Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Nineteenth Meeting Held at Lake Success, New York, on Wednesday, 1 February 1950, at 11 a.m.
Chairman: Mr. Leslie CHANCE Canada
Mr. CUVELIER Belgium
Mr. GUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. ORDONNEAU France
Mr. ROBINSON Israel
Mr. KURAL Turkey
Sir Leslie BRASS United Kingdom of Great Britain and Northern Ireland
Mr. HENKIN United States of America
Mr. PEREZ PEROZO Venezuela
Representative of a specialized agency:
Mr. WEIS International Refugee Organization (IRO)
Consultants from non-governmental organizations:
Mr. STOLZ American Federation of Labor (AF of l)
Mr. LEWIN Agudas Israel World Organization
Mr. BERNSTEIN Co-ordinating Board of Jewish Organizations
Miss BAER Women's International League for Peace and Freedom, International League of the Rights of Men
Mr. HUMPHREY Director of the Human Rights Division
Mr. HOGAN Secretary of the Committee
INTERNATIONAL STATUS OF REFUGEES AND STATELESS PERSONS: DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/AC.32/2, E/AC.32/L.3) (continued)
Article 23 (Administrative assistance)
1. Mr. ORDONNEAU (France) noted that the French text (E/AC.32/L.3, article 18), which included a reference to the High Commissioner for Refugees, would leave each State free to decide whether administrative assistance should be furnished by its own national authorities or by an international authority, if such authority existed. It was not intended to impose duties upon the High Commissioner nor to give him exclusive competence in the matter.
2. Mr. HENKIN (United States of America) feared that a reference to an international authority might create difficulty. The High Commissioner had not yet been appointed, the nature of his functions were not known, and it was still not clear whether he would administer them through offices in various countries or through a central agency. There was a danger that some countries might seek to relieve their own agencies of administrative responsibility by referring refugees to an international authority which had in fact not yet been established, and might not ultimately be required to deal with the matters discussed in article 23. In order to eliminate the risk of leaving refugees unprotected, it seemed advisable to make it mandatory upon Governments to assume responsibility except when an international authority functioning in their territory was in a position to do so. In the latter event, States should retain the option of accepting the authority of an international organ.
3. Mr. Henkin offered several drafting amendments designed to clarify that point.
4. Sir Leslie BRASS (United Kingdom) felt that it was beyond the competence of the Committee to attribute functions to the High Commissioner or to imply that his office would exercise functions in various countries. Such exercise was not contemplated by the United Kingdom Government. The point raised in the French text might be noted in the Committee's report with the comment that if the General Assembly, in defining the functions of the High Commissioner, should decide that his office could deal with administrative assistance to refugees, it might authorize it to do so by arrangement with individual Governments. In any case, the question of administrative assistance to refugees did not constitute a problem in the United Kingdom, and the provisions in article 23 did not appear applicable to that country.
5. The CHAIRMAN, speaking as the representative of Canada, and Mr. PEREZ PEROZO (Venezuela) supported the solution proposed by the United Kingdom representative.
6. Mr. WIES (International Refugee Organization) observed, in connexion with the applicability of article 23, that it depended upon the legal system in force in a given country. In common law States, like the United Kingdom, no new legislation or administrative procedures were required to protect refugees. In other countries, however, like France or Belgium, special provision had to be made.
7. Mr. CUVELIER (Belgium) thought that the difficulty might be resolved by a vague reference to the competent representative of an international body or a phrase such as "national or international authority", rather than an explicit mention of the High Commissioner.
8. Mr. ROBINSON (Israel) pointed out that the language of article 23 was mandatory, rather than permissive. It placed upon Governments the obligation to furnish administrative assistance to refugees who could not obtain it through normal consular channels since they no longer enjoyed the protection of their country of origin. In some countries, such as the United Kingdom, no special machinery had been set up. In others, however, special offices had been established for that purpose. In fact, the provision in question was based on the practice of Belgium and France. Mr. Robinson suggested a drafting amendment which might make the intention of the provision clear.
9. Mr. CUVELIER (Belgium) questioned the clarity of the reference made in parenthesis to consular authorities.
10. Mr. GUERREIRO (Brazil) observed that the introductory clause of paragraph 1 was sufficiently clear in that respect and proposed the deletion of the phrase "(in particular of the consular authorities)".
It was so decided.
11. Mr. CHA (China) suggested that inasmuch as refugees might have to apply to several authorities in order to secure administrative documents, the words "an authority" in the final clause of the paragraph should be in the plural.
12. Mr. KURAL (Turkey) supported that view.
13. Mr. HENKIN (United States of America) thought that the points raised by the representatives of Israel, the United Kingdom, China and Turkey might be met by some such formulation as the following:
"In all cases in which the exercise of a right by a foreigner requires the assistance of the authorities of his country and where no other provision is made for giving such assistance to refugees, the High Contracting Parties shall designate an authority or authorities which shall furnish such assistance."
14. Mr. PEREZ PEROZO (Venezuela) believed that the United States suggestion did not meet the point raised by the Israel representative and that the draft might still be interpreted as requiring a State to establish a special authority. He wondered whether the problem could not be met by a phrase to the effect that the High Contracting Parties "shall take measures as are required to provide refugees with such assistance". That wording had the advantage of leaving open the question of the precise method to be followed by signatory States.
15. Mr. CUVELIER (Belgium) observed that the word "designate" did not imply that an authority to furnish assistance to refugees was necessarily to be established; such authority or authorities might already exist in certain countries, in which case they need merely be designated. He therefore felt that the existing draft covered the point.
16. Mr. LARSEN (Denmark) thought that the phrase "recognize or designate" might cover the point at issue.
17. The CHAIRMAN, speaking as the representative of Canada, anticipated no difficulty in his own country, where in practice the Department of External Affairs might be designated as the authority contemplated in the clause under consideration.
18. Mr. ROBINSON (Israel) stated that the reference to the Arrangement of 30 January 1928 would in itself appear to make the creation rather than the mere designation of a special authority mandatory; as that was not the intention of the Committee, the reference to the Arrangement of 1928 should be deleted.
The suggestion of the Israel representative was adopted without objection.
19. Sir Leslie BRASS (United Kingdom) still entertained some doubts as to the precise scope of Article 23. He had originally assumed that the phrase "authorities of his country" referred to the refugee's country of residence, but the trend of the discussion had led him to conclude that apparently that was not the case.
20. At the invitation of the CHAIRMAN, Mr. HUMPHREY (Secretariat) drew the Committee's attention to the fact paragraph spoke of "a right by a foreigner" - and he stressed the word "foreigner" - rather than by a "refugee". Seen in that context, the word "country" referred to the country of nationality or origin.
21. Sir Leslie BRASS (United Kingdom) asked the question whether the paragraph would impose upon his Government the obligation to provide a refugee residing in the United Kingdom with documents that he might require. For example, if a Spanish refugee currently in England required a birth certificate, would the United Kingdom Government be obliged to attempt to procure the certificate for him, although in such a case the refugee might presumably obtain the desired document simply by requesting it from the Spanish Government's Registrar of Births?
22. Mr. CUVELIER (Belgium) stated that the hypothesis just mentioned by the United Kingdom representative automatically fell outside the scope of paragraph 1 which would operate only in the case of a refugee unable to secure the necessary documents from the authorities of his country.
23. The CHAIRMAN invited the representatives of Israel, France and Belgium to prepare a draft of paragraph 1 in the light of the discussion.
24. Subsequently, the three representatives submitted the following draft of Article 23, paragraph 1:
"In all cases in which the exercise of a right by a foreigner requires the assistance of the authorities of his country, the High Contracting Parties shall designate the authority or authorities, national or international, which shall furnish assistance to refugees".
25. Mr. HENKIN (United States of America) stated that while his Government was not primarily affected by the paragraph, the language still appeared to retain a certain weakness inasmuch as it might be interpreted as granting a country the right, if it so desired, to designate an international authority to furnish assistance to refugees, regardless of the wishes of the international authority concerned.
26. Mr. ROBINSON (Israel) declared that the purpose of the paragraph was to leave a choice to the Governments concerned. Obviously they could not arbitrarily designate an international body as the authority in question against its wishes. The reference to international authorities could be invoked only if an appropriate international organ existed and was willing to assume the obligation envisaged in the paragraph. Where no such organization existed, the Contracting Party would have to designate an authority to furnish requisite assistance to refugees.
27. Mr. ORDONNEAU (France) suggested that the substance of the statement of the Israel representative should be incorporated into the Committee's report in order to meet the point of the United States representative.
28. The CHAIRMAN stated that the paragraph as redrafted appeared to be generally acceptable. It would be distributed in writing for further consideration at a subsequent meeting.
29. The CHAIRMAN, speaking as the representative of Canada, proposed that the words "so far as possible" be inserted after the word "shall".
30. Mr. CUVELIER (Belgium) wondered whether it was wise to enumerate specific categories of documents in paragraph 2 and suggested that the paragraph should limit itself to a general statement to the effect that issue of the necessary documents to refugees should be facilitated by the designated authorities.
31. Sir Leslie BRASS (United Kingdom) noted that many of the documents listed in paragraph 2 were never issued in the United Kingdom and wondered why the Secretariat draft was so specific.
32. Mr. HEMPHREY (Secretariat) pointed out that the Secretariat's draft had been intended solely as a basis of discussion and as a means of drawing the Committee's attention to the problem.
33. Mr. WEIS (International Refugee Organization) stated that the list documents was to be found both in the Arrangement of 30 January 1920 and in the French Agreement of 30 January 1940 with the IRO and that it had served a useful purpose in many cases as experience had shown.
34. Sir Leslie BRASS (United Kingdom) thought that paragraph 2 appeared to have been based largely on the relevant administrative practices of a very small number of countries. He thought that it was unnecessary to incorporate its provisions into the draft convention at all. They were inapplicable to his country.
35. Mr. LARSEN (Denmark) suggested the following wording: "In so far as refugees may be required to produce documents regularly issued to foreigners by the authorities of their own countries, the authority or authorities mentioned in paragraph 1 shall deliver or cause such documents to be delivered to refugees".
36. Mr. CUVELIER (Belgium) expressed general support for that wording, but thought it should be made clear that the documents referred to were only those required in the performance of the acts of civil life.
37. The CHAIRMAN, speaking as the representative of Canada, proposed that the words "when possible" should be inserted at the appropriate place in the Danish proposal.
It was so decided.
The text submitted by the Danish representative, as amended by the Chairman, was adopted subject to drafting changes.
38. The CHAIRMAN opened the discussion on paragraph 3.
39. Mr. ORDONNEAU (France) explained that, in inserting the provision that the certificates delivered should rank as authentic documents, his delegation had intended to give them the highest possible value. On considering the type of certificates envisaged, however, he had come to the conclusion that they could not all rank as authentic documents in the accepted meaning of that term under French law. Moreover, the term might not have quite the same connotation in other countries. He therefore withdrew the French version of paragraph 3 in favour of the Secretariat draft.
The Secretariat text for paragraph 3 was adopted, subject to drafting changes.
40. The CHAIRMAN, speaking as the representative of Canada, proposed the insertion of a clause providing that the fees charged for the documents issued should not be higher for refugees than they were for nationals.
41. Mr. KURAL (Turkey) thought that the question had already been covered by the provisions of article 11.
42. Mr. CUVELIER (Belgium) supported the idea underlying the Chairman's proposal. He thought, however, that it would be difficult in practice to find a standard by which to compare the fees in question. In his opinion therefore, it would be best to leave the matter to the good faith of the Contracting Parties.
43. Mr. WEIS (International Refugee Organization) suggested that, if a clause regarding fees were to be inserted, the wording should be taken from article 3 of the Arrangement of 30 June 1928.
44. The CHAIRMAN said that the text of that article would be circulated and considered at the following meeting.
45. The CHAIRMAN said that he had received a letter from the Agudas Israel World Organization requesting permission for its representative to speak on the subject of article 24. With the Committee's consent, he invited Mr. Lewin to make his statement.
46. Mr. LEWIN (Agudas Israel World Organization) said that there were few main aspects to the problem of refugees and stateless persons. First, there was the admission of a refugee to a country where he could settle; secondly, his position had to be regularized and his rights and duties established; thirdly, there was the question of his possible naturalization; and lastly, the possibility of his being expelled before obtaining naturalization. The draft convention had thus far followed that pattern, but article 24 dealing with expulsion should logically come after the chapter on naturalization, since expulsion should be considered as an exception from the general rule of the absorption of a refugee into his country of settlement.
47. He emphasized the dire consequences of expulsion for any refugee. Return to the country of origin meant almost certain death and, as was pointed out in the Secretariat's comment to paragraph 1, there was little likelihood that any country would admit a refugee once he had been expelled from another country. Thus, he would have no alternative but to go into hiding. As an example of the type of fate awaiting refugees after expulsion, Mr. Lewin mentioned the occasion in 1946 when a whole trainload of refugees had been stopped between Hungary and Austria because they had been permitted neither to advance nor to go back.
48. According to paragraph 1 of article 24, expulsion was to be permitted if it was dictated by reasons of national security or public order. In the French draft, the words "public order" were omitted, but even so the expression "dictated by reasons of national security" was extremely broad. The Nazis might quite well have claimed that their national security had necessitated the expulsion of the Jews, although the whole world had been shocked at that brutal act. Thus, the inclusion of such a phrase would leave all refugees open to expulsion at the slightest provocation.
49. If a refugee were suspected of spying it would surely serve the interests of national security better to imprison him rather than to expel him. If he committed criminal acts, he should be punished according to the normal laws of the country. He should not, however, be additionally penalized by the terrible threat of expulsion.
50. In Mr. Lewin's opinion, the best way to safeguard both the national security and the rights of the refugee would be to state that a refugee could not be expelled save in pursuance of the decision of a judicial authority. That provision was contained in paragraph 4 of the Secretariat draft and he did not think it necessary to include the special provisions contained in paragraph 1. If the Committee decided that it was essential to mention national security, the words "on grounds of national security" could be added at the end of paragraph 4.
51. He was not quite clear as to the real meaning of paragraph 1. If the "police measures" referred to were measures ordered by the administration as opposed to the judicial authority, then the provision appeared to be in contradiction to paragraph 4. If, however, paragraph 1 referred simply to the implementation of decisions taken by the judicial authority, then it should be combined with paragraph 4.
52. Paragraph 4 of the French draft contained a very valuable idea which he thought should be incorporated into the Secretariat draft. In his opinion, paragraph 2 of the Secretariat draft should be deleted since its proper place was either in the article on admission or in that on the right of asylum.
53. In conclusion, he submitted the following re-draft of article 24 for the Committee's consideration:
"1. Each of the High Contracting Parties undertakes not to turn back refugees to the frontiers of their country of origin, or to the territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinions. (Original paragraph 3).
"2. A refugee authorized to reside regularly in the territory of any of the High Contracting Parties may not be expelled save in pursuance of the decision of a judicial authority (on grounds of national security). (Original paragraph 4).
"3. A refugee whose expulsion has been ordered shall be entitled to submit evidence to clear himself, and to be represented before the competent authority. (Paragraph 4 of the French draft).
"4. Each of the High Contracting Parties reserves the right to apply such internal measures as it may deem necessary to refugees whose expulsion has been ordered, and who are unable to leave its territory because they have not received, at their request, or through the intervention of the Government or Governments concerned or through the competent organ of the United Nations or of the non-governmental agencies dealing with them, the necessary authorizations and visas permitting them legally to proceed to another country." (Original paragraph 5).
54. The CHAIRMAN said that the Committee was well aware that article 24 was one of the most important in the whole draft convention. He thanked Mr. Lewin for his statement and assured him that the Committee would give his suggestions due consideration.
The meeting rose at 12.55 p.m.