Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Summary Record of the Thirty-Fifth Meeting Held at the Palais des Nations, Geneva, on Tuesday, 15 August 1950, at 10.30 a.m.

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/L.3 and E/AC.32/L.40) (continued)

The Committee continued consideration of the draft Convention contained in Annex I to its first report (E/1618).

Article 5:         Exemption from exceptional measures (continued)

The CHAIRMAN reopened the discussion on article 5 of the draft Convention Relating to the Status of Refugees (E/1618) and the United Kingdom comments on that article (E/AC.32/L.40, page 36).

Mr. HERMENT (Belgium), referring to the United Kingdom delegation's comment on article 5 (E/AC,32/L.40, page 36) and the United Kingdom representative's remarks upon it at the previous meeting, said that he fully appreciated the right of the United Kingdom to take all necessary steps for its security. He wondered however whether it was really necessary to insert a specific provision regarding the right of Governments to intern all refugees originating from a given country, and whether, if such a provision was necessary, article 5 need be amended. The United Kingdom representative had described conditions in his country in 1940. Conditions in Belgium had been very similar to those in the United Kingdom at that time. The refugees in both countries in 1940 were not real refugees who had been screened previously, but individuals fleeing from their countries, who did not enjoy the status of refugees. Among them there were suspicious elements, against whom severe measures were required.

Article 5, on the other hand, concerned refugees who had the status of refugees, and who had lived for months or years in the countries where they were to be found, and whose antecedents had been amply investigated. Any suspicious element among such refugees would constitute a small minority, and there would have been time to discover it. In other words, article 5 concerned refugees with the status of refugees, not candidates for that status. It would be extremely harsh to deprive such people of all the privileges and guarantees they had obtained as bona fide refugees in their countries of settlement. It would, in fact, amount to penalizing them for not having become stateless, as the United Kingdom suggestion would not cover stateless persons but only refugees possessing a nationality. He felt that it was essential that the principle in article 5 should be preserved, and suggested, therefore, that that article be retained as it was, and that Governments who were in the same position as the United Kingdom Government should make reservations in respect of it when the Convention was adopted.

Mr. HENKIN (United States of America) stated that the choice before the Committee was simple: either the text of article 5 should be retained as it was, and the various Governments be left to make their reservations concerning it; or it must be so amended as to make such reservations unnecessary. That decision should be taken before the article was submitted to the Drafting Committee.

Mr. PENTEADO (Brazil) and Mr. JUVIGNY (France) favoured adoption of the second alternative put by the United States representative.

Mr. HERMENT (Belgium) said that if the article were amended along the lines proposed by the United Kingdom representative, refugees might be placed in an unfair position.

Mr. JUVIGNY (France) felt that the difficulty of the Belgian representative might be partly overcome by making a distinction between two types of exceptional measures, as the Israeli representative had proposed at the previous meeting, namely: on the one hand, measures taken in peace-time or during crises of a non-military type, such as economic or financial crises, and also retaliatory measures, and, on the other hand, measures taken in exceptional circumstances which affected peace or national security. The provision relating to the latter type of measures would naturally be more severe than the former. Article 5 might state what the "exceptional circumstances" were and that they would be the only ones under which the provisions of the article could be suspended. The circumstances of war were unforeseeable, and in extremity Governments which had accepted the convention unreservedly might be obliged to intern citizens of enemy countries. In spirit, article 5 was an invitation to Sates, should exceptional circumstances arise, to keep bona fide refugees in internment comps only for as short a time as possible. The interests of the national community and of the refugees had, in fact, to be harmonized.

Mr. HENKIN (United States of America) felt that the scope of any limitation on article 5 ought to be defined more precisely than had been proposed, rather than leaving it open to countries to make far-reaching reservations. He would like the limitation to be as narrow as was possible to make the article acceptable.

Article 5 ought not to prevent Governments in time of war from screening refugees to weed out those who were posing as such for subversive purposes. Governments already had that power as regards other aliens and their own citizens, so that it would not amount to discrimination. It would nonetheless be true that one of the first reasons for suspecting a refugee would be his nationality or former nationality, so that article 5 was involved.

Mr. HERMENT (Belgium) accepted the suggestions of the French and United States representatives.

He pointed out, however, that article 5 as at present drafted failed to provide for the case of former nationals of an enemy country.

He wished to know the meaning of the word "formally", appearing in the article.

The CHAIRMAN, speaking as Danish representative, agreed that provision should be made for former nationals of an enemy country and suggested that the penultimate phrase of the article should read "to a refugee who is or has been a member of the said State, solely on account of such present or former nationality." It was difficult to be certain whether a person was really a refugee since it did not always appear on his passport: certain Germans had become genuine refugees while retaining their German passports, other refugees had emergency or Nansen passports.

Mr. JUVIGNY (France) explained to the Belgian representative that the word "formally" meant "legally".

The Belgian representative appeared to be opposed to any possibility of interning refugees; the text however only prohibited such internment if it were effected simply on account of the refugees' nationality. In 1939-40, and at later periods, the French authorities had interned not only aliens, but also a few French nationals suspected of fifth-column activities. Such a measure, which only conditions of crisis could justify, could not be prohibited under article 5.

Mr. HERMENT (Belgium) thanked the French representative for his explanation of the word "formally". He proposed that the word "legally" he substituted for it. He wished to explain that he had never contested the right of any Government to intern anyone whatsoever.

Mr. HOGAN (Secretary to the Committee) read out the following alternative amendments proposed by the United Kingdom representative:[1]

"EITHER

A.     Additional Article to Draft Convention Relating to the Status of Refugees (E/1618)

1.     A Contracting State may at a time of national crisis derogate from any particular provision of this Convention to such extent only as is necessary in the interests of the national security.

2.     The Contracting State shall immediately inform the other Contracting States through the Secretary-General of the United Nations of any such derogation and of the date of the termination thereof.

OR

B.    Proposal to add the following to Article 5:

Provided however that at a time of national crisis a Contracting State may apply provisionally any such measure to a refugee on account of his nationality until it is determined that the measure is no longer necessary in the interests of the national security."

Sir Leslie BRASS (United Kingdom), introducing his amendments, stated that he agreed with the United States representative that many States would require provision for security in connection with article 5, and that it would therefore be better to deal with the question of security specifically in the text rather than leave it to individual reservations on the part of Governments. As he had indicated at the previous meeting, his Government desired a general provision to be included in the Convention exonerating States from complying with the Convention's provisions in time of crisis.

His country attached great importance to national security. During the war British subjects and non-enemy aliens had been interned in cases where there had been grounds for suspecting their loyalty. Many, though not all, enemy aliens had also been interned in 1940 simply because they were enemy aliens; after internment they had been screened and within a year only a very small proportion of them had remained in detention. The Belgian representative had asked whether it was necessary to apply exceptional measures to refugees of enemy nationality. He was definitely of the opinion that it was necessary, and believed that the Chairman in his capacity as Danish representative would agree with him. It was impossible to give all persons entering the country as refugees a thorough security examination, which had to be deferred till exception circumstances made it necessary.

He wished to explain that the term "exceptional measures" covered not only internment but such measures as restrictions on the possession of wireless apparatus, in order to prevent the reception of code messages and the conversion of receiving into transmitting apparatus.

His proposed text only represented a provisional draft. His Government desired a provision to be made in the Convention along the lines of alternative A, which was an additional article to the draft Convention. It would be for the Committee to consider to what articles the exemption provided for in it should apply: he suggested for example article 21 concerning freedom of movement. He had drafted alternative B in order to assist the Committee as he had understood that it was its wish that he should do so.

Mr. CHA (China) supported alternative A of the text, since he favoured there being further provisions for exceptional measures in time of crisis than appeared in article 5 in its present form. He welcomed particularly the provision in paragraph 2 requiring that the Secretary-General of the United Nations should be informed when such measures were taken.

Mr. HERMENT (Belgium) also supported alternative A.

Mr.ROBINSON (Israel) felt that at the present stage of discussion of the draft Convention it was not possible to discuss a general article providing for derogations from the Convention in times of emergency; alternative A would be better considered after all the articles in the Convention had been examined and it was known what rights would be accorded to refugees.

If the Committee decided to include a general article such as alternative A, he considered that it could only apply to articles 5 and 21, and that it ought to be more specific. But he felt that what was required was the insertion in article 5 of some such clause as alternative B, and suggested that the Drafting Committee adopt it as a basis of discussion.

Mr. PEREZ PEROZO (Venezuela) supported alternative A of the United Kingdom proposal. He felt that the procedural objection raised by the Israeli representative might be met by considering and adopting alternative A provisionally at the present meeting, since the problems raised by article 5 had to be dealt with at once. The Drafting Committee could be asked to find a suitable place in the Convention for the article contained in alternative A, and to make the other articles confirm with its provisions.

He proposed that in paragraph 1 of alternative A the words "and of public order" be inserted after the words "national security". Those words appeared in a number of conventions connected with refugees and in article 27 of the draft Convention under consideration. The reason for the adoption of those words in article 27 had been that exceptional measures would necessary not only during an external emergency but during an internal one such as a revolution; it would be unjust for refugees to be protected from such measures while nationals of the country concerned were not.

Mr. HERMENT (Belgium) felt that representatives ought to give their individual views on the texts submitted by the United Kingdom representative before the Committee took any decision concerning them, including any decision to refer them to the Drafting Committee.

Mr. WINTER (Canada) was in favour of alternative A. in his country refugees were granted legal status after a previous examination on their entering the country; later information obtained sometimes threw new light on their possible danger to the community. If the State were not permitted to take measures against refugees in the light of such later information, it would be less willing to accord them citizen status.

Mr. HEKIN (United States of America) felt that alternative A was drafted in somewhat wide terms and was favour of alternative B being adopted, without prejudice to the addition of some other general provision later. He suggested that the Drafting Committee be asked to incorporate alternative B in article 5, without prejudice to its subsequent deletion should it be found that other articles required a similar emergency provision and that a separate article to cover all of them would therefore be preferable.

Mr. HURELGIN (Turkey) supported alternative A, and hoped that the Drafting Committee would indicate where it might be inserted.

Mr. HERMENT (Belgium) felt that it would be preferable to adopt alternative A provisionally and see if it required amendment later.

The CHAIRMAN noted that the Committee appeared undecided between alternatives A and B; representatives might very probably change their views upon them later in the discussion. He proposed the present discussion in mine, and that it return later to article 5 and the alternative proposals made by the United Kingdom representative, together with the Venezuelan representative's amendment.

It was so agreed.

Article 6:         Continuity of residence

Mr. HOGAN (Secretary to the Committee) read out the text of article 6 together with the relevant comment of the Austrian Government (E/AC.32/L.40, page 37).

The CHAIRMAN remarked that since the Austrian Government had not sent an observer to attend the meeting of the Committee, little could be added to what had been said in the Committee during the previous discussion on that article.

Mr. HENKIN (United States of America) noted that the Austrian comment referred only to the special circumstances of Austria, not to other countries. He regretted the absence of an Austrian observer, and suggested therefore that the text of article 6 be provisionally adopted, on the understanding that the Committee might consider it again should Austria decide to send an observer to attend the Committee at some later date.

The CHAIRMAN supported the suggestion of the United States representative. Even were Austria to sign the Convention in its present form, it would still be open to her to demand a further period of residence to cover the point made in her comment on the article, since the Austrian nationality law of 1945 did not accord an applicant the right to acquire Austrian nationality in certain circumstances, but merely indicated the qualification necessary for him to be granted it.

Mr. PEREZ PEROZO (Venezuela) also supported the suggestion of the United States representative. Austria constituted a special case, and the Austrian Government would be able to solve its peculiar difficulties when the situation returned to normal.

He was in agreement with the substance of article 6, but felt that the meaning of the expression "forcibly displaced" occurring in paragraph 2 might be made clearer. It presumably was not intended to refer to persons displaced by the Government of the country on account of their suspicious or criminal activities, but only to persons forcibly displaced by enemy or occupying authorities.

The CHAIRMAN suggested that the difficulty raised by the Venezuelan representative might be due to the difference in meaning between words used in the English and French texts. The English word "displaced" did not cover deportation by the government of the country, whereas the French word "deporté" did. It would be for the Drafting Committee to find a more precise form of words.

Mr. JUVIGNY (France) did not oppose a re-examination of the terminology. He pointed out, however, that the French word "deportè" was now coming to have a legal meaning as applying to a person who during a certain period had been forced by the occupation authorities to leave France for certain reasons; only persons who had been removed from the country in those honourable circumstances were provided with a "carte de deporté".

He suggested that either the possibility be examined of another word being used in the place of "deporté", or better still that some formula be found which would make the meaning clear while retaining the word.

He wished to stress that in France length of residence did not give a person a right to nationalization, but only qualified him for receiving nationalization as a privilege.

Mr. WEIS (International Refugee Organization) felt that the English expression "displaced person" had a legal meaning: it was defined in Annex I of the International Refugee Organization's Constitution, which made it clear that the expression only applied to persons displaced by the Axis powers during the Second World War. He suggested that article 6 would be clearer if the words "displaced person" were used in the English text. In the French text of the International Refugee Organization's Constitution those words were translated as "personne deplacé"; he suggested that the same words be used in the French version of article 6.

Sir Leslie BRASS (United Kingdom) thought that the words suggested were satisfactory in English and felt that the matter should now be referred to the Drafting Committee, which would take into consideration any French equivalent that might be suggested by the French representative.

Mr. PEREZ PEROZO (Venezuela) stated that he had made use of the Spanish text, which had been translated from the French. The word equivalent to "deported" in Spanish was stronger than the French word "deporté" and covered deportation for criminal reasons. He suggested that the Spanish equivalent of the word "displaced" be employed when the Spanish text was drawn up.

The CHAIRMAN proposed that the observations which had been made should be referred to the Drafting Committee and that the Committee should return to article 6 after the Drafting Committee had given them consideration.

It was so agreed.

The meeting rose at 1 p.m.

[1] Subsequently reproduced as document E/AC.32/L.41