Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Thirty-First Meeting Held at Lake Success, New York, on Thursday, 16 February 1950, at 10.30 a.m.
Mr. CHANCE Canada
Mr. GUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. JUVIGNY 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:
Mr. STOLZ American Federation of Labor (AF of L)
Mr. HUMPHREY Representative of the Assistant Secretary-General
Mr. GIRAUD Division of Human Rights
Mr. HOGAN Secretary of the Committee
ADOPTION OF THE REPORT OF THE AD HOC COMMITTEE TO THE ECONOMIC AND SOCIAL COUNCIL (E/AC.32/L.38): ANNEX II (continued).
1. The CHAIRMAN called upon the Committee to continue its consideration of annex II of the report, which contained observations on the draft convention on the status of refugees.
2. He reminded the members that, in accordance with the procedure adopted at the preceding meeting, any comments they made would not be included in the summary record of the meeting except at the specific request of the speakers.
3. Mr. WEIS (International Refugee Organization) asked to be allowed to make a statement in clarification of his earlier remarks regarding article 4.
4. He had suggested that it would probably be advisable for the clause on exemptions from reciprocity to be drafted in exactly the same terms as those of article 14 of the 1933 convention and article 17 of the 1938 Convention. The comments proposed for adoption made it clear that the provisions of article 4 were identical in meaning with those of articles 14 and 17 of the 1933 and 1938 conventions respectively. The purpose of the article was to cover legislative de facto and diplomatic reciprocity, but not necessarily special and preferential rights which were granted to nationals of certain foreign States under treaty provisions.
5. Jurists would wonder why article 4 of the draft Convention was not drafted in the same terms as the corresponding articles of the 1933 and 1938 Conventions. Since the different drafting did not entail any change of substance, it would have been preferable to retain the wording used in the 1933 and 1938 Conventions.
6. He was glad to note, however, that the Committee had agreed that the provisions of article 4 covered diplomatic reciprocity and concerned rights which were specifically mentioned in the draft Convention as well as those which were not.
7. Mr. WEIS (International Refugee Organization) again asked for permission to make a statement in clarification of his earlier comments on article 7.
8. The draft presented by the Secretary-General had contained a second paragraph to the effect that family law and the respecting succession "shall be governed by the rules containing substance, form the position of the law of the country of domicile, or failing such, of the law of the country of residence". That clause had not been adopted by the Committee, since it considered that the question was fully covered by the first paragraph.
9. That was true, but a distinction had to be made be between two questions: the question of the law which was to be applied with regard to substance, and the question of competence. When the Committee had taken its decision it had been stated the countries which applied the law of nationality did not apply that law if it were contrary to public order. Experience had shown, however, that laws restricting the right of marriage, for example, were considered by some countries to be inconsistent with public order, while other countries applied those laws.
10. Moreover, in certain countries courts could exercise jurisdiction with regard to aliens only if their decisions were recognized by the courts of the alien's country of nationality.
11. The adopted article meant that, with regard to both questions, it was not the law of the country of nationality, but the law of the country of domicile, or, failing that, the law of the country of residence, which would be applied, regardless of the question of recognition.
12. Mr. WEIS (International Refugee Organization) asked to be allowed to make a statement with regard to the clause contained in articles 8, 13, 14 and 16, according to which the High Contracting Parties would grant refugees "treatment as favourable as possible and, in any event, not less favourable than that accorded generally to aliens in the same circumstances". It seemed to him that it was often difficult to determine what was the law applicable to aliens generally, in view of the fact that it was based on precedence and administrative practice or was prescribed by law. In the latter case, the authorities were not free to choose: they had to grant a certain treatment unless there were a more favourable treatment granted by treaties. The clause adopted suggested that "more favourable" treatment should be granted, but it did not make it mandatory.
13. It was obvious that the Committee had intended to secure "more favourable" treatment for refugees in those cases but it seemed doubtful whether the wording adopted would have that effect. It would seem that the clause adopted had very little meaning, in so far as it provided that refugees should receive the treatment accorded generally to aliens. A provision to that effected was already contained in article 4. To secure "more favourable" treatment for refugees in the fields covered by articles 8, 13, 14 and 16, it would have been better to adopt a different wording (for instance: most favoured nations treatment). Reservations would have been possible for exceptional cases.
14. Mr. JUVIGNY (France) reserved the position of his Government concerning sub-paragraph (b) of article 19 in so far as that paragraph included within the sphere of social security legal provisions regarding unemployment. In the French legislative system, assistance to the unemployed was not included within the framework of social security. It was, in principle, reserved for nationals, and aliens could not benefit from it except under certain conditions. Consequently, France could not commit itself to grant refugees the same treatment in that field as that granted to French citizens.
The meeting rose at 1 p.m.