Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Fourth Meeting Held at Lake Success, New York, on Friday, 3 February 1950, at 2.30 p.m.

INTERNATIONAL STATUS OF REFUGEES AND STATELESS PERSONS: DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/AC.32/2, E/AC.32/2/Corr.1, E/AC.32/L.13, E/AC.32/L.17, E/AC.32/L.21, E/AC.32/L.24, E/AC/.32/L.26) (continued)

Articles 16 and 17 (E/AC.32/L.13) (continued)

1.     The CHAIRMAN invited the Committee to continue the first reading of the draft convention.

2.     He recalled that at the morning meeting Mr. Stolz (American Federation of Labor) had proposed the following amendments to articles 16 and 17 (E/AC.32/L.13): delete the words "employment injury" in the second line of sub-paragraph (b); and insert the phrase "and employment injuries covered by social security schemes or otherwise" before the words "subject to" in the fifth line of the sub-paragraph.

3.     Mr. CUVELIER (Belgium) thought it risky to amend a text drawn up by experts in social security. It was hardly advisable, moreover, to replace the general provisions of that text by too specific provisions.

4.     Articles 16 and 17 in their current form gave refugees general security against social and any other risks, without, however, mentioning any "social security schemes". Mr. Cuvelier definitely preferred the original draft to that proposed by Mr. Stolz.

5.     The CHAIRMAN said that the Belgian representative's observations deserved to be taken into account in view of the fact that he had been Chairman of the Committee which had drafted that provision for the IRO convention.

6.     Mr. HENKIN (United States of America) thought it was not necessary to adopt Mr. Stolz's amendments as Mr. Cuvelier's explanation would appear in the summary record.

It was decided to refer that part of articles 16 and 17 to the Working Group without any change.

7.     The CHAIRMAN opened the discussion on another amendment by Mr. Stolz, to the effect that the phrase "including rights acquired under agreements on reciprocity" should be added at the end of sub-paragraph (b) (i).

8.     Mr. STOLZ (American Federation of Labor) explained that in some countries the State itself made a contribution to the pension fund on behalf of each worker. Where agreements on reciprocity did not apply to refugees, the latter had no right to that contribution. Therefore, in order to give refugees the same rights as those enjoyed by the nationals of the country of reception, it was necessary to provide for them in reciprocal agreements.

9.     Sir Leslie BRASS (United Kingdom) remarked that bilateral agreements of that kind were concluded by the States concerned and that the Committee ought not to write new provisions into them.

10.  Mr. HENKIN (United States of America) pointed out that Mr. Stolz's amendment would ensure a refugee the rights he had acquired by virtue of bilateral agreements before becoming a refugee.

11.  He did not consider it possible to adopt such a proposal.

12   Mr. CUVELIER (Belgium) also thought that the amendment was covered by sub-paragraph (a). He took as an example the case of a Polish miner in France. If the miner had worked ten years in Poland and twenty in France, under the existing bilateral agreement Poland would pay one-third and France two-thirds of his pension. If the miner became a refugee, however, Poland could hardly be asked to pay its share or France to pay the share which normally ought to have been paid by Poland. The miner would therefore receive in France only the two-thirds which that country had originally undertaken to pay.

13.  Mr. STOLZ (America Federation of Labor) was satisfied with Mr. Cuvelier's explanation. He had proposed his amendment only because he had feared that becoming a refugee might deprive a person of the share to be paid by the country of reception.

After a brief discussion, it was decided to refer articles 16 and 17 to the working group without any change.

Article 22 (annex) (E/AC.32/L.17)

14.  Mr. HUMPHREY (Secretariat) recalled that, in dealing with article 22, the Committee had made reservations with respect to the last paragraph of annex. The paragraph was identical with paragraph 18 of the Inter-Governmental Agreement on refugees concluded in London in 1946, but, as the Committee had wished to know why the Inter-Governmental Committee had adopted those provisions, Mr. Humphrey gave the following explanation:

15.  Some Governments represented in London had expressed doubt whether their consular services would be able to give protection -- even if only implicitly -- to refugees to whom they had issued travel documents. That question had arisen as early as 1927. The third general conference on communications and transit had stated in its report of that date that the consuls who had the right to issue and renew travel documents did not ipso facto have the right to protect the persons concerned. The refugees, for their part, had no right to claim such protection. That text also made it plain that consuls were authorized to extend or renew the travel documents of a refugee resident on the territory of their country but temporarily abroad (Preparatory documents of the Inter-Governmental Committee, p. 110, Chapter XVI, 1946).

16.  Article 18 of the preliminary draft of the London Agreement also contained a provision which would allay the fears expressed by some Governments. The specimen travel document drawn up in 1946 had stated that it in no way prejudged or affected the nationality of the holder.

17.  Thus, both the London Agreement and the travel documents drawn up in 1946 had made it clear that the holder had on right to consular protection by the country which had issued the travel document.

18.  The documents at the Secretariat's disposal did not clearly indicate why some Governments had refused to grant consular protection to the refugees to whom they had issued travel documents; but the reason became plain when the summary records of the London Conference were consulted. If the Committee wished, the Secretariat could obtain those summary records from Geneva.

19.  In conclusion, Mr. Humphrey stated that the countries which in 1927 had insisted most strongly on the adoption of the above-mentioned provision had been the United Kingdom and the Netherlands.

20.  Mr. ROBINSON (Israel) said that paragraph 16 contained two important ideas.

(1)   it indicated that the Contracting Parties wished to avoid disputes over protection;

(2)   it gave certain guarantees to holders of travel documents.

21.  That was why it would be better to reproduce that paragraph in the travel document itself rather than insert it in the annex to article 22 of the convention.

It was decided to refer Mr. Robinson's proposal regarding paragraph 16 of the annex to article 22, to the working group for study.

Article 23 (E/AC.32/L.21)

22.  Mr. HENKIN (United States of America) said that he would submit later some drafting amendments to provide for cases in which the original documents mentioned in sub-paragraph 3 did not exist. He would submit another amendment on the designation of national and international authorities.

It was decided to refer article 23, in its existing form, to the working group, subject to certain drafting amendments.

Article 24 (E/AC.32/L.26)

23.  The CHAIRMAN noted that word "political" should have appeared before the word "opinions" in the first article.

24.  Mr. LARSEN (Denmark) drew the Committee's attention to the words: "…such restrictions shall only be applied until such time as it is possible to make a decision…" contained in sub-paragraph (2) of the third article, and cited, in that connexion, the hypothetical case of a group of refugees which a country had placed in a concentration camp. He wondered whether such a country would be obliged to release the refugees as soon as they had obtained entry visas to another country. Some refugees might possibly use such an opportunity to remain in the country illegally.

25.  The CHAIRMAN agreed with Mr. Larsen and proposed that that passage should be replaced by the following: "…until such time as their position in the reception country is regularized or they have obtained admission to another country."

26.  Sir Leslie BRASS (United Kingdom) accepted that form of words for sub-paragraph 2 of the third article, but thought that sub-paragraph 1 required clarification. That article should not apply to a person who had become a refugee in 1914, for example, and had left his reception country in 1950 without a valid reason, to enter the territory of another country clandestinely.

27.  The CHAIRMAN thought that the Committee was agreed on that interpretation.

28.  Mr. WEIS (International Refugee Organization) suggested adding the following words at the end of that paragraph: "…and producing valid reasons to Justify their illegal entry."

29.  Mr. HENKIN (United States of America) proposed that the words "illegal entry" be replaced by "entry without authorization."

30.  He also suggested that the words "according to such procedure and safeguards as are provided by law" in sub-paragraph 2 of the second article should be replaced by "in pursuance of a decision reached in accordance with due process of law."

It was decided to refer article 24 and the amendments thereto to the working group.

Article 28

It was decided to refer article 28 as adopted the previous day to the working group.

New article proposed by the Belgian delegation (E/AC.32/L.24)

31.  The CHAIRMAN read the new article proposed by the Belgian delegation (E/AC.32/L.24).

32.  Sir Leslie BRASS (United Kingdom) said that the word "formalities" in the first paragraph of the Belgian proposal would seem to imply that a refugee need only apply, in accordance with the formalities prescribed by law, for authorization to export funds belonging to him, for the Government concerned to be obliged to grant him such authorization. Although he had not received instructions from his Government regarding the Belgian proposal, he felt sure that it would be reluctant to give refugees advantages which it did not generally grant to foreigners residing on its territory.

33.  Extremely rigid currency control had been introduced in the United Kingdom not only to consolidate the country's economy, but in the interests of all countries. A person leaving the United Kingdom to settle in another country could transfer funds belonging to him up to a specified amount. In view of the serious financial implications of the question referred to in the Belgian proposal it would be difficult to deal with it in the convention which the Committee was in process of drafting.

34.  The CHAIRMAN, speaking as Canadian representative, said that the restrictions on the transfer of capital were one of the main obstacles to British emigration to Canada. Under existing regulations a United Kingdom citizen, who steeled in Canada, could send only one thousand pounds sterling to that country and even then not in a lump sum, but in four annual instalments.

35.  Adoption of the Belgian proposal might give the impression that the Committee had wished to obtain more favourable treatment for refugees than that accorded to nationals of the States signatory to the convention. The Committee could, of course, point out to Governments that, in some cases, at least, restrictions on the export of currency considerably influenced migratory movements. But it would be difficult to include a special provision on the transfer of funds belonging to refugees in the convention.

36.  Mr. KURAL (Turkey) agreed with United Kingdom representative that the word "formalities" was ambiguous, and suggested that it should be replaced by the word "measures".

37.  The Belgian proposal provided for two categories of refugees:

(1) those entering a country with their capital; (2) those already owning property in the country in which they later settled or acquiring property during their sojourn in that country. In regard to the first category of refugees, it would appear in order to authorize a refugee to export the capital he had brought with him; in regard to the second category, however, Governments would be reluctant to permit a refugee to export a larger sum than he had brought in for fear of injuring the general economy of the country and of encouraging the illegal export of capital.

38.  His delegation was therefore unable to support the Belgian proposal in so far as it concerned the second category of refugees.

39.  Mr. CUVELIER (Belgium) agreed that his proposal covered the two categories of refugees to which the Turkish representative had drawn attention. It was to be noted, however, that second category should be subdivided into two groups: refugees who had property in a country before their arrival in that country and those who increased their possessions during their residence there. It was obviously impossible to ask that the latter should be authorized to export their capital in its entirety. The case the former, however, few as they might be, must be regarded as of particular interest. They had usually lost the greater part of their possessions when fleeting the country in which they had been the victims of persecution, and it seemed unfair to prevent them from enjoying the small property which they did possess abroad by restrictions on the export of currency.

40.  Members of the Committee seemed to have misgivings about possible objections to the Belgian proposal from their economists and financiers. It must be remembered that the draft convention would be submitted to the Economic and Social Council for discussion and the economic experts would have ample opportunity to express their views. He appealed to the Committee to retain at least the idea upon which the Belgian proposal had been based and to seek the formula which would be of the greatest possible humanitarian value to the refugees and most acceptable to Governments.

41.  Mr. KURAL (Turkey) observed that the humanitarian considerations which the Belgian representative would like to see applied in favour of refugees might well be applied to the nationals of a State who wished to settle on the territory of another State. If that were so, it was difficult to grant refugees a privilege which was refused to nationals.

42.  Mr. DEVINAT (France) feared that adoption of the Belgian proposal might permit a somewhat artificially stimulated export of capital. Exchange control regulations were based on very serious considerations, which could hardly be set aside for the humanitarian reasons advanced by the Belgian representative. There was the further difficulty that it was not always to distinguish between genuine cases and others. Furthermore, application of the provisions recommended by the Belgian delegation might set very powerful financial interests in motion and make Governments liable to thaw without previous notice holdings which they had reasonably regarded as frozen.

43.  Moreover, there was no apparent reason why refugees who had been able to go to the country in which they possessed property before settling in the country of final residence should be accorded treatment differing from that of refugees who had gone to a country other than that in which their property was.

44.  Finally, the problem raised by the Belgian proposal was very complex and the solution recommended, besides being only partial, would give rise to serious difficulties in its application.

45.  Mr. HENKIN (United States of America) drew attention to the fact that the article proposed by the Belgian delegation covered only currency belonging to refugees, whereas they might have other forms of property. The wording of the article should, therefore, be amended.

46.  As the Committee seemed to be in agreement that refugees who were so to speak in transit through a country could export the possessions they had brought with them to the country of final settlement, a special provision to that effect might be inserted in the convention.

47   Mr. CUVELIER (Belgium) supported the United States representative's suggestion.

48.  With regard to the property refugees had had in a country before their arrival or had acquired during their residence there, the Committee might request Governments to show the greatest possible latitude in certain exceptional cases, in order to prevent refusals based upon the strict letter of existing laws.

49.  Mr. LARSEN (Denmark) proposed the following text:

"The High Contracting Parties shall consider favourably the question of authorizing the transfer of currencies, which refugees might desire to transfer to another country for the purpose of settlement in the territory of such country".

50.  Mr. DEVINAT (France) observed that, if the Committee wished to recommend that the High Contracting Parties should grant facilities for the export of capital belonging to refugees, the recommendation should cover not only cases in which the refugee passed through the country where his property was before travelling to the country in which he settled, but also those in which a High Contracting Party withheld property belonging to a foreigner who, whatever the country in which he was, had acquired refugee status and had made an application in accordance with a procedure to be determined.

51.  Mr. LARSEN (Denmark) replied that he had purposely used the expression "which refugees might desire to transfer" in his text and had deliberately avoided saying "which refugees might desire to take with them", as that would have covered only the first case mentioned by representative of France.

52.  Mr. HENKIN (United States of America) proposed that the Secretariat should be requested to prepare the draft of an additional article, which would then be examined by the working group.

53.  Mr. CUVELIER (Belgium) supported that proposal.

54.  He suggested that the article should be divided into two paragraphs, the first laying down the principle that refugee could take with him any property he had brought with him, and the second incorporating the recommendation to the High Contracting Parties.

It was so decided.

Additional draft article submitted by the delegation of Belgium

55.  Mr. CUVELIER (Belgium) recalled that he had already raised the question whether it would not be advisable to include in a convention on refugees a provision reaffirming as applicable to them the principle of non-discrimination proclaimed in the Universal Declaration of Human Rights. Such a provision was all the more necessary because most refugees had left their countries of origin in order to escape discrimination on grounds of race, religion or political opinions.

56.  He therefore submitted the following text for the Committee's consideration:

"The High Contracting Parties shall not discriminate against refugees on account of race, religion or country of origin, nor because they are refugees."

57.  Mr. KURAL (Turkey) admitted that the question raised by the representative of Belgium was important, but thought that he whole convention was based on the principle of non-discrimination which had already been proclaimed both in the Universal Declaration of Human Rights and in the United Nations Charter. If the Committee thought it advisable to reaffirm it, however, he felt that that should be done in the preamble and not in the body of the convention.

58.  Mr. HENKIN (United States of America) pointed out that in the case in question it was not only a matter of ensuring that discrimination would not be practised against refugees as such, but also that the High Contracting parties would not discriminate between the refugees themselves in applying the convention or their domestic laws. Some provision to that effect was important if the legal protection of refugees was to be ensured. Mr. Henkin proposed that the Committee should accept the clause in principle and postpone until later any decision as to where it should be inserted.

It was so agreed.

Additional draft article submitted by the delegation of the United States of America

59.  Mr. HENKIN (United States of America) stressed the importance for the refugee of the housing problem, which the Committee had already discussed at length, and submitted the following draft article:

"The High Contracting Parties undertake to accord to refugees who are lawfully admitted to their territory the most favourable treatment possible and, in any event, not less favourable than that given to foreigners generally as regards housing accommodations, in so far as this question is regulated by laws and regulations or is subject to the control of Governmental authorities."

60.  The CHAIRMAN, speaking as representative of Canada, stated that he was ready to accept that provision on condition that it was compatible with the federal laws in force in his country.

61.  Mr. DEVINAT (France) wondered whether the text concerning non-discrimination, which had been proposed by the Belgian representative and approved in principle by the Committee did not have some bearing on the special question of housing raised by the United States representative. Once the principle of non-discrimination had been recognized, it did not seem necessary to enumerate all the fields in which the High Contracting Parties should not discriminate against refugees.

62.  Mr. CUVELIER (Belgium) pointed out that the United States text was not redundant, inasmuch as it required the High Contracting Parties not merely not to discriminate against refugees, but to ensure them "the most favourable treatment possible". He gave the United States representative's proposal his unconditional support.

63.  Sir Leslie BRASS (United Kingdom) was doubtful about accepting a text which would impose specific obligations on Governments in a field which was very often outside their direct control.

64.  The CHAIRMAN suggested that the proposed text should be adopted in principle, with the addition of the following reservation: "in so far as it lies within the discretion of local governmental authorities".

It was so decided.

Functions of the working group

65.  The CHAIRMAN stated that the first reading of the draft convention was finished. The articles which the Committee had approved in principle would be transmitted to the working group, which would improve the texts, ensure that the order in which they appeared was logical, and see to it that the French and English versions coincided.

66.  In reply to a question from Mr. ROBINSON (Israel), the CHAIRMAN explained that the working group would also be asked to draw up a draft preamble extending the application of the convention to stateless persons who did not come under the definition of refugees in article 1.

67.  Mr. WEIS (International Refugees Organization) emphasized that it was essential to take into account the possibility that certain States parties to the London Agreement of 1946 might not adhere to the new convention. If that were so, it was important to extend the provisions of the London Agreement to the categories of refugees defined in the new convention by means of a protocol.

68.  The CHAIRMAN stated that was one of the questions which the working group would consider.

The meeting rose at 3.45 p.m.