Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Sixteenth Meeting

A/CONF.2/SR.16

Present:

CONSIDERATION OF THE DRAFT CONVENTION ON THE STATUS OF REFUGEES (item 5(a) of the agenda) (A/CONF.2/1 and Corr.1 A/CONF.2/5) (continued)

(i) Article 28 - Prohibition of Expulsion to a country where the life or freedom of a refugee is threatened (A/CONF.2/69, A/CONF.2/70)

The PRESIDENT drew attention to the Swedish amendment (A/CONF.2/70) and to the Joint French/United Kingdom amendment (A/CONF.2/69) to article 28. He suggested that the Conference should first consider the first paragraph of the Swedish amendment in conjunction with the original text of article 28, and then the second paragraph of the Swedish amendment and the joint amendment, both of which were concerned with formulating the exception to the general principle enunciated in article 28.

Mr. PETREN (Sweden) said that the first part of the first paragraph of article 28, as amended by the Swedish delegation, down to the wards "or political opinion", was intimately linked with article 1 of the draft Convention. He therefore believed that it would be preferable to defer discussion on that part of article 28 until article 1 was taken up. The remainder of the first paragraph of article 28 as amended by his delegation was intended to cover cases where refugees were expelled to a country where their life would not be directly threatened, but where they would be threatened by further expulsion to a country where they would so be in danger.

Mr. ROCHEFORT (France) entertained certain misgivings as to the possible implications of the second of the two changes made to article 28 by the Swedish amendment, namely, the addition of the words "or where he would be exposed to the risk of being sent to a territory where his life ....". In the first places it called for a necessarily subjective decision by Contracting States. Secondly, and more important, if the countries adjoining a Contracting State were not parties to the Convention and decided; as might well prove to be the case, to refuse the right of residence in their territory to all refugees, that Contracting State might find itself in a very difficult situation, as the Swedish amendment would not then allow it to expel refugees at all.

The Swedish amendment called for careful study, and the French delegation was unable to accept it forthwith.

Mr. PETREN (Sweden) said that it would be most important to have such a provision as the one to which the French representative had taken exception, very large number of States ratified the Convention. He would, however, prepared to consider drafting changes to his proposal.

Mr. HOARE (United Kingdom) said that his attitude was very similar to that of the French representative. He recognized the force of this Swedish representative's arguments and the validity of his amendment, but felt that the latter was so widely conceived that it would present difficulties to Contracting States. The whole problem called for further study.

Msgr. COMTE (The Holy See) considered that article 28 was highly Important.

While the Swedish amendment was undoubtedly inspired by honourable motives, the use of the phrase "By way of exception" to introduce the second paragraph give rise to certain abuses. The expression was very 'vague, and might expose refugees to certain risks.

He preferred the amendment submitted jointly by the delegations of France and the United Kingdom, which afforded greater safeguards to the refugee.

It would appear, however, that the original text of article 28 was in itself sufficient to furnish those safeguards, as no exceptions were provided for. A State would always be in a position to protect itself against refugees who constituted a danger to national security or public order.

The PRESIDENT asked whether representatives wished to make any further contents on the general principle embodied in article 28.

Mr. HOARE (United Kingdom) suggested that as some representatives were unable to take a definite position on the second part of the first paragraph of the Swedish amendment, its further consideration might be deferred. The Conference might then take up the second paragraph of the Swedish amendment, and the joint amendment.

Mr. ZUTTER (Switzerland) said that the Swiss Federal Government saw no reason why article 28 should not be adopted as it stood; for the article was a necessary one. He thought, however, that its wording left room for various interpretations, particularly as to the meaning to be attached to the words "expel" and "return". In the Swiss Government's view, the term "expulsion" applied to a refugee who had already been admitted to the territory of a country. The term "refoulement", on the other hand, had a vaguer meaning; it could not, however, be applied to a refugee who had not yet entered the territory of a country. The word "return", used in the English text, gave that idea exactly. Yet article 28 implied the existence of two categories of refugee: refugees who were liable to be expelled, and those who were liable to be returned. In any case, the States represented at the Conference should take a definite position with regard to the meaning to be attached to the word "return". The Swiss Government considered that in the present instance the word applied solely to refugees who had already entered a country, but were not yet resident there. According to that interpretation, States were not compelled to allow large groups of persons claiming refugee status to cross its frontiers. He would be glad to know whether the States represented at the Conference accepted his interpretations of the two terms in question. If they did, Switzerland would be willing to accept article 28, which was one of the articles in respect of which States could not, under article 36 of the draft Convention, enter a reservation.

Mr. ROCHEFORT (France) agreed with the views expressed by the representative of Switzerland. It was only the idea of what was generally meant by "expulsion" that should be retained.

Referring to the amendment submitted jointly by the delegations of France and the United Kingdom (A/CONF.2/69), he observed that the text of the draft Convention admitted the principle that a State could refuse the right of asylum. It was therefore only just that countries which granted that right should be able to withdraw it in certain circumstances. If they could not do so, they would think twice before granting an unconditional right. He agreed that the right of asylum was sacred, but people should not be allowed to abuse it. The French and United Kingdom delegations had submitted their amendment in order to make it possible for States to punish activities carried on in the name of that right, but directed against national security or constituting a danger to the community. France and the United Kingdom, however, had no intention of opposing the right of asylum on grounds of indigence. Reasons such as the security of the country were the only ones that could be invoked against that right.

The right of asylum rested on moral and humanitarian considerations which were freely recognized by receiving countries, but it had certain essential limitations. A country could not contract an unconditional obligation towards persons over whom it was difficult to exercise any control, and into the ranks of whom undesirable elements might well infiltrate. The problem was a moral and psychological one, and in order to solve it, it would be necessary to take into account the possible reactions of public opinion.

Msgr. COMTE (The Holy See) stated that the remarks of the French representative had greatly interested him. The Holy see was fully aware that States were bound to protect themselves against possible abuses of the right of asylum, and the joint amendment submitted by the delegations of France and the United Kingdom might be given consideration on that account.

He also felt that the drafting of article 28 called for some comment. Besides the grounds already stated in article 28, on which the life or freedom of refugees might be threatened, the Swedish amendment sought to add the further ground of membership of a particular social group. Further grounds of the same kind can be found, but their enumeration might have dangerous consequences. In order to avoid such a contingency, he considered it would be preferable to amend article 28 to read: "where his freedom would be threatened on account of the reasons which had compelled him to seek refuge".

With regard to the joint amendment, it was admittedly very difficult to avoid exceptions to any rule. What was meant for example by the words "reasonable grounds"? He considered that the wording: "may not, however, be claimed by a refugee who constitutes a danger to the security of the country" would be preferable.

Mr. HOARE (United Kingdom) associated himself with the remarks made by the French representative, who had amply explained the grounds on which States might be justified in making exceptions to the general application of article 28. The authors of the joint amendment had sought to restrict its scope, so as not to prejudice the efficacy of the article as a whole. It must be left to States to decide whether the danger entailed to refugees by expulsion outweighed the menace to public security that would arise if they were permitted to stay. Without such a provision governments might find it difficult to accept article 28, to which, as had been pointed out, reservations could not be entered. It must be borne in mind that the climate of opinion had altered since article 28 had been drafted, and that each government had become more keenly aware of the current dangers to its national security. Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency. To condemn such persons to lifelong imprisonment, even if that were a practicable course, would be no better solution.

The representative of the Holly See had raised certain objections to the "reasonable grounds". As he (Mr. Hoare) had suggested their insertion, it was incumbent on him to explain his reason for doing so, which was that it must be left to States to determine whether there were sufficient grounds for regarding any refugee as a danger to the security of the country.

Mr. CHANCE (Canada) associated himself with the remarks made by the French and United Kingdom representatives, and supported the joint amendment. He reminded the Conference that the Ad Hoc Committee on Refugees and Stateless Persons had regarded article 28 as of fundamental importance to the Convention as a whole. In drafting it, members of that Committee had kept their eyes on the stars but their feet on the ground. Since that time, however, the international situation had deteriorated, and it must be recognized, albeit with reluctance, that at present many governments would find difficulty in accepting unconditionally the principle embodied in article 28.

Mr. PETREN (Sweden), referring to the objections to his amendment raised by the representative of the Holy See, re-stated his opinion that the first part of the first paragraph of the Swedish amendment would have to be discussed in connexion with article 1. That representative's suggested amendment would not cover the case of refugees expelled to a country which might in turn forcibly return them to their country of origin.

He would be grateful for enlightenment on the precise implication of article 28. For instance, would it cover the situations where a refugee found himself either in a country which, without directly threatening his safety, was disposed to accede to demands for extradition to the country of persecution or in a country which was not prepared to extradite refugees but tended to expel them for reasons of its own? If those two cases were in fact met by the provisions of article 28 as at present drafted, the second part of the first paragraph of the Swedish amendment was unnecessary.

The second paragraph of the Swedish amendment had been moved for more or less the same reasons as the joint amendment, and was intended to meet the case of refugees engaged in subversive activities threatening the security of their country of asylum, refugees who, after having been accepted as residents, were found to have been fugitives from justice in their own country, and refugees who failed to comply with the conditions of residence. Perhaps it might be possible to evolve a compromise text for the second paragraph of the basis of the two amendments before the Conference.

The PRESIDENT said he was not competent to provide the necessary clarification requested by the Swedish representative, but he would like to point out that the interpretation of the phrase "or where he would be exposed to the risk ....." in the Swedish amendment presented certain difficulties. A government expelling a refugee to the territory of another State could not foresee how that State would act. The Danish Government would consider that if such expulsion presented a threat of subsequent forcible return to the country of origin, the life and liberty of the refugee in question were endangered. But the relative importance of the various considerations involved was a matter which would have to be decided by the government concerned.

Mr. ROCHEFORT (France) pointed out that a State had not the right to return a refugee without a visa to any country other than his country of origin or his country of lawful residence. Admittedly, it did sometimes happen, that the practice was illegal.

The Swedish amendment did not state that it related to countries which did not grant the right of asylum. Such countries were not necessarily those in which persecution occurred. If the States in question were signatories to the Convention, the question would not arise, because refugees would not be returned to countries where they risked being persecuted.

Mr. HERMENT (Belgium) said that article 28 did not in fact make provision for either of the cases mentioned by the Swedish representative.

Referring to the joint amendment, he asked for an explanation of the words "lawfully convicted", and wondered whether the word "lawfully" meant that the authority which had passed sentence on a refugee had to provide full legal guarantees. Or that the sentence must be final. If a refugee had been sentenced by a court of first instance, could he nevertheless claim the benefit of article 28?

Mr. HOEG (Denmark) said that the Danish Government was prepared to accept the original text of article 28, but, since some delegations seemed to wish to incorporate certain amendments in it, he would not vote against those amendments.

If a country of origin, which might perhaps be a great Power, demanded the return of a refugee, to refuse the demand might provoke a political crisis. He did not imagine that it was the intention of the joint amendment and the Swedish amendment to cover such a case by the use of the words "reasonable grounds for regarding as a danger to the security of the country in which he is residing" and "constitute a danger to national security or public order" respectively, but he wished to be assured that there was no possibility of the texts being interpreted in that manner.

Baron van BOETZELAER (Netherlands) supported the Swiss representative's observations. He appreciated the importance of the basic principles underlying article 28 but, as a country bordering on others, the Netherlands was somewhat diffident about assuming unconditional obligations so far as mass influxes of refugees were concerned, unless international collaboration was sufficiently organized to deal with such a situation. He recalled that the Swiss representative had already referred to the matter of international collaboration in the general discussion at the third meeting.

Mr. THEODOLI (Italy) associated himself with the statements of the Swiss and Netherlands representatives.

He would like some clarification of the words "expel or return". Under article 28, no Contracting State was to expel or return a refugee to a territory where his life or freedom would be in danger. On the other hand, he personally felt that a State could not commit itself not to expel or return large groups of refugees who presented themselves on its territory, and who might endanger public security. The Italian delegation would therefore reserve its position on the article, unless some satisfactory explanation was forthcoming.

Mr. PETREN (Sweden) also agreed with the Swiss, Netherlands and Italian representatives. Although some representatives had spoken in support of the Second additional phrase in the first paragraph of his amendment, the general sense of the Conference appeared to be against it. He would therefore withdraw it, stressing, however, that, as the President had also urged, the text of the article should be interpreted as covering at least some of situations envisaged in that part of the amendment.

Mr. von TRÜTZSCHLER (Federal Republic of Germany) supported the observation of the Netherlands representative concerning countries subject to a large influx of refugees.

Mr. HERMENT (Belgium) drew attention to the fact that in article 28 the prohibition on returning refugees to the frontier could be construed as applying to individuals, but not to large groups. Such was the interpretation placed on it by the Belgian Government.

Mr. ROCHEFORT (France) pointed out that the joint amendment referred to the country in which the refugee was residing. The hypothesis of any large influx of refugees did not therefore enter into question.

The PRESIDENT asked the authors of the joint amendment to explain why they had included the words "in which he is residing". He recalled that article 28 was to apply to refugees who had entered the country of asylum both unlawfully (article 26) and lawfully (article 27).

It appeared from the text of the joint amendment that only the country in which the refugee resided would be empowered to expel him if necessary, and that countries through which he passed on his way to refuge would be debarred from doing so. He wondered whether the phrase "in which he is residing" was meant to be interpreted in its broadest sense, namely, "in which he finds himself".

Mr. HOARE (United Kingdom) replied that the President's interpretation was correct so far as the English text was concerned. It might very occasionally be necessary to return the refugee almost immediately to his country of origin. Generally, however, the amendment would affect people who had been resident in the country for a considerable time, and it was for that reason that the word "residing" had been used.

With regard to the Belgian representative's earlier remark, he agreed that the word "lawfully" could be deleted. It was, in fact, final conviction that was meant, that was to say, after any appeal had been heard or after the term of appeal had expired. There were certain discrepancies between the English and French texts: the French text referred to "crimes ou délits", whereas the word "crimes" was sufficient in the English text.

He considered that the Danish representative's point that refusal to return a refugee might provoke political disturbance did not fall within the scope of article 28. The matter of extradition treaties between countries of refuge and countries of persecution was outside the purview of the Convention. Most treaties of that kind specified that not only should the facts be established prima facie to the satisfaction of the country receiving the request for extradition, but also that the crime for which the criminal was to be returned should not be of a political nature; at least, such was the case so far as the extradition treaties signed by the United Kingdom were concerned. It was further provided in most such treaties that, if a person was so returned, he could not be sentenced or imprisoned for any other offence until he had been given the opportunity of leaving the country.

The PRESIDENT thought that the Ad hoc Committee, in drafting article 28, had, perhaps, established a standard which could not be accepted. That Committee, as could be seen from its report on its second session, had felt that the principle inherent in article 28 was fundamental, and that it could not consider any exceptions to the article.

He considered that the Provisional Agreement concerning the Status of Refugees coming from Germany, signed at Geneva on 4 July, 1936 (see "A Study of Statelessness", document E/1112 and Add.1, page 99), would be of interest to the Conference, as it showed how a previous conference had dealt with a similar situation. Article 4, paragraph 3, of that instrument read as follows:

"Even in this last-mentioned case the Governments undertake that refugees shall not be sent back across the frontier of the Reich unless they have been warned and have refused to make the necessary arrangements to proceed to another country or to take advantage of the arrangements made for them with that object."

Mr. ROCHEFORT (France) pointed out that that safeguard was provided in article 27 of the present draft Convention. In 1951, the problem presented itself otherwise than it had done in 1936.

The PRESIDENT could not agree with the French representative, as article 27 dealt only with refugees who had been lawfully admitted.

In reply to an observation by Mr. ROBINSON (Israel), Mr. HOARE (United Kingdom) recalled that he had agreed to the deletion of the word "lawfully" from the English text of the joint amendment. The word "convicted" could stand, because it implied final conviction, sometimes after appeal or after the term of appeal had expired. He had no objection to an addition to the text to show quite clearly that final conviction was meant, and would appreciate any drafting suggestions which other representatives might make. The words "or offences" should be deleted from the English text.

Mr. ROCHEFORT (France) and Mr. HERMENT (Belgium) asked the President to clarify the meaning of his reply to the French representative on the subject of the 1936 agreement.

The PRESIDENT explained that he had merely quoted from the Provisional Agreement concerning the Status of Refugees coming from Germany as an example of what a former conference had done on the subject.

Mr. ROCHEFORT (France), referring to the example, cited by the President, of refugees in transit, remarked that the best solution in that case would be to speed up their transit.

Mr. HERMENT (Belgium), reverting to the text of the joint amendment, said that it seemed to be agreed that the words "in which he finds himself" should be substituted for the words "in which he is residing", and the word "finally" for the word "lawfully". He thought it would be preferable to retain both the word "crimes" and the word "délits" in the French text.

Mr. HOARE (United Kingdom) remarked that the word "crimes" was sufficient by itself in the English text, although it might be necessary to retain the words "crimes ou délits" in the French version.

The PRESIDENT pointed out that the French and English texts were not intended merely for French-speaking countries respectively; they might later have to be translated into other languages, including Chinese, Russian and Spanish, as provided for in article 40 of the draft Convention. Other countries might interpret the words "crimes or offences" in different ways. Since the words had a general sense in all countries, each individual legal system would have to place its own interpretation on them.

Mr. ROCHEFORT (France) suggested that, in order to simplify matters, the phrase "convicted because of particularly serious acts" should be substituted for the phrase "convicted .... of particularly serious crimes or offences".

Mr. HERMENT (Belgium) could not accept those words, which he thought were liable to be interpreted in an arbitrary manner.

Mr. Robinson (Israel) felt that the Conference should confine itself for the moment to the French and English texts alone.

In Denmark, to take an example, the Convention would have to be translated into Danish, and the Danish courts might experience some difficulties in interpreting the French and English texts of articles 28, since the former mentioned "crimes et délits" and the latter only "crimes". He therefore suggested that, once the first reading had been completed, the Style Committee should bring the two texts into concordance. It would be useful in that event for the Style Committee to submit a report which could be used as a basic interpretative document for the authorities who would have to apply the provisions of the Convention. The joint amendment was undoubtedly intended to be applied by a given country in the light of its national legislation, provided that a convicted refugee had been convicted for some serious act. He was somewhat puzzled by the French representative's suggestion that the concept should be reduced to the word "acts", because an act was not criminal unless legally designated as such.

Mr. ZUTTER (Switzerland) thought that if both the word "crimes" and the word "délits" were retained in the French text, but only the word "crimes" in the English text, interpretation would be needed. The French representative had proposed that the word "acts" should replace both the words "crimes" and "offences". The representatives of Israel and Belgium had pointed out that that amendment might give rise to difficulties. Nevertheless, it seemed preferable to adopt the French proposal in view of the difficulty of finding adequate translations for the words "crimes" and "délits". The lesser of two evils should be chosen. The word "acts" was doubtless not perfect, but if it were used the difficulties he had mentioned would be avoided.

Mr. ROCHEFORT (France) thought that the Israeli representative need not be puzzled by the French proposal. The accent was on the word "convicted", and people were always convicted of acts.

Baron van BOETZELAER (Netherlands) stated that the same difficulty had recently arisen the connexion with the revision of the Red Cross Convention. It had been resolved by the use of the word "offence" in English and of the word "infraction" in French.

Mr. ROBINSON (Israel) suggested that the joint amendment might be voted on at once, the point under discussion being referred to the Style Committee.

Mr. THEODOLI (Italy) proposed that the words " or having been declared by the Court a habitual offender" should be inserted in the joint amendment immediately after the words "crimes or offences", in order to provide for the case of habitual criminals.

Mr. HOARE (United Kingdom) hoped that the scope of the joint amendment would not be unduly widened. Although he appreciated the intention behind the Italian proposal, he wished to point out that to be classified by the courts as a hardened or habitual criminal, a person must have committed either serious crimes, or an accumulation of petty crimes. The first case would be covered by the joint amendment, and he was quite content to leave the second outside the scope of the provision.

Mr. PETREN (Sweden) announced that he would withdraw the second paragraph of his amendment (A/CONF.2/70), and propose that the words "in that country" be deleted from the joint amendment.

The PRESIDENT proposed that the reference in the Swedish amendment to membership of particular social groups should be left for consideration later, in connexion with the definition of the term "refugee" (article 1). The Swedish delegation, it appeared, reserved the right to revert to that point when article 1 was considered by the Conference.

It was so agreed.

The PRESIDENT put to the vote the Swedish proposal that the words "in that country" should be deleted from the joint French/United Kingdom amendment.

The Swedish proposal was adopted by 6 votes to 4, with 12 abstentions.

The joint French/United Kingdom amendment (A/CONF.2/69), as amended, was adopted by 19 votes to none, with 3 abstentions.

Replying to a question by Mr. ZUTTER (Switzerland), the PRESIDENT said that, as he understood it, the sponsors of the joint amendment had agreed to the substitution of the words "finds himself" for the words "is residing", and of the word "finally' for the word "lawfully". It had also been agreed that the Style Committee should try to find alternative terms, which would be acceptable to all legal systems, for the words "crimes or offences".

Article 28, as amended, was adopted by 19 votes to none, with 3 abstentions.

(ii) Article 29 - Naturalization

Mr. THEODOLI (Italy) said that he wished to reserve the position of the Italian Government on article 29.

Mr. HOARE (United Kingdom) felt that article 29 should be considered as a recommendation rather than as a binding legal obligation, particularly in view of the use of the words "as far as possible" and "make every effort".

Article 29 was adopted by 20 votes to none, with 1 abstention.

The meeting rose at 5 p.m.