Refugees and Stateless Persons: Report of the Secretary-General

A/C.3/527

INTRODUCTION

1. The present report is submitted by the Secretary-General in compliance with the Economic and Social Council Resolution 248 (IX) A dated 6 August 1949 which reads as follows:

"The Economic and Social Council.

Recalling the resolution of 12 February 1946 in which the General Assembly proclaimed that the problem of refugees and displaced persons was international in scope and nature,¹

Having taken cognizance of the report of the Secretary-General² and of the communication from the General Council of the International Refugee Organization, dated 11 July 1949,³

Considering 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.

Considering that at that time there will still be a considerable number of refugees many of whom will not be capable of being rapidly absorbed into the national communities of the countries where they are living, and that this number may possibly be increased by other refugees in a similar position.

Noting the conclusions submitted by the General Council of the IRO in section 5 of its aforementioned communication,

Requests the Governments which are Members of the United Nations, and all the 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;

Requests the Secretary-General, in consultation with the Advisory Committee on Administrative and Budgetary Questions, to prepare for the consideration of the fourth session of the General Assembly a plan for such organization within the framework of the United Nations as may be required to enable the United Nations to discharge the function of international protection of refugees, and related functions, taking into account the following alternative:

(a) The establishment of a high commissioner's office under the control of the United Nations;

(b) The establishment of a service within the United Nations Secretariat;

Further requests the Secretary-General, in consultation with the Advisory Committee on Administrative and Budgetary Questions, to transmit with such plan of organization a proposal with respect to the nature and extent of the legal protection functions to be performed, taking into consideration the experience of the League of Nations, the Inter-Governmental Committee on Refugees and the IRO, the various provisions of national legislation relating to refugees, the special problems in occupied areas, and the observations made by Governments during the current session of the Council.⁴ This proposal might also include the following:

(a) The methods by which States not members of the United Nations may be brought into association with the work of the United Nations for refugees and stateless persons;

(b) The administration of any assistance funds which the General Assembly might put at the disposal of the United Nations for the benefit of certain classes of refugees;

(c) Reporting at stated intervals to the Council and the General Assembly concerning the effectiveness of existing international measures for the legal protection of refugees and such further international action as may be necessary;

Recommends that the General Assembly at its fourth session:

(a) Decide the functions and organizational arrangements within the framework of the United nations necessary for the international protection of refugees after the IRO terminates its activities; and

(b) Make the budgetary provision for the financial year 1950 necessary for the assumption of such functions."

2. It will be recalled that the Economic and Social Council at its sixth session had adopted a resolution⁵ relating to stateless persons, which requested the Secretary-General, in consultation with interested commissions and specialized agencies: (a) to undertake a study of the existing situation in regard to the protection of stateless persons by the issuance of necessary documents and other measures, and to make recommendations to an early session of the Council on the interim measures which might be taken by the United Nations to further this object; (b) to undertake a study of national legislation and international agreements and conventions relevant to statelessness, and to submit recommendations to the Council as to the desirability of concluding a further convention on this subject.

3. In accordance with this resolution, the Secretary-General presented a study⁶ to the Council, which was examined by the Council at its ninth session. The Council had also before it a communication⁷ from the General Council of the IRO, dated 11 July 1949, calling attention to the fact that the IRO contemplated termination of its activities on 30 June 1950 and suggesting that the Economic and Social Council examine the problem of future international action on behalf of refugees in the light of the above.

4. After a thorough discussion of the problem, the Council adopted Resolution 248 (IX) A and B, on 6 and 8 August 1949, respectively. Resolution A, reproduced in paragraph 1 above, forms the basis of the present report. Resolution B appoints an ad hoc Committee, consisting of representatives of thirteen Governments, to consider the desirability of preparing a revised and consolidated convention relating to the international status of refugees and stateless persons and, if they consider such a course desirable, draft the text of such a convention; and to consider means of eliminating the problem of statelessness, including the desirability of requesting the International Law Commission to prepare a study and make recommendations on this subject.

5. In presenting this report the Secretary-General has followed closely the terms of reference of Resolution 248 (IX) A, and the report thus deals mainly with the organization for " international protection and related functions" and with " the nature and extent of legal protection functions". It does, however, also treat of the particular points mentioned in the resolution such as the role of non-member States and the administration of any assistance fund which the General Assembly might put at the disposal of the United Nations. The important question of material assistance has not been dealt with in a substantial way since this was not requested by the Council's resolution. The question can in fact only be considered on the basis of the IRO plans and the arrangements made for the benefit of needy refugees at present within its mandate. The communication of the General Council of the IRO in regard to this problem is being circulated separately⁸.

6. By the same communication the Secretary-General has been informed of a recommendation of the General Council of the IRO on 20 October 1949 to the Member Governments of the IRO that operations be continued for an additional period of nine months, i. e. to 31 March 1951. The General Council asks the General Assembly " to take decisions of principle forthwith and to make preparations for the establishment of the machinery which should come into force at a date no later than 1 January 1951". The Secretary-General has refrained from making fully detailed recommendations regarding the organizations of the future service in the present report, believing that such proposals could more appropriately be made after the decisions of principle have been taken by the General Assembly.

7. In accordance with the Council resolution, the Secretary-General submitted this Report to the Advisory Committee on Administrative and Budgetary Questions. The Committee did not comment but suggested that the report be circulated, the Committee reserving its right to make comments at a later time.

CHAPTER
I DEFINITION OF THE TERM "REFUGEE" AND SCOPE OF THE PROBLEM

Definition of the term "refugee"

8. Before considering the nature and extent of the international protection functions and the plan of organization it is necessary to determine the categories of persons who would fall within the mandate of the proposed service.

9. Resolution 248 (IX) A of the Economic and Social Council does not explicitly define the class of refugees who are to be the concern of the proposed legal protection service. Nevertheless it appears clear from a reading of the resolution as a whole⁹ that the Council used the term "refugees" in the sense in which that term has been defined in the Constitution of the IRO. Accordingly, the Secretary-General does not believe that he is called upon to propose a new definition or modifications of the existing IRO definitions. It will indeed be recalled that the question of defining the refugees entitled to assistance is a complex one and that the mandate of the IRO was developed by the General Assembly only after considerable discussion in several committees of the Assembly and of the Economic and Social Council.

10. The proposed protection service would therefore concern itself with those refugees who are within the scope of the IRO, in accordance with Annex I of the IRO Constitution.¹⁰ In general, it may be noted that the term "refugee" is broadly defined in the Constitution of the IRO. It applies to a person outside of his country of nationality or of former habitual residence (whether he has retained his nationality or is de jure stateless) who belongs to any of several specified categories commonly recognized as having a refugee status.¹¹ The term "refugee" also applies to a person outside his country of nationality or former habitual residence who as a result of events subsequent to the outbreak of the Second World War is unable or unwilling to avail himself of the protection of the Governments of his country of nationality or (in the case of stateless persons) of former nationality.¹²

11. While these classes of refugees are broadly described they are qualified by certain important conditions which must be met before a refugee in one of these classes becomes eligible for assistance. In particular, the refugee must express valid objections to repatriation, the Constitution itself indicating what shall be considered as valid objections.¹³ Likewise the refugee must not fall within any groups barred from assistance: he would, for instance, cease to be the concern of the Organization on acquiring a new nationality or becoming otherwise firmly established; nor could he become the concern of the Organization if the intends to settle in other countries for purely economic reasons. Several other classes of persons are expressly excluded, for example, war criminals and traitors, and persons who since the end of hostilities have participated in an organization to overthrew by armed force a Member of the United Nations, or who have become leaders of movements hostile to a Member of the United Nations or sponsors of movements encouraging refugees not to return to their country of origin.¹⁴

12. It should be noted that the definitions of refugees under the Constitution of the IRO necessarily require individual decisions as to the eligibility of each applicant, decisions which must be based in substantial part upon factors in the attitude of the individual himself. As a result the IRO has been required to develop somewhat elaborate machinery to determine whether applicants for assistance come within the constitutional definitions of refugees.¹⁵ Whether or not such individual decisions should be made by the proposed international office of left to national authorities should be considered by the General Assembly in connexion with the proposed functions.¹⁶

13. In conclusion, it must be borne in mind that the protection accorded to refugees by the international service will apply both to refugees granted a conventional status and to those who are not.

Scope of the problem

14. While the new service would concern itself with those refugees who come within the mandate of the IRO constitution, it does not follow that statistically the numbers of persons to be benefited will be the same as those assisted by the IRO. There are several reasons for this. In the first place, the main tasks of IRO have been repatriation, resettlement, care and maintenance; legal and political protection has on the whole been a secondary task, which has been performed largely within the framework of material assistance. It is obvious that a great many persons who have been receiving IRO material assistance will not require legal protection in the future. In most cases, these persons will have re-established themselves and acquired a new nationality in the countries of resettlement; and even those who remain behind will, in many cases, receive adequate protection in the territory of their residence.

15. On the other hand, there are refugees throughout the world who have never received material assistance from the IRO, but to whom the IRO would be entitled to accord legal protection under the terms of its constitution. Such legal protection has never been extended, mainly because the IRO has been preoccupied with its major tasks, and because it has operated primarily within the context of the refugee and displaced person problem in Europe. One must anticipate that if the United Nations assumed the function of legal protection on the basis of the broad definition of the IRO constitution, requests for such assistance will be received from individual refugees scattered throughout the world who have not previously requested IRO aid.

16. In view of these considerations, it is quite impossible to furnish any precise statistical information regarding the numbers of refugees who would be the concern of the proposed protection service.¹⁷

17. While, according to resolution 248 (IX) A of the Council, the legal protection functions will be exercised on behalf of refugees, irrespective of whether they have a nationality or are stateless, the General Assembly may wish to consider that the service should also afford protection, under certain conditions to be defined, to persons who are de jure stateless without being refugees.

CHAPTER II
THE NATURE AND EXTENT OF INTERNATIONAL PROTECTION FUNCTIONS

A. Nature of Legal Protection

18. It is understood that the duty of protecting the refugees rests in the first instance upon the Governments of countries in the territory of which the refugees are located. The international protection is complementary to the protection afforded by Governments.

19. The international legal protection of refugees¹⁸ consists essentially of efforts on the part of an international service to ensure that refugees who do not have the protection of the Government of their countries of nationality or former habitual residence shall not be subject to legal and social disabilities arising from their peculiar status. In order to understand the nature of the problem which faces the General Assembly in this connexion, it has been thought desirable that some indication of the nature of these disabilities should be given at this point.

20. The refugee's disabilities arise from the fact that he neither possesses the ultimate possibility of returning to his own country, nor enjoys the protection of that country while away from it.

21. In the memorandum which it has submitted to the Council¹⁹, the IRO has summarized under three headings the disabilities usually encountered by the refugee, as they relate to (a) conditions of residence, (b) international travel and (c) legal status in the country of residence. The IRO statement on these points is as follows:

"Conditions of Residence:

9. Unless he is considered to be an immigrant who is authorized to settle in a country, a refugee is generally given temporary asylum with a short term residence permit which must be renewed at frequent intervals. The entry of refugees is often encouraged in a period of prosperity when there is a shortage of national labour, but in periods of unemployment it is often the refugee who is dismissed first, and such dismissal may lead to his expulsion from the country of asylum.

10. In some countries, the enjoyment of particular rights is dependent upon a residence permit which is valid for a prescribed period. Permits granted for a lesser period debar refugees from enjoyment of these rights.

11. The inferior position of the refugee reacts unfavourably upon his settlement and delays his assimilation in that he is not in a position to obtain from the consular authorities of his country of origin many documents which are necessary for various acts of civil life.

International Travel:

12. The refugee generally has no national passport. The authorities of the country which the refugee would wish to enter are reluctant to receive him because his identity is often not established, his legal status is uncertain, and his eventual departure will present serious difficulties because no other country is likely to be more willing to receive him and, furthermore, he is not able to return to his country of origin. There is, moreover, no state either able or willing to intervene to support his application for admission. Since he often cannot enter the territory of a state lawfully, the refugees does so clandestinely. A certain freedom of movement is essential if a refugee is to settle in a country in which he can be assimilated. The absence of any freedom of movement for refugees constitutes a serious obstacle to their even distribution over the world and is prejudicial to countries which, by their geographical position, are called upon to bear the brunt of an influx of refugees.

Legal Status of Refugees in Countries of Residence:

13. The inferior status of the refugee is illustrated in all his legal relationships. First of all his personal status which determines his legal capacity (age of obtaining majority, legal capacity of married women, etc.) his family rights (marriage, divorce, recognition and adoption of children, his rights of succession, is often in doubt. In order to contract a marriage a foreigner must usually produce a certificate which is obtained from his consul specifying the requirements of his personal status (age, parents' consent, degrees of relationship), and other civil registration documents (e.g. birth certificates, certificates of celibacy or widowhood), which are not usually available to the refugee.

14. The position of the refugee is generally inferior to that of a normal alien in respect of access to most trades and professions. In the case of nationals of other countries some restrictions are waived by virtue of treaties concluded on the basis of reciprocity. The refugee is not in a position to benefit from treaties of this kind.

15. In questions of relief, social security, family allowances, the refugee is usually at a disadvantage in that foreigners are generally assimilated to nationals in these matters by virtue of special treaties or general conventions which do not apply to stateless refugees.

16. A detailed statement analysing the special disabilities of refugees arising out of their statelessness in law or in fact is contained in United Nations document E/1112 (prepared by the Secretary-General of the United nations, in pursuance of Resolution No. 116 (VI D) of the Economic and Social Council, dated 1 March 1948). The Director-General wishes to draw the special attention of the General Council to title I, Chapters 1 and 2 of this study."

B. Specific Functions

22. Legal protection would consist in efforts to remove these and similar disabilities of refugees who do not enjoy the protection of their Governments of nationality or former habitual residence.

23. With this as an objective, the proposed service would exercise certain specific functions. A list and description of possible functions is given below, based on the activities previously undertaken by international organizations in this field. In presenting this list of functions the Secretary-General wishes to draw attention to the important distinction between the functions which on the one hand concern refugees as a class or large groups of refugees and those functions which, on the other hand, relate solely to action on behalf of individual refugees. The assumption of responsibility for individual cases by the United Nations would of course have substantial administrative consequences which will be treated separately, in Chapter III, below.

The following functions are proposed.²⁰

(a) To seek the wider application of existing and future conventions relating to the improvement of the status of refugees.²¹

24. The international service would in appropriate cases seek to obtain further ratifications and accessions to existing convention,²² and would also seek to extend the application of new conventions, including such revised and consolidated conventions as may result from the work of the ad hoc Committee set up under resolution 248 (IX) B of the Economic and Social Council.

(b) To consult with Governments with a view to facilitating the application of conventions*

This function is likewise envisaged in Article 1 of the Arrangement and of the Agreement of 30th June 1928.

Many instances of the lending of the IRO's good offices to Governments are to be found in the special Agreements concluded by the IRO.23

25. The international service would be empowered to consult with, and make suggestions to, Governments regarding the legislative and administrative measures which might appear necessary to secure the implementation of the provisions of international conventions in force at any given time.

(c) To negotiate and conclude agreements with individual governments*

(b) The Inter-Governmental Committee for Refugees (Para. "a" of the revised statutes of 1944) concluded certain special agreements, in particular with the Governments of Belgium on 13 February 1947, Bolivia on 1st April 1947, Brazil on 1st April 1947, Chile on 7 February 1947, Colombia on 15 March 1947, Ecuador on 21 April 1947, Netherlands, Peru on 3 March 1947, Venezuela on 17 February 1947. (See IRO/LEG/GOV/10).

These Agreements related to the resettlement of refugees

Nevertheless, some of them contained clauses relating to the functions of political and legal protection exercised by the Inter-Governmental Committee for Refugees and to the establishment of Delegations by it. (See Art. 8 of the Agreement with the Belgian Government, Art. VIII of the Agreement with the Netherlands Government, and the Agreement with Venezuela which accords the Delegate of the International Committee for Refugees the same status as that accorded to diplomatic representatives).

(c) The IRO Constitution contains special provisions relating to this function.

Article 2, para. 2 of the Constitution states that the Organization shall have power "e) to conduct negotiations and conclude agreements with countries able and willing to receive refugees and displaced persons for the purpose of ensuring the protection of their legitimate rights and interests in so far as this may be necessary".

Article 15 states: The relationship of the Organization with the Governments or administrations of countries in which displaced persons or refugees are located, and the conditions under which it sill operate in such countries, shall be determined by agreements to be negotiated by it with such Governments or administrations in accordance with the terms of this Constitution." (d) The IRO has concluded 20 special Agreements, with:

Some of these agreements extend to refugees coming within the mandate of the IRO some of the advantages accorded by the Convention of 28 October 1933 (Agreement with Brazil, art. 30; France (introduction of workers, art. 6; and Guyane, art. 7; Netherlands, para. 6 "a").

(e) It is to be noted that the agreements concluded by the IRO with Brazil, para. 40; France (Guyane) art. 12 and Luxembourg art. 11, provide that the rights accorded to refugees introduced by the IRO shall remain accorded to them after the dissolution of the Organization.

(f) These agreements recognize that it is the IRO's function to determine whether the refugee falls under its mandate ("determination of eligibility").

See agreements concerning:

Germany, United States Zone IV "e"

Germany, French Zone II, para. 2

Austria, United States Zone II, para. 5

Austria, British Zone, II, para. 2, and IV, para. 2

Austria, French Zone II, para. 2

Denmark, II "a"

France, (Installation of Delegation) para. 6

Italy, II para. 1 "b"

Netherlands , para. 2 "a"

Turkey, II, para. 524*

26. In some cases it would be desirable for the international service to make special arrangements with particular Governments granting certain rights to refugees. Such arrangements might be embodied in formal agreements. In connexion with some countries such action might, in effect, involve the succession of the new international service to the position previously occupied by the IRO with respect to the legal protection clauses of the agreements concluded by the IRO.

(d) To report upon the carrying out of conventions and agreements in force and to further their implementation²³

(b) This function was vested in 1938 in the new High Commissioner. Article 2 (b) of the Resolution Adopted by the League of Nations Assembly on 30 September 1938, at its XIXth Session (Special Supplement No. 183 of 1938, Annex 8) placed upon the High Commissioner the duty "to superintend the entry into force and the application of the legal status of refugees, as defined more particularly in the Conventions of 28 October 1933, and 10 February 1938".

(c) See also articles 2, para. 2 "J" and 4, para. 8 of the IRO Constitution together with the various agreements concluded by the IRO.

27. This function would involve obtaining information on legislative and administrative measures taken with a view to carrying out the conventions and agreements referred to above, under points (a), (b) and (c). The service would also be empowered to approach Governments to further the implementation of conventions and agreements, and to report upon observance of these conventions and agreements to the appropriate organs of the United Nations.

(e) To propose the conclusion of new conventions and modifications to existing conventions²⁴

(a) The Report adopted on 27 June 1921 by the league of Nations Council at its XIIIth Session concerning the creation of a High Commissioner's Office (Minutes of the 13th Session of the Council, Annex 224) stated that: "This High Commissioner's task would be to define the legal status of refugees..."

(b) By Resolution adopted on 30 September 1930, the Assembly of the League of Nations at its XIth Session (O. J. Special Supplement No. 84 of 1930) the Secretary-General was instructed "c) to provide, if necessary, for the revision of the present arrangements and agreements and for the conclusion of fresh arrangements and agreements."

(c) By Resolution adopted on 24 February 1936 by the Council of the League of Nations (O. J. No 2 of 1936, No. 3705) the High Commissioner for Refugees from Germany was instructed "a) to prepare and arrange, in agreement with the Secretary-General, for the meeting of an inter-Governmental conference with a view to arranging a system of legal protection for refugees coming from Germany."

The Assembly of the league of Nations at its XVIIth Session, adopted on 10 October 1936, a Resolution (Special Supplement No. 155, 1936, Annex 7) which states: "As regards the improvement of the legal status of refugees: to approach Governments in order to obtain their accession to the Provisional Arrangement of July 4th, 1936, and to prepare an Inter-governmental Conference for the adoption of an international convention on the status of these refugees."

(d) By the Resolution adopted on 30 September 1938 at its XIXth Session, the Assembly (Special Supplement No. 183 of 1938 Annex 8, page 137) placed upon the High Commissioner the duty "a) to provide for the political and legal protection of refugees, as entrusted to the regular organs of the league by paragraph 3 of the Assembly's decision of 30 September 1930" (see (b) above).

2. Practice

The task of promoting general agreements in favour of refugees has been effectively exercised by the different bodies entrusted with the international protection of refugees.

(a) Thus the Arrangements of 5 July 1922, 31 May 1924 and 12 May 1926 relating to the creation of the "Nansen' passport were due to the initiative of Dr. Nansen, High Commissioner of the League of Nations.

(b) The same applies to the Arrangements of 30 June 1928 relating to the legal status of Russian and Armenian refugees and to the extension to other categories of refugees of certain measures adopted in favour of Russian and Armenian refugees.

(c) The promotion of the Convention of 28 October 1933 was due to the Inter-Governmental Advisory Commission and to the International Nansen Office.

(d) The High Commissioner's Office for Refugees coming from Germany promoted the Provisional Arrangement of 4 July 1936 as well as the Convention of 10 February 1938.

(e) The Inter-Governmental Refugee Committee promoted the London Agreement of 15 October 1946 relating to the establishment of an identity and travel document.26

28. While the ad hoc Committee previously referred to is charged with the task of considering the desirability of preparing a revised and consolidated convention, there may be a need in the future for additional instruments and modifications of existing conventions. The proposals made in this regard by the service would be submitted to the Council.

(f) To make proposals to and maintain liaison with governments with a view to remedying the disabilities of refugees and to this end to lend its good offices to governments to facilitate the repatriation, emigration or re-settlement of refugees, or to make suggestions relating to their assimilation.

29. Apart from its functions in connection with the application of the specific terms of conventions and agreements, the service might also be empowered to make proposals to and maintain a general liaison with Governments, whether or not parties to these conventions and agreements, with a view to removing the disabilities of refugees referred to earlier in²⁵this chapter.

30. In certain cases it might be desirable, as one possible means to this end, for the service to lend its good offices to Governments to facilitate the repatriation, emigration or resettlement of refugees²⁶, or to make suggestions relating to their assimilation.

(g) To nominate representatives in interested countries, in agreement with the governments thereof²⁷

(b) Article 1 of the Arrangement of 30 June 1928 relating to the legal status of Russian and Armenian refugees contains the following clause: "It is recommended that the High Commissioner for Refugees shall, by appointing representatives in the greatest possible number of countries, render the following services, in so far as such services do not lie within the exclusive competence of the national authorities..." The following countries signed that Arrangement: Germany, Austria, Bulgaria, Estonia, Greece, Latvia, Poland, Roumania, Switzerland, Czechoslovakia and Yugoslavia. (Arrangement and Agreement of 30 June 1928, Publication of League of Nations XIII, Refugees 1930 XIII. 1.)

(c) Article 18 of the Statutes of the Nansen International Office is more explicit in this respect. It contains the following clause; "The Nansen International Office for Refugees may appoint representatives in countries belonging to the League of Nations, such representatives to be chosen in agreement with the Governments concerned." These representatives of this Office acted as agents for the Secretary-General of the League of Nations and fulfilled the quasi-consular functions enumerated in Article 1 of the Arrangement and of the Agreement of 30 June 1928, for the duration of the Nansen office, that is to 1938. According to the Annual Reports of the Administrative Council of the Nansen International Office to the Assembly of the League of Nations, the Office had representatives in the following 18 countries: Germany, Austria, Belgium, Bulgaria, China, Danzig, Esthonia, Finland, France, Greece, Latvia, Poland, Roumania, Switzerland, Syria, Czechoslovakia, Turkey and Yugoslavia. (Reports of the Administrative Council of the Nansen International Office to the Assembly of the League of Nations). (Doc. No. 24 of 16 August 1932; A. 19 of 30 August 1933; A. 12 of 20 august 1934; A. 22 of 29 August 1935; A.23 of 3 September 1936; A.21 of 20 August 1937 and A.21 of 10 August 1938). The total number of semi-consular services rendered by its representatives during the period from 1 July 1932 to 30 June 1939 amounts to 655.739 (Ibidem).

(d) France and Belgium concluded on 30 June 1928 the agreement relative to the functioning of the services of the High Commissioner for Refugees of the League of Nations. Article 1 of this agreement states: "Les Gouvernements qui ratifient le présent Accord admettront a l'exercice des attributions suivantes les Représentants nommés dans les conditions déterminées ci-aprés par le Haut Commissaire de la S. D. N. pour les Réfugiés...".

(e) When the new High Commissioner's Office was created in 1938, it maintained the greater part of these representatives. Paragraph 6 of the Resolution adopted by the Assembly on 30 September 1938 during its nineteenth session, states: "The High Commissioner shall consult the governments of the principal countries of refuge as to the need for appointing representatives therein. Should they agree, he may appoint to those countries representatives approved by them." (Special Supplement No. 183 of 1938, Annex 8, p. 137).

(f) This practice has been continued by the Inter-Governmental Committee for Refugees which had delegates in Belgium, The United States, France, Italy, the Middle East, Netherlands, Switzerland and Czechoslovakia. The seat of the Committee was in London.

(g) Article 15 of the Constitution of the IRO envisages the determination by agreements to be negotiated between the organization and governments of the conditions under which the organization will operate in the countries where refugees and displaced persons are located. Numerous agreements which the IRO has concluded with different governments contain clauses relative to the installation and functions of Delegations of the Organization.

(h) Special agreements concluded between the IRO and various governments contain clauses relative to the installation and functions of Delegations. Reference is made to the agreements concluded with Australia (para. 10): Germany, United States Zone (Art. III, par. 7); Germany, French Zone (Art II, par. 2); Austria, United States Zone (Art. I, par. 4); Austria, British Zone (Art. III, par. 5); Austria, French Zone (Art. II, par, 2); Brazil (par. 13); France, agreement relative to the installation to the Delegation; French Guiana (Art. VII. Par. 3); French Morocco; Guatemala (Art. 6); Italy (Art. IV and VII); Netherlands (par. 6 "A").

(i) At present the IRO is represented in different countries and in different parts of the world, either by offices, by representatives, or by benevolent organizations chosen for this purpose, as follows: East Africa: 1 delegation, 3 representatives; Germany: 4 delegations; (United States Zone, British Zone, French Zone international research service; and eight other offices); Argentina: 1 delegation; Australia and New Zealand: 1 Delegation, 2 offices: Austria: 1 delegation; Belgium: 1 delegation; Brazil: 1 delegation; Canada: 1 delegation, 1 office; Colombia: 1 representative; Denmark; 1 delegation; Egypt: 1 representative (for individual cases); Spain: the following benevolent organizations: American Joint Distribution Committee, and the American Relief Organizations; United States: 1 delegation; Far East: 2 delegations; France: 1 delegation; Guatemala: 1 delegation; Israel: 1 representative (for individual cases); Italy: 1 delegation, 3 offices; Lebanon: 1 delegation; Luxembourg: 1 delegation; Mexico: 1 delegation; Paraguay: 1 delegation; Netherlands: 1 delegation; Peru and Bolivia: 1 delegation; Philippines: 1 delegation, 1 office; Portugal: The three following benevolent organizations: American Joint Distribution Committee, National Catholic Welfare Conference, Unitarian Service Committee; United Kingdom: 1 delegation; Switzerland: 1 delegation; Czechoslovakia: 1 delegation; Turkey: 1 representative; Venezuela: 1 delegation.29

(h) To collaborate with public and private organizations in order to carry out the functions assigned to the international service²⁸

31. This would involve mainly the exchange of information, between the international service and the organizations signified in the heading, as to the needs of refugees and the specific areas where action on the part of these organizations might be helpful.

32. It would be understood that such collaboration would be maintained only with such organizations as share the purposes of the international service.

(i) To make a continuous survey of all aspects of the refugee problem, to prepare documentation and statistics on the position of refugees, and to bring to the attention of the appropriate bodies of the United Nations any future situations which appear to require urgent attention.

33. In addition to obtaining statistical and other information on the refugee problem,²⁹ the service would be empowered to draw attention to new emergency situations requiring international action without the need for specific authorization for such reporting in each particular instance.

(j) To issue certificates of identity and related documents to refugees or in lieu thereof to determine whether refugees are eligible to receive such documents from national authorities.

34. Under this heading the international service would render two types of service with respect to the issuance of documents to individual refugees First, the service would be authorized to issue directly to refugees documents certifying the identity and status of the refugee.³⁰

35. Secondly, the service would be authorized to determine whether individual refugees are within its mandate and therefore eligible to receive documents to be issued by the national authorities.³¹ This function has been exercised by the Intergovernmental Committee of Refugees and the IRO pursuant to the London Travel Agreement of 1946. Under this arrangement the IRO determinations of eligibility are the basis for the actual issuance of travel documents by the national Governments parties to the London Travel Agreement. It should, however, be noted that such determinations of eligibility have been made by the IRO in connexion with their major functions of rendering care and maintenance and other material assistance.

36. Both of the foregoing activities would require the proposed international service to decide in individual cases whether refugees fall within the categories which are to enjoy protection. In particular, attention is drawn to the fact that the service would then have responsibility for determining whether individual refugees have valid objections to returning to their countries of nationality or former habitual residence (see definition of refugee in IRO Constitution, Annex I, Part I. Section C, Par. 1).

(k) To act in the interests of individual refuges before national authorities.³²

(b) A particular type of intervention concerns the case where the refugee has interests to protect outside his country of residence. An international authority could in this case come to the aid of the refugee. In this way the representatives of the International Committee for Refugees and of the IRO have been called upon to take steps in favour of refugees in order to secure the unblocking or relief from sequestration of the their property situated in foreign countries.

(c) See also the previous two footnotes³⁴

37. Under this heading the new service would be empowered to act on behalf of individual refugees in order to protect their rights and interests under existing agreements or special arrangements. The IRO has indicated that its activity of this character has involved numerous interventions in particular cases. (See E/1392, pp. 15-20). It appears that such individual interventions have related to deportation and expulsion, naturalization, restitution and indemnification, the exercise of certain trades and professions, applications for admission to educational institutions and many other proceeding which appeared to require international protection for individual refugees.

38. Such individual interventions may be undertaken with the national authorities of the country where the refugee is living, with the consular authorities of the country to which the refugee wishes to go or with the authorities of a foreign country in which the refugee has interests.

C. Authority of the Economic and Social Council with regard to legal protection functions.

39. The General Assembly may wish to consider the possibility of authorizing the Council to instruct the service to assume additional functions in the field of the legal protection of refugees, or to undertake economic and social functions beyond those involved in legal protection.

D. The Question of Material Assistance.

40. At the ninth session of the Economic and Social Council, certain delegations called attention to the need for assuring material assistance for certain groups of refugees who would still be in need of care and maintenance in various IRO areas of operation after that Organization would have laid down its mandate. The number of such refugees, however, cannot at this time be estimated even approximately.

41. IRO document GC/109, dated 6 October 1949, submitted to the fourth session of the IRO General Council, estimates that on 30 June 1950, approximately 149,400 refugees eligible for aid under the Organization's Constitution, and having "limited opportunities for resettlement" will still be receiving care and maintenance. Of this number, about 100,000 would be in the British, French and United States Occupation Zones of Germany, the remainder in Austria, France, Italy, and other areas of IRO operations. The Director General of the IRO, in a statement to the opinion that of this number of approximately 149,400 refugees, about 20,000 would require institutional care of an indefinite duration, because of advanced age, poor health, chronic ailments, etc. In addition, there would be some 30,000 dependents of these institutional "hard core" cases.

CHAPTER III
ORGANIZATION AND FINANCIAL ARRANGEMENTS FOR THE INTERNATIONAL PROTECTION OF REFUGEES

42. Three particular organizational and administrative problems are referred to in Resolution 248 (IX) A of the Economic and Social Council as requiring special attention in the Secretary-General's report.

(a) The alternative forms for the discharging of the function of the international protection of refugees by the United Nations, viz. The establishment of a High Commissioner's Office under the control of the United Nations or the establishment of a service within the United Nations Secretariat;

(b) Methods by which States not Members of the United Nations may be brought into association with the work of the United Nations for refugees and stateless persons; and

(c) The administration of any assistance funds which the General Assembly might put at the disposal of the United Nations.

43. The Secretary-General has given full weight to the discussions held in the Economic and Social Council concerning these problems as well as to the experience of the League of Nations, the Inter-Governmental Committee on Refugees and the IRO in taking his own position with regard to each of these points.

44. It should be noted that the decisions made in regard to the definition of the protection functions, the question of material assistance, and the relations of the service to governmental and private activity will have a considerable bearing on the character and size of the organization required, the distribution of staff between headquarters and local offices, and the type of personnel to be appointed.

Forms of Organization

A. Office of a High Commissioner

45. The establishment by the General Assembly under Article 22 of the Charter of the Office of a High Commissioner would be based upon and would be following the practice and experience of the League of Nations from 1921 to 1946. The precedents set by the League of Nations in this regard are described in Appendix II to this report.

46. The High Commissioner should be made responsible to the United Nations through the General Assembly. He should report to the General Assembly through the Economic and Social Council, and should also report to the Council at such other times as the Council may request and should comply with its directives.

47. The Secretary-General would be prepared to appoint the High Commissioner if the General Assembly should so desire.

48. The High Commissioner for refugees under this plan would enjoy a special status within the United Nations. He would possess the degree of independence and the prestige which would seem to be required for the effective performance of his functions.

49. The responsibility and authority for programme decisions and actions should belong to the High Commissioner alone, within the directives which he receives from the General Assembly and from the Economic and Social Council the High Commissioner should, at the same time, remain in constant contact with the Secretary-General, keeping him informed of his activities and consulting him to the greatest possible extent.

50. Moreover, to avoid administrative and financial complications the High Commissioner should avail himself of all appropriate services of the Secretariat and should submit all appointments of his staff to the appropriate service within the Secretariat for approval. The staff, for which suitable persons from non-Member countries concerned with the refugee problem would be eligible, should be considered a part of the Secretariat of the United Nations.

51. The administrative expenses of his Office should be borne in the regular budget of the United Nations and thus the High Commissioner's estimates should be subject to approval by the Secretary-General in accordance with the financial rules and regulations of the United Nations.

B. Establishment of a service within the United Nations Secretariat

52. The alternative form of organization, which found favour among certain members of the Economic and Social Council, was the establishment of a service within the United Nations Secretariat. The chief advantages attributed to this plan were administrative simplicity and economy and centralization of responsibility for all United Nations programmes in the Secretary-General.

53. A Director would be appointed, who, with his staff, might form a special service reporting directly to the Secretary-General or be placed within one of the existing Departments of the Secretariat. A precedent for the establishment of a refugee service within the Secretariat may be found in Resolution 212 (III) of the General Assembly concerning the appointment of a Director of United Nations Relief for Palestine Refugee; that appointment, however, was envisaged as being of a purely temporary and indeed very short-term character.

54. The Secretary-General is not in favour of such a solution in the present case and considers that, of the alternatives indicated by the Council, the establishment of an office of High Commissioner would be the more appropriate.

Participation of Non-Member States

55. The Council also requested that the Secretary-General should include in his proposal "methods by which States not Members of the United Nations may be brought into association with the work of the United Nations for refugees and stateless persons". From the debates in the Council, it is clear that the objective of this recommendation was to associate in these activities countries, such as Switzerland or Italy, which have made a considerable contribution to refugee work.

56. The Council would naturally be free to invite any States, whether members of the United Nations or not, to participate in its discussions, without right to vote. The General Assembly may, however, wish in addition to consider providing for the establishment by the Council of an inter-governmental consultative committee in which the States most concerned in the problems of refugees, whether Members of the United Nations or not, would be represented.

57. [This Committee, which would advise the Council on any aspect of the United Nations work for refugees, might hold one ordinary session a year.] Should assistance funds be contributed by Governments on a voluntary basis for use by the High Commissioner, such a Committee might appropriately exercise supervision over the administration of such funds.

Administration of Assistance Funds

58. In dealing with the administration of assistance funds, it must be recognized that the amounts involved and the type of material assistance would have a considerable influence on the organization of the work. Since these factors would remain largely unknown until the General Assembly decided to make a grant of funds, it is suggested that concrete recommendations can only be made when a specific situation is under discussion. The possibilities might range from subsidies to governments for institutional care to large-scale operations such as the United Nations Relief for Palestine Refugees.

59. However, from an organizational and financial point of view, the Secretary-General considers it desirable to suggest certain general principles. Except in unusual circumstances, should such funds be put at the disposal of the High Commissioner, he should not be responsible for their distribution to individuals but should be directed to make them, if possible, available through governments or existing voluntary organizations for the execution of particular projects, as in the case of the United Nations Relief for Palestine Refugees and following the precedents of the Nansen Office. Any other solution would involve considerable administrative difficulties for the High Commissioner and budgetary consequence for the United Nations.

60. If it is decided to include material aid in the functions of the High Commissioner, it would seem desirable to authorize him to accept private as well as public contributions as in the case of the Directors of UNRPR and UNICEF. Any such funds should be administered under a special set of financial regulations approved by the General Assembly. The High Commissioner should be given authority to promulgate detailed rules to implement the regulations approved by the General Assembly.

61. The question of allocation of such funds between areas, if the amounts are significant, may well require special consideration of the desirability of an inter-governmental committee or board combining the executive functions of allocation with the advisory functions noted in paragraph 3 above. This pattern is now followed in the case of the Executive Board of UNICEF.

62. The administrative expenses involved in maintaining the funds should be supported by the budget of the new service.

63. The transactions should be subject to audit by the United Nations Board of Auditors, although the Board should be allowed to accept audited accounts from the voluntary societies to whom funds have been allocated for distribution to particular categories of refugees.

Budgetary implications

64. During the ninth session of the Economic and Social Council held in July-August 1949, the urgency of this problem appeared to be such that the Council recommended that the Fourth session of the General Assembly make budgetary provision for the financial year 1950 necessary for the assumption of functions relating to the protection of refugees.

65. At the time of preparing the present report, it seems in the light of recent developments in the International Refugee Organization reasonably certain that this Specialized Agency will be able to carry on its legal protection functions throughout 1950.

66. In view of these changed circumstances, the Secretary-General has not prepared detailed budget estimates for submission at this time, believing it desirable that the General Assembly should decide on the nature and scope of the functions and the basic organizational pattern prior to the development of budget estimates. Study has been given to relevant parts of the budgets of the League of Nations, the Intergovernmental Committee on Refugees, and the IRO, however, and it may be of assistance to the General Assembly to know that the first full year of operation of the establishment of the High Commissioner's Office, assuming all the legal protection functions described in chapter II were performed, would cost approximately $750,000 (net). This assumes that a headquarters office and 16 branch offices located in countries of residence of substantial number of refugees would be created. The headquarters office would consist of approximately ten professional and ten secretarial and clerical workers; the branch offices would vary in size according to the number of refugee in the country or region but would average four professional and four clerical staff members each. If national governments agree to perform the clerical work involved in preparation of international travel documents for refugees determined to be eligible by the High Commissioner's Office, this average number might be reduced somewhat.

67. It is assumed that in at least half of the locations, it will be possible to attach such branches of the refugee service to existing United Nations offices with resulting savings in rent and common services. The estimate assumes that the salary of the High Commissioner and the headquarters staff would be assimilated to international rates. It has been assumed, however, that salaries of staff located in branch offices would be based on appropriate local rates.

68. If the General Assembly were to eliminate certain of the functions outlined in Chapter II the size of the Organizations would of course be reduced with a consequent reduction in the estimates. It should be noted that a substantial portion of the estimated expenditures related to functions (j) and (k) in Chapter II above, which involve responsibilities in connexion with individual refugees.

69. If it is agreed that machinery should be established to come into effect by 1 January 1951, it is suggested that the Secretary-General be authorized to draw on the Working Capital Fund, if necessary, to meet the cost of establishing a small planning three months prior to that date.

70. The Secretary-General is of the opinion that the administrative costs of a system of international protection of refugees should be borne on the regular budget of the United Nations to ensure adequate and continuing support of the programme. Any funds for material aid should be carried on a separate budget.

71. After the first budget, it is recommended that the High Commissioner should prepare his estimates and that they should be reviewed and included in the Secretary-General's budget estimates in the normal way. Existing machinery should also be used for allotment of funds within the approved budget and other financial controls.

APPENDIX I
REPRODUCTION OF ANNEX I TO THE CONSTITUTION OF THE INTERNATIONAL REFUGEE ORGANIZATION

ANNEX I
DEFINITIONS

GENERAL PRINCIPLES

1. The following general principles constitute an integral part of the definitions as laid down in Parts I and II of this Annex.

(a) The main object of the Organization will be to bring about a rapid and positive solution of the problem of bona fide refugees and displaced persons, which shall be just and equitable to all concerned.

(b) The main task concerning displaced persons is to encourage and assist in every way possible their early return to their countries of origin, having regard to the principles laid down in paragraph (c) (ii) of the resolution adopted by the General Assembly of the United Nations on 12 February 1946 regarding the problem of refugees (Annex III).

(c) As laid down in the resolution adopted by the Economic and Social Council on 16 February 1946, no international assistance should be given to traitors, quislings and war criminals, and nothing should be done to prevent in any way their surrender and punishment.

(d) It should be the concern of the Organization to ensure that its assistance is not exploited in order to encourage subversive or hostile activities directed against the Government of any of the United Nations.

(e) It should be the concern of the Organization to ensure that its assistance is not exploited by persons in the case of whom it is clear that they are unwilling to return to their countries of origin because they prefer idleness to facing the hardships of helping in the reconstruction of their countries, or by persons who intend to settle in other countries for purely economic reasons, thus qualifying as emigrants.

(f) On the other hand it should equally be the concern of the Organization to ensure that no bona fide and deserving refugee or displaced persons is deprived of such assistance as it may be in a position to offer.

(g) The Organization should endeavour to carry out its functions in such a way as to avoid disturbing friendly relations between nations. In the pursuit of this objective, the Organizations should exercise special care in cases in which the re-establishment or re-settlement of refugees or displaced persons might be contemplated, either in countries contiguous to their respective countries of origin or in non-self-governing countries. The Organization should give due weight, among other factors, to any evidence of genuine apprehension and concern felt in regard to such plans, in the former case, by the country of origin of the persons involved, or, in the latter case, by the indigenous population of the non-self-governing country in question.

2. To ensure the impartial and equitable application of the above principles and of the terms of the definition which follows, some special system of semi-judicial machinery should be created, with appropriate constitution, procedure and terms of reference.

PART I
Refugees and Displaced Persons Within the Meaning of the Resolution Adopted by the Economic and Social Council of the United Nations on 16 February 1946

Section A - DEFINITION OF REFUGEES

1. Subject to the provisions of sections C and D and of Part II of this Annex, the term "refugee" applies to a person who has left, or who is outside of, his country of nationality or of former habitual residence, and who, whether or not he had retained his nationality, belongs to one of the following categories:

(a) victims of the Nazi or fascist regimes or of regimes which took part on their side in the second world war, or of the quisling or similar regimes which assisted them against the United Nations, whether enjoying international status as refugees or not;

(b) Spanish Republicans and other victims of the Falangist regime in Spain, whether enjoying international status as refugees or not;

(c) persons who were considered refugees before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion.

2. Subject to the provision of sections C and D and of Park II of this Annex regarding the exclusion of certain categories of persons, including war criminals, war criminals, quislings and traitors, from the benefits of the Organizations, the term "refugee" also applies to a person, other than a displaced person as defined in section B of this Annex, who is outside of his country of nationality or former habitual residence, and who, as a result of events subsequent to the outbreak of the second world war, is unable or unwilling to avail himself of the protection of the government of his country of nationality or former nationality.

3. Subject to the provisions of section D and of Part II of this Annex, the term "refugee" also applies to persons who, having resided in Germany or Austria, and being of Jewish origin or foreigners or stateless persons, were victims of Nazi persecution and were detained in, or were obliged to flee from, and were subsequently returned to, one of those countries as a result of enemy action, or of war circumstances, and have not yet been firmly re-settled therein.

4. The term "refugee" also applies to unaccompanied children who are war orphans or whose parents have disappeared, and who are outside their countries of origin Such children, 16 years of age or under, shall be given all possible priority assistance, including, normally, assistance in repatriation in the case of those whose nationality can be determined.

Section B - DEFINITION OF DISPLACED PERSONS

The term "displace person" applies to a person who, as a result of the actions of the authorities of the regimes mentioned in Part I, section A, paragraph 1 (a) of this Annex has been deported from, or has been obliged to leave, his country of nationality or of former habitual residence, such as persons who were compelled to undertake forced labour or who were deported for racial, religious or political reasons. Displaced persons will only fall within the mandate of the Organisation subject to the provisions of sections C and D of Part I and to the provisions of Part II of this Annex. If the reasons for their displacement have ceased to exist, they should be repatriated as soon as possible in accordance with Article 2, paragraph 1 (a) of this Constitution, and subject to the provision of paragraph (c), sub-paragraphs (ii) and (iii) of the General Assembly resolution of 12 February 1946 regarding the problem of refugees (Annex III).

Section C - CONDITIONS UNDER WHICH "REFUGEES" AND "DISPLACED PERSONS" WILL BECOME THE CONCERN OF THE ORGANISATION

1. In the case of all the above categories except those mentioned in section A, paragraphs 1 (b) and 3 of this Annex, persons will become the concern of the Organisation in the sense of the resolution adopted by the Economic and Social Council on 16 February 1946 if they can be repatriated, and the help of the Organisation is required in order to provide for their repatriation, or if they have definitely incomplete freedom and after receiving full knowledge of the facts, including adequate information from the Governments of their countries of nationality of former habitual residence, expressed valid objections to returning to those countries.

(a) The following shall be considered as valid objections:

(i) persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinions, provided these opinions are not in conflict with the principles of the United Nations, as laid down in the Preamble of the Charter of the United Nations;

(ii) objections of a political nature judged by the Organisation to be "valid" as contemplated in paragraph 3 (a)³³ of the report of the Third Committee of the General Assembly as adopted by the Assembly on 12 February 1946.

(iii) in the case of persons falling within the category mentioned in section A, paragraphs 1 (a) 1 (c) compelling family reasons arising out of previous persecution, or, compelling reasons of infirmity or illness.

(b) The following shall normally be considered "adequate information": information regarding conditions in the countries of nationality of the refugees and displaced persons concerned, communicated to them directly by the representatives of the Governments of these countries, who shall be given every facility for visiting camps and assembly centres of refugees and displaced persons in order to place such information before them.

2. In the case of all refugees falling within the terms of Section A, paragraph 1 (b) of this Annex, persons will become the concern of the Organisation in the sense of the resolution adopted by the Economic and Social Council of the United Nations on 16 February 1946, so long as the Galangist regime in Spain continues. Should that regime be replaced by a democratic regime they will have to produce valid objections against returning to Spain corresponding to those indicated in paragraph 1 (a) of this section.

Section D - CIRCUMSTANCES IN WHICH REFUGEES AND DISPLACED PERSONS WILL CEASE TO BE THE CONCERN OF THE ORGANISATION

Refugees or displaced persons will cease to be the concern of the Organisation:

(a) when they have returned to the countries of their nationality in United Nations territory, unless their former habitual residence to which they wish to return is outside their country of nationality; or

(b) when they have acquired a new nationality; or

(c) when they have, in the determination of the Organisation become otherwise firmly established; or

(d) when they have unreasonably refused to accept the proposals of the Organisation for their re-settlement or repatriation; or

(e) when they are making no substantial effort towards earning their living when it is possible for them to do so, or when they are exploiting the assistance of the Organisation.

PART II
Persons Who Will Not Be the Concern of the Organisation

1. War criminals, quislings and traitors.

2. Any other persons who can be shown:

(a) to have assisted the enemy in persecuting civil populations of countries, Members of the United Nations; or

(b) to have voluntarily assisted the enemy forces since the outbreak of the second world war in their operations against the United Nations.*³⁴

3. Ordinary criminals who are extraditable by treaty.

4. Persons of German ethnic origin, whether German nationals or members of German minorities in other countries, who:

(a) have been or may be transferred to Germany from other countries;

(b) have been, during the second world war, evacuated from Germany to other countries;

(c) have fled from, or into, Germany, or from their places of residence into countries other than Germany in order to avoid falling into the hands of Allied armies.

5. Persons who are in receipt of financial support and protection from their country of nationality, unless their country of nationality requests international assistance for them.

6. Persons who, wince the end of hostilities in the second world war:

(a) have participated in any organisation having as one of its purposes the overthrow by armed force of the Government of their country of origin being a Member of the United Nations; or the overthrow by armed force of the Government of any other Member of the United Nations, or have participated in any terrorist organisation;

(b) have become leaders of movements hostile to the Government of their country of origin being a Member of the United Nations or sponsors of movements encouraging refugees not to return to their country of origin;

(c) at the time of application for assistance, are in the military or civil services of a foreign State.

APPENDIX II
League of Nations
High Commissioners for Refugees

Three High Commissioners were appointed by the League of Nations at various times to deal with various categories of refugees.

1. The Council of the League of Nations by a resolution dated 27 June 1921³⁵ decided to appoint a High Commissioner for Russian Refugees, and appointed Doctor Nansen to the post on 20 August 1921.³⁶

This High Commissioner, who was responsible to the League of Nations, derived his authority from the Assembly and the Council with whose instructions and directives he was required to comply.

He was assisted by an Inter-Governmental Advisory Commission set up by an Assembly resolution dated 25 September 1928³⁷, and by an advisory committee of private organizations.

He submitted an annual report to the Assembly and periodical reports to the Council.

He was empowered to maintain direct relations with governments and to negotiate Agreements.³⁸

Officials of the High Commissioner's Office were part of the League of Nations staff while at the same time responsible to the High Commissioner.

The League of Nations defrayed all the administrative expenses of the High Commissioner's Office³⁹, but made no contribution towards defraying the expenditure on material assistance to refugees. Such expenditure was met by funds coming from various sources (for example, Nansen stamps which were paid for by refugees themselves in accordance with the Agreement of 12 May 1927, and private charity).

This High Commissioner's Office existed until the death of Nansen (1930) when political and legal protection was assumed de jure by the regular organs of the League of Nations⁴⁰ and do facto by the Nansen Office.

It is to be noted that during the existence of this High Commissioner's Office there were various changes in the duties assigned to it. For example, from 1925 to 1929 the International Labour Organisation took over responsibility for material assistance, emigration and settlement of refugees.

2. The High Commissioner appointed for refugees coming from Germany under a resolution of the League of Nations Council dated 26 October 1933.⁴¹

(a) Owing to the opposition of the German Government this High Commissioner's Office was not incorporated in the League of Nations.

The High Commissioner was appointed by the Council of the League of Nations, but the League of Nations made no contribution towards defraying the expenses of the High Commissioner's Office and exercised no control over its activities. The High Commissioner was assisted by a Governing Body of States which were prepared to assist refugees and it was to this Governing Body that the High Commissioner had to submit periodical reports.

(b) A change occurred in 1936 and the High Commissioner's Office for German Refugees was incorporated in the League of Nations.

The High Commissioner was instructed to consult the Governments of the principal countries of refuge as to the need for appointing representatives therein, and should they agree, to appoint representatives approved by them.

It was the High Commissioner's duty to keep "in close touch with the Governments concerned and the competent official bodies" and "to establish contact, in such manner as he might think best, with private organizations dealing with refugee questions". (paragraph 4).

(c) Expenses of the High Commissioner's Office

(i) The administrative expenditure (salaries of the High commissioner and his staff, travelling expenses, rent of premises, office expenses etc.) was covered by a grant from the League of Nations, fixed annually by the Assembly. It was specified that it should in no case be employed for the relief and settlement of refugees. (paragraph 7).

(ii) the High Commissioner could "accept funds from Governments or private sources". He could not however "himself provide assistance to refugees" and he was to allot these funds "among such organizations and such official bodies, if any, as he might consider best qualified to administer such assistance." (paragraph 8).

The High Commissioner's Office for German Refugees thereafter functioned in a similar manner to the above-mentioned High Commissioner's Office for Russian Refuges set up in 1921.

3. A High Commissioner for the two categories of protected refugees (Russian, Armenian and assimilated refugees on the one hand, and refugees coming from Germany on the other) was appointed under a resolution of the League of Nations Assembly dated 30 September 1938.⁴²

The main features of this High Commissioner's Office, which remained in being until 31 December 1946 were as follows:

(a) Position of the High Commissioner with regard to the League of Nations:

The High Commissioner was appointed by the League of Nations Assembly for a period of five years. He was to be assisted by a Deputy High Commissioner not of the same nationality and a "small staff" appointed by him.

He was not placed under the authority of the Secretary-General of the League of Nations.

His headquarters was to be in London.

The Assembly Resolution stated: "The High Commissioner shall have no power to enter into any legal commitment whatsoever on behalf of the League of Nations: the League assumes no responsibility, legal or financial, in respect of his activities." (paragraph 5).

The High Commissioner was to report to the Assembly annually on his work (paragraph 3).

The accounts in respect of funds intended for assistance to refugee were to be periodically audited by the Auditor of the League of Nations (paragraph 8).

(b) Duties of the High Commissioner:

The duties of the High Commissioner as defined in the Assembly Resolution (paragraph 2) were as follows:

(i) To provide for the political and legal protection of refugees;

(ii) To superintend the entry into force and application of the legal status of refugees, as defined by international agreements;

(iii) To facilitate the co-ordination of humanitarian assistance;

(iv) To assist the Governments and private organizations in their efforts to promote emigration and permanent settlement.

1 See Resolutions adopted by the General Assembly during the first part of its first session, page 12.

2 (See document E/1112, E/1112/Add.1 and E/1112/Add.1/Corr.1)

3 See document E/1392 and E/1392/Corr.1

4 "See documents E/SR.326 and 327."

5 Resolution 116 (VI) D

6 E/1112, E/1112/Add.1 and E/1112/Add.1, Corr.1

7 E/1392 and E/1392/Corr.1

8 A/C.3/528

9 In the third paragraph of the Council resolution it is stated that "the question of the protection of refugees who are the concern of the IRO is an urgent one"; in the fifth paragraph reference is made to the conclusions submitted by the General Council of the IRO and in the sixth paragraph Governments are expressly requested 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."

10 Article 1 of the IRO Constitution states: "The mandate of the Organizations shall extend to refugees and displaced persons in accordance with the principles, definitions and conditions set forth in Annex I, which is attached to and made an integral part of this Constitution." Annex I is reproduced in full as Appendix I to the present report.

11 For example, victims of Nazi or Fascist regimes, Spanish Republicans, persons considered refugees before the Second World War, for reasons of race, religion, nationality, or political opinion.

12 See paragraph 2, Section A, Part I of Annex I to the Constitution.

13 Section C of Part I of Annex I to the Constitution.

14 Part II of Annex I of the Constitution of the IRO lists the classes of persons who will not be the concern of the Organization.

15 In actual practice, the IRO requires the completion by applicants of a written form which is reviewed, normally with personal interview, by an Eligibility Officer assigned to the area in which the applicant appears. An applicant rejected as not falling within the mandate of the Organization must be notified by the Eligibility Officer of his right to appeal to a semi-judicial Review Board. This Review Board with headquarters in Geneva and panels which travel on circuit throughout the principal areas in which refugees are located, was established by the IRO in accordance with Annex I of the Constitution.

16 See points (j) and (k) of the proposed functions in Chapter II (paragraphs 34 to 30 below).

17 Approximate figures concerning the various waves of refugees has been given in Document E/1112 (Introduction). But at present only a fraction of the number involved would need protection.

18 It is to be noted that in the past the terms usually used were:

"political and legal protection":

a) By resolution of 30 September 1930, adopted by the League of Nations Assembly, at its Kith Session: the Assembly "entrusts the Secretary-General with the political and legal protection of the refugees..." (O. J. Special Supplement No. 84 of 1930),

b) By resolution of 30 September 1938, at its XIXth Session, the Assembly charged the High Commissioner with the duty "to provide for the legal and political protection of refugees..." (special Supplement No. 183 of 1938, Annex 8, page 137),

c) Article 2, para. 1, of the IRO Constitution states; "The functions of the Organisation to be carried out in accordance with the purposes and the principles of the Charter of the United Nations shall be the legal and political protection... of persons who are the concern of the Organisation under the provisions of Annex I".

d) Again, many special agreements concluded by the IRO with Governments contain clauses confirming that the Organisation will provide for the legal and political protection of refugees residing in the territory of the Contracting State or in a territory occupied by its Armed forces. See particularly, agreements concluded with Australia, para. 6 "b"; for Germany United States Zone VIII, 12 "d"; for Germany French Zone III, para. 12; for Austria United States Zone II, para. 5 "I" and III, para. 9; for Austria British Zone IV, para. 11; for Austria French Zone, para. 12; with Brazil para. 31; (These words are to be noted: "les droits appartenant aux Etats de proteger leurs nationaux se trouvant à l'étranger seront exerces au Brésil par l'OIR. ...à l'égard des réfugiés qui résident au Brésil aussi longtemps qu'ils seront apatrides ou pour d'autres raisons ne jouiront pas de la protection de leur pays d'origine et relèveront par conséquent du mandat de l'OIR conformément à la Constitution de celle-ci"); with Denmark II "e" et VII paras. 18 and 19: France (Metropolitan) art. 6; with France (Installation of the Delegation) art. 7; with France (Guyane) VII, new paragraph 3; with France (Morocco); with Guatemala, art. 5; with Italy II, para. 1 "f"; with Luxembourg VIII, para. 28 "Le Gouvernement reconnait a 1 'O. I. R. la protection politique et juridique des personnes relevant de son mandat et ne jouissant pas en droit ou en fait de la protection d'aucun Governement, les memes droits que ceux appartenant a un Etat a l'égard de ses ressortissants"; with Netherlands, para. 6 "a"; with United Kingdom (workers from the United States Zone of Germany) art. XIII.

19 E/1392, pages 12-14.

20 It is understood that the fact that the new service is empowered to exercise any given functions does not signify that it would exercise all its functions within all countries. The new service, like the organs preceding it, would exercise its functions within any given country in agreement with the Government thereof.

21 See footnote to point (e), below.

22 Notably the Convention concerning the Status of Refugees coming from Germany, signed at Geneva, 10 February 1938, and the Agreement relating to the Issue of a Travel Document to Refugees who are the Concern of the Inter-Governmental Committee on Refugees, signed in London, 15 October 1946.

23 (a) The Resolution adopted on 30 September 1930 by the League of Nations Assembly (O. J. Special Supplement No. 84 of 1930) charges the Secretary-General: '... (b) to provide for, keep in touch with and regularize the application of the existing arrangements and agreements".

24 1. Relevant Texts

25 (a) Among the functions of the High Commissioner's Office created in 1921 appeared that of providing access to employment to refugees (Minutes of the XIIIth Session of the Council of the League of Nations, Annex 224). According to article 3 of the Statutes of the Nansen International Office (I. J. of the League of Nations No. 2 of 1931, Annex 1263), the latter is charged with "(a)..... facilitating the task of finding them work and settling them" and "(b) Giving general directions to relief institutions... and co-ordinating their work."

(b) One of the functions of the High Commissioners of 1938-46 was also to assist the efforts of governments concerning the "permanent settlement" of refugees (see Resolution adopted on 30 September 1938 by the Assembly of the league of Nations at its XIXth Session (Special Supplement No. 183 of 1938, Annex 8, p. 137, para. 2 (d)).

(c) It is also one of the main tasks of the IRO. See article 2, para. 1 "b" of the Constitution together with special agreements concluded by the IRO with various governments.

26 Assistance in the repatriation, emigration and resettlement of refugees was one of the permanent tasks of the international protection service.

(a) In 1921 the High Commissioner's Office has the task among others "to organize their repatriation of their allocation to the various countries which might be able to receive them" (Minutes of the XIIIth Session of the Council of the League, Annex 224).

(b) Article 3 (a) of the Statutes of the Nansen International Office was phrased in the same sense.

(c) The resolution adopted by the Council of the League of Nations on 24 January 1936 (O. J. No. 2 of 1936, No. 3705) instructed the High Commissioner for refugees coming from Germany to facilitate their settlement and their emigration.

(d) The High Commissioner's Office created in 1938, had among its tasks "(d) to assist the Governments and private organizations in their efforts to promote emigration and permanent settlement." (Resolution adopted by the Assembly at its XIXth Session on 30 September 1938, Special Supplement No. 183 of 1938, Annex 8).

(e) The Inter-Governmental Committee for Refugees continued to assist the emigration of refugees and their settlement in countries of immigration (See Official Records of the XXth meeting of the Executive Committee held on 16 July 1946).

(f) The IRO Constitution, article 2, paragraph 1, (a), (b) and para. 2 (g), (j) contain provisions envisaging the repatriation, emigration and resettlement of refugees. The numerous special agreements concluded by the IRO cover these questions. The Annual Reports of the General Director of the IRO make a balance sheet of the results achieved by the Organization in this sphere.

(g) In certain countries, in order to facilitate co-operation between the IRO and national authorities the Agreements arrived at established mixed committees (Italy, Agreement of 24 October 1947, II, para. 3 and VII, Brazil, Agreement of 30 April 1948, art. II) composed of representatives of the Governments concerned and of the IRO.

27 (a) The right to nominate representatives was considered as implicitly covered by the mandate of the High Commissioner created in 1921. It was clear that the central service, without local bodies, could not fulfil the tasks it had been assigned. Also, from the beginning, the High Commissioner had representatives in various countries.

28 (a) This collaboration is envisaged in the 1921 Report of the Council of the League of Nations, relating to the establishment of the High Commissioner's Office (Minutes of the XIII Session of the Council, Annex 224);

(b) So also in Article 3 of the Statutes of the Nansen International Office, which provides that the functions of the Office included "(c) Collecting and distributing with the help of other bodies, particularly the Advisory Committee of the private organizations, the resources placed at its disposal..." and "(b) Giving general directives to relief institutions which already exist, or which may be established subsequently with the authorization of the various national authorities, and co-ordinating their work."

(c) The Resolution adopted by the Council of the League of Nations on 24 January 1936 (official Journal No. 2 of 1936, Rubric 3705) relative to the incorporation into the League of Nations of the High Commissioner's Office for Refugees coming from Germany, provides: "It shall be the High Commissioner's duty... (c) to establish such liaison as he may consider desirable and in the manner which may appear most suitable with the private associations dealing with assistance to refugees and with their emigration and employment, the activities of these associations being recognized to be useful by the League of Nations."

(d) At its XVII Session the Assembly of the League of Nations, in its Resolution of 10 October 1936, charged the High Commissioner "to encourage initiative on the part of private organizations; to support such initiative by negotiations with the Governments of the countries of refuge..." (Special Supplement No. 155, 1936).

(e) In its Resolution adopted 30 September 1938 at its XIX Session the Assembly placed upon the High Commissioner the duty "(d) to assist... private organizations in their efforts to promote emigration and permanent settlement" (Special Supplement No. 183, 1938, Annex 8).

(f) The Inter-Governmental Committee for Refugees had amongst its duties, "a) de negocier avec ... les associations bénévoles...", and "b) de recevoir des fonds tant des gouvernements que de sources privées."

(g) Article 12, para. 2 (f) of the Constitution of the IRO enables it "to consult and co-operate with public and private organizations whenever it is deemed advisable...", and Article 2, para. 2(a) "to receive and disburse private and public funds."

(h) The special agreements concluded between the IRO and various governments contain clauses in this respect.

29 (a) Article 3 of the Statutes of the Nansen International Office as approved on 19 January 1931 by the Council of the League of Nations at its 62nd Session (O. J. No. 2 of 1931, Annex 1263) states that in particular, the functions of the Nansen Office included: "(a) Collecting and collating information regarding the material and moral welfare of the refugees..."

(b) Resolution of 30 September 1930, adopted by the League of Nations Assembly at its XIth Session (O. J. Special Supplement No. 84 of 1930) instructed the Secretary-General "a) to study the evolution of the refugee problem..."

(c) The Inter-Governmental Committee for Refugees was charged by its Executive Committee (XXth Session held on July 16th, 1946) with the collecting, in agreement with the governments and with UNRRA, of such information as might be necessary for the emigration and resettlement of refugees.

(d) Similar clauses are to be found in the Agreements concluded by the IRO with various Governments.

30 (a) Article 1 of the Agreement of 30 June 1928 concerning the functions of the league of Nations High Commissioner for Refugees provided that the governments ratifying the Agreement were to permit Representatives nominated by the High Commissioner of the League of Nations for Refugees to exercise the following powers:

"a) Certifying the identity and the position of the refugees;

"b) Certifying their family position and civil status, in so far as these are based on documents issued or action taken in the refugees' country of origin;

"c) Testifying to the regularity, validity, and conformity with the previous law of their country of origin, of documents issued in such country;

"d) Certifying the signature of refugees and copies and translations of documents drawn up in their own language;

"e) Testifying before the authorities of the country to the good character and conduct of the individual refugee, to his previous record, to his professional qualifications and to his University or academic standing;

"f) Recommending the individual refugee to the competent authorities, particularly with a view to his obtaining visas, permits to reside in the country, admission to schools, libraries, etc."

This agreement was ratified by Belgium on 2 May 1929 and by France on 21 May 1929, and was later denounced by these two countries.

Documents issued in pursuance of this Agreement are considered as authentic and take the place of documents relating to civil status when documents issued or action taken in the refugee's country of origin are involved (See Revue Critique du Dr. inter. Privé, 1948, No. 3, p. 310 et 1939 No. 3, p. 443 - Cour de Paris 1ere Ch. 29 April 1939 Aff. WOLINSKI; Cour de Paris 1ere Ch. 17 July 1948 Aff.

(b) Article 1 of the Arrangement of 30 June 1928 relating to the legal status of Russian and Armenian refugees contains similar provisions.

(c) During the period of the International Nansen Office (1930-1938) representatives of the Office were received by the following countries: Germany, Austria, Belgium Bulgaria, China, Danzig, Estonia, Finland, France, Greece, Latvia, Poland, Roumania, Switzerland, Syria, Czechoslovakia, Turkey and Yugoslavia.

(d) These functions of the Nansen Office were assumed in 1938 by the High Commissioner of the League of Nations.

(e) In France, the provisions of the Agreement were extended to the German and Austrian Refugees (Decree of 10 May 1945, J. O. of 4 August 1945), to the Spanish refugees (Decree of 3 July 1945, J. O. of 4 July 1945) and finally in pursuance of two Agreements concluded on 13 January 1948 with the IRO (one relating to the quasi-consular services and the other to the installation and to the functioning of the Delegation) to all the refugees who come with in the mandate of the IRO (Concerning the devolution of these functions after the dissolution of the League of Nations - see the Decrees of 23 December 1946 and of 30 June 1947, J. O. of 16 July 1947).

(f) The system of quasi-consular services is applied in Denmark in pursuance of Article VII, para. 19 of the special Agreement concluded with the IRO on 19 November 1948. It is also applied in French Guyane in pursuance of Article VII, para. 4 of the special Agreement concluded with the IRO on 21 April 1949.

(g) According to article V of the Agreement concluded on 26 September 1947 between the Government of the United Kingdom and the IRO concerning the introduction of workers from the United States Zone of Germany, the IRO is entrusted with the establishment and distribution to refugees of identity papers.

31 a) A system has been adopted in the French Zone of Germany in pursuance of the instruction of the 9th August 1949 of Général D'Armée Koenig (Just./31) which provides:

"1) Toute personne ayant la qualité de « réfugié » c'est-à-dire pouvant produire un certificat du Directeur de l'Organisation Internationale des Réfugiés (O. I. R.) ou de son représentant établissant qu'elle est sous la protection de cet organisme doit bénéficier de la dispense prévue par l'article 19 de la Loi No. 16 du Conseil de Contrôle.

"2) Les Documents exigés pour l'accomplissement de certains actes d'état civil, les pièces, documents ou jugements, concernant l'état civil d'un réfugiés émanant du pays d'origine des intéressés, pourront être remplacés par des déclarations sous la foi du serment. Ces déclarations seront faites, si possible, par des témoins, sinon par l'intéressé lui-même, devant un notaire allemand ou l'officier P. D. R. du Cercle de sa résidence".

b) A similar instruction was issued in the British Zone on 22 April 1949 (L/Z/514/1) to the Regional Commissioners of Rhine-Westphalia, Sehleswig-Holstein Lower Saxony and Hamburg.

32 (a) Article 1, of the Arrangement and of the Agreement of 30 June 1928 provided that three of the functions of the High Commissioner which he exercised through his representatives were to be to "a) certify the identity and the position of the refugees", "e) Testify before the authorities of the country to the good character and conduct of the individual refugee, to his previous record, to his professional qualifications and to his University or academic standing;" and "f) Recommend the individual refugee to the competent authorities particularly with a view to his obtaining visas, permits to reside in the country, admission to schools, libraries, etc." in Belgium the Circular of the Minister of Justice, dated 10 December 1948 grants safe-conducts to transitory refugees provided with certificates of the IRO confirming that the refugee falls within the scope of the mandate of the IRO (Moniteur Belge of 18 December 1948.) In France the Police request from refugees who apply for residence permits, travel permits or Nansen passports, the production of certificates supplied by the IRO certifying their identity, civil status, nationality and refugee status. Similar certificates must usually be produced at Consulates in support of requests for visas.

33 Paragraph 8 (a); "In answering the representative of Belgium, the Chairman stated that it was implied that the international body would judge what were, or what were not, 'valid objections'; and that such objections clearly might be of a political nature."

34 Mere continuance of normal and peaceful duties, not performed with the specific purpose of aiding the enemy against the Allies or against the civil population of territory in enemy occupation, shall not be considered to constitute "voluntary assistance." Nor shall acts of general humanity, such as care of wounded or dying, be so considered except in cases where help of this nature given to enemy nationals could equally well have been given to allied nationals and was purposely withheld from them.

35 Minutes of the Council of the League of Nations, Thirteenth Session, June 1921, Section 427, pages 53-54.

36 Minutes of the Council of the League of Nations, Fourteenth Session, August/September 1921, Annex 245, page 64.

37 Official Journal of the League of Nations - Special Supplement No. 64, page 149.

38 League of Nations Document C. 277. M. 203-1921. Preparatory document for the Conference held on 30 June 1928.

39 In the first year (1921) expenses were charged to "Unforeseen Expenditures" in the League of Nations Budget (Council Resolution of 27 June 1921 - paragraph 5).

The High Commissioner subsequently submitted his budgetary estimates to the Assembly. These were examined by the Fifth Committee (Social Committee) before being examined by the Fourth Committee (Budget Committee).

40 Resolutions of the League of Nations Assembly dated 30 September 1930 Official Journal of the Eleventh Session of the Assembly - Special Supplement No. 84-157).

41 Minutes of the Council of the League of Nations, Seventy-seventh Session, Section 3346, page 1616.

42 Official Journal of the League of Nations, Special Supplement No. 183, page 136