Before the Second World War, international assistance to refugees was primarily granted to stateless persons. These were groups of people who were unable to secure state protection of any kind. After the First World War, millions of people became stateless with the fall of the Austro-Hungarian, Ottoman and Russian empires. More than one million Russian refugees fled to Europe and China. In 1921 the Russian Soviet Republic denationalied its citizens living abroad. Nearly 300,000 Armenians fled the former Ottoman Empire and were deprived of state protection. A refugee at this time, to quote a 1926 definition, was a person ‘who no longer enjoys the protection’ of either the Soviet or Turkish governments. Refugee conventions in 1928 and 1933 upheld this definition and added new groups of recognised refugees. In 1938, similar measures were put in place for refugees who did ‘not enjoy, in law or in fact, the protection of the German Government’.Footnote 1 In each of these cases, it was the state that no longer protected the individual.
In a radical departure from inter-war protections for stateless refugees, the word ‘unwilling’ was added to the definition of a refugee in April 1946. From that point forward, refugees have been defined as people ‘unable or unwilling’ to avail themselves of state protection given a legitimate fear of persecution. Where previously only states held the power to exile or denationalise their citizens, it now became legally possible for an individual to annul his or her belonging to a state, given claims of persecution recognised by an international body. For the first time, an international organisation granted protection from extradition to individuals claiming refugee status. This placed the International Refugee Organization (IRO) and now the United Nations High Commissioner for Refugees (UNHCR) in a position to challenge and to deny a state's claims to a citizen.
This shift in the refugee definition is usually understood to be the product of fundamental political and humanitarian differences between the Western Allied states and the Soviet Union regarding the forced repatriation of Eastern European Displaced Persons (DPs) after the Second World War. Malcolm Proudfoot wrote of Western efforts to uphold the right of individuals to voluntary repatriation. ‘The Soviet bloc for its part used every argument to persuade the West to accept its policy of forcible repatriation, and resettlement only for those persons declared stateless’. Similarly, Jacques Vernant wrote that, ‘the countries of eastern Europe, held that repatriation was the only legitimate solution and that any difficulty found in carrying it out was due to the presence among the displaced persons of a “large majority of war criminals”’.Footnote 2 This view has carried into recent historiography on the subject. Gerard Daniel Cohen notes that contemporaries spoke of a ‘clash of civilizations’ over refugee rights and locates the origins of the new refugee regime in East–West conflict. In an important insight, Cohen notes how UN negotiations served as the ‘first international stage’ for Western powers to articulate their shared liberal and humanitarian values in opposition to the illiberal and statist Soviet bloc countries. A news report on meetings to draft a new refugee definition highlights how the Polish delegate challenged ‘the right of an individual to question the totalitarian authority of the State over its citizens’.Footnote 3 The idea that the Soviet Union and Yugoslavia required the forced repatriation of all DPs was a key part of the early cold war discourse on human rights and the right of asylum. While the Soviet Union and Eastern European states always favoured repatriation (and were quite willing to use force), after the UN General Assembly's resolution on the ‘Question of Refugees’ in February 1946, Soviet and Eastern European delegates no longer argued for the forced repatriation of civilians.
The principle that refugees require international protection from state persecution is the cornerstone of the modern refugee regime and the 1951 Geneva Convention relating to the Status of Refugees. James Hathaway argues that this understanding of a refugee, where there is a ‘fundamental incompatibility between the claimant and his government’, first emerged in 1938 with the recognition that refugees from Nazi Germany were forced to ‘emigrate on account of their political opinions, religious beliefs or racial origin’.Footnote 4 It is important to note that the term ‘persecution’ was absent from the resulting document, the ‘Convention concerning the Status of Refugees coming from Germany’. While the 1938 Convention noted the social and political causes of flight, refugees were still defined as those ‘unable’ to secure state protection.
After the war, Nazi persecution served as an important legal concept for relief work with refugees and DPs. Anna Holian's research on post-war DPs demonstrates how the Allied category of ‘persecutee’, which included Jews and other victims of the Nazis, built upon inter-war efforts to protect refugees from Germany and served as the origin of relief efforts based on individual claims of persecution.Footnote 5 While the category included concentration camp survivors, forced labourers and other victim groups, the term remained specific to war-time persecution by the Nazis. The shift from specific reference to Nazi persecution to a more universal concept of persecution did not occur until 1946.
Building on recent histories of the post-war DPs, this article locates the origins of the post-war refugee regime in Allied relief work with Soviet and eastern European DPs.Footnote 6 Specifically, American and British non-recognition of Soviet territorial gains in 1939–40 led to a policy where DPs from the Soviet Baltic republics and areas of eastern Poland were not required to return home and in many cases were classified as ‘stateless persons’. The determination that these DPs were ‘stateless’ was not primarily based on claims of persecution, the right of asylum or an aversion to forced repatriation, but rather on American and British non-recognition of Soviet territorial gains. This policy created a population of roughly 380,000 ‘un-repatriable’ DPs who enjoyed de facto asylum in the DP camps.Footnote 7
The vast majority of the more than one million DPs and refugees who refused repatriation came from areas liberated by the Red Army in eastern Europe. There were 270,000 DPs from Poland, 150,000 from Ukraine and 148,000 from Latvia, Lithuania, and Estonia. These ‘non-returners’ were joined by 125,000 DPs from Yugoslavia.Footnote 8 These ‘Displaced Persons’ potentially held state citizenship, but they actively refused to return to their countries of origin or to recognise Soviet control of Eastern Europe. The Soviet Baltic states, Ukraine, Byelorussia, Russia, Moldova, Yugoslavia and the Republic of Poland actively asserted their claims of protection and pressed for the return of ‘their’ DPs.
In a significant number of cases, Eastern European DPs returned home after the war, but travelled after 1945 to the DP camps as ‘infiltrees’. This was particularly common among the 220,000 Jewish DPs, who encountered anti-Semitism at home, or who had spent the war in the Soviet Union and sought passage to Palestine. These were the only potential citizens that Eastern European states did not claim to protect. The ‘extraterritorial’ character of Jewish DPs was presumed by nearly all the United Nations.Footnote 9
In the Displaced Persons Registration Instructions of June 1944, Allied personnel were instructed to record a DP's claimed nationality regardless of its plausibility or supporting documentation. As a result, anyone claiming to come from Poland or the non-recognised territories was able to remain in the American, British and French zones of occupation in Germany unless they requested repatriation.Footnote 10 As the cost of maintaining the DP camps grew to exceed $120,000 per day, the US and British governments sought ways to resolve the problem of ‘un-repatriable’ DPs. In late 1945, the US Secretary of State, James Byrnes, pressed for the use of existing refugee conventions and organisations for a swift solution to the problem. However, this option would have required the British government to supply half of the funds for refugee resettlement. In a frank effort to defray this cost, the British Foreign Office argued that ‘un-repatriables’ should be handled by the United Nations and a new refugee organisation. This UK initiative led to extensive negotiations in the first meetings of the UN General Assembly in London, meetings of the Third Committee to draft a resolution on refugees and eventually the creation of a UN Special Committee on Refugees and DPs in February 1946 to compose the constitution of a new international refugee organisation.
The key problem the UN Special Committee faced was the resettlement of individuals who held potential state protection but refused to return to their countries of origin. Eastern European origin states argued for the preservation of existing conventions that excluded DPs from assistance as refugees because they had a nationality. Given this position in negotiations, the United Kingdom and other receiving states were pressed to introduce a new definition of a refugee and to argue that ‘un-repatriable’ DPs from eastern Europe had the right to reject state protection and to seek asylum as political refugees. The UN Special Committee created the legal definition of a refugee that would provide the basis for the 1951 Geneva Convention.
This article traces the history of the UN Special Committee and the British imperative to change the legal definition of a refugee. While the Soviet Union and Eastern European states refused to join the International Refugee Organization or to sign the 1951 Geneva Convention, this was not fundamentally the result of Cold War enmity or fundamental differences on humanitarian values and human rights. Rather, this division reflected differing position on the legitimacy of wartime territorial gains and the right of DPs to reject state protection.
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In August 1939, the foreign ministers of the Soviet Union and Nazi Germany signed a treaty of non-aggression that contained a secret protocol establishing spheres of interest in eastern Europe. Shortly thereafter, Nazi Germany and the Soviet Union invaded Poland. Following the Soviet war with Finland and occupation of Latvia, Lithuania and Estonia, the United States responded with a strong declaration in July 1940. The acting Secretary of State, Sumner Welles, decried the annexation of the Baltic States as a violation of the right to self-determination and an act of aggression by a foreign power. These principles were reaffirmed by the Allied powers in the Atlantic Charter in 1941 and a Declaration by the United Nations in 1942.Footnote 11 In a bold statement of principle, the United States government did not recognise the Baltic states in law or in fact until the fall of the Soviet Union. While the issue of non-recognition created tensions between the United States, the United Kingdom and the USSR during the war, the matter was left unresolved.Footnote 12
In the Yalta agreements of February 1945, the United States, Britain and the Soviet Union agreed to the repatriation of all Soviet citizens. A secret clause in the Yalta agreements required that all DPs from Soviet territories be returned to the USSR regardless of their individual wishes.Footnote 13 As Allied troops began to encounter violent resistance from ‘Soviet’ DPs, numerous requests for clarification were sent to the Supreme Allied Commander. After reviewing the Yalta agreements, the US government determined that no one living outside the borders of the Soviet Union on 1 September 1939 should be forcibly repatriated unless they affirmatively claimed Soviet citizenship. This policy was first communicated on 5 April 1945 and originated from the American Joint Chiefs of Staff:
Since up to the present the UNITED STATES Government has NOT formally recognized any territorial changes brought about by the present War in EUROPE, Latvians, Estonians, Lithuanians and Poles whose homes are East of the 1939 Line of Demarcation or of the Curzon Line CANNOT be repatriated to the SOVIET UNION unless they affirmatively claim Soviet citizenship.Footnote 14
This policy marked a shift in the determination of Soviet citizenship. Rather than simply accepting an individual's claimed nationality, Allied personnel were now required to establish where a DP was living on 1 September 1939 and whether he or she requested Soviet citizenship. Later in April 1945, the British government issued similar policies. The Foreign Office noted that, ‘The British position is that the Republic of Estonia no longer exists, de facto recognition of incorporation in the USSR. Therefore no Latvian, Estonian, or Lithuanian nationality exists as such. Individuals either claim Soviet citizenship or fled and are therefore Stateless’.Footnote 15 These policies established guidelines for the use of force as required under the Yalta agreements.
In December 1945, the American McNarney-Clark directive further limited the use of force to individuals captured in German uniforms, Red Army soldiers that had not been demobilised and those charged with assisting the enemy. This new policy significantly added to the number of ‘un-repatriable Displaced Persons’. With the exception of combatants and war criminals, all Soviet and Eastern European civilians were free to remain in the DP camps unless they requested repatriation.
The revision of Allied obligations under the Yalta Pact shifted the focus of screening DPs by state of origin to an individual's acceptance or rejection of Soviet citizenship. Furthermore, the US State Department began to link the issues of repatriation and persecution: ‘It is against the firm policy of the United States to return to their homes persons whose repatriation would involve threat to their lives and liberties on account of race, religion or political belief’.Footnote 16 Clearly borrowing language from the 1938 Convention, this statement establishes persecution as a basis for refusing repatriation. Aware of Allied policies, more than one million DPs and refugees from the Soviet Union and eastern Europe actively rejected their pre-war citizenship and remained in the DP camps. With growing irritation, Soviet officers sent repeated requests to speak with ‘their citizens’ and to stop the spread of ‘anti-repatriation propaganda’.Footnote 17
Contemporaries were highly aware of the problem of ‘un-repatriable’ or ‘non-repatriable’ DPs. In May 1945, the British War Cabinet contacted Herbert Emerson who was the Director of the Intergovernmental Committee on Refugees (IGCR). The IGCR was created at the 1938 Évian Conference to assist and resettle refugees coming from Germany. The War Cabinet's Committee on Refugees was greatly concerned about the growing problem of ‘non-repatriable Displaced Persons’. Writing to Emerson, the Cabinet noted that a ‘hard core’ of ‘non-repatriable’ refugees was quickly becoming an issue and that the resettlement of this group would only be possible ‘on an international basis’. Any resettlement project through the Intergovernmental Committee would require the British government to pay for half the costs of maintenance and resettlement.Footnote 18 This was a burden, which, as an individual nation, the UK could no longer carry. A new refugee organisation was needed to share the cost of resettlement among as many UN member states as possible. The total cost of the resettlement project would eventually exceed $430 million dollars.Footnote 19
In response to the Cabinet's letter, Emerson wrote that, ‘the fundamental assumption should be that all refugees are repatriable’. He dismissed un-repatriable refugees as ‘persons who have been given the convenient name of “dissidents”, who are unwilling to return to their own countries although the Governments of those countries are willing to take them back’.Footnote 20 Emerson placed stress on the fact that repatriation was preferable and that there were countries eager to see the return of their nationals. He used similar language in an earlier report on Jewish DPs and came to the same conclusions.Footnote 21 No amendments to existing conventions were needed and IGCR was fully capable of resettling the relatively small number of bona fide refugees in Europe.
In contrast, Sir George Rendel and other delegates of the British Foreign Office, argued at the United Nations Relief and Rehabilitation Administration (UNRRA) meetings in Atlantic City and at meetings of the IGCR in Paris that a ‘hard core’ group was inevitable and IGCR was incapable of caring for ‘un-repatriable’ refugees.Footnote 22 This population was composed of ‘people who have no homes at all and for whom new homes must be found; who, for one reason or another, sometimes a good reason and sometimes a less good one, cannot go back to the place from which they came, or who will inevitably become wanderers’.Footnote 23 As Rendel noted, wartime destruction left many DPs without their pre-war homes and family. Rendel's argument stressed the practical impossibility of returning DPs to their countries of origin. Interviews with Polish and Yugoslav DPs led Rendel to conclude that hundreds of thousands of DPs would inevitably refuse to be repatriate and that some alternative was needed.
Debates on the nature of ‘un-repatriable’ DPs were largely split between those who saw existing treaties and organisations as sufficient to address the problem versus those who spoke of ‘un-repatriables’ as a large and problematic population that required new solutions to refugee relief. At the founding UN conference in San Francisco in June 1945, UK representatives again raised the need for a new refugee organisation and the treatment of refugee issues on an ‘international footing’. With support from the United States, the question was placed on the agenda of the first meetings of the UN General Assembly in London.Footnote 24 In his account of the ‘great debate’ that followed, John Stoessinger identified two phases in the creation of the new refugee regime. The first phase occurred between 28 January and 12 February 1946 during meetings of Third Committee of the General Assembly. These meetings focused on whether the refugee problem was a matter of international concern and whether repatriation was a feasible solution to the ‘DP problem’.Footnote 25 The second phase occurred during meetings of the UN Special Committee on Refugees and DPs.
In the January meetings of the General Assembly, British delegate Philip Noel-Baker introduced a proposal on refugees. The text argued that the Intergovernmental Committee and UNRRA were ‘clearly no longer adequate’ and were not authorised to ‘deal, except for a short period, with persons, who for any reason, definitely cannot return to their homes, or have no homes to return to, or no longer enjoy the protection of their Governments’.Footnote 26 The British delegation proposed that refugees were a matter of international concern and that the issue should be handled by the Economic and Social Council. Highlighting the need for ‘speed in handling this matter’, Eleanor Roosevelt, the US delegate, urged that, ‘existing inter-governmental agencies maintain their activities for the benefit of refugees’.Footnote 27 No new organisation was needed. The Yugoslav delegate Aleš Bebler argued that the refugee problem would be resolved shortly and did not merit international concern. The conditions that prevented the return of DPs had disappeared with the end of Nazi Germany. The small minority of DPs remaining in Europe were largely war criminals that were subject to extradition under existing agreements. Any DPs that declined repatriation were ‘responsible for their own upkeep and shall not be entitled to expect any assistance at the expense of international organizations or of their State of origin’.Footnote 28 Bebler noted that during his life he had twice been a refugee and never received or expected international assistance.
The Soviet delegate A. A. Arutiunian noted the Soviet Union's high regard for the right of asylum as defined in Article 129 of the Soviet Constitution. Breaking with the Yugoslav position, the Soviet delegate argued that, with the exception of war criminals and enemy nationals, those who ‘do not wish to return to their countries of origin should receive assistance in their early settlement in a new place, with the consent of the Government of the country of whose citizens they are’.Footnote 29 Here Arutiunian referred to the long-standing practice of origin-state consent utilised by the IGCR. Arutiunian highlighted the importance of this practice for the USSR. Given that DPs held state citizenship, their country of origin should be consulted before granting refugee status. The Soviet Union did not reject the possibility of resettlement for those that refused to return home or the right of asylum, but insisted on the participation of origin states in refugee determinations.
Arutiunian, Bebler and other delegates from Eastern Europe did not insist on forced repatriation as a solution for all DPs, nor did they insist that all DPs were war criminals and collaborators. The first explicit reference to forced repatriation in the UN proceedings appears in an American proposal that ‘no uprooted persons, if they object to returning to their country of origin, shall be compelled to do so’.Footnote 30 Similarly, the Dutch representative, Dr Sassen, argued that ‘the principle of the “freedom to object to repatriation” of each individual must be scrupulously respected’.Footnote 31 Here we see a shift from the view that some DPs would inevitably be ‘un-repatriable’ to an affirmation of an individual's right to reject repatriation.
In February 1946, the United Nations General Assembly passed a resolution on the ‘Question of Refugees’. The resolution called for the creation of a special committee to plan a new international refugee organisation. The resolution preserved the statement that ‘no refugees or displaced persons . . . shall be compelled to return to their country of origin’. Consistent with the American McNarney-Clark Directive of December 1945, only certain categories of soldiers and war criminals remained subject to forced repatriation. All others, ‘in complete freedom and after receiving full knowledge of the facts’ were allowed to remain abroad. The General Assembly resolution established that DPs could refuse repatriation given ‘valid objections’, while also noting that the main task of work with DPs was to return them to their home countries.Footnote 32
As delegates to the Special Committee on Refugees began negotiations in London, the US Secretary of State remained sceptical that a new organisation could be created in less than a year. Eager for an end to the DP crisis, the State Department pressed the issue in March 1946 by releasing policy drafts that called for the closure of all DP camps in the US Zone in June 1946. All DPs would be encouraged to return home. Any DPs who remained could be resettled through the IGCR as refugees.Footnote 33 As George L. Warren, the American representative to the UN Special Committee, left for London, he was instructed to support the maintenance of the IGCR with an expanded mandate ‘to resettle refugees and non-repatriable displaced persons’.Footnote 34 Counter to British efforts at the UN, the United States continued to advocate for the preservation of the IGCR under a new mandate as the fastest way of transferring ‘non-repatriable displaced persons’ from Europe.
The UN Special Committee met for extensive deliberations at Church House in London between 8 April and 1 June 1946. During these meetings, representatives from twenty countries met to design a new international organisation for refugees. The members of the Special Committee were diplomats, legal experts, military commanders and specialists concerned with refugee issues. During the first meeting of the Special Committee, the British delegate Hector McNeil was elected as Chairman. Sir George Rendel offered an opening speech that lauded England's historic role as a haven for asylum seekers and refugees. Rendel proposed that the meeting start with a discussion of the term ‘refugee’ and presented a text for discussion. The following day, on 10 April, delegates met to discuss Rendel's draft definition, which stated:
It is understood that the term “refugee” is normally used to refer to a person who has left his country of origin as a result of persecution, or fear of persecution, or because he is out of sympathy with the regime in force in that country, or who, being outside his country of origin, no longer enjoys the protection of the government of that country, or has been denationalized by it, or is unable or unwilling to return to his country of origin for any of the above reasons.Footnote 35
The UK draft dated 10 April is the first time that the term ‘persecution, or fear of persecution’ was added to a refugee definition. Unfortunately, the UN archives, Foreign Office records and the George Rendel Papers in the National Library of Wales do not contain information about the drafting of this text. It remains unclear if this was Rendel's work or the product of several agencies. From George Warren's reports, it appears that the British delegate was particularly eager to introduce this definition early in the proceedings and to use it as the basis for further discussions.
The UK draft definition caused significant controversy between the delegates. It was considered to be too broad and all-inclusive. Furthermore, it did not establish how pre-war refugees groups would be treated. Would it allow for refugee assistance outside Europe? The matter of definitions was set aside for a later meeting on 11 April. In the meantime, the UNRRA and IGCR representatives to the Special Committee were asked to submit their own draft definitions for consideration. That same day, 10 April, Soviet representative General Ratov requested a meeting with George Warren. In his telegram to Washington, Warren reported that Ratov was concerned that many Soviet DPs remained in Europe because they believed that they would be treated as criminals and collaborators if they returned to the Soviet Union.Footnote 36 Consistent with the Yalta agreements, he asked that Soviet officers be granted access to camps containing Soviet citizens to address these concerns and to share the Soviet government's position on the matter. According to Warren, ‘Ratov agreed that those Byelo-Russians and Ukrainians still refusing to return after invitation was extended by Soviet liaison officers should properly become the concern of a body to be created by United Nations’.Footnote 37 The Soviet delegate had no objection to the individual right of asylum or the resettlement of those unwilling to return to the USSR. His primary concern was access for Soviet liaison officers to speak with Soviet DPs. This is consistent with the Soviet view that DPs were either war criminals (subject to extradition under Allied policies) or misinformed by anti-repatriation propaganda and fellow DPs. In reply to Warren, Secretary of State Byrnes agreed to allow Soviet soldiers access to any individuals who were Soviet citizens and living within Soviet borders on 1 September 1939.Footnote 38 Soviet officers were not allowed to speak with any DPs from areas annexed during the war by the Soviet Union. This was consistent with the policy of non-recognition outlined in April 1945.
On 10 April 1946, Herbert Emerson, the Director of the IGCR, delivered his ‘Note by the Director’ to the UN Special Committee. The first paragraphs of the ICGR director's note echoed the 1938 Convention and state that refugees have historically left their country because of a ‘fear of danger to their lives’ because of their race, religion or political beliefs. Following mention of pre-war refugee groups, the next paragraph begins by stressing the need for refugees to have adequate information from their home governments. The refugee definition then continues to state that refugees are outside their home countries and are ‘unwilling to return to those countries and are further unwilling to avail themselves of the protection of the government of those countries’.Footnote 39 For the first time, the phrase of ‘unwilling to avail’ was used in a refugee definition.
When explaining his work to the Special Committee, Emerson stressed the differences between pre-war and post-war refugees. International institutions existed to protect pre-war Russians, refugees from Germany, Spanish Republicans and other stateless refugees. Post-war DPs constituted an ‘entirely new phenomenon’. Large numbers of DPs had chosen not to return home, while their home governments were willing to offer state protection. Emerson continued that, ‘There should be no suggestion of persecution with regard to that group of displaced persons who refused to return to their own countries. It should be made quite clear that it was the individual who would not return and not their Governments who would not accept them’.Footnote 40 From this comment, it is clear that the original intent of the word ‘unwilling’ was to emphasise that it was the individual who refused to return home and refused state protection.
Reactions to the UK and IGCR drafts were volatile. Aleš Bebler suggested that any reference to persecution should be specific to Fascist countries. The Polish delegate added a motion that only those forcibly displaced by the Nazis should receive assistance.Footnote 41 The Dutch representative moved that a special drafting committee should be formed to write a new refugee definition. The Subcommittee on Definitions was formed with delegates from the United States (Warren), the Soviet Union (Ratov), the United Kingdom (Rendel), Yugoslavia (Bebler), Belgium (Schneider), Poland (Winiewicz) and France (Bousquet). Dr Gustav Kullman represented the IGCR.
Discussion in the Drafting Subcommittee began with the question of DPs. Should the new refugee definition include DPs, or should it distinguish between pre-war and post-war groups? The latter opinion prevailed in discussions and a clear distinction was made between the two groups. On April thirteenth, General Ratov introduced a new refugee definition based on the UK and IGCR drafts that preserved the phrase ‘persecution or fear of persecution’. A telegram to the US Secretary of State notes ‘it was obvious that Soviet delegate had presented his draft without consulting Yugoslav representative who had previously taken leadership of Eastern European group. Yugoslavia was clearly upset by presentation of Soviet draft’.Footnote 42 American observers were surprised by this discord and lack of co-ordination. Given extensive consultation and co-ordination between the American and the British delegates, it was surprising that the Soviets and Yugoslavs were not acting as a coherent ‘eastern group’.
An initial report was sent to Chairman McNeil from the Drafting Subcommittee on 16 April. The report included a new draft definition. The phrase ‘unwilling to avail’ was temporarily removed. However, a series of valid objections to repatriation were outlined. The idea of ‘valid objections’ is present in the General Assembly resolution that formed the Special Committee, but the resolution did not define what constituted a valid objection. The new draft named ‘persecution or fear of persecution because of race, religion, nationality or political opinion’.Footnote 43 The Subcommittee's report was the first time that this well-known phrase, the ‘nexus clause’, was added to a refugee definition. The combination of ‘race, religion and political beliefs’ was used in various League of Nations documents. However, this was the first time that this element was joined with ‘persecution or fear of persecution’, which first appeared in the UK and Soviet draft refugee definitions in 1946. The ‘valid objections’ clause in the new refugee definition provided criteria for who could and who could not make legitimate claim to refugee status. The acceptable objections to repatriation named in the final IRO Constitution included persecution for race, religion and nationality as well as political opinions, health and compelling family reasons.Footnote 44
On 4 May the Drafting Subcommittee submitted a second report. George Rendel wrote that after more than sixty hours of debate, the Subcommittee had reached a provisional agreement on a refugee definition. The reintroduction of the clause stating that refugees were ‘unwilling to avail themselves of the protection of the governments of their nationality’ was especially contentious and created irreconcilable differences.Footnote 45 As Rendel noted in his final Subcommittee report,
The Soviet and Yugoslav Delegates objected strongly to this clause, and pressed for its complete deletion. The United Kingdom Delegate [Rendel] regarded its maintenance as essential, and all efforts to reach a compromise having failed it was agreed that this point must also be regarded as one on which deadlock had been reached.Footnote 46
The Soviets objected to the paragraph ‘in any form’. Nonetheless, the clause was included in the refugee definition following a vote of eleven to six in the Special Committee.Footnote 47 The Soviets were simply outnumbered. Australia, Belgium, Brazil, Canada, Columbia, the Dominican Republic, the Netherlands, New Zealand, the United Kingdom and the United States voted in favour of paragraph two. Byelorussia, Czechoslovakia, Poland, Ukraine, the USSR and Yugoslavia voted against. China, France and Lebanon abstained. The final Subcommittee report described a refugee as a person ‘who is outside his country of nationality or former habitual residence, and who, as a result of events subsequent to the outbreak of the Second World War, is unable or unwilling to avail himself of the protection of the Government of his country of nationality or former nationality’.
Between the IGCR director's note and the Drafting Subcommittee final report, something very important took place. Emerson used the phrase ‘unwilling to avail’ as part of an argument that DPs who refused state assistance should not fall under the IRO mandate. However, the Subcommittee definition ensured that DPs who were ‘unable to agree with the Governments of their countries of origin’ would be eligible for IRO assistance.Footnote 48 Originally meant to condemn DPs’ unwillingness to accept state support, the phrase ‘unwilling to avail’ now made that unwillingness a defining feature of a refugee.
Ultimately, the gridlock faced in the debates was overcome by the Special Committee vote in which ‘origin’ countries were a minority. This was a procedural and practical resolution of the matter rather than a consensus or resolution of conflicting views. Later meetings of the Special Committee at Lake Success, NY did not significantly revise the London draft. Yugoslavia moved again for the deletion of paragraph two. The motion was unsuccessful. A French compromise to place the paragraph in a separate annex was also rejected. When the Final Report of the Special Committee was published on 1 June, the refugee definition in the report included paragraph two and the phrase ‘unable or unwilling to avail’.Footnote 49
Over the next several months, the draft Constitution of the IRO was presented at the UN Economic and Social Council, circulated to member states for review, and then discussed at meetings of the UN General Assembly in November and December 1946. As a hedge against delays in the UN, the United States and United Kingdom introduced a measure in the Executive Committee of the IGCR that extended its programme to include refugees and DPs as defined in the draft IRO Constitution. The Soviet Union voted against the measure, but it passed in a 7 to 1 vote.Footnote 50 The USSR then withdrew its membership in the IGCR in August 1946.
During the General Assembly meetings in November, the Soviet Union and Yugoslavia presented fifty-four amendments to the IRO Constitution. In a speech before the General Assembly, Andrei Vyshinsky, the Soviet Deputy Foreign Minister, stated that the Soviet government refused ‘to consider as “refugees” persons who . . . do not wish to use the protection of the governments of their countries of nationality’.Footnote 51 State support was available to post-war DPs. If an individual refused that protection, this did not make them deserving of international assistance or refugee status. Here it is important to note that Vyshinsky adopted the view expressed earlier by Bebler. On 13 December 1946, the IRO Constitution was adopted by a vote of thirty to five with eighteen abstentions. All of the eastern European and Soviet countries voted against the Constitution with the exception of Czechoslovakia, which abstained. The definition of a refugee in the IRO Constitution was identical to the Subcommittee definition quoted above.Footnote 52
While the phrase ‘unable or unwilling to avail’ might have been secure in the IRO Constitution, its longevity could not have been predicted at the time. The necessary fifteen signatures for the IRO Constitution were only obtained in 1948. The IRO had a limited lifespan and ceased operations in January 1952. The phrase could have easily disappeared along with the IRO. In 1948, the Universal Declaration of Human Rights (UDHR) included both the right to leave one's country and the right to seek asylum from political persecution. Article fifteen of the UDHR details the right to a nationality and the right to change one's nationality. Where the IRO Constitution was a direct response to the post-war DPs crisis, the UDHR created a more universal framework for addressing refugee issues.
In August 1949, the UN Secretary General published ‘A Study of Statelessness’. This extensive report notes the important distinction between de facto and de jure stateless persons. De jure stateless persons lack state belonging either because they ‘were not given a nationality’ or because they ‘had lost their own nationality and did not acquire a new one’.Footnote 53 This type of statelessness is seen solely as the absence of a nationality. A second category of de facto stateless persons was composed of people who,
having left the country of which they were nationals, no longer enjoy the protection and assistance of their national authorities, either because these authorities refuse to grant them assistance and protection or because they themselves renounce the assistance and protections of the countries of which they are nationals.Footnote 54
Here we have a very clear statement that an individual can ‘renounce the assistance and protections’ of a state. While the meaning of ‘unwilling to avail’ is open to interpretation, here we see the explicit claim that an individual can reject the protection of his or her state.
Following the Secretary General's report, the Economic and Social Council voted to create an Ad Hoc Committee on Statelessness. With the closure of the IRO in the offing, the Ad Hoc Committee was charged with the preparation of a revised and consolidated convention relating to the international status of refugees. The Ad Hoc Committee, which was composed of representatives from ten countries and the IRO, met in January and February 1950 in Lake Success, NY. Soviet and Polish representatives attended the first meeting, but left in protest because the Chinese delegate represented the Kuomintang and not the People's Republic of China. On 18 January, the UK delegation introduced a draft definition of ‘unprotected persons’. This included people whose state refused to protect them or ‘for good reasons . . . they do not desire the protection of the state’. The ability to reject state protection was acknowledged, but emphasis was placed on the need for ‘good reasons’.Footnote 55 The UK definition reflects a concern, outlined in the brief to British representatives on the Ad Hoc Committee, that the new convention should protect people who were stateless through ‘no fault of their own’, but should exclude ‘persons who have renounced their nationality without good reason, or have refused to accept the protection of their country’.Footnote 56
On that same day, Louis Henkin, the United States representative, introduced a ‘Memorandum on the Definition Article’. Under the definition of a ‘neo-refugee’ we find the familiar phrase ‘unable or unwilling to avail’. The American memorandum was based largely on the IRO Constitution and named specific groups eligible for refugee status. At the request of the Belgian delegate, the refugee definition was divided into three component parts. As a result of (a) ‘well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion’ a refugee is (b) ‘outside their country of nationality’ and is (c) ‘unable or, owing to such fear, unwilling to avail himself of the protection of the country of his nationality’.Footnote 57 Elements that had been present in earlier definitions were placed together as constituent parts of the refugee definition. The Committee's definition served as the basis for the Statute of the Office of the United Nations High Commissioner for Refugees (UNHCR) in December 1950.Footnote 58
When the Conference of Plenipotentiaries met in March 1951 to finalise the Refugee Convention, they worked from the UNHCR definition.Footnote 59 Minor stylistic amendments were debated, but the right to refuse state assistance was preserved. As stated earlier by the Ad Hoc Committee, ‘ “unable” refers primarily to stateless refugees . . . “Unwilling” refers to refugees who refuse to accept the protection of the government of their nationality’.Footnote 60 What began as a minor point of emphasis, now defined a refugee's right to sever their belonging with a state and change their nationality. On 28 July 1951, this understanding of the word ‘unwilling’ was preserved in the final draft of the Convention Relating to the Status of Refugees. The 1951 Geneva Convention clearly states that a refugee is ‘unwilling to avail himself of the protection’ of his or her country of nationality.
Conclusion
Political asylum has long been a part of international relations, but it was not a part of the international refugee regime until 1946.Footnote 61 The revision of the refugee definition to include both those unable and those unwilling to receive state protections significantly changed the nature of refugee relief. Rather than simply provide humanitarian care and resettlement assistance, the UNHCR offers protection from extradition for refugees based on a well-founded fear of persecution. Where previously only states could denationalise an individual, an individual could now reject state protection and seek asylum as a refugee. This right is so fundamental as to seem timeless. However, this dramatic shift in refugee work emerged only in 1946 as a little-known part of the post-war ‘human rights revolution’.Footnote 62
This change in the refugee idea was far from inevitable. The United States government consistently advocated for a swift end to the ‘DP crisis’ using the IGCR to resettle both DPs and pre-war refugees. British initiative moved negotiations from the IGCR, where the Soviet Union and Czechoslovakia were easily ignored, to the United Nations. This significantly increased the influence of eastern European states with claims to protect the DPs from their territories. ‘Origin states’ formed a vocal minority in the UN and UN Special Committee. General Ratov and Aleš Bebler opposed international funding for resettlement for all but stateless refugees. This required Rendel and Warren to advocate openly for a new refugee definition in which a refugee can actively reject state protections. The term ‘unwilling’ made it possible for Eastern European and Jewish DPs to become de facto stateless and to seek a new life in the West during the early months of the global cold war.
