Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twelfth Meeting Held at Lake Success, New York, on Wednesday, 25 January 1950, at 2.30 p.m.
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
Representatives of specialized agencies:
Mr. WEIS International Refugee Organization (IRO)
Mr. EVANS International Labour Organisation (ILO)
Consultant from a non-governmental organization (Category A):
Mr. STOLZ American Federation of Labor (AF of L)
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
(E/AC.32/2, E/AC.32/L.3) (continued)
Article 12 (continued)
1. The CHAIRMAN resumed the discussion on article 12 of the Secretariat draft (E/AC.32/2) and article 10 of the French draft (E/AC.32/L.3) relating to military service.
2. Mr. RAIN (France) referred to the remark made by the representative of Israel at the previous meeting that the United Nations should not envisage the possibility of war. He did not agree with that outlook, since, unfortunately, the possibility of war could not be precluded; in fact, it was for the very purpose of dealing with such an eventuality that the United Nations had been established. Neither could he agree with the suggestion made by the Chairman that the draft convention might not be of much use in time of war, since its provisions might be disregarded. He sincerely trusted that all countries which became parties to the convention would continue to apply its provisions in time of war.
3. Turning to his own draft, he said that the second paragraph proposed by his delegation had been criticized as an innovation. If it was true that the second paragraph was an innovation, so also was the first. In France, it had always been a fundamental principle that aliens should not be subject to conscription for military service. Thus, his delegation had viewed the first paragraph of the Secretariat draft with some misgivings and had attempted to liberalize it by inserting the provision that only those refugees who had resided for more than ten years in the country should be subject to compulsory military service. He would, however, be prepared to agree to a shorter period of residence, such as five years, if general agreement could be reached in that way.
4. With regard to the second paragraph of his delegation's draft, the idea expressed was certainly a new one, but it seemed only reasonable that refugees should not be required to bear arms against their country of origin and he felt sure that that idea would be accepted. There were many other ways in which refugees could help in the defence of their country of residency without actually bearing arms against their country of origin. In his opinion, the provision should not be regarded as granting additional privileges to the refugees, but simply as an adaptation of the regulations to suit individual circumstances.
5. The CHAIRMAN, speaking as the representative of Canada, said that he had not been concerned about the propriety of requiring refugees to perform military service, but about the advisability of saying that a large body of refugees within the country would not be required to bear arms against their country of origin. On thinking the matter over, however, he had come to the conclusion that in all likelihood refugees would not be required to bear arms against their country of origin, for reasons of national security.
6. With regard to the period of residence, he would be prepared to agree to the five-year period of residence, he would be prepared to agree to the five-year period more easily than to the original ten years mentioned in the French draft.
7. Mr. KURAL (Turkey) agreed with the arguments advanced by the representative of France. He reminded representatives that the article would apply in time of peace as well as in time of war for the countries where military service was compulsory in peace-time. With regard to the question of granting extra privileges to the refugees, he pointed out that people might be encouraged to retain the status of refugees indefinitely if they would thus be exempt from military service.
8. Mr. CHA (China) was not sure that it was really necessary to include an article on military service. If the Committee decided to retain the article, he would support the Secretariat draft rather than that submitted by the French delegation. He did not think that refugees should be given any privileges as compared with the nationals of the country. He emphasized that the possibility of another war could not be precluded and pointed out that Chapter VII of the United Nations Charter dealt entirely with the possibility of war.
9. Mr. PEREZ PEROZO (Venezuela) said that in Venezuela military service was as a general rule limited to the nationals of the country. Refugees had usually been through great hardships before they finally arrived at a new country where they wished to settle; that humanitarian aspect should not be forgotten and refugees should be allowed at least a few years in which to settle down before they were required to carry out military service. He therefore preferred the French text to that submitted by the Secretariat. He fully supported the second paragraph of the French draft, for impossible situations would arise if refugees were expected to bear arms against their country of origin.
10. Mr. HENKIN (United States of America) thought that, with regard to military service, refugees would come under the same provisions as other aliens and he therefore saw no need for nay article on the subject in the draft convention.
11. Mr. CUVELIER (Belgium) thought that the main purpose of the draft convention was to differentiate between refugees and other aliens, since the latter retained the protection of their own Government and owed allegiance to it, whereas the refugees did not. He did not think it was the normal practice to conscript aliens and he drew attention to the serious difficulties which might arise if, for example, the citizen of a neutral country were conscripted by one of the belligerents.
12. The CHAIRMAN said that there were some countries where military service was based on residence rather than on nationality.
13. Mr. LARSEN (Denmark) said that all males resident in Denmark were liable to military service regardless of their nationality, unless their country had signed a treaty with Denmark providing for their exemption on a reciprocal basis. Several such treaties had been concluded. There was no generally recognized principle of international law concerning compulsory military service for aliens and the practice appeared to differ from country to country. Indeed, had there been any generally recognized principle article 23 of the Annex to the Hague Convention respecting the Laws and Customs of War on Land would have been superfluous. Since the practice differed from country to country and the proposed article would not really affect that state of affairs, he saw no real need to include such an article.
14. In any event, he would be unable to agree to the French draft, since its adoption would give special privileges to the refugees. Any stateless person who did not have the status of refugee would still be liable to conscription without any of the privileges mentioned in the French draft. On the other hand, he fully agreed that it would create an impossible situation if refugees were expected to bear arms against their country of origin. An army was not, however, very well served by enemy aliens.
15. Sir Leslie BRASS (United Kingdom) did not know whether article 12 was intended to confer upon Governments certain rights regarding refugees or, on the contrary, to restrict those rights. In the former case it was superfluous on one view, since Governments might have the rights in question even if the draft convention remained silent on that point, and if the second alternative were correct, the clause would appear to be needlessly restrictive. He felt some doubt whether under existing international law a State could conscript for military service nationals of another State without that State's agreement.
16. Mr. RAIN (France) said that it would be difficult to answer the question whether the clause would enlarge or limit the powers of Governments. The basic difference between the Secretariat draft and the French draft was that under the Secretariat draft, Governments would be free to do more or less as they liked, while the French draft constituted an appeal for a manifestation of humanitarian spirit and international uniformity.
17. Regarding the question asked earlier by the United States representative concerning equal treatment of refugees and other foreigners, Mr. Rain agreed with what had been said by the Belgian representative. A distinction ought to be made between foreigners in general and refugees. Ordinarily, foreigners not only benefited from their country of residence but also enabled the recipient country to benefit from them on the basis of reciprocity. In the case of refugees, however, the benefit was not mutual in the same sense. Refugees were usually admitted to the recipient country on almost purely humanitarian grounds; their position thus differed from that of ordinary foreigners. A provision reflecting the principle in question should appear in the draft convention, for the draft convention would be, as it were, a charter for the refugees in which they would find recorded their rights and their duties.
18. Regarding the length of residence requirement mentioned in the second paragraph of the French proposal (E/AC.32/L.3), he was ready to accept the suggestion that it should be changed from ten to five years.
19. The CHAIRMAN, speaking as the representative of Canada, described the French proposal as being very generous. He himself could accept the French draft if the residence requirement were changed from ten to five years, unless, as was unlikely, he received instructions to the contrary from his Government.
20. Mr. HENKIN (United States of America) regarded the question raised by the united Kingdom representative as highly pertinent and agreed with his reasoning on the matter. He found some difficulty in accepting the French representative's concept of the draft convention as a charter for refugees, for it would be practically impossible to include in it all the relevant laws.
21. He pointed out, furthermore, that the proposed clause was the only thing in the draft convention that put refugees at a disadvantage in comparison with foreigners generally, by singling them out from among all aliens. He doubted whether the inclusion of the clause would actually enlarge the powers of Governments in that respect, which needed no enlarging in the convention.
22. While he retained an open mind on the question, he was inclined to favour the omission of the clause.
23. Mr. CUVELIER (Belgium) stated that the inclusion of the clause would not only enlarge the powers of the Belgian government, which at present had no power to subject refugees to compulsory military service, but would make it easier for Belgium to accept the draft convention.
24. Mr. HENKIN (United States of America) state that while the clause would indeed authorize a Government to subject refugees to compulsory military service, the Government would be able even without that clause to pass the necessary legislation if it thought fit. It was true that the clause might facilitate acceptance of the convention, but he wondered whether that consideration alone justified its inclusion in the draft convention.
25. Mr. ROBINSON (Israel) noted that there were three questions to be decided; first, whether the clause was necessary; secondly, whether it was of a discriminatory nature; and thirdly, how far the Committee should go if it decided that the clause was necessary.
26. With respect to the first question, the subject matter had been covered by the Hague Regulation of 1903. While the introduction of the clause in the draft convention might encourage States to accept the convention, it was not really necessary. The undesirability of the clause would also seem to be indicated by the legal doctrine of "inclusio unius, exclusio alterius".
27. With regard to the second question, he pointed out that a refugee was a foreigner sui generis to whom the draft convention accorded special status and in certain cases even equality with the nationals of the recipient country. The refugee thus obtained certain privileges and it was only fair to balance those by conferring upon him greater responsibilities.
28. Concerning the third question, he described the clause of self-limitation contained in the French draft as extremely generous but doubted whether many other States would be prepared to be equally generous.
29. On the whole, he did not favour the retention of the clause. The French conception of the draft convention as a proclamation of the rights and duties of refugees might be met by a general statement in the preamble.
30. Mr. RAIN (France) stated that even if the clause were regarded as not absolutely necessary, it was nevertheless true that the Committee was bound by its terms of reference to state and clarify the status of refugees; therefore, the inclusion in the convention of an important point like the liability of refugees to military service was very desirable.
31. It was true that the clause would single out refugees for military service. It should, however, be borne in mind that non-refugee foreigners remained subject to military service in the armed services of their own countries. From that point of view, too, the refugees were morally and juridically in a different category from that of ordinary foreigners. He would also point out that the Hague Convention applied only to nationals and not to refugees who were also stateless persons, so that a clause of the kind under discussion appeared to be necessary.
32. The CHAIRMAN, speaking as the representative of Canada, stated that he had been impressed by the argument advanced by the representative of Venezuela: refugees were persons who had been through certain hardships and they generally had financial difficulties. It would seem somewhat incongruous if a refugee, upon arriving a new country, were to be obliged to begin his new life by undergoing military service. He could see no reason why a clause analogous to that in the Hague Convention should not be included in the draft convention. It would be only reasonable to protect a refugee against being called up for military service within less than five years after entering the recipient country.
33. Mr. STOLZ (American Federation of Labor) recalled that refugees residing in the United States at the time of its entrance into the Second World War had been called up for military duty and had been granted United States citizenship after three months of service. Thus military service had proved to be to the advantage of the refugee.
34. Mr. LARSEN (Denmark) noted that the age groups liable to military service differed in various countries. In his own country, all men between the ages of 20 and 32 were subject to conscription. That rule might work to the advantage or disadvantage of the refugee, depending on the circumstances in each case.
35. Every effort should be made to draw up a complete code applicable to refugees, taking into account the special circumstances which placed them in a less protected position than other foreigners who possessed a nationality. The Committee was not, however, the appropriate body to legislate on the very difficult question of military service. No provision regarding that question should be included in the convention; it should be solved by the operation of national legislation within the general framework of international law.
36. Sir Leslie BRASS (United Kingdom), speaking on a point of order, observed that the Committee had yet to decide the preliminary question of the principle of including in the draft convention a provision regarding military service.
37. After a brief procedural discussion, the CHAIRMAN put that question to the vote.
The Committee decided, by 4 votes to 3, with 4 abstentions, to delete the provision concerning military service (article 12).
38. Mr. LARSEN (Denmark) said that he had interpreted the vote as applying only to the right of States to subject refugees to compulsory military service. It had resolved the question raised in the second paragraph of the French proposal (article 10, E/AC.32/L.3) concerning the bearing of arms by the refugee against his country of origin. Since the Hague Convention dealt only with foreigners possessing a nationality, it would be quite possible for Denmark, for example, under its own national law, to call up refugees for that purpose.
39. Mr. RAIN (France) agreed that the Hague Convention was not applicable. Obviously, the Committee had been reluctant to make an explicit provision on so important an issue and had preferred to leave it to the discretion of Governments. Yet if the French Government, for example, wished to amend its own legislation on the question, it might find it difficult to justify the United Nations attitude. It was necessary to place on record the fact that, in voting its deletion, the Committee had not intended to criticize the substance of the provision.
40. Mr. ROBINSON (Israel) suggested that the Rapporteur should state clearly in his report that the members of the Committee had been influenced by the arguments of the French delegation and were unanimous in considering that some restrictions should be observed by Governments respecting the incumbency of refugee for military service. They had not wished to establish a rule, but they would certainly welcome the introduction of such a limitation into national legislation including that of France.
41. Mr. GUERREIRO (Brazil), Rapporteur, took note of that suggestion.
42. Mr. WEIS (International Refugee Organization) observed that by deleting article 12 the Committee had altered the structure of the draft convention, which was meant to cover the liabilities as well as the rights of refugees.
Article 13 (Wage-earning employment)
43. The CHAIRMAN noted that the article corresponded the article 12 of the French proposal (E/AC.32/L.3).
44. Replying to a question by the representative of Belgium, Mr. HUMPHREY (Director, Human Rights Division) explained that paragraph 3 had been introduced in the Secretariat draft as a further invitation to States to extend more liberal treatment to refugees in certain cases.
45. Mr. EVANS (International Labour Organisation) said that the ILO was prepared to assist the Committee to facilitate the employment of refugees and their assimilation in their countries of residence under national laws. At the recent ILO Conference, special consideration had been given to the question and a convention on migration for employment had been adopted. Some of the provisions contained in the Secretariat draft were similar to certain clauses of that convention. The appropriate organs of the ILO had not yet, however, had the opportunity to examine the Secretariat draft and the French proposal concerning employment of refugees. Accordingly, Mr. Evans suggested that those texts might be referred to the ILO, together with a record of the Committee's decisions, to assist it in the preparation of a draft text for submission to the Economic and Social Council.
46. Mr. ROBINSON (Israel) pointed out that the Committee was bound, by its terms of reference, to produce a draft convention. In the circumstances, it could not defer consideration of the provisions on labour in order to permit the ILO to study them. That organization would have ample opportunity to contribute to the discussion of the question in the Economic and Special Council and the General Assembly.
47. Mr. CUVELIER (Belgium) said that he had presided at the ILO Conference which had adopted the convention on migration for employment. There was no contradiction between the terms of that convention and the texts before the Committee. He agreed with the representative of Israel concerning the procedure to be followed.
48. Mr. WEIS (International Refugee Organizations) said he had also been present at the ILO Conference and considered that the provisions before the Committee regarding the labour status of refugees would be entirely consistent with the model followed by the ILO.
49. Turning to paragraph 1 of the Secretariat draft, Mr. HUMPHREY (Director, Human Rights Division) noted that it was intended to invite more liberal treatment of refugees. The text was identical with that of the conventions of 1933 and 1938.
50. Mr. PENKIN (United States of America) preferred the first paragraph of the French text.
51. Mr. ROBINSON (Israel) also found the French text more liberal. He noted that it set forth three methods of treatment for refugees: the most favourable treatment given to foreign nationals: application of national laws, but not too severely; and suspension of those regulations in specific cases.
52. Mr. CUVELIER (Belgium) observed that the first paragraph of the French text was broader than the Secretariat draft, but he was not sure what the French Government understood by "most favourable treatment".
53. Mr. RAIN (France) explained that the first paragraph of the French text was the only part for the Committee to consider, in place of the entire article. It was more liberal than the Secretariat draft, and should either replace it or be combined with it.
54. Mr. HENKIN (United States of America) suggested that the French text should be used as the basis of discussion.
55. Mr. ROBINSON (Israel) pointed out that it would be unwise to discard all the provisions of the French text except the first paragraph. They were clearly related and should be given adequate consideration.
The meeting rose at 4.25 p.m.