Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Forty-First Meeting Held at the Palais des Nations, Geneva, on Wednesday, 23 August 1950, at 2.30 p.m.
Chairman: Mr. LARSEN (Denmark)
Rapporteur: Mr. WINTER (Canada)
Belgium Mr. HERMENT
China Mr. CHA
France Mr. JUVIGNY
Israel Mr. ROBINSON, Mr. JUVIGNY
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. OBLATH
International Refugee Organization Mr. WEIS, Mr. KULLMAN
Representatives of non-governmental organizations:
Category B and Register
International Co-operative Women's Guild Miss ROSSIER
Liaison Committee of Women's International Organizations Miss ROSSIER
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):
First, Second and Third Reports of the Drafting Committee on articles of the draft Convention (E/AC.32/L.42, E/AC.32/L.42/Add.1 and E/AC.32/L.42/Add.2)
The CHAIRMAN observed that the Committee had before it three reports of the Drafting Committee (E/AC.32/L.42, E/AC.32/L.42/Add.1 and E/AC.32/L.42/Add.2). He thought that the reports could be considered article by article, and that a formal vote on every article would not be necessary.
It was so agreed.
Articles 2 and 3 were adopted.
Article 4: Exemption from reciprocity
Mr. JUVIGNY (France) formally proposed that in paragraph 2, line 3 of the French text the word "étendre" be replaced by the word "accorder".
Mr. HERMENT (Belgium) agreed to that change, and further proposed that the words "in a contracting State" be inserted after the word "Where" at the beginning of paragraph 2.
Mr. JUVIGNY (France) feared that that addition might give rise to some discussion on substance. Its effect would be to limit the scope of article 4, paragraph 2. Hence, it would call for preliminary discussion.
Mr. HENKIN (United States of America) though that as the Belgian representative was willing to accept the proposal of the French representative, and since that proposal represented the intentions of the drafting group which had first drafted article 4, it would be best to agree to the substitution of the word "accorder" for the word "étendre" in the French text. No change would be required in the English text.
Mr. HERMENT (Belgium) felt that actually the first part of paragraph 2 referred exclusively to cases which might arise in contracting States. After all, it was within a State that the rights and benefits were enjoyed, irrespective of their origin.
Mr. PEREZ PEROZO (Venezuela) wondered whether some member of the Drafting Committee could explain the purpose of the words "for a certain period" in the second part of paragraph 2 of article 4. A certain period might mean six months or one year or two years.
Mr. JUVIGNY (France) 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. But it had wished to take into account the reservations with regard to the previous wording entered by many, if not the majority, of the States most interested in the matter. As it was not in a position to know what States had already fixed a definite period, it had reached agreement on that fairly flexible formula. It had done so the more readily 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. Hence the formula was only provisional, and could be changed as soon as definite information was forthcoming. If it could not be changed before the end of the current session, the formula given in the draft Convention and the explanations in the Committee's report would constitute, as it were, an appeal to the General Assembly at its next session to determine what would be a suitable period. In any case, the attitude of the Committee gave the Governments represented full scope for reservation, and allowed for any attitude that might be taken by certain States like Austria and Italy, which were not members of the Committee, but could keep in contact with it through their observers.
The compromise arrived at with regard to the formula represented a sort of gentlemen's agreement on the part of the various governments, and the Drafting Committee had reached agreement on that basis.
Mr. WEIS (International Refugee Organization) noted that article 4 in its present form provided for the maintenance of the status quo and for according a certain treatment to refugees resident in a country under certain conditions. He 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. As article 4 stood, it appeared that some refugees who would not be enjoying the rights and benefits referred to in paragraph 2 when the Convention came into force, would not be able to enjoy them at all in the future.
Mr. JUVIGNY (France) observed that the question raised by the representative of the International Refugee Organization (IRO) was entirely new. But as in most instances the rights in question were covered by special provisions embodied in the Convention, the answer to that representative's observations must be based on those particular articles.
Mr. WEIS (International Refugee Organization) welcomed the French representative's interpretation, which implied a recommendation to accord better treatment in such matters to non-resident refugees. The present position - not in France, but in certain other countries - with regard to compensation for war damage was that as a result of reciprocity provisions, refugees who had retained their old nationality could obtain compensation. So, under certain conditions, could those refugees who were nationals of allied countries; but stateless refugees could obtain no compensation at all. There seemed no justification for such discrimination, but if the French representative felt that the recommendation contained in article 8 covered the problem, a note to that effect in the report of the Committee would be sufficient.
Mr. HENKIN (United States of America) observed that in the matter to which the IRO representative had referred, the Committee had retreated to some extent form the position it had taken up in first drafting article 4. It appeared that a person who did not have the residential qualifications required under the provisions of paragraph 2 would not have the general rights based on reciprocity which he would have had according to the earlier draft. The report of the Committee should therefore include a recommendation that Governments should continue, so far as possible, to extend the broader provisions of the earlier draft to aliens generally.
Mr. JUVIGNY (France) felt that while some legal problem might arise in connection with articles 13,14 and 16, there was really no practical problem. By actual definition, the articles referred to activities which involved some measure of establishment. Hence, if the particular case mentioned by the United States representative were excluded, the problem in question had no practical implications. With regard to that particular case, as the United Sates representative had pointed out, it could be covered by a statement in the report.
Sir Leslie BRASS (United Kingdom) felt that paragraph 2 of article 4 must be interpreted in the light of paragraph 1. Furthermore, 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.
Mr. JUVIGNY (France) agreed with the United Kingdom representative and felt that it was possible to find a solution either by drafting the definition accordingly or by making specific reference to it in the report.
The CHAIRMAN felt that an attempt to redraft article 4, which had already given the Committee considerable trouble, would prolong its work indefinitely. He hoped that the present form of the article, which was apparently acceptable to the majority of the Committee, would also prove acceptable to the other forty-odd member states of the United Nations.
Articles 4 and 5 were adopted.
Article 6: Continuity of residence
Mr. PEREZ PEROZO (Venezuela) recalled his request, made during the first discussion of article 6 at the present session, that in the Spanish text of paragraph 2 the word "deportación", which introduced a complicated and irrelevant legal concept, be replaced by the word "desplazamiento".
Article 6 was adopted.
Article 7: Personal status
Sir Leslie BRASS (United Kingdom) observed that article 7 had given considerable trouble to the Drafting Committee. It had finally been agreed that the article did not require rights previously acquired by a refugee to be recognized by a country if its law did not recognize them on grounds of public policy 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 and 8 were adopted.
Article 9: Article rights and industrial property
Mr. JUVIGNY (France) wished to know why the word "patents" had been omitted. He wondered whether it had been done accidentally or deliberately.
Mr. HENKIN (United States of America) thought that though a reference to patents had not been included by the experts who had originally drafted article 9, the symbol "etc." had been intended to cover them. He felt, however, that patents were sufficiently important to merit a separate mention preferably between the words "models" and "trademarks".
The CHAIRMAN felt that such an insertion would be illogical, since article 9 made no reference to the means of affording protection. In English a "patent" was a means of protecting an invention, and the words "protection of industrial property" therefore covered patents.
Mr. HENKIN (United States of America) wondered why in that case trademarks had been separately mentioned.
The CHAIRMAN said that trademarks were mentioned because they were an object of protection.
Sir Leslie BRASS (United Kingdom) added that a patent was a method of protection, and not the thing protected. In the case of a trademark, it was the registration which afforded protection and in the case of an invention it was the patent.
Mr. ROBINSON (Israel) wondered why the symbol "etc." did not appear in the second line of the French text after the word "commercial".
Mr. HENKIN (United States of America) felt that the words "such as" in thee first line made "etc." redundant in the English text; it should be deleted there rather than inserted in the French text.
With regard to another issue, he did not wish to re-open the struggle, lost in the Drafting Committee, to insert the word "habitually", but noted for the purposes of the record that the United States delegation understood the word "resident" in article 9 to mean "habitually resident".
Article 9 was adopted subject to the deletion of "etc." from the English text and the addition of a comma n the French text after the word "industrielle".
Article 10: Right of association
Mr. WEIS (International Refugee Organization) noted a slight discrepancy, which had admittedly also existed in the text adopted at the first session, between the English and French versions of article 10. He referred to the words "refugees lawfully in their territory" and "tout réfugié qui réside regulièrement sur leur territoire".
Mr. HENKIN (United States of America) had understood the phrase "lawfully in their territory" to apply to refugees who were not legally resident. He was not in a position to suggest any change in the French text, and considered that it might remain unchanged so long as French-speaking representatives understood the idea it expressed in the same way.
Mr. WEIS (International Refugee Organization) agreed that the French and Belgian representatives were best qualified to propose any necessary changes, but suggested tentatively that the words "qui séjourne regulièrement" or" qui se trouve regulièrement" might be preferable to "qui réside regulièrement".
The CHAIRMAN felt that the question was one of drafting. Nevertheless, the Committee must be careful not to adopt a French text differing from the English text, which had regularly formed the basis for discussion. The French text must be changed if there was any danger that it might appear to have a narrower application than the English.
Mr. JUVIGNY (France) recalled that the question raised by representative of IRO had already been discussed at great length at the first session. In view of the fact that agreement had been reached on that translation, he felt that nothing was to be gained by re-opening the discussion.
Mr. HENKIN (United States of America) stressed that the essential question was whether the discrepancy between the two texts involved any difference of substance. English-speaking representatives understood the words "refugees lawfully in their territory" to mean anyone lawfully in the territory, whether legally resident or not. If French-speaking representative understood the corresponding phrase in the French text in the same way, no change would be needed.
Mr. HERMENT (Belgium) though that the words "résidant régulièrement" were sufficiently comprehensive and should be retained, provided, of course, that they were an accurate translation of the English words "lawfully in their territory".
Mr. HENKIN (United States of America) noted an inexplicable change which appeared to have crept into article 10. In place of the words "the most favourable treatment accorded to nationals of foreign countries", which had been adopted at the first session and again, he thought, during the present session, there appeared in document E/AC.32/L.42 the words "the most favourable treatment accorded to aliens generally".
The CHAIRMAN wondered whether the Secretariat could enlighten the Committee as to the source of the change.
Mr. HOGAN (Secretary to the Committee) said he had understood that a Belgian proposal to replace the words "nationals of foreign countries" by the words "aliens generally" had been adopted.
Mr. HENKIN (United States of America) agreed that such an amendment had been put forward by the Belgian representative. It had, however, been rejected.
Mr. HERMENT (Belgium) said that to his regret he would have to submit his amendment again formally, since if article 10 were adopted in its present form his Government would be obliged to make reservations.
Mr. HENKIN (United States of America), while considering that the Belgian representative was within his rights in asking for a vote, recalled that the representative of the International Labour Organisation had asked the Committee to provide for "national treatment" for refugees, particularly with regard to the right to join trade unions. Since some other representatives had wished to provide for even less favourable treatment than that accorded under the original text of article 10, the original text had been retained as a compromise, to which the United States delegation had agreed, though preferring the International Labour Organisation's proposal. He could not accept the proposed change in the opposite direction, which would affect in particular the rights of refugees with regard to trade unions.
The CHAIRMAN put to the vote the proposal that the words "the most favourable treatment accorded to nationals of foreign countries" in Article 10 be replaced by the words "the treatment accorded to aliens generally".
The proposal was rejected by 6 votes to 5 with no abstentions.
Mr. CHA (China), explaining his vote in favour of the proposal, recalled that he had spoken for it when it had first been put to the vote.
Articles 10 and 11 were adopted.
Article 12: Wage-earning employment
Sir Leslie BRASS (United Kingdom) called attention to a misprint in the text of article 12 in document E/AC.32/L.42. In the fourth line of the second paragraph, the words "Contracting States" should be in the singular, as in the text adopted at the first session.
Mr. CHA (China) thought that in the second line of the first paragraph the words "nationals of a foreign country" should by replaced by the word "aliens".
Mr. HENKIN (United States of America) reminded the representative of China that at its first session the Committee had chosen the formulation "nationals of a foreign country" because nationals of foreign countries enjoying most favoured treatment were granted the right to engage in wage-earning employment by virtue of their nationality, rather than in their capacity as aliens.
He wished to suggest, while he had the floor, that for the sake of uniformity the Secretary, while checking the text of the draft Convention, might consider inserting the words "in the same circumstances" at the end of article 10.
The CHAIRMAN felt that it was for the Committee rather than for the Secretariat to draft the Convention. There could be no objection to the Secretariat inserting commas or other punctuation where necessary, but it should not make changes of substance. If the United States representative wished to insert the words "in the same circumstances" in article 10, a formal proposal would be necessary.
Mr. HENKIN (United Stated of America) had no objection to making such a formal proposal, which might also be necessary in the case of other articles. He had intended only to suggest that the Secretariat in reviewing the draft Convention before the final reading might call attention to the necessary changes where the Committee had inadvertently failed to express its own intentions.
Mr. CHA (China) was not convinced by the reasons given by the United States representative for retaining the words "nationals of a foreign country" in article 10. If nationals of foreign countries were aliens, why not say so? Perhaps the representative of the Legal Department could say whether the reasons given by the United States representative were cogent.
The CHAIRMAN, reverting to the United States suggestion that the Secretariat add the words "in the same circumstances" to article 10, said he hoped that the Committee at its meeting the following day would be able to read the entire draft for the second time. Perhaps, too, the Chairman, in collaboration with the Secretariat, might study the French and English texts after the end of the session to ensure that there were no discrepancies. He did not, however, think that Secretariat should be given a blank cheque to make such important substantial changes as the proposed insertion. He invited the Committee to return to the consideration of article 12.
Mr. JUVIGNY (France) repeated the reservations which his Government had made with respect to certain portions of article 12 (E/AC.32/L.40, page 43).
The CHAIRMAN, speaking as the representative of Denmark, noted that the Danish Government might have to make reservations with regard to article 12 and the two following articles.
Sir Leslie BRASS (United Kingdom), while feeling that the reservation which his Government intended to make with regard to article 12 (E/AC.32/L.40, page 44) had been sufficiently indicated at the first reading, mentioned it again because the representatives of France and Denmark had also mentioned the reservations which their Governments would make.
Article 12 and 13 were adopted.
Article 14: Liberal professions
Mr. HERMENT (Belgium) asked that the word "résidant" should be inserted between the words "réfugié" and "régulièrement" in the first line.
Mr. GIRAUD (Secretariat) pointed out that the words should be "se trouvant", if the French text was to coincide with the English text.
The CHAIRMAN said that when article 10 had been discussed earlier, nobody had been aware of the difference in substance between the English and the French text. Countries which had to translate the draft into their own languages would translate differently according to whether they took the French or the English text. For that reason, he thought that the French should preferably be "se trouvant", even if such an expression were not used in legal French.
Mr. HERMENT (Belgium) was prepared to accept the words "se trouvant", which in any case accorded better with the more restrictive interpretation which it was desired to give to that article.
Mr. JUVIGNY (France) still preferred the words "résidant regulièrement", since the words "se trouvant" were not used in legal terminology, and, moreover, implied an element of fortuitousness. He felt that the words "résidant regulièrement" were an accurate translation of the English words "lawfully in their territory". If, however, it was desired to allow for the particular case mentioned by the United States representative, a wording could perhaps be found which would make it possible for the right referred to in article 14 to be accorded to such persons. He felt, however, that there was no point in re-opening discussion on a question of terminology which had been settled at the start of the proceedings, merely for a type of case which occurred very rarely.
Mr. HENKIN (United States of America) was still left with the impression that a difference existed between the English and French versions. The expression "lawfully in their territory" included persons entering a territory even for a few hours, provided that they had been duly authorized to enter. The Committee had intended that such should be the meaning, and it was not conveyed in the French. He would therefore prefer the expression "se trouvant".
The CHAIRMAN thought that the French expression created a distinction between residence in a territory and non-residence therein, whereas the English version referred solely to presence in a territory. As the Covenant would be ratified by many Governments, it was essential that there should be no ambiguity.
Mr. WEIS (International Refugee Organization) thought that the question depended upon whether the draft Covenant would contain a definitions article. If there were such an article, the English and the French versions would be defined and the meaning clearly brought out. If there was not a definitions article, however, he proposed that the word "séjournant" be used instead of "résidant".
The CHAIRMAN instanced, as an example of the contradiction that might arise between the two texts, the case of a person travelling through a country on his way back to his own country. According to the English text, he would be lawfully in the territory of the country through which he was passing, and the article would apply; according to the French text, however, he would not be lawfully resident in that country, and the article would not apply.
Mr. JUVIGNY (France) said that example just mentioned showed how thoroughly academic the discussion had become. The purpose of the Convention was to protect refugees residing in foreign territory, not merely staying there for a few hours. He still felt that it was unnecessary to introduce into a legal text an expression like "se trouvant", which had no very precise meaning in law, simply to cover one or two exceptional cases.
Mr. GIRAUD (Secretariat) pointed out that there was a fundamental difference between the expression "se trouvant" and "résidant". The word "résidant" implied permanence. It was not for him to give his views on the substance of the matter, but he reminded the Committee that it was important to use expressions which had precisely the same meaning in both the French and the English texts.
Mr. HENKIN (United States of America) said that the two versions must obviously be harmonized. Either the French version or the English version could be retained, but his delegation wished the Convention to cover all refugees for however short a time they were lawfully in a territory. It accordingly would prefer the English version to be adopted, and the French translated accordingly.
Mr. KAHANY (Israel) suggested that the word "résidant" be replaced by "séjournant".
The CHAIRMAN said that he had been of the opinion that the French and Belgian representatives had agreed at the previous session of the Committee to accept the meaning conveyed by the English version. He accordingly appealed to them to accept either the word "séjournant" or the words "se trouvant", in order not to re-introduce a question of substance.
Sir Leslie BRASS (United Kingdom) supported the Chairman.
Mr. HERMENT (Belgium) feared that the General Assembly might ask the Ad hoc Committee why the expression had been changed. Some explanation would be necessary and the Committee would be unable to provide it.
Mr. HENKIN (United States of America) said that, but for the French representative's remarks, he would have suggested the use of the word "sojourning" in the English version and the word "séjournant" in the French version, with an explanation in the Committee's report of why the wording had been changed.
Mr. JUVIGNY (France) wished to repeat that the fundamental aim of the Convention was to protect refugees who settled in a country for some time. But the present discussion was mainly concerned with the protection of certain persons who might be obliged to make short stays in a foreign territory, that was to say, with exceptional cases, whereas only normal cases should be provided for. He therefore supported the text prepared by the Secretariat, which the Committee had already accepted after protracted discussion.
Mr. HENKIN (United States of America) pointed out that French representative now admitted that there was a slight difference in meaning between the two versions. He could not agree, however, that the difference was largely of academic interest. The alternatives facing the Committee were, either that the decision in favour of the English text adopted at the first session should be rescinded, or that the two versions should be submitted for decision to the General Assembly. Clearly it was undesirable that the differing versions should be referred to the General Assembly; he accordingly proposed that a decision be taken on the substantive question of which version should be adopted.
Mr. JUVIGNY (France) pointed out that the expression "résidant regulièrement" did not imply a lengthy stay, otherwise the expression "residance continue", which had been used as the title of another article, would have been employed.
He also pointed out that the expression "all refugees" had been used without qualification in many cases, particularly with regard to the fundamental rights for which no residence, however short, was required. The only articles in which the expression "lawfully resident" was used were precisely those articles which referred to activities which implied, if not a long or continuous stay, at least one of more than a few hours.
Mr. HENKIN (United States of America) did not think that the question of continuity of residence touched the heart of the problem, as it referred to uninterrupted residence, not to duration of residence. The term "all refugees" was inadequate also, as it included people unlawfully in territories. A clear distinction existed in English between the concept of persons lawfully in a territory and that of persons habitually in residence there. An individual "lawfully resident" in his country, for example, in the sense used in article 23, would not include a person who had arrived there for a three-months' visit. The difference between the two versions would leave a gap and create confusion, and an attempt must be made to harmonize them.
Mr. PENTEADO (Brazil) agreed with the United States representative that there existed a difference in substance between the two versions. He proposed that the Committee decide on the question of substance, and that, when it had done so, it leave the drafting to the Drafting Committee.
The CHAIRMAN recalled that at the previous session the Secretariat had proposed the use of the words "lawfully resident"; they had, however, been changed after discussion to the version now appearing in article 14.
Mr. WEIS (International Refugee Organization) pointed out that, while the difference between the French version and the English version would not be of great significance in article 14, it would have an adverse effect on the treatment accorded to refugees under article 18.
Mr. HENKIN (United States of America) supported the Brazilian representative's proposal that the Committee first decide on the substance of the question.
The CHAIRMAN quoted, as an example of the difficulties that the difference in the two versions would create even under article 14, the case of a German refugee lawyer who periodically travelled from Sweden to Denmark to give consultations in a hotel for a period of three hours. If the French version were adopted, that lawyer would be affected adversely, as also probably would artists giving concerts and scientists giving lectures. The difficulties raised were therefore not academic, at least in the case of refugees living near a frontier.
He did not consider, however, that a decision on the particular question under discussion should be taken immediately, as a solution might be found before the end of the session. He proposed, therefore, that the question be deferred for further consideration.
Sir Leslie BRASS (United Kingdom) supported the Chairman's proposal.
Mr. PENTEADO (Brazil), in view of the Chairman's proposal, withdrew his own.
The Chairman's proposal was adopted.
Article 14 was provisionally adopted.
Article 15: Rationing
Mr. HENKIN (United States of America) said that some of the articles did not specifically indicate to which refugees they applied. He presumed that the mention of "refugees" without any qualifying phrase was intended to include all refugees, whether lawfully or unlawfully in a territory.
The CHAIRMAN said that the United States representative's presumption was correct.
Mr. WEIS (International Refugee Organization) asked why the unorthodox terminology "on the same footing" was used in the article instead of the usual "in the same circumstances".
Sir Leslie BRASS (United Kingdom) explained that the expression "on the same footing" incorporated the notion in the expression "in the same circumstances". If a national were passing through a town for a day and received a day's rations, so would a refugee.
Mr. HENKIN (United States of America) said that the expression also took account of the possibility of different rations for different categories of people, for example, for children. The words "in the same circumstances" were intended to refer principally to the state of sojourn; the words "on the same footing" referred also the other circumstances. He had no particular brief for the use of such a wording, but he did not think that any change was required in the article.
Mr. CHA (China) said that his Government, when it had issued rationed goods to refugees, had allowed them a larger ration of sugar and flour. He hoped that the use of the words adopted would not mean that Governments would not give rations to refugees in accordance with their needs, even if such rations were larger than those given to nationals.
Articles 15 and 16 were adopted.
Article 17: Public education
Sir Leslie BRASS (United Kingdom) proposed that to improve the English, the words "as regards" be replaced by "with respect to such matters as".
Mr. HENKIN (United States of America) though that the various drafting questions should be referred to the Drafting Committee.
It was so agreed.
Articles 18,19,20 and 21 were adopted.
Article 22: Identity papers
Article 22 was adopted, with the substitution in the French text of the heading "Pièces d'identité" for the heading "Cartes de légitimation".
Article 23: Travel documents
Mr. HENKIN (United States of America) thought that a phrase could be added at the end of the first paragraph in accordance with a suggestion made by the IRO representative at a meeting of the Drafting Committee.
Mr. WEIS (International Refugee Organization) said that he had not formulated a draft to embody his suggestion. If such a recommendation were to appear in the article, it should be to the effect that Contracting States should give sympathetic consideration to persons resident in countries where they were unable to obtain travel documents.
Mr. HENKIN (United States of America) proposed that the additional clause should read, "and should give sympathetic consideration in particular to applications for travel documents from refugees unable to obtain such documents in the country of their residence". Such an amendment would cover cases where the inability was due to the countries not being Contracting States, as well as to other causes.
Sir Leslie BRASS (United Kingdom) asked whether such amendment would enable a person in a country to apply for travel documents to his own country, for example, in order to travel from that country to his country or to anther country.
Mr. HENKIN (United States of America) said that the article referred to a refugee lawfully resident in a territory. Under the recommendation, if a person were in the United Kingdom, for example, he could, though lawfully resident elsewhere, apply to the United Kingdom for travel documents. If issued, the documents would have to be recognized by other States, and would give to refugees only the right of return to the State by which they were issued.
Mr. WEIS (International Refugee Organization) supported the United States representative's proposal. If the principle was accepted the Drafting Committee might be asked to prepare an acceptable test.
The CHAIRMAN proposed that the question be referred to the Drafting Committee.
He pointed out that the expression "lawfully resident in" had been translated into French in the same way as the expression "lawfully in". Whatever the solution to the question of terminology raised under article 14(1), it should be borne in mind that two different concepts in English had been rendered into French by the same phrase.
The Chairman's proposal was adopted.
Schedule to article 23
Paragraphs 1 to 5 were adopted without comment.
The CHAIRMAN said that he was not particularly satisfied with paragraph 6(3), but would accept it if the Committee was agreed upon it.
Mr. HENKIN (United States of America) also felt that paragraph 6(3) was unsatisfactory. The Drafting Committee had included it because it felt that it had been the opinion of the Committee that it should be inserted, but would have preferred that it should be deleted. He proposed its deletion.
The CHAIRMAN suggested that the question of the deletion of paragraph 6(3) be deferred until a final draft of article 23 had been prepared.
It was so agreed.
Paragraphs 7 to 12 were adopted without comment.
The CHAIRMAN said that, for the reasons he had given during the first reading, he would propose the deletion of the final clause from the first sentence of paragraph 13(1).
Mr. HENKIN (United States of America) said that the existence of that clause weakened, if it did not destroy, a refugee's right to return to a country which had issued a travel document to him. In some countries a visa did not constitute a right to enter, but merely the right to apply for entry. If the Committee decided not delete the clause, he considered that it should be re-drafted to explain exactly what was intended, namely, that the refugee should have a right to return, and would propose therefore that the words "returning nationals" be substituted for the words "the bearers of duly visaed passports".
Mr. JUNIGY (France) said it was his impression that a vote had already been taken on that question during the first reading.
Mr. HENKIN (United States of America) pointed out that no vote had been taken on an amendment to paragraph 13(1), although one had been taken on the deletion of the final clause of the first sentence. He thought that the amendment was desirable, as the paragraph could not be called a return clause if it did not confer on refugees the right to return in the same way as nationals could return to their own country.
Mr. JUVIGNY (France) thought that the words "duly visaed" might be deleted, since they were the words in dispute.
Mr. HENKIN (United States of America) said that he had always interpreted the clause as referring to foreign passports with a visa. All would be well, if the reference were to national passports, but he still did not think that the words bore such an interpretation.
Sir Leslie BRASS (United Kingdom) said that the passports referred to were undoubtedly foreign passports, duly visaed.
Mr. HENKIN (United States of America) said that in that case no protection would be given to refugees if the clause were adopted as it stood. In his country and, so far as he understood, in Canada, the possession of a visa on a foreign passport did not confer an absolute right of entry into those countries.
Sir Leslie BRASS (United Kingdom) said that wherever a foreign passport was given a visa for a country, entry was almost invariably allowed to that country. Theoretically, he agreed with the United States representative, but practically he considered that the clause conveyed a great deal of meaning.
Mr. HERMENT (Belgium) said he failed to understand where the difficulty lay. As a rule, the right to return was entered in the refugee's passport. But if, for example under new regulations adopted since the issue of the passport, a return visa became necessary, there was no reason for exempting refugees from an obligation to which even nationals were subject.
The CHAIRMAN claimed that States issuing travel documents should be obliged to act on them as if they were passports presented by their own nationals. Normal aliens did not acquire with a visa the right to enter a country, and no other country could insist upon that right being accorded them.
Mr. HENKIN (United States of America) said that it would appear that a visa, in the eyes of the French and the Belgian representatives, was the equivalent of a re-entry permit; as such, it was entirely different from the visa affixed to a foreign passport by his country's authorities.
Mr. WINTER (Canada) said that visas in his country were issued by immigration officers and sometimes by consular officers or others, and did not in themselves guarantee entry into his country, although in most cases entry was permitted.
Mr. JUVIGNY (France) said that the hypothetical case mentioned by the United States representative was unlikely to arise, since sub-paragraph 1 of paragraph 13 referred to the departure and the return, not to the entry, of the refugee.
Mr. HENKIN (United States of America) thought that if the French representative's interpretation were accepted the Drafting Committee could prepare a formula acceptable to all.
Mr. HERMENT (Belgium) explained that he himself had taken part in the negotiations which had resulted in the 1946 Agreement. He had therefore always interpreted paragraph 13 as necessarily granting the right of return. In addition, he thought that a travel document which did not, at least in principle, accord the right of return would be meaningless.
After further discussion, the CHAIRMAN suggested that the question be referred to the Drafting Committee, as there was no disagreement on the intention of the paragraph.
It was so agreed.
Paragraphs 14 to 16 were adopted.
Articles 24 and 29 were adopted.
Mr. HENKIN (United States of America) pointed out that the expression "prior to apart from this Convention" had been translated into French as "indépendamment de la présente Convention". He hoped that a more literal translation could be found for the English, which conveyed shades of meaning he did not think were to be found in the French.
Articles 25 to 30 were adopted.
Article 31: Measures of implementation of the Convention
Article 31 was adopted, with the substitution in the French text of the heading "Application" for the heading "Mise en exécution de la la Convention".
Articles 32 to 34 were adopted.
The CHAIRMAN pointed out that article 35 had been omitted, article 36 had not yet been drafted, and article 37 would be left without change, mention, however, being made in the Committee's report of the difference of opinion regarding whether the Convention should come into force following the day of deposit of the second instrument of ratification or accession.
Articles 38 to 40 were adopted.
Mr. PEREZ PEROZO (Venezuela) had hoped that the Drafting Group would have taken into account the amendment he had proposed to article 5. In order to save the Committee's time, he withdrew that amendment, but he reserved his Government's right to re-submit it in the General Assembly when the question arose.
The meeting rose at 6.15 p.m.