Ad Hoc Committee on Statelessness and Related Problems, Memorandum From the Secretariat of the International Refugee Organization

E/AC.32/L.16

The Director General of the International Refugee Organization has sent the following cable to the Secretary-General:

"SUBJECT PROVISIONAL DRAFT OF ARTICLE I OF DRAFT CONVENTION ON REFUGEES. MY REPRESENTATIVE WEISS SUGGESTS BY LETTER DATED 20 JANUARY I SEND ANY COMMENTS TO YOU.

"FIRST PARA DEEPLY GRATEFUL OPPORTUNITY SUBMISSION ON BASIS EXPERIENCE IRO RESPECTING BOTH APPLICATION.

"ANNEX 1 IRO CONSTITUTION AND PRACTICAL KNOWLEDGE ACTUAL HISTORIES INDIVIDUAL REFUGEES AND REFUGEE GROUPS. MY VIEW THIS ARTICLE FUNDAMENTAL TO SUCCESS CONVENTION. ESSENTIAL TO ENSURE SIMPLICITY NO AMBIGUITY AND NEITHER DOUBTS NOR DEPENDENCE ON INTERPRETATION. STRONGLY URGE CAREFUL CONSIDERATION BOTH SUBSTANCE AND DRAFTING WITH REFERENCE APPLICABILITY ACTUAL

"CASE BEFORE FINALISATION AND BELIEVE ANY NECESSARY DELAY WELL WORTHWHILE. AM WILLING SEND REPRESENTATIVE GIVE SUCH TECHNICAL ADVICE IF YOU REQUEST

"SECOND PARA GENERALLY WE FIND PROVISIONAL DRAFT FOLLOWS IRO CONSTITUTION WHICH WE BELIEVE NOT REPEAT NOT NECESSARILY SATISFACTORY FOR PURPOSES CONVENTION OR HIGH COMMISSION. DUE TO COMPRESSION PROVISIONAL DRAFT WILL BE LESS SATISFACTORY IN PRACTICE NEVERTHELESS SOME PARTS CAN BE ELIMINATED AS UNDESIRABLE OR UNNECESSARY IN EXISTING CIRCUMSTANCES. FURTHER IT WILL NEITHER COVER ALL REFUGEES WITHIN IRO MANDATE NOR OTHER GROUPS WHOSE COVERAGE UNDERSTOOD TO BE DESIRED THIRD PARA FOR EXAMPLE PRIMO PARA C WOULD EXCLUDE

"ON RETURN TO COUNTRY OF FORMER HABITUAL RESIDENCE PREWAR REFUGEES DEPORTED THENCE TO GERMANY SECUNDO RESTRICTIVE NATURE INTRODUCTION PARA A2 WILL EXCLUDE PERSONS HAVING IRO VALID OBJECTIONS OF POLITICAL NATURE AND FOR COMPELLING FAMILY REASONS THUS MILITATING AGAINST PERSONS OF UNDOUBTED POLITICAL SINCERITY AND AGAINST MANY VICTIMS OF NAZI ACTION.

"TERTIO SAME RESTRICTIVE INTRODUCTION MEANS THAT VOLKSDEUTSCHE OUTSIDE GERMANY WILL NOT BE INCLUDED QUATRO BELIEVE NO PERSONS EXIST COVERED BY PARA A2A WHO ARE NOT COVERED EITHER BY PARA Ai OR PARA A2D QUINTO DOUBT CONTINUING USEFULNESS OF INTERNATIONAL PROTECTION FOR GROUP COVERED BY PARA A2C AS PERSONS ARE EITHER

"GERMAN CITIZENS OR FOREIGNERS FOR WHOM INTERNATIONAL PROTECTION NOT IN POINT OR STATELESS PERSONS COVERED BY OTHER CLAUSES FURTHERMORE USEFULNESS TO INDIVIDUALS ENTAILS POSSIBILITY ASSISTED EMIGRATION FROM GERMANY SEXTO ALL PERSONS COVERED BY PARA A3A ARE OTHERWISE COVERED SEPTIMO IN VIEW LEGAL DIFFICULTIES ESPECIALLY CONCERNING GUARDIANSHIP UNDER EUROPEAN LAW AND

"ESPECIALLY LAWS COUNTRIES ORIGIN DOUBT CONTINUING USEFULNESS INCLUDING UNACCOMPANIED CHILDREN AS SUCH FOURTH PARA NUMEROUS SMALLER POINTS SUCH AS USE OF PHRASE FORMER HABITUAL RESIDENCE HAVE CAUSED US GREAT DIFFICULTY IN APPLYING IRO CONSTITUTION PD THEREFORE ON BASIS PROVISIONAL DRAFT UNDER REFERENCE RECOMMEND AT LEAST PRIMO INSERTION INTRODUCTION PARA.

"A2 OF PHRASE COVERING INABILITY RETURN COUNTRY OF ORIGIN AND OTHER IRO VALID OBJECTIONS SECUNDO OMISSION PARAS A2A A2C A3A A3D TERTIO PHRASE FORMER HABITUAL RESIDENCE TO BE QUALIFIED SO AS TO REFER ONLY TO PERSONS WITHOUT CITIZENSHIP FIFTH PARA FURTHER COMMENTS AIRMAILED."

The observer of the IRO begs to submit the following observations in amplification of the cable received from the Director General of the IRO.

1. The contents of the cable are based on definitions drafted by the working group on 20 January which have since been superseded by those in the draft of 23 January (E/AC.32/L.6). The following observations apply to the latter draft.

2. The inclusion of the requirement contained in paragraph A(2) (i) would, with regard to the persons defined in A(2) (a) exclude persons who had been deported to Germany or who had returned to Germany temporarily.

3. Valid objections: It should be noted that the conception of valid objections contained in annex I, section C(1) (a) of the IRO Constitution refer to objections to repatriation while the valid reasons contained in the present draft refer to unwillingness to avail oneself of the protection of a Government. Moreover, the requirement of valid objections in the IRO Constitution had been dispensed with in regard to the groups referred to in paragraph A(2) (a) of the draft, those who are in Germany and Austria, and with regard to the group referred to in A (2) (b). In addition, a special category of valid objections, i.e. compelling family reasons arising out of previous persecution or compelling reasons of infirmity or illness is, according to the IRO Constitution, limited to the persons mentioned in paragraph A(1) and A(2) (a) of the draft.

It might, therefore, be advisable to exempt the groups which have hitherto been exempted from this requirement from it in the present draft. Moreover, it might be necessary to re-define the meaning of the term "valid reasons". The Director General suggests replacement by, or addition of a phrase covering inability to return to the country of origin for the definition of "valid objections" contained in the IRO Constitution.

4. Habitual residence: As the Director General of the IRO remarks, the interpretation of this clause has given rise to great difficulties. The new draft introduces the notion of "outside the country of former nationality". It is submitted that the inclusion of all three qualifications (nationality, former nationality, former habitual residence) may give rise to misunderstandings. The term "former nationality" does not necessarily mean the nationality of the country from which the refugee has been displaced. The notion "former habitual residence" has been interpreted by the IRO to apply only to stateless persons. It can also give rise to ambiguity in the case of so-called refugees sur place, i.e. persons who have become bona fide refugees owing to events in their countries of origin but who have never been displaced.

It is, therefore, suggested to reconsider the wording of paragraph a(2) (i). In case the words "former habitual residence" should be retained, they might at least be qualified by the terms "in the case of stateless persons".

5. The Director General is of the opinion that the group mentioned in paragraph 3(a) of the draft is covered by the rest of the definitions and might be usefully omitted. The group mentioned in paragraph 3(b) includes stateless persons, German and Austrian nationals and other nationals who are protected by their Governments. Moreover, the assistance to be given to this group consists mainly in assistance in resettlement, a consideration which does not apply to definitions for the purpose of the present convention nor to the mandate of the High Commissioner.

The inclusion of the group mentioned in paragraph 3(c) in the IRO Constitution purported mainly to give priority assistance to this group, i.e. physical assistance with regard to care and maintenance, repatriation and resettlement.

The Director General doubts the continued usefulness of including this group in the Convention and in the mandate of the High Commissioner who will be concerned with international protection only.

6. The observer of the IRO requests the Committee to consider the view of the Director General of the IRO, which is based on the experience of that organization regarding the application of the IRO Constitution and on the practical knowledge of the actual histories of individual refugees and refugee groups that the article on definitions is fundamental for the success of the Convention, that it is therefore essential to ensure simplicity of the definitions, that they should contain no ambiguity, no doubts nor dependence upon interpretation, that he urges strongly careful consideration of these definitions both as to substance and style, and that any necessary delay would be well worthwhile. He further request the Committee to consider the offer of the Director-General of the IRO to send a representative who, by his special knowledge of eligibility problems, could give technical advice on this question.