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

A/CONF.2/SR.15

Present:

1. FUTURE PROGRAMME OF WORK

The PRESIDENT proposed that when the Conference had completed its consideration of articles 27-29 inclusive it should revert to article 23 and the Schedule relating thereto. By that time the report of the body dealing with the question of non-discrimination would be ready, so that the Conference would be able to resume its consideration of article 3. That would be followed by a further examination of the articles left in abeyance, namely, articles 1, 2, 3b, 4, 5, 7 and 14, after which the Conference would go on to deal with chapters VI and VII before taking up the preamble.

It was so agreed.

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 fourteenth meeting)

Article 27 - Expulsion of refugees lawfully admitted (A/CONF.2/57, A/CONF.2/60, A/CONF.2/63, A/CONF.2/68) (continued)

Mr. BRAUN (Caritas Internationalis), speaking at the invitation of the PRESIDENT, said that since articles 27 and 28 (prohibition of expulsion to territories where the life or freedom of a refugee is threatened) of the draft Convention were of cardinal importance, he wished to draw the attention of the Conference to a number of points.

If the present draft Convention ultimately gave a precise definition of the right of asylum, the limits of that right might also be indicated, thereby making it clear how a refugee could forfeit enjoyment of it.

A refugee should only be liable to expulsion of he made himself unworthy of asylum, by becoming truly - and he would stress that word - dangerous either to the State which had received him, or to the community of which he formed part, whether that community was composed of refugees or not. It must be borne in mind that a refugee could not return to his country of origin, that the territory in which he found asylum implicitly undertook not to deliver him up, and, finally, that a refugee might sometimes be treated more severely that his case deserved, owing to his ignorance of the language and customs of the country of refuge, and owing also to the distrust with which he might be regarded. If an expulsion order was made against him, he would be unable to find any country that was prepared to grant him the necessary entry visa. He would thus have to choose between staying in the country from which he was being expelled and going underground, and returning to his own country and facing the certain death that awaited him there.

During the second would war, a party of Jewish refugees sailing in a "ghost ship" had scuttled it after it had been turned away from every port at which it had sought refuge. The document entitled "A Study of Statelessness" (E/1112) quoted, on page 21, the results of an inquiry undertaken by Professor Fatou. Reference was there made to the case of an Italian who, as a result of having to serve a sentence of 24 hours imprisonment, had been served with notice of expulsion from the country which had given him asylum, but had remained there clandestinely. He had subsequently been sentenced twenty-nine times to periods of imprisonment amounting in all to nine years and eight months. Presumably he could have returned to Italy had he not been a refugee. But, as a refugee, it had been impossible for him to do so.

Undoubtedly there were refugees who made themselves unworthy of asylum; those who became dangerous, truly dangerous, to the security of the State and of its citizens. Caritas Internationalis believed that such refugees might legitimately be derived of the right of asylum.

Nevertheless, the proviso contained in article 27 relating to "national security" and especially that relating to "public order", seemed to his organization to be far too vague, and consequently harmful to the interests of refugees. Those provisos should be very clearly defined, Moreover, the Commission on Human Rights had on several occasions noted that the term "public order" was vague and general, and - as indeed history testified - capable of serving as justification for glaring abuse.¹

In any case, the expulsion of a refugee condemned to a term of three months imprisonment on account of his indigence, or for any similar inadequate reason, seemed to be extremely dangerous, and contrary to the right of asylum, Expulsion on the grounds of indigence would also be contrary to article 18 of the present draft Convention, and to point XII of the "General Principles concerning the Protection of Migrants" drawn up by the Second Conference of Non-Governmental Organizations Interested in Migration. Reference might also be made to article 8, and to article 11 of annex 2, of the International Labour Convention entitled "Migration for Employment (Revised)", adopted in 1949 and due to come into force in 1952, having already been ratified by the United Kingdom and New Zealand. The same principle was reiterated in Chapter VI, and particularly in article 18, of the International Labour Conference Recommendation concerning Migrants for Employment (1949), as well as in article 25 of the Standard Agreement on Migrant Workers.

It would seem that if a refugee really and truly threatened the security of a country and of his fellow men there, his offence should, in principle, be punished either by the threat of expulsion or by an expulsion order pure and simple. But if the execution of the order meant that a refugee must be delivered up to his country of origin - which would be contrary to the provisions of article 28 of the draft Convention - the sentence might be commuted to imprisonment, transportation or internment, either for life or until such time as an opportunity presented itself for the refugee to leave the country of asylum without danger to his life.

That would oblige refugees to live in accordance with the laws of the country which had received them, and would be in keeping with the obligations devolving from the right of asylum. Excessive severity, however, would be tantamount to flouting a right which, it was sometimes forgotten, had at all times been considered sacred.

Such flouting would mean a lowering of civilized standards of behaviour.

It would seem desirable that refugees, whom it was so easy to slander, should be able, in cases of the kind under discussion, to enlist the assistance of the High Commissioner, not out of any distrust towards the government of the receiving county which had been obliged to pronounce sentence of expulsion, but in order that the final decision might, in the eyes of public opinion, be backed by a guarantee. Governments themselves, as well as all refugees, would derive benefit from the High Commissioner's intervention. In fact, on the occasion of a meeting held under the name of "Journées d'Etudes de Sainte Odile", at which a number of specialists on refugee problems from various countries had conferred, a resolution had been adopted in which it was stated that:

"[The meeting] considers it essential that clauses should be included in the Convention providing that the High Commissioner or another authority called upon to succeed him, should be empowered to intervene in the last resort in circumstances decisive to the life of a refugee, by establishing, for existence or non-existence of a threat to his life or freedom in a country to which he might be returned as well as the validity of the reasons for which a refugee refuses repatriation or recourse to the protection of his country of origin."

The PRESIDENT observed that the Italian, United Kingdom, French and Belgian amendments to article 27 (A/CONF.2/57, A/CONF.2/60, A/CONF.2/63 and A/CONF.2/68 respectively) all dealt with the question of providing guarantees to refugees against premature decisions, or against decisions which were not in accordance with national rules and regulations. He was under the impression that the principle enunciated in paragraph 1 met with the general approval of the Conference.

MOSTAFA Bey (Egypt) recalled the terms of the Egyptian amendment (A/CONF.2/44), which had been withdrawn at the preceding meeting as a result of the earlier discussion on article 27, and wondered whether there was any ground for retaining paragraph 2 of that article, which laid down that the expulsion of a refugee should only be in pursuance of a decision reached in accordance with due process of law. That signified expulsion in accordance with a judicial or administrative decision, and there was no question of special guarantees. Either guarantees in favour of refugees should be recognized, or the clause in question should be deleted.

Mr. CHANCE (Canada) recalled the anxiety he had earlier expressed concerning Canada's position in relation to paragraphs 1 and 2.

He had heard nothing in the course of the discussion which would suggest that Canadian law and Canadian practice in the matter of expulsion conflicted with paragraph 2, and in the absence of adverse comment he felt reassured on that score. In the case of paragraph 1, he believed that the phrase "public order" could be construed as covering any action or deportation procedure which the Canadian Government would be likely to take vis-à-vis refugees as defined in the Convention.

The majority of statutory clauses relating to deportation, both discretionary and mandatory, were covered by that phrase. In all frankness, however, he must state that Canadian law - and probably the laws of other countries too - provided in such discretionary clauses for deportation on the grounds that the person concerned had become a public charge or was an inmate of a mental asylum or of a public charitable institution. From his personal knowledge of Canada and Canadians, he doubted whether any of those discretionary powers would be exercised against a refugee unless the circumstances he had mentioned were aggravated by others. He would assure the Conference, however, that the exercise of those powers would be tempered with compassion, and would never be at variance with the spirit of the Convention or with the terms of article 28, which related to the prohibition of expulsion to territories where the life or freedom of a refugee was threatened.

It would be appreciated that considerable technical and political problems attached to the amendment of the Canadian laws in question, and in prevailing world conditions Ministers might be forgiven for hesitating to amend the immigration laws. If the Conference could not concede that Canadian law did not infringe the principle laid down in paragraph 1 of article 27, his delegation might be obliged at some stage to enter an appropriate reservation. In closing, he agreed that it was right to seek as close and precise definitions as possible, but submitted that in doing so it was necessary, in the interests of the success of the work in hand, not to overlook the value of mutual trust and goodwill.

Mr. ROCHEFORT (France) thanked the Canadian representative for his frankness. As to the French delegation, it felt obliged to enter a formal reservation to any interpretation of the term "public order" which would permit the expulsion of a refugee on grounds of indigence. All the States represented at the Conference had at their disposal various procedures for expulsion, and in the circumstances the question was less one of the form taken by such procedures than of the reasons justifying their application. The French delegation could not admit that the indigence of a refugee could constitute one of those reasons, and, if the idea of indigence was to be interpreted as a factor detrimental to public order, would no longer consider it worth while to take part in the work of the Conference. In France, indeed, refugees and persons who were a charge on the State were frequently synonymous terms. Tens of thousands of people were in receipt of assistance of that kind, and, if the position were more widely known, the French Government would doubtless be subjected to less criticism, for, while it was impossible for it to grant naturalization to all the refugees in its territory, it at least deserved credit for enabling them to live. Moreover, the French delegation considered it useless for representatives to go no further than describing the conditions prevailing in their respective countries. If there was neither the desire nor the courage on the part of governments to embark upon the legislative changes required by the application of the Convention, it seemed pointless to draft it.

Mr. CHANCE (Canada) heartily endorsed the French view that expulsion on the grounds of indigency alone would be entirely out of keeping with the ideals and hopes entertained by the Conference. He had merely pointed out how difficult it would be to amend the relevant Canadian legislation, and could only repeat that he could conceive of no circumstances in which the Canadian authorities would expel a refugee on grounds of indigency alone.

The PRESIDENT drew attention to resolution 309 (XI) B, adopted by the Economic and Social Council on 13 July, 1950, in which the Council recommended to Member Governments that, pending consideration of the possibility of negotiating an international convention or model agreement, they should consider making available to indigent aliens the same measures of social assistance as those accorded to their own nationals, and refrain from removing them from their territories for the sole reason of indigency.

He also quoted the first two paragraphs of the resolution adopted by the Social Commission on 5 April, 1951, (E/CN.5/L.151) and recommending to the Economic and Social Council the adoption of the following text:

"The ECONOMIC AND SOCIAL COUNCIL draws the attention of all Governments to the report on Assistance to Indigent Aliens (E/CN.5/235) prepared by the Secretary-General at its request;

REAFFIRMS its recommendation that Governments do not expel, deport or otherwise remove from their territories aliens for the sole reason of their indigency or of becoming public charges.

Mr. HERMENT (Belgium) also thanked the Canadian representative for his frankness, but could not help expressing his full support for the views of the French representative. The Belgian delegation could not accept an interpretation of article 27 which would authorize the expulsion of refugees on the sole grounds of indigence. Such an interpretation would conflict not only with the status that it was intended to grant to refugees, but also with the provisions of article 18 of the draft Convention which provided that refugees should receive the same social assistance as aliens.

Mr. HOARE (United Kingdom) said that the United Kingdom had laws, passed in former days and in different circumstances, which empowered the Home Secretary to deport aliens if they became a public charge within a certain period after their arrival in the country. Little heed, however, was paid to such legislation nowadays.

The United Kingdom was fully aware of the resolutions quoted by the President, and implemented them. The United Kingdom delegation agreed with the observations of the French and Belgian representatives in the matter. The discussion had been useful in making it clear that the words "public order" could not be construed as including mere indigency.

Mr. CHANCE (Canada) felt that the United Kingdom representative had precisely summed up the situation, and that he could now report to the Canadian Government on the proper views of the Conference on the question of expulsion for reasons of indigency alone.

Mr. SHAW (Australia) thought that most of the points made in the course of the debate were covered by the discussion on public order which had taken place at the preceding meeting. Australian law prescribed certain circumstances in which a Minister could order the expulsion of an alien, for instance, when the alien became an inmate of a charitable institution or a mental asylum. Such grounds were not regarded as grounds of indigency, and the provisions in question were not mandatory. The Australian delegation had regarded the Australian position as covered by the term "public order", on the assumption that the definition of that term given by the United Kingdom representative at preceding meeting had been accepted.

As to the question of expulsion in accordance with due process of law, he observed that Australian administrative practice closely resembled that of the United Kingdom. Assuming, therefore, a process as described by the United Kingdom representative at the preceding meeting, the Australian delegation considered that the position of its government was duly covered by the term "process of law".

Mr. ROCHEFORT (France) said that, in the view of the French Government, the fact that a refugee was penniless should most certainly not constitute one of the reasons which, taken together with other considerations of a different kind, would justify the expulsion of a refugee; on the contrary, the French Government felt it was a fundamental reason for showing greater leniency.

The Australian representative's comments were extremely interesting, for they implied that there would be international protection for refugees not only in the countries of first reception, but also in immigration countries overseas where, if necessary, refugees could be shielded from unduly restrictive national legislation.

The PRESIDENT remarked that some countries were less formal in their legislative processes than others, and submitted that those countries that felt obliged to introduce appropriate domestic legislation as soon as they assumed international obligations should not regard as less bona fide signatories of the Convention those others which would apply its provisions case by case, while still maintaining on the statute book laws which might to some extent conflict with such international obligations.

Mr. ROCHEFORT (France) apologized if he had expressed himself too forcefully; but he nevertheless wished to emphasize that the French delegation had no intention of concluding a one-sided bargain which, for the French Government, would mean the assumption of multilateral obligations with respect to countries the legislation of which would not grant refugees rights equivalent to those which the French government would undertake to guarantee them on signing the Convention. It was by no means a theoretical consideration, since France very frequently had to take in refugees who had been expelled from other countries simply because they were penniless, or possibly, stateless.

Mr. CHANCE (Canada) regretted that he had caused so much trouble. He hoped, however, that his position was now clearly understood and that in the outcome the Canadian Government would nevertheless be able to adhere to the Convention without entering any serious reservation on article 27.

The PRESIDENT believed that the Conference was now in a position to take a vote on paragraph 1.

Paragraph 1 of article 27 was adopted unanimously.

The PRESIDENT recalled that amendments had been submitted to paragraph 2 by the delegations of Belgium (A/CONF.2/68), France (A/CONF.2/63), Italy (A/CONF.2/57) and the United Kingdom (A/CONF.2/60).

Mr. HERMENT (Belgium) understood the motives that had prompted the French and Italian delegations to submit their amendments to paragraph 2 of article 27. There were cases in which the expulsion of a refugee could not be covered by that paragraph. He nevertheless felt that the terms of the French amendment and, to an even greater extent, the Italian, proposal that paragraph 2 should be deleted, went rather further than their authors had intended. He therefore wondered whether a reservation concerning national security would not meet the points that the French and Italian delegations had in mind; that was precisely what the Belgian amendment sought to do.

Mr. ROCHEFORT (France) accepted the Belgian amendment to paragraph 2, and withdrew his own.

Mr. THEODOLI (Italy) said that in Italy the law authorizing the Minister to execute an expulsion order made no provision for appeals. In order, therefore, to give refugees an opportunity either of lodging an appeal or of being represented before the competent authorities in accordance with the laws of the various countries, his delegation would accept the Belgian amendment, provided that the word "and" in the second line was replaced by the word "or". If provision was thus made for a choice between the two procedures, the Italian delegation would withdraw its amendment.

Mr. HERMENT (Belgium) accepted the Italian suggestion.

Mr. ROCHEFORT (France) observed that the suggestion made by the Italian representative would restrict the scope of the Belgian amendment. If a refugee appealed, it did not necessarily follow that he would be heard and legally represented. The notion of an appeal and that of representation were complementary. Moreover, if the refugee had the right to be represented, that would imply that he had already appealed. The French delegation wondered whether, in the light of those circumstances, the Italian representative could agree not to press his suggestion.

Mr. HOARE (United Kingdom) appreciated the pertinence of the Italian representative's remarks. The position of the United Kingdom was similar to that of Italy, since there was no specially constituted appeals tribunal. But the reference to the procedure of appeal, at least in the English version of the Belgian amendment, was not so specific as to make the text unacceptable to the United Kingdom Government. What mattered was that a refugee should have full opportunity of presenting his case to the proper authority. He feared that the use of the formula "either ... or" would introduce a dichotomy into the procedure, and hence weaken the text.

Mr. TEHODOLI (Italy) accepted the United Kingdom representative's explanation. He hoped, however, that it would be possible to find a French wording which would faithfully translate the interpretation he (the United Kingdom representative) had given.

Mr. ROCHEFORT (France) suggested that, in order to meet the points raised by the Italian representative, the end of the Belgian amendment might be re-worded to read as follows:

" .... to submit evidence to clear himself and to lodge an appeal (presenter un recours) and be represented before a competent authority."

Mr. STURM (Luxembourg) could support the French proposal, provided the words "for this purpose" were added after the words "and be represented".

Mr. THEODOLI (Italy) thanked the French representative for having found a wording which gave full satisfaction to the Italian delegation; he had no objection to the addition suggested by the representative of Luxembourg.

Mr. HOARE (United Kingdom) stated that the new text was acceptable to his delegation; but he was not sure about the correct rendering in English of the term: "presenter un recours". His impression was that it was in point of fact equivalent to the English word "appeal".

The French representative had given the reasons which had prompted his amendment, and the Belgian representative had tried to reconcile the several versions so as to achieve the widest possible application of paragraph 2. He (Mr. Hoare) would suggest that the Conference should go even further, and amend the Belgian text to read: "Except where national security does not permit .......". That formula would certainly be helpful to the refugee, and would surely cover the point which the French representative had had in mind with regard to cases where national security must be the overriding factor.

The PRESIDENT, speaking as representative of Denmark, was not wholly satisfied with the text of the Belgian amendment as further modified. How, for instance, would an appeal be possible if a decision had been taken by the King in Council? He assumed that the meaning of the text was that, in the event of a sentence of expulsion pronounced by the highest authority, the refugee would be given the chance of having his case re-examined. In countries where such a sentence would have been passed by local authority, the appeal would be addressed to a court of higher instance.

It might perhaps be advisable to set up a small group to endeavour to reconcile the different procedures applied by countries governed by the code Civil, by common law or by other juridical systems. All members had the same aim in view, and there was no difference of opinion on the substance, but such a group might succeed in drafting a text which took into account the different legal procedures.

Mr. CHANCE (Canada) thought that the conference seemed practically to have reached agreement on the text, and did not consider it necessary to set up a working group.

Mr. HOARE (United Kingdom) repeated that the French text was perfectly acceptable to the United Kingdom delegation. Indeed, in the present case, the French term defined the English procedure better than did the English word "appeal".

Mr. ZUTTER (Switzerland) thought that delegations were very near to agreement. He did not think it necessary to set up a working group.

Baron van BOETZELAER (Netherlands) proposed that the word "imperative" be used to qualify the reference to national security. The text would therefore read in French: " .... sauf si des raisons impérieuses de securité; nationale ...."

The Netherlands proposal was accepted.

The PRESIDENT said that he would put the Belgian amendment, as further amended, to the vote in the French version, the Style Committee being entrusted with drafting an equivalent English text.

The United Kingdom amendment to paragraph 2 might either be added to the Belgian amendment, if the latter were adopted, or, alternatively, to the original text. He would, for the sake of logic and with the consent of the Conference, reverse the usual procedure and put the Belgian amendment to the vote before the United Kingdom amendment.

The Belgian amendment to paragraph 2 (A/CONF.2/68), as further amended, was adopted by 25 votes to none.

Replying to MOSTAFA Bey (Egypt), Mr. HOARE (United Kingdom) explained that his amendment to paragraph 2 related to procedures which were in the nature of an appeal. In cases where there was no formal tribunal, an appeal was addressed to the competent Minister. A Contracting State should not be obliged to allow a refugee to appear in person before a Minister. The latter should be able to delegate an official to hear the case. That was the point of the United Kingdom amendment.

He also added that, although in general the individual or individuals designated by the Minister would be officials, it might be that the Minister would appoint a qualified and impartial person who was not an official. It was in order to cover that possibility that the words "a person or persons specially designated" had been used.

The United Kingdom amendment to paragraph 2 (A/CONF.2/60) was adopted by 24 votes to none.

Mr. van HEUVEN GOEDHART (United Nations High Commissioner for Refugees) assumed that it was understood that a refugee would not be expelled while his case sub judice.

Mr. HOARE (United Kingdom), Mr. HERMENT (Belgium) Baron van BOETZELAER (Netherlands) and Mr. SHAW (Australia) stated that such was the practice in their countries, and such the interpretation that they placed on paragraph 2.

The PRESIDENT asked whether the Conference wished to make a specific reference to that point in article 27 in order to make the interpretation perfectly clear to countries which had not participated in the discussions.

Mr. ROCHEFORT (France) considered that States which were not taking part in the work of the Conference would no doubt continue to act in the matter in the same way as they were acting at present. The work of the Conference hardly appeared, in fact, to interest them, and it was doubtful whether they would endeavour to apply the Convention. He felt, however, that confidence could be reposed in the States who were represented at the conference.

Paragraph 2 was adopted, as amended, by 24 votes to none.

The PRESIDENT said that, in the absence of any comment, he would put paragraph 3 to the vote.

Paragraph 3 was adopted by 23 votes to none, with 1 abstention.

Article 27 as a whole and as amended was adopted by 23 votes to none, with 1 abstention.

The meeting rose at 12.55 p.m.

1 See document E/CN.4/528, pages 71-76