected status, but that a claim of refugee status was actually, in their view, an effort to circumvent the law and a right to be treated as criminals.
Their zero tolerance policy suggested that nobody has the right to cross the border unless their legal status has been adjudicated. We all know that people who have a right to asylum have a right to cross the border and get their asylum adjudicated once they get to the other side. So by the very nature of the Trump zero tolerance policy or the Remain in Mexico policy was to undo many of these protections. Now, then we’ve layered on top of it the further complication of COVID, which is accompanied by travel restrictions. The Biden administration has, on the one hand, tried to liberalize the asylum rules, but on the other hand stick to COVID legitimate public health restrictions that protect the country. We now see a resurgence of variants. It’s going to take a while for all of this to be sorted through. Take a good example which was that the 9th Circuit’s Remain in Mexico decision struck down, as a violation of the asylum rules, the practices of the Trump administration. Then the Trump administration essentially reinstated the same restrictions under the guise of a COVID restriction.
It shows that these things can be used, it’s like a shell game. We are now in quite an unprecedented environment. I mean, this is the most restricted travel environment of my adult lifetime. Just when we thought it was loosening up, the restrictions are coming again. I think it’ll be a while before we know. Someone gave me the analogy of, when the floodwaters are so high, you can’t really see what’s underneath. So you have to let the water subside to determine what is the exact shape of the landscape below. I think that’s the kind of situation that we’re in. Meanwhile, I think the Biden administration is trying to lead globally. For example, one way in which the Biden administration is trying to leave globally is through COVID management. If the United States can bring COVID under control domestically and help people control COVID internationally, then people will believe that America can lead again and actually serve global purposes. That’s been a central focus.
We’ve now reached a point at which we’ve bumped up against very heavy political obstacles and the question is, what’s the next step? But on the other hand, I think we’re approaching 70% vaccination in the United States as of today, which is huge, unbelievable, when you consider how quickly we’ve gotten here, et cetera. So, I think we’re going to have to both work on getting the floodwaters down and then trying to fix what’s underneath, which we’re not sure exactly what it looks like, and it will take a sustained effort. That’s where having groups who have their eyes on the core objectives is so critical and important because you tell us what we’re doing right and what we’re doing wrong. Eric and I both, Eric remembers when he was in the government and I was outside and I gave him a hard time. He remembers the opposite when he went into academia and talked to me when I was in the government and everybody does what they can do from their position.
But I think if we maintain our common commitments, we have a core normative focal point around which public and private resources and energies can converge, and that’s what I think we need going forward.
We’ve got about nine minutes, and I want to make sure, and we’ve got a ton of questions. Let me just tell the audience that if you’ve written any questions that require much more of an individualized response, reach out to us at Refugees International, because we don’t want to be ignoring those questions. So if you have questions about your particular circumstance or particular situation, come to us as an organization and we’ll try to be responsive. I’m trying to think of it. I want to get one question in, because your last comment, Harold, is really important because we all have our roles to play in different situations, and I don’t want to, Harold well knows that in a forum like this he’s going to get uncomfortable questions, and he should. One that I do want to ask is, I mean, you’ve described a range of efforts in progress that reflect the administration’s bonafides. Frankly, I agree with, we laud, we applaud so many of the actions of the Biden administration thus far on refugee protection issues. The statements of the Secretary of State, where he has positioned the U.S. government of these issues.
But there are still questions, and I think, I’m trying to find a question that typifies the concern, and so here it is. It’s, how should the advocacy community understand and how do you explain, or how should we understand, relatively unequivocal statements from officials at the very highest levels that people should just not come? That has been articulated on several occasions from everyone, from the president, to the vice president, to the Secretary of Homeland Security. I have been involved with many internal discussions where we discussed the importance of attacking smuggling, getting it irregular, getting it the criminal elements, encouraging people to use legal pathways. But all of that is pretty distinct from unequivocal statements to people, “Just don’t come.” How should those of us on the outside, some of whom have been on the inside, understand those kinds of comments?
Harold Hongju Koh:
Well, it’s a good question, Eric, and I think we understand it two ways. One is, obviously in broad messaging you can’t be too subtle. So you say, “If you’re not a refugee, don’t come, but if you’re a refugee come.” Everybody’s going to say, “Well, I’m a refugee,” and they’ll come. It’s not a message that you can tailor. When it actually turns on, and this is my second point, is that when there are qualities or characteristics that one has that they cannot change, and their only alternative is to flee, they will flee. They’ll be told not to come and they’ll ignore it. If you’re going to be persecuted for political reasons, and you know that they’re going to come and kill your family tomorrow, you’re not going to listen to some U.S. government official saying, “Don’t come.” You really don’t have a choice. You flee and you think that, “When I get to the other end I’m going to claim the legitimate basis of asylum.”
Which is one reason why membership in a particular social group usually means that you have some quality or characteristic that you cannot change to stay where you are. You have to flee, that’s the only alternative. I think it’s those two things. One is nuanced messages tend not to be used in political and national security discourse, otherwise they’re misunderstood. But secondly, those statements are made with full understanding that people who have bonafide refugee rights will plea and seek asylum because they have no choice. That’s their only option. They’ll listen and they’ll understand, and they probably agree with the basic principle, but it doesn’t apply to them because they are refugees.
Thank you. Harold has four minutes, so I’m going to invite each of the panelists, with the threat of cutting you off, to offer just maybe 30 seconds to a minute of comments, and then I’ll give Harold the last word with great thanks. But literally we have four minutes. Mustafa, why don’t you start, and then I’ll go to Yael, and then Rez.
Thank you so much, Eric. I hope I can have 30 seconds with Senior Advisor Harold still with us. I think what I want to say at the end, yesterday in the absence of the U.S. on the last four years from the world stage on so many important issues, including the refugee issue, it was unfortunate. But at the same time, there was a lot of ideas, there was a lot of innovation. There was a lot of efforts that has been done. That gives a bit of privilege today to the U.S. to look at those solutions and trying to borrow. But at the same time, it’s not about borrowing the solution, it’s about leading the work. Nobody can today neglect the fact that the U.S. today is the biggest power, has the most diplomatic power, has the most soft power in the world. I mean, on small issue and a small initiative like the one that Eric mentioned, for example, a dedicated fund to refugee that organization.
Creating a mechanism of a state’s conversation with refugee inclusion. Those kinds of things that if the U.S. does, it doesn’t stay with the U.S. It gives a great power to everyone else to go to other countries, and then basically duplicate and replicate the model just based on the U.S. leadership. Here is small things that the U.S. can do within its own territories, but could actually expand and empower many others in the world. I hope with your background senior advisor, with your passion to the cause and working on it, something that you can help us to continue just building and be more innovative to build a better support system for refugees.
Thank you, Mustafa. That was very eloquent. Yael.
I won’t take a lot of time. I’ll just say that I was very heartened by the outward-looking focus that you talked about in terms of interpretation of the convention, which I think is really where we need to see the U.S. going in terms of its obligations to refugees. Yes, the convention is a normative framework, but it’s also, we are bound to it. It’s a law, we have obligations under it. It’s a treaty, it’s not soft law, it’s hard law for me. I feel like that’s important. For me, the convention, and outward-looking focus on our obligations, to me, is what I hope to see in this administration. I was excited to hear you say that.
Thank you. Rez?
Yeah. Thank you, and thank you, Senior Advisor Koh for your remarks. I absolutely agree with what my co-managing director Mustafa has said. Just to emphasize on that point, I mean, we have obviously noted in this conversation that refugee situations have increased in scope, and scale, and complexity, and so really this does require new and innovative methods for protection. But I think really finding the best solutions and responses for the complex issues that are now facing the world, well, it requires strong evidence-based research and commitment to translating findings into impact. Again, importantly, it requires input from people with lived experiences for the development of policies that are closer to the ground.
Working in partnership with leaders with lived experiences has huge potential to leverage effort and investment. I think really this presents with the new Biden-Harris administration and with such passionate advocates within the government. This means that we now have a better opportunity for all the actors within the sector to transform how they partner with refugees in order to advance joint efforts during this global crisis and beyond. I really look forward to the leadership that the U.S. will go back to having after the last four years in the space. Thank you so much for your time.
Thank you. Harold, the last word is yours.
Harold Hongju Koh:
On my computer is this post-it note, 4 R’s+1. When I started here on January 20th, I put 4 R’S+1 on my computer so I’d see it every day. What does it mean? Reverse, re-engage, reconceptualize, and rebuild. That’s our approach to the Trump administration’s policies. One, reverse them. Two, re-engage with the organizations they left. Third, reconceptualize our efforts in light of the efforts that have gone on despite the Trump administration, as Mustafa said. Then fourth, rebuild. Build back better. That has been the motto that we’ve tried to follow with regard to all of these areas. So then the question is, what’s +1? Don’t forget refugees. It is because of the American asylum law that I live in America. It’s because of American asylum law that I’ve had the opportunities I’ve had, and one of those is the opportunity now to serve the government four different times.
It’s important that if someone’s in the positions I’m in, that I remember that being a refugee is part of the project of America. We are not united by ethnicity, we’re not united by religion. What unites us is a certain set of values, and one of them is the value of refugees expressed on the Statue of Liberty. That’s why I try to remind myself, as the flood of work goes over me every day, I just look at this reverse, re-engage, rebuild, and reconceptualize, and don’t forget the refugees. That’s been my motto until I am done.
Well, Harold Koh on behalf of the panelists, on behalf of all of our guests, with apologies for not getting all of their questions, I cannot thank you enough for taking the time and the trouble to join us today. It was a real pleasure, and we look forward to continuing to engage in the months and the years to come. Everyone have a great day, and thank you again.
Harold Hongju Koh: