Bare Acts


Part I|Part II|Part III|Part IV

FOREWORD
One of the outstanding achievements of the 20th century in the humanitarian field has been the establishment of the principle that the refugee problem is a matter of concern to the international community and must be addressed in the context of international cooperation and burden-sharing. This notion first came into existence after the First World War, under the League of Nations which was called upon to deal with successive waves of refugees. It was further developed and strengthened after the Second World War through continuing action undertaken by the United Nations to address numerous refugee situations in all regions of the world. Such refugee situations remain a tragic feature of our troubled times. International cooperation in dealing with refugee problems presupposes collective action by governments in working out appropriate durable solutions for refugees. Until an appropriate durable solution is found for them and refugees cease to be refugees either through voluntary repatriation or legal integration (naturalization) in their new home country, it is necessary for them to be treated in accordance with internationally recognized basic minimum standards. The formulation and further developments of these standards – and efforts to ensure that they are effectively implemented – have from the outset been an essential component of the collective international approach to the refugee problem. These standards are defined in a series of international instruments (conventions, resolutions, recommendations, etc), adopted at the universal level under the United Nations, or within the framework of regional organizations such as the Council of Europe, the Organization of African Unity and the Organization of American States. In order to ensure their more effective implementation, many of these standards have been incorporated into the national law of a growing number of countries.

At the universal level, the most comprehensive legally binding international instrument, defining standards for the treatment of refugees is the United Nations Convention relating to the Status of Refugees of 28th July 1951. This Convention was adopted in the immediate post-World War II period, when the refugee problems confronting the international community, were mainly those of refugees of European origin. It was for this reason that the Convention contained a deadline which limited its application to the then known groups of refugees, i.e. persons who had become refugees as a result of events occurring before 1st January 1951. It was, however, recognized already at that time that the standards defined in the Convention were of universal applicability, and the Conference which adopted the Convention therefore included in its Final Act, Recommendation E in which it

“Expressed the hope that the Convention would have value as an example exceeding its contractual scope that all nations would be guided by it in granting as far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention the treatment for which it provides.”

After the adoption of the 1951 Convention, refugee situations began to arise in different regions of the world, which were not in any way related to pre-1951 events. This led to efforts to make the Convention fully applicable in all new refugee situations, based on the recognition that the 1951 Convention should become the universal international instrument for the protection of refugees. It resulted in the United Nations Refugee Protocol which removed the 1951 dateline in the Convention and which was opened for accession on 31st January 1967. To date, 114 States in all regions of the world have become parties to the 1951 Convention and/or to the 1967 Protocol.

The author of the present commentary, the late Dr. Paul Weis, played an active part in the work leading to the preparation of the 1951 Convention and the 1967 Protocol and was Director of the Legal Division of my Office for a number of years up to his retirement in 1967. He was a universally recognized expert on International Refugee Law and was the author of numerous articles dealing with the basic international refugee instruments, and a whole spectrum of issues relating to refugee status and asylum. He was also the author of an important work on ‘Nationality and Statelessness in International Law’. In October 1991, he was posthumously awarded the Nansen Medal in recognition of his major contribution to the development of international legal standards for the treatment of refugees.

It is a great source of satisfaction to me that Dr. Weis was able to write a commentary on Articles 2 to 37 of the Convention based on the travaux préparatoires. In addition to providing useful guidance for the interpretation of specific provisions of the Convention, the travaux préparatoires are of considerable historical significance. They illustrate in very graphic form the various issues which the refugee problem presented for the international community at that time and the manner in which these issues were addressed both on the conceptual and on the practical levels. They sometimes display a remarkable similarity to many of the issues arising out of contemporary refugee problems and thus provide a valuable point of reference.

I am certain that the commentary will contribute to a better understanding of the articles discussed and of the Convention as a whole, and will also serve to focus renewed attention on the fundamental importance of recognized international legal standards for the treatment of refugees and their correct application.

The existing body of legal principles for the treatment of refugees forms an essential part of our humanitarian heritage of which we can be justly proud. It therefore gives me particular pleasure to commend the present Commentary to the reader’s attention.

Dr Sadako Ogata
United Nations High Commissioner for Refugees

PREFACE
One of the principal objectives of the Research Centre for International Law since its establishment in 1983 has been the provision of basic materials of international law in readily accessible form for the use of scholars and practitioners. To this end the Centre supported the production by Dr Lambert of his systematic commentary on the Hostages Convention. More recently, the Centre has established the Cambridge International Document Series, of which the first three volumes have been devoted to the developments following the Iraqi invasion of Kuwait in 1990 and a fourth has dealt with the international aspects of money-laundering.

Amongst the subjects in which the Research Centre has also interested itself is that of the international protection of refugees. Dr Weis was approached in 1983 with the suggestion that, in view of his unique qualifications in the field, he should prepare a systematic presentation of the records of the negotiations (the travaux préparatoires) of the Refugee Convention. Though very willing to use his great knowledge for this purpose, Dr Weis, already then advanced in years, limited himself to the treatment of the Preamble and Articles 2–28.

It seems wrong that, notwithstanding its occasionally incomplete condition, material of such interest and value should not be made generally accessible. At the request of Mr Julian Weis, the son of Dr Weis, the Refugee Studies Programme of Oxford University, upon the initiative of Dr Barbara Haffell-Bond, took over the preparation of the pages left behind by Dr Weis. Dr Chaloka Beyani, HRH Crown Prince El Hassan bin Talal of Jordan Researcher at the Refugee Studies Programme, has written the Introduction. The Refugee Studies Programme has received generous support from Mr Julian Weis so that the publication of this work might serve as a further memorial to the name of his father, already so well known for his writing on this subject.

In view of the largely documentary character of Dr Weis’s work, the Research Centre for International Law at Cambridge is now happy to assist in promoting the wider circulation of the material by including it within the Centre’s International Documents Series.

E. Lauterpacht, CBE, QC
Director, Research Centre for International Law
University of Cambridge

INTRODUCTION
Dr Weis needs no introduction to most scholars and practitioners in the field of refugee protection. That his comments on the preparatory material to the Convention Relating to the Status of Refugees 1951 should have an introduction may be regarded as anachronistic. However, an introduction to this book is necessitated by the fact that Dr Weis’s comments did not cover the preparatory work to Article 1 of the Convention. Reasons for this omission are a matter of conjecture. Be that as it may, it is not the aim of this introduction to fill in this gap, as it were. Rather, the purpose is to gently lead the reader into the substance of Dr Weis’s book. In doing so, the introduction is intended to acquaint the reader with the most important, and perhaps problematic, aspects of Article 1 which are central to eligibility for refugee protection. The interested reader may have recourse to Dr Weis’s other works on this subject.

Dr Weis’s present work is in large measure a product of his intimate involvement in the preparation of the Convention Relating to the Status of Refugees. This Convention was adopted by the United Nations Conference on the Status of Refugees and Stateless Persons at Geneva 2-25 July 1951. It entered into force on 22 April 1954, and 102 States have now ratified or acceded to it. Originally, the scope of application of the Convention was limited to events occurring in Europe or elsewhere before 1 January 1951. However, this limitation was removed on 4 October 1967 when the Protocol Relating to the Status of Refugees entered into force. The Protocol itself was adopted by the General Assembly of the United Nations on 16 December 1966, and has attracted 103 States Parties.

A remarkable feature of the Convention is the establishment of a system of international protection to persons who are in need of it. From the perspective of international law, the Convention accords the status of a refugee to a person who has lost the protection of their state of origin or nationality. It is essentially the loss, or failure, of state protection which makes international protection necessary for refugees.

Recognition on the part of states of the necessity to admit as refugees within their territories only persons in genuine need of protection led to the development of international standards providing criteria according to which claims to refugee status are determined. In this respect, Article 1 of the Convention contains the relevant standards, and reads as follows:

A. For the purpose of the present Convention, the term refugee shall apply to any person who: (1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the Refugee Organisation;

Decisions of non-eligibility taken by the International Refugee Organisation during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.

B. (1) For the purposes of this Convention, the words ‘events occurring before 1 January 195 V in Article 1, Section A, shall be understood to mean either
(a) ‘events in Europe before 1 January’; or
(b) ‘events occurring in Europe or elsewhere before 1 January 1951′; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention

(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligation by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.

C. This Convention shall cease to apply to any person falling under the terms of section A if:
(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or
(4) He can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;

Provided that this paragraph shall not apply to a refugee falling under section A(l) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;

Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence; Provided this paragraph shall not apply to a refugee falling under section A(l) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to return to the country of his former habitual residence.

D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for refugees protection or assistance. When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.

In broad terms, Article 1 of the Convention outlines the basis on which protection to refugees is granted, or denied, or discontinued. A well founded fear of persecution based on reasons specified above, and being outside the country of origin, nationality, or habitual residence evidenced by unwillingness to return to such a country, are all significant elements in the definition of a refugee. However, the element of a well-founded fear of persecution is clearly the most important factor concerning the determination of refugee status. The other elements of the definition ie outside the country of origin, nationality, or habitual residence, coupled with unwillingness to return are essentially questions of fact. They constitute evidence of the claimants’ fear of persecution in their country of origin, nationality, or habitual residence, as well as of the fact that they have lost the protection of such a country.

By contrast, the criterion of a well-founded fear of persecution is a legal standard whose application is conditioned by the existence of objective facts. Grahl-Madsen noted that the adjective ‘well-founded’ connoted a fear based on reasonable grounds of persecution. In his view, this term suggests that it is not the frame of mind of the person concerned which is decisive for her or his claim to refugee status, but that this claim should be measured with a more objective yardstick.

Other writers have made propositions of a similar nature. Thus it has been observed that the phrase ‘well founded’ means there must be sufficient facts to justify the conclusion that the applicant for refugee status would face a serious possibility of being subjected to persecution upon return to the country of origin. Some sources indicate further still that well-founded fear means that the applicant must give a plausible account of why she or he fears persecution, or that the applicant must show good reason to fear persecution by adducing evidence of an objective risk. These views are consistent with certain decisions made by superior courts of record in leading common law jurisdictions.

A consensus of judicial opinion has added content to the meaning of the phrase ‘well-founded fear’ of persecution in the context of the standards set in the Convention Relating to the Status of Refugees. In the case of I.N.S. v CardozaFonseca the Supreme Court of the United States laid the test of reasonable possibility of persecution as the basis for determining the meaning of the well-founded fear of persecution. In an illustrative opinion, Judge Stevens stated that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.

The House of Lords in England approved this approach in the case of R v Secretary of State for the Home Department, ex parte Sivakuniaran. In this case, the six applicants for asylum were Sri Lankan nationals who belonged to the Tamil ethnic group. The Secretary of State refused to grant the applications on grounds that on the facts known to him, the applicants had no reason to fear if they returned to Sri Lanka.

The House of Lords held that the requirement in Article 1 (A)(2) of the Convention that an applicant for refugee status had to have a ‘well-founded fear’ of persecution if returned to his or her own country meant that there had to be demonstrated a reasonable likelihood that he or she would be so persecuted. The Court stated that in deciding whether the applicants had made out their claim that their fear of persecution was well-founded, the Secretary of State could take into account facts and circumstances known to him or established to his satisfaction, but possibly unknown to the applicant in order to determine whether the applicant’s fear was objectively justified.

Following this reasoning, the Court took the view that since the Secretary of State had before him information which indicated that there had been no persecution of Tamils generally, or any particular group of Tamils, or the applicants in Sri Lanka, he had been entitled to refuse application on the ground that there existed no real risk of persecution. In Canada, the Federal Court of Appeal considered the approaches taken by the United States Supreme Court and the House of Lords in the cases above. The Canadian Federal Court applied a reasonable chance for fearing persecution as a test for determining the existence of a ‘well-founded fear’ of persecution.

In general, these cases indicate the type of problems which surround increasingly restrictive interpretations of the criteria governing refugee status. But the consistency of the tests used is significant in providing evidence that the standard of well-founded fear of persecution is one of general application in international law. There is a similarity of content in the tests of reasonable possibility, reasonable likelihood, and reasonable chance, all of which are variously used to determine objectively a well-founded fear of persecution. On good authority, there is no practical difference in the legal application of these tests.

The term ‘persecution’ is not defined either in the Convention Relating to the Status of Refugees or in the preparatory material to the Convention. There could have been an underlying motive behind this.14 Whatever the case, the judicial view is that persecution connotes injurious or oppressive action. The problem with such narrow and literal approaches to the meaning of persecution is that the institution of asylum as a whole faces constraints which threaten the humanitarian spirit of the Convention.

Consequently, formidable challenges to broaden the conception of persecution in order to continue to provide sanctuary to refugees have to be faced. One such challenge is the linkage between human rights and the refugee regime. Clearly, the concept of persecution cannot have remained unaffected by subsequent developments in the law relating to human rights. Any meaning that has to be given to the concept of persecution must take into account the existing general human rights standards.

Principles of human rights have considerably widened the ambit of protection afforded to persons generally. Moreover, the Convention is based on humanitarian ideals embellished in the concept of human rights. Indeed the preamble to the Convention Relating to the Status of Refugees affirms the principle enunciated in the Charter of the United Nations that human beings shall enjoy fundamental rights and freedoms without discrimination. The grounds on which persecution is recognised in the Convention, namely, race, religion, nationality, political opinion or membership of a particular social group are identical to those on which discrimination under human rights standards is prohibited in general international law.

At the very least, a connection exists between persecution and the failure on the part of states to observe certain human rights. The reference contained in the Preamble to the Convention concerning the principle that human beings shall enjoy fundamental rights and freedoms may provide a context for advancing the view that the violation of certain rights may either constitute, persecution per se, or evidence thereof.

Thus unjustified discrimination on grounds of race, religion, nationality, political opinion, or membership of a particular social group, may constitute persecution in international law.

It has been suggested that the persecution feared by the refugee is primarily in the nature of a serious disadvantage, including jeopardy to life, physical integrity or liberty within the meaning of Articles 31 and 33 of the Convention Relating to the Status of Refugees.15 Article 31 relates, threats to life or freedom, to persecution in Article 1 of the Convention. It establishes a linkage between such threats, and the grounds of race, religion, nationality, membership of a particular social group or political opinion. And these are the grounds on which persecution is determined primarily in the sense of Article 1 of the Convention.

While Article 31 speaks of ‘refugees who coming directly from a territory where their life or freedom was threatened’ in the sense of Article 1, Article 33 prohibits states to ‘expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his (or her) life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. The conclusion that threats to life and individual freedom generally, or in relation to these grounds, constitute persecution is warranted.

There are further indications emanating from the Convention Against Torture which show a connection between persecution and human rights standards. Article 3 of the Convention prohibits expulsion, return, or refoulement of persons to countries where there is a substantial risk that they will face torture, inhuman or degrading treatment. This is a statement of the principle of non-refoulement, the cornerstone of refugee protection. Inclusion of this principle in a human rights instrument independently of the refugee regime affirms its existence in general international law. Above all, such an inclusion shows that proof of a substantial risk of torture, inhuman or degrading treatment may constitute a well-founded fear of persecution or evidence thereof.

According to Plender,16 the difference in origins and meaning between persecution in the 1951 Convention and inhuman or degrading treatment in the European Convention on Human Rights is a point of some significance for the asylum seeker who faces ill-treatment short of persecution. Plender suggests that there is no reason in principle why such a person should be unable to rely upon the prohibition of inhuman and degrading treatment of Article 3 of the Convention on Human Rights, and that the European Commission’s case law on that Article do not imply that he cannot do so.

The case law of the Human Rights Committee shows that detention, confinement, and banishment on account of political opinions amounts to persecution. It is of some significance that the view of the Committee in at least two cases was made without reference to the standard of persecution contained in the Convention Relating to the Status of Refugees. This means that the concept of persecution is wider in scope and that it is associated with the denial of certain human rights. In contemporary times, it is evident that massive violations of human rights, serious public disorder, internal strife or armed conflict, acts of aggression and foreign domination, all compel persons to flee across state frontiers in large numbers.17 As the causes of forced migration beyond state borders have become more complex and intense, the standard of a well-founded fear of persecution by itself is inadequate to providing sanctuary to the mass number of refugees in flight for their lives and safety all over the world.

The plight of women being persecuted for reasons related to their gender as victims of systematic rape, sexual abuse, and discriminatory patterns of traditional customs and behaviour is a matter not addressed directly by the Convention of 1951. The definition of non-discrimination in Article 3 of the Convention does not include the category of sex. It has been left to the practice of the United Nations High Commissioner for Refugees to recognise that ‘Women at Risk’ are a special category of refugee protection. Some jurisdictions have also come to accept that ‘Women at Risk’ may constitute membership of a particular social group under Article 1(2) of the Convention.

Although the foregoing are important reflections for the reader, this book will provide an authoritative insight into the process that led to the conclusion of the Convention relating to the Status of Refugees. It is organised in the format arranged by Dr Weis, and it remains his original work. Both scholar and practitioner will find it invaluable.

BACKGROUND
In 1947 the Commission on Human Rights adopted a Resolution by which it expressed the wish that ‘early consideration be given by the United Nations to the legal status of persons who do not enjoy the protection of any government, in particular pending the acquisition of nationality as regards their legal and social protection and their documentation’. In pursuance of this Resolution, the Economic and Social Council requested the Secretary-General at its sixth session:

‘a) to undertake a study of the existing situation in regard to the protection of stateless persons by the issuance of necessary documents and other measures, and to make recommendations to an early session of the Council on the interim measures which might be taken by the United Nations to further this object;

b) to undertake a study of national legislation and international agreements and conventions relevant to statelessness and to submit recommendations to the Council as to the desirability of concluding a further convention on this subject.’

This study was published by the Department of Social Affairs under the title ‘A study of statelessness’. In this study the Secretary-General recommended the conclusion of an international convention concerning the legal status of stateless persons, whether de jure or de facto, which would not entail abrogation of existing agreements.

The Economic and Social Council adopted at its ninth session on 8 August 1949 Resolution 8(IX)B, reading:

The Economic and Social Council

Takes note of the report of the ad hoc Committee on Refugees and Stateless Persons including, in particular, the draft agreements contained therein and of the comments of Governments thereon,

Submits to the General Assembly the report of the ad hoc Committee, together with the comments of Governments thereon, and the records of the proceedings of this Council on this subject,

Requests the Secretary-General:

(1) To reconvene the ad hoc Committee on Refugees and Stateless Persons in order that it may prepare revised drafts of these agreements in the light of comments of Governments and of specialized agencies and the discussions and decisions of this Council at its eleventh session, which shall include the definition of ‘refugee’ and the Preamble approved by the Council, making such other revisions as appear necessary: and

(2) To submit the drafts, as revised, to the General Assembly at its fifth session:

Draws to the attention of the ad hoc Committee the fact that, under rules 75 and 77 of the rules of procedure of the Council, the Committee is authorized to hear statements from Member States not members of the Committee and from such specialized agencies as may wish to participate without vote in the deliberations of the Committee;

Decides that, in addition, the ad hoc Committee is authorized to hear statements from such non-member States, because of their special interest in the problem, as may wish to participate as observers, without vote, in the deliberations of the Committee; and

Recommends to the General Assembly that it approve international agreements on the basis of the draft agreements prepared by the ad hoc Committee, as revised, taking into account comments of Governments and the views expressed at the eleventh session of the Council.

The membership of the ad hoc Committee, called ad hoc Committee on Statelessness and Related Problems, was increased from 9 to 13 at the 337th meeting of the Council. The following States were elected to be represented on the Committee: Belgium, Brazil, Canada, China, Denmark, France, Israel, Poland, Turkey, Union of Soviet Socialist Republics, the United Kingdom, the United States and Venezuela. The representatives of Poland and the USSR did not take part in the meeting. The Committee elected Mr. Leslie Chance of Canada as Chairman, Mr. Knud Larsen (Denmark) as Vice-Chairman and Mr. Ramiro Sanaiva Guerreiro as Rapporteur. At the second Session Mr. Larsen (Denmark) took the chair in the absence of the Chairman; Mr. Penteado (Brazil) was elected Vice-Chairman. The Committee held its first session in New York from 16 January to 16 February 1950. It drew up a draft convention relating to the status of refugees which would supersede existing agreements on the subject.

The Economic and Social Council examined at its 11th session the Preamble of the draft convention and the definition of
refugee contained in Article 1 of the draft. It adopted on 16 August 1950 the following Resolution, 319(XI)B I:

B Draft Convention relating to the Status of Refugees

I REPORT OF THE AD HOC COMMITTEE ON REFUGEES AND STATELESS PERSONS

The Economic and Social Council

Takes note of the report of the ad hoc Committee on Refugees and Stateless Persons including in particular the draft agreements contained therein and of the comments of Governments thereon,

Submits to the General Assembly the report of the ad hoc Committee, together with the comments of Governments thereon, and the records of the proceedings of this Council on this subject,

Requests the Secretary-General:

(1) To reconvene the ad hoc Committee on Refugees and Stateless Persons in order that it may prepare revised drafts of these agreements in the light of comments of Governments and of specialized agencies and the discussions and decisions of this Council at its eleventh session, which shall include the definition of ‘refugee’ and the Preamble approved by the Council, making such other revisions as appear necessary; and

(2) To submit the drafts as revised, to the General Assembly at its fifth session; Draws to the attention of the ad hoc Committee the fact that, under rules 75 and 77 of the rules of procedure of the Council, the Committee is authorized to hear statements from Member States not members of the Committee and from such specialized agencies as may wish to participate without vote in the deliberations of the Committee; Decides that, in addition, the ad hoc Committee is authorized to hear statements from such non-member States, because of their special interest in the problem, as may wish to participate as observers, without vote, in the deliberations of the Committee; and

Recommends to the General Assembly that it approve international agreements on the basis of the draft agreements prepared by the ad hoc Committee, as revised, taking into account comments of Governments and the views expressed at the eleventh session of the Council.

The Committee, now called the ad hoc Committee on Refugees and Stateless Persons, held its second session in Geneva from 14-25 August 1950. Representatives of Switzerland and Italy took part in the meeting as observers. The Committee revised the articles of the Draft Convention other than Article 1.

The Economic and Social Council decided by Resolution 319(XI)B II that the Draft Convention as revised by the ad hoc Committee be submitted to the General Assembly. The preamble and Article 1 as drafted by the Economic and Social Council were included in the Resolution.

The third Committee of the General Assembly reviewed at the Assembly’s fifth session in 1950 Article 1 as drafted by the Economic and Social Council. The Assembly adopted on 14 December 1950 Resolution 429(V) reading:

The General Assembly,

Considering that, by its resolution 362(IV) of 22 October 1949, it approved the recommendation of the Special Committee on Methods and Procedures that the General Assembly might decide to convene a conference of plenipotentiaries to study, negotiate, draft and possibly sign conventions that had been drawn up by Conferences in which all Members of the United Nations have not been invited to take part, Considering the desirability of enabling the Governments of States not Members of the United Nations to participate in the final stages of the drafting of the Convention relating to the Status of Refugees, as prepared by the ad hoc Committee on Refugees and Stateless Persons and the Economic and Social Council.

1. Decides to convene in Geneva a conference of plenipotentiaries to complete the drafting of and to sign both the Convention relating to the Status of Refugees and the Protocol relating to the Status of Stateless Persons;

2. Recommends to Governments participating in the conference to take into consideration the draft Convention submitted by the Economic and Social Council and, in particular, the text of the definition of the term ‘refugee’ as set forth in the annex hereto;

3. Requests the Secretary-General to take the steps necessary for the convening of such a conference at the earliest possible opportunity;

4. Instructs the Secretary-General to invite the Governments of all States, both Members and non-members of the United Nations, to attend the said conference of plenipotentiaries;

5. Calls upon the United Nations High Commissioner for Refugees, in accordance with the provisions of the Statute of his Office, to participate in the work of the Conference.

The Conference of Plenipotentiaries met at Geneva from 2-25 July 1951. The following 26 states were represented by delegates:

Australia, Austria, Belgium, Brazil, Canada, Colombia, Denmark, Egypt, France, Federal Republic of Germany, Greece, Holy See, Iraq, Israel, Italy, Luxembourg, Monaco, Netherlands, Norway, Sweden, Switzerland (the Swiss delegation also represented Liechtenstein), Turkey, United Kingdom of Great Britain & Northern, Ireland (UK), United States of America (US), Venezuela, Yugoslavia

The Governments of Cuba and Iran were represented by observers. The Conference adopted on 25 July the Convention relating to the Status of Refugees. The Final Act was signed on 28 July.

PREAMBLE
The ad hoc Committee took as a basis of discussion a preliminary Draft Convention relating to the Status of Refugees (and Stateless Persons) prepared by the Secretariat. This Draft contained the following preamble.

Considering that Article 6 of the Universal Declaration of Human Rights lays down that: ‘Everyone has the right to recognition everywhere as a person before the law’ and that Article 15(1) lays down that: ‘Everyone has the right to a nationality’,

Considering that a refugee whose juridical status has not been determined does not possess a guarantee of the right to recognition everywhere as a person before the law,

Considering that a refugee who has been deprived of his nationality or who no longer enjoys the protection and assistance of the State to which he belongs nominally no longer has the advantages derived from the possession of nationality, to which everyone has the right,

Considering that stateless persons other than refugees are in the same unfavourable position,

Considering that until a refugee has been able either to return to his country of origin or to acquire the nationality of the country in which he has settled, he must be granted juridical status that will enable him to lead a normal and self-respecting life,

Considering that the same status should be given to stateless persons other than refugees,

The High Contracting Parties have decided upon the following provisions:

At its 21st meeting, the Committee established a working group composed of the representatives of Belgium, France, Israel, the United Kingdom, the United States and the Chairman of the Committee, the Representative of Canada, as ex officio Chairman. Its terms of reference were:

(a) To polish the drafting and order the articles of the Draft Convention;

(b) to concord the English and French texts;

(c) to draft a preamble; and

(d) to consider the possibility of including a provision to the effect that certain articles of the Draft Convention would apply to stateless persons who were not refugees.

The Working Group proposed the following preamble:

Preamble

The Contracting States,

Considering the concern of the United Nations for the protection of human rights without any discrimination as given expression in the Universal Declaration of Human Rights; and in particular their concern for the protection of the rights of refugees as evinced in various resolutions of the General Assembly of the United Nations, and

Considering further that it is desirable to revise and consolidate existing international agreements relating to the protection of refugees, to extend the scope of such agreements to additional groups of refugees and to increase the protection accorded by these instruments,

Have agreed

At the 26th meeting of the ad hoc Committee, the representative of China drew attention to the phrase ‘as evinced in various resolutions of the General Assembly and the Economic and Social Council of the United Nations, especially resolution 319(IV)A, 3 December 1949’. He thought he was correct in stating that the question of the international status of refugees had been raised and discussed in the first place by the Economic and Social Council, but had subsequently been taken over entirely by the General Assembly. He did not think that the Economic and Social Council had adopted any resolutions which had not been approved and endorsed by the General Assembly.

He concluded, therefore, that the phrase he had mentioned could be deleted and it would suffice if explicit reference were made to Resolution 319(IV).

The Chairman pointed out that the Committee was a subsidiary organ of the Economic and Social Council and had been established in accordance with one of the Council’s resolutions, which had not been submitted to the General Assembly.

He thought, therefore, that it would serve some purpose to mention the resolutions of the Economic and Social Council.

The representative of Venezuela fully agreed with the Chairman. He recalled that the question of the international status of refugees had been raised by one of the functional commissions of the Economic and Social Council, namely the Commission on Human Rights. The work on which the Committee was engaged at the moment was based on several of the Council’s resolutions and that fact should be mentioned in the preamble to the Convention.

His delegation attached particular importance to the activities of the Economic and Social Council, for it considered that the Council had thus far accomplished more useful work and achieved more positive results than any other organ of the United Nations. His delegation could not support the Chinese representative’s amendment.

The representative of China withdrew his proposal.

The representative of the US proposed two purely drafting amendments, which affected the English text only. The first was the addition of a comma after the word ‘discrimination’ and the second was the insertion of the word ‘of before the words the Economic and Social Council’.

He further proposed that the words ‘that problem’ should be replaced by the words ‘the problem of refugees’. The three amendments submitted by the US representative were accepted.

The representative of France recalled that the French draft had referred to the right of asylum. At the time of the first reading, the Committee had decided to postpone the question until the text of the Preamble was considered. He would like to hear the views of the Committee on that point; he, for his part, would urge that the right of asylum should be mentioned explicitly together with the reference to the Universal Declaration of Human Rights.

After a brief exchange of views, the Committee decided that the words ‘especially in Article 14’ should be added after the words ‘in the Universal Declaration of Human Rights’.

The representative of Venezuela was glad that Article 14 had been mentioned but he felt that the same should be done for Article 6, which laid down that everyone had the right to recognition everywhere as a person before the law. That was one of the most important Articles of the Universal Declaration of Human Rights. It was of particular importance for the Convention Relating to the Status of Refugees, for the Convention was in fact based on the principle laid down in that Article.

He proposed, therefore, that the Preamble should read ‘especially in Articles 6 and 14’.

It was so agreed.

The Preamble, thus amended, was adopted.

The Preamble as adopted by the Committee read:

Preamble

The Contracting States,

Considering the concern of the United Nations for the protection of human rights without any discrimination, as given expression in the Universal Declaration of Human Rights and especially Articles 6 and 14 thereof: and in particular their profound concern for the rights of refugees as evinced in various resolutions of the General Assembly and of the Economic and Social Council of the United Nations, especially Resolution 319A(IV), 3 December 1949, in which the General Assembly recognized the international scope and nature of the refugee problem and the responsibility of the Untied Nations for the international protection of refugees; and

Considering further that it is desirable to revise and consolidate previous international agreements relating to the protection of refugees, to extend the scope of such agreements to additional groups of refugees and to increase the protection afforded by these instruments,

Have agreed.

In the Social Committee of the Economic and Social Council at its 11th session the French Government proposed an amendment to the Preamble:

Preamble

Considering that neither the Charter of the Untied Nations nor the Universal Declaration of Human Rights tolerate discrimination among human beings, whether they enjoy the protection of their country of origin or being refugees on foreign soil are unable to claim such protection;

Considering that by evincing on various occasions, and most recently in General Assembly Resolution 319, its profound concern for refugees the United Nations has endeavoured to assure refugees the widest possible exercise of the fundamental rights and liberties defined in the above texts;

Considering that in the light of experience the adoption of an international convention would appear to be one of the most effective ways of guaranteeing refugees the exercise of such rights;

But considering that the exercise of the rights to asylum places an undue burden on certain countries because of their geographical situation, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot be achieved without international cooperation to help to distribute refugees throughout the world;

Considering that the High Commissioner for Refugees, or any other United Nations representative who may succeed him, will be called upon to supervise the application of this present text, and to endeavour to improve it without losing sight of the necessity for wide international cooperation to that end;

Expressing furthermore the hope that this Convention will be regarded as having a value as an example exceeding its contractual scope, and that without prejudice to any recommendations the General Assembly may be led to make under Article 1 of the present text, Article 1 as adopted by the Social Committee referred to refugees ‘as a result of events in Europe before 1 January 1951, or circumstances directly resulting from such events’ all nations will be guided by it in granting to persons present in their territory in the capacity of refugees and not covered by the following provisions, treatment affording the same rights and advantages.

In the Social Committee of the Council the French representative said31 that the chief aim of the Preamble was to state the refugee problem in human and equitable terms. It enabled that problem to be expanded to its true dimensions, and indicated the ideal towards which the United Nations must strive if it was not to rest content with an imperfect and partial solution. That was all the more essential since any convention must of necessity represent a compromise between the ideal and the practicable. It was therefore necessary to find a place in the Preamble for the sacrificed ideal which it had proved impossible to embody in the Convention. It should not be forgotten that, in the ultimate analysis, it was always the mind and the ideal which were right; the very existence of the United Nations was a proof of that.

His delegation considered that the Preamble represented the only return asked of the international community in exchange for the recognition of its right to determine the status of refugees in the reception countries, such return taking the form of a definition, not of the refugee himself, but of the refugee problem, in fair and accurate terms in conformity with reality and the aims pursued.

The Preamble itself was a modest one, simply a compromise which the French delegation thought a sincere one and likely to prove acceptable to all in its entirety, since it formed a coherent whole.

At the 160th meeting, the French representative, analysing the amendment submitted by his delegation,32 first observed that the principle of the Preamble did not appear to be in dispute.

The wording proposed by the French delegation presented the problem of refugees in terms that were equitable both for the refugees themselves and for the countries receiving them.

The ideal would undoubtedly be to place refugees on an equal footing with the citizens of the countries of refuge, in conformity with the principle of non-discrimination set forth in the Universal Declaration of Human Rights. But even in countries which, like France, pursued a very liberal reception policy, it was not possible to grant refugees exactly the same treatment as nationals. Consequently, while the first paragraph of the French amendment recalled the principle of non-discrimination, the second paragraph spoke of assuring refugees ‘the widest possible exercise of the fundamental rights and liberties…’.

The third paragraph was a mere statement of fact.

The fourth paragraph recalled the need for a collective effort to solve the problem of refugees and to help to distribute them throughout the world. The French delegation thought that immigration countries would recognize the exceptional nature of the burdens assumed by the receiving countries, and would understand that in certain States the pressure of population was such that it was impossible to ensure a satisfactory future for refugees.

The purpose of the fifth paragraph was to provide the necessary link between the Convention and the work of the High Commissioner’s Office.

The last paragraph expressed the liberal spirit in which the protection of refugees was contemplated, and explained that the Convention should have a value as an example.

In speaking of the treatment to be granted to persons not covered by the provisions of the Convention, however, the French delegation did not consider that there could be any question of internal refugees. If international assistance measures were to apply to such persons, a new problem would have to be considered.

The last paragraph also brought out that a convention was, above all, an effort demanded of governments. The Convention relating to the Status of Refugees should be considered, not as a measure favouring a particular country or a particular class of refugees, but as the stage now attainable and one which could be followed by others, as private agreements came to be concluded between governments.

The ideas expressed in the Preamble formed a complete whole and he urged, in conclusion, that in the examination it was about to undertake the Committee should not lose sight of the exceptional burdens assumed by certain countries, or of the need to submit for signature by the Governments especially concerned a text which they would find equitable. The representative of Australia said his government was considering the question whether the High Commissioner for Refugees should be given supervisory powers in so far as the application of the draft Convention was concerned. Until a ecision had been reached by the Australian Government, his delegation could not support the fifth paragraph of the
French amendments.

The discussion of the Preamble to the draft Convention (E/ 1618, E/L. 8 1) was resumed at the 166th meeting.

The French representative pointed out that in preparing the French amendments to the draft Preamble he had endeavoured to provide a definition of the refugee problem that would be equitable both to the refugees themselves and to the countries which granted them hospitality. In the latter connexion, it should be stressed that France was prepared, subject to certain reservations, to regard the provisions of the Convention as binding. But his delegation was obliged to look to the future, since France had not only already granted hospitality to a considerable number of refugees, but was still likely to receive many more. During the Spanish civil war France had had to give asylum to 500,000 refugees from Spain.

It would be illusory to claim that the mere existence of an international convention could solve such a problem, and there was no guarantee that France would not once more be faced with problems of the same magnitude. It was mainly in order to forestall such a danger, and having regard to certain exceptional circumstances existing in Europe, that he had intended in his draft Preamble a paragraph which not only mentioned exceptional circumstances, but stressed the need of international cooperation to deal with them.

The representative of Mexico supported the French amendment.

The representative of the US said he had not intended to take part in the discussion of the French amendment to the Preamble to the draft Convention; but, in view of some remarks which had been made, particularly by the representative of Mexico, he felt bound ‘to say that he was in general agreement with all the reasons given by the representative of France for the provisions contained in his preamble; his only doubt was whether those provisions should go into a Preamble at all. However, while he felt that the original Preamble drafted by the ad hoc Committee would have been perfectly adequate, and that much of what the French representative proposed to add would better be adopted in the form of a General Assembly resolution, the US Government was too well aware of all that France had done to help refugees to object to any additions proposed by that country to any document on the subject, unless they were objectionable in substance.

His Government did find the last paragraph of document E/L.81 objectionable, and, if a formal vote was taken on the French amendment, the US delegation would move the deletion of that paragraph, first, because it contained a reference to recommendations to be made by the General Assembly under Article 1 of the Convention, from which mention of recommendations by the General Assembly had been removed; and, secondly, because of the implication that the Convention was not wide enough in scope. The US delegation had said before, and must say again, that in its opinion all persons in need of protection at the present time were fully covered by the definition provided in Article 1 of the draft Convention.

The drafting of the first paragraph of the French amendment was also unsatisfactory because it seemed to suggest that the Charter of the United Nations dealt with the question of discrimination between people possessing a nationality and people without one, which, to the best of his recollection, was not so. The paragraph would therefore be simpler and clearer if that reference to discrimination between two kinds of nationality were removed, and it read simply: ‘Considering that the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings should enjoy fundamental rights and freedoms without discrimination;’

The representative of Chile felt that the terms of the French draft of the Preamble were broader and more generous than those drawn up by the ad hoc Committee, and hoped therefore that the French amendment would be taken as the basic text for discussion.

He felt that on grounds of legal drafting, the reference in the fourth paragraph to the geographical situation of certain countries should be removed, but if the French representative insisted on retaining it he would not formally oppose it. The fifth paragraph referred to the powers of the High Commissioner, which had not yet been discussed. As it was not certain that he would in fact be empowered to supervise the application of the Convention, it would be better if consideration of that paragraph could be left over. The representative of France would, of course, have no objection to making the necessary adjustment in the final paragraph of the Preamble, since the reference to recommendations by the General Assembly had already been removed from Article 1 of the draft Convention.

The French representative agreed that the small number of suggested improvements to the wording could easily be made. He was also prepared to accept the US amendment to the first paragraph of the Preamble. He had based his own text on the fact that certain discriminations did actually exist.

With regard to the Chilean suggestions, he wished to point out that the reference in the fourth paragraph of the Preamble to the undue burden placed on certain countries was merely a statement of fact, and was in no way designed to create a legal obligation. He was prepared to amend his text so as to make it clear that only a hypothetical case was stated.

With regard to the fifth paragraph of the Preamble, it was clear that the reference to the High Commissioner was based on a decision of principle. Article 3 of the Annex to General Assembly Resolution 319(IV) read:

Persons falling under the competence of the High Commissioner’s Office for Refugees should be, for the time being, refugees and displaced persons defined in annex I (a) of the Constitution of the International Refugee Organization and, thereafter, such persons as the General Assembly may from time to time determine, including any persons brought under the jurisdiction of the High Commissioner’s Office under the terms of international conventions or agreements approved by the General Assembly.

Article 4 added that ‘the High Commissioner should provide for the protection of refugees and displaced persons falling under the competence of the Office’. He had thought that he would be helping the ad hoc Committee by indicating exactly the problems with which it would have to deal.

With regard to the final clause of the Preamble, he thought that a compromise formula could be found.

The Chairman noted that the following chances had been agreed upon by the representative of France. The first paragraph of the preamble was to read:

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. The reference to recommendations made under Article 1 of the Convention would be removed from the last paragraph, which would then read:

Expressing furthermore the hope that this Convention will be regarded as having a value as an example exceeding its contractual scope, and that without prejudice to any recommendations the General Assembly may be led to make for the purpose of inviting Contracting States to add other categories of refugees to those already contained in Article 1 of the present text…

The Belgian representative said that his delegation approved the first three paragraphs of the French amendment. He noted, with regard to the fourth paragraph, that the Chilean representative had made some very pertinent juridical observations on the geographical situation and the right of asylum referred to therein. His delegation, however, would like to go still further, and insert after Article 26 of the draft Convention another article drawn up in the same terms as those used in the fourth paragraph of the French amendment.

With regard to the fifth paragraph, his delegation supported the views expressed therein, but considered that it would be better to enunciate a principle of that kind in the text of the Convention, rather than in the Preamble.

His delegation hoped that the sixth paragraph would be deleted. It was convinced that the Convention would indeed serve as an example, but the wording of the paragraph was too complicated to serve as a prefatory recommendation.

To sum up, his delegation was in favour of the first three paragraphs, but would like to see the final paragraph of the ad hoc Committee’s text, which it regarded as especially appropriate, substituted for the last three.

The French representative wished to propose a somewhat different wording, which he thought likely to meet with the committee’s approval, for the fourth paragraph. The text might be worded as follows:

But considering that the exercise of the right of asylum may result in an undue burden, and that a satisfactory solution…

He pointed out that in that way all reference to geographical situation would be removed. He further noted that the adoption of that text would not be regarded as imposing on States any obligation in respect of the right of asylum. The Belgian proposal to add the last paragraph of the ad hoc Committee’s text was, in his opinion, not a happy one. The draft Convention which the Committee was in process of drafting itself constituted the revision referred to in the paragraph proposed by the ad hoc Committee, which would therefore serve no purpose in the present context.

With regard to the suggestion that the fourth paragraph of his amendment, relating to the undue burden certain countries had to bear, should be inserted in the substantive portion of the Convention, he thought that it would be difficult to find a suitable place for it there.

The Brazilian representative reserved his position on the last three paragraphs, concerning which he still felt some doubt.

The Chinese representative thought that the first paragraph of the French amendment was acceptable in its amended form. The second and third paragraphs required some revision, but for the time being he had no amendments to propose. In connection with the reference in the fourth paragraph to the necessity for international cooperation to help to distribute refugees throughout the world, he wished to make it clear that the Chinese Government was not in a position to accept refugees from other countries, though in the past China had played its full part by giving asylum, particularly to White Russians and Jews. Indeed, those refugees had been accorded virtually the same treatment as Chinese nationals. Many of them had now left, the White Russians for the Philippines and the Jews for Europe, but through no fault of the Chinese Government.

He would reserve comment on the fifth paragraph, and also on the sixth, which were unsatisfactory, despite the modifications already accepted.

The representative of India said the intention of the French representative in revising the preamble was apparently to refer, first, to refugees outside the categories laid down in the draft Convention, and, secondly, to governments not parties to the Convention. In effect, an appeal was made to all governments to accord the same treatment to all refugees, in order to reduce the burden on contracting governments whose geographical situation meant that the greater part of the responsibility fell on them. If that interpretation of the French representative’s intention was correct, it would be better, instead of amending the Preamble to the draft Convention, to draw up a resolution for the Council to submit later to the General Assembly, pointing out the desirability of all contracting governments according similar treatment to refugees excluded from the categories laid down by the Convention, and of all non-contracting governments according such treatment to refugees within those categories.

The Canadian representative said she had had a number of doubts regarding the Preamble; those regarding the first three paragraphs had been resolved.

She felt some doubt as to whether the fourth paragraph of the French amendment was appropriate to the Preamble. Presumably, when the French representative had accepted an amendment to the first part of that paragraph, there had been no intention of deleting the last part; yet it seemed irrelevant, since the draft Convention laid down a series of obligations towards refugees in any country, but contained no article regarding the distribution of refugees. The Preamble should surely be directly related to the matter of the Convention. In short, the paragraph amounted to an acceptance of a decision on high policy and was therefore unsuited to form part of a preamble to a convention conferring specified rights on specified categories of refugees.

She also doubted whether the fifth paragraph was appropriate, but if it was to be retained she would request that he words ‘to endeavour to improve it’ be deleted. Resolution 319(IV)A of the General Assembly made the High Commissioner responsible for the supervision of the application of the Convention and for suggesting any necessary amendments thereto. It would be better to use the actual words of the resolution than to suggest that the High Commissioner himself could personally improve the Convention.

The last paragraph also seemed inappropriate, with its suggestion that the application of the draft Convention should be regarded as being wider than it in fact was. The Social Committee having rejected the proposal for a broad definition of refugee, it seemed most inconsistent to express the hope in the Preamble that the Convention would in fact be applied to all refugees in all countries and not only the categories included in the definition article. However, as the French representative had indicated his intention to make certain revisions, the Canadian delegation would reserve its position until the text was final.

The representative of Mexico felt that the fifth paragraph of the French amendment might well be retained, since the preamble drafted by the ad hoc Committee also referred to the High Commissioner, for the excellent reason that the implementation of Article 30 of the draft Convention would be his concern and that his position must be made clear. From the very beginning, the High Commissioner would certainly be called on to deal, with differences arising between countries before the provision in Article 33 for reference of such disputes to the International Court of Justice could be applied. Either the fifth paragraph proposed by the French delegation, or something on the same lines, must therefore be retained.

The Belgian representative noted that the Canadian representative’s observations with regard to the fourth and sixth paragraphs were identical with those he had made himself. He supported the Canadian representative’s views on those paragraphs, and also in respect of the other paragraphs. In short, he maintained his position on them all.

The representative of Pakistan felt that the sixth paragraph of the French amendment displayed a generous emotion in trying to take stock of the real situation and broaden the definition of ‘refugee’; but, with regard to its legal scope, he wished to put forward some criticisms, speaking only as an individual with some knowledge of law.

A preamble to any kind of statute had two functions: first, to provide an account of the historical antecedents of the operative part of the statute: secondly, to provide a key for its interpretation. In interpreting the scope of the articles of the statute, it could never be permissible to give them an interpretation which they were not in themselves capable of sustaining, even if a preamble encouraged such interpretation. The sixth paragraph of the French amendment went beyond the functions of a preamble according to law, and was therefore open to the charge of hypocrisy. To begin with, it expressed a hope. He had never before heard of any preamble expressing a hope, though the representative of France, who was also a legal expert, would tell him if French law was exceptional in that respect. The hope expressed must be a pious one, because if analyzed it amounted to very little. If the definition of ‘refugees’ as contained in the articles of the draft convention was substituted for the word ‘refugees’ in the paragraph in question, the words ‘not covered by the following provisions’ would be clearly contradictory and without meaning. It was therefore to be hoped that the representative of France would give some explanation of his point of view, but if he remained unconvinced, the Pakistani delegation would vote against the paragraph.

The US representative agreed with the representative of Mexico that a reference to the High Commissioner should be included in the Preamble, since, although his functions had not yet been fully defined, it seemed clear that they would included the supervision of the application of the Convention. However, the reference in the French text to ‘any other UN representative who might succeed him’ should be deleted, since it was hardly appropriate at the present stage to be thinking already of replacing the High Commissioner. Some such phrase as ‘any other appropriate body’ would be preferable. Furthermore, as the representative of Canada had said, the reference to improving the Convention was objectionable, with its implication that the Council was dissatisfied with it, but left it to the High Commissioner to rectify its faults. It would be simpler and more satisfactory merely to include a reference to Resolution 319(IV) of the General Assembly, and another to the necessity for international cooperation. He would later submit an amendment on those lines.

Regarding the Preamble as a whole, the critical reasoning of the representative of Pakistan had been most impressive.
The fact was that the French text was not so much a Preamble to the Convention as a draft of the resolution with which the General Assembly could introduce it. If it could be presented in that form, the Council might avoid many difficulties, and also secure the additional advantage that it would be addressed not merely to governments adhering to the Convention, but to all nations equally.

The French representative said that he sensed in the minds of certain delegations a fear not merely of the slightest involvement, but of the slightest suggestion of involvement, in some Machiavellian scheme. He assured the Committee that the French amendment contained no dark design and, in particular, that it was not a request to governments, but only a statement of certain obvious truths, with an indication of certain situations which might arise and, in that event, of the conclusions to be drawn from them.

Recalling once more the undue burden which France had had to bear in the matter of receiving refugees, he thought that all European countries which ran the same risks should be conscious of the need for including such a safety clause in the Convention. It had been contended that the hope expressed in the last paragraph of the Preamble was hypocritical. But the situation which he had in mind was in no way theoretical. France was at that very time granting asylum to persons from certain distant countries who did not enjoy international refugee status. The French Government nevertheless granted them not only right of asylum, but rights and advantages equivalent to those granted to refugees who came within the purview of IRO. What he hoped was that other countries would do likewise in similar circumstances. In addition, if it had become possible to consider the adoption of an international convention on European refugees, that was because the problem had been the subject of international agreements for twenty-five years. It was conceivable that by the adoption of special conventions, the way could be paved for the provision of genuinely international protection of other types of refugees in other countries.

The present text might certainly be improved, but the Preamble would become meaningless if the last three paragraphs were deleted. He therefore opposed such deletion because it would destroy the intrinsic value of the whole. Document E/AC.7/L.71 read:

Refugees and Stateless Persons Amendments proposed to Document E/L.81

1. Substitute for the first paragraph the following:

‘Considering that the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

2. The second paragraph would read as follows:

‘Considering that the United Nations has, on various occasions, and most recently in General Assembly Resolution 319, manifested its profound concern for refugees and has endeavoured to assure refugees the widest possible exercise of the fundamental rights and liberties;’

3. The fourth paragraph should read as follows:

‘But considering that the exercise of the right of asylum may result in an undue burden on certain countries and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot be achieved without international cooperation to help to distribute refugees through-out the world;’

4. The fifth paragraph should read as follows:

‘Considering that the High Commissioner for Refugees, or other appropriate body of the United Nations designated by the General Assembly, will be called upon to supervise the application of this Convention, and that the effective implementation of this Convention requires the full cooperation of States with the High Commissioner or other appropriate United Nations body;’

5. Last paragraph: Delete the remainder of the paragraph after the words ‘to make’ and substitute:

‘With a view to requesting the High Contracting Parties to extend the benefit of the Convention to other categories of persons, all nations will be guided by it in granting to persons who may happen to be present in their territory in the capacity of refugees and not covered by the following provisions, treatment affording the same rights and advantages.’

The discussion of the Preamble to the draft Convention was continued at the 167th meeting.

The Chairman said that the various amendments to the French proposal had now been circulated as document E/AC.7/L.71. In addition to these amendments, there was also before the Committee a proposal by the Belgian representative that the Preamble consist of the first three paragraphs of the French delegation’s draft and the final paragraph of the draft Preamble of the ad hoc Committee.

The representative of Denmark was prepared to accept the draft Preamble proposed by the ad hoc Committee, which was short and simple. The French delegation’s draft Preamble, however, was of the greatest interest, and several paragraphs, particularly the fourth and fifth, commanded his entire support in matters of substance; but some of it, perhaps, went beyond what one would expect to find in a preamble, although the points covered would require consideration sooner or later. As the UK representative had said, a preamble was normally considered after the text of a convention had been established, not before; the circumstances being reversed, the discussion of the draft Preamble ought perhaps to be deferred. If there was a vote on it, his delegation would abstain, but would reserve its right to consider it afresh in the Council when item 3 2 on the agenda came to be considered there.

The representative of Peru pointed out that both the French delegation’s draft Preamble and the amendment proposed to it in document E/AC.7/L.71 referred to the ‘right of asylum’, an expression which, in international law, and particularly in Latin America, was used, not for ordinary refugees, but for political refugees. To avoid confusion, he suggested that the expression ‘seeking refuge’ should be used in place of the word ‘asylum’.

The French representative recognized that there was a difference in meaning between the word ‘asile’ (asylum) and the word ‘refuge’ (refuge) but pointed out that in practice they amounted to exactly the same thing. When a foreigner sought sanctuary in France, he was first granted the right of asylum, and then accorded the status of refugee. It was therefore impossible to draw a distinction between the two concepts in his country, as could apparently be done in Peru. Furthermore, the word ‘asile’ (asylum) was used in Article 14 of the Universal Declaration of Human Rights in the same sense as in the text submitted by the French delegation.

The representative of Chile, alluding to the Peruvian representative’s doubts, said that the expression ‘asylum’ used in the draft Convention was equivalent to the expression ‘seeking refuge’, and had no connection with the diplomatic right of asylum in vogue in Latin American countries and given legal effect in several international conventions. The latter should properly be called ‘diplomatic asylum’; it was called ‘asylum’ only as a matter of habit. The provisions of the draft Convention in no way interfered with the system of diplomatic asylum which the Peruvian representative was anxious about.

The US representative said that at the morning meeting, in order to meet the objections made to the introduction of certain ideas into the draft Preamble, he had said that his delegation would not oppose the incorporation of those ideas in a resolution, even if the resolution were linked with the draft Convention. He hoped that the French representative would accept that suggestion; if not, he suggested that the Committee vote on the question whether the points which aroused opposition should be included in the draft Preamble and whether the Belgian representative’s proposal should be adopted.

The French representative drew attention to the fact that, since a preamble formed an integral part of a convention, it carried greater weight than a General Assembly resolution. Although he did not wish to cast doubts on the value of resolutions adopted by the General Assembly, he ventured to suggest that in practice some of them had had very little positive effect. On the other hand, the Preamble, being bound up with the Convention, would have the same authority as the Convention itself. It was for that reason that the French delegation was pressing for the inclusion in the Preamble of the ideas it had put forward, especially as the Convention itself would entail considerable obligations for the Contracting Parties.

Moreover, the decision taken by the Committee at the beginning the discussion of the question had been adopted on the understanding that the Committee would later consider and take decisions on the Preamble and the definition of the term ‘refugee’. Had that not been so, the French delegation would never have supported such a decision. It had, in fact, always considered that it would be pointless to convene a meeting of the ad hoc Committee, unless the United Nations indicated, in broad outline, the general principles which should guide it in studying the problem. Unless the Social Committee reached agreement on certain general principles, the ad hoc Committee would have great difficulty in winning the support of certain delegations in view of the numerous difficulties raised by certain articles in the draft Convention. The question could, no doubt, be raised again in the General Assembly, but his delegation was convinced that it was essential for the Social Committee to make its own view clear then and there.

The representative of Mexico said that the draft Preamble, if agreed upon, might well be of assistance to the experts in the ad hoc Committee in drafting the Convention. Consideration of the Preamble, if left to the Council, would raise many difficulties, and materially add to the work to be done at the end of the session. He accordingly thought that the Committee should attempt to modify the French delegation’s draft, and produce a Preamble on which the majority of members could agree. The Preamble, even then, would not be final but the Committee could revert to it later.

The French representative thanked the representative of Mexico for his support.

He would like to emphasize that the French version of the Preamble was really a preliminary draft, and that all representatives, even those who did not entirely share all the views enunciated in the text, might therefore give it their provisional support.

The Chairman put to the vote separately the several paragraphs of the French delegation’s draft Preamble (E/L. 81), as amended by the proposals set out in document E/AC.7/L.71.

He pointed out that the first paragraph in document E/AC.7/L.71 had been accepted by the French representative, and would, if adopted, form the first paragraph of the draft Preamble.

The Committee adopted the first paragraph of the French delegation’s draft Preamble as amended (E/AC.7/L.71), by 14 votes to none, with 1 abstention.

The Chairman, with the agreement of the US representative, proposed that the final words of the US draft amendment to the second paragraph (E/AC.7/L.71), be altered to read ‘these fundamental rights and freedoms’, in order to make the language conform with that of the first paragraph. He also said that the resolution number would be changed from ‘319’ to ‘319(IV)’.

The Committee adopted the second paragraph of the French delegation’s draft Preamble (E/L.81), as amended by the US delegation (E/AC.7/L.71), by 14 votes to none, with 1 abstention.

The Committee adopted the third paragraph of the French delegation’s draft Preamble (E/ L.81) by 12 votes to none, with 3 abstentions.

After some discussion, the Chairman said that the Belgian representative’s proposal would be voted on in the form that the last paragraph of the ad hoc Committee’s draft Preamble (E/1618, Annex I) should be inserted as the fourth paragraph of the French delegation’s amendment.

The Belgian proposal was adopted by 14 votes to 1.

The US representative asked whether it was possible for the Committee to vote on whether the content of the original fourth paragraph of the French delegation’s draft Preamble could be placed elsewhere than in the draft Preamble.

The Chairman pointed out that there was no appropriate formal proposal before the meeting. There was, however, a formal proposal that the fourth paragraph be adopted as part of the draft Preamble and that proposal required a decision by vote. If the decision was against the inclusion of the fourth paragraph, no delegation would be excluded from submitting a further formal resolution using the same language.

The US representative said that his delegation did not believe that the substance of the former fourth paragraph should properly find a place in the draft preamble. Though not against its content, his delegation would abstain from voting on it, and would reserve the right to raise the question again at an appropriate time.

The Belgian representative associated himself with the view expressed by the US representative. The Belgian delegation had given sufficient proof in the course of discussion that it was not hostile to the ideas contained in the fourth and following paragraphs, but was simply opposed to the inclusion of those paragraphs in the Preamble. His delegation would accordingly abstain from voting when those paragraphs were put to the vote.

The Committee rejected the fourth paragraph of the French delegation’s draft Preamble (E/ L.81), as amended by the French delegation (E/AC.7/L.71, paragraph 3) by 5 votes to 5, with 5 abstentions.

The Chairman calling for a vote on the sixth paragraph, reminded the Committee that the fifth paragraph, and the final vote on the draft Preamble as a whole, would be taken up after the discussion on item 32(a) of the agenda had been completed.

The Committee adopted the sixth paragraph of the French delegation’s draft Preamble (E/L.81), as amended by the French delegation (E/AC.7/L.71), by 5 votes to 4, with 6 abstentions.

The Belgian and US representatives made the same reservations in respect of the sixth paragraph as they had in respect of the fourth.

The Indian representative explained that his country, while agreeing with the substance of the French delegation’s draft Preamble, did not agree that a Preamble should contain ideas which went beyond the terms of the Convention. He thought that, in its incomplete state, with the fifth paragraph left out of consideration, it would make peculiar reading, and that the Belgian representative’s original proposal, that it consist of the first three paragraphs of the French delegation’s draft Preamble and the final paragraph of the original draft Preamble, would have been preferable.

At the 170th meeting of the Social Committee, the Chairman:

‘The French representative said that though the Preamble had originally been based on a French proposal, it had emerged from the Committee shorn of a clause which he felt to be essential, and the French delegation would vote against it if it were put to the vote as it stood. Until the question had been taken up again in the Council, the French delegation could not approve the preambular clause now before the Committee. That did not mean that the reference to the High Commissioner should find no place in some other part of the Convention, but he did not feel it necessary to mention in the Preamble the executive powers vested in the High Commissioner under the Convention.’

The US representative believed that the paragraph in question would be a useful addition to the draft Convention. As was clear from General Assembly Resolution 319(IV)A and the paragraph just approved by the Committee concerning the Statute of the High Commissioner’s Office, supervision of the application of conventions for refugees was clearly one of the functions of the High Commissioner and should be written into the body of the Convention itself.

The UK representative made the following comments, which he said referred to both texts. He objected both to the words ‘or any other United Nations representative who may succeed him’, and to the words ‘or other appropriate United Nations body’, because it was premature to speak about other United Nations bodies before the first High Commission had been actually appointed. In his opinion, the phrase should be deleted in either form, and he would ask for a separate vote to be taken on the point.

There was virtually little difference between the two draft amendments, and it should be possible to reach an agreed text.

His only comment with regard to the French text was one of wording; the phrase ‘to endeavour to improve it’ might cause some misunderstanding, especially after all the preliminary work which had been necessary in drawing up the draft Convention relating to the status of refugees. Perhaps a form of wording such as ‘make any necessary amendments thereto’ used in Resolution 319(IV)A might be happier.

The US representative agreed generally with the UK representative. He was ready to delete from the US’ amendment the words ‘or other United Nations body’, which had merely been included in order to conform to the original French version. He was also in favour of the deletion of the words ‘to improve’ from the French draft amendment; that view was reflected in the US amendment.

The words in the US amendment referring to ‘the full cooperation of States with the High Commission’ were intended as a substitute for the French formula ‘wide international cooperation’, which seemed less clear.

The French representative suggested that, to allow for the opinions which had been expressed, the first paragraph on page 2 of his amendment should be modified by deleting the words ‘or any other United Nations representative who may succeed him’, and of the words ‘and to endeavour to improve it’. He did not particularly favour the first of those phrases, which had been inserted in deference to the wish expressed by the General Assembly that the High Commission should be appointed for a term of three years only.

The Chairman observed that both the US and French representatives were prepared to omit any reference to a possible successor to the High Commission. The text proposed by the French delegation would then read:

Considering that the High Commission for Refugees will be called upon to supervise the implementation of this Convention, without losing sight of the fact that the effective implementation of this Convention can only be obtained with the full cooperation of States with the High Commission, and with a wide degree of international cooperation.

The US representative preferred his delegation’s phrasing: ‘that the effective implementation of this Convention requires’to the French wording ‘without losing sight of the fact that the effective implementation of this Convention can only be obtained with’, on the grounds that the latter might be taken to mean that it was the High Commission who should not ‘lose sight’, and not States, as was clearly the French representative’s intention. He also asked what was the exact significance of the proposed phrase: ‘a wide degree of international cooperation’, which was not altogether clear, and for which his delegation could not vote until it knew precisely what the phrase meant.

As to the second point, the term ‘solidarité’, used in the French text (‘collaboration’ in English) was certainly wider than ‘cooperation’, which referred to States which would accede to the Convention, whereas the farmer might be extended to cover States which, while not signing the Convention, would be in a position to help in the solution of certain aspects of the problem. The word ‘requires’ might well be used in connection with the cooperation of States signatory to the Convention, and the formula ‘without losing sight of taken in conjunction with international solidarity, so as to produce a composite text acceptable to the US representative.

After some further discussion, the Chairman noted that the French and American representatives were agreed on the formula:

‘and that the effective implementation of the Convention depends on the full cooperation of States with the High Commission and on a wide measure of international collaboration.’

The French representative agreed.

The US representative also agreed, although he felt that the last phrase added nothing to the meaning of the paragraph and was only confusing. He would not, however, oppose its insertion, but would abstain from voting on it.

The Belgian representative recalled that he had stated on several occasions that the place for a text of that kind was not in the Preamble to the draft Convention, but in the Statute of the High Commissioner’s Office. He would therefore vote against it.

The French representative said that in its present state the Convention was a skeleton which would require to be clothed, even if adopted by the General Assembly.

The Committee had before it a model statute for refugees, many points of which actually corresponded to current practice in the various States, but many other points of which represented innovations. Some of the countries which were not signatories to the existing international agreements on the subject were to be invited to apply that statute, which in the main endeavoured to encourage a more liberal policy towards refugees. That being the case, the adoption of the Convention would possibly give rise to no difficulty. If the text were extremely easy to apply and consisted in nothing but more or less vague recommendations, it would cause no country any anxiety, even a country over-crowded with refugees, since such a country would not be called upon to assume any binding obligations. If, on the other hand, the text involved a number of binding clauses, it would at once set a more difficult problem. Certain countries not represented at the present meeting might find that they were not in a position to give effect to every article of the Convention. Investigation would then reveal that the problem was perhaps beyond those countries, and that it could not be considered that everything was cut and dried and that they were therefore failing in their duty by not applying the Convention in its entirety. It was obvious, therefore, that steps should be taken to ensure that the Convention was applicable in their case. Hence he felt the mention of ‘international collaboration’, which had proved its efficacy, should be retained, so that a State which failed to carry out its obligations under the Convention would not be regarded as at fault if it found itself in a position which was really beyond it.

It was not out of the question that France, for example, would have to deal with a huge influx of refugees. If so, international collaboration would be the only remedy. Without it, the Convention would become quite inapplicable. Such were the reasons for his delegation’s attitude.

The Danish representative said that his delegation fully shared the views just expressed by the French representative. The words referring to possible improvement of the Convention, and to the endeavours of the High Commission to that end, had been deleted from the text before the Committee. He had no particular objection to their omission, but in view of the decision already taken on the High Commissioner’s functions, his powers clearly covered that subject. He also felt that the Convention now being prepared might need improvement at a later stage, a statement which must not be taken as in any way derogatory.

The US representative appreciated the concern of the French representative, because the point was one which the French delegation had attempted to have included in another paragraph, but which had been rejected. He nevertheless maintained that the closing words were not appropriate to the particular paragraph of the preamble under consideration, and in the circumstances would propose that a vote be taken on the text in two parts, namely with and without the last sentence.

The Chairman put to the vote the first sentence of the proposed fifth paragraph as amended, reading:

‘Considering that the High Commission for Refugees will be called upon to supervise the application of this Convention and that the effective implementation of this Convention depends on the full cooperation of States with the High Commission’.

The first sentence of the fifth paragraph of the French delegation’s draft Preamble, as amended, was adopted by 9 votes to 1, with 3 abstentions.

The Chairman then put to the vote the words ‘and on a wide measure of international collaboration’.

The Committee adopted the above words as an addition to the fifth paragraph by 7 votes to none, with 6 abstentions.

The Committee adopted the whole of the text of the fifth paragraph, as amended, by 9 votes to 1, with 3 abstentions.

The US representative explained that while he would vote in favour of the Preamble as a whole, he wished to place on record the fact that his delegation reserved its rights to take further action elsewhere in respect of certain paragraphs, as indicated in its comments on those paragraphs.

The UK representative said he also would vote for the Preamble on the understanding that his vote concerned only the principles contained in it, and that no decision could be taken on the final form of the Preamble until the substance of the draft Convention had been approved by the General Assembly.

The Canadian representative said her delegation’s approval of the text of the draft Preamble should be regarded as tentative for the time being.

The Australian representative said her delegation would abstain from voting pending further consideration of the draft Preamble.

The Danish and Mexican representatives said their delegations would take part in the vote on the same understanding as that expressed by the UK delegation.

The Belgian representative recalled that, from the outset, the Belgian delegation had been in favour of the first three paragraphs of the text now to be voted on, and had suggested the addition of another paragraph, which in fact had been added. Hence it would now support the first four paragraphs, though it would vote against some of the other paragraphs, or abstain on them. In other words, there could be no question of its voting for the text as a whole, but as the Preamble appeared to contain excellent material from the Belgian point of view, he would abstain from voting.

The draft Preamble as a whole, as amended, was put to the vote and adopted by 10 votes to none, with 3 abstentions.

The Preamble as adopted by the Social Committee read:

1. Considering that the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

2. Considering that the United Nations has, on various occasions, and most recently in General Assembly Resolution 319A(IV), manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms;

3. Considering that, in light of experience, the adoption of an international convention would appear to be one of the most effective ways of guaranteeing refugees the exercise of such rights;

4. Considering further that it is desirable to revise and consolidate previous international agreements relating to the protection of refugees, to extend the scope of such agreements to additional groups of refugees, and to increase the protection accorded by these instruments;

5. Considering that the High Commission for Refugees will be called upon to supervise the application of this Convention, and that the effective implementation of this Convention depends on the full cooperation of States with the High Commission and on a wide measure of international cooperation.

6. Expressing furthermore the hope that this Convention will be regarded as having a value as an example exceeding its contractual scope, and that without prejudice to any recommendations the General Assembly may be led to make in order to invite the High Contracting Parties to extend to other categories of persons the benefits of this Convention, all nations will be guided by it in granting to persons who might come to be present in their territory in the capacity of refugees and who would not be covered by the following provisions, treatment affording the same rights and advantages.’

In the Council itself the French representative introduced an amendment:

France: Amendment to the report of the Social Committee.

1. Insert the following between paragraphs 4 and 5 of the Preamble:

‘But considering that the exercise of the right of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation;’

2. In paragraph 6 the word ‘furthermore’ by the word ‘finally’.

In the Council the French representative said:

‘Two of the paragraphs of the Preamble to the French draft constituted safeguarding clauses of this kind. One of them was the paragraph on action by the High Commission with regard to the application of the Convention. It had been retained, amended in an acceptable form. The second had been deleted by the Social Committee by 5 votes to 5, with 5 abstentions. Hence, the French delegation now reverted to that question in the Council and requested the insertion between paragraphs 4 and 5 of the Preamble, of the following text:

‘But considering that the exercise of the right of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation;’

It was simply a question of taking note of a concrete situation, which the IRO itself had acknowledged, and which might recur in the future. The French delegation felt that the inclusion of that paragraph was a minor matter compared with the obligations which it was willing to accept.

Viewing the matter on a higher plane, he stressed the great human importance of the refugee problem and said that it should be tackled in a generous spirit and could only be solved on the basis of justice, and not on purely legal considerations. The rights of countries of refuge should be safeguarded, as well as the rights of refugees. That was why the Preamble to the Charter of the United Nations and the Universal Declaration of Human Rights had been mentioned in the first paragraph of the French draft. The fact that a man was deprived of his government’s protection should not prevent his enjoyment of the rights fundamental freedoms defined in those texts. But discrimination existed, and it was not easy for a country to replace an alien’s homeland. Nationality was a serious matter, and failure to consider it as such might result in precarious naturalization which would only add in the long run to the existing number of stateless persons.

France, like other countries in Western Europe, had afforded hospitality to hundreds of thousands of refugees without distinction of race, age, political opinion, health or profession, in the name of the most sacred principles of civilization and of the United Nations. The problem of protection arose because naturalization and repatriation could not provide a complete and immediate solution to the refugee problem. Other countries which did not have the same burdens should be grateful to such countries for constituting an advanced line of defence of civilization so far as the cause of the refugees, and therefore of freedom of opinion and religious liberty, was concerned. The Convention would be applied mainly in Western Europe, but it also had its application in other more distant countries.

He pointed out with regard to the sixth paragraph of the Preamble that France had granted to categories of refugees who came from very distant countries and for whose protection no instrument existed, the same rights and advantages as other refugees. His delegation’s intention in inserting this paragraph was to secure the extension of the international protection of refugees to all refugees, of whatever category, throughout the world.

The Mexican representative recalled that, when the Social Committee had discussed Article 1, which defined the term ‘refugee’, his delegation had paid tribute to the remarkable work done by the French Government on behalf of refugees. He had, in connexion with that article, expressed his concern at the deletion of a specific reference to Spanish refugees which had figured in the draft text submitted by the ad hoc Committee. He raised that point without in any way wishing to touch upon the political aspects of the problem. The French delegation had explained in the Social Committee that the reference contained in Section A, paragraph (3) of Article 1 to persons who had had to leave their country before 1 January 1951 covered the case of the Spanish refugees. He recalled that during the Spanish Civil War, his country as well as others had given asylum to several thousand Spaniards, irrespective of their political opinions. In order that no misunderstanding should arise in the future, he requested the President to state whether the French delegation’s interpretation of Section A, paragraph (3) of Article 1 did in point of fact cover the Spanish refugees.

The President stated that, as President of the Council, he was not competent to interpret the text of any resolution.

The Mexican representative asked whether the Council would decide whether, in the light of the statement made by the French representative in the Social Committee, section A, paragraph (3) of Article 1 did in fact cover Spanish refugees. The President ruled that, when Article 1 was discussed by the Council, representatives would be able to make any comments and give any interpretations that they wished. But the President was not empowered to request the Council to adopt any specific interpretation.

The Belgian representative stated that so far as the Preamble was concerned, the Belgian delegation had abstained from voting in the Social Committee, since it supported the first three paragraphs and was opposed to the remainder. He added that his delegation had requested the inclusion of a fourth paragraph.

The Danish representative supported the amendment proposed by the French delegation.

The representative of the US said that except in so far as procedure was concerned, he agreed with most of what the French representative had said on the subject of the amendment48 which he had proposed. It went without saying that there should be international cooperation to alleviate the burden falling on certain countries because their geographical situation was such that an inordinately large number of refugees fled to them; but the inclusion of the text proposed by the French representative in the Preamble to what was to be a binding international instrument would not be appropriate. The US delegation was of the opinion that the substance of the text might be incorporated in a General Assembly resolution, where it would be more proper and effective. Furthermore, in recognition of the difficulties certain countries might encounter owing to the sudden influx of large numbers of new refugees, the US delegation had proposed the insertion in the draft statute for the High Commissioner’s Office of the clause:

‘In his discretion, the High Commission may, after consultation with the Advisory Committee on Refugees, intercede with governments on behalf of new categories of refugees which might arise, pending consideration by the General Assembly as to whether to bring such new categories within the mandate of the High Commission’s Office for Refugees.’

Rather than accept the amendment to the draft resolution proposed by the French representative the Council should look forward to the adoption by the General Assembly of an effective resolution on the subject and keep it in mind when drafting the statute for the High Commission’s Office.

The US delegation considered furthermore that paragraph 6 of the Preamble should be deleted. The fact that it had been adopted in committee by only 5 votes to 4, with 6 abstentions, made it desirable to re-open the discussion on it. That paragraph would be even more inappropriate in the Preamble to the Convention than the French amendment, to which his delegation was opposed. It would be definitely wrong to include in the preamble to a convention, with its contractual obligations, a hortatory clause which went beyond the provisions of the succeeding articles. He would request the President to put the paragraph to the vote separately.

The representative of Canada,51 requesting the President to put both the definition and the Preamble to the vote separately, said that he also was very grateful to the French representative for his contribution to the success of the Social Committee’s work on the subject. He had agreed with many of the proposals made by the French representative in the Social Committee and he could also agree to the adoption of the amendment he had proposed to the Preamble at the present meeting, for the text of that amendment did not include the words in the corresponding text proposed by the French representative in the committee which had led the Canadian delegation to oppose that text. Indeed, the fact that the problem of refugees was being dealt with by the Council at the international level was tantamount to an admission by the Council that the problem could be satisfactorily solved only if it was dealt with at that level.

On reflection, the Canadian delegation had come to the conclusion that, although the inclusion of paragraph 6 of the Preamble might give rise to discussion as to whether such action was proper, it could agree to its inclusion because it might help to induce the General Assembly to adopt a broad definition of the term ‘refugee’, such as the Canadian delegation had urged in committee, instead of the narrow definition by category that the Committee had submitted. The timid gesture of expressing a pious hope in paragraph 6 of the Preamble was not as satisfactory as drafting the definition of the term ‘refugee’ in accordance with that hope, but it was better than nothing at all.

The representative of the UK said that he agreed with the arguments the Canadian representative had presented so ably on the subject of the Preamble. He would support the amendment to it proposed by the French representative, for reasons the UK delegation had stated in committee. He did not see how the possibility of the addition of the text proposed by the US delegation to the draft statute for the High Commission’s Office could be considered a reason for the rejection of the French amendment. He would also vote in favour of paragraph 6 in the hope that it would induce the General Assembly to adopt a broad definition of the term ‘refugee’, instead of the limited definition recommended by the Committee.

The Belgian representative shared the opinion expressed by the US representative on the French amendment (E/L.94) to the Preamble. The Belgian delegation was not opposed to the ideas expressed in the amendment, but considered that they had no place in the Convention. It would therefore vote against the amendment.

The representative of Chile said he would vote in favour of the text submitted by the French delegation, as he thought it preferable to the corresponding text which the Chilean representative had voted for in the Social Committee and which the Committee had rejected.

The representative of India declared that when the amendment to the Preamble proposed by the French representative was put to the vote, he would abstain, because he was opposed to inserting in the Preamble something which went beyond the scope of the definition or something which was not normally considered proper in such a Preamble.52 The representative of France53 thanked the delegations of Brazil, Canada, Chile, Denmark and the UK for their support of the French amendment.

For the benefit of the Chairman of the Social Committee, he pointed out that it was possible to adopt a convention for European countries only because those countries had had twenty-five years’ experience in refugee matters. Paragraph 6 of the Preamble expressed the hope that, if the refugee problems submitted to the United Nations could not be solved, their solution should be sought by means of conventions on protection of the kind which the French delegation considered could now be adopted for the countries of Europe. That clause of the Preamble had a very definite object. There were in fact refugees who did not come under the terms of reference of the IRO and to whom the Convention would not apply. France had coined the term asiles for that category of refugees. They enjoyed the same rights and the same advantages as persons to whom international conventions applied. The purpose of paragraph 6 was to invite all countries to act in the same manner as France had done.

The representative of the US said that, unlike the UK representative, he considered that the inclusion of paragraph 6 in the Preamble would be illogical, because it was not logical to make provision in the preamble of a convention for which there was no provision in the succeeding articles. He would vote against the adoption of the paragraph, and would abstain when the amendment to the Preamble proposed by the French representative was put to the vote.

The representative of Brazil said that he agreed with all that the US representative had said on the subject of paragraph 6 of the Preamble.

The President put to the vote the text proposed by the French representative for insertion between paragraphs 4 and 5 of the Preamble.

The text was adopted by 9 votes to none, with 6 abstentions. The President asked if there were any objections to the adoption of the consequential amendment proposed by the French representative to paragraph 6 of the Preamble, whereby the word ‘finally’ would be substituted for the word ‘furthermore’.

The amendment was adopted unanimously.

The President put to the vote paragraph 6 of the Preamble as amended.

The paragraph, as amended, was adopted by 7 votes to 5, with 2 abstentions.

The representative of the US said that the words ‘and on a wide measure of international cooperation’ should be deleted from paragraph 5 of the Preamble, since they were almost an exact repetition of the concluding words of the new paragraph adopted on the proposal of the French representative.

The President said that since the debate on section 4 of the Social Committee’s report had been closed, the words could only be deleted from paragraph 5 of the Preamble if no member of the Council raised any objections.

The UK representative said that a reference to international cooperation should be retained in both paragraphs.

The President said that, in view of the objection raised by the UK representative, the suggestion made by the US representative could not be accepted.

He put to the vote the Preamble as amended.

The Preamble, as amended, was adopted by 12 votes to none, with 3 abstentions.

The text of the Preamble adopted by the Economic and Social Council and included in Resolution 319(XI)B.II read:

Preamble

1. Considering that the Charter of the United Nations and the Universal Declaration of Human Rights establish the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

2. Considering that the United Nations has, on various occasions, and most recently in General Assembly resolution 319A(IV), manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms;

3. Considering that, in light of experience, the adoption of an international convention would appear to be one of the most effective ways of guaranteeing refugees the exercise of such rights;

4. Considering further that it is desirable to revise and consolidate previous international agreements relating to the protection of refugees, to extend the scope of such agreements to additional groups of refugees, and to increase the protection accorded by these instruments;

5. Considering, however, that the exercise of the right of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation;

6. Considering that the High Commissioner for Refugees will be called upon to supervise the application of this Convention, and that the effective implementation of this Convention depends on the full cooperation of States with the High Commissioner and on a wide measure of international cooperation;

7. Expressing the hope, finally, that this Convention will be regarded as having a value as an example exceeding its contractual scope, and that without prejudice to any recommendation the General Assembly may be led to make an order to invite the High Contracting Parties to extend to other categories of persons the benefits of this Convention, all nations will be guided by it in granting to persons who might come to be present in their territory in the capacity of refugees and who would not be covered by the following provisions, treatment affording the same rights and advantages. At the Conference of Plenipotentiaries, the UK introduced an amendment:

UK: Amendment to the Preamble

‘(The Contracting States)

Considering that the Charter of the United Nations an the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have reaffirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

Considering that the United Nations has, on various occasions, and most recently by Resolution number 319A(IV) of the General Assembly, manifested its profound concern for refugees and the need for their international protection;

Considering that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot be achieved without international cooperation;

Desiring to revise and consolidate previous international agreements relating to the protection of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement;

Noting that the High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective coordination of measures taken to deal with this problem will depend upon the cooperation of States with the High Commissioner;

Have agreed as follows:

The UK representative, introducing his delegation’s amendment, said that, although the Preamble was of but slight legal significance and was merely introductory, it was nevertheless important that it should be fairly closely related to the origins of the work with which the Conference had been entrusted, and with the general purposes of the Convention. With that in mind, the UK delegation had submitted the amendment contained in document A/CONF.2/99, hoping thereby to render the Preamble more harmonious and self-consistent.

He would first draw attention to the fact that paragraph 7 of the original text was omitted from the amendment. It seemed to him that, while it was right that the Conference should express such a sentiment as that contained in that paragraph, it would be more proper to include it by way of a recommendation at the end of the Convention, since it went beyond the limits of a general statement on the text of the Convention. The first paragraph of the amendment reproduced paragraph 1 of the original text, with the substitution of the words ‘have reaffirmed’ for the word ‘establish’. That modification would bring the paragraph more into line with the actual facts. The difference between the second paragraph of his amendment and paragraph 2 of the original draft was that he referred to the United Nations’ repeated expressions of concern for the need for the international protection of refugees, instead of to its attempts to assure them the widest possible exercise of fundamental rights and freedoms. It was difficult to say to what extent the Convention made provision for the widest exercise of such rights and freedoms. The essential point, and the main concern of the Conference, was the need for the protection of refugees. Paragraph 3 of the original text had been omitted as being self-evident and unnecessary. Paragraph 4 had been replaced by the fourth paragraph of the amendment, and paragraph 5 had been re-drafted in more general terms as the third paragraph of the amendment. The last paragraph of the amendment was roughly the same as paragraph 6 of the original Preamble. The UK delegation was not necessarily wed to the text it had submitted, but merely put it forward as a suggestion for consideration by the Conference.

The French representative recognized that the UK amendment was an improvement on the original Preamble in certain respects, particularly with regard to the amendment to paragraph 1 and the deletion of paragraph 7. He did not attach more than secondary importance to paragraphs 3 and 4, though he felt that the reference to the protection accorded by previous conventions relating to refugees should be retained. He was, nonetheless, still doubtful about the new UK wording for paragraphs 2, 5 and 6. In the case of paragraph 2, he preferred the original text, which referred to the widest possible exercise of fundamental rights and freedoms, since that was precisely what the Conference had tried to achieve. Some provisions had been placed in the Preamble which he would have preferred to see in the body of the Convention itself, particularly those stating be need for international cooperation (paragraphs 5 and 6). Paragraph 5 of the original text, which alluded to the exceptional position of certain countries, was, he felt, indispensable, for continental countries liable to be faced with a large-scale influx of refugees. It had been argued that the Convention did not govern the question of admission, but continental countries had no choice in that matter. When faced with a flood of refugees upon their frontiers, they could not help but grant them right of asylum, and possibly refugee status. In the case in point, the normal application of the Convention might be completely invalidated. If, for example, as had already happened, a State was suddenly called upon to take in half a million refugees, certain provisions of the Convention, particularly those relating to housing and the right to work, could not be applied without presenting the country concerned with problems which, temporarily at least, would prove insoluble. In such a case there would have to be international collaboration, and it was therefore not demanding too much of countries of immigration to ask for the implicit appeal contained in paragraph 5 to be retained. He felt, as the UK amendment stated, that the problems arising in such circumstances should be solved by cooperation between the High Commissioner for Refugees and the States concerned. Nevertheless, there were cases where the protection of refugees became a problem of assistance, and if there was no international cooperation it could not be solved. The UK representative had intimated that he had no very rooted objections to the original text of the Preamble, and the French delegation therefore wondered whether he would agree to paragraph 5 and 6 being retained, subject to improvements in their drafting. It was its particular wish that the words ‘international cooperation’ should remain in the Preamble.

The Italian representative pointed out that refugees were granted the right of asylum by the Italian Constitution. The Italian delegation, however, had always felt that the refugee problem was an international, and not a national responsibility, and therefore associated itself with what the French representative had just said, particularly in the case of paragraph 5, which the UK amendment sought to whittle down. As to paragraph 6, which dealt with the High Commissioner’s part in the application of the Convention, the Italian delegation was prepared to accept the UK version on the understanding that the cooperation with the High Commissioner’s Office would be covered by an agreement between that Office and the Italian Government.

The Egyptian representative observed that some States were giving protection and assistance to a large number of refugees, even though they were not bound to do so by any contractual undertaking. His delegation therefore felt that it was essential to retain in the Preamble the idea of international cooperation contained in the original text, and fully supported what the French representative had said on the subject.

The Israeli representative submitted that while the Preamble to the Charter of the United Nations stated that the Peoples of the United Nations were determined to reaffirm faith in the fundamental human rights, those rights were mentioned at seven other points in the Charter, that was to say, that the Charter itself went beyond mere reaffirmation of the principle. Again, he wondered how the term ‘reaffirmed’ could apply to the Universal Declaration of Human Rights, which was a statement of ideals to be achieved and not of something that already existed.

With regard to the second paragraph of the UK amendment, he pointed out that there were more recent resolutions of the General Assembly on the subject of refugees than Resolution 319(IV)A, and it would seem reasonable to refer to them as well. He had understood from the UK representative’s statement that it was his intention to include the substance of paragraph 5 of the original text in the third paragraph of the UK amendment. The Style Committee could therefore be left to include the reference to international solidarity in the most appropriate way.

The Swiss representative said that in the light of the general statement made by the head of his delegation at the third meeting, he warmly supported the French representative’s remarks concerning paragraph 5 of the original text. Apart from that consideration, the Swiss delegation would agree to any drafting modifications that were likely to improve the wording of the Preamble.

The representative of the Federal Republic of Germany said that, as the representative of a country of asylum, he strongly supported the statements of the French and Italian representatives on paragraphs 5 and 6 of the original text of the Preamble.

The Swedish representative said that he appreciated the force of much of the UK amendment. At the same time, he endorsed the French representative’s views on paragraph 5 of the original text.

The Netherlands representative also approved the statement of the French representative on paragraph 5 of the original text. He would propose, however, that in order to avoid all risk of misinterpretation, the words ‘right of asylum’ should be replaced by the words ‘right to seek and to enjoy asylum in other countries’ which was the wording used in paragraph 1 of Article 14 of the Universal Declaration of Human Rights.

The President believed that the difference between the text of paragraph 5 and that of paragraph 1 of Article 14 of the Universal Declaration of Human Rights lay in the fact that in the latter it was a question of the right of the individual to seek and to enjoy asylum, whereas in the former the right of the State to grant asylum was meant.

The UK representative said that in view of the strong support for paragraph 5 of the original text, he would not oppose its retention. The point made by the Netherlands representative was not unimportant; it might, perhaps, be met by the substitution of the word ‘grant’ for the words ‘exercise of the right’ in the first line of paragraph 5.

As to the Israeli representative’s comments, he contended that the principle that ‘human beings shall enjoy fundamental rights and freedoms without discrimination’ was a principle that had been accepted long before the Charter of the United Nations had been drafted, and that consequently the Charter had reaffirmed that principle. Again, the Universal Declaration of Human Rights was not a statement of new principles, but a statement in fuller detail of existing principles. To meet the Israeli representative’s view, however, he would agree to the use of the word ‘affirmed’ instead of the word ‘reaffirmed’ in the first paragraph of the UK amendment. He would also have no objection to references in the second paragraph to more recent resolutions of the General Assembly, provided that they were appropriate and absolutely necessary. Lastly, he hoped that the French representative would understand that paragraph 5 of the original draft had not been omitted from the UK amendment by way of dissent from the statement of fact which it contained, which everyone fully recognized. The fact was that he had doubted the value of introducing in a few words the idea that some other form of international action was necessary. If the notion of international solidarity was retained, it would, he felt, be interpreted merely as referring to international solidarity achieved through the signing and ratification of the present Convention. However, if the Conference considered it desirable to retain those words, the UK delegation would not object.

The French representative thanked the UK representative for his readiness to allow paragraph 5 to stand. He explained that what the French delegation wanted was the recognition of a de facto situation, rather than a statement of a specific obligation. There were, in fact, countries which might be confronted with a situation in that connection so serious as to exceed the scope of the protection of refugees and come within the field of international assistance. Furthermore, with regard to the final paragraph of the United Kingdom amendment, the French delegation would prefer it to be specified that cooperation with the High Commissioner might not meet the requirement of all situations. The following phrase might be inserted to cover that point: ‘and upon a large measure of international cooperation’. He felt that the Style Committee would be able to find a formula taking the different viewpoints into account and capable of satisfying all delegations.

The Style Committee, composed of the President of the Conference and the representatives of Belgium, France, Israel, Italy, the UK and the US, proposed the following wording:

The High Contracting Parties

1. Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948, by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination;

2. Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms;

3. Considering that it is desirable to advise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of new agreements;

4. Considering that the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international cooperation;

5. Expressing the wish that all States, recognizing the social and humanitarian nature of the problem of refugees will do everything within their power to prevent this problem from becoming a cause of tension between States;

6. Noting that the United Nations High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective coordination of measures taken to deal with this problem will depend upon the cooperation of States with the High Commissioner;

Have agreed as follows:

At the 53rd session, the President drew attention to a few minor misprints in the Preamble which required correction. In paragraph 3, the word ‘advise’ should be replaced by the word ‘revise’, and the words ‘new instructions’ by the words ‘a new agreement’. In the last line of paragraph 6, the word ‘Commissioner’ should be substituted for the word ‘Commission’. In the third line of paragraph 3 of the French text the words ‘qu’ils’ should be substituted for the word ‘qui’.

The US representative, Chairman of the Style Committee, requested that paragraphs 1, 2, 3 and 4 be put to the vote together, as they had been drafted together on the basis of the decisions taken by the Conference. On the other hand, the text of paragraph 5 was new to the Conference. It had been devised in an attempt to take into account the Yugoslav proposal, and should therefore be considered separately.

It was so agreed.

Paragraphs 1, 2, 3 and 4 of the Preamble were adopted unanimously.

The Canadian representative suggested that, as a matter of English style, the word ‘will’ should be substituted for the word ‘shall’ in the second line of paragraph 5, no change being necessary in the French text.

It was so agreed.

The Yugoslav representative stated that, although paragraph 5 only partly covered the substance of the Yugoslav proposal, and was therefore not fully satisfactory to the Yugoslav Government, his delegation would be prepared to accept it.

Paragraph 5 was adopted unanimously.

Paragraph 6 was adopted unanimously.

The Preamble as a whole was adopted unanimously.

Commentary

The Preamble is, of course, not legally binding but is nevertheless important because it may be used for the interpretation of the Convention.

The first two paragraphs refer to fundamental rights and freedoms. They give expression to the thought that the Convention is designed to ensure for refugees such fundamental rights and freedoms. It implies, on the other hand, that refugees are entitled, apart from and beyond the Convention, to all those fundamental rights and freedoms which have been proclaimed for all human beings.

While the Convention itself does not regulate asylum, the fourth paragraph deals with the consequences of the grant of asylum, i.e. that it may place unduly heavy burdens on certain countries. Countries may, owing to their geographic location, be faced with a mass influx of refugees which may place a heavy burden on them. The Preamble, by referring to the international nature of the refugee problem which has, inter alia, been affirmed in General Assembly Resolution 6(l) of 12 February 1946, and the need of international cooperation, proclaims the principle of burden-sharing which has acquired enormous importance in dealing with refugee problems. It is clear from the debate that not only international cooperation in the field of protection but also in the field of assistance, help for States on which the refugee problem places too heavy a burden, was meant.

The High Commissioner has, not only by his task of supervising the application of international conventions for refugees, but also in this field, an important coordinating task and States are, in the last paragraph, called upon to cooperate with the High Commissioner.

ARTICLE 2. GENERAL OBLIGATIONS

Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.

Travaux Préparatoires

The Secretariat Draft submitted to the ad hoc Committee on Statelessness and Related Problems (later called ad hoc Committee on Refugees and Statelessness) contained the following provision:

‘Refugees authorized to reside in a country must conform to the laws in force.

The French Draft contained an Article reading:

‘1. Refugees authorized to reside in a country must adapt themselves to the established order in the country of asylum and conform to the laws in force.

2. The High Contracting Parties reserve the right to restrict the political activity of refugees.’

In the ad hoc Committee, the Secretariat Draft and the French Draft were at first discussed together. The Danish representative considered that the Article was unnecessary as it contained nothing which was not obvious; he proposed its deletion. The Brazilian and Turkish representatives agreed.

The French representative stated that he attached great importance to the second paragraph. He was supported by the Turkish representative. They were opposed by the representative of the US who felt the points made by the French and Turkish representatives were already met in the clause recognizing the right to expel refugees for violations of public order. He was supported by the Canadian representative. The Turkish representative then proposed the addition of the words ‘and to measures taken for the maintenance of public order’ in the Secretariat Draft. It was stated by several representatives that nothing in the draft Convention prevented a State from exercising its authority in respect of the political activities of its residents.

Article 10 as amended was provisionally adopted.

The Belgian representative asked the Rapporteur to note that the Article, as approved by the Committee, while it did not authorize the State to restrict political activity, should not be interpreted as a limitation of its power to do so if it deemed necessary.

In the Report of the ad hoc Committee on its first session it was stated:

‘Article 2 states the obligation upon a refugee to comply with laws and regulations of the country in which he is. The Committee fully appreciated that the provision made in the Article was axiomatic and need not be explicitly stated. However, it was considered useful to include such a provision in order to produce a more balanced document as well as for its psychological effect on refugees and/or countries considering admitting refugees. The representative of France proposed a second paragraph to this Article, explicitly permitting Contracting States to restrict the political activity of refugees. The Committee felt that such a provision was too broad, and might be misconstrued as approving limitations on areas of activity of refugees which are in themselves unobjectionable.

The Committee also felt that a provision of this kind was unnecessary and that in the absence of a provision to the contrary any sovereign government retained the right it has to regulate any activities on the part of an alien which it considers objectionable. The failure to include such a provision is not to be interpreted as derogating from the power of governments in this respect. In an effort to meet at least in part the view of the representative of France, the phrase “including measures for the maintenance of public order” was included.

At the second session of the ad hoc Committee the French representative proposed a new text reading: The duties of the refugee towards the community include the obligation to conform to all measures taken for the maintenance of public order and also to the laws and regulations of the country in which he finds himself. He was supported by the Belgian and Venezuelan representatives.

The Drafting Committee proposed the text which is now in the Article.

At the Conference of Plenipotentiaries Belgium proposed an amendment reading:

Article 2. General Obligations. Only such refugees as fulfill their duties towards the country in which they find themselves and in particular conform to its laws and regulations as well as to measures taken for the maintenance of public order, may claim the benefit of this Convention.

Australia proposed the following:

Every refugee has duties to the country in which he finds himself which require in particular to conform to its laws and regulations and to measures taken for the maintenance of public order and that he observe the conditions upon which his entry into the country was permitted.

The Australian representative explained that his amendment purported to cover the obligation undertaken by refugees entering Australia under the Displaced Persons Resettlement Scheme to remain in the employment found for them for a period of up to two years and not to change that employment during that period without the consent of the Department of Immigration. The Belgian amendment was opposed by the Canadian, Israeli, Netherlands, and UK representatives and the High Commission. The Egyptian representative proposed to add the words ‘and morality’ after ‘public order’.

The French representative proposed an amendment reading:

Any refugee guilty of grave dereliction of duty and who constitutes a danger to the internal or external security of the receiving country may be declared to have forfeited the rights pertaining to the status of refugees, as defined in the Convention.

The amendment was opposed by the Netherlands representative. The Belgian and Australian amendments were withdrawn in favour of the French amendment. It was supported by the Swedish and opposed by the UK representative. A working party consisting of the representatives of Belgium, France, Israel and the UK was appointed. The Style Committee proposed the text which was finally adopted.

Commentary and Judicial Decisions

The term ‘public order’ does not correspond to the meaning of that term in Anglo-Saxon law but rather to the term ‘ordre public’ in French law. Both threats to internal and external security of the country are meant, whether covered by the Criminal Code or not. The passage was mainly introduced to cover restrictions of political activities of refugees. Such restrictions may be restrictions applied to aliens generally or restrictions imposed specifically on refugees. The question of subjecting refugees to military service was discussed but rejected by 4 votes to 3 with 4 abstentions.71 The Committee’s Report stated that the question of subjecting refugees to military service was an example of a matter on which the draft Convention remained silent despite the fact that the Secretariat Draft and the Draft of the French Government offered precise provisions on the subject. The Committee felt that such a provision might be open to misinterpretation and that this problem is covered by rules of general international law and practice. On the other hand, it was not suggested that Governments might not require military service of refugees subject to such law and practice.72 The laws and practices referred to may be of a general nature or apply specifically to refugees.

Although this is not explicitly stated, refugees may be expected to behave in such a manner, for example, in their habits and dress, as not to create offence in the population of the country in which they find themselves.

The Austrian Administrative Court referred to Article 2 of the Convention in several decisions:

Stojanoff v. Sicherheitsdirektion für das Land Oberösterreich; decision of 21 December 1956. VewGH 1949/55/2.

Grochot v. Sicherheitsdirektion für das Land Steiermark; decision of 23 March 1959, VerwGH 1752/57-3. In this Case an expulsion order against a refugee who had been fined for illegal presence in Austria was upheld. This interpretation would seem to exceed the intentions of the drafters of the Convention.

Decision of 12 November 1956, VerwGH 3018/55-4, Dalloz 1959, p. 848:

The appellant had the extension of his residence permit refused and had been ordered to leave Austria within a month; he had been sentenced several times for smuggling. The order to leave Austria was confirmed.

Serious criminal acts may justify the expulsion of refugees under Article 32 of the Convention and, in extreme cases, their refoulement under Article 33 paragraph 2 (see under these Articles). A refugee who ‘has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’ and a refugee who ‘has been guilty of acts contrary to the purposes and principles of the United Nations’ is excluded from the application of the Convention according to Art. 1 F(a) and (c).

The High Commissioner referred to these clauses in a Note Verbale of 16 November 1966 submitted to the Foreign Minister of the Federal Republic of Germany in connection with acts of violence against officials and premises of the Federal Socialist Republic of Yugoslavia on the territory of the Federal Republic and in which refugees of Yugoslav origin were alleged to have been involved. He stated, inter alia:

‘The Office of the United Nations High Commissioner for Refugees wishes to state explicitly that persons who in their country of refuge have committed acts of violence against another State, its government or against individual officials or premises of that State, can in no way be considered refugees in the sense of the Statute of the United Nations High Commissioner for Refugees and that such persons are excluded from measures of international protection or of material assistance of this Office.’

The High Commissioner further stated in the ESC on 26 July 1976:

‘It may be useful, in this connection, to recall that it is not the task of the High Commissioner to help or protect those who, as a result of their activities contrary to the aims and principles of the United Nations, have placed themselves outside an action for strictly humanitarian purposes. Article 2 of the Convention mentions, moreover, the duties and obligations incumbent on refugees, in particular to respect the laws of the country which has given them asylum. Every action of the High Commissioner tends, it must be recalled, to reintegrate the refugees in the framework of a community where they can recover the conditions of an active and peaceful life.’ (Translation from French).

ARTICLE 3. NON-DISCRIMINATION

The Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.

Travaux Préparatoires

In the ad hoc Committee the Belgian representative submitted a text reading:

‘The High Contracting Parties shall not discriminate against refugees on account of race, religion or country of origin, nor because they are refugees.’

He was supported by the US representative. The Article was adopted.

The Australian Government, in its comments, referred to the obligations of refugees to accept a work contract as a condition of entry and expressed misgivings about the Article.

The Article was adopted by the ad hoc Committee in the following version:

‘No Contracting State shall discriminate against a refugee within its territory on account of his race, religion or country of origin, or because he is a refugee.’

At the Conference of Plenipotentiaries Australia proposed the following amendment:

‘Provided that the Article shall not be deemed as absolving a refugee from observing the conditions under which he was admitted to such territory.’

The Yugoslav representative proposed the addition of the words: ‘or for other reasons’ to the text adopted by the ad hoc Committee. In the discussion it was pointed out that refugees were sometimes subjected to special measures. The Israeli representative proposed the deletion of the words: ‘or because he is a refugee’. He was supported by the Egyptian, Greek and Turkish representatives. The proposal was adopted by 18 votes to none, with 3 abstentions. A further additional Article was proposed by Australia reading:

Nothing in this Convention shall be deemed as absolving a refugee from observing the conditions under which he was admitted, or was authorized to stay, in the territory of a Contracting State.

Egypt proposed to add to the text the words: ‘subject to the requirements of public order and morality. France proposed the deletion of the words ‘within its territory’. The amendment was opposed by the Canadian and US representatives. A drafting Group consisting of the representatives of Belgium, Australia, France, Israel and the US was appointed to submit an approved text for further consideration. The Yugoslav representative proposed to insert the word ‘particularly’ in front of the words ‘on account of race’, and to add the words ‘or sex’ after the words ‘country of origin’. He was opposed by the representatives of Austria, Colombia, Italy, Switzerland, Turkey, the UK and the US. The Yugoslav representative withdrew the proposal to add the words ‘or sex’. The rest of the amendment was rejected by 17 votes to 1, with 5 abstentions. The Egyptian amendment was rejected by 14 votes to 4, with 4 abstentions. The Australian representative corrected his amendment by the substitution of the words ‘to absolve’ for the words ‘as absolving’ and by the addition of the words ‘or shall be’ after the words ‘which he was’. The Australian amendment was supported by the Colombian representative. It was rejected by 6 votes to 5, with 11 abstentions. The Article was adopted as amended, subject to review by the Style Committee.

The Drafting Group offered six choices to the Committee for Article 3. The text contained in the sixth alternative reading:

‘The Contracting States shall apply the provisions of this Convention to persons defined in Article 1, without discrimination as to race, religion or country of origin’, was adopted by 21 votes to none, with 3 abstentions.

The Style Committee proposed the text which is now in the Convention. It was adopted by 21 votes to none, with 1 abstention.

Commentary

The non-discrimination clause is, for the reasons outlined in the debate, limited to the provisions of the Convention. Since, however, the Convention provides, in Article 7 paragraph 1, that except where the Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally, rights accorded to aliens generally must be considered as included. The obligation is incumbent on all Contracting States, not only on the one in which the refugee finds him or herself. The grounds of discrimination are limited to race, religion or country of origin; grounds it was said mainly applied in the countries of origin, and that everything else should be left to the Contracting States. Discrimination on the ground of sex is not excluded nor is discrimination on the ground that the person is a refugee. In the light of the history of the Convention and the intention as expressed in the Preamble one may conclude that Contracting States may not discriminate between different groups of refugees within the obligatory provisions of the Convention. Article 5 provided that nothing in the Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from the Convention. As regards such rights and benefits, whether already granted at the time of entry into force of the Convention or granted in the future, differentiation between various groups of refugees would appear to be permissible. Differentiation explicitly provided for by certain provisions of the Convention (for example, Article 7 paragraphs 2 and 3) is, of course, not excluded.

Contracting States are, moreover, bound by the Charter of the United Nations and may be bound to the principle of nondiscrimination beyond the provision in the Convention by other international instruments to which they are Parties, such as the United Nations Convention on the Elimination of All Forms of Racial Discrimination, and the International Covenant on Civil and Political Rights. The principle of non-discrimination as enunciated in Art. 2 of the Universal Declaration of Human Rights is of general application.

ARTICLE 4. RELIGION

The Contracting States shall accord to refugees within their territories treatment at least as favourable as that accorded to their nationals with respect to freedom to practise their religion and freedom as regards the religious education of their children.

Travaux Préparatoires

At the Conference of Plenipotentiaries, following a statement by Pax Romana, the Luxembourg representative proposed a provision reading:

The Contracting Parties shall grant refugees within their territories complete freedom to practice their religion both in public and in private and to ensure that their children are taught the religion they profess.

He was supported by the representatives of Austria, Belgium, Egypt, France, the German Federal Republic, the Holy See, Netherlands, Sweden, the UK and Venezuela. The Luxembourg representative stated that freedom of worship would be subject to the requirements of the laws and regulations in force in the receiving countries which was emphasized also by other representatives. Some apprehension was expressed that the text proposed would imply that the State would have to provide for the religious education of the children of refugees at its own expense.

The Style Committee proposed the following wording:

The Contracting States shall accord to refugees within their territories the same treatment as is accorded to nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.

The representative of the Holy See pointed out that there was a danger that in countries where religious liberty was circumscribed, refugees would suffer. He proposed the insertion of the words ‘at least’ after the words: ‘the same treatment’ in order to grant refugees a minimum of religious liberty in such countries. The UK representative suggested that the amendment should read ‘at least as favourable’, the word ‘same’ being deleted. The suggestion was accepted by the representative of the Holy See.

The proposal of the Holy See was adopted by 20 votes to none, with 1 abstention. Article 4, as amended, was adopted unanimously.

This is the only Article in the Convention where treatment at least as favourable (author’s italics) as that accorded to nationals of the Contracting States is provided for. As was pointed out, this was intended to cover the situation in countries where there are limitations on religious freedom, particularly countries in which there is a State religion to which the refugees do not belong or where the refugees’ religion is not represented in the local population. The Article does not oblige the Contracting States to provide the material or financial means for the exercise of their religion by the refugees or the religious education of their children where such means are not provided for nationals. The provision applies to all refugees ‘within the territories’ of the Contracting States, whether they are there legally or illegally.

ARTICLE 5. RIGHTS GRANTED APART FROM THE CONVENTION

Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention.

The Drafting Committee of the ad hoc Committee proposed at its second session an additional Article reading:

Nothing in this Convention shall be deemed to impair any rights and benefits granted to refugees prior to or apart from this Convention

This Article was adopted by the ad hoc Committee as Article 3(a).

In its Report the Committee stated that the Committee ‘thought it advisable to make it clear that the adoption of the present Convention should not impair any greater rights which refugees may enjoy prior to or apart from the Convention.’

At the Conference of Plenipotentiaries the Style Committee proposed the following wording:

Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to Refugees apart from this Convention.
The Article was adopted by the Conference unanimously in this form.

It resulted from the history of the Article that both rights and benefits granted prior to the Convention and those granted subsequently to its entry into force are meant. Such rights and benefits may be based on national legislation or on treaty, for instance the treaties concluded by the IRO with certain States; such rights are not abrogated by the Convention.

Where the rights and benefits are based on municipal legislation, the Contracting States may, however, abrogate them. If they are contractual rights, their length and validity depends on the terms of the treaty.

ARTICLE 6. THE TERM ‘IN THE SAME CIRCUMSTANCES’

For the purposes of this Convention, the term ‘in the same circumstances’ implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of requirements which by their nature a refugee is incapable of fulfilling.

Travaux Préparatoires

In the Report on its first session the ad hoc Committee stated that the phrase ‘in the same circumstances’ means that the treatment of refugees should correspond to that granted to other aliens ‘ceteris paribus’.

At the second session a draft Article 3(a) reading:

‘a) the term ‘in the same circumstances’ implies that the refugee must satisfy the same requirements, including the same length and conditions of sojourn or residence, which are prescribed for the national of a foreign State for the enjoyment of the right in question;’

b) in those cases in which the refugee enjoys the ‘same treatment as accorded to nationals’, the refugee must satisfy the conditions required of a national for the enjoyment of the right in question’ was adopted unanimously.

At the Conference of Plenipotentiaries, the representative of Israel said it had to be recognized that in certain cases refugees could not satisfy requirements identical with those provided for nationals. For example, in some Eastern European countries a person had to fulfil certain qualifications relating to residence in order to be eligible for social security.

The same argument applies to sub-paragraph (b). The special circumstances of refugees must be recognized, and while accepting the basic principle underlying the definitions put forward in Article 3(b), he suggested that it be drafted somewhat differently. He was supported by the UK representative. The President suggested that the Israeli and UK representatives might endeavour to work out a satisfactory text between them before the next meeting.

It was said that sub-paragraph (a) might possibly be drafted in such a way to meet the object of an Australian proposal for an additional Article 3(c). This proposal read:

‘Nothing in this Convention shall be deemed to confer on refugees any rights greater than those enjoyed by other aliens’.

The Belgian representative stated that the proposal conflicted with some of the other provisions of the Convention which conferred on refugees more favourable treatment than that enjoyed by other aliens in respect of, for example, education and employment. He was supported by the representative of Austria and the German Federal Republic. The Australian amendment was withdrawn on the understanding that his remarks would be reported in the summary record of the meeting.

The Israeli and UK representatives suggested to drop sub-paragraph (b) as meaningless. As regards sub-paragraph (a) they suggested the following wording:

‘The term ‘in the same circumstances’ implies that any requirements (including requirements as to length and conditions of sojourn or residence) which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him, with the exception of circumstances which by their nature a refugee is incapable of fulfilling. They thought that the reference to the particular individual would remove a difficulty in the present text – namely that within the general category of ‘nationals’ or ‘aliens generally’ conditions and requirements may not be uniform, and it was not clear which of them would be applicable in the case of a particular refugee. The new wording proposed should, therefore, assist to meet the point raised by the Australian delegation. The exception was intended to exclude conditions which a refugee, as such, is incapable of fulfilling, as, for example, the requirement of Heimatrecht in certain Central-European countries for the enjoyment of social security.

In the ensuing discussion the Australian representative doubted whether the suggested redraft of Article 3(b) would solve the difficulties of the Australian delegation. He had certain doubts about the position of aliens who entered Australia for a particular purpose but who might later conceivably claim refugee status, a point which was connected with the interpretation of the words ‘lawfully living in the territory’. He was prepared to agree, instead of his proposed amendment, to make some form of interpretative reservation. On that understanding he would support the redraft of Article 3(b) suggested by the Israeli and UK representative and withdraw his own amendment.

The suggestion that sub-paragraph 9b) be deleted was adopted by 22 votes to none with 2 abstentions. The new wording of sub-paragraph a) was adopted by 23 votes to none, with 1 abstention, subject to any textual amendments that might be made by the Style Committee.

The Style Committee proposed the text which is now in the Convention.

The UK representative subsequently proposed the following amendment:

‘For the purpose of this Convention the term ‘in the same circumstances’ implies that any requirements as to length and conditions of sojourn or residence which the particular individual would have to fulfil for the enjoyment of the right in question, if he were not a refugee, must be fulfilled by him.’

He explained that the parenthesis in the second and third line should be replaced by the words ‘as to length and conditions of sojourn or residence’, since in point of fact these were the requirements which it was the main purpose of the Article to specify. The wider formula might create difficulties of interpretation from the point of view of the refugee. Further, the UK amendment proposed the deletion of the last clause: ‘with the exception of requirements which by their nature a refugee is incapable of fulfilling.’ That clause had been included for the sake of refugees who had been assimilated to nationals, but on further consideration it would seem that the issue was disposed of in the Articles in which reference was made specifically to assimilation. The clause was, moreover, unnecessary since the term ‘in the same circumstances’ did not occur in the Articles which dealt with assimilation to nationals. The Israeli representative, he said, agreed with him that in the present instance the afterthoughts were better thoughts.

The Belgian representative had some hesitations to accept the UK amendment, which might have the effect of restricting unduly the implications of the term ‘in the same circumstances’. To give an example, it might be that a refugee might wish to procure a document allowing him to exercise a profession or to ply a trade. The element of sojourn or residence would count, of course, but other considerations might also come into play, such as the kind of trade or profession the refugee wished to engage in.

The UK representative said the Belgian representative’s argument most aptly illustrated the point of the UK amendment. He would emphasize that the term ‘in the same circumstances’ was defined in its implications, not in its meaning. The allimportant aspect was that refugees should fulfil the requirements as to sojourn and residence, since for the rest they would be granted the same treatment as aliens generally.

After further debate the UK representative withdrew his amendment. Article 6 was adopted by 22 votes to none, with 1
abstention.

Commentary

The words ‘in the same circumstances’ appear in Article 13 (Movable and Immovable Property) in relation to treatment granted aliens generally, Article 15 (Right of Association) and Article 17 paragraph 1 (Wage-earning employment) in relation to the most favourable treatment accorded to nationals of a foreign country, Article 18 (Self-employment), Article 19 (Liberal Professions), Article 21 (Housing), Article 22 paragraph 2 (Education) and Article 26 (Freedom of Movement) in relation to treatment accorded to aliens generally.

There may be other conditions than those mentioned in the debate which refugees are incapable of fulfilling, e.g. government. the production of a national passport or a nationality certificate. Where the production of certain documents relating to professional qualifications or diplomas is concerned, the refugee who is unable to produce the required documents would be allowed to produce other evidence that he possesses the necessary qualifications.

ARTICLE 7. EXEMPTION FROM RECIPROCITY

1. Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.

2. After a period of three years’ residence, all refugees shall enjoy exemption from legislative reciprocity in the territory of the Contracting States.

3. Each Contracting State shall continue to accord to refugees the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State.

4. The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3.

5. The provisions of paragraphs 2 and 3 apply both to the rights and benefits referred to in articles 13, 18, 19, 21 and 22 of this Convention and to rights and benefits for which this Convention does not provide. Travaux Préparatoires

The Secretariat Draft contained the following Article 8:

‘The enjoyment of the rights and favours accorded to foreigners subject to reciprocity shall not be refused to refugees in the absence of reciprocity.

In its comments the Secretariat referred to Article 14 of the Convention relating to the International Status of Refugees of 28 October 1933 which contains an identical provision. It stated the idea of reciprocity was at the root of the idea of the juridical status of foreigners. The law considered a foreigner to be in normal circumstances, that is to say, a foreigner in possession of a nationality. The requirement of reciprocity of treatment placed the national of a foreign country in the same position in which his own country placed foreigners. By this means, the more liberal countries helped to induce other countries to improve the status of foreigners.

Since a stateless refugee was not a national of any State, the requirement of reciprocity loses, it was said, its raison d’être and its application to refugees would be a measure of severity. Refugees would be placed in an unjustifiable position of inferiority.

The French draft contained the following provision:

‘The enjoyment of certain rights and the benefit of certain privileges accorded to aliens subject to reciprocity shall not be refused to refugees in the absence of reciprocity in the case of those enjoying them at the date of signature of this Convention. As regards other refugees, the High Contracting Parties undertake to give them the benefit of these provisions upon completion of the period of residence referred to in Article 4.’

At the first session of the ad hoc Committee the representative of Venezuela said that when the Committee had adopted Article 5, it had expressed a preference for granting to refugees the treatment accorded to aliens generally. In the practice of international law there were two types of reciprocity, legislative, diplomatic or regulated by treaty, and de facto. Should Article 8 be adopted in its present form, refugees would be in a position to invoke its provisions in order to request the most favourable treatment accorded under treaty, in other words, under diplomatic reciprocity to foreigners. The US representative supported the Secretariat text. The French representative said the provisions of the Article had a real meaning only when they applied to refugees who had a nationality.

The representative of the Secretariat said that it was obvious that where refugees were granted the most favourable treatment, there would be no point in involving the clause respecting exemption from reciprocity; where refugees were granted the treatment accorded to foreigners generally, it meant that they could not claim the special treatment enjoyed by some foreigners under the condition of reciprocity. The question of exemption from reciprocity did not arise.

The representative of the US said there was nothing to be gained by making the rights subject to reciprocity where a refugee was concerned, and if the refugee was not granted exemption from the requirement of reciprocity he would be placed in an unjustifiable position of inferiority with respect to other foreigners.

According to the Israeli representative the Committee would first have to consider whether the clause on exemption from reciprocity was to apply only to the limited list of rights set forward in the draft Convention or whether its scope was to extend beyond the terms of the draft Convention. In the opinion of the US representative, the question of reciprocity could only arise in cases where the refugee was to be treated in the same way as foreigners generally. He thought that the clause should cover all rights to be granted to refugees and not only those which were actually specified in the draft Convention. The Turkish representative thought that the scope of the Article should be confined to the rights not already covered in the draft Convention. The representative of the IRO said the clause should cover both the rights set forth in the draft Convention and those not actually specified therein. He agreed with the US representative that it was only in those cases where refugees were to be given the same rights as foreigners generally that the need for a clause providing for exemption from reciprocity arose. In the opinion of the Belgian representative refugees could not benefit from reciprocal treatment in cases where the right or privilege in question was granted solely as a result of an international agreement between two countries. The Israeli, UK and US representatives agreed. The UK Government, and most Governments, had been unable to accept the clause on reciprocity in the 1933 and 1938 Conventions. He suggested the following new wording:

Where rights and favours are accorded to foreigners generally, but are made subject to reciprocity for the purpose of securing corresponding rights and favours for nationals abroad, those rights and favours shall not be refused to refugees.

He agreed to the suggestion of the representative of the IRO to delete the word ‘abroad’ after ‘nationals’.

The Turkish representative suggested that the words: ‘Save where otherwise provided in the terms of this Convention’ be inserted at the beginning of the Article. He was opposed by the US representative.

Subject to drafting changes, the text proposed by the UK was approved.

The Working Group proposed the following text:

Where rights and favours are accorded to aliens generally, but are made subject to reciprocity, those rights and favours shall not be refused to refugees.’

The US representative proposed that it should read:

‘Contracting States shall not refuse such rights and favours to refugees.

Article 4 as amended was adopted.

The representative of the IRO suggested that the wording in the 1933 and 1938 Conventions might be retained. The purpose of the Article was to cover legislative, de facto and diplomatic reciprocity, but not necessarily special and preferential rights which were granted to nationals of certain foreign States under treaty provisions.

In its Comments the Committee stated:

1. ‘In some countries there is at the root of the idea of the juridical status of foreigners the idea of reciprocity. The law considers the foreigner as being in normal circumstances in the possession of a nationality. The requirement of reciprocity of treatment places the national of a foreign country in the same position as that in which his own country places foreigners. Since a refugee is not protected by any State, the requirement of reciprocity loses its raison d’être and its application to refugees would be a measure of severity. Refugees would be placed in an unjustifiable position of inferiority. The exemption from reciprocity relates not only to rights and benefits specifically covered by the draft Convention (Articles 8, 13, 14, 16) but also to such rights and benefits not explicitly mentioned in the draft Convention. A reciprocity clause is contained in the Convention of 28 October 1933 and in the Convention of 10 February 1938. The Committee thought it desirable to clarify the meaning of the clause but no change of substance was intended.’

2. ‘The Article is not intended to relate to treaty provisions conferring preferential treatment on aliens of a particular nationality, as for example, under a most favoured nations clause. Where, however, aliens generally enjoy rights whether by statute or by treaty arrangements with other countries (that is, diplomatic reciprocity), these rights shall be accorded to refugees also.

Austria suggested in its comments to give the Article the form of a recommendation because rights granted to a small number of aliens on the basis of reciprocity could not be extended to several hundreds of thousands of refugees.

France stated that it could not grant the benefits of the rights of preemption, which at present is reserved to French farmers, unless such rights should happen to be granted, whether subject to reciprocity or not, to the nationals of another State.

The IRO, in its comments, suggested the following wording:

‘The enjoyment of certain rights and the benefit of certain favours accorded to foreigners subject to reciprocity shall not be refused to refugees in the absence of reciprocity.

‘This provision shall equally apply to rights and benefits explicitly referred to in the present Convention, including those referred to in Articles 8, 13, 14 and 16, as well as to rights and benefits not referred to in the Convention.

‘Each State may at the time of its accession to the present Convention indicate, by communication to the Secretary General, rights and benefits accorded to aliens as a result of preferential treatment to which the provision of paragraph 1 shall not apply.

‘Each Contracting State may also indicate, by communication to the Secretary General, any rights and benefits accorded to aliens as a result of preferential treatment subsequent to their accession to the present Convention to which the provision of paragraph 1 shall not apply.’

At the second session of the ad hoe Committee the French representative compared the text of the Article and the comments with the various hypotheses of national legislation. The first hypothesis was that in certain matters all aliens had the same treatment as nationals. In France, that was the case with national security, with the exception, however, of certain special allowances. Where France recognized equal rights, no problem arose.

The second hypothesis was that aliens had none of the rights enjoyed by nationals. For example, the rights to elect and to stand for election were generally refused to aliens. In that case, no difficulty arose.

The third hypothesis was more complex. It was that rights were not granted to aliens unless there was reciprocity. If the French Government and a small State concluded a treaty providing for certain rights to be granted to Frenchmen, and the same rights to be granted to nationals of that State in France, was the advantage granted to citizens of a single State to be accorded by France to all refugees? As he interpreted it, Article 4 did not mean that it was necessary to accord that treatment to all refugees.

Leaving the sphere of diplomatic reciprocity and entering that of legislative reciprocity, the question became still more complicated. If the legislation of other countries granted aliens the right, for example, of preemption, must France recognize that all refugees in her territory were to enjoy that right, regardless of any idea of reciprocal treatment? Thus, if a single country granted a favour to aliens by its legislation, reciprocity would be established. Must France grant that right to all refugees? She might be unable to accept such result, in many types of cases, as it would lay intolerable burdens on her.

France was prepared to give to refugees the treatment given to aliens generally, but she did not intend to give better treatment to refugees than that given to the majority of aliens. The reciprocity was often considered by a State as a means of obtaining from other States, favourable treatment for its nationals abroad. There was, in fact, another side of the question. Moreover, the problem did not arise in the same terms in the case of refugees. To stipulate the non-applicability of reciprocity in a draft convention bore no relation to the real situation of refugees, nor to the exceptional charges which fell upon receiving countries like France.

The representative of the IRO said the word ‘generally’ may lead to complications. It was necessary to distinguish between cases where the treatment was subject to diplomatic reciprocity and cases where it was not. But in the latter case it was not easy to decide what the normal treatment accorded to refugees was. When the question had been raised the previous year, the representative of the Legal Department had said that the treatment accorded could not be judged simply from the laws as they stood, since it depended to a large extent on administrative practice and case law. The present formulation would, in the opinion of the IRO, not meet the situation in countries with legislation based on the Napoleonic Code or countries which had a mixed system. In the opinion of the IRO, it would not be appropriate to call the treatment to be accorded to refugees ‘preferential treatment’. It was merely intended to grant them either treatment commonly enjoyed by all aliens, or, with regard to certain matters, treatment commensurate with their special situation. For example, certain reciprocity clauses provided that an alien in need of public assistance should receive help from his country of residence which would be reimbursed by the country of nationality, or, alternatively, that he should be returned to his country of origin where he would automatically qualify for assistance. Neither of these courses would be possible in the case of refugees, and therefore special treatment was required to assimilate that given to refugees to that given to nationals. If that special treatment was called ‘preferential’, it might easily be interpreted as being privileged treatment.

The UK representative thought that the attitude of every country must depend on how its law regarded aliens. It had been said in the discussions that in some countries aliens had no rights except on the basis of reciprocity. In the UK the position was exactly the opposite and the Article had therefore no application. He had once suggested that the provisions of the Article should only apply to countries where the rights of aliens were based on the concept of reciprocity and he still felt that might be the best approach.

The Israeli representative said the word ‘generally’ in the draft produced at the first session proceeded from a theory which had no basis in fact. Most countries had at least four or five statuses of aliens. Therefore, since no basis existed for it in fact or in law, the word ‘generally’ must first be removed. Subject to drafting changes he would accept the first two paragraphs of the IRO draft.

The US representative said that, in the US and the UK, problems of reciprocity did not arise. One point had been raised which he had thought was clearly covered by the present text, namely, legislative reciprocity. It was also necessary to cover cases where reciprocal treatment existed with many countries and was hence equivalent to legislative reciprocity. He could not himself suggest a draft but the Drafting Committee would have to, as long as it was clear what was desired. The first two paragraphs of the IRO text appeared acceptable at first sight, but further consideration would be needed. The main object was to ensure that aliens should not be penalized because they had no nationality and where privileges were generally enjoyed by aliens, through treaties or in any other way, refugees should have the same privileges.

The French representative did not think the first two paragraphs of the IRO text would make it possible to put the idea that had been advanced by the US representative into effect. There was no doubt that refugees must not be penalized because they were refugees. But the text of the Article, as drafted by the IRO, gave a sort of automatic character to the favours to be accorded to refugees. The present text was certainly not perfect but he found it in any case less open to criticism than the IRO text, because it did not create an automatic system, which the French Government could not accept.

The Committee decided to refer Article 4 to the Drafting Committee.

The Drafting Committee proposed the following text:

‘1. Except where these Conventions contain more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.

2. Where aliens enjoy rights subject to reciprocity, a Contracting State shall continue to accord these rights and benefits, without regard to reciprocity, to a refugee who was already entitled to them on the date on which the Convention comes into force in relation to that State.

As regards other refugees a Contracting State shall accord the same rights and benefits to them, without regard to reciprocity, when they shall have been resident in its territory for a certain period.

3. The provisions of paragraph 2 apply equally to rights and benefits referred to in Articles 8, 13, 14 and 16 of this Convention as well as to rights and benefits other than those specified in this Convention.’

The Belgian representative proposed that the words: ‘in a Contracting State’ be inserted after the word: ‘Where’ at the beginning of paragraph 2.

The French representative said the effect of the addition would be to limit the scope of the Article. Hence, it would call for preliminary discussion.

The Belgian representative felt that actually the first part of paragraph 2 referred exclusively to cases which might arise in Contracting States.

In reply to a question, the French representative recalled that the chief concern of the Drafting Committee in adopting the wording ‘for a certain period’ had been to grant new refugees treatment equal to that granted to refugees of long standing. It had not decided on the period because representatives had undertaken to try to obtain details from their Governments, including an indication of a definite period, say, between two and five years.

The IRO representative wondered what treatment was to be accorded to refugees, who, while not resident in a country, had property there. In their case, the question of reciprocity was important, with regard, for example, to compensation for war damage and related matters.

The US representative observed that in the matter to which the IRO representative had referred, the Committee had retreated to some extent from the position it had taken up in first drafting the Article. The report should include a recommendation that Governments should continue, so far as possible, to extend the broader provisions of the earlier draft to aliens generally.

The UK representative pointed out that paragraph 2 was concerned with rights granted generally on the basis of legislative reciprocity, and not with special rights granted by virtue of bilateral treaties. The French representative agreed.

Articles 4 and 5 were adopted.

In its Comments the Committee stated:

‘A serious question arose with regard to exemption from reciprocity (Articles 4 paragraphs 2 and 3). It was the consensus of the Committee that the requirement of reciprocity in the original text should be revised because it was open to different interpretations in different countries. The revised text approved by the Committee preserved rights based on reciprocity for those refugees who were entitled to enjoy them on the date the Convention came into force in a particular State. The Committee was not unaware of the desirability of extending the same treatment to other refugees. It expressed the hope that States would give sympathetic consideration to extending rights, as far as possible, to all refugees without regard to reciprocity, particularly where the rights have no relation to the requirement of residence, as, for example, compensation for war damages and persecution. However, the Committee felt that a legal obligation in this case could be acceptable only in regard to refugees who had resided in the country for a given period. Because it was impossible to ascertain what period of residence would be acceptable, the Committee used the phrase ‘for a certain period’ on the understanding that the General Assembly would be better able to prescribe a definite period, if desirable. It was the understanding of the Committee that Article 4 paragraph 2 does not apply to rights conferred by treaty on nationals of a particular country only.

At the Conference of Plenipotentiaries, Belgium proposed an amendment of paragraph 2 reading:

‘As regards other refugees, a Contracting State shall accord them the rights and benefits subject to legislative reciprocity, when they shall have been resident in its territory for three years.’

The Belgian representative explained that the Belgian Government could not agree to confer on refugees the rights which certain aliens enjoyed in Belgium by virtue of a bilateral treaty concluded between Belgium and another State. Belgium had signed a number of regional agreements, and would find it impossible to grant all refugees the benefit of the rights laid down therein without running the risk of placing herself in a difficult position. Furthermore, not only the rights provided for in existing treaties were involved, but also those which would ensue from treaties signed at some future date. For those reasons, the Belgian delegation felt that all that was necessary was to grant refugees who enjoyed no rights at the date the Convention entered into force, exemption from reciprocity in respect of those rights which were accorded solely on the basis of legislative or administrative reciprocity.

The Egyptian representative felt that the refugee had no appeal to the protection of any State. In that context, the idea of reciprocity seemed to him to lack precision.

The President suggested that the difficulty might be met by some such formula as: ‘without the usual reciprocity required in the case of aliens in general’.

The Swedish representative suggested the insertion of the word ‘generally’ after ‘aliens’ in the first sentence of paragraph 2 so as to exclude, for example, certain individual rights granted by Sweden to nationals of other Scandinavian countries.

The Norwegian representative supported the Swedish representative’s remarks.

The French representative supported the Belgian amendment.

The President pointed out that all delegations who found themselves in the same position as the Swedish and Norwegian delegations would inevitably have to make reservations. The necessity of doing so could not be averted by redrafting the Article.

The High Commissioner said the Conference might find it useful to consider the texts of the third and fourth paragraphs in the memorandum submitted by the IRO.

The Austrian representative said that if the time-limit of three years proposed by the Belgian delegation was adopted, Austria would be obliged to enter a reservation on that point. However, the Austrian delegation could accept the Belgian amendment if the time limit was increased to, say, five years.

The French representative submitted, jointly with the Belgian delegation a new text for the Article reading:

‘Redraft the second paragraph reading:

‘The rights and benefits already enjoyed by certain refugees, without regard to reciprocity, at the date of entry into force of this Convention, shall continue to be accorded to them by the Contracting States.’

‘In future all refugees shall enjoy exemption from legislative reciprocity in the territories of the Contracting States after a period of three years’ residence.’

The Luxembourg and Netherlands representatives supported the amendment.

The Observer of the Inter-Parliamentary Union said that the second sub-paragraph of paragraph 2 might give rise to misunderstandings. By ‘the same rights and benefits’ were meant rights and benefits which certain refugees had been enjoying without regard to reciprocity, which was tantamount to promising to refugees the status of the alien most favoured by the reciprocity clause. The results would accordingly be different in each country, according to the rights and benefits granted to aliens in virtue of such a clause. The Inter-Parliamentary Union considered it essential to draft the reciprocity clause in the most liberal spirit. The question was whether ‘treatment as favourable as possible’ provided for in certain Articles had any legal weight, or whether its application would be left to the Contracting States. Furthermore, it would be advisable to consider the possibility of granting such exemption forthwith, not only after a certain period.

The Netherlands representative recalled that he had originally supported the Franco-Belgian amendment; however, he had since discovered certain points regarding which he wished some clarification. According to the amendment, new refugees would enjoy exemption from legislative reciprocity only after a period of three years’ residence in a receiving country. There were States which visualized the possibility of extending the idea of reciprocity even to non-statutory refugees. He requested the authors of the amendment to delete the word ‘legislative’; countries which regarded the retention of that word as indispensable could make appropriate reservations.

Paragraph 3 of the Article was not covered by the amendment.

Finally, he asked the Belgian representative whether he did not agree that it would be useful to add an extra-paragraph relating to the reciprocal regional agreements existing between certain groups of countries, such as Benelux and the Scandinavian countries.

The Belgian representative did not think a clause relating to regional agreements could be included in the Convention. Countries which wished to do so would always be able to enter a reservation on that point.

As to paragraph 3 of the Article, the Belgian delegation did not wish to see it deleted. The amendment was emphatically not designed to exclude de facto reciprocity. As to diplomatic reciprocity he had received precise instructions from his Government to press for its exclusion. If the Franco-Belgian amendment were rejected, he reserved the right to introduce a new proposal on that issue.

The Netherlands representative said he would not press for the inclusion of the extra paragraph relating to regional agreements, but thought that the word ‘legislative’ should definitely be deleted from the joint amendment.

The French representative asked the Secretariat how many countries had observed exemption from legislative reciprocity under the 1933 Convention. The Executive Secretary pointed out that in the 1933 Convention, reservations to Article 14, which related to exemption from reciprocity, had been entered by Belgium, Czechoslovakia, Denmark, Norway and the UK; none had been entered by Bulgaria, France and Italy. The UK representative explained that the UK reservation had been made simply because the Article in question had no application in the UK.

The Netherlands proposal to delete the word ‘legislative’ was rejected by 5 votes to 4, with 15 abstentions.

The joint Franco-Belgian amendment was adopted by 9 votes to 5, with 11 abstentions.

Article 4, as amended, was adopted by 20 votes to none, with 4 abstentions.

The Style Committee proposed the following wording:

‘1. Except where this Convention contains more favourable provisions a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.

‘2. After a period of three years’ residence, all refugees shall enjoy exemption from legislative reciprocity in the territories of the Contracting States.

‘3. Each Contracting State shall continue to accord to refugees, the rights and benefits to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that State.

‘4. The provisions of paragraphs 2 and 3 apply both to rights referred to in Arts 13, 18, 19 and 21 of this Convention and to rights and benefits for which this Convention does not provide.’

Israel and the Netherlands proposed an amendment reading:

‘Add the following paragraph:

‘5. The Contracting States shall consider favourably the possibility of according to refugees, in the absence of reciprocity, rights and benefits beyond those to which they are entitled according to paragraphs 2 and 3, and to extending exemption from reciprocity to refugees who do not fulfil the conditions provided for in paragraphs 2 and 3.’

‘Paragraph 4 to become 5.’

The joint Israeli-Netherlands amendment was adopted by 23 votes to none. The Netherlands representative suggested that, in the former paragraph 4 of Article 7, the words: ‘Articles 13, 18, 19, 21 and 22’. (Article 13 Movable and Immovable Property; Article 18 Self-Employment; Article 19 Liberal Professions; Article 21 Housing; Article 22 Public Education), The Netherlands suggestion was adopted by 21 votes to none, with 2 abstentions. Article 7, as amended, was adopted by 23 votes to none.

Commentary

Paragraph 1 of Article 7 is, in fact, not directly related to exemption from reciprocity. It states the general principle that, where the Convention does not contain more favourable provisions, the Contracting States shall accord to refugees the same treatment as is accorded to aliens generally. This is, by no means, a self-evident principle, considering the precarious situation of refugees in general international law. Aliens are, under international law, entitled to a certain minimum standard of treatment including, at least, protection of their lives and property but it has been doubted whether this applies also to refugees and stateless persons since it is only through the State of nationality of the alien that these rights can be protected and, if necessary, enforced. There was much discussion as to the meaning of ‘treatment accorded to aliens generally’ in the ad hoc Committee and the Conference of Plenipotentiaries but there is no doubt that in this connection only minimal treatment is implied. The provision entails that the minimum standards of treatment of aliens under international law apply also to refugees.

Paragraph 2 constitutes a step backward compared with the pre-war agreements and conventions in that only legislative reciprocity is referred to, and that exemption therefrom is to be granted only after a period of residence of three years. The pre-war treaties provided for exemption from reciprocity in general, thus including diplomatic reciprocity. That de facto reciprocity is to be deemed to be included in paragraph 2 results from the travaux préparatoires.

The relevance of reciprocity differs from country to country. In the Anglo-Saxon countries it plays no role regarding the treatment of aliens, nor in countries of immigration where immigrants have normally the same civil rights as nationals. In France and the countries whose law is based on the Code Napoleon, the treatment of aliens depends on diplomatic reciprocity; in certain continental European countries such as Austria and Germany, on de facto or legislative reciprocity. Examples were given in the debate.

In the case of agreements conferring rights not amounting to exclusive privilege, it would seem necessary to determine whether the rights are derived exclusively from the agreement or whether it has its origin in the legislation of the States concerned, the agreement being merely a means of confirming or giving effect to the reciprocity on an international level. In the latter case, reciprocity may be considered as legislative.

Paragraph 3 is designed to maintain the rights and benefits to which refugees were entitled, in the absence of reciprocity, at the date of entry into force of the Convention for the State Party concerned. This includes rights and benefits granted to statutory refugees under pre-war treaties even in the absence of diplomatic reciprocity, and rights granted under municipal law and practice. It thus creates a distinction between ‘old’ and ‘new’ refugees. The paragraph does not only apply to rights actually acquired by a refugee in the absence of reciprocity but to the rights and benefits to which the refugee was entitled in the absence of reciprocity under the law of the State concerned.

The calculation of the period of residence in this, and other Articles of the Convention where a period of residence is provided for, is subject to the provisions of Article 10 of the Convention. Article 7 paragraph 2 does not provide for continuous residence. Short absences abroad will not disqualify a refugee from benefiting from paragraph 2. If, however, a refugee moves his residence to another country and stays there for a protracted period, he can hardly claim the benefit of Article 7 paragraph 2 upon his return to his former country of residence. If a refugee has stayed in a second country of residence for a period of three years or more, he has benefited from paragraph. 2 in that country provided it is a Party to the Convention.

Paragraph 4 is the result of the efforts of those who wanted to go further than paragraph 2. It is only a recommendation, but imposes nevertheless a mandatory obligation to consider favourably the granting of wider rights and benefits. Thus, States may grant the rights and benefits even prior to the period of three years’ residence, may grant rights and benefits in a Contracting State where the refugee does not reside such as the right to compensation for war damages, to grant rights and benefits even in the absence of diplomatic reciprocity. The question was raised but not answered whether the granting of such rights and benefits to refugees would oblige the Contracting State to grant the same rights and benefits to other aliens on the basis of a most-favoured nations clause. It is defensible to argue that this would not be the case since refugees are aliens sui generis. Paragraph 4 should be applied subject to the rules of non-discrimination laid down in Article 3.

Paragraph 5 makes it clear that the provisions regarding reciprocity apply both to the rights and benefits granted by virtue of the Convention where treatment ‘in any event not less favourable than that accorded to aliens generally in the same circumstances’ is provided for and to rights and benefits accorded apart form the Convention. Article 26 on Freedom of Movement is not mentioned, probably because it provided for freedom of movement in principle, limitations as a result of limitation applicable to aliens generally in the same circumstances being the exception. Paragraph 5 substitutes the treatment provided for in paragraphs 2 and 3 for the ‘treatment accorded to aliens generally’ regarding the rights mentioned in these Articles.

Judicial Decisions

In France the Commission speciale de cassation de pensions had to decide whether the Polish widow of a Polish refugee was entitled to a war pension. According to an Agreement between France and Poland, Polish nationals were entitled to war pensions in France. The Commission, in a decision of 10 February 1954 in Guerre v. Gutersohn, followed the interpretation of the Ministry of Foreign Affairs to the effect that under Article 14 of the 1933 Convention, which exempted refugees from the requirement of reciprocity, the widow was entitled to a war pension.

The French Cour d’Appel of OrIéans decided on 27 April 1967 in Spouses Waguet v. Agut, that the denunciation of an agricultural lease of a Spanish refugee was invalid and granted him the right of renewal of his lease for nine years. A law of 28 May 1943 reserved explicitly to foreigners whose law of nationality granted the advantages of analogous legislation as well as to foreigners exempt from reciprocity by international agreement, the right to agricultural leases accorded to French nationals. The Court referred to Article 7 paragraph 2 of the 1951 Convention.

It may be pointed out that the defendant, a Spanish refugee, was, in France, also entitled to exemption from diplomatic reciprocity under the 1933 Convention which had been extended to Spanish refugees by France.

National Measures

Some Parties to the 1951 Convention have explicitly exempted refugees from reciprocity in their legislation or administrative practice. Thus, for example, in Austria, Article 3 paragraph 3 of the Law of 31 March 1964 concerning the medical profession (BGB1. 1964 No. 50) provides that refugees who have been resident in Austria for three years are exempt from the requirement of reciprocity for the exercise of the medical profession.

In Belgium members of Belgian families with four or more children enjoy a reduction of 50% on the price of tickets on the Belgian railways. This benefit is granted to foreigners on the basis of reciprocity. The Ministry of Communications informed UNHCR that the facility extended to all refugees under the mandate of UNHCR.

ARTICLE 8. EXEMPTION FROM EXCEPTIONAL MEASURES

With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting State shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality. Contracting States which, under their legislation, are prevented from applying the general principle expressed in this article, shall, in appropriate cases, grant exemptions in favour of such refugees.

ARTICLE 9. PROVISIONAL MEASURES

Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers to be essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interests of national security.

Travaux Préparatoires

Article 25 of the Secretariat Draft read:

‘Any exceptional measure which a High Contracting Party may be called upon to take against the person, property or interests of nationals of a foreign State, shall not be applied to refugees who are de jure nationals of the said State, solely on account of the fact that they legally belong to that State.’

In the comment it was stated:

‘After the outbreak of the Second World War, many refugees who had been persecuted by the Governments of the Axis countries were subjected to exceptional measures taken against the nationals of enemy countries (internment, sequestration of property, blocking of assets, etc.) because of the fact that formally they were still de jure nationals of those countries. The injustice of such treatment was finally recognized and many administrative measures (screening boards, special tribunals, creation of a special category of ‘non-enemy’ refugees, etc.) were used to mitigate the practice followed in the first years of the war.

The Diplomatic Conference held at Geneva in 1949 recently introduced into the Convention on the Protection of Civilian Persons in Time of War a clause expressly stating that the exceptional security measures (assigned residence and internment) shall not be applied to refugees solely on the basis of the fact that they belong to an enemy State. If this rule is to be applied in time of war, a similar rule must a fortiori be applied in time of peace. The object of Article 25 is to remove both the person and property and interests of refugees from the scope of exceptional measures.’

Article 20 of the French Draft read:

‘Any exceptional measures which a High Contracting Party may be called upon to take in exceptional cases against the person, property or interests of the nationals of a foreign State shall not be applied to refugees who are nationals of the said State solely on account of the fact that they belong legally to that State.’

At the first session of the ad hoc Committee the US representative, replying to a question by the Turkish representative, said that in his view the word ‘solely’ in the last clause of Article 25 indicated that, while exceptional measures could be taken against refugees, they could not be taken on the ground of nationality alone.

On the proposal of the Israeli representative it was agreed to delete the words ‘de jure’.

The UK representative said that, while he had no instructions from his Government on the matter, he felt sure it would be sympathetic to the provisions of Article 25. It might, nevertheless, have some difficulty in accepting them, because of overriding considerations of national security. He recalled the critical days of May and June 1940, when the UK had found itself in a most hazardous position; any of the refugees within its borders might have been fifth columnists, masquerading as refugees, and it could not afford to take chances with them. It was not impossible that such a situation might be reproduced in the future.

The US representative thought that the doubts of the UK representative might be resolved by the fact that the Government would be free to hold that any individual was not a bona fide refugee, in which case none of the provisions of the Convention would apply to him.

Article 25, as amended, was adopted.

The Committee made the following comment:

‘1. Unless a refugee has been deprived of the nationality of his country of origin he retains that nationality. Since his nationality is retained, exceptional measures applied during war or emergency, or for special reasons, to such nationals would be applied to him. The Article provides therefore that exceptional measures shall not be applied to a refugee where these would be applied on the grounds of his nationality.’

‘2. This Article is based upon the wording of Article 44 of the Geneva Convention relating to the Protection of Civilian Persons in Time of War of 12 August 1949.’

The UK made the following comment:

‘Article 5. His Majesty’s Government would be unable to accept this Article unless it were amended to preserve the right of a Contracting State to submit refugees of a particular nationality to detention or any other recognized measure of control in the same way as other aliens of that nationality, if it should be considered necessary for the security of the State to do so in time of national crisis.’

At the second session of the ad hoc Committee the UK representative said what was meant by ‘fifth columnists’ was wellknown. At a time of national crisis a large number of enemy aliens professing to be refugees – whether they were deprived of their nationality or not and whether they were true refugees or not – might be in a certain territory. He described the situation in 1940 when the UK deemed it necessary to intern most enemy aliens, whether claiming to be refugees or not. Later some had been released and others about whom doubt still existed had been kept in internment. It was not merely a question of internment; in times of war enemy aliens were forbidden to have cameras or wireless apparatus, to reside in certain districts etc., and the UK in time of emergency, might wish to impose such restrictions on all enemy aliens whether refugees or not. It was owing to a future peril that his Government considered it unsafe and contrary to the interests of the people of the UK if it were precluded from taking exceptional measures against refugees. It had no desire to submit anyone to greater inconvenience than the situation warranted and it was with the greatest regret that during the last war the UK had been compelled to take certain measures. His Government could not agree to the terms of Article 5 as at present drafted unless it had the possibility of taking well-recognized measures of control in a time of national crisis.

The UK subsequently proposed alternative amendments:

‘A. Additional Article to Draft Convention relating to the Status of Refugees.

‘A Contracting State may at the time of national crisis derogate from any particular provisions of this Convention to such extent only as is necessary in the interests of national security.’

The World Jewish Congress submitted a statement in which it was said that Alternative A of the UK went too far in that it allowed the derogation from any provision of the Convention and would thereby defeat its purpose by depriving refugees, at the discretion of any Contracting State, of protection at a time when such protection is most needed. In fact, if the purpose of the Convention shall not be defeated and, on the other hand, security should be the overriding factor, only Article 5 and Article 27 (Expulsion) could be derogated for reasons of security. As to Article 27, the present draft already permitted the expulsion of a refugee, lawfully admitted, on grounds of national security. A general Article as proposed in Alternative A would, in fact, only relate to Article 5.

The World Jewish Congress suggested the following wording:

‘With regard to exceptional measures which may be taken against the person, property or interests of a national of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State, solely on account of such nationality; provided, however, that in the case of a state of emergency officially proclaimed by the authorities in the case of public disaster, a Contracting State may apply provisionally any such measures to a refugee on account of his nationality, until it is determined within a reasonable time that the measure is no longer necessary in the interests of national security. The refugee concerned shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear himself and to be represented before the competent authority.’

It suggested a second paragraph reading:

‘If a Contracting State applies measures which may be taken against the person, property or interests of nationals of a foreign State, to refugees on the basis of the foregoing paragraph, they shall immediately inform the other Contracting States through the Secretary General of the United Nations of any such measures and of the date of the termination thereof.

The representative of the World Jewish Congress said his comments were not directed against the United Kingdom which had generously given shelter to large numbers of refugees. He submitted that the clause suggested by the UK went too far. Everyone could agree that Government in a time of crisis might be forced to intern refugees in order to investigate whether they were genuine or not and therefore a possible danger to the security of the country. He wondered whether it would not be sufficient to add a second paragraph to Article 5 to the effect that countries could, in a time of crisis, institute measures of control in order to investigate whether refugees were genuine or not. If the UK suggestion were to be adopted as it stood, other countries might withhold the protection afforded to refugees and leave them helpless at the very time they most needed protection. He appealed to the UK representative to restrict his proposal to provisional measures, namely investigation for reason of security.

The US representative sympathized with the problem raised by the UK representative. He agreed, therefore, that something might have to be done either in the farm of a reservation or a change of drafting to cover the list of situations to which the UK representative had referred. On the other hand, it would be unjust if a bona fide refugee were penalized and punished by measures applicable to enemy aliens generally, only because he was a national of a country from which he had escaped. In changing the present wording of Article 5, the primary aim of the Committee should be to adjust the needs of the refugees in that regard to the requirements of national security.

The UK representative had touched on a crucial point, namely, as to whether a refugee was bona fide or not. None of the provisions of the draft Convention, however, would apply unless the refugees were genuine.

Security was not the only issue. A country might have many provisions concerning aliens which were not based on security reasons alone, including confiscation measures, limitations on trade and so forth, and in such cases the bona fide refugee should not be penalized but be given the opportunity of showing his good faith. The main problem was to draft a text containing the reservation desired by the UK but which would safeguard the rights of bona fide refugees. The Chairman, speaking as representative of Denmark, felt that Article 5 was sufficient as it stood if more emphasis were placed on the words ‘solely on account of such nationality.’ During the last war an allied country had been compelled to intern all German refugees at the outset, not solely on account of nationality but because of the suspicion that that nationality might be dangerous to national security.

The Belgian representative agreed. It must not be forgotten that Article 5 referred to refugees already in the country and regarding whom enquiries had already been made. Hence there was already some guarantee for the State in which such refugees were living.

The US representative was concerned about the interpretation given by the Chairman, namely that in its present form, the Article meant that provisional measures could be taken against refugees in time of national crisis. According to the Chairman’s example, refugees would come within the scope of the exceptional measures taken against German nationals, who were considered ipso facto to be suspicious. In his view, that would be a violation of the Article to have a different interpretation from the liberal one it now had, and would prefer an explicit but narrow limitation. Some refugees would be stateless and others would technically retain their nationality and there was no reason for treating the latter any worse than those who were stateless. Exceptional measures should not be applied to a refugee merely because of his nationality even though at a particular time, owing to that nationality, he might have been open to suspicion.

He hoped that any reservation or modification of the present wording would be as narrow as possible and limited to cases referred to by the UK representative.

The Israeli representative reminded the meeting of other cases of exceptional measures, for example, economic conflict between two countries as a result of which certain retaliations were inflicted against the respective citizens of those countries. Such retaliation should not be allowed to happen as a consequence of the fact that a refugee retained his former nationality, though no longer accepting the protection afforded him by it.

What the Chairman had in mind was two kinds of restrictions: (1) general restrictions applying to enemy aliens, and (2) particular restrictions applying to German nationals. The result of the application of Article 5 would be that a refugee would fall under the general restrictions but would be excluded from the restrictions imposed upon German nationals, thus acquiring a privileged position.

The question of bona fide raised that of a new definition. There were two possible courses of action: the general one, that all action taken under Article 5 was considered as being taken in favour of the bona fide refugees and that there was no need to define such refugees under Article 5, or that of stating in Article 5 that States had a right to investigate whether a refugee was bona fide or not, since no convention could affect that right. In the drafting of Article 5, the question was of how to find some way of making it clear that what was in mind was the third type of refugee, namely the bona fide refugee who was not identical with the refugee defined in Article 1.

He wished to make it quite clear that the measures referred to in Article 5 were not designed only for times of emergency. A second paragraph should be added to cover the particular case of emergency in which the rights of the refugee could be restricted, but then only as little as was absolutely necessary.

The Chinese representative said his delegation was in favour of more liberal principles being applied to bona fide refugees but would welcome some provision enabling it to take exceptional measures based upon the nationality of refugees.

The US representative wished to make it quite clear that his interventions had been directed to exceptional circumstances. He believed that the security problem would hardly arise in the case of bona fide refugees. It was essential first to determine whether a refugee was bona fide and whether he actually retained his original nationality. The Belgian representative fully appreciated the right of the UK to take all necessary steps for its security. He wondered however whether it was really necessary to insert a specific provision regarding the right of Governments to intern all refugees originating from a given country. In 1940, the refugees had not been real refugees who had been screened previously, but individuals fleeing their countries, who did not enjoy the status of refugees. Article 5, on the other hand, concerned refugees who had the status of refugees, not candidates for that status. It would be extremely harsh to deprive such people of all the privileges and guarantees they had obtained as bona fide refugees. It would, in fact, amount to penalizing them for not having become stateless, as the UK suggestion would not cover stateless persons. He felt that it was essential that the Article was retained as it was, and that Governments who were in the same position as the UK should make reservations in respect of it.

The French representative felt that the difficulty of the Belgian representative might be partly overcome by making a distinction between two types of exceptional measures, measures taken in peace-time or during a crisis of a non-military type, such as economic or financial crises, and also retaliatory measures, and, on the other hand, measures taken in exceptional circumstances which affected peace or national security. The provision relating to the latter type of measures would naturally be more severe than the former. Article 5 might state what ‘exceptional circumstances’ were and that they would be the only ones under which the provisions of the Article could be suspended. The circumstances of war were unforeseeable, and in extremity Governments which had accepted the Convention unreservedly might be obliged to intern citizens of enemy countries. In spirit, Article 5 was an invitation to States, should exceptional circumstances arise, to keep bona fide refugees in internment camps only for as short a time as possible. The interests of the national community and of the refugees had, in fact, to be harmonized.

The US representative felt that the scope of any limitation on Article 5 ought to be defined more precisely than had been proposed. He would like the limitations to be as narrow as possible to make the Article acceptable.

The Chairman, speaking as representative of Denmark, agreed that provision should be made for former nationals of an enemy country and suggested that the penultimate phrase of the Article should read: ‘to a refugee who is or has been a member of the said State, solely on account of such present or former nationality.’ It was difficult to be certain whether a person was really a refugee since it did not always appear on his passport.

The UK delegation proposed the following alternative amendments:

‘A. Add Article

1. A Contracting State may at a time of national crisis derogate from any particular provision of this Convention to such extent only as is necessary in the interests of national security.’

2. The Contracting State shall immediately inform the other Contracting States through the Secretary General of the United Nations of any such derogation and of the date of the termination thereof.’

Or B. Add the following to Article 5:

‘Provided however that at a time of national crisis a Contracting State may apply provisionally any such measure to a refugee on account of his nationality until it is determined that the measure is no longer necessary in the interests of national security.’

In introducing his amendments the UK representative stated that it would be better to deal with the question of security specifically in the text rather than leave it to individual reservations on the part of Governments. His Government desired a general provision exonerating States from complying with the Committee’s provision in time of crisis. During the war British subjects and non-enemy aliens had been interned in cases where there had been grounds for suspecting their loyalty. Many, though not all, enemy aliens had also been interned in 1940 simply because they were enemy aliens; after internment they had been screened and within a year only a very small proportion had remained in detention. He was definitely of the opinion that it was necessary to apply exceptional measures to refugees of enemy nationality. It was impossible to give all persons entering the country as refugees a thorough security examination, which had to be deferred until exceptional circumstances made it necessary.

He wished to explain that the term ‘exceptional measures’ covered not only internment but such measures as restrictions on the possession of wireless apparatus, in order to prevent the reception of code messages and the conversion of receiving into transmitting apparatus.

His Government desired a provision along the lines of alternative A. It would be for the Committee to decide to what Articles the exemption provided for in it would apply: he suggested, for example, Article 21 regarding freedom of movement.

The Belgian, Canadian, Chinese, Turkish and Venezuelan representatives supported alternative A.

The Israeli representative felt that at the present stage it was not possible to discuss a general Article such as alternative A; he considered that it could only apply to Articles 5 and 2 1, and that it ought to be more specific.

The Venezuelan representative proposed that in paragraph 1 of alternative A the words: ‘and of public order’ be inserted after the words: ‘national security’. The reason for the adoption of those words in Article 27 (Expulsion) had been that exceptional measures would be necessary not only during an external emergency but during an internal one such as a revolution; it would be unjust for refugees to be protected from such measures while nationals of the country concerned were not.

The US representative felt that alternative A was drafted in somewhat wide terms and was in favour of alternative B, without prejudice to the addition of some other general provision later.

Article 5 was adopted in the following wording:

‘Without regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State, solely on account of such nationality.’

The Drafting Committee proposed the following text for a second paragraph:

‘Nothing in this Article shall prevent a Contracting State, in time of war or national emergency, from taking provisionally measures essential to the national security in the case of any person, pending the determination that such a person is in fact a refugee and that such measures are still necessary in his case in the interest of national security.’

The French representative proposed that the words: ‘measures essential to’ should be replaced by the words: ‘any measure essential to’; in consequence the words: ‘such measures are’ would be replaced by the words: ‘such measure is’. He explained that it was quite possible that new and serious facts might be brought to the knowledge of the authorities, in which case the wording he proposed could not exclude the possibility of internment, for example. ‘Any measure’ meant both any particular measure and any measure whatsoever.

The French representative’s proposal was adopted.

The Venezuelan representative withdrew the reservation he had made to submit an amendment relating to public order.

The second paragraph of Article 5 was adopted as amended.

The Committee made the following comment:

‘In Article 5 the Committee thought it advisable to add a paragraph in order to clarify the application of this Article in regard to measures related to national security in time of war and national emergency.’

At the Conference of Plenipotentiaries, Australia proposed an amendment to paragraph 2 of Article 5 reading:

‘Nothing in this Article should prevent a Contracting State in time of war or national emergency or in the interest of national security, from taking provisionally essential measures in the case of any person, pending a determination that the particular person is in fact a refugee and that such measures are still necessary in his case in the interest of national security.’

The UK proposed to delete paragraph 2 and to add a new Article in the following terms:

‘Nothing in this Convention shall prevent a Contracting State, in time of war or national emergency, from taking provisionally measures which it considers to be essential in the interests of national security in the case of any person, pending a determination by the Contracting State that the particular person is in fact a refugee and that such measures are still necessary in the interests of national security.’

The Australian representative said that his amendment simply proposed that the words: ‘are in the interest of national security’ be inserted in paragraph 2, its purpose being to allow a latitude to Contracting States to take the exceptional measures provided for in Article 5 during periods immediately preceding a time of war or national emergency when they might prove necessary. He proposed to withdraw his amendment in favour of the UK amendment and to submit a proposal to that amendment consisting in the insertion of the words ‘or in the interests of national security’ after the word ’emergency’.

The UK representative recalled the earlier discussion on Article 3 when consideration had been given to the question of whether Article 5 was consistent with it. Article 3 enunciated a general position, and Article 5 had been regarded as an exception thereto. Another exception was Article 21. It was not therefore enough to provide in paragraph 2 an exception to paragraph 1 of the same Article; the exception should also be to the other Articles of the Convention.

On the proposal of the Swiss representative the words ‘any person’ were replaced by the words ‘a particular person’.

The UK representative felt that there might be reasonable grounds for objecting to the Australian proposal since it would enable a State to take exceptional measures at any time, and not only in time of war or national emergency. He was supported by the representatives of Canada, Israel, the Netherlands and Switzerland.

The French representative pointed out that, although the expression ‘national emergency’ seemed unduly restrictive, the words ‘in the interests of national security’ seemed equally to give an unduly wide scope to the text. Between the two ideas there was an intermediate area which neither phrase delimited exactly: there could be cold war, approximating to a state of war, tension, a state of emergency or an international crisis calling for certain internal precautions. A working group might be asked to devise a formula.

The Swiss representative recalled that the problem had arisen at the Diplomatic Conference for the revision of the Red Cross Conventions in Geneva in 1949, when it had been discussed at great length. The Conference had not adopted a provision analogous to the one before the meeting. To meet the objections expressed by certain delegations, he proposed that the words: ‘in time of national emergency’ be replaced by the words: ‘in case of grave emergency’.

The French representative suggested the wording: ‘in time of war or in time of grave national or international tension’.

The President recalled that the question had been raised as to the action to be taken in respect of refugees on the declaration of a state of war between two countries, when it would be impossible for a State to make an immediate distinction between enemy nationals in the country, supporting the enemy Government, and those persons who had fled form the territory of that enemy country. The ad hoc Committee had come to the conclusion that, while a Government should not be in a position to treat persons in the latter category as enemies, it would need time to screen them. He was therefore afraid that the discussion was drifting away from the original intention of Article 5.

The Israeli representative believed that as the phrase ‘national emergency’ in English had a definite legal connotation, and the phrase ‘crise grave nationale’ had no such juridical meaning, it would be necessary to define the French phrase.

The Australian representative said he would agree that the words ‘national emergency’ be replaced by the words ‘time of grave tension, national or international’.

That wording was rejected by 7 votes to 3, with 9 abstentions.

The Netherlands representative proposed that the words should read ‘other grave and exceptional circumstances’.

That phrase was adopted by 16 votes to none, with 4 abstentions.

The UK amendment, with the aforementioned change, was adopted by 16 votes to none, with 4 abstentions.

It was agreed that this text be inserted before Article 6, and provisionally numbered Article 5(A).

Sweden subsequently proposed the following amendment to Article 5:

‘With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State, solely on account of such nationality, or shall provide for appropriate exemptions in respect of such refugees.’

The UK proposed the following new paragraph:

‘Nothing in this Article shall prevent a Contracting State from exercising any rights over property or interests which it may acquire or has acquired as an Allied or Associated Power under a treaty or other agreement for the restoration of peace which has been or may be concluded as a result of the Second World War. Furthermore, the provisions of this Article shall not affect the treatment to be accorded to any property or interests which at the date of this Convention are under the control of such Contracting State by reason of a state of war which exists or existed between it and another State.’

The Swedish representative recalled that the Conference had already adopted Article 5(A). If Article 5 was compared with Article 5(A) it seemed that in the last resort Contracting States would have to decide whether or not such exceptional measures were still required in the interest of national security. The Swedish delegation felt that the matter should be mentioned at the beginning of Article 5. However, the Swedish delegation felt some doubt whether that way of settling the problem would be the best. One could easily imagine cases in which it would appear fully justified to maintain the confiscation of property of a refugee even if that property, in his hands, did not constitute a menace to national security. A person might, for example, have fled from Nazi Germany at a very late state of the Second World War after having been a militant Nazi up until then. It would have to be left to the administration of the State concerned to decide whether refugees from the country in question should be exempt from such measures. Under Swedish legislation, for example, the decision on such matters would rest with the Government. The further idea advanced by Sweden was designed to meet the case of legislative systems similar to that of Sweden; it provided that the States concerned would be empowered to determine whether a refugee was subject to such measures or whether he could be exempt from them. It might be argued that the word ‘appropriate’ was rather vague, but the existing text of Article 5 was equally vague.

The UK representative agreed that the new Article 5(A) would not solve the problem raised by Sweden since the measures to which it referred must be determined solely by considerations of national security. The Peace Treaties required the Allied Powers to place a charge on the property of the nationals of the ex-enemy States though they also made provision whereby a refugee from one of those countries who had been a refugee in time of war, could secure the return of property that had been sequestrated by the country of asylum. The effect of Article 5 would be to oblige the UK, for example, to return such property also in the case of persons who had become refugees as a result of events before 1 January 1951, and who had property in the UK which had been sequestrated. Such persons might have been sympathizers with the wartime enemy regime, and might have been compelled to flee their country because of a change of regime that had supervened since the war.

The matter was one which concerned a number of States, and for that reason the UK delegation had made the point in the form of an amendment, although it recognized that it could also be dealt with by way of a reservation. The purpose of the second sentence was similar, namely, to give States more latitude in respect of property belonging to German and Japanese nationals.

The Israeli representative observed that the UK amendment was of a highly technical nature. He believed that the purpose would be better served by reservations.

In reply to a point raised by the High Commissioner the Swedish representative confirmed that States would be entirely free either to exempt refugees from certain measures taken against aliens of the same country, or to exempt them entirely from such measures.

The Swedish representative pointed out that paragraph 1 of Article 5 dealt with exceptional measures taken against the person, property or interests of nationals of a foreign State, whereas Article 5(A) spoke of measures against a particular person. He believed that it was somewhat illogical to restrict the provisions of Article 5(A) to measures which might have to be taken in the interests of national security. He was faced with two problems in connexion with paragraph 1 of Article 5, the first being in connexion with the retroactive effect of that Article. He agreed that it could be dealt with by appropriate reservations. His second preoccupation was that paragraph 1, as at present drafted, prevented Governments from taking even provisional measures against refugees solely on account of nationality. Such a clause might well conflict with the existing domestic legislation of certain States. It was with that consideration in mind that he had introduced his amendment.

The Norwegian representative said that, according to Norwegian law, all ex-enemy property had been sequestrated; however, the law was not strictly applied. For example, such property had been restored to German nationals after the Second World War in cases where the owners had not actively worked against Norwegian interests. He supported the Swedish amendment. The Norwegian Government would then only have to make a reservation concerning the retroactive effect of paragraph 1. The Danish representative said the Swedish amendment was acceptable to his delegation.

The Netherlands representative said that the Netherlands Government would have to make a reservation on Article 9 (Artistic and Industrial Property) to the effect that the provisions of that Article could not affect legislation concerning enemy property. His Government would have to make a similar reservation to Article 5.

The UK representative reminded representatives that it had been decided to make a separate Article of the former paragraph 2 of Article 5 because there might otherwise be a conflict between other Articles such as Article 3 (Non- Discrimination), and 21 (Freedom of Movement), and Article 5. The saving clause in the original paragraph 2 applied only to Article 5, and not to those other Articles, moreover, it was not clear that action which might have to be taken in an emergency would always come within the wording of paragraph 1 of Article 5. It had therefore been decided to have a blanket provision whereby, in strictly defined circumstances of emergency, derogation from the provisions of the Convention would be permitted in the interests of national security. Thus Article 5 was now only one of the Articles covered by the provisions of Article 5(A). He therefore could not agree to the Swedish representative’s suggestion that Article 5(A) was too limited. He would be most reluctant to extend the scope of that Article to cases other than those connected with national security. The kind of action which he envisaged States could take under Article 5(A) would be, for example, the wholesale internment of refugees in time of war, followed by a screening process, after which many could be released; that had occurred in the UK at the outbreak of the Second World War.

The Swedish amendment would dangerously weaken paragraph 1 of Article 5. He recognized that in some respects the provisions of that paragraph could not be fully applied, particularly in the case of enemy property, but, so far as the UK was concerned, that difficulty could be met by allowing for reservations.

The Swedish representative said the UK representative’s remarks had already demonstrated that there was no very close connection between paragraph 1 of Article 5 and Article 5(A). Nevertheless, in connection with paragraph 1 of Article 5, he must point out that certain measures which had nothing to do with the interests of national security, involving the property of refugees, might have to be taken. Paragraph 1, as at present drafted, did not enable States to take even provisional measures either against persons or their property. He had therefore to press his amendment.

The French representative said that the Conference was faced with a text, the formulation of reservations to which would lead to an avalanche. Governments would not agree to sign the Convention without entering reservations to Article 5, as thus amended, since the friends of today might well be the enemies of tomorrow. A text was needed which would not call for reservations at all.

The Swedish representative quoted a hypothetical example in support of his argument. Two German nationals might possess property in Sweden. No difficulties would arise in the case of the first, who had taken up residence in Sweden as a refugee prior to the outbreak of hostilities. The second, on the other hand, might have reached Sweden after the end of the war and claimed the status of refugee. Should his property be restored to him if he could satisfactorily prove that he had never been a member of the Nazi party and had, in fact, worked against it? That question would clearly have to be determined by the Swedish Government. Either legislation could be passed exempting certain categories of aliens from the application of the Enemy Property Act, or some arrangement could be made to enable such persons to claim the return of their property provided they could substantiate their right to restoration. Those two possibilities must be allowed for, or administrative difficulties would arise.

The Belgian representative feared that the adoption of the Swedish amendment would result in a regime of arbitrary decisions, since countries of residence would be at liberty either not to apply to refugees the exceptional measures, or to grant certain exemptions in the case of such refugees. Refugees would therefore have no absolute right to exemption from the application of those measures.

The UK representative agreed that the example quoted by the Swedish representative was entirely relevant, but pointed out that such cases could be covered by reservations. They related to action arising out of the war, but not actually taken during a time of war or emergency, and were therefore in no sense governed by considerations of national security. He was at present unable to conceive of any cases – apart from those connected with enemy property – which would arise in connexion with paragraph 1 in time of peace.

The Swedish representative reaffirmed his view that it was impossible to legislate for future possible contingencies and that it was, therefore, important that paragraph 1 of Article 5 should be made as flexible as possible.

The Belgian representative observed that the Swedish amendment was intended to provide for possible future events. The paragraph in question, however, related to events before 1 January 1951. The French representative agreed but said that there was also the question of the interpretation of the term ‘events’. Did not the words imply all the consequences of such events, consequences which could not be foreseen?

The French text of the Swedish amendment was adopted by 9 votes to 3, with 13 abstentions.

Paragraph 1 of Article 5, as amended, was adopted by 23 votes to none, with 2 abstentions.

The Style Committee proposed the following wording:

‘Nothing in this Convention shall prevent a Contracting State, in time of war or other grave and exceptional circumstances, from taking provisionally measures which it considers essential to the national security in the case of a particular person, pending a determination by the Contracting State that that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interest of national security.’

‘With regard to exceptional measures which may be taken against the person, property or interests of nationals of a foreign State, the Contracting States shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality, or shall, in appropriate cases, grant exemptions in favour of such refugees.”

The UK proposed the insertion of the words: ‘if they do so’ between ‘or’ and ‘shall’ in the second paragraph. The Canadian representative said that the text was guilty of the unhappy fault of, so to speak, taking away with one hand what it gave with the other. He could not but advocate, even at the present late stage, that the final clause be dropped. If a State had legislative difficulties, it could enter appropriate reservations to that Article. He was supported by the Belgian representative.

The UK representative agreed with the Canadian representative on the point of substance, and emphasized that his own amendment was purely grammatical in intent. It would certainly be preferable to retain the text in its original form and allow for the possibility of reservations, rather than to make the final clause alone operative. That, in point of fact, would be the undesirable effect of the text as at present drafted.

The Swedish representative proposed the use of the formula ‘either/or’ in the second paragraph He was supported by the Austrian representative.

The US representative agreed that the insertion of the words proposed by the UK representative was necessary, but felt that the text, whether thus amended or not, gave rise to doubts as to the meaning of the word ‘shall’ in almost any Article of the Convention. Should the term be interpreted as being mandatory or permissive? He fully agreed with the Canadian representative’s observations on the general issues raised by the Article.

The French representative submitted that the last clause of Article 8 was very far from suggesting measures of an illiberal nature. It laid upon States the obligation to grant certain exemptions at times when they were unable to observe the general principle enunciated in that Article. He would interpret the words ‘ou accorderont’ as an obligation to grant exemptions. He would recall that nationality was a live issue in the first or second country of residence, but ceased to be one once a refugee had gone to an overseas country of resettlement.

The Norwegian representative supported the arguments of the French and Swedish representatives. He thought that the difficulty could be circumvented by making the alternative perfectly clear and using the ‘either/or’ formula. The US representative suggested that the text might be amended to read:

‘(The Contracting States shall not) as a general rule apply such measures… (on account of such nationality) and, if they do apply such measures, shall, in appropriate cases…’

The Swedish representative was unable to agree to such an amendment.

The French representative felt that the discussion was somewhat superfluous, since in point of fact there existed no true alternative in the Article, the second provision being subordinate to the first, in which the principle was enunciated. He could not but reiterate that, in his view, the French text meant that if States could not apply the principle they must grant exemption (‘accorderont’).

The Venezuelan representative suggested that the text might be amended to read, after the words ‘such nationality’, ‘or, if they apply them, will undertake’.

The President suggested the following emendation of the second clause of the Article:

‘(The Contracting States shall) in the administration of such measures avoid applying them to a refugee who is formally a national of the said State’.

The Swedish representative was unable to accept the President’s suggestion.

The UK representative said that, in so far as form was concerned, the insertion of the word ‘either’ after ‘Contracting States’ would alleviate the difficulty.

The representative of the Friends’ World Committee for Consultation said that he was authorized by a number of nongovernmental organizations attending the Conference to state that the retention of the final clause in Article 8 would, in their view, be a retrograde step. The alternative which now had been added seemed, in their view, to vitiate a principle which had been laid down and accepted. The non-governmental organizations accordingly hoped that Article 8 would not be weakened by the inclusion of the final clause.

The Canadian representative suggested that the text be amended as follows: a full stop should be inserted after the words ‘such nationality’, and the final clause be amended to read: ‘Contracting States which under their legislative system are prevented from applying the general principle expressed in this Article shall, in appropriate cases, grant exemptions in favour of such refugees.’

The Swedish representative believed that the Canadian amendment might be acceptable, but asked for more time to consider it in both languages.

The French representative was prepared to accept the Canadian amendment. He protested against the erroneous interpretation placed by certain non-governmental organizations on the French, and also on the Swedish position with regard to the final clause in dispute. Contrary to what might appear from a superficial interpretation, that clause was a liberal provision. Obviously, no Government would be willing to amend its legislation in a field in which national security might conceivably be at stake. The final clause had the advantage of obliging Governments which were unable to apply the general principle at least to be prepared to grant exceptions and exemptions.

The President stated that Article 9 (formerly Article 5(A)) had originally been entitled ‘Provisional Measures’. Article 9 was adopted by 29 votes to none.

The Swedish representative, in reply to a point made by the French representative, proposed that the words ‘legislative systems’ in the Canadian amendment should correctly read ‘legislations’. It was so agreed.

With this amendment Article 8 as a whole and as amended, was adopted by 19 votes to none.

Commentary

The first sentence of Article 8 follows Article 44 of the Geneva Convention on the Protection of Civilian Persons in Time of War. It does not exclude measures taken not solely on account of nationality, for example, measures based on suspicion in particular cases. Wholesale measures against enemy nationals are meant. The second sentence was added on a Swedish proposal against strong opposition. It was felt better to insert the sentence than to envisage numerous reservations on the principle. The Swedish intention was to permit States whose legislation leaves it to the Government to decide what measures to apply and to define the person to whom it applies, to do so. The measures envisaged are internment, restriction of movement, prohibition of the possession of wireless apparatus or cameras, sequestration of property, etc. The words ‘who is formally a national of the said State’ would seem to imply that no such measures may be applied to refugees who possessed enemy nationality but lost it, for example, by deprivation, although in the discussion reference was made to such cases. It may be pointed out that certain Allied countries did not recognize the German legislation, enacted during the Second World War, by which Jews abroad were deprived of German nationality. It is certain that the text excludes measures taken solely on account of such former nationality. As to the second sentence it is clear that it imposes a mandatory obligation to grant exemptions in favour of refugees ‘in appropriate cases’. Article 8 relates to measures taken in the future and to the continuation of measures initiated prior to the entry into force of Convention, for example, sequestration of property.

In the case of parties to both the Red Cross Convention of 1949 and the 1951 Convention, it can be argued that they remain bound by the former Convention which does not contain the exception contained in the second sentence of Article 9, as the lex specialis, where measures envisaged by the 1949 Convention, internment and assigned residence, are concerned.

Article 9 is designed to allow for the imposition of measures in the interests of national security pending the screening of the persons concerned whether they are in fact bona fide refugees and whether the continuance of the measures is still necessary in their case. As to the latter, persons who had become refugees after the Second World War but had collaborated with the enemy States during the war were mentioned. In their case, their property would not necessarily have to be restored to them. The words ‘other grave and exceptional circumstances’ constitute a compromise between those who wanted to limit the Article to situations of war and national emergency as agreed upon by the ad hoc Committee and those who wanted the provisional measures to be applicable whenever necessary in the interests of national security. They would thus appear to include a state of emergency or grave international crises short of war. They do not include economic measures, retaliation or retortion not taken in ‘grave and exceptional circumstances’, in the absence of an international crisis. The words ‘in his case’ indicate that such measures may not be taken against all or certain categories of refugees but may only be taken on the merits of the individual case.

ARTICLE 10. CONTINUITY OF RESIDENCE

1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.

2. Where a refugee has been forcibly displaced during the Second World War from the territory of a contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose of taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required.

Travaux Préparatoires

The Secretariat Draft contained the following Article 29:

‘Persons deported from their country or origin or regular residence by the Nazi authorities during the Second World War and present in the territory of one of the Contracting Parties shall be deemed to satisfy the requirement of regular residence for the purpose of the present Convention in respect of the time during which they resided in the country to which they were deported.’

In the comment it was stated:

‘A number of provisions in the preliminary draft make the enjoyment of certain rights subject to the condition of regular residence. In order to eliminate any doubts regarding the case of displaced persons, that is to say persons introduced by force into another country, it should be expressly laid down that the time spent in the country to which they were deported is reckoned as regular residence.’

In the ad hoc Committee the representative of the IRO did not think that the adjective ‘regular’ which qualified the word ‘residence’ in the text of the Article limited its application to refugees authorized to reside in the territory. The Article equally applied to bona fide refugees who had lived in a country for a sufficiently long time. That should be made clear as Germany and Austria, for example, could refuse to recognize as a period of regular residence the time spent by deported persons who according to law, had not been admitted for regular residence in those countries.

The Belgian representative observed that there were two quite distinct questions. The first concerned the situation of a deported person vis-à-vis the authorities in the territory to which he had been deported. The second was related to the situation of the deported person vis-à-vis the authorities of territories other than that to which he had been deported. He thought that the requirement of ‘regular residence’ meant an ordinary requirement of permanent residence, such as that laid down in Article 13 for the exemption of refugee wage-earners from certain restrictions on their freedom to work. The point at issue was therefore continuous residence, not legal residence.

The US representative said the first problem hardly seemed to raise difficulties. With regard to the principle underlying the second problem, he feared there might be strong opposition.

The French representative believed that the French authorities in most cases were willing to consider the time spent in France by a deported person when calculating the period of residence. He could not, however, state categorically that his Government was prepared to give a general undertaking in this connection. The fact that no such clause was included in the French draft indicated that the author had not considered that it would be particularly valuable.

The Danish representative observed that the only Article of the Convention which included a condition of residence was that referred to by the Belgian representative. As more than three years had passed since the Germans had left, all deported persons had been able to complete their period of residence in the country of reception itself. Consequently it would not apparently be necessary to apply Article 29, which therefore became superfluous.

The Belgian representative pointed out that there were other conditions of residence which were not included in the Convention but which followed either from various international instruments or general regulations applicable to foreigners. In Belgium, for example, a foreigner could engage in a liberal profession only after the completion of ten years’residence. Article 29 was therefore not entirely redundant.

In practice, the Belgian Government had no objection to adding the years spent in Belgium during the occupation to the period of regular residence, on condition that the person concerned had been authorized to reside regularly in Belgium after the end of the war.

In reply to a question he said that Article 29 would apply to naturalization.

He was unable to agree to the second principle. If a deportee were to return to the country in which he had previously resided, his period of residence in that country might be considered to have been uninterrupted by the fact of his deportation. That was the only privilege which could be granted to a deportee in that respect. Hence, in determining the period of residence required for naturalization which, in principle, should have been uninterrupted, the time he had spent in the country prior to deportation would be added to the period subsequent to his return.

The representative of the IRO proposed the following text:

‘If persons who were deported from their country of origin or regular residence by the Nazi authorities during the Second World War are living in the territory, of the High Contracting Parties, their residence in the territory of the High Contracting Party to which they were deported shall be considered as regular residence for the purpose of this Convention.’

The US representative agreed but pointed out that the recognition of the length of time spent as a deportee as part of the uninterrupted period of residence might also be considered.

The Working Party proposed the following wording:

‘1. When a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is residing there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.’

‘2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has subsequently returned there, the period before and after such displacement shall be regarded as one uninterrupted period for any purposes for which uninterrupted residence is required.

This text was adopted by the Committee.

The Austrian Government made the following comment:

‘In accordance with the Austrian nationality law the length of residence as required for the purpose of naturalization is counted from the day of the liberation of Austria, as a rule which applies also to persons who have been forcibly removed from another country and brought to Austria. This finds its well-founded explanation in Austria’s special situation since the Federal Government was not able to exercise its power in Austrian territory before that date.

At the second session of the ad hoc Committee the Drafting Committee proposed the same wording as adopted at the Committee’s first session.

At the Conference of Plenipotentiaries, Yugoslavia proposed an amendment reading:

‘Article 6 paragraph 2. After the words ‘and has subsequently returned there’ insert:

‘…until the date of entry into force of this Convention.’

The Belgian representative suggested that the Yugoslav amendment would be more clearly expressed if the words ‘prior to’ were substituted for the word ‘until’. The Yugoslav representative accepted that change.

The Yugoslav amendment was unanimously adopted, as amended.

Article 6 was unanimously adopted as amended.

The Observer of the Inter-Parliamentary Union urged that if an attempt was to be made to place refugees in different categories, such classification should be based essentially on human and psychological principles. There were some refugees who neither hoped nor desired ever to return to their own countries, and others who regarded their exile as merely temporary. The former aspired above all to shed their refugee status and become naturalized, thus being part of the nation which had received them. Many of them were stateless persons, whose main hope, so far as the Conference was concerned, was that it would adopt provisions facilitating naturalization. The provisions of Article 6 merely remedied an occasional situation caused by the Second World War without providing any solution in respect of the first category of refugees to which he had referred. Accordingly, the Inter-Parliamentary Union trusted that the Conference would consider reducing the period required for naturalization.

The Style Committee proposed the following wording:

‘1. Where a refugee has been forcibly displaced during the Second World War and removed to the territory of a Contracting State, and is resident there, the period of such enforced sojourn shall be considered to have been lawful residence within that territory.’

‘2. Where a refugee has been forcibly displaced during the Second World War from the territory of a Contracting State and has, prior to the date of entry into force of this Convention, returned there for the purpose of taking up residence, the period of residence before and after such enforced displacement shall be regarded as one uninterrupted period for any purpose for which uninterrupted residence is required.’

This text was adopted by 21 votes to none.

Commentary

The provisions of this Article were of some topicality at the time when the Convention was drafted but are hardly topical any more. It will be noted that the Article applies not only to the provisions of the Convention but to all provisions of national law where lawful or uninterrupted residence is required.

Certain rights provided for in the Convention are dependent on a certain length of sojourn, in particular Article 7 paragraph 2, Article 17 paragraph 2, and in conjunction with Article 6, may be dependent on a certain length of sojourn. (Articles 13, 15, 17 paragraph. 1, 18, 21, 22; paragraph 2, 26). The Article is particularly relevant for the purpose of naturalization (Article 34) since, according to most nationality laws, a period of lawful and, in some instances, uninterrupted residence is required for that purpose.

The second paragraph applies only to refugees who have returned ‘prior to the date of entry into force of this Convention’without the additional words ‘for that State’ as in Article 7 paragraph 3, and it can, therefore, be assumed that the date of entry into force of the Convention, that is, 22 April 1954, is meant.

ARTICLE 11. REFUGEE SEAMEN

In the case of refugees regularly serving as crew members on board a ship flying the flag of a Contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them or their temporary admission to its territory particularly with a view to facilitating their establishment in another country.

Travaux Préparatoires

At the Conference of Plenipotentiaries the Observer of the International Labour Organization (ILO) said that he wished to refer, in connection with Article 23 (Travel Documents), to the position of seamen whose labour conditions had been the concern of the ILO for the last thirty years. Refugees who were continuing in that calling, or who had adopted it after leaving their country of origin, might not be very numerous; in fact, the ILO did not possess any accurate statistics on the matter. However, even if only a few might be involved, that should not prevent them from being accorded equitable treatment; yet it was known that refugees did not always enjoy the same working conditions as other members of a ship’s crew who benefited by the proper protection of their Government.

The question had been brought to the attention of the ILO by the IRO at the end of 1950, and had been placed on the agenda of the Joint Maritime Commission of the ILO. That Commission had decided that the question deserved consideration, and had adopted a resolution for transmission to the Governing Body of the ILO, which had approved it at a recent meeting. Under that resolution the Director General of the ILO had been instructed to bring the matter to the notice of the High Commissioner and of Governments, urging them to take measures to alleviate the situation of such refugee seamen. It was also suggested that the time spent by a seaman serving on a ship belonging to a given country should count towards the period of residence necessary to secure the right to travel documents. He realized that it might be difficult for many Governments represented at the Conference to enter into a specific commitment of that kind; if so, perhaps the suggestion might be incorporated in a separate recommendation. He would, however, tentatively put forward for consideration the following text:

‘For the purpose of paragraph 1 of this Article, Contracting States shall give sympathetic consideration, in the case of a refugee who is a bona fide seafarer, to the possibility of allowing such a refugee to reckon any period spent as a crew member on board a ship flying the flag of a Contracting State as residence in the territory of that State.’

There was no need to emphasize that that provision was, of course, intended to benefit only genuine seamen and not refugees who were escaping by sea from their countries.

The ILO subsequently submitted this suggestion in a written Note.

The Observer of the ILO said that the suggestion had been submitted in pursuance of a decision of the Governing Body of the ILO, and its aim was to draw the attention of the Conference to the problem with a view to the Conference possibly including the suggested text in Article 23 or, alternatively, adopting, on the conclusion of its work, a recommendation of this nature.

The President said, in his view, the suggestion raised was wider than that dealt with in Article 23, and should perhaps form the subject of a special general Article. Speaking as representative of Denmark, he added that the Danish Government already applied such a provision.

The French representative thought that the question raised by the representative of the ILO was much too general to fit happily into Article 23. In his opinion, the text supported by the Organization should be inserted in Article 6, which dealt with continuity of residence, or drafted as a new Article, to be inserted immediately after Article 6.

The French delegation subsequently proposed an Article reading:

‘For the purpose of this Convention, the Contracting States shall give sympathetic consideration, in the case of a refugee who is a bona fide seafarer, to the possibility of allowing such a refugee to reckon any period spent as a crew member on board a ship flying the flag of a Contracting State as residence in the territory of that State.’

The French representative, in introducing his text, said that refugees serving in ships flying the flag of a Contracting State enjoyed no permission to stay anywhere except on board the ship they were in. The number of such refugees was undoubtedly fairly small, but their position was nevertheless of special interest. It was, indeed, precarious, since they could not even go ashore in ports of call and they were, in fact, permanently afloat. The question could hardly be settled by a contractual undertaking, for the countries concerned were willing to grant such refugees the status of seafarers, but were unwilling to grant them the status of refugees in their territories. For that reason, and in the absence of contractual obligations, it would be desirable to introduce into the Convention a recommendation in favour of refugees who were bona fide seafarers. It would be logical to insert such a recommendation after Article 6, which dealt with continuity of residence, for the problem raised by refugee seamen was somewhat similar.

The Norwegian representative said that Norway had been one of the first seafaring nations to accept refugee seafarers from IRO camps in Germany and Italy, and to allow them to join Norwegian crews. They had been issued with travel documents in accordance with the London Agreement of 15 October 1946, and their families had been granted entry permits to Norway.

He did not think the problem was as small as had been suggested. It often happened that such refugees were obliged to land in Scandinavian ports; they were then unable to proceed further, because of their refugee status, until another suitable help arrived.

Many Norwegian merchant ships went to sea for long periods, and called at Norwegian ports only infrequently. It was therefore difficult to establish whether the refugee seafarers were technically refugees, as they themselves claimed, because there was no method of verifying their statements; neither the ILO nor IRO could apparently decide whether they were bona fide refugees. He therefore wondered whether it would be advisable for one country alone to confer benefits upon such alleged refugees unless the same benefits were also granted by other seafaring nations, because seamen tended to sign on in ships which gave them the best social security status.

The Norwegian Government was giving the matter every consideration, and would adopt generous measures in respect of refugee seamen who had worked with the merchant navy for a long time, and who were domiciled in Norway; it nevertheless reserved its right to decide each individual case after appropriate investigation.

There were, moreover, numbers of bona fide refugee seamen in Norwegian ships who had become stateless because of prolonged absence from their countries of origin. That class would also have to be taken into account.

Although the subject was not yet ripe for decision, he would not vote against the French proposal, but would urge that the matter be carefully studied by the International Labour Office in close collaboration with the Office of the High Commissioner.

He considered that the French delegation’s text was somewhat wide in scope, in particular in respect of the words ‘to reckon any period spent as a crew member on board a ship flying the flag of a Contracting State as residence in the territory of that State’, the effect of which would be to bestow upon such seafarers all the benefits that the Convention accorded to refugees.

When refugees were employed in a Norwegian merchant ship, sole authority for selecting or refusing them lay with the master of the vessel; the Norwegian authorities had no powers in the matter.

The UK representative agreed with the Norwegian representative’s exposition of some of the difficulties arising from the problem.

The resolution of the Joint Maritime Commission of the ILO suggested that Governments should facilitate the acquisition of a country of residence and of a travel document by bona fide seafarers who were refugees, ‘more especially by enabling them to reckon any period spent on board ships as residence in the territory of the country whose flag the ship flies.’ He subscribed to the first part of the resolution, but felt that the phrase he had quoted raised considerable difficulties, because many such seafarers, though they might be bona fide refugees, might transfer to ships of other flags, thus interrupting the period which would qualify for residence.

The UK had ships plying throughout the world, and a ship working the China Coasts, for example, might pick up refugees who never set foot on British soil. To reckon their service as qualifying period of residence would therefore be unjustifiable. It would be advisable to word the recommendation in terms more appropriate to the actual situation and more acceptable to States.

States should be as liberal as possible in facilitating the settlement of bona fide refugee seamen in their territories. Such seamen would be given shore leave, and might want to marry and to settle down, and States should give them every chance to establish a home on their soil. In such circumstances, the seamen should be looked upon as residents and supplied with travel documents.

Since, in dealing with the question, the Conference could go no further than make a recommendation, it would be better not to include the French proposal in the Convention itself, but rather to append it as a recommendation.

The Observer of the International Conference of Trade Unions pointed out that a record was kept of the working time spent aboard ship by seamen. Seafaring nations might therefore be recommended to reckon such periods as contributing towards the refugees’ qualifying period of residence on their territories.

The French proposal relating to a new paragraph 6(A) was adopted by 22 votes to none, with 2 abstentions, subject to textual emendation by the Style Committee.

The Style Committee proposed the following text:

‘In the case of refugees who are regularly serving as crew members on board a ship flying the flag of a Contracting State, that State shall give sympathetic consideration to their establishment on its territory and the issue of travel documents to them or their temporary admission to its territory, particularly with a view to facilitating their establishment in another country.’

On the proposal of the representative of the UK Article 11 was entitled ‘Refugee Seamen’.

Article 11 was adopted by 21 votes to none.

Commentary

Although merchant ships and private vessels are, in a way, considered parts of the flag State, service on such vessels is not necessarily considered as residence in the territory of that State. The terms ‘sympathetic consideration’ has the same meaning as the term ‘favourable consideration’ in Article 7 paragraph 4 of the Convention. While only a recommendation, it nevertheless imposes by the word ‘shall’ an obligation on the Contracting States to consider the situation of such refugee seamen favourably and not to deny them the benefits mentioned without good reason.

Subsequent to the Conference of Plenipotentiaries the Netherlands Government convened a Conference on Refugee Seamen. As a result of the two sessions an Agreement on Refugee Seamen was concluded at the Hague on 23 November 1957.170 It stipulated, that is, a period of service of 600 days within 3 years as qualifying period for the issuance of a Convention travel document by the flag State. Following the abolition of the dateline of 1 January 1951 in Article 1 of the Convention by the Protocol relating to the Status of Refugees of 31 January 1967,171 a Protocol on Refugee Seamen was opened for signature on 12 June 1973172 which extends the benefits of the Agreement to persons who became refugees as a result of events subsequent to 1 January 1951.

ARTICLE 12. PERSONAL STATUS

1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.

2. Rights previously acquired by a refugee and dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by the law of that State, provided that the right in question is one which would have been recognized by the law of that State had he not become a refugee.

Travaux Préparatoires

Article 4 of the Secretariat Draft read:

‘1. The personal status of refugees shall be governed by the law of their country of domicile, or, failing such, by the law of their country of residence.’ (Same text as Article 14, first paragraph of 1933 Convention)

‘2. Family law, in particular the celebration and dissolution of marriages of refugees and the law respecting successions, whether ab intestato or under a will, shall be governed by the rules concerning substance, form and competence of the law of the country of domicile, or failing such, by the law of the country of residence.’ (See Article 5, 1933 Convention)

‘3. Rights acquired under a law other than the law of the country of domicile or present residence of the refugee, more particularly rights attaching to marriage (matrimonial system, legal capacity of married women, etc.) shall be respected, subject to compliance with the formalities prescribed by their country of domicile, or, failing such, by the law of their country of residence, if this be necessary.’ (See Article 4 paragraph 3, of the 1933 Convention)

‘4. Wills made by refugees in countries other than the reception countries, in accordance with the laws of such countries, shall be recognized as valid.’

In the comment it was stated:

‘Paragraph 1

‘Two ideas are embodied in this paragraph:

‘1) In the first place it establishes that the personal status of refugees shall be governed by the law of their country of domicile, or failing this, by the law of their country of residence. In so doing, it confirms the practice followed. In fact, the laws and jurisprudence regarding the personal status of stateless persons are nowadays practically uniform.

‘The law of the country of domicile, or in default of domicile, of the country of residence, is applicable. It may be noted that in certain legislations the notion of domicile, which is not always easily definable and is differently regarded in the various countries, has been eliminated; the personal status of stateless persons is determined by the law of the country of their regular residence. The rule has great advantages and consideration might well be given to its adoption in the present Convention. Nevertheless, in view of the practice so far followed in the Conventions, the dual formula of the 1933 and 1938 Conventions has been retained in the preliminary draft.

‘Paragraphs 3 and 4 make certain exceptions to the rule laid down in paragraph 2.

‘Paragraph 3 is concerned with safeguarding rights and applies the general rule regarding acquired rights to a particular case. It merely reproduced provisions contained in the Convention of 1933 and 1938.

‘It would be undesirable to modify the capacity of married women or the matrimonial regime and to impose on the spouses new rules which they did not envisage when they contracted the marriage. Nevertheless, to protect the interest of third parties, refugees are required to comply with the formalities prescribed by the law of the country of residence.

‘Paragraph 4 deals with wills made by refugees. It frequently happens that refugees have made a will in their country of origin in accordance with the provisions of the law of that country and are convinced that the will they brought away with them remains valid. The will may, however, not conform to the rules as regards form and substance of the country of residence. As a result, persons who believe that they have taken the necessary steps to protect the interests of their next of kin die intestate. Paragraph 4 provides against this danger.

‘2) In the second place paragraph 1 introduces an innovation. It makes no distinction between refugees who are stateless deportation jure and those who are stateless deportation facto. In point of fact, persons of either category no longer enjoy the protection of their countries of origin. Moreover, it is sometimes difficult to determine with certainty whether the refugee is or is not stateless deportation jure and even to establish his former nationality. This simplification has advantages for the nationals of the country of asylum. Their law will be applied in any legal relations they may establish with refugees. Courts will be freed from the frequently very difficult task of deciding which law is applicable and of discovering what are the provisions of the foreign law which in present circumstances is subject to frequent and substantial changes.

There are precedents to support the solution advocated. Thus, the French Government by a decree of 15 March 1945, extended to all Spanish refugees, whether stateless deportation jure or deportation facto, Article 4 of the 1933 Convention’s law of the country of domicile or, failing this, law of the country of residence. Similarly, an Ordinance now being drafted by the Allied High Commission in Germany adopts the principle that the law of the country of regular residence should be applied to all refugees and displaced persons.

‘Paragraph 2

‘This paragraph applies the principle established in the preceding paragraph It expressly lays down that personal status includes family law (that is to say filiation, adoption, legitimation, parental authority, guardianship and curatorship, marriage and divorce) and the law concerning successions. The authorities of the country of residence will therefore be competent to celebrate marriage in accordance with the rules regarding form and substance of the place where the marriage is celebrated. Similarly courts will be competent to decree divorces in accordance with the lex fori establishing the conditions for divorce.’

Article 3 of the French draft was as follows:

‘(a) The personal status of refugees who have retained their original nationality shall be determined in accordance with the rules applicable to aliens possessing a nationality. Refugees without nationality shall, in the absence of evidence to the contrary, be governed by the law of their country of domicile, or in default thereof, by that of their country of residence.

(b) The acts of religious authorities to whom refugees are amenable, if performed in countries admitting the competence of such authorities, shall be recognized as valid by the States parties to the present Convention.

(c) In countries where such questions are governed by the national law of the parties, rights acquired under the former national law of the refugee, particularly those arising from marriage, such as the matrimonial regime, the legal capacity of married women, etc. shall be respected, subject to fulfilment of the requirements prescribed by the law of the country of domicile or, in default thereof, by the law of the country of residence where necessary.’

At the first session of the ad hoc Committee the UK representative observed that in the UK, jurisprudence always subjected foreigners to the law of domicile in matters governed by private international law. The distinction made in the French text between refugees who had retained their nationality and those who were stateless would therefore not apply there.

The Turkish representative thought the Secretariat text simplified the question in a satisfactory manner. In practice, the application of their own national law to refugees would involve great difficulties. Even if they had kept their nationality, the authorities of their countries of origin were unfavourably disposed towards them, and if a State of reception were to apply to those authorities for information needed to establish their personal status, it would probably have difficulties in obtaining such data. Furthermore, the application of the refugee’s national law might be contrary to his own interests in the matter of legal capacity, when that capacity was wider under the law of the reception country than under the national law of the country of origin.

Whereas in normal times, when there were few foreigners in a country, the application of the national law should not cause insurmountable difficulties, the courts would be inundated with work if, at a time when the number of refugees amounted to hundreds of thousands, they had to refer in each case to a national law with which they were unfamiliar. The Danish representative did not approve of the French proposal. To the effect that the personal status of refugees who had retained their original nationality should be determined in accordance with the rules applicable in each country to aliens possessing a nationality. Refugees should not be treated by the host country in accordance with the very laws – such as the Nuremberg laws – that might have caused them to become refugees. He preferred Article 4 paragraph 1 as drafted by the Secretariat, especially as it was identical with provisions contained in earlier conventions.

The Chinese representative agreed with the Secretariat proposal that refugees shall be treated in accordance with the laws of the countries which had given them asylum. His own country could never agree to return to the practice of extraterritoriality, with which it had had better experience. He did not think, however, that a distinction should be made between the country of domicile and the country of residence. Domicile presupposed that a person was normally living and working in a country and had the intention to remain there, whereas the refugees who would fall within the scope of the Convention would be persons whose present and future were as yet unsettled and who at best might be resident in the country which had given them shelter. He therefore felt that the reference to the law of the country of domicile should be deleted.

The French representative pointed out that under the first sentence of Article 3 of the French draft only refugees who had retained their nationality would be subject to the laws of their country of nationality; the laws to be taken into account would be those in force before the refugee’s departure. The proposal was prompted by the desire to respect as much as possible the national traditions of the refugees.

The Israeli representative said the distinction made in the French proposal was based on two fictions: first, that each person carried their nationality with them; secondly, that ignorance of the law was no excuse.

Furthermore, no refugee should be forced to accept the laws of the country of which he or she was a national, for under that system the Nuremberg laws, for instance, would have been applicable to German Jews who had fled abroad. The only recourse left to the courts of the country which recognized the law of the country of nationality was to invoke the clause of ordre public, which they were not always ready to do, since in so doing they would seem to be casting an adverse reflection on the legal system of a friendly State.

The French proposal would unduly complicate matters and would probably defeat the purpose of the draft convention. He preferred the text proposed by the Secretariat.

He drew attention to the ambiguity of the term ‘domicile’; it was quite possible for a person to have their residence in one country and their domicile in another.

The representative of the Secretariat said the criterion of domicile and residence had been chosen because a refugee was characteristically a person who had broken with their home country and who no longer liked its law. Furthermore, it would make for more harmonious relations if the laws of the country in which the refugee had established domicile or residence were applied to him or her. Domicile and residence were not simply juxtaposed; the law of the country of domicile was to be applied in the first instance, the law of the country of residence only if the refugee’s domicile was unknown or in doubt.

The French representative explained that the French proposal was a combination of Article 6 of the Convention of 10 February 1938 from which the first sub-paragraph was taken, and the corresponding Article of the 1933 Convention from which the other two sub-paragraphs were taken. He did not think that his Government would insist and was willing to support the Secretariat text.

The representative of the IRO noted that the paper submitted by his Organisation177 contained a survey of national jurisprudence. He cited recent legal documents to show that there was a general tendency to use the criteria of domicile and residence rather than nationality in the determination of personal status of refugees and stateless persons. The IRO had experienced great difficulties in cases where the principle of domicile and residence had not been applied. The distinction made was due to the Convention of 1938. To draw a distinction between refugees who were deportation jure and deportation facto stateless was entirely artificial.

The Brazilian representative said his Government would be prepared to accept Article 4 with slight reservations. Paragraph 1 corresponded to the provisions of the Brazilian civil code. Brazilian courts would have no particular hesitation invoking the public order clause in order to set aside the national law of a foreign country.

The French representative noted that paragraph 1 was broader in scope than paragraph 2, which dealt with family law. In paragraph 2, he suggested the addition of the word ‘especially’ or the phrase ‘above all’ after ‘shall be governed’.

The Belgian representative favoured the retention of the two concepts: domicile and residence. When the country of domicile differed from the country of temporary residence, the law of the former should be applied. If the person was not domiciled in any country, obviously the law of the country of residence would apply.

Paragraph 1 of Article 4 of the Secretariat text was approved.

As to paragraph 2 the Danish representative suggested that celebration and dissolution of marriage should be dealt with as two distinct matters; dissolution could be effected only if just one party was present in the country.

The Israeli representative noted that the problem was of a general nature and was normally solved by the laws in force in the country where the marriage was to be celebrated or dissolved.

The Chinese representative thought it should be specified how long a refugee was required to reside in a country in order to be considered as domiciled there. The application of the law of domicile seemed to raise difficulties.

The Chairman said the concept of personal status should be defined more precisely. The Secretary General’s Study on the Position of Stateless Persons179 said that personal status determined (a) a person’s capacity; (b) his family rights; (c) the matrimonial regime insofar as that was not considered as part of the law of contracts; (d) succession and inheritance in regard to movable and in some cases to immovable property.

The representative of the IRO said paragraph 2 added nothing to paragraph 1: its purpose was to develop and explain the general principle contained in that paragraph. The list in paragraph 2 was incomplete: it provided solely for cases in which the application of the principle might give rise to disputes. Thus it had seemed advisable to lay down that the rules of substance, form and competence of the law of the country of domicile and of the country of residence applied to the law of marriage, since it was above all in that sphere that the legislation of the various countries differed most. The problem did not arise in regard to celebration of marriage, which in all countries was governed by local law. On the other hand, the right to contract marriage raised difficulties: countries which had so far applied the national law in that respect did so only in so far as it did not conflict with their public policy. It might therefore happen that the same considerations of public policy might be raised in deciding the capacity of the refugee to contract marriage under the law of the country of his domicile or residence. Moreover, the dissolution of marriages raised a question of competence: the courts of many countries refused to decree a dissolution of marriage if the national law of the person concerned was not obliged to recognize the validity of their ruling. Such difficulties would be definitely eliminated if paragraph 2 were adopted by the Committee. Paragraphs 3 and 4 merely laid down exceptions to the general rule laid down in paragraph 1.

The French representative felt it would be dangerous for the ad hoc Committee to undertake the task of defining personal status in civil law. Indeed, it was unlikely that such a definition would be in harmony with the various legislations of the States signatories.

The Danish representative agreed with the French representative. The same differences arose in respect of the word ‘domicile’ and indeed could arise in connection with many other juridical expressions in the Convention, each one having a generally recognized meaning in different legislations. It would be for each State which signed the Convention to interpret the expressions used in it within the framework of its own legislation and in the light of the concept which was most akin to its own juridical system.

The UK representative associated himself with the views expressed by the Danish and French representatives.

The Brazilian representative objected to the inclusion in the Convention of the details listed in paragraph 2. Many States might be reluctant to sign a convention which would oblige them to change the traditional principles according to which their legislation settled legal disputes. In Brazil, for instance, the obstacles to marriage were a matter of public policy which applies to all persons whose marriage was celebrated in that country. In matters of succession too, the transfer of real estate was carried out in accordance with the legislation of the country where the real estate was, and not in accordance with that of the refugee’s country of domicile.

The French representative said the objections raised by the Brazilian and UK representatives clearly indicated the delicate character of the problem. It seemed that in every country the rules of form governing the celebration of marriage were those of the country where the celebration took place, while the dissolution of marriage was governed by the rules of jus soli. There was no reason, therefore, for any reference to be made to the rules concerning form and competence, which were not mentioned in the 1933 Convention; consequently, the words ‘form and competence’ should be deleted from paragraph 2.

On the other hand, it would be well to add the words ‘in particular’ after the words ‘shall be governed’ in the same paragraph; that would indicate the connection, to which the IRO representative had drawn attention, between paragraphs 1 and 2 of Article 4.

Lastly, he would like the Secretariat to state whether it considered that the law of succession was part of family law and whether it should therefore be understood that the rules of substance of the law of the country of domicile or of residence applied both to family law, particularly to the celebration and dissolution of marriage, and the law of succession. If that were the case, he would propose no further amendment to the text of paragraph 2.

The representative of Israel said that in practice, all details of form in the matter of marriage were governed in civilized countries by the lex loci. There was no reason, therefore, why the explanation given on that point in paragraph 2 should not be omitted. The principle of locus regit actum in reality merely sanctioned a privilege granted by the State which determined the validity of the proceedings to the State where the legal instruments had been drawn up. The matter should therefore be left to the various States concerned.

There could be no question about the application of the rules concerning substance of the law of the country of domicile or residence, since the principle of paragraph 1 had been adopted.

The rules of competence, however, raised serious problems concerning qualification and very difficult questions involving public policy. For example, certain countries recognized civil divorce only and it was for that reason that the French delegation was proposing the inclusion of an Article concerning the validity of rulings of religious authorities in the matter.

All the Convention could say was that personal status, and family law in particular, would be governed by the law of the country of domicile or residence. It was not even advisable to mention the law respecting succession, which was linked with the law of property as much, if not more, than it was with the question of personal status.

The representative of the IRO thought if a clear, balanced text which was not open to differences of interpretation was to be drawn up, the rules concerning competence should at least be mentioned. That question would undoubtedly raise special difficulties in those countries which apply their national law to foreigners. It would be for those countries, in full knowledge of the facts, either to accept all the provisions of the Convention or to make reservations on that point.

The French representative thought the Committee could decide whether, on the one hand, the rules concerning substance, form and competence, or only some of those rules should be mentioned in paragraph 2; and, on the other hand, whether it was necessary to quote only family law, or also the law relating to successions, as an example. As French legal tradition had always considered the law respecting succession to form part of personal status, the French delegation saw no objection to those laws being mentioned in paragraph 2.

The Israeli representative considered that the best procedure would be to abide by paragraph 1, as adopted, and to agree that the Secretariat study180 was an adequate exposé of the concept of personal status. It was for the contracting parties to decide finally upon the elements of that status, in the light of the interpretation given by the Secretariat and of the records of the Committee’s meetings without, however, being bound by those texts. In the circumstances, the details in paragraph 2 were superfluous and he proposed that the paragraph 2 should be deleted.

The UK representative agreed that the definition given in the Secretariat study gave only a very vague idea of the concept of personal status. Each of the elements mentioned in paragraphs (a), (b), (c) and (d) was again subdivided in numerous sub-elements. The law of the UK varied according to whether it was applied to one or the other of those sub-elements. It therefore appeared that every attempt to define the concept of personal status must, in practice, encounter insurmountable difficulties.

The Turkish representative supported the Israeli representative’s suggestion. In point of fact, the concept of personal status would be determined by the law and customs of each country, with due regard to the preparatory work of the Convention.

The representative of the IRO emphasized that the main object of paragraph 2 was to prevent any future application of national law in the matter of marriage or succession of refugees.

The French representative agreed with the representative of Israel and Turkey.

The UK representative pointed out that the main purpose was to regulate the position of those countries where aliens were subject to their own national law, for in other countries there would be no difficulty with regard to the enforcement of paragraph 1. In his view, it would be sufficient if it could be understood that the law respecting family matters was to be governed by the law of the country of domicile or of residence, and there was no need to mention the rules concerning substance, form and competence.

The French representative pointed out that under paragraph 1 the law of the country of domicile or residence was to apply in every case and in every country. None of the difficulties referred to by the representative of the UK could therefore arise in the future, even in those countries where their own national law was applied to aliens. As had been pointed out by the representative of Belgium, a marriage might be celebrated outside the country of domicile; that was a point that needed clarification. In any event, there could be no further question of applying national law to the personal status of refugees and there was no distinction to be made between the various countries.

The Israeli representative felt that to prevent any misunderstanding it should be specified that the juridical scope of paragraph 1 would vary according to whether a country applied national law to aliens or the law of the country of domicile. In the latter case, the Convention could be put into effect without the Government having to adopt special measures. On the other hand, countries which applied national law to aliens would have to take steps to bring their legislation into line with the provisions of the Convention. The object of paragraph 1 was to ensure unification on this point.

The US representative suggested that it might satisfy the delegations of France and the UK if it was specified in paragraph 1 that the personal status of refugees should be governed not by their national law but by the law of their country of domicile or of residence.

The French representative saw no need to amend the wording of paragraph 1. The only question left for the Committee to decide was whether to retain paragraph 2 listing cases covered by the general principle set forth in paragraph 1. He personally felt that there was no need for it.

The UK representative explained, in order to avoid any misunderstanding, that his suggestion was merely to draft Article 4 in such a way that its provisions would apply only to those States which at present applied national law to the personal status of refugees.

The Danish representative pointed out that the Committee had decided that the personal status of refugees should be governed by the law of their country of domicile or, failing such, by the law of their country of residence. That being the case, all other criteria had been abandoned. Consequently, in those States where the law of the country of domicile or of residence was applied, refugees would receive the same treatment as other aliens; in other countries they would be granted a special status.

He proposed the following wording of paragraph 1, to make the fact clear:

‘In countries where the personal status of a person is governed by the national law of his country, the personal status of refugees shall be governed by the law of their country of domicile, or failing such, by the law of their country of residence.’

The representative of the IRO again urged the Committee to agree to the following wording:

‘shall be governed by the rules concerning substance, form and competence of the law…’

The French representative noted with regret that the Committee did not hesitate to impose on certain States a rule which differed from the rule normally applied, yet it made no attempt to ensure uniformity, desirable as that was, in the application of the same rule by the States which were already applying it. The Committee was, in fact, trying to bring about the application of a new rule in countries having a French legal tradition. In return for the concession he had made, he would appreciate it if nothing was said to imply that the provisions of Article 4 concerned only those countries which, like France, were at present applying the law of national status.

As to the suggestion that it should be specified that the personal status of refugees would be governed by the rules concerning substance, form and competence of the law of the country of domicile or residence, he thought it would be better to refrain from making rigid stipulations and to refer merely to the question of substance. In his opinion, a State in the territory of which an act was performed by a refugee would not be compelled to adapt its rules of form and competence to those of the country of domicile or of residence.

The US representative agreed with the French representative.

The UK representative was not opposed to retaining paragraph 1 in its present form, although that depended, in his opinion, on the action taken on paragraph 2. It was decided to retain the wording of paragraph 1 as adopted.

The Belgian representative called for the deletion of paragraph 2 which did not appear in the 1933 and 1936 Conventions. The proposal to delete paragraph 2 was adopted unanimously.

The representative of the IRO asked whether it would be possible to include in the Committee’s report a paragraph explaining that paragraph 2 had been deleted because, in the opinion of the Committee, paragraph 1 fully covered the points raised in paragraph 2 and also because the law differed considerably in various States, particularly with regard to the questions referred to in paragraph 2. The report might then state that the Committee had unanimously agreed that the questions dealt with in paragraph 2 ought not to be governed by the rules concerning substance, form and competence of the national law, even in the countries where such questions were usually covered by that law.

The French representative proposed that a new paragraph 2 reproducing the substance, if not the text, of paragraph (b) of Article 3 of the French proposal181 should be inserted between paragraph 1 and 3. The provisions of that paragraph appeared in the 1933 Convention. It would seem that all countries should recognize the validity of the acts of religious authorities to whom refugees were amenable, if performed in countries admitting the competence of such authority. He was supported by the Belgian representative.

The Chairman explained, after consultation with the representative of the Secretary General, that the Secretariat had considered that the provisions of paragraph 3 covered all acquired rights, including those resulting from acts of religious authorities.

The US representative agreed with the representatives of Belgium and France. He thought, however, that paragraphs (b) and (c) of the French draft might be combined into a single paragraph stating that ‘rights acquired under former national law of the refugees shall be respected…’ This would include all acquired rights, including those which had been acquired by church marriages.

The French representative simply asked that the Committee’s report should mention the fact that the provisions of Article 3 paragraph (b) of the French draft had not been included because they were covered by the general terms of paragraph 3 of the Secretariat draft.

On the proposal of the Israeli representative the words in brackets (matrimonial system, legal capacity of married women, etc.) were deleted.

On the proposal of the same representative the words ‘failing such’ in paragraph 3 were, as in paragraph 1, replaced by the words ‘if they have no domicile’.

It was also agreed to use the word ‘refugee’ in the plural in paragraph 3 as in paragraph 1. Paragraph 3 was adopted.

As to paragraph 4, on the proposal of the US representative it was agreed to replace the words ‘reception country’ by the phrase ‘the country of domicile, or if they have no domicile, of residence’.

The Danish representative did not see why the paragraph should be drafted in such terms as to grant the refugees, after their arrival in the country of domicile or residence, the privilege of making a will in other countries in accordance with the laws of those countries. The text should stress the fact that it applied only to wills made before arrival in the country of domicile or of residence.

The UK representative pointed to some difficulties in connexion with paragraph 4 and proposed its deletion.

The representative of the Secretariat explained that the purpose of paragraph 4 was to guarantee the validity of a will made by a refugee in his country of origin if he died in his country of reception without making another will. In reply to the objections raised, he said the Secretariat had intended to refer to the form of the will rather than to its provisions, for example, the validity of a will made by a Russian refugee in France would have to be determined according to the local law or, in the case of landed property, according to the law of the country in which the property was situated.

The Belgian representative felt that if the only purpose of paragraph 4 was to recall the principle locus regit actum, the provision was wholly unnecessary.

The French representative thought that the distinction made by the Secretariat between the form and the substance of a testament was unduly subtle. A refugee who had made a will in his or her country of origin or in transit thought that their will was valid with respect to both form and substance, and that it would so remain. That was what the text of the paragraph said and what should be said.

The Chinese and UK representatives doubted whether they would be able to accept paragraph 4.

The Chairman, speaking as representative of Canada, proposed the following amendment:

‘Wills made by refugees before their arrival in their countries of residence shall be recognized as valid if such wills were valid in the countries in which they were made.’

The UK representative thought the proposal would actually permit the refugee, by his will, to alter the law of the reception country. He favoured the deletion of paragraph 4.

The Belgian representative noted that there seemed to be general agreement regarding the validity of wills made by refugees in their countries of origin, in so far as the form was concerned. The problem consisted in determining whether the substance conformed to the legislation of the reception country. If nothing was said in the matter, the position of the refugee would be largely protected.

Paragraph 4 was rejected by 7 votes to 2, with 2 abstentions.

The French representative noted that the vote should not be interpreted as weakening in any way the force of paragraph 4 dealing with acquired rights.

The Chairman confirmed his interpretation of the vote.

The representative of the IRO asked the Rapporteur to note further that the status of children of refugees, even if they had been born after the outbreak of the war, be determined by that of their fathers or, if they were illegitimate, by that of their mothers, provided that they themselves had not acquired a nationality.

The Working Group proposed the following text:

‘The personal status of a refugee shall be governed by the law of the country of his domicile, or, if he has no domicile, by the law of the country of his residence.’

‘Rights acquired under a law other than the law of the country of domicile or residence of a refugee, more particularly right attaching to marriage, shall be respected, subject to compliance, if this be necessary, with the formalities prescribed by the law of the country of his residence.

Article 7 was adopted on the understanding that it would be further studied by the Governments.

The representative of the IRO said the second paragraph had been deleted because it had been considered that it was fully covered by the first paragraph. That was true, but a distinction had to be made between the question of the law which was to be applied with regard to substance, and the question of competence. When the Committee had taken its decision it had been stated that countries which applied the law of nationality did not apply that law if it was contrary to public order. Experience had shown, however, that laws restricting the right of marriage, for instance, were considered by some countries to be inconsistent with public order, while other countries applied those laws.

Moreover, in certain countries courts could exercise jurisdiction with regard to aliens only if their decisions were recognized by the courts of the aliens’ country of nationality.

The adopted Article meant, with regard to both questions, that it was not the law of the country of nationality, but that of the country of domicile, or failing such, the law of the country of residence, which would be applied, regardless of the question of recognition.

In its report, the Committee made the following comments:

‘Paragraph 1

Two ideas are embodied in this paragraph:

(1) In the first place it establishes that the personal status of refugees shall be governed by the law of their country of domicile or, failing such, by the law of their country of residence. In so doing, it confirms existing practice. In fact, the laws and jurisprudence regarding the personal status of stateless persons are now practically uniform. This double formula exists in the Conventions of 1933 and 1938.

(2) In the second place, paragraph 1 introduced an innovation. It makes no distinction between refugees who are stateless and those who formally still retain a nationality. In point of fact, persons in either category no longer enjoy the protection of their countries of origin. Moreover, it is sometimes difficult to determine with certainty whether the refugee is or is not stateless or even to establish his former nationality. In these circumstances it was considered advisable to apply to the legal status of a refugee the law of his domicile or of his residence. Such a solution would be to the advantage of the refugees, and would be welcomed also by the inhabitants of the country who may have legal proceedings with refugees, and by the courts of the country. Courts will be freed from what is frequently the very difficult task of deciding which law is applicable and of discovering what are the provisions of foreign law in a particular regard. Moreover, in some countries, courts may exercise jurisdiction with regard to aliens only if their decisions are recognized by the Courts of nationality of the alien. The present provisions would, by applying the law of domicile or of residence, eliminate this limitation with regard to refugees. Finally, refugees would by this provision be freed from the application of the laws of the countries which they left.

This solution was applied by Article 4 of the Convention of 1933. The French Government, by a decree of 15 March 1945, extended to all Spanish refugees, whether stateless de facto or de jure, Article 4 of the 1933 Convention, which applies the law of the country of domicile or, failing this, the law of the country of residence. Similarly, an Ordinance now being drafted by the Allied High Commission in Germany adopts the principle that the law of the country of regular residence should be applied to all refugees and displaced persons.’ In a footnote, Article 4 of the 1933 Convention was quoted which, it was said, was repeated in substance. Article 6 of the 1938 Convention was also quoted which subjects only refugees having no nationality to the law of their domicile or residence.

‘Paragraph 2

‘The second paragraph embodies the principle of respect for the acquired rights of refugees, and mentions a particularly important case of the application of prescribed formalities, i.e. the rights attaching to marriage. It is not intended that the law of a State which would not have recognized a certain situation had the person not become a refugee, should be required to do so on his becoming a refugee.

‘The Committee decided that it was not necessary to include in this Article specifically a reference to wills made by refugees prior to their arrival in the country of asylum, it being understood that the Courts of the various countries should, wherever possible, give effects to the wishes of the testator.

‘The Committee decided that it was not necessary to include a specific reference to family law, as this was covered by paragraph 1.’

Article 4 paragraph 3 of the 1933 Convention and Article 7 of the 1938 Convention were quoted in footnotes.

Austria made the following comment:

‘Experience has shown that it is not only difficult to ascertain the nationality of a refugee, but also to determine his domicile. It is suggested that the provisions of paragraph 1 of this Article be based not on domicile but on ‘habitual residence’, or, failing this on ‘residence’.’

It will be noticed that the term ‘habitual residence’ is applied also in Article 1 I paragraph 2 of the Draft Convention.

The UK made the following comment:

‘His Majesty’s Government are of the opinion that paragraph 2 is unsatisfactory, since (a) it is not limited to the rights dependent on personal status; and (b) it does not give effect to the ad hoc Committee’s intention as explained on p. 45 of the report. It is there made clear that it is not intended that the law of a State which would not have recognized a certain situation, had the person not become a refugee, should be required to do so on his becoming a refugee.’

‘His Majesty’s Government also observe that as drafted the provision does not give protection in the country of refuge to a refugee who has not lost his former domicile.’

At the second session of the ad hoc Committee the Belgian representative wondered whether to meet the first objection raised by the UK, it would not be sufficient to alter the wording ‘right acquired’ to ‘rights previously acquired’ in paragraph 2.

As regards the second point raised by the same country, cases certainly did arise where there was no formality to enable the country of reception to recognize acquired rights.

In such cases the first point made by the UK could be met if the following words were added at the end of paragraph 2:

‘where the absence of such formalities constitutes the sole obstacle to recognition of the rights in question.’

As regards the third observation of the UK Government, the intention of paragraph 2 could be made quite clear by the insertion before the word ‘domicile’ of the word ‘new’.

The Chinese representative understood the term ‘domicile’ to mean the place where a person desired to live and carry out his business while ‘place of residence’ means any place which he casually visited but not with the idea of residing there permanently. He noted that neither the Convention of the IRO nor the Convention concerning Displaced Persons made any reference to domicile but referred to ‘former habitual residence’, and he wondered whether it was necessary to refer to domicile in this Convention.

The Israeli representative observed that under British jurisprudence on conflict of laws it was possible that a person might have lost the nationality of a foreign country and yet retain their domicile there. On the other hand, British jurisprudence was not so rigid as to deny the possession of more than one domicile. The Constitution of the IRO had not attempted to solve the problem on a strictly legal basis, it had been drafted on humanitarian grounds and in an attempt to solve the problem either by repatriation or resettlement.

If the suggestion of the Austrian Government were to be adopted and the principle of domicile dropped, no court would be in a position to decide the legal status of refugees. It had been considered wise for the same reason to include mention of ‘residence’ so as to cover the case of refugees who had not established a domicile. Decisions should, however, be based whenever possible, on ‘domicile’ and only exceptionally on ‘residence’. In his opinion, the Committee should adhere to the text as it stood.

The US representative said it should be considered that a refugee might in some circumstances have their domicile in another country as the one in which they were living, and where the laws of domicile placed them at a disadvantage. He stressed that the word ‘domicile’ should be interpreted to mean the new domicile which had been acquired or was about to be acquired, and that personal status should be determined by the law of the country in which the refugee had resettled himself or herself.

The Article did, however, raise certain issues because a refugee might be in a transit camp with neither domicile nor residence.

The representative of the IRO said what was meant in the Article was the place where the refugee had the centre of his or her existence, and it was important to find some wording which would cover the case of those refugees who had not yet found such a centre.

The Law of the Allied High Commission mentioned had meanwhile been promulgated. Article 1 of the law read:

‘In every case in which the Introductory Law to the German Civil Code provides that the national law shall apply, the status of displaced persons or refugees shall be determined with reference to the law of the State in which he had his ordinary residence at the relevant time or, in the absence or ordinary residence, the law of the State in which he is, or was at the relevant time.’

The Israeli representative expressed the view that what was meant in the law by ‘ordinary residence’ covered the term ‘domicile’ in Article 7 of the draft Convention.

The Belgian representative said it was for the countries themselves to determine whether the personal status of the refugee should be governed by the law of the country of their domicile or of their residence. In any case, the refugee would always have a link with the country in which he or she was living and that would be sufficient to enable the provisions governing their personal status to be determined.

The UK representative replied that the text provided that rights determined by an individual personal status and acquired before he or she became a refugee should be respected. If the Belgian law did not recognize any particular right, it would not be required to recognize the right merely because a person had become a refugee.

The Belgian representative wished to reiterate that cases might occur in which there would be no formality enabling the personal status of a refugee who had become a refugee to be determined. Article 7, paragraph 2 did not appear to cover such cases.

It was decided to refer Article 7 to the Drafting Committee.

The representative of the IRO expressed his doubt, whether there was not a question of substance involved in the observations of the representative of the UK. In his view, paragraph 2 provided for exceptional treatment for refugees in a narrow field. The provision which had been taken from the pre-war conventions mainly concerned property rights connected with marriage, in respect of which it would be difficult for refugees to comply with the law of their country of domicile. Paragraph 2 was intended to provide for minor de rogations from the principle set forth in paragraph 1. He wondered whether the point made by the representative of the UK could be met by making those rights dependent not only on compliance with the formalities prescribed by the law of the country of domicile or residence of refugees but also on the exigencies of public order.

The Drafting Committee proposed the following wording:

‘1. The personal status of a refugee shall be governed by the law of the country of his domicile or, if he has no domicile, by the law of the country of his residence.

2. Rights dependent on personal status, more particularly rights attaching to marriage, previously acquired by a refugee, shall be respected by a Contracting State, subject to compliance if this be necessary, with the formalities prescribed by the law of the country of his domicile, or, if he has no domicile, by the law of the country of his residence.’191 The UK representative observed that Article 7 had given considerable trouble to the Drafting Committee. It had been finally agreed that the Article did not require rights previously acquired by a refugee to be recognized by a country if its laws did not recognize them on grounds of public order or otherwise. It had been decided that the provisions of the Article were in any case subject to that general reservation, which was implied and need not therefore be written into it. Article 7 was adopted.

At the Conference of Plenipotentiaries, Austria proposed the following amendment:

‘Delete paragraph 1 and substitute the following text:

1. The personal status of a refugee shall be governed by the law of the country of his habitual residence (see Article 11 paragraph ? ), or if he has no habitual residence, by the law of the country of his residence.

Yugoslavia proposed the following:

‘Article 7 paragraph 1. The personal status of a refugee having a nationality shall be determined in accordance with the regulations applicable in each country to aliens who are nationals of another country. The personal status of refugees having no nationality shall be governed by the law of the country of his domicile, or, if he has no domicile, by the law of the country of his residence.’

Paragraph 2. After the word ‘Rights’ insert the words ‘and duties’.

The Netherlands proposed the following:

‘In view of the fact that the meaning of the words ‘domicile’ and ‘residence’ is completely different under Anglo- Saxon law from what continental law understands by these terms, it is proposed to redraft Article 7 as follows:

‘1. The personal status of a refugee shall be governed by the law of the country of his habitual residence, or, if he has no habitual residence, by the law of the country of his residence.

2. Rights dependent on personal status, more particularly rights attaching to marriage, previously acquired by a refugee shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities prescribed by the law of the country of his habitual residence, or, if he has no habitual residence, by the law of the country of his residence.’

The UK proposed:

‘Amend Article 2 of this Article to read as follows: (the amendment is italicized) Rights dependent on personal status, more particularly rights attaching to marriage, shall be respected by a Contracting State, subject to compliance, if this be necessary, with the formalities required by that State, provided the right is one which would have been recognized by the law of that State, had he not become a refugee.’

A Swiss amendment read:

Amend Article 7 paragraph 2 as follows:

‘…shall be respected by a Contracting State, subject to the provisions of public order and to compliance, if this be necessary with the formalities prescribed by the law of the country of his domicile, or….’

The Netherlands representative said, in conformity with the Hague Treaty on Private International Law, the situation of an alien was governed by the law of the country of which he was a national. A large number of countries had ratified that Treaty, and if Article 7 was adopted, the Convention would have to be regarded as a departure from it. That raised a difficulty, since a number of countries which might not accede to the Convention, but which were a party to the Hague Treaty, would still be bound by obligations the latter. Admittedly, it was not a highly important matter, since refugees settled in countries which did accede to the Convention obviously would not return to countries which did not become parties thereto.

The Austrian representative said the application of Article 7 would be both simplified and made of greater benefit to refugees if the word ‘domicile’ were replaced throughout that Article by the words ‘habitual residence’. Such an amendment would bring Article 7 into line with Article 11 paragraph 2.

The Yugoslav representative said that under Yugoslav law the personal status of an alien was governed by the law of the country of which he was a national. Actually, the general principle recognized by most European countries was that the law to be applied in determining the personal status of aliens was the domestic law. The Yugoslav delegation was proposing a compromise.

With regard to Article 7 paragraph 2 the Yugoslav amendment would ensure respect not merely for those rights, but for obligations undertaken previously by refugees towards either his next-of-kin or other persons. After all, how could one protect the rights of one category of individuals and not at the same time prejudice the rights of another? That was a question which the Conference must not ignore.

The Belgian representative was somewhat hesitant to accept the Netherlands amendment. Paragraph 1 of Article 7 was directly inspired by the 1933 Convention, ratified by the UK. Care must be taken not to set the concepts of ‘residence’ and ‘habitual residence’ against each other. That would be a somewhat risky procedure, since then the former might cover a stay lasting a few days only. In the UK, everyone acquired, at birth, a domicile of origin which he retained until he established a domicile of his own choice. If the concept of ‘habitual residence’ was introduced, certain countries might find themselves in difficulties because that concept had not formerly existed in their legal system and would require interpretation by the courts. The concept of domicile, on the other hand, was well known.

The Netherlands representative withdrew his amendment.

The French representative remarked that it was sometimes difficult to decide whether a refugee had a nationality. The types of personal status obtaining in some countries might be incompatible with human dignity, and it could be argued that they were one of the reasons which had led to a person fleeing his country. It would not be just for Contracting States to apply them. For that reason France could not support the Yugoslav amendment to paragraph 1. The Swiss amendment to paragraph 2, however, might allay certain justified anxieties. He saw no objection to the Yugoslav amendment to paragraph 2.

The Austrian representative withdrew his amendment.

The Egyptian representative said, the majority of the Egyptian population was Mohammedan, its personal status being governed by Koranic law, whereas the personal status of other sections of the population was governed by the law of their respective religions or faiths.

The status of aliens (other than Mohammedan) was governed by their personal status under the law of their own country, reference to that being made by Egyptian law. If the refugee was established in Egypt there would be difficulty in deciding which of the various types of personal status of domicile or residence should be granted to him, as there were several such types of status. It would, therefore, be desirable for the Convention to define what was meant by personal status.

The representatives of the Federal Republic of Germany and of Israel opposed the Yugoslav amendment.

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