Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Forty-Second Meeting Held at the Palais des Nations, Geneva, on Thursday, 24 August 1950 at 2.30 p.m.
Chairman: Mr. LARSEN (Denmark)
Rapporteur: Mr. WINTER (Canada)
Belgium Mr. HERMENT
Brazil Mr. PENTEADO
China Mr. CHA
France Mr. JUVIGNY
Israel Mr. ROBINSON
Turkey Mr. NURELGIN
United Kingdom of Great Britain and Northern Ireland Sir Leslie BRASS
United States of America Mr. HENKIN
Venezuela Mr. PEREZ PEROZO
Italy Mr. MALFATTI
Switzerland Mr. SCHÜRCH
Representatives of specialized agencies:
International Labour Organisation Mr. WOLF
International Refugee Organization Mr. WEIS, Mr. KULLMAN
Representatives of non-governmental organizations:
Category B and Register
Commission of the Churches on International Affairs Mr. MOURAVIEFF
International Co-operative Women's Guild Miss ROSSIER
Liaison Committee of Women's International Organizations Miss ROSSIER
Women's International League for Peace and Freedom Mrs. BAER
World Jewish Congress Mr. LIBAN
Mr. Humphrey Director, Division of Human Rights
Mr. Giraud Legal Department
Mr. Hogan Secretary to the Committee
PROPOSED DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/1618, E/1618/Corr.1 and E/AC.32/L.40) (continued):
(i) Fourth Report of the Drafting Committee on articles of the Draft Convention (E/AC.32/L.42/Add.3)
Article 5: Exemption from exceptional measures - second paragraph
Mr. JUVIGNY (France) proposed that the words "measures essential to" in the second line should be replaced by the words "any measure essential to", explaining that the singular form could be either singular or plural in meaning; in consequence of his amendment, the words "such measures are" in the fourth line would be replaced by the words "such measure is".
He did not feel that that amendment could give rise to any objection of substance, as it was clearly understood that if any new fact emerged after the liberation of the refugee the Government concerned could take some other measure. 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 would not exclude the possibility of ordering internment, for example.
It was clear therefore that the singular form of the word was not as restrictive in scope as might be supposed. "Any measure" meant both any particular measure and any measure whatsoever.
The French representative's proposal was adopted.
Mr. PEREZ PEROZO (Venezuela) supported the new version of the second paragraph of article 5. As the paragraph met his Government's wishes in the matter of public order, he withdrew the reservation he had made at the 41st meeting of his Government's right to submit an amendment relating to public order when Convention was discussed in the General Assembly.
The second paragraph of article 5 was adopted as amended.
Article 17: Public education
Article 17 was adopted.
Article 23: Travel documents
The CHAIRMAN said that a division of opinion had been discovered in the Drafting Committee regarding the interpretation of the text adopted at the previous session of the Committee. The first sentence of the first paragraph of that text referred to "a refugee lawfully resident" in a territory; the second sentence of the same paragraph referred to "a refugee not lawfully resident" in a territory. Some delegations, among them his own, had understood those two expressions to cover all possible cases. Other delegations, on the other hand, had understood the second expression to cover unlawful residence, but not to cover non-residence. The question before the Committee, therefore, was whether travel documents could also be issued to non-residents.
His own Government considered that non-resident refugees might in certain circumstances be granted travel documents: in the case, for example, of a refugee fleeing to a third country who was perhaps married to a national of Denmark or had perhaps formerly had Danish nationality. His country would clearly not grant such documents to refugees who had no ties with it, but it might in such limited cases as he had mentioned. The question was not extremely difficult to solve, as, on the one hand, no State could prevent another State from granting travel documents to any person, and, on the other hand, it was in their own interests for States not to issue such documents freely, as they contained a return clause.
The Drafting Committee had been unable to reach an acceptable formula, consequently the Committee was required to decide whether the new version of article 23 in document E/AC.32/L.42/Add.3 should be adopted with or without the addition of the bracketed words "in their territory".
Mr. WEIS (International Refugee Organization) pointed out that Contracting States were obliged under paragraphs 8 and 9 of the Schedule to issue visas to refugees they admitted to their territory, were such visas necessary. If article 23 were adopted without the words "in their territory", difficulties might arise with regard to issue of visas to refugees who had obtained travel documents from a State in which they did not reside.
The CHAIRMAN said that paragraph 8 of the Schedule added the proviso that countries should affix a visa only if they were prepared to admit the refugee. Paragraph 9 was admittedly rather ambiguous.
Mr. HENKIN (United States of America) said that it was clear that if States were permitted to issue such travel documents, those travel documents would be regarded as valid. The real question hinged on whether other Contracting States would object to one Contracting State granting travel documents to a refugee not within its territory. His Government did not foresee any great difficulties or hardships to States if the words "in their territory" were deleted. There was clearly no alternative but to vote on the question; he would vote for their deletion.
Sir Leslie BRASS (United Kingdom) thought that the article would be weakened if it were framed so as to permit Contracting States to issue travel documents to refugees who were in no way connected with them. Leaving aside the obvious difficulties of obtaining reliable certificates of identity, the exclusion of the words "in their territory" would be liable to militate against the acceptance of the article as a whole. He did not think that the Committee should take the risk of having a considerable number of States making a reservation because of the exclusion of those words, and he therefore favoured their retention.
Mr. WINTER (Canada) agreed with the United Kingdom representative. In any case, he pointed out, the inclusion of the words would not prevent States from issuing travel documents to refugees outside their territories if they thought fit.
Mr. HENKIN (United States of America) was unable to agree with the Canadian representative. According to his interpretation, the inclusion of the words would prevent other States from issuing travel documents to refugees outside their territories.
Sir Leslie BRASS (United Kingdom) pointed out that travel documents issued by States to refugees outside their territories need not necessarily be travel documents under the Convention.
The CHAIRMAN said that it was a matter for each State to consider whether it would affix a visa to travel documents granted under the article. Similar documents were often issued by consular or diplomatic authorities abroad; he could not, therefore, understand why there should be any difficulty about certificates of identity, any more than in the case of any other documents.
He put to the vote the question whether the words "in their territory" bracketed in article 23 should be retained in the text.
The Committee decided to retain the words "in their territory" in article 23, by 5 votes to 4, with 2 abstentions.
Article 23 was adopted.
Schedule: Paragraph 6 (3)
The CHAIRMAN said that because of the decision taken by the Committee on article 23, a State could no longer issue a travel document to a non-resident refugee. The new draft of paragraph 6 (3) of the Schedule, however, permitted Contracting States to give sympathetic consideration to issuing new documents to refugees no longer lawfully resident in their territory. There was thus a discrepancy between the two provisions which he thought should be remedied.
Sir Leslie BRASS (United Kingdom) understood "new documents" in paragraph 6 (3) to mean new documents replacing old documents.
Mr. HENKIN (United States of America) suggested that either the expression "or issuing new documents" be deleted and the word "renewing" be interpreted broadly, or the word "substitute" be sued for the word "new".
He pointed out, however, that even if the Chairman's interpretation were accepted, the paragraph would only apply to people who had formerly been lawfully resident in a territory. No great harm would therefore be done if the text were left unchanged.
Mr. WEIS (International Refugee Organization) thought that if the new draft of paragraph 6 (3) was adopted it would be to some extent in conflict with paragraph 6 (2), inasmuch as a Government might well have to extend a travel document beyond six months, so that action would in all cases have to be taken by the central authorities. Thus paragraph 6 (2) would lose much of its meaning.
Sir Leslie BRASS (United Kingdom) pointed out that the last sentence of paragraph 6 (1) of the Schedule indicated that the words "a new document" were to be interpreted in the sense of "a replacement document". Paragraph 6 (3) was merely a recommendation that had to be read in the light of the rest of the paragraph.
Mr. CHA (China) thought it undesirable that any suggestion of ambiguity should exist in the interpretation of paragraph 6 (3). He therefore favoured the amendment of the paragraph.
Mr. HERMENT (Belgium) felt that there was no possible doubt: paragraph 6 (3) referred to refugees who, after residing lawfully in a territory, continued to reside in that territory unlawfully. For instance, the case might arise of a person who had received a permit to stay in a territory for a certain time and who remained there unlawfully on the expiry of that period. In such a case, the authorities of that territory should, in virtue of the paragraph in question, renew or extend the validity of his travel document.
He believed that that was how many States would interpret the paragraph. In any event, it did not, in his view, refer to a refugee who was no longer resident in the territory in question.
The CHAIRMAN proposed that, order to avoid prolonged discussion, paragraph 6 (3) of the Schedule be adopted. No harm would be done if it were left as it stood.
Paragraph 6 (3) of the schedule was adopted.
Sir Leslie BRASS (United Kingdom) said that the point of interpretation raised by the Chairman would be carefully considered by his Government, and that, if indeed there was any ambiguity, it would take steps later to propose an amendment to remove it.
Mr. WEIS (International refugee Organization) pointed out that paragraph 6 (2) of the Schedule contained mandatory provisions, which had not always been observed in the past.
Mr. HERMENT (Belgium) said, in reply to the representative of the International Refugee Organization, that in his view the provisions of paragraph 6 (2) could not be considered as mandatory. It was for the central authorities to decide whether authorization of that kind should be granted to diplomatic or consular representatives. Each case would therefore be considered on its merits.
Mr. WEIS (International Refugee Organization) thought that the point raised by the Belgian representative was extremely important. It was understood that the authorization could be restricted to certain diplomatic or consular authorities, but was individual authorization sufficient or had it to be an authorization of a general character?
The CHAIRMAN, while considering the Belgian representative's point as important in itself, did not regard it as important from the drafting standpoint. States which did not propose to accept paragraph 6 (2) would make reservations. The provisions said nothing about the number of diplomatic or consular authorities who might be specially authorized, but it was clear that a number must be so authorized. He thought that there was no need to enter into a discussion of the provision, as, though mandatory, it was impossible for the Committee to work out a scheme whereby it could be put into effect by States.
Mr. WEIS (International Refugee Organization) thought that the Chairman's interpretation differed from that originally adopted. There had been great difficulties in the past, and there would continue to be considerable delay, if diplomatic or consular authorities had in each case to approach the central Government for an extension of the validity of refugees' travel documents.
Mr. HENKIN (United States of America) said that the application of such a provision had necessarily to be left to States, which would choose a few or many authorities as they thought fit. He, therefore, did not think that any change should be made in the article.
His delegation had disapproved of the period for which travel documents could be extended being restricted in paragraph 6 (2) to a period not exceeding six months, but as the Drafting Committee had considered it inadvisable to alter that restriction, he would not press for a change.
Sir Leslie BRASS (United Kingdom) pointed out that the use of the words "specially authorized" indicated that not all diplomatic or consular authorities would be authorized. In effect, therefore, the words "shall be" must be read in the sense of "may be".
Mr. HENKIN (United States of America) thought that the United Kingdom representative's interpretation went a trifle too far. According to the sub-paragraph, it was obligatory for States to empower some diplomatic or consular authorities.
The CHAIRMAN said that the commentaries on the London Agreement made it clear that in the similar provision in that Agreement, States had the sole right to determine the number of diplomatic and consular authorities to be authorized.
Schedule: paragraph 13
Paragraph 13 of the Schedule was adopted.
(ii) Interpretation of "résidant régulièrement"
The CHAIRMAN, continuing the discussion that had begun at the 41st meeting on the interpretation of the words "résidant régulièrement" in the French text of article 14, said that the expression occurred in several articles. Most countries had studied only one text of the draft Convention, so that the divergence in meaning between the two texts had not been observed earlier. He himself felt that the difference must be reconciled, for it was one of substance.
Mr. JUVIGNY (France) pointed out that the Convention contained various articles concerning particularly fundamental rights for refugees, in which the expression "résidant régulièrement" did not appear at all. They included the articles relating to the duties of refugees, discriminatory measures and the return of refugees to their country of origin. He was glad that those articles, by their very simplicity, did not permit of any conflicting interpretations. Indeed, when the word "refugee" was used without any qualification, everyone knew what was meant.
In other articles, different expressions were used according to the situations contemplated; but he intended to confine himself to the phrase "résidant régulièrement", which was the subject of the present controversy. Contrary to what had been said at the previous meeting, he did not consider that the matter had been really settled at the last session; in any case, the question of terminology had not been the subject of such a far-reaching discussion as had begun at the Committee's meeting.
He pointed out that the articles in which that expression was used implied, in nearly all their provisions, that the presence of the refugees was more or less permanent. Some representatives had proposed that the words "résidant régulièrement" should be replaced by the words "se trouvant régulièrement", but that expression had already been used at least once in connection with the issue of identity papers. In that particular case deliberate use had been made of a very wide term applicable to any refugee, whatever his origin or situation. It was therefore a term having a very broad meaning, which was unsuitable as a substitute for the term "résidant régulièrement".
Moreover, he wished to remind the Committee that the expression "résidant régulièrement", which now appeared in certain articles, was the result of a concession by the French delegation. At its first session the Ad hoc Committee had simultaneously examined the text prepared by the Secretariat and the text of the French proposal. In the articles in question, the term used in the French text had been "résidence habituelle" which implied some considerable length of residence. As a concession, the French delegation had agreed to substitute the words "résidence régulière" which were far less restrictive in meaning. He explained that that was not a purely formal concession. In France, indeed, the wore "résident" was understood to mean not only a privileged resident or ordinary resident, but also a temporary resident; the word "résident", which had those three connotations, was therefore very wide in meaning. Of course the three meanings did not include certain cases very difficult to define, such as those of refugees who might be in a certain territory for a very short period. But such cases would not, in fact, raise any problems since an examination of the various articles in which the words "résidant régulièrement" appeared would show that they all implied a settling down and, consequently, a certain length of residence.
On considering article 10 for instance it was difficult to imagine, in the most extreme cases, that a person who was in a territory only for a very short period would make use of the right of association. Certain exceptional cases might of course be cited. There were associations which granted membership to founder members and benefactors who might be domiciled abroad. But in that connection, at least with regard to associations normally constituted and having admissible purposes, no objection could of course be made, either in law or in fact, to such an interpretation, which was, moreover, understood. The other articles using the phrase in question related to wage-earning employment and self-employment and there was no need to say that they implied at least temporary residence. In that respect, he was prepared to make an exception in the case cited by the United States representative, who had mentioned the possibility that a barrister might in exceptional circumstances come to plead before foreign courts. But he emphasized that in practice such cases were rare, at least in France. With regard to the article on housing, it was obvious that where there was no residence, no housing problems could arise. Finally, the other articles which also made use of that expression were those relating to public relief, labour legislation and freedom of movement.
Consequently, he considered that in all those articles the only concrete cases that could arise were cases implying some degree of residence, if only temporary residence; and temporary residence would be covered by the present wording, at least as far as France was concerned. That was why he felt that apart from the purely legal question, there was only a kind of symbolical problem. That was why he also considered, for reasons of principle, that having abandoned the idea of "résidence habituelle" and accepted the concept of "résidence régulière", the French delegation had conceded as much as it could. He therefore strongly urged that the words "résidant régulièrement" be retained in the French text of the Convention.
Mr. HENKIN (United States of America) thought that in the light of the exposition given by the representative of France there might prove to be a distinction of substance between the English and French texts. He would offer a suggestion for removing that distinction, but first it would be necessary to settle one difficulty. It appeared that "résidant régulièrement" covered persons temporarily resident, except for a very short period, whereas according to English law he understood the word "resident" could not apply to a temporary stay. If, therefore, the words "résidant régulièrement" were to be retained in the French text, it would be necessary to find some English equivalent. Since he could think of no English equivalent, perhaps the French representative would be willing to eliminate the concept, and employ in the articles with regard to which the problem arose terms meaning either "habitually resident" or "lawfully in their territory" - whichever was appropriate.
Mr. JUVIGNY (France) said he would not oppose the procedure suggested by the United States representative; but he wished to draw attention to a distinction which he thought necessary. In the case of the articles which referred both to a lawful resident and to the treatment of aliens generally, the problem of substance which might arise was not serious, since however residence was regarded, the refugee enjoyed the same treatment as that accorded to aliens generally. On the other hand, grave and complicated problems might arise in practice in connection with the articles containing the most-favoured-nation clause, since it would be necessary to determine the force and scope of that clause. Consequently, he thought it advisable to stipulate that there was to be parallel application of the most-favoured-nation clause, but in respect of persons whose situation implied residence, if only of a temporary character.
Mr. HENKIN (United States of America) thought that the French representative was overlooking the existence of the phrase "in the same circumstances", whose effect was to provide that if an alien present in a country for a six-week period was not to be granted a certain right, that right would not be granted to a refugee either, while if a certain right was to be granted to an alien in transit, the same right would be granted to a refugee. It was precisely in the case of those articles which prescribed for refugees the same treatment as for aliens generally that it was necessary not to employ a narrower term like "resident". In such cases, more than any others, there might exist a distinction in French law between persons who were "résidant régulièrement", "résidant habituellement", and so forth, and the status of refugees must therefore be determined by the status of aliens generally.
Mr. PEREZ PEROZO (Venezuela) observed that according to the United States representative the central difficulty was that of finding an English equivalent for the French "résidant régulièrement". He suggested that it might be useful to see how the term had been translated in article 37 of the Convention of 1933 and the corresponding article of the Convention of 1938.
The CHAIRMAN quoted article 6 of the 1933 Convention, the corresponding article of the 1938 Convention, article 37 of the 1933 Convention and article 9 of the 1938 Convention to show that the term "résidant régulièrement" had been considered equivalent to "regularly resident". "Résidant régulièrement" had clearly been thought to mean more than merely "present in a country".
Mr. HENKIN (United States of America) thought that the phrase "regularly resident" was ambiguous and could mean either "lawfully resident" or "habitually resident". If it meant either, it certainly did not mean the same as "résidant régulièrement". It was not his place to criticise the Conventions of 1933 and 1938, but he could not accept the phrase "regularly resident".
He still felt that the phrase "in the same circumstances" filled the need. If its meaning was at all doubtful, it could be clearly defined either in the Convention or in the report of the Committee.
Mr. JUVIGNY (France) pointed out that since the French delegation had agreed that the concept of habitual residence should be replaced by that of lawful residence, which included cases of non-habitual residence, it appeared that there was no disagreement on the substance. He also observed that in article 6, "Continuity of Residence", the verb "reside" was used in the English text.
Mr. HENKIN (United States of America) thought that the English "reside" and the French "réside" were perhaps exact equivalents, but felt that "lawfully resident" was not the same as "résidant régulièrement" as was suggested by the French representative.
Another question before the Committee was, whom the provisions were intended to cover. The intention of the Committee, he had thought, had been to include all refugees lawfully in a territory, even if they were not "resident" in the English sense or "résidant" in the French sense.
The CHAIRMAN felt that the essence of the problem was that a small part of the area covered by the English term was left uncovered by the French term. The question was whether to reduce the area covered by the English term or to increase the area covered by the French term. Referring to some of the essential provisions of the Convention of 1938, he noted that articles 12 and 13 laid down no conditions with regard to residence, regular or otherwise. He hoped that in the light of that broad approach in an earlier convention the Committee might be able to decide whether it was necessary to leave the gap to which he had referred uncovered. If it was so decided, it would remain to find an English term corresponding to the French one.
Taking the draft Convention article by article, the Committee would observe that the first article in connection with which the problem arose was article 10 in which the English text spoke of "refugees lawfully in their territory" and the French text of "tout réfugié qui réside régulièrement sur leur territoire". Some members might say that the problem was academic and not practical, but suppose that a musician was staying for one or two nights in a country where the musical trade unions were powerful and would not allow non-members to perform? Why should not such a musician, if he was a refugee, have the same opportunity as aliens in general of joining the trade union if necessary? Naturally, if he was not forced to, he would not pay contributions from which he would receive no benefit owing to the briefness of his stay.
Sir Leslie BRASS (United Kingdom) proposed that the words "in the same circumstances" be added after the words "aliens generally" in article 10.
The CHAIRMAN observed that the result of adopting the United Kingdom proposal would be that if in any country an alien who was not a refugee was not permitted in the course of a brief stay to join a trade union, a refugee would also be denied that right. He wondered whether from the point of view of substance that provision would be acceptable.
Mr. HERMENT (Belgium) said he could not accept the United Kingdom representative's proposal. He had already had occasion to make reservations regarding most-favoured-nation treatment, especially as to the right of association. He felt it would be most dangerous to grant such rights to refugees merely passing through a territory. Hence the concept of "résidence régulière" should be kept not only in article 10, but in the other articles where it had already been inserted.
The CHAIRMAN wondered whether the Belgian representative would interpret the phrase "résidant régulièrement" in such a way that the musician he had taken by way of example would be entitle to join a trade union.
Mr. HERMENT (Belgium) argued that a refugee must not necessarily be granted the right of association because he was lawfully in a given territory. It was possible that under a country's domestic law certain qualifications for residence were required before the right of association was granted, even in the case of a non-refugee alien. In such circumstances a refugee should not enjoy more favourable treatment than other aliens. It was also possible that under the most-favoured-nation clause, nationals of countries to whom such a clause applied might be exempt from those conditions of residence. There again a refugee could not enjoy that privilege. At all events, it was often a question of considering a case on its merits; he repeated that it was important to keep the concept of "résidence régulière" in article 10.
Mr. JUVIGNY (France) gave an example to illustrate the possible consequences of deleting the concept of "résidence régulière" from some of the articles of the Convention. In international labour law there was a concept known as the principle of the most representative trade union. It was the duty and legal obligation of Governments to choose representatives of workers and employers for international labour conferences from the most representative trade unions and by agreement with them. One of the criteria, if not the essential criterion, of representative status was the number of members. Obviously it was in the interest of all trade unions to have as many members as possible. That being so, what was to prevent a refugee passing through a country, once an international convention gave him the legal right to join a trade union, from unfairly swelling the membership of a national trade union? That might lead to somewhat strange consequences, since certain individuals might find themselves enrolled in trade unions in several countries, which would be unfair to other trade unions whose members were exclusively actual wage-earners in the country of the trade union, carrying on their occupation in a more or less permanent fashion.
Mr. HENKIN (United States of America) thought that the same problem would arise with regard to an alien who was a citizen of a most favoured nation. It would also arise if, as the French representative had said, the phrase "résidant régulièrement" applied even to a stay of four or five months.
Mr. JUVIGNY (France) pointed out that in the case mentioned by the United States representative the risk was mathematically smaller. Moreover, most-favoured-nation treatment was granted only under certain conditions, whereas in the present instance, the privilege would be universal, and subject to no conditions, being granted as a result of a mere formula transformed into an international legal principle.
The CHAIRMAN inferred from the foregoing discussion that the difference between the areas covered by the English and French phrases was greater than had at first appeared. He conceded the point which the French representative had raised with regard to trade union, but it must be remembered that not many refugees would be likely to bring their travel documents and go through the complicated formalities of obtaining visas in order to visit a number of countries and pay contributions from which they would receive no benefit.
Mr. WEIS (International Refugee Organization) understood that in Switzerland, among other countries, an alien required a residential permit only after a stay of three months. He welcomed the French representative's broad interpretation of "résidant régulièrement", but felt that it might equally be interpreted so as not to apply to a person who, having stayed for less than three months, was not yet in possession of a resident's permit.
Sir Leslie BRASS (United Kingdom) observed that if most-favoured-nation treatment was accorded to aliens only subject to certain conditions, refugees would receive such treatment only under the same conditions.
Mr. JUVIGNY (France) thanked the representative of the International Refugee Organization for taking cognizance of the French delegation's interpretation. At the same time he explained that the text would hardly apply the other way round, i.e. it could not be argued that where there was no residence, the situation was irregular. For example there were aliens lawfully in France without being resident. As evidence of that he mentioned the case of Belgian nationals, who needed only an identity card to spend a few hours in France. They would be in France lawfully, even though not resident. The problem of producing another document would only arise for them if they wished to stay in France for several months.
He wondered whether the solution for the present controversy would not be to seek an English term equivalent to the French expression "résidant régulièrement" or at least having appreciably the same sense.
Mr. HENKIN (United States of America) thought that the first question, which was whether or not the Committee in general wished to accord the rights conferred under article 10 to refugees merely passing through a country, had been settled in the affirmative. If the French representative wanted that decision changed, he felt, with regret, that a division would be necessary.
Mr. ROBINSON (Israel) felt that the discrepancy between the English "lawfully resident" and the French "résidant régulièrement" was important in the case of only three or four articles; if it was agreed that where the enjoyment of a certain right be refugees was conditional on the enjoyment of the same right by aliens in the same circumstances, all those articles which provided for most-favoured-nation treatment could be excluded. It would of course by necessary in those cases to delete the words "lawfully resident". In that way the field of disagreement could be narrowed down to four or five articles.
He had been impressed by the Chairman's quotation from the Conventions of 1933 and 1938 and felt that the present Convention should not go beyond them in restrictiveness.
The CHAIRMAN hoped that the Committee would be able to adopt the compromise solution suggested by the representative of Israel, which would make the rights of refugees in the small area not covered by both the French and the English texts depend on the enjoyment of the same rights by other aliens by removing all qualifications from the word "refugee" and employing only the phrase "in the same circumstances".
Mr. JUVIGNY (France) pointed out that it was quite possible to grant most-favoured-nation treatment even if no mention whatsoever of any condition of residence was made. But in that case the fundamental problem would again arise, namely whether it was possible to give any person who spent a few hours in a given territory an absolutely unconditional right, which in most cases, and certainly in France, would mean giving such a person treatment more or less similar to that given to nationals.
Mr. HENKIN (United States of America) asked whether the French representative was willing to accept the suggestion of the representative of Israel in the case of those articles which provided for the minimum treatment for refugees together with a recommendation for better treatment.
Mr. JUVIGNY (France) said he could not commit his Government on that point. The report would have to contain at least some explanation as to what was understood by "aliens in the same circumstances" and an explicit reference to the problem of residence.
Mr. HENKIN (United States of America) noted that a definition of the phrase "in the same circumstances" was contained in the report of the Committee on its first session in a succinct Latin phrase suggested by the representative of Israel. If that definition did not satisfy the Committee, it could state in its second report exactly what it thought the phrase meant.
Mr. JUVIGNY (France) said he was prepared as a compromise to accept the Israeli representative's suggestion, on the understanding, however, that his Government might have reservations to make on certain articles. Similar problems would probably arise for certain countries directly interested and having observers following the Committee's proceedings.
He urged that at least the word "régulièrement" should be kept in the articles from which the Committee might decide to omit the word "résidant".
The CHAIRMAN emphasized that the English-speaking members of the Committee could not adopt one text and the French-speaking members another. The task of the Committee was to adopt two versions which must be identical.
He thought that the French representative's explanation of how the word "régulièrement" was to be understood showed that it was exactly equivalent to the English "lawfully".
Mr. WEIS (International Refugee Organization) thought that in view of the importance which had become attached to the phrase "in the same circumstances" it should be pointed out that the difference of order in the French and English texts might involve a difference of substance. For example "the most favourable treatment accorded to nationals of a foreign country in the same circumstances" might not mean the same as "le traitement le plus favorable accordé dans les mêmes circonstances aux ressortissants d'un pays étranger". It was for the French-speaking representatives to say how the French text could be brought into line with the English.
Sir Leslie BRASS (United Kingdom) noted that the words "lawfully in their territory" occurred throughout the draft Convention. In article 22, the words "in their territory" were translated by "se trouvant sur leur territoire". Would it be possible for "lawfully in their territory" to be translated by "se trouvant régulièrement sur leur territoire"?
Mr. JUVIGNY (France) thanked the United Kingdom representative for his suggestion, but pointed out that in the terminology and general structure of the Convention the term "se trouver" had a very special significance, and was used only in the article concerning the identity papers, i.e. it referred to a procedure which could not be refused to anyone, whatever his status or the legality of his presence in a given territory. Hence some confusion might be caused if that same term were used in article 10. Incidentally, "se trouver" was not a legal expression. That was why it had been used in connection with the identity papers, which were not a legal document, but merely a temporary certificate of identity in no way prejudging the future position of a refugee, or even his actual status as a refugee.
Mr. ROBINSON (Israel) was gratified by the response to his suggestion for narrowing the field of divergence between the English and French texts. He suggested that the Committee proceed to eliminate the source of friction in the six articles, namely articles 10, 12, 13, 14, 16, and 21, in which he had shown that it could be removed.
He hoped that the representative of France, who wished for a definition of "in the same circumstances", would agree to place that definition after the first mention of the phrase. A second paragraph defining it would in that case be added to article 10.
He therefore proposed that article 10 be amended to read as follows:
"As regards non-profit-making associations and trade unions, the Contracting States shall accord to refugees lawfully in their territory the most favourable treatment accorded to nationals of foreign countries in the same circumstances.
The phrase 'in the same circumstances' means with the same time limit and other conditions of residence as the corresponding category of refugees."
Mr. JUVIGNY (France) asked what was the precise difference of substance, in law and in practice, between the French concept "résidant régulièrement", as he had defined it, and the English concept "lawfully in their territory".
Mr. HERMENT (Belgium) pointed out that the Israeli representative's definition of the phrase "in the same circumstances" made the residence of aliens subject only to residential conditions.
Mr. HENKIN (United States of America) thought that the point made by the Belgian representative was a good one.
Mr. ROBINSON (Israel) thought that the solution would be to delete the words "of residence" after the word "conditions" in his proposed definition.
Mr. HENKIN (United States of America) thought that if the last suggestion of the representative of Israel was adopted, the final words of the definition should read "as are required of other aliens for the enjoyment of the same privileges".
It was so agreed.
Mr. HENKIN (United States of America) said he could not accept "résidant régulièrement" if it was to be translated by "lawfully resident", which would not cover persons who were not legally resident in the English sense. It would not, for example, cover persons staying in the United States on a visitor's visa, and perhaps it might not even cover persons who had worked for the United Nations for five years in Geneva. The word "residence" in English, though not exactly equivalent to "domicile", since it was possible to have more than one residence, had much of the same flavour.
Sir Leslie BRASS (United Kingdom) thought that what the Committee was trying to convey in the definition of "in the same circumstances" was that it should be necessary to examine the relevant circumstances in the case of the subject matter of each article. Circumstances which might be relevant in one matter might not be so in another.
Mr. JUVIGNY (France), agreeing with the observations of the United Kingdom representative, said that the phrase could be employed if it was a legal one. But the correct legal phrase was "ceteris paribus".
Although he would not overstress the point, he felt that the example given by the United States representative was inadequate to give even a very general idea of the possible difference between the English and French concepts.
The CHAIRMAN emphasized that the Committee was not writing Anglo-American law or French law, but international law in two languages. The trouble was that both the English-speaking and the French-speaking groups were trying to produce drafts which would automatically accord with their respective legal systems and accepted legal terminology.
Mr. JUVIGNY (France) agreeing with the Chairman, said that an effort should obviously be made to prepare an instrument which would be as universal as possible and comprehensible to everyone. Nevertheless it must not be forgotten that the discussion had arisen from divergencies of interpretation of Anglo-Saxon and Roman law which actually represented differences of substance. Since he himself had supplied the meaning of the French concept, he would welcome a general statement on the meaning of the Anglo-Saxon concept.
In addition, if a comparative study of the 1933 and 1938 Conventions and the present convention came to be made, it would have to be explained why the concept of "lawful residence", which had been included in the former, had been omitted.
Mr. HENKIN (United States of America) observed that the French representative had not been satisfied with the example which he had given. He did not understand the exact connotation of the French word "résident", but apparently it could be applied to persons who did not make their home in a certain place but stayed there for a number of months. Such persons would apparently be "résidant régulièrement" but they would not, in the United States of America at least, be lawfully resident. To be lawfully resident in a place a man must make his home there; it need not be his only home but it must be a substantial home.
Mr. HERMENT (Belgium) thought that the situation described by the United States representative might be covered by the expression "temporarily settled".
Mr. HENKIN (United States of America) said that if there was a strong case for retaining the concept of residence he would prefer to employ "habitually resident".
The CHAIRMAN thought the if it were possible to express the substance of the Committee's intentions in the French language, that expression must be employed even if it was not French legal terminology. Given agreement on substance, then any understandable French expression must be acceptable.
He was, however, fairly sure that there was no agreement substance, and that question must be decided first. The problem of finding words in both languages to express what had been agreed upon was a different one. He hoped that the fact that the two languages employed were French and English would not lead the Committee to make a wrong decision with regard to substance.
Mr. JUVIGNY (France) pointed out that the expression "séjour" had, unfortunately, a legal connotation. As he had stressed when citing certain examples at the previous meeting, it was clearly pointless to say that a short stay might, ipso facto, confer certain rights, when such rights were obviously practically meaningless in the cases in question.
Moreover, certain rights, such as the right to plead before the courts, had been specifically accorded even to refugees who were in a country other than their country of asylum for a very short stay. On the other hand, he failed to see the practical application, in the case of the short stays, of the articles concerning wage-earning employment or the practice of the liberal professions or of the article concerning housing.
Mr. HENKIN (United States of America) thought that the word "sojourn" which was a neutral term could be employed with the word "lawfully".
With regard to the substance of the articles in question, the intention of the Committee was presumably not to provide that a refugee should have any particular right but to provide that if other aliens had such and such a right, so should refugees. If an alien had the right to live in France and work in Switzerland, why should a refugee not have the same right?
Mr. JUVIGNY (France) thought that, in view of the general reservation which he had submitted earlier, the most expeditious procedure would be to examine one by one the six articles in respect of which the Israeli representative had suggested that the difficulty could be removed.
After a brief exchange of views,
Mr. HOGAN (Secretary to the Committee) said that the proposed definition which was to form the second paragraph of article 10 read, as so far modified: "the phrase 'aliens in the same circumstances' means aliens with the same time limit and other conditions as are required of other aliens for the enjoyment of the same privileges."
Mr. HENKIN (United States of America) thought that the words "time limit" were not clear. He would work out a final text and suggested that in the meantime the Committee proceed to consider the remaining five articles in question.
It was so agreed.
Mr. JUVIGNY (France) requested that, as indication, the explanation of the phrase "in the same circumstances" should contain a definition of "residence" along the lines suggested by the Israeli representative.
The CHAIRMAN noted that the English text of article 12 contained the words "lawfully in their territory" which could be retained while deleting the word "résidant" from the French text.
Mr. JUVIGNY (France) pointed out that a State might grant, under a labour agreement, to the nationals of one or even two other States extremely favourable treatment, equivalent to that enjoyed by its own nationals, and subject to no residential qualification whatsoever. In such a case it was clear that the present text of article 12 would be tantamount to granting a refugee the same treatment as a national.
He was not in a position to say what stand his Government was likely to take on that text, which had highly important economic, financial and other implications. He therefore requested that his reservations be included in the summary record of the Ad hoc Committee's proceedings.
Mr. HENKIN (United States of America) thought that with regard to article 12 a case could be made out for requiring some residential qualification. He would not propose any form of words himself, but merely pointed out that the International Labour Organisation's Convention on Migration for Employment, on which article 12 had been modelled, employed the words "lawfully resident". If, however, the French Government wished to make the conditions of residence more stringent, it might propose the phrase "habitually resident" rather than a phrase which would introduce complications.
Mr. JUVIGNY (France) thought that the suggestion made by the United States representative might perhaps facilitate the accession to article 12 of certain States which had expressed serious reservations concerning it. He had in mind particularly Italy and Austria, which were faced with a depression in regard to the labour market. The retention of the words "résidant régulièrement" and the adoption of corresponding English wording would facilitate the accession of those States or would at any rate reduce the reservations which they intended to submit to the present text.
Sir Leslie BRASS (United Kingdom) thought that it was impossible to make the two texts completely identical. The phrase "lawfully resident" in English was ambiguous, and he therefore suggested the words "lawfully resident (temporarily or otherwise)". Perhaps the word "temporarily" would cover rather more than was meant in the French text, but the only other solution would be to include a page-long definition of residence.
Mr. JUVIGNY (France) said he was not unmindful of the value of the United Kingdom representative's suggestion; but he questioned the advisability of supplementing two expressions which were already said to be ambiguous by other expressions which might themselves be ambiguous, either for certain Anglo-Saxon countries or for certain Latin countries. He would add that the expression "lawfully resident" had after all appeared in English in precious Conventions and that it had therefore enjoyed legal sanction for a long time. International terminology, and possibly practice, therefore existed, and there might well be no great danger in confirming them by repeating the formula in question.
The CHAIRMAN reminded the Committee that in the Conventions of 1933 and 1938 the words "résidant régulièrement" had been translated by "regularly resident".
Mr. HENKIN (United States of America) said that the United States Government had not been a party to those Conventions, and he for one would not have accepted that translation. He suggested that the Committee attempt to reach an approximation to the sense required in non-legal terms. The United Kingdom representative had made such an attempt but the words "lawfully resident (temporarily)" might perhaps be considered a contradiction in terms.
Mr. WEIS (International Refugee Organization) wondered whether the words "sojourning lawfully" which had been employed in former conventions could be used in the English text.
Mr. ROBINSON (Israel) wondered whether the English-speaking representatives could not accept "regularly resident", since those words had been employed in former conventions as a translation of "résidant régulièrement" and since he understood that in Canada where both English and French were official languages the two phrases were considered equivalent.
Mr. HENKIN (United States of America) thought that "regularly resident" would involve all the difficulties of both "lawfully resident" and "habitually resident". He would prefer one or the other of those last two phrases.
Mr. WINTER (Canada) confirmed that in his country the words "legally resident" could apply to a short or a long period. He understood that in the United States of America the world "resident" could not mean "staying for a short time".
Mr. JUVIGNY (France) said that was the very reason for retaining the words "lawfully resident" in the text. He had already pointed out that they would be regarded as a sort of safeguard for certain countries, which, so far as wage-earning employment was concerned, could hardly ratify the Convention without serious reservations, and that they would enable those countries to reduce their reservations to a minimum in a matter of vital concern to the refugee.
Mr. HENKIN (United States of America) thought that as reservations regarding that article would in any case be made by the countries concerned, particularly France and Belgium, the English text might be maintained as it stood and the word "résidant" omitted from the French text. The French and Belgian Governments could then state in their reservations that they would apply the article with the addition of the word "résidant".
Mr. JUVIGNY (France) did not wish to confine the study of the article to its application to France alone, but would like to explain that the French delegation's other reservations referred only to one part of paragraph 2, and not to paragraphs 1 and 3. Hence, the problem as a whole remained, at any rate as far as France was concerned.
Mr. HENKIN (United States of America) proposed that the Committee take in turn the several articles containing the disputed terms and decide whether to use the English or the French version. When a decision had been reached in favour of one language, the other language could be made to conform.
It was so agreed.
Mr. ROBINSON (Israel) considered it preferable to leave the English version of article 13 as it was and omit the word "résidant" from the French.
Mr. JUVIGNY (France) agreed with the Israeli representative, since the issue was the treatment of aliens generally. But it had been decided to keep the work "lawfully" in regard to the right of association, possibly for symbolic reasons only. He suggested that the word be kept in the present article too.
The Committee decided to maintain the English text of article 13 and delete the word "résidant" from the French text.
The Committee also decided to maintain the English text of articles 14 and 16 and delete the word "résidant" from the French text.
Mr. JUVIGNY (France) said that the problem as regards article 18 was rather more complex, since it was not a question of most-favoured-nation treatment, or even of the treatment of aliens generally, but of the treatment of nationals. He asked whether, that being so, it was formally proposed to delete the word "résidant".
Mr. WEIS (International Refugee Organization) thought that the English version should be retained and the word "résidant" be deleted from the French version, as, if it were retained, it might be interpreted by the authorities of the country applying the Covenant to mean that a residence qualification was required. Refugees, by reason of their refugee character, would not normally fulfil qualifications of local residence which were sometimes to be found in laws dealing with public assistance.
Mr. JUVIGNY (France) said that, irrespective of her domestic legislation in regard to relief, France not only did not expel indigent refugees, but also admitted "residual" refugees. Hence, from a practical standpoint, there was no problem in France. He would say frankly that if the domestic law of a given country considered the concept of domicile - a very widespread notion in laws on relief - as an absolutely essential condition, and did not provide any supplementary provision for persons not domiciled in their territory, the deletion of the word "résidant" would not in any way change the problem. At the same time, whatever protection was to be given to refugees, on principle there must be no suggestion - and it was in the interests of the refugees themselves that there should be none - of their receiving more favourable treatment than nationals.
Mr. HENKIN (United States of America) thought that countries would have provisions in their regulations for public relief for nationals without residence; the same provisions would apply to refugees. Clearly better treatment could not be requested for refugees than was given to nationals. Nevertheless, however short a time a man had been in a country, if he were starving he would, or should, be given public relief or assistance. He considered, therefore, that the word "résidant" should be deleted from the French text.
Mr. JUVIGNY (France) said that in reality there was no problem in France; but in view of certain comments, for example, those of the Austrian Government, he wondered whether the deletion of the word "résidant" might not give rise to an interpretation by which Contracting States would place the financial burden of relief to indigent refugees on small localities. The problem might arise in Switzerland, for example. So as not to complicate the task, the word "résidant" might be left, though he did not make it a matter of principle. He was thinking of the number of ratifications and reservations.
Mr. HENKIN (United States of America) thought that there was point in what the French representative had said. It was to be assumed, however, that, in cases such as Switzerland, such a burden would be national and not by municipal funds.
Mr. WEIS (International Refugee Organization) pointed out that the Migration Division had thought that the present text met its requirements. He had no objection to the retention of the French text, provided the English text were also retained.
Mr. HENKIN (United States of America) said that it was impossible for both texts to be retained in their existing form.
Mr. JUVIGNY (France) thought there were two alternatives: either to say "résidant régulièrement" and "lawfully resident", or to say "lawfully" in which case "résidant" must be omitted; other wise, there would be too many complications in the translation of the various articles, and there again clarification would be called for.
A number of reservations had been made by various Governments. The example already given where a State might invoke the Convention it had signed in order to shift on to municipalities expense which it should itself bear, was not entirely hypothetical. To keep the work "resident" would provide an adequate safeguard.
Mr. HENKIN (United States of America) observed that the only comments on article 18 had been made by the Austrian and Swiss Governments. The problem referred to by the Austrian Government was not solved by the retention of the word "résidant" and a corresponding change in the English text. The Swiss Government's comment did not concern the problem.
The CHAIRMAN asked for a decision on whether the English text was to be retained in its existing form and the word "résidant" deleted from the French text.
The Committee agreed to retain the English text of article 18 and to delete the word "résidant" from the French text.
With reference to article 19, Mr. HENKIN (United States of America) pointed out that the Convention on Migration for Employment contained in the French version the words "qui se trouvent légalement".
Mr. JUVIGNY (France) thought it would be better to say "régulièrement", since "légalement" seemed too decidedly legal, whereas the regulations were of course issued by the administrative authorities, and were not in the nature of laws.
Mr. HERMENT (Belgium) thought that the advantages accorded in the text were too important for the idea of lawful residence to be discarded.
Mr. JUVIGNY (France) had no wish to under-estimate the value of the Convention on Migration for Employment, but its scope in positive international law must not be exaggerated. It was a recent convention. When reference had been made to the Universal Declaration of Human Rights, certain representatives had pointed out that the text had not yet been ratified.
Mr. WOLF (International Labour Organisation) said that although the Convention had not been ratified, it had been adopted unanimously.
The International Labour Organisation had come up against the same difficulty as the Committee had experienced during the last few days, and the word "resident" had been deleted for the same reasons. The practical formula "lawfully within" had been adopted; "lawfully" was understood to mean in conformity with the legal provisions enacted to bring the Convention into force.
Mr. WEIS (International Refugee Organization) did not think that the problem presented by the wording in article 19 was serious, as the rights referred to were applicable only to residents, and were granted under other conditions, such as the payment of a certain number of contributions. It was the intention of the Committee to permit refugees to receive those rights, provided they fulfilled the various other conditions required. Clearly they should enjoy them regardless of a residence qualification.
Mr. HENKIN (United States of America) suggested that the word "résidant" in the French text of article 19 be deleted and that the English text be maintained without change.
It was so agreed.
Mr. JUVIGNY (France) recalled that the scope of article 21 had already been much discussed. At present, the question did not arise in France. Reference had been made to the problem that would be raised by a large influx of refugees, to whom temporary restrictions on freedom of movement would be applied for reasons of health. No doubt the words "applicable to aliens generally in the same circumstances" would be cited against him, but as the measures were of a special nature by reason of the persons they applied to, it might be thought that in that case the disparity between the provisions of the Convention and the measures which would be taken might cause a difficulty.
Mr. HENKIN (United States of America) did not think that the problem really concerned article 21, but article 3, for discrimination always meant discrimination between individuals in the same circumstances.
Mr. JUVIGNY (France) replied that in the example he had mentioned there was only one category of persons in that situation. Indeed, there would be no reason to apply such measures to aliens generally and to other refugees. He asked whether the article would limit the possibility of adopting such measures.
The CHAIRMAN thought that a similar situation might arise in the case of a natural catastrophe, when fleeing people crossed a frontier. Such aliens were not refugees in the usual sense of the word. Article 21 would not apply to the case mentioned by the French representative.
Mr. JUVIGNY (France) observed that in that case no problem arose, since the measure was applicable to aliens generally. The problem only arose if the measure in question applied only to certain aliens, but he would not press that point.
Mr. ROBINSON (Israel) said that the hypothetical case mentioned by the French representative would be covered by the second paragraph of article 26, not by article 21.
Mr. HENKIN (United States of America) pointed out that the second paragraph of article 26 was applicable only in the case of refugees not lawfully admitted. He agreed with the Chairman's view.
The Committee agreed to delete the word "résidant" in the French text of article 21 and to maintain the English text unchanged.
The Committee also agreed to delete the word "résidant" from the French text of article 27, and to maintain the English text unchanged.
The meeting rose at 6.25 p.m.