Colloquium on the development in the law of refugees | 21-28 April 1965 | Background paper submitted by UNHCR

MHCR/23/65; 67-1809

This Colloquium is organised by the Carnegie Endowment for International Peace
New York and Geneva
with the kind co-operation of the Swiss Government

List of accompanying reference documents

1. A STUDY OF STATELESSNESS
Prepared by the Secretary-General in pursuance of Economic and Social Council Resolution 116 D (VI) of 1 and 2 March 1948. E/1112, 1 February 1949 E/1112/Add.1, 19 May 1949

2. CONVENTION RELATING TO THE STATUS OF REFUGEES HCR/INF/29 Signatures, accessions and ratifications, etc. HCR/DC.3/Rec. 12

3. STATUTE OF THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES HCR/INF/1

4. UNITED NATIONS RESOLUTIONS CONCERNING THE OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES HCR/INF/48

DRAFT DECLARATION ON THE RIGHT OF ASYLUM Seventeenth Session of the United Nations General Assembly Ge.63/1454

FINAL ACT OF THE UNITED NATIONS CONFERENCE ON THE STATUS OF STATELESS PERSONS, 1954 - CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS MHCR/89/64 Ge.64-4769

UNITED NATIONS CONVENTION ON THE REDUCTION OF STATELESSNESS MHCR/312/61 GE.61-12221

SUMMARY OF STATISTICAL DATA AS OF 1 JANUARY 1964 GE.64-7566

I. GENERAL REMARKS

(A) The refugee problem as the subject-matter of international legal instruments

1. Already in antiquity the world was beset by the problem of persons fleeing from their homes in fear of persecution. In more recent times, it has come to be accepted that the refugee problem is one calling not only for humanitarian measures, but also for measures in the legal sphere and particularly in the international legal sphere. As from the end of the first World War international legal instruments were adopted in order to regulate various matters connected with new refugee problems as and when they arose. At the same tire international agencies were established for the legal protection of refugees. The basic international instruments relating to refugees at the present time are the Convention relating to the Status of Refugees of 28 July 1951 and the Statute of the Office of the United Nations High Commissioner for Refugees annexed to General Assembly Resolution 428 (V) of 14 December 1950. The international legal instruments relating to refugees adopted between the two World Wars will be described in greater detail below.¹ To the extent to which they form part of a general development in the field of refugee law, however, they call for the following comments: Ratione materiae these instruments were originally limited to specific matters, such as the issue to refugees of certificates of identity in lieu of passports (later known as "Nansen passports") to enable them to travel abroad. In the course of time the material scope of these instruments gradually became wider. The most comprehensive instrument relating to the legal status of refugees is now the 1951 Convention which lays down minimum standards for the treatment of refugees as regards a variety of matters. Ratione personae the pre-war instruments were confined to a specific category or categories of refugees. The first instrument related to Russian refugees and later instruments were concluded for the benefit of Armenian, Turkish, Assyro-Chaldean and assimilated refugees and refugees from Germany and Austria. The 1951 Convention also marks a development as compared with the pre-war instruments in that it contains the elements of a general definition of the term "refugee". Thus in addition to persons who have been considered as refugees under the pre-war instruments, the term "refugee", for the purposes of the Convention, applies to any person who is outside the country of his nationality or, if he has no nationality, the country of his former habitual residence, because of well-founded fear of persecution.² The definition in the Convention, however, contains a limiting factor in that it only applies to persons who fear persecution as a result of "events occurring before 1 January 1951". Moreover, the Contracting Parties are given the option, at the time of signature, ratification or accession, of limiting the words "events occurring before 1 January 1951" to "events occurring in Europe" prior to that date.

2. Parallel to the widening of the material and personal scope of international instruments relating to refugees there went a corresponding widening of the competence ratione personae of the international agencies established for their protection. The first League of Nations High Commissioner for Refugees was competent only for Russian refugees. This competence, - and that of the international agencies which succeeded him, - was gradually extended to include the other categories of refugees for whom provision had been made by the respective international instruments.³ At present the competence of the United Nations High Commissioner for Refugees extends to all persons falling within the scope of the 1951 Convention. His competence is however wider in that it is not limited to persons who have become refugees as a result of events occurring before 1 January 1951. The assistance afforded by the High Commissioner in the exercise of his "good offices" function will be referred to later.⁴

3. Subject to the existence of the dateline in the 1951 Convention, there may thus be said to have been a development in international legal instruments relating to refugees from the specific and limited to the more comprehensive general and universal. This development in the legal sphere may be regarded as a reflection of a wider development in the attitude of States towards refugee problems characterized by a growing humanitarian understanding and an increased desire to adopt a generous asylum practice in accordance with an international humanitarian duty. Thus the right of asylum, the most vital need for the refugee, has gradually been embodied in the municipal law of various States, and has been given expression in some form in certain international instruments, e.g. the "Universal Declaration of Human Rights" (Art. 14), the 1928, 1933 and 1954 Conventions on Asylum adopted within the framework of the Organisation of American States and various extradition treaties. In connection with this development, mention should be made of the discussion of the question of the right of asylum in the United Nations Commission on Human Rights and the General Assembly. These bodies have elaborated a draft "Declaration on the Right of Asylum" aimed at the establishment of universal standards of conduct vis-à-vis asylum seeking refugees short of a legal obligation to grant asylum. The consideration of the draft Declaration by the General Assembly has not yet been completed.

(B) Problems arising in connexion with the personal scope of the 1951 Convention

4. At the time when the Convention was adopted, the fact that the definition of the term "refugee" was limited by the dateline of 1 January 1951 did not give rise to any special problem, since the definition applied to all known groups of refugees. These were in the main (a) refugees covered by the pre-war international legal instruments and (b) persons who became refugees as a result of events occurring during or immediate after the second World War.

5. With the passage of time, however, new refugee situations arose which in certain cases could be covered by the Convention thanks to the willingness of governments to recognize the existence of a causal link between the plight of persons who left their home countries after 1 January 1951 and events occurring prior to that date. Thus the refugees who came from Hungary as a result of the Revolution in 1956 were generally considered to be refugees covered by the 1951 Convention, and a similar view has recently been adopted by the Swiss Government with regard to refugees from Tibet.⁵

6. However, as new refugee problems arise subsequent to 1951, it may become increasingly difficult for governments to recognize the existence of such a long-term historical causal link. This seems to be especially true in new refugee situations, like those which have now arisen in Africa. Thus the High Commissioner has in the last few years had to interest himself, inter alios, in the following new groups of refugees: Algerian refugees, Rwandese refugees, Sudanese refugees, refugees from Angola and from Portuguese Guinea. In addition, he has had to interest himself in Tibetan refugees, Chinese refugees and refugees from Cuba. It is clear that some of these new refugee situations may have no, or very little, connexion with events occurring before 1 January 1951.

7. There may thus be an increasing number of refugees who, not being covered by the Convention, are unable to take advantage of the minimum standards of treatment for which the Convention provides.

8. The Conference of Plenipotentiaries which adopted the 1951 Convention was already aware that this problem might arise in the future and therefore adopted as part of the Final Act, Recommendation E, worded as follows:

"The Conference,

"Expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides."

9. As will be seen later, however, it is doubtful whether this Recommendation can provide a generally satisfactory solution for the problem of post-dateline refugees. It may thus be difficult for the Governments of certain States to apply, on the basis of a mere recommendation, the provisions of a Convention which, if applied in the normal way, might involve a modification of the jus cogens relating to matters such as personal status, social security or public assistance. On the international level, measures adopted on the basis of a mere recommendation, whereby the treatment accorded to post-dateline refugees is assimilated to that accorded to Convention refugees, may not necessarily have extra-territorial effect.⁶

10. Thus, as frequently in the past, new refugee groups have come into existence for whom no appropriate legal instrument exists in the field of international treaty law. The present problem, however, presents certain aspects which distinguish it from similar problems which have arisen in the past; namely the broader definition of the term "refugee" in the Statute of UNHCR as compared with the definition in the Convention; the relationship between these two definitions; and the widening by various General Assembly Resolutions of the tasks and competence entrusted to the High Commissioner under his original mandate. It is necessary to examine these specific aspects in order to obtain a complete picture of the present problem.

(C) Competence of the United Nations High Commissioner for Refugees under the Statute of his Office in relation to the personal scope of the 1951 Convention

11. The Statute of UNHCR annexed to General Assembly Resolution 428 (V) of 14 December 1950 contains a definition of the term "refugee" which substantially coincides with the definition in the 1951 Convention with the important difference that it is not limited by the dateline of 1 January 1951. Under his Statute, the High Commissioner is therefore competent for post-dateline refugees even though they are not covered by the Convention. The fact that the Convention, unlike the Statute, contained a dateline and might optionally be limited to Europe, was not, however, of any great significance when the two instruments were adopted. At that time their personal scope was in practice identical and a certain equilibrium was maintained by the fact that the mandate of UNHCR was originally limited to three years. (It has in the meantime been periodically extended, at present until the end of 1968).

The groups covered by both instruments were in the main refugees from Eastern Europe, refugees of ethnic German origin in Austria (not in Germany due to the special status granted to them there), Spanish refugees and refugees covered by pre-war instruments, such as White Russian and Armenian refugees and refugees from Germany and Austria.

12. With the passage of time and the emergence of new refugee problems, however, there is a growing discrepancy between those refugees covered by the Convention and those for whom the High Commissioner is competent under his Statute. This problem of the increasing discrepancy between those refugees covered by the Convention and those for whom the High Commissioner is competent under his Statute is emphasized by the adoption of certain resolutions by the United Nations General Assembly extending the scope of the High Commissioner's tasks and functions. The Statute and these later General Assembly Resolutions form an integral legal basis for the activities of UNHCR, the original mandate being thus adapted to changing needs.

(D) Functions of UNHCR Legal protection and "good offices" functions

13. The basic function of UNHCR according to the Statute is the international legal protection of refugees which is essentially aimed at safeguarding their legitimate rights and interests, mainly vis-à-vis their countries of asylum. When the Office of UNHCR was established in 1950 the main emphasis was placed on this basic function of international legal protection. However, the original mandate already envisaged certain activities in the social field. Thus in addition to providing international protection the High Commissioner was required to seek permanent solutions for the refugee problem by assisting governments and, with the approval of the governments concerned, private organisations to facilitate the voluntary repatriation of refugees or their assimilation within new national communities.

14. It will be seen later that the material scope of the High Commissioner's activities in the social field was subsequently extended by various General Assembly Resolutions. These Resolutions gave the High Commissioner a general authorization to appeal for funds, firstly for the grant of emergency relief and later for undertaking material assistance programmes in order to bring about permanent solutions for refugees under his mandate.⁷

15. There have also been certain developments, resulting from various General Assembly Resolutions, regarding the scope of the competence of UNHCR ratione personae to deal with refugee problems in the social field as distinguished from the field of international legal protection. By virtue of these Resolutions which will be referred to in more detail later the High Commissioner is enabled to assist new groups of refugees by extending his "good offices". This has made it possible to extend and to strengthen substantially the part which the High Commissioner, under the guidance of his Executive Committee, has been able to play in the social field as an intermediary of international goodwill and solidarity in arranging for the grant of material assistance and in promoting permanent solutions. Even if, in its essence, the High Commissioner's interest has not gone beyond the scope of his functions as hitherto defined, the fact that, when he lends his "good offices", no formal eligibility determination is necessary, has been of considerable significance. It has facilitated a wider understanding of the purely humanitarian nature of the High Commissioner's work, as has been most apparent in the attitude recently adopted even by countries of origin of refugees, especially in Africa.

(E) The problem summarized

16. From the above it will be seen that a problem has arisen due to the existence of an increasing number of refugees who are not covered by the 1951 Convention and to the growing discrepancy between the categories of refugees covered by the Convention and those for whom the High Commissioner is competent under his Statute. This discrepancy which, as stated above, is emphasized by more recent developments as regards the High Commissioner's functions in the social field or "good offices" functions, is particularly significant as far as his function of international protection is concerned. The High Commissioner has encountered no difficulty vis-à-vis governments (whether Parties to the 1951 Convention or not) as regards the formal recognition of his international protection function. This function can however only have material content to the extent to which it has its counterpart in corresponding obligations of governments. In the field of international law, such obligations can be found in the 1951 Convention, in various other international legal instruments relating to or containing provisions regarding refugees and in general international law. In the case of refugees not covered by the 1951 Convention, however, such material content is reduced which, as far as these refugees are concerned, limits the effectiveness of the international protection function exercised by the High Commissioner on their behalf.

17. There would thus seem to be a general recognition of the need to extend the personal scope of the 1951 Convention, a need the existence of which has also been recognized on the international level. Thus the question of the personal scope of the 1951 Convention has been raised by several delegations represented on the Executive Committee of the High Commissioner's Programme at its Second Special Session in 1964 and at its 12th Session in 1965. At its 12th Session, the Committee "noted that the High Commissioner was studying ways and means by which the personal scope of the Refugee Convention of 1951 might be liberalized."8⁸ An examination of the historical development of the definition of the term "refugee" in the 1951 Convention will however show⁹ that the dateline of 1 January 1951 and the possibility of optionally limiting the Convention to Europe were introduced because of the desire of certain Contracting States to protect themselves against possible future unforeseen obligations. When considering the present problem it should be borne in mind that Governments may still not be prepared to assume future obligations whose extent they cannot foresee, or to broaden their obligations to existing new groups of refugees without any limitation. A means should therefore be found to enable Governments, by the adoption of suitable legal techniques, to assume the requisite international legal obligations without sacrificing their freedom of action in the case of new refugee situations, beyond the limits of what they would consider acceptable.

18. It is appreciated that in proposing an appropriate legal solution, account may have to be taken of historical developments, e.g. the difference between the present new refugee groups and those originally covered by the Statute and the Convention and the difference between the factual conditions in the light of which these instruments were adopted and those pertaining at the present time.¹⁰

19. The problem under consideration bears some resemblance to problems which have arisen in the past when the existence of now refugee situations called for appropriate measures on the international level. It is therefore proposed to examine these earlier precedents. In so doing, special consideration will be given to the legal techniques considered or adopted. It is also proposed to examine certain legal techniques adopted in other fields which may be of relevance to the matter under discussion.

20. It is hoped that the background information contained in the present paper will be of assistance to the Colloquium in proposing an appropriate solution for the present problem.

II. BACKGROUND INFORMATION

(A) Analysis of the definition of the term "refugee" in the Convention relating to the Status of Refugees of 28 July 1951 and in the Statute of UNHCR (Annex to General Assembly Resolution 428 (V) of 14 December 1950

21. For the purposes of the Refugee Convention of 1951, the term "refugee" is defined by Article 1 A as "any person who:

"(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization.¹¹

"(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.¹²

22. According to Article 1 B (1) the words "events occurring before 1 January 195111 shall be understood to mean either (a) "events occurring in Europe before 1 January 1951" or (b) "events occurring in Europe or elsewhere before 1 January 1951". Each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under the Convention. Moreover, according to Article 1 B (2) a Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations.¹³

23. As regards the UNHCR Statute, paragraph 6 A (i) contains an identical provision to Article 1 A (1) of the Convention defining pre-war refugees. As regards later categories the provision is substantially similar although there is a slight difference in wording: Thus in addition to pre-war refugees, the competence of the High Commissioner shall, according to paragraph 6 A (ii) extend to:

"Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it.''

24. The definition in the Statute does not contain a qualification similar to that in Article 1 B of the Convention regarding "events occurring in Europe" and "events occurring in Europe and elsewhere". Moreover, paragraph 6 B of the Statute contains an additional provision according to which the competence of the High Commissioner shall extend to:

"Any other person (i.e. irrespective of whether or not as a result of events occurring before 1 January 1951) who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence."

25. The scope of the Statute is therefore wider than that of the Convention in that there is no possibility of imposing a geographical limitation and the definition is not bound to the dateline to be found in the Convention, referring to "events occurring before 1 January 1951". The latter expression in its earlier formulation "as a result of events in Europe after 3 September 1939 and before 1 January 1951" was the subject of comment during the preparation of the Convention. The expression was "intended to apply to happenings of major importance involving territorial or profound political changes as well as systematic programmes of persecution in this period which are the after-effects of earlier changes. The second date, 1 January 1951, excludes events which happen after that date but does not exclude persons who might become refugees at a later date as a result of events before then, or as a result of after-effects which occurred at a later date. The date 1 January 1951 was chosen because it is the date of the assumption of Office by the United Nations High Commissioner for Refugees."¹⁴

(B) International Agreements and Arrangements concerning Refugees adopted between the two World Wars

26. The legal instruments adopted between the two World Wars were essentially pragmatic in character. They contained no general definition of the term "refugee". They dealt with specifically defined categories of refugees and in part only with specific problems, as and when the need arose. The first instrument was the Arrangement of 5 July 1922 which was specifically concerned with the issue of certificates of identity to Russian refugees.¹⁵ The Arrangement of 31 May 1924 for the issue of Certificates of Identity to Armenian Refugees¹⁶ was similar in type. These two Arrangements were supplemented and amended by the Arrangement relating to the issue of Identity Certificates to Russian and Armenian Refugees of 12 May 1926¹⁷ and the letter was extended to Turkish, Assyrian, Assyro-Chaldean and assimilated refugees by the Arrangement of 30 June 1928.¹⁸

27. On 30 June 1928, the first international instrument dealing with the legal status of refugees was also adopted, namely the Arrangement relating to the Legal Status of Russian and Armenian Refugees.¹⁹ This was a comprehensive instrument and contained recommendations dealing, inter alia, with expulsion, personal status, exemption from reciprocity and the right to work. It also recommended that the services normally rendered to nationals abroad by consular authorities should be discharged by the representatives of the League of Nations High Commissioner for Russian and Armenian refugees. The next instrument adopted, was also of a comprehensive character, and was legally binding: the Convention relating to the International Status of Refugees of 28 October 1933.²⁰ The new refugee problem that arose with the coming to power of Hitler led to the signing of the Provisional Arrangement concerning the Status of Refugees coming from Germany on 4 July 19362²¹ and the Convention concerning the Status of Refugees coming from Germany on 10 February 1938,²² both of which contained comprehensive provisions concerning the basic rights of refugees. By the Additional Protocol of 14 September 1939 the Arrangement of 4 July 1936 and the Convention of 10 February 1938 were extended to refugees from Austria.²³

28. The Arrangement of 5 July 1922 was adopted by 53 States; the Arrangement of 31 May 1924 by 35 States; the Arrangement of 12 May 1926 by 20 States; the Arrangement of 30 June 1928 by 11 States; the Convention of 28 October 1933 by 8 States; the Provisional Arrangement of 4 July 1936 by 7 States, and the Convention of 10 February 1938 and the Additional Protocol of 14 September 1939 by 3 States.

(C) Legal techniques employed in the pre-war instruments

29. The Arrangements of 1922, 1924, 1926 and 1928 concerning the issue of Identity Certificates (so-called "Nansen Passports") to various groups of refugees were recommendations. So also was the Arrangement of 30 June 1928 relating to the Legal Status of Russian and Armenian Refugees which, as stated above, was the first international instrument of its kind. As the last mentioned Arrangement was only a recommendation, a separate Agreement was signed between France and Belgium on the same day²⁴ concerning the "quasi-consular" service rendered by the Representatives of the League of Nations High Commission for Refugees. In the Agreement the Contracting States expressly consented to the rendering of these services in their territory, thereby giving the documents and certificates issued by the High Commissioner's Representatives the official value of consular documents.²⁵ Moreover, it became generally apparent that recommendations were not sufficient to improve the legal status of refugees. The relevant national legislation was made with the normally protected alien in view and the special position of refugees could only be provided for on a national level by amending legislation or on an international level by treaties legally binding on the Contracting States. The subsequent instruments, i.e. the Convention of 1933, the Arrangement of 1936, the Convention of 1938 and the Additional Protocol of 1939 were of this type and imposed binding legal obligations.

From the point of view of the legal techniques adopted, certain provisions of the 1933 and the 1938 Conventions call for special mention: Article 1 of the 1933 Convention provided that:

"The present Convention is applicable to Russian, Armenian and assimilated refugees as defined by the Arrangement of 12 May 1926 and 30 June 1928, subject to such modifications or amplifications as each contracting party may introduce in this definition at the moment of signature or accession".²⁶

30. As regards the qualification, Bulgaria introduced a limitation concerning the date when the refugees in question were on Bulgarian territory. Great Britain limited the application of the Convention to Russian, Armenian and assimilated refugees no longer enjoying the protection of their country of origin at the date of accession. Czechoslovakia regarded as refugees within the meaning of Article 1 only such persons who formerly possessed Russian or Turkish nationality, lost it before 1 January 1923 and had not acquired another nationality. Egypt reserved the right to extend or limit the definition in any way apart from such modifications or amplifications as each Contracting Party might introduce. In 1945, however, France extended the application of the Convention to Spanish refugees.²⁷

Article 23 of the 1933 Convention provided that:

"The Contracting Parties may at the moment of signature or accession declare that their signature or accession shall not apply to certain chapters, Articles or paragraphs, exclusive of Chapter XI ("General Provisions"), or may submit reservations.

The Contracting Parties shall have the right at any moment to withdraw all or part of their exceptions or reservations by means of a declaration addressed to the Secretary-General of the League of Nations. The Secretary-General shall communicate the said declaration to.... "

Similarly Article 25 of the 1938 Convention provided that:

"1. The High Contracting Parties shall, at the time of signature, ratification or accession or declaration under paragraph 2 of Article 24²⁸ indicate whether their signature, ratification, accession or declaration applies to the whole of the provisions of Chapter I, II, III, IV, V and XIII or applies to the Convention in its entirety.

"2. Failing such indication, the signature, ratification, accession or declaration shall be deemed to apply to the Convention as a whole.

"3. In addition the High Contracting Parties may make reservations to the articles contained in Chapters to which their obligation extends.

"4. The High Contracting Parties shall have the right at any time to extend their obligation to cover further Chapters of the Convention, or to withdraw all or part of their exception or reservations, by means of a declaration addressed to the Secretary-General of the League of Nations. The Secretary-General shall communicate such declaration to.... "

31. Thus Article 1 of the 1933 Convention expressly permitted the introduction by the Contracting States of modifications or amplifications with regard to its scope. On the other hand Article 23 of the 1933 Convention and Article 25 of the 1938 Convention made it possible for States to become parties to the Convention without limiting its scope as far as they were concerned, but at the same time enabled them to introduce limitations as regards the substantive provisions of the Convention to be applied. This technique, permitting the adoption of the international legal instruments, in their entirety or in part, which is similar to but possesses certain advantages over the technique of introducing reservations,²⁹ has also been employed in other fields not specifically concerned with refugees, e.g. in certain Conventions adopted within the framework of the International Labour Organisation and in the European Social Charter.³⁰

(D) The Constitution of the International Refugee Organisation (IRO)

32. The Constitution of the IRO was an international treaty adopted by the General Assembly in Resolution 62(I) of 15 December 1946. In accordance with Article 18 of the Constitution the latter came into force on 20 August 1948, when 15 States, whose required contributions to Part I of the operative budget amounted to not less than 75% of the total, had become parties to the Constitution by signature or acceptance. Article 1 of the Constitution provided that the mandate of the organization was to extend to refugees and displaced persons in accordance with the principles, definitions and conditions set forth in Annex I, which formed an integral part of the Constitution. Like the pre-war instruments, the IRO Constitution defined refugees by specific categories. At the same time, however, it laid down certain broad criteria on the lines of a more general definition. The definitions in the IRO Constitution are of interest from the point of view of the historical development of the definition in the 1951 Convention. Thus, in addition to specifically defined groups, the mandate of the organization extended to persons who were considered "refugees", before the outbreak of the Second World War for reasons of race, religion, nationality or political opinion and to persons who as a result of events subsequent to the outbreak of the Second World War ware unable or unwilling to avail themselves of the protection of the Government of their country of nationality or former nationality. Persons falling within these various categories, with certain exceptions, became the concern of the Organization if they could be repatriated and the help of the Organization was required for their repatriation, or if they expressed "valid objections" to returning to their countries of former habitual residence. It is in the definition of "valid objections" that we find the elements of a more general definition of the term "refugee". Valid objections included "persecution, or fear based on reasonable grounds, of persecution because of race, religion, nationality or political opinions, provided these opinions were not in conflict with the principles of the United Nations laid down in the Preamble to the United Nations Charter." The IRO finally terminated its activities in 1952.

(E) The Convention of 1951

(i) Introduction

33. In 1947 the Human Rights Commission of the United Nations adopted a Resolution expressing the wish "that early consideration be given by the United Nations to the legal status of persons who do not enjoy the protection of any government, in particular pending the acquisition of nationality as regards their legal and social protection and their documentation."³¹

34. In pursuance of this Resolution, the Economic and Social Council at its Sixth Session adopted Resolution 116D(VI) dated 1 and 2 March 1948. In this Resolution the Council requested the Secretary-General to undertake a study of the existing situation in regard to the protection of stateless persons and of national legislation and agreements and conventions relevant to statelessness and to submit recommendations to the Council on the desirability of concluding a further convention on this subject. In the "Study of Statelessness" prepared by the Secretary-General for submission to the Economic and Social Council attention was drawn to the fact that Resolution 116D(VI) only mentioned the protection of "stateless persons" but did not refer to "refugees" and the following points were made in this connexion: As regards stateless persons these fell into two categories, de jure and de facto. De jure stateless persons were persons not possessing a nationality either because they had never acquired one, or because they had lost their nationality and did not acquire a new one. De facto stateless persons on the other hand were persons who, having left the country of which they are nationals, no longer enjoy the protection and assistance of their national authorities. either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals. Although there was, in law, a considerable difference between de jure and de facto stateless persons, their position was in practice similar. The fact that refugees were not mentioned in the Resolution did not mean that they had to be excluded from the scope of the Study. In fact, a considerable number of refugees were stateless persons either de jure or de facto.³² At the conclusion of the "Study of Statelessness", the Secretary-General recommended to the Economic and Social Council, inter alia, to take the following decisions: To address an invitation to all Member States not yet parties to the Convention of 28 October 1933, the Convention of 10 February 1938 and the Additional Protocol thereto of 14 September 1939, to take the necessary steps as soon as possible to become parties thereto; to urge Member States to refrain from taking any discriminatory measures affecting de jure or de facto stateless persons; and to improve the conditions of such persons by providing them, through appropriate legislative or administrative action, with a legal status inspired by the principles underlying these agreements; to recognize the necessity of a Convention, based on the agreements in force, determining the legal status of stateless persons; to instruct the Secretary-General, in consultation with the Director General of the IRO and the administrative heads of the other specialized agencies concerned, or an ad Hoc Committee appointed by the Council, to prepare a draft Convention. The proposed draft Convention was thus to apply to stateless persons in general and was to be based on the principles of the agreements already in force.³³ In the later development, this emphasis on the link with earlier agreements is no longer apparent and the problem of refugees and stateless persons came to be treated separately.

35. In Resolution 248(IX) B of 8 August 1949, the Economic and Social Council took note of the "Study of Statelessness" and appointed an ad hoc Committee consisting of representatives of thirteen governments³⁴ possessing special competence in this field, to consider, inter alia, the desirability of preparing a revised and consolidated Convention relating to the International Status of Refugees and Stateless Persons and, if they considered such a course desirable, to draft the text of such a Convention. The Secretary-General was invited to submit the report of the Committee to governments for comments and subsequently to the Council at an early session accompanied by such comments. The first session of the Ad Hoc Committee was held in New York from 16 January to 16 February 1950. The Committee decided to recommend to the Economic and Social Council that the most effective solution of the problems referred to it was by means of a convention. In view of the urgency of the refugee problem and the responsibility of the United Nations in this field, the Committee decided to devote itself first to the problem of refugees, whether stateless or not, and to leave to later stages of its deliberations the problem of stateless persons who are not refugees. The Committee prepared a draft Convention relating to the Status of Refugees and a separate draft Protocol relating to the Status of Stateless Persons. The Report of the Committee³⁵ and the comments of governments were transmitted to the Economic and Social Council and considered by the latter at its 11th Session in August 1950³⁶ In Resolution 319(XI) B of 16 August 1950, the Council submitted the Report of the Ad Hoc Committee to the General Assembly. It requested the Secretary-General to reconvene the Ad Hoc Committee in order that it might prepare revised drafts in the light of comments of governments and of specialized agencies and the discussions and decisions of the Council at its 11th Session. The revised drafts were to include the definition of "refugee" and the Preamble approved by the Council, and incorporated in the Resolution. The Secretary-General was also requested to submit the drafts as revised by the Ad Hoc Committee to the General Assembly at its 5th Session. The second Session of the Ad Hoc Committee was held in Geneva from 14 to 25 August 1950, immediately after the 11th Session of the Economic and Social Council. The draft Preamble and Article 1 (Definition) as approved by the Economic and Social Council and the revised drafts of the remaining Articles were duly submitted to the General Assembly at its Fifth Session, and the question was considered by the Third Committee at its 324th, 325th, 326th and 327th meetings. In Resolution 429(V) adopted on 14 December 1950, the General Assembly (1) decided to convene in Geneva a Conference of Plenipotentiaries to complete the drafting of and to sign the Convention relating to the Status of Refugees and the Protocol relating to the Status of Stateless Persons; (2) recommended to governments participating in the Conference to take into consideration the draft Convention prepared by the Economic and Social Council, and in particular the text of the definition of the term "refugee" annexed to the General Assembly Resolution, (3) instructed the Secretary-General to invite the governments of all States, both members and non-members of the United Nations, to attend the Conference. The Conference of Plenipotentiaries at which 26 States were represented by delegates,³⁷ and two by observers,³⁸ met in Geneva from 2 to 25 July 1951. The Conference adopted the Convention relating to the Status of Refugees and a Resolution concerning stateless persons.³⁹ The Final Act of the Conference was signed on 28 July 1951.

(ii) Historical development of the definition of the term "refugee" in the 1951 Convention

36. At the opening of the first Session of the Ad Hoc Committee, the Secretary-General submitted a Memorandum⁴⁰ to which was attached a preliminary Draft Convention. Article 1 of the latter listed three possible solutions for the problem of definition. For the purposes of the Convention the term "refugee" could mean (a) any person placed under the protection of the United Nations in accordance with the decisions of the General Assembly, or (b) refugees covered by the definitions contained in the IRO Constitution, or (c) refugees according to a definition to be drafted by the Ad Hoc Committee. As regards alternative (a) the difficulty appeared to be whether governments would be willing as it were "to sign a blank cheque".⁴¹ In connexion with alternative (c), it was possible to take over the IRO definitions, where necessary subject to appropriate revision, or to approach the problem completely afresh. Any plan for the revision of the IRO definition, however, would have to take account of two considerations: (1) should all refugees of whatever origin be included in the definition subject, where necessary, to certain exceptions? Or, on the contrary should the various categories whom it was intended to cover be enumerated? (2) Should the definition include future refugees, i.e. refugees belonging to existing categories who may in the future seek refuge in another country and persons belonging to new categories of refugees?⁴²

37. At the beginning of the First Session of the Ad Hoc Committee draft proposals for Article 1 of the Convention were submitted by the United Kingdom, France and the United States. While the United Kingdom and French draft proposals contained general definitions⁴³ the United States draft proposal contained a definition by categories. According to the latter draft definition the term "refugee" was to apply in the first place to persons defined as such according to the prewar arrangements and conventions. Beyond this, the term was to apply to "any person who is and remains outside his country of nationality or former habitual residence because of persecution or fear of persecution on account of race, nationality, religion or political belief, and who belongs to one of the following categories: (a) German. Austrian, Czechoslovak refugees, victims of the Nazi or Fascist Régimes, or régimes which took part on their side during the Second World War; (b) Spanish refugees (c) neo-refugees, i.e. persons outside their country as a result of events subsequent to the outbreak of the Second World War (subject to certain exceptions); (d) Displaced persons, (e) unaccompanied children.⁴⁴ The representative of the United States explained that the point of departure of the draft proposal was, subject to certain modifications, the definition in the IRO Constitution.⁴⁵ The term "neo-refugees" was not intended to imply the automatic inclusion of any new future group of refugees but to permit their inclusion, if desired, by means of protocols, addenda or later agreements. The essential idea was that Member States should know in advance to what they were committing themselves and it was advisable on a given date to close the enumeration of categories of refugees to whom the Convention would automatically apply.⁴⁶ Although views were expressed in support of a general definition, it was the consensus in the Committee that the term "refugee" should be defined by listing various categories to which the Convention was to apply and the drafting of the definition was entrusted to a drafting group which used the United States draft proposal as a working document.⁴⁷ In its report, the Committee stated that the solution of a general definition had been rejected because "it would be difficult for a government to sign a "blank cheque" and undertake obligations towards future refugees the origin and number of which would be unknown. It was also felt that since this was a document prepared under the auspices of the United Nations and since the individuals protected by this Convention would probably become the charge of that organ of the United Nations concerned with the protection of refugees, the categories of individuals to be covered should be specified as was done in previous United Nations decisions in this regard."⁴⁸ The text of the definition finally adopted by the Ad Hoc Committee at its first session was, for present purposes, the same as that elaborated by the drafting group referred to above. It was as follows:

"Article 1 Definition of the term "refugee"

A. For the purposes of this Convention the term "refugee" shall apply to:

1. Any person who:

(a) As a result of events in Europe after 3 September 1939 and before 1 January 1951 has well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion, and

(b) Has left, or owing to such fear is outside the country of his nationality, or if he has no nationality, outside the country of his former habitual residence; and

(c) Is unable or, owing to such fear, is unwilling to avail himself of the protection of the country of his nationality.

............

2. Any person who:

(a)

(i) Was a victim of the Nazi régime in Germany;..........

(ii) Was, or has a well-founded fear of being, a victim of the Falangist régime in Spain;

(b) Has left or is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence; and

(c) Is unable or, for reasons other than those of purely personal convenience, is unwilling to avail himself of the protection of the Government of the country of his nationality.

3. Any person who in the period between 3 August 1914 and 3 September 1939 was considered to be a "refugee."⁴⁹

38. In their comments on the report of the First Session of the Ad Hoc Committee, certain governments again expressed themselves in favour of a general definition.⁵⁰ When the Economic and Social Council (Social Committee) at its 11th Session, considered the Report of the Ad Hoc Committee it had before it draft proposals submitted by Belgium and the United Kingdom for a general definition.⁵¹ It also had before it a draft proposal by France for a definition by categories.⁵²

39. The question of a general definition or a definition by categories was again discussed. A decision of principle was reached that the definition should be based on categories.⁵³ The discussion then proceeded on the basis of the draft Article 1 adopted by the Ad Hoc Committee and the French draft amendment. The French draft definition differed from the draft adopted by the Ad Hoc Committee in that, although defining refugees by categories, it made no reference to specific groups, e.g. victims of the Nazi régime in Germany or the Falangist régime in Spain. The draft definition adopted by the Economic and Social Council in Resolution 319(XI)B of 16 August 1950, was substantially the same as the French draft definition and was worded as follows:

"For the purpose of this Convention the term 'refugee' shall apply to any person:

(1) who in the period between 1 August 1914 and 15 December 1946 was considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Convention of 28 October 1933 and 10 February 1938 and the Protocol of 14 September 1939;

(2) who has been accepted by the International Refugee Organisation as falling under its mandate;

(3) who has had, or has, well-founded fear of being a victim of persecution for reasons of race, religion, nationality, or political opinion as a result of events in Europe before 1 January 1951, or circumstances directly resulting from such events, and, owing to such fear, has had to leave, shall leave, or remains outside the country of his nationality before or after 1 January 1951, and is unable, or owing to such fear or for reasons other than personal convenience, unwilling, to avail himself of the protection of the Government of the country of his nationality or, if he has no nationality, has left or shall leave, or remains outside the country of his former habitual residence."

40. This draft definition, having been adopted by the Economic and Social Council, was not further discussed by the Ad Hoc Committee at its Second Session. In accordance with Economic and Social Council Resolution 319(XI) B, the Ad Hoc Committee duly submitted this draft definition together with the remaining draft provisions as revised by it to the General Assembly at its Fifth Session where they were considered by the Third Committee. The latter had before it draft proposals submitted by Belgium⁵⁴, the United Kingdom⁵⁵ and a joint draft proposal submitted by Belgium, Canada, Turkey and the United Kingdom⁵⁶ containing general definitions. It also had before it a draft proposal submitted by Venezuela containing a definition by categories⁵⁷ An informal working party⁵⁸ established at the 329th meeting prepared a revised text⁵⁹ which in an amended form was adopted by the Third Committee⁶⁰ and by the General Assembly in Plenary Session in Resolution 429(V) of 14 December 1950.⁶¹ In that Resolution the General Assembly recommended that Governments participating in the Conference of Plenipotentiaries should take into consideration the text of the definition, annexed to the Resolution, worded as follows:

"A. For the purposes of the present Convention the term 'refugee' shall apply to any person who:

(1) Since 1 August 1914, has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation.

(2) As a result of events occurring before 1 January 1951, and owing to well-founded fear of being persecuted for reason of race, religion, nationality or political opinion is outside the country of his nationality, or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or owing to such fear or for reasons other than personal convenience, is unwilling to return to it."

41. It will be seen that a substantive difference between this draft definition and that adopted by the Economic and Social Council in Resolution 319(XI) is that the term "refugee" is no longer limited to persons fearing persecution as a result of events in Europe, although the dateline of 1 January 1951 remains. At the Conference of Plenipotentiaries, the French Delegation submitted a draft amendment to paragraph 2 of Article 1 to add the words: "in Europe" after the words: "As a result of events occurring".⁶² This draft amendment gave rise to considerable discussion. The limitation of the Convention to "events in Europe" was supported by the representatives of certain other States⁶³ while others considered that the Convention should not be purely European in character.⁶⁴ The representative of Switzerland, while in favour of the more general solution, proposed as a compromise that the general formula be adopted subject to the right of each State to introduce reservations.⁶⁵ While this solution received considerable support⁶⁶, there appeared to be certain misgivings as to the legal technique of adopting a broader definition and subsequently entering reservations.⁶⁷ The President of the Conference suggested the solution of embodying the two alternatives in the definition itself, leaving it to the parties to opt for whichever of them they preferred⁶⁸ and a specific proposal along these lines was introduced by the representative of the Holy See⁶⁹ and adopted.⁷⁰ At a later stage a group prepared a text⁷¹ which was adopted as Article 1 B of the 1951 Convention worded as follows:

"B.

(1) For the purposes of this Convention, the words 'events occurring before 1 January 1951' in Article 1, Section A, shall be understood to mean either

(a) 'events occurring in Europe before 1 January 1951', or

(b) 'events occurring in Europe or elsewhere before 1 January 1951'; and each Contracting State shall make a declaration at the time of signature, ratification or accession, specifying which of these meanings it applies for the purpose of its obligations under this Convention.

(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a notification addressed to the Secretary-General of the United Nations."⁷²

42. The discussion of the problem of the geographic limitation and the solution adopted presents a certain interest from the point of view of legal technique. Apart from the provision concerning the geographic limitation and the matters mentioned in the following section, the draft definition prepared by the General Assembly and annexed to Resolution 429 (V) was adopted by the Conference of Plenipotentiaries subject to certain modifications which would not seem to call for comment in the present connexion.

(iii) Legal techniques considered or adopted in connexion with the preparation of the 1951 Convention

43. From the above description of the historical development of the term "refugee" in the 1951 Convention will be seen that various legal techniques were considered or adopted and these legal techniques will now be examined.

(1) Convention or Recommendation

44. It has been seen above that in the "Study of Statelessness" prepared for the Economic and Social Council by the Secretary-General, the latter recommended the adoption of a Convention⁷³ and that in the report on its First Session, the Ad Hoc Committee decided to recommend to the Economic and Social Council that the most effective solution of the problem referred to it was by means of Conventions.⁷⁴ In the "Study of Statelessness" the question was put and answered as follows:

"Convention or Recommendation?

"The question is whether the end in view could not be attained simply by legislative measures taken by each of the reception countries individually.

"In the light of experience, this method does not seem likely to produce any results.

"Nothing can of course be done in this respect without the collaboration, or a fortiori against the wishes, of the countries of reception. But if the good intentions of those countries are to be translated into action, it is essential to resort to the method of a convention, for the following reasons:

"Certain measures, such as the provision of a document to take the place of a passport, necessitate a formal international agreement.

"Other measures which could in theory be adopted through legislation cannot actually be taken for technical and psychological reasons.

"In point of fact:

"(a) No Government will be willing to take the first step in this direction for fear of being the only one to improve the status of stateless persons,⁷⁵ thus causing an influx of them into its territory;

"(b) Action on these lines, if taken by a single Government alone, might appear to be inspired by certain political views. Simultaneous action is the only means of avoiding such suspicions;

"(c) A law designed to improve the status of stateless persons would have to contain a whole body of provisions impinging on the most varied branches of internal legislation. It would be difficult to get parliaments, habitually overburdened with work as they are, to adopt such a law, of an unwonted nature and content, which would require prior study by a number of commissions;

"(d) Ratification of a convention in which all these provisions find their natural place gives rise to less difficulty;

"(e) Experience in this field shows that nothing was done in the field of internal legislation to give effect to the recommendations contained in the Arrangement of 30 June 1926, although these recommendations, which were adopted after exhaustive discussion, answered to the intentions of numerous Governments. However, when they had been inserted in the 1933 and 1938 Conventions, these same provisions were incorporated in the law of the contracting countries;

"(f) A general convention is a lasting international structure; being open to the accession of States which have not signed it, it encourages Governments to associate themselves with the work of their forerunners; even if those Governments are not in a position to accede to it, such a convention sometimes exerts a direct influence on the administrative and legal practice of their countries.

"As a provisional measure and pending the conclusion of a convention, however, the possibility might be considered of inviting States Members, in the form of a recommendation, to refrain from taking discriminatory measures against stateless persons, either de jure or de facto, and to deal with them in conformity with a status inspired by the principles underlying the Conventions of 28 October 1933 and 10 February 1938."⁷⁶

(2) General definition or definition by categories

(3) Universal definition or definition subject to geographical limitation

45. The above matters have already been considered above in connexion with the historical development of the definition of the term "refugee" in the 1951 Convention.

(4) Addition of further categories of refugees on the basis of recommendations by the General Assembly

46. It will be recalled that in the Memorandum submitted by the Secretary-General to the First Session of the Ad Hoc Committee one of the three possible solutions for the problem of definition was to consider as a refugee any person placed under the protection of the United Nations in accordance with the decisions of the General Assembly. It was however pointed out that Governments might be reluctant to accept this solution, which might, as it were, involve signing a "blank cheque". One method of overcoming this difficulty was to provide that in the event of any modification by the General Assembly of the scope of the United Nations protection, the scope of the Convention would also be modified ipso facto, subject to the right of States to declare within a certain time-limit that they did not accept the modification or accepted it only in part.⁷⁷ The definition in the draft proposal submitted by the United States at the First Session of the Ad Hoc Committee, which, as has been seen was a definition by categories contained a provision according to which the term "refugee" was also to extend to "Persons in any other categories which might be agreed to by the High Contracting Parties on the recommendation of the General Assembly."⁷⁸

The draft article adopted by the Ad Hoc Committee at its First Session included a provision according to which: "The Contracting States may agree to add to the definition of 'refugee' contained in this article, persons in other categories recommended by the General Assembly."⁷⁹

During the discussion on this provision, the representatives of Israel explained the intentions of the working group which had prepared the draft article. The group had thought that the General Assembly might adopt a recommendation to include a new category of refugees. The acceptance of the new category thus recommended by the signatories to the Convention should be collective and not unilateral since otherwise there would be as many separate Conventions as acceptances. Acceptances would be made according to one of the procedures used in the United Nations. The Secretary-General would send the recommendations to the States signatories to the Convention. If general agreement among the signatories were reached, it would suffice to notify all States members thereof and such notification would automatically lead to the extension of the Convention to the proposed new categories. If, on the contrary, opinion was divided, the best course would be to call a diplomatic conference to resolve the difficulties.⁸⁰ The representative of the United States considered that the paragraph "would not prevent certain signatory States from recognizing new categories of refugees by means of bilateral or multilateral agreements independently of their inclusion in the Convention."⁸¹ In its report the Committee stated that it had "anticipated the possibility of extending the Convention to categories of refugees other than those defined in the Article. Such extension would require the agreement of the Contracting States to become binding upon them. The General Assembly may propose the inclusion of new categories."⁸²

A draft provision similar to the one adopted by the Ad Hoc Committee was contained in the draft definition by categories submitted by France at the Eleventh Session of the Economic and Social Council:

"B. The Contracting States may agree to extend the definition of refugees contained in this Article to persons in other categories recognized by the General Assembly.

This provision shall not affect the exercise by States of the right to conclude private agreements under which, without committing the United Nations, they undertake unilaterally to extend the benefits of this Convention to refugees not covered by the present Article."⁸³

47. This draft provision was used as a basis of discussion in the Social Committee of the Council. The representative of Chile considered that as States were always free to modify the Convention by drawing up a Protocol, there was no need to interpose the General Assembly. The Representative of the United States supported its retention for the sake of consistency since it had decided (i.e. at that stage) that the Convention itself should first receive the approval of the General Assembly. The Representative of France explained that the second paragraph was intended to supplement the original clause by making it clear that private arrangements might be made by States even in the absence of a General Assembly recommendation. While France was not prepared to accept the first paragraph without the second it would agree to the deletion of the entire provision. The Representative of the United Kingdom also stressed the freedom of action of States in extending the definition. Furthermore the States in question might have to wait some time for the approval of the General Assembly whose attitude might even differ from their own. The Committee therefore decided to delete the draft provision which did not therefore figure in the definition adopted by the ECOSOC in resolution 319 (XII) of 16 August 1950.⁸⁴ It was, however, re-submitted by the representative of Venezuela in the Third Committee of the. General Assembly in the following terms;

"B. The Contracting States may agree to add to the definition of 'refugee' in this Article persons in other categories recommended by the General Assembly."

48. Explaining his proposal the representative of Venezuela recognized the validity of the reason which had led to the rejection of the provision by the Economic and Social Council, namely that any of the Contracting States could at any time agree to accept any category of refugees they deemed fit. Such a provision should however be included because the existing draft might give the impression that it was inflexibly restrictive and that the General Assembly could not subsequently augment the number of categories. It was improbable that States themselves would be greatly interested in increasing the categories, whereas the General Assembly would be continuously concerned with the question. If it proposed new categories, the States would be free to accept or reject them. Lastly it would be wise to keep, by means of such a paragraph, a link however slight, between the General Assembly and the Contracting States.⁸⁵

49. The proposal was accepted and the provision, in slightly amended form was embodied in the draft definition annexed to General Assembly Resolution 429 (V) of 14 December 1950:

"F. The Contracting States may agree to add to the definition of the term 'refugee' in the present Article persons in other categories including such as may be recognized by the General Assembly."⁸⁶

50. The provision was, however, rejected by the Conference of Plenipotentiaries. In connexion with the provision concerning the geographic limitation,⁸⁷ the Chairman of the Style Committee explained that for those States which accepted the second alternative ("events occurring in Europe or elsewhere before 1 January 1951"), the draft provision had no meaning because for them no other categories remained to be included.⁸⁸ The representative of the Netherlands pointed out that if the draft provision were deleted, a new clause would have to be included to cover categories of refugees arising as a result of events occurring after 1 January 1951.⁸⁹ The representative of the United Kingdom recalled that the text of the draft definition before the Conference represented a compromise. His delegation had initially favoured a definition unlimited both in time and in space and later agreed, in a spirit of compromise, to accept a restriction of the definition of the term "refugee" to those persons who became refugees as a result of events occurring before 1 January 1951. This compromise having been reached, serious technical difficulties would arise if Contracting States were allowed unilaterally to adapt the Convention so as to extend its scope to persons who became refugees as a result of events occurring after 1 January 1951. After this discussion the Conference decided to delete the draft provision.

(5) Recommendation that the Convention shall serve as an example exceeding its contractual scope

51. It will be recalled what at the Eleventh Session of the Economic and Social Council, France submitted a draft proposal for a definition by categories. At the same time France submitted a proposal for a draft Preamble,⁹⁰ the final paragraph of which was, subject to certain modifications, the same as that adopted by the Economic and Social Council.⁹¹ The draft Preamble annexed to Resolution 319 (XI) B of 16 August 1950 of the Economic and Social Council contained a final paragraph worded as follows:

"Expressing the hope, finally, that this Convention will be regarded as having value as an example exceeding its contractual scope, and that without prejudice to any recommendations the General Assembly may be led to make in order to invite the High Contracting Parties to extend to other categories of persons the benefits of this Convention, all nations will be guided by it in granting to persons who might come to be present in their territory in the capacity of refugees and who would not be covered by the following provisions, treatment affording the same rights and advantages."

52. During the discussion of this draft paragraph, the representative of the United States, inter alia, expressed the view that all persons in need of protection at the present time were fully covered by the definition in Article 1 of the draft Convention. For this reason, the paragraph wrongly implied that the Convention was not wide enough in scope.⁹² The representative of Belgium considered that the paragraph should be deleted. The Convention would indeed serve as an example but the wording of the paragraph was too complicated to serve as a prefatory recommendation.⁹³ The representative of India considered that it would be more appropriate to draw up a resolution for the Economic and Social Council to submit to the General Assembly, pointing out the desirability of all contracting governments according similar treatment to refugees excluded from the categories laid down in the Convention and of all non-contracting governments according such treatment to refugees within those categories.⁹⁴ The representative of Canada considered the paragraph inappropriate, with its suggestion that the application of the Convention should be regarded as being wider than it in fact was. The Social Committee having rejected the proposal for a broad definition, it seemed most inappropriate to express the hope in the Preamble that the Convention would in fact be applied to all refugees in all countries and not only to the categories included in the definition article.⁹⁵ The representative of Pakistan while recognizing that the paragraph displayed a generous emotion in trying to take stock of the real situation and broaden the definition of "refugee", expressed certain doubts regarding its legal effect. In his view a preamble could not be used to give the operative provisions of an instrument a meaning they were not capable of bearing.⁹⁶ In spite of these objections, however, the paragraph was accepted.⁹⁷ At the Fifth Session of the General Assembly the draft Preamble was not discussed⁹⁸ and the draft Preamble considered by the Conference of Plenipotentiaries was that annexed to Economic and Social Council Resolution 319 (XI) B of 11 and 16 August 1950.

53. At the Conference of Plenipotentiaries, the United Kingdom delegation proposed an amendment to the draft Preamble⁹⁹ from which inter alia the final paragraph was omitted. The representative of the United Kingdom, introducing the amendment, considered that while it was right that the Conference should express a sentiment such as that contained in the paragraph, it would be more proper to include it by way of a recommendation at the end of the Convention, since it went beyond the limits of a general statement on the text of the Convention.¹⁰⁰ The omission of the paragraph received the approval of the representative of France.¹⁰¹ The matter was not discussed further and the drafting of the Preamble with the omission of the paragraph was referred to the Style Committee.¹⁰² The paragraph, subject to certain modifications, was finally included in the Final Act of the Conference as Recommendation E:

"The Conference

"Expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides."

54. The difficulties which have arisen in regard to the application of this Recommendation to new refugee situations have already been mentioned¹⁰³ and will be referred to again later¹⁰⁴

(F) The Statute of the Office of the United Nations High Commissioner for Refugees

(i) Introduction:

55. In the "Study of Statelessness" prepared in pursuance of Economic and Social Council Resolution 116(VI) D of 1 and 2 March 1948¹⁰⁵ the Secretary-General recommended that the Council should recognise the necessity for providing at an appropriate time permanent international machinery for ensuring the protection of stateless persons.¹⁰⁶ The "Study of Statelessness" was considered by the Economic and Social Council at its Ninth Session in August 1949 when it also had before it a communication from the International Refugee Organisation¹⁰⁷ calling attention to the fact that the latter contemplated terminating its activities on 30 June 1950¹⁰⁸ and recommending that the Council should examine the problem of future international action on behalf of refugees. On 6 August 1949, the Council adopted Resolution 248 (IX) A¹⁰⁹ in which, inter alia, it took cognizance of the communication from the General Council of the IRO. Considering that the question of the protection of refugees who were the concern of the IRO was an urgent one owing to the fact that the IRO expected to terminate its activities about 30 June 1950 and that at that time there would still be a considerable refugee problem, the Council requested the Secretary-General inter alia; to prepare for the consideration of the General Assembly at its Fourth Session, a plan for such organization within the framework of the United Nations as may be required for the international protection of refugees, taking into account the following alternatives:

(a) The establishment o f a High Commissioner's Office under the control of the United Nations;

(b) The establishment of a service within the United Nations secretariat.

In his report, dated 26 October 1949,¹¹⁰ the Secretary-General expressed the view that the establishment of a High Commissioner's Office was the more appropriate solution.

56. During the Fourth Session of the General Assembly, the Third Committee devoted nine meetings to the question of refugees.¹¹¹ It had before it, inter alia, the above-mentioned report of the Secretary-General, the communication from the General Council of the International Refugee Organisation referred to above¹¹², a further communication from the IRO¹¹³ and a draft resolution submitted France concerning the functioning of the High Commissioner's Office.¹¹⁴ The latter French draft resolution and a draft resolution on the same subject submitted by the United States¹¹⁵ were withdrawn in favour of a joint draft resolution submitted by France and the United States.¹¹⁶ This joint draft resolution, as amended, was adopted by the Third Committee, and appropriate recommendations made to the General Assembly. In Resolution 319(IV) of 3 December 1949, the General Assembly, inter alia decided to establish as of 1 January 1951, a High Commissioner's Office for Refugees in accordance with the provisions of the Annex¹¹⁷ to the Resolution and requested the Secretary-General to prepare detailed draft provisions for the implementation of the resolution and the Annex and to submit them, together with comments of governments to the Economic and Social Council at its Eleventh Session. The General Assembly also requested the Economic and Social Council, at its Eleventh Session, to prepare a draft resolution embodying provisions for the functioning of the High Commissioner's Office and to submit the draft resolution to the General Assembly at its Fifth Session.

57. The detailed provisions prepared by the Secretary-General for the implementation of General Assembly Resolution 319(IV) and the Annex thereto¹¹⁸ were considered by the Social Committee of the Economic and Social Council in the course of six meetings at its Eleventh Session.¹¹⁹ In its report to the Economic and Social Council,¹²⁰ the Social Committee recommended a draft resolution, with a draft Statute attached for ultimate adoption by the General Assembly. The report of the Social Committee was considered by the Economic and Social Council at its 414th meeting¹²¹ where the draft resolution and annexed draft Statute of the High Commissioner's Office were approved without change and, with the addition of an appropriate preamble, were adopted as Economic and Social Council Resolution 319(XI) A of 11 August 1950.

58. The draft resolution and Annex contained in the latter Resolution were transmitted to the General Assembly at its Fifth Session in a Memorandum from the Secretary-General in which the action taken by the United Nations was summarised to date.¹²² The question of refugees was discussed during seventeen meetings of the Third Committee.¹²³ In its report the Third Committee¹²⁴ gave an account of the action taken by it, and submitted draft resolutions, to one of which was annexed the draft Statute of the High Commissioner's Office. The report of the Third Committee was considered by the General Assembly at its 325th Plenary Meeting in the course of which the Resolution and the annexed Statute were adopted without change (Resolution 428(V) of 14 December 1950).

(ii) Historical development of the term "refugee" in the Statute of the Office of the United Nations High Commissioner for Refugees

59. Economic and Social Council Resolution 248(IX) A of 6 August 1949, requesting the Secretary-General to prepare a plan for such organisation within the framework of the United Nations as may be required for the international protection of refugees contained no definition indicating which categories of refugees were to be the concern of the new Organisation. However, in his report the Secretary-General took the view that the term "refugees" was used in the Resolution in the sense in which the term had been used in the Constitution of the IRO. He did not therefore consider that he was called upon to propose a new definition.¹²⁵

60. As mentioned above, at the Fourth Session of the General Assembly, the Third Committee had before it a draft Resolution submitted by France and one submitted by the United States which were withdrawn and replaced by a joint resolution.¹²⁶ According to the draft Resolution submitted by France¹²⁷ the General Assembly would decide to establish a High Commissioner's Office for Refugees in accordance with the principles and procedures annexed to the draft Resolution, Chapter III of the Annex relating to the "Powers of the High Commissioner" contained, inter alia, the following:

"(a) The powers of the High Commissioner shall extend to all refugees;

(b) The definition provisionally adopted shall be that contained in the Constitution of IRO;

"The High Commissioner shall be responsible to the General Assembly for his interpretation of that definition

"He shall consider the inclusion in his mandate of categories of refugees which IRO was unable, for purely financial reasons to bring under its protection.

"In addition, he shall at the earliest possible date examine, with particular reference to the work of the Committee appointed to prepare a Convention for the protection of refugees, the conditions under which the aforesaid definition should be modified so as to include all categories of persons who, for political, religious or racial reasons, are or may in future be deprived of the protection of their country of origin."

61. This draft Resolution was subsequently replaced by a different one also submitted by France,¹²⁸ the annex to which, containing the draft "Terms of Reference of the High Commissioner" included the following:

(a) The High Commissioner shall be competent to deal as a provisional measure, with refugees as defined in the Constitution of the IRO. He shall also be competent to deal with the categories of refugees covered by the international convention referred to in Resolution 248(IX) of the Economic and Social Council dated 8 August 1949.¹²⁹ He will further deal with such categories of refugees as may be defined by the General Assembly or the Economic Social Council......."

62. At the same time a draft resolution was submitted by the United States¹³⁰ according to which it would be decided to establish an Office of the High Commissioner for Refugees and that: "the persons falling under the competence of the Office of the High Commissioner for Refugees shall be those defined in Annex I of the Constitution of the International Refugee Organisation."¹³¹

In addition the Economic and Social Council was requested:

(a)......................

(b) To transmit to the General Assembly at its Fifth Regular Session such recommendations as the Council may deem appropriate as to additional categories not defined in the Constitution of the International Refugee Organisation which should become the concern of the Office of the High Commissioner for Refugees."

63. Thus according to the United States draft proposal, persons falling within the competence of the High Commissioner would in principle be limited to those covered by the definitions in the IRO Constitution and such additional categories as the Economic and Social Council might recommend to the General Assembly at its Fifth Session. The French draft proposals, however, already contained in themselves the possibility of future extension on the basis of Resolutions of the Economic and Social Council or the General Assembly.

64. The French and United States draft resolutions were subsequently withdrawn in favour of a joint text, which contained alternative provisions on points on which agreement could not be reached. Paragraph 3 of the Annex to the joint draft Resolution was worded as follows:

"(France) 3. Pending the adopting by the General Assembly of new definitions for the term "refugee", the definitions contained in Annex I of the Constitution of the IRO should provisionally be applied by the High Commissioner."

"(United States) 3. Persons falling under the competence of the Office of the High Commissioner for Refugees should be refugees and displaced persons defined in Annex I of the Constitution of the IRO and such others as the General Assembly may from time to time determine."¹³²

65. As regards the High Commissioner's competence, the representative of the United States expressed the view that "the General Assembly should decide specifically for what particular groups of refugees it was willing to accept responsibility. Such groups should be carefully identified after full consideration of the circumstances which had brought them into existence... The League of Nations had found it necessary to identify specific groups of refugees falling within its competence. The IRO Constitution also covered specific and identified categories of refugees. In that connexion, ... the High Commissioner would not be limited in the application of the IRO definitions by any restrictions which the IRO had had to adopt for administrative, or financial reasons. Regarding additional categories of refugees not covered by the IRO Constitution, ... the Economic and Social Council would have ample opportunity to make recommendations to the General Assembly which could consider them before the service of protection was initiated by the High Commissioner on 1 January 1951. The French delegation had argued that the High Commissioner should be free to intervene in any emergency which might arise before action had been taken by the General Assembly. The acceptance of responsibility for refugees by the United Nations was, however, a serious matter on which only the General Assembly should decide. A High Commissioner with such broad authority might easily involve the United Nations in responsibilities which the United Nations might not desire to assume."¹³³

66. The representative of France pointed out that the United States text spoke of "categories of refugees" - a term that had never been used in the IRO Constitution - and its adoption would in effect mean that the High Commissioner's field of action would be restricted indefinitely to the refugees who fulfilled the requirements of the IRO definitions. The French text, on the other hand, made it clear that the application of those definitions would only be provisional, pending the adoption by the General Assembly of new definitions for the term "refugee". His text made no mention of "categories", because he did not think that refugees should be divided strictly into categories. All those who came under the new definitions should automatically be eligible for any protection and assistance provided by the High Commissioner." He also pointed out that the IRO had sometimes made unjust decisions for administrative or financial reasons.¹³⁴

67. Several delegations in addition to the French delegation expressed themselves in favour of a wide definition covering persons other than those included in the categories listed in the IRO Constitution.¹³⁵

68. At the end of the discussion the French variant for paragraph 3 of the Annex was adopted.¹³⁶ When the matter came up for consideration at the Plenary meeting of the General Assembly the latter adopted an amendment submitted by the United States delegation,¹³⁷ for an alternative wording for the paragraph which became paragraph 3 of the Annex to Resolution 319(IV) A of 3 December 1949, worded as follows:

"3. Persons falling under the competence of the High Commissioner's Office for Refugees should be, for the time being, refugees and displaced persons defined in Annex I of the Constitution of the International Refugee Organisation and, thereafter, such persons as the General Assembly may from time to time determine, including such persons brought under the jurisdiction of the High Commissioner's Office under the terms of international conventions or agreements approved by the General Assembly."¹³⁸

69. By Resolution 319(IV) A of 3 December 1949, the General Assembly requested the Secretary-General, inter alia, to prepare detailed draft provisions for the implementation of the Resolution and the Annex, to circulate these draft provisions to governments for comments and to submit them together with any such comments to the Economic and Social Council at its 11th Session. The General Assembly also requested the Economic and Social Council to prepare at its 11th Session, a draft Resolution embodying the provisions for the functioning of the High Commissioner's Office for Refugees and to submit the draft Resolution to the General Assembly at its Fifth Session; and to transmit to the General Assembly at its Fifth Session such recommendations as the Council may consider appropriate regarding the definition of the term "refugee" to be applied by the High Commissioner.

70. These detailed provisions prepared by the Secretary-General in accordance with Resolution 319(IV), were dated 25 April 1950. It will be recalled that the First Session of the Ad Hoc Committee dealing with the draft Convention had been held from 16 January to 16 February 1950. Its report,¹³⁹ which contained a draft Convention, was transmitted to the Economic and Social Council and also considered by the latter at its 11th Session.¹⁴⁰ Thus at its 11th Session, held in August 1950, the Economic and Social Council considered the report of the First Session of the Ad Hoc Committee and also, in accordance with General Assembly Resolution 319(IV) of 3 December 1949, prepared a draft Resolution embodying provisions for the functioning of the High Commissioner's Office for consideration by the General Assembly at its Fifth Session.

71. The introductory remarks to the detailed provisions prepared by the Secretary-General¹⁴¹ for submission to the Economic and Social Council at its 11th Session contain the following comments regarding paragraph 3 of the Annex to General Assembly Resolution 319(IV) A:

"The definitions contained in Article 1 of the draft Convention and Annex of the Constitution of the IRO differ somewhat. Since this difference between the two definitions may make the task of the High Commissioner unnecessarily complicated, the General Assembly may wish to decide that the later definition (i.e. the one in the draft Convention) should determine the persons falling within the competence of the High Commissioner's Office."

In paragraph 5 of the draft Resolution submitted by the Secretary-General to the Economic and Social Council, paragraph 3 of the Annex to General Assembly Resolution 319(IV) A would be replaced by the following: "Persons falling under the competence of the High Commissioner's Office for Refugees shall be those defined in Article 1 of the draft Convention relating to the Status of Refugees."

72. At the 11th Session of the Economic and Social Council, (Social Committee), the French delegation submitted a working paper¹⁴² which was accepted as a basis for discussion,¹⁴³ to which was annexed a draft Statute of the High Commissioner's Office for Refugees. Chapter III(C) relating to competence, contained the following draft provision:

"1. Persons falling under the competence of the High Commissioner shall be the groups of refugees defined in Article 1 of the Convention relating to the Status of Refugees adopted by the General Assembly and groups forming the subject of recommendations made by the General Assembly in pursuance of Article 1, paragraph B of that Convention¹⁴⁴ or who are brought within his competence under the terms of international conventions or agreements approved by the General Assembly or under amendments to the above Convention approved by the General Assembly;

"2. In the case of events occurring in Europe, after 1 January 1951, between the Sessions of the General Assembly, the High Commissioner may, with the concurrence of the Economic and Social Council, or in a case of emergency between the sessions of the Council, with the concurrence of the Advisory Council for Refugees, recommend to States, whether members of the United Nations or not, that the benefits of the Convention be extended to refugees who are victims of such events."

73. To this draft provision amendments were submitted by the United States and the United Kingdom. The United States proposed amendment, like the draft provision itself, referred to refugees as defined by Article 1 of the Convention, whereas the amendment proposed by the United Kingdom contained a more general definition.

74. According to the proposed United States amendment which was ultimately adopted, as paragraph C (1) and (2) of the Annex to Economic and Social Council Resolution 319(XI) A of 11 August 1950, the above draft provision would be replaced by the following:

"1. Persons falling under the competence of the High Commissioner's Office for Refugees shall be those defined in Article 1 of the Convention relating to The Status of Refugees, as approved by the General Assembly, and such other persons as the General Assembly may from time to time determine. The High Commissioner shall determine whether a person falls within the categories mentioned in paragraph C of Article 1 of the Convention and is therefore excluded from his mandate."

"2. In his discretion the High Commissioner may, after consultation with the Advisory Committee on Refugees, intercede with governments on behalf of new categories of refugees which might arise, pending consideration by the General Assembly as to whether to bring such new categories within the mandate of the High Commissioner's Office for Refugee.¹⁴⁵

75. According to the amendment proposed by the United Kingdom, the draft provision proposed by France would be replaced by the following:

"C. Competence

There shall fall under the High Commissioner's competence any person who

(a) is outside the country of his nationality or, if he has no nationality, the country of his former habitual residence owing to well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion.

(b)

(i) if he has a nationality, is unable or, owing to such fear unwilling to avail himself of the protection of the Government of the country of his nationality;

(ii) if he has no nationality, is unable or, owing to such fear, unwilling to return to the country of his former habitual residence."

"In the case of a person having more than one nationality¹⁴⁶

76. Thus the draft provisions proposed by France and the United States defined the scope of the competence of the High Commissioner by categories while the draft provision proposed by the United Kingdom contained a general definition. The discussion in the Social Committee proceeded on similar lines to that which took place in regard to the draft Convention. The representative of the United Kingdom explained that during the discussions on the draft Convention it had been decided to define refugees by categories. There was no need, however, to link the definition in the Convention, which imposed definite obligations upon governments, with the definition in the draft Resolution embodying provisions for the functioning of the High Commissioner's Office for Refugees.¹⁴⁷ It had to be remembered that the High Commissioner would be vested with an international authority derived from the United Nations, and would act on behalf of all refugees in the world. In such cases a limited definition was not only unnecessary but would be highly inappropriate.¹⁴⁸ The representative of the United Kingdom considered that the definition for the High Commissioner's Statute proposed by the United States and France was still too restrictive and took no account of refugees other than those defined in Article 1 of the draft Convention. This Article did not, however, cover all refugees in the world and the United States proposal held out little hope that they could ever be brought under the aegis of the High Commissioner's Office. The draft Convention and the Statute of the High Commissioner's Office were quite different instruments, and although his Government would have preferred a broad definition in both cases it was evident that those definitions need not necessarily be identical. He also pointed out that under the draft Convention certain legal obligations were to be assumed by countries who acceded to it, while the terms of reference of the High Commissioner laid no obligations on a country unless that country voluntarily agreed to accept them.¹⁴⁹

77. The representative of France considered the difficulty of a general definition to be inter alia that in practice the sine qua non of any action by the High Commissioner was the consent of States. Certain States were not, however, prepared to agree to relinquish their sovereignty especially to the extent to which the High Commissioner's world-wide competence would imply.¹⁵⁰

78. The representative of the United States supported the more limited definition on various grounds. In particular, the High Commissioner should in principle concern himself with refugees in groups and categories. This was possible under the United States definition but not under the United Kingdom definition in which every individual refugee could be included according to the merits of his case. The High Commissioner would thus be obliged to take up the case of individual who appealed to him from all over the world which would lead to undesirable consequences from the point of view of administration and costs. Moreover, the definition should be the same in the Convention and in the Statute. It would create a confusing situation if the High Commissioner could refer to a Convention in some cases but not in others. The United Kingdom delegation would have preferred a broad definition for both. The Council had, however, already accepted a definition by categories for the Convention, and should therefore do the same for the High Commissioner's mandate. The essential difference between the United States and the United Kingdom definitions lay in the terms "Europe" and "1951". The United States delegation had supported the addition of the reference to "Europe", its intention being simply to include those persons who ought to be included and exclude those who ought to be excluded. There was no desire on the part of the United States delegation to limit the definition to Europe. The issue simply was whether any particular group ought to be covered or not. As regards the date "1951", the effect was simply to state what categories were involved. The High Commissioner would have discretion to act provisionally in respect of a new category of refugees pending a decision by the General Assembly for its formal inclusion in his mandate. The United Kingdom definition, on the other hand, committed the High Commissioner and the General Assembly in advance.¹⁵¹

79. After a discussion in which the representatives of various countries expressed support either for a general definition or for a definition by categories, the United Kingdom amendment was rejected,¹⁵² and the United States amendment accepted.¹⁵³

80. After consideration by the Economic and Social Council, the draft Resolution and attached Statute prepared by the Social Committee were adopted by the Economic and Social Council, without any change,¹⁵⁴ in Resolution 319(XI) A of 11 August 1950 and transmitted for consideration by the General Assembly at its Fifth Session.¹⁵⁵

81. At the Fifth Session of the General Assembly the draft Statute for the High Commissioner's Office was examined by the Third Committee which, as has been seen¹⁵⁶ also considered the draft Convention. As regards the draft Statute the Committee had before it a draft amendment by the United Kingdom proposing a general definition both for the Statute and for the Convention.¹⁵⁷

82. In a joint draft amendment submitted by Belgium, Canada, Turkey and the United Kingdom, a draft general definition was proposed for the Statute and for the Convention in the following terms:

"2(a) The terms "refugee" shall apply to any person who is outside the country of his nationality or, if he has no nationality, the country of his former habitual residence, because he has well-founded fear of victimization by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the Government of the country of his nationality or, if he has no nationality, to return to the country of his former habitual residence.

"(b) A person who is a national of more than one country ..."¹⁵⁸

83. For a definition by categories, the Third Committee had before it firstly paragraph C of the Annex to Economic and Social Council Resolution 319(XI) of 11 August 1950 which it will be recalled was worded as follows:

"C. Competence

"1. Persons falling under the competence of the High Commissioner's Office for Refugees shall be those defined in Article 1 of the Convention relating to the Status of Refugees as approve by the General Assembly, and such other persons as the General Assembly may from time to time determine. The High Commissioner shall determine which cases fall within the categories mentioned in paragraph C of Article 1 of the Convention and are therefore excluded from his mandate.

"2. At his discretion, the High Commissioner may intercede with Governments on behalf of other categories of refugees pending consideration by the General Assembly as to whether to bring such categories within the mandate of the High Commissioner's Office for Refugees."

84. In addition a proposal for a draft definition by categories was submitted by Venezuela, and worded as follows:

"1. The High Commissioner for Refugees shall grant international protection to the refugees defined in this section. For this purpose the term "refugee" means any person:

(a) Who since 1 August 1914 has been recognized as a refugee under the Arrangements of 12 May 1926 and 30 June 1928, or under the Convention of 28 October 1933 and 10 February 1938 and the Protocol of 14 September 1939, or under the Constitution of the International Refugee Organisation;

(b) Who, as a result of events in Europe before 1 October 1951 and owing to well-founded fear of persecution for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to resort to the protection of the government of the country of his nationality; or who, not having a nationality, being outside the country of his former habitual residence, is unable, or owing to such fear as aforesaid, unwilling to return to that country. ..."

If a person has more than one nationality........

A decision concerning eligibility taken by the International Refugee Organisation during the period of its activities.....

"2. Cessation provisions.

"3 and 4. Exclusion provisions.

"5. The High Commissioner may recommend to the General Assembly the inclusion of other categories of refugees in his terms of reference and may, pending a decision by the General Assembly on his recommendation, intercede with the Government on behalf of any additional category."

85. The refugee items were discussed in the Third Committee during seventeen meetings.¹⁵⁹ In regard to the definition of refugees in the Statute, the discussion again centred largely around the basic question whether this definition should be general or by categories.¹⁶⁰ The representatives of various States considered that a definition by categories was more appropriate for the Statute, as such a definition would prevent the High Commissioner from becoming involved in political issues. Thus the representative of France considered it essential that the High Commissioner should know exactly which refugees would be placed under his protection. A general definition implied a greater delegation of powers by the General Assembly to the High Commissioner. When a new refugee problem arose, the High Commissioner would be drawn into political controversy and in order to avoid this would tend to await the decision of the General Assembly. This would involve a loss of time and, in practice, a return to a limited definition. The latter was preferable because it did not force the High Commissioner to assume political responsibility.¹⁶¹ The representative of the Lebanon considered that a distinction should be drawn between the universal nature of the refugee problem and the particular tasks which would be imposed on the High Commissioner in the course of actual events. The High Commissioner should not be given the competence to deal with all the refugees in the world on his own initiative. The question of refugees was not invariably a purely humanitarian matter; if often had important political aspects. If the entire initiative were left to the High Commissioner, his prestige and authority might be imperilled.¹⁶² A similar, though not identical view was put forward by the representative of the United States. The amendments submitted for a general definition widened the High Commissioner's powers and placed a heavier responsibility on the General Assembly. They did not specify exactly which refugees they proposed should come under the new definition nor which country should be their country of residence. Before adopting such a vague solution, the difficulties which the United Nations had already experienced in meeting its obligations in connection with the Palestine refugees should be remembered, and some consideration given to the burden which would be placed on the United Nations by the Korean refugees. The definition proposed by the Economic and Social Council did not, however, prevent the United Nations from later expanding its action on behalf of the refugees if this was considered necessary.¹⁶³ On the other hand, the representative of Canada, supporting a general definition, considered that since the High Commissioner's Office would have more limited functions than the IRO and would only be concerned with legal protection, his competence should not be restricted. To the argument that the definition of the Economic and Social Council could be extended to other categories of refugees, it could be objected that this would cause not only loss of time but also political controversies in what ought to remain a strictly humanitarian question.¹⁶⁴

86. A definition by categories was also supported from the administrative and financial point of view. The representative of South Africa considered that as the High Commissioner's Office was being established for a particular purpose it would be unwise to broaden its function at that moment.¹⁶⁵ The representative of Chile considered that the definition to be applied by the High Commissioner must inevitably be limited by its administrative and financial implications for the United Nations,¹⁶⁶ and the representative of Venezuela stated that the question was one of pledging United Nations funds and it was essential that the members of the Organisation which could be called upon to supply the necessary funds should know which persons would benefit from them.¹⁶⁷

87. As regards the inter-relationship between the definition in the draft Convention and in the draft Statute, the view was generally expressed at this stage in the third Committee that the two definitions need not be identical.¹⁶⁸ The representative of Venezuela agreed with the view of the Economic and Social Council that the definition should be the same in the draft Convention and in the Statute of the High Commissioner's Office.¹⁶⁹ He draw attention, however, to the possibility that the draft Convention might be referred to a Conference of Plenipotentiaries. Chapter III, Section C of the draft Statute annexed to Economic and Social Council Resolution 319(XI) was unacceptable to his delegation because the Conference would be free to modify Article 1 of the draft Convention as it chose.¹⁷⁰ His delegation had submitted its amendment¹⁷¹ in order to minimise the possibility that the Conference would adopt a definition by categories for the purposes of the draft convention while the General Assembly might approve a general definition for application by the High Commissioner or vice versa.¹⁷² The definition in the draft Statute, together with the definition in the draft Convention was referred to the informal working party established during the 329th meeting of the Third Committee.¹⁷³ The representative of the United States described the results achieved by the informal working party in the following terms:

"The working party had decided that two texts - one for the draft Convention the other for the draft Statute - should be submitted. The two texts had been made consistent with each other. It had been decided to delete the words 'in Europe' from the texts of the definition. The text proposed by the Economic and Social Council in Resolution 319(XI) had been amended in several respects for the draft Convention, and a combination of that text with the one presented by Belgium, Canada, Turkey and the United Kingdom (A/C.3/L.130) was being proposed for the draft Statute. The informal working party believed that the result of its work would prove reasonably satisfactory to many delegations, though it might not entirely satisfy any one of them. A remarkable spirit of cooperation had characterised the work of the group."¹⁷⁴

88. The definitions adopted by the informal working party were as follows:¹⁷⁵

(a) For Article 1 of the draft Convention:

"A. For the purposes of this Convention, the term "refugee" shall apply to any person who:

"(1) Since 1 August 1914, has been considered a refugee under the arrangements of 12 May 1926 and 30 June 1928 or under the conventions of 28 October 1933 and 10 February 1938, the protocol of 14 September 1939 or the Constitution of the International Refugee Organization;

"Decisions as to eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this Article;

"(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable, or owing to such fear or for reasons other than personal convenience is unwilling, to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable, or owing to such fear or for reasons other than personal convenience, is unwilling to return to it;

"In the case of a person who has more than one nationality, the above term 'country of his nationality' shall mean any of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national;

"B, C, D...........

89. This definition was finally adopted in almost identical terms as an Annex to General Assembly Resolution 429(V) of 14 December 1950.

(b) For the Statute it adopted the following definition:

"1. The persons to whom the competence of the High Commissioner extends shall include:

"(a) Persons who are refugees within the term of Parts A and B of Article 1 of the draft Convention," (i.e. the above definition)

"(b) Any other person who is outside the country of his nationality, or, if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of victimization because of his race, religion, nationality or political opinion and is unable or, because of such fear is unwilling to avail himself of the protection of the government of the country of his nationality or, if he has no nationality, the country of his former habitual residence;

"2. Provided that the competence of the High Commissioner as defined in paragraph 1 above shall extend to

........... (Exclusion provisions)

90. This definition, as subsequently amended by the Third Committee was finally adopted by the General Assembly as paragraphs 6 A and B of the Statute of the Office of the United Nations High Commissioner for Refugees, i.e. the Annex to Resolution 428(V) of 14 December 1950, in the following terms:

"6

A.

(i) Any person who has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organisation;

(ii) Any person who, as a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality or political opinion, is outside the country of his nationality and is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to avail himself of the protection of that country; or, who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience is unwilling to return to it.

Decisions as to eligibility taken by the International Refugee Organisation during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of the present paragraph;

"The competence of the High Commissioner shall cease to apply to any person defined in section A above if:

(Cessation provisions)

"B. Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence."

91. It will be seen that apart from paragraph 6 B, which also covers persons who are refugees otherwise than as a result of events occurring before 1 January 1951, there are certain slight differences between the definition adopted by the General Assembly in the Statute, and in the draft definition for the Convention recommended by the General Assembly to the Conference of Plenipotentiaries. The definition in the Convention was subjected to certain further amendments when considered by the Conference of Plenipotentiaries.

(iii) Widening of the framework of the High Commissioner's activities

(a) Extension of the material scope of the High Commissioner's functions in the social field

92. As mentioned above¹⁷⁶ when the Office of UNHCR was established in 1950, the main emphasis was placed on the basic task of international protection. The original mandate, however, already envisaged certain activities in the social field and the material scope of these activities has been progressively extended by various General Assembly resolutions. These resolutions indicate an increasing awareness that the need of refugees for assistance in this field was perhaps more far reaching and more lasting than was originally believed when the Statute was adopted.

93. Thus by Resolution 538(VI) of 2 February 1952 the High Commissioner was authorized under paragraph 10 of his Statute¹⁷⁷ to appeal for funds for the purpose of enabling emergency relief to be given to refugees within his mandate. In Resolution 832(IX) of 21 October 1954, the General Assembly noted that, in spite of efforts made, "there was little hope that - at the present rate, of repatriation, resettlement or integration - a satisfactory solution to these problems, will be reached within a reasonable period of time." Going beyond the scope of its earlier Resolution 538(VI) which was limited to emergency relief, the General Assembly, Authorized the High Commissioner to undertake a programme designed to achieve permanent solutions for refugees within the period of his current mandate. Furthermore, arrangements were made for creating a fund known as the United Nations Refugee Fund (UNREF) to be devoted principally to the promotion of permanent solutions, and also to permit emergency assistance to the most needy gases, such fund to incorporate the fund authorized by Resolution 538(VI), and the High Commissioner was authorized to appeal for funds for this purpose. At the same time the Economic and Social Council was requested either to establish an Executive Committee responsible for giving directives to the High Commissioner in carrying out his programme and for exercising the necessary financial control, or to revise the terms of reference and composition of the High Commissioner's Advisory Committee to enable it to carry out the same duties. The Advisory Committee was reconstituted as an Executive Committee, known as the United Nations Refugee Fund (UNREF) Executive Committee, by Resolution 565(XIX) of the Economic and Social Council of 31 March 1955.

94. In Resolution 1166 (XII) of 26 November 1957, the General Assembly noted with approval that the UNREF programme, if it received the necessary funds, would by 31 December 1958, have reduced the number of non-resettled refugees under the programme to a point where most countries of asylum would be able to support these refugees without international assistance. It was, however, recognized that after 31 December 1958, there would be a residual need for international aid in certain countries and among certain groups and categories of these refugees. Furthermore, new refugee situations requiring international assistance had arisen to augment the problem since the establishment of the fund and other such situations might arise in the future wherein international assistance might be appropriate.¹⁷⁸ Recalling its earlier resolutions the General Assembly authorized the High Commissioner to appeal for additional funds needed for closing the refugee camps. It also requested the Economic and Social Council to establish an Executive Committee of the High Commissioner's Programme whose terms of reference were inter alia: (i) To give directives to the High Commissioner for the liquidation of the UNREF Fund; (ii) To advise the High Commissioner as to whether it is appropriate for international assistance to be provided through his Office in order to help solve specific refugee problems remaining unsolved after 31 December 1958 or arising after that date¹⁷⁹ (iii) To authorize the High Commissioner to appeal for funds to enable him to solve these refugee problems. At the same time the High Commissioner was given a general authorization to appeal for funds, under conditions approved by the Executive Committee.

95. It has thus come to be recognized that in the social field UNHCR is called upon to deal with continuing refugee problems and new refugee problems which may arise in the future. This development is emphasized by the establishment, on the institutional level, of the Executive Committee of the High Commissioner's Programme and the general authorization given to the High Commissioner to appeal for funds subject to the Executive Committee's approval.

(b) Development of the "Good Offices" function

96. As mentioned above, there have also been certain developments, resulting from various General Assembly resolutions regarding the personal scope of the competence of UNHCR to deal with refugee problems in the social field as distinguished from the field of international legal protection.

97. The beginning of this development may be found in Resolution 1167 (XII) of 26 November 1957 concerning Chinese refugees in Hong Kong. In this resolution the General Assembly inter alia recognized that this refugee problem was of concern to the international community. It took into account the need for emergency and long-term assistance, and authorized the United Nations High Commissioner for Refugees to use his good offices to encourage arrangements for contributions. The problem of refugees from Mainland China gave rise to particular difficulty owing to the reluctance of United Nations bodies to take a decision on their eligibility due to the issue of the "two Chinas". In view of this difficulty it was clearly easier for UNHCR to take an interest in the problem otherwise than on the basis of the Statute.¹⁸⁰

98. The problem of Algerian refugees in Tunisia and Morocco was also the subject of various General Assembly Resolutions. In Resolution 1286 (XIII) of 5 December 1958, the General Assembly inter alia noted the action taken in 1956 by the High Commissioner on behalf of refugees from Algeria in Tunisia and, considering that a similar problem existed in Morocco, recommended the High Commissioner to continue his action on behalf of those refugees in Tunisia on a substantial scale and to undertake similar action in Morocco. In Resolution 1389(XIV) of 20 November 1959, the General Assembly recommended that the High Commissioner continue his efforts on behalf of these refugees pending their return to their homes and in Resolution 1500(XV) of 5 December 1960 the General Assembly recommended that the High Commissioner should continue his present action on behalf of refugees from Algeria in Morocco and Tunisia and use his influence to ensure the continuation of the operation carried out jointly by the Office of UNHCR and the League of Red Cross Societies. Finally, in Resolution 1672(XVI) of 18 December 1961, the General Assembly inter alia requested the High Commissioner to: a) continue his present action jointly with the League of Red Cross Societies until the refugees from Algeria in Morocco and Tunisia returned to their homes; b) use the means at his disposal to assist in the orderly return of these refugees to their homes and consider the possibility, when necessary, of facilitating their resettlement in their homeland as soon as circumstances permit; c) persist in his efforts to secure the resources which will enable him to complete his task. The fact that a formal eligibility decision could be avoided was of considerable importance with regard to widening the scope of the measures which UNHCR, in cooperation with the League of Red Cross Societies, could carry out to help governments of asylum countries to assist these refugees and certainly made it easier for UNHCR to obtain the required support for this important programme, especially also from the French Government.

99. In Resolution 1671(XVI) of 18 December 1961 the General Assembly dealt with the problem raised by the situation of Angolan refugees in the Congo. The General Assembly inter alia recommended that the United Nations in the Congo, in close cooperation with the United Nations High Commissioner for Refugees and the League of Red Cross Societies and other voluntary organizations, should continue to provide emergency assistance for as long as necessary and enable the refugees to become self-supporting as soon as possible; requested the High Commissioner to continue to lend his good offices in seeking appropriate solutions to the problems arising from the presence of Angolan refugees in the Republic of the Congo (Leopoldville), inter alia, by facilitating, in close collaboration with the authorities and organizations directly concerned, the voluntary repatriation of these refugees, and urged States Members of the United Nations and members of the specialized agencies to make available to the competent organs of the United Nations the means required for such measures of assistance.

100. In addition to the above Resolutions, dealing with specific refugee problems there are also various General Assembly Resolutions which give the High Commissioner a general authorization to act in refugee situations by extending his "good offices". In Resolution 1388(XIV) of 20 November 1959, the General Assembly inter alia invited the States Members of the United Nations and members of the specialized agencies to devote, on the occasion of World Refugee Year, special attention to the problems of refugees coming within the competence of the United Nations High Commissioner for Refugees, and authorized the High Commissioner, in respect of refugees "who do not come within the competence of the United Nations" to use his good offices in the transmission of contributions designed to provide assistance to these refugees.

101. In Resolution 1499(XV) of 5 December 1960 the General Assembly noted that pursuant to Resolutions 1167(XII) of 26 November 1957 and 1388(XIV) of 20 November 1959, increasing attention was being paid in many countries, by Governments and by non-governmental organizations, to the problems of refugees "who do not come within the immediate competence of the United Nations." It also invited States Members of the United Nations and specialized agencies inter alia to continue to consult with the High Commissioner in respect of measures of assistance to groups of refugees "who do not come within the competence of the United Nations."

102. In Resolution 1673(XVI) of 18 December 1961 the General Assembly inter alia noted with satisfaction the efforts made by the High Commissioner in his various fields of activity for groups of refugees for whom he lends his good offices and requested the High Commissioner to pursue his activities on behalf of refugees within his mandate or those for whom he extends his good offices.

103. In Resolution 1783(XVII) of 7 December 1962 the General Assembly inter alia commended the High Commissioner for the efforts he had made in finding satisfactory solutions of problems affecting refugees within his mandate and those for whom he lends his "good offices". Finally in Resolution 1959(XVIII) of 12 December 1963 the General Assembly inter alia requested the High Commissioner to continue to afford international protection to refugees and to pursue his efforts on behalf of the refugees within his mandate and of those to whom he extends his good offices, by giving particular attention to new refugee groups in conformity with the relevant resolutions of the General Assembly and the directives of the Executive Committee of the High Commissioner's Programme.

(G) Legal techniques considered or adopted in other fields

104. The above examination of the definition of the term "refugee" in the pre-war instruments, and in the Constitution of the IRO, and of the historical development of the definitions in the 1951 Convention and in the Statute has shown the various problems which have arisen as regards legal techniques, when it has been sought to make provision for new groups of refugees. Mention has already been made¹⁸¹ of the possible reluctance of Governments to assume unrestricted obligations as regards new refugee groups, and of the need which may therefore arise to permit the introduction of some limitation by means of appropriate legal techniques. It is therefore proposed to mention briefly various legal techniques adopted with regard to multilateral treaties in certain other fields which may be of relevance to the present problem.

(i) Provision in international instruments for their adoption in their entirety or in part

105. It has been seen that Article 23 of the Refugee Convention of 1953 permitted the Contracting Parties, at the moment of signature or accession, to declare that their signature or accession did not apply to certain Chapters, Articles or Paragraphs (exclusive of Chapter XI) ("General Provisions") or to submit reservations. A variant is to be found in Article 25 of the Refugee Convention of 1938. This enabled the Contracting Parties at the time of signature, accession, etc. to indicate that such signature, ratification, accession, etc. applied to specifically enumerated chapters or to the Convention in its entirety. Failing such indication, the signature, ratification, accession, etc. was deemed to apply to the Convention as a whole. In addition, the Contracting Parties were permitted to make reservations to articles in chapters to which their obligations extended.¹⁸² The technique whereby the obligations of an international agreement may be adopted in their entirety or in part can also be found in certain other pre-war multilateral instruments not dealing specifically with refugees. Mention may be made in this connexion of the Inter-American Radio Communications Convention of 1937¹⁸³ and of the General Act for the Pacific Settlement of International Disputes of 26 September 1928.¹⁸⁴ The latter instrument also enabled the Contracting Parties to make reservations.¹⁸⁵ The Revised General Act for the Pacific Settlement of International Disputes adopted by the United Nations General Assembly on 28 April 1949, contains corresponding provisions.¹⁸⁶

106. The "partial adoption" technique, which bears a certain similarity to but is different from the legal technique enabling the Contracting Parties to make specifically defined reservations¹⁸⁷ has also been employed in a number of conventions adopted by the ILO prior to but mainly after the Second World War.

107. It would seem that within the framework of the ILO, the "partial adoption" technique has been considered especially suitable for securing extensive ratification where, owing to their special circumstances, Member States might not be able to accept the full or more onerous obligations of a Convention. As used in the ILO conventions the technique has a number of variants:

(a) Exclusion of a specified part or parts

108. Convention No. 63 of 1938 concerning Statistics of Wages and Hours of Work contains six parts. Of these Part II relates to Statistics of Average Earnings and of Hours Actually Worked in Mining and Manufacturing Industries and Part III to Statistics of Time Rates of Wages and of Normal Hours of Work in Mining and Manufacturing Industries. During the Conference at which this Convention was adopted it was decided that both classes of statistics had their uses and that the Convention should provide for both on an equal footing.¹⁸⁸ A paragraph was, however, inserted in the Preamble stating that although it was desirable that all Members of the Organization should compile statistics of the type covered by Part II, it was nevertheless desirable that the Convention should be open to ratification by Members which are not in a position to comply with the requirements of that Part. Article 2, paragraph 1 of the Convention thus provided that a Member might, by a declaration appended to its ratification, exclude from its acceptance of the Convention (a) Parts II, III or IV, or (b) Parts II and IV, or (c) Parts III and IV. (Parts IV concerned Statistics of Wages and Hours of Work in Agriculture.)

109. The Labour Inspection Convention (No. 81) of 1947 contains two parts requiring mention: Part I - Labour Inspection in Industry and Part II - Labour Inspection in Commerce. Article 25 provides that any Member may, by a declaration appended to its ratification, exclude Part II from its acceptance.¹⁸⁹

110 The Wages, Hours of Work and Manning (Sea) Convention (Revised) (No. 109) of 1958 included a Part I (General Provisions), Part II (Wages), Part II (Hours of Work on Board Ship) and Part IV (Manning). According to Article 5, paragraph 1, each Member was permitted to append to its ratification a declaration excluding Part II of the Convention.¹⁹⁰

(b) Acceptance of one of two parts in the alternative

111. The Fee-Charging Employment Agencies (Revised) Convention (No. 96) 1949 contains a provision (Article 2) enabling Members to indicate in their instrument of ratification whether they accept Part II of the Convention (Progressive Abolition of Fee-Charging Employment Agencies) or Part III of the Convention (Regulation of Fee-Charging Employment Agencies).

(c) Acceptance of part containing basic provisions and possibility of acceptance of other parts

112. Article 2 of the Social Security Minimum Standards Convention (No. 102) of 1952 provides that each Member shall comply with Part I, at least three of Parts II to X and the relevant provisions of Part XI, XII and XIII and Part XIV. Parts I and XI-XV contain provisions of a general character and Parts II to X deal with specific kinds of social security benefits. In connexion with the preparation of the Convention the ILO had prepared a study with a view to determining the extent to which the various Members would be able to apply Part II to X. This showed that, especially in the less developed countries, Parts III (Sickness Benefit) and V (Old-Age Benefit) and Parts VIII (Maternity Benefit), IX (Invalidity Benefit) and X (Survivors Benefit) could be immediately applied. In the less developed countries, however, Medical Benefits (Part II) were rarely granted to members of an insured person's family and the system of Family Benefits (Part VII) and Unemployment Benefits (Part IV) had not yet been established.¹⁹¹

113. Similarly, the Equality of Treatment (Nationals and Non-Nationals) Social Security Convention (No. 118) of 1962 lays down general obligations regarding equality of treatment. According to Article 2 each Member may accept these obligations in respect of one or more of the branches of social security listed in that Article¹⁹² for which it has in effective operation legislation covering its own nationals within its territory. This provision was introduced in order to give the Convention a character favourable to numerous ratifications and for this reason no obligations had been adopted imposing acceptance of More than one branch of social security.¹⁹³

(d) Acceptance of entire Convention containing basic provisions and optional acceptance of one or several annexes

114. Finally, the Migration for Employment (Revised) Convention (No. 97) 1949 contains provisions covering migration for employment in general and 3 annexes dealing with specific matters: Annex I - Recruitment, Placing and Conditions of Labour for Employment recruited otherwise than under Government-sponsored arrangements for Group Transfers; Annex II - The same for Migrants for Employment recruited under Government-sponsored arrangements for Group Transfers; Annex III - Importation of Personal Effects, Tools and Equipment of Migrants for Employment. Article 14 enables Members to append to their ratification a declaration excluding any or all of the Annexes from their acceptance of the Convention.

115. It is a feature of the ILO Conventions referred to above that they all provide that the part or parts which have not been accepted, may be accepted at a later date. This dynamic aspect is emphasized by the provisions in several of the Conventions as to reporting in regard to that part of the Convention which has not been accepted. Thus Article 2 paragraph 3 of Convention No. 63 provides that "Any Member for which a declaration made under paragraph 1 of this Article is in force shall indicate each year in its annual report on the application of this Convention the extent to which any progress has been made with a view to the application of the Part or Parts of the Convention excluded from its acceptance."¹⁹⁴

116. A variant is to be found in Article 3 paragraph 2 of Convention No. 102 which provides that "Each Member which has made a declaration under paragraph 1 of this Article shall include in its annual report... a statement in respect of each exception of which it avails itself; (a) that its reason for doing so subsists; or (b) that it renounces its right to avail itself of the exception in question as from a stated date." Finally, in certain Conventions it is expressly provided that in respect of a part which has not yet been accepted, a Member may declare its willingness to accept that part as having the force of a recommendation.¹⁹⁵

117. The technique of enabling the parties to a multilateral Convention to accept it in its entirety or in part has also been employed in the European Social 1 Charter¹⁹⁶ in a similar manner to that adopted in the ILO Conventions referred to above.

(ii) Recommendation relating to de facto stateless persons in the Final Act of the Status of Stateless Persons Convention

118. It has been seen above that Economic and Social Council Resolution 116D(VI) of 1 and 2 March 1948, in pursuance of which the Secretary-General prepared the of Statelessness did not mention refugees, but only "stateless persons". In the further preparatory work for the 1951 Convention, only the problem of refugees received detailed attention. The Conference of Plenipotentiaries which adopted the 1951 Convention did not deal with the draft Protocol relating to the Status of Stateless Persons originally prepared by the Ad Hoc Committee at its First Session¹⁹⁷ and adopted the following Resolution in its Final Act:

"The Conference

"Having considered the draft Protocol relating to the Status of Stateless Persons,

"Considering that the subject still requires more detailed study,

"Decides not to take a decision on the subject at the present Conference and refers the draft Protocol back to the appropriate organs of the United Nations for further study."

119. The Economic and Social Council, therefore, convened a special Conference of Plenipotentiaries to consider the Protocol, which was held in New York in September 1954. The Conference adopted not the Protocol, but an independent Convention relating to the Status of Stateless Persons closely modelled on the Refugee Convention.

120. For the purpose of the Convention the term "stateless person" is defined by Article 1 as "a person who is not considered a national by any State under the operation of its law" (i.e. de jure stateless persons).

121. The question of so-called de facto stateless persons,¹⁹⁸ i.e. persons who possess a nationality but do not enjoy the protection of the State of nationality, nor of any other State, gave rise to much discussion at the Conference. The Belgian delegation proposed the inclusion in the definition of "persons who invoke reasons recognized as valid by the State in which they are resident for renouncing the protection of the country of which they are nationals. A drafting Committee on the definition of stateless persons submitted, in addition to the definition of stateless persons which has been incorporated in Article 1 of the Convention, three alternatives for a second paragraph designed to cover de facto stateless persons:

Alternative A

"For the purpose of this Protocol (Convention), the term "stateless person" shall also include a person who invokes reasons recognized as valid by the State in which he is resident, for renouncing the protection of the country of which he is a national."

Alternative B

"A Contracting State may, at the time of signature) ratification or accession make a declaration extending the provisions of the Protocol (Convention) to any person living outside his own country who, for reasons recognized as valid by the State in which he is resident, has renounced the protection of the State of which he is, or was a national.

"Any State which has not made a declaration at the time of signature, ratification or accession may at any time extend its obligations by means of a notification addressed to the Secretary-General of the United Nations

Alternative C

"Nothing in this Protocol (Convention) shall be construed to mean that its provisions cannot be made applicable to any person living outside his country who, for reasons recognized as valid by the State in which he is resident, has renounced the protection of the State of which he is, or was, a national."

122. It will be seen that the legal technique proposed in Alternatives B and C bear some resemblance to the legal technique adopted in Article 1 of the Refugee Convention of 1933.¹⁹⁹ When a vote was taken, the definition of de jure stateless persons and Alternative C were adopted.²⁰⁰ Doubts, however, arose as to whether the inclusion of de facto stateless persons by a Contracting State by virtue of the permissive clause adopted, would have extra-territorial effect, i.e. whether it would bind other Contracting States to apply the provisions of the Convention to de facto stateless persons. The Conference finally decided not to include in the Convention a clause concerning de facto stateless persons which would have extra-territorial effect,²⁰¹ but adopted the following recommendation which was included in the Final Act of the Conference:

"The Conference

"Recommends that each Contracting State when it recognizes as valid the reasons for which a person has renounced the protection of the State of which he is a national, consider sympathetically the possibility of according to that person the treatment which the Convention accords to stateless persons, and

"Recommends further that, in cases where the State in whose territory the person resides has decided to accord the treatment referred to above, other Contracting States also accord him the treatment provided for by the Convention."

123. It will be seen that there is a certain difference between this Recommendation and Recommendation E of the Final Act of the 1951 Convention.²⁰² The latter expresses in general terms the hope that the Convention will serve as an example exceeding its contractual scope and that all nations will be guided by it in granting, as far as possible to persons in their territory as refugees, and who would not be covered by the terms of the Convention, the treatment for which it provides. The Recommendation in the Final Act of the Conference on the Status of Stateless Persons would, however, seem to be stronger in that it contains an element of reciprocity, i.e. if a State in whose territory a de facto stateless person resides, decides to accord him the treatment provided for in the Convention, other Contracting States are recommended to accord him the same treatment.

124. On the other hand, being only a recommendation, the Recommendation in the Final Act of the Conference relating to the Status of Stateless Persons gives rise to the difficulties already mentioned above²⁰³ in connexion with recommendations in general. In particular it is unlikely that a decision by a State to grant treatment for which the Convention provides to de facto persons would have extra-territorial effect, to the extent to which such extra-territorial effect is not recognized by other States Parties to the Convention.²⁰⁴

III. THE PROBLEM RESTATED IN THE LIGHT OF THE LEGAL TECHNIQUES CONSIDERED

125. It has been seen that although definitions in the Convention and in the Statute are not identical, such identity existed in practice at the date when the two instruments were adopted. With the passage of time, the discrepancy between the groups of persons covered by the two instruments has gradually grown due to the increasing number of refugees for whom the High Commissioner is competent under the Statute but who are not covered by the Convention due to the dateline of 1 January 1951. In addition there are new groups of refugees to whom the High Commissioner extends his good offices not on the basis of the Statute, but of various Resolutions of the General Assembly.²⁰⁵ Moreover, by various General Assembly Resolutions the High Commissioner's competence has been extended as regards the tasks entrusted to him.²⁰⁶ When considering the historical development of the definition of the term "refugee" both in the Convention and in the Statute, it has been seen that various States did not favour a general solution but adopted a more restrictive approach. The possibility cannot be excluded that a similar approach might be adopted with regard to measures proposed for solving the present problem. In proposing such measures, therefore, it might be desirable to provide for the introduction of certain limitations, should this prove necessary, and it is here that the possibilities provided by the various legal techniques may be of interest.

126. There would seem to be a general recognition of the need to adopt appropriate measures to make the Convention applicable to those refugees for whom the High Commissioner is competent under his Statute but who are not covered by the Convention due to the dateline of 1 January 1951. The problem arising in this connexion however relates to the form which such a measure should take. Thus it could either take the form of a recommendation, or of a binding legal obligation accepted by the Parties to the Convention.

(A) Recommendation

127. It has been seen that, while a recommendation is a possible legal technique, it might possess certain disadvantages²⁰⁷ as far as a solution of the present problem is concerned. Reference has also been made to the possible difficulties connected with the application of Recommendation E of the Final Act of the 1951 Convention²⁰⁸ and with the Recommendation concerning de facto stateless persons in the Final Act of the Status of Stateless Persons Convention of 1954.²⁰⁹ It has however also been seen that in several of the ILO Conventions referred to above, Member States were given the possibility of declaring that they accepted as recommendations those Parts of the Convention which they were not yet able to accept as binding legal obligations.²¹⁰ These examples show that a recommendation may be resorted to as a complementary legal technique. If therefore the acceptance of binding legal obligations by the States Parties to the 1951 Convention were considered an appropriate solution to the present problem and the introduction of certain limitations on such obligations were provided for, the technique of a recommendation might be resorted to in those fields where, due to such limitations, binding legal obligations have not or have not yet been accepted by the Contracting States.

(B) Acceptance of binding legal obligations by the States Parties to the Convention

128. While this is the normal legal technique for the amendment of international treaties, certain problems arise in the present connexion with regard to the method whereby such obligations are to be assumed and their scope.

(i) Method

129. As regards the method there would seem to be two possibilities:

Revision of the Convention and Protocol.

(a) Revision

This is provided for in Article 45 of the Convention in the following terms:

"1. Any Contracting State may request revision of this Convention at any time by a notification addressed to the Secretary-General of the United Nations;

"2. The General Assembly of the United Nations shall recommend the steps, if any, to be taken in respect of such request."

130. Although this method is specifically provided for in the Convention it may possess certain practical drawbacks, as far as the solution of the present problem is concerned. Before any Measure can be adopted it would be necessary that a request be addressed to the General Assembly. Only after the General Assembly has considered what measures, if any, should be taken in regard to such a request and has adopted an appropriate recommendation can the matter proceed further. Moreover, a discussion in the General Assembly would include many States which are not Parties to the Convention and are therefore not directly concerned with the problem, and would exclude those States which are Parties to the Convention but are not Members of the United Nations.

(b) Protocol

131. On the other hand a Protocol extending the scope of the Convention could be adopted directly by the States Parties to the Convention without prior discussion in the General Assembly. If general agreement cannot be reached between all States Parties to the Convention, at least some progress could be achieved by the adoption of a Protocol by a limited number of them, inter alia with the possibility of others acceding at a later date.

(ii) Scope of the proposed new obligation

132. From the point of view of effectiveness, it would of course be highly desirable for the proposed new obligation to be as broadly defined as possible and to be accepted by the largest possible number of States. The optimum, solution would seem to be a general agreement by all Contracting States to abolish the dateline of 1 January 1951 in Article (1)(A)(2) of the Convention. This would result in the Convention becoming applicable to all present and, automatically, to any future groups of refugees fulfilling the definition in the Convention. It has however been seen when examining the historical development of the definition of the term "refugee" in the Convention²¹¹ and Statute²¹² that various States adopted a more limited approach in view of the reluctance to accept future unforeseen obligations. The possibility cannot be excluded that certain States may still be unwilling to assume future obligations, the extent of which they cannot foresee or to broaden their obligations to cover all existing groups of refugees without limitation. It may thus be necessary to seek a compromise between universality on the one hand and effectiveness on the other. From the point of view of legal technique, it might therefore be desirable for the new obligation, if it is to secure acceptance by the largest possible number of States, either to be limited in itself or to contain the possibility of limitation. Such a limitation could be established (a) ratione personae, i.e. according to a particular group, or particular groups, of refugees or (b) ratione materiae, i.e. according to particular provisions of the Convention, or the two techniques could be combined.

(a) Limitation ratione personae

133. A limitation according to a particular group or to particular groups could assume various forms. It would for example be possible to provide for a general extension of the Convention's present scope coupled with a general limitation as regards groups known to exist or whose existence can be foreseen at a particular date; that is to say the introduction of a new dateline. Apart from or in addition to such new dateline, it might be possible to introduce some more specific limitation as regards particular groups of persons by defining the events as a result of which they became refugees. This would bear some resemblance to the geographic limitation at present contained in Article 1 (B) of the 1951 Convention.

(b) Limitation ratione materiae

134. Alternatively the States Parties to the Convention might agree that the Convention as such should, in principle, apply to all refugees covered by the definition without limitation as to date. At the same time, however, limitations could be introduced as regards the particular provisions of the Convention to be applied. In this connexion the legal techniques adopted in the 1933 and 1938 Conventions,²¹³ in certain ILO Conventions and in the European Social Charter²¹⁴ could provide useful precedents. If a solution of this type were adopted, however, it would be necessary to examine the provisions of the Convention with considerable care with a view to determining which of them, in the given circumstances, could or could not be excluded.

1 Post paras, 26-31

2 The definition of the term "refugee" in the 1951 Convention and in the Statute of the Office of UNHCR will be analysed in detail below, paras. 21-25

3 For details regarding the international agencies established for the legal protection of refugees prior to the establishment of the Office of UNHCR, see "Study of Statelessness", pp. 35-41

4 See post paras, 14, 96-103

5 It will be seen that already at the date when the Convention was adopted, the definition was intended to exclude events occurring after 1 January 1951 but not persons who might become refugees at a later date as a result of events occurring prior thereto or as a result of after-effects of such events occurring at a later date. See post para. 25.

6 See post paras. 51-54/118-124/127

7 See post paras. 96-103.

8 Report of the Twelfth Session of the Executive Committee of the High Commissioner's Programme, Document A/AC.96/270, p. 7

9 Post paras. 36-42

10 For an account of the factual conditions pertaining to the refugee problem in the post-war period see Elfan Rees: Century Of the Homeless Man, International Conciliation, No. 515 November 1957, and James M. Read: The United Nations and Refugees - Changing Concepts, No. 537 March 1962, both published by the Carnegie Endowment for International Peace.

11 Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section."

12 In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national."

13 Of the 47 States which are at present parties to the Convention, 16 have adopted alternative (a): Argentina, Australia, Brazil, Congo (Brazzaville), Dahomey, Ecuador, France, Italy, Ivory Coast, Luxembourg, Monaco, Niger, Peru, Portugal, Senegal, Turkey.

Article 1 of the Refugee Convention and the corresponding provisions in the UNHCR Statute, also indicate the circumstances under which a person ceases to be a refugee (so-called "cessation clauses") or is excluded from the benefits of the Convention (so-called "exclusion clauses") (Convention, Article 1, paragraphs (6) to (E) and Statute, paragraph 6 A., (a) to (f) and paragraph (7). These provisions will not be examined as they are not material for present purposes.

14 Report of the Ad Hoc Committee on Statelessness and related Problems, (First Session), 17 February 1950, E/1618, p. 39. As to the application of the Convention to new refugees, see ante paras. 5, 6 and 7.

15 League of Nations Treaty Series, Vol. 13, No. 355, The Arrangement did not contain a definition of the term "Russian refugee" but the form of identity certificate annexed to the Arrangement described the holder as "a person of Russian origin not having acquired another nationality."

16 League of Nations document, CL. 72 (a) 1924.

17 League of Nations, Treaty Series, Vol. 89, No. 2004

For the purposes of this Arrangement, Russian and Armenian refugees were defined as follows: "Russian: Any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Republics and who has not acquired another nationality; Armenian: Any person of Armenian origin formerly a citizen of the Ottoman Empire who does not enjoy, or who no longer enjoys the protection of the Government of the Turkish Republic and who has not acquired another nationality".

18 Ibid, No. 2006

For the purposes of the Arrangement the categories were defined as follows: "Assyian, Assyro-Chaldean and assimilated refugees: Any person of Assyrian or Assyro-Chaldean origin and also by assimilation any person of Syrian or Kurdish origin who does not enjoy or who no longer enjoys the protection of the State to which he previously belonged and who has not acquired or does not possess another nationality; Turkish refugees: Any person of Turkish origin previously a subject of the Ottoman Empire who under the terms of the Protocol of Lausanne of 44 July 1923 does not enjoy, or who no longer enjoys the protection of the Turkish Republic and who has not acquired another nationality". (This definition refers to a limited number of Turkish refugees (50) who were excluded from the Amnesty granted by the Government of the Turkish Republic after the Imperial Dynasty was overthrown by Kemal Ataturk (Ibid, Vol. 36, p. 145)).

19 Ibid, No. 2005

20 Ibid, Vol. 159, No. 3663

According to Article 1, the Convention was to apply to Russian, Armenian and assimilated refugees, as defined by the Arrangements of 12 May 1926 and 30 June 1928, subject to such modifications or amplifications as each party may introduce in this definition at the moment of signature or accession.

21 Ibid, Vol. 171, No. 3952. For the purposes of the Arrangement, the term "refugees coming from Germany" was defined by Article 1 as "any person who was settled in that country who does not possess any nationality other than German nationality, or in respect of whom it is established that in law or in fact he or she does not enjoy the protection of the Government of the Reich."

22 Ibid, Vol. 192, No. 4461. For the purposes of the Convention the term "refugees coming from Germany" was defined by Article 1 as applying to: "(a) persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or in fact, the protection of the German Government; (b) stateless persons not covered by previous Conventions or Agreements who have left German territory after being established therein and who are proved not to enjoy, in law or in fact, the protection of the German Government." Persons who left Germany for reasons of purely personal convenience were excluded from the definition.

23 Ibid, Vol. 198, No. 4634. The definition adopted in the Additional Protocol was mutatis mutandis the same as that con

tained in Article 1 of the Convention of 10 February 1938.

24 Agreement concerning the functions of the Representatives of the League of Nations High Commissioner for Refugees of 30 June 1928, League of Nations, Treaty Series, Vol. 93, No. 2126.

25 In the Preamble the Contracting States expressed the desire "to secure the most effective possible action on the Resolutions contained in the Arrangement concerning the legal status of Russian and Armenian Refugees... "

26 underlining added

27 Ordinance No. 45-766 of 15 March. Spanish refugees were defined as "persons possessing or having possessed Spanish nationality, not possessing any other nationality and with regard to whom it has been established that in law or in fact they do not enjoy the protection of the Spanish Government."

28 Application of Convention to Colonies, Protectorates, Overseas territories, etc.

29 Article 14 of the Provisional Arrangement of 1936 merely provided that: "The Government may make reservations at the moment of signature. The Contracting Parties shall have the right at any moment to withdraw all or some of their reservations or to make further reservations by means of a declaration addressed to the Secretary-General of the League of Nations...."

30 See post paras. 105-117

31 UN Document E/600, paragraph 46

32 UN Document E/1112 and E/1112/Add.1, pp. 9-10. Since statelessness is a purely legal concept, connoting lack of nationality, it might be more appropriate to speak of unprotected persons who may in time be divided into de jure unprotected persons, i.e. stateless persons and de facto stateless persons, i.e. refugees, it being understood that there are refugees who are also de jure unprotected, i.e. stateless. Dr. Weis: Legal Aspects of the Convention of 28 July 195l relating to the Status of Refugees. British Yearbook of International Law, 1953, p. 480

33 Study of Statelessness, pp. 72-74

34 The representatives of 11 governments took part in the work of the Committee: Belgium, Brazil, Canada, China, Denmark, France, Israel, Turkey, United Kingdom, United States, Venezuela.

35 Report on the Ad Hoc Committee on Statelessness and related Problems, Document E/1618, 17 February 1950.

36 Document E/AC.7/SR.156-169 (Social Committee)

37 Australia, Austria, Belgium, Brazil, Canada, Colombia, Denmark, Egypt, France, Federal Republic of Germany, Greece, Holy See, Iraq, Israel, Italy, Luxembourg, Monaco, Netherlands, Norway, Sweden, Switzerland (the Swiss delegation also represented Liechtenstein), Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Venezuela, Yugoslavia.

38 Cuba, Iran

39 "THE CONFERENCE,

"HAVING CONSIDERED the draft Protocol relating to the Status of Stateless Persons,

"CONSIDERING that the subject still requires more detailed study, "DECIDES not to take a decision on the subject at the present Conference and refers the draft Protocol back to the appropriate organs of the United Nations for further study."

40 Document E/AC.32/2, dated 5 January 1950.

41 It was considered that this difficulty could be overcome by relating the Convention to the situation obtaining at the time when it was concluded. This solution, however, had the drawback of being static. An alternative was to provide for the modification of the Convention, ipso facto, in the event of a modification by the General Assembly of the scope of the United Nations protection, subject to the right of States to declare their non-acceptance of tile modification within a certain period of time. See ibid, p. 15-17

42 loc cit.

43 The United Kingdom draft proposal was originally wide enough to include stateless persons as well as refugees but in its revised form was limited to the latter. According to the revised draft proposal, unless otherwise provided for, the term "refugee" meant "a person who, having left his country of ordinary residence on account of persecution or fear of persecution, either does not wish to return to that country for good and sufficient reason or is not allowed by the authorities of that country to return there and who is not a national of another country." (EAC.32/L.2/Rev.1).

The Preamble of the French draft proposal stated the principle that, "subject to the limitations laid down in the Convention, refugee status should be granted to all persons who, having left their country of origin, refuse to return to it because of fear of persecution, or cannot return there because they have not obtained the authorization to do so and for one or other of these reasons are unable or unwilling to avail themselves of. the protection of that country, provided they have not acquired the nationality of another country". (E/AC.32/L.3). The draft Article 1 in its revised form provided that: "(1) Subject to any supplementary decisions which may be taken by the General Assembly and to any special agreements which may be concluded between the signatories to the present Convention and the High Commissioner for Refugees......, the signatories to the present Convention recognize the status of refugee, entitling him to the supreme protection of the United Nations to any person who: (a) seeking asylum or having been granted asylum under the conditions specified in Article 14 of the Universal Declaration of Human Rights; or (b) having left his country of origin and refusing to return thereto owing to a justifiable fear of persecution, or having been unable to obtain from that country permission to return; (c) for either of the reasons indicated in sub-paragraph (b) above, is unwilling or unable to claim the protection of the said country. (E/AC.32/L.3/Corr.1).

44 E/AC.32/L.4 and Add.1. In addition, the term "refugee" was to include "persons in any other categories which might be agreed to by the High Contracting Parties on the recommendation of the General Assembly."

45 E/AC.32/SR.5 p. 3

46 E/AC.32/SR.3, p. 13

47 E/AC.32/SR.6, pp. 6-7

48 Document E/1618, p. 38

49 Ibid, p.12

50 c.f. Austria (E/1703/Add.4, p.4) and Italy (E/1703/Add.6, page 3), drew attention to the possible exclusion of a future influx of refugees. France (E/1703/Add.5, page 2), while reiterating its previous support for a broad and general definition, pointed out in particular that such a broad definition "could itself in no way involve governments in commitments beyond those they might formally undertake either by means of a clarifying reservation made at the time of signature of the Convention, or by means of a special agreement with the High Commissioner for Refugees."

51 Belgium. "The term 'refugee' shall apply to any person outside the country of his nationality or his former habitual residence, who cannot avail himself of the protection of the government of his present or former nationality, or who is reluctant to do so because he has good grounds to fear that he may become the victim of persecution by reason of his race, religion, nationality or political opinions". (E/AC.7/L.59)

United Kingdom. "For the purposes of this Convention the term 'refugee' shall apply to any person who: (a) is outside the country of his nationality, or if he has no nationality the country of his former habitual residence owing to well-founded fear of being the victim of persecution for reasons of race, religion, nationality or political opinion and (b) (i) if he has a nationality is unable or, owing to such fear is unwilling to avail himself of the protection of the Government of the country of his nationality, or (ii) if he has no nationality, is unable, or, owing to such fear is unwilling to return to the country of his former habitual residence (E/AC.7/L.63)

52 Document E/L.82

53 Document E/AC.7/SR.158, pp.6-9. Various arguments were put forward in favour of this solution: Previous instruments had always defined refugees by categories; a definition by categories had the advantage of making it quite clear whether a person fell within the scope of the definition or not and also ensured that States did not assume unforeseen obligations. For the latter reason a definition by categories would be more likely to secure the adherence of a larger number of States. (Ibid. pp. 12-20 and SR. 159, pp. 4-7)

54 Document A/C.3/L.114. The draft definition was, with certain verbal differences, identical with the draft definition submitted by Belgium to the Economic and Social Council. See ante para. 38, note 51.

55 Document A/C.3/L.115. The draft definition was identical with that submitted by the United Kingdom to the Economic and Social Council. See ante para. 38, note 51.

56 Document A/C.3/L.130. During the discussions in the Third Committee, the principle of a general definition was also supported by the Netherlands (A/C.3/SR.325, pp. 337-338); Yugoslavia (Ibid. pp.339-340) and Chile (Ibid, SR. 328, P. 355), China (Ibid. SR. 329, p.362).

57 During the discussions in the Third Committee the principle of a definition by categories was also supported by France (Ibid, SR. 328, p. 356 and SR. 329 pp. 364-365) and the U.S.A. (Ibid, SR. 329, pp. 363-364).

58 Belgium, Canada, France, Israel, Turkey, United Kingdom, United States and Venezuela.

59 Document A/C.3/L.131/Rev.1

60 A/C.3/SR.332, pp. 375-381

61 A/PV.325, p.672.

62 Document A/CONF.2/75

63 i.e. Italy (A/CONF.2/SR.21, p.4) and U.S.A. (Ibid, p.15). The main arguments advanced by the representatives of these countries and also by the representative of France (Ibid, SR. 20, pp.9-10) was that States could not assume obligations the scope of which they could not foresee.

64 i.e Belgium (Ibid, SR.20, pp. 7-8), Egypt (Ibid, p.9) Iraq (Ibid, p.11) and Yugoslavia (Ibid, SR.21, p.5)

65 Ibid. SR.20, p.14. Since this proposal permitted a compromise it was supported by the representatives of various States, although a number of them expressed themselves in principle in favour of the more general solution, i.e. Canada (Ibid. p.16), Sweden (Ibid, SR.21, p.17), Germany and Denmark (Ibid, p.17), Netherlands (Ibid, SR.22, pp.11-12), Norway (Ibid, p.14), cf. also United Kingdom (Ibid, SR. 33, p.15).

66 See previous note.

67 Document A/CONF.2/SR.20, pp.10-11. France (Ibid, p.16), Egypt (Ibid, SR.21 pp.18-19) Assistant Secretary-General in Charge of Legal Affairs and (Ibid. pp.10-20 passim).

68 Ibid, p.20

69 Ibid, SR.23, p.4. The following words to be added to subparagraph A 2 of Article 1: "in Europe, or in Europe and other Continents as specified in a statement to be made by each High Contracting Party at the time of signature, ratification or accession."

70 Document A/CONF.2/SR.23, p.7

71 Document A/CONF.2/105

72 The latter provision had its origin in the Style Committee which included it in consequence of the deletion of paragraph F of the draft resolution annexed to General Assembly Resolution 429(V), according to which "the Contracting States may agree to add to the definition of the term "refugee" contained in the present Article persons in other categories, inclusing such as may be recommended by the General Assembly (A/CONF.2/SR.33, pp.16-17). The legal technique represented by the last mentioned provision will be considered more fully later. (See post paras 46-50).

73 See ante para. 34. This view was repeated in the Memorandum submitted by the Secretary-General to the First Session of the Ad Hoc Committee (E/AC.32/2).

74 See ante para. 35 and E/AC.32/SR.2, p.6

75 For the meaning in which this term was used, see ante para. 34

76 "A Study of Statelessness", pp.63-64 reproduced (with the exception of the final paragraph) in the Memorandum submitted by the Secretary-General to the First Session of the Ad Hoc Committee (E/AC.32/2) pp. 5-6

77 E/AC.32/2, p.16, ante para.36

78 Document E/AC.32/L.4/Add.1. The draft definition submitted by France, which was a general definition, opened with the words:

"Subject to any supplementary decisions which may be taken by the General Assembly and to any special agreements which might be concluded between the signatories to the present Convention and the High Commissioner for Refugees". (E/AC.32/L.3, ante para. 37.

79 Document E/1618, p.12

80 Document E/AC.32/SR.18, p. 8

81 Ibid, pp. 8-9

82 Document E/1618, p. 40

83 Document E/L. 82

84 Document E/AC.7/SR.160, pp. 13-15. See also Ibid. SR.159, p.12

85 Document A/C.3/SR. 324, p, 339

86 Underlining added

87 See ante para. 37

88 Document A/CONF.2/SR.33, p, 17

89 Ibid., SR.34, p.10

90 Document E/L.81

91 Speaking of the Preamble generally, the representative of France stated that: "The chief aim of the Preamble was to state the refugee problem in human and equitable terms. It enabled that problem to be expanded to its true dimensions, and indicated the ideal towards which the United Nations must strive if it was to rest content with an imperfect and impartial solution. That was all the more essential since any Convention must of necessity represent a compromise between the ideal and the practicable. It was therefore necessary to find a place in the Preamble for the sacrificed ideal which it had proved impossible to embody in the Convention..." Document E/AC.7/SR.158, p. 11

92 Ibid, SR.166, p, 14

93 Ibid, p. 17

94 Ibid, pp. 17-19

95 Ibid, pp. 19-20

96 Ibid, p.21. This view was supported by the Representative of the United States who considered that the French text was not so much a Preamble as a draft for a resolution with which the General Assembly could introduce it. If it could be presented in that form, the Council might avoid many difficulties and also serve the additional advantage that it would be addressed not merely to governments adhering to the Convention but to all nations equally.

Ibid, pp. 21-22

97 Ibid, SR/167, p. 9

98 General Assembly Resolution 429(V) of 14 December 1950, recommended to the Conference of Plenipotentiaries, to take into consideration the draft Convention submitted by the Economic and Social Council and, in particular, the text of the definition of the term "refugee" annexed to the Resolution. The annex to the Resolution did not contain a draft preamble.

99 Document A/CONF.2/99

100 Document A/CONF.2/SR.31, p. 24

101 Ibid, p. 25

102 Ibid, p. 29

103 Ante paras. 8 and 9

104 Post paras. 118-124/127

105 Ante para. 34

106 For the meaning of "stateless persons" see ante para. 34

107 Document E/1392 and E/1392/Corr.1

108 This date was later postponed to 1 April 1951

109 Resolution 248 (IX) B of 8 August 1949 related to the drawing up of a Convention on the Status of Refugees. See ante para. 36

110 Document A/C.3/527

111 Summary Records A/C.2/SR.256-264

112 Document E/1392 and E/1392/Corr.1

113 Document A/C.3/528

114 Document A/C.3/529

115 Document A/C.3/L. 28

116 Document A/C.3/L. 29

117 These provisions contained a number of general principles but were not as detailed as those finally adopted in the Statute.

118 Document E/1119

119 Summary Records E/AC.7/SR.156, 169, 170, 171, 172 and 173

120 Document E/1831

121 Summary Record E/SR.414

122 Document A/1385

123 Document A/C.3/SR.324-328, 341 and 344

124 Document A/1682

125 Document A/C.3/5272, pp. 32-33. This view was based on a reading of the Resolution as a whole. Thus in the second paragraph the Council took cognizance of the Communication from the General Council of the International Refugee Organisation and in the third paragraph stated that: "The question of the protection of refugees who are the concern of the IRO is an urgent one owing to the fact that the IRO expects to terminate its services about 30 June 1950". In the fifth paragraph the Council noted the conclusions submitted by the General Council of the of the IRO and in the sixth paragraph it requested: "Governments which are Members of the United Nations and all other States to provide, after the termination of the IRO, the necessary legal protection for refugees who have been the concern of the IRO under its mandate".

126 Ante para. 56

127 Document A/C.3/529

128 Document A/C.3/L.26

129 Ante para. 35

130 Document A/C.3/L.28

131 Ante para. 56

132 Document A/C.3/L.29

133 Document A/C.3/SR.262, pp. 2-3. Similarly Ibid, SR. 261, p. 10 and SR. 264, pp. 8-9

134 Ibid, SR.262, pp. 4-5

135 Cf. Netherlands: While there was no objection to adopting the same definition as in the IRO Constitution, the time was ripe to give some thought as recommended in the French draft (i.e. the First draft) to the fate of those categories of refugees which the IRO had for financial reasons not taken under its protection (A/C.3/SR.257, p.2) United Kingdom: There was no need to adopt a definition of the term "refugee" similar to that used in the IRO Constitution. The High Commissioner should act as an adviser for questions concerning all those who might become stateless either de jure or de facto (Ibid, p.8). Mexico supported the French draft Resolution (second) because it was more general in character (A/C.3/SR.261, p.5) and Belgium considered that the problem of refugees could no longer be confined within the strict definitions laid down in the IRO Constitution (Ibid, p.7). Greece, Ibid, Sr.263, pp. 13-14).

136 Document A/C.3/SR.264, p.13

137 Document A/1162

138 The representative of the United States explained that the new text left the door open for the inclusion, within the competence of the High Commissioner, of other persons to be defined in future international instruments which might be initiated by the Ad Hoc Committee established by the Economic and Social Council to study the problem of stateless persons and their protection. The United States considered the text to be more precise. Under it, the General Assembly, which had already approved Annex I of the Constitution of the IRO, would know to exactly what categories of refugees it was extending its protection. (A/SR.264, pp.17-18)

139 Report of the Ad Hoc Committee, on Statelessness and related Problems, document E/1618, 17 February 1950.

140 See ante para. 34.

141 Document E/1669.

142 Document E/AC.7/L.60

143 Document E/AC.7/SR.169, p. 16

144 See ante para. 46

145 Document EAC.7/L.73, paragraph 14, originally presented as an amendment (E/AC.7/L.62) to the draft Resolution proposed "by the Secretary-General in document E/1669. This working was substituted for the corresponding provision in the French working paper which was withdrawn (Document E/AC.7/SR.172, p.4)

146 Document E/AC.7/L.72. Originally submitted as an amendment (E/AC.7/L.61) to the draft Resolution proposed by the Secretary-General in document E/1669.

147 During the discussions in the Social Committee on the draft Convention the view had already been expressed that the scope of the terms of reference of the High Commissioner need not be identical with the scope of the Convention. In particular, the activities of the High Commissioner were not dependent upon the existence of the Convention; the High Commissioner could be competent with regard to States which were not parties to the Convention and with regard to persons not falling within its scope. The definitions need not therefore necessarily be the same. (e.g. United Kingdom E/AC.7SR.156, pp. 14-15; Canada, Ibid, p. 17, Mexico, Ibid, p. 18, France, Ibid, SR.158, pp. 5-6.

148 Document E/AC.7/SR.169, pp. 14-15.

149 Document E/AC.7/SR.172, pp. 13-15 passim

150 Ibid, pp. 7-11 passim.

151 Ibid, pp. 15-20, passim.

152 By 6 votes (Brazil, Chile, France, India, Mexico, USA) to 5 (Belgium, Canada, Denmark, Peru, United Kingdom) with 3 abstentions (China, Pakistan, Australia) (vote by roll call). Document E/AC.7/SR.173, p.11.

153 By 8 votes to 3 with 3 abstentions. (Ibid, p. 12)

154 414th Meeting (E/SR.414)

155 On 16 August 1950 the Economic and Social Council adopted Resolution 319(XI) B in which it took note of the report of the First Session of the Ad Hoc Committee and submitted this report, together with the comments of governments, and the records of the proceedings of the Council to the General Assembly, and requested the Secretary-General to reconvene the Ad Hoc Committee in order that it may prepare revised drafts of these agreements and submit them to the General Assembly at its Fifth Session (See ante para. 34).

156 Ante paras. 35 and 40

157 A/C.3/L.115. The definition was the same as that proposed by the United Kingdom at the 11th Session of the Economic and Social Council. (See ante para. 75).

158 A/C.3/L.130. This draft provision with certain differences in wording was also contained in another joint amendment submitted earlier by the same countries and Chile (A/C.3/L.27).

159 Document A/C.3/SR.324-338, 341 and 344

160 A general definition in the Statute was supported by: Belgium (A/C.3/SR.324, p. 337), Netherlands (Ibid, SR.325, pp.336-337), Chile, (Ibid, pp. 337-338), Yugoslavia (Ibid, p.339-340), Australia, (Ibid, SR.326, p.341), United Kingdom (Ibid, pp.345-346), Turkey (Ibid, SR.329, pp.361-362), China (Ibid, p.362), Canada, loc.cit, New Zealand (Ibid, p.364); a definition by categories was supported by: France (Ibid, SR.324, pp.329-330) United States (Ibid, SR.326, p.331 and pp.343-344, Venezuela (Ibid, SR.32, pp. 338-339), South Africa (Ibid, SR.326, pp. 341-342), Israel, (Ibid, SR.328, pp.357-358), Egypt (Ibid, SR.358) Lebanon, loc cit., Saudi Arabia, (Ibid, p.329)

161 Ibid, SR.326, p.345 and SR.328 pp.364-365.

162 Ibid, SR.328, p.358

163 Ibid, SR.326, p.344

164 Ibid, SR.329, p.362

165 Ibid, SR.326, pp.341-342

166 Ibid, SR.328, p.355

167 Ibid, SR.329, p. 365

168 The representative of Chile considered that the definition should be as broad as possible in the Convention in order that refugees should obtain the fullest possible rights in receiving countries, whereas the definition applied by the High Commissioner should be limited by its administrative and financial implications for the United Nations. (Ibid, SR.328, p.355) The representative of South Africa supported the adoption of the draft definition proposed by the United Kingdom for the draft Convention, but of a more restricted definition for the Statute of the High Commissioner's Office (Ibid, SR.326, pp.341-342). The representative of France supported the view expressed by the representative of the United Kingdom at the 11th Session of the Economic and Social Council that the definition in the Statute need not be the same as that in the Convention because the Convention imposed legal obligations on States, whereas the obligation under the Statute would be only a moral one (ibid, SR.328, p.356). The representative of the United Kingdom considered that while there was no objection to two separate definitions, one definition was adequate and the United Kingdom amendment (A/C.3/L.115) had been submitted with that end in view (Ibid, p.357). The representative of China favoured separate definitions (Ibid, SR.329, p.362)

169 Document A/C.3/SR.325, p.339

170 Ibid, SR.329, p.365

171 Ante para. 84.

172 Ibid, SR.328, p. 359

173 Ante para. 40

174 Document A/C.3/SR.330, p. 367

175 Document A/C.3/L.131/Rev.1

176 Ante para. 13

177 "The High Commissioner shall not appeal to governments for funds or make a general appeal without the prior approval of the General Assembly."

178 Underlining added

179 Underlining added

180 In Resolution 1784(XVII) of 7 December 1962, also concerning Chinese refugees in Hong Kong, the General Assembly requested the High Commissioner to use his good offices, in agreement with the governments concerned, to provide assistance to these refugees.

181 Ante para. 17

182 Ante para. 30

183 Article 25. "The ratifications or adherences to the present Convention may refer to the totality thereof or to two or more of its parts; provided that, in every case Parts One and Four (Conferences and General Provisions) be ratified or adhered to." Hudson, International Legislation, vol. VII, p. 910.

184 Article 38. "Accessions to the present General Act may extend: A. Either to all the provisions of the Act (Chapters l, II, III and IV); B. Or to those provisions only which relate to conciliation and judicial settlement (Chapters I and II), together with the general provisions dealing with these procedures (Chapter IV); C. Or to those provisions only which relate to conciliation (Chapter I), together with the general provisions concerning that procedure (Chapter IV). The Contracting Parties may benefit by the accessions of other parties only insofar as they have themselves assumed the same obligations." Hudson, ibid. vol. IV, p. 2541.

185 Article 39. "1. In addition to the power given in the preceding article, a Party, in acceding to the present General Act, may make his acceptance conditional upon the reservations exhaustively enumerated in the following paragraph. These reservations must be indicated at the time of accession. 2. These reservations may be such as to exclude from the procedure described in the present Act: (a) Disputes arising out of facts prior to the accession either of the Party making the reservation or of any other Party with whom the said Party may have a dispute; (b) Disputes concerning questions which by international law are solely within the domestic jurisdiction of States; (c) Disputes concerning particular cases or clearly specified subject-matters, such as territorial status, or disputes falling within clearly defined categories. 3. If one of the parties to a dispute has made a reservation, the other parties may enforce the same reservation in regard to that party. 4. In the case of Parties who have acceded to the provisions of the present General Act relating to judicial settlement or to arbitration, such reservations as they may have made shall, unless otherwise expressly stated, be deemed not to apply to the procedure of conciliation.

186 United Nations Treaty Series 71/12. p. 101, Reg.No. 912.

187 For examples of this latter technique see Handbook of Final Clauses, United Nations Document ST/LEG.6 (5 August 1957, pp. 99-103.)

188 ILO Conference, 24th Session, Report VI, Part. I, Section III, p. 56.

189 During the Conference which adopted the Convention, the question arose as to whether there should be a single Convention covering inspection in industrial and commercial undertakings or separate instruments for each of these categories. It was considered that a single Convention would not be ratified by a substantial number of Members, unless, perhaps, it was framed in such general terms as to have the undesirable effect of weakening the entire Convention. On the other hand, there would be certain disadvantages in adopting two separate Conventions. Ibid. 30th Session, Report IV, pp. 155 et seq.

190 This provision was included on the proposal of several government representatives that Members should be enabled to exclude the wage clause from their ratification. 41st Session, Report II, pp. 1 et seq.

191 bid. 35th Session, Report (V) a (2) p.78.

192 i.e. medical care, sickness benefit, maternity benefit, invalidity benefit, old age benefit, survivors benefit, employment injury benefit, unemployment benefit and family benefit.

193 Ibid. 46th Session, Report V (1) pp. 4-5.

194 Similarly Convention No. 81, Article 25 paragraph. 3; Convention No 96, Article 2 paragraph 2; Convention No. 109, Article 5 paragraph 3.

195 Similarly Convention No. 97, Article 4 paragraph 4; Convention No. 109, Article 5 paragraph 5.

196 Article 20. "l. Each of the Contracting Parties undertakes:

(a) to consider Part I of this Charter as a declaration of the aims which it will pursue by all appropriate means, as stated in the introductory paragraph of that Part;

(b) to consider itself bound by at least five of the following Articles of Part II of this Charter: Articles 1, 5, 6, 12, 13, 16 and 19;

(c) in addition to the Articles selected by it in accordance with the preceding sub-paragraph, to consider itself bound by such a number of Articles or numbered paragraphs of Part II of the Charter as it may select, provided that the total number of Articles or numbered paragraphs by which it is bound is not less than 10 Articles or 45 numbered paragraphs.

"2. The Articles or paragraphs selected in accordance with sub-paragraphs (b) and (c) of paragraph 1 of this Article shall be notified to the Secretary-General of the Council of Europe at the time when the instrument of ratification or approval of the Contracting Party concerned is deposited.

"3. Any Contracting Party may, at a later date, declare by notification to the Secretary-General that it considers itself bound by any Articles or any numbered paragraphs of Part II of the Charter which it has not already accepted under the terms of paragraph 1 of this Article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification or approval, and shall have the same effect as from the thirtieth day after the date of the notification."

197 Ante para. 34.

198 For the difference between de jure and de facto stateless persons, see ante para. 34.

199 Ante para.30

200 The United Kingdom delegation subsequently proposed to add to the wording adopted for paragraph 2 of the definition the words "or who has been refused protection and assistance by the State of which he is a national."

201 Document E/CONF.17/SR.14, p.10

202 Ante para. 8, pp.51-54.

203 Ante paras. 8 and 41

204 See generally P. Weis: The Convention relating to the Status of Stateless Persons. International and Comparative Law Quarterly, April 1961

205 Ante paras. 96-103.

206 Ante paras. 93-95.

207 The relative advantages and disadvantages of a recommendation as compared with a Convention were also considered prior to and in connexion with the preparation of the 1951 Convention. See ante para. 44.

208 See ante para. 9.

209 See ante para. 123.

210 See ante para. 115.

211 Ante paras. 36-42.

212 Ante paras. 59-95.

213 Ante paras. 30 and 31

214 Ante paras. 104-107.