Ad Hoc Committee on Statelessness and Related Problems, First Session: Summary Record of the Twenty-First Meeting Held at Lake Success, New York, on Thursday, 2 February 1950, at 11 a.m.

E/AC.32/SR.21

Chairman: Mr. Leslie CHANCE Canada

Members:
Mr. CUVELIER Belgium
Mr. GUERREIRO Brazil
Mr. CHA China
Mr. LARSEN Denmark
Mr. ORDONNEAU France
Mr. ROBINSON Israel
Mr. KURAL Turkey
Sir Leslie BRASS United Kingdom of Great Britain and Northern Ireland
Mr. HENKIN United States of America
Mr. PEREZ PEROZO Venezuela

Representative of a specialized agency:
Mr. WEIS International Refugee Organization (IRO)

Consultants from non-governmental organizations:
Category A:
Mr. STOLZ American Federation of Labor (AF of L)
Category B:
Mr. BERNSTEIN Co-ordinating Board of Jewish Organizations

Secretariat:
Mr. John HUMPHREY Director, Human Rights Division
Mr. HOGAN Secretary of the Committee
Mr. GIRAUD Human Rights Division

INTERNATIONAL STATUS OF REFUGEES AND STATELESS PERSONS: DRAFT CONVENTION RELATING TO THE STATUS OF REFUGEES (E/AC.32/2, E/AC.32/L.3) (continued)

Establishment of a working group

1. The CHAIRMAN proposed the establishment of a working group composed of the representatives of Belgium, France, Israel, the United Kingdom and the United States of America, with himself as exofficio chairman. The working group would have the following terms of reference:

a. To polish the drafting and arrange the articles of the draft convention;

b. To concord the English and French texts;

c. To draft a preamble; and

d. To consider the possibility of including a provision to the effect that certain articles of the draft convention would apply to stateless persons who were not refugees.

The chairman's proposal was adopted.

Article 24 (E/AC.32/L.15, E/AC.32/L.22, E/AC.32/L.23) (continued)

2. The CHAIRMAN said that the paragraphs of article 24 that had already been adopted were set forth in document E/AC.32/L.22. At the end of the previous meet the United States representative had undertaken to draft a new paragraph expressing more clearly the underlying purpose of the original paragraph 5 of the Secretariat draft. The new paragraph was before the Committee in document E/AC.32/L.23.

3. Sir Leslie BRASS (United Kingdom) thought that the wording of the proposed new paragraph was slightly too sweeping. For example, in some cases when a refugee left a country it had been agreed that he could return if he wished within a certain time limit. If the country where he went decided to expel him and had to allow a "reasonable period" to elapse before enforcing that decision, the time limit within which he was allowed to return to the first country might have expired in the interval. It might therefore be better to insert the words "wherever practicable" in the new paragraph.

4. Mr. HENKIN (United States of America) explained that, when there was a country prepared to admit the refugee, it would be unnecessary to grant him a reasonable period within which to seek legal admission.

5. Sir Leslie BRASS (United Kingdom) accepted the paragraph in principle.

The new paragraph 4 of article 24 was adopted, subject to drafting changes.

6. The CHAIRMAN drew attention to the amendments submitted by the representative of Denmark (E/AC.32/L.15). It might be somewhat difficult to incorporate them in the text of article 24 as it had been redrafted.

7. Mr. LARSEN (Denmark) said that the amendments had been submitted at the suggestion of the IRO representative and were based on the practical experience of that organization.

8. Mr. WEIS (International Refugee Organization) explained that the additional paragraphs contained in document E/AC.32/L.15 concerned primarily the position of refugees admitted provisionally as an emergency measure. He recognized that it was sometimes impossible for Governments to allow such refugees full freedom of movement and the paragraphs proposed were intended to define the restrictions which might be necessary and to reduce them to the minimum. Since the proposals did not deal primarily with expulsion, he agreed that some more logical place them article 24 might be found for them, but he emphasized that it was essential to include some such provisions in the draft convention.

9. The CHAIRMAN proposed that the amendments contained in document E/AC.32/L.15 should be discussed at a later stage in connexion with the appropriate article.

It was so agreed.

10. The CHAIRMAN said that, in order to complete the discussion on article 24, some decision should be taken with regard to paragraph 2 of the Secretariat draft.

Paragraph 2, Article 24 (Secretariat draft)

11. Mr. CUVELIER (Belgium) did not think that the paragraph in question should be included in article 24, since it dealt with admission rather than expulsion. Moreover, it applied to refugees who had entered a country illegally, while the reminder of the article applied to those who had been authorized to reside regularly in the territory concerned. In his opinion, it would be better to insert the paragraph in the article on freedom of movement.

12. Mr. ORDONNEAU (France) pointed out that article 24 as originally drafted by the Secretariat had covered both expulsion and non-admittance. The reference to non-admittance at the frontier (refoulement) had been omitted from the new draft, which was thus incomplete.

13. Mr. CUVELIER (Belgium) said it was important to distinguish between the expulsion of refugees who had been authorized to reside in a territory and the non-admittance of those who had not received such authorization.

14. In reply to a question by Mr. ORDONNEAU (France), Mr. GIRAUD (Secretariat explained that the original draft of article 24 had been based on article 3 of the 1933 Convention. The reference to non-admittance at the frontier (refoulement) in paragraph 1 applied only to refugees who had already been authorized to reside in the territory in question. The practice known as refoulement in French did not exist in the English-speaking countries. In France and Belgium, however, there was a definite distinction between expulsion, which could only be carried out in pursuance of the decision of a judicial authority, and refoulement, which meant either deportation as a police measure or non-admittance at the frontier.

15. Mr. CUVELIER (Belgium) agreed with that explanation and added that the term "expulsion" was used when the refugee concerned had committed some criminal offence, whereas the term "refoulement" was used in cases when the refugee was deported or refused admittance because his presence in the country was considered undesirable, even though he was a person of good character.

16. Sir Leslie BRASS (United Kingdom) concluded from the discussion that the notion of "refoulement" could apply to (a) refugees seeking admission, (b) refugees illegally present in a country, and (c) refugees admitted temporarily or conditionally. Referring to the practice followed in his own country, Sir Leslie stated that refugees who had been allowed to enter the United Kingdom could be sent out of the country only by expulsion or deportation. There was no concept in these cases corresponding to that of "refoulement".

17. Mr. ORDONNEAU (France) considered that the inclusion in the draft convention of a reference to the concept of "refoulement" would not in any way interfere with the administrative practices of countries such as the United Kingdom, which did not employ it, but that its exclusion from the draft convention would place countries like France and Belgium in a very difficult position. It was therefore most important that the concept in question should be incorporated in the draft convention.

18. Mr. HENKIN (United States of America) agreed with the French representative that the draft convention should be broad enough to cover the different practices followed in various countries. He suggested that the Committee should study to what extent it would be desirable to provide for the application of the principles contained in paragraphs 2, 3 and 4 of article 24 as approved by the Committee (E/AC.32/L.22 and E/AC.32/L.23), to refugees (a) illegally present in a country, (b) admitted temporarily or conditionally and, possible, (c) not yet admitted. He would suggest that paragraph 1 of article 24 as approved should form a separate article, followed by a new article consisting of paragraphs 2, 3 and 4 of existing article 24, which in turn would be followed by a further new article embodying the results of the Committee's examination of the question to which he had referred.

19. Mr. ROBINSON (Israel) suggested that the Committee should not at the present stage commit itself as to the precise structure of the article or articles concerned. It should seek to come to a decision on the substance, leaving the question of structure until it considered the final draft of the convention.

20. Mr. ORDONNEAU (France) proposed the insertion of the words "ou refoulé" in paragraph 2 of article 24 (E/AC.32/L.22).

21. Mr. HENKIN (United States of America) stated that in the English text the word "expelled" covered all cases, so that there was no need to modify it in that respect. Mr. Ordonneau's point could, however, be met by modifying the French text as suggested by him.

22. The CHAIRMAN declared, in the absence of any objection, that the French text would be so modified.

23. Mr. WEIS (International Refugee Organization) wondered whether it would be necessary to single out, as a separate category, refugees admitted to a country temporarily or conditionally, since it might be argued that such refugees were legally in the country as long as they observed the conditions governing their stay there; if they violated those conditions, their position of course would become that of refugees illegally present in the country. Consequently, it might be held that there were only two categories in that respect, namely, refugees legally and illegally staying in a country.

24. Mr. CUVELIER (Belgium) did not think that it would be reasonable to extend the benefits of the provisions embodied in paragraphs 2, 3 and 4 of article 24 as drafted to "legal" and "illegal" refugees alike, since the latter would be persons who had violated the laws of the recipient country. Their case ought to be dealt with separately.

25. Mr. GUERREIRO (Brazil) did not think that article 24 need be much changed; paragraph 1 covered the fundamental aspect of the problem and its provisions were applicable to all refugees. The following paragraphs contained special conditions regarding the expulsion of refugees legally admitted. Concerning other categories of refugees, it would not be practicable to regulate the conditions regarding their expulsion or non-admission ("refoulement"). Their case could, however, be covered by the adoption of some humane provisions, along the lines of the Danish amendment (E/AC.32/L.15).

26. The CHAIRMAN suspended the discussion, observing that it had indicated agreement on the principle that refugees fleeing from persecution on account of their race, religion, nationality or political opinions should not be pushed back into the arms of their persecutors. He invited the representatives of Belgium and the United States of America to confer with him to attempt the preparation of a suitable draft for later consideration.

Article 25

27. The CHAIRMAN opened the discussion on article 25 of the Secretariat draft dealing with exceptional measures.

28. Mr. HENKIN (United States of America), replying to a question by the Turkish representative, said that in his view the word "solely" in the last clause of article 25 indicated that, while exceptional measures could be taken against refugees, they could not be taken on the grounds of nationality alone.

29. Mr. KURAL (Turkey) was able to accept the paragraph on that understanding.

30. Mr. ROBINSON (Israel) inquired whether the article was broad enough to include possible retaliation and retortion by countries against subjects of States with which they had a temporary disagreement. He did not think that exceptional measures of that kind should apply to refugees from counties against whose subjects such measures were directed.

31. He also thought that the words "de jure" in article 25 might be deleted, as they would only provide grounds for dispute.

32. The CHAIRMAN said that in his opinion the article would prevent exceptional measures of retaliation or retortion from being applied to refugees solely on the grounds of their nationality.

It was agreed to delete the words "de jure".

33. Sir Leslie BRASS (United Kingdom) stated that, while he had no instructions from his Government on the matter, he felt sure it would be sympathetic to the provisions of article 25. It might, nevertheless, have some difficulty in accepting them, because of overriding considerations of national security. He recalled the critical days of May and June 1940, when the United Kingdom had found itself in a most hazardous position; any of the refugees within its borders might have been fifth columnists, masquerading as refugees, and it could not afford to take chances with them. It was not impossible that such a situation might be reproduced in the future.

34. In reply to a remark by the CHAIRMAN he said that the convention prepared by the Diplomatic Conference held at Geneva in 1949, and containing a clause stating that exceptional security measures in times of war should not be applied to refugees solely because they were nationals of enemy States, was not yet in force.

35. Mr. HENKIN (United States of America) thought that the doubts of the United Kingdom representative might be resolved by the fact that any Government would be free to held that any individual was not a bona fide refugee, in which case none of the provisions of the convention would apply to him.

Article 25, as amended, was adopted.

36. Mr. CUVELIER (Belgium) remarked that, if the Committee was prepared to give it favourable consideration, he would propose at the next meeting the text of an additional article permitting refugees to take their funds with them when leaving one country of reception for another, and to transfer funds from their country of reception.

The Committee agreed to consider such an article.

Article 26 and 27

37. The CHAIRMAN called upon the Committee to examine articles 26 and 27 of the Secretariat draft, dealing with the co-operation with the High Commissioner for Refugees, and articles 21 and 22 of the French proposal (E/AC.32/L.3), which covered the same ground.

38. Sir Leslie BRASS (United Kingdom) expressed a preference for the text suggested by the French delegation in its article 21.

39. Mr. ROBINSON (Israel) was not sure it would be proper for the Committee to adopt the text of article 21, inasmuch as by providing that he should receive information on the implementation of the Convention, it ascribed to the High Commissioner for Refugees greater powers than those granted to him by General Assembly resolution 319 A (IV). It might be preferable not to go beyond that resolution until the Economic and Social Council and the General Assembly had dealt further with the matter and had definitely established the High Commissioner's terms of reference.

40. Mr. WEIS (International Refugee Organization) replied that the annex to the resolution to which the Israel representative has referred already authorized the High Commissioner to supervise the application of the provisions of conventions providing for the protection of refugees, concluded under his auspices.

41. The CHAIRMAN felt that the Committee was free to adopt the text if it wished, since the General Assembly would in any case review the draft convention and would consider the article in question in the light of the decision which by then it would have taken on the High Commissioner's terms of reference.

42. Mr. LARSEN (Denmark) suggested that, since the convention might be expected to outlive the temporary office of High Commissioner, it might be advisable to re-draft articles 21 and 22 of the French proposal so that reference would be made throughout to United Nations agencies charged with the international protection of refugees rather than to the High Commissioner as such.

That suggestion was accepted.

43. Mr. PEREZ PEROZO (Venezuela) said that he had the same objection to the words "to designate a national authority" in article 22 of the French proposal that he had had to a similar phrase in article 23 of the Secretariat draft; signatory States should not be obliged to establish a new and special authority for the purposes outlined in the article.

44. He thought, furthermore, that articles 21 and 22 of the French proposal might be combined into a single article, as they were both directed to the same end.

45. The CHAIRMAN remarked that paragraph (b) of article 22 appeared superfluous.

46. Mr. ORDONNEAU (France) did not insist on its retention, as signatory States would in any case find themselves obliged to maintain constant relations with authorities dealing with refugees in other countries, as that paragraph recommended.

Paragraph (b) of article 22 of the French proposal was deleted.

47. After a brief discussion, the CHAIRMAN suggested that the Secretariat might be asked to re-draft articles 21 and 22 of the French proposal, combining them into a single article as proposed by the Venezuelan representative and meeting the latter's objection by some such form of words as "designate the authority which shall" perform the functions outlined. That would make it clear that those functions could, if desired, be entrusted to some authority already in existence. The Danish representative's suggestion concerning reference to Untied Nations agencies, rather than to the High Commissioner as such, had, of course, already been accepted.

It was so agreed.

Article 28

48. The CHAIRMAN read article 28 of the Secretariat draft and the accompanying comments.

49. Mr. ORDONNEAU (France) remarked that article 23 of the French proposal, which dealt with the same subject, differed from article 28 only in that it suggested that signatory States should make every effort to expedite naturalization proceedings in the case of refugees.

50. The CHAIRMAN stated that the article would be discussed at the following meeting.

The meeting rose at 1 p.m.