Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Forty-Third Meeting Held at the Palais des Nations, Geneva, on Friday, 25 August 1950, at 10.30 a.m.
Chairman: Mr. LARSEN (Denmark)
Rapporteur: Mr. WINTER (Canada)
Belgium Mr. HERMENT
Brazil Mr. PENTEADO
China Mr. CHA
France Mr. JUVIGNY
Israel Mr. ROBINSON
Turkey Mr. NURELGIN
United Kingdom of Great Britain and Northern Ireland Sir Leslie BRASS
United States of America Mr. HENKIN
Venezuela Mr. PEREZ PEROZO
Italy Mr. MALFATTI
Switzerland Mr. SCHÜRCH
Representatives of specialized agencies:
International Labour Organisation Mr. WOLF
International Refugee Organization Mr. WEIS, Mr. KULLMAN
Representatives of non-governmental organizations:
Category B and Register
Commission of the Churches on International Affairs Mr. MOURAVIEFF
International Co-operative Women's Guild Miss ROSSIER
Liaison Committee of Women's International Organizations Miss ROSSIER
Women's International League for Peace and Freedom Mrs. BAER
World Jewish Congress Mr. BIENENFELD, Mr. LIBAN
Mr. Humphrey Director, Division of Human Rights
Mr. Giraud Legal Department
Mr. Hogan Secretary to the Committee
1. COMMUNICATION FROM THE YUGOSLAV GOVERNMENT
The CHAIRMAN announced that comments had been received by the Secretary-General from the Yugoslav Government on the draft Convention contained in document E/1618. Since it was too late to re-open discussion on the entire question, those comments would be circulated to Governments with the report of the Ad hoc Committee, to be taken into consideration before the subsequent discussion in the General Assembly.
2. PROPOSED DRAFT PROTOCOL RELATING TO THE STATUS OF STATELESS PERSONS (E/1618, E/1618/Corr.1, E/1818, E/AC.32/L.40 and E/AC.32/NGO/1)
At the invitation of the CHAIRMAN, Mr. HOGAN (Secretary to the Committee) read out the proposed Protocol relating to the status of stateless persons contained on page 63 of document E/1618.
Mr. HENKIN (United States of America) suggested that it should be made clear in the first line of the operative part of the Protocol that the new provisions in articles 3a and 3b of the Convention Relating to the Status of Refugees were understood to be included in the reference to articles 2-4.
The CHAIRMAN proposed that a statement to that effect should be included in a footnote.
It was so agreed.
Mr. HENKIN (United States of America) suggested that the paragraph beginning "This Protocol shall not apply" should be redrafted as follows:
"This Protocol shall not apply to a person who is a former national of a German minority and has established himself in Germany or is living there, since such persons enjoy the protection of a Government."
The last clause had, in fact, been adopted by the Economic and Social Council in the definition of the term "refugee". Such a draft would make it clear that there was no discrimination intended, but would recognize as a special problem the group of people in question, who might or might not have a nationality but certainly did enjoy the protection of a Government.
Mr. ROBINSON (Israel) considered the word "former" to be redundant. He had no particular objection to the words "since such persons enjoy the protection of a Government", but thought it was unnecessary and improper to include the reasons in a definition. In any case, it was hardly true to say that such persons enjoyed the protection of a Government, as Germany was not a sovereign state and had no consulates.
Mr. HENKIN (United States of America) agreed to the deletion of the word "former".
He would not press for the inclusion of the final phrase giving the reason for omitting the members of former German minorities from the application of the Protocol, although he thought that it made the provision more palatable.
Mr. PEREZ-PEROZO (Venezuela) proposed that the sentence should read: "This Protocol shall not apply to persons referred to in part B of article 1 of the Convention Relating to the Status of Refugees". That text would avoid explicit reference to the particular group in question.
Mr. HENKIN (United States of America) pointed out that paragraph 4 of that section would not be relevant.
After some discussion, the CHAIRMAN proposed that the reference should be made to paragraph 5 only of part B of article 1, since it was agreed that the remaining paragraphs were not relevant to the point at issue.
Mr. JUVIGNY (France) opposed the exclusion of the category of persons in question.
The CHAIRMAN asked the Ad hoc Committee to vote on the substance of the matter, namely whether a provision should be included in the Protocol excluding the special group in question.
It was decided, by 6 votes to none with 3 abstentions, that such a provision should be included.
The CHAIRMAN suggested that the following wording be used: "This Protocol shall not apply to persons referred to in paragraph 5 of part B of article 1 of the said Convention".
It was so agreed.
The CHAIRMAN asked the Ad hoc Committee to vote on the substantial question of whether there should be a protocol at all of the kind under discussion. Speaking as the representative of Denmark, he declared again that he did not consider the Protocol satisfactory as Denmark was not prepared to give to every stateless person, without regard to when, why and how he had become stateless, the benefits to be extended to refugees.
Mr. HERMENT (Belgium) declared that his position regarding the Protocol was the same as that expressed by the representative of Denmark.
The CHAIRMAN asked for a formal vote on the question of whether the Ad hoc Committee should recommend the acceptance of a protocol such as had been drafted.
It was decided by 6 votes to 2 with 2 abstentions that the Ad hoc Committee should make that recommendation.
3. CONSIDERATION OF THE REPORT OF THE AD HOC COMMITTEE ON REFUGEES AND STATELESS PERSONS (E/AC.32/L.43 and Working Paper X.10)
Opening discussion on the Committee's draft report (E/AC.32/L.43), the CHAIRMAN asked whether there were any comments on Chapter I, relating to the organization of the Committee.
He pointed out that the Secretariat would fill in the list of consultants of non-governmental organizations in paragraph 7 and the numbers of the relevant summary records.
Chapter I was adopted on that understanding.
Chapter II was adopted.
The CHAIRMAN suggested that Chapter III, containing a report of the decisions made by the Ad hoc Committee, should be considered paragraph by paragraph.
After some discussion, it was agreed that Chapter III should be referred to the Drafting Committee.
The meeting was suspended at 12.25 p.m. and resumed at 2.10 p.m.
The CHAIRMAN suggested that the Committee proceed to consider which articles of the Convention were to be mentioned as not subject to reservation in paragraph 1 of the proposed reservation clause contained in document X.10 of the Drafting Committee.
Mr. JUVIGNY (France) said that his Government wished it to be expressly stated in the reservation clause that reservations could not be submitted concerning the preamble or articles which included recommendations.
Mr. HENKIN (United States of America) could not imagine that any country would wish to make a reservation with regard to the preamble; furthermore, it seemed inappropriate to include such a provision as the French representative suggested in the text of the Convention. Perhaps the French representative would agree to allow the records of the Committee to speak for themselves.
Sir Leslie BRASS (United Kingdom) could not see how a reservation to a preamble or a recommendation could have any effect at all.
The CHAIRMAN felt that "reservation" meant restriction of obligations undertaken by adhering to the Convention. Since the preamble did not impose any obligations, the appropriate way for a Government to dissociate itself from the recommendations of the preamble was to make a separate declaration to that effect.
Mr. ROBINSON (Israel) felt that to vote on the question of the applicability of reservations to a preamble would be like disputing anew the truth of the theorem of Pythagoras. He hoped that the representative of France would, as the United States representative had suggested, be satisfied with a mention of his views in the summary record, unless his proposal received support from other members.
The CHAIRMAN called upon the representative of the Legal Department to give his views on the question.
Mr. GIRAUD (Secretariat) observed that there had never been any need, in practice, to submit reservations to the preamble to a convention or to the recommendations which it contained, since neither the preamble nor the recommendations could be binding on a Government. In his view, it would be very dangerous to create a precedent in that respect.
The CHAIRMAN recalled that it had not been the Committee that had drafted the preamble. The question of whether or not reservations to the preamble were to be permitted was therefore in any case perhaps outside its competence.
Mr. HERMENT (Belgium) said that, when a State acceded to a convention, it automatically approved the preamble.
Mr. JUVIGNY (France) said he disagreed with the Belgian representative's view in the light of the discussions on the preamble in the Economic and Social Council.
Mr. HENKIN (United States of America) understood that the French proposal was intended to preclude Governments from making separate declarations opposed to the substance of the preamble.
He suggested that the discussion be closed and a vote taken.
The CHAIRMAN put to the vote the French proposal that it be indicated in the reservation clause that the preamble and clauses embodying recommendations could not be subject to any reservations.
The proposal was rejected by 7 votes to 2 with 2 abstentions.
Mr. HENKIN (United States of America) proposed that article 3 be mentioned as not subject to reservation.
Mr. JUVIGNY (France) formally seconded the United States representative's proposal.
Sir Leslie BRASS (United Kingdom) thought that reservations should be permitted to almost every article. In the unlikely event of a Government wishing to make reservations with regard to article 3, he would permit such reservations as long as that Government was willing to adopt article 23 on travel documents.
The CHAIRMAN observed that, if any country did wish to make reservations to article 3, to allow it to do so would enable at least some categories of refugees to settle in that country.
He put to the vote the proposal that article 3 be mentioned as not subject to reservation.
The proposal was adopted by 9 votes to none with 2 abstentions.
The CHAIRMAN recalled that article 3 (b) had not yet been adopted and would have to be considered later.
Mr. HENKIN (United States of America) proposed that article 4, paragraph 1, be mentioned as not subject to reservation. If his proposal was adopted it would not be necessary also to mention paragraphs such as 8 and 11, which also provided for minimum treatment for refugees.
Sir Leslie BRASS (United Kingdom) could imagine that a Government might wish to add the words "in the same circumstances" to paragraph 1 of article 4.
Mr. HENKIN (United States of America) thought that "in the same circumstances" was already understood, but agreed to withdraw his proposal.
Mr. ROBINSON (Israel) proposed that in view of the extra-territorial effects of its provisions, paragraph 3 of article 11 should not be subject to reservation. The provisions of that paragraph were purely conventional, not statutory, and governed the position of a refugee outside his country of residence. If reservations were made, it might be impossible to implement those provisions.
The CHAIRMAN agreed with the representative of Israel but felt that the question must be considered from a practical as well as a theoretical point of view. Would the Committee serve the refugee best by permitting reservations or precluding them and possibly preventing signatures to the Convention?
Mr. JUVIGNY (France) proposed, as a compromise, that it should be stated that reservations concerning article 11, paragraph 1, would not be permissible.
The CHAIRMAN could scarcely imagine any country wishing to make a reservation in that respect but the question was, if any did so wish, how best to serve the cause of the refugees.
Mr. HENKIN (United States of America) supported the proposal of the French representative.
The CHAIRMAN put to the vote the French proposal to mention paragraph 1 of article 11 as not subject to reservation.
The proposal was adopted by 7 votes to 0 with 4 abstentions.
Mr. ROBINSON (Israel) proposed that article 23 be mentioned as not subject to reservation. It was one of the few articles whose provisions could not be implemented at all if reservations were permitted, and, furthermore, it introduced no new measures but merely codified the provisions of the London Agreement, which had worked satisfactorily in the past.
Mr. HERMENT (Belgium) said that some of the States which had signed the London Agreement had not yet ratified it, presumably because they were prevented from doing so by certain of its provisions. He therefore feared that the mention of article 23 as not subject to reservation would prevent some States from ratifying the Convention.
Mr. HENKIN (United States of America) felt that whereas governments could not be forced to adhere to article 23 they could not be permitted to ratify it while making reservations with regard to the right of refugees to return.
Mr. WEIS (International Refugee Organization) thought that it would be unfortunate if a Government which was not prepared to issue travel documents was precluded by the impossibility of making reservations to article 23 from adhering to the Convention as a whole. On the other hand, Governments willing to issue travel documents could not be permitted to make reservations with regard to recognizing documents issued by other Governments.
Sir Leslie BRASS (United Kingdom) felt that there could be no doubt that Governments should be permitted to reject article 23 as a whole. The question of whether, having accepted the article as a whole, Governments should be permitted to make reservations with regard to the right of refugees to return was a different one, and the answer was clearly in the negative.
The CHAIRMAN observed that the representative of Israel was really proposing that a Government which accepted article 23 could not make a reservation with regard to paragraph 13 of the schedule.
After a brief exchange of views,
It was agreed that article 23 should not be mentioned as not subject to reservation.
Mr. JUVIGNY (France) formally moved, on the grounds which he had already stated during the discussion of his proposal, that reservations concerning article 28 should not be permitted.
Mr. PEREZ PEROZO (Venezuela) intended to abstain if the French proposal was put to the vote. He wished that abstention to be noted in the summary record so as to permit the Venezuelan representative to take what action he saw fit when the matter arose in the General Assembly.
Mr. HENKIN (United States of America) recalled that the United Kingdom Government in its comments on article 28 had raised an objection. He wondered whether before a vote was taken the United Kingdom representative could inform the Committee how strong that objection was.
Sir Leslie BRASS (United Kingdom) recalled his previous statement to the Committee in which he had said that, though in practice the United Kingdom Government gave effect to the provisions of article 28, there might be a real difficulty, which, however, applied only to very exceptional cases. It had not yet decided whether to make a reservation, which in any case would be extremely limited in its application: the matter was still under consideration.
Mr. WEIS (International Refugee Organization) wondered whether a reservation with regard to exceptional cases need really be termed a reservation at all.
The CHAIRMAN put to the vote the proposal that article 28 be mentioned as not subject to reservation.
The proposal was adopted by 8 votes to none with 3 abstentions.
Mr. ROBINSON (Israel) proposed that reservations to article 30 should not be permitted. Without article 30, which established the principle of co-operation, and article 1, which defined "refugee", there could be no convention.
The CHAIRMAN foresaw a possibility that a Government, while willing to accord to refugees all the rights provided by the Convention, might have no desire for co-operation with the United Nations.
Mr. ROBINSON (Israel) thought that if non-member States wished to adhere to a convention drawn up by the United Nations, the least that could be expected of them was co-operation with the United Nations and its agencies in the implementation of the provisions of that convention.
After an exchange of views,
It was agreed to mention article 30 as not subject to reservation.
Mr. HENKIN (United States of America) thought that articles 31-40 were almost by nature not subject to reservations. With regard to article 31, for example, a Government could obviously not be permitted to sign the Convention and do nothing to implement its provisions.
The CHAIRMAN was of the same opinion as the United States representative, and observed that the work of the Committee on the reservation clause was completed apart from the adoption of article 3(b) (the definition of "in the same circumstances") and a decision as to whether reservations to it should be permitted.
Article 3(b) was adopted unanimously.
Mr. HENKIN (United States of America) thought that since there was no possibility of reservations with regard to article 3(b) it need not be mentioned in the reservation clause.
It was so agreed.
Mr. GIRAUD (Secretariat) suggested that paragraph 1 of the reservation clause should read "At the time of signature, ratification or accession, Contracting States may make reservations to articles of the Convention other than articles 1, 3, 11 (paragraph 1) and 28, and Chapters 6 and 7."
It was so agreed.
Mr. ROBINSON (Israel) suggested that the additional article (E/AC.32/L.42/Add.1, page 8) should be placed between articles 3 and 4.
The CHAIRMAN proposed that it should be numbered article 3(a).
It was so agreed.
Addition to draft report
Mr. HENKIN (United States of America) proposed that the following comment be added in the report:
"Article 36 would permit reservation with regard to most provisions of the Convention. Several provisions, however, appeared to be fundamental and not subject to reservation. With regard to article 23, while reservation would be permitted, it was obvious that a country could not for example issue travel documents but reserve the right not to permit re-entry. The Committee also re-iterated the hope that there would be few reservations. It was the opinion of the Committee that Governments might not find it necessary to reserve an article as a whole, when it would be sufficient to reserve exceptional cases or special circumstances in connection with the application of that article."
It might be argued that the insertion of such a comment was unnecessary, as most Governments would make such reservations or partial reservations in any case. He submitted, however, that the addition would do no harm.
The Committee agreed to add to its draft report the paragraph proposed by the United States representative.
The CHAIRMAN proposed that a vote be taken on the Committee's draft report as a whole.
Mr. ROBINSON (Israel) drew the attention of the Committee to document E/AC.32/6, which constituted an extremely valuable index and detailed analysis of the records of the meetings of the first session. He felt sure that all delegations had made profitable use of that document, as he had himself; thanks were due to the International Refugee Organization for the excellent work it had put in on the analysis. He hoped that the International Refugee Organization could be induced to produce, as an addendum, a similar analysis of the discussions that had taken place at the eleventh session of the Economic and Social Council, in the Social Committee and in the present session of the Ad hoc Committee.
Mr. WINTER (Canada) said he would be prepared to support the Israeli representative's suggestion, provided that the work involved occasioned no difficulties to the International Refugee Organization, which was in the process of winding up its activities.
Mr. WEIS (International Refugee Organization) thanked the Israeli representative and said that his Organization, although with much work to do, would endeavour to do its best to meet the wishes of the Committee in that respect.
Mr. HENKIN (United States of America) expressed his appreciation of the assistance rendered by the specialized agencies, in particular by the International Refugee Organization.
Mr. JUVIGNY (France) requested that it be stated in the Committee's report that Mr. Rochefort had attended the first few meetings of the Committee's session.
The draft report, as amended, was unanimously adopted.
The CHAIRMAN declared the session closed.
The meeting rose at 3.55 p.m.