The League of Nations

The history of international refugee law is also the modern history of international organization. And that modern story began in February 1921, when Gustave Ador, President of the International Committee of the Red Cross (ICRC), met the President of the Council of the League of Nations. He raised with him the plight of some 800,000 Russian refugees then adrift in Europe as a consequence of the First World War, the revolution, and the disastrous civil war that followed. The Red Cross took on much of the relief work, helped by the American Red Cross and what was then called the International ‘Save the Children’ Union.

But more needed to be done, particularly with regard to legal status, employment and emigration, and there was no better organization than the League, argued the ICRC, to take up the issues, surmount the political and social difficulties, and come up with solutions. In a letter on 15 June 1921, Gustave Ador urged the League to take the necessary action, and it moved with commendable speed. After preliminary soundings with governments, a conference took place in Geneva in August, and the Norwegian, Fridtjof Nansen, was proposed as ‘High Commissioner for Russian Refugees’; a telegram was dispatched, he replied by letter, accepting the post, and at once set about finding practical solutions.

Nansen was already renowned, as champion skier, arctic explorer, but also as a humanitarian, having been involved in famine relief and the repatriation of prisoners of war. The League now tasked him with defining the legal status of refugees, organizing their repatriation or ‘allocation’ to other States, finding them productive employment and, together with philanthropic organizations, providing relief.

In all of this he was remarkably successful, laying the groundwork for what we understand today as the principles and practice of the ‘international protection’ of refugees. He is often recalled for one major achievement in particular, which was to secure the agreement of governments to issue identity certificates to refugees. This simple enough administrative step enabled countless thousands of refugees to find solutions for themselves, not just in Europe, but as that certificate became increasingly accepted as a travel document – the Nansen passport – in more distant countries as well.

In addition to this success – some 54 States accepted the agreement – Nansen's practical and pragmatic interventions helped to entrench the principle that refugees should not be returned to situations of risk in their country of origin; that they should be provided with assistance; that they should be helped to resettle in other countries, particularly where employment might be found; that first countries of refugees were entitled to and should receive help and support through international co-operation; and that vulnerable groups, such as children and those with disabilities, should receive special attention.

And yet this was an imperfect beginning. Certainly, new groups were added to the original mandate for Russian refugees, including Armenians, Assyrians, Assryo-Chaldeans, among others, but the League continued to see the ‘problem’ of refugees as both anomalous and temporary. State sovereignty and the principle of non-intervention were paramount considerations, and the individual was yet to enter the frame as a rights-holder and someone entitled to protection.

Nansen died in 1930. No new High Commissioner was appointed, but the League's international office for refugees was named in his honor, and Max Huber drafted the statute. Increasingly, however, the League lost its enthusiasm for refugees, not least because of the costs, and it debated winding up the Nansen Office in 1933, even as political events of the day were heralding an epoch of unprecedented displacement.

Some at least in the League recognized what was going on. That same year, even as the Nansen Office continued to function, it was decided to establish the Office of the High Commissioner for Refugees (Jewish and Other) coming from Germany, but formally outside the League, owing to Germany's continuing membership. James Grover McDonald was appointed to the post on 23 October 1933, his task being to ‘negotiate and direct’ the ‘international collaboration’ necessary to solve the ‘economic, financial and social problem of the refugees’ – no mention here of ‘protection’, of ‘asylum’, of ‘rights’, even of ‘humanitarianism’.

The situation worsened, doors were closed, if ever open, and the pressure grew. Private organizations might play their part, but, as McDonald argued, governments must lead the way. It was not enough to help those who had fled, and efforts were needed to remove and mitigate the causes. Given the danger to international peace and security, this was a political function and therefore the responsibility of the League. And so he resigned, pointing out in his December 1935 letter of resignation, that there would be fresh waves of refugees, ‘victims of the terrorism’.

We might say that the rest is history… By this time, the League was too weak to influence events, but a new High Commissioner was appointed, with his mandate extended to refugees from Austria after the Anschluss in 1938, and eventually designated as High Commissioner for Refugees under the Protection of the League. That same year, a new organization was also created, the Intergovernmental Committee on Refugees, following the Evian conference convened by President Roosevelt. Events, however, were rapidly to take over. Notwithstanding the times, notwithstanding knowledge of events and of persecution and of flight, humanitarian responses were not the order of the day. On the contrary, refugees were seen as potential threats – to the economy, to social cohesion, to the process of ‘appeasement’. The consequences of failing to address their plight and its causes do not need repeating.

The United Nations

The first session of the United Nations General Assembly took place in Central Hall, Westminster, in January and February 1946. Refugees and migration were second only on the agenda to international peace and security and, with the Cold War looming already, one of the first resolutions adopted unanimously by the General Assembly laid down basic principles that remain no less relevant today: first, the refugee problem is international in scope and nature, and no State should be expected or required to carry responsibility for a refugee influx on its own; second, no refugee with valid objections should be required to return to his or her country of origin; and third, subject to that concern, repatriation was a priority to be pursued.

Later the same year, the UN set up the International Refugee Organization (IRO) as a specialized agency tasked with protection, repatriation, and resettlement. But already the politics of the Cold War were consolidating, and neither the Soviet Union nor any of its allies participated in what effectively became instrumental in those politics. Although in the five or six years of its existence the IRO succeeded in ‘resettling’ over one million refugees and displaced persons out of Europe, a number of key supporting States were increasingly concerned, both with its costs and with its usefulness overall in the pursuit of certain strategic political goals. Already in the late 1940s, discussions began on what should follow the IRO, even as other significant events occurred.

The UN, like the League before it, was founded on certain basic organizational principles, including sovereignty, equality, and non-intervention. In 1948, however, the General Assembly adopted the Universal Declaration of Human Rights and the individual now entered the frame. Even if the full implications of this development could hardly have been appreciated, when States came to draft a treaty on refugees in 1950/1951, it was the necessity of a status for the individual that commanded their attention; and with status, went rights.

In December 1950, Gerrit Van Heuven Goedhart, himself a former refugee, was elected by the General Assembly to lead its new subsidiary organ, the Office of the United Nations High Commissioner for Refugees (UNHCR), which came into being on 1 January 1951. The principal responsibility of the Office is to provide ‘international protection’ and, together with Governments, to seek permanent solutions for the problem of refugees. In July, States agreed the text and opened for signature the 1951 Convention relating to the Status of Refugees, which was intended to complement the work of the High Commissioner with a set of international legal obligations. Together with its updating 1967 Protocol, the 1951 Convention remains the central feature of today's international protection regime. It defines the refugee as someone who, being outside their own country, is unable or unwilling to return there or seek its protection owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Most of the Convention's provisions are oriented to facilitating the refugee's ‘assimilation’ in the country of refuge in social and economic terms, but with due regard also to his or her special status. States also accept certain fundamental obligations towards the refugee, which are of enduring significance – not to penalize the refugee who enters or is present illegally, only to expel a refugee on the most serious grounds and, above all, not to send the refugee back to where he or she would run the risk of persecution (the principle of non-refoulement). When it was adopted, the refugee definition also contained a temporal limitation and an optional geographic limitation, but these rapidly proved unworkable in the face of continuing flight, and in 1967 a Protocol was adopted to remove these restrictions and provide a definition that was truly universal; today, 148 States are party to either or both of these instruments.

As the International Refugee Organization wound down, the United States moved to ensure that its operational capacity – the wherewithal to move people out of what was perceived as an overcrowded Europe – was not lost. The Intergovernmental Committee for European Migration (ICEM) was set up, but outside the United Nations in order to ensure that no Communist State or Communist-influenced government could participate. ICEM itself has evolved into what is now called the International Organization for Migration; it remains outside the UN, although in ‘closer association’ since the ‘summit’ on refugees and migrants held in New York in September 2016.

ICEM's first Director was Hugh Gibson, a US diplomat with a fascinating and intriguing career. He was Secretary of the US Legation in Brussels from 1914–1916 and in October 1915, he learned of the arrest, trial and conviction of Edith Cavell, a British nurse tending wounded British POWs and accused of helping some to escape. Hearing that she had been condemned to death and was to be executed that night, he roused the Spanish Ambassador and together they intervened with the German civilian authorities and persuaded them to press for clemency with the German military. Their efforts came to naught, and she was shot the following morning, 15 October.

Gibson worked in famine relief in the final years of the First World War, was involved in the disarmament negotiations in the League during the 1920s and 1930s, was US Ambassador to Switzerland and Brazil, and again involved in relief work in Poland and Belgium in 1940 and 1941. In 1946, he was a member, together with former President Herbert Hoover, of the delegation that President Truman sent around the world to assess the food situation.

As ICEM Director, Gibson was able to get the ‘transportation’ business off the ground, with some 250,000 migrants, refugees and displaced persons moved out of Europe by 1954 (ICEM had an initial contribution of $10 million from the USA, while UNHCR had to make do with a budget of just $300,000). When the US State Department approached him with the suggestion that the security clearance of every migrant assisted by ICEM be contracted out to the Department on a costs recovery basis – such clearance being a condition of US legislation framed by Congress with the Cold War very much in mind – he demurred for several months before advising that he did not think this would fly with the other member governments. Fortunately for those in need of migration, a work-around was found.

Hugh Gibson died in office in December 1954 and is buried in the cemetery at Genthod in the Canton of Geneva, his grave remaining against the north wall.

The first High Commissioner died just eighteen months later, and was succeeded by August Lindt (1956–1960) and by Felix Schnyder (1960–1965), both Swiss citizens. It was during the latter's term of office that Sadruddin Aga Khan joined UNHCR, first as Deputy High Commissioner (1962–1965), and then as High Commissioner from 1965 to 1977.

Sadruddin made a major contribution to the evolution of UNHCR and, in particular, to strengthening its operations beyond Europe. In The Hague Academy lectures, presented in 1976, he recalled the Office's engagement in Africa and Asia, noting how the concept of the refugee had evolved. In addition, the focus has shifted to supporting the self-sufficiency of refugees, promoting voluntary repatriation, and providing in-country assistance, while ‘humanitarian necessity’ justified the UN's interest also in the fate and future of those returning to their country of origin, and in the internally displaced. Problems nevertheless remained, not least in the field of asylum, in mediating conflict, and in maintaining the international interest in durable solutions.

After leaving UNHCR in 1977, Sadruddin continued to associate himself with the broader humanitarian questions. He prepared a report on human rights and mass exodus for the Commission on Human Rights, which shocked the international community by actually naming States and identifying causes; and served as co-chair of the Independent Commission on International Humanitarian Issues which, working outside the UN, advocated strongly for a ‘New International Humanitarian Order’. The innovative thinking then still has much to offer to those today who appear numbed by numbers and the all too prevalent discourse of security.

Since Sadruddin Aga Khan, there have been seven High Commissioners, the latest being Filippo Grandi, who was elected in 2015. He has considerable field and emergency operations experience with UNHCR, and has also served as Commissioner-General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East (set up in 1949 and, like UNHCR, initially intended to be temporary…). Although the basic refugee treaties and the fundamental principles of protection have stood the test of time, Filippo Grandi too has noted the fresh challenges to asylum, not least from ‘xenophobia, nationalist rhetoric and political discourse linking refugees with security concerns and terrorism.’

When the draft of the 1951 Convention was being discussed, the UN Secretary-General urged States to incorporate provisions on co-operation, which he saw as essential to the success of the new regime, and that they undertake to relieve the burden on countries of first refuge, ‘by agreeing to receive a certain number of refugees’. But States at the time were not willing to translate the principle of co-operation into legal commitments, and the recent debacle in Europe is but the latest manifestation of the gaps remaining in the system.