Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: Summary Record of the Fourteenth Meeting

A/CONF.2/SR.14

1. STATEMENT BY ARCHBISHOP BERNARDINI, REPRESENTATIVE OF THE HOLY SEE

The PRESIDENT welcomed Archbishop Bernardini, representative of the Holy See, and assured him that the Conference was looking forward to his contribution to its work. He felt sure that the friendly collaboration which had hitherto prevailed among the various delegations would be extended to the newly arrived representative.

Archbishop BERNARDINI (The Holy See) thanked the President for his welcome. The Holy See had long been interested in the fate of refugees, and was happy to see the problem of refugees and stateless persons, with which a number of international organizations had already concerned themselves, being taken up by the United Nations. The Holy See was always ready to help in alleviating human suffering, and gladly placed its experience in welfare work at the disposal of the Conference.

2. CONSIDERATION OF THE DRAFT CONVENTION ON THE STATUS OF REFUGEES (item 5(a) of the agenda) (A/CONF.2/1 and Corr.1, A/CONF.2/5) (resumed from the thirteenth meeting):

(i) Article 26 - Refugees not lawfully admitted (A/CONF.2/58, A/CONF.2/62, A/CONF.2/65) (continued)

Mr. van HEUVEN GOEDHART (United Nations High Commissioner for Refugees) fully appreciated the motives that had prompted the French delegation to introduce its amendment (A/CONF.2/62) to article 26, and realized that that delegation had no intention of applying restrictive practices to refugees. On the contrary, France was one of the countries which had always shown great generosity towards those unfortunate persons. He thought, however, that the text of that article as modified by the French amendment might give rise to some difficulties.

There were two main categories of refugee. First, there were refugees who, after leaving one country of persecution, arrived in another country were they might possibly remain unmolested for a certain period, but would then again be in danger of persecution. If, as a result, they moved on again and reached a country of true asylum, it might be claimed that they had not come direct from their country of origin. For example, in 1944, he had himself left the Netherlands on account of persecution and had hidden in Belgium for five days. As he had run the risk of further persecution in that country, he had been helped by the resistance movement to cross into France. From France he had gone on into Spain, and thence to Gibraltar. Thus, before reaching Gibraltar, he had traversed several countries in each of which the threat of persecution had existed. He considered that it would be very unfortunate if a refugee in similar circumstances was penalized for not having proceeded direct to the country of asylum. In his opinion it would be an improvement if, instead of referring to the refugee's country of article 28 were followed in article 26.

Secondly, there were refugees who fled from a country of persecution direct to a country of asylum; they might not, however, be granted the right to settle there, even thought the country in question was a contracting State. Thus a refugee might suffer if he arrived in a country which did not display a generous attitude. Such refugees might possibly be covered if the words "and shows good cause" were amended to read "or shows other good causes". The fact that a refugee had fled from a country of persecution in itself constituted good cause for his entry into or presence in the country of asylum.

Speaking at the invitation of the PRESIDENT, Abbé HAAS (Caritas Internationalis) said that the amendment which the Colombian delegation had submitted and subsequently withdrawn had for the first time at the present Conference explicitly raised the question of the right of asylum. It was precisely on that right, which presented a particularly delicate problem in the case of refugees who entered a country illegally, that his organization wished to be heard.

His organization wished first to say how pleased it was to think that the Conference was to produce a now diplomatic instrument which would contain the most humane statement possible of the terms on which States should accord one of the oldest rights of mankind, namely, that of asylum, a right which Caritas Internationalis had already brought to the attention of the United Nations Commission on Human Rights.

Even before legal relationships were established, the taking-in of a refugee by a State able to grant him its protection set up a bond of mutual confidence between the person thus entrusting another country with the protection of his life and liberty and the State which was prepared to safeguard it by granting him asylum. That meant that on both the spiritual and the human plane the right of asylum assumed an amplitude which admitted of no other limitations than those best fitted to safeguard it.

It was not his intention, in expressing that general principle, to indulge in facile oratory. He was merely expressing, on behalf of Caritas Internationalis, the feelings of all Catholic voluntary relief organizations.

His organization was firmly convinced that every effort must be made to ensure that, from the moment they were deprived of their natural protection, refugees were accorded genuine and universal respect for the dignity inherent in all members of the human race and for their equal and inalienable rights. In the difficult task of taking in refugees, a balance could and must be found between prudence and charity, between firmness and generosity.

His organization appealed to the Conference to consider the exceptional position of the exceptional position of the refugee. In whatever country or continent he fund himself, the refugee always remained someone who had suffered more than could ever be imagined from his being uprooted, someone who no longer had the support of his native land behind him and who, being often forced by those circumstances to take clandestine and illegal action, could never be as other aliens. The special rights granted to refugees by earlier Conventions and by the conscience of mankind were consequently not privileges in the legal meaning of the word; they were the natural outcome of the refugee's very situation.

Caritas Internationalis therefore hoped that concern for the material, economic, social and political interests of receiving countries would not lead Governments to enter reservations incompatible with the noblest form of hospitality.

Mr. COLEMAR (France) appreciated the difficulties that might arise in the application of article 26 if his amendment was adopted. France was not absolutely opposed to the illegal entry and residence of certain refugees, and the French delegation was quite prepared to consider changing the text of its amendment, for example by replacing the words "coming direct from his country of origin" by the words "having been unable to find even temporary asylum in a country other than the one in which his life or freedom would be threatened". Such a change would meet the points which were causing the High Commissioner concern.

Mr. von TRÜTZSCHLER (Federal Republic of Germany) said that the French amendment emphasized the difficulties experienced by countries of asylum. Germany was one such country, and its Constitution recognized the principle of asylum. Germany therefore had a special burden upon it by its Constitution and by its geographical position. It would continue to de its utmost to alleviate the plight of refugees and to act as liberally as possible towards those of them for whom Germany was the first country of refuge. He would, however, appeal to the governments represented at the Conference to open their frontiers to refugees as widely as possible, and thereby to help Germany to cope with her extremely difficult tasks in that respect.

Mr. HOARE (United Kingdom) stated that, while he appreciated the objective of the French amendment, he had been impressed by the arguments advanced by the High Commissioner for Refugees. He wondered whether the original text of article 26 did not allow countries such as France, which received refugees in great numbers, sufficient latitude. According to paragraph 1, States must refrain from imposing penalties on refugees who presented themselves without delay to the authorities and who showed good cause for their entry or presence. The fact that a refugee was fleeing from persecution was already a good cause. But, as the High Commissioner had pointed out, there might be cases where a refugee could show good cause even though he had not fled direct from a country where his life was endangered.

He therefore thought that it would be sufficient for Contracting States to accept paragraph 1 as originally drafted, since they themselves would be free to decide whether a refugee indeed had good cause for his entry or presence. The original wording of paragraph 1 would be more generous to the refugee, while preserving ample discretion for Contracting States.

Baron van BOETZELAER (Netherlands) feared that article 26 might be interpreted as debarring States from expelling refugees who had illegally entered its territory. But in view of the Canadian representative's statement at the preceding meeting, that he would interpret the silence of representatives as tacit approval of the Canadian Government's interpretation of article 26, he would remain silent.

He also had certain misgivings about the interpretation of the words "good cause". It seemed to him that article 26 excluded the possibility of a refugee being allowed to enter another country where a member of his family was, for example, sick. After pondering the various possibilities, he agreed with the United Kingdom representative that it would be difficult to define briefly what was meant by "good cause". The words "reconnues valables" in the French text of paragraph 1 correctly rendered the idea intended, as they implied that the State could use its discretion in judging individual cases, whereas the English text provided no such criterion.

Mr. COLEMAR (France) regretted that he must press his amendment. He agreed that it was often difficult to define the reasons which could be regarded ad constituting good cause for the illegal entry into, or presence in, the territory of a State of a refugee. But it was precisely on account of that difficulty that it was necessary to make the wording of paragraph 1 more explicit. It the right of a refugee to seek asylum in a receiving country was recognized, it was only natural that certain obligations towards the authorities of that country should he laid upon him.

Mr. ZUTTER (Switzerland) thought that the question raised was an important one. It was desirable to know that reasons could be regarded by the authorities of a country as constituting good cause for the illegal entry or presence of a refugee in their territory. Switzerland would no doubt have been satisfied with the existing wording of article 26 if his country had not, as it happened, experienced difficulties in the matter. Swiss Federal legislation might not have entirely solved those difficulties, but it had alleviated them to en appreciable extent by laying down thew nature and gravity of the proceedings which could be instituted against refugees who entered or resided in Swiss territory clandestinely. That example might, perhaps, be followed by the Conference.

Mr. SHAW (Australia) felt that the habit of dividing nations into countries of settlement and countries of asylum was an unduly facile simplification. Australia fitted into both those categories because, although it had no land frontiers contiguous to other countries, it nevertheless had its share of illegal immigrants. During the war many thousands of such immigrants had fled from their countries of origin, which had then been under Japanese occupation, for example, Indonesia, the Pacific Islands, New Guinea, China and the Malay Peninsula, and had landed illegally on Australian territory, where they had been considered as refugees fleeing from a common enemy. They had been given the same rations and treatment as Australian nationals under conditions similar to the provisions of article 26. After the war, many of those refugees had been sent back to their countries of origin, but a considerable number still remained in Australia. He mentioned that situation simply to show that Australia was also confronted with the problem of illegal immigrants claiming refugee status.

Several economists of world-wide repute had asserted that the Australian immigration rate was too high. Australia was prepared to accept that risk, but wished to be quite clear its total commitments, particularly if article 26 was designed to impose further obligations upon States. He had welcomed the information given at the preceding meeting concerning the history and interpretation of article 26. The Canadian, Netherlands and Belgian representatives had explained that the article was not intended to interfere with the prerogative of a State to expel refugees if it so decided, but that it merely applied to the right of a State to grant asylum. Some representatives had contended that the words "good cause" should be given a wide interpretation, a contention which had gone unchallenged and which influenced the attitude of the Australian delegation. He was not yet clear in his own mind as to the categories of persons covered by article 26. He would therefore reserve his final position on the article until a decision had been reached on article 1, when it would be known to which categories of refugee article 26 was to apply.

Mr. HERMENT (Belgium) said that the whole question boiled down to whether the French Government considered that it would be free to impose penalties on refugees when the reasons advanced by the latter to justify their illegal presence in or entry into France were not recognized as constituting "good cause". If the answer was in the affirmative, it would not be necessary to incorporate the French amendment in article 26.

Mr. COLEMAR (France) said that as the wording of article 26 was not clear and explicit, it was necessary to make it so. To admit without any reservation that a refugee who had settled temporarily in a receiving country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience. It was normal in such cases that he should apply for a visa to the authorities of the country in question. It was not true that article 26 did not refer to immigration, but only to asylum.

Mr. HERMENT (Belgium) agreed with the interpretation just given by the representative of France. The French Government wished refugees illegally entering the territory of a Contracting State to be exempt from penalties when they came from the territory of another State in which they had been unable to find asylum. He personally wondered whether that reason alone would be considered as sufficient to constitute "good cause". At all events, the cases of such refugees would be submitted to the Courts, which would decide whether extenuating circumstances should or should not be taken into account in any given case.

Mr. van HEUVEN GOEDHART (United Nations High Commissioner for Refugees) said that he had listened with great interest to the discussion. He recalled the fact that in his previous statement he had not broached the main issue, namely, whether any amendment to article 26 was really necessary. As he interpreted it, article 26 covered the various points about which the French delegation felt some concern. But, as the French representative apparently found some difficulty on accepting the text, as it stood, he wished to say that, in his opinion, both the two categories of refugees to which he had previously referred would be protected if the French representative's latest suggestion was adopted.

The PRESIDENT pointed out that, subject to whatever international conventions they might have signed, States were sovereign so far as their own legislation was concerned. Article 26 only referred to cases of unlawful entry, and provided for certain commitments in that connexion on the part of States. If his interpretation of the article was correct, delegations which had felt misgivings about the scope of the obligations prescribed in article 26 could rest assured that the interests of the countries they represented were safeguarded.

Mr. HOARE (United Kingdom) felt that it would be difficult to define the refugees in question more precisely than they were defined in the original text. If the latest suggestion made by the French representative and supported by the High Commissioner for Refugees was adopted, a refugee would have to establish not merely his refugee status, but also that he was unable to find asylum in any country other than the one in which he applied to settle. Thus the onus of proving a negative would be placed on the refugee himself; before he was allowed to settle in one country, he would have to prove that he was barred from settling in any other.

The PRESIDENT considered that the words "good cause" would oblige the refugee to show why he had failed to secure asylum in a country adjacent to his country of origin.

Mr. ZUTTER (Switzerland) shared the President's point of view. In practice, it would be fairly simple to determine the reasons which had led up to a refugee's illegal entry into or presence in the territory of a Contracting State. The French amendment would not make the implementation of paragraph 1 of article 26 any more difficult. Switzerland therefore supported that amendment in its latest form.

Mr. HERMENT (Belgium) said he would like some clarification of what was meant by "temporary asylum". Would a Contracting State be able to impose penalties on a refugee who had stayed in another country for a week or a fortnight, and had then been obliged to seek asylum in the territory of the Contracting State in question?

Mr. COLEMAR (France) said that a question of fact and a question of principle arose. A State could refuse to grant asylum to a refugee, but the main point to be brought out was whether or not a country which a refugee had entered illegally would be free to impose penalties on him.

Mr. PHILON (Greece) thought that there could be no doubt that the case where a country prescribed temporary residence for a refugee and thus deprived him of his freedom of residence did constitute a case where no penalty could be imposed on him by another country into whose territory he had illegally entered or in which he was illegally present.

Taking up a remark made by the PRESIDENT, Mr. HERMENT (Belgium) suggested that the words "being unable to find" should be substituted for the words "having been unable to find" in the French representative's latest version of his amendment.

Mr. COLEMAR (France) did not think that there was any marked difference of meaning between the two phrases. In any case, the amendment suggested by the Belgian representative would not affect the purpose of the French amendment at all. He would not, however, oppose the Belgian suggestion.

Mr. HERMENT (Belgium) did not agree with the French representative. There was a difference between "being unable to find asylum" and "having been unable to find asylum". The second expression would exclude from the benefit of the provision any refugee who had managed to find a few days' asylum in any country through which he had passed.

After an exchange of views between Mr. HERMENT (Belgium), Mr. COLEMAR (France), Mr. PHILON (Greece) and Mr. ZUTTER (Switzerland), Mr. COLEMAR (France) accepted the Belgian representative's suggestion that in the French amendment in its modified form the words "having been unable to find" should be replaced by the words "being unable to find".

The PRESIDENT put the French amendment to paragraph 1 of article 26, as modified, to the vote. The text read as follows:

"The Contracting States shell not impose penalties, on account of his illegal entry or presence, on a refugee who, being unable to find asylum even temporarily in a country other than one in which his life or freedom would be threatened, enters or is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for his illegal entry or presence."

He said that there were small textual differences between the French and English versions which the Style Committee would have to reconcile.

The French amendment to paragraph 1 of article 26, as modified, was adopted by 15 votes to none, with 8 abstentions.

The PRESIDENT then drew attention to the Austrian amendment to article 26 (A/CONF.2/58).

Mr. FRITZER (Austria) pointed out that the words "expulsion or residence order" in his amendment should be modified to read "order of expulsion or of refusal of residence".

Mr. WARREN (United States of America) felt that the word "already" should be inserted between the words "refusal of residence has" and "been issued." Otherwise the sentence would have little meaning.

The PRESIDENT agreed that the present English text was imperfect, but hoped that the English-speaking delegations had no doubts about its substantive meaning. If the amendment was adopted in principle, the Style Committee could revise the text later.

Mr. HOARE (United Kingdom) wondered whether there was any need for such an amendment, since the original text stated that the refugee must show good cause for his illegal entry or presence. A refugee who had been expelled from a country and who knew that an expulsion order had been issued and that he was subject to penalties, could not ordinarily show "good cause".

Mr. CHANCE (Canada) agreed with the United Kingdom representative. He felt that the existing text was adequate.

Mr. HERMENT (Belgium) pointed out that there were cased where an order of expulsion or of refusal of residence could not be held against a refugee, for example, when the order in question was twenty or twenty-five years old. He therefore considered that the Austrian delegation should not press its amendment.

Mr. FRITZER (Austria) said that cases such as that mentioned by the Belgian representative the penalties imposed on refugees would be correspondingly light. In any case, since article 26 said that penalties would not be imposed in certain cases, it seemed necessary to add that the exceptions provided for would not apply in the case of certain categories of refugees.

Mr. HERMENT (Belgium) acknowledged that the Austrian representative's remark was well-founded. It should be pointed out, however, that even a very light penalty imposed on a refugee would result in a new order of refusal of residence.

MOSTAFA Bey (Egypt) drew the Belgian representative's attention to the fact in the example he had mentioned the order would have expired under the statute of limitations, and that the provisions of the Austrian amendment would therefore not apply.

Mr. HERMENT (Belgium) said that so far as he knew, there was no statute of limitations in respect of expulsion.

The PRESIDENT put the Austrian amendment (A/CONF.2/58) to paragraph 1 to the vote.

The Austrian amendment was rejected by 9 votes to 2, with 10 abstentions.

The PRESIDENT announced that the Swedish delegation had introduced an amendment (A/CONF.2/65) to paragraph 2.

Mr. PETREN (Sweden) said that the reasons for the introduction of his amendment were obvious. Paragraph 2 of article 26 made a distinction between the periods before and after regularization of the refugee's status. However, it might so happen, even after the status of a refugee had been regularized, that reasons of national security would require the imposition of certain restrictions on his movements. Paragraph 2, as it stood at present, precluded such action.

The PRESIDENT did not fully appreciate the scope of the Swedish amendment. The first provision of paragraph 2 of the original text of Article 26 meant that Contracting States should not apply to the refugees referred to in paragraph 1 restrictions of movement other than those which were necessary, a provision which was unaffected by the Swedish amendment. The second provision of paragraph 2 concerned the extent of the restrictions, and the original text entitled the State to apply those restrictions until the refugee" status had been regularised, or until he secured admission into another country.

He pointed out that paragraph 2 related exclusively to illegal immigrants. The question then arose as to how the State should deal with such illegal immigrants. According to paragraph 1, the Contracting State was not to punish them if they could show good cause for their entry. It might then be asked whether the State could keep an illegal immigrant in custody. In any case, the situation in which the refugee found himself would be temporary, it would the situation in which the refugee found himself would be temporary, it would end when the State, after examining the appropriate files, recognized him as a bona fide refugee free from restrictions or, alternatively, as an undesirable.

Mr. PETREN (Sweden) announced that, in the light of the President's explanations, which had clarified the meaning or paragraph 2, he would withdraw his amendment. However, he was convinced in his own mind that the present text of the paragraph lacked clarity. The Style Committee should therefore go over it.

Mr. WARREN (United States of America) suggested that the difficulty mentioned by the Swedish representative was met by the provisions of article 21.

Mr. PETREN (Sweden) pointed out that there was a category of refugee intermediate between those lawfully resident and those unlawfully resident in the territory of a State. That category of refugee could be tolerated by a State in its territory. There was a definite contradiction between the wording of articles 21 and 26 of the draft Convention, and the discrepancy should be brought to the notice of the Style Committee.

Mr. PHILON (Greece) said that due weight should be given to the Swedish amendment. Although it had been withdrawn, it formed a valuable contribution to the study of the problem. It also allayed certain fears which were causing certain to some States, and should make it easier for them to accede to the Convention. The Style Committee should take note of the suggestion contained in the amendment.

The PRESIDENT said that, by inserting the words "other than those which are necessary" in paragraph 2, the Ad hoc Committee had intended to cover considerations of security, special circumstances, such as a great and sudden influx of refugees, or any other reasons which might necessitate restriction of their movement.

Mr. HOARE (United Kingdom) agreed with the Greek representative that a useful purpose had been served by the submission of the Swedish amendment, in that it had revealed the possibility of misinterpretation of paragraph 2. The Swedish representative had understood something different to what had been intended by the Ad hoc Committee by the use of the words "until his status in the country is regularized". Surely, for the Ad hoc Committee that phrase had meant the acceptance by a country of a refugee for permanent settlement, and not the mere issue of documents prior to a final decision as to the duration of his stay. The Swedish representative had also rightly asked whether the provisions of article 26 were not inconsistent with those of article 21. The former introduced a time-limit, according to which the movement of refugees should not be restricted beyond the period required for the regularization of their status, whereas article 21 conferred a general power to enforce restrictions on the movement of refugees.

Mr. PETREN (Sweden) endorsed the views of the United Kingdom representative. The difficulty lay in defining what was meant by the regularized status of a refugee.

Mr. WARREN (United States of America) suggested that the substitution of the words "is assimilated to that of a lawfully admitted refugee" for the words "in the country is regularized" would meet the Swedish representative's point.

The PRESIDENT pointed out that such a suggestion would probably cover the situation in the United States of America, where there were two categories of entrants, those legally admitted and those who had entered clandestinely. But it might not cover the situation in other countries where there were a number of intermediate stages; for example, certain countries allowed refugees to remain in their territory for a limited period.

Mr. WARREN (United States of America) said that the President was not altogether right. There were in the United States of America categories covering temporary visitors, or persons in transit, whose stay was subject to certain specified conditions.

The PRESIDENT put paragraph 2 of article 26 to the vote.

Paragraph 2 was adopted by 22 votes to none, with 2 abstentions, subject to textual amendments to be made by the Style Committee.

Article 26 as a whole and as amended was adopted by 20 votes to none, with 4 abstentions.

(ii) Article 27 - Expulsion of refugees lawfully admitted (A/CONF.2/44, A/CONF.2/57, A/CONF.2/60, A/CONF.2/63)

The PRESIDENT drew attention to the amendments to article 27 submitted by the Egyptian, Italian, United Kingdom and French delegations (A/CONF.2/44, A/CONF.2/57, A/CONF.2/60 and A/CONF.2/63 respectively).

Mr. CHANCE (Canada), referring to paragraph 1 of article 27, said that the Canadian Government found some difficulty with regard to the expression "public order", which was a term which had a more precise legal connotation in continental countries than in common-law countries. He was therefore anxious that its meaning should be very precisely defined. The Canadian laws on deportation were quite specific, but the decision to deport a person was in general within the discretion of the minister concerned, discretion which h, in his own experience, had always been exercised with understanding and compassion. There were, however, certain mandatory legal dispositions providing for deportation for certain specific offences, such as trafficking in drugs. It had been generally agreed in the Ad hoc Committee that specification of grounds for deportation must be left to the jurisdiction of the State concerned.

The PRESIDENT referred the Conference to the report of the second session of the Ad hoc Committee (E/1850), in paragraph 29 of which the general views expressed on the use of the term "public order" were recorded.

The definition of that term was a matter of considerable difficulty owing to the differences in the social system of the various countries. For example, during the period of prohibition in the United States of America even small-scale smuggling of alcohol might have been regarded as a violation of public order. No such view would be taken of similar activity in a country like Denmark, where it would simply amount to contravention of the customs regulations. He was doubtful whether a standard interpretation of the phrase could be devised.

Mr. CHANCE (Canada) said that a second difficulty also confronted the Canadian Government. The cost of public relief and medical assistance was borne by the provincial authorities, and it might be difficult for the Federal Government to enter into commitments on their behalf involving financial expenditure.

MOSTAFA Bey (Egypt), introducing his amendment (A/CONF.2/44) to article 27, explained that its object was to liberalized the procedure in respect of expulsion, and to provide refugees with the maximum guarantee against arbitrary expulsion.

Article 27 laid down the principle that a refugee lawfully in the territory of a Contracting State should not be expelled save on grounds of national security on public order, and in pursuance of a decision reached in accordance with due process of law.

The Egyptian delegation felt that the present text of paragraph 1 failed to provide refugees with adequate protection against abuse of the right of expulsion. The terms of that paragraph were, in fact, too general, and, moreover, were subjective in character. Precise terms must be used and well-defined criteria laid down. Paragraph 1 of the Egyptian amendment listed the grounds on which a refugee could be expelled. Paragraph 2 of the amendment specified that in every case the expulsion order would apply only to the refugee himself, and not to members of his family; to expel the latter as well would be an obvious injustice. Was concerned, that could only be taken in execution of a Court decision. The procedure proposed in the Egyptian amendment would accordingly provide the refugee with all necessary safeguards.

The EXECUTIVE SECRETARY stated that the term "public order" had been discussed on previous occasions and in other contexts, notably in connexion with the draft International Covenant on Human Rights. The Secretariat had submitted certain observations on the use of that phrase in the draft Covenant in a memorandum prepared for the Economic and Social Council (E/C.68). Extracts from paragraph 83 of that memorandum read:

"The Secretary-General considers that the use of this expression raises serious questions of substance and consequently feels obliged to drew the attention of the Council to the following legal considerations.

First, it should be observed that the English expression "public order" is not the equivalent - and is indeed substantially different from - the French expression "l'ordre publique" (or in Spanish, "orden público"). In civil law countries the concept of "l'ordre publique" is a fundamental legal notion used principally as a basis for negating or restricting private agreements, the exercise of police power, or the application of foreign law.

The common law counterpart of "l'ordre publique" is not "public order" but rather "public policy". It is this concept which is employed in common law countries to invalidate or limit private agreements of the application of law. In contrast to this concept of public policy, the English expression "public order" is not a recognized legal concept. In its ordinary English sense it would presumably mean merely the absence of public disorder. This notion is obviously far removed from the concept of "l'ordre publique" or "public policy".

Since the Covenant should undoubtedly contain equivalent concepts in English and French, the question arises as to whether the notion of "l'Ordre publique" or, in English "public policy" should be retained as an exception to the rights in Articles 13 - 16. In the Secretary-General's opinion, this is a most important question since the concept of "l'ordre publique/public policy" is in most jurisdictions a broad and flexible principle, often characterized by legal commentators as vague and indefinite ................... It is true that in regard to certain situations public policy or "l'ordre publique" has been given a technical and fairly well-defined meaning, but at the same time the concept is sufficiently wide and fluid to permit its application in a variety of new situations. Accordingly, it could hardly be doubted that by introducing it as an exception to fundamental human rights, it may well constitute a basis for far-reaching derogations from the rights granted."

Mr. PHILON (Greece) said that, to judge from the report of the Ad hoc Committee, the phrase "grounds of national security or public order" was intended to cover the application of certain legitimate measures by the administration. The explanation provided by the Executive Secretary did not clarify the situation. To solve the difficulty, it would seem sufficient to add the word "legitimate" after the words "save on" in paragraph 1 of the existing text of article 27, without otherwise amending that paragraph.

Mr. PETREN (Sweden) agreed with the Greek representative. The difficulty, however, lay chiefly in the expression "refugee lawfully in their territory". What criterion would in fact be applied to decide whether a refugee was indeed lawfully in a territory? Sweden distinguished between aliens to whom a right of establishment had been granted, and aliens possessing only a right of temporary residence. The question did not arise in respect of the former, but, in respect of the latter, the Swedish Government wished to be able to expel them if it so decided when the authorization granted to them expired. His Government certainly did not fail to examine every particular case, but it proposed to reserve its rights. Thus, if the term "refugee" in article 27 applied to the first category he had mentioned, his delegation had no objection to paragraph 1 of article 27, but if it applied without distinction to all refugees established in a territory, his country would have to enter reservations to article 27.

Msgr. COMTE (The Holy See) appreciated the motives which had inspired the Egyptian amendment. It seemed, however, that the original wording of article 27 covered every case. It was difficult for the Holy See to accept in particular sub-paragraph (c) of paragraph 1 of the Egyptian amendment which, if adopted, would have the result of making the lot of refugees more difficult. The Convention on Migration for Employment negotiated by the International Labour Organization would shortly be put into force; and article 8 of that Convention laid down that migrants for employment admitted into a country could not be returned to their territory of origin unless they so desired or were unable to follow their occupation by reason of illness. That provision seemed to be in opposition to sub-paragraph (c) of paragraph 1 of the Egyptian amendment. Conformity was necessary between the text of the Convention on Migration for Employment and that to the Convention relating to the Status of Refugees.

Mr. ROCHEFORT (France) thought that the statement of the representative of the Holy See called for little comment. He was personally convinced that the Egyptian representative had clearly not wished to place indigence on the same footing as criminality, and that it had merely escaped his notice that that would be the effect of sub-paragraph 1 (c) of his amendment. Poverty was not a vice, and indigence could not be considered a crime.

The French amendment (A/CONF.2/63) to article 27 was admittedly somewhat restrictive in character. French procedure in the matter of expulsion laid down in fact that when expulsion was contemplated in respect of an alien, he must be notified in advance. The person affected was given one month in which to prepare his defense and to appear before a commission made up of magistrates. There was one formal exception, however, to that procedure, namely, the case of aliens guilty of espionage. It was understandable that the case papers could not be communicated in such a case, and that the Minister concerned could decree expulsion without recourse to the procedure he (Mr. Rochefort) had indicated.

The PRESIDENT pointed out that articles 18 and 19 contained provisions relating to indigence.

Mr. FRITZER (Austria) stated that the term "public order" had a quite specific connotation in Austria, and would present no difficulties to the Austrian Federal Government.

Mr. SHAW (Australia) pointed out that, as the English and French texts of paragraph 1 of article 27 were not entirely consistent in respect of the term "public order", some amendment was clearly essential. Either the expression should be replaced by another, or the words "public policy" should be used in the English text. The latter course might be the better one.

MOSTAFA Bey (Egypt), in reply to the representative of the Holy See, recalled that in the matter of migrant workers a law recently promulgated by the Egyptian Government was applicable to all nationals, aliens and refugees. He was well aware that poverty was not a vice. Nevertheless, indigent persons were a charge on the State, which could not be regarded as a public relief agency. It was the right of the State to rid itself of non-productive elements in its alien population. That right, moreover, was sanctified by all treaties of establishment of foreign nationals. Nevertheless, to allay the fears expressed by the representatives of the Holy See and of France, the Egyptian delegation was prepared to withdraw sub-paragraph (c) of paragraph 1 of its amendment.

Mr. del DRAGO (Italy) introduced the Italian amendment (A/CONF.2/57). His delegation had no objection to paragraphs 1 and 3 of article 27, but it could not accept the second sentence of paragraph 2, and therefore proposed that it be deleted. It should, however, by added that in Italy refugees under order of expulsion could appeal against the order to the competent authority.

Baron von BOETZELAER (Netherlands) said that the term "ordre publique" was acceptable to the Netherlands government as its meaning was perfectly clear.

He hoped that the Conference would not adopt the Egyptian amendment (A/CONF.2/44) which introduced somewhat indefinite concepts such as "activities of a subversive nature", "the internal or external security of the State" and "public morals". He feared that the adoption of such an amendment would excessively restrict the freedom of refugees.

Mr. ROCHEFORT (France) said that the reference in the Egyptian amendment to activities prejudicial to public health might embarrass the French Government by creating difficulty for certain organizations, such as the Little Sisters of the Poor, which gave shelter to certain elements of the "hard core" or refugees. It was of no value to lay down a precise procedure if it only led to worse results than the application of a generous text.

Mr. CHANCE (Canada) stated that he would be prepared to accept the French and United Kingdom amendments to article 27 (A/CONF.2/63 and A/CONF.2/60) respectively. He wished also to take the opportunity of describing briefly the relevant appeals procedure in Canada. Persons who were suspected of having entered the country illegally could be summoned to present themselves before a board of inquiry of three members, set up on the instructions of the Minister concerned. The suspect could appear himself or be represented by counsel, and thus had the fullest opportunity of presenting his case. The findings of the board were then forwarded to the Federal Authorities in Ottawa, and if an order of deportation was found necessary it was issued under the authority of the Minister. No appeal could be made against his decision, for obvious reasons. He believed that the position was similar in the United Kingdom. The Canadian Government did not believe that the provisions of article 27, paragraph 2, would call for any alteration in that procedure. He was in favour of the French amendment, since it was obvious that it would not always be possible for refugees called upon to submit evidence about themselves to do so in person. There were a number of potential practical difficulties, which must be clearly recognized.

Mr. HOARE (United Kingdom) stated that the expression "public order" presented definite difficulties to common-law countries, where it did not possess the legal connotation it bore in continental jurisprudence. The difficulty had occurred in the past, and could be overcome if it was possible to devise an exact English equivalent. Unfortunately, the expression "public policy" was somewhat narrower in scope; like the expression ordre publique, it implied that certain laws or regulations might be contrary to public policy, but it did not cover, as did the latter expression, police measures or criminal legislation. On certain occasions in the past, the United Kingdom Government had accepted the words "public order" in international instruments, while making a reservation that they were deemed to include matters relating to crime and public morals. That interpretation had not so far been challenged. If any difficulty occurred as to the meaning of those words, it would presumably arise in connexion with some specific case and the court concerned would have the records of the proceedings leading up to the adoption of the Convention. It would therefore be in a position to ascertain the interpretation placed on those words.

Turning to the amendments submitted to article 27, he expressed his agreement with the objections raised by the representatives of France and the Holy See to the Egyptian amendment.

With regard to paragraph 2, he was faced with the same difficulty as that indicated by the Italian representative. The first sentence of paragraph 2 had been very carefully drafted in order to cover the different systems of expulsion, which might be broadly classified in two groups, judicial and administrative. In the United Kingdom, while it was possible for courts dealing with aliens charged with criminal activities to recommend their deportation, the power of deportation lay with the Home Secretary, and grounds for issuing a deportation order were prescribed by Law.

The second sentence of paragraph 2 appeared to suggest some kind of procedure for appeal. A person served with a deportation order in the United Kingdom had wide facilities for presenting his case to the Home Office either personally or through a solicitor. Moreover, it was a matter on which public opinion was very vigilant and which often gave rise to interventions by Members of Parliament or to questions in the House of Commons. There was, however, no appeal tribunal, nor did the United Kingdom Government wish to be obliged to institute one. He presumed that the wording of the second sentence of paragraph 2 was not to be interpreted as entailing such a stipulation.

The purpose of the United Kingdom amendment (A/CONF.2/60) was to make it clear that in submitting evidence about themselves in connexion with an expulsion order, refugees could do so before persons specially designated by the competent authority. There would be obvious practical difficulties in making it obligatory in the United Kingdom, for example, for the Home Secretary to hear such evidence in person.

MOSTAFA Bey (Egypt) noted with regret that his amendment did not seem to command general support, despite the fact that it would extend to refugees treatment ensuring them the fullest safeguards. He would therefore withdraw it.

It was decided that further consideration of Article 27 should be deferred until the next meeting.

The meeting rose at 6 p.m.