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On behalf of the Biden-Harris Administration, thank you, Dean Eric Schwartz—my longtime brother-in-the-foxhole—and your invaluable organization Refugees International, for this chance to reflect on the Refugee Convention at 70.

For me, this 70th anniversary marks both a personal and professional milestone:  a personal one because its lifetime has encompassed my own, dating back to the 1960s when America took in my late father, a political refugee from South Korea, when the democratic government he served was deposed by a military coup.  It is a professional milestone because of the years I have spent both inside and outside the government fighting to enforce the Convention’s provisions. America’s profound refugee legacy includes so many refugee offspring who have supported your cause over the years and so many like me, who have been moved by the gift they received from the Convention to repay their debt through government service around the world.

This is my fourth time in the US government and my fifth decade working on these issues: first in the 1980s, at the Office of Legal Counsel at the Justice Department; second in the ‘90s –first while litigating against the U.S. government on behalf of Haitian and Cuban refugees, and later as Assistant Secretary for Democracy, Human Rights and Labor at State in the Clinton Administration, working hand in glove with Eric as Senior Director for Humanitarian Affairs at the National Security Council.  My third tour came in the late 2000s and early 2010s when with Eric now at the State Department Refugee Bureau, I served as State Department Legal Adviser under President Obama and then-Secretary of State Hillary Clinton working to promote the United States’ adherence to its international legal obligations under the Refugee Convention and Protocol.  And today, in 2021, I speak as the Senior Biden appointee currently at that same Office of the Legal Adviser to describe our efforts these first 200 days to advance the sound development of international law and toadvise on practices taken pursuant to the Protocol.

On this 70th birthday, let me first, celebrate the historic accomplishment of the Convention. As landmark events in international law, the Convention and Protocol were watershed achievements that continue to guide the international community in its approach to refugee crises around the world.  Second, let me reaffirm a basic reality that I hope is evident to you all: the Biden-Harris Administration’s commitment to restore America’s highest values to the center of our foreign policy and to offer reassurance to persecuted people. Even in this time of challenge and stress, under the Biden-Harris Administration, the United States of America is determined to alleviate the suffering of refugees globally through our leadership in refugee affairs, whether through refugee resettlement and promoting durable solutions for refugees, providing humanitarian assistance and engaging in diplomacy to improve refugee protection, and upholding our international legal obligations.

I. The Achievement

Seventy years after the fact, international lawyers sometimes forget what a stunning advance this treaty marked. Like earlier efforts, the 1951 Convention was directed to fix a particular problem.  It was adopted shortly after World War II, when the international community was confronting a massive refugee crisis for refugees of European origin.  In the preceding decades, a handful of ad hoc movements had sought to address specific refugee situations, addressing people displaced from the former Ottoman Empire, the USSR, and Nazi Germany.  But while these efforts furthered the idea of international protection for persecuted groups, their scope was narrowly tailored, applying only to specific national, ethnic, or religious groups, or to those displaced from a particular country.  Indeed, even the predecessor organization to UNHCR focused only on displaced victims of the Nazi and fascist regimes, as well as other persons considered refugees before the Second World War.

Thus, the original Convention was narrowly drawn. Under its temporal limits, to be a refugee, an individual had to have been displaced because of “events occurring before January 1, 1951;” under its geographic limits, States parties could, if they wanted, only treat as “refugees” those displaced by events in Europe.  Nonetheless, the core concepts of the Convention – negotiated by delegates from 26 countries from every continent – were truly groundbreaking.Sixteen 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 and UNHCR is currently working in 132 countries, some of which are not even parties to the Convention or Protocol, further demonstrating the Convention’s global normative impact.

The Convention’s two great intellectual advances were Article 1, its remarkably broad and forward-looking definition of refugees, and Article 33, its historic protection against refoulement, the forced return of refugees to their persecutors, accompanied by a set of core civil, political, economic, social and cultural rights and protections designed to increase based on the refugee’s level of attachment to the state in which they’re located.  The Convention’s first article famously defines a “refugee” as someone outside the country of his or her nationality or habitual residence who (1) has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, (2) and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country.

Unlike earlier efforts, this forward-looking definition was not restricted by either national nor ethnic group, nor limited to people fleeing specific persecutors.  The drafters also declined to define and hence to limit the scope of what would qualify as a “political opinion” or a “particular social group.”  Over the decades, this broad definitional language, as supplemented by the 1967 Protocol, has enabled the Convention to be adaptable to changing circumstances, and to become even more central to the international system of protection today than it was at its adoption.

The core of Article 33’s nonrefoulement prohibition was simple and clear: as my late boss, Justice Harry Blackmun’s dissent in the Haitian refugee case succinctly put it: “Vulnerable refugees shall not be returned.”[1] This bedrock principle of non-refoulement has guided international responses to the crises in Burma, Syria, Ethiopia, and elsewhere, requiring continued vigilance and support to refugee-hosting countries.

I would love to say that the decades since 1951 have been years of unbroken progress. But as everyone here realizes, we observe this sobering anniversary while we are 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 be and has not been a cure-all for the global displacement crisis.  By addressing only refugees who cross borders, the Convention famously did not purport to address persons who are internally displaced or displaced solely by reasons other than persecution – for example, war, generalized violence, natural disasters, climate change, or dire economic circumstances.  Although the Convention’s Preamble recognizes that durable solutions for refugees “cannot be achieved without international co-operation,”  the Convention does not create any burden-sharing mechanism or obligation.  And as time has gone on, new and unanticipated sources of upheaval and impediments to solutions, including the COVID-19 pandemic, protracted conflicts, and accelerating impacts of climate change have made this a time of historic global displacement. Given these challenges, your work, Eric, and that of  Refugees International, other refugee organizations, and all  who support these organizations  in reinforcing the centrality of the Refugee Convention and Protocol has never been more vital.

II. Challenges and U.S. Commitments

That 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: refugee resettlement, humanitarian assistance and diplomacy, protection, and solutions?

First, refugee resettlement: The Biden Administration has committed to significantly increase refugee resettlement to the United States, and in particular resettlement of refugees from Central America.  At State, the Bureau of Population, Refugees, and Migration (PRM), which Eric led so ably, heads U.S. humanitarian response to refugee and migration crises, including by managing the U.S. Refugee Admissions Program (USRAP) in coordination with DHS and HHS. In so doing, U.S. domestic treatment of refugees and asylum seekers strengthens U.S. humanitarian leadership globally in modelling good practice and persuading other governments to strengthen their own protection policies.

As everyone here knows, after four dark years, the United States is finally taking up the mantle of leadership on refugee resettlement again, including through the USRAP, which has settled more than 3.1 million refugees since 1980. We have already taken the critical steps of raising the annual refugee admissions target to 62,500 for Fiscal Year 2021 and restoring regional allocations for resettlement to ensure that access to the USRAP is based on refugees’ vulnerability. We are trying to rebuild a system that responds effectively to the emergency need for resettlement across all regions of the world, and that reflects the American tradition of welcoming, not scapegoating, refugees.

Second, humanitarian assistance and diplomacy: the United States remains the world’s largest single donor of humanitarian assistance, providing more than $10.5 billion in Fiscal Year 2020 globally, including for refugees. By so doing, we play a crucial role in mobilizing and strengthening the international response to displacement crises.  U.S. contributions support the UN High Commissioner for Refugees’ mandate, and we complement our financial support with rigorous oversight of UNHCR’s operations and policies.  And it’s not just money. Through diplomacy led by PRM (the State Department’s Bureau of Population, Refugees, and Migration), the United States 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 United States participated in the Venezuela donors’ conference, where our UN Ambassador Linda Thomas-Greenfield commended the governments and citizens of the 17 countries throughout the region that generously host the majority of the more than 5.6 million Venezuelans who have been forced to flee their country.  Efforts by the governments of Colombia, Ecuador, Peru, and other countries to regularize the status of Venezuelan refugees and migrants, to strengthen access to asylum, and to provide access to health care and legal employment, all find their roots in the principles of the Refugee Convention and Protocol.

Third: expanding protection. While protection gaps remain, the international community has taken steps to address other situations of vulnerability, whether through offering temporary protection to displaced persons, broadening the scope of protection through regional arrangements or treaties, or supporting the vision and principles of the Global Compact for Refugees, including regional implementation of the Comprehensive Regional Response Framework.

The United States remains committed to respecting the ultimate protection principle: the prohibition of non-refoulement, and we urge all countries to follow this cardinal principle of protection.  The United States remains further committed to providing a 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 noncitizens to remain in Mexico pending adjudication of their immigration cases in the United States, plus suspending and terminating three bilateral agreements that allowed for the transfer of certain qualifying humanitarian protection seekers to Guatemala, Honduras, or El Salvador in order for those noncitizens 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 U.S. borders during the COVID-19 pandemic.  But at the same time, we are working to streamline a system for identifying and processing into the United States particularly vulnerable individuals who warrant a humanitarian exemption to the public health order under Title 42 of the U.S. Code.

And we are working to ensure that this global system for protection is more inclusive of and responsive to the needs of less visible minorities:  for example, Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI) persons.  Across the world, LGBTQI+ persons are threatened, tortured, and killed for their sexual orientation, gender identity, sex characteristics or because they may not conform to dominant social and cultural norms.  LGBTQI+ persons continue to face serious threats at home and in countries of asylum, where they may be isolated and reluctant to seek help.

Section 4 of Executive Order 14010 directs the Department of Homeland Security (DHS) and Department of Justice (DOJ) to publish a joint rule by October 30, 2021, “addressing the circumstances in which a person should be considered a member of a ‘particular social group’” (PSG) as the term is used in the Immigration and Nationality Act’s definition of refugee “as derived from the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.” Since then, a working group comprised of participants from DHS, DOJ, and the Department of State has been convening diligently to discuss the policy principles and legal considerations relevant to this rulemaking, which will conclude by the end of this 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 have long argued in my academic work, all too often, the United States has reacted robustly to the fallout of refugee crises, but neglected the root causes.[2] Upon taking office, this Administration immediately laid out a comprehensive approach to migration that includes addressing the root causes of irregular migration, collaboratively managing migration in the region, and expanding lawful pathways for protection and opportunity in the United States. The 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 governance and root out corruption, bolster human rights, improve citizen security, and put an end to pervasive gender-based violence in northern Central America over the long term so that individuals can be safe and prosper at home.

The Biden Administration‘s comprehensive approach includes the Collaborative Migration Management Strategy, or CMMS.  The CMMS is the first U.S. 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 who are 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 are not just focused on the most challenged regions.  Following Executive Order 14013, the State Department is working with others across the federal government to prepare a report to the President on the global impacts of climate change on migration.  Refugees International’s task force on climate change and migration has been a key interlocutor during the external consultations we conducted in the formulation of this report, and we are so grateful for the willingness of RI and others to share their expertise on this complex topic.

III. Conclusion

In closing, obviously, I have only scratched the surface of the challenges we face together. But we have not yet been in office for 200 days, and this is only one of the challenges that this Administration has been tackling: along with climate change, a global and resurging pandemic, America’s physical and human infrastructure, voting rights, and restoring America’s image and influence in the world.

Like any seventy year-old legal instrument, the Refugee Convention does not address every problem we face today, and it cannot be the only international legal means of protection for forced migrants.  As the decades have unfolded, it has become clearer that this must be a public-private partnership, whereby refugee-led organizations engage with national governments, international organizations and UNHCR to promote greater inclusion in national and international policymaking on refugee issues.

But while our time has been short, this administration is determined to listen, to act and to offer solutions.  Even in just half a year, we hope you are feeling the difference.  And we’re only just beginning.

Thank you so much for listening. I very much look forward to the conversation with the refugee leaders that will now follow.

[1] Sale v. Haitian Centers Council, 509 U.S. 155, xxx (1993) (Blackmun J., dissenting).

[2] Harold Hongju Koh, The “Haiti Paradigm” in U.S. Human Rights Policy, 103 Yale L.J. 2391 (1994); Harold Hongju Koh, Refugees, the Courts and the New World Order, 1994 Utah L. Rev. 999 (1994).

U.S. Department of State

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