Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Thirty-Third Meeting Held at the Palais des Nations, Geneva, on Monday, 14 August, 1950, at 11 a.m.

E/AC.32/SR.33

Present:

Chairman: Mr. LARSEN (Denmark), Vice-Chairman

Members:
Belgium: Mr. HERMENT
Brazil: Mr. PENTEADO
Canada: Mr. WICTER
China: Mr. CHA
France: Mr. ROCHEFORT
Israel: Mr. ROBINSON
Turkey: Mr. NURELGIN
United Kingdom of Great Britain and Northern Ireland: Mr. Leslie BRASS
United States of America Venezuela: Mr. HENKIN
Venezuela: Mr. PEREZ PEROZO

Observers:
Italy: Mr. THEODOLI
Switzerland: Mr. CRAMER

Representatives of specialized agencies:
International Refugee Organization: Mr. WEIS, Mr. KULLMAN

Representatives of non-governmental organizations:

Category A
International Confederation of free Trade Unions: Miss SENDER

Category B and Register
Catholic International Union for Social Services: Miss de ROMER
Commission of the Churches on International Affaires: Mr. MOURAVIEFF
Consultative Council of Jewish Organizations: Mr. TEMKIN
International Co-operative: Miss ROSSIER
International Union of Catholic Women's Leagues: Miss de ROMER
Liaison Committee of Women's International Organizations: Miss ROSSIER
Women's International League for Peace and freedom: Mrs. BAER
World Jewish Congress: Mr. BIENENFELD

Secretariat:
Mr. Humphrey: Director, Division of Human Rights
Mr. Giraud: Legal Department
Mr. Hogan: Secretary to the Committee

1. ELECTION OF VICE-CHAIRMAN AND RAPPORTEUR

The CHAIRMAN welcomed the observers from the Italian and Swiss Governments, and said that observers from any other interested Governments would also be welcome.

As the regular Chairman had been prevented from attending, he had been asked, as Vice-Chairman, to take the Chair. He thought it desirable that the Committee should elect another Vice-Chairman, and, as Mr. Guerrero would also be unable to attend, another rapporteur.

Mr. PEREZ PEROZO (Venezuela) nominated Mr. Penteado (Brazil) for the office of Vice-Chairman.

Mr. HENKIN (United States of America) seconded the nomination.

Mr. Penteado (Brazil) was elected Vice-Chairman by acclamation.

Sir Leslie BRASS (United Kingdom) nominated by Mr. Winter (Canada) for the office of Rapporteur.

Mr. Winter (Canada) was elected Rapporteur by acclamation.

2. PRELIMINARY DISCUSSION

The CHAIRMAN said that the work to be done by the Committee had been defined in the resolution (E/1818) adopted by the Economic and Social Council on 11 August 1950. The preparation of revised drafts of the agreements had been considerably simplified, as the Council had drafted a preamble and prepared a definition of the term "refugee" (article 1). He suggested that the Committee proceed at once to a consideration of article 2.

Mr. ROCHEFORT (France) said that, without disapproving of the Chairman's suggestion, he nevertheless considered it desirable for the delegations that had taken part in the discussions in the Social Committee and in the Council to be able to give their general views on the conclusions reached by those two bodies. He felt that the members of the Ad hoc Committee who had not been present at the Council discussions on the question of refugees and stateless persons should be acquainted with the situation.

Mr. HERMENT (Belgium) wondered whether general statements would not be likely to re-open discussion on already established points, thus holding up the Committee's work unnecessarily. In his opinion it should be made clear, there and then, that there was no question of holding a general discussion; only short statements explaining the situation to the members of the Committee were required.

Mr. ROCHEFORT (France) explained that he had no intention of re-opening discussion on already established points, but simply wished to extract the essence form the discussions in the Social Committee and in the Council in order to facilitate the work of the Ad hoc Committee.

The CHAIRMAN thought the French representative's suggestion a useful one, and asked him to outline the views of his delegation.

Mr. ROCHEFORT (France) said he wished to make a statement on the position of the French delegation, which found itself in a rather delicate situation in the Committee. It had in fact been led to criticize before the Social Committee the geographical composition of the Ad hoc Committee, the texts it had drawn up and the spirit in which it had worked. What was even more serious, his delegation had put forward two new proposals, which had been adopted, after amendment, by the Social Committee in place of texts adopted by the Ad hoc Committee. That being so, it might be asked why the French delegation had first supported the suggestion that the question be referred to the General Assembly, but had later voted for a further meeting of the Ad hoc Committee.

The French delegation, it was true, in drawing up the drafts it had submitted to the Social Committee, had been guided by the text drawn up by the Ad hoc Committee. It was likewise true that it had only agreed to the draft agreements being referred to the General Assembly on condition that the Council took decisions beforehand on two essential points, namely: the preamble to the convention and the definition of the term "refugee". Those were two questions of a political character which it was absolutely essential to examine substantively before referring them to the General Assembly, if a setback was to be avoided. The decisions taken by the Council should greatly facilitate the work of the Ad hoc Committee.

Since the records would provide sufficient commentary on the two texts adopted by the Council, he would confine himself to some observations on the spirit in which the committee's work should be tackled.

The discussions in the Social Committee had brought out the absolute necessity for subordinating the legal drafting of the text to a very clear recognition of realities. If that were not done, the Convention drawn up by the Ad hoc Committee would suffer a setback when it came before the General Assembly and, what would be more serious, before the Governments that would be invite to accede to it. It would be well to bear in mind that those Governments constituted the true majority, even though they might perhaps have been in a minority on the Ad hoc Committee.

Among the various European countries represented on the Committee, France had the onerous privilege of being the country with the greatest responsibilities in the refugee field, and the one that was most exposed. He had already had occasion to refer in the Council to the fact that his country had, since 1920, accepted, either on a temporary or a permanent basis, 1,300,000 refugees, or, in other words, more than the International Refugee Organization (IRO) had ever had under its mandate. No doubt, the greater part of those refugees had been merged in the national community, while others had been able to return to their own countries. Even so, there still remained some 300,000 of whom 75,000 were refugees of recent date.

It would be well to took into those figures. It had been claimed that the receiving countries were fostering an artificial refugee problem by not adopting a sufficiently liberal naturalization policy. It could not be sufficiently stressed how chimerical was the belief that such a policy would provide an immediate solution to the problem as a whole. Not all refugees arriving in the receiving countries were candidates for naturalization. It was enough to study the constitution of IRO to realize that the 120,000 Spanish refugees, for example were only temporarily resident in France until such time as they could return to their own country. Among the other refugees, some hoped to leave Europe, others to return to their own country, and the majority, pending the time when they could take a decision, remained where they were without being prepared on that account to become citizens of the country which gave them shelter. Finally, there were others whom the host countries might not be anxious to naturalize. Among those who had chosen freedom were some who had been oppressors in their own countries, and in such circumstances, it was permissible to doubt whether their choice was sincere.

Furthermore, countries overseas should realize that, when it came to naturalization, European host countries were obliged to apply the same conditions which they themselves normally applied in the case of immigration. The countries of Europe, conscious of their geographical position, had granted hospitality to large numbers of refugees, and they could not help being equally conscious of it when it came to naturalizing those whom they had so generously accepted. Where hospitality was given without the slightest discrimination, it was natural that discrimination should be exercised at the stage of naturalization.

It should also be remembered that the efforts of IRO had tended to leave in Europe only the least valuable elements, those whom it was customary to call the "hard core" and who could be nothing but a burden to the host countries.

Moreover, in European countries, the refugee situation was not static as it was overseas. In European, the situation depended neither upon the judgement nor upon the will of the countries concerned. It was not for them to prohibit entry to their territory, when countries where more authoritarian regimes held sway could not manage to close their frontiers to the exist of their citizens. In that connection, he would like to draw attention to the fact that the eastern frontiers of France were particularly exposed, not only to any fresh influx of refugees from eastern European countries, but also on account of the numerous refugees already in Germany and Austria. France was, after all, the last country in the West before one came to the ocean.

Such were the uncontestable, and, for that matter, uncontested facts which should not be forgotten. Viewed in their light, the definition adopted by the Council was the very embodiment of the liberalism of the European countries. It would be difficult to find a broader definition or one move threatening for those countries. No doubt, the deadline of 1 January 1951 afforded a protection in some respects, but the not with regard to the many persons already in Austria and Germany, who had already acquired the status of refugees. France was registering every month same four to five thousand refugees who had crossed the frontiers clandestinely. Who would venture to claim that such a situation was normal or easy to solve or that it was the sole responsibility of the French Government? If the problem was to be considered in its true light, it was necessary far all such facts to be known. The hospitality offered by the countries of Europe was a service they rendered on behalf of all the Untied Nations to the cause of freedom and civilization.

In the circumstances, it was easy to understand the reasons which had led the Social Committee to include in the texts it had adopted provisions rejected by the Ad Hoc Committee, in particular a preamble drafted in terms which were fair to the refugees and to the receiving countries and a definition of "refugee" which, by excluding persons who fall under the provisions of article 14, paragraph 2, of the Universal Declaration of human Rights, brought the Convention into accordance with the requirements of international morality and provided a safeguard for genuine refugees and for the receiving countries. It had also been felt that the Convention should include articles covering discontinuance of the status of refugee, not, of course, with any intention of driving victims of racial persecution back to their countries of persecution, but so that people no longer in fact refugees and no longer entitled to claim that status should not enjoy its benefits.

He would next reiterate what he had already said in the Council - the receiving countries in Europe had been offended by an idea that emerged from the summary records of the meetings of the Ad hoc Committee. To assert that the fact that the problem of protection did not arise in one's own country was something to be proud of, amounted conversely to stating that a country where such a problem did arise not only had no right to feel proud, but perhaps ought even to feel ashamed. That view might give the impression that the community of nations, rightly indignant at the inability of European countries to mete out to refugees treatment as liberal as countries further away, had taken up the problem of their own accord and proposed that a convention be drawn up which apply to all receiving countries. Such an approach would be fundamentally mistaken.

The realistic view that had been expounded led to one obvious conclusion: the problem of protection only arose in the European countries because they had shown undue liberality by practising a non-discriminatory policy of asylum.

The countries of Europe had every right to feel a certain legitimate pride in their attitude.

Any other view, placing on the European countries the responsibility for the problem, was clearly based on neglect of a number of facts, namely: that the European countries had always been the first to take the initiative in drawing up international conventions for the protection of refugees; that France in particular gave persons in the position, but not enjoying the status, of refugees the same rights and advantages as if she were bound to do so by conventions; and that the French Government had extended those rights to refugees from Spain even though she was not bound to do so under any international convention.

All such considerations might appear to be leading away from the main point of discussion. But the French delegation regarded them as fundamental, and felt that only on the basis of a concrete knowledge of the true situation in the European countries could study of the text of the Convention be pursued in a realistic manner, as demanded by the refugees' needs and in accordance with the potentialities of the various States.

The French delegation had hoped that observers from the Governments interested in the problem would take part in the Committee's debates. One had only to read in a memorandum from one such government to the Secretary-General that out of a population of 7,000,000 Austria had 450,000 refugees, to realize that the application of a convention on refugees in such a country did not simply raise a legal problem, but would give rise to difficulties decidedly more complex than a debate on legal points. Hence the French delegation hoped that the Committee would bear in mind any comments the representatives of Italy, Switzerland and Austria might have to make.

He had spoken with the interests of his country at heart; but he had also had at heart the interests of those neighbouring countries which were in exactly the same position. He was also convinced that in the long run he had been speaking in the interests of the refugees themselves. What use would there be after all in drafting the text of a convention which only one or two countries would be in a position to accept?

The French delegation did not intend to make any far-reaching demands during the forthcoming debate. But the observations of European countries represented on the Committee, which had already given evidence of their very proper concern, should be taken into account. The text must be sufficiently flexible, especially in regard to reservation clauses. A rigid text, to be applied or rejected en bloc, would cause bitter disappointment, or even prove an utter failure.

The few points on which the French delegation would have specific comments to make had been most carefully examined by the technical services of the French Government. The points in question were not many, but the French delegation regarded them as of the greatest importance; and he urged the Committee to bear in mind, when those points were raised, not only the 300,000 refugees at present on French soil, but all those who might arrive in the future under the definition just adopted, the French Government being unable to keep them out of its territory by a policy of entry visas, or not having the heart to send them back to the countries form which they had fled.

Mr. PEREZ PEROZO (Venezuela) agreed with the Chairman that the drafting of the preamble and article 1 by the Economic and Social Council had lifted a heavy burden form the shoulders of the Committee. The discussions in the Council also showed clearly that the Committee was not expected to deal with federal State and colonial clauses, which were essentially political in content and presented problems that should be solved by the General Assembly rather than by the Committee.

The Economic and Social Council had however requested the Committee to draft a reservations article. His delegation would have preferred the drafting of such an article also the be undertaken by the General Assembly, for Member States would then have had an opportunity of studying the revised draft of the Convention, and would thus be in a better position to decide what reservations should properly be made. The Assembly would therefore be in a better position to draft such an article.

It appeared from the discussions in the Council that most controversy had centred round the preamble and the definition of "refugee", and, to a lesser extent, round the federal State and colonial clauses. With regard to the rest of the draft Convention, the Indian and Chilean delegations had objected to articles 5, 11, 17 and 18, on the ground that they gave preferential rights to refugees. The conclusion could be drawn that the Council had agreed, if only by implication, to the remainder of the Convention. it was the duty of the Committee, in view of what had been said in the Council and in the few comments received from governments, to consider with the utmost care expressions which had provoked objections, such as "the same rights and privileges as a national". It had also to be remembered that the Convention would undergo the scrutiny of the Governments of all the States which were considering adhering to it; it was therefore important so to draft the reservations article as to command wide agreement.

The work being undertaken was humanitarian in intent; no direct advantage was being sought for the countries represented; and one of the most difficult parts of the work had already been completed. In the circumstances, the session should be short, and there should be no need for the lengthy discussions that had taken place at the previous session. Apart from such considerations, it was essential for small delegations like his own that the work be completed without delay; If it were not, he would have to leave his country unrepresented in the Committee in order to prepare for the forthcoming session of the General Assembly.

Mr. HENKIN (United States of America) wished to make a few remarks before the Committee began its work. He agreed in large part with what the representative of France had said, and also endorsed the views expressed by the Venezuelan representative, especially the latter's suggestion that the Committee should proceed with as much despatch as possible, so that all concerned could be adequately prepared and briefed for the consideration of the draft Convention in the General Assembly.

With regard to the plan of the Committee's deliberations, it seemed to him that in the first place there should be discussion on those articles that called for special comment, especially for the benefit of the observers, so that the latter could add their own comments. Full consideration would also have to be given to the comments submitted by Governments, and it seemed appropriate at that point to suggest that the Committee should pay particular attention to the comment of the Government of Israel (E/AC.32/L.40, page 10).

It was important that the Convention should be so drafted as to constitute a self-contained document, and perhaps the text might include any necessary explanation of certain technical phrases and the like. He hoped that the spirit that had inspired the Committee at its last session to seek a mean between existing legislation in the various countries and an ideal humanitarian goal, would continue to prevail. In that connection, he had in mind the observations made by the representatives of India and Chile in the Social Committee concerning certain articles that afforded refugees preferential treatment as compared with ordinary aliens and the nationals of receiving countries. His Government believed that there would be many instances where countries would be prepared to accord a privileged status to refugees and he would not like to see the Convention restrict the rights given to refugees to those given to ordinary aliens. Such a procedure might, of course, create difficulties for certain countries, and consequently his delegation would be prepared to accept a relatively liberal reservations clause. In any event, refugees should have a status not less favourable than that of ordinary aliens. Again, it would be recalled that the work of the Committee at its previous session had been greatly facilitated by not trying to draft clauses in Committee. He therefore proposed that while the various articles should be considered in general session, any drafting that proved necessary should be assigned to a drafting sub-committee.

Sir Leslie BRASS (United Kingdom) wished merely to make a few brief remarks. His Government sympathized deeply with the plight of refugees, and desired to give them all the help it could. He found himself in a somewhat difficult position in that he had not been present when the Council and its social Committee had discussed the problem and that he had not yet had time to study the summary records of their discussions. In the meantime, therefore, he would have to rely on those who had been present for an account of what had taken place, and he thanked the French representative for his statement. His Government too had not been able to study the outcome of the deliberations he had mentioned so that, in that respect also, he was somewhat unprepared. His government, in fact, had hoped for more time in which to study the problem and to formulate its reactions to the various points at issue. However, he would endeavour to anticipate the likely views of his Government.

At that juncture he would merely draw the Committee's attention to the United Kingdom's general Comments (E/AC.32/L.40, pages 17-18) on the draft Convention. The general law in his country applied to aliens and British subjects alike. It was not his more so as, with but few exceptions, an alien enjoyed in the United Kingdom the same rights and privileges as a British subject and was, in fact, from the point of view of everyday life, most liberally treated. An alien had however, of course, to obtain permission to enter the United Kingdom, and such permission might be granted subject to conditions; he was also liable to deportation.

His Government hesitated to accept the universal application of some of the provisions of the draft Convention in view of the fact that they did not allow for exceptional cases or for emergencies and crises. After the experience of the last two wars, it felt that the question of security must be a prime consideration.

Turning to the question of the definition of "refugee" and the opposed views expressed by the United States delegation and his own in the Council, he thought that so complicated definition was perhaps possible in dealing with administrative matters but not practicable for the determination of legal rights by the courts. However, as in his country refugees and aliens were accorded equal treatment little short of that which its own nationals enjoyed, the question of legal rights should not arise. His government in any event did not wish to introduce a system of legal rights for refugees as distinct from other aliens.

Mr. CHA (China) said that his Government did not favour preferential treatment for refugees. It had always been sympathetic to these who had sought refuge in China. Many of them, although they had prospered there, had not chosen to become naturalized. His Government's view was based on long experience and particularly on the bitter experience arising out of granting preferred status under the extra-territorial régime following the opium war more than a century past.

Mr. HERMENT (Belgium) proposed that the United States representative's suggestion for a drafting sub-committee be followed, and that the draft Convention be examined article by article.

The CHAIRMAN felt that the various statements that had been made would provide a useful background for the future work of the Committee. He proposed that, as the United States representative had suggested, the Committee should proceed to consider the draft Convention article by article in the light of all the comments that had been made. The text as it stood was not a self-contained document and certain comments in the Committee's report on its first session (E/1618) were even contradictory; special regard should therefore be had to the Israeli comment on that subject. He also proposed that the Committee adopt the suggestion that it set up a sub-committee to draft articles as occasion arose.

It was agreed that the procedure outlined by the chairman should be adopted.

Mr. CRAMER (Switzerland) thanked the Ad hoc Committee for allowing his country to send observers to its debates.

It was hardly necessary or convenient at the moment to put before the Committee the views of the Swiss Federal Government on the texts which had just been adopted by the economic and social Council. But he wished to state that his country welcomed the adoption of article 1 of the draft Convention.

He would submit the various observations of his Government during the article-by-article examination of the text.

Mr. GIRAUD (Secretariat) said he would like to proffer a general observation which might simplify the Committee's work. Article 36 of the draft Convention, dealing with reservations, had itself been the subject of reservation, and had given rise to comments by several governments. Members of the Committee were well aware that, generally speaking, opinion was against reservations as tending greatly to lessen their scope. Hence United Nations doctrine required that reservation should be formally accepted before they were valid.

In the present instance, however, the Convention was of a special kind imposing on the Contracting Parties obligations in respect not of other States, but of refugees, and reservations did not therefore involve the same drawbacks. States were at liberty not to accept the Convention, and if there was nothing dishonourable about not accepting it, it was likewise not dishonourable to accept it with reservations.

A system differing from the general practice might then perhaps be admitted, namely, the system of "free reservations", valid even without the agreement of acquiescence of the other Contracting Parties. The formula would not of course extend to the basic articles of the Convention, that was, the first article, the final articles and possibly certain other particular articles.

Such a procedure would make it possible, instead of aiming at the lowest common denominator, to adopt fairly broad and liberal formulas. Each State would interpret its obligations according to its own needs and requirements, and would make such reservations as it thought fit.

The meeting rose at 1 p.m.