Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Seventh Meeting Held at Lake Success, New York, on Monday, 23 January 1950, at 11 a.m.
Chairman: Mr. 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 Refugee Organization (IRO)
Consultant from a non-governmental organization: Mr. STOLZ American Federation of Labor (AF of L)
Mr. HUMPHREY Representative of the Assistant Secretary-General
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)
1. The CHAIRMAN requested the Committee to continue its study of the draft convention. He began by giving a brief account of the work done by the working group resonsible for drafting article 1 on the definition of the term "refugee". The working group had prepared a draft article which represented a compromise between the different views expressed; the Committee would later have to examine that draft definition and give its opinion on it.
2. He proposed that the Committee should examine chapter II concerning the admission of refugees. The Committee had before it the text contained in the Secretary-General's memorandum (E/AC.32/2) and the text submitted by France (E/AC.32/L.3).
Chapter II: "Admission"
3. The CHAIRMAN read chapter II of the draft convention prepared by the Secretariat. That chapter contained only one article (article 3 and the comment thereon.
4. Mr. RAIN (France) pointed out that chapter II of the draft convention submitted by France also contained a single article (article 2); article 3, 4, 5, 6, and 7 came under chapter III concerning the juridical condition of refugees; owing to a typographical error, the chapter heading had been omitted from document E/AC.32/L.3.
5. He pointed out that paragraph (1) of article 2 as proposed by France was no longer necessary, since article 1 of the France text had not been adopted. He therefore agreed to paragraph 1 of the text proposed by the Secretary-General, which expressed the same idea in a different form.
6. Mr. PEREZ PEROZO (Venezuela) wished to make some comments on chapter II; those comments would apply equally to the Secretariat draft and the France text, both of which contained the same fundamental conception.
7. The convention which the Committee was engaged in drafting would be a very momentous document both by reason of its field of application and by reason of its great moral significance. It would be no less important than the conventions which the United Nations had already adopted or hoped to adopt in the near future, such as those of genocide, prostitution, displaced persons and freedom of the press and information or the Declaration of Human Rights. The convention on refugees was intended to codify in a single document all the existing international instruments on the subject. It would proclaim the rights of refugees and grant them the privileges and facilities resulting from the recognition of their rights. Those rights should therefore be defined as specifically as possible in clear and concise text.
8. He observed that it was generally accepted in international law that only those provisions which imposed obligations on the signatories were included in the articles of international instruments; clauses containing statements of principle, hopes, wishes etc., were generally inserted in the preamble and not in the operative part.
9. Chapter II did not, apparently, impose any specific obligation on the High Contracting Parties. It simply stated a general principle, namely that the High Contracting Parties. It simply stated a general principle, namely that the High Contracting Parties should demonstrate a spirit or international solidarity. That text was unnecessary, since it was obvious that the effectiveness of the convention would depend on the good will and the spirit of solidarity of the signatory States. All the States which ratified the convention would be inspired by that spirit and no useful purpose would be served by devoting an article to that question.
10. He pointed to the lack of precision in the two proposed texts and asked what obligations Venezuela, for example, would incur with regard to refugees to whom another country had granted "initial reception"; it was impossible to specify the number of refugees that Venezuela should admit, in view of the very varied geographical, economic, political and legal factors which must be taken into account.
11. The article on the admission of refugees was not precise and, indeed, hardly could be so. It might therefore give rise to very varied interpretations which would lead to disagreements and controversies that could only be decided by higher courts.
12. He therefore felt that the provisions of the article on admission could very well be included in the preamble of the convention, or might be made the subject of a General Assembly resolution if that were considered preferable. Whatever solution was adopted, the Venezuelan delegation could not agree to those provisions forming an article of the convention.
13. Mr. RAIN (France) agreed with the representative of Venezuela that the article on admission did not lay any specific obligations upon the States signatories to the convention; the Secretary-General's comment, to which Mr. Rain drew the Committee's attention, pointed that out.
14. He did not draw the same conclusions from that fact as the representative of Venezuela had done. Mr. Perez Perozo feared that the lack of precision in the provisions might give rise to difficulties and legal disputes; if there were no obligations, however, there could be no disputes. Furthermore, the representative of Venezuela thought that a clause of that type was out of place in the body of the convention; Mr. Rain, on the contrary, thought it was of great importance. He had grave doubts on including that clause in the preamble; there was too great a tendency to express "pious hopes" in a preamble which were often completely ignored. The provisions on the admission of refugees embodied the essence of international policy with regard to refugees. If States were not prepared to take into account article 14 of the Universal Declaration of Human Rights and if countries far from those from whence the refugees were coming were not prepared to make some effort to relieve the burden assumed by initial reception countries, the latter unable to support indefinitely the considerable commitments resulting from their liberal policy and the Committee's work would be absolutely purposeless. Legal institutions were not enough in themselves; they were truly effective only when guided by a generous policy.
15. Mr. CUERREIRO (Brazil) agreed with the representative of Venezuela that the article on admission established no legal obligation and therefore should not appear in the body of the convention. Moreover, the provisions of that article were likely to arouse differences of opinion among States signatories of the convention, and give rise to accusations which it would be difficult to prove or disprove.
16. The representative of France had pointed out that the proposed article merely stated a principle of general policy which should govern the attitude of the United Nations in the matter. That was incontestable, but the enunciation of that principle, however unimpeachable, seemed out of place in a convention which was designed precisely to deal with the consequences of the policy which was recommended.
17. The provisions of the article on admission might well form the subject of a General Assembly resolution proclaiming the principle of the need for international co-operation in that field in far more forceful terms that those of the proposed text. Moreover, such a resolution might stipulate the method by which that principle of international solidarity could be put into practice.
18. Even from the standpoint of the psychological effect to be achieved, a General Assembly resolution would be preferable to a clause on the lines of those proposed by the Secretariat or by the French delegation.
19. The CHAIRMAN stated that his legal knowledge was certainly not equal to that of many of his colleagues, since he was neither a jurist nor a legal counsel, but as a layman he failed to understand why provisions which were out of place in the body of the convention would be appropriate in the preamble. It seemed to him that the Committee should not allow itself to be excessively influenced by legal considerations in seeding to formulate provisions to ensure that a certain category of human beings, the refugees, should receive the minimum of consideration to which they were entitled.
20. He wondered whether the difficulties foreseen by the representatives of Venezuela and Brazil were likely to be encountered in reality. The very nature of the proposed article showed that the Contracting Parties would be the judges in the first instance. Reliance must therefore be placed upon their sincere goodwill and their spirit of international solidarity.
21. Mr. RAIN (France) stressed the difference which existed in his mind between a wish and a moral obligation. Neither involved legal retribution; obviously all the countries represented on the Committee appreciated the significance of a moral commitment and were prepared to respect it.
22. A wish expressed in the preamble of the convention or in a separate text would certainly not have the same force as a moral obligation set forth in the body of the convention. The moral obligation which it was proposed to enunciate in the article on admission had already been embodied in article 14 of the Universal Declaration of Human Rights. France was convinced that one of the fundamental duties of the United Nations was to see that the Universal Declaration of Human Rights should not be merely an academic achievement. Attempts must be made to secure its application in every field. Hence it was advisable for every international instrument to refer to the relevant articles of the Universal Declaration of Human Rights, so as to remind the signatories of the obligations which they had undertaken by adopting it.
23. Mr. GUERREIRO (Brazil) considered that the statement of the French representative that the article on admission sought to establish a moral obligation put the case admirably. That statement supported his own view that a General Assembly resolution would be the most suitable means of imposing such an obligation. A resolution would be far more appropriate that an article in the convention, because the latter should above all state legal obligations.
24. Moreover, the article as drafted by the French delegation was too abstract and too vague to be likely to bring about the application of the provisions of article 14 of the Universal Declaration of Human Rights.
25. He felt that there was little real difference between his point of view and that of the representative of France. The only disagreement seemed to be on a purely technical matter: where and how the principle in question should be stated. He did not consider that it could be included in the convention, because it might be interpreted as constituting a legal obligation.
26. Mr. HENKIN (United States of America) had been impressed by the arguments of the Brazilian representative and concurred entirely in his views.
27. He found it somewhat difficult to understand how a distinction could be made between countries which had given initial reception to refugees and other countries. Such a distinction would imply that the Contracting Parties would not all be under the same obligations, which could hardly be admitted.
28. He agreed with the representative of France that the refugee problem was particularly important from the purely humanitarian point of view, and that the Committee should endeavour to draft a document giving the maximum protection to the greatest possible number of refugees who had already been admitted into a country. In that connexion the question of admission, while vital for the individuals concerned, was not the main question to be settled by the Committee. Admission into a country of refugees from camps or from initial reception countries constituted a political problem which the States concerned would have to solve. The convention must deal with the rights of refugees who had already been admitted into a country, without seeking to establish who should admit them and in what circumstances.
29. He supported the views expressed by the representatives of Brazil and Venezuela.
30. Mr. LARSEN (Denmark) pointed out that there was an essential and obvious difference between the great majority of States on the one hand and, on the other, States which received refugees and for which it was in practice impossible to question their admission. The latter States, of which Denmark was an example, could not send the refugees back to their country of origin; yet it was difficult for them to assume alone the full financial burden arising from that reception policy. Those States considered that the convention should include provisions giving them the hope that other countries could not refuse to admit refugees but that on the contrary they would favourably consider admitting refugees. If such assurances were not given to countries of initial reception, some of them might be somewhat apprehensive about opening their doors to refugees.
31. Sir Leslie BRASS (United Kingdom) acknowledged that he found some difficulty in adopting a definite position in such a delicate matter.
32. There was undoubtedly, as the representative of Denmark had correctly observed, a clear-cut difference between the situation of countries geographically adjacent to the refugees' countries of origin and of those enabled by their distance from them to act less hastily. The former group of countries undoubtedly deserved appreciation of the considerable efforts they were making to receive the refugees crowding on their frontiers. It was only natural that such countries should wish the burden on them to be shared by the other group, and it was to be hoped that the latter group would provide them with all requisite assistance, as in fact it had already done in the past.
33. There were, however, certain cases in which it was difficult to determine whether a given country belonged to the first or to the second group. That was particularly so in the case of the United Kingdom, which, although not adjacent to the areas from which the refugees emigrated, had nevertheless received nearly a quarter of a million refugees since the beginning of the second World War, despite the difficulties with which it was faced itself.
34. From the technical point of view, it had been asserted that article 3 did not include any specific legal obligation and that a text of that kind should not be included in the convention.
35. The impression derived from a perusal of the Secretariat's memorandum was that the Committee's work was to deal with the problem of refugees who had already been given asylum, and that the problem of their admission was not part of its business.
36. Finally, due account should be taken of the practical aspect: if the convention was to obtain the largest possible number of signatures and ratifications, it would be best not to include in it any clause which went beyond that which the generality of States would be likely to accept, as that might prevent its ratification by certain States.
37. With such considerations in mind, therefore, the representative of the United Kingdom concluded, subject to further reflexion, that it would on the whole be better not to include the clause in article 3 in the operative part of the convention,
38. Mr. HENKIN (United States of America) expressed the profound admiration which the United States felt for the initial reception countries, such as Belgium, Denmark, France and the United Kingdom, which bore the brunt of the waves of refugees and were obliged to grant them immediate asylum. The United States of America was in no way seeking to avoid the obligations of international solidarity in that connexion. It had fully co-operated in the solution of those problems both in the IRO and in the United Nations. Many refugees had already been admitted into the United States and many more would be admitted.
39. The question which had arisen, however, was whether the obligation to relieve the burden of the initial reception countries should appear in the operative part of the convention. In the interest of those countries themselves it would be better for the problem to be raised in the United Nations rather than within the framework of the convention. The question was one of method. The convention dealt with refugees who had already been granted asylum and with their legal protection. The admission of refugees, however, was connected with the problem of assistance, which was not part of the Committee's business. It was a far broader problem, which fell within the competence of other organs of the United Nations. He therefore agreed on that point with the conclusion reached by the United Kingdom representative.
40. Mr. RAIN (France) was not entirely convinced by the arguments advanced against the standpoint of the initial reception countries, which wished a section on admission to appear in the operative part of the convention.
41. It had been maintained - and the United States representative had emphasized that point - that the convention should cover only the status of refugees already admitted to a reception country. Such a statement was tantamount to a petitio principii, since that was precisely the point which was being debated and the Committee had not yet taken any decision on it.
42. As a matter of fact, there was no need for the Committee to make a distinction between those two aspects of the rights of refugees, before and after their admission. It was indisputable that the most essential, most urgent and primary right for the refugee was that of finding a reception country; otherwise he would never obtain the status of a refugee and would never be able to benefit by the legal protection provided by the convention. If, therefore, the question of the right of asylum was not settled in the convention being drafted by the Committee, it would have to be the subject of a separate special convention. No such convention, however, was apparently contemplated.
43. Moreover, the representatives of Venezuela and Brazil had emphasized the remarkable vagueness of the text of article 3. He would be prepared to agree that that text should be made as possible, but he feared that the article would give rise to insuperable objections if the obligation stated therein was couched in a more explicit form. Certainly, all delegations were fully aware that their countries were under a moral obligation to assist the initial reception countries to solve the refugee problem and that it was impossible to specify exactly the extent of that obligation, because it was not possible to foresee in advance how it would be put into practice in each particular case. Since that was so, there was no good reason to oppose the retention of the clause.
44. It was of the utmost importance that that clause should appear in the operative part of the convention, because a mere expression of hope in the preamble or in a separate resolution would not have the same binding character as a moral commitment explicitly accepted by plenipotentiaries on behalf of the States principals.
45. It must not be forgotten that in all countries, besides generous spirited persons, there were others who were principally concerned with the interests of the nation itself, or even solely with those of certain classes of society. If, therefore, the Committee wished to influence countries in the direction of generosity, the authorities concerned must be induced to regard commitments undertaken by the State as prescribing a greater measure of liberalism in their conception and methods of day-to-day administration. There was no room for doubt that in France, for example, a convention signed by the Government would have more effect on administrative decisions than a mere resolution of the General Assembly.
46. The objection had been made that the text of article 3 lacked clarity, because it would be difficult to determine what States belonged to the category of initial reception countries. It appeared to have been forgotten that the Committee had already rejected the very broad definition of refugees proposed by France and the United Kingdom. The definition to be retained would have its origin in the existing situation and its text would clearly convey that the convention should apply only to European refugees. That being so, it would be easy to decide, simply from their geographical position, what countries should be regarded as initial reception countries.
47. Mr. CUVELIER (Belgium) also considered that countries could easily be classified into one of the two categories. His Government attached great importance to the distinction between the initial reception countries and the others, because the situation of countries in regard to the refugee problem varied according to the group to which they belonged. As pointed out by the Danish representative, the initial reception countries were obliged to give shelter to refugees who had not, in fact, been properly admitted but who had, so to speak. Imposed themselves upon the hospitality of those countries. As the definition of refugees made no distinction between those who had been properly admitted and the others, however, the question arose whether the initial reception countries would be required under the convention to grant the same protection to refugees who had entered the country legally and those who had done so without prior authorization. True, certain articles of the convention referred to refugees regularly residing in a territory, but others did not contain that definition. As a consequence, there would always be certain doubts as to the responsibilities incumbent upon the initial reception countries; those doubts would be dispelled if a chapter on admission were inserted in the convention, laying down that refugees should obtain rights only in the country of their permanent settlement. He was therefore of the opinion that the clause should be included in the operative part of the convention.
48. The CHAIRMAN, speaking as the representative of Canada, observed that the question raised by the initial reception countries did not apply to his country, which was separated by and ocean from the refugee zones. Thanks to that situation, all refugees immigrating to Canada were ipso facto legally admitted and enjoyed the recognized rights granted to foreigners admitted for residence. The adoption of the convention, therefore, would only raise internal administrative and legislative problems so far as Canada was concerned; nevertheless his country would accept the obligation to co-operate in finding an international solution for the problem of the influx of refugees in the initial reception countries, and was prepared to accept its responsibilities in that connexion. The Canadian delegation therefore had no objection to the inclusion of a chapter on admission, either in the operative part of the convention, in the preamble of the document, or in a separate resolution.
49. He thought that the Committee was ready to take a decision on the principle of including a chapter on admission in the operative part of the convention, the wording to be decided later.
The Committee decided, by 6 votes to 3 with 2 abstentions, that no clause on admission should be included in the operative part of the convention.
50. The CHAIRMAN pointed out that the vote only excluded the clause from the operative part of the convention, and that the Committee would subsequently have to find another place for it, either in the preamble or in a resolution of the General Assembly. He hoped that the fundamental idea of that clause would be expressed in the generous spirit which the initial reception countries had the right to expect.
Chapter III - Juridical Condition
51. The CHAIRMAN requested the Ad Hoc Committee to consider the following chapter, which dealt with the juridical condition of refugees. He read article 4 of the Secretariat draft (E/AC.32/2) and article 3 of the French draft (E/AC.32/L.3), both of which dealt with the personal status of refugees.
52. Sir Leslie BRASS (United Kingdom) observed that in the United Kingdom, jurisprudence always subjected foreigners to the law of domicile in matters governed by private international law. The distinction made in the French text between refugees who had retained their nationality and those who were stateless would therefore not apply there.
53. Mr. KURAL (Turkey) thought that the Secretariat text simplified the question in a satisfactory manner.
54. In practice, the application of their own national law to refugees would involve great difficulties. Even if they had kept their nationality, the authorities of their countries of origin were unfavourably disposed towards them, and if a court of a reception country were to apply to those authorities for information needed to establish their personal status, it would presumably have difficulty in obtaining such data.
55. Furthermore, the application of the refugee's national law might be contrary to his own interests in the matter of legal capacity, when that capacity was wider under the law of the reception country than under the national law of the country of origin.
56. Whereas during normal times, when there were few foreigners in a country, the application of the national law would not cause insurmountable difficulties the courts would be inundated with work if, at a time when the number of refugees amounted to hundreds of thousands, they had to refer in each case to a national law with which they were unfamiliar.
57. Having pointed out the difficulties in the way of applying national law to refugees, he would defer forming a definite opinion on the question until the French representative had stated the motives which had prompted him to submit his alternative draft of the article, and until other delegations had made their comments.
The meeting rose at 1 p.m.