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

A/CONF.2/SR.20

Present:

CONSIDERATION OF THE DRAFT CONVENTION ON THE STATUS OF REFUGEES (item 5(a) of the agenda) (A/CONF.2/1 and Corr.1, A/CONF.2/5 and Corr.l) (continued)

Article 1 - Definition of the term "refugee" (A/CONF.2/9, A/CONF.2/13, A/CONF.2/16, A/CONF.2/17, A/CONF.2/27, A/CONF.2/73, A/CONF.2/74, A/CONF.2/75, A/CONF.2/76) (continued)

The PRESIDENT invited the Conference to continue its consideration of article 1.

Mr. BELL (Friends' World Committee for Consultation), speaking at the invitation of the PRESIDENT, said that his Committee had already submitted a statement (A/CONF.2/NGO/7) in which it had asked the Conference to consider the elimination of the date line, namely, January 1951, from sub-paragraph (2) of paragraph A of article l of the draft Convention. In the light of the discussion at the preceding meeting, such a request would seem to be the apotheosis of unrealistic idealism. However, in the experience of his Committee there were considerable sections of public opinion which would wish governments, including their own, to take certain risks with the object of solving, both at present and in the future, the world-wide problem of refugees.

Some governments might regard such a view as unduly sentimental, and one which failed to take into account the possible consequences of such a liberal approach to the matter. There were, of course, uninformed elements of the public, but there was also a large body of people who could not be described as irresponsible, whose misgivings about the effectiveness of the Convention might be summarized in the form of the following questions.

Who was to interpret whether "events occurring before January 1951" had been responsible for turning a person into a refugee, thus rendering him eligible for protection under the Convention? What would be the person of a person subjected to persecution who was at the present moment leaving his country? Would such movement be the result of events occurring before January 1951 or not? If the answer was given in the negative, either at present or in the future, a new group of under-privileged and unprotected refugees would be created. The very persons who had had the moral fortitude to resist the idea of flight so far, might find themselves penalized because they had not left their country earlier. It had been suggested that if such a group were to come into being, States Members of the United Nations could take the necessary steps to deal with the problem as and when it arose. But surely it would be an ever-present one. Moreover, it was doubtful whether existing international instruments could be amended swiftly enough to meet pressing human needs. Was not the political and economic risk of the continuous appearance of such groups, until such time as provision could be made for them through the United Nations, as great as the political and economic risks of accepting the obligation to set about re-integrating them into society immediately and completing the task as quickly as possible? It was to be hoped that governments would endeavour to meet the needs of normal refugees, despite the certainty that there would be among them certain undesirable elements who might cause trouble.

In conclusion, he re-affirmed that many well informed people and organizations, including those which had first-hand experience of the problem, were in favour of governments taking a whole series of calculated risks. His Committee shared that view, believing as it did that such action would further rather than hinder the development of a stable world order.

Miss SENDER (International Confederation of Free Trade Unions), speaking at the invitation of the PRESIDENT, said that if the fight for freedom was to be encouraged and the flame of liberty to continue to burn undimmed in democratic countries, the Conference must not allow the citizens of totalitarian countries to feel that they were being abandoned and isolated. Steps should be taken to prevent such persons from sinking into resignation, apathy and submission. Citizens of the free world, moreover, had no right to appeal to those in subjection to react if they ignored the reprisals which might well be taken against individuals. She understood the hesitation of governments, particularly those which intended to discharge them in all sincerity, to assume commitments, but the danger must at all costs be avoided of creating the impression that the democracies could do nothing to help the victims of totalitarianism. For once that belief took root, the free countries of the world would lose the support of the enslaved peoples.

Certain representatives had argued that it was impossible to deal with the problem of refugees on a comprehensive basis. But surely the Universal Declaration of Human Rights and the draft First International Covenant on Human Rights were of far wider scope than the proposed convention? The United States representative had countered the arguments of the advocates of a liberal approach by maintaining that further steps could be taken to protect persons who fell outside the scope of the Convention as and when the need for doing so arose. But it must be recognized that it often took a very long time to introduce supplementary legislation, which was not infrequently passed too late to meet urgent needs. It would be both illogical and inhuman to restrict protection to the victims of past persecution. The time had come for governments to assume their responsibilities unreservedly with courage and determination.

Mr. HERMENT (Belgium) said that the Conference was faced with a question of crucial importance, namely, the scope of the draft Convention, concerning which there were two schools of thought: one held that the Convention was a general instrument which should be applicable to all refugees irrespective of their country of origin; the other maintained that it was of limited scope and should apply only to refugees from European countries. The French representative had expressed his disappointment at the absence from the Conference of representatives of certain countries, and had indicated that the French Government was not disposed to assume obligations towards countries which did not intend to reciprocate. Was it not, however, a matter of obligations assumed by States vis-à-vis refugees, rather than one of commitments and obligations between States?

The draft Convention made no mention of what was known as the right of asylum. It did not obligate States to admit all refugees, and in no way modified the existing principles governing immigration. It was only intended to assure to refugees minimum rights and guarantees, which in most cases moreover, the governments of the countries in which they lived already extended to them independently of any convention. The question whether the events which had obliged a person to become a refugee had occurred in Europe, Asia or Africa was irrelevant. The matter should be considered without regard to the past or to any national prejudice.

Similarly, it was of no importance to know how many refugees would benefit from the provisions of the Convention, since the latter did not lay upon Contracting States any obligation as to the number of refugees they should admit.

The French representative had caused him some anxiety by his statement that only if the words "in Europe" were re-instated in the definition would the French Government be able to consider signing the Convention. So, even if those words were reinstated, there would still, according to the French representative, be no certainty that France would sign the Convention. He (Mr. Herment) found it extremely hard to believe that the French Republic would decline to play its part in a humanitarian act of that nature.

The Conference had been convened to accomplish a noble purpose, and to extend the application of the Convention to all possible refugees would surely be in harmony with that purpose. It was regrettable that the Conference had on occasions adopted an attitude of self-defence vis-à-vis refugees. The text to be adopted should be consonant with the scale and importance of the task in hand, and that would hardly be achieved by the adoption of the French amendment to article l.

MOSTAFA Bey (Egypt) wished first to express his express his appreciation of the admirable work done by the Friends' World Committee for Consultation on behalf of the Arab refugees from Palestine. He must associate himself with the suggestions made by the representative of that organization.

It would seem necessary to elucidate two problems which, although they appeared to be independent of one another, were linked by a relation of cause and effect, since they were concerned with the scope of the Convention.

The French representative had rightly recalled that the Arab refugees from Palestine had been excluded from the mandate of the High Commissioner for Refugees as a result of the action taken by the delegations of the Arab States at the fifth session of the General Assembly. It was on advice from Egypt that that action had been initiated. No parallel could, however, be drawn between the problem of refugees in general and that of refugees from Palestine. The former was the result of national phenomena peculiar to each country, such as racial, political or religious persecution. It was not, therefore, legally speaking, a problem which concerned the United Nations, but the United Nations had nevertheless taken an interest in it for humanitarian reasons. The problem of the Arab refugees from Palestine, on the other hand, had actually arisen out of action taken by the United Nations, the various agencies and organs of which had been giving them protection and assistance since 1984. It was for that reason that the delegations to the General Assembly of the Arab States had requested and secured the temporary exclusion of the Palestine refugees from the mandate of the High Commissioner. It was only right and proper that, as soon as the Palestine problem had been settled and the refugees no longer enjoyed United Nations assistance and protection, they should be entitled to the benefits of the Convention on the Status of Refugees, and it was for that reason that the Egyptian delegation had submitted its amendment (A/CONF.2/13) to article 1 of the draft Convention.

Speaking on the definition of the term "refugee", the French representative had stated that France could not sign a blank cheque and assume unlimited and indefinite commitments in respect of all refugees. But the Conference's task was not to broaden the obligations undertaken by the various countries, but to confer legal status on refugees already within the territories of Contracting States. If the principle of international solidarity was to be respected, the scope of the Convention must be extended to include all refugees irrespective of their origin. The Conference had received its terms of reference from the General Assembly, which had delimited the scope of its activity in resolution 429 (v); it was now too late to restrict that scope.

Mr. ROCHEFORT (France) protested against any interpretation capable of casting doubt upon his instructions from the French Government. France's attitude, which, incidentally, was similar to that of the United States of America, did not seem so morally embarrassing as the Belgian representative believed. Whether France acceded to the Convention or not, the French authorities had no intention of closing France's frontiers to refugees. France would continue to pursue the generous and sympathetic policy she had always adopted towards refugees.

He failed to understand completely the importance that was being attached to the date of 1 January 1951, since, according to the interpretation which certain countries had placed on the draft Convention, there was nothing in its text capable of affecting the admission of refugees to the territories of Contracting States. Those who became refugees as a result of events occurring after l January 1951 would be just as much within the competence of the Office of the High Commissioner for Refugees, since the latter's mandate contained no limitation as to date. It would be his duty to ensure that the largest possible number of refugees not protected by previous Conventions benefited from the Convention at present under consideration by the Conference.

He would point out that the problem to which the Belgian representative had referred arose not only out of the French amendment, but also out of the position taken by the delegations of the United Kingdom and Egypt. It was interesting to consult the 1933 Convention relating to the International Status of Refugees on that point. It might be supposed that the fact that only a small number of countries had become parties to that Convention had been due to the text being too limitative so far as the definition of the term "refugees" and the rights granted to them were concerned. But the definition in the 1933 Convention was not a general one, since it covered only Russian, Armenian and assimilated refugees, and it might therefore have been supposed that it would not have been the subject of reservations. However, one government which had signed, but not ratified, the Convention had entered reservations in respect of the definition and of the date, which, in spite of the fact that it was not mentioned in the text of the Convention, could be considered to form an element in certain reservations. The United Kingdom had ratified the Convention subject to certain reservations. Belgium had signed the Convention subject to reservations in respect of article 14. On the other hand, France had been blamed for interpreting the idea of public order too widely. But that idea had been considered too restricted by the United Kingdom Government, since it had made reservations in respect of article 3 (of the 1933 Convention).

What France wanted was the adoption, signature and ratification, with the minimum of reservations, of the Convention before the Conference. It was pointless to adopt an apparently generous text, if such generosity was vitiated by reservations and a limited number of accessions.

Certain countries wanted a broader definition of the term "refugee". But had not a blow already been struck against that principle by the exception which had been made in favour of the Arab refugees from Palestine and also by the Latin American countries, which were already granting the right of asylum very liberally, and which would be all the more ready to sign a Convention concerning European refugees if they were not obliged to enter into new commitments in respect of their neighbours?

The Convention on the Status of Refugees must not be allowed to join the earlier conventions in the purple shroud for dead letters. The text of the Convention should be realistic, and founded on the positions of the countries in which the refugee problem was a real one.

No country was more eager than France that a convention protecting the rights of refugees should be drawn up, and that it should provide them with effective and real protection. He had therefore been astonished to hear France accused of egoism.

An exchange took place at this point between Mr. ROCHEFORT (France) and Mr. HERMENT (Belgium). They agreed, with the PRESIDENT's consent, that it should not be reported in the summary record of the meeting.

Mr. Al PACHACHI (Iraq) wished to associate himself unreservedly with the Egyptian representative's observations. He also congratulated the Belgian representative on his eloquent statement.

He had been given to understand that the Convention was to apply to all refugees without distinction, and he had therefore been both surprised and embarrassed to hear certain delegations assert that it should apply only to European refugees. He understood the position of the French representative, which was based on the understandable desire to avoid signing a blank cheque on behalf of the French Government, and which was at the same time intended as a reproof to countries, some of them outside Europe, which had not thought it worth while to attend the Conference. Although some absent countries might be indifferent to the refugee problem, Iraq was extremely interested in it, and was desirous of seeing a Convention emerge from its deliberations which would apply to all refugees.

He suggested that the French representative might content himself with entering a reservation to article l in the sense of his amendment.

The PRESIDENT expressed the hope that all representatives would agree that the Chair had endeavoured to see that the discussions proceeded amicably, and was convinced that all would continue to support him in that endeavour. Everyone present was well aware of the traditions and benevolence of other countries in the matter of refugees, and he was convinced that no one wished to cast doubts on the humanitarian intentions of any country represented at the Conference.

Speaking as the representative of Denmark, he could say that the country that had just been named enjoyed a very high reputation in Denmark in connexion with the problem that the Conference had been convened to solve.

He therefore hoped that all present would avoid any unfriendly reference to other countries, so that when he took leave of the present Conference the happy memories he cherished of the work of the Ad hoc Committee would be unimpaired.

Mr. FRITZER (Austria) said that, although certain clauses in the Convention might be unacceptable, or barely acceptable, to large States, its wording was on the whole quite acceptable to smaller countries like Austria.

He was not in complete sympathy with the French amendment, because it would impair the position of refugees. But he would probably vote for it, as he was convinced that France would accede to the Convention, and also because he would like to ensure that the Convention was signed by the greatest possible number of States.

The representatives who had spoken on article l at the preceding meeting had made basic observations on the entire Convention. He recalled that he had announced at the second meeting that the Austrian Federal Government intended to sign the Convention. Nothing that had occurred in the discussions since then had caused the Austrian Government to change its position.

He was in general agreement with the definition of the term "refugee" as set forth in article l, with the exception of sub-paragraph (3) of paragraph B which provided that the terms of the Convention should cease to apply to any person falling under the terms of paragraph A if he had acquired a new nationality and enjoyed the protection of the country of his new nationality. That provision was logical and understandable, inasmuch as the Convention aimed at granting refugees rights as similar as possible to those enjoyed by nationals. But he was opposed to it, because it would deprive naturalized refugees of rights which they had enjoyed before naturalization.

According to article 6 of the draft Covenant, a refugee who had been forcibly displaced during the second would war would enjoy certain important advantages, because the period of enforced sojourn in the territory of a Contracting State was to be considered as lawful residence within that territory and, if he had been forcibly displaced from the territory of a Contracting State and had subsequently returned there, his period of residence before and after displacement was to be regarded as one uninterrupted period. It was possible that a country suffering from a housing shortage might lay down a condition that all applicants for houses must have resided for at least five years in its territory. Under sub-paragraph B (3) in its original form, a naturalized refugee would thus lose part of his qualifying period of residence. Again, on naturalization a refugee would be deprived of the documents referred to in article 20. Generally speaking, naturalized refugees would be debarred from benefiting from the international measures of assistance provided for by the Convention.

He therefore requested the Conference, and particularly the High Commissioner for Refugees, to support his amendment (A/CONF.2/17), which corresponded to the heartfelt desire of tens of thousands of refugees who felt that, if the original wording of sub-paragraph B (3) of article l was retained, they would lose many advantages they had formerly enjoyed.

Mr. SCHÜRCH (Switzerland) pointed out that Switzerland, not being a Member of the United Nations, had not taken part in the discussions on the definition of the term "refugee" in the Ad hoc Committee and the General Assembly. He would therefore like to explain the attitude of the Swiss Federal Government on the question.

The Swiss Federal Government regarded as refugees all aliens whose lives were in danger for political reasons, and who, to escape that danger, were compelled to seek refuge in Switzerland. Switzerland had also shown concern for the other categories of refugees. His country had joined the International Refugee Organization (IRO) and had subscribed to the definition of "refugee" as set forth in IRO's Mandate. Furthermore, Switzerland had repeatedly expressed its concern about the fate of the refugees not covered by IRO's Mandate, and had assisted them on numerous occasions. For example, the Federal chambers had decided to place considerable sums at the disposal of refugee relief agencies operating in Austria and Germany. The broad sense in which Switzerland had conceived the definition of the term "refugee" made it impossible for it to support at the present juncture an amendment which sought to narrow that definition. Nevertheless, Switzerland fully appreciated the considerations which were causing concern to France, whose liberal attitude towards refugees was well known. The Swiss view was that it might be possible to meet the views of France and those other countries which took a similar line, without actually amending the text of article l, by allowing Contracting States to enter reservations in respect of that article. Despite the hesitancy with which certain delegations might view that proposal, it would be less disadvantageous to adopt such a procedure than to discourage countries from signing and ratifying the Convention, or subsequently acceding to it, by retaining the present text of sub-paragraph A (2) of article 1. Switzerland, for its part, was not called upon to enter any reservations on the lines referred to, and his proposal was solely inspired by a desire to affect conciliation.

The PRESIDENT felt that the Swiss representative's suggestion showed the way to a solution of the very difficult problem under discussion. Although it would be premature to press the matter to an immediate decision, it would be profitable to give the Swiss suggestion every consideration.

According to paragraph l of article 36 of the draft Convention, Contracting States might, at the time of signature, ratification or accession, enter reservations to articles of the Convention other than articles 1, 3, 11 (1), 28 and Chapters VI and VII; but that text was not sacrosanct and, indeed, had not even been discussed or voted on yet. As a method of solving the present difficulty, that article might be amended to enable signatories to consider entering an appropriate reservation instead of pressing for the insertion of the words "in Europe" in sub-paragraph A (2) of article l.

The difficulty was that a refugee living in a given country which applied the broad definition of sub-paragraph A (2) might be refused admittance to another country, which had adopted the narrower definition, on the grounds that his refugee status had been created by events occurring outside Europe.

He himself was not very much concerned about the fact that certain States were absent from the Conference. Some of them might have refrained from attending because they did not intend to sign any instrument of the type contemplated; others might be absent because they felt that all aspects of the problem would be fully presented there - in other words, they might be awaiting the outcome. It should also be remembered that certain earlier Conventions on refugees had been acceded to years after they had been completed; some of them had even been acceded to by States not represented at the drafting conference. To quote an example, the Danish Government might have decided to save money by not sending a delegation, with the intention of accepting what the Norwegian or Swedish delegations agreed to. The same might be true of certain Latin American countries, the position of which might be very similar to that of Brazil and Venezuela. The Conference should not restrict its attention to what was universally acceptable at the moment, and he requested delegations to seek a compromise solution in that spirit.

He added that there was nothing to prevent a State from granting greater benefits to a refugee than those provided for in the Convention; nor would any State be debarred from aiding refugees who were technically outside the scope of the Convention.

Mr. CHANCE (Canada) said that he, too, was extremely anxious that a compromise should be achieved along the lines suggested by the Swiss representative. Throughout the discussions in the Ad hoc Committee and elsewhere, the Canadian delegation had taken the broad view. He would therefore be sorry if the Conference resulted in the drafting of an instrument which limited the scope of the draft Convention as it had presented to the Conference.

There appeared to be an impression in some quarters that none of the countries of the New World had any intention of signing the Convention. He recalled that he had in all frankness explained the difficulties which the Canadian Government saw in the text of the draft Convention as it stood in document A/CONF.2/1. Since the Conference had opened there had opened there had been many changes, and the Canadian Government was prepared to reconsider its position with regard to accession in the light of the instrument which finally emerged. In that respect he wondered whether the position of his delegation was much different from that of, perhaps, a number of others.

MOSTAFA Bey (Egypt) said that the Egyptian delegation had no objection in principle to the compromise solution suggested by the Swiss representative. He was nevertheless extremely sceptical about the legal value of the instrument, because, although allowance was made in the practice of international law for reservations to be entered at the time of signing treaties and agreements, the possibility of making such reservations at the time of accession to them was generally ignored. If States were allowed to make reservations when they accede to the Convention, perhaps years after it had been drafted, the other Contracting Parties would be committed to accepting in advance reservations of which they knew nothing. He wondered whether a legal expert in the Secretariat could clarify the situation.

The PRESIDENT said that the Secretariat would provide the clarification requested in due course.

He drew the attention of the Egyptian representative to two earlier international instruments relating to refugees. According to article 22 of the Convention relating to the International Status of Refugees, signed at Geneva on 28 October 1933:

"Any Contracting Party may declare, at the time of signature, ratification or accession, that in accepting the present Convention, it is not assuming any obligation.....".

Again, in article 25 of the Convention concerning the Status of Refugees coming from Germany, signed at Geneva on 10 February 1938, it was specified that:

"The High Contracting Parties shall, at the time of signature, ratification, accession or declaration under paragraph 2 of Article 24, indicate whether their signature, ratification, accession or declaration applies to the whole of the provisions...".

It was therefore the duty and privilege of those who drafted and adopted the Convention to make provision for whatever reservations they deemed advisable. He hoped that the Conference would not be unduly influenced by what other meetings had done; the Conference was complete master of its own actions. It might, for example, be useful to state in the Convention that Contracting States would be entitled, at the time of signature, ratification or accession, to include a reservation to the effect that, so far as they were concerned, article 1, sub-paragraph A (2), referred only to events occurring in Europe.

The meeting rose at 6 p.m.