Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Third Meeting Held at Lake Success, New York, on Friday, 3 February 1950, at 10.30 a.m.

E/AC.32/SR.23

Chairman: Mr. Leslie CHANCE Canada

Members:
Mr. CUVELIER Belgium
Mr. GUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. DEVINAT 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:

Category A:
Mr. STOLZ American Federation of Labour (AF of L)

Category B:
Mr. PERLZWEIG World Jewish Congress
Mr. BERNSTEIN Co-ordinating Board of Jewish Organizations
Mr. LEWIN Agudas Israel World Organization

Secretariat:
Mr. John HUMPHREY Director, 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 8 (continued)

1. The CHAIRMAN recalled that, when article 8 dealing with exemption from reciprocity had been discussed previously, the decision had been postponed. The time had now come to return to the articles which had been left aside and he therefore called for further discussion on article 8 of the Secretariat draft (E/AC.32/2) and article 6 of the French draft (E/AC.32/L.3).

2. Mr. HENKIN (United States of America) said that, during the earlier discussion on the article, there had been some question as to the necessity of including such a clause. He explained that the principle of reciprocity was applied generally to rights which a country was quite prepared to grant to foreigners. The purpose of making those rights subject to reciprocity was to encourage other countries to adopt an equally liberal regime towards foreigners in their territory. Naturally there was nothing to be gained by making the rights subject to reciprocity where a refugee was concerned and if the refugee was not granted exemption from the requirement of reciprocity he would be placed in an unjustifiable position of inferiority with respect to other foreigners.

3. During the previous discussion, the representative of Israel had raised the question of the position of the article. Mr. Henkin agreed that it should apply to the whole of the draft convention and should therefore be inserted towards the end of the document.

4. Mr. ROBINSON (Israel) agreed that it was essential to insert a clause on reciprocity. He was not sure, however, that the wording proposed in the Secretariat draft was really adequate. It should be remembered that the rights and privileges granted to refugees under the draft convention fell into three categories. Depending upon the nature of the right, refugees were to have, either the treatment accorded to foreigners generally, or the treatment enjoyed by national of the most favoured nation, or the same treatment as nationals of the recipient country. In his opinion, the question of reciprocity was bound to enter into all three categories of treatment. It was therefore essential to include a clause providing for exemption from reciprocity, otherwise the whole draft convention would become inoperative. Before the Committee decided on the drafting of such a clause, however, it should consider whether the clause was to apply only to the limited list of rights set forth in the draft convention or whether its scope was to extend beyond the terms of the draft convention.

5. In conclusion, he asked the purpose of the amendment contained in article 6 of the French draft (E/AC.32/L.3).

6. Mr. CUVELIER (Belgium) recalled that the French draft had originally contained a very broad definition of the term "refugee". The wording of article 6 had probably been based on that broad definition. Since the Committee had not adopted that French definition, there was no longer any reason for the amendment contained in article 6.

7. Mr. HENKIN (United States of America), replying to the representative of Israel, said that, in his opinion, the question of reciprocity could only arise in cases where the refugee was to be treated in the same way as foreigners generally. When an article specified that a refugee should be accorded the same treatment as the nationals of the country of asylum, that meant in itself that there could be no question of reciprocity. The same applied to articles which specified that a refugee should be accorded the same treatment as was enjoyed by nationals of the most favoured nation.

8. With regard to the second point raised by the representative of Israel, he thought that the clause on reciprocity should cover all rights to be granted to refugees and not only those which were actually specified in the draft convention.

9. Mr. KURAL (Turkey) thought that the scope of article 8 should be confined to the rights not already covered in the draft convention.

10. Mr. WEIS (International Refugee Organization) said that the clause on reciprocity was one of the most important in the whole draft convention. In his opinion, the clause should cover both the rights set forth in the draft convention and those not actually specified therein. He agreed with the United States representative that it was only in the cases where refugees were to be given the same rights as foreigners generally that the need for a clause providing exemption from the reciprocity requirement arose.

11. He recalled that the earlier conventions covering the status of refugees had contained a clause on reciprocity. Thus, if the new convention did not contain a similar clause, persons who had become refugees in recent years would not receive such favourable treatment as those who had become refugees before the outbreak of the Second World War.

12. Mr. CUVELIER (Belgium) agreed in principle to the inclusion of a clause on reciprocity. He emphasized, however, that refugees could not benefit from reciprocal treatment in cases where the rights or the privilege in question was granted solely as a result of an international agreement between two countries. In his opinion, article 8 referred only to internal laws and regulations whereby all foreigners were granted certain rights subject to reciprocity.

13. Mr. HENKIN (United States of America) agreed with that interpretation.

14. Mr. ROBINSON (Israel) suggested, and the Committee agreed, that that interpretation should be placed on the record.

15. Sir Leslie BRASS (United Kingdom) did not see how there could be any question of a reciprocity provision applying except in cases where the treatment of the refugee was to be the same as that accorded to foreigners generally.

16. He agreed with the representative of Belgium that the reciprocity clause could not refer to rights or privileges granted as a result of a special treaty between two countries.

17. He recalled that his Government and most of the other Governments had been unable to accept the clause on reciprocity as it had appeared in the 1933 and 1938 Conventions. The chief difficulty had been the very broad scope of the provision. It might still be necessary for his Government to reserve its position with regard to the reciprocity clause, but it would readily reconsider its attitude in the light of the discussion that had just taken place. He would not, therefore, oppose the inclusion of such a clause, but he suggested that the Secretariat draft should be replaced by the following wording:

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

18. Mr. HENKIN (United States of America) supported that wording, but remarked that the purpose of the reciprocity requirement was not generally mentioned in the relevant laws in any country.

19. Mr. WEIS (International Refugee Organization) feared that the wording proposed by the United Kingdom representative might be interpreted in a more limited sense than that of the Secretariat draft. He suggested the deletion of the word "abroad" after the word "nationals".

20. Sir Leslie BRASS (United Kingdom) agreed to that suggestion.

21. Mr. KURAL (Turkey) said that, although the reciprocity requirement might not be very important in some cases, there were occasions when it could be very vital. In his opinion, a certain amount of discretion should be left to the Government of the country concerned. He therefore suggested that the words: "Save where otherwise provided in the terms of this Convention..." should be inserted at the beginning of the article. If that proposal were not accepted, his Government would have to reserve its position with regard to the article.

22. Mr. HENKIN (United States of America) feared that the addition of the phrase suggested by the Turkish representative would, in effect, vitiate the entire clause.

23. The CHAIRMAN stated that the draft convention must reflect the aim of the Committee which was to give refugees a better and, in a sense, a privileged position. It appeared to him that the draft proposed by the United Kingdom representative accurately stated what was in the minds of the Committee members and he would therefore invite them to accept it.

24. Mr. WEIS (International Refugee Organization) thought it would be more correct to speak of granting refugees not a privileged position but one corresponding to their special status. He wondered whether the draft suggested by Sir Leslie might be improved by the deletion of the word "generally". States finding it impossible to agree to the clause could, if need be, reserve their position thereon in the draft convention.

25. The CHAIRMAN did not believe that the IRO representative's suggestion was acceptable. He purpose of the entire clause was not to take away from the refugees with the left hand what was being given to them with the right.

26. Mr. CUVELIER (Belgium) stated that he could accept the United Kingdom draft subject to his examination of the French translation, which was not yet available, and to further consideration of the exact wording of the clause in the drafting committee.

Subject to drafting changes, the Committee approved the text of article 8 proposed by the United Kingdom.

27. The CHAIRMAN announced that Mr. Perlzweig of the World Jewish Congress had requested permission to address the Committee and that he had complied with the request.

28. Mr. PERLZWEIG (World Jewish Congress) expressed his appreciation of what the Committee was doing for refugees.

29. There were three categories of persons in need of the most generous consideration by the Committee: (a) refugees, (b) persons stateless de jure and (c) persons stateless de facto.

30. The International Refugee Organization, in co-operation with the various Governments, had done excellent work for hundreds of thousands of refugees. The position was, however, different for stateless persons of both kinds. In so far as the latter were stateless de jure, they had at least the melancholy satisfaction of knowing that they could not be deported, because no country would admit them. Persons who were stateless de facto found themselves in the most difficult position of all. They were at the very bottom of the scale of privileges.

31. While a very few persons in that category might prefer to retain their present status in the hope of some day returning to their country of origin, following a change of regime, no such desire motivated the overwhelming majority of persons stateless de facto, and Governments should be requested to do their utmost to facilitate the assimilation of such persons. He realized that what was involved in most cases, was a problem of local legislation, which could not readily be settled by international action. He would, however, urge the Committee to be as generous as possible towards people whose present plight was usually a result of high-minded acts of sacrifice. They needed help with respect to consular services and naturalization. Frequently they could not obtain required documents from the Governments of their countries of origin. It would be most advantageous for them if something could be done about that aspect of the problem.

32. In connexion with the important problem of deportation, Mr. Perlzweig noted that in the United Kingdom for example, there was no legal recourse against a deportation order, the Home Secretary having discretionary power to issue such orders. He was fully aware that the Home Secretary had invoked that power most sparingly and with the utmost discretion and had, in fact, saved the lives of tens of thousands of people. While he was absolutely certain that the power would never be abused in the United Kingdom, it was still objectionable in principle that a refugee or stateless person could be expelled - theoretically, at any rate - in an arbitrary manner against which he would have no legal protection. A common procedure to remedy that defect should be established.

33. He would further urge the Committee to recommend that the draft convention should be referred directly to a special international conference rather than to the General Assembly, in order to save precious time. With the International Refugee Organization about to be terminated, time was indeed of the essence.

34. The CHAIRMAN assured the representative of the World Jewish Congress that the points he had made would be borne in mind by the Committee.

Article 10 (E/AC.32/2)

35. Mr. DEVINAT (France) stated that for reasons previously given by his delegation, his Government attached great importance to the amendment it had submitted (E/AC.32/L.3, article 8).

36. Mr. KURAL (Turkey) supported the French amendment. It was important to some countries because of its political implications. There would be difficulties if it were not included in the draft convention.

37. Mr. HENKIN (United States of America) fully appreciated the preoccupations of countries such as Turkey and France. Although hesitating to oppose any clauses desired by countries principally concerned with refugees, he would nevertheless oppose the French amendment because he regarded it as undesirable to include in a United Nations document a clause prohibiting political activities - a very broad and vague concept indeed.

38. Perhaps the points raised by the French and Turkish representatives were already met in the clause recognizing the right to expel refugees for violations of public order. While "public order" was likewise a vague term, and one not to be invoked indiscriminately, it would probably cover most of the cases envisaged by the French amendment.

39. As Mr. Henkin had noted before, the draft convention could not confer any rights on Governments. In the absence of a specific clause on the subject, they would still have the right to restrict political activities of refugees as of any other foreigners. On the other hand, the inclusion of the clause might imply international sanction of such a restriction. The possibility of such an interpretation was undesirable, and, consequently, he could not favour the French amendment.

40. The CHAIRMAN, speaking as the representative of Canada, fully agreed with the representative of the United States.

41. Mr. ROBINSON (Israel) thought that the objective of the French amendment had already been accomplished - and in a positive formulation - by the article on the right of association. In its present form the French amendment might be construed as discrimination against refugees vis-à-vis other foreigners.

42. Mr. KURAL (Turkey) stated that the article dealing with the right of association was not specific enough and could be interpreted as granting refugees an untrammelled right to political activities. Nor did he think that the cases he had in mind would be satisfactorily covered by the article dealing with the right of expulsion. He suggested the addition of the words "and to measures taken for the maintenance of public order." To the draft proposed by the Secretariat, as a compromise formula which might be acceptable to all.

43. Mr. CUVELIER (Belgium) suggested a similar compromise formula.

44. Mr. DEVINAT (France) stated that the French amendment should not be regarded as a discriminatory measure against refugees but rather as a security measure. While it was embarrassing to favour the withdrawal of rights from a group of people, it would be better to do that than to expose that group of people - refugees - to the more drastic alternative of deportation.

45. Mr. LARSEN (Denmark) thought that article 10 was superfluous in a legal document like the draft convention which was primarily intended to protect the refugee. Paragraph 1 was unnecessary because it applied equally to all groups, whether nationals, foreigners generally or refugees and because there was no need to reiterate a State's right to see that its residents observed its laws. Paragraph 2 of the French text introduced a special provision applicable to refugees, as a group apart from other aliens, and actually sanctioned discrimination against them. Political activity on the part of any group of foreigners, whether or not they were refugees, might be considered as dangerous to the State; legally, the State was always in a position to take the necessary measure to restrict it. In the circumstances, Mr. Larsen proposed the deletion of the whole of article 10.

46. Mr. HENKIN (United States of America) also emphasized that nothing in the draft convention prohibited a State from exercising its authority in respect of the political activity of its residents. In reply to a point raised earlier by the representative of Turkey, he noted that expulsion was not inevitably the punishment for disturbance of public order. For the reasons advanced by the representative of Denmark, he supported the deletion of the article.

47. Mr. GUERREIRO (Brazil) regarded the article as somewhat superfluous. That objection was, however, of a technical nature. If some States felt that it should be included in the draft convention, he was prepared to accept it as amended by the representative of France, Belgium or Turkey.

48. Mr. CHA (China) saw no need for paragraph 2 of the French text. Nothing in the draft convention could be construed as a derogation of the sovereign right of a State to restrict political activity. On the other hand, he agreed with the representative of Turkey that refugees must be made to conform to State regulations for the maintenance of public order; the expulsion clause stated only the most severe measure which a State might invoke. Accordingly, he would retain the Turkish amendment to paragraph 1 and delete paragraph 2 of the French text.

49. Mr. CUVELIER (Belgium) pointed out that the position of some Governments vis-à-vis foreigners generally was essentially different from their attitude towards refugees. It was not too difficult to ask a foreign national to leave the country but it was often virtually impossible to expel a refugee. Different measures had to be taken for the two groups. Moreover, it had been the experience of some States that foreign nationals rarely engaged in political activity while refugees frequently did so. Paragraph 2 of the French text should be retained as a warning to refugees in their own interest.

50. Mr. KURAL (Turkey) said that a provision similar to that in the French paragraph 2 was necessary precisely in order to limit the scope of article 7, which dealt with the right of association. Moreover, since the draft convention was to be a definitive document governing the status of refugees, it might conveniently be invoked by the latter in order to sanction undesirable political activity. Every effort should be made to guard against that danger.

51. Mr. PEREZ PEROZO (Venezuela) noted that article 7 did not apply to political activity which might be carried on outside of associations. He thought that the Committee should approach the substantive question raised in article 10 from a realistic point of view. Paragraph 1 should be interpreted to mean that laws prohibiting or restricting political activity for foreigners generally would be equally applicable to refugees. While it might appear superfluous to States which placed no restriction on political activity, the retention of that clause together with the Turkish amendment would satisfy countries which found it necessary to warn refugees against engaging in such activity. Mr. Perez Perozo shared the view of the Brazilian representative in that respect.

52. After consideration of various drafting amendments, the Committee was asked to express its view on the following text of article 10:

"Refugees must conform to the laws and regulations, including measures taken for the maintenance of public order."

Article 10, thus amended, was provisionally approved.

53. Mr. DEVINAT (France) reserved the position of his Government on article 10.

54. Mr. CUVELIER (Belgium) asked the Rapporteur to note that the article, as approved by the Committee, while it did not authorize the State to restrict political activity, should not be interpreted as a limitation of its power to do so if it deemed necessary.

Article 16 and 17 (E/AC.32/L.13) (continued)

55. The CHAIRMAN recalled that the two articles had been combined to conform with the corresponding provision in the ILO Convention on Migration for Employment (E/AC.32/L.9) and that the federal clause in that Convention was to be dealt with separately.

56. Mr. STOLZ (American Federation of Labor), in connexion with sub-paragraph (b) of the new draft, reiterated his objection that accident insurance was not covered by a social security scheme in some countries. He preferred the Secretariat draft in that respect.

57. Furthermore, he thought that sub-paragraph (ii) should mention reciprocal agreements concluded between States to safeguard social security benefits for refugees. For example, a Polish refugee, working as a miner in France, should receive benefits obtained both in Poland and in France in accordance with the reciprocal agreement between the two States.

58. Mr. HENKIN (United States of America) said that the question raised by Mr. Stolz was covered in sub-paragraph (i). The "appropriate arrangements" referred to therein might add or detract from the advantages enjoyed by the refugee. However, even in the absence of bilateral agreements, his acquired rights would be safeguarded.

59. Mr. CUVELIER (Belgium) shared the view of the United States representative. A Polish miner residing in France would normally receive the insurance benefits he had accumulated in both countries, assuming there was close collaboration between the two countries in respect of insurance. However, a refugee who refused to recognize the government of his country of origin could not expect to enjoy benefits earned there.

60. The CHAIRMAN asked the representative of the American Federation of Labor to submit in writing any amendment he might wish to make to article 16 and 17.

The meeting rose at 1 p.m.