Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Tenth Meeting Held at Lake Success, New York, on Tuesday, 24 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
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. John HUMPHREY Director of the Human Rights
Mr. HOGAN Secretary of the Committee
Mr. GIRAUD Human Rights Division
INTERNATIONAL STATUS OF REFUGEES AND STATELESS PERSONS:
DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES:
ARTICLES 4, 5, 6 AND 7 (E/AC.32/2, E/AC.32/L.3) (continued)
Article 4 (continued)
1. The CHAIRMAN noted that opinion seemed to be divided between those who wished to delete paragraph 4 and those who wished to amend it for greater clarity.
2. Speaking as the representative of Canada, he proposed the following amendment:
"Wills made by refugees before their arrival in their countries of residence shall be recognized as valid if such wills were valid in the countries in which they were made"
3. Mr. RAIN (France) pointed out that the French version of that paragraph was virtually identical with the Canadian proposal except that it retained the mention of the country of domicile as well as the country of residence.
4. Mr. HENKIN (United States of America) asked whether it would apply only to the validity of the will in so far as the form was concerned or whether it would also cover the substantive provisions. A will drawn up in the country of origin might contain clauses which were not in conformity with the laws of the country of residence, particularly those dealing with public order.
5. Sir Leslie BRASS (United Kingdom) feared that the proposal would actually permit the refugee, by his will, to alter the law of the reception country. For example, under the proposal, a refugee residing in English could, by means of a will made in his country of origin, tie up property in England in perpetuity. He favoured the deletion of paragraph 4.
6. Mr. HENKIN (United States of America) emphasized that neither the Secretariat draft nor any of the other proposals were intended to place the refugee in a more advantageous position than the nationals of the country of residence. The Committee should, however, strive to draft paragraph 4 so that refugees would be protected to the extent that wills they had made in their country of origin would not become invalid in the reception country because they had failed to observe certain formalities of the latter.
7. Mr. RAIN (France), while prepared to support the Canadian draft, which he understood to apply both to the form and substance of the refugee's will, conceded that it might have the effect of placing the refugee in a privileged position in the reception country. Some countries had more liberal laws than others. On the other hand, the will was an expression of the wished of the refugee and its validity should remain intact in his country of residence. The only alternative course would be to make the question of wills an exception to the general principle stated in paragraph 1 of article 4 and to require the refugee to remake his will in conformity with the laws of his country of residence after he was permanently settled there.
8. Mr. CUVELIER (Belgium) noted that there seemed to be general agreement regarding the validity of wills made by refugees in their country of origin in so far as the form was concerned. The problem consisted in determining whether the substance conformed to the legislation of the reception country. If nothing were said on the matter, the position of the refugee would be largely protected.
9. The CHAIRMAN, speaking as the representative of Canada, acknowledged that the Government of the reception country would have to make some derogation to domestic law, thus placing the refugee in a favoured position. It might therefore be wiser to delete paragraph 4.
10. The Chairman called for a vote on the deletion of paragraph 4.
The paragraph was rejected by 7 votes to 2, with 2 abstentions.
11. Mr. RAIN (France) noted that the vote in favour of the deletion of the reference to wills should not be interpreted as weakening in any way the force of the paragraph of article 4 dealing with acquired rights.
12. The CHAIRMAN confirmed Mr. Rain's interpretation of the vote. The reference to wills had been deleted because it would entail conflict with domestic law. The courts of reception countries could be relied upon to deal fairly with refugees in the matter.
Article 5 (Movable and immovable property)
13. Mr. RAIN (France) said that there was a discrepancy between the French and English texts of the corresponding article submitted by the French delegate (E/AC.32/L.3, article 4). The word "similar" did not exactly translate the word "se rapprochant". Moreover, the French proposal differed from the Secretariat draft; it promised favourable consideration to refugees and treatment resembling as closely as possible that accorded to nationals of the reception country. The Secretariat draft committed the Governments of the countries of residence. However, Mr. Rain would not press for adoption of his own text.
14. Mr. CHA (China) wondered whether the phrase "most favourable treatment" corresponded to most-favoured-nation treatment as used in treaties of friendship.
15. The CHAIRMAN, on the advice of the Secretariat, replied in the affirmative.
16. Mr. KUPAL (Turkey) observed that some countries extended reciprocal treatment to aliens as a matter of course, while others set down the conditions of reciprocity in formal treaties and specified the categories of foreigners to which they applied. In view of the difficulty arising in countries which had no reciprocity treaties, he preferred the phrase "the treatment accorded to foreigners generally". Otherwise the refugee, under the proposed text, would get preferential treatment compared to other aliens.
17. Mr. CUVELIER (Belgium) pointed out that countries such as Belgium, which were linked to certain other countries by special economic and customs agreements, did not accord the same treatment to all foreigners. Belgium, for example, placed nationals of the Benelux countries for certain purposes on a quasi-equal footing with Belgian citizens. It was not the intention of the article under consideration, he hoped, to ask the same treatment for refugees under the most-favoured-nation clause since the Belgian Government always made reservations in treaties containing a most-favoured-nation clause concerning Benelux nationals. Accordingly he wished to amend article 5 to read: "under treaty, except those establishing economic or customs unions".
18. Mr. LARSEN (Denmark) observed that the Belgian amendment would not be applicable to the Scandinavian countries, although the latter did accord special favourable treatment to Scandinavian nationals which they would not be prepared to give to other foreigners, including refugees. Such special cases, however, could be dealt with in the form of reservations by the signatories to the convention.
19. In considering whether refugees should be treated in accordance with the most-favoured-nation clause, the Committee should bear in mind that that clause had been introduced by countries as a means of obtaining equal treatment for their nationals abroad. Moreover, political and economic considerations often made it practical for some nations to extend to foreign firms the privileges granted to their own companies in order to ensure reciprocal action in favour of their own industries.
20. Mr. ROBINSON (Israel) described the difficulties confronting the Committee in the absence of uniform formal or practical statutes governing the property of aliens. In fact the statutory alien did not exist, inasmuch as there was no code of law applicable to aliens as such. In numerous countries, the rights of aliens were mentioned only in exception clauses lost in a mass of legal provisions. Further, it was almost impossible to determine the categories of aliens which were not provided for in the various treaties binding States. The representative of Denmark had been right in saying that aliens were in fact used by Governments to exert pressure and to obtain rights for their nationals in other countries. That method should in no case be applied to refugees. The most-favoured-nation clause was the only one left to apply to them. The clause was contained in treaties of friendship, commerce or navigation for those treaties applied sometimes to goods only, sometimes to persons only and sometimes to both. In the present case it should be taken as applying to persons. The Committee should follow the practice of many nations and fix a permanent status for the refugee in matters of movable and immovable property which would be equal and not inferior to that enjoyed by foreigners under most-favoured-nation clauses.
21. Mr. CHA (China) declared that he would prefer the criterion of "most-favoured nation" to be used rather than that of the "most favourable treatment", for while the latter was vague and thus open to varying interpretations., the former was a well-known concept with which most nations, including his won, were thoroughly familiar. He would similarly prefer a reference to the "most-favoured-nation" principle rather than the alternative wording, (i.e., "treatment accorded to foreigners generally") because it too had the advantage of being specific.
22. The CHAIRMAN, speaking as the representative of Canada, stated that he could accept either alternative. The difficulties mentioned by the Turkish representative might be met by deleting the words "under treaty".
23. Mr. KURAL (Turkey) thought that the suggested deletion would improve the text. Regarding the comments of the Chinese representative, Mr. Kural preferred the alternative wording suggested by the Secretariat precisely because he was familiar with the concept of the "most-favoured-nation". Furthermore, he considered that the fears of the Danish representative regarding the exploitation of refugees for bargaining purposes would be less well-founded if refugees were to be granted the "treatment accorded to foreigners generally".
24. Mr. RAIN (France) agreed with the Belgian and Turkish representatives. He could not accept the most-favoured-nation clause in article 5, because, in that context, it would be tantamount to granting refugees practically the same treatment as accorded by France to its own nationals. He could, however, accept the alternative proposal.
25. Sir Leslie BRASS (United Kingdom) stated that while the Committee was trying, as it should, to protect refugees against discrimination, it should not go to the other extreme of establishing discrimination in favour of refugees. He shared the uneasiness of other members regarding the most-favoured-nation clause.
26. Mr. WEIS (International Refugee Organization) stated that there was no question of granting special privileges to refugees, but rather of exempting them from the application of reciprocity clauses. The point could be clarified by including in the draft convention a provision to that effect.
27. The CHAIRMAN noted that two broad alternatives were before the Committee: (1) a solution based on the principle of most favourable treatment, if need be with individual reservations, and (2) a solution based on the principle of treatment accorded to foreigners generally.
The Committee rejected alternative (1) above by 5 votes to 1, with 5 abstentions.
28. Mr. HENKIN (United States of America) called attention to the suggestion of the representative of the IRO, i.e., the elimination of the reciprocity requirement.
29. The CHAIRMAN thought that article 8 of the draft convention would cover that point.
30. Mr. ROBINSON (Israel) wished to explain his vote. He had previously spoken in favour of applying the most favourable treatment principle, and his views on that point remained uncharged. He had, however, been impressed by the statements of the United Kingdom, French and Belgian representatives that their Governments, which were so closely concerned in the problem, wold experience difficulties if that principle were applied. He had therefore abstained from voting.
Article 5 of the draft convention was put to the vote in the following form:
"The High Contracting Parties undertake to accord to refugees whose regular residence is in their territory the treatment accorded to foreigners generally with regard to the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property".
The article was adopted by 7 votes to none, with 2 abstentions.
31. Mr. CUVELIER (Belgium) stated that he had voted for the adoption of the article on the understanding that in the French text the work "régulièrement" would replace the word "habituellement".
32. The CHAIRMAN noted that the change applied only to the French text of the draft convention.
Article 6 (Intellectual and Industrial Property)
33. Mr. LARSEN (Denmark) stated that the apprehensions which he had felt regarding the operation of the most-favoured-nation clause in connexion with article 5 would not apply to the operation of that clause under article 6. Consequently, he could accept the Secretariat's draft of the article.
34. Mr. RAIN (France) noted that the French draft of the article (E/AC.32/L.3) closely resembled the Secretariat's draft, so that in fact only the latter was before the Committee.
35. In reply to a question by Mr. HENKIN (United States of America), Mr. WEIS (International Refugee Organization) declared that existing conventions on the subject dealt with in article 6 applied to nationals rather than to refugees; hence such a clause was needed for the protection of the latter.
36. Sir Leslie BRASS (United Kingdom) reserved the position of his Government regarding copyright provisions in the article.
Article 6 of the draft convention was adopted unanimously.
Article 7 (Right of Association)
37. Mr. RAIN (France) feared that the article as drafted went too far in granting certain rights to refugees, regardless of whether foreigners in general enjoyed the rights in question.
38. Mr. KURAL (Turkey) agreed with the French representative. Taken in the context of the Secretariat's comments, the article might event imply that refugees were to enjoy the unqualified right to political activities. The draft convention should embody a clause such as article 8, paragraph 2, of the French draft (E/AC.32/L.3) reserving to the High Contracting Parties the right to restrict or prohibit political activity on the part of refugees. At least a different draft of the article was necessary.
39. Mr. LARSEN (Denmark) noted that article 23, paragraph 4, of the Universal Declaration of Human Rights provided that everyone had the right to form and to join trade unions for the protection of his interests. Article 7 should reflect that right.
40. Mr. RAIN (France) stated that his delegation had no desire to deprive refugees or other foreigners of the rights provided in international documents. The article as drafted, however, was too sweeping, implying as it did that refugees were to have all the rights of a country's own nationals in that respect. It was that implication which he found unacceptable. The French Government, like many other Governments, had special powers in connexion with foreign associations, which it did not possess in connexion with French associations. In France, refugees could join trade unions, but they could not assume leadership or hold executive positions.
41. He thought that the problem could be solved by suitable drafting.
42. The CHAIRMAN, speaking as the Canadian representative, said that he would have some difficulty in accepting the text of article 7 as it stood, but would be prepared to support it if it read as follows: "Refugees shall enjoy the same rights to join non-profit-making associations, including trade unions, as are accorded to foreigners generally."
43. The representatives of France, Turkey and the United Kingdom supported that version; the latter added that the right to join a union did not mean that the union must accept a certain person.
44. Mr. LARSEN (Denmark) proposed two amendments to the Chairman's text. For reasons given in his previous statement, he wished the words "to form and" to be inserted after the words "the right"; and since refugees who had found freedom and security in another country should not be permitted to engage in political activity which might endanger that country, he wished to add at the end of the article the text of article 8, paragraph 2 of the French proposal, which read: "The High Contracting Parties reserve the right to restrict or prohibit political activity on the part of refugees."
45. Mr. HENKIN (United States of America) felt that it would be unwise to adopt the second Danish amendment, which did not seem to be in keeping with the principles of the United Nations. It might, in fact, be interpreted as forbidden refugees even to express political opinions, and would certainly deny them access to an area of human activity in which they should have at least as much right to engage as any other aliens. The aim of the draft convention was to enable refugees to lead normal lives and, if they wished, to become naturalized citizens of the countries which had given them asylum. Like all other residents of a country, they would be forbidden to engage in illegal political activity, and should not be singled out and denied the right to engage in legal activity.
46. The CHAIRMAN, speaking as the Canadian representative, said that he fully shared Mr. Henkin's views.
47. Mr. RAIN (France) felt that some such clause as proposed by the Danish representative was necessary in the draft convention. Although France had always taken a very liberal attitude towards the many refugees who had found shelter and protection within its borders, it felt that in return they were under an obligation to refrain from taking part in its internal politics until they had become naturalized citizens. In the meantime, they had neither the full duties nor the full rights of nationals, and should not be permitted, for example, to serve the interests of some other country.
48. He did not think, however, that the provision in question should be inserted in article 7, as the question of political activity included much more than the mere right of association.
It was agreed to consider the provision in connexion with article 10 of the Secretariat text.
49. Mr. CUVELIER (Belgium) supported the Danish amendment, which would permit refugees to form non-profit-making associations as well as to join them. The article would then conform to the Universal Declaration of Human Rights, which accorded both rights to everyone. He noted that the practical effect of the amendment would be slight, as anyone permitted to join an association could always get others to found one for him to join.
50. Mr. STOLZ (American Federation of Labor) said that giving refugees the right to form trade unions was of course unobjectionable in principle; in practice however, it might well work to their disadvantage, as the existing trade unions in various countries might grow suspicious and possibly hostile. In some countries, while aliens were permitted to join trade unions, only nationals could be members of the executive committees. Trade unions in Canada and the United States might hesitate to allow refugees to join if they were also permitted to form their own trade unions. He therefore hoped that the Committee would not adopt the Danish amendment.
51. Mr. WEIS (International Refugee Organization) pointed out that Mr. Stolz's objection applied only to the right to form trade unions, and not other non-profit-making associations.
52. Mr. HENKIN (United States of America) remarked that the Committee surely did not wish refugees to have fewer rights than other aliens. Consequently, if it did not adopt the Danish amendment, it might note in its report that in its view refugees should have the right to form non-profit-making organizations, including trade unions, although no provision to that effect had been included in the draft convention.
53. Mr. RAIN (France) point out that, as the Chairman's text granted to refugees the same rights as those "accorded to foreigners generally", the Danish amendment was superfluous. Under that text, with or without the Danish amendment, refugees would have the right to form trade unions in countries which accorded that right to foreigners, and in those countries alone. He therefore supported the Chairman's text.
The Danish amendment was rejected by 5 votes to 1, with 5 abstentions.
54. Mr. HENKIN (United States of America) stated that the negative vote on the Danish amendment did not mean that refugees should be/prohibited from forming either trade unions or other non-profit-making associations.
55. The CHAIRMAN, speaking as the representative of Canada, agreed with that interpretation.
56. Mr. RAIN (France) suggested that the point of the Danish representative might be met if the Chairman's text of article 7 were amended to read: "Refugees shall enjoy the same rights with regard to non-profit-making associations, including trade unions, as are accorded to foreigners generally."
That text was adopted unanimously.
The meeting rose at 4.35 p.m.