The Refugee Convention 1951 (Part II)

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The Yugoslav representative withdrew his amendment.

Article 7 paragraph 1 was adopted by 20 votes to none, with 3 abstentions.

The Swiss representative said that Swiss law recognized acquired rights but only subject to provisions of public order. If his amendment met with opposition, the Swiss delegation was prepared to withdraw it, but would be compelled to enter appropriate reservations.

The UK representative said by proposing the substitution of the words ‘that State’ for the words ‘the country of his domicile, or if he has no domicile, the country of his residence’ he wished to make it clear that the formalities to be complied with must be those prescribed by the law of the country where they were to be exercised. A refugee domiciled in Italy might wish to assert rights in France, even without being personally present there. It was surely not to be supposed that in such a case the formalities should be those prescribed by Italian law.

The second part of the UK amendment was introduced to meet the point raised by the Swiss representative, namely that States should not be required to respect rights previously acquired by a refugee where they were contrary to their own legislation. A state could not protect a right which was contrary to its own public policy.

The UK amendment was supported by the representatives of Canada, Columbia and Switzerland.

With regard to the Yugoslav amendment the French representative suggested to insert the words ‘with its dependent rights and duties’ after ‘The personal status of a refugee’ in paragraph 1 of the Article.

The Observer of the Inter-Parliamentary Union pointed out that a large number of the countries of continental Europe had shown a tendency to determine the personal status of aliens in accordance with their national law. That a political refugee who had a horror of his country of origin, and had no intention whatsoever of returning to it, should find himself given the personal status prescribed by the legislation of his host country seemed reasonable. But would it be unreasonable to impose on refugees who were still attached to their country of origin and lived only in the hope of returning to it, a personal status which might vary considerably according to their country of residence and to adopt that measure, according to changes in circumstances in the country of domicile, without the person affected having an opportunity of expressing his own desires on the matter? Incidentally, the opinion expressed in paragraph 2 of Article 7, referring to respect for previously acquired rights, was somewhat ambiguous. For instance, a refugee married under the system of separate estate without contract who came to Belgium would be subject, under that country’s legislation, to the system of joint estate in the absence of a contract. If such a refugee inherited personal estate, the question would arise whether the possession of such property was governed by the rights attaching to the marriage in the country of origin, or by the system obtaining in the receiving country. The courts might find that in contracting marriage the refugee had not acquired a right in the property, but only the capacity to acquire a right, and that, by virtue of his change of status, the property must revert to joint conjugal estate. It seemed preferable to limit the withdrawal of national personal status to stateless persons only.

The French representative asked, in connection with the UK amendment, for clarification of the position of a divorced refugee who had obtained their divorce in a country the national legislation of which recognized divorce, but was resident in a country, like Italy, where divorce was not recognized. In that case, he submitted, the right to divorce acquired by the refugee could not be recognized by the receiving country.

The UK representative said the second part of paragraph 2 was merely a requirement that certain formalities should be complied with, and in his delegation’s opinion, they should be the formalities in the State where the rights were to be exercised.

The Belgian representative remarked that in principle States which forbade divorce did so only to their own nationals. It was solely for reasons of public order that a State might decide not to recognize divorces between foreigners or not to authorize them to divorce in its territory. As the UK representative had pointed out, the question of a divorce granted by the authorities of a country other than that of residence was a matter of the jurisprudence of the State concerned. The purpose of the UK amendment was to place refugees on the same footing as aliens in respect of rights dependent on personal status. Moreover, in the case cited by the French representative, the courts of the receiving country would have to decide whether they would have recognized a divorce granted in the same circumstances to two aliens who were not refugees.

The Yugoslav representative withdrew his amendment to paragraph 2.

The French representative suggested, in order to meet the point made by Yugoslavia, that the following should be added to paragraph 2:

‘The refugee shall be required to respect obligations he has contracted by reason of his personal status in so far as he is not prevented from doing so by reason of his becoming a refugee.’

He cited the case of a refugee with an obligation to maintain a relative. If both the relative and the refugee found asylum in the same country of reception, it would be correct for the refugee to comply with their obligations. But if the beneficiary remained in the country of origin, it might be difficult for the refugee to comply with the obligations.

The UK representative said that while he sympathized with the Yugoslav delegation he was unable to support its amendment. He endorsed the Belgian representative’s view that, if it was merely a moral obligation to support relatives in another country, the refugee could not be compelled by the authorities of the country of his or her residence to fulfil such an obligation, Convention or no Convention. Again, enforcement in one country, of judgments pronounced in another, depended on the law of the forum or on treaties relating to such matters. The UN had under consideration a draft multilateral convention concerning just such cases, and it would be premature for the conference to attempt to deal with the subject. Obligations devolving upon refugees in respect of relatives, who both resided in the same country of asylum, would be left to the law of the land.

The French representative said he would not press his proposal.

The Israeli representative said that if paragraph 2 was left as it was and there was no provision in favour of refugees, a judge would take action in accordance with the law of the land as it applied to aliens. The concern of the Yugoslav delegation seemed to him somewhat unjustified, for there need be no fear of abuse of the status of refugee. The absence of any special provision would not mean that the refugee would be exonerated from fulfilling their obligations, since they would continue to be subject to the law of the country of refuge.

The first element of the UK amendment was adopted by 18 votes to none, with 3 abstentions.

Paragraph 2 of Article 7, as amended, was adopted with 20 votes to none, with 2 abstentions.

Article 7 as a whole, as amended, was adopted with 20 votes to none with 1 abstention.

The Italian representative said the Italian delegation had votes in favour of Article 7, subject to any reservation it might have to enter after consultation with the Italian Government.

The Style Committee proposed the text which is now in the Convention as Article 12.

Article 12 was adopted by 19 votes to none, with 2 abstentions.

The Italian representative said he had abstained from voting on Article 12 in accordance with the statement made at the 25th meeting to the effect that the Italian delegation reserved its position on that Article.

Under the Allied High Commission Law No. 23 mentioned by the representative of the IRO, marriages between displaced persons or refugees solemnized in Germany between 8 May 1945 and 1 August 1945 before a minister of religion in accordance with the rites of their religion which are invalid because the formalities prescribed by German law or Control Council legislation were not observed, were declared to have had been celebrated in accordance with Sections 11-15 of Control Council Law No. 16, upon registration at the Chief Register Office at Hamburg.

Judicial Decisions

There are numerous judicial decisions in connection with Article 12. A few may be cited:

English courts have held that refugees have acquired a domicile of choice in the country of reception: May v. May (1943) 2 All E.R. 146.

In France the Tribunal de grande instance de la Seine decided on 18 April 1966 in Cismiuglu v. Dame Seicaru on the matrimonial regime of a Romanian refugee couple who had been divorced in France in 1964. At the time of their marriage the regime of separation of property had been in force under Romanian law. By a law of 25 January 1953, in conjunction with a Decree of 31 January 1953, the regime of community of acquisition was introduced in Romania. The wife had been recognized as a refugee by OFPRA in 1957, the husband in 1964. The Court held that while the recognition by OFPRA had no retroactive effect, the parties had the quality of refugee since October 1948, in any case prior to the Law of 31 January 1953, and that law could not, therefore, change the matrimonial regime under which they got married and which had to be protected by the French authorities in application of Article 12 of the Convention of 1951.

This principle had already been affirmed by the Court of Fort-de-France on 21 June 1962 in Bracescu v. Bercovici.

In the Netherlands the Court of Haarlem had to decide on 2 February 1960 which was the applicable law for a divorce of refugees considering that there was a conflict between the Hague Treaty of 12 June 1902, according to which the law of the country of nationality is applicable, and the 1951 Convention. The Court held that Netherlands law was to be applied. In Austria the Supreme Court decided on 4 April 1956 that the Austrian courts were competent for the divorce of refugees. The Court held that all conflict rules of the Contracting States, whether of substance or of procedure, had to yield to Article 12 of the 1951 Convention where the personal status of refugees is concerned. It would contradict the meaning and the purpose of the Convention if in matters of personal status the law of the country of domicile or residence was to be applied, but if there was no forum in Austria. It could be deduced from Article 16 paragraphs 1 and 22 of the Convention that a Convention refugee was not to be denied access to Austrian courts either because he is a refugee or because of the foreign nationality which he still possesses.

In Switzerland the Federal Tribunal had to decide, on 20 October 1975, in Dax v. Dax on the validity of the marriage of two Hungarian refugees. They were married in Hungary in 1945. In 1973 the husband obtained a decree of divorce in Budapest, although the wife refused any participation in the proceedings. The wife asked that the marriage should be held to be still existent. The Tribunal decided in this sense.

In its reasons the Tribunal stated that a refugee may sue for divorce at the place of his Swiss domicile on the basis of Swiss law without having to prove that law or judicial custom of his country of nationality admit the grounds for divorce and recognize the competence of the Swiss courts. The purpose of the Convention was to fill the vacuum created by the refugee’s rupture with his country of nationality by assimilating the position of refugees regarding their personal status and access to courts to that of Swiss nationals. The Convention does not consider that the refugee may pursue his right in the country of his nationality and if he does so he is no longer a refugee within the meaning of the Convention. It is true that a refugee may have good reasons to sue for divorce before the courts of his country of nationality, e.g. because of the status of minor children left behind in that country, the matrimonial regime or the subsequent rights of succession. When the courts of the country of nationality claim exclusive competence, as in the case of Hungary, he may be compelled to appeal to them if he is interested in the recognition of the judgment in that State.

In the present case, however, not only the status of the plaintiff, but also that of the defendant is involved. The competence of the Hungarian courts may not be based simply on the fact that a refugee may renounce his rights following from the Convention if in this way the right of the defendant spouse, equally based on the Convention, would be annihilated. A Swiss spouse living in Switzerland may be divorced from her Swiss husband only in Switzerland. The present plaintiff (the wife) cannot be expected to enter into a divorce suit in her country of nationality. If she has reason to fear persecution, she cannot be expected to appear in person before the courts of that country or to be represented there. Moreover, the plaintiff risks losing her refugee status if she enters divorce proceedings in Hungary. On the other hand, the defendant does not need the forum of the country of his nationality since he has the possibility of suing in his Swiss domicile. He is all the more likely to do this since both spouses have lived in this country for many years and the forum of the joint conjugal domicile is actually the natural forum for a divorce. Thus, divorce obtained in the country of nationality is not to be recognized if the defendant who equally has domicile in Switzerland has not entered the divorce proceedings. The Hungarian judgment is therefore not to be recognized in Switzerland.

Commentary

The arrangement relating to the Legal Status of Russian and Armenian Refugees of 30 June 1928 recommended that the personal status of Russian and Armenian refugees shall be determined in countries in which the previous law of their respective countries is no longer recognized, either by reference to the law of their country of domicile or of usual residence, or, failing such, by reference to the law of the country in which they reside. It has established a dual regime.

The 1933 Convention subjects the refugees to the law of their country of domicile or, failing such, to the law of their country of residence. It must be pointed out, however, that most refugees falling under that Convention were stateless although it was extended by France to Spanish refugees the majority of whom were not stateless.

The Provisional Agreement concerning the Status of Refugees Coming from Germany of 4 July 1936 and the Convention concerning the Status of Refugees Coming from Germany of 10 February 1938 subjected the personal status of refugees who have retained their original nationality to the rule applicable in the country concerned to foreigners possessing a nationality, save as otherwise previously provided by treaty, the personal status of refugees having no nationality to the law of their country of domicile, or, failing such, to the law of their country of residence.

The 1951 Convention adopted the solution of the 1933 Convention. Most refugees falling under the 1951 Convention are not stateless. There is an increasing trend to subject foreigners to the law of the country of their habitual residence. The term ‘domicile’ used in Article 12 has different meanings in different countries. In the Anglo-Saxon countries it means the place where a person resides with the intention of remaining there. In the continental European countries it means habitual residence. In Anglo-Saxon law everyone acquires, at birth, a domicile of origin which may be lost by the acquisition of a new domicile by choice, so-called domicile of choice. Thus, under Anglo-Saxon law everybody has a domicile and there can be no absence of domicile. If a refugee has not acquired a domicile of choice, he would still be subject to the law of his domicile of origin which may be that of the country of his nationality. It cannot, however, have been the intention of the drafters of the Convention, to subject refugees, by this reference, to the law of the country of their nationality. In the discussions, reference was made to the ‘new’ domicile and this was obviously the intention. Where no such new domicile exists, the law of the country of residence would apply. The main intent of the provision is, indeed, to subtract the refugee from the application of the law of the country of his nationality, considering that they have left that country and that that law may have undergone changes with which the refugees do not agree. The question arises whether the law of the country of domicile or of residence applies including its conflict rules which may refer to another law (‘renvoi’). According to the prevailing opinion, where a treaty provides for the application of a particular law, renvoi is excluded. Renvoi to the law of the country of nationality is, in any case, excluded. In legal relationships between refugees and other aliens it depends on the law of the country of domicile or of residence which law is to be applied (e.g. that of the plaintiff or of the defendant).

The term ‘personal status’ is not defined. Its scope differs from country to country. It includes, in any case, legal capacity (age of majority, the rights of persons underage, capacity to marry, capacity of married women, the question of loss of legal capacity (guardianship and curatorship)). It also includes family rights (adoption, legitimation, marriage, divorce, the powers of parents over their children, right to and duty of support of relatives). It does not include the matrimonial regime e.g. in France, but in view of the specific reference to rights attaching to marriage in para 2 of Article 12 it must be deemed to be included. The law of succession and inheritance does not belong, in all countries, to personal status. The paragraph on wills proposed by the Secretariat was not adopted.

The second paragraph of the Secretariat draft reading:

‘Family law, in particular the celebration and the dissolution of the marriages of refugees and the law respecting succession, whether ab intestato or under a will, shall be governed by the rules of substance, form and competence of the law of the country of domicile, or failing such, of the law of the country of residence.’

was deleted by the ad hoc Committee. It was said that it was superfluous.

The statement of the representative of the IRO that the report might state that it had been unanimously agreed that the questions dealt with in paragraph 2 ought not to be governed by the rules concerning substance, form and competence of the law of the country of nationality in countries where such questions were usually covered by that law, remained uncontradicted. So remained his statement that laws restricting the right of marriage, for example, were considered by some countries to be inconsistent with public order, while others applied those laws. Moreover, in certain countries courts could exercise jurisdiction with regard to aliens only if their decisions were recognized by the authorities of the alien’s country of nationality. The Article meant, that with regard to both questions, it was not the law of the country of nationality but the law of the country of domicile or, failing that, the law of the country of residence, which would be applied regardless of the question of recognition.

As to form, this is in practically all countries regulated by the principle ‘locus regit actum’.

As to competence, there is a problem in those countries where courts assume jurisdiction over aliens only if their decisions are recognized in the country of the alien’s nationality. Courts have assumed jurisdiction in the case of refugees regardless of such recognition. In the decisions and in literature214 reference was made, in this connection, to Article 16 of the Convention which provides that refugees shall have free access to the courts.

In the second paragraph of Article 12 the words in brackets after ‘marriage’, that is, ‘matrimonial regime, legal capacity of married women, etc.’ which are to be found in the Secretariat draft, and also in the 1933 and 1938 Conventions were deleted. No change of substance was intended. The end of the paragraph differs from the text in these instruments by the proviso that the right in question is one which would have been recognized by the law of that State (that is, the Contracting State in which it has to take effect) had he not become a refugee. This was meant to cover, as it was stated, objections on the grounds of public policy (‘ordre public’) but would seem to go further, allowing also for other grounds in the law of the country which would not permit the respect for the acquired right concerned, although such grounds are difficult to imagine.

The Secretariat draft also contained a paragraph concerning wills of refugees. No difficulty arises normally with wills of refugees made by them in their country of origin although the implementation of the will depends on the law of the country in which the will is to take effect.

ARTICLE 13. MOVABLE AND IMMOVABLE PROPERTY

The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.

Travaux Préparatoires

The Secretariat draft contained the following text:

‘The High Contracting Parties undertake to accord to refugees who are regular residents in their countries the most favourable treatment accorded under treaty to foreigners with regard to the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.’

In the comment it was stated:

‘The difficulties which may be encountered by foreigners relate principally to the acquisition of immovable property and securities (stocks) and to the lease of dwelling accommodation or premises for the purposes of carrying on an occupation.

There are two solutions:

1. The first would be to accord to refugees the most favourable treatment accorded by treaty to foreigners.

It may be noted that in certain countries foreigners are not covered by national laws for the protection of tenants, save by virtue of treaty. If, therefore, refugees who are usually destitute, are not to enjoy the treatment accorded under treaty to foreigners, they will be debarred from the benefits of such laws, which will spell disaster for them.

2. The second solution would be to accord to refugees the treatment accorded to other foreigners generally, thus waiving the condition of reciprocity, which cannot be satisfied by refugees.’

The French draft contained the following:

‘The High Contracting Parties shall give favourable consideration to the possibility of granting after a certain period to refugees permanently settled in their territories treatment similar to that accorded to nationals in respect of:

(a) the possession, acquisition, occupation and renting of all movable and immovable property and

(b) the establishment of non-profit-making associations.’

At the first session of the ad hoc Committee the French representative pointed to the difference between the Secretariat and the French text. The Secretariat draft committed the countries of residence. He would not press for the adoption of his own text.

In reply to a question the Chairman, on the advice of the Secretariat, said that the phrase ‘most favourable treatment’corresponded to the most-favoured-nation treatment as used in treaties of friendship.

The Turkish representative observed that some countries extended reciprocal treatment to aliens as a matter of course, while others set down the conditions of reciprocity in formal treaties, and specified the categories of foreigners to which they applied. In view of the difficulties arising in countries which had no reciprocity treaties, he preferred the phrase ‘the treatment accorded to foreigners generally’. Otherwise, the refugees, under the proposed text, would get preferential treatment compared to other aliens.

The Belgian representative, pointing out that Belgium, for instance, placed nationals of the Benelux countries for certain purposes on a quasi-equal footing with Belgian citizens, wishes to amend Article 5 to read: ‘under treaty, except those establishing economic or customs unions’.

The Danish representative observed that the Belgian amendment would not be applicable to the Scandinavian countries, although the latter did accord special favourable treatment to Scandinavian nationals which they would not be prepared to give to other foreigners, including refugees. Such special cases, however, could be dealt with by reservations.

The Israeli representative described the difficulties confronting the Committee in the absence of uniform formal or practical statutes governing the property of aliens. In fact, the statutory status did not exist, in as much as there was no code of law applicable to aliens as such. In numerous countries, the rights of aliens were mentioned only in exceptional clauses lost in a mass of legal provisions. Further, it was almost impossible to determine the categories of aliens which were not provided for in the various treaties binding States. The Committee should follow the practice of many nations and fix a permanent status for the refugees in matters of movable and immovable property which would be equal and not inferior to that enjoyed by foreigners under most-favoured-nations clauses.

The Chinese representative said he would prefer the criterion of most-favoured nation to be used rather than that of the ‘most favourable treatment’. The former was a well-known concept with which most nations, including his own, were thoroughly familiar.

The Chairman suggested the deletion of the words ‘under treaty’.

The French representative could not accept the most-favoured-nation clause in Article 5 because it would be tantamount to granting refugees practically the same treatment as nationals.

The UK representative stated that while the Committee was trying to protect refugees against discrimination, it should not go to the other extreme of establishing discrimination in favour of refugees.

The representative of the IRO stated that there was no question of granting special privileges to refugees but rather of exempting them from reciprocity clauses.

The Committee rejected alternative (1) (most-favoured-nation treatment) by 5 votes to 1, with 5 abstentions. Article 5 was put to the vote in the following form:

‘The Contracting States undertake to accord to refugees whose regular residence is in their territories the treatment accorded to foreigners generally with regard to acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.’

The Article was adopted by 7 votes to none, with 2 abstentions.

The Working Group proposed the following wording:

‘The Contracting States shall accord to refugees the most favourable treatment possible, in any event treatment not less favourable than that accorded generally to aliens in the same circumstances as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.

This text was adopted.

The representative of the IRO said with regard to the clause contained in Articles 8, 13, 14 and 16 it seemed to him that it was often difficult to determine what was the law applicable to aliens generally, in view of the fact that it was based on procedure and administrative practice or was prescribed by law. In the latter case, the authorities were not free to choose: they had to grant a certain treatment unless there was a more favourable treatment granted by treaties. The clause adopted suggested that ‘more favourable treatment’ be granted but did not make it mandatory. It seemed doubtful whether the wording adopted would have the effect of granting ‘more favourable’ treatment to refugees. It would seem that the clause adopted had little meaning, in so far as it provided that refugees should receive the treatment accorded generally to aliens. A provision to that effect was already contained in Article 4. To secure ‘more favourable ‘ treatment for refugees it would have been better to adopt a different wording (for instance, most-favoured-nation treatment). Reservations would have been possible for exceptional cases.

The Committee made the following comment:

‘The formula used in the Article and in several others is intended to ensure that refugees will, regardless of reciprocity, be treated at least as well as other aliens, and to encourage countries to give them better treatment where this is possible. The phrase ‘in the same circumstances’ means that the treatment shall correspond to that granted to other aliens ‘ceteris paribus’.

The IRO made the following comment:

‘In the attention of the ad hoc Committee the formula is intended to ensure that refugees will, regardless of reciprocity, be treated as well as other aliens. In the opinion of the Director General the same difficulties apply in the interpretation of the word, generally’ in Article 4. In countries where the rights of aliens in the matters referred to in these Articles depend on reciprocity arising out of treaty arrangements, it is doubtful whether the formula as it now stands could ensure any rights for refugees.’

‘A further difficulty arising out of the formula is that in many countries it is not possible to speak of general treatment in relation to self-employment, exercise of the liberal professions and housing. These matters are often subject to administrative regulations which are often framed with other objects in view of distinction between nationals and aliens, for example, service in national armies, local residence qualifications etc. or leave much discretion to the competent authorities.’

‘The Director General, therefore, is of the opinion that further consideration should be given to the use of the above-mentioned formula in these Articles and suggests that a formula should be found for each of the subject matters which would take account of the special circumstances relating to the legal regime of each of these matters. In view of the desirability that refugees should be assimilated as quickly as possible into the economic life of their countries of residence, refugees should be granted the same property rights as nationals subject to any special regulations in excluding aliens based on security considerations, for example, property in frontier or strategic areas, government or central bank bonds, shares of shipping companies, mines, etc.

At the second session of the ad hoc Committee the French representative said his delegation accepted Article 8 subject to the following reservations:

Firstly, the words ‘The Contracting States shall accord to a refugee treatment as favourable as possible’ should be understood to constitute a recommendation and secondly the words ‘in any event not less favourable than that accorded generally to aliens in the same circumstances’ were interpreted by the French Government as making the ordinary law concerning aliens applicable to refugees.

In France, the majority of the legal provisions governing the acquisition of immovable property contained no restrictions for aliens. France wished to accord refugees the same treatment in that field as was enjoyed by aliens. The French Government did not want the text of the Article to oblige countries which had granted reciprocity to another State, to accord the benefit of such reciprocal rights to all refugees. In any event, France would not be prepared to accord the benefit of reciprocity to all refugees.

The US representative felt the Committee was getting involved in a question which applied not only to Article 8 but to a good many other Articles. He noted that agreement had been reached in the Committee that refugees should, as a minimum, be granted the same treatment as other aliens, a provision which was important in those countries which did not give any status to persons without nationality. It had been felt that in certain respects a refugee should be given an added advantage, namely treatment under the most-favoured-nation clause. For some purposes, representatives had wished refugees to be treated in the same way as nationals, so that they would be more rapidly assimilated. His delegation believed that refugees should be treated better than aliens in some respects, and that the provisions which accorded better treatment to refugees were not of such major importance to create grave problems for many countries. The representative of the IRO felt that some of the rights mentioned in Article 8 should be dealt with separately; at the present stage of legal development the right to acquire property was often granted to aliens under the same conditions as to nationals. There were, however, specific laws which had developed since 1914 and under which rights were restricted for emergency reasons and a distinction was made between nationals and aliens for such questions as rent control, etc. It would be worth while considering whether the same provisions should cover all those rights, or whether a distinction should be made with regard to the treatment which aliens would have with regard to certain rights.

On the question of drafting he felt that the phrase ‘treatment accorded generally to aliens’ was ambiguous and possibly misleading.

The French representative agreed that the regime generally applied to aliens should be accorded to refugees. To make that quite clear, he proposed that in Article 8 the words ‘accorded by the ordinary law regarding aliens’ be substituted for the words ‘accorded generally to aliens in the same circumstances’. In certain cases, France was in fact prepared to accord to refugees rights wider than those generally accorded to aliens. Article 8 deals with a special case and, on that point, France accepted the provision of equal rights but could not accept the automatic application of reciprocity.

The UK representative said, with regard to the UK comments, that they were limited to Article 9 which dealt with the highly specialized subject of patent and copyright law. The UK was quite satisfied with Article 8 in its present form.

The IRO representative said the remarks of the French representative reflected the intention of the Committee as expressed at its first session as well as the view of IRO, but it could not be claimed that the sense of those remarks was fully met by the wording of the Article. It would be well, since the Convention was, after all, intended to be legally binding, if the Drafting Committee could find a form of words which would avoid a situation in which some Governments, though willing to grant more favourable treatment, might be unable to do so on legal grounds. The problem was to find a formulation to ensure that the treatment to be accorded under Articles 8, 13, 14 and 16 should depend less on
interpretation.

The French representative said the legal obligation established under Article 13 was that the treatment accorded to refugees should be not less favourable than that accorded to aliens generally. The opening words amounted to no more than a recommendation which went beyond the standards laid down for the treatment of aliens generally, but did not establish a strict legal obligation. Each State would interpret the provision in its own way, and could accord more favourable treatment if it wished.

He asked whether he could interpret Articles 7-19 as not raising the question of reciprocity. If it were stated in any of the Articles that the treatment accorded to refugees was that accorded to aliens generally, it was to be understood that such treatment applied in cases where national legislation provided the same rights for refugees as for aliens. If, conversely, the law stipulated that aliens had no right to benefit from any particular provision subject to certain reservations, it was to be taken that those provisions did not apply to refugees.

The representative of the Secretariat explained that the question of reciprocity no longer arose or came into consideration. It had been settled by Article 4. Reciprocity could not be required from refugees, since that would be tantamount to taking away with one hand what was given with the other. When there was ordinary law for aliens it applied also to refugees, although the latter were unable to perform reciprocal obligations. In cases, however, where a special treaty had been concluded between two States making provisions in favour of certain aliens, that treatment would not apply to refugees if they were subject to the ordinary law treatment for aliens.

The Chairman, speaking as representative of Denmark, said that it was true reciprocity agreements might be so numerous that almost all aliens had the same rights; in that case it was unlikely that those rights would be denied to refugees.

The Chairman noted that whereas Articles 10, 12 and 13 included the words ‘lawfully in their territories’, Article 8 apparently made no distinction between refugees in countries adhering to the Convention and refugees residing elsewhere.

The UK representative thought the possibility of according different treatment for resident and non-resident refugees was provided for by the words ‘in the same circumstances’. A refugee abroad would presumably receive the same treatment as an alien abroad.

Article 8 was referred to the Drafting Committee.

The Drafting Committee proposed the following text:

‘The Contracting States shall accord to refugees the most favourable treatment possible and, in any event, not less favourable than that accorded to aliens in the same circumstances regarding the acquisition of movable and immovable property and the rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.’

This text was adopted.

At the Conference of Plenipotentiaries Article 8 was at its first reading unanimously adopted.

The Style Committee proposed the following wording:

‘The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.’

This text was adopted by 21 votes to none.

Commentary

The standard of treatment ‘treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances’ occurs in this Article and in Articles 18 (self-employment), 19 (liberal professions), 21 (housing) and 22 paragraph 2 (education other than elementary education). It constitutes a binding obligation to grant the treatment accorded to aliens generally in the same circumstances and a recommendation for more favourable treatment. (As to treatment accorded to aliens generally see Article 7 paragraph 1; as to the meaning of the term ‘in the same circumstances’ see Article 6).

The question of reciprocity which was raised in the debate is settled in Article 7. Where a refugee enjoys exemption from reciprocity he will receive more favourable treatment. Otherwise, the apprehension expressed in the debate, that the provision would probably lead to general aliens treatment, which is in any case provided for in Article 7, paragraph 1, is probably well-founded in as much as more favourable treatment may require special legislative measures in favour of refugees.

Laws relating to the protection of tenants are of special importance.

Property includes not only tangible property but also securities, monies, bank accounts, etc. It does not include artistic and industrial property which is regulated in Article 14.

As to rights pertaining to property, this includes sale, exchange, mortgaging, income, compensation for expropriation, apart from leasing which is specially mentioned.

The provision applies to all refugees, whether resident in the territory of the Contracting State or not.

Restrictions exist in some countries for the acquisition of immovable property by aliens or for the acquisition of such property in certain areas. General restrictions apply frequently only to aliens resident abroad and in that case the restriction applies also only to refugees residing elsewhere than in the territory of the Contracting State.

Other treaties may be relevant in this connection. Thus the International Covenant on Civil and Political Rights provides in Article 17: ‘Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.’

Protocol No. 1 to the European Convention on Human Rights and Fundamental Freedoms provides in Article 1:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by the law and by the general principles of international law.’

‘The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interests or to secure the payment of taxes or other contributions or penalties.’

The European Convention on Establishment229 provides in Article 4:

‘Nationals of any Contracting Party shall enjoy in the territory of any other Party treatment equal to that enjoyed by nationals of the latter Party in respect of the possession and exercise of private rights, whether personal rights or rights relating to property.’

Article 5 provides, however, that

‘Any Contracting Party may, for reasons of national security or defence, reserve the acquisition, possession or use of any categories of property for its own nationals or subject nationals of the Parties to special conditions applicable to aliens in respect of such property.’

According to Article 6, a list of any other restrictions including conditions of reciprocity on the acquisition, possession or use of certain categories of property have to be transmitted to the Secretary General of the Council of Europe. After the entry into force of the Convention no further restrictions are to be imposed unless a Contracting Party finds itself compelled to do so for imperative reasons of an economic or social character or in order to prevent monopolization of the vital resources of the country.

Each Party shall also endeavour to grant to nationals of other Parties exemptions from the general regulations concerning aliens as are prescribed for in its own legislation.

ARTICLE 14. ARTISTIC RIGHTS AND INDUSTRIAL PROPERTY

In respect of the protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in literacy, artistic and scientific works, a refugee shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence.

Travaux Préparatoires

The Secretariat Draft contained the following Article 6:

‘In respect of industrial and intellectual property (copyright, industrial property, patents, licences, trademarks, designs and models, trade names, etc.) refugees shall enjoy the most favourable treatment accorded to nationals of foreign countries.’

In the comment it was stated:

‘The condition of reciprocity mentioned in the commentary on the preceding Article cannot be applied in respect of intellectual and industrial property in the case of refugees who are stateless. The requirement of reciprocity must therefore be ruled out in all cases.’

‘However, it would appear that in this field it is not sufficient merely to grant stateless persons equality of treatment with foreigners in general and that it is desirable that they should be accorded the treatment enjoyed by nationals of the most-favoured nation, since intellectual and industrial property is the creation of the human mind and recognition is not a favour.’

Article 5 of the French draft read:

‘Intellectual and Industrial Property,

‘In respect of intellectual property (copyright, scientific property, industrial property, patents, trademarks, designs and models, trade names) refugees shall enjoy the most favourable treatment accorded to nationals of foreign countries.

At the first session of the ad hoc Committee, the Danish representative stated that the apprehension which he had felt regarding the operation of the most-favoured-nation clause in connexion with Article 5 did not apply to the operation of that clause in Article 6. Consequently, he could accept the Secretariat’s draft of the Article.

The UK representative reserved the position of his Government regarding the copyright provisions in that Article. Article 6 was adopted unanimously.

The Working Group proposed the following text:

‘In respect of literary, artistic and scientific rights, and industrial property such as patents, designs, models, licences, trademarks, etc. a refugee shall enjoy the most favourable treatment accorded to nationals of foreign countries.

This text was adopted by the Committee.

The Committee made the following comment:

‘1. This Article refers to the creations of the human mind. The recognition of rights in this field is not a favour and it is proper therefore to grant a refugee the most favourable treatment accorded to nationals of foreign countries.

2. Whenever the words ‘the most favourable treatment accorded to nationals of foreign countries’ are used in the draft Convention, they mean the best treatment which is given to nationals of another country by treaty or usage. It is contemplated that should some Contracting States find it necessary, they might reserve with regard to preferential treatment accorded to nationals of certain countries under special agreements or by established tradition, for instance,

among the Scandinavian countries or the Benelux countries.’

France made the following comment:

‘Article 9. This Article is less liberal than the French proposal which provided for the same treatment as is accorded to French nationals. Further, it makes no mention of unfair competition or the suppression of false marks of origin.’

The UK commented:

‘His Majesty’s Government cannot agree to accord to refugees in these matters the most favourable treatment accorded to nationals of foreign countries. They would, however, by prepared to consider sympathetically the possibility of according to refugees the same protection as the nationals of the country in which they are resident, subject to the same conditions and formalities as apply to such nationals.

At the second session of the ad hoc Committee the Chairman said he had received a treatise by an expert on literary rights which showed that the Committee’s draft was inconsistent with existing conventions, including the Bern Convention on Intellectual Property provisions of which bore closely on the nationality of the author and the place where the book was published. That treatise enumerated four possible situations: taking Denmark as an example, any Dane who wrote a book had the Danish copyright wherever the book might be published. The same was true if the author was a national of a country adhering to the Bern Convention. If the author was a national of a country not adhering to the Bern Convention, his rights were safeguarded in Denmark only if the book was first published there. Finally, the rights of a stateless author had no protection anywhere. With regard to the last of those situations, a change was certainly needed; but supposing a national of a country not adhering to the Bern Convention became a refugee and fled to another country not adhering to that Convention it would be unfair if merely by becoming a refugee he were to receive better treatment than a citizen of his country of refuge. The problem was whether a refugee residing in a third country was to receive the same treatment as a refugee in a signatory country.

The Belgian representative reminded the Committee that the Bern Convention on Intellectual Property had been amended in 1948 by the Brussels Conference. Furthermore, negotiations were in progress for convening a fresh conference in Washington that autumn to try to reach agreement on a single convention on the question applicable to both continents. The Italian representative thought that the interpretation of Article 9 would depend on the value given to the expression ‘lawfully residing’. Those refugees who were in possession of the regular cards issues by IRO, the High Commissioner or any future authority, would enjoy the same privileges as other aliens in Italy, but the word ‘preferential’ should not be applied to such treatment.

He felt that the formulation used in Article 8 was particularly felicitous and should be applied also in Article 9 as well as in Articles 10 and 11, and possibly a number of others.

The UK representative gathered that the position of the UK Government was that it was necessary to regard two distinct possibilities. If a book were first published in the UK, any author could secure the UK copyright; if it were published in a country adhering to the Bern Convention, the author could also secure that copyright. The UK proposal was therefore that refugees in their country of residence should receive the rights normally accorded to nationals of that country. The rights they would receive for books first published in other countries would depend on whether those countries were signatories to the Convention or not.

The Belgian representative thought that the difficulty could perhaps be avoided by according refugees ‘national treatment’.

That treatment should not, however, apply to the refugees residing in a country not a signatory to the Convention.

The Chairman observed that the provisions of the Bern Convention had been devised for the protection of the rights of publishers and of authors. If a refugee residing in a country not adhering to the Bern Convention published a book, there could be no objection, if the book proved to be a bestseller, to any British publisher copying it, but if the book was first published in the UK, the rights of the British publisher would, in such a case, not be safeguarded. The fairest solution would be to provide for ‘national treatment’ in the country where the publisher was resident, and in other countries for the same treatment as was normally accorded to citizens of that country, and also to provide for protection of the copyright in any country where the book might first be published.

On the suggestion of the Israeli representative further consideration was deferred to obtain clarifications from the Legal Department.

Sweden proposed to replace the same words by the words ‘in which he has his domicile’.

The Drafting Committee proposed the following text:

‘In respect of the protection of industrial property, such as inventions, designs or models, trade marks, tradenames, etc., and of rights on literary, scientific and artistic works a refugee shall be accorded in the country in which he is resident, the same protection as is accorded to nationals of that country. In the territory of another Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he is resident.’

The French representative wished to know why the word ‘patents’ had been omitted.

The US representative felt that the words ‘such as’ in the first line made ‘etc.’ redundant in the English text. With regard to another issue, he did not wish to reopen the struggle, lost in the Drafting Committee, to insert the word ‘habitually’ but noted for the purposes of the record that the US delegation understood the word ‘resident’ in Article 9 to mean ‘habitually resident’.

Article 9 was revised to bring this provision into conformity with existing Conventions on the subject.

At the Conference of Plenipotentiaries Austria proposed to replace the words ‘in which he is resident’ by the words ‘in which he has his habitual residence or, if he has no habitual residence, in which he resides’.

The Austrian representative felt that Article 9, as at present worded, was somewhat too wide in scope. Under the existing text, a refugee would be entitled to enjoy the protection referred to even if he only stayed in the country for a few days. In the opinion of the Austrian delegation, it was necessary to specify in the text that a refugee must be more than a temporary visitor.

The Colombian representative thought the introduction of the new concept of ‘habitual residence’ would be a risky procedure.

The French representative was afraid that the Austrian amendment was contrary to that delegation’s intentions. If it were adopted, a refugee residing in that country, even for a few days, would enjoy the benefit of the provisions of the amendment in the same way as if he habitually resided there. On the other hand, the introduction of the concept of domicile involved difficulties.

The Colombian representative considered that the concept of ‘residence’ was preferable. Refugees and stateless persons always found themselves in a de facto position before finding themselves in a de jure position.

The President, speaking as representative of Denmark, said the idea originally contemplated had not been fully reproduced. The question of nationality entered into the matter, in as much as the recognition, for instance, of a person’s right in his literary, scientific or artistic works depended on whether the country of which he was a national or in which he resided had signed the relevant international convention. To quote an example, it might reasonably be asked why a refugee from a country which had not acceded to such a convention and who resided in a country of asylum which had also not signed the Convention should, when residing in Switzerland, that is, a few days, be given the same protection in that respect as Swiss nationals.

He therefore appreciated the force of the Austrian and Swedish representatives’ argument that the refugee should have closer ties than Article 9 at present provided for.

The Swedish representative said the problem might arise in three forms: first, an author might have published a work prior to his becoming a refugee, in which case the laws existing at the date of publication would apply to the work. Secondly, a refugee might publish a work in the country of reception; in that case, the legislation of that country would protect his rights. Finally, a refugee might publish a work in a country other than that in which he resided. The question then arose whether the fact that the refugee resided in the country of reception would be sufficient to ensure the protection of his rights. In the circumstances, it seemed that mere residence in a receiving country would not be enough. He was supported by the Norwegian representative.

The Austrian representative said that a distinction could be made between three kinds of domicile: fixed abode, habitual residence and temporary residence. A refugee had no fixed or ordinary abode; the only kind of residence possible for him was habitual or temporary residence. The fact that a refugee possessed a temporary domicile or residence seems insufficient to ensure the protection of his rights. For these reasons, the Austrian delegation had proposed an amendment intended to introduce the idea of habitual residence in Article 9.

The Belgian representative fully agreed with the intention of the Austrian amendment, but observed that its wording did not fully reflect that intention.

As to the Swedish amendment, he thought it would not be possible to require a refugee to possess a domicile in the sense in which that term was used in the amendment.

The Swedish representative said his delegation’s amendment had the same objective as the Austrian delegation, and if its own amendment raised difficulties, it could, if necessary accept the Austrian amendment. He then withdrew his amendment in favour of the Austrian amendment provided that the words ‘or, if he has no habitual residence, in which he resides’ were deleted.

The Austrian representative accepted the Swedish amendment to his proposal.

The High Commissioner drew attention to the fact that there might be refugees, for instance, artists, musicians, and the like, who had no habitual residence.

The French representative disagreed. Refugees had to have a place of habitual residence; otherwise it would be impossible for them to proceed from one country to another, in view of the formalities with which they would have to comply in order to cross a frontier.

The Belgian representative supported the French representative.

The French representative suggested that ‘habitual residence’ constituted a happy medium between ‘domicile’ and ‘residence’.

The Austrian amendment, as amended, was adopted by 13 votes to none, with 7 abstentions.

Article 9 was amended was adopted by 17 votes to none, with 3 abstentions.

Commentary

Article 14 embraces all property created by the human mind as distinct from ordinary property. This is the only case where the standard proposed by the Secretariat (most-favoured-nation treatment) was raised to national treatment.

In the country in which the refugee has his or her habitual residence, he or she is accorded the same treatment as is accorded to nationals of the country of their habitual residence. The scope of the rights depends on the municipal law of the country concerned and the international conventions to which it is a Party. There are numerous such treaties such as the Bern Convention on Intellectual Property of 1886, the Paris Additional Act and Imperative Declaration of 1896, the Berlin Convention of 1908, the Brussels Convention of 1948, the European Convention on Establishment245 and the Paris Universal Copyright Convention of 1952 which in Protocol No. 1 explicitly assimilates refugees and stateless persons to the nationals of the country of their habitual residence. It has since been replaced by the Paris Universal Copyright Convention of 24 July 1971 whose Protocol No. 1 equally assimilates refugees and stateless persons to the nationals of the country of their habitual residence.

Thus the rights of the refugee will depend as to whether the country of his habitual residence is a Party to any of these treaties.

The term ‘habitual residence’ was introduced to distinguish it from purely temporary residence. It was felt that every refugee would have a country of habitual residence. In those cases where they have not, or if they are illegally in the country, they would only receive the treatment accorded to aliens generally under Article 7, paragraph 1. In the rare case where a refugee has several countries of habitual residence, they would be entitled to the same rights as nationals in those countries. In third countries, it is reasonable to claim that they should receive the treatment which is the most favourable, under the laws of several countries of habitual residence.

ARTICLE 15. RIGHT OF ASSOCIATION

As regards non-political and non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances.

Travaux Préparatoires

The Secretariat draft contained the following Article 7:

‘Refugees shall have the right to join non-profit-making associations, including trade unions’In the comment it was stated:

‘The ordinary law of democratic countries includes freedom of association which, in principle, is enjoyed by foreigners as well as by nationals, and Article 20 of the Universal Declaration of Human Rights lays down that: ‘everyone has the right to freedom of peaceful assembly and association.’ In these circumstances, there can be no objection to stateless persons joining non-profit-making associations. There are associations pursuing cultural, sports, social or philanthropic aims, as distinct from associations for pursuing gain, whose aim is the making of profits. In not a few countries, particularly in Europe, the law is based on the distinction between these two categories of associations, which are subject to different regimes. It is therefore advisable to include a special provision relating to non-profit-making associations in the Convention. Profit-making associations are covered by the provisions dealing with the exercise of the professions.

‘It will be noted that the text expressly refers to trade unions, in order that there should be no doubt with respect to them.

The French draft contained the following Article 4 paragraph (b):

‘The High Contracting Parties shall give favourable consideration to the possibility of granting after a certain period to refugees permanently settled in their territories treatment similar to that accorded to their nationals in respect of:

(b) the establishment of non-profit-making associations.’

At the first session of the ad hoc committee, the French representative feared that the Article as drafted went too far in granting certain rights to refugees regardless of whether foreigners in general enjoyed the rights in question.

The Turkish representative agreed. Taken in the context of the Secretariat’s comments, the Article might even imply that refugees were to enjoy the unqualified right to political activities.

The French representative said the French Government, like many other Governments, had special provisions in connexion with foreign associations, which it did not possess in connexion with French associations. In France, refugees could join trade unions, but they could not assume leadership or assume executive positions.

The Chairman, speaking as Canadian representative, said that he could support Article 7 if it read: ‘Refugees shall enjoy the same rights to join non-profit-making association, including trade unions, as are accorded to foreigners generally.’ He was supported by the French, Turkish and UK representatives.

The Danish representative proposed to insert the words ‘to form and’ after the words ‘the right’ and to add at the end of the Article: ‘The High Contracting Parties reserve the right to restrict or prohibit political activity on the part of refugees.’

The US representative felt it would be unwise to adopt the second amendment, which did not seem in keeping with the principles of the UN and might, in fact, be interpreted as forbidding refugees even to express political opinions, and would certainly deny them access to an area of human activity in which they should at least have as much right to engage in as any other aliens.

The Chairman, speaking as Canadian representative, agreed.

The French representative felt that some such clause as proposed by the Danish representative was necessary. He felt refugees were under an obligation to refrain from taking part in internal politics until they had become naturalized citizens. He did not think the provision in question should be inserted in Article 7, as the question of political activities included much more than the right of association.

It was agreed to consider the provision in connection with Article 10 of the Secretariat Draft.

The Belgian representative supported the Danish amendment to add the words ‘to form and’.

The Observer of the American Federation of Labour said that giving the refugees the right to form trade unions was of course unobjectionable in principle; in practice, however, it might well work to their disadvantage, as the existing trade unions in various countries might grow suspicious and even hostile. In some countries, while aliens were permitted to join trade unions, only nationals could be members of the executive councils.

The French representative supported the Chairman’s text.

The Danish amendment was rejected by 5 votes to 1, with 5 abstentions.

The French representative suggested that the Danish representative’s point might be met if the Chairman’s text were amended to read:

‘Refugees shall enjoy the same rights with regard to non-profit-making associations, including trade unions, as are accorded to foreigners generally.’

That text was adopted unanimously.

The Working Group proposed the following text:

‘As regards non-profit-making associations and trade unions the Contracting States shall accord to refugees lawfully in their territory the most favourable treatment accorded to nationals of foreign countries.’

Article 10 was adopted.

The Committee made the following comment:

‘1. This Article refers only to non-profit-making associations. Profit-making associations are covered by Ch. III of the Draft Convention.

2. The Committee agreed that, although not expressly stated, this Article recognizes the right of refugees to form as well as to join associations on the same terms as other aliens. Except as herein provided, the power of governments to regulate the joining or formation of associations is not restricted.

3. In this Article and elsewhere in the Convention the obligations undertaken by Governments refer to matters governed by legislation or within public control. In most countries associations and trade unions would, that is, still regulate their membership by their own rules.

4. The expression ‘lawfully within their territory’ throughout this Draft Convention would exclude a refugee who while lawfully admitted has overstayed the period for which he was admitted or was authorized to stay, or who has violated any other conditions attached to his admission or stay.’ Article 11 of the 1933 Convention and Article 13 of the 1938 Convention were quoted.’

The Austrian Government made the following comment:

‘The general recognition of the right of refugees to form associations could readily cause strained or aggravated relations between the countries of residence and those of origin. It would be preferable, therefore, to leave as a matter of principle, to the administrative authorities of the country of refuge the decision as to the right of refugees to form associations.’

At the second session of the ad hoc Committee the Belgian representative said his Government would like the words ‘nationals of foreign countries’ to be replaced by the words ‘aliens in general’.

The representative of the ILO drew attention to the comments submitted by the Director General of the ILO.

Attention was drawn there to the fact that although Article 19 paragraph 1 of the Draft Convention reproduced most of the rules contained in Article 6 paragraph 12 of the Migration for Employment Convention, the latter also dealt with the question of member-ship of trade unions. In that Convention, the question had been solved by according migrant workers equality of treatment with national workers. In the draft Convention relating to the Status of Refugees, however, Article 10 provided that refugees should be accorded the most favourable treatment accorded to nationals of foreign countries. The ad hoc Committee had linked the right to belong to trade unions with the right to take an active part in their administration and organisation. He wished to point out how desirable it was to have the question of membership of trade unions dealt with in Article 10 of the Convention on the basis of equality of treatment with nationals.

The Israeli representative saw a notable disparity between Article 10 and the comment of the Convention. If that comment correctly set forth the intention of the Article, the words ‘As regards non-profit-making associations’ should be replaced by the words ‘As regards the rights to form or join non-profit-making associations’. The observations of the Austrian Government should receive consideration by the Committee.

The US representative recalled that the representative of the American Federation of Labour had said that such a formulation might harm the cause of refugees by advertising the possibility that they might organise labour unions to compete with those already existing. In his opinion it would be undesirable to amend the wording of the Article, which in any case covered that type of activity.

He noted that the Austrian Government would prefer no reference to rights of association and the Italian observer had indicated that his Government would prefer a minimum formula. The ILO wished to go in the opposite direction and proposed to remove the right to join trade unions to Article 19. Great attention should be paid to the views of countries like Austria, Belgium and Italy which had many refugees. The proposal of the ILO would receive serious consideration by the US Delegation.

The Belgian representative said his Government was tied to certain countries, such as the Benelux countries, and would not accord to refugees the preferential treatment it accorded to Benelux nationals.

The representative of the Secretariat said that Article 10 provided for most-favoured-nation treatment. If a State was a party to the Migration for Employment Convention, a number of aliens would come within the scope of that Convention. If it were not a party, the Convention would clearly not apply. Article 10 solved the problem.

The French representative observed that migrant workers should not be confused with refugees. Some migrant workers were not refugees; some refugees were not employed. The very general formula used left open the question whether membership or organisation of trade unions was meant.

The US representative said it was true that migrant workers and refugees were not identical, though they overlapped. If an international organisation affiliated to the UN had decided to give special treatment to migrant workers, the Committee should consider whether refugees might be in even greater need.

The Italian representative said with regard to Article 10, as with Article 9, the Italian Government felt that refugees should not receive preferential treatment but the same treatment normally accorded to aliens in general. It might be well to add some words to the effect that Article 10 was subject to the provisions of Article 2.

The Swiss representative wanted to know whether Article 10 also covered associations with definitely political aims and, if so whether Contracting States could still ban such associations either under Article 2 or perhaps under the general Article proposed by the UK representative.

Switzerland could only offer first asylum to refugees. She was desirous of according refugees who had been given the right of permanent residence all the advantages offered by the text before the Committee, but it might not be possible for her to accord the same advantages to refugees not granted the right of permanent residence.

The Venezuelan representative said it was common knowledge that some countries did not allow aliens to engage in any kind of political activity, and in such countries the Article would either not apply at all or it would mean that, refugees were to receive the best treatment accorded to aliens generally, but as aliens generally were not allowed to engage in political activity, refugees would also be forbidden to engage in it. The non-profit-making associations might often be political in character.

A second question arising from Article 10 concerned the membership of trade unions. Some countries forbade trade unions to engage in political activities and in such countries any refugee who joined a politically active trade union and took part in its activities would be subject to the sanctions of the law of the country.

There was no need to provide for most-favoured-nations treatment since the privileges granted would only very rarely be made subject to reciprocity, even more rarely to treaty reciprocity. He therefore proposed that the Article be amended so as to provide for the same treatment as was generally accorded to foreign nationals.

He was supported by the Belgian representative.

The US representative emphasized that when the Convention gave refugees the same privileges as aliens in general, it was not giving them very much. He questioned whether, with regard to the right of association, most governments were really not prepared to grant better treatment to refugees. The Committee would recall that the representative of the ILO had proposed that refugees should receive national treatment regarding membership as was provided under the Migration for Employment Convention.

The UK representative said that Article 10 was one of those about the necessity for which the UK Government felt some doubt. If the Committee agreed that the provisions were already sufficiently covered by ILO conventions, it would clearly be undesirable to write the same provisions in to a number of conventions. If, on the other hand, it was thought necessary to include the provisions in the draft convention, consistency was essential.

The French representative did not consider that the matter could be left to the ILO alone since its activities in that domain did not entirely cover the field of application of Article 10. The right to form a trade union and the right of association were two different things. Article 10 had its place in the Convention.

The US representative emphasized the importance of making the Convention as liberal and independent as possible, since he hoped it would receive more ratifications than the ILO Conventions had received in the past.

The representative of the ILO said that the right to form non-profit-making associations was of the highest importance, particularly in the case of refugees, and should certainly be covered by the Convention. The Migration for Employment Convention covered only migrant workers.

The Belgian representative said there were associations other than trade unions involved whose activities might give rise to legitimate concern.

The Chairman said the comments put forward since the Committee had adopted the Article had left him unconvinced of the need for any change in the wording.

The proposal that refugees should receive the most-favourable treatment accorded to nationals of foreign countries with regard to non-profit-making associations was adopted by 7 votes to none, with 4 abstentions.

The Drafting Committee proposed the following text:

‘As regards non-profit-making associations and trade unions the Contracting States shall accord to refugees the most favourable treatment accorded to aliens generally.’

The Chairman put to the vote the proposal that the words ‘The most favourable treatment accorded to nationals of foreign countries’ be replaced by the words ‘the treatment accorded to aliens generally’.

The proposal was rejected by 6 votes to 5, with no abstention.

Article 10 was adopted.

The Committee made the following comment:

‘In articles 10 and 12, the Committee considered carefully suggestions for changes and reservations in the light of particular problems facing certain States, but decided that the previous provision should be retained as the general standard.’

At the Conference of Plenipotentiaries, Switzerland proposed the following amendment:

‘As regards non-political and non-profit-making associations and trade unions…’

The Swiss representative said that in Switzerland certain limits were imposed on the political activity of aliens resident in the country. Refugees were debarred from engaging in any political activity in Switzerland.

His amendment was supported by the Egyptian representative.

The Belgian representative said as regards the establishment of associations and trade unions, the Belgian Government was prepared to grant to refugees the treatment accorded to aliens in general.

The UK representative said it was not clear whether the Article related to joining associations alone, or to forming them also. It was necessary to ensure that the terms of the Article were consistent with ILO Conventions.

The Swiss amendment was adopted by 10 votes to none, with 9 abstentions.

Article 10 as amended was adopted by 16 votes to none, with 3 abstentions.

The Style Committee proposed the text which is now in the Convention.

That text was adopted by 20 votes to none, with 1 abstention.

Commentary

The 1933 and 1938 Conventions referred particularly to associations for mutual relief and assistance. The term ‘lawfully staying’ is explained later. It does not include refugees who have overstayed the period for which they were admitted or authorized to stay or who infringed the conditions of their admission or stay. The French term is ‘résidant régulièrement’. Political associations are excluded; regarding them, refugees are, according to Article 7, paragraph 1, accorded the treatment accorded to aliens generally in the same circumstances. Most favourable treatment means the best treatment which is accorded to nationals of another country by treaty or usage. It also includes rights granted under bilateral or multilateral treaties on the basis of special provisions or the ‘most-favoured-nation’ clause. The Article includes both the right to form and to join associations and trade unions. Where trade unions are concerned, they may, of course, engage in political activities unless this is prohibited under the law of the country concerned. There is, on the other hand, no obligation to admit refugees.

ARTICLE 16. ACCESS TO COURTS

1. A refugee shall have free access to the courts of law on the territory of all Contracting States.

2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.

3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence.

Travaux Préparatoires

Article 9 of the Secretariat draft reads:

‘1. Refugees shall have, in the territories of High Contracting Parties, free access to the courts of law.

2. In the countries in which they have their domicile or regular residence, refugees shall enjoy the same rights and privileges as nationals. They shall, on the same conditions, enjoy the benefit of legal assistance. They shall be exempt from cautio judicatum solvi.

3. In the matters referred to in paragraphs 1 and 2 above, refugees shall be treated, in the countries of the High Contracting Parties in which they do not reside, as nationals of the country where they have their domicile or regular residence.’

In the comment it was stated:

Paragraphs 1 and 2

‘Although in principle the right of a refugee to sue and to be sued is not challenged, in practice there are insurmountable difficulties to the exercise of this right by needy refugees: the obligation to furnish cautio judicatum solvi and the refusal to grant refugees the benefit of legal assistance make the right illusory. In many countries legal assistance is available solely to nationals and only foreigners who can invoke a treaty of reciprocity are granted the benefit of legal assistance.’

‘Refugees shall therefore be exempted, as was done in the Conventions of 1933 and 1938, from the obligation to furnish cautio judicatum solvi and should enjoy the benefit of legal assistance on the same conditions as nationals.’

Paragraph 3

‘Refugees are to have free access to justice, not only in the country of residence but in any other country party to the Convention. They would be entitled in this respect to benefit under the system applied to nationals of the country of asylum in pursuance of treaties in force.’

The French draft contained the following:

‘Article 7. Right to appear before the courts as plaintiff or defendant.

1. Refugees shall have, in the territories of the High Contracting Parties, free and ready access to the courts of law.

2. In the countries in which they have their domicile or regular residence, they shall enjoy, in this respect, the same rights and privileges as nationals. They shall on the same conditions as the latter, enjoy the benefit of legal assistance and shall be exempt from cautio judicatum solvi.

3. In the matters referred to in paragraphs 1 and 2 above, refugees shall be treated, in the countries of the High Contracting Parties in which they do not reside, as nationals of the country where they have their domicile or regular residence.’

At the first session of the ad hoc committee the UK representative proposed to delete the words ‘domicile or’ because the aim was to give refugees the right to sue and to be sued in the country of their residence whether it was the country of their domicile or not. Secondly, it would be better amending the words ‘and shall be exempt’ to read ‘and to be exempt’ so as to emphasize that refugees were subject to the same conditions as nationals regarding to both the benefit of legal assistance and exemptions from cautio judicatum solvi.

As to the first paragraph of the French draft ‘free and ready access’ he preferred the text of the first paragraph of the Secretariat text since the words ‘free’ and ‘ready’ were synonymous if used alone, but used in conjunction, ‘free’ might mean without the payment of fees.

The Israeli representative thought there would be no objection to saying ‘free and ready access’ in the French version, while using the expression ‘free access’ in the English version.

It was so decided.

The French draft as amended was adopted.

The Working Group proposed the following wording:

‘1. A refugee shall have free access to the courts of law in the territories of the Contracting States.

2. In the country in which he has his habitual residence, a refugee shall enjoy in this respect the same rights and privileges as a national. He shall, on the same conditions as a national, enjoy the benefit of legal assistance and be exempt from cautio judicatum solvi.

3. In countries other than the one in which he has his habitual residence, a refugee shall be accorded in these matters the treatment granted to a national of the country of his habitual residence.’

The Chairman remarked that the word ‘territories’ in paragraph 1 should be changed to ‘territory’.

It was so decided.

The US representative pointed out that persons who had only recently become refugees and therefore had no habitual residence were not covered by the provisions of paragraphs 2 and 3, but only by those of paragraph 1.

Article 11, as amended, was adopted.

The Committee made the following comment:

Paragraphs 1 and 2.

‘These paragraphs reproduce the substance of the 1933 Convention, Article 6 and the 1938 Convention, Article 8’.

Austria made the following comment:

‘As regards grants of public assistance to indigenous persons (Armenrecht) and the exemption from cautio judicatum solvi mentioned under ‘Same rights and privileges’ it is suggested that these provisions be given the form of a recommendation.

In this connection, it may be mentioned that refugees change their residence more frequently than other persons, even if they have their habitual residence on the national territory or in a foreign State which grants reciprocity in this respect.’

At the second session of the ad hoc Committee the Drafting Committee proposed the same text as adopted at the first session.

This text was adopted.

At the Conference of Plenipotentiaries Yugoslavia proposed an amendment reading:

‘After habitual residence’ insert the following words: ‘and if he is considered as a refugee under the terms of this Convention’.

The Yugoslav representative stated that the purpose of the amendment was to ensure that persons who were not refugees should not be treated as such i.e., there was resident in Argentina a group of persons who had been pronounced war criminals by the UN War Crimes Commission, but who were treated by the Argentine Government as refugees.

The President said the Yugoslav amendment raised a general problem which related also to Articles 7 (Personal Status) and 9 (Artistic and Industrial Property).

The Belgian representative said the question raised a new problem, namely, the manner in which a decision as to whether an individual did or did not possess the status of refugee was to be reached in various countries.

The Israeli representative did not consider that the purpose of the Yugoslav amendment was in point of fact valid. Once the Convention had been ratified, it would come into force inter paribus. No Contracting State would be able to make a reservation on Article 1. Consequently, a standard would readily be available to all States signatories, and it would be easy enough to ascertain whether an individual was a refugee or whether his claim to be considered as such was vitiated by the exclusion clause of Article 1. In the case of States which had not ratified the Convention, the problem would in any case not arise.

The Belgian representative pointed out that a refugee might fail to retain that status. It should be clearly indicated whether the State making the second decision would be bound by the first one. A decision arrived at between Contracting States would obviously have no binding force on States that had not signed the Convention. But a second investigation into a refugee’s position might become necessary between the Contracting States them-selves.

The Israeli representative said that, assuming the Governments of the UK and Yugoslavia were both parties to the Convention, and that a refugee residing in the UK wished to sue a debtor in Yugoslavia, the legal authorities in the latter country would ask the UK authorities whether the claimant was a refugee. If the answer was in the affirmative, the problem would be solved for the Yugoslav court.

The Yugoslav representative considered that the problem to which his amendment related existed in the application of the Convention in general. He would accordingly withdraw his amendment for the time being, and submit a proposal of a more general nature at a later stage.

In connection with a reservation by the Egyptian representative the Belgian representative said the practice of demanding cautio judicatum solvi was dying out, and that, in Belgium, for instance, it was no longer required, except in commercial litigation. Furthermore, exemption from cautio judicatum solvi was provided for in one of the first few clauses in all bilateral treaties.

Paragraph 1 of Article 11 was adopted unanimously.

At the request of the Egyptian representative paragraph 2 was voted on in two parts. The provision concerning legal assistance in the country of residence was agreed unanimously.

The provision regarding exemption from cautio judicatum solvi was adopted by 19 votes to 1.

Paragraph 2 as originally drafted was adopted by 18 votes to none, with 2 abstentions.

Article 11 as a whole was adopted by 19 votes to none, with 1 abstention.

The Style Committee proposed the text which is now in the Convention.

This text was adopted by 21 votes to none.

Commentary

Paragraph 1

‘Free access’ to courts does not mean that a refugee is free from the payment of any fees or charges such as court fees which nationals have to pay in the same circumstances. In conjunction with Article 29 such fees and charges may not be higher than those levied on nationals. Free access is provided for to courts only, not to administrative authorities, but other Articles of the Convention such as Article 32 provide for access to administrative authorities. The provision applies to all refugees wherever resident and whether the residence is lawful or not. According to Article 42 no reservation may be made to this provision.

Paragraph 2

The provision regarding legal assistance applies only in so far as legal assistance is provided for by the State or under a State support scheme. In some countries legal assistance is provided for by Bar associations. Cautio judicatum solvi is the security for costs which foreigners have sometimes to furnish for the costs of the other party in civil proceedings provided the plaintiff loses the lawsuit. As to meaning of habitual residence see Article 14. Paragraph 3

This paragraph, too, applies also to refugees who have their habitual residence in a non-Contracting State. Refugees who have not yet established habitual residence in any country will not benefit from the provisions of paragraphs 2 and 3.

Other treaties to which the Contracting State is a party may be relevant in this connection such as the International Covenant on Civil and Political Rights (Articles 14, 16), the European Convention for the Protection of Human and Fundamental Freedoms (Articles 4, 6 paragraphs 1 and 3). That Convention provides, in particular, for the free assistance of an interpreter, if necessary. Further, the Hague Convention on Civil Procedure and the European Convention on Establishment and its Protocol are relevant. According to Article 7 of that Convention, nationals of the parties shall have access to the judicial and administrative authorities of the other States Parties and shall have the right to obtain the assistance of any persons of their choice who is qualified by the law of the country concerned. Article 8 provides for free legal assistance in another State party on the same basis as nationals of the State concerned. Article 9 provides for exemption from cautio judicatum solvi for nationals of the States Parties. It further provides that when a person has been exempted from cautiojudicatum solvi an order to pay the expenses of proceedings shall be enforceable in the country of the person’s residence.

Judicial Decisions

In Austria, the Supreme Court had to decide on 24 July 1957 in a divorce case of Hungarian refugees on a claim that the wife had not her habitual residence in Austria because she wanted to emigrate as quickly as possible.

The Court held ‘habitual residence is the place in which a person uses to sojourn during some time even if not uninterruptedly. The intention to remain permanently is not relevant but only whether a person makes, in fact, a place the centre of their life, their economic existence and their social relations. This is also the case of the refugee who establishes residence in a place in order to clarify his or her future fate. Even if no permanent residence is planned, nevertheless residence until a definite settlement of his or her life can be carried out. Until such time, the place of residence of the refugee is the centre of their life, their economic existence and their social relations. It cannot be said of the plaintiff that she does not have her habitual residence in Austria.’

In France, the Tribunal de la Seine decided on 14 May 1954 in Ilitsch v. Banque Franco-Serbe that the Franco-Yugoslav Convention was applicable to refugees not deprived of nationality and that they were therefore exempt from cautio judicatum solvi.

In the Federal Republic of Germany the Federal Court held, on 10 June 1982277, concerning the maintenance compensation of a Yugoslav wife living in Yugoslavia who had been divorced from her refugee husband living in the Federal Republic, that since the spouse had the status of refugee according to the 1951 Convention and had his habitual residence in the Federal Republic he had, according to Article 16 paragraph 2 of the Convention, the same access to courts as German nationals and was accordingly as to international competence in the same position as a German national. From the international competence concerning the divorce procedure, followed that for the procedure concerning maintenance.

In Switzerland the Federal Tribunal had to decide, in Grundul v. Bryner on whether the appellant resident in Sweden was entitled to exemption from cautio judicatum solvi. He was born in Latvia, then part of Russia; he emigrated to China in 1913, acquired Latvian nationality in 1918; in 1949 Latvia was occupied by the Soviet Union; in 1955 he emigrated to Norway. He had been recognized by the IRO.

While he was thus a refugee under Article 1A(1) of the Convention the Court held that he was also a refugee under Article 1A(2). His former habitual residence was China where he had a well-founded fear of persecution. The Court referred to the Hague Convention on Civil Procedure of 17 July 1905 and Article 16 of the 1951 Convention and held that he was exempt from cautio judicatum solvi.

ARTICLE 17. WAGE-EARNING EMPLOYMENT

‘1. The Contracting States shall accord to refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.

2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting State concerned, or who fulfils one of the following conditions:

(a) He has completed three years’ residence in the country;

(b) He has a spouse possessing the nationality of the country of residence. A refugee may not invoke the benefits of this provision if he has abandoned his spouse.

(c) He has one or more children possessing the nationality of the country of residence.

3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees with regard to wage-earning employment to those of nationals, and in particular of those refugees who have entered their territory pursuant to programmes of labour recruitment or under immigration schernes.’

Travaux Préparatoires

The Secretariat draft contained the following provision:

‘1. The restrictions ensuing from the laws and regulations for the protection of the national labour market shall not be applicable in all their severity to refugees domiciled or regularly resident in the country.

2. The restrictions to which paragraph last preceding refers shall be automatically suspended in favour of refugees domiciled or regularly resident in the country, to whom one of the following circumstances applies:

(a) The refugee has been resident for not less than three years in the country;

(b) The refugee is married to a person possessing the nationality of the country of residence;

(c) The refugee has one or more children possessing the nationality of the country of residence.

3. The High Contracting Parties reserve the right to accord the treatment given to national wage-earners to specified categories of refugees.’

In the comment it was stated:

‘This Article is of particular importance. Because of their limited resources and their status, wage-earning employment is the only type of employment to which most refugees can aspire.

The first two paragraphs repeat the provisions of the 1933 and 1938 Conventions. The third paragraph is new.280 The French draft contained the following provision:

‘The High Contracting Parties undertake to accord refugees regularly resident in their territory the most favourable treatment given in the country in question to nationals of a foreign country as regards the right to engage in wageearning employment.

In any case, the restrictive measures ensuing from the application of laws and regulations for the protection for the national labour market shall be automatically suspended in favour of refugees who fulfil one of the following conditions:

(a) having completed at least three years’ residence in the country;

(b) having a spouse possessing the nationality of the country of residence;

(c) having one or more children possessing the nationality of the country of residence.’

At the first sessions of the ad hoc Committee the representatives of Israel and the US declared themselves in favour of the first paragraph of the French text as more liberal than the Secretariat draft.

It was decided to take the French draft as the basis of discussion.

The Belgian representative said that if the Committee approved the clause providing for the most favourable treatment, he would be obliged to make reservations.

The US representative supported the French text.

In reply to a statement by the representative of the IRO the French representative said he saw no objection to the deletion of the expression ‘at least’.

The representative of the IRO recalled that IRO had concluded agreements with certain countries of reception providing for a mass influx of refugees into those countries under a scheme for manpower recruitment. Those agreements stipulated that after the completion of their original contracts, refugees would be entitled to the same conditions as nationals as regards the right to engage in wage-earning employment. He proposed to add after Article 13 a supplementary Article dealing with that special category of refugees reading as follows:

‘1. The High Contracting Parties undertake to accord to refugees admitted to their territory under a scheme for the recruitment of foreign manpower, the same treatment accorded to their nationals in respect of access to paid employment, provided they have fulfilled the obligations of their original contract.

2. Refugees admitted to the territory of the High Contracting Parties under an immigration scheme shall also be accorded the same treatment as nationals with respect to paid employment.’

The French representative thought the supplementary Article would go beyond the intentions of his Government. A provision of this kind would be unfavourably received by the trade unions. There was no reason for including in a general convention a special provision which related only to certain particular territories.

The Belgian representatives shared the views of the French representatives.

The US representative wondered whether a provision reproducing the gist of paragraph 3 of Article 13 of the Secretariat draft might not be added to the French text; it should, however, be amended to read that the High Contracting Parties would give favourable consideration to the possibility of according the treatment given to national wage-earners to specified categories of refugees instead of merely stating that ‘they reserve the right’ to do so.

The rightful place of the suggestion of the representative of the IRO was in the agreements which IRO and the countries concerned had concluded or would conclude. It did not seem that Governments which would conclude such agreements in the future should be committed in advance.

The UK representative said the 1933 and 1938 Conventions had concerned only a limited group of refugees. Since then, the economic situation of the UK has changed. The total number of refugees had risen by 250,000 since 1939. It was not a question of refusing to give refugees the most favourable treatment regarding wages or working conditions proper; the restrictions which the UK could not lift was that concerning access to paid employment of their own choice. The UK was therefore unable to accept the first paragraph of the French text.

Regarding the second paragraph, he believed that the length of residence provided for in sub-paragraph (a) was inadequate.

As regards sub-paragraph (c), all children born on British territory were automatically British subjects; the application of that sub-paragraph would lead to a capricious discrimination between refugees, by favouring those who had children born after their arrival.

The Chairman, speaking as representative of Canada, said that his country could easily accept the text of the Article proposed by the French delegation.

The Danish representative said that his country’s position was much like that of the UK. He has no serious objections to the solution proposed by the French representative but was not in a position to express his Government’s opinion at the existing juncture.

The Chinese representative supported the provision giving refugees the most favourable treatment possible. He suggested, however, that the expression ‘a favourable treatment’ be substituted for ‘the most favourable treatment’. His delegation saw certain objections to the adoption of sub-paragraphs (a), (b) and (c) of the second paragraph. For the same reasons as those stated by the UK representative it could not accept the fixing of the time of residence at three years. There was no reason in law to favour a refugee who married a person of Chinese nationality.

The US representative remarked that the Committee could choose between two solutions: either to provide only minimum measures in favour of refugees or to lay down measures more favourable to them and to permit reservations. In his opinion the latter solution should be adopted.

The Belgian representative observed that the French text comprised a first part which represented an advance upon previous conventions on the subject and a second part which merely reproduced the stipulations of the 1933 and 1938 Conventions. While it was understandable that some delegations should hesitate to accept the innovation in the first paragraph, it would be surprising if the Committee should wish to retract from the results obtained by the previous Convention.

The French representative observed that the restrictions referred to in the second paragraph were certainly not those stipulated in agreements between certain countries and the IRO. They were restrictions deriving from the domestic law of various countries. Like the representative of Belgium, he thought that the Committee should not take a retrograde step. The representative of the IRO supported the solution recommended by the US representative. With regard to refugees in special categories it was because the existence of the IRO would be terminated shortly that the Organisation would like to see a clause safeguarding the position of these refugees in the future.

The Chairman appealed to all members to accept the French text of the first paragraph; every delegation would have the right to make whatever reservations it deemed fit.

The UK representative said that in the circumstances he would not oppose the French draft.

The Israeli representative suggested that the words ‘shall not be applied to refugees…’.

His proposal was accepted by the French representative.

The Belgian representative suggested that in the first paragraph of the French text the expression ‘réfugiés résidants habituellement’ should be replaced by the words ‘réfugiés résidants régulièrement’.

The representative of the IRO asked the French representative whether in the first line of the second paragraph, he would agree to the substitution of the following phrase, taken from recommendation 86 of the ILO: ‘In countries in which employment of migrants is subject to restrictions, those restrictions shall not apply to refugees’.

The US representative suggested that the word ‘migrants’ should be replaced by ‘aliens’.

The French representative had no objection.

The UK representative thought that the term ‘protection of national workers’ could be substituted, which might satisfy the representative of the ILO as well as of the American Federation of Labour.

The French draft was, in principle, unanimously adopted on the understanding that its final drafting would be done at a later date.

The US representative submitted an additional paragraph, based on the supplementary Article suggested by the IRO, reading:

‘The High Contracting Parties shall give sympathetic consideration to assimilating the rights of refugees in this regard as far as possible to those of nationals, particularly with regard to refugees who enter pursuant to programs of labour recruitment or pursuant to immigration schemes.’

It was decided in principle to insert that paragraph after the French text.

The Working Group proposed the following text:

‘1. The Contracting States undertake to accord to refugees lawfully in their territory the most favourable treatment given to nationals of a foreign country in the same circumstances as regards the right to engage in wage-earning employment.

2. In any case, restrictive measures imposed on aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of the Convention for the Contracting State concerned, or who fulfil one of the following conditions:

(a) He has completed three years’ residence in the country;

(b) He has a spouse possessing the nationality of the country of residence;

(c) He has one or more children possessing the nationality of the country of residence.

3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees in this regard to those of nationals, and in particular of those refugees who have entered their territory pursuant to programs of labour recruitment or under immigration schemes’.

The Group made the following comment:

‘The expression ‘in the same circumstances’ is intended to mean throughout the Convention that the same treatment would be given to refugees as to other aliens admitted to the country for the same purposes and under the same conditions.

Nothing in this Article is intended to restrict the power of governments to attach conditions to the admission of refugees, to demand that they fulfil these conditions or to remove such conditions. This Article is not intended to remove conditions made prior to the entry into force of the Convention.’

The UK representative remarked that, while wishing to be as liberal as possible, his Government was unable to accept without reservation the provisions of Article 12. However, it hoped and intended to relax as soon as possible the restrictions which, at the present time, it was compelled to impose.

The Danish representative said the UK representative’s remarks applied also to the position of his Government.

The US representative suggested that the words ‘undertake to’ in the first line of paragraph 1 should be replaced by ‘shall’, and that the word ‘give’ in the second line should be replaced by ‘accorded’.

It was so decided.

The Committee made the following comment:

Paragraph 1

‘As indicated in the comment to Article 8, the phrase ‘in the same circumstances’ refers to the purpose for which the refugee is in the country and the conditions imposed on his presence there. There is no intention to restrict the power of governments to attach conditions to the admission of refugees or to demand that they fulfil these conditions. Nor is the provision intended to remove any such conditions imposed prior to the entry into force of this Convention.’

Article 7 paragraph 1 of the 1933 Convention and Article 9 paragraph 2 of the 1938 Convention were quoted.287 Austria made the following comment:

‘The application of the most-favoured-nation clause in the planned general form would meet in Austria with the difficulties indicated in Article 4. The number of persons to whom the most-favoured-nations clause applies is, as a rule, relatively small. Since Austria has hundreds of thousands of refugees, their inclusion in a most-favourednation clause which Austria would be prepared to grant to another State, would make it impossible for Austria to conclude such agreements in the future.’

Paragraph 2

‘The great number of refugees in Austria does not permit placing them on an equal footing with Austrian nationals in matters of employment. In the case of Austria periods of residence required as a basis for a favourable treatment of refugees would have to be much longer. It should be required, moreover, that the refugees adjust themselves successfully during this period to the economic life of the country of refuge.’

‘Instead of the proposed form of Article 12 it is suggested, therefore, to leave detailed administrative regulations of matters of employment to the country of refuge, while stressing the most favourable treatment as a matter of principle.’

France made the following comment:

‘Article 12. As this Article stands at present, the French Government would be obliged to reserve the right to apply the law of 1932 providing for the possible limitation to a certain percentage of the number of foreigners working ‘in the same circumstances’.

The UK commented:

‘Articles 12 and 13. While His Majesty’s Government will consider sympathetically the possibility of relaxing the conditions upon which refugees have been admitted to the UK for employment since the war, they regret that for the reasons which were explained fully to the ad hoc Committee it is not possible to go as far as the Article proposes.’

‘In particular, they would draw attention to the fact that the principle in paragraph 2(c) of Article 12 would operate quite differently between countries whose nationality laws are based on the jus sanguinis and those whose laws are based on the jus soli: in the latter case its operation would be quite capricious, and even if His Majesty’s Government were able, at some time in the future, to accept the general principles of the Article, they could not accept this particular provision.’

Italy stated in its comments:

‘As regards more particularly the right to work, the Italian Government has repeatedly shown its willingness to cooperate in all humanitarian activities within the UN or with any other associations of civilised and democratic peoples. It may therefore accept to enforce in Italy some provisions of this kind as soon as unemployment has fallen back to the average figure recorded for a certain number of pre-war years to be determined.’

Australia made the following comment:

‘In paragraph 1, the expression ‘lawfully in their territory’ is not explained. An explanation is given in the notes on Article 10 but these notes are not an integral part of the Convention. The explanation indicates that the expression would exclude a refugee who, while lawfully admitted, had overstayed the period for which he was admitted or who had violated any other conditions attaching to his entry or stay. It is noted that the words ‘subject to the conditions under which such refugees were admitted’ are specifically included in Article 21.

‘Concerning paragraph 2, in the Commonwealth and State Government service, the employment of other than natural-born or naturalized Australian subjects is prohibited or severely circumscribed. These restrictions would apply to all refugees, including those who fulfil any one of the conditions specified. Australia maintains these conditions on security grounds and not for the protection of the ‘national labour market. It is presumed that this case has been envisaged and is not affected.

‘The notes to Article 12 which, it is pointed out again, are not a part of the text, state that the phrase ‘in the same circumstances’ in paragraph 1 refers to the purpose for which the refugee is in the country and the conditions imposed on his presence there. It is said that there is no intention to restrict the power of governments to attach conditions to the admission of refugees. However, paragraph 2 is prefaced by the words ‘in any case’ and appears to apply quite apart from paragraph 1 and any conditions of entry. The question is of primary importance to Australia.

‘A condition of entry for refugees is the acceptance of a two-year work contract which involves direct employment. IRO has accepted this condition of entry by a formal agreement with the Australian Government which includes clauses guaranteeing the rights of refugees to equal pay with local workers and other protective clauses.’

‘No difficulty would arise in the case of condition (a); Australia could not accept points (b) and (c) owing to the work contract.’

At the second session of the ad hoc Committee the US representative wished to stress that without the right to work all other rights were meaningless. In view of that he felt that perhaps the provisions of Article 12 did not go far enough.

The French representative said that if Article 12 remained as it stood, France would be obliged to express reservations with regard to that part of paragraph 2 beginning with the words: ‘or who fulfils one of the following conditions’ because of existing labour regulations. First there was the Law of 1932 which authorized the fixing of a maximum percentage of aliens employable in each branch of activity. Then there was a flexible regulation issued in 1946 concerning aliens’identity cards which laid down different conditions on which the holder might accept employment. These provisions did not have the effect of denying refugees the right to work.

The question was whether to retain paragraph 2 of Article 12, and thereby run the risk of having a considerable number of reservations, or whether to delete the paragraph and leave those States which were more favourably placed, some latitude to go further than the text.

The UK representative mentioned the example of a woman who had come to the UK with a permit to engage in one particular sort of employment and had given birth to a child two days after her arrival. Such a woman would be free from all the restrictions imposed by her work permit. That was why it was fair to say that in countries whose nationality laws were based on jus soli the provision in paragraph 2(c) would operate very oddly.

The Belgian representative said his Government accepted Article 12. With regard to the first paragraph he would, however, like to express a reservation relating to countries members of regional unions.

The IRO representative hoped that any reservations countries found necessary to make would be specific and not apply to the Article as a whole.

The Chinese representative said he would prefer an amendment to the present wording of Article 12, but should the majority of the Committee wish to retain it, his Government might have to make a reservation to it.

The French representative suggested transforming the second part of paragraph 2 into a recommendation.

The UK representative proposed the deletion of paragraph 2(c).

This proposal was rejected by 6 votes to 2, with 5 abstentions.

The Drafting Committee proposed the following wording:

‘1. The Contracting States shall accord to refugees lawfully in their territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances, as regards the right to engage in wage-earning employment.

2. In any case restrictive measures imposed on aliens for the protection of the national labour market shall not be applied to a refugee who was already exempt from them at the date of entry into force of this Convention for the Contracting States concerned, or who fulfils one of the following conditions:

(a) He has completed three years’ residence in the country;

(b) He has a spouse possessing the nationality of the country of residence;

(c) He has one or more children possessing the nationality of country of residence.

3. The Contracting States shall give sympathetic consideration to assimilating the rights of all refugees in this regard to those of nationals, and in particular those refugees who entered their territory pursuant to programmes of labour recruitment or under immigration schemes.’

The UK representative called attention to a misprint in the text of the Article. In the fourth line of the second paragraph, the words ‘Contracting States’ should be in the singular.

The Chinese representative thought that in the second line of the first paragraph the words ‘nationals of a foreign country’

should be replaced by the word ‘aliens’.

He was opposed by the US representative.

Article 12 was adopted.

In Articles 10 and 12, the Committee considered carefully suggestions for changes and reservations noted in the light of particular problems facing certain States, but decided that the previous provisions should be retained as the general standard.’

At the Conference of Plenipotentiaries Australia proposed to add the following new Article which might either precede Article 12 or be placed with other interpretative Articles:

‘Articles 12, 13, 14 and 21 of this Convention shall be read subject to the proviso that a Contracting State shall have the right in the interests of public welfare to impose reasonable conditions as to the type and place of employment, for a limited period, upon any immigrant who seeks admission to its territory, for the expressed purpose of taking up permanent residence there.’

Belgium proposed to amend paragraph 2(b) as follows:

‘He has a spouse possessing the nationality of the country of residence and resides with that spouse.’

The UK proposed to substitute in paragraph 2(a) the word ‘four’ for the word ‘three’ and to delete paragraph 2(c).

Yugoslavia proposed:

‘As regards the right to engage in wage-earning employment, the Contracting States shall accord to refugees lawfully in their territory the same treatment as they accord to their nationals.’

The representative of the Federal Republic of Germany supported the Yugoslav amendment.

The Colombian representative submitted that if the Yugoslav amendment to paragraph 1 was adopted, paragraphs 2 and 3 would obviously become pointless.

The Swedish representative said while his delegation was not opposed to the Yugoslav amendment, it would have to enter a reservation should that amendment be adopted and, indeed, as far as paragraph 2 was concerned, even if the Yugoslav amendment was not adopted. It would also be obliged to enter a reservation to paragraph 1, as it could not undertake to extend to refugees the preferential treatment granted to nationals of the Scandinavian countries under existing special treaties.

The Swiss representative said his country could not undertake to apply the provisions of paragraph 2(a) and (b) for an indefinite period.

The Danish representative said his delegation would also have to enter a reservation relating to the whole of Article 12.

The Austrian representative said he was instructed to enter a reservation concerning Article 12 which his Government could accept as a recommendation but not as a binding provision.

The Belgian representative submitted his amendment to paragraph 2. He said Belgium was prepared to accept Article 12 but would have to enter reservations in respect of paragraph 1 in view of the economic and customs agreements existing between Belgium and certain neighbouring countries.

The Italian representative said the Italian Government could do no more than allow refugees to benefit by the laws and regulations concerning work, employment, salaried professions, insurance and so on, which at the moment applied to all aliens residing in Italy.

The French representative opposed the Yugoslav amendment and the UK amendment to paragraph 2(a).

The Australian representative gave the reasons for his amendment.

The Norwegian representative said Norway accepted the principle laid down in Article 12 but would have to enter a reservation regarding regional agreements. He opposed the Yugoslav amendment.

The UK representative withdrew his amendment.

The representative of the Federal German Republic said he would abstain from voting on the Yugoslav amendment.

The Yugoslav amendment was rejected by 16 votes to 1, with 4 abstentions.

The French representative suggested adding to Article 2(b): ‘Should a refugee have abandoned his spouse, he should not be entitled to benefit by this provision.’

The Belgian representative accepted the French suggestion.

The Belgian amendment to sub-paragraph 2(b), as amended by the French representative, was adopted by 6 votes to 5, with 9 abstentions, subject to appropriate drafting changes by the Style Committee.

Article 12 as amended was adopted by 16 votes to none, with 4 abstentions.

The Style Committee proposed the wording which is now in the Convention.

That wording was adopted by 19 votes to none, with 4 abstentions.

The Yugoslav representative said he had abstained because of the restriction measures referred to in paragraph 2.

Regional and National Measures

The OECD, by its Decision on liberalization of manpower movements of 30 October 1953 as amended by Decision Convention(56)258 and adopted on 30 September 1961, decided to grant employment permits to workers who are nationals of other Member countries if suitable labour, forming part of the regular labour force, is not available. For the purpose of the Decision, the authorities of each Member country are required to treat refugees recognized as such in another Member country as if they were nationals provided they have the right to return there.

By recommendation Convention(58)196 (Final) and Convention(60)65 (Final), also adopted in Decision Convention(61)41, refugees recognized as such by Member countries proceeding to take up employment in another Member country are, subject to certain conditions, to be granted the right to return, valid for a period of at least two years dating from the time of departure. They are also to be granted visas free of charge, where these are required, and are to be issued with appropriate residence and work permits.

The Council of Ministers of the Member States of the EEC adopted a Declaration of Intention concerning Refugee Workers.305 According to the Declaration, each Member State will give particularly favourable consideration to the admission to its territory, for the purpose of taking up wage-earning employment, of refugees recognized as such according to the 1951 Convention, and established in the territory of another Member State, particularly with a view to granting such refugees as favourable treatment as possible.

In Belgium, according to a Circular of the Ministry of Employment and Labour:

‘1. Work permits ‘A’ or ‘Convention’ (valid for an unlimited period and issued without regard to the national labour market) are to be issued to refugees fulfilling the conditions of Article 17 paragraph 2 of the Convention and also to refugees who have been employed in Belgium for two years and whose families are residing with them.

‘2. Work permits ‘B’ (valid for one year and issued having regard to the national labour market) are to be issued to refugees for whom Belgium is the first country of asylum and to refugees recognized as such in a Member country of the OECD (with the exception of Portugal and Turkey), provided they have a right of return to that country valid for at least 18 months. If these conditions are fulfilled refugees may also be issued with work permits ‘B’ for priority industries (mining, quarries, metallurgy and agriculture), without regard to the national labour market.’

In Austria, by Order of the Federal Ministry of Social Administration of 28 February 1968 refugees are assimilated to nationals as regards the right to work by automatic deferment of the appointed Day. The appointed Day is the day when they have completed three years’ residence in Austria.

In the Federal Republic of Germany, according to the Ordinance concerning Worker Permits of 2 March 1971,307 persons entitled to asylum are entitled to unlimited work permits.

In the Netherlands, by a Decree of 14 January 1966, persons who have been admitted as refugees by the Minister of Justice do not require an employment permit, nor do aliens who hold a ‘residence permit’ or a ‘settlement permit’ and who are in possession of a mandate certificate issued by the UNHCR Representative, in the Netherlands.

The Ministry of Social Affairs and Public Health informed UNHCR that refugees are to be considered as Netherlanders for the purpose of an Arrangement between Musicians and employers that there must be a fixed relation between the number of Netherlanders and aliens employed as musicians in any cafe, restaurant, etc.

In Senegal by Law No. 88-027 of 24 July 1968, the beneficiaries of refugee status are assimilated to aliens who are nationals of a country which has passed with Senegal the most favourable agreement on establishment concerning the activity concerned. Refugees are exempt from reciprocity and the provisions for the protection of the national labour market are not applied to them.

In Switzerland, Article 2 of the Implementing Ordinance of the Federal Department of Economy of 4 March 1965 relating to the decision of the Federal Council of 26 February 1965 concerning the reduction of foreign manpower provides:

‘Refugees recognized as such in Switzerland by the Federal authorities are not to be taken into account when computing the number of foreign workers employed.’

Commentary

Article 17 is one of the most important of the Convention. A recommendation concerning wage-earning employment can already be found in the Arrangement concerning the legal status of Russian and Armenian refugees of 30 June 1928 (Rec. 6) and the rule that the provisions for the protection of the national labour market shall not be applied in all their severity to refugees may also be found in the 1933 and 1938 Conventions. Paragraph 2 of Article 17 has been taken from these Conventions.

The term ‘wage-earning employment’ has to be understood in its widest sense, covering every case of a person having paid employment. Only self-employment and the liberal professions are excluded but not persons assisting members of the liberal professions (such as doctors, lawyers, etc.) and employed by them.

As to the meaning of the term ‘lawfully staying’ see below.

As to the meaning of the ‘most favourable treatment accorded to the nationals of a foreign country’ see Article 15.

As to the meaning of the term ‘in the same circumstances’ see Article 6.

The second paragraph does not mean that refugees must be granted national treatment. In many countries aliens require a work permit and in this case, it is required of refugees, too, unless they have been specifically exempted from it, but it has to be accorded to them ex officio if they fulfil any of the conditions stipulated in paragraph 2. It does not exclude conditions attached to the admission of refugees or their stay. Measures for the protection of the national labour market are either measures imposed on aliens such as restrictions in time or space or concerning employment in certain occupations, or restrictions on the employment of aliens such as fixing a certain number or percentage of aliens in general or in certain occupations or enterprises, or the provision that aliens may only be employed if no nationals are available for the job in question. As the Article provides that refugees shall be ‘exempt from restrictions’ it would seem not to exclude the imposition of restrictions in the future. Only restrictions for the protection of the national labour market are excluded, not measures taken in the interest of national security such as the prohibition of employment of aliens in defence industries. The prohibition of the employment of aliens in the civil service or in certain categories of the civil service which exists in many countries, is also not excluded.

The term ‘residence’ in paragraph 2 is not qualified and might, therefore, include residence which may have been illegal for a certain time but was subsequently legalized; short absences should not be taken into account.

Paragraph 2(b) covers even cases where a husband and wife do not live together or are separated, but not if they are divorced; it seems reasonable, however, as was stated in the debate, to also apply the provision in this case if the husband has to pay alimony to the wife. It seems, on the other hand, reasonable to exclude pure marriages of convenience.

The term ‘children’ in paragraph 2(c) covers illegitimate as well as legitimate children. Here too, it seems reasonable to exclude the father of an illegitimate child who never cared for the child.

Paragraph 3 covers refugees admitted under agreements with the IRO even after its demise, or independently under special schemes. The preoccupation of Australia about refugees who had been admitted with a work contract obliging them to perform specific work for two years was not well-founded. This is covered by the conditions of admission, but after the two years the refugees should, according to the recommendation in paragraph 3, be granted national treatment.

A number of States made reservations to Article 17. They either withdrew them later, however, or put its provisions into force in spite of the reservation. Thus, the provisions of Article 17 can today be regarded as the general standard as regards the right of refugees to engage in wage-earning employment.

ARTICLE 18. SELF-EMPLOYMENT

‘The Contracting States shall accord to a refugee lawfully in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.’

Travaux Préparatoires

The Secretariat draft contained the following provision:

‘The High Contracting Parties undertake to accord to refugees regularly resident in their territory the most favourable treatment given to foreigners by various treaties (or the treatment given to foreigners generally) as regards the right to engage in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.’

In the comment it was stated:

‘It should be noted that a certain number of refugees are handicraft workers with special knowledge and occupational skills or manufacturers familiar with manufacturing processes peculiar to their country of origin. ‘There are two possibilities:

1. The first would be to offer refugees the most favourable treatment given to foreigners by virtue of treaties.

2. The second would be to given refugees the treatment given to foreigners generally. ‘It will be for the Committee to decide between the two possibilities.’

The French draft contained the following:

‘The High Contracting Parties undertake to accord to refugees regularly resident in their territory the most favourable treatment given to nationals of a foreign country as regards the right to engage in commerce, industry and handicrafts and to establish commercial and industrial companies.’

At the first session of the ad hoc Committee the Chairman announced that the French delegation had withdrawn its draft Article 11.

The UK representative said that his remarks with regard to Article 13 also applied to some extent to Article 14. The UK consequently might have to make the same reservation with regard to Article 14 as to Article 13. He thought Article 14 would be more acceptable if it were to read: ‘The High Contracting Parties undertake to accord to refugees regularly resident in their territory the treatment given to foreigners generally, under the same circumstances, as regards…’

The amendment was motivated in part by the fact that foreigners arriving in the UK were required not to engage in selfemployment without permission for a certain time, after which they were free to engage in any profession they choose.

The Turkish representative said under Turkish law, only nationals could be self-employed, and Turkey would consequently have to reserve its position on that Article, no matter what its wording. He thought the most acceptable solution would be to accord to refugees the treatment given to foreigners generally.

The Belgian representative was also in favour of according to refugees the treatment given to foreigners generally. The US representative felt that solution would confer no real benefits on refugees, and wondered whether it might not be possible to find a third solution, whereby refugees would be granted not the most favourable treatment, but a treatment more favourable than that given to foreigners generally.

The Brazilian representative thought the Committee should adopt the first Secretariat solution and accept the fact that several signatories would make reservations with regard to certain professions.

The Turkish representative proposed the following text:

‘The High Contracting Parties undertake as far as possible to accord to refugees regularly resident in their territory the most favourable treatment possible, which shall in no case be less favourable than the treatment given to foreigners generally…’

The IRO representative suggested that the Committee should adopt the form of words which accorded refugees the most favourable treatment given to foreigners by virtue of treaties, specifying that such treaties must not conflict with restrictions laid down in national legislation in regard to the exercise of certain professions.

The text submitted by the Turkish representative was adopted.

The Working Group proposed the following wording:

‘The Contracting States shall accord to a refugee lawfully in their territory the most favourable treatment possible and, in any event, treatment not less favourable than that accorded to foreigners generally in the same circumstances, as regards the right to engage in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.

This text was adopted.

The Lebanese Government made the following comment:

‘The Ministry commends the noble and humanitarian motives which inspired the Draft Convention and the documents in question, but it wishes to emphasize generally that Lebanon, a country which is already quite densely populated, and which for a number of years has shown the greatest liberality and hospitality towards the Palestinian refugees, could not safely afford to increase her undertakings in this direction.

‘This hesitation applies particularly to certain provisions of the Draft Convention it is feared might give certain undesirables access to Lebanese territory or asylum there.313 Articles 3, 13 and 14 of the Draft go even further; they make no distinction between such categories of undesirables and for instance, the Palestinian refugees now in the Lebanon.’

At the second session of the ad hoc Committee the French representative said the French Government was quite prepared to accept the text of Articles 13 and 14 to the extent that by the expression ‘treatment…accorded generally to aliens’ was understood the ordinary law treatment of aliens, but not to the extent that, by the operation of a reciprocity clause, France would be lead to extend to refugees in general the reciprocity agreed upon with one or more countries on a particular point.

The Drafting Committee proposed the following text:

‘The Contracting Parties shall accord to refugees lawfully in their territory treatment as favourable as possible and in any event, not less favourable than that accorded generally to aliens in the same circumstances, as regards the right to engage in agriculture, industry, handicrafts and commerce and to establish commercial and industrial companies.’

That text was adopted.

At the Conference of Plenipotentiaries the UK representative suggested to insert the words ‘on his own account’ after the word ‘engage’.

The Australian representative said he was abstaining on Articles 12, 13 and 14 pending the decision yet to be taken on his paper318 relating to the addition of an interpretative Article.

Article 13 as amended was adopted by 20 votes to none, with 2 abstentions.

The Style Committee proposed the text which is now in the Convention.

That text was adopted by 20 votes to none, with 1 abstention.

Commentary

No corresponding provision existed in the pre-war treaties and arrangements.

As to the meaning of ‘treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally’ see Article 13.

The Article applies to refugees ‘lawfully in the territory’ of the Contracting States. Thus, physical presence, even a temporary stay or visit are sufficient, in distinction to ‘lawfully staying’, the terminology used in other Articles. To a refugee who is not lawfully in the country but who lives elsewhere, on the other hand, Article 7 paragraph 1 applies, that is, the treatment accorded to aliens generally. The refugee must, of course, fulfil the conditions required for the exercise of the activity in question, such as specific qualifications, licences or concessions.

ARTICLE 19. LIBERAL PROFESSIONS

1. Each Contracting State shall accord to refugees lawfully staying in their territory who hold diplomas recognized by the competent authorities of that State, and who are desirous of practicing a liberal profession, treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.

2. The Contracting States shall use their best endeavours consistently with their laws and constitutions to secure the settlement of such refugees in the territories, other than the metropolitan territory, for whose international relations they are responsible.

Travaux Préparatoires

The Secretariat draft contained the following Article 15:

‘1. The High Contracting parties shall accord the most favourable treatment given to foreigners by virtue of treaties (or the treatment given to foreigners generally) to refugees who hold diplomas recognized as equivalent to the diploma required by the country of asylum and are desirous of practicing a liberal profession.

‘2. They shall promote, to the fullest extent compatible with their national laws, the settlement of such refugees in their colonies, protectorates and overseas territories and mandated or trust territories.’

In the comment it was stated:

‘Access to the liberal professions, which are the most highly regulated of all and generally speaking, overcrowded in European countries, is, in principle, barred to foreigners to some extent.

‘There are two possible solutions:

‘1. The first would be to accord to refugees the most favourable treatment given to foreigners by virtue of treaties.

2. The second would be to accord to refugees the treatment given to foreigners generally.

‘This latter solution would in practice be of little help to refugees, since in point of fact access to the professions is accorded only to foreigners – and even then with reservations – by virtue of treaty provisions.’

The French draft contained the following Article 13:

‘1. The High Contracting Parties shall accord as favourable treatment as possible to refugees who hold diplomas recognized by the competent authorities of the country of asylum and who are desirous of practicing a liberal profession.

‘Overseas territories.

2. The High Contracting Parties shall as far as possible facilitate the settlement of these refugees in their overseas territories and Trust territories.’

At the first session of the ad hoc Committee the French representative pointed out that Article 13 of the French draft had been amended by the addition of the words ‘and which would be in no case inferior to the treatment accorded to foreigners generally.’

Paragraph 1 of Article 13 of the French draft, as amended was adopted.

The UK representative preferred the deletion of paragraph 2.

The French representative thought it would be preferable to delete paragraph 2 and insert a separate Article applying to all professions.

The US representative proposed to replace the word ‘promote’ in the English text by the word ‘encourage’. On his suggestion it was decided to consider a separate Article to be drafted by the Belgian and French representative.

The UK representative, although still in favour of the deletion of the paragraph, put forward an alternative text as he had been requested:

‘The High Contracting Parties shall use their best endeavours, consistently with their laws and constitutional practices, to secure the settlement of such refugees in their colonies, protectorates and Trust Territories.’

The Israeli representative pointed out that such a provision might be made to apply only to Article 15, or, alternatively, it might be included in the broader context of the colonial clause (Article 36). In his opinion, the provision should remain as a special paragraph of Article 13. Many countries were under pressure not to admit to their metropolitan territories refugees

who might compete with professional workers resident there. In some colonial areas, however, there was an urgent need for qualified persons, and nationals of the metropolitan country were often reluctant to respond to that need.

The Brazilian representative agreed.

The UK representative accepted a suggestion of the Belgian representative to replace the words ‘constitutional practices’by ‘constitutional usage’.

The Danish representative said the Danish Government might be willing to accept Article 15 with certain reservations. The US representative was prepared to accept the provision as part of Article 15.

The UK text of paragraph 2 of Article 15, as amended, was approved.

The Working Group proposed the following text:

‘1. The Contracting States shall accord to refugees lawfully resident in their territory who hold diplomas recognized by the competent authorities of the country of residence, and who are desirous of practicing a liberal profession, the most favourable treatment possible and, in any event, treatment not less favourable than that accorded to aliens generally in the same circumstances.

2. The Contracting States shall use their best endeavours, consistent with their laws and constitution, to secure the settlement of such refugees in their colonies, protectorates or in trust territories under their administration.’

That text was adopted.

At the second session of the ad hoc Committee the Italian representative reiterated the reservations of his Government with regard to granting permission to refugees lawfully resident in Italy to accept employment.

The Drafting Committee proposed the text adopted at the first session.

There ensued a discussion on the correct equivalent of the term ‘lawfully in their territory’ in French. Article 14 was provisionally adopted.

At the Conference of Plenipotentiaries the Netherlands representative questioned whether Article 14 paragraph 2 which dealt with the reinstallation of refugees, was in fact an appropriate provision for the Convention, the aim of which was to provide them with a legal status. He also pointed out that the words ‘colonies, protectorates or in Trust Territories under their administration’ were not consistent with the wording of Article 34, the ‘Colonial Clause’.

Article 14 paragraph 1 was adopted by 19 votes to none, with 2 abstentions.

Article 14 paragraph 2 was adopted by 16 votes to none, with 5 abstentions, subject to drafting changes by the Style Committee.

Egypt proposed a provision reading:

‘After Article 14, and the following, which might possibly form a new Article:

‘It is understood that the provisions of Articles 12, 13 and 14 above refer only to the right to engage in any form of industry or commerce, or to practice any trade or profession, which the laws of the country concerned do not or may not in future reserve for its nationals or which are not covered by special regulations.’

The Belgian representative wondered whether the Egyptian amendment was really essential to the safeguarding of such rights. The UK representative agreed.

The Egyptian proposal was rejected by 13 votes to 2, with 5 abstentions.

The French representative suggested that instead of ‘in their colonies, protectorates or in Trust Territories under their administration’ the words ‘territories for the international relations of which it was responsible’ might be used.

The drafting changes were left to the Style Committee.

The Style Committee proposed the existing wording.

The French representative proposed ‘the territories for whose international relations they are responsible’.

The UK representative proposed the addition of the words ‘other than the metropolitan territory’. The French representative had no objection.

The French amendment in this form was adopted by 19 votes to none, with 2 abstentions.

Paragraph 1 was adopted by 21 votes to none, with 1 abstention.

Paragraph 2 was adopted by 19 votes to one, with 2 abstentions.

Article 19 as a whole and as amended was adopted by 20 votes to none, with 2 abstentions.

Regional and National Measures

The question of equivalence of diplomas has often been regulated by treaties. The Inter-Universities Bureau of UNESCO delivers opinions on the equivalence of diplomas.

The Committee of Ministers of the Council of Europe adopted Recommendation 253 (1960) to the effect that Governments should consider reviewing, whenever possible, statutory rules applicable to refugee doctors and dentists so as to enable them to exercise their profession in the country in which they live.

In Austria, the Practice of Medicine Act of 30 September 1949 as amended by the Acts of 18 July 1952 and of 15 December 1954 provides that persons of German ethnic origin (‘Volksdeutsche’) who entered Austria before 31 December 1951 (or at a later date as former prisoners-of-war or for purposes of family reunion) are allowed to practice medicine provided they possess an Austrian diploma of doctor of medicine, or an equivalent diploma recognized in Austria not later than on 31 December 1955 and have practiced their profession in their country of origin. Dental surgeons (‘Zahnärzte’) are included.

Under a law of 31 March 1964, foreigners including refugees who do not have an Austrian medical degree or who have not passed a qualifying examination in Austria may be granted special permission for purposes of studying in a university clinic, medical institution or hospital. Special permission may also be granted to foreign nationals as regards the independent exercise of the medical profession if they possess equivalent medical training, and subject to reciprocity.

Refugees are expressly exempted from the condition of reciprocity if they have been resident in Austria for three years.

In Belgium, an Act of 13 May 1955 concerning the equivalence of diplomas in the case of political refugees, allows refugee doctors and dentists who have a Belgian ‘diplome scientifique’ to obtain the ‘titre légal’ (that is, the official qualification which is required in order to practice) provided they pass a test before the ‘Jury Central’ appointed by the Minister of Education. This applies to refugees within the mandate of UNHCR and who entered Belgium before 1 January 1953.

According to the Act of 21 May 1929,341 persons holding foreign medical or dental diplomas entitling them to practice in the country where the diploma was delivered may, with the consent of the Jury Central be exempted from having obtained a Belgian diploma in order to practice in Belgium. According to Royal Decree of 13 February 1933342 the Jury Central may require candidates to sit for an examination in order to obtain an exemption.

In the Federal Republic of Germany, the Federal Medical Practice Act (‘Bundesärzteordnung’) of 2 October 1961 provides that homeless foreigners within the meaning of the Homeless Foreigners Law of 25 April 1952, that is, refugees and displaced persons under the protection of the IRO who were on Federal territory before 1 July 1950, are entitled to practice medicine on the same basis as German nationals. Examinations passed abroad shall be recognized provided they are deemed by the highest Land authority to be equivalent to German examinations.345 There are special provisions for hardship cases. Equal provisions apply to dentists.

Aliens who do not come within the provisions of the Homeless Foreigners Law may, pursuant to the Dental Practice Act (‘Gesetz über die Ausübung der Zahnheilkunde’) of 1952, the authorized to engage in dental practice in the Republic. In Switzerland, according to the Federal Decree of 24 June 1960, Hungarian refugees who fled to Switzerland in connection with the events of November 1956 and who are students of the medical profession or who have been trained in Hungary as doctors, dental surgeons, pharmacists or veterinarians are allowed to sit for the Federal Professional Examination and to obtain the corresponding Federal diploma entitling them to practice their profession in Switzerland on an equal footing as Swiss nationals.

Hungarian refugees attending a Swiss university may sit for the Federal Medical Examination at the level which they have attained at the time of entry into force of the Decree without having to furnish a Swiss Matriculation Certificate. Hungarian refugees who, prior to the entry into force of the Decree, have already completed their studies at a Swiss university, are required to sit for the Federal Professional Examination in order to obtain the Federal diploma.

Hungarian refugee doctors, dental surgeons, pharmacists and veterinarians who completed their studies in Hungary prior to leaving the country must also pass the Federal Professional Examination in order to obtain the Federal diploma. In order to be granted the Federal diploma, refugees who have passed the Federal Professional Examination must have worked in Switzerland as a professional assistant for a period of two years.

According to the Ordinance of the Federal Ministry of the Interior of 21 February 1979, refugees are admitted to the Professional Examinations if they possess a matriculation or equivalent certificate. Refugees having obtained a medical or pharmacy degree before obtaining asylum are admitted to the Federal Professional Examination only after one year’s study at a Swiss university. The diploma is delivered to them only after three years’ practical or scientific activity at a Swiss university.

In Australia, refugees with recognized qualifications are generally eligible to practice their profession.

Commentary

No corresponding provision existed in the pre-war treaties and arrangements.

The term ‘liberal professions’ may have a different meaning in different countries. It includes, in any case, lawyers, doctors, dentists, veterinarians, engineers and architects working on their own account. It may also include pharmacists, artists and accountants. The term ‘liberal’ means that the persons must possess certain qualifications or a special licence.

The word ‘diploma’ includes any degree or certificate required to exercise a particular profession. Salaried assistants to members of the liberal professions fall under Article 17. As to the recognition of diplomas see Article 22.

Paragraph 2 is in the nature of a recommendation. The words ‘consistent with their laws and constitution’ were inserted in order not to offend local authorities which may have a certain autonomy in the matter.

ARTICLE 20. RATIONING

‘Where a rationing system exists, which applies to the population at large and regulates the general distribution of products in short supply, refugees shall be accorded the same treatment as nationals.’

Travaux Préparatoires

The Secretariat had proposed the following provision:

‘Where a rationing system exists, refugees shall be treated on the same footing as nationals’

It made the following comment:

‘Where it exists, rationing is intended to ensure that the inhabitants of a country receive some items of prime necessity. It is therefore essential that refugees should be admitted to the benefits of the rationing system.’

At the first session of the ad hoc Committee the Article was, after some discussion on its wording and the question of housing, adopted on the understanding that the text could be amended during the second reading.

The Working Group proposed the Secretariat text.

That text was adopted.

The Committee made the following comment:

‘This Article applies to the generally recognized systems of rationing, which apply to the population at large and regulate the general distribution of products in short supply’.

The Israeli Government made the following remarks in its comments:

‘It (the Israeli Government) feels compelled to draw attention to one aspect of the Draft. The Israeli Government appreciates the great value of the comments contained in Annex II. It understands that it was not the purpose of these comments to serve as a running commentary but to underline such elements of the provisions of the Convention as are not self-explanatory, or to trace the origin of the provisions of this Draft, or finally to enlarge or to narrow the meaning of the provisions as they stand.

‘At this moment, the Convention is not a self-contained document, since numerous clarifications are contained in the comments, and the precedent of a dual document, established by the ad hoc Committee, should not be followed. Whatever provisions are contained in the comment which either go beyond the text of the Convention or restrict its meaning should, if any of these interpretations are maintained in the final text, be incorporated in the Convention itself.

‘In the view of Government, Articles 15 and 17 are examples of language used in a more generous way in the Convention and narrowed down in the comment.’

At the second session of the ad hoc Committee the Drafting Committee proposed the following text:

‘Where a rationing system exists, which applies to the population at large and regulates the general distribution of goods in short supply, refugees shall be treated on the same footing as nationals.’

The US representative presumed that the mention of ‘refugees’ without any qualifying phrase was intended to include all refugees, whether lawfully or unlawfully in the territory.

The Chairman said his presumption was correct.

The UK representative explained that the expression ‘on the same footing’ incorporated the notion in the expression ‘in the same circumstances’.

The US representative said that the expression also took account of the possibility of different rations for different categories of persons, for example, for children. The words ‘in the same circumstances’ were intended to refer principally to the state of sojourn, the words ‘on the same footing’ referred also to other circumstances.

Article 15 was adopted.

At the Conference of Plenipotentiaries the Article was adopted at first reading by 17 votes to 9, with 1 abstention.

The Style Committee proposed the text which is now in the Convention.

That text was adopted by 19 votes to none.

Commentary

This provision too is an innovation. It applies to all refugees in the territory, whether lawfully or unlawfully there. It follows from the debate that it refers to consumer goods in short supply, not to commodities for commercial or industrial use.

Petrol was also mentioned as not being included. The provision does not apply to products available in sufficient quantities but which are allocated to certain groups, for example, indigent or old persons, or at more favourable prices or conditions. In these cases, Article 7 paragraph 1 applies.

The words ‘on the same footing as nationals’ imply that a refugee does not have to comply with requirements applied to other aliens such as the production of a national passport in order to obtain a ration card.

ARTICLE 21. HOUSING

‘As regards housing, the Contracting States, in so far as the matter is regulated by law or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.’

Travaux Préparatoires

At the first session of the ad hoc Committee the US representative proposed during the discussion of Article 16 (Labour Relations and Industrial Accidents) that in sub-paragraph 1(a)(i) of the ILO text reading:

‘1. Each member for which this Convention is in force undertakes to apply without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to control by the administrative authorities:

(i) remuneration including family allowances, where these form part of the remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on hours of work, minimum wage for employment, apprenticeship and training, women’s work and the work of young persons.

The words ‘enjoyment of the benefits of collective bargaining and housing accommodations’ should be added at the end of the sub-paragraph.

The UK representative expressed doubts regarding any reference to the question of housing. In his own country it would be difficult to guarantee exactly equal treatment for refugees on the matter of housing, since the housing shortage was acute and the matter had to be dealt with on the basis of need.

The Chinese representative agreed but felt that Governments were protected by the terms of sub-paragraph 1(a).

The French representative was in favour of equal treatment with nationals.

The Danish representative said that in the absence of instructions from his Government, he would be forced to abstain from endorsing the inclusion of housing accommodations.

The Chinese representative was in favour of deleting the mention of housing. The UK representative agreed.

The Committee decided, by 5 votes to 2, with 4 abstentions, not to include a reference to housing accommodations in Article 16.

The US representative explained that he had abstained from voting because, although he did not think the reference to housing should be inserted at that point in the draft Convention, he felt it should be considered at a later stage. It might form the subject of a separate Article. The logical course would be to insert it after Article 20.

The Chairman said, in the opinion of the representative of the Secretary General, the provisions adopted in Article 5 might be considered to cover that question in a certain sense.

The US representative said Article 5 dealt with the rights in immovable property and leases. The problem, however, was to decide whether refugees might benefit under any social welfare measures taken by States with a view to providing housing accommodation for certain categories of persons.

He submitted the following draft Article:

‘The High Contracting Parties undertake to accord to refugees who are lawfully admitted to their territory the most favourable treatment possible and, in any event, not less favourable than that given to foreigners generally as regards housing accommodations, in so far as this question is regulated by laws and regulations or is subject to the control of Government authorities’.

The Chairman, speaking as representative of Canada, stated that he was ready to accept that provision on condition that it was compatible with the federal laws in force in his country.

The French representative wondered whether the text concerning non-discrimination did not have some bearing on the special question of housing.

The Belgian representative pointed out that the US text was not redundant, in as much as it required the High Contracting Parties not merely not to discriminate against refugees, but to ensure them ‘the most favourable treatment possible’.

The UK representative was doubtful about accepting a text which would impose special obligations on Governments in a field which was very often outside their control.

The Chairman suggested the addition of the words: ‘in so far as it lies within the discretion of local government authorities.’

That text was adopted.

The Working Group proposed the following text:

‘As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations, or is subject to the control of public authorities, shall accord to refugees lawfully in their territory the most favourable treatment possible and, in any event, treatment not less favourable than that accorded generally to aliens in the same circumstances.’

That text was adopted.

At the second session of the ad hoc Committee the Drafting Group proposed the text which is now in the Convention.

Thai text was adopted.

At the Conference of Plenipotentiaries Yugoslavia proposed an amendment reading:

‘As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations, or is subject to control by public authorities, shall accord to refugees settled in their territory the same treatment as they accord to their own nationals.’

The Yugoslav representative said that unless refugees were given national treatment, it would be impossible for them to secure accommodation.

The Yugoslav amendment was rejected by 9 votes to 1, with 7 abstentions.

Article 17 was adopted by 17 votes to none, with 1 abstention.

The Style Committee proposed the text which is now in the Convention.

That text was adopted by 19 votes to none.

Commentary

This Article, too, is new. It relates to rent control and allocation of flats and premises. The matter falls frequently within the competence of local authorities and they are equally bound by the provision.

Article 6 of the Migration for Employment Convention 1949 provides that each Contracting Party ‘undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to migrants lawfully within its territory treatment no less favourable than that which it applies to its own nationals in respect of…accommodation…’. There may thus be a conflict when a refugee is also a migrant worker and the State concerned is a Party to both Conventions. The Chairman states that in such a case the refugee would be accorded whichever was the better treatment.

The term ‘housing’ may have a wider connotation than ‘accommodation’; it includes housing schemes and allocation of premises for the exercise of one’s occupation.

ARTICLE 22. PUBLIC EDUCATION

1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

2. The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships.

Travaux Préparatoires

The Secretariat draft contained the following Article 20:

1. Refugees shall enjoy, in the territory of the High Contracting Parties, the same treatment as nationals in regard to elementary education.

2. In the case of other education, refugees shall enjoy the most favourable treatment accorded to nationals of a foreign country, in particular as regards the remission of fees and the award of scholarships.’

In the comment it was stated:

Paragraph 1

‘Elementary education is to be provided for refugees in the same manner as for nationals, because elementary education satisfies an urgent need (it is for this reason that most States have made it compulsory), and because schools are the most rapid and effective instrument of assimilation.

‘Article 26 of the Declaration of Human Rights lays down that:

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.

Paragraph 2

The other grades of education are, generally speaking, open to foreigners; refugees will therefore receive the benefit of this circumstance if they are placed on the same footing as other foreigners.

Since refugees are in a precarious economic position and the Government of their country of origin takes no interest in them, it would be desirable to do more than merely accord them the ordinary treatment enjoyed by foreigners; otherwise in practice although secondary and higher education is open to them, they will be unable for want of money, to take advantage of it. For this reason it is proposed to grant refugees the most favourable treatment granted to nationals of a foreign country.’

The French draft contained the following:

‘Article 15.

1. Refugees shall enjoy, in the territory of each of the High Contracting Parties, the same treatment as nationals with respect to primary education.

‘2. With regard to secondary and higher education, refugees shall enjoy the most favourable treatment accorded to nationals of a foreign country. In particular, they shall benefit, to the same extent as the latter, from the total or partial remission of fees and charges and the award of scholarships.’

At the first session of the ad hoc Committee the French representative withdrew Article 15 of his draft in favour of the Secretariat draft.

Paragraph 1 of Article 20 was adopted.

The UK representative recalled with regard to paragraph 2, that his Government had made reservations to the corresponding Articles of the 1933 and 1938 Conventions. In the UK, higher education was in the hands of schools and universities, which were for the most part private institutions. If it was understood that paragraph 2 applied to public education only, his delegation would see no objection to accepting that text.

The Israeli representative proposed that ch. IX should be entitled ‘Public Education’, to avoid any misunderstanding.

The Belgian representative recalled that certain countries had set up a system of exchange of scholarships under the auspices of UNESCO. Those scholarships were financed from the public funds of the State concerned and they were based on the principle of reciprocity. Since, under Article 8, the enjoyment of rights subject to reciprocity should not be refused to refugees, it seemed that, under Article 20, they would be entitled to claim the benefit of that category of scholarship. That, however, would not correspond to the intentions of the States concerned or of UNESCO.

It was decided to state in the report that the provision would not apply to such bilateral agreements.

Paragraph 2 of Article 20 was adopted on the understanding that the chapter would be entitled ‘Public Education’.

The Working Group proposed the following text:

‘1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

2. The Contracting States shall accord to refugees the most favourable treatment accorded to nationals of a foreign country with respect to other education and, in particular, as regards the remission of fees and charges and the award of scholarships.’

Article 17 was adopted.

The Committee made the following comment:

‘Public Education. The Committee intended this provision to apply only to education provided by public authorities from public funds and to any education subsidized in whole or in part by public funds or to scholarships derived therefrom.

Paragraph 1. Article 26 of the Declaration of Human Rights lays down that:

‘(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory…’

Paragraph 2. The Committee agreed that paragraph 2 was not intended to prejudice reciprocal arrangements for scholarships granted by governments including those encouraged by UNESCO or other organizations. However, it was the intention of the Committee to obtain for refugees as generous educational opportunities as possible.

Article 12 of the 1933 Convention was quoted and Article 14 of the 1938 Convention referred to.

Austria made the following comment:

‘It is suggested incorporating in the text itself of the Convention the provision listed in the footnotes, by which this Article is restricted to ‘education provided by public authorities from public fund and any education subsidized in whole or in part by public funds, or to scholarships derived from them’. This could be done by the addition of a third paragraph, considering, moreover, that the title ‘Public Education’ will not appear in the final text of the Convention.’

Israel made the same comments as on Article 15.

The UK commented:

‘Article 17. In regard to awards of scholarships and the other matters dealt with in paragraph 2 of this Article, His Majesty’s Government would be prepared (as in the case of other matters dealt with in the Convention) to accord to refugees treatment not less favourable than that accorded to aliens in the same circumstances. They cannot, however, bind themselves to accord to refugees the most favourable treatment accorded to nationals of any foreign country.’

At the second session of the ad hoc Committee the Belgian representative said that his Government could not accord the most favourable treatment accorded to aliens where secondary and university education was concerned. The question involved was that of admission to studies which was conditional on previous studies having been completed; the latter had to be verified before the person concerned could be admitted to certain schools or universities. To this end his Government would sign conventions with certain countries but could not accord that treatment to refugees in general.

The Venezuelan representative said he could not agree that refugees be given the most favourable treatment in regard to higher education or to diplomas. Venezuela granted certain facilities in those respects to a number of neighbouring countries, the so called ‘Bolivar countries’; those facilities it would probably be unable to extend to refugees.

The IRO representative felt that the treatment to which the Venezuelan representative had referred was preferential treatment. Of course, a reservation could be made to make it clear that preferential treatment was not meant to be covered by the most-favoured nation clause.

The US representative did not think that preferential treatment had been excluded from the most-favoured-nation clause and would not like that interpretation adopted.

The Belgian representative said reservations should be avoided even if it meant having to adopt a regime which was less favourable but did nevertheless constitute a basic statute for refugees.

The French representative was prepared to accept Article 17 as it stood.

The Belgian representative saw no objection to retaining Article 17, subject to reservations.

The Chairman said the question of education and degrees covered by Article 17 should not be combined with the exercise of the liberal professions dealt with in Article 14.

The Belgian representative suggested that the words ‘access to education’ be inserted after the words ‘and in particular as regards’ in paragraph 2.

The Belgian representatives amendment was adopted.

The Drafting Committee proposed the following text:

‘1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with regard to elementary education.

‘2. The Contracting States shall accord to refugees the most favourable treatment accorded to nationals of a foreign country with respect to education other than elementary education and as regards for example, access to studies, the remission of fees and the award of scholarships.’

Article 17 was adopted.

At the Conference of Plenipotentiaries Yugoslavia proposed the following amendment.

‘The Contracting States shall accord the same treatment to refugees as to their own nationals with regard to elementary education and also to education other than elementary education, particularly, as regards access to studies, the remission of fees and the award of scholarships.’

The German Federal Republic proposed:

‘1. The Contracting States shall accord to refugees the same treatment as accorded to nationals with regard to all types of education including access to studies. They shall let refugees participate in the award of scholarships and in remissions of fees and charges.

‘2. The Contracting states shall accord to refugees the right to pass examinations, recognized by the state, on the same conditions as accorded to nationals.’

The Yugoslavian representative withdrew his amendment in favour of that submitted by the delegation of the Federal Republic of Germany.

The representative of the German Federal Republic said such generosity as he proposed would not only benefit refugees, but also the countries in which they resided. Moreover, although assimilation was difficult for the elderly, everything should be done to make it possible and easy for young people to share fully in the life of the country of their adoption. They should consequently be allowed access to all educational opportunities in their new homeland. It was with that principle in mind that the IRO had established universities, which had done excellent work for refugees.

It should not be forgotten that in the past emigrants had made fruitful contributions to the culture of their countries of adoption.

Refugees should not only be permitted to sit for examinations, but should also be granted the appropriate diplomas. If it proved impossible to provide for the granting of diplomas, refugees should at least be allowed to pass examinations which would prove of help to them in their careers.

The Observer of the World Jewish Congress drew attention to the proposal put forward by the World Jewish Congress.385 Speaking in his personal capacity as Vice-Chairman of the World University Service he said that Article 17 was not satisfactory. The question of scholarships was of utmost importance to students but under Article 17 refugees would not be granted the most favourable treatment accorded to aliens, because that treatment derived from bilateral agreements. The inquiry carried out by the World University Service had proved that the mechanism of bilateral agreements would be inapplicable to refugees. As regards the recognition of diplomas, he was afraid that the wording of paragraph 2 as submitted by the German Federal Republic might in practice operate to the disadvantage of refugee students.

The UK representative said that Article 17 raised issues of some difficulty for the UK Government. He considered it desirable to make it perfectly clear that paragraph 1 was intended to refer elementary education, admission to which was controlled by the State.

As to paragraph 2, most-favoured-nation treatment raised the problem of such special arrangements as might be made between various countries. It might be that schemes for the exchange of students and for scholarships would be developed. There again, such special arrangements would be inapplicable to refugees. He suggested the use of a general phrase such as ‘treatment no less favourable than that accorded generally to aliens in the same circumstances.’

The Austrian representative supported the point that explicit reference should be made in paragraph 1 to ‘public elementary education’.

The Austrian, Belgian, Italian, Netherlands and Swedish representatives supported the UK representative.

The French representative said the French delegation was not opposed to Article 17. The reservation made by his delegation concerned the award of scholarships to aliens.

The amendment of the German Federal Republic was rejected by 10 votes to 3, with 6 abstentions.

The UK amendment was adopted by 12 votes to 1, with 5 abstentions.

Article 17 as amended was adopted by 16 votes to none, with 2 abstentions.

The Style Committee proposed the following text:

‘1. The Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education.

‘2. The Contracting States shall accord to refugees treatment no less favourable than that accorded to aliens generally in the same circumstances with regard to education other than elementary education and, in particular, as regards access to studies, the remission of fees and charges and the award of scholarships.’

The High Commissioner for Refugees said in Article 22 the Conference was introducing a fourth type of treatment by omitting the words ‘as favourable as possible’, thus further detracting from the treatment to be accorded under paragraph 2. He therefore hoped that the Conference would agree to restore the same provision as was made in Articles 13, 18, 19 and 21 by adding the words ‘as favourable as possible and, in any event’, between the words ‘treatment’ and ‘no less’ in paragraph 2.

The second point he wished to raise concerned the recognition of school certificates, diplomas and degrees, which was of special importance to refugees and which was dealt with in Article 19 (‘Liberal Professions’). It would be to the advantage of refugees if the Conference would agree to add after the words ‘access to studies’ in paragraph 2 some such words as ‘the recognition of foreign school certificates, diplomas and degrees.’

The representative of the German Federal Republic sponsored the amendment proposed by the High Commissioner.

The first amendment was adopted by 22 votes to none.

The Venezuelan representative said the question was whether the phrase ‘recognition of diplomas’ was to be interpreted as meaning that refugees holding diplomas would have the right to practice in the country of refuge the professions covered by such diplomas. He had to reserve his position with regard to the origin of such degrees and diplomas.

The second amendment to paragraph 2 of Article 22 suggested by the High Commissioner was adopted by 19 votes to none, with 3 abstentions.

Paragraph 2 of Article 22 as amended was adopted by 19 votes to none, with 3 abstentions.

Article 22 as amended and as a whole was adopted by 22 votes to none.

The President suggested that the Conference was now in a position to take a decision on a suggestion by the Israeli representative, namely that the following sentence be inserted in the Final Act:

‘The titles of the chapters and the articles of the Convention are included for practical purposes and do not constitute an element of interpretation.’

The Israeli suggestion was adopted by 17 votes to 3, with 3 abstentions.

It was agreed that the term ‘Gainful Employment’ should be used as heading for Chapter III.

As regards the various suggestions to make it clear in the Article itself that it referred to public education the President repeated that the report of the ad hoc Committee on its first session made it clear that the present Article was intended to cover education subsidized in whole or in part from public funds.

The Austrian representative said that in view of the President’s interpretation the Austrian delegation would have to enter a reservation in respect of Article 22.

National Measures

In Austria, refugees are exempt from university fees.

The procedure for the recognition of diplomas in Belgium by a Jury Central has been mentioned under Article 19. In Italy, it was held that the condition contained in Agreements with other States for the granting of scholarships, that candidates must apply to the authorities of the country of their nationality who refer the request to the Italian authorities, was a condition which refugees were ‘incapable of fulfilling’ in the sense of Article 6 of the 1951 Convention.

In Senegal, refugees are assimilated to nationals also as regards higher education.

Commentary

The 1933 Convention (Article 12) and the 1938 Convention (Article 14) provided that refugees shall enjoy in schools, courses, faculties and universities of each of the Contracting parties treatment as favourable as other foreigners in general, and that they shall benefit in particular to the same extent as the latter by the total or partial remission of fees and charges and the award of scholarships.

In the case of this Article the title ‘Public Education’ is important. As was said in the debate and is stated in the comment of the ad hoc Committee, it applies to education provided by public authorities and to any education subsidized in whole or in part by public funds and to scholarships derived therefrom.

The Article refers to ‘refugees’ without qualifications such as ‘lawfully stay’. It is, in fact, of importance particularly to children of refugees. In this connection, Recommendation B of the Final Act of the Conference of Plenipotentiaries is important whereby the Conference ‘noting with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems390 the rights granted to a refugee are extended to members of his family’. They may also, of course, have greater rights, particularly if they have the nationality of the country of residence as will be the case for the children born in the country in jus soli countries.

The recognition of foreign school certificates, diplomas and degrees is mentioned here in connection with the admission to schools of higher learning and universities, not regarding the exercise of professions.

There frequently exist bilateral agreements on the mutual recognition of degrees and diplomas. On a multilateral basis there exists the European Convention on the Equivalence of Diplomas leading to admission to universities of 11 December 1953.391 It provides that each Contracting State shall recognize for the admission to the universities situated in its territory, admission to which is subject to State control, the equivalence of the diplomas accorded in the territory of each other Contracting Party which constitutes a requisite qualification for admission to similar institutions in the country in which the diploma has been awarded. Where admission is outside the control of the State, the Contracting Parties shall use their best endeavours to obtain the acceptance of this principle by the universities (Article 1).

According to the European Convention on the Equivalence of Periods of University Study of 15 December 1956, Contracting Parties where the authority competent to deal with matters pertaining to the equivalence of periods of university studies is the State, shall recognize a period of study spend by a student of modern languages in a university of another member country of the Council of Europe as equivalent to a similar period spent in his home country provided that the authorities of the other university have issued to such a student a certificate attesting that he has completed the said period of study to their satisfaction (Article 2). The Contracting Parties shall consider the means to be adopted in order to recognize a period of study spent in a university of another member country by students of disciplines other than modern languages and especially by students of pure and applied sciences (Article 3). In as much as the admission is not subject to State control the Contracting Parties shall encourage the favourable consideration and application of these principles by the university authorities concerned (Articles 5 and 6).

Further, there exists the European Convention on the Academic Recognition of University Qualifications of 14 December 1959.393 It provides that the Contracting Parties in which the authority competent to deal with matters pertaining to the equivalence of university qualifications is the State, shall, subject to certain conditions, grant academic recognition to university qualifications conferred by a university institution in the territory of another Contracting Party (Articles 3 and 4).

Where the competent authority is not the State, the Contracting Parties shall encourage the favourable consideration and application of these principles by the university authorities (Articles 5 and 6).

Similar Conventions exist between the Latin American and Caribbean, Arab, and European States bordering the Mediterranean, and between African States.

ARTICLE 23. PUBLIC RELIEF

‘The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.’

Travaux Préparatoires

The Secretariat draft contained the following Article 19:

‘The High Contracting Parties shall grant the relief and assistance accorded to nationals to refugees who are regularly resident in their territory and are unemployed, suffering from physical or mental disease and incapable because of their condition or age of earning a livelihood for themselves and their families, and also to children without support.’

In the comment it was stated:

‘In countries where there is a highly developed social security system public relief is of secondary importance and is intended mainly to fill in the gaps of the social security system. Public relief can hardly be refused to refugees who are destitute because of infirmity, duress or age.’

Most of the conventions dealing with public assistance contain certain stipulations which cannot be satisfied in the case of refugees, such as the requirement that the State of which the recipient is a national should either repatriate him or assume the liability for the cost of assistance.

In view of the impending termination of IRO the welfare and relief of refugees is particularly urgent.’

At the first session of the ad hoc Committee, the French representative pointed out that the French draft did not contain a separate Article on relief, because the question was dealt with in Article 14 of the French draft which referred to both social security and public relief. From the point of view of substance, the only difference between the two texts was that France had not intended to include the unemployed in any of the categories of persons eligible for public relief. He considered that the provisions of Article 19 proposed a considerable step forward.

The Belgian representative fully agreed. He proposed that any reference to unemployment should be deleted because in Belgium, for instance, unemployment was covered by insurance rather than by assistance.

The UK representative supported Article 19. There was good reason to include the unemployed in that Article.

Unemployment insurance did not take effect until a certain number of contributions had been paid and it was granted for a specified period after which the unemployed persons would, if necessary, receive assistance from public relief.

The US representative thought there should be reference to the unemployed in the Article on labour.

The representative of the IRO pointed out that the UN was studying the question of assistance to destitute workers and that the Secretary-General had prepared a report in which it was recommended that foreigners, and therefore refugees, should be placed on equal footing with nationals. He suggested the following text: ‘In respect of public relief and assistance, the High Contracting Parties shall grant to refugees regularly resident in their territory the treatment accorded to nationals.’

The representative of the ILO warmly supported the suggestion of the representative of the IRO. An enumeration of categories of persons was of necessity incomplete.

The French representative preferred the text submitted by the IRO representative. Certain points should be mentioned in the Committee’s report. When the unemployed were not eligible for social security, they should not be excluded from the benefit of public relief.

The IRO text was adopted.

The Working Group proposed the following text:

‘The Contracting States shall accord to refugees lawfully in their territory the same treatment with respect to public relief and assistance as is accorded to nationals.’

The text was adopted.

Austria made the following comment:

‘It would be impossible for Austria to place all refugees on an equal footing with Austrian nationals in matters of welfare, because of the extremely large number of refugees, as stated in the comment on Article 4.’

At the second session of the ad hoc Committee the Italian representative said that his Government had, to its regret, to make a reservation on that Article. Italian hospitals were anyhow inadequate to meet the need of a constantly growing population. The reservation did not apply to emergency relief, which was always accorded as generously as possible. The Canadian representative said while his Government would support the principles of Articles 18 and 19, it would not, as a federal Government, undertake the public relief and assistance that would be accorded to refugees, as legislation in that field fell within the scope of the provinces and municipalities.

The IRO representative called the attention of the Committee to ECOSOC’s resolution regarding assistance to indigent aliens, which appealed to States to grant such aliens the same treatment as was accorded to nationals and not to return them to their own countries only for the reason of indigency.

The Drafting Committee proposed the text adopted at the first sessions.

That text was adopted.

The Committee made the following comment:

‘With regard to Article 18, the Committee noted that the provisions in the draft Convention conform fully to the provisions of the resolution on migrants adopted by ECOSOC on 13 July 1950. In regard to this Article, the Committee expressed its understanding that, despite the provisions of Article 3(b), refugees should not be required to meet any conditions of local residence of affiliation which may be required of nationals.

At the Conference of Plenipotentiaries the Italian representative said that the Italian Government might find that it had to make a reservation on the Article.

Article 18 was unanimously adopted.

The Drafting Committee proposed the text which is now in the Convention.

That text was adopted by 22 votes to none, with 1 abstention.

National Measures

In Austria the Tuberculosis Act provides that refugees with three years’ uninterrupted residence are assimilated to nationals regarding assistance to tubercular persons.

Protocol Nr. 1 of the European Convention on Social and Medical Assistance of 1968 provides that refugees within the meaning of the 1951 Convention resident in countries parties to the Convention are entitled to the same treatment as nationals of the State Party regarding social and medical assistance.

In Article 2(a)(1) of the Convention social and medical assistance is defined ‘in relation to each Contracting Party all assistance granted under the laws and regulations in force in any part of its territory under which persons without sufficient resources are granted means of subsistence and the care necessitated by their condition, other than noncontributory pensions and benefits paid in respect of war injuries or injuries due to foreign occupation.’

In the Federal Republic of Germany, the Administrative Tribunal of Cologne held on 7 August 1981 that social assistance may not be refused to a refugee who did not find work in spite of all his efforts but who does not want to perform compulsory work useful to the community.

Commentary

The pre-war Convention provided for most-favoured-nation treatment regarding relief and assistance.

As was stated in the report of the ad hoc Committee, refugees are not required to meet any conditions of local affiliation or residence which may be required of nationals. In the case of nationals the community of origin (‘Heimatgemeinde’) is frequently responsible for relief and assistance.

What is meant by public relief and assistance depends on national law, but the concept should be interpreted widely. It was mentioned that it includes hospital treatment, emergency relief, relief for the blind and also the unemployed, where social security benefits are not applicable.

ARTICLE 24. LABOUR LEGISLATION AND SOCIAL SECURITY

‘1. The Contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:

(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age of employment, apprenticeship and training, women’s work and the work of young persons, and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.

2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of the beneficiary is outside the territory of the Contracting State.

3. The Contracting States shall extend to refugees the benefits of agreements concluded between them, or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in the process of acquisition in regard to social security, subject only to the conditions which apply to nationals of the States signatory to the agreements in question.

4. The Contracting States will give sympathetic consideration to extending to refugees so far as possible the benefits of similar agreements which may at any time be in force between such Contracting States and noncontracting States.’

Travaux Préparatoires

The Secretariat draft contained the following Articles 16 and 17:

‘Article 16.

1. Subject to the provisions of Article 13, the Contracting States shall apply to refugees all the labour regulations applicable to nationals (wages, salaries and family allowances, working hours, holidays, benefits of collective agreements, guarantees of employment, age of admission to employment, employment of women and young persons, apprenticeship and vocational training, home work, health and safety in employment etc…)

2. They shall accord to the victims of industrial accidents or their beneficiaries the same treatment as is granted to their nationals.’

The Secretariat made the following comment:

‘Generally speaking, labour regulations and the laws regarding industrial accidents are applied in the same fashion to foreigners and to nationals. The placing of foreigners and national workers on the same footing not only met the demands of equity but was in the interest of national wage-earners who might have been afraid that foreign labour, being cheaper than their own, would have been preferred.

‘In these circumstances, equality between refugees and nationals, which is an accomplished fact in many countries, will not give rise to any objections.

‘The text of the Article enumerates the main elements of the labour regulations, all of which are to be applicable to refugees, subject to the provisions of Article 13 regarding the access of refugees to wage-earning employment. Article 17. The High Contracting States shall accord to refugees regularly resident in their territory the same treatment in respect of social security as to nationals (sickness, maternity, old-age insurance, insurance against the death of the breadwinner and unemployment insurance).’

In the comment it was stated:

‘A number of bilateral treaties and certain international treaties, notably those under the auspices of the International Labour Organisation, place foreigners who are nationals of State Parties to the Agreements on the same footing as nationals in respect of social security. The legislation of some States accord the same treatment to nationals and to foreigners.

In these circumstances, the same treatment should be accorded to refugees.

The French draft provided:

‘Article 14. While regularly resident in the territory of one of the High Contracting Parties, refugees shall receive the same treatment as nationals in respect of insurance and social security (including accident compensation) and all forms of public relief.

At the first session of the ad hoc Committee the representative of the ILO thought it desirable to combine under a single heading the Articles of the Secretariat draft dealing with labour regulations and industrial accidents, and social security respectively. Present day legislation and treaties made no distinction between industrial accidents and social security and it would be difficult to discuss the two matters separately. Moreover, the ILO in its Convention on Migration for Employment, had dealt with them under the general heading of social security. He introduced the text of several provisions of that Convention.409 Article 6 of the Convention covered the subject matter of Articles 16 and 17 of the Secretariat draft. There was no divergence in substance between the two texts and the Committee might wish to coordinate them.

The Belgian representative, as Chairman of the Commission of the ILO Conference which had drafted the text, and as Belgian representative, recommended the adoption of Article 6 of the ILO text in place of Articles 16 and 17 of the Secretariat craft with the minor drafting changes required to make it applicable to refugees.

There was an important difference between the two texts. Paragraph 1 (a) of the ILO text stipulated that refugees would have equal treatment with nationals only ‘in so far as such matters are regulated by laws or regulations, or are subject to the control of administrative authorities’; i.e. the State could not intervene where agreement existed between employers and employees.

The Danish representative noted that Article 6 applied only to migrant workers and would have to be adapted to cover refugees.

The Belgian representative said if the Committee decided to separate the two texts, it ran the risk of leaving refugee workers entirely unprotected.

The representative of the ILO added that the ILO Convention could be ratified only by members of that Organisation, whose membership was not the same as that of the UN.

The representative of the ILO pointed out that the Secretariat draft was more specific on the question of industrial accidents. Difficulties had arisen in the case of fatal accidents to refugees whose beneficiaries were not regular residents of the country where the accident had occurred and had therefore not received regular benefits.

The representative of the ILO said such cases were covered by the ILO Convention.

The Observer of the American Federation of Labour thought that the Committee would avoid difficulties if it adopted the Secretariat text for Article 16. He did not feel, moreover, that industrial accidents should be dealt with in the same Article as social security.

The US representative thought it would be undesirable to refer to an Article in the Migration for Employment Convention.

He saw no harm, however, in repeating the substance of the ILO text with such modifications as appeared desirable.
Article 6 of the ILO Convention reads:

‘1. Each member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities:

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons;

(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;

(iii) accommodation;

(b) social security (that is to say, legal provision in respect of employment injury, maternity, sickness, invalidity, old age, death, unemployment and family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) national laws or regulations of immigration countries may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension;

(c) employment taxes, dues or contributions payable in respect of the person employed; and

(d) legal proceedings relating to the matters referred to in this Convention.

2. In the case of a federal State the provisions of this Article shall apply in so far as the matters dealt with are regulated by federal law or regulations or are subject to the control of federal administrative authorities. The extent and manner in which these provisions shall be applied in respect of matters regulated by the law or regulations of the constituent States, provinces or cantons, or subject to the control of the administrative authorities thereof, shall be determined by each Member. The Member shall indicate in its annual report upon the application of the Convention, the extent to which the matters dealt with in this Article are regulated by federal law or regulations or are subject to the control of federal administrative authorities. In respect of matters which are regulated by the law or regulations of the constituent States, provinces or cantons, or are subject to the control of the administrative authorities thereof, the Member shall take the steps provided for in paragraph 7(b) of Article 19 of the Constitution of the International Labour Organisation.’

In discussing Article 6 of the ILO text, the US representative suggested that the opening clause of the Article concluding with the words ‘within its territory’ should be deleted and an appropriate phrase substituted.

The Belgian representative suggested the deletion of sub-paragraph 1 (a)(iii), the subject matter of which was covered elsewhere in the new draft convention, and of sub-paragraph 1 (a)(ii).

The US representative agreed but proposed the words ‘enjoyment of the benefits of collective bargaining, and housing accommodations’ should be added at the end of subparagraph 1(a)(i).

The UK representative expressed doubts regarding any reference to the question of housing. In his own country it would be difficult to guarantee exactly equal treatment for refugees in the matter of housing.

The Chairman agreed but felt that the Governments were protected on that point by the terms of sub-paragraph l(a). The French representative shared the view that the question of industrial accidents should be dealt with in Article 17 in connection with social security.

The UK representative did not think that the ILO text entirely covered, or could be made to cover, the situation of refugees.

Sub-paragraph (a) was adopted.

As to sub-paragraph (b), the representative of the ILO said modern social services had often started with accident insurance. In many countries of western Europe the term social security had come to embrace accident insurance. He felt sure that, even in those countries where accident insurance was not administered under the general social security system, the words ‘legal provisions in respect of employment injury’ would be considered satisfactory. Replying to the representative of the IRO he confirmed that the wording of sub-paragraph (b) would enable the beneficiaries of refugees to receive compensation in the event of an accident resulting in death, even if they were not regular residents of the country where the accident occurred.

The representative of the IRO hoped that this important point would be mentioned in the Committee’s report. In reply to a question by the French representative the ILO representative explained that the phrase ‘there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition’ referred to bilateral international agreements. Agreements were often concluded in order to enable workers who moved from one country to another to accumulate the insurance benefits earned in both countries. It was difficult to see how such agreements could benefit a refugee who had lost the protection of their Government and had cut themselves off from the social security system of their country of origin.

The Belgian representative mentioned the agreement concluded between France and Belgium on that subject; a protocol had been added in order to extend the benefits of the agreement to refugees. Nevertheless, it was essential to maintain the first limitation in subparagraph (b) because the arrangements were always the result of special agreements and refugees could not expect to receive any insurance benefits from their countries of origin.

The Observer of the American Federation of Labour said, while this was true, some of them had acquired rights in Germany before moving to some other country for resettlement. Arrangements were being made to obtain recognition of these rights.

The Committee decided to retain the first limitation mentioned in sub-paragraph (b).

On the suggestion of the Chairman the words ‘regulations of immigration countries’ were changed to read ‘regulations of the country of residence’.

Sub-paragraph (b) as amended was adopted.

It was decided to defer consideration of Article 6 paragraph 2 concerned with the federal clause.

The Observer of the American Federation of Labour reiterated, as regards sub-paragraph (b), his objection that accident insurance was not covered by a social security scheme in some countries. Furthermore, he thought that sub-paragraph (ii) should mention reciprocal agreements concluded between States to safeguard social security benefits for refugees. For example, a Polish refugee, working as a miner in France, should receive benefits obtained both in Poland and in France, in accordance with the reciprocity agreements between the two States.

The US representative said that question was covered in sub-paragraph (i). However, even in the absence of bilateral agreements, the refugee’s acquired rights would be safeguarded.

The Belgian representative said a Polish miner residing in France would usually receive the insurance benefits he had accumulated in both countries. However, a refugee who refused to recognize the governments of his country of origin could not expect to enjoy benefits earned there.

The Observer of the American Federation of Labour suggested that the phrase ‘including rights acquired under agreements on reciprocity’ should be added at the end of subparagraph (b)(i).

The Belgian representative thought the amendment was covered by sub-paragraph (a). If a Polish miner, for example, had worked 10 years in Poland and 20 in France, under the existing bilateral agreement Poland would pay one-third and France two-thirds of his pension. If the miner became a refugee, Poland could hardly be asked to pay its share or France to pay the share which normally ought to have been paid by Poland.

The Observer of the American Federation of Labour was satisfied with the explanation of the Belgian representative.

The Working Group proposed the following text:

‘1. The Contracting States shall accord to refugees lawfully in their territory the same treatment as is accorded to nationals in respect of the following matters:

(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency, which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) there may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) national laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfill the contribution conditions prescribed for the award of a normal pension.

2. Contracting States whose nationals enjoy the benefits of agreements for the maintenance of acquired rights and rights in the process of acquisition in regard to social security, shall extend the benefits of such agreements to refugees subject only to the conditions which apply to nationals.

3. Contracting States will give sympathetic consideration to extending to individual refugees so far as possible the benefits of similar agreements which may have been concluded by such Contracting States with the country of the individual’s nationality or former nationality.

The Chairman pointed out that paragraphs 2 and 3 were based on a proposal originally made by the representative of the American Federation of Labour and accepted in principle by the Committee. They had been formally introduced by the representative of Belgium in the working group.

Article 19 was adopted.

The French representative resumed the position of his Government concerning subparagraph (b) of Article 19 in so far as that paragraph included within the sphere of social security legal provisions regarding unemployment. In the French legislative system, assistance to the unemployed was not included within the framework of social security. It was, in principle, reserved for nationals, and aliens could not benefit from it except under certain conditions.

The Committee made the following comment:

Paragraph 1

Paragraph 1 of the Article reproduces in general Article 6 of the Migration for Employment Convention (Revised) 1949, adopted by the International Labour Conference at its 32nd session on 1 July 1949.’

‘Sub-paragraph (a)

This deals with labour regulations which in most countries are applied in the same manner to aliens as to nationals. The placing of aliens and of national workers on the same footing not only meets the demands of equity but is in the interests of national wage-earners who might otherwise be afraid that foreign labour, being cheaper than their own, would be preferred.’

‘Sub-paragraph (c)

‘A certain number of States already grant to aliens treatment equal to that accorded to nationals. States which would normally be prevented by the operation of national laws from incorporating aliens into their social security systems would be able to assume obligations under this sub-paragraph by providing that refugees should be dealt with under special schemes.’

This Article includes provisions for payment in cases of employment injury even if in a particular country such payments do not constitute part of a social security system.

It was also agreed that in cases of fatal employment injuries the beneficiaries of the injured person should receive benefits even if they are not resident in the country where the injury occurred.

The Committee approved the Article though aware of the fact that the ILO would prefer the term ‘invalidity’ in place of ‘disability’. This was merely a linguistic preference and was intended to cover the same situations.

Articles 8 and 9 of the 1933 Convention were quoted and Articles 10 and 12 of the 1938 Convention referred to.

Austria commented as follows:

‘1(a) As to wages, working hours, overtime, paid vacation, limitation of work performed at home, minimum age, labour of women and minors, and collective bargaining, Austrian labour law and regulations do not discriminate between nationals and aliens.

‘As far as admission of refugees to apprenticeship is concerned, placing of refugees and nationals on an equal footing cannot be considered as a general rule as long as the number of refugees in Austria has not substantially decreased. Whenever refugees are admitted to apprenticeship, the same rules and regulations apply to them as to Austrian apprentices.

‘1(b) The regular benefits of unemployment insurance are given to refugees and nationals without distinction. The emergency help (Notstandshilfe), however, which is derived in part from public funds and which can be granted under certain conditions after the right to unemployment payments (Arbeitslosengeld) had expired, is, as a matter of principle, granted to nationals only. Though a few exceptions are made to this principle in favour of refugees, the financial position of Austria does not permit the inclusion of refugees in this category on the basis of equality with nationals.

‘The Federal Government of Austria suggests, therefore, replacing in Article 19 1 (b)(ii) the phrase ‘payable wholly out of public funds’ by ‘payable wholly or partly out of public funds’.

The UK Government made the following comment:

‘Article 19. His Majesty’s Government is continuing to examine this Article with particular reference to their existing international obligations, in so far as they may have a bearing on paragraphs 2 and 3. They will probably find it necessary to make certain reservations if the Article remains in its present form when the Convention is opened for signature.’

The IRO commented:

‘The Director General of the IRO notes that in the comment (p. 50) on Article 19, the ad hoc Committee stated that in case of fatal employment injuries, the beneficiaries of the injured person should receive benefits even if they are not resident in the country where the injury occurred.

‘In view of the difficulties which IRO has experienced in cases of this kind, the Director General suggests that it would be appropriate to include in Article 19 of the Convention a paragraph to this effect. The dispensation of a residence qualification (cf. Article 1 of Convention no. 19, Equality of Treatment (Accident Compensation) adopted by the International Labour Conference of 1925, which exempts foreigners and their dependents from a residence qualification) is of particular importance to refugees whose families are often split in their search for reestablishment in a country other than their country of origin.’

The International Labour Organisation had made the following observations:

‘3. First of all, it must be pointed out that under the Migration for Employment Convention and Recommendation adopted at the 32nd session of the International Labour Conference (Geneva, June-July, 1949) refugees were accorded the benefit not only of the guarantees provided for other migrant workers, but also of special protection since, by reason of their refugee status it is impossible for them to return to their country of origin.

‘With regard to the provisions relating to this special protection, Articles 27 and 28 of the draft Convention Relating to the Status of Refugees contain regulations similarly inspired.

‘On the other hand, with regard to certain aspects of the labour and living conditions of refugees in the country of residence, the draft Convention provides solutions which differ from those incorporated in the Migration for Employment Convention. Moreover, the wording of the draft does not, in certain cases, appear to correspond exactly with the intentions and decisions of the ad hoc Committee.

‘4. Article 19, paragraph 1 of the draft Convention reproduces most of the rules contained in Article 6, paragraph 1 of the Migration for Employment Convention. It should be noted, however, that under the latter Convention the principle of equal treatment extends to membership of trade unions (paragraph 1(a)(ii)) and to accommodation (paragraph 1(a)(iii)), whereas Article 19 of the draft Convention under consideration makes no mention of these two points. In the field of trade union freedom, Article 10 provides that refugees shall be accorded the most favourable treatment accorded to nationals of foreign countries; the question of housing is dealt with in Article 16, under which refugees are accorded treatment not less favourable than that accorded generally to aliens in the same circumstances.

‘In drawing attention to such differences, emphasis must be placed on the desirability of bringing Article 19 of the draft Convention into harmony with the relevant provisions of the Migration for Employment Convention. The application of the principle of equal treatment as compared with nationals, in respect of membership of trade unions and housing, within the framework of Article 109 of the draft Convention would also have the advantage of providing a more uniform definition of the obligations assumed by governments in these fields. According to Article 19, such obligations are limited ‘in so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities,’ and according to Article 16, ‘in so far as the matter is regulated by laws or regulations, or is subject to the control of public authorities.’ Article 10 makes no mention of any such limitation, although it was borne in mind by the ad hoc Committee.

‘5. In the comments annexed to the Draft Convention (document E/1618, page 52) it is stated that ‘It was also agreed that in cases of fatal employment injuries the beneficiaries of the injured person should receive benefits even if they are not resident in the country where the injury occurred’. In this connection it must be pointed out that the present draft of Article 19 makes no such provision. Consequently, if the ad hoc Committee considered that the beneficiaries should receive the benefits in question even in the case contemplated, an express provision to that effect should be included in the body of the article itself.

‘6. Finally, it is pointed out that in the English text of Article 19 the word ‘invalidity’ which was used in the Migration for Employment Convention, has been replaced by the word ‘disability’. The definition of the term ‘invalidity’ given in the Income Security Recommendation, 1944 (paragraph 11) shows that these two terms have a different connotation and that it is not merely a matter of linguistic preference as stated in the ad hoc Committee’s comments: the term ‘invalidity’ means permanent disability, while ‘disability’ also covers temporary disability. Moreover, the term ‘invalidity’ is used not only in the Migration for Employment Convention, but also in Convention Nos. 37 and 38 on Invalidity Insurance, and in Convention No. 48 concerning the Establishment of an International Scheme for the maintenance of Rights under Invalidity, Old Age and Widows’ and Orphans’ Insurance. Consequently, it would be desirable for the ad hoc Committee to consider, in the light of the foregoing comments, the advisability of inserting the word ‘invalidity’ in the English text in place of the word ‘disability’.’

At the second session of the ad hoc Committee the Chairman, speaking as representative of Denmark, said his Government would most probably give old-age and disability pensions to alien refugees in the way it did to its own nationals. It would, however, be prepared to sign the Convention on the understanding that it would vote the same amounts for assistance to refugees as to nationals, but the funds would be voted under a different head and would be disbursed through different channels.

The US representative said the question of trade union membership which had already arisen during the discussion of Article 10, deserved further consideration under Article 19. In Article 10, provision had been made for the most favourable treatment accorded to nationals of foreign countries; Article 19 required national treatment. If the countries most concerned were prepared to accept the suggestion made in the ILO comments, his delegation would also be prepared to accept it. It was worth noting that paragraph 3 of Article 19 was recommendatory, not mandatory. A similar provision regarding sympathetic consideration for better treatment in respect of trade union rights might well be added to the Article. In connection with paragraph 3 he suggested to the UK representative that as it was merely a recommendation, it did not seem one in respect of which a reservation was justified.

He proposed formally the insertion of a paragraph concerning the beneficiaries of insured persons as suggested by the ILO.

1. ‘The contingency for which invalidity benefit should be paid is inability to engage in any substantially gainful work by reason of a chronic condition, due to disease or injury, or by reason of the loss of a member or function.’

As regards the terms ‘invalidity’ and ‘disability’, as the latter was in any case wider in its meaning, he saw no reason why the ILO should object to it.

The Belgian and French representatives spoke in favour of retaining the wording of Article 10 as regards trade unions.

The Swiss representative said that with regard to old-age, widows and orphans insurance, refugees were treated as favourably as aliens generally. They were entitled to a grant only if they had paid contributions for at least ten years, and the grant they received was only two-thirds of that received by Swiss nationals. In addition, aliens were not entitled to temporary grants. Only the nationals of States which had concluded treaties with Switzerland on the basis of reciprocity were entitled to a larger measure of old-age insurance benefits. In those conditions, his Government would probably be compelled to make a reservation on that provision.

With regard to unemployment insurance, refugees were also treated in the same way as Swiss nationals but, in addition, were required to reside in the country for not less than five years before they could join an unemployment insurance scheme.

On reply to a question by the US representative whether any class of refugees came under the Migration for Employment Convention the representative of the ILO gave the definition of migrant worker in Article 112 of the Convention which defines a migrant worker as a person who migrates from one country to another with a view to being employed otherwise than on his own account. It had been understood that the Convention would also apply to refugees and displaced persons. Article 6 provided for national treatment only as regards membership of trade unions.

The French representative wished to reassure the representative of the ILO that even if the Migration for Employment Convention applied to wage-earning refugees and provided for the same treatment as that accorded to nationals, any State which ratified that Convention and also the Convention relating to the status of refugees would not find themselves faced with a contradiction, since the latter provided only for minimum treatment. If the Migration for Employment Convention provided for better treatment that State would, in so far as it accepted migrants who were refugees, apply for preference the provisions of the Migration for Employment Convention.

The UK representative said that his Government did not particularly like the duplication of provisions in two conventions, but would not press for its removal.

The Chairman said a person covered by both conventions would receive whichever treatment was better, and a person covered by only one would receive the treatment conferred by that Convention.

On the question of beneficiaries of injured persons the representative of Canada, Denmark and the UK supported the US proposal for a special paragraph. The Danish and UK representatives said their support was without prejudice to the requirements of exchange control.

The French representative associated himself with these comments and agreed to the insertion of the provision in the Article, subject to consideration by the technical departments concerned.

On the Austrian proposal to replace the phrase ‘payable wholly out of public funds’ by ‘payable wholly or partially out of public funds’ in paragraph 1 (b)(ii) the representative of the ILO said the word ‘partially’ meant that part was paid out of the contributions of the refugees themselves. Paragraph 1(b)(ii) referred to ‘benefits or portions of benefits payable wholly out of public funds’. If the word ‘wholly’ were qualified in any way, the insured person would lose certain rights.

The French representative said if the Austrian proposal were accepted, in countries where the system was financed partly by the State but mainly by contributions from the persons insured, wage-earning refugees would be deprived of all rights to benefits, that was to say, of the counterpart of the contributions they had paid.

The UK representative thought the intention of the Austrian Government might be covered by employing the words ‘to such extent as they are payable out of public funds.’

The US representative suspected that the Austrian Government’s problem would be covered largely by paragraph 3 of Article 19 and that it was either a very special problem or covered a very narrow field.

The UK representative said he could agree to paragraph 2 only if it were put into the form of a recommendation. The Belgian representative did not agree with the UK representative but the matter should be regulated by bilateral treaties.

The French representative said paragraph 2 was inspired by the Convention relating to the unification of the social security legislation of the signatories of the Brussels Pact. The best procedure for those five countries, including the UK, Belgium and France, would be to study the scope of that provision in the agencies set up by virtue of the Brussels Pact. He felt that the text should be retained.

The UK proposal was rejected by 3 votes to one, with 6 abstentions.

The Drafting Committee proposed the following text:

‘Article 19

1. The Contracting States shall accord to refugees lawfully in their territory the same treatment as is accorded to nationals in respect of the following matters:

(a) In so far as such matters are governed by laws or regulations or are subject to the control of administrative authorities: remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women’s work and the work of young persons and the enjoyment of the benefits of collective bargaining;

(b) Social security (legal provisions in respect of employment injury, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency, which, according to national laws or regulations, is covered by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights and rights in course of acquisition;

(ii) National laws or regulations of the country of residence may prescribe special arrangements concerning benefits or portions of benefits which are payable wholly out of public funds, and concerning allowances paid to persons who do not fulfil the contribution conditions prescribed for the award of a normal pension.

2. The right to compensation for the death of a refugee resulting from employment injury or from occupational disease shall not be affected by the fact that the residence of such beneficiary is outside the territory of the Contracting State.

3. Contracting States whose nationals enjoy the benefits of agreements for the maintenance of acquired rights and rights in the process of acquisition in regard to social security, shall extend the benefits of such agreements to refugees subject only to the conditions which apply to nationals.

4. Contracting States will give sympathetic consideration to extending to individual refugees so far as possible the benefits of similar agreements which may have been concluded by such Contracting States with the country of the individual’s nationality or former nationality.’

Article 19 was adopted.

At the Conference of Plenipotentiaries Belgium proposed the following amendment:

‘Substitute the following for paragraph 3:

‘The Contracting States shall extend to refugees the benefits of agreements concluded between them or which may be concluded between them in the future, concerning the maintenance of acquired rights and rights in process of acquisition in regard to social security, subject only to conditions which apply to nationals of the State signatory to the agreement in question.’

The UK proposed the following:

‘Paragraph 3. Substitute for the words ‘such agreements’, the words: ‘any agreements which may at any time be in force between Contracting States.

Paragraph 4. Add at the end of this paragraph the words: ‘or which may at any time be in force between Contracting States and non-Contracting States.’

The President, speaking as representative of Denmark, said in Denmark an insured person only made a formal contribution to the social security scheme, and that it was in reality the State that contributed to the various funds. The Danish Government proposed to extend social security to refugees, but under the Danish system, it would be necessary for the benefits to be paid to refugees on that count to come from funds other than the old-age fund and the like. Subject to the understanding that such an arrangement would not be regarded as failure to conform to the provisions of the paragraph of Article 19, the Danish Government would not require a reservation on that point.

The UK representative observed that a similar situation arose in the UK.

The Swiss representative said the Swiss delegation could not wholly subscribe to the provisions of Article 19. It was obliged to reserve its position to some extent so far as apprenticeship and training were concerned. Refugees would be subject to no restrictions only if they held a permit to settle in Switzerland.

As to national treatment regarding unemployment and old-age insurance, foreign workers could normally insure against unemployment only if they were allowed to accept work. Aliens who had been living in Switzerland for a fairly short period, and therefore did not have a permit to settle there, were subject to such restrictions and were, consequently, not insurable. Nevertheless, there was a growing tendency to lift restrictions on refugees in respect of employment, and most of them could insure against unemployment. On the other hand, the Swiss Federal Government could not formally undertake to accord them the same treatment as it accorded to nationals, and therefore would be obliged to enter a reservation to the effect that the treatment accorded to refugees in the matter of unemployment insurance would be the same as that accorded to aliens generally.

As to old-age insurance and allowances paid to next-of-kin of a deceased, the existing Swiss regulations were still more complex. Although aliens, and hence refugees, were insured, they were subject to certain special provisions. The Swiss Federal Government did not see its way at that juncture to amend the law relating to old-age insurance and allowances paid to next-of-kin of deceased, and would therefore be obliged to enter a reservation on Article 19(1)(b) to the effect that in those matters refugees would enjoy, not the treatment accorded to nationals, but that accorded to aliens generally. The Canadian representative observed that in Canada some matters dealt with in Article 19 were under federal and others under provincial legislation. No distinction was made between nationals and aliens, although there were differences between the laws of the various provinces. Subject to the acceptance of this position, the Canadian delegation could support Article 19 without difficulty.

The Swedish representative said that, generally speaking, the Swedish delegation could accept Article 19. He would point out, however, that, as far as sub-paragraph 1(b) was concerned, although most of the social security benefits in Sweden were granted to aliens and nationals alike, in some cases, especially with regard to old-age pensions, the actual form of assistance was different as between aliens and nationals. It might therefore be necessary for the Swedish Government to enter certain reservations on that paragraph.

The President, speaking as representative of Denmark, said that the Danish Government would have no difficulty in assuming the obligations laid down in paragraph 1, but it might be necessary to make certain reservations on paragraph 2. Danes were not allowed to draw pensions when resident abroad, so that it might not be possible, for instance, to allow the compensation payable on the death of a refugee to be transferred to his widow resident outside the country.

The UK representative doubted whether the UK could comply with the provisions of paragraph 2, for the same reason as that given by the Danish representative.

The representative of the Federal Republic of Germany said that his delegation’s position was similar. He had, however, not considered that the phrase ‘the right to compensation’ implied the transfer of such compensation outside the territory of a Contracting State.

The Netherlands representative stated that the Netherlands delegation would be obliged to make a reservation on paragraph 2, because of the possibility of transfer of compensation, which would be governed by the existing foreign currency rules and regulations.

The Norwegian representative said Norway’s position was the same as that of Sweden and Denmark. Some Norwegian social security schemes applied to all inhabitants of the country; old-age pensions, for example, were paid to all inhabitants, subject to a minimum period of residence in the country. Other schemes, however, applied only to Norwegian nationals. The Norwegian Government could not, therefore, accept the provisions of subparagraph 1(b) without amending its legislation, and would have to enter a reservation on that sub-paragraph, although, of course, it was its intention to work towards equality of treatment between nationals and refugees.

The UK representative observed that paragraph 3 seemed to apply to refugees the benefit of agreements made between States to permit the nationals of one country to retain in another country one or all of the social security rights acquired in their own country. He had no objection to the principle that those agreements, of which there were many, should apply equally to refugees and to nationals, but the text of paragraph 3 as drafted would appear to permit the possibility that, under a bilateral agreement between a State Party to the Convention and a State non-Party to the Convention, the former would be obliged to apply to refugees from the latter the same conditions as it would apply to its own nationals. Such a unilateral obligation would be an unjustifiable burden on the State Party to the Convention, and he doubted whether it would be practicable without the cooperation of the non-Contracting State. He believed the original intention had been that when such agreements existed between Contracting States, they should be automatically applied to refugees from both countries. In the circumstances, he proposed that the words ‘such agreement’ in the third line of paragraph 3 should be replaced by the words ‘any agreement which may be in force between Contracting States’.

The Israeli representative considered that the meaning of paragraph 3 was narrower than that suggested by the UK representative.