Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Seventeenth Meeting Held at Lake Success, New York, on Tuesday, 31 January 1950, at 11 a.m.

E/AC.32/SR.17

Chairman:
Mr. Leslie CHANCE Canada

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

Consultant from a non-governmental organization:
Category A:
Mr. STOLZ American Federation of Labor (AF of L)
Category B:
Mr. DIJOUR Consultative Council of Jewish Organizations
Mr. BERNSTEIN Co-ordinating Beard of Jewish Organizations
Mrs. BAER Women's International League for Peace and Freedom, and International League for the Rights of Man

Secretariat:
Mr. John HUMPHREY Director, Human Rights Division Secretary of the Committee
Mr. HOGAN

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) Provisional draft of parts of the definition article prepared by the working group (E/AC.32/L.6/Rev.1).

1. The CHAIRMAN recalled the lengthy discussions on the definition of the term "refugee" that had taken place during the Committee's opening meetings. There had been two opposing points of view on the subject, some representatives holding that a broad concise definition should be adopted, while others had thought that the definition should be more specific and detailed. The Committee had finally decided to adopt the detailed approach and, at the sixth meeting, a working group had been set up to prepare a draft definition. Representatives of both points of view had served on the working group and the text before the Committee had received the general approval of all members of the group. Those representatives who had argued in favour of a broad definition had not, of course, changed their attitude, but they had bowed to the wishes of the majority and had brought their skill and experience to help the working group in its task. That was a very significant and encouraging sign and he thanked the representative concerned for their true spirit of co-operation - a spirit which he hoped would prevail throughout the work of the Untied Nations.

2. He recognized that the draft submitted by the working group was not perfect and might well be improved. He therefore invited a full discussion on the subject, on the understanding that the Committee could not go back on its earlier decision to adopt the detailed approach to the definition.

3. Sir Leslie BRASS (United Kingdom) thanked the Chairman for explaining the position of those who had supported the idea of a broad definition and fully endorsed the explanation given.

Paragraph A, sub-paragraph 1

4. The CHAIRMAN opened discussion on sub-paragraph 1 of paragraph A of the draft submitted by the working group (E/AC.32/L.6/Rev.1).

5. Mr. CUVELIER (Belgium) thought that the nature of the persecution and the events to which it was due should be mentioned together at the beginning of the paragraph. Thus the phrase "due to events in Europe after the outbreak of the Second Word and before 1 July 1950" would follow directly after the words "nationality or political opinion".

6. Mr. RAIN (France) agreed with that suggestion and added that the paragraph should cover not only those who had actually left their country owing to persecution, but also those who had already been outside their country before the persecution began and were unable to return for fear of persecution.

7. Mr. STOLZ (American Federation of Labor) recalled that people sometimes left their country for social or economic reasons, an eventuality which was not specifically mentioned in the paragraph under discussion.

8. Mr. RAIN (France) thought that the nature of the persecution should be described in very broad terms. In actual practice he felt sure that the people referred to by the AF of L representative would be recognized as refugees.

9. Mr. CUVELIER (Belgium) suggested that the paragraph should be divided into three under the letters (a), (b) and (c). The reference to persecution could come under the letter (a), the provision that the person should be outside his country of nationality under the letter (b) and the provision that he should be unable or unwilling to avail himself of the protection of his country under the letter (c). In that way it would be perfectly clear that all three conditions had to be fulfilled before a person could be recognized as a refugee.

10. After some further discussion on points of drafting, the CHAIRMAN read the following proposed text:

"Any person who

"(a) as a result of events in Europe after the outbreak of the Second World War and before 1 July 1950 had well-founded fears of being the victim of persecution for reasons of race, religion, nationality or political opinion, and

"(b) for such reasons had left or is outside the country of his nationality or, if he has no nationality, outside his country of former habitual residence, and

"(c) for such reasons is unable or unwilling to avail himself of the protection of the Government of his country of nationality."

11. Sir Leslie BRASS (United Kingdom) said he would be prepared to agree to that text as long as sub-paragraph (c) meant that there was an ever-present fear of persecution to warrant the person's unwillingness to avail himself of the protection of the Government of his country of nationality.

The text as read by the Chairman was provisionally approved.

12. The Commission next considered the final clause of article I, paragraph A 1 (E/AC.32/L.6/Rev.1).

13. Mr. HENKIN (United States of America) suggested that the clause should be amended to read:

"This shall not include a person who was a member of a German minority in a country outside Germany, who has returned to, sought refuge in, or was expelled to, Germany, and who is residing in Germany;".

14. Mr. CHEVELIER (Belgium) thought that the enumeration of alternatives was superfluous.

15. Mr. HENKIN (United States of America) stated that there had been some basis for the enumeration of alternatives in question. Members of German minorities had entered Germany in one of the following three ways: (a) within the framework of the Heimkehr movement under Hitler, or (b) they had sought refuge in Germany following the liberation of the country of their habitual residence, or, finally, (c) they had been expelled by the authorities of their countries of habitual residence to Germany.

16. To make it clear that persons falling into any one of those categories were not eligible for the benefits of the draft convention, it had appeared advantageous to list them separately. All of them had in common the fact that they were now in Germany.

17. Mr. RAIN (France), while maintaining his earlier reservation on the substance of the clause in question, thought that from the point of view of form the objective of the Untied States representative could be met even if the enumeration of alternatives were omitted.

18. Mr. LARSEN (Denmark) wondered whether the use of the word "residing" was entirely accurate. Many of the persons concerned were living in camps and it might be argued by some that their stay in those circumstances did not constitute "residence".

19. Mr. HENKIN (United States of America) thought the point raised by the Danish representative might be met by changing the last few words of the clause to read"...and who is in Germany".

20. Mr. LARSEN (Denmark) noted that the Heimkehr movement had begun prior to the outbreak of the Second Word War. The Committee did not, of course, intend that persons who had gone to Germany under the pre-war Heimkehr movement should be regarded as refugees. He wondered whether the clause as drafted made that intention sufficiently clear.

21. Mr. HENKIN (United States of America) thought that it did. Unless they were covered by the exclusion clause, however, they might come within the definition since they might claim to be unable to return to the countries which they had left for fear of political persecution.

22. Mr. WEIS (International Refugee Organization) stated that there might be some doubt concerning exactly what territory was meant by the word "Germany". He supposed that, in conformity with similar conventions of the past, it signified the Germany of 31 December 1036. He suggested that the Committee's report should state that the expression "Germany" in the draft convention referred to Germany as it was on 31 December 1936.

It was so agreed.

23. Sir Leslie BRASS (United Kingdom) suggested the insertion of the word "sub-paragraph" after the word "this" in the clause under discussion.

24. Mr. HENKIN (United States of America) stated that there might still arise the problem of members of German minorities expelled to Germany from their countries of habitual residence today or in the near future. That consideration had been yet another reason why his delegation would have prefer an enumeration of alternatives. The point might, however, be met by making it clear in the Committee's report that those Germans too would come within the scope of the clause and would be excluded from the benefits of the draft convention.

25. The CHAIRMAN read the following text of the clause:

"This sub-paragraph shall not include a person who was a member of a German minority in a country outside Germany and who is in Germany."

The clause was approved on first reading without objection.

Paragraph A, sub-paragraph 2

26. Following an exchange of views regarding the drafting of sub-paragraph 2, Mr. CUVELIER (Belgium) suggested that it should follow closely the structural pattern of the preceding sub-paragraph.

27. Mr. RAIN (France), noting the concurrence of the Committee in Mr. Cuvelier's suggestion, proposed that the Belgian representative should prepare a suitable draft for submission to the Committee.

It was so agreed.

Sub-paragraph 3

28. Mr. WEIS (International Refugee Organization) pointed out that since the refugees referred to were subject to the conditions enumerated in sub-paragraph 2 (c), as revised, they should logically be included in that sub-paragraph.

29. Mr. HENKIN (United States of America) thought the point might be met by adding to sub-paragraph 3 the phrase "and is outside the country of his nationality, or, if he had no nationality, outside his country of former habitual residence".

30. Mr. GUERREIRO (Brazil), supported by Mr. PEREZ PEROZO (Venezuela), thought an explicit reference should be made to the international conventions or agreements which defined refugees.

31. Mr. HENKIN (United States of America) explained that the sub-paragraph had been intended to include persons who had been given the status of refugee by the receiving countries although they had not come under the conventions in force when hey had entered those countries. A similar provision in the IRO Constitution had never raised any difficulty. The group in question was steadily diminishing in number and it seemed logical to leave it to the receiving country to decide how to deal with it. Mr. Henkin asked the Reporter to include that explanation in his report.

32. Mr. RAIN (France) confirmed Mr. Henkin's statement of the intent of sub-paragraph 3. He did not think that it required further clarification.

33. The CHAIRMAN, speaking as the representative of Canada, suggested that the phrase, "before the outbreak of the Second World War" should be replaced by "in the period between 4 August 1914 and 3 September 1939".

It was so decided.

Sub-paragraph 3, thus amended, was provisionally approved.

34. Mr. WEIS (International Refugee Organization) asked the Rapporteur to note further that the status of children of refugees should, even if they had been born after the outbreak of the war, be determined by that of their fathers, or, if they were illegitimate, by that of their mothers, provided that they themselves had not acquired a nationality.

It was so agreed.

35. Mr. GUERREIRO (Brazil) warned the Committee against the danger of too many explanations and qualifying interpretations of various clauses of the draft convention. It must bear in mind that legislatures would be asked to rarify the actuarial text; that test should be as self-explanatory as possible.

36. Mr. ROBINSON (Israel) shared the Brazilian representative's concern. He observed, however, that the Committee was working out a preliminary draft which would be discussed and perfected at the forthcoming sessions of the Economic and Social Council and the General Assembly or at a special conference. Only then would a final draft be produced and submitted, with the accompanying reservations, for the signature and ultimate ratification of Member States.

Paragraph B

37. Mr. HENKIN (United States of America) wished to clarify the text in order to forestall accusations which might be directed against the receiving country on the grounds that it was sheltering war criminals. Accordingly, he proposed that the first part of the paragraph should read: "The High Contracting Parties shall be under no obligation to apply the terms of this convention to any person...". Thus, the question would remain within the discretion of each receiving country.

38. Mr. ROBINSON (Israel) hesitated on moral grounds to support that amendment. A signatory State which extended protection to a war criminal would be going beyond its obligations under the convention. Legally, it was not prevented from doing so by the terms of the convention. It would, however, be granting special benefits to a category of undesirable persons and thus placing itself in an unfavourable position vis-à-vis those States which adhered strictly to their obligations under the convention.

39. Mr. HENKIN (United States of America) observed that the same objection might be made to the draft of paragraph B as it stood. There was nothing to prevent a State from going beyond the convention and sheltering war criminals. The basic issue was to determine who would decide that a person was a war criminal. It might be left to the discretion of the receiving country.

The meeting rose at 1 p.m.