Ad Hoc Committee on Refugees and Stateless Persons, Second Session: Observations Concerning Article 5 of the Draft Convention Relating to the Status of Refugees (E/1618)

E/AC.32/NGO/1

Statement submitted by the World Jewish Congress, a non-governmental organization in category B consultative status

The Secretary-General has received the following statement which is circulated in accordance with paragraph 32 of Council Resolution 288 B (X):

The representative of the World Jewish Congress was permitted by the Committee to make a statement referring to Article 5 of the Draft Convention. In the meantime, two alternative amendments of the United Kingdom (E/AC.32/L.41) in respect of Article 5 have been proposed.

The proposal alternative A suggests an additional article to the Draft Convention, whereby "a Contracting State may at a time of national crisis derogate from any particular provision of the convention to such extent only as is necessary in the interest of national security,"; alternative B proposes to add the following sentence to the present text of 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".

In view of the great importance of Article 5 for the future plight of refugees, the World Jewish Congress submits the following observation on the proposal of the United Kingdom:

It is admitted that in a time of national crisis and in particular in a period of war, any State may be forced, for reasons of security, to screen again refugees admitted to its territory and to apply to those who after investigation, remain under justified suspicion to be a danger to security, provisionally the measures relating to enemy nationals.

We believe that the proposal B of the United Kingdom, if slightly amended, would serve the purpose desired. Alternative A goes rather too far in that it would allow the derogation from any provision of the convention and thereby defeat its purpose by depriving refugees, at the discretion of any Contracting Government, of protection at a time where such protection is most needed. Alternative A apparently follows the model of Article 2 para. 1 and para. 3 of the Draft First Covenant on Human Rights; it does not include, however, a provision similar to that of para. 2 of this article 2, on the basis of which "no derogation from Articles 3, 4, 6, 7, 11, 12 and 13" and thereby from nearly all protective clauses of the Covenant is permitted, because the rights covered are inalienable.

In fact, if the purpose of the Convention relating to Refuges shall not be defeated, and on the other hand, security should be an overriding factor, only Article 5 and Article 27 could be derogated for reasons of security. As to Article 27, the present draft already permits the expulsion of a refugee, lawfully admitted, on grounds of national security. A general article as proposed in alternative A would, in fact, only relate to Article 5.

We therefore suggest, that proposal B of the United Kingdom should be the basis for consideration of the Committee. We suggest the following changes of the text of this proposal:

a) The words "at a time of national crisis" introduce a new terminology. It may be preferred that, following the terminology used in Article 2 para. 1 of the Draft First Covenant on Human Rights, the words "at a time of national crisis" should be replaced by the words: "in a state of emergency officially proclaimed by the authorities or in the case of public disaster."

b) We further suggest that after the word "determined" the words "within reasonable time" should be inserted.

c) We further suggest, that the safeguards maintained in Article 27 para. 2 in favour of the refugee concerned, should be repeated in Article 5.

Article 5 would therefore read: "With regard to exceptional measures, which may be taken against the person, property or interests of a national 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; provided however, that in the case of a state of emergency officially proclaimed by the authorities or in the case of public disaster, a Contracting State may apply provisionally any such measures to a refugee on account of his nationality until it is determined within a reasonable time that the measure is no longer necessary in the interests of the national security. The refugee concerned shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear himself and to be represented before the competent authority."

d) We further submit that para. 2 of the alternative A of the proposal of the United Kingdom should be adopted and form a second para. to Article 5 which would read: "If a Contracting State applies measures which may be taken against the person, property or interests of nationals of a foreign State, to refugees on the basis of the foregoing paragraph, they shall immediately inform the other Contracting States through the Secretary-General of the United Nations of any such measures and of the date of the termination thereof."