Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Thirty-Sixth Meeting Held at the Palais des Nations, Geneva, on Tuesday, 15 August 1950, at 3 p.m.
Mr. LARSEN (Denmark)
Mr. WINTER (Canada)
Belgium Mr. HERMENT
Brazil Mr. DENTEADO
China Mr. CHA
Franc 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. THEODOLI
Switzerland Mr. SCHÜRCH
Representatives of specialised agencies
International Labour Organisation Mr. OBLATH
International Refugee Organization Mr. WEIS, Mr. KULIMAN
Representatives of non-governmental organizations:
World Federation of United Nations Associations Mr. EVANS
Category B and Register
Consultative Council of Jewish Organizations Mr. KARLIKOW
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. Giraud Legal Department
Mr. Hogan Secretary to the Committee
1. PROPOSED DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/1618, E/1618/Corr.1, E/1818, E/AC.32/2, E/AC.32/6, E/AC.32/6/Corr.1, E/AC.32/7, E/AC.32/L.3 and E/AC.32/L.40) (continued)
The Committee continued consideration of the draft Convention contained in Annex 1 to its first report (E/1618).
Article 7: Personal Status
Mr. WINTER (Canada), Rapporteur, recalled the lengthy discussions which had taken place at the first session in an attempt to define a number of terms such as "domicile", "residence", "country of residence" and so forth. He wondered whether the representative of the United States would be good enough to redefine those terms for the benefit of the Committee.
Mr. HERMENT (Belgium) wondered whether, to meet the first objection to article 7 raised by the United Kingdom (E/AC.32/L.40, page 38), it would not be sufficient to alter the wording "Rights acquired" in paragraph 2 to "Rights previously acquired". It was merely a question of a change in drafting. As regards the second point raised by the same country, cases certainly did arise where there was no formality to enable the country of reception to recognize acquired rights. In such cases, the first point made by the United Kingdom could be met if the following words were added at the end of paragraph 2: "where the absence of such formalities constitutes the sole obstacle to recognition of the rights in question."
As regards the third observation of the United Kingdom government, the intention of paragraph 2 could be made quite clear by the insertion before the word "domicile" of the word "new".
Mr. HENKIN (United States of America), before replying to the Rapporteur, asked whether the representative of the United Kingdom would give further explanations in regard to his Government's comments, the third of which was not clear.
Sir Leslie BRASS (United Kingdom) explained that the two main points of the United Kingdom comments were those set forth under (a) and (b). article 7 was concerned with a technical matter and intended only to deal with personal status; his Government, however, thought that paragraph 2 of the article could be interpreted as going beyond the limits of personal status.
With regard to the second comment under (b), the wording of paragraph 2 of article 7 did not give full effect to the intentions of the Ad hoc Committee. He would propose a few textual changes for consideration by the Drafting Committee. Apart from the points mentioned, his Government agreed with the text as drafted.
Mr. CHA (China) understood the term "domicile" to mean the place where a person desired to live and carry out his business while "place of residence" was any place which he casually visited but not with the idea of residing there permanently.
He noted that neither the Constitution of the International Refugee Organization (IRO) nor the Convention concerning Displaced Persons made any reference to domicile but referred to "former habitual residence", and he wondered whether it was necessary to refer to domicile in the Convention Relating to the Status of Refugees. While he would abide by a majority decision of the Committee, he felt that the point was one worthy of consideration.
Mr. ROBINSON (Israel) said that the point raised by the representative of China as well as the comments of the Austrian Government (E/AC.32/L.40, page 38) were matters of substance, while the observations of the United Kingdom were more of a drafting nature. He observed that under British jurisprudence on conflict of laws it was possible that a person might have lost the nationality of a foreign country and yet retain his domicile there. On the other hand, British jurisprudence was not so rigid as to deny the possibility of more than one domicile.
Turning to the basic question of a choice between the terms "domicile" and "residence" and the arguments advanced against the inclusion of the word "domicile" in article 7, he explained that the Constitution of IRO had not attempted to solve the point on a strictly legal basis, because of the difficulties which might have been created in giving certain persons the status of refugee and displaced persons. The Constitution of IRO had been drafted on humanitarian grounds and in an attempt to solve the problem either by repatriation or resettlement.
The matter was entirely different in establishing rights and obligations to be determined by courts. The Committee could not maintain the principle previously adopted of establishing the rights of refugees and stateless persons on the basis of their nationality, first because it would be unfair to impose, in matters of personal status, a nationality on persons who in all other respects had had to abandon that nationality, and secondly because of the tremendous legislative changes which had taken place in the last decade. It was for those reasons that the principle of domicile had been adopted.
If the suggestion of the Austrian Government were to be adopted and the principle of domicile dropped, no court would be in a position to decide the legal status of refugees. It had been considered wise for the same reasons to include mention of "resident" so as to cover the case of refugees who had not established a domicile. Decisions should however be based wherever possible on "domicile", and only exceptionally on "residence". In his opinion the Committee should adhere to the principle of the text as it stood after consideration of all aspects of the problem including the drafting suggestions proposed by the United Kingdom.
Mr. HENKIN (United States of America) agreed with the previous speaker that it would be undesirable to revert to the principle of nationality or to use the term "residence" in all cases.
In connection with the use of the word "domicile" in the article, it should be remembered that a refugee might in some instance have his domicile in another country to the one in which he was living, and where the laws of domicile placed him at a disadvantage. He stressed that the word "domicile" should be interpreted to mean the new domicile which had been acquired or was about to be acquired, and that personal status should be determined by the law of the country in which the refugee had resettled himself.
The article did, however, raise certain issues because a refugee might be in a transit camp with neither domicile nor residence.
Mr. WEIS (International Refugee Organization) said he would not touch on the legal problem involved. What was meant in the article was the place where the refugee had his centre of existence, and it was important to find some wording which would cover the case of those refugees who had not yet found such a centre.
Referring to the report prepared by the Secretary-General for the first session of the Ad hoc Committee, in which mention had been made of a law under preparation in Germany concerning the legal position of displaced persons and refugees, he said that that law had since been promulgated by the Allied High Commission in Germany and might have some bearing on the question before the Committee. Article 1 of the law in question read as follows:
"In every case in which the Introductory Law to the German Civil Code provides that the national law shall apply, the status of a displaced person or refugee shall be determined with reference to the law of the State in which he had his ordinary residence, or had his ordinary residence, at the relevant time or, in the absence of an ordinary residence, the law of the State in which he is, or was at the relevant time."
That law was important because it had had the approval of all the three Western Occupying Powers and took into account the situation under German law.
Mr. ROBINSON (Israel) expressed the view that what was meant in the law by "ordinary residence" covered the term "domicile" in article 7 of the draft Convention.
The CHAIRMAN pointed out that former conventions on the legal status of refugees contained wording identical to that which had been suggested for the first paragraph of Article 7 and that that wording had given rise to no serious difficulties.
Mr. HERMENT (Belgium) said he rather felt that the Committee was becoming involved in a purely academic discussion. It was for the countries themselves to determine whether the personal status of the refugee should be governed by the law of the country of his domicile or by that of the country of his residence. In any case, the refugee would always have a link with the country in which he was living and that would be sufficient to enable the provisions governing his personal status to be determined. He did not think the Committee should concern itself too much with the definition of the terms "domicile" and "residence". That was a matter for the various countries concerned.
Sir Leslie BRASS (United Kingdom) replied that the text of article 7 provided that rights determined by an individual's personal status and acquired before he became a refugee should be respected. If the Belgian law did not recognize any particular right, it would not be required to recognize the right merely because a person had become a refugee.
Mr. HERMENT (Belgium) wished to reiterate that cases might occur in which there would be no formality enabling the personal status of a person who had become a refugee to be determined. Article 7, paragraph 2, did not appear to cover such cases.
The CHAIRMAN felt that all were agreed on substance and that the point raised was merely one of wording and should be referred to the Drafting Committee.
It was so agreed.
Mr. WEIS (International Refugee Organization) expressed his doubt, however, whether there was not a question of substance involved in the observations of the United Kingdom representative. In his view paragraph 2 provided for exceptional treatment for refugees in a very narrow field. The provision, which had been taken from pre-war conventions, said that "Rights acquired under a law other than the law of the country of domicile or residence of a refugee, more particularly rights attaching to marriage, shall be respected, subject to compliance, if this be necessary, with the formalities prescribed by the law of the country of his domicile, or, if he has no domicile, by the law of the country of his residence". The paragraph as a whole mainly concerned property rights connected with marriage, in respect of which it would be difficult for refugees to comply with the law of their country of domicile. Paragraph 2, was intended to provide for minor derogations from the principle set forth in paragraph 1.
He wondered whether the point made by the representative of the United Kingdom could be met by making those rights dependent not only on compliance with the formalities prescribed by the law of the country of domicile or residence of refugees but also on the exigences of public order.
Article 8: Movable and immovable property.
The CHAIRMAN, speaking as representative of Denmark, said he had recently received the comments of his Government on the draft Convention.
As far as Article 8 was concerned his Government agreed with the general objection raised by the Israeli Government (E/AC.32/L.40, page 10) that essential observations necessary to the understanding of the draft Convention were to be found only in the comments accompanying it. His Government considered it desirable that the definition of the term "aliens in the same circumstances" that was contained in the comments on article 8 (E/1618, page 46) should be embodied in the text of the Convention, and suggested that the following additional paragraph be added to article 8:
"The term "aliens in the same circumstances" in the present Convention means aliens who have the same right to stay in the country with respect to duration, place and employment".
He added that he would submit a redraft of his suggestion.
Mr. JUVIGNY (France) said that his delegation accepted article 8 subject to the following two reservations. Firstly, the words "The Contracting States shall accord to a refugee treatment as favourable as possible," should be understood to constitute a recommendation; and secondly, the words "in any event, not less favourable than that accorded generally to aliens in the same circumstances," were interpreted by the France Government as making the ordinary law concerning aliens applicable to refugees.
In France, the majority of legal provisions governing the acquisition of immovable property contained no restrictions for aliens. A number of restrictions of that type had been introduced in 1940 but they had since been rescinded. France wished to accord refugees the same treatment in that field as was enjoyed by aliens. However, certain rights relating to movable and immovable property were only granted subject to reciprocity. The French Government did not want the text of the article in question to oblige a country which had granted reciprocity to another State, to accord the benefits of such reciprocal rights to all refugees. In any event, France would not be prepared automatically to accord the benefit of reciprocity to all refugees. The reservations he had expressed with regard to article 4 were, fundamentally, identical with those he had just made with regard to article 8. Subject to those reservations, his Government approved of article 8.
Mr. HENKIN (United States of America) felt that the Committee was getting involved on a question which applied not only to article 8 but to a good many other articles in the draft Convention. In the Social Committee of the Economic and Social Council the delegations of India and Chile had raised the question whether refugees should be treated better than aliens generally. He noted that agreement had been reached in the Committee that refugees should, as a minimum, be granted the same treatment as other aliens, a provision which was important particularly in those countries which did not give any status to persons without nationality. It had been felt that in certain respects a refugee should be given an added advantage, namely treatment under the most-favoured-national clause. For some purposes representatives had wished refugees to be treated in the same way as nationals, so that they would be more rapidly assimilated. In the first instance it was essential to decide whether the Committee wished to maintain those distinctions between the treatment given to aliens and that given to refugees. His delegation believed that refugees should be treated better than other aliens in some respects, and that the provisions in the draft Convention which accorded better treatment to refugees than to aliens were not of such major importance as to create grave problems for many countries. Therefore, if it could be agreed that in general a minimum treatment should be accorded to refugees and that that treatment should be no worse than that given to aliens in general, and that in some respects that refugees should even have certain advantages, the articles could safely be left to the Drafting Committee.
He understood the proposal of IRO (E/AC.32/L.40, page 40) to be that refugees should be given the same treatment as nationals in regard to the rights referred to in article 8. He believed that most countries would not be able to accept that principle.
For those reasons he suggested that the general position taken at the last session should be maintained and an attempt made to find a formula to express that position which could be generally accepted.
Mr. WEIS (International Refugee Organization) believed that questions both of substance and drafting were involved.
With regard to the substance of the matter, which had been discussed at great length at Lake Success, he felt that some of the rights mentioned in article 8 should be considered separately. At the present stage of legal development the right to acquire property was often granted to aliens under the same conditions as to nationals. There were, however, specific laws which had developed since 1914 and under which rights were restricted for emergency reasons and a distinction was made between nationals and aliens for such questions as rent control, etc. it would be worth while considering whether the same provisions should cover all those rights, or whether a distinction should be made with regard to the treatment which aliens should have in regard to certain rights.
The support of his Organization for refugee being given the same treatment as nationals in respect of the rights referred to in article 8 had been dictated by a desire to protect their interests. Whether such a view was justified was surely a matter for the Committee to decide.
He drew attention to the comments of the United Kingdom Government on article 9 (E/AC.32/L.40, page 41); in his opinion those comments suggested a happy formula, namely the possibility of according refugees the same rights as nationals of counties in which they resided - although there was one difficulty, namely that the application of the principle of nationality would be a hardship on refugees. He suggested that the proposal made by the United Kingdom in connection with article 9 might also be considered by the Drafting Committee in connection with the rewording of article 8.
On the question of drafting, he felt that the phrase "treatment accorded generally to aliens" was ambiguous and possibly misleading. He had referred yesterday to the position of countries whose laws were based on the Napoleonic Code and on reciprocity. It was for the Drafting Committee to decide on a wording which would be clear.
Mr. JUVIGNY (France) thanked the United States representative for his explanation. He agreed with him that the regime generally applied to aliens should be accorded to refugees. To make that idea quite clear, he proposed that in article 8 the words "accorded by the ordinary law concerning aliens" be substituted for the words "accorded generally to aliens in the same circumstances". In certain cases, France was in fact prepared to accord to refugees rights wider than those generally accord to aliens. That was proved by the fact that France raised no objection to article 9 other than to state in her comments on that article (E/AC.32/L/40, page 40) that it was "less liberal than the French proposal, which provided for the same treatment as accorded to French nationals". Article 8 dealt with a special case and, on that point, France accepted the principle of equal rights but could not accept the automatic application of reciprocity.
Mr. HENKIN (United States of America) thought that the United Kingdom suggestion with regard to article 9, which had received the support of the IRO representative, might very well be considered in relation to the present discussion of article 8. He understood that suggestion to be that a refugee should receive "national treatment" in the country of habitual residence and that in other countries refugees should receive such treatment as was given to nationals of their country of residence. Was it in that sense that IRO was supporting the United Kingdom suggestion? The United Kingdom apparently would be content with the provisions of article 8 as minimum treatment and proposed a modified formula only for cases where the granting of most-favoured-nation treatment was envisaged. The IRO proposal, on the other hand, appeared to be that refugees should receive a minimum treatment in their countries of residence similar to that given to nationals
It was not possible, on first examination of the United Kingdom proposal, to say whether it was acceptable with regard to article 9. The IRO proposal to extend the provisions of that proposal to all articles, so that a refugee in his country of residence, that is in almost every case, would be given "national treatment" as a minimum, would almost certainly be unacceptable to most delegation. Perhaps, however, the representative of IRO could say whether his proposal had been rightly understood.
Sir Leslie BRASS (United Kingdom) emphasized that the United Kingdom comment on article 9 was limited to the highly specialize subject of patent and copyright laws, which were the subject of many international conventions. The United Kingdom was quite satisfied with article 8 in its present form; it thought it clear enough, but would consider any formula which might be submitted with a view to further clarification.
He agreed with the representative of the United States of America that article 8 would not be generally acceptable if it accorded national treatment to refugees in every case. With regard to the holding of land, for example, many difficulties might arise though not in the United Kingdom.
Mr. HENKIN (United States of America) wished to know whether the United Kingdom observations on article 9 were also applicable to other articles in which treatment on a most-favoured-nation basis was suggested. Article 10, for example, also referred to most-favoured-nation treatment, but the United Kingdom had made no comment on it and therefore, apparently, in that case, had no objection.
Mr. WEIS (International Refugee Organization) stressed, with regard to the remarks of the United States representative, that IRO was not in a position to suggest any particular treatment for refugees: that was a question for the Committee to decide. He had alluded to the United Kingdom comment on article 9 only because the formulation contained therein seemed to offer a way out which reflected the intentions of several members of the Committee with regard to property rights.
The remarks of the French representative reflected both the intention of the Committee as expressed at its first session and the views of IRO, but it could not be claimed that the sense of those remarks was fully met by the wording of the article. There was a difference between the wording of article 8 and of those articles which spoke explicitly of most-favoured-nation treatment. In the present case it was not most-favoured-nation treatment which was provided for but the treatment generally accorded to aliens, with a recommendation for more favourable treatment if possible. The article could, therefore, perhaps, not be interpreted as the French representative had suggested. It would be well, since the Convention was after all intended to be legally binding, if the Drafting Committee could find a form of words which would avoid a situation in which some Governments, though willing to grant more favourable treatment, might be unable to do so on legal grounds.
Mr. HENKIN (United States of America) asked whether IRO agreed that with regard to most rights and privileges it could not be accepted that refugees would be accorded more than the minimum treatment given to aliens generally. If that was the opinion of IRO, then a second question arose with regard to the particular subject-matter of article 8. With regard to property rights, did IRO consider that refugees should receive better treatment than aliens in general?
Mr. HERMENT (Belgium) gathered that the Committee was unanimous in wishing to accord to refugees the treatment granted to "aliens generally". The observations made by IRO related to that term, and were based on the wording of article 4. That article, in some measure, determined the interpretation to be given to the treatment accorded to refugees generally. Perhaps the suggestion made by the United States representative might be accepted and consideration be given, first, to whether refugees should be accorded the same treatment as aliens generally; and, secondly, to whether refugees should be accorded preferential treatment in certain cases. The Council should examine those two points first of all, It would then be in a position to consider the interpretation to be given to the term "aliens generally", which the Committee would come across again when it came to examine the text to be submitted by the Drafting Committee.
Sir Leslie BRASS (United Kingdom) observed that with regard to each article of the Convention the Committee would have to decide between three kinds of treatment, namely, the treatment accorded to aliens generally, treatment on the most-favoured-nation basis and "national treatment".
Mr. HENKIN (United States of America) thought that a fourth kind of treatment was proposed in the United Kingdom comment on article 9. If an alien was to be treated as a national of his country of residence, he would in effect receive "national treatment" only when in that country.
Sir Leslie BRASS (United Kingdom) said that in the case of his own country the treatment given to aliens with regard to copyrights and patents depended on whether the work was first published in the United Kingdom or elsewhere and on whether the United Kingdom gave protection in the United Kingdom to works first published in the foreign country in question. In a sense, therefore, a possible fourth treatment did arise.
Mr. WEIS (International Refugee Organization) thought that the fourth treatment might well be called a variant of the third.
The problem was to find a formulation to ensure that the treatment to be accorded under articles 8, 13, 14 and 16 should depend less on interpretation.
Mr. CHA (China) thought that article 8 in its present form was elastic enough to allow signatory States to grant any treatment they liked, whether most-favoured-nation treatment or "national treatment", according to their sympathies and policies and to the prevailing circumstances. In practice, the Chinese Government had shown more favour to refugees than to its own nationals. For example, a number of refugees from Mazi oppression had been unable to find accommodation in Shanghai. Some Quonset huts set up by the United Nations Relief and Rehabilitation Administration in one part of the town had been reserved exclusively for those refugees and denied to Chinese nationals who were in equally great need. In signing the Convention the Chinese Government would therefore prefer a flexible formula which would permit it to go beyond "national treatment" in certain cases.
Mr. JUVIGNY (France) reverted to a number of points raised by the IRO representative, who had referred to certain articles, particularly article 13, as not coming within the three categories described by the United Kingdom representative, viz. the treatment accorded to aliens generally, treatment on the basis of the most-favoured-nation clause and "national treatment". Article 13, he submitted, fell without difficulty into the first category. States would be enabled to accord refugees as favourable treatment as possible. The legal obligation established under article 13 was that the treatment accorded to refugees should be not less favourable than that accorded to aliens generally. In his view, the opening words of article 13 stipulating that "The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible" amounted to no more than a recommendation which went beyond the standards laid down for the treatment of aliens generally, but did not establish a strict legal obligation. According to whatever interpretation was given to that passage by the various State adhering to the Convention, the range of treatment which could be accorded to refugees in such cases would be infinite. Each State could interpret the provision in its own way, and could accord more favourable treatment if it wished. As regards the legal obligations of the Convention, therefore, articles such as article 13 came within the first category, and under them refugee would be accorded the same treatment as aliens generally, or what he described as "ordinary law treatment of aliens".
Mr. HENKIN (United Stated of America) agreed with the interpretation suggested by the representative of France.
It appeared that the Committee was generally agreed on maintaining the principle of granting to refugees treatment at least equivalent to that normally granted to aliens in general. In some instances the refugee would, however, be treated the same as nationals, sometimes the same as nationals of most-favoured-nation. It remained to decide which treatment was to be laid down for article 8 and to find the formula which would ensure that he minimum treatment provided for would be real and not illusory. The representative of IRO had said that at the present time aliens normally received the same treatment as nationals with regard to property rights and that therefore there would be no objection to providing for such treatment in the article. Were other members of the same opinion?
Mr. GINAUD (Secretariat), by way of clarification, observed that articles 7-19 all related to one of the three types of treatment. Cases not covered by those articles were governed by article 4, which at least implied that ordinary law treatment of aliens should apply in cases not otherwise covered.
Mr. JUVIGNY (France) asked whether he could interpret article 7-19 as not raising the question of reciprocity. If so, the question of reciprocity would not stand in the way of their interpretation or require their modification. In other words, if it were stated in any of the articles that the treatment accorded to refugees was that accorded to aliens generally, it was to be understood thereby that such treatment applied in cases where national legislation provided the same rights for refugees as for aliens. If, conversely, the law stipulated that aliens had no right to benefit from any particular provision except subject to certain reservation, it was to be taken that those provisions did not apply to refugees.
Mr. GIRAUD (Secretariat) explained that the question of reciprocity no longer arose or came into consideration. It had been settled by article 4. Reciprocity could not be required from refugees, since that would be tantamount to taking away with one hand what was given with the other. Where there was ordinary law for aliens, it applied also to refugees, although the latter were unable to perform reciprocal obligations. In case, however, where a special treaty had been concluded between two States making provisions in favour of certain aliens, that treaty would not apply to refugees if they were subject to the ordinary law treatment of aliens.
Mr. JUVIGNY (France) pointed out that article 8 expressly stipulated that States should accord to refugees no less favourable treatment than that accorded to aliens generally. That meant that, in the absence of any legislative restrictions on the acquisition of movable and immovable property, refugees enjoyed the same status as aliens. If a country's legislation concerning the right of acquiring immovable property stipulated that aliens were not accorded that right except where reciprocity existed, it meant that that particular right was likewise not accorded to refugees.
Mr. HERMENT (Belgium) pointed out that the question of reciprocity had been raised the previous day. He wondered exactly what reciprocity was referred to. Was it diplomatic reciprocity, legislative reciprocity or de facto reciprocity? That question, he submitted, still remained unanswered.
The CHAIRMAN, speaking as representative of Denmark, wished to return to the question of reciprocity discussed the previous day and make some observations. If the legislation of Denmark stated with regard to any particular right that it would be accorded to aliens whose `Governments accorded the same right to citizens of Denmark, it was not in the competence of the Danish Government to decide whether such a right was to be accorded to any particular alien since it would depend entirely on whether the Government of that alien's country accorded such rights to Danish citizens. In such a case, it was immaterial whether few of many countries accorded such rights. Denmark used reciprocity simply as a means to ensure that Danes in foreign countries received the privileges that were granted to nationals of those countries in Denmark. In such cases he felt that refugees should be granted the same privileges although there could be no question of reciprocity.
If, on the other hand, another State was not generally prepared to grant a certain privilege unless its citizens received reciprocal treatment in Denmark, and if the legislation of that State was not of the same nature as that of Denmark, the State had to decide for each individual case whether it was willing to conclude a reciprocal agreement. If it wanted its citizens to enjoy the privileges in question in Denmark, it might either try to conclude an agreement with Denmark or it might change its own law. In both cases, the situation seen from the Danish point of view would be the same, as it was entirely in the hands of the other State to grant reciprocity. It was true, as had been said, that such agreements might be so numerous that almost all aliens had the same rights; in that case it was unlikely that those rights would be denied to refugees.
The problem was not so difficult as some representative appeared to think, since countries whose policies were liberal with regard to the granting of rights would grant them in any case to refugees, while other countries would refuse to sign a convention or, if they signed it, would find some loophole.
Mr. HENAIN (United States of America) endorsed the views of the Chairman, and noted that the Committee had reverted to a discussion of the exact wording of article 4, on which he thought substantial agreement had been reached at the 34th meeting. He still believed it would be possible to find some formulation for article 4 which would be acceptable and still have some significant content. On the assumption that such a formulation would be found by the Drafting Committee, the meeting could proceed to decide which of the three kinds of treatment previously enumerated was to be provided for in article 8.
The CHAIRMAN noted that whereas articles 10, 12 and 13 included the words "lawfully in their territory", article 8 apparently made no distinction between refugees in countries adhering to the Convention and refugees resident elsewhere. The laws of Denmark made no distinction between aliens and nationals in that connection, but he realized that some countries whose laws imposed restrictions on the property rights of aliens might feel some apprehension that article 8 would give the same rights to refugees living in other countries as to aliens living in the country where their was.
Sir Leslie BRASS (United Kingdom) thought that the possibility by according different treatment for resident and non-resident refuges was provided for by the words "in the same circumstances". A refugee abroad would presumably receive the same treatment as an alien abroad.
The CHAIRMAN felt that the United Kingdom representative had answered his objection but still thought that it was necessary to define more clearly the meaning of "in the same circumstances".
Mr. HENAIN (United States of America) suggested that the Committee had reached a stage where it could refer article 8 to the Drafting Committee.
It was agreed to refer article 8 to the Drafting Committee.
Article 9: Artistic rights and industrial property
The CHAIRMAN drew the attention of the Committee to article 9 and the comments on it (E/AC.32/L.40, pages 40-41). In that connection, he had recently received a treatise by an expert on literary rights which showed that the Committee's draft was inconsistent with existing conventions, including the Berne Convention on Intellectual Property, the provisions of which bore closely on the nationality of the author and the place where the book was first published. That treatise enumerated four possible situations. Taking Denmark as an example, any Dane who wrote a book had the Danish copyright wherever the book might be published. The same was true if the author was a national of a country adhering to the Berne Convention. If the author was a national of a country not adhering to the Convention, his rights were safeguarded in Denmark only if the book was first published there. Finally, the rights of a stateless author had no protection anywhere. With regard to the last of those situations, some change was certainly needed; but supposing that a national of a country not adhering to the Berne Convention became a refugee and fled to another country not adhering to that Convention, it would be unfair if merely by becoming a refugee he were to receive better treatment than a citizen of his country of refuge. That point, among others, had been covered by the statement of the United Kingdom representative during the discussion of article 8. The problem was whether a refugee resident in a third country was to receive the same treatment as a refugee in a signatory country.
Mr. HERMENT (Belgium) reminded the Committee that the Berne Convention on Intellectual Property had been amended in 1948 by the Brussels Conference. Furthermore, negotiations were in progress for convening a fresh Conference in Washington that autumn to try to reach agreement on a single convention on the question applicable to the two continents. He was unaware of the nature of the amendments made to the Convention in 1948, but it was possible that some of them might apply to the case which the Chairman had in mind.
Mr. THEODOLI (Italy) thought that the interpretation of article 9 would depend on the value given to the expression "lawfully residing". Those refugees who were in possession of the regular cards issued by IRO, the High Commissioner or any future authority would enjoy the same privileges as other aliens in Italy, but the word "preferential" should not be applied to such treatment.
He felt that the formulation used in article 8 was particularly felicitous and should be applied also in article 9, as well as in article 10 and 11 and possibly a number of others.
Sir Leslie BRASS (United Kingdom) said that he, like the Chairman, had received a treatise, from which he gathered that the position of the United Kingdom Government was that it was necessary to regard two distinct possibilities. If a book was first published in the United Kingdom, any author could secure the United Kingdom copyright; if it was published in a country adhering to the Berne Convention, the author could also secure that copyright, in some manner which was not quite clear to him. The United Kingdom proposal was therefore that refugees in their country of residence should receive the rights normally accorded to nationals of that country and, in the United Kingdom, the rights accorded to citizens of the United Kingdom. The rights they would receive for books first published in other countries would depend on whether those countries were signatories to the Convention or not.
Mr. HERMENT (Belgium) thought that the difficulties referred to could perhaps be avoided by according a refugee the same treatment as was accorded to nationals of the country in which he found himself ("national treatment").
In reply to the CHAIRMAN, Mr. HERMENT stated that "national treatment" should not, however, in his opinion, apply to refugees resident in a country not a signatory to the Convention.
The CHAIRMAN conceded the point raised by the representative of Belgium, but observed that the provisions of the Berne Convention had been devised for the protection of the rights of publishers as well as of authors. If a refugee resident in a State not adhering to the Berne Convention published a book, there could be no objection, if the book proved to be a best-seller, to any British publisher who wished to copy it doing so, but, if the book was first published in the United Kingdom, the right of the British publisher would in such a case not be safeguarded. The fairest solution would be to provide for "national treatment" in the country where the publisher was resident, and in other countries for the same treatment as was normally accorded to citizens of that country, and also to provide for protection of the copyright in any country where the book might first be published.
Mr. ROBINSON (Israel) wondered whether the scope of the treatise from which the Chairman had quoted extended only to literary property or to all the other types of property which were referred to in article 9 and were covered by a whole connected system of agreements. If it was true that stateless persons did not enjoy protection under one of those connected agreements, two different statutes would be created, one for refugees who were stateless and one for those who were not. If article 9 was to establish a single treatment for all refugees, it would be necessary to obtain more information on the following questions. Firstly, what was the present legislative position with regard to all those types of intellectual property? Secondly, what was the particular position in which article 9 placed all refugees, whether stateless or not? Thirdly, what would happen to a man's titles or rights in respect of such property if he was deprived of his nationality or unwilling to invoke it to protect his rights? Unless those questions were answered, article 9 might merely establish a new system of agreements conflicting with the rest. He suggested therefore that the representative of the Legal Department, being within easy reach of Berne, might consider those three question for a day or two and try to supply answers which would ensure that the Committee would not be legislating entirely in a vacuum.
The CHAIRMAN welcomed the suggestion of the representative of Israel
The suggestion of the Israeli representative was adopted and further consideration of article 9 accordingly deferred.
Mr. JUVIGNY (France) asked that the French Government's comment on the terminology used in article 9 be taken into consideration.
Article 10: Right of association
The CHAIRMAN drew the attention of the Committee to article 10 and the relevant comment of the Austrian Government (E/AC.32/L.40, page 41).
Mr. HERMENT (Belgium) said that his Government would like the words "nationals of foreign countries" to be replaced by the words "aliens in general".
Mr. OBLATH (International Labour Organisation), referring to the comments submitted by the Director-General of the International Labour Office, (E/AC.32/7), which had just been circulated to the Committee, apologised for the delay in their submission.
In paragraph 4 of those comments attention was drawn to the fact that although article 19, paragraph 1 of the draft Convention reproduced most of the rules contained in article 6, paragraph 1 of the Migration for Employment Convention, the latter also dealt with the question of membership of trade unions.
In the Migration for Employment Convention that question had been solved by according migrant workers equality of treatment with national workers. In the draft Convention Relating to the Status of Refugees, however, the question of membership of trade unions was covered by article 10, which provided that refugees should be accorded the most favourable treatment accorded to nationals of foreign countries. In a desire to avoid any conflict between the draft Convention and existing international convention, particularly the Migration for Employment Convention, the Director-General of the International Labour Office had wished to draw the attention of the Ad hoc Committee to that point.
He added that it was clear from the discussions at the first session that the Ad hoc Committee had linked the right to belong to trade unions with the rights to take an active part in their administration and organization. Article 6 of the Migration for Employment Convention referred solely to membership of trade unions, and the principle of equal treatment extended also to the establishment and administration of such organization. He therefore wished to point out to the Committee how desirable it was for the International Labour Organisation to have the question of membership of trade unions dealt with in article 19 of the Convention on the basis of equality of treatment with nationals.
Mr. ROBINSON (Israel) saw a notable disparity between article 10 and the comment of the Committee on page 47 of document E/1618. Of that comment correctly set forth the intention of the article, the words "As regards non-profit-making associations" should be replaced by the words "As regards their right to form or join non-profit-making associations".
The observations of the Austrian Government should receive consideration by the Committee.
The CHAIRMAN said that the suggestion of the representative of Israel recalled one he himself had made during the first session. His suggestion had not been favourably received by the Committee, which had seen in it some suggestion of encouraging refugees to establish special trade unions instead of joining the regular trade unions of their countries of residence.
Mr. HENKIN (United States of America), in connection with the Chairman's remarks, recalled that during the same discussions the representative of the International Labour Organisation, or perhaps of the American Federation of Labour, had said that such a formulation might organize labour unions to compete with those already existing. In his opinion, therefore, though refugees should receive most-favoured-national treatment with regards to joining and forming unions, it would be undesirable to amend the wording of the article, which in any case covered both types of activity.
He noted that, whereas the Austrian Government would prefer no reference in the Convention to rights of association, the Italian observer had indicated in his statement during the discussion of article 9 that his government would prefer what the United States delegation would call a minimum formula. With regard at least to the joining of associations the International Labour Organisation wished to go in the opposite direction and proposed to remove the right to join trade unions as distinct from other non-profit-making associations from article 10 and place it under article 19. Those proposals would require consideration. On questions of that type great attention should be paid to the views of countries like Austria, Belgium and Italy which had many refugees within their borders. Nevertheless, if it proved that most countries were willing to give preferential treatment to refugees, the present formulation should be retained and any countries which felt themselves unable to go so far should make specific reservations rather than lower the general standard.
The proposal of the International Labour Organisation would receive serious consideration by the United States delegation which would also like to hear the view of the other representatives.
Mr. HERMENT (Belgium) stated, in reply to the comments of the United States representative, that Belgium was at all time prepared to grant refugees whatever it reasonable could. The Belgian Government, however, was tied to certain countries, such as the other Banelux countries, and could not accord to refugees the preferential treatment it accorded to Benelux nationals.
Mr. GIRAUD (Secretariat) pointed out that article 10 of the draft Convention provided that the Contracting States should accord to refugees the most favourable treatment accorded to nationals of foreign countries. If a State were a party to the Migration for Employment Convention, a number of aliens would come within the scope of that Convention. If it were not a party to it, the Convention would clearly not apply. He felt that article 10 solved the problem.
Mr. HENKIN (United States of America) understood the representative of the Legal Department to have implied that a government which had also singed the Migration for Employment Convention would by virtue of article 10 be granting the same treatment to refugees as to its own nationals. He felt that that was not what the Committee had meant by "most-favoured-national treatment".
The CHAIRMAN agreed with the United States representative.
Mr. JUVIGNY (France) observed that migrant workers should not be confused with refugees. The two categories were not identical; some migrant workers were not refugees; some refugees were not employed. It was not expedient to established any other legal link between the two Convention. The wording of article 10 was sufficiently clear, and he was glad to see that it contained the words "trade unions". The very general formula used left open the question whether membership or organization of a trade union was meant, and left room for whatever interpretation might be put upon it by the various national legislations.
Mr. HENKIN (United States of America) said the reservation mentioned by the Belgian representative was exactly the kind that the Committee had recognized that some countries might find it necessary to make, especially with regard to other countries with which they had entered into specially close relationship. Benelux had in fact been cited as an example.
The French representative had said that migrant workers should not be confused with refugees. It was true that those two categories were not identical, though they overlapped; but the question areas whether if an international organization affiliated to the United Nations had decided to give special treatment to migrant workers, the Committee should not consider whether refugees might be in even grater need.
Mr. THEODOLI (Italy) said that with regard to article 10, as to article 9, the Italian Government felt that refugees should not receive preferential treatment, but the same treatment normally accorded to aliens in general.
It might be well to add some words to the effect that article 10 was subject to the provisions of article 2.
Discussion of article 10 was adjourned.
2. CONSTITUTION OF A DRAFTING COMMITTEE
The CHAIRMAN suggested that before adjurning the Committee should set up a Drafting Committee to meet the following morning to consider the article which the Committee had agreed to refer to it. He proposed that the Drafting Committee should be composed, as at the first session, of the representatives of France, Israel, the United Kingdom and the United States of America and of the Chairman and the Rapporteur. All members of the Committee of America and the observers of non-members States would be welcome.
It was so agreed.
The meeting rose at 5.40 p.m.