Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Fourteenth Meeting Held at Lake Success, New York, on Thursday, 26 January, 1950, at 2.30 p.m.
Chairman: Mr. Leslie CHANCE Canada
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
Representatives of specialized agencies:
Mr. METALL International Labour Organisation (ILO)
Mr. WEIS International Refugee Organization (IRO)
Consultant from a non-governmental organization:
Category A: Mr. STOLZ American Federation of
Labour (AF of L)
Category B: Dr. LEWIN Agudas Israel World Organization
Mr. DIJOUR Consultative Council of Jewish Organizations
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:
ARTICLES 15, 16, 17 (E/AC.32/2, E/AC.32/L.3, E/AC.32/L.9, E/AC.32/L.11) (continued).
Article 15 (Liberal professions)
1. The CHAIRMAN asked the Committee, pending preparation of the revised French draft of paragraph 1, to consider the second paragraph of the article.
2. Sir Leslie BRASS (United Kingdom) would still prefer there to be no clause concerning the settlement of refugees in colonies, protectorates and Trust Territories, because he felt that it would not help the refugee and might give rise to misunderstanding on the part of some colonial Governments since it was a matter for them. They could be depended upon to act in the interest of the refugee. In the event of such a provision being included, he had been invited to propose an alternative to the Secretariat draft and accordingly suggested:
"The High Contracting Parties shall use their best endeavours, consistently with their laws and constitutional practices, to secure the settlement of such refugees in their colonies, protectorates and Trust Territories."
3. Mr. ROBINSON (Israel) pointed out that such a provision might be made to apply only to article 15, which dealt with the practice of liberal professions as part of the chapter on conditions of employment, or, alternatively, it might be included in the broader context of the colonial clause (article 36). In order to avoid duplication, it would have to be co-ordinated in form and substance with that clause. In his opinion, the provision should remain as a special paragraph of article 15 and its meaning and application should be confined to that article. Many countries were under pressure not to admit to their metropolitan territories refugees who might compete with professional workers resident there. In some colonial areas, however, there was an urgent need for qualified persons, and nationals of the metropolitan country were often reluctant to respond to that need. Colonial Governments which would not be willing to give refugees the opportunity of gainful employment in their professions in the metropolitan country might be quite prepared to send them into overseas territories. The retention of provision encouraging such settlement would therefore be advisable.
4. Mr. GUERREIRO (Brazil) agreed that the need for such qualified workers justified the settlement in colonial areas of refugees practising liberal professions. He considered it more logical for the provision to apply specifically to such refugees and to appear in article 15. The colonial clause should be dealt with separately; it related to the accession of dependent territories to the entire convention. If such a territory had not acceded to the convention, it could be assumed that the metropolitan Power would encourage the settlement there of refugees with certain professional qualifications. He would not, however, press the point.
5. Mr. RAIN (France), turning to the draft proposed by the United Kingdom, noted that it corresponded to the French text except for the addition of the phrase "their laws and constitutional practices". That concept was implicit in every clause of the convention, which was certainly not intended to alter the national legislation or constitutions of the signatory States.
6. Sir Leslie BRASS (United Kingdom) emphasized that the phrase was included to reassure colonial Governments that the provisions did not impinge on the constitutional position of their territories and should not be interpreted as a derogation of the powers they exercised in respect of them.
7. Mr. CUVELIER (Belgium) had no objection to the United Kingdom text, but would prefer the term "constitutional usage" to replace "constitutional practices".
8. Sir Leslie BRASS (United Kingdom) accepted that suggestion.
9. Mr. LARSEN (Denmark) could not commit his government on the matter. He noted, however, that in all treaties Denmark included Greenland. For the time being, Greenland was used as a reservation for Eskimos. The Danish Government was studying the future political and administrative status of the island. It might be willing to accept the provision in article 15, with certain reservations.
10. Mr. HENKIN (United States of America) was prepared to accept the provision as part of article 15.
The United Kingdom text of paragraph 2 of article 15, as amended, was approved.
Article 16 (Labour regulations and industrial accidents)
11. Mr. RAIN (France) observed that the French draft did not contain a corresponding article.
12. Mr. METALL (International Labour Organisation) thought it advisable to combine under a single chapter heading the articles of the Secretariat draft dealing with labour regulations and industrial accidents, and social security respectively (chapters VI and VII). Present-day legislation and treaties made no distinction between industrial accidents and social security and it would be difficult to discuss the two matters separately. Moreover, the ILO, in its Convention on Migration for Employment, had dealt with them under the general heading of social security.
13. The CHAIRMAN considered that agreement should first be reached on the substance of articles 16 and 17. The form in which they should be set out could be settled subsequently, especially since it might be found desirable to include other clauses under a single heading.
14. Mr. METALL (ILO) introduced the text of several provisions of the Convention on Migration for Employment adopted by the ILO at its recent Geneva Conference (E/AC.32/L.9). Article 6 of that document covered the subject matter of articles 16 and 17 of the Secretariat draft. There was no divergence in substance between the two texts and the Committee might wish to co-ordinate them.
15. The CHAIRMAN recalled that the representative of Belgium had presided at the ILO Conference and invited him to comment on article 6.
16. Mr. CUVELIER (Belgium) explained that the ILO text had been prepared by experts, after long and careful study. They had been guided by a desire to apply to migrant workers or refugees the same regulations which governed nationals. As Chairman of the ILO Conference and as the representative of Belgium, he recommended the adoption of article 6 of the ILO text in place of articles 16 and 17 of the Secretariat draft, with the minor drafting changes required to make it applicable to refugees.
17. He stressed an important difference in substance between the ILO text and article 16: paragraph 1 (a) of the former stipulated that refugees would have equal treatment with nationals only "in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities". The State could not intervene, for example, where agreements existed between employees and employers. Article 16 of the Secretariat draft contained no reference to that point.
18. Mr. LARSEN (Denmark) noted that article 6 applied only to migrant workers and would have to be adapted to cover refugees. Moreover, the draft convention on refugees was intended to deal specifically with that particular category of persons and the special circumstances in which they found themselves. It seemed pointless to copy the provisions of a convention applicable to foreigners in general.
19. Mr. CUVELIER (Belgium) pointed out that the ILO text applied to migrants for employment who were wage-earning workers. He recalled that the IRO representative at the Geneva Conference had requested the inclusion of special provisions on refugees, but the ILO had decided that they should form the subject of a separate convention. If the Committee insisted on separating the two texts, it ran the risk of leaving refugee workers entirely unprotected.
20. Mr. METALL (ILO) added that the ILO convention could be ratified only by members of that organisation. The membership of the ILO was not the same as that of the United Nations. In the circumstances, the draft convention on refugees would lose nothing by duplicating the provisions of the ILO convention, with the drafting changes required to adapt the latter to refugees.
21. Mr. ROBINSON (Israel) pointed out that special provisions would have to be introduced in the draft convention on refugees precisely because some of its signatories would not have singed or ratified the ILO convention.
22. In reply to a remark by Mr. HENKIN (United States of America), Mr. WEIS (International Refugee Organization) agreed that modifications of the document would be necessary in order to make it cover the case of refugees.
23. On the question of industrial accidents, he pointed out that the Secretariat text was more specific than the ILO document. Difficulties had arisen in cases of fatal accidents to refugees whose beneficiaries resided abroad. Since those beneficiaries were not regular residents of the country where the accident had occurred, they had not received the benefits. If it was beyond doubt that such cases were covered by the reference to employment injury in article 6 of the Migration for Employment Convention, that text would seem to him satisfactory.
24. Mr. METALL (International Labour Organisation) replied that such cases were covered by the Convention.
25. Mr. WEIS (International Refugee Organization) hoped that that important point would be mentioned in the report.
26. Mr. STOLZ (American Federation of Labour) thought that the Committee would avoid difficulties if it adopted the text prepared y the Secretariat for article 16. He did not feel, moreover, that industrial accidents should be dealt with in the same article as social security, since in some countries the two questions were approached separately and in different ways.
27. Mr. CUVELIER (Belgium) wished to make it clear that he did not advocate the adoption of article 6 of the Migration for Employment Convention as it stood; he merely felt that it would be a more useful basis for discussion than the Secretariat's text.
28. Mr. RAIN (France) shared the view that the question of industrial accidents should be dealt with in article 17 in connexion with social security. Although for administrative purposes the two questions might be separate, in principle they were closely allied and should be dealt with together.
29. The CHAIRMAN proposed that the ILO text should be discussed paragraph by paragraph.
30. Mr. RAIN (France) did not think that should be done until the fundamental question whether or not refugees could be considered as migrant workers had been clarified. He pointed out that many differences existed between refugees and migrant workers; for example, the latter were protected by bilateral agreement and were all salaried workers.
31. On the assumption, however, that article 6 of the ILO Convention did cover the situation of the refugees, he considered it unnecessary to redraft that article for inclusion in the new draft convention. The Committee should simply refer to the article in the Migration for Employment Convention and add such provisions as might be necessary to make the text entirely applicable to refugees.
32. Mr. CUVELIER (Belgium) did not see how the new draft convention could include a reference to an article in the Migration for Employment Convention, when that document might not be ratified by many of the States which were members of the Ad Hoc Committee.
33. Sir Leslie BRASS (United Kingdom) did not feel satisfied that the ILO text under consideration entirely covered, or could be made to cover, the situation of refugees. In his opinion, those States which might not accept article 6 of the Migration for Employment Convention would also object to the same text appearing in the draft convention relating to refugees.
34. Mr. HENKIN (United States of America) agreed with the representative of Belgium that it would be undesirable to refer to an article in the Migration for Employment Convention, in view of the possibility that that Convention might be ratified by only a few countries. He saw no harm, however, in repeating the substance of the ILO text under consideration, with such modifications as appeared desirable.
35. He supported the suggestion of the CHAIRMAN that the Committee should proceed to the examination of article 6 of the Migration for Employment Convention paragraph by paragraph.
It was so decided.
36. Mr. HENKIN (United States of America) suggested that the opening clause of the article, concluding with the words " ... within its territory", should be deleted and an appropriate phrase substituted.
37. Mr. CUVELIER (Belgium) suggested the deletion of sub-paragraph 1 (a) (ii), the subject matter of which was covered elsewhere in the new draft convention, and of sub-paragraph 1 (a) (iii).
38. Mr. HENKIN (United States of America) agreed with the Belgian representative, but proposed that the words "enjoyment of the benefits of collective bargaining, and housing accommodations" should be added at the end of sub-paragraph 1 (a) (i).
39. Sir Leslie BRASS (United Kingdom) expressed doubts regarding any reference to the question of housing. In his own country it would be difficult to guarantee exactly equal treatment for refugees in the matter of housing, since the housing shortage was acute and the matter had to be dealt with on the basis of need. It was also felt that a certain degree of preference, as regards housing should be given to some categories of nationals, such as ex-servicemen.
40. The CHAIRMAN agreed that Governments could not be bound to apply equal treatment in the matter of general housing, but felt that the Governments were protected on that point by the terms of sub-paragraph 1 (a).
41. Mr. HENKIN (United States of America) understood the mention of housing accommodation to apply only to such housing as might be provided by employers specifically for workers. He thought, however, that that point should be made clear in the text, or, alternatively, that a separate clause might be included dealing with the question of housing in general.
42. Mr. RAIN (France) said that although he had originally shared the view of the United States representative concerning the scope of the reference to housing accommodation, he had altered his opinion and was now convinced that the reference was to general housing in cases where a Government might pass legislation on the subject, and that in cases where such legislation existed, equal treatment should be accorded to refugees and to nationals. That was the more liberal interpretation, which, subject to later instructions, he believed his Government would endorse.
43. Drawing attention to one difficulty inherent in the situation, he cited the case of a migrant worker, resident for some years in the country to which he had migrated, who had now become a refugee and was no longer protected by bilateral treaties. He felt that the States which had agreed to include a mention of housing accommodation in the Migration for Employment Convention would have no objection to a similar provision in favour of refugees.
44. Mr. LARSEN (Denmark) pointed out that the Migration for Employment Convention had been prepared in to interests of a group of persons who desired to become productive members of a national community. Refugees constituted a different group; many of them were unfitted to make any constructive contribution to the life of the community. For that reason he was uncertain whether the provisions of the ILO document could be made to apply to the case of refugees. In the absence of instructions from his Government, he would be forced to abstain from endorsing the inclusion of the reference to housing accommodations.
45. Mr. CHA (China) was in favour of deleting the mention of housing. His own country, devastated by war and suffering from a grave shortage of housing, had taken urgent measures, following the end of the Second World War, to relieve the suffering of the refugees; those measures had often placed the refugees in a more advantageous position, from the point of view of housing, than many Chinese nationals. He felt that the matter of housing should be left to the initiative and control of the individual Governments.
46. Sir Leslie BRASS (United Kingdom) warmly endorsed the views of the Chinese representative.
47. The CHAIRMAN then put to the vote the question whether or not a reference to housing accommodations should be included in article 16 of the Convention.
The Committee decided, by 5 votes to 2, with 4 abstentions, not to include a reference to housing accommodations in article 16.
48. Mr. HENKIN (United States of America) explained that he had abstained from voting because, although he did not think the reference to housing should be inserted at that point in the draft convention, he felt it should be considered at a later stage. It might form the subject of a separate article which would apply to the whole draft convention and not only to the provisions regarding labour.
49. The CHAIRMAN read the following text for sub-paragraph (a):
"in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons, and enjoyment of the benefits of collective bargaining."
That text was adopted.
50. The CHAIRMAN opened discussion on sub-paragraph (b).
51. Mr. METALL (International Labour Organisation) replied to the point raised earlier by the representative of the American Federation of Labor that the modern social services had often started with accident insurance. That was true in some cases, but in many countries of western Europe the term social security had come to embrace accident insurance. He felt sure that, even in those countries where accident insurance was not administered under the general social security system, the words "legal provision in respect of employment injury" would be considered satisfactory.
52. Replying to the representative of the International Refugee Organization, he confirmed that the wording of sub-paragraph (b) would enable the beneficiaries of refugees to receive compensation in the event of an accident resulting in death, even if the beneficiaries were not regular residents of the country where the accident occurred.
53. Mr. WEIS (International Refugee Organization) hoped that that important point would be mentioned in the Committee's report.
54. Mr. RAIN (France) expressed general support for the substance of sub-paragraph (b), but asked what exactly was meant by the first limitation, which read: "there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition". He wondered whether that phrase referred to internal arrangements or to international agreements.
55. Mr. METALL (International Labour Organisation) explained that the phrase referred to bilateral international agreements. For example, agreements were often concluded in order to enable workers who moved from one country to another to accumulate the insurance benefits earned in both countries. The two countries concerned would each agree to pay their share according to the time worked in their territory. Such agreements could benefit the nationals of the countries concerned but it was difficult to see how they could benefit a refugee who had lost the protection of his Government and had cut himself off from the social security system of his country of origin.
56. Mr. CUVELIER (Belgium) mentioned the agreement concluded between France and Belgium on that subject. The terms of that agreement would normally have applied only to France and Belgian nationals but a protocol had been added in order to extend the benefits of the agreement to refugees. Nevertheless, it was essential to retain the first limitation mentioned in sub-paragraph (b) because such arrangements were always the result of special agreements and, as the ILO representative had pointed out, refugees could not expect to receive any insurance benefits from their countries of origin.
57. Mr. STOLZ (American Federation of Labor) said that, although refugees could not expect to benefit from any rights acquired in their countries of origin, some of them had acquired rights in Germany before moving to some other country for settlement. Arrangements were being made to obtain recognition for those rights. He fully agreed with the representative of Belgium that it was essential to mention the limitation since all the arrangements were the result of special agreements.
58. Sir Leslie BRASS (United Kingdom) pointed out that such agreements necessarily contained detailed financial clauses and required individual negotiation.
The Committee decided to retain the first limitation mentioned in sub-paragraph (b).
59. The CHAIRMAN suggested that the words "regulations of immigration countries" which appeared in the first line of the second limitation mentioned in sub-paragraph (b) should be changed to read "regulations of the country of residence".
It was so agreed.
Sub-paragraph (b) as amended as adopted.
60. Mr. CUVELIER (Belgium) proposed the deletion of sub-paragraphs (c) and (d), since their substance was covered in other parts of the draft convention.
That proposal was adopted.
61. The CHAIRMAN said that it would not be appropriate to include paragraph 2 of article 6 of the Migration for Employment Convention in article 16 of the draft convention relating to the status of refugees. The Committee might consider the question of federal states at a later stage and include a separate article on the subject. Article 16 would thus end with the sub-paragraph (b) just adopted.
The meeting rose at 4.30 p.m.