Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-Sixth Meeting Held at Lake Success, New York, on Friday, 10 February 1950, at 2.15 p.m.

DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/AC.32/2, E/AC.32/L.2) (continued)

1.     The CHAIRMAN recalled that the Committee had already examined the draft convention, which had subsequently been carefully revised and edited by the Working Group. The new document (E/AC.32/L.32) was before the Committee for consideration and it was hoped that it would be approved without prolonged discussion. The English and French texts had also been co-ordinated and a preamble had been drawn up. There were one or two articles, such as that relating to reservations, on which the Working Group had made suggestions that had not been considered at the first reading, and those would be explained when they were reached. He was very grateful to the Working Group for the conscientious spirit it had evinced in the preparation of the document. The Committee would realize that the Working Group was acting under instructions from the Committee, and its individual members must not be regarded as being committed to all the provisions of the draft which they had produced. A draft protocol concerning stateless persons had been prepared at the same time.

2.     The Venezuelan representative had submitted an alternative draft preamble, which he read to the Committee.

3.     Mr. PEREZ PEROZO (Venezuela) explained that he had not had an opportunity of seeing the Working Committee's draft previously. He had not submitted his own draft formally but thought that some of its points might advantageously be included in the Working Committee's paper. He thought that resolution 319 (IV)A, mentioned in his draft, was of particular interest since it recognized the international scope and nature of the refugee problem as well as the responsibility of the United Nations in that matter. The part played by the General Assembly and the Economic and Social Council should be stressed in the preamble. It should also be recognized that States had been particularly concerned with the refugee problem since the end of the First World War. He felt the necessity of emphasizing the urgency of the problem. He did not, however, insist upon the acceptance of his draft but hoped that the Committee would agree to include some of his suggestions in its final convention.

4.     Mr. HENKIN (United States of America) agreed that certain points contained in the Venezuelan draft could be included, notably the reference to resolution 319 (IV)A. He suggested that the word "profound" should be inserted in the third line, so that the phrase would read "and in particular their profound concern…". The words "protection of the" should be deleted from the same line. Special reference to resolution 319 (IV) A could be made after the words "United Nations" at the end of the first paragraph. The word "previous" should be substituted for "existing" in the first line of the second paragraph. Such amendments to the Working Committee's draft would probably satisfy the Venezuelan representative.

5.     Sir Leslie BRASS (United Kingdom) was not in favour of including the phrase: "concluded in the period between the two world wars" which the United States representative had suggested, as that would ignore the London Agreement.

It was agreed to omit any reference to the time period.

6.     The CHAIRMAN said that a new text, including the approved amendments, would be drawn up and distributed to members.

7.     Mr. ORDONNEAU (France) regretted that no general suggestions on the lines of those submitted by the French delegation appeared in the draft.

CHAPTER I:   GENERAL PROVISIONS

Article 1

8.     Sir Leslie BRASS (United Kingdom) recalled that he had previously submitted alternative proposals (E/AC.32/L.2 and L.2/Rev.1) concerning the definition of the term "refugee", which he still preferred as more simple, comprehensible and practical.

9.     The Committee was proposing a Convention for refugees and a Protocol for stateless persons other than those covered by the Convention. Taking those two instruments together and comparing them with the United Kingdom delegation's proposal, the Committee would observe that the differences were that his proposal would have included in the provisions relating to status future groups of refugees who had a nationality: on the other hand it would have excluded all refugees with a nationality when there was no longer any good reason for regarding them as refugees. Further, his proposal would not have excluded members of former minority groups who were in Germany and war criminals.

Article 1 was adopted.

Articles 2 and 3

Articles 2 and 3 were adopted.

Article 4

10.  Mr. GUERREIRO (Brazil) suggested that the text might be changed in style.

11.  Mr. HENKIN (United States of America) proposed that it should be amended to read "…Contracting States shall not refuse such rights and favours to refugees."

Article 4, as amended, was adopted.

Article 5

12.  Mr. HENKIN (United States of America) suggested an alternative text to read "With regard to exceptional measures which a Contracting State may take against the person, property or interests of nationals of a foreign State, the Contracting State shall not apply such measures to a refugee who is formally a national of the said State solely on account of such nationality."

The United States proposal was adopted.

Article 6

Article 6 was adopted.

CHAPTER II.  LEGAL STATUS

Article 7

13.  Sir Leslie BRASS (United Kingdom) observed that the provisions of article 7 would require the careful study in the United Kingdom of legal experts in the Conflict of Laws; he himself was not in a position to deal in detail with that complicated matter. He vote much doubted whether the question could be handled in a manner so simple as that indicated in the article, but hoped that that would be possible.

14.  The CHAIRMAN agreed that the provisions of the article would require the consideration of experts of the various countries concerned. The Committee, however, was endeavouring to draw up certain basic principles and was not attempting to prescribe laws which could not be modified. In any case, the views expressed by the Governments concerned would certainly be taken into account when the final document was drafted. He asked for the adoption of the article on that understanding.

Article 7 was adopted.

Article 8

Article 8 was adopted.

Article 9

15.  Mr. HENKIN (United States of America) suggested that for the sake of uniformity the last two lines should be amended to read: "…Contracting States shall accord to refugees…".

Article 9, as amended, was adopted.

Article 10

16.  Mr. GUERREIRO (Brazil) asked whether the phrase "refugees lawfully in their territory" was intended to cover refugees in transit through a territory. If that was not the case, he suggested that the phrase might be changed to "refugees lawfully resident in their territory".

17.  Mr. HENKIN (United States of America) explained that the provisions of article 10 were really intended to apply to all refugees lawfully in the country, even those who were not permanent residents. There was no harm in the provision even if it theoretically applied to refugees who were in a country for a brief sojourn, since the individuals would hardly seek the benefit of the rights contemplated. As regards the term "lawfully resident", it had been decided not to use it in the draft convention except in the special case of article 23, because the word "resident" had different commutations in different countries.

Article 10 was adopted.

Article 11

18.  The CHAIRMAN remarked that the word "territories" in paragraph 1 should be changed to "territory".

It was so decided.

19.  Mr. HENKIN (United States of America) pointed out that persons who had only recently become refugees and therefore had no habitual residence were not covered by the provisions of paragraphs 2 or 3, but only by those of paragraph 1.

Article 11, as amended, was adopted.

20.  The CHAIRMAN noted that the heading "Chapter III: Gainful occupation" should be inserted before article 12.

It was so decided.

Article 12

21.  Sir Leslie BRASS (United Kingdom) remarked that, while wishing to be as liberal as possible, his Government was unable for reasons he had previously stated at some length to accept without reservation the provisions of article 12, in view of the prevailing economic position of the United Kingdom. However, it hoped and intended to relax as soon as possible the restrictions which, at the present time, it was compelled to impose. Sir Leslie wished to make the same reservation to a less extent in respect of articles 13 and 14.

22.  Mr. LARSEN (Denmark) said that the United Kingdom representative's remarks applied also to the position of his Government.

23.  Mr. GUERREIRO (Brazil) observed that certain provisions of paragraph 2 were not entirely consistent with the labour laws of his country. Thus, the required period of residence was somewhat longer in Brazil than that contemplated in sub-paragraph 2 (a); and the conditions set forth in sub-paragraphs (a), (b) and (c) were cumulative rather than alternative. However, the Brazilian Government might be willing to make exceptions in the case of refugees.

24.  Mr. HENKIN (United States of America) suggested that the words "undertake to" in the first line of paragraph 1 should be replaced by "shall", and that the word "given" in the second line should be replaced by "accorded".

It was so decided.

Article 12, as amended, was adopted.

Articles 13, 14, 15 and 16

The above articles were adopted.

Article 17

25.  Mr. HENKIN (United States of America) recalled that it had been agreed that articles of the draft convention should be given titles for purposes of convenience. The general feeling in the working group had been, however, that those titles should be retained only during the subsequent two or three stages of consideration of the draft, or until its consideration had been completed by the Economic and Social Council, after which time only the chapter headings would remain. In the case of article 17, the words "public education" did not actually appear in the text, because the term had varying meanings in different countries, and because the provisions of the article were intended to apply not only to State-owned schools but also to private schools receiving Government subsidies. Members should bear in mind that the title of the article was only tentative and might eventually be omitted.

Article 17 was adopted.

Article 18

Article 18 was adopted.

Article 19

26.  The CHAIRMAN pointed out that paragraphs 2 and 3 were based on a proposal originally made by the representative of the American Federation of Labor and accepted in principle by the Committee. They had been formally introduced by the representative of Belgium in the working group.

27.  Mr. EVANS (International Labour Organisation) pointed out in connexion with the word "disability" in the second line of sub-paragraph 1(b) that the term used in the Migration for Employment Convention and certain other international agreements was "invalidity". The use of the word "disability" would therefore represent a departure from precedent.

28.  After some discussion, the CHAIRMAN stressed that no change of substance but only a textual improvement was intended by the substitution of the word "disability" for "invalidity". He suggested that the article should be provisionally approved as it stood, subject to further comment by the representative of the International Labour Organisation on the question of accepted terminology.

It was so decided.

Article 19 was adopted.

Article 20

29.  The CHAIRMAN proposed the deletion of the words "so far as possible" in paragraph 2, which had been inserted at his own suggestion in the Working Group.

It was so decided.

Article 20, as amended, was adopted.

Article 21

30.  Mr. HENKIN (United States of America) proposed that the words "governing aliens generally" in the third line should be replaced by "applicable generally to aliens in the same circumstances".

It was so decided.

Article 21, as amended, was adopted.

Article 22

Article 22, was adopted.

Article 23

31.  The CHAIRMAN stated that the text of the schedule referred to in paragraph 1 would be distributed shortly, and would be examined after consideration of the draft convention.

32.  Mr. HENKIN (United States of America) pointed out that the term "lawfully resident", not used in the draft convention elsewhere, appeared in article 23 because it was used in the corresponding section of the 1946 Agreement, on which the article was based.

33.  He explained further that the Working Group had decided to delete part of paragraph 2, referring to previous arrangements and agreements, and to include it in article 32.

34.  Mr. GUERREIRO (Brazil) wondered whether, under the terms of paragraph 2, a State not party to a previous agreement which acceded to the present draft convention was bound to recognize travel documents issued under that previous agreement.

35.  The CHAIRMAN pointed out that rule 32 dealt with the question raised by the representative of Brazil.

36.  Mr. HENKIN (United States of America) thought that the point hardly arose because the documents issued under previous agreements were largely obsolete, with the possible exception of Nansen passports and documents issued under the 1946 Agreement.

Article 23 was adopted.

Article 24

Article 24 was adopted.

Article 25

37.  Mr. GUERREIRO (Brazil) stated that his Government might wish to make reservations in respect of article 25.

38.  Mr. HENKIN (United States of America) observed that the provisions of the article had been somewhat weakened as a result of discussion in the Working Group; in particular, the insertion of the words "in conformity with its laws and regulations" in paragraph 1 might induce some members to withdraw their reservations. It was to be hoped, however, that contracting States would make appropriate changes in their laws and regulations so as to accord protection to refugees in the matter of the transfer of assets.

Article 25 was adopted.

Article 26

39.  Sir Leslie BRASS (United Kingdom) drew attention to the special position of his country due to its geographical situation, the large number of aliens it received and the considerable number of aliens constantly endeavouring to obtain admission. The provisions of articles 26, 27 and 28 corresponded in substance with the practice normally followed by the United Kingdom Government; however, in exceptional cases his Government was obliged to depart from that practice, and public opinion in the United Kingdom would be strongly opposed to the abandonment of the Government's right to do so.

40.  Sir Leslie stressed that his reservation applied to exceptional cases only. The United Kingdom Government would in each case strive not to enforce its rights unless no alternative remained.

Article 26 was adopted.

Article 27

41.  Mr. LARSEN (Denmark) pointed out that the heading "Expulsion of lawfully resident refugees" was not quite in agreement with the contents of the article. "Refugees lawfully in the country" might be a better term.

42.  The CHAIRMAN suggested that the heading should read "Expulsion of refugees lawfully admitted".

It was so decided.

43.  Sir Leslie BRASS (United Kingdom) observed that paragraph 2 of the article presented a difficulty to the United Kingdom in that the Home Secretary, who was the competent authority for the issue of deportation orders, was unable himself to bear the persons concerned before he issued the orders. He therefore felt constrained to make a particular reservation on behalf of his Government with respect to paragraph 2. Should the Committee agree to a slightly different wording the difficulty would be met.

44.  Sir Leslie Brass suggested that the paragraph should read: "Such refugee shall be entitled, in accordance with the established law and procedure of the country, to submit either personally or through a representative evidence to clear himself to the competent authority".

45.  Mr. HENKIN (United States of America) felt that while the paragraph did not concern the Government of the United States, one effect of the proposed change would be to deprive a refugee of the opportunity of making a personal appearance before the competent authority and presenting evidence.

46.  Sir Leslie BRASS (United Kingdom) suggested that the views of the representative of the United States would be met if the sentence concerned were made to read "…to submit personally or, if he chooses, through a representative."

47.  Mr. CUVELIER (Belgium) wished to point out that neither the article in its original form nor the proposed amendment would guarantee the right of a refugee to appear personally before the competent authority. A petition in writing could never have the force of a personal appearance. If that right were not specifically granted in the convention, he feared that some States might not apply it as liberally as the United Kingdom.

48.  Sir Leslie BRASS (United Kingdom) stated that, in the case of the United Kingdom, the person, his legal representatives and his friends could personally call at the Home Office and make representations: they could also communicate with a Member of Parliament. If the person was in prison, he could write to the Home Secretary and was afforded ample opportunities to see his legal representatives and friends who could make representations on his behalf. In the United Kingdom the Home Secretary took a personal interest in every case and never issued a deportation order without going into it in the greatest detail.

49.  The CHAIRMAN suggested that the Home Office might be regarded as the "competent authority" and that, in view of the comments of the representatives of the United States of America and of Belgium, the United Kingdom representative might allow the paragraph to stand in its original form.

50.  Sir Leslie BRASS (United Kingdom) agreed.

Article 27 was adopted without further discussion.

Article 28

51.  Mr. PEREZ PEROZO (Venezuela) wished to confirm the statement he had made when the Committee had discussed the principle of the point raised in the article.

52.  The CHAIRMAN suggested the deletion of the words "Each of" at the beginning of the article.

It was so decided.

53.  Mr. ORDONNEAU (France) felt that the French translation of the paragraph was not quite adequate. He suggested that the first few words should read "No Contracting State shall expel…."

It was so decided.

Article 28, as amended, was adopted.

Article 29

Article 29, as adopted.

Article 30

54.  The CHAIRMAN pointed out that the articles should stress the need for contact between the contracting States and the agencies charged by the United Nations with the international protection of refugees.

55.  He suggested that paragraph 1 be amended to read as follows: "The Contracting States shall maintain contact with the agencies charged by the United Nations with the international protection of refugees such as the United Nations High Commissioner for Refugees, and shall facilitate their work."

Article 30, as amended, was adopted.

Article 31

56.  Mr. HENKIN (United States of America) proposed that article 31 should be amended to read: "Each of the Contracting States shall, within a reasonable time and in accordance with its constitution, adopt legislation or other measures to give effect to the provisions of this convention, if such measures are not already in effect."

Article 31, as amended, was adopted.

Article 32

57.  Mr. HENKIN (United States of America) proposed the deletion of the word "and" each time it appeared on the third line of paragraph 1. Moreover, the word "agreement" on the last line of paragraph 2 should not be capitablized.

It was so decided.

Article 32, as amended, was adopted.

Articles 33 and 34

Articles 33 and 34 were adopted.

Article 35

58.  Mr. PEREZ PEROZO (Venezuela) felt that the Committee should not attempt to reach a decision as to the inclusion of a colonial clause in the convention. It might be included in the report of the Rapporteur. The question had been discussed very thoroughly in the General Assembly and any decision taken by the Committee would not bear much weight since the General Assembly itself would have the last word in the matter, which was decidedly political in nature.

59.  He would therefore abstain from the vote, but his abstention should in no way prejudice the attitude which his delegation might adopt when the question was taken up in the General Assembly.

60.  Mr. ORDONNEAU (France) insisted that the clause should be retained. He felt that a positive stand should be taken on the issue. Some States were objecting to the inclusion of a colonial clause for theoretical reasons but failed to consider the position of those countries entrusted with the administration of non-self-governing territories. The suppression of the colonial clause would make it impossible for certain States, such as France, to ratify the convention.

61.  Sir Leslie BRASS (United Kingdom) supported the position taken by the representative of France and regarded the clause as essential.

62.  Mr. GUERREIRO (Brazil) felt that the clause might be included with an explanation that the Committee was aware of the debate to which the matter had given rise in various organs of the United Nations but did not feel in a position to take a decision in the matter. It had merely decided to include the most recent formula, taken from the Draft Convention on the International Transmission of News and the Right of Correction.

63.  Mr. Guerreiro expressed the opinion that any decision in the matter should be taken by political organs since they had considered it at length.

64.  The CHAIRMAN agreed that the various views expressed should be included in the report. It appeared to be the sense of the Committee, however that the article should be included in the convention. The Committee would take note of the reservations expressed by the representative of Venezuela.

65.  Mr. GUERREIRO (Brazil) advised the Committee that should it decide to retain the colonial clause he would not like to prejudge the position his delegation might take in the Economic and Social Council and the General Assembly. He would therefore abstain from voting.

66.  Mr. CHA (China) pointed out that the question of the colonial clause had been debated at length in the Third Committee of the General Assembly during the discussion of the Convention on Traffic in Persons. It had been decided not to include a colonial clause in that convention. Since his Government had accepted the convention, it was possible that it might not very well agree to the inclusion of such a clause in the draft convention relating to the status of refugees. He could not say what decision his Government would reach on the subject and he would therefore abstain from the vote.

67.  The CHAIRMAN said that the Committee would take note of the views expressed, some of which were more political than technical.

Article 35 was adopted.

Article 36

68.  Mr. LARSEN (Denmark) observed that it had been decided to abandon the principle of the lowest common denominator, since a convention would hardly be useful if it contained only the minimum acceptable to everyone. Nor should it be drafted in such idealistic terms as to prove unacceptable to the majority. Yet, a happy medium acceptable to the majority of States could not be achieved without sacrifices. It would, nevertheless, be difficult for the representative of any individual state to decide as to what might prove acceptable to his Government.

69.  Mr. Larsen therefore suggested that the clause on reservations should be made more liberal than it appeared in article 36. Many States were willing and able to give refugees a reasonable standard of living and legal status. The treatment of foreigners in some countries might be better than that of nationals in others. States able and willing to take the responsibility upon themselves should not be made to hesitate to sign the convention through a feeling that they were promising more than they could give. The greatest latitude should therefore be allowed with respect to reservations.

70.  Mr. Larsen had no formal amendments to propose since he felt that the Committee would support the article as it stood.

71.  Mr. KURAL (Turkey) proposed the deletion of paragraph 1 of the article and the reference to article 23 in paragraph 2.

72.  Mr. HENKIN (United States of America) pointed out that, in drafting the article on reservations, the working group had attempted to reach a compromise between the lowest and the highest denominator. It had sought to draft a clause acceptable to as many States as possible.

73.  Mr. GUERREIRO (Brazil) proposed that the word "law" should be used instead of "structure" in paragraph 1.

74.  The CHAIRMAN proposed that the Committee should adjourn until 2.15 p.m.

75.  Mr. CUVELIER (Belgium) wished to correct a statement about him in the summary record of the fourteenth meeting of the Committee (items 15 and 16). It had been stated that he had presided at the last conference of the ILO at Geneva. That was incorrect, for he had merely presided over an ILO commission which had drafted the Convention on Migration for Employment.

The meeting rose at 12.55 p.m.