Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Eighth Meeting Held at Lake Success, New York, on Monday, 23 January 1950, at 3 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
Representative of a specialized agency:
Mr. WEIS International refuges Organization (IRO)
Consultant from a non-government organization (Category A):
Mr. STOLZ American Federation of Labor (AF of L)
Mr. 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, E/AC.32/L.5) (continued)
Article 4, paragraph 1
1. The CHAIRMAN invited the Committee to continue its discussion of article 4, paragraph 1, of the draft convention relating to the status of refugees prepared by the Secretariat (E/AC.32/2).
2. Mr. LARSEN (Denmark) did not approve of the French proposal (E/AC.32/L.3, article 3, paragraph (a)) to the effect that the personal status of refugees who had retained their original nationality should be determined in accordance with the rules applicable in each country to aliens possessing a nationality. Refugee should not be treated by the host country in accordance with the very laws - such as the Nürnberg Laws - that might have cause them to become refugees. He preferred article 4, paragraph 1, as drafted by the Secretariat, especially as it was identical with provisions contained in earlier conventions.
3. Mr. CHA (China) agreed with the Secretariat proposal that refugees should be treated in accordance with the laws of the country which had given them asylum. His own country would never agree to return to the practice of extraterritoriality, with which it had had bitter experience.
4. He did not think, however, that a distinction should be made in article 4 between the country of domicile and the country of residence. Domicile presupposed that a persons was normally living and working in a country and had the intention to remain there, whereas the refugees who would fall within the scope of the convention would be persons whose present and future were as yet unsettled and who at best might be said to be resident in the country which had given them shelter. He therefore felt that the reference to the law of their country of domicile should be deleted.
5. Mr. RAIN (France) pointed out that the first sentence of article 3 proposed by his delegation did not mean that all refugees should be subject to the laws of the country of which they were nationals; that would apply only to those refugees who had retained their nationality. Furthermore, paragraph (c) of that article made it clear that the laws to be taken into account were those which had been in force before the refugees' departure. The French proposal was prompted by the desire to respect as much possible the national traditions of the refugees. Mr. Rain held no brief for the actual wording, however, and was prepared to modify it to meet the views of other representatives.
6. Mr. ROBINSON (Israel) said that the chapter of the draft convention which the Committee was considering lay in the domain of private international law, which was in fact national law. Since its rules had been largely established by the various countries themselves. Convention on that subject had been few and had been ratified by a limited number of countries; such countries as France, the United Kingdom and Canada relied in daily practice on a great body of previous decisions rather than on formal laws.
7. The distinction the French proposal made between refugees who had retained their nationality and those who had not was based on two legal fictions, both of which did not apply to refugees: first, that each man carried his nationality with him, wherever he went. That was true only if he intended to return to the country of his origin. Secondly, that ignorance of the law was no excuse. A person might not be expected to know the law of a foreign land; he must, however, know the laws of his own country. It would be hardly fair, however, to say that a man who had fled from his country with the intention of never going back retained his nationality, nor would it be fair to expect a refugee, who might well have spent most of his life abroad, to know the law of the country of his origin.
8. Furthermore, no refugee should be forced to accept the laws of the country of which he was a national, for under that system the Nürnberg Laws, for instance, would have been applicable to German Jews who had fled abroad. The only recourse left to the courts of a country which recognized the law of the country of nationality was to invoke the clause of ordre public, which they were not always ready to do, since in so doing they would seem to be casting an adverse reflection on the legal system of a friendly State.
9. Mr. Robinson consequently felt that the French proposal that refugees who had retained their nationality should be treated in accordance with the laws of their own country would unduly complicate matters and would probably defeat the purpose of the draft convention. He preferred the text proposed by the Secretariat.
10. While admitting the validity of the distinction between the country of domicile and the country of residence, he drew attention to the ambiguity of the term "domicile", which was interpreted differently by different legal systems. In any case, it was quite possible for a person to have his residence in one country and his domicile in another.
11. He hoped that the French representative would find it possible to accept the Secretariat text of article 4, paragraph 1.
12. The CHAIRMAN, noting that a number of questions had been raised regarding the reason for the choice of criteria set forth in article 4, paragraph 1, of the draft convention prepared by the Secretariat, invited the author of that draft, Mr. Giraud, to comment upon that point.
13. Mr. GIRAUD (Secretariat) stated that the criteria of domicile and residence had been chosen in preference to the principle of nationality for several reasons. A refugee was characteristically a person who had broken with his home country and who no longer liked its laws. That fact constituted a strong reasons for not applying to him the laws of his home country. Furthermore, it would for more harmonious relation if the laws of the country in which the refugee had established domicile or residence were applied to him.
14. He would also stress that the two criteria - domicile and residence - were not simply juxtaposed in the paragraph under consideration: it was to be noted that the law of the country of domicile was to be applied in the first instance, the law of the country of residence to be applied only if the country of the refugee's domicile was unknown or in doubt. While preference was thus given to the criterion of domicile, the notion of residence had been introduced because it was often easier to establish residence than domicile.
15. Mr. RAIN (France) had in the meantime scrutinized the proposed French draft of the paragraph in question. That draft was in fact a combination of relevant parts of the Conventions of 1938 and 1933. Sub-paragraph (a) of the French draft was taken textually from article 6 of the Geneva Convention of 10 February 1938, sub-paragraphs (b) and (c) from the Convention of 1933. In those circumstances, he found it easy to agree with the Israel representative's arguments in support of the text prepared by the Secretariat.
16. Mr. HENKIN (United States of America) stated that every country presumably had its own laws on the methods of determining the status of aliens. He wondered whether the paragraph under consideration was intended to modify those laws in order to bring about uniformity, and if so, whether such an attempt was desirable.
17. Mr. WEIS (International Refugee Organization) noted that the paper submitted by his organization (E/AC.32/L.5) contained a survey of national jurisprudence bearing on the very question raised by the Untied States representative. He cited recent legal decisions to show that there was a general tendency to use the criteria of domicile and residence rather than nationality in the determination of the personal status of refugees and stateless persons. The IRO had experienced great difficulties in cases where the principle of domicile and residence had not been applied. The distinction made in the determination of the personal status of refugees with or without nationality, was due to the Convention of 1938. There were at the moment many refugees who were not stateless de jure but stateless de facto. To draw a distinction between the two groups in matters of personal status was entirely artificial.
18. The CHAIRMAN asked whether the Committee was prepared to approve the draft of article 4, paragraph 1, as prepared by the Secretariat.
19. Sir Leslie BRASS (United Kingdom) was not quite certain about the precise purport of the paragraph. If it meant, in the case of his own country, that the personal status of refugees would be determined in accordance with the law of domicile, he could accept the paragraph, since every one has a domicile under English law.
20. Mr. GUERREIRO (Brazil) said that his Government would be prepared to accept article 4, with slight reservations. Paragraph 1 was entirely satisfactory since it corresponded to the provisions of the civil code of Brazil respecting the personal status of foreigners. It should be remembered that the courts of the reception country would determine the domicile or residence of aliens. Moreover, the Brazilian courts would have no difficulty in applying the provision in paragraph 3 regarding acquired rights. Finally, Brazilian courts would have no particular hesitation in invoking the public order clause of Brazilian law in order to set aside the national law of a foreign country.
21. Mr. RAIN (France), referring to the remarks of the United Kingdom representative, presumed that English law would apply to most refugees in Great Britain. Commenting on Mr. Guerreiro's observation, he found it normal that Brazilian law should apply to refugees in that country and that Brazilian statute regarding public order should be invoked when necessary.
22. Turning to the actual drafting of article 4, Mr. Rain noted that paragraph 1, which defined the personal status of refugees, was broader in scope than paragraph 2, which dealt with family law. Further, he saw no need to mention stateless persons at all, even parenthetically, inasmuch as the text of the draft convention would make no distinction among types of refugees. In paragraph 2, he suggested the addition of the word "especially" or the phrase "above all" after "shall be governed". In all other respects, he found the Secretariat text acceptable.
23. Mr. GUERREIRO (Brazil) observed in explanation of his previous remark that a Brazilian court might be obliged to apply the law of a foreign country in the case of a person domiciled outside Brazil who was being judged by that court. He agreed with the representative of France that paragraph 1 was comprehensive in character and that the question dealt with in paragraph 2 was comprised in the general rule proclaimed in the preceding clause.
24. Mr. RAIN (France) considered it advisable, in view of the complicated procedure which might be required to establish the distinction between domicile and residence, and in the interests of the refugees, to retain only the reference to the law of the country of residence in paragraph 1.
25. Mr. CUVELIER (Belgium) favoured the retention of the two concepts: domicile and residence. To support his view, he referred to a hypothetical case of a refugee domiciled in China, where he had his family and his business, who might visit Belgium on a business trip. If he should happen to die in Belgium, it would be ludicrous to determine his status on the basis of the law of the country of residence. He would normally be subject to the law of China, his country of domicile. Accordingly, when the country of domicile differed from the country of temporary residence, the law of the former should be applied. If the person concerned was not domiciled in any country, the obviously the law of the country of his residence would alone apply.
26. Mr. RAIN (France) agreed with Mr. Cuvelier's interpretation and withdrew his earlier suggestion.
27. The CHAIRMAN asked the Committee to approve paragraph 1 of article 4, with no substantial change in the Secretariat text, except the elimination of the parenthetical reference to stateless persons, the English text to read as follows:
"The personal status of refugees shall be governed by the law of their country of domicile,
or, if they have no domicile, by the law of their country of residence."
There being no objection, paragraph 1 of article 4 was approved.
Article 4, paragraph 2
28. Sir Leslie BRASS (United Kingdom), speaking on a point of order, suggested that the question of the celebration and dissolution of marriages, which formed the subject of the second paragraph of article 4, should be considered separately.
29. Mr. LARSEN (Denmark) suggested that the celebration and dissolution of marriage should be dealt with as two distinct matters. Whereas the presence of both parties was required for the celebration of a marriage, its dissolution could be effected even if only one party were present in the country. Special difficulties arose when only one of the parties was present in the country as a refugee.
30. The CHAIRMAN, speaking as the representative of Canada, noted that the law of the refugee's country of residence would always govern the celebration of marriages.
31. Mr. ROBINSON (Israel) noted that the distinction drawn by the representative of Denmark was not particular to refugees; the problem was of a general nature and was normally solved by the laws in force in the country or state where the marriage was to be celebrated or dissolved.
The meeting rose at 4.25 p.m.