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‘1. Each Contracting State undertakes that the holder of a travel document issued by it in accordance with Article 23 of this Convention shall be readmitted to its territory at any time during the period of its validity.
2. Subject to the provisions of the preceding paragraph, a Contracting State may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.’Sub-paragraph 2 of paragraph 13 of the existing text of the Schedule would then become sub-paragraph 3.
4. In agreeing to the text, the French representative withdrew his amendment523 to paragraph 13(1) of the Schedule. The representative of Venezuela reserved the position of his Delegation on the question of the proposed change in paragraph 13.
5. The Working Group decided to recommend the insertion after paragraph 3 of the Specimen Travel Document, of an indication that each Contracting State may add at that point of a Travel Document issued by it, the following phrase:
‘The old travel document shall be withdrawn by the authority issuing the new document and returned to the authority which issued it.’
6. Subject to this proposed addition the Annex to the Schedule was approved.
The amendment525 to sub-paragraph 1 of paragraph 13 was adopted by 18 votes to none.
Paragraph 13 of the Schedule, as amended, was adopted by 18 votes to none.
The President said that the proposed addition to paragraph 3 of the Specimen Travel Document represented a compromise solution, the Italian representative who had originally proposed the addition having agreed to make the provision optional instead of mandatory.
The text proposed by the Working Group or insertion at the end of paragraph 3 of the Specimen Travel Document was adopted by 22 votes to none.
The text of the Schedule and the specimen travel document adopted read:
Text of the Schedule and Travel Document adopted on 20 July 1951
Schedule
Paragraph 1(3)528
‘1. The travel document referred to in Article 23 of this Convention shall be similar to the specimen annexed hereto.
2. The document shall be made out in at least two languages, one of which shall be English or French.
Paragraph 2(4)
‘Subject to the regulations obtaining in the country of issue, children may be included in the travel document of a parent or, in exceptional circumstances of another adult refugee.
Paragraph 3(5)
The fees charged for issue of the document shall not exceed the lowest scale of charges for national passports.
Paragraph 4(6)
Save in special or exceptional cases, the document shall be made valid for the largest possible number of countries.
Paragraph 5(7)
The document shall have a validity of either one or two years, at the discretion of the issuing authority.
Paragraph 6(8)
1. The renewal or extension of the validity of the documents is a matter for the authority which issued it, so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority.
The issue of a new document is, under the same conditions, a matter for the authority which issued the former document.
2. Diplomatic or consular authorities, specially authorized for the purpose, shall be empowered to extend, for a period not exceeding six months, the validity of travel documents issued by their Governments.
3. The Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees no longer lawfully resident in their territory who are unable to obtain a travel document from the country of their lawful residence.
Paragraph 7(9)
The Contracting States shall recognize the validity of the documents issued in accordance with the provisions of Article 23 of this Convention.
Paragraph 8(10)
The competent authorities of the country to which the refugee desires to proceed shall, if they are prepared to admit him and if a visa is required, affix a visa on the document of which he is the holder.
Paragraph 9(11)
The Contracting States undertake to issue transit visas for refugees who have obtained visas for the territory of final destination. The issue of such visas may be refused on grounds which would justify refusal of a visa to any alien.
Paragraph 10(12)
The fees for the issue of exit, entry or transit visas shall not exceed the lowest scale of charges for visas on foreign passports.
Paragraph 11(13)
When a refugee has lawfully taken up residence in the territory of another Contracting State, the power to issue a new document will be in the competent authority of that territory, to which the refugee shall be entitled to apply.
Paragraph 12(14)
The authority issuing a new document shall withdraw the old document and return it to the country of issue.
Paragraph 13(15)
1. Each Contracting State undertakes that the holder of a travel document issued by it in accordance with Article 23 of this Convention shall be readmitted to its territory at any time during the period of its validity.
2. Subject to the provisions of the preceding paragraph, a Contracting state may require the holder of the document to comply with such formalities as may be prescribed in regard to exit from or return to its territory.
3. The Contracting States reserve the right, in exceptional cases, or in cases where the refugee stay is authorized for a specific period, when issuing the document, to limit the period during which the refugee may return to a period of not less than three months.
Paragraph 14(16)
Subject only to the terms of paragraph 13, the provisions of this Schedule in no way affect the laws and regulations governing the conditions of admission to, transit through, residence and establishment in, and departure from the territories of the Contracting States.
Paragraph 15(17)
Neither the issue of the document nor the entries made thereon determine or affect the status of the holder particularly as regards nationality.
Paragraph 16(18)
The issue of the document does not in any way entitle the holder to the protection of the diplomatic or consular authorities of the country of issue, and does not confer on these authorities a right of protection.
These texts were adopted by the Style Committee unchanged.
The US representative drew attention to the text of paragraph 12 of the Schedule, which required the authorities issuing a document to withdraw the old one and to return it to the country of issue. If the provision in the travel document was optimal, it would no longer tally with paragraph 22.
The President suggested that the difficulty might be solved by adding to paragraph 12 the following phrase: ‘if so requested in the travel document; otherwise it should cancel the old document’.
Paragraphs 1 to 8 of the Schedule were adopted without comment, by 22 votes to none.
The High Commissioner for Refugees recalled that the second sentence of paragraph 9, reading: ‘the issue of a visa may be refused on grounds which would justify refusal of a visa to an alien’, had been added at the first reading. The interpretation, therefore, was that any laws applied to aliens in respect of the issue of transit visas would also be applicable to refugees. It seemed to him that paragraph 14 fully covered that point, and he therefore suggested that the second sentence of paragraph 9 be deleted.
The Venezuelan representative suggested that it was not the second sentence of paragraph 9 but paragraph 14 that was superfluous. It merely reiterated and amplified the content of paragraph 13, especially sub-paragraph 2 thereof. The President rules that consideration of paragraph 9 be deferred until the Conference had finished its examination of paragraph 14.
The UK representative proposed the following wording for paragraph 12: ‘(The authorities… shall withdraw the old travel document and) shall return it to the country of issue if it is stated in that travel document that it shall be so returned, otherwise it shall be cancelled’.
Replying to the President, he said he would not object if the second part of his amendment was modified to read: ‘otherwise it shall withdraw and cancel the document.’
The UK amendment to paragraph 12 was adopted by 18 votes to 2, with one abstention, in the form finally suggested by the UK representative.
The Austrian representative considered that the text of paragraph 12 as just modified would be clearer if the words ‘or cancel’ were inserted after the word ‘withdraw’ in the first clause, the last clause reading ‘otherwise it shall withdraw and cancel the document’ being deleted.
The President considered that the minor technical point raised by the Austrian representative could well be left to the discretion of the administrative authorities. The main point, namely the withdrawal of the old document, had been satisfactorily disposed of.
Paragraph 12 was adopted unanimously, as amended.
The French representative said that although paragraph 11 had been adopted, he felt it necessary to point out that it did not appear to be altogether consistent with the provisions of Article 23. The latter imposed an obligation on Contracting States to issue a travel document to refugees lawfully resident in their territory but did not restrict the issue of such a document to the State in which the refugee was lawfully resident. Paragraph 11 of the Schedule, on the other hand, laid down that when a refugee had lawfully taken up residence in the territory of another Contracting State, the power to issue a new document would be in the competent authority of that territory; it therefore implied that in those particular circumstances no competent authority in another territory could issue the document. If the Conference agreed to reopen the question, he would propose that paragraph 12 be redrafted to read: ‘when a refugee has lawfully taken up residence in the territory of another Contracting State, the obligation to issue a new document will thereafter devolve upon the competent authority of that State, to which the refugee shall be entitled to apply.’
The Venezuelan representative could not accept the French representative’s suggestion. In the Working Group he had agreed to the wording of paragraph 13 subject to the conditions set forth in Article 23. That provision would not be met if it was made obligatory in all cases for the State in which a refugee took up residence to issue a new document. He considered that paragraph 11 was satisfactory as it stood. If a Contracting State refused to issue a new document to a refugee who had taken up residence in its territory, that person would not be able to leave the country concerned. He would therefore accept the suggestion that once a particular country received a refugee on a one-way ticket, that country should issue a document to enable the refugee to travel. Certain safeguards, however, were necessary and that was the purpose of the special provision laid down in Article 23.
The UK representative suggested that the difficulty of the Venezuelan representative might be met if paragraph 11 was reworded to read:
‘When a refugee has lawfully taken up residence in the territory of another Contracting State, the obligation to issue a new document under the terms of Article 23, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply.’
The French representative agreed.
Paragraph 11, as thus amended, was adopted by 18 votes to none, with 3 abstentions.
Turning to paragraph 13, the President pointed out that, in order to avoid any misunderstanding, the word ‘paragraph’ in the first line of sub-paragraph 2 should be amended to read ‘sub-paragraph’.
Paragraph 13 was adopted unanimously.
Paragraph 14 was adopted by 19 votes to none, with 1 abstention.
Paragraph 9 was adopted unanimously.
Paragraphs 15 and 16 were adopted unanimously, without comment.
On reopening the discussion on paragraph 11 the Venezuelan representative said he was unable to accept the word ‘obligation’ in the amended text of paragraph 11. He considered that the provision should be so worded as to indicate that it was the responsibility of the State in which the refugee had taken up residence to issue such a document.
The UK representative said that he would be prepared to meet the Venezuelan representative’s point by modifying the amendment adopted at the previous meeting to read: ‘the responsibility for the issue of a new document, under the terms and conditions of Article 23, shall be that of the competent authorities…’
The Venezuelan representative pointed out that the word ‘désormais’ after ‘incombera’ had been retained in the French text. He believed that it might be deleted as redundant.
The Belgian representative disagreed. The retention of the word was necessary to indicate that there would be a transfer of responsibility under the terms of paragraph 11.
The word ‘désormais’ was retained.
Paragraph 11, as amended by the UK representative, was adopted unanimously.
The Specimen Travel Document was adopted unanimously.
Regional and National Measures
A number of European countries have concluded agreements on the abolition of visas in the case of temporary travel of refugees holding London or Convention travel documents. Within the Council of Europe a European Agreement on the Abolition of Visas for Refugees531 was concluded on 20 April 1959.
It provided for the visa free travel of refugees holding London or Convention travel documents and lawfully resident in the territory of a Contracting Party for visits not exceeding three months (Article 1). Refugees who have entered the territory of a Contracting Party by virtue of the Agreement shall be re-admitted at any time to the territory of the Contracting Party by whose authorities the travel document was issued at the simple request of the Contracting Party whose territory the refugee has entered, unless this Party has authorized him to settle in its territory (Article 5).
The Consultative Assembly of the Council of Europe adopted a resolution (No. 375/63) which invited Governments:
‘1. If not yet parties to the European Agreement on the Abolition of Visas to Refugees, to accede to that Agreement;
2. In the meantime to issue visas to refugees free of charge and to speed up procedures for the issue of such visas; and
3. Not to apply any measures of frontier control to refugees which are not applied to nationals of Member States.’Paragraph 6 of the Schedule to the Convention provides that the renewal or extension of the travel document is a matter for the authority which issued it so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority. Paragraph 11, on the other hand, provides that when a refugee has lawfully taken up residence in the territory of another Contracting State, the responsibility for the issue of a new document, under the terms and conditions of Article 28, shall be that of the competent authority of that territory, to which the refugee shall be entitled to apply.
A number of European countries have concluded bilateral or plurilateral agreements on the transfer of responsibility for refugees who move lawfully from one country to another.
Within the Council of Europe a European Agreement on the Transfer of Responsibility for refugees was concluded on 16 October 1980.532 It provides in principle the responsibility for the issue of the Convention travel document shall be considered as transferred on the expiry of a period of two years of actual and continuous stay in the second State with the Agreement of its authorities or earlier if the second State has permitted the refugee to remain in its territory either on a permanent basis or for a period exceeding the validity of the travel document (Article 2).
In Austria the Ministry of the Interior issued on 22 September 1958 the following instructions on Article 28 and the Annex:
Lawfully staying
‘A refugee is considered as lawfully staying in the Federal territory if he either enters the Federal territory directly from a territory where his life or freedom was threatened in the sense of Article 1 of the Convention and is granted the right of asylum to its full extent or who enters the Federal territory by reason of a Convention travel document issued by another State and his residence is permitted beyond the period of validity of the return clause in this travel document.
‘Not only is the holder of a foreign travel document admitted to permanent residence in Austria by an unlimited visa, but also every permission to reside for a period which exceeds, however little, the period of validity of the return clause has in practice the effect of a permanent residence’s permit, there being no possibility of expulsion.’
Compelling reasons of national security or public order
‘Refusal of a travel document is only justified if the journey or journeys outside the country give rise to fear of endangering national security or public order, for example, if the person is suspected of using the journey outside the country for action connected with intelligence or contrary to the customs or currency regulations.’
Special or exceptional cases
‘According to paragraph 4 of the Schedule the travel document is to be made valid for the greatest possible number of countries. ‘Special or exceptional cases’ are only considered to exist if there are objections for reasons of national security or public order to the journey of a refugee into a particular country’.
Competence for the extension of the validity of Convention travel documents
Convention travel documents will always be prolonged by the competent Austrian authorities unless the holder has obtained lawful residence in another State. Such lawful residence will be understood by the Austrian authorities to be granted if the other State has authorized the refugee’s residence within its territory beyond the validity of the clause allowing him to return to Austria’.
(In the German Federal Republic the Supreme Federal Administrative Court decided on 12 January 1956, in the case Mankowsky,533 a Polish refugee who had gone to Israel, then to France before coming to the Federal Republic, that his London travel document could not be extended since there had been no final decision on his refugee status which had been refused in the first instance. He was offered an aliens passport.)
In the US, the Department of Justice ruled on 23 October 1973534 that lawful presence (for the purpose of the travel document) does not include brief presence as a transient or crew member, or any other presence so brief as to not signify residence even of temporary duration.
Commentary
The question of a travel document for refugees was the first problem which arose when Fridtjof Nansen was appointed High Commissioner for Russian Refugees of the League of Nations. The first Arrangement adopted on his initiative on 5 July 1922 dealt with travel documents. The travel document issued under this and subsequent Arrangements and Agreements has become known as the Nansen passport. The travel document issued according to Article 28 of the 1951 Convention has become known as the Convention travel document. It has been agreed that it be issued with a stiff United Nations-blue cover. UNHCR places stocks of travel documents at the disposal of Contracting States which are developing countries.
Article 28 paragraph 1 refers to refugees ‘lawfully staying’ in the territory of a Contracting State. As to the meaning of the term ‘lawfully staying’. Article 28 paragraph 1 imposes a mandatory obligation on Contracting States to issue the document. Although the words ‘on request’ have been omitted, it is clear that it will only be issued if requested for the purpose of travel outside the territory. (The German Federal Republic where the travel document is issued as an identity document, is an exception). On the other hand, if the applicant is a refugee within the meaning of Article 1 of the Convention or the 1967 Protocol, the Contracting State must issue him or her with a Convention travel document and not with any other document such as an aliens passport. There is thus a difference between nationals and refugees in favour of the latter. While the issuance of a passport to a national is often a matter of discretion, the issue of the travel document is an obligation, unless compelling reasons of public security or public order justify a refusal. There is good reason for this distinction between nationals and refugees, since refugees may have to travel, for example, from the country of first asylum to a country of resettlement.
When a Contracting State has chosen, under Article 1B, the alternative ‘events in Europe’, that State is only entitled to issue Convention travel documents to refugees as a result of events in Europe. On the other hand, it should, and normally will, recognize travel documents issued by Contracting States which have chosen the alternative ‘events in Europe or elsewhere’ to refugees as a result of events outside Europe. With the entry into force of the Protocol relating to the Status of Refugees of 31 January 1967535 the dateline of 1 January 1951 in Article 1A2 has been abolished. As the parties to the Protocol undertake the obligations of Articles 2-34 of the 1951 Convention, they are also obliged to issue Convention travel documents also to post-dateline refugees and other States Parties to the Protocol are obliged to recognize such documents; but States non-parties to the Protocol are not so obliged.
As to the exception in paragraph 1 of Article 28, the word ‘imperative’ was changed into compelling’ by the Style Committee. Thus, not any grounds of national security or public order may be invoked but only compelling grounds. The wording was adopted after much discussion. The proposal that the travel document may be refused on the same grounds on which a national passport may be refused was not adopted. It would seem to cover cases where a refugee seeks to escape prosecution or punishment for a criminal offence or where the refugee is suspected of travelling in order to engage in criminal or espionage activities. It does not cover, according to the debate, cases in which a national passport may be refused, such as insolvency, failure to pay taxes or to comply with military obligations. It was also stated that this may allow for the ‘temporary discontinuance of the issue of such documents’ but did not mean that the issue would categorically be refused. The temporary discontinuance of issuance ‘would no longer be necessary once the considerations of national security or public order which had led to suspend the issue of travel documents had ceased to hold.’
The second sentence of paragraph 1 of Article 28 contains an authorization and a recommendation; travel documents may be issued to refugees in the territory who are not lawfully staying, be it that they are illegally in the country or purely temporarily. The recommendation refers to refugees physically present in the territory who are unable to obtain a travel document from the country of their lawful residence, for example, because it is not a party to the Convention or issues travel documents to refugees as a result of events in Europe only. The Contracting States are obliged to consider sympathetically the application of such refugees. The second sentence may also be applied to refugees subject to an expulsion order since without a travel document they would be unable to go to another country. To extend the authorization to refugees not physically present in the territory was rejected but under paragraph 6 sub-paragraph 3 of the Schedule the Contracting States shall give sympathetic consideration to renewing or extending the validity of travel documents or issuing new documents to refugees who are unable to obtain a travel document from the country of their lawful residence’. In this case, physical presence is apparently not necessary.
Under the second paragraph of Article 28 the Contracting States are obliged to recognize documents issued to refugees under previous international agreement, by States parties thereto and to treat them in the same way as Convention travel documents even if they were issued by States not party to the 1951 Convention. Although the term ‘agreements’ is used this includes the Nansen passports issued under the Arrangements of 1922, 1924, 1926, 1928, 1935 and 1936.
As to paragraph 2 of the Schedule it is up to the Contracting State concerned to determine the age limit up to which children may be included in the travel documents of an adult.
As to paragraph 4 some Contracting States exclude the country of origin of the refugee and countries with a similar regime from the validity of the travel document.
As to paragraph 5 some Contracting States issue the travel document for a longer period and this has not been objected to.
As to paragraph 6 sub-paragraph 1 there is a slight discrepancy between the wording of the sub-paragraph which provides for renewal or extension ‘so long as the holder has not established lawful residence in another territory and resides lawfully in the territory of the said authority’ and paragraph 11 according to which the responsibility for the issue of a new document shall be that of the competent authority of the territory in which the refugee has taken up lawful residence. The idea is that only one country should be responsible and that there should be no interruption regarding the responsibility for issuance. As has been seen, several Contracting States have concluded agreements for the transfer of responsibility for the issue of travel documents to refugees who move lawfully from one country to another.
As to paragraph 9, while the first paragraph contains an obligation to issue transit visas the second paragraph limits this obligation in cases where refusal of a visa to any alien would be justified. Paragraph 9 applies also where the State of final destination does not require a visa but where the refugee can show that he or she will be admitted by that State. The provisions of paragraph 10 do not preclude the levy of the Nansen stamp.
Paragraph 13 paragraph 2 relates to the exit and entry visas required by some States. As it is subject to paragraph 1 of Article 28, this may not affect the absolute obligation of the issuing State to re-admit the holder of a travel document. Paragraph 14 goes further by referring to the laws and regulations of the Contracting State concerned but may also not affect the duty of re-admission.
Paragraph 16 contains a self-evident provision since, under international law, States are entitled to protect their own nationals abroad only. It does not preclude the State which has issued the travel document to grant such protection to a refugee, provided the State vis-à-vis which this protection is to be exercised, admits such protection. The Protocol to the European Convention on Consular Functions537 provides for the protection of refugees by the State of residence but this Convention is not in force.
As to the specimen travel document, withdrawal of the old document and return to the authority which issued it is optional, according to the decision of the Conference.
RTICLE 29. FISCAL CHARGES
1. The Contracting States shall not impose upon refugees duties, charges or taxes, of any description whatsoever, other or higher than those which are or may be levied on their nationals in similar situations.
2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regulations concerning charges in respect of the issue to aliens of administrative documents including identity papers.
Travaux Préparatoires
The Secretariat draft referred to Article 13 of the 1933 Convention and proposed:
‘1. The High Contracting Parties undertake not to impose upon refugees residing in their territory duties, charges or taxes of any denomination whatsoever, higher than those which are or may be levied on their nationals in similar situations.
‘2. Nothing in the foregoing provisions shall prevent the application of the provisions of the laws and regulations concerning charges in respect of the issue to foreigners of administrative documents or the extension of the validity of such documents.
‘3. The High Contracting Parties reserve the right to impose upon refugees of the various nationalities, according to their country of origin, a stamp duty payable either on identity cards or residence permits or on travel documents.
Revenue accruing from this duty shall be wholly applied to charities for the relief of refugees of the various nationalities.’
In the comment it was stated that the first paragraph reproduced word for word the provisions of the 1933 Convention.
As to paragraph 2 it was said that it reproduced the text of Article 13 paragraph 1 of the 1933 Convention with the omission of the reference to the Nansen stamp.
As to paragraph 3 it was stated that this empowered Governments to resume and extend the former Nansen stamp system.
From the financial point of view it could only yield limited but not negligible results. From the moral point of view, it had a definite value since it affirmed the solidarity of refugees.
The French draft was identical.
At the first session of the ad hoc Committee paragraphs 1 and 2 were adopted.
As to paragraph 3 the representative of the IRO said the operation of the Nansen stamp system was left entirely to the discretion of the signatory countries.
The Belgian representative thought that the clause should be retained. If that was not done, the States concerned, under the terms of paragraph 1 of the Article, could not impose upon refugees higher taxes than those levied for the issue of travel documents to their own nationals.
The representatives of the US and the IRO agreed that any reference to the country of origin of the refugees should be deleted.
The French representative said that his delegation attached great importance to the problem of relief being mentioned in the Convention.
Paragraph 3 was adopted in the following wording:
‘3. The High Contracting Parties reserve the right to impose upon refugees a special stamp duty payable either on identity cards or on residence permits or on travel documents. Revenue accruing from this duty shall be wholly applied to charities for the relief of refugees.
Chile made the following comment:
‘It is stated in Article 24 that the contracting States reserve the right to impose upon refugees a special duty, the revenue of which shall be wholly applied to charities for the relief of refugees. It would not appear that any useful
purpose would be served by the levy of a special tax for the above-mentioned object, since refugees, like any other foreigners, are entitled to the social assistance benefits provided by our own legislation.’
The Working Group proposed the following text.
‘1. The Contracting States shall not impose upon refugees in their territory duties, charges or taxes of any description whatsoever, other higher than those which are or may be levied on their nationals in similar situations.
‘2. Nothing in the above paragraph shall prevent the application to refugees of the laws and regulations concerning charges in respect of the issue to aliens of administrative documents.
‘3. The Contracting States reserve the right to impose upon refugees a special duty payable either on identity cards, or on residence permits on travel documents. Revenue accruing from this duty shall be wholly applied to charities for the relief of refugees.’
That text was adopted.
The Committee made the following comment:
Paragraph 2. It should be noted that Article 20 paragraph 4 allows a Contracting State to charge for Administrative Assistance rendered to refugees. The charge mentioned in Article 20 is applied to refugees only, whereas the charges mentioned in Article 24(2) are imposed on aliens, refugees or otherwise.
Paragraph 3. This provision does not refer to any tax which would accrue to the Government but refers to a special duty the proceeds of which would benefit relief organisations serving refugees. The Convention of 28 October 1933, Article 13 ‘paragraph 2, contains a provision concerning the so-called Nansen stamp, the proceeds of which were to go to refugees. This provision would authorize a country to impose a fee of the same nature, which would be regulated differently, the proceeds of which would be used for the benefit of refugees.
At the second session of the ad hoc Committee the Chairman said the Nansen stamp cost five gold francs. He suggested that the words ‘not exceeding five gold francs’ be inserted after the words ‘special duty’.
The Venezuelan representative maintained that paragraph 3, although designed to provide relief for refugees, nevertheless constituted an imposition on individual refugees. He supported the proposal that paragraph 3 should be deleted.
The French representative said he was prepared to accept a limitation in the form of a reference to the Nansen stamp. He proposed the insertion of the words ‘of a moderate amount’ after the words ‘a special duty’ in the second line of paragraph 3 of Article 24.
The US representative suggested that the duty should be described as either ‘nominal’ or ‘limited’. He thought that the desired purpose might well be achieved by adding the words ‘to continue’ after the word ‘might’.
The Belgian, Chinese, Turkish and Venezuelan representatives spoke in favour of the deletion of the paragraph.
The Chinese representative said that his delegation was prepared to vote in favour of limitation, provided that the imposition of the duty remained on a national and not on an international basis.
The Committee decided in favour of the limitation of the special duty referred to in Article 24 paragraph 3 by 8 votes to none, with 3 abstentions.
The Committee decided to retain paragraph 3 of Article 24, as amended, by 4 votes to 3, with 4 abstentions.
The Working Group proposed that paragraphs 1 and 2 should remain unchanged and that paragraph 3 should read:
‘3. The Contracting States reserve the right to impose upon refugees a special duty, of a moderate amount, payable either on identity cards, or on residence permits or on travel documents. Revenue accruing from the duty shall be wholly applied to charities for the relief of refugees.’
That Article was adopted.
At the Conference of Plenipotentiaries Yugoslavia proposed the deletion of paragraphs 2 and 3.
The Turkish representative opposed the deletion of paragraph 2 but spoke in favour of the deletion of paragraph 3.
The Yugoslav representative withdrew his proposal to delete paragraph 2.
The Austrian, Swedish and UK representatives supported the deletion of paragraph 3.
In reply to a question by the Swedish representative the President said he would interpret paragraph 2 to as applying to all the documents referred to in the Convention, not required by nationals.
The Swedish representative said in Sweden aliens were treated differently from nationals in the matter of certain taxes. Sweden would be obliged to enter a reservation in that respect, the scope of which, however, would be considerably reduced if paragraph 1 of Article 24 was amended to refer to refugees lawfully residing in the territory of a Contracting State.
The Yugoslav proposal to delete paragraph 3 was adopted by 15 votes to 3, with 4 abstentions.
Article 24, as amended, was adopted by 19 votes to none, with one abstention.
The Style Committee proposed the text which is now in the Convention.
That Article was adopted by 23 votes to none.
Judicial Decisions
In Austria, the Supreme Administrative Court decided in the case of a refugee who had a wife and nine children in his country of origin, that they could be considered as deductible for income tax purposes.
Commentary
Article 29 is modeled on Article 8 of the 1928 Arrangement and Article 13 of the 1933 Convention.
Paragraph 1 refers to refugees regardless of their residence. In fact, tax legislation usually distinguishes between residents and non-residents rather than between nationals and aliens. Non-resident refugees are subject to the same taxation as nationals ‘in similar situations’. They are, on the other hand, not obliged to pay taxes or other charges levied on aliens only.
Paragraph 2 must be read in conjunction with Article 25 paragraph 4 and paragraphs 3 and 10 of the Schedule. The documents referred to are those mentioned in Articles 25 and 27 but also other documents required under the Convention.
The term ‘aliens’ must be understood to apply to alien in the same circumstances. As paragraph 3 was not adopted, the Nansen stamp system has been abolished.
ARTICLE 30. TRANSFER OF ASSETS
1. Contracting States shall, in conformity with its laws and regulations, permit refugees to transfer assets which they have brought into its territory, to another country where they have been admitted for the purposes of resettlement.
2. A Contracting State shall give sympathetic consideration to the application of refugees for permission to transfer assets wherever they may be and which are necessary for their resettlement in another country to which they have been admitted.
Travaux Préparatoires
At the first session of the ad hoc Committee Belgium proposed a new Article reading:
‘Subject to the formalities prescribed by the legislation to the export and import of currencies, the High Contracting
Parties undertake to authorize refugees to take with them any funds which belong to them and which they may
require for the purpose of settlement in the territory of one of the High Contracting Parties’.
‘The periodic transfer of savings and of sums of money which a refugee settled in the territory of one of the High
Contracting Parties desires to transfer to members of his family settled in the territory of one of the other High
Contracting Parties shall be authorized under the same conditions.’
The UK representative said that the word ‘formalities’ in the first paragraph of the Belgian proposal would seem to imply that a refugee need only to apply, in accordance with the formalities prescribed by law, for authorization to export funds belonging to him, for the Government concerned to be obliged to grant him such authorization. Although he had not received instructions from his Government, he felt sure that it would be reluctant to give refugees undertakings which it did not generally grant to foreigners residing in its territory.
Extremely rigid currency control had been established in the UK not only to consolidate the country’s economy, but in the interests of all countries. A person leaving the UK to settle in another country could transfer funds belonging to him up to a specified amount. In view of the serious financial implications of the question referred to in the Belgian proposal it would be difficult to deal with it in the Convention.
The Chairman, speaking as Canadian representative, said that the restrictions on the transfer of capital were one of the main obstacles to British emigration to Canada. Adoption of the Belgian proposal might give the impression that the Committee had wished to obtain more favourable treatment to foreign refugees than to nationals of the State signatory to the Convention. The Committee could, of course, point out that in some cases, at least, restrictions on the export of currency considerably influenced migratory movements. But it would be difficult to include a special provision on the transfer of funds belonging to refugees in the Convention.
The Turkish representative agreed with the UK representative that the word ‘formalities’ was ambiguous, and suggested that it be replaced by the word ‘measures’. The Belgian proposal provided for two categories of refugees: (1) those entering a country with their capital; (2) those already owning property in the country in which they had settled or acquiring property during their sojourn in that country. In regard to the first category of refugees, it would appear to be in order to authorize a refugee to export the capital he had brought with him; in regard to the second category, however, Governments would be reluctant to permit a refugee to export a larger sum that he had brought in for fear of injuring the general economy of the country and of encouraging illegal export of capital.
His delegation was therefore unable to support the Belgian proposal in so far as it concerned the second category.
The Belgian representative said the second category should be divided into two sub-groups; refugees who had property in the country before their arrival in that country, and those who increased their possession during their residence there. It was obviously impossible to ask that the latter should be authorized to export their capital in its entirety. The case of the former, however, few as they might be, must be regarded with particular interest. They usually had lost the greater part of their possessions when fleeing the country in which they had been victims of persecution, and it seemed unfair to prevent them from enjoying the small property which they did possess abroad by restrictions on the export of currency.
He appealed to the Committee to retain at least the idea on which the Belgian proposal had been based.
The French representative feared that adoption of the Belgian proposal might permit a somewhat artificially stimulated export of capital. There was the further difficulty that it was not always easy to distinguish between genuine cases and others. Moreover, there was no apparent reason why refugees who had been able to go to a country in which they possessed property before settling in the country of final resettlements should be accorded treatment differing from that of refugees who had gone to a country other than that in which their property was.
The US representative drew attention to that fact that the Article proposed by the Belgian delegation covered only currency belonging to refugees, whereas they might have other forms of property. The wording of the Article should, therefore, be amended.
As the Committee seemed to agree that refugees who were, so to speak, in transit through a country could export the possessions they had brought with them to the country of final settlement, a special provision to that effect might be inserted in the Convention.
The Belgian representative supported the US representative’s suggestion. With regard to property refugees had had in a country before their arrival or had acquired during their residence there, the Committee might request Governments to show the greatest possible latitude in certain exceptional cases, in order to prevent refusal based on the strict letter of existing law.
The Danish representative proposed the following text:
‘The High Contracting Parties shall consider favourably the question of authorizing the transfer of currency, which refugees desire to transfer to another country for the purpose of settlement in the territory of such country.’
The French representative observed that the recommendation should also cover cases in which a High Contracting Party withheld property belonging to a foreigner who, whatever the country in which he was, has acquired refugee status and had made an application in accordance with a procedure to be determined.
The Danish representative replied that he had deliberately used the expression ‘which refugees desired to transfer’.
On the proposal of the US representative it was decided to request the Secretariat to prepare the draft of an additional Article which would then be examined by the Working Group.
The Belgian representative suggested that it should be divided into two parts, the first laying down the principle that the refugee could take with him any property he had brought with them, and the second incorporating the recommendation to the High Contracting Parties.
The Working Group proposed a new Article 25 reading:
‘1. A Contracting State shall, in accordance with its laws and regulations, permit a refugee to transfer assets which he has brought with him in its territory to another country where he has been admitted for the purpose of resettlement.
‘2. The Contracting State shall give sympathetic consideration to the application of a refugee to permit the transfer of assets wherever they may be and which are necessary for his resettlement to another country where he has been admitted.’
It made the following comment:
‘In the second paragraph the Committee intended to provide for the transfer of assets and currency which the refugee did not bring into the country with him but acquired after his entry. This paragraph is also intended to cover the assets of a refugee in the territory of any Contracting State other than that in which the refugee is living.’
The Brazilian representative stated that his Government might wish to enter reservations in respect of Article 25.
The US representative said that it was to be hoped that Contracting States would make appropriate changes in their laws and regulations so as to accord protection to refugees in the matter of transfer of assets.
Article 25 was adopted.
At the second session of the ad hoc Committee there were no comments on Article 25 at the first reading.
The Contracting Committee proposed the following text for paragraph 1:
‘1. A Contracting State shall, in conformity with its laws and regulations, permit a refugee to transfer assets which he has brought with him into its territory to another country where he has been admitted for the purposes of resettlement.’
The second paragraph was left unchanged.
Article 25 was adopted.
At the Conference of Plenipotentiaries, Colombia proposed the following amendment: ‘Substitute the following for the existing text:
‘A Contracting State shall permit a refugee to import and export assets under the same conditions as those imposed by its law on other aliens.’ Delete paragraph 2.’
The Belgian representative pointed out that the purpose of Article 25 was in fact to lift, in the case of the refugees, the restrictions imposed in receiving countries on the transfer of assets.
The Swiss and UK representatives supported the views of the Belgian representative.
The Canadian representative spoke in favour of paragraph 1.
The President speaking as representative of Denmark, pointed out that currency restrictions in general made a distinction not between aliens and nationals but between residents and non-residents.
The Colombian representative said he would not press his amendment.
The High Commissioner for Refugees drew attention to a discrepancy between the French and English texts of paragraph 1. Whereas the French text read: ‘Transférer les avoirs qu’ils ont fait entrer dans leur territoire’, the English text read: (the assets) which he has brought with him’. The French was more liberal and he hoped that the English text would be brought in line with the French text.
The President said that it was his interpretation that paragraph 1 related to the assets which the refugee had brought into the country of asylum as a refugee. Any other assets the refugee might possess in that country would come under paragraph 2. As to the High Commissioner’s proposal, he would suggest that the words ‘as a refugee’ be substituted for the words ‘with him’.
The Netherlands representative remarked that cases of refugees wishing to transfer very large sums were most exceptional. It hardly seemed necessary, therefore, to go very deeply into the consequences Article 25 might have in such cases, especially as it was specially provided that the transfer of assets should be effected under the laws and regulations in force in the countries concerned.
The President emphasized that the ad hoc Committee had wished to ensure that the conditions imposed on refugees should be less stringent that those imposed on nationals and other aliens. That was why the sole proviso contained in paragraph 1 was that national laws and regulations should be respected; for the rest, the text was mandatory in that it read: A Contracting State shall… permit…’
Paragraph 1, as drafted in the French text, was adopted by 19 votes to 4, with one abstention.
Paragraph 2 of Article 25 was adopted by 23 votes to none, with one abstention.
Article 25 as a whole was adopted unanimously.
The Style Committee proposed the text which is now in the Convention.
Article 30 was adopted by 23 votes to none, subject to editorial changes.
Commentary
Although the term ‘refugees’ is not qualified, paragraph 1 is meant to apply to assets brought by a refugee into the country of his residence. It contains a mandatory obligation. The words ‘in conformity with its laws and regulations’ does not mean that the application of these laws and regulations, particularly currency regulations, may frustrate the mandatory obligation. They have to be applied in such a way as to make the transfer possible, but there may be limitations such as, as was mentioned in the debate, that the transfer shall take place in instalments or not in hard currency. It also applies to assets which a person has brought into the country concerned before he became a refugee.
Paragraph 2 applies to all other assets, that is, those the refugee has acquired in the country of residence or those which he possesses in the territory of other Contracting States.
The Article applies only to transfer into resettlement countries. With regard to other transfers, Article 7 applies.
ARTICLE 31. REFUGEES UNLAWFULLY IN THE COUNTRY OF REFUGE
1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Travaux Préparatoires
The Secretariat Draft contained a provision on expulsion and non-admittance reading:
1. Each of the High Contracting Parties undertakes not to remove or keep from the territory, by application of police measures, such as expulsions or non-admittance at the frontier (refoulement) refugees (and stateless persons) who have been authorized to reside there regularly, unless the said measures are dictated by reasons of national security or public order.
2. The penalties enacted against foreigners entering the territory of the Contracting Party without prior permission shall not be applied to refugees seeking to escape from persecution, provided that such refugees present themselves without delay to the authorities of the reception country and show good cause for their entry.
3. Each of the High Contracting Parties undertakes in any case not to turn back refugees to the frontiers of their country of origin, or to territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinions.
4. A refugee (or stateless person) authorized to reside regularly in the territory of any of the High Contracting Parties may not be expelled save in pursuance of the decision of a judicial authority.
5. Each of the High Contracting Parties reserves the right to apply such internal measures as it may deem necessary to refugees (or stateless persons) whose expulsion has been ordered and who are unable to leave its territory because they have not received, at their request or through the intervention of Governments or through the High Commissioner for Refugees or non-governmental agencies, the necessary authorizations and visas permitting them legally to proceed to another country.
Paragraph 1
The sovereign right of a State to remove or keep from its territory foreigners regarded as undesirable cannot be challenged.
Nevertheless, expulsion or non-admittance at the frontier are serious measures in any event; they are especially serious in the case of a refugee who cannot be sent back to his country of origin and whom no other State can be compelled to accept. There is little likelihood that a foreign country will consent to receive a refugee whose expulsion has been ordered and who is thereby stamped as an undesirable. As every frontier is barred to a refugee whose expulsion has been ordered, only two possibilities are open to him, either not to obey the order and to go into hiding to avoid being caught or to cross a frontier illegally and clandestinely enter the territory of a neighbouring country. In that country too he must go into hiding to avoid being caught. In either case, after a certain time he is discovered, arrested, prosecuted, sentenced and escorted to the frontier after serving his sentence. Caught between two sovereign orders, one ordering him to leave the country and the other forbidding his entry into the neighbouring country, he leads the life of an outlaw and may in the end become a public danger.
In this way measures of expulsion or non-admittance at the frontier, intended to protect law and order, achieve opposite results when an attempt is made to apply them to refugees without taking into account their peculiar position. Paragraph 1, while not preventing the expulsion of refugees, specifies that their expulsion must be dictated by grave reasons of national security or public order.
Paragraph 2
A refugee whose departure from his country of origin is usually a flight, is rarely in a position to comply with the requirements for legal entry (possession of national passport and visa) into the country of refuge. It would be in keeping with the notion of asylum to exempt from penalties a refugee, escaping from persecution, who after crossing the frontier clandestinely, presents himself as soon as possible to the authorities of the country of asylum and is recognized as a bona fide refugee.
Paragraph 3
The turning back of a refugee to the frontier of the country where his life or liberty is threatened on account of his race, religion, nationality or political opinions if such opinions are not in conflict with the principles set forth in the United Nations Charter, would be tantamount to delivering him into the hand of his persecutors.
The text of paragraph 3 reproduces that of the 1933 Convention (Article 3, paragraph 2) but with an addition which takes into account not only the country of origin, but also the other countries where the life or freedom of the refugee would be threatened for the same reasons.
Paragraph 4
Experience has shown that a large number of expulsion orders are due to false accusations and the malice of ousted competitors. Sometimes the orders are due to an error de persona. So long as expulsion proceedings are secret and so long as the expelled person is deprived of any means of presenting his case, mistaken decisions are inevitable. There are two possible solutions:
The first solution, embodied in the text of the proposed article, would be to prohibit expulsions save in pursuance of a decision of the judicial authority. It may be noted that the Commission on Human Rights including the following provision (Article 12) into the Draft International Covenant on Human Rights which it adopted at its fifth session:
‘No alien legally admitted to the territory of a State shall be expelled therefrom except on such ground and according to such procedure and safeguards as are provided by law’.
The second and less far-reaching solution, representing the minimum guarantee which could be accorded to refugees,
would be to adopt the following text:
‘Before any measure of expulsion is decided or carried out, the refugee should be informed of the grounds for his expulsion and shall have the right to be heard to state his case’
The French draft contained the following Article 26:
1. The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who enters or who is present in their territory without authorization, and who presents himself without delay to the authorities and shows good cause for his illegal entry or presence.
2. The Contracting States shall not apply to such refugee restrictions of movement other than those which are necessary and such restrictions shall only be applied until his status in the country is regularized or he obtains admission into another country. The Contracting States shall allow such a refugee a reasonable period and all the necessary facilities to obtain admission into another country.
At the first session of the ad hoc Committee the Observer of the Agudas Israel World Organization said that there were four main aspects to the problem of refugees and stateless persons. First, there was the admission of a refugee to a country where he could settle; secondly, his position had to be regularized and his rights and duties established; thirdly, there was the question of his possible naturalization; and lastly, the possibility of his being expelled before obtaining naturalization. The draft Convention had thus far followed that pattern, but Article 24 dealing with expulsion should logically come after the chapter on naturalization, since expulsion should be considered as an exception from the general rule of the absorption of a refugee into his country of settlement.
He emphasized the dire consequences of expulsion for any refugee. Return to the country of origin meant almost certain death, and as was pointed out in the Secretariat’s comment to paragraph 1, there was little likelihood that any country would admit a refugee once he had been expelled from another country. Thus, he would have no alternative but to go into hiding. As an example of the type of fate awaiting refugees after expulsion, Mr. Lewin mentioned the occasion in 1946 when a whole trainload of refugees had been stopped between Hungary and Austria because they had been permitted neither to advance nor to go back.
According to paragraph 1 of Article 24, expulsion was to be permitted if it was dictated by reasons of national security or public order. In the French draft, the words ‘public order’ were omitted, but even so the expression ‘dictated by reasons of national security’ was extremely broad. The Nazis might quite well have claimed that their national security had necessitated the expulsion of the Jews, although the whole world had been shocked at that brutal act. Thus, the inclusion of such a phrase would leave all refugees open to expulsion at the slightest provocation.
If a refugee were suspected of spying it would surely serve the interests of national security better to imprison him rather than to expel him. If he committed criminal acts, he should be punished according to the normal laws of the country. He should not, however, be additionally penalized by the terrible threat of expulsion.
In his opinion, the best way to safeguard both the national security and the rights of the refugee would be to state that a refugee could not be expelled save in pursuance of the decision of a judicial authority. That provision was contained in paragraph 4 of the Secretariat draft and he did not think it necessary to include the special provisions contained in paragraph 1. If the Committee decided that it was essential to mention national security, the words ‘on guards of national security’ could be added at the end of paragraph 1.
He was not quite clear as to the real meaning of paragraph 1. If the ‘police measures’ referred to were measures ordered by the administration as opposed to the judicial authority, then the provision appeared to be in contradiction with paragraph 4. If, however, paragraph 1 refer Ted simply to the implementations of decisions taken by the judicial authority, then it should be combined with paragraph 4.
Paragraph 4 of the French draft contained a very valuable idea which he thought should be incorporated into the Secretariat draft. In his opinion, paragraph 2 of the Secretariat draft should be deleted since its proper place was either in the article on admission or in that on the right of asylum.
In conclusion, he submitted the following re-draft of Article 24 for the Committee’s consideration:
‘1. Each of the High Contracting Parties undertakes not to turn back refugees to the frontiers of their country of origin, or to the territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinions. (Original paragraph 3).
‘2. A refugee authorized to reside regularly in the territory of any of the High Contracting Parties may not be expelled save in pursuance of the decision of a judicial authority (on grounds of national security). (Original paragraph 4).
‘3. A refugee whose expulsion has been ordered shall be entitled to submit evidence to clear himself, and to be represented before the competent authority. (Paragraph 3 of the French draft).
‘4. Each of the High Contracting Parties reserves the right to apply such internal measures as it may deem necessary to refugees whose expulsion has been ordered, and who are unable to leave its territory because they have not received, at their request, or through the intervention of the Government or Governments concerned or through the competent organ of the United Nations or of the non-governmental agencies dealing with them, the necessary authorizations and visas permitting them legally to proceed to another country.
Denmark proposed an amendment:
Add the following paragraphs to the draft article:
6. The High Contracting Parties agree that any measures taken under the preceding paragraph which impose restrictions of movement on refugees shall be limited as to extent and duration to those which are absolutely necessary.
7. The High Contracting Parties agree that in the case of refugees provisionally admitted to their territories as an emergency measure, but who have not been authorized to reside therein, restrictions of movement shall be limited to those which are absolutely necessary.
8. The High Contracting Parties agree that if they should consider it necessary to order the internment of refugees or the restriction of their residence to specific areas such orders shall be made only on the merits of each individual case and solely where such measures are absolutely necessary, and that the conditions of internment and the treatment of interned refugees shall, both morally and materially, be consistent with human dignity and shall not be less favourable than those accorded
[Alternative 1: to civilian internees in time of war according to the provisions of the Geneva Convention for the Protection of Civilian Persons in Time of War of 12 August 1949 (Articles 78 et seq.)]
[Alternative 2: to persons temporarily deprived of their liberty pending investigation by law enforcement agencies.]
In the Social Committee of the Economic and Social Council the Agudas Israel World Organization proposed a text of Article 24 reading:
1. Each of the High Contracting Parties undertakes not to turn back refugees to the frontiers of their country of origin, or to territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinions.
2. A refugee authorized to reside regularly in the territory of any of the High Contracting Parties may not be expelled save in pursuance of the decision of a judicial authority. (Alternative: on grounds of national security).
3. A refugee whose expulsion has been ordered shall be entitled to submit evidence to clear himself, and to be represented before the competent authority.
4. Each of the High Contracting Parties reserves the right to apply such internal measures as it may deem necessary to refugees whose expulsion has been ordered, and who are unable to leave its territory because they have not received, at their request, or through the intervention of the Government or Governments concerned or through the competent organ of the UN or of the non-governmental agencies dealing with them, the necessary authorizations and visas permitting them legally to proceed to another country.
The Committee decided to consider the draft submitted by the Agudas Israel World Organization565 paragraph by paragraph.
Paragraph 1
The UK representative proposed that the words ‘to the frontiers of territories’ should be substituted for the phrase ‘to the frontiers of their country of origin, or to the frontiers…’ The amendment would not alter the purport of paragraph 1. The UK proposal was adopted.
The French representative drew attention to the fact that paragraph 1 of the text under discussion was practically the same as paragraph 3 of the text proposed by the French delegation, the only difference being that in the French proposal the provision ended with the stipulation ‘provided that these opinions are not contrary to the principles of the United Nations as set forth in the Preamble to the United Nations Charter’; it would be worth considering whether paragraph 1 should not be completed in some such manner.
The UK representative wondered whether it would not be well to stipulate in the text of paragraph 1 that the provision would not have to be applied when national security was involved.
National security was a consideration which took precedence over all others. States should not, of course, invoke that provision except when circumstances absolutely justified their doing so, but it must be recognized that such circumstances could arise and provision must be made for them. He therefore proposed that the following phrase should be added at the end of the paragraph: ‘unless the said measures are dictated by reasons of national security’.
The Belgian representative said that the addition of the phrase would nullify the desired effect of paragraph 1. He pointed out that even if it were essential to refuse admission to a refugee for reasons of national security, for example, it would always be possible to direct him to territories where his life or his freedom would not be threatened.
The US representative supported the Belgian representative’s view, even where there were urgent reasons of national security, a State could easily avoid turning back a refugee to a territory in which he would be in danger.
The Israeli representative drew the UK representative’s attention to the provisions of paragraph 4, which permitted States to apply whatever measures they deemed necessary with regard to refugees, when, for example, their national security was at stake.
If the amendment proposed by the French representative was adopted, he thought that the words as set forth in the Preamble of the UN Charter should be deleted since the principles of the UN were outlined chiefly in Article 2 of the Charter, and not in the Preamble.
The US representative did not think it was really wise to adopt the French amendment. It was unlikely that any country would in reality refuse admittance to a person obliged to leave his own country on account of opinions which were not wholly in accord with the UN Charter. The reservation proposed by the French representative was therefore unnecessary and might even be dangerous.
The French representative pointed out that his amendment did not entail the compulsory refusal of refugees. There was no reason to grant any privilege to persons whose political opinions were in conflict with the principle of the UN.
The UN representative drew the French representative’s attention to the fact that Article 1 of the draft excluded from the benefits of the draft Convention any person who had committed acts contrary to the principles of the UN. It therefore seemed unnecessary to repeat the same idea in Article 24, in different form and in relation to a specific question.
The representative of the IRO pointed out that the Agreement of 15 October 1946 included the principle stated in paragraph 1 but did not include the reservation proposed by the French representative.
The French representative said that if his proposal was not adopted he would ask for a statement in the report to the effect that the reservation had not been included in Article 24 for the sole reason that, in the opinion of the Committee, it was clearly stated in Article 1.
The UK representative said he would not insist on his amendment but reserved the matter. Paragraph 1 as amended was adopted.
Paragraph 2
The Chairman, speaking as representative of Canada, said that in his country, expulsion orders were issued by the administrative and not by the judicial authorities, even when the first decision was subject to appeal. When a writ of habeas corpus had been obtained, the judge dealing with the case decided whether the expulsion order had been legal or not; in the event of the judge declaring it illegal, it was necessary for expulsion proceedings to be initiated anew before the administrative authority.
In order to cover every case, it would be advisable to amend Paragraph 2 to read: ‘the decision of a judicial or administrative authority’.
The US representative felt that the adoption of such an amendment would deprive the refugee of the safeguard which every individual was entitled to expect from a judicial authority. He would be left to the discretion of police measures.
As he had already emphasized on a number of occasions, the problem did not arise in the US. He nevertheless felt bound to draw to the Committee’s attention that the proposed amendment might weaken the scope and usefulness of Article 24 as a whole.
The Turkish representative supported the Canadian amendment.
The Chairman, speaking as representative of Canada, proposed the following alternative for the final phrase of paragraph 2: ‘in pursuance of a decision reached by due process of law’.
The French representative stated that it was impossible to give the judicial authorities sole powers with regard to measures of expulsion; in France such measures could only be taken by the prefects and the Ministry of the Interior. He gave his unqualified support to the Canadian proposal.
The Belgian representative agreed. He asked whether it would not be possible to state specially that the order to expel a refugee should be without appeal. That would be equivalent to saying that the refugee could not be expelled except by a decision of the highest authority.
The US representative could accept the last solution proposed by the Chairman. He agreed with the Belgian representative that it would be well to state specially that it was to be a final decision.
The Venezuelan representative stated that he found it difficult to support Article 24 if the idea of public order was not mentioned in it.
There were certain young countries which were subject to internal upheavals and revolutions, sometimes obtained by violence. They sometimes found themselves in exceptional situations which obliged them to take emergency measures which might involve the suspension of constitutional guarantees. The Committee should not give refugees guarantees and privileges which would not be enjoyed by the nationals of the country concerned in such exceptional circumstances.
Venezuela had experienced disturbances, accompanied by violence, in which refugees of various countries had taken part. It should be possible to expel all aliens whether refugees or not, from the territory of a State immediately that public order was threatened.
In conclusion, he stressed that there should be some reference to public order, and some provision to ensure that the protection granted to refugees under the Convention would not apply in certain exceptional circumstances. The US representative wondered whether the Venezuelan representative wished the reference to public order to be inserted in Paragraph 1 which had already been adopted in principle, or in Paragraph 2. The Committee had already agreed that even for reasons of national security or public order, refugees should not be turned back to countries where their life or freedom would be threatened.
The French representative said that it was important to mention the idea of national security and public order at the very beginning of the Article.
The representative of the Secretariat attempted to explain three principal factors of the rather complex problem facing the Committee. The first, lay in the exceptional limitation of the sovereign right of States to turn back at the frontier of the country of origin. That was the purpose of Paragraph 1 of Article 24 proposed by the Agudas Israel World Organization.
The second, was the expulsion of refugees to territories where neither their lives nor their freedom would be threatened.
Paragraph 2 provided a purely formal, procedural guarantee in favour of the refugees. States would have to undertake not to resort to the ultima ratio of expulsion except for very grave reasons, namely matters endangering national security or public order. Finally, refugees who did not come within the framework of the Convention were the third factor. It was they, and they alone, whom non-admittance measures should concern. It did not seem necessary to include those measures in a Convention which was to apply only to refugees authorized to reside regularly in the reception country. There should either be no mention of non-admission in the Article or, if it were considered necessary to retain the provision, it should be made clear that it would not apply to the refugees regularly admitted to residence.
The US representative said, whether or not a refugee was in a regular position, he must not be turned back to a country where his life or freedom would be threatened. No considerations of public order should be allowed to overrule that guarantee, for if the State concerned wished to get rid of the refugee at all costs, it could send him to another country or place him in an internment camp. In order that there should be no doubt that paragraph 1 applied to all refugees, he proposed that the words ‘undertakes not to expel or to turn back’ should replace the word ‘not to turn back’ in paragraph 1.
Concerning paragraph 2, those measures were certainly taken in accordance with a procedure provided by law.
Consequently, the guarantee contained in paragraph 2 was safeguarded. Whether it was necessary to supplement the guarantee by limiting measures of expulsion to those dictated by national security or public order was a delicate matter. The French representative was willing to accept the US amendment to paragraph 1. The Article should include a first paragraph dealing with non-admission in general, a second on expulsion in general, a third one on non-admittance at the frontier and expulsion to territories where the life and liberty of the refugees might be threatened, and a last paragraph on the special measures to be applied in connection with refugees unable to obey the expulsion order.
The UK representative stated that it was difficult for him to agree that the provisions of paragraph 1 should be extended to cover the question of expulsion. When a refugee obstinately refused to abide by the laws of the country which had granted him hospitality, the Government must have the right to expel him to the only country which would admit him, and which was, in fact, the country where his life or liberty might be in danger. The Government would take care that such extreme measures were applied only in very rare circumstances.
In reply to the French representative, who referred to the measures indicated in paragraph 4, which were intended to meet most cases of this kind, the UK representative objected that the measures laid down in paragraph 4 seemed to him inadequate. The prospect of imprisonment would not have the same deterrent effect as the risk of being expelled to the country of origin.
The representative of the IRO wondered whether it was advisable, through consideration of concrete cases which were completely exceptional, to undermine a generally acceptable principle. Turning back refugees to their country of origin, if considered for extreme cases, would, moreover, raise a question of a local nature. It was certain that the country of origin would only accept a refugee who was one of its nationals. It was true that an international protocol of 1930 stipulated that in the case of a destitute person or a criminal, the country of origin must receive the expelled person, even if he had renounced his nationality. That protocol had, however, never come into effect.
The Danish representative was not satisfied with the text as it should be made clear that an expulsion order against a refugee could be issued only on grounds of national security and public order, and that social considerations, such as destitution, should not come under the heading of public order.
The Belgian representative pointed out that a refugee who broke the laws of the country also undermined public order. On the other hand, it was naturally impossible to expel a refugee for economic reasons, as in the case of destitution. If that was the correct interpretation of the reservation regarding national security and public order, his delegation would accept that provision as it stood.
The French representative agreed. The Draft Convention should merely state that a refugee could be deported only for reasons of national security.
The Danish representative reminded the Committee that the 1933, 1936 and 1938 Conventions contained the same restrictions.
The Chairman said that, practically speaking, there was nowhere a refugee could be sent. Even without paragraph 1, the reception country would perforce have to keep such a refugee as it could not possibly return him to a country where his life was in danger.
The US representative was in favour of the addition supported by the Danish representative.
The UK representative was prepared to accept the words ‘save on grounds of national security or public order’. In the UK deportation was ordered on grounds of national security or public order only, which included offences against the law. The Chairman suggested that paragraph 2 should be amended by the addition of the following words: ‘save on grounds of national security or public order and in pursuance of a final decision reached by due process of law’.
In reply to the question of the French representative the Chairman said that the word ‘final’ had been inserted in the text in order to avoid the possibility of a person being expelled by the decision of a mere policeman, for example.
The French representative said he was obliged to reserve his Government’s position. It appeared from the preceding discussion that the expression ‘public order’ was not interpreted in the same way in all countries. In France, for example, it was certainly given a different definition than in the UK. Consequently, the inclusion of that expression would not, in his view, restrict the right of expulsion to any considerable extent. He therefore preferred the words ‘national security’ which was more precise in meaning.
The US representative suggested that the words ‘for a violation of the law’ or some similar expression might be added to the text.
The Venezuelan representative preferred that preference should be made to public order. In his country, ‘public order’ was synonymous with internal order while ‘national security’ implied ‘international order’, for the two ideas complemented each other and were closely linked.
The Israeli representative proposed the adoption of the words ‘internal and external national security’ as the words ‘public order’ could in fact give rise to different interpretations.
The representative of the IRO advised the Committee that if it had in mind criminal offences, it should say so clearly. The appropriate phrase would then be something as follows: ‘For reasons of national security or if the refugees concerned have been convicted for a criminal offence’.
The Turkish and Venezuelan representatives preferred the phrase ‘on grounds of national security or public order’.
The Belgian representative shared that point of view. He asked that the discussion should be recorded in the summary record of the meeting so as to make clear what the Committee understood by the concept of public order.
The following text was adopted:
‘A refugee whose expulsion has been ordered shall be entitled to submit evidence and to clear himself, and to be represented before the competent authority in accordance with the established law and procedure of the country’.
Paragraph 3
The UK representative did not fully agree with the provisions of the paragraph. In the UK aliens could not appear before the Home Secretary, nor be represented before him. He proposed therefore that either the second part of paragraph 3 be deleted, or that such words as ‘like all other aliens’ should be added.
The Belgian representative proposed that the phrase ‘in conformity with the existing provisions regarding aliens in general’should be added to paragraph 3.
The French representative remarked that the text had a slightly different meaning. It provided, in fact, for the case of a refugee who had already received an expulsion order and was contesting the action taken against him and had grounds for so doing.
The Israeli representative considered that paragraph 3 applied, in fact, solely to countries which allowed an appealed to be made against an expulsion order.
Paragraph 3 was adopted, with the addition of the words ‘in accordance with the established laws and practices of the country concerned’, proposed by the US representative.
Paragraph 4
The Chairman said it would be advisable to lighten the text by deleting all the text after the word ‘territory’. He was supported by the Danish representative who said a refugee might be prevented from complying immediately with an expulsion order for reasons other than the more or less legal reasons given in paragraph 4, for example a pregnant wife or a sick child.
The French representative agreed. A refugee could not be sent back to a country where his life would be threatened. But a refugee expelled from one country had little chance of being admitted elsewhere. The Committee had decided that paragraph 4 would apply in that case.
The Belgian representative thought that, in the circumstances, it might be as well to delete the whole of paragraph 4 as it offered no guarantee to refugees.
The representative of the IRO thought that paragraph 4 should stipulate that the High Contracting Parties would delay the application of internal measures until the refugee received permission to proceed to another country. So far the High Commissariat and the voluntary organizations had been kept informed regarding expulsion orders which enabled them to help the refugee to find another reception country. That explained the provision in that part of paragraph 4 to which objection had been raised.
The representative of the US stated that, in practice, before a foreigner was expelled from the US, he was given the option of leaving voluntarily or of being interned until he found another reception country. The benefit of such measures might also be extended to refugees.
The Danish representative thought the Chairman’s amendment would not have any grave practical consequences.
The US representative asked whether the Committee thought it advisable to include in Article 24 certain words which, without placing an obligation on the High Contracting Parties, would express the hope that any refugee regularly residing in a signatory country who might be under an expulsion order, could have the opportunity of trying to obtain legal admission into another country, before the expulsion order was put into effect. In the meantime the High Contracting Parties could take the appropriate national measures in his case.
The text adopted read:
‘1. Each of the High Contracting Parties undertakes not to expel or to turn back refugees to the frontier of territories where their life or freedom would be threatened on account of their race, nationality or political opinions.
‘2. A refugee authorized to reside regularly in the territory of any of the High Contracting Parties may not be expelled save on grounds of national security or public order and in pursuance of a decision reached by the process of law.
‘3. A refugee whose expulsion has been ordered shall be entitled to submit evidence to clear himself, and to be represented before the competent authority in accordance with the established law and procedure of the country’.
The US proposal read:
‘The High Contracting Parties shall allow any refugee whom they have ordered expelled a reasonable period within which to seek admission into another country. During that period the High Contracting Parties reserve the right to apply such internal measures as they deem necessary’.
The new paragraph 4 of Article 24 was adopted, subject to drafting changes.
The Danish representative said his amendment has been submitted at the suggestion of the IRO representative and was based on the practical experience of that organization.
The IRO representative explained the additional paragraphs primarily concerned the position of refugees admitted provisionally as an emergency measure. He recognized that it was sometimes impossible for Governments to allow such refugees full freedom of movement and the provision proposed was intended to define the restrictions which might be necessary and to reduce them to a minimum.
Paragraph 2, Article 24 (Secretariat draft)
The representative of the Secretariat explained that the original draft of Article 24 had been based on Article 3 of the 1933 Convention. The reference to non-admittance at the frontier in paragraph 1 (refoulement) applied only to refugees who had already been authorized to reside in the territory in question. The practice known as refoulement in French did not exist in the English-speaking countries. In Belgium and France, however, there was a definite distinction between expulsion, which could only be carried out in pursuance of a decision of a judicial authority, and refoulement, which meant either deportation as a police measure or non-admittance at the frontier.
The Belgian representative agreed and added that the term ‘expulsion’ was used when the refugee had committed a criminal offence, whereas the term ‘refoulement’ was used in cases where a refugee was deported or refused admittance because his presence in the country was considered undesirable, even though he was a person of good character.
The UK representative concluded from the discussion that the term ‘refoulement’ would apply to (a) refugees seeking admission; (b) refugees illegally in the country; (c) refugees admitted temporarily or conditionally. In the UK refugees who had been allowed to enter the UK could be sent out only by expulsion or deportation. There was no concept in these cases corresponding to that of ‘refoulement’.
The French representative considered that the exclusion of the concept of ‘refoulement’ from the Draft Convention would place countries like France and Belgium in a very difficult position.
The US representative suggested that the Committee should study to what extent it would be desirable to provide for the application of the principle in paragraphs 2, 3 and 4 of Article 24 to refugees (a) illegally present in the country; (b) that paragraph 1 of Article 2 in the country; (b) that paragraph 1 of Article 24 as approved should form a separate Article, followed by an Article containing paragraphs 2, 3 and 4, which in turn would be followed by a further new Article embodying the result of the Committee’s examination of this question.
The French representative proposed the insertion of the words ‘or refoule’ in paragraph 2 of Article 24.
The US representative stated that in the English text the word ‘expelled’ covered all cases, so that there was no need to modify it in that respect.
The Chairman declared that, in the absence of any objection, the French text should be so modified.
The IRO representative wondered whether it would be necessary to single out, in a special category, refugees admitted temporarily or conditionally, since it might be argued that such refugees were legally in the country as long as they observed the conditions governing their stay there; if they violated those conditions, their position would of course be that of refugees illegally present in the country.
The Belgian representative did not think it would be reasonable to extend the benefits of provisions of paragraphs 2, 3 and 4 of Article 24 to ‘legal’ and ‘illegal’ refugees alike, since the latter would be persons who had violated the laws of the recipient country. Their case ought to be dealt with separately.
The Brazilian representative did not think that Article 24 need be changed much; paragraph 1 covered the fundamental aspect of the problem and applied to all refugees. The following provisions contained special conditions regarding the expulsion of refugees lawfully admitted. Concerning other categories of refugees it would not be practicable to regulate the conditions of their expulsion or non-admission (‘refoulement’). Their case could, however, be covered by some humane provision, along the lines of the Danish amendment.
The Observer of the World Jewish Congress noted that in the UK, for example, there was no recourse against a deportation order, the Home Secretary having discretionary power to issue such orders. He was fully aware that the Home Secretary had invoked that provision most sparingly and with the utmost discretion and had, in fact, saved the lives of tens of thousands of people. While he was absolutely certain that the power would never be abused in the UK, it was nevertheless objectionable that a refugee or stateless person could be expelled – theoretically, at least – in an arbitrary manner against which he had no legal protection. A common procedure to remedy that effect should be established.
The text as adopted read:
First Article
Each of the High Contracting Parties undertakes not to expel or return, in any manner whatsoever, refugees to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality or opinions.
Second Article
1. A Refugee who is lawfully in the territory of any of the High Contracting Parties may not be expelled save on grounds of national security or public order and according to such procedure and safeguard as are provided by law.
2. Such refugees shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear themselves and to be represented before the competent authority.
3. The High Contracting Parties shall allow such refugees a reasonable period within which to seek legal admission into another country. During that period the High Contracting Parties reserve the right to apply such internal measures as they may deem necessary.
Third Article
1. The High Contracting Parties undertake not to impose penalties, on account of their illegal entry or residence, on refugees who enter or who are present in that territory without prior or legal authorization and who present themselves without delay to the authorities.
2. The High Contracting Parties undertake not to apply to such refugees restrictions of movement other than those which are necessary and such restrictions shall only be applied until such time as it is possible to make a decision regarding their legal admission to the reception country or to another country; the High Contracting Parties shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
The Chairman remarked that the word ‘political’ should have appeared before the word ‘opinions’ in the First Article.
The Danish representative drew the attention of the Committee to the words ‘…such restrictions shall only be applied until such time as it is possible to make a decision…’ contained in sub-paragraph 2 of the Third Article, and cited, in that connection, the hypothetical case of a group of refugees which a country had placed in a concentration camp. He wondered whether such a country would be obliged to release the refugees as soon as they had obtained entry visas to another country. Some refugees might possibly use such an opportunity to remain in the country illegally.
The Chairman agreed and proposed that the passage should be replaced by the following: ‘until such time as their position in the reception country has been regularized or they have obtained admission to another country’.
The UK representative thought that sub-paragraph 1 required clarification. That Article should not apply to a person who had become a refugee in 1914, and had left his reception country in 1950 without a valid reason, to enter the territory of another country clandestinely.
The Chairman thought that the Committee was agreed on their interpretation.
The IRO representative suggested adding the following words at the end of that paragraph ‘…and producing valid reasons to justify their illegal entry’..
The US representative proposed that the words ‘illegal entry’ be replaced by ‘entry without authorization’. He also suggested that the words ‘according to such procedures and safeguards as are provided by law’ should be replaced by ‘in pursuance of a decision reached in accordance with the process of law’.
It was decided to refer Article 24 and the amendments thereto to the Working Group.
The Working Group proposed the following texts:
Article 26 (24 Third Article)
Refugees not lawfully admitted
1. The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who enters or who is present in their territory without authorization, and who presents himself without delay to the authorities and shows good cause for his illegal entry or presence.
2. The Contracting States shall not apply to such refugee restrictions of movement other than those which are necessary and such restrictions shall only be applied until his status in the country is regularized or he obtains admission into another country. The Contracting States shall allow such refugee a reasonable period and all the necessary facilities to obtain admission into another country.
Article 27 (24 Second Article)
Expulsion of lawfully resident refugee
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order and in pursuance of a decision reached in accordance with due process of law.
2. Such refugee shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear himself and to be represented before the competent authority.
3. The Contracting States shall allow such refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Article 28 (24 First Article)
Prohibition of expulsion to territories where the life or freedom of the refugee is threatened
Each of the Contracting States shall not expel or return, in any manner whatsoever, a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or political opinion.
Article 26
The UK representative made a reservation with regard to exceptional cases.
Article 26 was adopted.
The Committee made the following comment:
Refugees not lawfully admitted.
‘It is in the nature of asylum to exempt from penalties a refugee who is escaping from persecution but who after crossing the frontier clandestinely presents himself as soon as possible to the authorities of the country of asylum and shows good reason for his entry without authorization.’
Australia commented that ‘The term ‘penalties’ should be clarified.’
Chile made the following comment
‘Article 26 provides that the penalties for illegal entry into the territory of a Contracting States shall not apply in the case of refugees. Such a regulation is not only superfluous, but might easily lend itself to abuses of all sorts and, in some cases, prevent the enforcement of special laws, enacted for the protection of public order, and the security of democratic institutions. If the authorities pen-nit a foreigner whose life or liberty is endangered by political, racial or religious persecution, to enter the country in order to escape such persecution, they will unquestionably refrain from imposing penalties or sanctions on him for failure to produce the documents usually required from those entering the territory of the State. However, each case must be judged on its merits and the establishment of a general single principle which might paralyze the enforcement of laws, essential for the defence of the State, public health or good morals, would not be acceptable (see Arts 24, 25, 26, 27 and 28 of the Law for the Permanent Defence of Democracy, ‘Official Gazette’, 18 October 1948)’.
Lebanon 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 Palestine refugee, could not safely afford to increase her undertakings in this direction.
‘This hesitation applies particularly to certain provisions of the Draft Convention which it is feared might give certain categories of undesirables access to Lebanese territory or asylum there (cf. Articles 26 and 27…). Articles 3, 13 and 14 of the Draft go even further; they make no distinction between such categories of undesirables and, for example, the Palestine refugees now in Lebanon.’
The UK made the following comment:
‘Article 26. See sub-paragraph (a) of the comment on paragraph 3 of Article 27.’
At the second session of the ad hoc Committee, the Belgian representative wanted it to be clearly understood that the words ‘who enters or is present in their territory without authorization;’ did not cover refugees who had gained access to a territory illegally, after authorization had been refused. Nor should they cover illegal presence, even though it had lasted for months or even years.
He was, nevertheless, prepared to accept the paragraph, so long as it was understood that it referred only to a very brief stay. In other words, the reasons which might justify illegal entry or an unauthorized stay for a few days must on no account be reasons recognized as valid for a longer stay. He also wanted it to be fully understood that the word ‘penalties’meant internment only. After all, expulsion was also penalty and the Belgian Government did not wish to be deprived under Article 26 of the right to expel a refugee in such circumstances.
He also proposed two slight drafting changes, affecting the French text only: in paragraph 1 replace the words ‘les raisons reconnues valables’ by ‘des raisons reconnues valables’, and in paragraph 2, delete the semi-colon after the word ‘admission’ and insert it after the words ‘dans un autre pays’.
The French representative said that the penalties mentioned in the Article should be confined to judicial penalties only. But in so far as non-admission or expulsion had to be regarded as sanctions, they were in the vast majority of cases administrative measures, especially where they were applied at very short notice.
The text of Article 26 stated ‘A refugee who presents himself without delay….’; it did not apply therefore to unauthorized refugees who had been in a territory for a very long time.
The Belgian representative wished to put on record the interpretation which the Belgian authorities would like to give to the Article.
With regard to the presence of a refugee in a given territory, a case might arise of a refugee who had been on foreign soil for a certain length of time being discovered by the authorities. The moment he was discovered he could present himself to the local authorities, explaining the reasons why he had taken refuge in that territory. In such cases, the text would not necessarily cover the case of prolonged illegal presence.
The French representative said the Belgian representative had also put forward the view that the words ‘without authorization’ might refer to a refugee who had made application and had been refused authorization, and still persisted in trying to remain in the country. Such a case was provided for by paragraph 2 of Article 26 which stated that the status of a refugee entering a country illegally must be ‘regularized’. Hence, cases of such refugees would require investigation. If, as a result, it was decided for various reasons not to admit a refugee, and the refugee persisted in trying to remain in the territory, he would no longer come under Article 26, but under the ordinary national law.
If persons entering a country without authorization were sent to camps, they would no longer be covered under the terms of Article 26.
The first paragraph of the Article involved a voluntary act. A person who presented himself to the authorities after he had been discovered, could no longer benefit by the provisions of Article 26.
The Swiss representative said the Swiss Federal law contained a provision similar to the provision laid down in the first paragraph of Article 26. Moreover, the Swiss Federal laws did not regard any person assisting him as liable to being punished, provided his motive was above board. The provision was of some importance for voluntary agencies providing aid to refugees. He thought that omission in Article 26 should be made good.
The French, US and Venezuelan representative suggested that the Swiss comments should be recorded in the minutes of the meeting.
It was so agreed.
Article 26 was referred to the Drafting Committee The Drafting Committee proposed the following text:
Article 26
Refugees not lawfully admitted
1. The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who enters or who is present in their territory without authorization, and who presents himself without delay to the authorities and shows good cases for his illegal entry or presence.
2. The Contracting States shall not apply to such refugees restrictions of movement other than those which are necessary and such restrictions shall only be applied until his status in the country is regularized or he obtains admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
Article 26 was adopted.
The Committee made the following comment in its report:
With regard to Article 26, the Committee decided not to incorporate any change in the text. It noted that in some countries, freedom from penalties on account of illegal entry is also extended to those who give assistance for humanitarian reasons to such entrants.
Pakistan made the following comment: The Government of Pakistan are of the opinion that Article 26 of the Convention should be revised as follows:
‘The Contracting States may at their discretion exempt from penalties on account of his illegal entry or presence a refugee who enters or who is present in their territory without authorization, and who presents himself without delay to the authorities and shows good cause for his illegal entry or presence.’
‘As regards Article 35 they think that the Convention should be made binding on all Contracting Parties both in regard to their metropolitan as well as Colonial possessions. If this is accepted, paragraphs 2 and 3 of this Article will disappear.
At the Conference of Plenipotentiaries, amendments were introduced by Austria: Add at the end of paragraph 1:
‘This shall not apply, however, to a refugee against whom an expulsion or residence order has been issued under a judicial or administrative decision of the State in which he seeks asylum.’
by Colombia: Substitute the following for the existing text:
‘1. The Contracting States may grant territorial asylum to a refugee who enters or is present in their territory without authorization, who presents himself without delay to the authorities, and who is classifiable as a political refugee.’
by France: Amend paragraph 1 to read as follows:
‘1. The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee coming direct from his country of origin, who enters or who is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for his illegal entry or presence.’ and by Sweden:
Amend paragraph 2 to read as follows:
‘2. The Contracting States shall not apply to such refugees restrictions of movement other than those which are necessary and, except for reasons of national security, such restrictions shall only be applied until his status in the country is regularized or he obtains admission into another country. The Contracting States shall allow such refugee a reasonable period and all the necessary facilities to obtain admission into another country.’
The Austrian representative said the Austrian delegation approved the principle underlying paragraph 1 of Article 26 but considered it was to provide for the case of a refugee against whom an expulsion order had been made as a result of an offence which he had committed in the country of asylum.
The Colombian representative expressed his support for the amendments proposed by the Austrian and Swedish delegations.
The Canadian representative said he would be satisfied if it was made clear that the word ‘penalties’ did not cover expulsion.
The French representative wished to make it clear first that, in his opinion, the right of asylum was implicit in the Convention, even if it was not explicitly proclaimed therein, for the very existence of refugees depended on it. On the other hand, while his delegation felt it right to exempt from any punishment refugees coming directly from their country of origin, it did not see any justification for granting them similar exemption in respect of their subsequent movements. The initial exemption was the direct corollary to the right of asylum.
The Italian representative also felt that exemption from the consequences of illegal entry should only be considered in the case of the first reception country. The Italian delegation accordingly supported the French amendment.
The Colombian representative said he would not press his amendment.
The UK representative endorsed the Belgian representative’s interpretation of paragraph 1. The right of asylum, in the opinion of the UK, was only a right, belonging to the individual and entitling him to insist on its being extended to him. Article 26 therefore had nothing to do with the question of the right of asylum. He hoped that the view that paragraph 1 was in no way concerned with the right of the State to grant or refuse asylum, would be confirmed by the Conference. He supported the French amendment.
The President, speaking as representative of Denmark, and referring to the French amendment, said that the Conference should bear in mind the importance of the words ‘shows good cause’ in the last line of that paragraph. A Hungarian refugee living in Germany, for example, might, without actually being persecuted, enter Denmark illegally; it was reasonable to expect that the Danish authorities would not inflict penalties on him for such illegal entry, provided he could show good cause for it. Even if the French amendment were adopted, it would be necessary to replace the words ‘coming direct from his country of origin’ by the phrase ‘coming direct from a territory where his life or freedom was threatened.’
The French representative accepted the suggestion.
The High Commissioner for Refugees thought the text of the Article as modified by the French amendment might give rise to difficulties. There were two main categories of refugees. First, refugees who, after leaving a country of persecution, arrived in another country where they possibly might remain unmolested for a certain period, but would then again be in danger of persecution. If, as a result, they moved on and reached a country of true asylum, it might be claimed that they had not come direct from their country of origin. For example, he himself had, in 1944, left the Netherlands on account of persecution and had hidden in Belgium for five days. As he had run the risk of further persecution in that country, he had been helped by the resistance movement to cross into France. From France he had gone to Spain, and then to Gibraltar. He considered that it would be very unfortunate if a refugee in similar circumstances was penalized for not having proceeded direct to the country of asylum. In his opinion, it would be an improvement if, instead of referring to the refugee’s country of origin, the wording of Article 28 was followed in Article 26.
Secondly, there were refugees who fled from a country of persecution direct to a country of asylum; they might not, however, be granted the right to settle there, even though the country in question was a Contracting State. Thus a refugee might suffer if he did not arrive in a country which displayed a generous attitude. Such refugees might possibly be covered if the words ‘and shows good cause’ were amended to read ‘and shows other good cause’. The fact that a refugee had fled from a country of persecution in itself constituted good cause for his entry or presence in the country of asylum. The French representative said the French delegation was quite prepared to consider changing the text of its amendment, for example, by replacing the words ‘coming direct from his country of origin; by the words ‘having been unable to find even temporary asylum in a country other than that in which his life or freedom would be threatened.’ Such a change would meet the point which was causing the High Commissioner concern.
The UK representative stated that, while he appreciated the object of the French amendment, he had been impressed by the arguments advanced by the High Commissioner for Refugees. He wondered whether the original text of Article 26 would not allow countries such as France, which received refugees in great numbers, sufficient latitude.
According to paragraph 1, States must refrain from imposing penalties on refugees who presented themselves without delay to the authorities and showed good cause for their entry or presence. The fact that a refugee was fleeing from persecution was already a good cause. But, as the High Commissioner had pointed out, there might be cases where a refugee could show good cause even though he had not fled direct from a country where his life or freedom was threatened.
He therefore thought that it would be sufficient for Contracting States to accept Article 26 as originally drafted, since they themselves would be free to decide whether a refugee had indeed good cause for his entry or presence.
The Netherlands representative also had certain misgivings about the interpretation of the words ‘good cause’. It seemed to him that Article 26 excluded the possibility of a refugee being allowed to enter another country when a member of his family, for example, was sick. He agreed with the UK representative that it would be difficult to define briefly what was meant by ‘good cause’. The words ‘reconnues valables’ in the French text rendered the idea intended correctly as they implied that the State could use its discretion in judging individual cases, while the English text provided no such criterion. The French representative regretted that he must press his amendment.
To admit that a refugee who had settled temporarily in a reception country was free to enter another, would be to grant him a right of immigration which might be exercised for reasons of mere personal convenience. It was not true that Article 26 did not refer to immigration, but only to asylum.
The UK representative felt that it would be difficult to define the refugees in question more precisely than they were defined in the original text. If the latest suggestion by the French representative and supported by the High Commissioner was adopted, a refugee would have to establish not merely his refugee status, but also that he was unable to find asylum in any country other than the one in which he applied to settle. Thus the onus of proving a negative would be placed on the refugee himself.
The Swiss representative supported the French amendment in its latest form.
The Greek representative thought there could be no doubt that the case where a country prescribed temporary residence for a refugee and thus deprived him of his freedom of residence did constitute a case where no penalty could be imposed on him.
The Belgian representative suggested that the words ‘being unable to find asylum’ should be substituted for the words ‘having been unable to find asylum’ in the French representative’s latest version of his amendment. The second expression would exclude from the benefit of the provision any refugee who had managed to find a few days asylum in any country through which he had passed.
The French representative accepted the Belgian representative’s suggestion.
The following text was adopted by 15 votes to none, with 8 abstentions:
‘The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who, being unable to find asylum even temporarily in a country other than the country in which his life or freedom would be threatened, enters or is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for his illegal entry or presence’.
The Austrian representative pointed out that the words ‘expulsion order or residence’ in his amendment should be modified to read ‘order of expulsion or refusal of residence’.
The UK representative wondered whether there was any need for such an amendment, since the original text stated that the refugee must show good cause for his illegal entry or presence. A refugee who had been expelled from a country and who knew that an expulsion order had been issued and that he was subject to penalties, could not ordinarily show ‘good cause’.
The Belgian representative pointed out that there were cases where an order of expulsion or of refusal of residence could not be held against a refugee, for example, when the order was 20 or 25 years old.
The Austrian amendment was rejected by 9 votes to 2, with 10 abstentions.
The Swiss representative, speaking on his amendment said that paragraph 2 of Article 26 made a distinction between the periods before and after regularization of the refugee’s status. However, it might so happen that, even after the status of a refugee had been regularized, that reasons of national security could require the imposition of restrictions on his movements. Paragraph 2, as it stood at present, precluded such action.
After clarification by the President, he withdrew his amendment. The Style Committee should, however, go over the present text which lacked clarity. There was a definite contradiction between the wording of Articles 21 and 26.
The President said that by inserting the words ‘other than those which are necessary’, the ad hoc Committee had intended to cover considerations of security, special circumstances, such as a great and sudden influx of refugees, or any other reasons which might necessitate restriction of their movement.
The US representative suggested that the substitution of the words ‘is assimilated to that of a lawfully admitted refugee’for the words ‘in the country is regularized’ might meet the Swiss representative’s point.
Paragraph 2 was adopted by 22 votes to none, with two abstentions, subject to textual amendments to be made by the Style Committee.
Article 26 as a whole and as amended was adopted by 20 votes to none, with 4 abstentions.
The Style Committee proposed the following wording:
1. Les Etats contractants n’appliqueront pas de sanctions pénales, dufait de leur entrée ou de leur séjour irréguliers, aux réfugiés qui, nepouvant trouver un asile, même provisoire, dans un pays autre que celui ou ceux dans lesquels leur vie ou leur liberté serait menacée, entrent ou se trouvent sur leur territoire sans autorisation, sous le resérve qu’ils se présentent sans délai auz autorités et leur exposent des raisons reconnues valables de leur entrée our presence irrégulière.
2. Les Etats contractantes n’appliqueront aux déplacements de ces réfugiés d’autres restrictions que celles qui sont nécessaires; ces restrictions seront appliquées seulement en attendant que le statut de ces réfugiés dans le pays d’accueil ait eté régularisé ou qu’ils aient réusi à se faire admettre dans un autre pays. En vue de cette dernière admission les Etats contractants accorderent à ces réfugiés un delai raisonnabl ainsi que toutes facilités nécessaires.
(This text is available in French only.)
The Observer of the International Federation of Trade Unions and the High Commissioner for Refugees felt unhappy about the wording of paragraph 1 of Article 31. It would place on the refugee the very unfair onus of proving that he was unable to find even temporary asylum anywhere.
The High Commissioner suggested that paragraph 1 be amended to read:
‘1. The Contracting States shall not impose penalties on account of his illegal entry or presence, on a refugee who enters or is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for believing that his illegal entry or presence is due to the fact that his life or freedom would otherwise be threatened.’
The French representative said his Government’s aim in the question under discussion was that their authorities should be able to detain for a few days completely unknown persons unattached to any territory.
The UK representative said he would sponsor the High Commissioner’s amendment. He thought that all would agree that the reference in paragraph 1 to penalties did not rule out any provisional detention that might be necessary to investigate the circumstances in which a refugee had entered a country, but simply precluded the taking of legal proceedings against them.
The French representative could not agree with the UK representative’s interpretation.
The UK representative suggested that the French representative’s difficulties might be met by further amending the English text to read:
‘The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who, coming directly from the country of his nationality or habitual residence (those being the words used in paragraph A of Article 1), presents himself without delay to the authorities and shows good cause for his illegal entry or presence’.
The French representative suggested the existing text could be amended to read ‘coming directly from a territory where his life or freedom would be threatened within the meaning of Article 1, paragraph A of this Convention’, so as to cover the three factors.
The President preferred the words ‘arrivent directement d’un territoire ou leur vie où leur liberté seraient menaciée’ to the words ‘pays d’origine’. The latter were unsatisfactory because, to give an example, a Polish refugee living in Czechoslovakia, whose life or liberty was threatened in that country and who proceeded to another country, would not be considered as having coming direct from his country of origin.
The French representative suggested that the French amendment might be further amended by replacing the words ‘country of origin’ by the words ‘in which he is persecuted’.
The UK representative said he would withdraw his amendment if the French representative found it unacceptable. He thought, however, that his amendment allowed for a certain amount of flexibility in the case of refugees coming through intermediary countries.
The revised version of the French amendment of paragraph 1 was adopted by 19 votes to none, with 4 abstentions. It read:
‘The High Contracting Parties shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.’
Article 31 as a whole and as amended was adopted by 20 votes to none, with 2 abstentions.
National Measures
In Austria, according to the Law concerning the Residence of Convention Refugees of 7 March 1968,592 an asylum-seeker may, if it is necessary for the determination of the relevant facts, until the termination of the recognition procedure, but for not more than two months, be obliged to reside in the designated part of the refugee camp Traiskirchen and may be subject to such movement restrictions as are necessary for his transfer there. The appeal has no suspensive effect.
In Belgium, the Aliens Law of 15 December 1980593 prescribes in Article 50 that an alien shall within 15 working days of his entry claim his refugee status from the competent authority or present himself to a competent authority. The Ministry of Justice may decide not to admit for residence or settlement a person claiming refugee status if the request is made with an unjustifiable delay or if since his departure from his country he has resided for more than three months in a third country and has left it without constraint (Article 52).
A person who has asked for refugee status and to whom stay has not been refused may not be refoulé or removed or be the subject of penal proceedings on account of his illegal entry or presence in as long as his request has not been decided negatively (Article 53).
The Ministry of Justice may assign an illegal entrant to residence pending examination of his request. In exceptionally grave circumstances, if this is necessary in the interests of national security, he may be placed at the disposal of the Government (that is, detained) (Article 54).
A refugee in another country who is obliged to leave must present his application within eight working days from entry. Authorization may not be refused save on grounds of national security or public order (Article 55).
In the Federal Republic of Germany, according to an instruction of the Federal Ministry of the Interior of 19 December 1967,594 proceedings on account of illegal entry are to be suspended pending examination of an asylum request.
In Switzerland the Federal Law of 8 October 1948595 amending the Federal Law on the Sojourn and Establishment of Aliens of 31 March 1931, provides in Article 23: ‘Persons who fled in to Switzerland shall not be punished, if the form and seriousness of the persecution justifies the illegal entry; assistance is equally not punishable if it is rendered for respectable motives’.
Judicial Decisions
In France it was held by the Cour de Cassation in the Herdia-Mendez case on 23 June 1939 (Sirey 1940 I p.45), to whom an identity card had been refused, that, with reference to the Decree of 14 May 1938, if present in France after eight days he could be the object of an expulsion order.
It has also been held by the Cour de Cassation in the case Rozoff c. Ministère Public on 8 February 1936 (Dalloz 1936 I p. 44) that the condemnation of an alien for violation of an expulsion order was legally justified and the objection of vis major had been rejected rightly by the decision that the appellant gave evidence that he has been successively returned to France by the governments of all the neighbouring countries. This evidence was in fact not relevant because it did not prove that the appellant was unable to proceed to other than neighbouring countries.
In the Federal Republic of Germany it was held by the Supreme Federal Administrative Court on 12 January 1956596 that the Law on Homeless Foreigners accords to persons covered by it the right to residence in the Federal Republic without requiring a residence permit on the basis of the Decree of the Aliens Police.
Commentary
Article 31 refers to ‘penalties’. It is clear from the travaux préparatoires that this refers to administrative or judicial convictions on account of illegal entry or presence, not to expulsion. The term ‘coming directly’ refers, of course, to persons who have come directly from their country of origin or a country where their life or freedom was threatened, but also the persons who have been in an intermediary country for a short time without having received asylum there.
The term ‘coming directly’ has acquired considerable importance because, while it relates in Article 31 to penalties only, Contracting States frequently use it as the criterion for entertaining an asylum request. The words ‘where their life or freedom was threatened’ may give the impression that another standard is required than for refugee status in Article 1. This is, however, not the case. The Secretariat draft referred to refugees ‘escaping from persecution’ and to the obligation not to turn back refugees ‘to the frontier of their country of origin, or to territories where their life or freedom would be threatened on account of their race, religion, nationality or political opinion’. In the course of drafting the words ‘country of origin’, ‘territories where their life or freedom was threatened’ and ‘country in which he is persecuted’ were used interchangeably.597 The reference to Article 1 of the Convention was introduced mainly in order to refer to the dateline of 1 January 1951 but it also indicated that here was no intention to introduce more restrictive criteria than that of ‘well-founded fear of persecution’ used in Article 1 A(ii).
The term ‘good cause’ has not been defined. The French term ‘raisons reconnue valables’ is more precise. ‘Good cause’exists if the refugee could not have entered legally any country in order to escape persecution. The wording proposed ‘being unable to find asylum even temporarily in a country other than the country in which his life or freedom would be threatened’ was not adopted. It cannot be expected of a refugee to prove that he sought or could have sought asylum in another country.
Paragraph 1 does not impose an obligation to regularize the situation of the refugee nor does it prevent the Contracting States from imposing an expulsion order on him. However, a refugee may not be expelled if no other country is willing to admit him; he may not be put over the ‘green border’.598 On the other hand, the Article does not provide what should happen to a refugee whose situation is not regularized and who is unable to comply with an expulsion order. Article 3 of the 1933 Convention provided that in such a case the Contracting Parties reserve the right to apply such internal measures as they deem necessary. This would also seem to apply now and as regards such internal measures paragraph 2 of Article 31 applies.
Paragraph 1 also applies to a refugee who had been authorized to stay in a country for a limited period and who remains illegally in the country beyond that period.
In the case of asylum-seekers proceedings on account of illegal entry or presence should be suspended pending examination of their request.
Paragraph 2 speaks of restrictions to the movement of refugees which are necessary but does not define what restrictions may be considered as necessary. Restrictions for reasons’ of national security were mentioned. The question whether one could keep a refugee in custody, who had entered illegally, was raised by the President of the Conference but not answered.
It results from the history of the provision that refugees should not be kept behind barbed wire. A short period of custody may be necessary in order to investigate the identity of the person. Refugees may also be placed in a camp, particularly in cases of mass influx. The restrictions shall only be applied until the status of the refugee has been regularized or he has obtained admission into another country. Regularization of status means the grant of a residence permit, even if of a temporary character. ‘A reasonable period’ to obtain admission to another country means the period necessary to obtain a visa by a refugee who makes all efforts to obtain such a visa, possibly with the help of UNHCR or voluntary organizations. ‘The necessary facilities’ means that he should not be restricted in his movement as not to enable him to see foreign consulates, the representatives of UNHCR or voluntary agencies.
ARTICLE 32. EXPULSION
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order and in pursuance of a decision reached in accordance with the process of law.
2. Each refugee shall be entitled, in accordance with the established law and procedure of the country, to submit evidence to clear himself and to be represented before the competent authority.
3. The Contracting States shall allow such refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
Travaux Préparatoires
The Committee had made the following comment:
Expulsion of Refugees Lawfully Admitted
Paragraph 1
While other aliens can, in cases of expulsion, be returned to their country of nationality, this is not possible in the case of refugees. In consequence the expulsion of a refugee is an especially serious measure.
Paragraph 2
Expulsion orders may sometimes be due to false accusations and the malice of ousted competitors. It may even happen that such orders are due to errors in identity. For these reasons paragraph provides that a refugee shall be permitted to clear himself and to be represented before the competent authority.
Paragraph 3
Austria made the following comment on Article 27: ‘It is assumed that ‘due process of law’ covers not only the procedure before the courts, but also before the administrative authorities and the police.’
Australia made the following comment: ‘Restriction of grounds for expulsion to the grounds of national security and public order might result in preferential treatment of refugees over other immigrants which the Australian Government would regard as undesirable. For instance, Australian immigration legislation recognizes certain types of disease, and lunacy, as grounds for the lawful deportation of immigrants. The grounds specified in the Article should therefore be enlarged.’
Canada commented: ‘It is noted that paragraph 1 of Article 27 states: ‘The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order’. The question arises whether the term ‘public order’ is intended to cover the deportation of aliens convicted of offences under legislation similar to the Opium and Narcotic Drugs Act of Canada. This Act provides for the mandatory deportation of aliens convicted of offences under the Act.’
Chile commented: ‘Article 27 lays down that in the case of the expulsion of a refugee, the Contracting States concerned shall allow such refugee a reasonable period within which to seek legal admission into another country. This provision might give rise to serious difficulties as regards the enforcement or implementation of the decision taken by the competent authority and might even nullify or render it inoperative, should the person to be expelled not be able to find another country willing to accept him in the normal manner. It should also be taken into consideration that Article 29 limits the countries, to which the expelled person may be sent, since it provides, and rightly so, that he may not be expelled to countries where he might be persecuted for political, racial or religious reasons.
France commented: ‘Article 27, paragraph 2, first line. The words ‘due account being taken of should be substituted for the words ‘in accordance with’. This modification would make the text more flexible and cover urgent cases which might require a simpler procedure.
The UK commented: ‘Article 27. With regard to paragraph 2 of this Article, the established law and procedure in the UK is, as was explained to the ad hoc Committee, that no alien lawfully resident can be deported save under an Order made personally be the Secretary of State. An alien in respect of whom a Deportation Order is to be made has an opportunity to make representations to the Secretary of State. There is also the remedy of habeas corpus, which is accessible to the alien as to the British subject and which protects the alien from unlawful action and from mistakes in identity to which the Committee referred. His Majesty’s Government could not, however, undertake that any alien should have the right to appear or to be represented before the Secretary of State personally.
‘His Majesty’s Government accept in principle the provisions of paragraph 3 of the Article, but desire to make the following observations:
(a) In considering the practical interpretation in this paragraph His Majesty’s Government will be bound to have regard to the alien’s prospects of obtaining admission to another country; and they cannot undertake to defer deportation indefinitely where it is obvious that the alien is not likely to succeed within a reasonable period in obtaining admission to the country to which he seeks to go.
(b) In any case where a refugee is returnable to a country where he has no reason to fear persecution, His Majesty’s Government would not be prepared to defer his deportation beyond the date when his returnability to that country expires,
At the second session of the ad hoc Committee the representative of Canada said that Article 27 would not easily prove acceptable to his country, because it was contrary to the provisions of the Immigration Act and the Narcotic Drugs Act. Under the Immigration Act lunatics and similarly undesirable persons could be deported; under the Narcotic Drugs Act deportation was mandatory. In practice, the law took account of three considerations: first, that the country of origin of the alien might refuse to receive him on deportation; secondly, that the punishment might be out of all proportion to the offence; and thirdly, that deportation to another country might endanger the life of the deportee. The third consideration was covered by Article 28. Seen from the point of view of the Draft Convention, it might of course be considered that refugees who committed offences punishable by deportation would either no longer be lawfully resident in Canada or, under paragraph 1 of Article 27, could be expelled on grounds of national security. If such an interpretation was not accepted, his Government could not easily contemplate the grant to refugees of privileges not accorded to ordinary aliens. The question was of great importance, as it arose in regard to other Articles of the Draft Convention. The meaning of the term ‘public order’ might be discussed by the Drafting Committee.
The US representative confessed that his delegation still felt concern at the use of the term ‘public order’, partly because of its ambiguity, partly because it found that it embraced too much. At the same time, he thought, when the Article had been drafted, it had not been the intention to prevent the expulsion of refugees for most reasons of general law applicable to aliens. The intention should, however, be clearly expressed, and he considered that a better formula might be found. The Belgian representative did not think it feasible to define the concept of ‘public order’. Although there was clearly some danger in so general a concept, the clause was nevertheless a safeguard which Contracting Governments might wish to retain. If a refugee was convicted of a fairly serious offence, his presence might well be considered undesirable. On the other hand, the political activities of refugees might also be regarded as undesirable for reasons of ‘public order’. He would like the term to be retained in Article 27.
The French representative said, with regard to the observations of the Canadian representative, he would suggest that Article 27 gave implicit satisfaction to them. From a practical standpoint, it was obvious that the authors of Article 27 had been anxious that the provisions favourable to refugees should not cover ordinary offences punishable by law, and should not confer on ordinary offenders, who happened to be refugees, rights not even enjoyed by the country’s own nationals. The US representative said that the Belgian representative’s explanation had not dispelled his doubts, but had in fact increased them because of the examples given. It seemed that the term ‘public order’ could be used as a pretext for getting rid of any refugee on the ground that he was, for one reason or another, an undesirable person.
The Venezuelan representative said that so far as his country was concerned, ‘public order’ was directly related to the peace and stability of the State. If they were threatened, the Government was enabled, on grounds of public order, to take certain measures; they would be applicable to aliens as well as to nationals, and no exception could or should be made for refugees. In fact, the reference to public order could be considered as a warning to refugees not to indulge in political activities against the State.
The UK representative thought that the grounds for the deportation of refugees should not be wider than, but be exactly the same as for the deportation of aliens. His Government found it difficult to accept paragraphs 1 and 2 of Article 27, and thought it possible and desirable to substitute for them something on the lines of Article 9 of the Draft Covenant on Human Rights.
The Canadian representative accepted the UK representative’s suggestion which he had been about to make himself.
The US representative was doubtful whether a substitution of an Article of the Draft Covenant on Human Rights would be desirable. His main fear was that the term ‘public order’ might mean much more than it appeared to mean on the surface. He felt that refugees should not be expelled on the grounds not specified in law, or because they had been sick or indigent; they should be expelled only on the grounds that they had committed crimes, which should be as explicitly defined as possible.
The representative of the Secretariat, replying to the suggestion that refugees should be treated on a par with aliens, pointed out that under existing international law aliens enjoyed no safeguards.
The representative of the IRO said the question of expulsion was of the greatest importance to refugees. The term ‘public order’ had been used in previous convictions, and, however it was defined, he considered that in practice it had on the whole tended to restrict the expulsion of refugees by comparison with that of other aliens.
He submitted that there were strong grounds for granting privileges to refugees, above all the ground that aliens possessed an effective nationality and could return to their country of nationality in case of expulsion, whereas for a refugee it was a matter of life and death, as he had no other country to go to. A more explicit wording than in Article 9 of the Draft Convention on Human Rights was required.
The Israeli representative said the basic question was whether the Committee was prepared to treat the expulsion of refugees on a par with the expulsion of other aliens. The question would arise in what respects the refugees should be assimilated to aliens and in what respects not. In the first case, inasmuch as States had a right to require good behaviour of all persons resident in it, it had good grounds, subject to certain reservations, for assimilating refugees to other aliens. In the second case, it had to be remembered that considerations of national security and public order were interpreted differently in different countries. In the case of a narrow interpretation, however, there should be no argument in favour of treating refugees differently from other aliens.
The third case was different, and there should be a great distinction between the treatment of aliens in general and the treatment of refugees. In the case of aliens, their own country was responsible for social cases; in the case of refugees, the answer was, no country. It seemed to him that countries should accept refugees as human beings, with all the infirmities and weaknesses inherent in the human condition, and should treat them accordingly when they had offended against national laws.
He suggested that paragraphs 1 and 2 of Article 27 be combined, and that the material problem of the grounds for expulsion and the procedural question should be dealt with together; that the grounds for expulsion be limited, and that the necessary provisions be inserted regarding procedure with all due process of law. Even so, refugees would still be in a worse position than aliens. The solution lay in paragraph 3 of Article 27.
The French representative said with regard to the term ‘public order’, administrative and judicial case law had developed in countries governed by the principle of the supremacy law. For example, French legislation with regard to the deportation of aliens provided for a special appeal procedure through an Appeals Board under the authority of the Minister of the Interior. That administrative procedure was in no way discretionary since aliens had the right to resort, if necessary, to courts of appeal in administrative matters just as had French nationals. The notion of public order had thus been defined and the retention of the term, to which the French Government for certain reasons was attached, involved no risk for refugees.
The US representative proposed the following text:
‘The Contracting State shall not expel a refugee lawfully in their territory save on grounds established by law which relate to national security or are based on the commission of illegal acts’.
That formulation would cover serious crimes but would not cover what the representative of Israel had called ‘social cases’.
The Chairman was not altogether satisfied with the words ‘commission of illegal acts’. Illegal acts ranged from riding bicycles the wrong way on footpaths, to the gravest of crimes. It might be better to change the term ‘public order’ to ‘public safety’ which would not cover both extremes and would permit the deportation of any refugee who had committed the smallest illegal act.
The representative of the IRO thought the US proposal was to be taken in combination with Article 9 of the Draft Covenant on Human Rights which provided that an alien could be expelled only for illegal acts established on grounds for expulsion.
The Belgian representative wanted to urge that the long-accepted notion of public order should not be set aside.
The French representative spoke in the same sense.
The US representative thought that the only solution would be to retain the present text of paragraph 1 of Article 27 and perhaps to add thereto a number of specific exclusions, stating, for example, that a refugee might not be expelled on grounds of indigence or ill health.
The French representative was prepared to accept the introduction of some limitations on the lines suggested by the US representative.
He would, however, like to warn the Committee that if restrictions were introduced limiting the scope of the clause to two or three categories of cases, certain jurists would interpret the text a contrario as allowing the possibility of expelling refugees for all the reasons except those specified. In short, he considered that, however vague the notion of public order might be, it did, at least under the case law of certain countries, offer greater safeguards to refugees than would be given by a hastily drafted formula which would not cover all possible cases and which could, moreover, lend itself to interpretation a contrario.
The Israeli representative thought that the objection of the French representative might be met by a reference to Article 20. He suggested that the Committee tentatively accept the present formulation of paragraph 1 and ask the Drafting Committee to seek a formulation for the exclusion of ‘social cases’.
The French representative said he was prepared to agree to a new provision being inserted in Article 27 to deal with the social cases.
The Chinese representative said the Chinese delegation would accept the proposal to combine the first two paragraphs in order to employ the words used in Article 9 of the Draft Covenant on Human Rights. He would prefer, however, to retain the concept of ‘public order’. The concept of due process would be easily acceptable to the Chinese delegation.
The representative of the Secretariat observed that ‘social cases’ were dealt with in a special Article on which States might submit reservations. In any event, he did not believe that ‘social cases’ came within the concept of ‘public order’. The proposal that a specific reservation with regard to ‘social cases’ be included in paragraph 1 of Article 27 was rejected by 5 votes to 2, with 4 abstentions.
It was agreed that the question raised with regard to the term ‘public order’ should be referred to the Drafting Committee.
Paragraph 2
The UK representative said that paragraph 2 presented a difficulty, because it provided for the alien or his representative to appear personally before the Secretary of State. Every method of making representations was open to him under English law except that chosen in the Draft Convention.
The US representative said that while it was understandable that the Secretary of State could not grant a personal interview to every refugee threatened with expulsion, perhaps it might be possible in view of the scope of the term ‘competent authority’ for some other competent authority to grant a hearing to the refugee. If such an interpretation appeared acceptable in the case of the UK, it might at the same time meet the needs of the refugees in other countries. If, on the other hand, it proved impossible to make such an arrangement, the US delegation would like to see the words ‘in accordance with the established law and procedure of the country’ deleted, if those words could be interpreted to mean ‘except where the established law and procedure of the country provides that there shall be no hearing’. If that was not the meaning of those words, they could be retained in the hope of reaching a compromise.
The UK representative felt that such a compromise might be reached with the help of the appropriate passages in the Draft Covenant on Human Rights.
The French representative requested that the Drafting Committee should take the French Government’s comments into account and substitute the phrase ‘with regard for’ for the phrase ‘in accordance with’.
The Chairman thought that the comment of the Austrian Government could be covered by a remark in the report of the Committee.
It was agreed to refer paragraph 2 of Article 27 to the Drafting Committee.
Paragraph 3
The UK representative said the UK Government objected to the wording rather than to the substance of paragraph 3. It was obvious that if the travel document of a refugee returnable to another country had almost expired, he could not be given the same opportunity to find another country willing to receive him as a refugee whose travel document was still valid for a considerable period. The problem was one of drafting only.
It was agreed to refer paragraph 3 of Article 27 to the Drafting Committee.
The Drafting Committee proposed the following text:
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such refugee shall be only in pursuance of a decision reached in accordance with due process of law. The refugee shall have the right to submit evidence to clear himself and the right to appeal to and be represented before competent authority.
3. The Contracting States shall allow such refugees a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
The Article was adopted.
It read:
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such refugee shall be only in pursuance of a decision reached in accordance with due process of law. The refugee shall have the right to submit evidence to clear himself and to appeal to be represented before competent authority.
3. The Contracting States shall allow such refugees a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
The Committee made the following comment:
‘in regard to Article 27, the Committee decided, after long discussion, to maintain the present text of the first paragraph. While several members expressed dissatisfaction with the vagueness of the term ‘public order’, and with the different interpretations given to the term in different countries, it was felt necessary to take into account the jurisprudence which this term had acquired in certain systems of law. The Committee felt that this provision would permit the deportation of aliens who had been convicted of certain serious crimes where in that country such crimes are considered violations of ‘public order’. The phrase ‘public order’ would not, however, permit the deportation of aliens on ‘social grounds’ such as indigence or illness. The procedural safeguards accorded to refugees were clarified and are now contained wholly in paragraph 2.
At the Conference of Plenipotentiaries, amendments were introduced by:
Belgium: Amend the second sentence of paragraph 2 to read:
‘In so far as national security permits, the refugee shall be allowed to submit evidence to clear himself and to appeal to and be represented before a competent authority.’
Egypt: Delete paragraphs 1 and 2 of this Article and substitute the following text:
(1) The Contracting States shall not expel a refugee lawfully in their territory save on one of the following grounds:
(a) because he has been convicted of a crime or offence punishable by more than three months’ imprisonment;
(b) because he has engaged in activities of a subversive nature or which are prejudicial to public order, the internal or external security of the State, public morals or health;
(c) because he is indigent and is a charge on the State.
(2) In every case, expulsion shall apply solely to individuals. Expulsion may only be effected by a ministerial order communicated to the person to be expelled.
(3) No change.
France: Amend the second sentence of paragraph 2 to read as follows:
‘The refugee shall as far as possible be allowed to submit evidence to clear himself and to appeal to and be represented before competent authority.’
Italy: Delete the second sentence of paragraph 2.
UK: At end of paragraph 2 add the words: ‘or a person or persons specially designated by the competent authority.’
At the Conference of Plenipotentiaries the Canadian representative said the Canadian Government found some difficulty with regard to the expression ‘public order’, which was a term which had a more precise legal connotation in certain countries than in common law countries. It had been generally agreed in the ad hoc Committee that specifications of grounds for deportation must be left to the jurisdiction of the States concerned. A second difficulty also confronted the Canadian Government. The costs of public relief and medical assistance were borne by the provincial authorities, and it might be difficult for the Canadian Government to enter into commitments on their behalf involving financial expenditure.
The Egyptian representative, introducing his amendment to Article 27, explained that its object was to liberalize the procedure in respect of expulsion, and to provide the refugees with the maximum guarantee against arbitrary expulsion. The Egyptian delegation felt that the present text of paragraph 1 failed to provide refugees with adequate protection against abuse of the right of expulsion. The terms of that paragraph were, in fact, too general, and, moreover, were subjective in character. Paragraph 1 of the Egyptian amendment listed the grounds on which a refugee could be expelled. Paragraph 2 specified that in any case the expulsion order would apply only to the refugee himself, and not to members of his family; to expel the latter would be an obvious injustice. So far as the ministerial order serving notice on the refugee of his expulsion was concerned, that could only be taken in execution of a Court decision. The provisions proposed in the Egyptian amendment would provide the refugee with all necessary safeguards.
The Executive Secretary read out from a Memorandum on the term ‘public order’ prepared by the Secretariat.
‘The Secretary General considers that the use of this expression raises serious questions of substance and consequently feels obliged to draw the attention of the Council to the following legal considerations. ‘First, it should be observed that the English expression ‘public order’ is not the equivalent and is indeed substantially different from – the French expression ‘l’ordre publique’ (or in Spanish, ‘orden publico’). In civil law countries the concept of ‘l’ordre publique’ is a fundamental legal notion used principally as a basis for negating or restricting private agreements, the exercise of police power, or the application of foreign law.
‘The common law counterpart of ‘l’ordre publique’ is not ‘public order’ but rather ‘public policy’. It is this concept which is employed in common law countries to invalidate or limit private agreements of the application of law. In contrast to this concept of public policy, the English expression ‘public order’ is not a recognized legal concept. In its ordinary English sense it would presumably mean merely the absence of public disorder. This notion is obviously far removed from the concept of ‘l’ordre publique’ or ‘public policy’.
‘Since the Covenant should undoubtedly contain equivalent concepts in English and French, the question arises as to whether the notion of ‘l’ordre publique’ or, in English, ‘public policy’ should be retained as an exception to the rights in Articles 13-16. In the Secretary-General’s opinion, this is a most important question since the concept of ‘l’ordre publique/public policy’ is in most jurisdictions, a broad and flexible principle, often characterized by legal commentators as vague and indefinite. It is true that in regard to certain situations public policy or ‘l’ordre publique’ has been given a technical and fairly well-defined meaning, but at the same time the concept is sufficiently wide and fluid to permit its application in a variety of new situations. Accordingly, it could hardly be doubted that by introducing it as an exception to fundamental human rights, it may well constitute a basis for farreaching derogations from the rights granted.’
The Greek representative said that, to judge from the report of the ad hoc Committee, the phrase ‘grounds of national security or public order’ was intended to cover the application of certain legitimate measures by the administration. The explanation provided by the Executive Secretary did not clarify the situation. To solve the difficulty, it would seem sufficient to add the word ‘legitimate’ after the words ‘save on’ in paragraph 1 of the existing text of Article 27, without otherwise amending that paragraph.
The Swedish representative agreed with the Greek representative. The difficulty, however, lay chiefly in the expression ‘refugees lawfully in the territory’. Swedes distinguished between aliens to whom a right of establishment had been granted, and aliens possessing only a right of temporary residence. The question did not arise in the case of the former; but, in respect of the latter, the Swedish Government wished to be able to expel them if it decided the authorization granted had expired. Thus, if the term ‘refugee’ in Article 27 applied without distinction to all refugees established in a territory, his country would have to enter reservations to Article 27. The representative of the Holy See thought the original wording of Article 27 covered every case. It was difficult for the Holy See to accept in particular sub-paragraph(1) of paragraph 1 of the Egyptian amendment. The Convention on Migration for Employment laid down in Article 8 that migrants admitted into a country for employment could not be returned to their territory of origin unless they so desired or were unable to follow their occupation by reason of illness. Conformity was necessary between the text of the Convention on Migration for Employment and that of the Convention relating to the Status of Refugees.
He was supported by the French representative. French procedure in the matter of expulsion laid down in fact that when expulsion was contemplated, the alien must be notified in advance. The person affected was given one month in which to prepare his defence and to appear before a committee made up of magistrates. There was one exception, however: the case of aliens guilty of espionage.
The President pointed out that Articles 18 and 19 contained provisions relating to indigence.
The Australian representative pointed out that, as the French and English texts of paragraph 1 of Article 27 were not entirely consistent in respect of the term ‘public order’, some amendment was clearly necessary. Either the expression could be replaced by another, or the words ‘public policy’ could be used in the English text. The latter course might be the better one.
The Egyptian representative said his delegation was prepared to withdraw sub-paragraph(c) of its amendment.
The Italian representative, introducing his amendment said his delegation could not accept the second sentence of paragraph 2 and therefore proposed that it be deleted. It should be added, however, that, in Italy, refugees under order of expulsion could appeal to the competent authorities.
The Netherlands representative hoped the Conference would not adopt the Egyptian amendment which introduced somewhat indefinite concepts. He found that the adoption of such an amendment would excessively restrict the freedom of refugees.
The Canadian representative stated that he would accept the French and UK amendments to Article 27. In Canada persons who were suspected of having entered the country illegally could be summoned to present themselves before a Board of Inquiry of three members, set up on instruction of the Minister concerned. The suspect could appear himself or be represented by counsel, and he had the fullest opportunity of presenting his case. The finding of the Board was then forwarded to the Federal Authorities in Ottawa, and if an order of deportation was found necessary, it was issued on the authority of the Minister. No appeal could be made against his decision for obvious reasons. He believed the position was similar in the UK.
The UK representative stated that the expression ‘public order’ presented definite difficulties in common law countries which did not possess the same legal connotation it had in continental jurisprudence. Unfortunately, the expression ‘public policy’ was somewhat narrower in scope; it did not, as did ‘l’ordre publique’ cover police measures or criminal legislation.
He agreed with the objections raised by the Egyptian representative. With regard to paragraph 2, he was faced with the same difficulty as that indicated by the Italian representative. In the UK, while it was possible for courts dealing with aliens charged with criminal activities to recommend their deportation, the power of deportation lay with the Home Secretary. The second sentence of paragraph 2 seemed to suggest the possibility of some kind of appeal. There was no appeal tribunal in the UK, nor did the UK Government wish to institute one. The purpose of the UK amendment was to make it clear that in submitting evidence about themselves in connection with an expulsion order, refugees could do so before persons specially designated by the competent authority.
The Egyptian representative withdrew his amendment.
The Observer of Caritas International said a refugee should only be liable to expulsion if he made himself unworthy of asylum, by becoming truly dangerous either to the State which had received him or to the community of which he formed part. It should be borne in mind that a refugee could not return to his country of origin and that a refugee might sometimes be treated more severely than his case deserved. If an expulsion order was made against him, he would be unable to find any country that was prepared to grant him the necessary entry visa. He would have to choose between staying in the country and going underground, and returning to his own country and facing the certain death that awaited him there.
During the Second World War, a party of Jewish refugees sailing on a ‘ghost ship’ had scuttled itself after it had been turned away from any port at which it had sought refuge. He also referred to an Italian who, as a result of having to serve a sentence of 24 hours of imprisonment, had been served with notice of expulsion, but had remained there clandestinely. He had subsequently been sentenced 29 times to periods of imprisonment amounting in all to 9 years and 8 months,
The proviso relating to ‘national security’ and especially that relating to ‘public order’ seemed to his organization far too vague, and consequently harmful to the interests of refugees. Those provisions should be very clearly defined; it was capable of serving as justification for glaring abuse.620 Expulsion on the ground of indigence would be contrary to Article 18 of the Draft Convention, to point XII of the ‘Common Principles concerning the Protection of Migrants’, Articles 8, 11 of Annex 2 of the Migration for Employment Convention (Revised) 1948 and to ch.VI, and particularly Article 18 of the ILO Recommendation concerning Migrants for Employment (1949) as well as Article 25 of the Standard Agreement on Migrant Workers.
If the execution of the order meant that the refugee must be delivered up to his country of origin, the sentence might be commuted to imprisonment, transportation or internment, either for life or until such time as an opportunity presented itself to the refugee to leave the country of asylum without damage to his life.
He referred to a meeting at which a resolution had been adopted calling for the intervention of the High Commissioner for Refugees.
The Egyptian representative wondered whether there was any ground for retaining paragraph 2 of the Article.
The Canadian representative stated that Canadian law – and probably the law of other countries too – provided discretionary clauses for the deportation on the ground that the person had become a public charge or was an inmate of a mental asylum or of public charitable institutions. It would be appreciated that considerable technical and political problems attached to the amendment of the Canadian laws in question. If the Conference could not concede that Canadian law did not infringe the provisions laid down in paragraph 1 of Article 27, his delegation might be obliged at some stage to enter a reservation.
The French representative observed that the French delegation was obliged to enter a formal reservation on any interpretation of the term ‘public order’ which would permit the expulsion of refugees on grounds of indigence. If there was neither the desire nor the courage on the part of Governments to embark on the necessary legislative changes required by the application of the Convention, it seemed pointless to draft it.
The President drew attention to resolution 309(XI)B adopted by ECOSOC on 13 July 1950 in which the Council recommended to all Governments that, pending consideration of the possibility of drafting an international Convention or model Agreement, they should consider making available to indigent aliens the same measures of social assistance as those accorded to their own nationals, and refrain from removing them from their territories for the sole reason of indigency. He also quoted the first two paragraphs of the resolution adopted by the Social Committee on 5 April 1951.621 The Belgian representative expressed his full support for the views of the French representative. Expulsion on the ground of indigence would also conflict with Article 18 of the Draft Convention dealing with Social Assistance.
The UK representative agreed with the observations of the Belgian and French representatives.
The Australian representative said Australian law prescribed certain circumstances in which a Minister could order the expulsion of an alien, for instance, when he had been an inmate of a charitable institution or a mental asylum. Such grounds were not regarded as indigency, and the provisions in question were not mandatory. The Australian delegation regarded the provisions as covered by the term ‘public order’ on the assumption that the definition of that term given by the UK representative had been accepted.
The Australian provisions resembled closely that of the UK. The Australian delegation considered that the position of its Government was clearly covered by the term ‘process of law’.
The French representative said that, in the view of his Government, the fact that a refugee was penniless should most certainly not constitute one of the reasons which, taken together with other considerations of a different kind, would justify the expulsion of a refugee.
He nevertheless wished to emphasize that the French delegation had no intention of concluding a one-sided bargain which, for the French Government, would mean the assumption of multilateral obligations with regard to countries which would not grant to refugees rights equivalent to those which the French Government would undertake. It was by no means a theoretical consideration, since France very frequently had to take in refugees who had been expelled from other countries simply because they were penniless or possibly stateless.
Paragraph 1 of Article 27 was adopted unanimously.
The Belgian representative understood the motives which had prompted the French and Italian delegations to submit their amendments to paragraph 2 of Article 27. He nevertheless felt that the terms of their amendments went further than their authors had intended. He therefore wondered whether the reservation concerning national security would not meet the points which the French and Italian delegations had in mind; that was precisely what the Belgian amendment sought to do.
The French representative accepted the Belgian amendment to paragraph 2 and withdrew his own.
The Italian representative said his delegation would accept the Belgian amendment, provided that the word ‘and’ in the second line was replaced by ‘or’, and withdraw its own.
The Belgian representative accepted the Italian suggestion.
The French representative observed that the suggestion made by the Italian representative would restrict the scope of the Belgian amendment. If a refugee appealed, it did not necessarily follow that he would be heard and legally represented. The notion of the appeal and that of representation were complementary. He wondered whether, in the light of these circumstances, the Italian representative would agree not to press his amendment.
The UK representative appreciated the pertinence of the Italian representative’s remarks. The position of the UK was similar, since there was no specially constituted tribunal. But the reference to the procedure, at least in the English text of the Belgian amendment, was not so specific as to make the text unacceptable to the UK Government. What mattered was that a refugee should have full opportunity of presenting his case to the competent authorities. He felt that the use of the formula ‘either…or’ would introduce a dichotomy into the procedure, and hence weaken the text.
The Italian representative accepted the UK representative’s explanation. He hoped, however, that it would be possible to find a French wording which would faithfully translate his interpretation.
The French representative suggested that the end of the Belgian amendment might read as follows: ‘….to submit evidence to clear himself and to lodge an appeal (présenter un recours) and be represented before a competent authority.
The Luxembourg representative could support the French proposal, provided the words ‘for the purpose’ were added after the words ‘or be represented’.
The Italian representative accepted the French and Luxembourg suggestions.
The UK representative stated that the new text was acceptable to his delegation; but he was not sure about the correct rendering in English of the term: ‘présenter un recourse’. His impression was that it was in point of fact equivalent to the English word ‘appeal’. He suggested to amend the Belgian text to read: ‘Except when national security does not permit….’.
The President, speaking as representative of Denmark, wondered how an appeal would be possible if the decision was taken by the King in Council. He assumed that the meaning of the text was that, in the event of a sentence of expulsion pronounced by the highest authority, the refugee would be given the chance of having his case re-examined. In countries where such a sentence would have been passed by a local authority, the appeal would be addressed to the court of higher instance.
The Netherlands representative proposed that the word ‘imperative’ be used to qualify the reference to national security.
The Netherlands proposal was adopted.
The Belgian amendment to paragraph 2 was adopted by 24 votes to none.
The High Commissioner for Refugees assumed that a refugee would not be expelled while his case was sub judice.
The Australian, Belgian, Netherlands and UK representatives stated that that was the practice in their countries, and such the interpretation they placed on paragraph 2.
Paragraph 2 was adopted, as amended, by 24 votes to none.
Paragraph 3 was adopted by 23 votes to none, with one abstention.
Article 27 as a whole and as amended was adopted by 23 votes to none, with one abstention.
The Style Committee proposed the following text:
1. Les Etats contractants n’expulseront un réfugié se trouvant régulièrement sur leur territoire que pour des raisons de sécurité nationale ou d’ordre publique.
2. L’expulsion de ce réfugié n ‘aura lieu qu’en exécution d’une décision rendue conformément à la procédure prévue par la loi. Le réfugié devra, sauf si des raisons impérieuses de sécurité nationale s ‘y opposent, étre admis à fournir des preuves tendant àle disculper, à présenter un recours et à se faire représenter à cet effet devant une autorité compétente ou devant une ou plusieurs personnes spécialement désignées par l’autorité compétente.
3. Les Etats contractantes accorderont à un tel réfugié un délai raisonable pour lui permettre de chercher à se faire admettre régulièrement dans un autre pays. Les Etats contractantes peuvent appliquer, pendant ce délai, telle mesure d’ordre interne qu’ils jugeront opportunes.
(This text is available in French only)
The Swedish representative drew attention to a discrepancy between the English and French titles of Article 32, the former using the words ‘lawfully admitted’, and the latter the words ‘residant régulièrement au pays d ‘accueil’. In that connection, he drew attention to paragraph 5 of the report of the Style Committee625 and said that he was prepared either to accept the phrase ‘se trouvant régulièrement’ or the phrase ‘residant régulièrement’. But he felt it would be wise to delete the title.
On the suggestion of the President the title ‘Expulsion’ was adopted.
On the proposal of the UK representative, it was agreed that the phrase ‘such a refugee’ should be used in both paragraphs 2 and 3 in the English text.
Article 32, as amended, was adopted by 21 votes to none, with one abstention.
Conclusions of the Executive Committee of the High Commissioner’s Programme
The Committee adopted at its 28th Session in 1977 the following conclusion on Expulsion:
The Executive Committee
‘(a) Recognized that, according to the 1951 Convention, refugees lawfully in the territory of a Contracting State are generally protected against expulsion and that in accordance with Article 32 of the Convention expulsion of refugees is only permitted in exceptional circumstances;
(b) Recognized that a measure of expulsion may have very serious consequences for a refugee and his immediate family members residing with him;
(c) Recommended that, in line with Article 32 of the 1951 Convention, expulsion measures against refugees should only be taken in very exceptional cases and after due consideration of all circumstances, including the possibility for the refugee to be admitted to a country other than his country of origin;
(d) Recommended that, in cases where the implementation of an expulsion measure is impracticable, States should consider giving refugee delinquents the same treatment as national delinquents and that States examine the possibility of elaborating an international instrument giving effect to this principle;
(e) Recommended that an expulsion order should only be combined with custody or detention if absolutely necessary for reasons of national security or public order and that such custody or detention should not be unduly prolonged.’National Measures
In Algeria the Government replied that an expulsion order against a refugee may be suspended. He may be assigned to residence.
In Belgium, according to Article 56 of the Aliens Act, an alien recognized as a refugee may not be removed from the kingdom except after a decision of removal (renvoi) taken on the advice of the Consultative Committee on Aliens or by an expulsion order taken in accordance with Articles 21 and 26 of the Aliens Law.
In no case may an alien be removed to the country which he has fled because his life or liberty was threatened.
In France according to the Ordinance of 2 November 1945 (No.45.2658) as amended by the Law of 3 July 1965 (No.65- 5260), Article 27, the sanctions taken against an alien who infringes an expulsion order are not applied if it is shown that the alien finds himself in the impossibility of leaving French territory. The impossibility shall be considered to be shown if the alien proves that he cannot return to his country of origin nor proceed to another country. He may be assigned to residence.
In the German Federal Republic according to 11 (2) of the Aliens Law of 28 April 1965,627 an alien who enjoys political asylum, a homeless foreigner and an alien refugee may, if they reside lawfully in the Federal Republic, be expelled only for grave reasons of public order and security.
Judicial Decisions
There exist numerous court decisions. A few may be cited:
The European Court of Justice upheld in Van Duyn v. The Home Ounce (1975 Ct 357) the exclusion of an alien national of the European Community on the ground that he intended in the UK to attend the College of Scientology, the freedom of movement of workers under Article 48 of the Treaty of Rome notwithstanding.
In Austria the Supreme Administrative Court held on 6 May 1957628 in the case of a person who had come to Austria as a refugee in 1949, then emigrated to Brazil and entered Austria with a Brazilian travel document and visa valid until 2 January 1954 and then again with a travel document and visa valid until 15 April 1955, and who had asked for extension as a refugee under the 1951 Convention, that he was not entitled to stay beyond that period as he was resident in Brazil and had to be treated like an ordinary alien.
The Supreme Court held on 20 October 1958629 that the expulsion of a Hungarian refugee does not conflict with the Geneva Convention because such a decision of a Court means only the expulsion of an alien from federal territory but not expulsion or refoulement to a certain foreign territory. The administrative authority may suspend the execution of a decision to leave federal territory for valid reasons (§§ 6/2 and 7 of the Law on the Aliens Police). The decision of the Court does not conflict with the Convention, only in its execution the Convention has to be taken into account.630 The Supreme Administrative Court had, on 11 January 1955,631 to decide on an appeal of an alien who had been recognized as a displaced person, and against whom an unlimited residence ban had been issued and confirmed on appeal. The appellant had been sentenced on 6 December 1949 to four years prison according to § 128, Criminal Code; the residence ban had been pronounced on 27 November 1953. The appellant claimed that he had conducted himself in an orderly way since his conviction. The residence ban was upheld. (Similarly, and with reference to Articles 2 and 32 of the Convention, the same Court on 12 December 1956.)
The Constitutional Court had, on 2 June 1962,633 to decide on the case of a Yugoslav refugee against whom an unlimited residence ban had been pronounced according to § 3(1) of the Aliens Police Law and Article 32, paragraph 3 of the Convention; the decision had been confirmed on appeal. The suspension had been subjected to the condition that the appellant refrains from any activities which may lead to disturbing the peaceful relations of Austria with other States or are directed to interfere with the internal conditions of another State. In 1960, the appellant had participated in Munich in a Congress of a Croat organization and had been elected to the Board of the Central Executive Committee and member of the Council for Austria of that organization. The organization intended, it was claimed, to overthrow the present Government of Yugoslavia and to separate Croatia from Yugoslavia. According to § 3 of the Aliens Police Law a residence ban may be pronounced against an alien whose residence in Austria endangers public peace, order or security, or is contrary to other public interests.
The Court held that the decision did not violate § 5(2) of the Constitutional Law for the Protection of Personal Freedom nor article 13(1) of the Basic Law. According to the latter, freedom of expression exists within the limits established by law. The decision had been based on law. If the decision had at all infringed on freedom of expression, such infringement was not unconstitutional. The decision was upheld.
In Belgium the Court de Cassation held on 16 February 1970, that the possession of a travel document entitles the holder to return to Belgium, notwithstanding an expulsion order.
In France the Conseil d’Etat held on 24 October 1952 that the existence of a violation of ‘I’ordre public’ is not to be discussed by the Conseil d ‘Etat. (Likewise, Conseil d ‘Etat 2 May 1938).
In the Federal Republic of Germany, the Federal Constitutional Court held on 25 February 1981636 that measures for the termination of stay may not be taken against asylum-seekers before the termination of the procedure.
The Supreme Federal Administrative Court held, on 14 July 1959,637 in the case of a Polish refugee who had emigrated to Australia and had returned to the Federal Republic with an Australian travel document and whose residence permit had been renewed several times but who had stayed beyond that period, and to whom a residence ban had been issued, that he was no longer lawfully in the territory and was not protected by Article 32 of the Convention, only by Article 33; a residence ban may be issued against him, but only with the limitations of Article 33, paragraph 1.
The same Court held on 30 September 1958,638 that the establishment of sojourn and domicile of an alien who entered illegally became legal, for example by the grant of a residence permit. The immediate execution of a residence ban against a homeless foreigner or an alien refugee is not possible, except in the case of Article 33, paragraph 2 of the Convention. Expulsion on the grounds of Article 32 paragraph 1 is no longer possible if the refugee has lived for years in the Federal Republic. Not every offence justifies expulsion on the grounds of public order. Expulsion may not be executed before it has been decided finally.
The same Court held on 16 October 1975, in the case of a refugee who had been convicted for theft and receiving and who had been ordered to be expelled according to § 10(1) of the Aliens Act, that the principle of proportionality had to be applied; there was danger of repetition of the offence and the order was confirmed.
The principle of proportionality was also emphasized in BVerwGE (55)8-133.
The same Court held on 14 December 1970640 that an alien against whom a residence ban had been pronounced but who could not leave the Federal territory because he could not enter another country, resides in Federal territory without culpable delay.
Commentary
Paragraph 1
Expulsion means any measure which obliges the refugee to leave the territory of a Contracting State, for instance, a residence ban. The decision may be taken by an administrative or judicial authority, but not simply by a police of ricer. Article 32 does not apply to a refugee who was admitted for a limited period but stays in the territory beyond the authorized period. To refugees unlawfully in the territory Articles 31 paragraph 2 and 33 apply. As to the grounds of national security and public order, it results from the discussions that they do not include ‘social causes’ such as indigence, illness or disability. They include convictions for criminal offences but the offence must be sufficiently serious as to constitute a violation of public order. Minor offences and, in particular, infractions of the aliens legislation, are not included. The principle of proportionality must be observed, that is, the expulsion must, in the circumstances, be the appropriate measure; the seriousness of the measure has to be weighed against the interests of public order and national security.
Paragraph 2
The term ‘due process of law’ is used in Anglo-Saxon law and occurs in amendments to the American Constitution. In these countries there exists, therefore, a jurisprudence as to its meaning. It has a procedural and a substantial aspect.
Procedurally, it means a decision reached in accordance with a procedure established by law, and containing the safeguards which the law provides for the class of cases in question, in particular equality before the law and the right to a fair hearing. Substantially, it means that the decision must be based on law, that it may not be unreasonable, arbitrary or capricious and must have a real and substantive relation to its object.
‘Compelling reasons of national security’ has a similar meaning as in Article 28 of the Convention. The exception may be invoked, in particular, when it is not in the public interest that the reasons for the decisions should be divulged, for example, in espionage cases.
‘Appeal’ includes a request for reconsideration by the same authority where no appeal to a higher authority is provided for under national law, for example, when the decision is taken by the highest authority.
‘A person or persons designated by the competent authority’ applies in those cases where the decision is taken by the Minister; he may appoint certain officials or a board to hear the refugee or his representative.
Paragraph 3
It must be assumed that, as in Article 31 paragraph 2, this requires that the refugee be given the necessary facilities to find admission into another country. While in Article 31 paragraph 2 the Contracting States may apply the restrictions which are necessary, that is, an objective standard, paragraph 3 of Article 32 speaks of such internal measures as the Contracting State deems necessary, that is, in the view of the competent authority.
Some Contracting States do not, in fact, execute expulsion orders but take internal measures such as assignment to residence. No expulsion order may be carried out unless another country is willing to admit a refugee. Expulsion to a country where the refugee has well founded fear of persecution is excluded, except under the circumstances of Article 33 paragraph 2.
ARTICLE 33. PROHIBITION OF EXPULSION OR RETURN
(‘REFOULEMENT)
1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Travaux Préparatoires
The Draft Convention as adopted by the ad hoc Committee at its first session contained the following Article 28:
No Contracting State shall expel or return, in any manner whatsoever, a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or political opinion.
The Committee made the following comments:
‘The turning back of a refugee to the frontiers of a country where his life or freedom would be threatened on account of his race, religion, nationality or political opinion would be tantamount to delivering him into the hands of his persecutors.
‘The Convention of 1933 contains a provision of this kind.643 In the present text reference is made not only to the country of origin but also to other countries where the lift or freedom of the refugee would be threatened for the reasons mentioned. This Article does not imply that a refugee must in all cases be admitted to the country where he seeks entry.
The UK commented:
‘Article 28. His Majesty’s Government will continue to act, as they have done in the past, in the spirit of this Article. They have in mind, however, certain exceptional cases, including those in which an alien, despite warning, persists in conduct prejudicial to good order and government and the ordinary sanctions of the law have failed to stop such conduct; or those in which an alien, although technically a refugee within the meaning of Article 1 of the Convention is known to be a criminal. In such and similar exceptional cases His Majesty’s Government must reserve the right to deport or return the alien to whatever country is prepared to receive him, even though this involved his return to his own country.’
‘(a) In considering the practical interpretation in this paragraph His Majesty’s Government will be bound to have regard to the alien’s prospects of obtaining admission to another country; and they cannot undertake to defer deportation indefinitely where it is obvious that the alien is not likely to succeed within a reasonable period in obtaining admission to the country to which he seeks to go.
‘(b) In any case where a refugee is returnable to a country where he has no reason to fear persecution, His Majesty’s Government would not be prepared to defer his deportation beyond the date when his returnability to that country expires.’
At the second session of the ad hoc Committee, the UK representative said the difficulty was simply that the UK Government did not know exactly how to deal with cases where a refugee was disturbing the public order of the UK. He referred not to ordinary crimes, but to such acts as inviting disorder. In such cases, without a declaration of a state of emergency, the presence of a refugee might still be deemed to be highly undesirable. The UK Government had not thought of acting harshly in such cases and hoped indeed that the mere existence of the power to expel a man making trouble might serve to keep his behaviour within reasonable bounds. Every assistance would be provided to such a refugee to enter another country, even to the extent of helping him to obtain an entry permit. No deception would, of course, be practised on other countries, the position would be fully explained, but it might happen that such an individual would be more at home in some other country. If, however, all the efforts of the Government to obtain permission for a refugee to enter another country proved unavailing, a provision making it illegal to expel him might prove embarrassing.
The power to expel him would not, of course, be employed if it would endanger his life, but if the persecution to which he would be subjected in his country of origin was not very serious, the Government of the country where he had taken refuge might feel a little more inclined to send him there if he refused to mend his ways and could not find another country to receive him. It should be recollected that under Article 2 a refugee owed duties to the country of hospitality.
The Israeli representative wondered whether the solution might not be to introduce into Article 28 something on the lines of the second sentence of paragraph 3 of Article 27. He realized that the UK Government would be unable to accept such a proposal unless its legislation provided for the internal measure referred to, but even so it might provide a solution for other countries faced with the same problem.
The US representative was sure that the UK representative would not wish to impair the provisions of Article 28. He felt that it would be highly undesirable to suggest in the text of that Article that there might be cases, even highly exceptional cases, where a man might be sent to death or persecution. There could be no objection to accepting the suggestion of the representative of Israel, though it appeared unnecessary, since all rights which Governments did not specifically give up in Article 28 were naturally reserved.
The Swiss representative said that his Government had at all times applied the principle stated in that Article. But the Swiss Government wished to have the right, in quite exceptional circumstances, to expel an undesirable alien, even if he was unable to find another country than the country from which he had fled.
In addition, he presumed that the Article did not mean that a refugee who reported to the authorities at the frontier of a country should be admitted solely because he could not be returned to the country where his life would be threatened. In his understanding, Article 28 covered only refugees residing lawfully in a country and not those who applied for admission or entered the country without authorization. An extraordinary influx of refugees into Switzerland might make it impossible for the Federal authorities to accept them all, despite their desire to receive as many as possible.
The Israeli representative said the Swiss observer was apparently under a misapprehension with regard to the application of Article 28. In the discussions at the first session it had been agreed that Article 28 applied both to refugees residing lawfully in a country and those who were granted asylum for humanitarian reasons. He feared that the Swiss Government might find its interpretation in conflict with the general feeling which had prevailed in the Committee when it drafted the Article.
The representative of the IRO wished to add that Article 28 meant exactly what it said. It imposed a negative duty forbidding the expulsion of any refugee to certain territories but did not impose the obligation to allow the refugee to take up residence.
The French representative considered that any possibility, even in exceptional circumstances, of a genuine refugee being returned to his country of origin would not only be absolutely inhuman, but was contrary to the very purpose of the Convention. Reference to the definition of ‘refugee’ in Article 1 would suffice to show how psychological factors had been taken into account in a legal text. To take such factors into consideration and to allow for the possibility, even in exceptional circumstances, of returning a refugee to his country of origin, on the other hand, was obviously quite contradictory. There was no worse catastrophe for an individual who had succeeded after many vicissitudes in leaving a country where he was being persecuted than to be returned to that country, quite apart from the reprisals awaiting him. The Chairman felt that if the work of the Committee resulted in the ratification of Article 28 alone, it would have been worth while. He himself would regret any change in the wording but suggested that it should be left to the Drafting Committee to decide whether to seek a compromise which would satisfy the objections of the UK representative without affecting the provision, or whether to adopt the suggestion of the representative of Israel.
It was so agreed.
The Drafting Committee proposed the following text:
‘No Contracting State shall expel or return, in any manner whatsoever, a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or political opinion.’
Article 28 was adopted.
It read:
‘No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality or political opinion.’
The Committee made the following comment:
While some question was raised as to the possibility of exceptions to Article 28, the Committee felt strongly that the principle here expressed was fundamental and that it should not be impaired.
At the Conference of Plenipotentiaries, an amendment was introduced by Sweden:
Redraft Article 28 as follows:
‘No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion, or where he would be exposed to the risk of being sent to a territory where his life or freedom would thereby be endangered.
‘By way of exception, however, such measures shall be permitted in cases where the presence of a refugee in the territory of a Contracting State would constitute a danger to national security or public order.’
And one jointly by France and the UK:
Add a new paragraph 2 worded as follows:
‘The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is residing, or who, having been lawfully convicted in that country of particularly serious crimes of offences, constitutes a danger to the community thereof.
The representative of Sweden said that the first part of the Swedish amendment was intimately linked with Article 1 of the Draft Convention. The remainder of the first paragraph of Article 28 as amended by his delegation was intended to cover cases where refugees were expelled to a country where their life would not be directly threatened, but where they would be threatened by further expulsion to a country where they would be in danger.
The French representative entertained certain misgivings as to the implications of the second of the two changes, namely the addition of the words ‘or where he would be exposed to the risk of being sent to a territory where his life….’. In the first place, it called for a necessarily subjective decision by Contracting States. Secondly, and more importantly, if the countries adjoining contracting States were not parties to the Convention and decided, as might well prove to be the case, to refuse the right of residence in their territory to all refugees, the Contracting State might find itself in a very difficult situation, as the Swedish amendment would not allow it to expel refugees at all.
The UK representative said that his attitude was very similar to that of the French representative.
The representative of the Holy See said that while the Swedish amendment was undoubtedly inspired by honourable motives, the use of the phrase ‘By way of exception’ to introduce the second paragraph might expose refugees to certain risks. He preferred the amendment submitted jointly by the delegations of France and the UK which afforded greater safeguards to refugees. It would appear, however, that the original text of Article 28 was in itself sufficient to furnish those safeguards, as no exceptions were provided for. A State would always be in a position to protect itself against refugees who constituted a danger to national security or public order.
The Swiss representative said the Swiss Federal Government saw no reason why Article 28 should not be adopted as it stood, for the Article was a necessary one. He thought, however, that its wording left room for various interpretations, particularly as to the meaning to be attached to the words ‘expel and return’. In the Swiss Government’s view, the term ‘expel’ applied to a refugee who had already been admitted to the territory of a country. The term ‘refouler’ on the other hand, had a vague meaning; it could not, however, be applied to a refugee who had not yet entered the territory of a country. The word ‘return’ used in the English text, gave that idea exactly. Yet, Article 28 implied the existence of two categories of refugees: refugees who were liable to be expelled, and those who were liable to be returned. In any case, the States represented at the Conference should take a definite position regarding the meaning to be attached to the word ‘return’. The Swiss Government considered that in the present instance the word applied solely to refugees who had already entered a country, but were not yet resident there. According to that interpretation, States would not be compelled to allow large groups of persons seeking refugee status to cross its frontiers. He would be glad to know whether the States represented at the Conference accepted his interpretations of the terms in question. If they did, Switzerland would be willing to accept Article 28, which was one of the Articles in respect of which States could not, under Article 36 of the Draft Convention, enter a reservation.
The French representative agreed with the views expressed by the Swiss representative. Referring to the joint amendment, he observed that the Draft Convention admitted the principle that a State could refuse the right of asylum. It was therefore only just that States which granted that right should be able to withdraw it in certain circumstances. If they could not do so, they would think twice before granting an unconditional right.
He agreed that the right of asylum was sacred, but people should not be allowed to abuse it. France and the UK, however, had no intention of opposing the right of asylum on the ground of indigence. Reasons such as the security of the country were the only ones which could be invoked against that right.
The right of asylum rested on moral and humanitarian grounds which were freely recognized by receiving countries, but which had certain essential limitations.
The representative of the Holy See felt that the drafting of Article 28 called for some comments. Besides the grounds already stated in Article 28, on which the life or freedom of refugees might be threatened, the Swedish amendment sought to add the further ground of membership of a social group. Further grounds of the same kind could be found, but the enumeration might have dangerous consequences. In order to avoid such a contingency, he considered that it would be preferable to amend Article 28 to read: ‘where his freedom would be threatened on account of the reasons which compelled him to seek refuge.’
With regard to the joint amendment, it was admittedly very difficult to avoid exceptions to any rule. What was meant, for example, by the words ‘reasonable grounds’? He considered that the wording ‘may not, however, be claimed by a refugee who constitutes a danger to the security of the country’ would be preferable.
The UK representative associated himself with the remarks made by the French representative. It must be left to the State to decide whether the danger entailed to refugees by expulsion outweighed the menace to public security if they were permitted to stay. It must be borne in mind that the climate of opinion had altered since Article 28 had been drafted, and that each government had become more keenly aware of the current dangers to its national security. Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency. To condemn such persons to lifelong imprisonment, even if that were a practical course, would be no better solution.
As to the objections of the representative of the Holy See to the words ‘reasonable grounds’ the reason for doing so was that it must be left to States to determine whether there were sufficient grounds for regarding any refugee as a danger to the security of the country.
The Canadian representative associated himself with the remarks made by the French and UK representatives, and supported the joint amendment. Since the time of drafting Article 28 the international situation had deteriorated, and it must be recognized, albeit with reluctance, that at present many governments would find it difficult to accept unconditionally the principle embodied in Article 28.
The Swedish representative said the amendment of the representative of the Holy See would not cover the case of refugees expelled to a country which in turn might forcibly return them to their country of origin.
He would be grateful for enlightenment on the precise implications of Article 28. For instance, would it cover the situations when a refugee found himself either in a country which, without directly threatening his safety, was disposed to accede to demands for extradition to the country of origin or in a country which was not prepared to extradite but tended to expel them for reasons of its own?
The second paragraph of the Swedish amendment was intended to meet the case of refugees engaged in subversive activities threatening the security of their country of asylum, refugees who, after having been accepted as residents, were found to have been fugitives from justice in their own country, and refugees who failed to comply with the conditions of residence.
The President said he was not competent to provide the clarification requested by the Swedish representative, but he would like to point out that the interpretation of the phrase ‘or where he would be exposed to the risk…’ in the Swedish amendment presented certain difficulties. A government expelling a refugee to the territory of another State could not foresee how that State would act. The Danish Government would consider that if such expulsion presented a threat of subsequent forcible return to the country of origin, the life and liberty of the refugee were endangered. But the relative importance of the various considerations involved was a matter which would have to be decided by the government concerned.
The French representative pointed out that a State had not the right to return a refugee without a visa to another country than to his country of origin or of his lawful residence. Admittedly, it did sometimes happen, but the practice was illegal. The Belgian representative said that Article 28 did not in fact provide for any of the cases mentioned by the Swedish representative.
Referring to the joint amendment, he asked for explanation of the words ‘lawfully convicted’ and wondered whether the word ‘lawfully’ meant that the authorities which had passed the sentence on a refugee had to provide full legal guarantees, or that the sentence must be final. If a refugee had been convicted by a court of first instance, could he nevertheless claim the benefit of Article 28?
The Danish representative said if the country of origin, which might perhaps be a great Power, demanded the return of a refugee, to refuse the demand might provoke a political crisis. He did not imagine that it was the intention of the Swedish and the joint amendment to cover such a case by the use of the words ‘reasonable grounds for regarding as a danger to the security of the country in which he is residing’ and ‘constituted a danger to national security or public order’respectively, but he wished to be assured that there was no possibility of the text being interpreted in that manner. The Netherlands representative supported the Swiss representative’s observations. He appreciated the importance of the basic principles underlying Article 28 but, as a country bordering on others, the Netherlands was somewhat diffident about assuming unconditional obligations so far as mass influx of refugees was concerned, unless international collaboration was sufficiently organized to deal with such a situation.
The Italian representative associated himself with the statements of the Swiss and Netherlands representatives. He would like some clarification of the words ‘expel or return’. Under Article 28, no Contracting State was to expel or return a refugee to a territory where his life or freedom would be in danger. On the other hand, he personally felt that a State could not commit itself not to expel or to return large groups of refugees who presented themselves on its territory, and who might endanger national security. The Italian delegation would reserve its position on Article 28, unless some satisfactory explanation was forthcoming.
The Swedish representative agreed with the Swiss, Netherlands and Italian representatives. He said he would withdraw the second additional phrase in the first paragraph of his amendment, stressing, however, that, as the President had also observed, the text of the Article should be interpreted as covering at least some of the situations envisaged in that part of the amendment.
The representative of the Federal Republic of Germany supported the observations of the Netherlands representative concerning countries subject to a large influx of refugees.
The Belgian representative drew attention to the fact that in Article 28 the prohibition on returning refugees to the frontier could be construed as applying to individuals, not to large groups. Such was the interpretation placed on it by the Belgian Government.
The French representative pointed out that the joint amendment referred to the country in which the refugee was residing. The hypothesis of a large influx of refugees did not therefore enter into the question.
The President asked the authors of the joint amendment why they had included the words ‘in which he is residing’. He recalled that Article 28 was to apply to refugees who had entered the country of residence unlawfully (Article 26) and lawfully (Article 27). He wondered whether the phrase ‘in which he is residing’ was to be interpreted in the broadest sense, namely ‘in which he finds himself’.
The UK representative replied that the President’s interpretation was correct as far as the English text was concerned. It might very occasionally be necessary to return the refugee almost immediately to the country of origin. Generally, however, the amendment would affect people who had been resident in the country for a considerable time, and it was for that reason that the word ‘residing’ had been used.
With regard to the Belgian representative’s earlier remark, he agreed that the word ‘lawfully’ could be deleted. It was, in fact, final conviction that was meant, that was after any appeal had been heard and after the time of appeal had expired. There were certain discrepancies between the English and French texts. The French text referred to ‘crimes ou délits’while in English the word ‘crime’ was sufficient.
He considered that the Danish representative’s point that refusal to return a refugee might cause political disturbance did not fall within the scope of Article 28. The matter of extradition treaties between countries of refuge and countries of persecution was outside the purview of the Convention. Most treaties of that kind specified that not only the facts should be established prima facie to the satisfaction of the country receiving the request for extradition but also that the crime for which the criminal was to be returned should not be of a political nature; at least, such was the case as far as the extradition treaties signed by the UK were concerned. It was further provided in most such treaties that, if a person was so returned, he should not be sentenced for any other offence until he had been given the opportunity of leaving the country. The President considered that the Provisional Agreement concerning the Status of Refugees coming from Germany (signed at Geneva on 4 July 1936) would be of interest to the Conference. Article 4 paragraph 3 of that instrument read as follows:
‘Even in the last-mentioned case the Governments undertake that refugees should not be sent back across the frontiers of the Reich unless they have been warned and have refused to make the necessary arrangements to proceed to another country or to take advantage of the arrangements made for them with that object.’The French representative pointed out that that safeguard was provided in Article 27 of the Draft Convention. In 1951 the problem presented itself otherwise than it had done in 1936.
The President could not agree with the French representative, as Article 27 dealt only with refugees who had been lawfully admitted.
In reply to an observation by the Israeli representative the UK representative said that he had no objection to an addition to the text to show quite clearly that final conviction was meant. The words ‘or offences’ should be deleted from the English text.
The French representative, referring to the President’s example of refugees in transit, remarked that the best solution would be to speed up their transit.
The Belgian representative said that it seemed agreed that the words ‘in which he finds himself’ should be substituted for the words ‘in which he is residing’, and the word ‘finally’ for the word ‘lawfully’ in the joint amendment. He thought it would be preferable to retain both the words ‘crimes’ and ‘delits’ in the French text.
The President pointed out that the French and English text were not intended merely for French and English speaking countries respectively; they might later have to be translated into other languages, including Chinese, Russian and Spanish, as provided for in Article 40 of the Convention. Other countries might interpret the words ‘crimes or offences’ in different ways. Since the words had a general sense in all countries, each individual legal system would have to place its own interpretation on them.
The French representative suggested that, in order to simplify matters, ‘convicted because of particularly serious acts’could be substituted.
The Belgian representative could not accept those words, which he thought could be interpreted in an arbitrary manner.
The Israeli representative suggested that the Style Committee could bring the two texts into concordance. It would be useful in that event for the Style Committee to submit a report which could be used as a basic interpretative document for the authorities which would have to apply the provisions of the Convention. The joint amendment was undoubtedly intended to be applied by a given country in the light of its national legislation, provided that a convicted refugee had been convicted for some serious act. He was somewhat puzzled by the French representative’s suggestion that the concept should be reduced to the word ‘acts’ because an act was not criminal unless legally designated as such.
The Swiss representative thought that if both the word ‘crimes’ and the word ‘délits’ were retained in the French text, but only the word ‘crimes’ in the English text, interpretation would be needed. It would be preferable to adopt the French provision in view of the difficulty of finding adequate translations of the words ‘crimes’ and ‘délits’. The word ‘acts’ was doubtless not perfect, but if it were used the difficulties he had mentioned would be avoided.
The Netherlands representative stated that the same difficulty had recently arisen in connection with the revision of the Red Cross Convention. It had been resolved by the use of the word ‘offence’ in English and the word ‘infraction’ in French. The Italian representative proposed that the words ‘or having been declared by a court an habitual offender’ should be inserted in the joint amendment, in order to provide for the case of habitual criminals.
The UK representative hoped that the scope of the joint amendment would not be unduly widened. Although he appreciated the intention behind the Italian proposal, he pointed out that in order to be classified by a court as a hardened or habitual criminal, a person must either have committed serious crimes, or an accumulation of petty crimes. The first case could be covered by the joint amendment, and he was quite content to leave the second case outside the scope of the provision.
The Swedish representative withdrew the second part of his amendment653 and proposed that the words ‘in that country’be deleted from the joint amendment.
The Swedish proposal was adopted by 6 votes to 4, with 12 abstentions.
The joint French-UK amendment,654 as amended, was adopted by 19 votes to none, with 3 abstentions.
Article 28, as amended, was adopted by 19 votes to none, with 3 abstentions.
The Style Committee proposed the following text:
1. Aucun des Etats contractants n’expulsera ou ne refouler, de quelque manière que ce soit, les réfugiés sur les frontières des territories où leur vie ou leur liberté serait menacée en raison de leur race, de leur religion, de leur nationalité ou de leurs opinions politiques.
2. Le bénéfice de la présente disposition ne pourra toutefois être invoqué par un réfugié qu’il y aura des raisons sérieuses de considérer comme un danger pour la sécurité du pays où il se trouve ou qui, ayant été l’objet d ‘une condamnation déf nitive pour un crime ou délit particulièrement grave, constitue une menace pour la communauté dudit pays.
(The text is available in French only)
The Swedish representative pointed out that the words ‘membership of a particular social group’ should be inserted before the words ‘or political opinion’ in paragraph 2 to bring it into conformity with sub-paragraph (ii) of paragraph A of Article 1.
The French representative saw no objection to the insertion of those words, but requested that the Summary Record of the meeting should state that Article 33 was without prejudice to the right of extradition.
The Netherlands representative recalled that at the first reading the Swiss representative had expressed the opinion that the word expulsion’ related to a refugee already admitted into a country, whereas the word return’ (‘refoulement’) related to a refugee already within the territory but not yet resident there. According to that interpretation, Article 28 would not have involved any obligation in the possible case of mass migration across frontiers or of attempted mass migration. He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in Article 33. The Netherlands could not accept any legal obligation in respect of large groups of refugees seeking access to its territory.
At the first reading, the representatives of Belgium, the Federal Republic of Germany, Italy, Netherlands, and Sweden had supported the Swiss interpretation. From conversations he had had since with other representatives, he had gathered that the general consensus of opinion was in favour of the Swiss interpretation.
In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation, that the possibility of mass migration across frontiers or of attempted mass migrations was not covered by Article 33.
There being no objection, the President ruled that the interpretation given by the Netherlands representative should be placed on record.
The UK representative remarked that the Style Committee had considered that the word ‘return’ was the nearest equivalent in English to the French term ‘refoulement’. He assumed that the word ‘return’ as used in the English text had no wider meaning.
The President suggested that in accordance with the practice followed in previous Conventions, the French word ‘refoulement’ (‘refouler’ in verbal use) should be included in brackets and between inverted commas after the English word ‘return’ wherever the latter occurred in the text.
He further suggested that the French text of paragraph 1 should refer to refugees in the singular.
The Swedish suggestion that the words ‘membership of a particular social group’ be inserted in paragraph 1 after the word ‘nationality’ was adopted unanimously.
The two suggestions made by the President were adopted unanimously.
The UK representative said that the word ‘trial’ in paragraph 2 should read ‘final’.
It was so agreed.
The UK representative observed that paragraph 2 spoke of refugees ‘convicted by a final judgment of a particularly serious crime’. In the original version that clause had been limited to the country of residence. The existing text was the result of the Swedish amendment. He suggested that it might be more consistent to revert to the original wording, and say ‘convicted by a final judgment in that country’, since under what was now paragraph F of Article 1, a person who had committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee was excluded from the categories of refugees; he should therefore be considered as being also outside the scope of Article 33.
The Swedish representative explained that his amendment had been introduced to cover cases such as, for example, that of a Polish refugee who had been allowed to enter Sweden and who, in passing through Denmark, had committed a crime in that country.
The Belgian representative proposed that in order to meet the Swedish representative’s point the words ‘in a Contracting State’ should be inserted after the words ‘being convicted by final judgment’.
The French representative wondered whether the UK representative’s reference to Article 1 really justified his amendment. Article 1 actually related to the examination to be undergone at the frontier by persons desirous of entering the territory of a Contracting State, whereas Article 33 was concerned with provisions applicable at a later stage. The coexistence of those two provisions was perfectly feasible.
The UK representative said that he understood paragraph F of Article 1 to refer, not to the place where the person had been convicted, but rather to the place where he had committed the crime in question. If he had committed a serious nonpolitical crime outside the country of refuge before being admitted to it, he was disqualified from the protection of refugee status in the sense of both Article 1 and Article 33.
The Israeli representative asked whether the insertion of the words ‘committed outside his country of origin’ after the words ‘particularly serious crime’ would satisfy the Swedish representative.
The Swedish representative said that so far as he personally was concerned, the text was acceptable as it stood. He maintained that States would be free to expel convicted criminals and send them back to their country of origin. The French representative agreed with the Swedish representative. Once the possibility had been recognized by Article 1 that the status of refugee could be denied to a person who had committed a crime in his country of origin, there could be no objection to allowing the expulsion of a refugee if it transpired that after his admission to the country of asylum that he had committed a crime in his country of origin. Moreover, the possibility of a refugee committing a crime in a country other than his country of origin or his country of asylum could not be ignored. No matter where a crime was committed, it reflected upon the personality of the guilty individual and the perpetrator was always a criminal. What was required was that a distinction should be made between real criminals and genuine refugees.
The President pointed out that paragraph 2 afforded a safeguard for States, by means of which they could rid themselves of common criminals or persons who had been convicted of particularly serious crimes in other countries.
The UK representative stated that in the light of the views expressed he would withdraw his amendment, the only purpose of which had been to clarify the meaning of the text.
The point of principle mentioned by the Belgian representative had already been abandoned by the decision of the Conference on the terms of sub-paragraph (b) of paragraph F of Article 1.
The President pointed out that, apart from the minor drafting changes, which had already been mentioned, the only other change in Article 33 would be the deletion of the words ‘or return to territories where the life or freedom of the refugee would be threatened’ from the title.
Paragraph 1 was adopted by 21 votes to none, with 2 abstentions.
Paragraph 2 was adopted by 20 votes to none, with 3 abstentions.
Article 33 as a whole and as amended, was adopted by 20 votes to none, with 3 abstentions.
The United Nations Declaration on Territorial Asylum
The General Assembly of the UN adopted unanimously, on 14th December 1967 by Resolution 2312 (XXII), the Declaration on Territorial Asylum. It reads inter alla:
‘Article 3.
1. No person referred to in Article 1, paragraph 1 (that is, persons entitled to invoke Article 14 of the Universal Declaration of Human Rights, including persons struggling against colonialism) shall be subjected to measures such as rejection at the frontier, or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.
‘2. Exception may be made to the foregoing principle only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.’
3. Should a State decide in any case that exception to the principle stated in paragraph 1 of the Article would be justified, it shall consider the possibility of granting to the person concerned, under such conditions as it may deem appropriate, an opportunity, whether by way of provisional asylum or otherwise, of going to another State. Conclusions of the Executive Committee on the High Commissioner’s Programme The Committee adopted at its 28th Session in 1978 Resolution No.6 on Non-Refoulement which reads:
The Executive Committee
(a) Recalling that the fundamental humanitarian principle of non-refoulement has found expression in various international instruments adopted at the universal and regional levels and is generally accepted by States;
(b) Expressed deep concern at the information given by the High Commissioner that, while the principle of nonrefoulement is in practice widely observed, this principle has in certain cases been disregarded;
(c) Reaffirms the fundamental importance of the observance of the principle of non-refoulement – both at the border and within the territory of a State – of persons who may be subjected to persecution if returned to their country of origin irrespective of whether or not they have been formally recognized as refugees.
At its 31st Session in 1981 the Committee adopted Resolution No. 17 on Problems of Extradition Affecting Refugees, which reads:
The Executive Committee
(a) Considered that cases in which the extradition of a refugee or of a person who may qualify as a refugee is requested may give rise to special problems;
(b) Recognized that refugees should be protected in regard to extradition to a country where they have well-founded reasons to fear persecution on the grounds enumerated in Article 1 (A)(2) of the 1951 UN Convention Relating to the Status of Refugees.
(c) Recognized the fundamental character of the generally recognized principle of nonrefoulement;
(d) Called upon States to ensure that the principle of non-refoulement is duly taken account in treaties relating to extradition and as appropriate in national legislation on the subject;
(e) Expressed the hope that due regard be had to the principle of non-refoulement in the application of existing treaties relating to extradition.
(f) Stressed that nothing in the present conclusions should be considered as affecting the necessity of States to ensure, in the basis of national legislation and international instruments, punishment for serious offences, such as the unlawful seizure of aircraft, the taking of hostages and murder;
(g) Stressed that the protection in regard to extradition applies to persons who fulfil the criteria of the refugee definition and who are not excluded from refugee status by virtue of Article 1 (F)(b) of the 1951 UN Convention relating to the Status of Refugees.’
Regional and National Measures
The European Convention on Extradition of 13 December 1957658 provides in Article 3:
1. Extradition shall not be granted if the offence in respect of which it is requested is regarded by the requested party as a political offence or as an offence connected with a political offence.
2. The same rule shall apply if the requested party has substantial grounds for believing that a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that person’s position may be prejudiced for any of these reasons. Similar provisions can be found in the Belgian-German Extradition Agreement of 17 December 1958659 and the Austro- German Extradition Agreement of 22 September 1958.
The Committee of Ministers of the Council of Europe adopted on 29 September 1967 Resolution No. (67) 14 on Asylum to Persons in Danger of Persecution which reads inter alia:
2. They (i.e. the Member Governments) should in the same spirit, ensure that no one shall be subjected to refusal of admission at the frontier, rejection, expulsion or any other measure which would have the result of compelling him to return to, or remain in, a territory where he would be in danger of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
3. If, in order to safeguard national security or protect the community from serious danger, a Member Government contemplates taking measures which might entail such considerations, it should, as far as possible accord to the individual concerned the opportunity of going to a country other than that where he would be in danger of persecution.
Resolution Refugee(80)9 adopted by the Committee of Ministers on 27 June 1980 provides:
The Committee of Ministers, under the terms of Article 159 of the Statute of the Council of Europe,
‘Recommends Governments of Member States:
1. Not to grant extradition when a request for extradition emanates from a State not party to the European Convention on Human Rights and when there are substantial grounds for believing that the request has been made for the purpose of prosecuting or punishing the person concerned on account of his race, religion, nationality or political opinion, or if his position may be prejudiced for any of these reasons;
2. To comply with any interim measures which the European Commission of Human Rights might indicate under Rule 36 of its Rules of Procedure, as, for instance, a request to stay extradition proceedings pending a decision on the matter
The Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa of 10 September 1969661 provides in Article II paragraph 3:
No person shall be subjected by a Member State to measures such as rejection at the frontier, return or expulsion, which would compel him to return to or remain in a territory where his life, physical integrity or liberty would be threatened for the reasons set out in Article I paragraphs 1 and 2.
The Commonwealth Law Ministers adopted at a meeting held in London from 26 April until 13 May 1966, a Scheme relating to the Rendition of Fugitive Offenders within the Commonwealth and recommended that effect be given to the Scheme in each Commonwealth country. It provides in Article 9:…
(2) The return of a fugitive offender will be precluded by law if it appears to the competent judicial or executive authority
(a) that the request for his surrender, although purporting to be made for a returnable offence, was in fact made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions, or
(b) that he may be prejudiced at his trial or punished, detained or restricted in his personal liberty by reasons of his race, religion, nationality or political opinions…..
The American Convention on Human Rights adopted at Costa Rica on 22 November 1969662 provides in Article 23:
8. In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinion.
In Austria the Law of 7 March 1968 concerning the Right of Residence of Refugees according to the 1951 Convention provides in § 4:
The Provincial Governor is further competent to declare whether a refugee constitutes for serious reasons a danger to the security of the Republic of Austria or whether he constitutes, after having been convicted by final judgment for a crime for which a prison sentence of more than five years is provided, a danger to the community.
These functions of the Provincial Governor are at present exercised by the Security Directorate of the Province concerned.
The Law concerning Extradition and Legal Assistance of 4 December 1979663 provides in § 19:
‘Extradition may not take place if it is to be feared that:
1. The criminal proceedings in the requesting State would not correspond or have not corresponded to the provisions of Articles 3 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.’
2. The punishment inflicted or to be expected or the preventive measures would not be executed in a manner corresponding to the requirements of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
3. The person to be extradited would be prosecuted or otherwise severely prejudiced for reasons of his origin, race, religion, membership of a particular social group, nationality or political opinions in the requesting State (Extradition asylum).’
In Australia, the Extradition Act 1966 prohibits extradition on the same grounds as stipulated in the European Convention on Extradition.
In the Federal Republic of Germany, the Aliens Act of 28 April 1965 provides in § 14:
(1) An alien may not be removed to a State in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinions. This does not apply to an alien who for serious reasons constitutes a danger to security, or who constitutes a danger to the community because he has been finally convicted for a particularly serious crime.
(2) In the case of these aliens an announcement must be made of their removal and an adequate period must be set.
If the removal of an alien to certain States is not admissible, this has to be indicated in the announcement.
Judicial Decisions
The European Commission of Human Rights has held that expulsion or extradition of a person may, in certain exceptional cases, be contrary to the European Human Rights Convention and particularly Article 3 (which prohibits cruel or inhuman treatment) if in the country to which the person is to be sent, due to the very nature of the regime of that country or to a particular situation in that country, basic human rights such as are guaranteed by the European Convention might be either grossly violated or entirely suppressed.
The European Commission had in August 1974 to deal with the case of Amerakane v. UK Amerakane had taken part as an Air Force officer in an attempt on the life of the King of Morocco. Amerakane fled to Gibraltar, whence he was forcibly returned to and executed in Morocco. The widow was granted an ex gratia payment for damages in the amount of £375,000.
There exist a number of decisions in which extradition was refused on the ground that the offence had been of a political character because it was held that the requested person might be disproportionately punished or persecuted for political reasons in the requesting State.
In Austria the Supreme Court had, on 29 May 1958, to decide on an extradition requested for various crimes against property by Yugoslavia. It was held that extradition be refused because the requested person had well-founded fear of persecution in the requesting State. The Court referred to the principle of Universal Criminal Law (Weltstrafrechtsprinzip) which enabled the Austrian courts to try the offender. The extradition request was refused on the basis of Article 33 of the 1951 Convention. It was held that extradition had to be refused, in particular if the internationally recognized rights of refugees could be violated by the extradition; in this case the subsidiary right of prosecution in Austria should be used. This also applied in the same Court on 30 December 1959.
In the Federal Republic of Germany the Federal Constitutional Court had, on 4 February 1959,670 to decide on an extradition request by Yugoslavia on a charge of embezzlement and other offences. Yugoslavia had undertaken to observe the principle of speciality. The requested person had applied for asylum in the Federal Republic on the ground that the Yugoslav Consul had accused him of decorating a Yugoslav pavilion at Munich inadequately and of having been in contact with Yugoslav emigrés. He claimed to have been employed in the Mixed Service Organization of the British Forces in Germany and of having been a member of the Serbian National Union, and also of having assisted the Germans during the war in a Labour Service Unit.
The Court held that the definition of political persecution in Article 16(2) of the Basic Law had to be interpreted widely. It also applied to non-political prosecution if the requested persons were, for political reasons, exposed to measures of persecution endangering their lives or restricting their personal liberty after extradition.
In criminal proceedings, the promises of speciality had lost their former value and the distinction between criminal and political acts had disappeared in certain States, in which criminal law was applied to further political ends; such promises could scarcely keep political considerations from determining the scope of the punishment. Extradition was refused.
The same Court had, on 17 November 1979,671 to decide on the extradition of a person to Yugoslavia on a charge of embezzlement. The appellant had been recognized as a refugee in France where his extradition had been refused. The Court held that the German Federal Republic had the right to re-examine his refugee status, but that the recognition in France constituted a ‘weighty item of circumstantial evidence indicating that the person concerned is in fact politically persecuted’. The case was referred back. Similarly Higher Court of Cologne on 11 August 1980.
In Italy, extradition of a refugee to his country of origin was refused by the Naples Court of Appeal, Investigating Section673 and by the Naples Court of Cassation on 19 November 1958.
In the US, the District Court of the Northern District of Illinois had, on 23 November 1938, in US ex ret. Weinberger v. Schlotfeldt,674 to decide on the deportation of a Jew to Czechoslovakia. The Court held that it was common knowledge that at that time in Central Europe the Jews were being persecuted, their property being confiscated, and that they were obliged to seek sanctuary in other countries.
A Jewish alien who had always supported himself, had never been arrested except for once being fined for a traffic violation, and had never been guilty of a crime involving moral turpitude, could not be deported to Czechoslovakia because at the time of entry he was not in possession of an unexpired immigration visa. Deportation would be cruel and inhuman punishment. Habeus corpus was granted.
Commentary
Paragraph 1
The words ‘to the frontiers of territories where his life or freedom would be threatened’ have the same meaning as in Article 31 paragraph 1, that is, the same meaning as ‘well-founded fear of persecution’ in Article 1 A(2) of the Convention. It applies to the refugee’s country of origin and any other country where he also has a well-founded fear of persecution or risks being sent to this country of origin. The question arises whether the provision applied to non-admittance at the frontier and to extradition. The words ‘in any manner whatsoever’ would seem to indicate that this is the case. It was ruled by the President of the Conference that the Article does not apply to mass migrations.675 In the course of drafting, other words such as ‘not to turn back’ were used. In Belgian and French law ‘refoulement’ also covers rejection at the frontier. The argument that this entails a right to asylum is not correct. The State admitting the refugee is not obliged to grant him asylum, and may even expel him to another country willing to admit him (Article 31).
As to extradition it would also seem to be covered by the words ‘in any manner whatsoever’. The French representative at the Conference asked, however, that it should be put in the Summary Record that the Article was without prejudice to the right of extraditions676 The UK representative claimed that the matter of extradition treaties between countries of refuge and countries of persecution was outside the purview of the Convention. Most treaties of that kind specified that not only should the fact be established prima facie to the satisfaction of the country receiving the request for extradition, but also that the crime for which the criminal was to be returned was not of a political nature. At least, such was the case as far as the extradition treaties signed by the UK were concerned. It was further provided in most such treaties that, if a person was so returned, he should not be sentenced or imprisoned for any other offence until he had been given the opportunity of leaving the country.
These arguments are hardly convincing. The question arises in cases where extradition is requested for a non-political offence and the requested person is in fear of disproportionate punishment or of persecution apart from punishment for one of the reasons mentioned in Article 1 of the Convention. The Convention supersedes, in any case, extradition treaties concluded previously by the same parties. It appears that the question has been clarified by the European Convention on Extradition and by court decisions. Article 33 should be applied to extradition, at least by analogy.
Paragraph 2
As to paragraph 2 it constitutes an exception to the general principle embodied in paragraph 1 and has, like all exceptions, to be interpreted restrictively. Not every reason of national security may be invoked, the refugee must constitute a danger to the national security of the country. If he engages in espionage for his country of origin, he will rarely be a bona fide refugee; if he spies for another country, it is difficult to see why he should, on this ground, be returned to his country of origin. As to criminal activities, the word ‘crimes’ is not to be understood in the technical sense of any criminal code but simply signifies a serious criminal offence. Two conditions must be fulfilled: the refugee must have been convicted by final judgment for a particularly serious crime, and he must constitute a danger to the community of the country. What crimes are meant is difficult to define since the principle that the criminal, not the crime, is to be punished applies. Certainly, capital crimes such as murder, rape, armed robbery and arson are included. However, even a particularly serious crime, if committed in a moment of passion, may not necessarily constitute the refugee as a danger to the community. On the other hand, a refugee who has committed a particularly serious crime and many minor offences may well, as a habitual criminal, constitute a danger to the community. The principle of proportionality has to be observed, that is, in the words of the UK representative at the Conference, whether the danger entailed to the refugee by expulsion or return outweighs the menace to public security that would arise if he were permitted to stay.678 In the Federal Republic of Germany refugees sentenced to long-term prison sentences are given the choice either to serve their sentence or to return to their country of origin.
To make the refugee serve his sentence and then to repatriate him, almost amounts to double jeopardy. The words ‘in that country’ in the joint French-United Kingdom amendment were deleted. Persons who have committed a serious nonpolitical crime prior to their admission to the country of asylum as refugees are, however, excluded from the application of the Convention under Article 1 F(b). Thus, only crimes committed in the country in which the refugee finds himself and crimes committed in another country to which he had been admitted as a refugee, are included.
The provisions of Article 31 paragraph 2 and Article 32 paragraph 3 apply also to Article 33 paragraph 2, that is, the refugee should be allowed a reasonable period within which to seek admission in another country than a country of persecution and the necessary facilities to obtain such admission. The Office of the UN High Commissioner for Refugees is frequently informed of such cases so as to enable it to try and find another country for the refugee concerned.
ARTICLE 34. NATURALIZATION
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
Travaux Préparatoires
The Secretariat Draft contained the following Article 28:
1. The High Contracting Parties shall facilitate the assimilation and naturalization of refugees (and stateless persons) to the fullest possible extent. They shall make every effort inter alla to reduce the charges and costs of naturalization proceedings for destitute refugees (and stateless persons).
Comment
The decision of the State granting naturalization, in this respect, is absolute. It cannot be compelled to grant its nationality, even after a long waiting period, to a refugee settled in its territory since naturalization confers on the naturalized citizen a series of privileges, including political rights.
Nevertheless, without establishing formal obligations in this respect, States can be requested to facilitate to the fullest possible extent, the naturalization of refugees, inter alla by giving favourable consideration to requests for naturalization received from refugees and by reducing the financial obstacles which procedural charges and costs may represent to destitute refugees.
Observations on Article 28
In connection with this Article the idea has been suggested that after a fairly long lapse of time (for example, 15 years) the authorities of the country in which the refugee or stateless person had settled might propose to him that he should apply for naturalization. If he failed to do so within a year, or did not give valid reasons for such failure, the Contracting Party would be entitled to consider itself as released from the obligations of the Convention.
1. In favour of this idea the following arguments may be advanced: the position of a de jure or de facto stateless refugee is abnormal and should not be regarded as permanent. If after fifteen years the refugee is unwilling or unable to return to his country of origin and the country where he is established is prepared to grant him its nationality, he should become naturalized. If, indeed, it is recognized that an individual has the right to a nationality, as a counterpart it should be the duty of the stateless person to accept the nationality of the country in which he has long been established – the only nationality to which he can aspire – if it is offered him.
If a political change subsequently occurred in the refugee’s country of origin nothing would prevent him from returning and regaining his first nationality. The fact that it was not he who had taken the initiative would make it all the more difficult to reproach the refugee with his change of nationality.
In conclusion, if this idea were adopted it would no longer be possible to excuse certain refugees – as has been done in the past – of ‘settling down in a condition of statelessness’.
2. The following arguments may be advanced against this proposal: even after fifteen years a refugee may remain fundamentally attached to his country of origin and cherish the hope of returning. For example, the Italians who sought asylum abroad after the establishment of the Fascist regime in 1922 were able to return to their country twenty years after. Nationality should not be imposed on a refugee in violation of his inmost feelings.
Compulsory naturalization would be particularly inappropriate in the case of persons who have been prominent politically and represent a cause or a party.
Finally, it is not always true that after a change of regime the Government of the country of origin will at once reinstate in their original nationality refugees who have in the meantime acquired a new one. This may necessitate formalities and entail delays. In some cases the new Government may keep political opponents at a distance by preventing or delaying reinstatement.
The French draft contained the following Article 23:
The High Contracting Parties undertake as far as possible to facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
At the first session of the ad hoc Committee, the French representative stressed the differences between the two texts. According to the terms of the French draft, the High Contracting Parties undertake not only to reduce the charges and costs of naturalization, but also to expedite the proceedings for the benefit of the refugees. It would not seem that that addition, to which the French Government attached some importance, should give rise to any difficulties.
The Turkish representative preferred the French text.
The UK representative did not consider either text to be completely satisfactory. He did not think, in fact, that his Government would be prepared to undertake either to reduce the period of length of residence expressly provided for by the law as a condition for naturalization, or to expedite the proceedings, a step which would entail giving priority to the applications of refugees over those of other foreigners. The procedure caused no undue delay. Moreover, the charges and costs of naturalization were so low in the UK that they could hardly be further reduced.
For these two reasons, he would prefer that the Committee should retain only the first sentence of the Article, perhaps adding to it the idea that destitute refugees should not be refused naturalization owing to inability to meet the costs. The Belgian representative pointed out that in certain countries the process of naturalization was neither as rapid nor as inexpensive as in the UK. It might be desirable, therefore, to include in the Article an appeal to such countries to accelerate their procedure and agree to reduce the charges for refugees.
The French representative explained that the expression ‘to expedite…proceedings’ did not apply to the duration of the period of residence, but only to the administrative formalities taking place between the submission of the application and the decision.
Article 28 (Article 23 of the French text) was adopted.
The representative of the IRO recalled the suggestion made in the observations of the Secretariat. If the suggestion was adopted in principle, it should be included in the Convention itself, since it would have a direct bearing on the field of application of that instrument.
The Chairman felt that the question was part of the problem of the elimination of statelessness, which did not fall within the scope of the Convention which was intended to give refugees a minimum number of advantages which would permit them to lead a tolerable life in the country of reception. he Belgian representative pointed out that there were either conditions of residence which were not included in the Convention but which followed either from various international instruments or general regulations applicable to foreigners. In Belgium, for example, a foreigner could engage in a liberal profession only after the completion of ten years residence. Article 29 was therefore not entirely redundant.
In particular, the Belgian Government had no objection to adding the period spent in Belgium during the occupation to the period of regular residence, on condition that the person concerned had been authorized to reside regularly after the end of the war.
The Belgian delegation was therefore not opposed to the first principle enunciated in Article 29.
The Turkish representative wondered whether Article 29 would apply in the case of naturalization, that is, whether the time spent in countries to which they had been deported would be included in the total period of residence imposed by law upon foreigners who wished to become nationals of the country of residence.
The Belgian representative thought the reply was in the affirmative.
The Chairman thought the Committee seemed to agree on the principle that the country to which a person had been deported should accept the period spent there as a deportee as a period of regular residence. The next question was whether a country other than that to which deportation had taken place should also take the deportation period into account and should add that time to the subsequent period of residence in its own territory.
The Belgian representative was unable to agree to the second principle. The result of its application to naturalization would be that, in determining the period of residence, the time spent in a foreign country would be taken into consideration. That would be contrary to the whole purpose of the requirement of residence prescribed by law and to the practice followed in that respect by the Belgian Government.
If a deportee were to return to the country in which he had previously resided, his period of residence in that country might be considered as uninterrupted by the fact of his deportation. That was the only privilege which could be granted to a deportee in that respect. Hence, in determining the period of residence required for naturalization which, in principle, should have been uninterrupted, the time he had spent in the country prior to deportation would be added to the period of residence subsequent to his return.
The Chairman agreed with the opinion expressed by the Belgian representative. In determining the period of residence, a State could not be required to take into account time spent outside the country.
The UK representative was entirely in agreement with the Chairman. Article 29 could not be accepted if it were to go further than that.
The Working Group proposed the following text:
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
That text was adopted.
Austria made the following comment:
Because of the exceedingly large number of refugees in Austria in proportion to Austrian nationals, the ‘assimilation and naturalization’ of all refugees living in Austria cannot be guaranteed.
Chile made the following comment:
Article 29 provides for special facilities for the naturalization of refugees, either by expediting the naturalization proceedings, or by a reduction in the charges and costs of such proceedings. Such exceptional treatment would not appear to be based on a just appraisal of the situation of a foreign refugee as compared with that of a foreigner not in that category. Indeed, a refugee arrives in the country by chance, and in many instances only because he was not able to go anywhere else at the time when he was forced to leave his own country or the country of his former residence. As against this, other foreigners come to the country of their own choice and to contribute their labour or capital. There would not appear to be any justification for placing such people in a position of manifest inferiority as compared with refugees. It would therefore seem more equitable to treat them both on the same basis and to subject them to the provisions of the same laws. Exceptional treatment would in any case infringe the provisions of Supreme Decree No. 3690 of 16 July 1915 on the naturalization of foreigners, the provisions of which have hitherto been enforced without difficulty, and without departure from the strict standards of justice and equality, in all cases to which they are applicable.
Italy made the following comment:
‘As regards the provisions of the Convention relating to the obligation to be undertaken by Italy in respect of refugees, such as naturalization, giving wage-earning possibilities, etc., the Italian Government cannot possibly accept any clause the enforcement of which could in a any way embitter – even slightly – the internal situation at present causing the gravest concern due to over-population and unemployment.’
It goes without saying that the Italian Government, confronted as it is with a yearly excess of births of half a million citizens, cannot be expected to commit itself or even to accept recommendations relating to the naturalization of refugees having just entered its territory.
At the second session of the ad hoc Committee, the Israeli representative wondered whether there was a legal definition of the word ‘assimilation’. The word ‘naturalization’ was well known and had a distinct meaning, but the word ‘assimilation’, well-known in sociology, bore a rather unpleasant connotation vaguely related to the notion of force. If it was merely intended to mean the making accessible of facilities for learning the language of the country, there could be no objection to it. If, however, assimilation were voluntary, there would be no need for any mention of it, and if it were not voluntary, it would be an attack on the spiritual independence of the refugees. It had to be remembered that the real refugees were the political refugees, such as the Spanish republicans. It appeared that France did not intend to assimilate the Spanish republicans who had fled into that country, nor did the republicans themselves wish to be assimilated. In view of these considerations, he proposed that the word ‘assimilation’ be deleted from Article 29.
The Venezuelan representative quoted a provision of one of his country’s laws on resettlement and immigration, in which the word ‘assimilation’ contained no suggestion of compulsion. Venezuela hoped that immigrants and refugees would be absorbed within the national community and not remain isolated; it hoped, in other words, that they would be assimilated.
The word ‘assimilation’, however vague legally, had thus in practice much meaning; he thought that it should be retained.
The French representative supported the remarks of the Venezuelan representative. He considered that the term ‘assimilation’ closely corresponded to the conditions which the refugees should fulfil in order to qualify for naturalization. As regards the term having a legal significance, it occurred several times in the new nationality code adopted in France, not only in the preamble but in the actual provisions themselves. It was employed in particular with reference to the automatic acquisition of nationality. In the opinion of the French delegation, not only was there no objection to using the term in Article 29, the final aim of which was the naturalization of the refugees and which, he might add, was only a recommendation, but there might be an advantage in doing so.
The Israeli representative suggested that the words ‘adaptation’ or ‘adjustment’ were preferable to assimilation. He suggested, however, that the matter be left as it stood, and that the Drafting Committee be asked to consider the introduction of a more suitable word; it was clear that all were agreed on the concept.
The Chinese representative thought that the word ‘assimilation’ should be retained, as it expressed exactly the intention of the Article.
The Canadian representative also favoured the retention of the word.
The Swiss representative stated that Swiss Federal legislation did not provide for any different treatment of refugees in the matter of nationality. They were treated in the same way as other aliens who were required to have resided lawfully in Switzerland six years during the twelve years preceding their application, before they could submit a valid application for naturalization. Sojourn in Switzerland as a refuge counted as lawful residence. In point of fact, a longer period of residence was required in order to ensure that the applicant had been sufficiently assimilated, and for that reason the preliminary draft of the new nationality law considerably lengthened the minimum period of lawful residence required.
The Italian representative said he wished to reaffirm the reservations already expressed by his Government with regard to Article 29. As a matter of fact, the question of naturalization did not generally arise in his country which, by reason of its geographical position and of certain other special considerations, could only offer temporary hospitality The Drafting Committee proposed the following text: ‘The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
The Article was adopted.
At the Conference of Plenipotentiaries the Italian representative said he wished to reserve the position of his Government on Article 29.
The UK representative felt Article 29 should be considered as a recommendation rather than as a binding legal obligation, particularly in view of the use of the words ‘as far as possible’ and ‘make every effort’.
Article 29 was adopted by 20 votes to none, with 1 abstention.
Article 34 was adopted by 23 votes to none, with 1 abstention.
The Italian representative announced that in signing the Convention the Italian Government intended to enter a reservation on Article 34.
The Style Committee proposed the text which is now in the Convention.
Regional and National Measures
The Consultative Assembly of the Council of Europe by Recommendation (1969):
‘Recommended that the Committee of Ministers, with a view to avoiding any perpetuation of the problems of European refugees, invite Member Governments:
(1) to facilitate naturalization:
(a) by a liberal interpretation of the legal requirements in respect of assimilation of refugees, taking particularly into account their total period of residence in the host country and the fact that most of them have adopted the way of life of the community which has welcomed them;
(b) by making every effort to remove or at least reduce, legal obstacles to naturalization such as the minimum period of residence when it exceeds five years, the costs of naturalization when it exceeds the financial possibilities of the majority of refugees, the length of time elapsing between the receipt of applications for naturalization and their consideration, and the requirement that refugees should prove the loss of their former nationality.
(ii) to accede to the UN Convention of 1961 on the reduction of statelessness and to treat de facto stateless refugees as thought they were stateless de jure, in accordance with the resolution of the Conference of Plenipotentiaries which adopted the afore-mentioned Convention;
(iii) to adopt provisions in national legislation with a view to enabling refugee children, born in a country to which their parents came as refugees, to obtain the nationality of that country at birth and refugee youths to obtain the nationality of their country of residence at their request, at the latest at their coming of age;
(iv) to grant refugees married to a national of the country of residence special facilities for acquiring the nationality of their spouse.’
The Committee of Ministers of the Council of Europe adopted on 26 January 1970 in reply to this Recommendation,
Resolution 7092, which reads inter alla:
3. Considering that the acquisition by refugees of the nationality of the country of residence would effectively contribute to solving problems still raised in many States by the perpetuation of their present status…;
5. Resolves: to transmit Recommendation 564 to governments, inviting them to take such action as is possible for them.
In Austria refugees are not required to prove loss of previous nationality for the purpose of naturalization (Nationality Law of 15 July 1965, BGB1.1965 No.250 paragraph 10 subparagraph 8(2)(a)). Refugee status is considered as a ground specially to be taken into consideration in the sense of paragraph. 10 sub-paragraph.3 of the Law in order to shorten the period of residence required for naturalization from ten to four years, in certain Provinces to six years.
In Belgium, refugees according to the Convention, may request ordinary naturalization after three years of residence (instead of 6) and full naturalization after five years of residence (instead often). Refugees under the mandate may apply to the Ministry of Foreign Affairs, Direction Générale de la Chancellerie et des Conentieux, to obtain documents and certificates that they would not be able to obtain from their national authorities.
The children of refugees, like all minor aliens, may from the age of 16 acquire Belgian nationality by choice, or by ordinary naturalization, if they satisfy the required conditions.
In Denmark the requirements of the mastery of the Danish language and integration into Danish society for naturalization are modified for refugees. While the normal residence period required for naturalization is seven years, it is six years for refugees.
In Finland release from the former nationality is not required for naturalization in the case of refugees. A child born in Finland is a Finnish citizen by birth if the child would otherwise be stateless.
In France children born in France and resident in France at the age of majority and during the previous five years automatically acquire French nationality unless they decide against such acquisition in the course of the year preceding their majority. Refugee status is a favourable factor for naturalization.
In the Federal Republic of Germany refugee status is regarded as positive factor in the case of discretionary naturalization. While, as rule, a period of residence of at least ten years is required, residence for seven years is regarded as adequate in the case of refugees. Refugees are not required to secure release from their former nationality if this would constitute an unreasonable hardship. Naturalization proceedings for refugees are expedited. The naturalization fee is reduced by 25% for refugees.
In the Netherlands favourable account is taken of refugee status when considering applications for naturalization. While the normal period of residence required is five years, refugees are normally required to have resided in the Netherlands for only four years. Refugees are not required to renounce their former nationality.
In Sweden where the period of residence required for naturalization is generally five years, refugees can obtain naturalization after four years of residence. In the case of refugees consent of the State of former nationality for loss of its nationality is not required.
In Switzerland refugees are, in practice, not required to renounce their former nationality. A facilitated federal naturalization of refugees is under consideration.
Judicial Decisions
In the Federal Republic of Germany the Homeless Foreigners Law692 provides in § 21:
The general provisions concerning naturalization apply to homeless foreigners. When examining the applications for naturalization, the special fate of the homeless foreigners shall be taken into consideration. In determining the fees for naturalization the economic situation of the applicant shall be considered.
The Federal Supreme Administrative Court held, on 27 February 1958,693 that a homeless foreigner, when he applies for naturalization, has to show that he is capable of supporting himself and his family.
The Bavarian High Administrative Court held that there exists a public interest in the naturalization of refugees and that their applications have to be examined with sympathy.
Commentary
Article 34 is in the form of a recommendation. It contains, nevertheless, the obligation to facilitate the assimilation and naturalization of refugees as far as possible and to make, in particular, every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings. The term ‘naturalization’ covers also other forms of acquisition of nationality. In several Contracting States the period of residence required has in fact been shortened for refugees and naturalization fees may be reduced in their case. The Office of the High Commissioner for Refugees may assist refugees in the payment of naturalization fees and charges under its Legal Assistance Scheme. In a number of States applicants for naturalization are required to prove that they will lose their former nationality on naturalization. Refugees are often unable to comply with this condition; they have, in law or in practice, been dispensed from this requirement by Contracting States.
ARTICLE 35. CO-OPERATION OF THE NATIONAL AUTHORITIES WITH THE UNITED NATIONS
1. The Contracting States undertake to cooperate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the Office of the High Commissioner or any other agency of the UN which may succeed it, to make reports to the competent organs of the UN, the Contracting States undertake to provide them in the appropriate form with information and statistical date requested concerning:
(a) the condition of refugees,
(b) the implementation of this Convention, and
(c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.
Travaux Préparatoires
The Secretariat draft contained the following provisions, Articles 26 and 27:
Article 26
The High Contracting Parties undertake to facilitate the work of the UN High Commissioner for Refugees and to maintain constant relations with him as long as a UN High Commissioner’s Office for Refugees exists.
Comment
It is essential that there should be close and constant cooperation and trust between the High Commissioner and Governments; to achieve this, continuous relations between Governments and the High Commissioner are necessary. It should be noted that the High Commissioner’s Office for Refugees is not a permanent institution, but is to remain in existence for three years, as from 1 January 1951. It may be dissolved on 31 December 1953; equally, it may last a fairly long time. In any case, however, the fact that the Office is not a permanent institution should be taken for granted. The temporary nature of the High Commissioner’s Office should not, however, preclude the Convention from providing for systematic cooperation between the High Contracting Parties and the High Commissioner. Such cooperation would continue throughout the existence of the High Commissioner’s Office.
It should be understood, nevertheless, that save only for the provisions regarding the High Commissioner, the termination of the High Commissioner’s Office would not render the Convention inapplicable.
Article 27
The High Contracting Parties undertake to designate a national authority to compile and to communicate to the High Commissioner:
(a) statistics concerning refugees (and stateless persons) and the laws and regulations concerning the status of refugees;
(b) all information regarding the condition of refugees (and stateless persons) and the application of the present Convention.
Comment
As has been remarked above (Article 23), in the absence of an international authority there should be, in every country of asylum, a national authority responsible for refugees, and maintaining contact with the various national services dealing with refugees. This authority would be responsible for liaison with the High Commissioner.
The French draft contained the following:
hapter XI
Cooperation with the United Nations High Commissioner for Refugees.
Article 21
1. The High Contracting Parties undertake to facilitate the work of the High Commissioner for Refugees.
2. In order to enable the High Commissioner for Refugees to prepare and submit his annual report to the competent organs of the UN, and High Contracting Parties undertake to provide him, in the form required by the Economic and Social Council, with data and information concerning the condition of refugees and the implementation of the present Convention.
Article 22
Each of the High Contracting Parties undertakes to designate a national authority:
(a) to centralize statistics on refugees, together with information relating to their condition;
(b) to maintain constant relations with similar authorities in other countries;
(c) to maintain constant relations with the High Commissioner for Refugees;
(d) to communicate to the High Commissioner for Refugees all regulations, laws, decrees etc. relating to the condition of refugees.
At the first session of the ad hoc Committee, the UK representative expressed a preference for the suggestions by the French delegation in its Article 21.
The Israeli representative was not sure it would be proper for the Committee to adopt the text of Article 21, inasmuch as by providing that it should receive information on the implementation of the Convention, it ascribed to the High Commissioner for Refugees greater powers than those granted to him by General Assembly resolution 319A(IV). It might be preferable not to go beyond that resolution until the Economic and Social Council and the General Assembly had dealt further with the matter and had definitely established the High Commissioner’s terms of reference.
The representative of the IRO replied that the annex to the General Assembly resolution authorized the High Commissioner to supervise the application of the Conventions providing for the protection of refugees, concluded under his auspices.
The Chairman felt that the Committee was free to adopt the text if it wished, since the General Assembly would in any case review the Draft Convention and would consider the Article in question in the light of the decision which by then it would have taken on the High Commissioner’s terms of reference.
The Danish representative suggested that, since the Convention might be expected to outlive the temporary office of High Commissioner, it might be advisable to re-draft Articles 21 and 22 of the French proposal so that reference would be made throughout the UN agencies charged with the international protection of refugees rather than to the High Commissioner as such.
That suggestion was adopted.
The Venezuelan representative said he had the same objection to the words ‘to designate a national authority’ in Article 22 of the French draft that he had had to a similar phrase in Article 23 of the Secretariat draft; signatory States should not be obliged to establish a new and special authority for the purposes outlined in the Article. He thought, furthermore, that Articles 21 and 22 of the French draft might be combined into a single Article, as they were directed to the same end. The Chairman remarked that paragraph (b) of Article 22 seemed superfluous.
The French representative did not insist on this retention, as signatory States would in any case find themselves obliged to maintain constant relations with authorities dealing with refugees in other countries, as that provision recommended. Paragraph (b) of Article 22 of the French draft was deleted.
After a brief discussion, the Chairman suggested that the Secretariat might be asked to re-draft Articles 21 and 22 of the French proposal, combining them into a single Article as proposed by the Venezuelan representative and meeting the latter’s objection by some such words as ‘designate the authority which shall’ perform the functions outlined. That would make it clear that those functions could, if desired, be entrusted to some authority already in existence.
It was so agreed.
The Working Group proposed the following Article 30:
1. The Contracting States shall facilitate the work of the agencies charged by the UN with the international protection of refugees such as the UN High Commissioner for Refugees.
2. In order to enable such agencies to make reports to the competent organs of the UN, the Contracting States shall provide them in the form prescribed with data, statistics and information concerning:
(a) the condition of refugees,
(b) the implementation of this Convention, and
(c) all regulations, laws, decrees etc. made by them concerning refugees.
The Chairman pointed out that the Articles should stress the need for contact between the Contracting States and the agencies charged by the UN with the international protection of refugees.
He suggested that paragraph 1 be amended to read as follows: ‘The Contracting States shall maintain contact with the agencies charged by the UN with the international protection of refugees such as the UN High Commissioner for Refugees, and shall facilitate their work.’
Article 30, as amended, was adopted.
The US made the following comment:
‘Tentatively it is proposed that paragraph 1 of Article 30 be revised to read as follows:
The Contracting States undertake to cooperate with the UN High Commissioner’s Office for Refugees, or any successor agency charged by the UN with the international protection of refugees, in the function of supervising the application of the provisions of this Convention.
‘The beginning of paragraph 2 of this Article should be revised to read:
In order to enable the High Commissioner’s Of lice or any successor agency of the UN to make reports to the competent organs of the UN, the Contracting States undertake to provide them in the form prescribed with any data, statistics, and information requested concerning (etc.).
At the second session of the ad hoc Committee, the US representative thought that the Committee in drafting Article 30 had been hesitant to bind Contracting States too definitely to cooperate with the UN High Commissioner for Refugees. Since, however, the Economic and Social Council had recognized the important link between the provisions of the Convention and the functions of the High Commissioner, there was no reason for that hesitancy. Paragraph 6 of the preamble to the Draft Convention, as approved by the Council (E/1618) read: ‘Considering that the High Commissioner will be called upon to supervise the application of this Convention, and that the effective implementation of this Convention depends on the full cooperation of States with the High Commissioner and on a wide measure of international cooperation’. He hoped that that link would be recognized when the General Assembly approved the statute of the High Commissioner’s Office.
The amendment proposed in the US representative’s comment was therefore designed to remove the hesitant tone of Article 30. Some slight modification was required in the amendment as contained in document E/AC.32/L.40, since in the deliberations of the Committee it had been considered inappropriate to speak of a successor to a functionary who was on the point of taking office. The words ‘or any other agency’ and the words ‘or any successor agency’ in paragraph 2 by the words ‘or any other appropriate agency’.
The Israeli representative supported the US amendment, on the understanding that it would be subject to further change if the High Commissioner’s terms of reference were modified by the General Assembly.
The French representative saw no objection to accepting the wording just proposed by the US representative. But he thought it would be preferable to substitute the phrase ‘in the requisite form’ for the phrase ‘in the form prescribed’, since the latter might suggest that the High Commissioner had some powers vis-à-vis States, while the intention was merely to ensure that States would submit information supplied in a manner sufficiently uniform to facilitate the work of the High Commissioner’s Office.
The US representative suggested that the matter also be left to the Drafting Committee.
Article 30 as a whole was referred to the Drafting Committee.
The Drafting Committee proposed the following text:
1. The Contracting States undertake to cooperate with the Office of the UN High Commissioner for Refugees, or other agencies charged by the UN with the international protection of refugees, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention.
2. In order to enable the High Commissioner’s Office or other appropriate agencies of the UN to make reports to the competent organs of the UN, the Contracting States undertake to provide them, in the form requested, with any data, statistics and information requested concerning
(a) the conditions of refugees
(b) the implementation of this Convention, and
(c) all regulations, laws, decrees etc. made by them concerning refugees.
Article 30 was adopted.
The Committee made the following comment in its report:
Article 30 was rewritten to take account of the terms of the Statute of the High Commissioner, approved by the General Assembly at its Fourth Session and amplified by the Economic and Social Council at its Eleventh Session.
At the Conference of Plenipotentiaries, Australia introduced an amendment:
Replace the words… ‘with any data’…etc. by ‘…with any necessary data…’ etc.
Yugoslavia proposed:
Delete the words ‘or other agency charged by the UN with the international protection of refugees.’
The Yugoslav representative, introducing his amendment, said the Yugoslav Government questioned the desirability of imposing on Contracting States the obligation of cooperation with some unknown agency of the UN that might be established in the future. Only after something was known of such an organization would it be possible to take a decision of that sort. Moreover, it was somewhat premature at the present stage to consider what would be the position on termination of the High Commissioner’s activities.
The Australian representative believed that the Australian amendment was self-explanatory. Many Governments shared the Australian Government’s concern about the growing burden of supplying documentation required by a large number of international organizations. While he was sure that the High Commissioner would not make many unnecessary demands, some formal limitation should, he thought, be imposed; hence his suggestion that the word ‘necessary’ should be inserted before the word ‘data’ in the fourth line of paragraph 2.
The Belgian representative drew the Conference’s attention to a divergence between the French and English versions of paragraph 2 of Article 30, where the French text made use of the words ‘toute institution…qui lui succédera’; the last three words did not appear in the English text.
The President believed that the presence of the words ‘qui lui succédera’; might be due to an oversight in translation from the English.
The Italian representative wondered whether the Yugoslav delegation fully appreciated the implications of its amendment to Article 30. The Convention would remain in force so long as the Contracting States adhered to it and it was unlikely that a new convention on the status of refugees would be entered into within the next ten years. The Office of the High Commissioner had been set up for a period of three years, and if it was replaced by some other organization of the UN, a new conference of plenipotentiaries would have to be convened for the purpose if the Yugoslav amendment was adopted.
As to the Australian amendment, the question arose who would decide what information was ‘necessary’. The insertion of the word might even give rise to controversy. Limitations on the information that could be requested was provided under (a), (b) and (c) of paragraph 2, and if the information requested by the High Commissioner did not fall under any of those heads, governments would be in a position to regard it as unnecessary.
The French representative appreciated the concern which had inspired the Yugoslav amendment, but it did not think that the amendment was essential. The French delegation wished to draw attention to the fact that Article 30 represented an innovation by comparison with the provision of earlier conventions, and in particular those of the 1933 Convention, which had operated without any responsibility by an international organization to supervise its implementation; yet it could hardly be maintained that it had not given good results for that reason. His delegation had not submitted an amendment to Article 30, but it considered that the Article should be dealt with in connection with the Article on reservations (Article 36). The French Government considered that Article 30 was of those to which it might be obliged to enter a reservation.
The Italian representative said the Italian Government supported Article 30 in principle, subject to the conclusion of an agreement between it and the High Commissioner for Refugees.
The Australian representative believed that his delegation’s point might alternatively be met by the deletion of the word ‘any’ from the fourth line of paragraph 2. The Australian delegation would also be interested to learn how supervision of the application of the provisions of the Convention, referred to in paragraph 1, would be carried out. Was it the intention that refugees should appeal to the High Commissioner against alleged contraventions of the Convention and that he should hear such appeals?
The Yugoslav representative said that, in the light of the comments made on the Yugoslav amendment, he would withdraw it.
The Belgian representative asked whether the English-speaking representatives would agree that the words ‘qui lui succédera’ occurring in the French text of paragraph 2 should be reinstated in the English text.
The French representative preferred the expression ‘qui lui succéderait’ which he thought would be safer.
The Belgian representative agreed.
The US representative said that at first sight he had no objection to the insertion of the words ‘which may succeed it’ but felt handicapped through not knowing why the phrase had been consistently omitted from the English text.
The President explained that Article 22 of the draft prepared by the Secretary General had laid down that the Contracting States should facilitate the High Commissioner’s work, and that the succeeding Article had made provision for liaison between national authorities and the High Commissioner. The discussion had been based on the English text only, and it would appear that the phrase ‘qui lui succédera’ should not have been retained in the French version.
The representative of the German Federal Republic submitted that if the phrase was reinstated in paragraph 2, it should also be included in paragraph 1.
The Belgian representative said his delegation could not agree to the vague expression ‘toute institution’ which was used in the French text of paragraph 2.
The UK representative suggested that the words ‘or other appropriate agency’ in paragraph 2 be replaced by the words ‘or other such organization’, the link between the two paragraphs thus being made perfectly clear.
The Egyptian representative asked whether the reinstatement of the words ‘which may succeed it’ would imply that Contracting States might withhold their cooperation from existing organizations.
The representative of the German Federal Republic believed that there would be a discrepancy between paragraphs 1 and 2 if the latter was amended as proposed by the UK representative and a reference made to an agency which might succeed the Office of the High Commissioner. As the text stood at present there was at least the theoretical possibility that another UN agency, apart from the Office of the High Commissioner, could benefit from the cooperation of the Contracting States. If the UK amendment was adopted it would mean that as long as the Organization existed, it would be the only agency with which the Contracting States would be obliged to cooperate.
The French representative asked for clarification of the relation between paragraph 1 of Article 30 and paragraph C of Article 1. The two clauses contradicted one another, since paragraph C excluded from the benefits of the Convention persons receiving protection or assistance from other organs or agencies of the UN, whereas paragraph 1 of Article 30 constituted an appeal to Contracting States to cooperate with those very agencies.
The representative of the German Federal Republic again urged that the reference in paragraph 1 to another agency should be qualified by the phrase ‘which might succeed it’. No one could foresee the nature of future agencies and the scope of their responsibilities.
The French representative pointed out that States represented at the Conference, like States not represented there, would have every reason to refuse the cooperation called for in paragraph 1, especially since there was a question of cooperation with agencies not yet in existence. Moreover, paragraph 1 was in effect only a recommendation. The Belgian representative considered that the French text conveyed the point of view that there was one organization competent to request the information referred to in paragraph 2, namely the Office of the High Commissioner, whereas the English text might give rise to a different interpretation.
The French representative considered that paragraph 1 carried with it an obligation on the part of the contracting States to cooperate, for example, with the UN Relief and Works Agency for Palestine refugees in the Middle East (UNRWAPRME) which, by paragraph convention of Article 1, were excluded from the benefits of the Convention. The French Government, which was a member of that Agency, could not understand why, under Article 30, Contracting States should undertake to cooperate with agencies responsible for refugees to whom the Convention would not apply. The obligations to be assumed by States should be clearly defined.
The UK representative recalled that paragraph convention of Article 1, unless amended by the Conference, would exclude the Arab refugees from Palestine from the definition of refugees. Consequently, the agency instituted for the protection of this group would not be covered by Article 30. He believed the simplest solution would be to reinstate in the English text the words ‘which may succeed it’.
The French representative felt that there were cases where an Article could hardly be examined absolutely independently of the preceding and succeeding Articles. Article 30 was followed at little distance by the Article providing for possible reservations. So far as the French delegation was concerned, it was unable to come to a decision on Article 30 without first knowing whether it would be possible for it to enter reservations on that Article by virtue of Article 36. It had been somewhat surprised by the statement made by various delegations which, while accepting the amendment suggested by the representative of the Holy See to sub-paragraph (2) of Article 1, ‘events occurring in Europe’ or ‘in Europe or elsewhere’, had reserved the right to reconsider their decision, should the subsequent Articles of the Convention necessitate, in their view, certain changes to Article 1. The French delegation would like to know, whether in the opinion of the delegations which took that position – which, indeed, it was somewhat at a loss to understand – the possibility of entering a reservation on Article 30 was compatible with their expressed agreement to the text suggested by the representative of the Holy See.
The US representative said it must be made perfectly clear that the supervision of the present Convention must devolve upon the UN High Commissioner for Refugees Office or to the agency which succeeded it. He thought that the French text sought to entrust the supervision duty only to the High Commissioner’s Office or its successor, and consequently supported the proposal that the French text of Article 3 0 be adopted. Thus any doubt about the role of future agencies would be removed.
The Belgian representative formally moved his earlier suggestion that the English text of Article 30 be brought onto line with the French text, particularly in the case of the words ‘qui lui succéderait’.
The Egyptian representative said that in Article 30 as now drafted, the word ‘cooperate’ did not imply direct action, and the Egyptian Government was unable to accept an implicit negation of cooperation with other agencies. The President said any international arrangement, whatever its form, created a community of the participating States. It went without saying that certain States might belong both to the community created by the Convention and another community, which also operated under the aegis of the UN. The Convention did not and could not prohibit the members of one community from cooperating with organizations entrusted with the application of arrangements set up by another.
The Danish representative proposed that the Australian amendment to paragraph 2707 be further amended by deleting the words ‘any necessary’ from the proposed phrase ‘with any necessary data’. The text of paragraph 2 would then read:
‘(The Contracting States undertake to provide them in the appropriate form) with data…’
The Australian representative agreed to the Danish proposal.
The French representative said the solution to the difficulty, so far as the French delegation was concerned, would be to adjourn the present discussion, thus permitting the conference to examine Article 30 at the same time as Article 36 on reservations. In the circumstances, and in view of the fact that it had not received the information for which it had asked, his delegation would not take part in the vote on Article 30.
The Belgian amendment reading: ‘the Office of the UN High Commissioner for Refugees or any agency of the UN which may succeed it…’ was adopted by 17 votes to 2, with 3 abstentions.
The Australian amendment, as further amended by the Danish representative, and consisting therefore of the deletion of the word ‘any’ from before the word ‘data’ in the fourth line of paragraph 2, was adopted by 18 votes to 2, with 2 abstentions.
The Venezuelan representative, speaking on a point of order, announced that the Brazilian, Colombian and Venezuelan delegations, which, by coincidence, had all been absent the previous day when Article 30 had been discussed, had authorized him to state that they would reserve their position until it was reconsidered at the second reading.
The Style Committee proposed the following text:
1. Les Etats contractants s ‘engagent à coopérer avec le Haut-Commissariat des Nations Unies pour les réfugiés, ou toute autre institution des Nations Unies qui lui succéderait, dans l’exercice de ses fonctions et en particulier à faciliter sa tâche de surveillance de l’application des dispositions de cette Convention.
2. Afin de permettre Haut-Commissariat ou à toute autre institution des Nations Unies qui lui succéderait de présenter des rapports aux organes compétents des Nations Unies, les Etats contractants s’engagent à leur fournir dans la forme appropriée les informations et les données statistiques demandées relatives:
(a) Au statut des réfugiés
(b) A la mise en oeuvre de cette Convention, etc
(c) Aux lois, règlements et décrets, qui sont ou entreront en vigueur en ce qui concerne les réfugiés.
(This text is available in French only)
The Netherlands representative pointed out that the English and French texts of Article 35 were not entirely concordant.
He suggested that the discrepancy could be eliminated by the insertion in the English text of the word ‘other’ after the words ‘High Commissioner for Refugees, or any’ in paragraph 1, and the substitution of the words ‘any other agency’ for the words ‘other appropriate agency’ in paragraph 2.
It was so agreed.
The Venezuelan representative stated that the Venezuelan Government would have to enter a reservation in respect of the final phrase of paragraph 1, beginning with the words ‘and shall in particular facilitate’.
Article 36 was adopted by 17 votes to none, with 7 abstentions.
Commentary
The Statute of the High Commissioner’s Office mentions in point 8 among the functions of protection of refugees:
(a) Promoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto;
Resolution 428(V) of 14 December 1950 of the General Assembly of the UN by which the Statute, which is annexed to the Resolution, was adopted, calls upon Governments to cooperate with the UN High Commissioner for Refugees in the performance of his functions concerning refugees falling under the competence of his Organization, especially by ‘Becoming parties to international conventions for the protection of refugees and taking the necessary steps of implementation under such conventions’.
The Preamble to the Convention says:
‘Noting that the UN High Commissioner for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognizing that the effective coordination of measures taken to deal with this problem depends upon the cooperation of States with the High Commissioner.’
Under Article 35, cooperation with the Office of the UN High Commissioner for Refugees or any other agency of the UN which may succeed it, in the exercise of its functions and in particular the facilitation of its duty of supervising the application of the provisions of the Convention becomes, for the first time, a contractual obligation of the Contracting States. In spite of the remark made at the Conference, paragraph 1 contains an obligation, not a recommendation. No Contracting State has made a reservation on Article 35.
The High Commissioner exercises his task of supervising the application of the provisions of the Convention from his headquarters at Geneva and, in particular, through his branch offices in the various countries. He has sent a questionnaire to Contracting States asking them for information on the implementation of certain provisions of the Convention.
ARTICLE 36. INFORMATION ON NATIONAL LEGISLATION
The Contracting States shall communicate to the Secretary General of the United Nations the laws and regulations which they may adopt to ensure the application of this Convention.
Travaux Préparatoires
At the second reading of Article 31711 the representative of the US proposed that Article 31 should be amended to read:
‘Each of the Contracting States shall, within a reasonable time and in accordance with its constitution, adopt legislation or other measures to give effect to the provisions of this Convention, if such measures are not already in effect’.
Article 31, as amended, was adopted.
The Committee made the following observation in its report:
Article 31
Measures of implementation of the Convention
The Convention for the Suppression of the Traffic in Persons and of Exploitation of the Prostitution of Others adopted by the General Assembly. Resolution 317(IV), 2 December 1949, Article 27 reads:
Each Party to the present Convention undertakes to adopt, in accordance with its Constitution, the legislative or other measures necessary to ensure its application of the Convention.
The UK made the following comment:
‘Article 31. It is not the practice of His Majesty’s Government to ratify or accede to any Convention unless and until they are satisfied that their legislation and administrative arrangements are in conformity with the provisions of the Convention. In the opinion of His Majesty’s Government this is the proper principle to be followed in international relations, and they cannot accept this Article.’
The UK representative said that the purpose of the UK comment on Article 31 was that his Government would prefer a text for that Article based on the principle that ratification or accession to the Convention implied that a State was already in a position to give effect to its provisions.
The Drafting Committee proposed the following text:
(‘Each of the Contracting States shall, within a reasonable time and in accordance with its constitution, accept legislative or other measures to give effect to the provisions of this Convention, if such measures are not already in effect.’)
Article 31 was adopted, with the substitution in the French text of the heading ‘Application’ for the heading ‘Mise en exécution de la Convention’.
At the Conference of Plenipotentiaries, the UK proposed to delete Article 31.
The UK representative said the UK amendment proposed the deletion of Article 31 on the ground that it constitutes an innovation in international treaties. Such a provision already figures in one international instrument which had not been generally adopted, and also in a draft instrument where the propriety of its inclusion had been disputed. It was an accepted principle of international law that once a Convention had been ratified, it immediately came into force in the territory of the Contracting State concerned. Advantage was taken of the interval which elapsed between signature and ratification to make any adjustments necessary in domestic legislation. The same applied to accession. In the present case, however, it was provided that the Contracting State should, within a reasonable time, and in accordance with its constitution, adopt legislative or other measures, it being therefore pre-supposed that ratification would take place before the appropriate domestic legislation had been introduced. It was further pre-supposed that such measures could be taken at the discretion of the State within a reasonable time. Such latitude constituted a departure from existing practice. Moreover, he considered the Article superfluous, since the Convention laid down provisions which, in the case of most countries, were already covered by domestic law. If any legal adjustments had to be made, they should not be left for an undetermined interval after ratification of the Convention. The Article should therefore be deleted, since it would not only create a bad precedent, but would also have harmful effects in practice.
The Belgian representative completely shared the views expressed by the UK representative.
The Israeli representative said the UK representative had started out from the assumption that there existed only one method of implementing international conventions, namely, the method used by such countries as the UK and Israel. In point of fact, that was not so. There were two other types of methods, namely: the automatic type used, for example, under the US Constitution, and the type where ratification or accession preceded the taking of appropriate domestic legislative measures.
He agreed that in the case of those countries which applied the procedure followed by the UK, as well as in the case of those which used the procedure of automatic application, Article 31 was unnecessary. But for other countries and there were many of them in South America and some in Europe – the inclusion of the Article was essential, the more so inasmuch as the Convention sought to legislate for the whole world.
It was true that the expression ‘within a reasonable time’ was somewhat vague, but if its legal effectiveness was small, it at least carried certain psychological weight.
Nor was he able to agree with the UK representative’s point that the provisions of the Convention already existed in all national legislations. The Swiss representative had realised a point pertinent to that issue in connection with Article 7, on personal status. But Article 7 was not the only one which raised that issue. He believed it would be very risky to ignore in the Convention, the practice applied by the third group of States which legislated after ratification.
The drafting of Article 31 was not satisfactory, and he would consequently suggest the insertion of the words ‘if and where necessary’ after the word ‘adopt’ in the second line. In that way, the first two types of countries would be covered, and the Article would be mandatory for the third type.
The UK representative was unable to agree with the Israeli representative. He accepted the definition of the first two types of procedure, but considered that it would be going too far to accept the third kind of procedure as recognized constitutional practice.
If allowance was made for such a practice, no Contracting State would know just what the position was with regard to the enforcement of a multi-lateral treaty. States would be in a position of inequality vis-a-vis one another. He conceded the difficulties of Federal States but those would be covered by the appropriate Federal State clause. The Convention must come into force on ratification.
There was no doubt that the current doctrine was that once the Convention had been ratified, the rights prescribed therein must be granted.
The Israeli representative agreed with the UK representative’s criticism of the third class of countries, but maintained that it was impossible to eliminate that category by deleting Article 31. Without that there would be no hold over such countries. It would be in the best interests of the Convention and of refugees to retain Article 31.
The Belgian representative considered that the Israeli representative’s very interesting statement dealt with a purely theoretical situation. So far as he knew, there existed no case where a country had ratified a convention without putting it into effect.
If the Israeli proposal was adopted together with Article 31 it would be impossible to know definitely whether the Convention was being effectively applied by the signatories, since the latter would always be able to invoke the excuse of the ‘reasonable delay’ required to bring their domestic legislation into harmony with the provisions of the Convention. The Belgian delegation, for one, preferred the practice so far followed but wanted to be certain that ratification would be followed by effective implementation.
The Swiss representative said the necessity of modifying national legislation would involve the Swiss Federal Government in certain difficulties, since Swiss legislation provided, in the event of the country’s accession to an international instrument, for the incorporation of that instrument in its national legislation. He therefore supported the UK proposal that the Article be deleted.
The Israeli representative said, on the point raised by the Belgian representative, that the term ‘ratification’ had a clear and generally accepted meaning. There was no implication that ratification must follow the adoption of appropriate domestic legislation. If the Belgian and UK conception that ratification must follow domestic legislative adjustment was reflected in Article 31, the difficulty would be solved, and he would have no further objection to raise.
The Netherlands representative stated that States which ratified a convention were obliged to apply it. If they could not do so because their national legislation was not adapted to the needs of the Convention, they were in default. The adoption of Article 31 would mean that defaulting States would be allowed to invoke the excuse of a reasonable delay in order to avoid applying the Convention in their territories. The Netherlands delegation therefore considered that it would be of greater service to substitute for Article 31 a clause which would make it obligatory for Contracting States to notify the Secretariat of the texts of the laws and regulations which they had adopted with a view to implementing the Convention. With such a clause there would be some check on the position.
The Netherlands submitted the following amendment:
‘Each of the Contracting States shall communicate to the Secretary General of the UN the laws and regulations which it may adopt to ensure the application of the Convention.’
In reply to a question by the Belgian representative, the Netherlands representative admitted that there was a certain amount of overlapping between his amendment and Article 30 as amended, but thought it would nevertheless be useful to retain his amendment as a separate Article. His amendment was in conformity with the other Articles of the Convention. Sub-paragraph 2(b) of Article 30 might be consequentially revised at the second reading; if it was to be retained as it stood, he would reconsider the matter.
The President thought that the obligation which the Netherlands amendment sought to impose on Contracting States should be supplemented by an obligation of the Secretary General to communicate to Contracting States information on developments connected with the Convention occurring in other Contracting States. He therefore submitted that the idea underlying the Netherlands amendment might logically be considered in connection with Article 40 (Notifications by the Secretary General).
The Netherlands representative had no objections to the President’s suggestion. With regard to the comment of the Belgian representative, he remarked that Article 30 specified that Contracting States should provide appropriate agencies of the UN with any data, statistics and information requested concerning the implementation of the Convention, whereas the Netherlands amendment provided that Contracting States should communicate the entire texts of the relevant laws and regulations.
He had originally introduced his amendment on the assumption that the UK proposal would be adopted, that the original text of Article 31 would thereby de deleted, and that his amendment would then take its place. His amendment should therefore be considered as a new Article.
Article 31 was rejected by 17 votes to 3, with 4 abstentions.
The Netherlands proposal for a new Article relating to measures of implementation was adopted by 7 votes to 3, with 13 abstentions.
Commentary
It is true that every State ratifying or acceding to the Convention is obliged to put it into effect. In practice, implementation measures are sometimes taken after ratification or accession. Under Article 35 the Contracting States undertake to provide the High Commissioner with information on the implementation of the Convention and of laws, regulations and decrees which are, or may thereafter be, in force relating to refugees. Under Article 36 the Contracting States are obliged to communicate to the Secretary General of the UN the laws and regulations which thy may adopt to ensure the application of the Convention. This provision is designed, as was said at the Conference, to keep a check on the fact that Contracting States effectively implement the Convention.
ARTICLE 37. RELATION TO PREVIOUS CONVENTIONS
Without prejudice to Article 28, paragraph 2 of this Convention, this Convention replaces, as between Parties to it, the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 and the Agreement of 15 October 1946.
Travaux Préparatoires
The Secretariat draft contained the following Article 31:
‘In the case of Parties to the Conventions of 28 October 1933 and 10 February 1938 the present Convention shall not apply to refugees covered by those Conventions.’
The Secretariat made the following Comment:
Provision must be made for this eventuality, since Parties to both the 1933 and 1938 Conventions and the present new Convention would be subject to different obligations with respect to the same persons by reason of the effects of these two categories of Conventions.
The solution embodied in the above draft Article is that described in the Introduction (see page 9, Solution B), that is, the co-existence of the former and the new Convention.
At the first session of the ad hoc Committee, the French representative said that, in the opinion of France, one of the primary purposes of the Convention was to clarify as far as possible a very confused situation. France considered that a fresh start should be made in connection with refugees and stateless persons in the spirit of the UN Declaration of Human Rights.
He was of the opinion that all conventions and agreements made between the two wars should be abrogated and replaced by the new Convention.
The Belgian representative pointed out that, since it began to examine the Draft Convention, the Committee had favoured the idea that the new Convention should exist alongside the previous Conventions, the new Convention to represent the lex generalis and the previous Conventions the lex speciali. Article 31 of the Secretariat’s draft was therefore no longer suitable.
The majority of States Parties to the Conventions of 1933 and 1938 would doubtless wish to ratify the new Convention. But as long as they had not denounced the previous Conventions they would be bound by those Conventions vis-à-vis the States which had ratified them but which had not become Parties to the new Convention. States Parties to the two classes of Conventions would therefore have two classes of obligations towards the same categories of refugees.
The US representative said if Article 31 was retained, it should be drafted in terms such as to make clear that for the High Contracting Parties to the new Convention the latter would replace the former Conventions, but that it did not affect former Conventions so far as Parties to those Conventions who did not become Parties to the new Convention were concerned.
In reply to a remark by the Belgian representative the US representative wondered whether the denunciation of a convention did not generally require some time. For example, Article 37 of the existing draft provided that the denunciation would only take effect one year after the Secretary General had been notified.
The Belgian representative pointed out that there was no difficulty about the time necessary for the denunciation to take effect; there was no major objection to the two Conventions being in force for a short time.
The UK representative was in favour of the new Convention replacing previous Conventions and wished to support the opinion of the Danish representative who considered it inadvisable for States to denounce the former Conventions. The Israeli representative thought it was the practice of the UN not to terminate a convention until all the Parties had become Parties to the new instrument which was to supersede it.
In his opinion, a similar solution might well be adopted for the Draft Convention under discussion. In that way, it would be unnecessary to denounce the former Conventions because they would be automatically superseded when all Contracting Parties had become Parties to the new Convention.
The Chairman proposed the following text:
The present Convention replaces the Arrangements of 5 July 1922,31 May 1924,12 May 1926, 30 June 1928 and 4 July 1936, and the Conventions of 28 October 1933 and 10 February 1938 and the Agreement of 15 October 1946, as between the Parties to the present Convention.
It does not affect the operation of those arrangements for Parties thereto who are not Parties to the present Convention.
The Israeli representative thought that the text he had proposed, namely Article 28 of the Convention on the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others was the most appropriate.
In his opinion, the second sentence of the text submitted by the Chairman was unnecessary because it followed naturally from the first sentence.
The Working Group proposed the following text:
1. Without prejudice to Article 23 paragraph 2 of this Convention, this Convention replaces the Arrangements of 5 July 1922, 31 May 1924, 12 May 1926, 30 June 1928 and 30 July 1935, and the Conventions of 28 October 1933 and 10 February 1938 and the Agreement of 15 October 1946, as between all Parties to the Convention.
2. As between two States Parties to a previous instrument mentioned in paragraph 1 of this Article, one of which is not Party to this Convention, the previous Agreement shall continue in force.
3. Each of the above-mentioned instruments shall be deemed to be terminated once all the States Parties thereto shall have become Parties to the present Convention.
It was so decided.
The US representative proposed the deletion of the word ‘and’ each time it appeared in the third line of paragraph 1.
Moreover, the word ‘Agreements’ in the last line of paragraph 2 should not be capitalized.
Article 32, as amended, was adopted.
The Committee made the following observations:
‘Each Party to the present Convention undertakes to adopt, in accordance with its Constitution, the legislative and other measures necessary to ensure the application of the Convention.
‘Paragraph 3 reproduces the last part of Article 28 of the Convention of 2 December 1949 for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.’
At the second session of the ad hoc Committee Article 32 was adopted unchanged.
At the Conference of Plenipotentiaries Belgium proposed an amendment reading:
‘Substitute the following for paragraph 2:
As between two States Parties to a previous instrument mentioned in paragraph 1 of this Article, if one of the States is not Party to this Convention, the previous agreement shall continue in force between the two States in respect of the subject with which it deals.
The Belgian representative said his amendment was purely textual. The existing wording of paragraph 2 seemed to imply that there could be only two States Parties to a previous instrument. His amendment corrected this drafting error. The UK representative felt that since the Belgian amendment did not affect the English text and merely aimed at improving the wording of the French text, it might be referred to the Style Committee.
The President added that the English text was also somewhat defective from the point of view of style. He asked the Belgian representative whether he would withdraw his amendment, on the understanding that the text of Article 32 would be referred to the Style Committee.
The Belgian representative withdrew his amendment on that understanding.
Article 32, subject to textual modifications by the Style Committee, was adopted unanimously.
The Style Committee proposed the text which is now in the Convention.
Article 37 was adopted by 24 votes to none.
Commentary
The introductory phrase means that, although the agreements concerned are superseded, the travel documents issued under them shall be continued to be recognized.
All pre-war treaties are superseded between Parties to them who have become Parties to the 1951 Convention. The Provisional Arrangement relating to the Status of Refugees coming from Germany of 4 July 1936731 is not mentioned as it was replaced by the Convention of 10 February 1938. The additional Protocol to the Provisional Arrangement of 4 July 1936 and the Convention of 10 February 1938 concerning the Status of Refugees from Germany of 14 September 1939732 which extended the application of those treaties to refugees from Austria must equally be regarded as superseded by the Convention between Parties thereto.
As regards the Arrangements, this goes without saying, as they were not legally binding. Although not mentioned in the text, the previous treaties remain in force between States not Parties to the 1951 Convention or if one State is a Party, the other not. Article 37 abrogates implicitly the denunciation provisions of the previous agreements as between Parties to the Convention: the previous agreements are superseded without formal denunciation, and without the waiting period prescribed for the denunciation to take effect.
The term ‘Résidant Régulièrement’ (‘Lawfully Staying’)
Travaux Préparatoires
At the second session of the ad hoc Committee the French representative pointed out that the Convention contained various Articles concerning particularly fundamental rights of refugees, in which the expression ‘résidant régulièrement’did not appear at all. In other Articles different expressions were used according to the situations contemplated. He pointed out that the Articles in which that expression was used implied, in nearly all their provisions, that the presence of the refugees was more or less permanent. The expression ‘se trouvant régulièrement’ which had been suggested instead, had already been used at least once in connection with the issue of identity papers. In that particular case, deliberate use had been made of a very wide term applicable to any refugee, whatever his origin or situation. It was therefore a term having a very broad meaning, which was unsuitable as substitute for the term ‘résidant régulièrement’.
He wished to remind the Committee that the expression was the result of a concession by the French delegation. At the first session, the ad hoc Committee had simultaneously examined the text prepared by the Secretariat and the text of the French proposal. In the Article in question, the term used in the French text had been ‘résidence habituelle’ which implied some considerable length of residence. As a concession, the French delegation had agreed to substitute the words ‘résidant régulièrement’ which were far less restrictive in meaning. He explained that this was not a purely formal oncession. In France, indeed, the word ‘résidant’ was understood to mean not only a privileged resident or ordinary resident, but also a temporary resident; the term ‘résidant’ which had those three connotations, was therefore very wide in meaning. Of course, the three meanings did not include certain cases very difficult to define, such as those refugees who might be in a certain territory for a very short period. But such cases would not, in fact, raise any problems since an examination of the various Articles in which the words ‘résidant régulièrement’ appeared would show that they all implied a certain settling down, and, consequently, a certain length of residence.
On considering Article 10 (right of association), for instance, it was difficult to imagine, in the most extreme cases, that a person who was in a territory only for a very short period would make use of the right of association. The other Articles using the phrase in question related to wage-earning employment and self-employment, and there was no need to say that they implied at least temporary residence. In that respect, he was prepared to make an exception in the case cited by the US representative, who had mentioned the possibility that a barrister might in exceptional circumstances come to plead before foreign courts. But he emphasized that in practice such cases were rare, at least in France. With regard to the Article on housing, it was obvious that where there was no residence, no housing problem could arise. Finally, the other Articles which also made use of that expression were those relating to labour legislation, public relief and freedom of movement.
Consequently, he considered that in all those Articles the only concrete cases that could arise were cases implying some degree of residence, if only temporary residence, and temporary residence would be covered by the present wording, at least as far as the French was concerned. He therefore strongly urged that the words ‘résidant régulièrement’ should be retained in the French text of the Convention.
The US representative thought that in the light of the exposition given by the French representative there might prove to be a distinction between the English and French texts. He would offer a suggestion for that distinction, but first, it would be necessary to settle the difference. It appeared that ‘résidant’ covered persons temporarily resident, except for a very short period, whereas according to English law he understood the word ‘résidant’ was to be retained in the French text, it would be necessary to find an English equivalent. Since he could think of no English equivalent, perhaps the French representative would be willing to eliminate the concept, and employ in the Articles with regard to which the problem arose terms meaning either ‘habitually resident’ or ‘lawfully in their territory’ – whichever was appropriate.
The French representative said that in the case of the Articles which referred both to a lawful resident and to the treatment of aliens generally, the problem of substance which might arise was not serious, since however residence was regarded, the refugees enjoyed the same treatment as accorded to aliens generally. On the other hand, grave and complicated problems might arise in connection with the Articles containing the most-favoured-nation clause, since it would be necessary to determine the force and scope of that clause. Consequently, he thought it advisable to stipulate that there was to be parallel application of the most-favoured-nation clause, but in respect of persons whose situation implied residence, if only of a temporary character.
The US representative thought the French representative was overlooking the existence of the phrase ‘in the same circumstances’, the effect of which was to provide that if an alien present in a country for a six week period was not to be granted a certain right, that right would not be granted to a refugee either, while if a certain right was to be granted to an alien in transit, the same right would be granted to a refugee. It was precisely in the case ofthose Articles which prescribed for refugees the same treatment as for aliens generally that it was necessary to apply a narrower term like ‘resident’.
The Chairman quoted Article 6 of the 1933 Convention, the corresponding Article of the 1938 Convention, Article 37 of the 1933 Convention, and Article 9 of the 1938 Convention to show that the term ‘résidant régulièrement’ had been considered equivalent to ‘regularly resident’. ‘Résidant régulièrement’ had clearly been thought to mean more than merely ‘present in a country’.
The US representative thought that the phrase ‘regularly resident’ was ambiguous and would either mean ‘lawfully resident’ or ‘habitually resident’. If it meant either, it certainly did not mean the same as ‘résidant régulièrement’. He could not accept the phrase ‘regularly resident’. He still felt that the phrase ‘in the same circumstances’ filled the need. He thought that the English ‘reside’ and the French ‘réside’ were perhaps exact equivalents, but felt that ‘lawfully resident’was not the same as ‘résidant régulièrement’ as was suggested by the French representative. The intention of the Committee had been, he thought, to include all refugees lawfully in a territory, even if they were not ‘resident’ in the English sense of ‘résidant’ in the French sense.
The Chairman felt that the essence of the problem was that a small part of the area covered by the English term was left uncovered by the French term. He hoped that in the light of the broad approach in an earlier Convention, the Committee might be able to decide whether it was necessary to leave the gap uncovered. If it was so decided, it would remain to find an English term corresponding to the French one.
The first Article in connection with which the problem arose was Article 10 in which the English text spoke of ‘refugees lawfully in their territory’ and the French text ‘tout réfugié qui réside régulièrement sur leur territoire’. Some members might say that the problem was academic and not practical, but suppose a musician was staying for one or two nights in a country where the musical trade unions were powerful and would not allow nonmembers to perform? Why should such a musician, if he was a refugee, not have the same opportunity as aliens in general of joining the trade union if necessary? Replying to the Chairman, the Belgian representative argued that a refugee need not necessarily be granted the right of association because he was lawfully in a given territory.
The representative of the IRO noted that in Switzerland, among other countries, an alien required a residential permit only after a stay of three months. He welcomed the French representative’s broad interpretation of ‘résidant régulièrement’, but felt it might equally be interpreted so as not to apply to a person who, having stayed for less than three months, was not yet in possession of a resident’s permit.
The French representative explained that the term would hardly apply the other way round, that is, it could not be argued that where there was no residence, the situation would be irregular.
The Israeli representative felt that the discrepancy between the English ‘lawfully resident’ and the French ‘résidant régulièrement’ was important only in the case of 3 or 4 Articles; if it was agreed that where the enjoyment by a refugee of a certain right was concerned, or the enjoyment of the same right by aliens in the same circumstances, all those Articles which provided for most-favoured-nations treatment could be excluded. It would of course be necessary in those cases to delete the words ‘lawfully resident’. In that way the field of disagreement would be narrowed down to 4 or 5 Articles.
The French representative said he was prepared as a compromise to accept the Israeli representative’s suggestion on the understanding, however, that his Government might have reservations to make on certain Articles. He agreed that the word ‘régulièrement’ should be kept in the Articles for which the Committee might decide to omit ‘résidant’.
The Chairman thought the French representative’s explanation of how the word ‘régulièrement’ was to be understood showed that it was exactly equivalent to the English ‘lawfully’.
The Israeli representative suggested that the Committee proceed to eliminate the source of friction in the 6 Articles, namely Articles 10, 12, 13, 14, 16 and 21, in which he had shown that it could be removed.
He therefore proposed that Article 10 be amended to read:
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 in the same circumstances.
The phrase ‘in the same circumstances’ means with the same time limit and other conditions of residence as the corresponding category of refugees.
The US representative thought the final words of the definition should read ‘as are required of other aliens for the enjoyment of the same privileges’.
It was so agreed.
The US representative said he could not accept ‘résidant régulièrement’ if it was to be translated by ‘lawfully resident’, which would not cover persons who were not legally resident in the English sense. It would not, for example, cover persons staying in the US on a visitor’s visa and perhaps it might not even cover persons who had worked for the UN for five years in Geneva. The word ‘residence’ in English, though not exactly equivalent to ‘domicile’ since it was possible to have more than one residence, had much the same flavour.
He did not understand the exact connotation of the French word ‘résidant’ but apparently it could be applied to persons who did not make their home in a certain place, but stayed there for a number of months. Such persons would apparently be ‘résidant régulièrement’, but they would not, in the US at least, be lawfully resident. To be lawfully resident a man must make his home there; it need not be his only home but it must be substantial home.
The US representative thought that the word ‘sojourn’ which was a neutral term, could be employed with the word ‘lawfully’.
With regard to Article 12 (wage-earning employment) he thought a case could be made out for requiring some residence qualification. He would not propose any form of words, but merely pointed out that the ILO’s Convention on Migration for Employment, in which Article 12 had been modelled, employed the words ‘lawfully resident’.
The UK representative thought it was impossible to make the two texts completely identical. The phrase ‘lawfully resident’in English was ambiguous, and he therefore suggested the words ‘lawfully resident (temporarily or otherwise)’. Perhaps the word ‘temporarily’ would cover rather more than what was meant in the French text, but the only other solution would be to include a page-long definition of residence.
The Israeli representative wondered whether the English-speaking representatives would not accept ‘regularly resident’, since those words had been employed in former Conventions as a translation of ‘résidant régulièrement’, and since he understood that in Canada, where both English and French were official languages, the two phrases were considered equivalent.
The US representative thought ‘regularly resident’ would involve all the difficulties of both ‘lawfully resident’ and ‘habitually resident’. He would prefer one or the other of those last two phrases.
The Israeli representative considered it preferable to leave the English version of Article 13 (self-employment) as it is and to omit the word ‘résidant’ from the French.
The French representative agreed. He suggested, however, that the word ‘lawfully’ be kept in the present Article.
The Committee decided to maintain the English text of Article 13 and to delete the word ‘résidant’ from the French text.
The Committee decided to maintain the English text of Articles 14 (liberal professions) and 16 (housing) and to delete the word ‘résidant’ from the French text.
The French representative said the position with regard to Article 18 (public relief) was rather more complex, since it was not a question of most-favoured-nations treatment or even of the treatment of aliens generally, but of the treatment of nationals. He asked whether, that being so, it was formally proposed to delete the word ‘résidant’.
The representative of the IRO thought the English text should be retained and the word ‘résidant’ deleted from the French version as, if it was retained, it might be interpreted by the authorities of the country applying the Convention to mean that residence qualification was required. Refugees, by reason of their refugee status, would not normally fulfil qualifications of local residence which were sometimes found in laws dealing with public assistance.
The French representative said that he would say frankly that if a country considered the concept of domicile – a very widespread notion in the laws of relief – as an absolutely essential condition, and did not provide any supplementary provision for persons not domiciled in their territory, the deletion of the word ‘résidant’ would not in any way change the problem. At the same time, whatever protection was to be given to refugees, in principle there must be no suggestion – and it was in the interests of the refugees themselves – that they should not receive more favourable treatment than nationals.
The US representative thought that countries would have provision in their regulations for public relief for nationals without residence; the same provisions would apply to refugees. Clearly, better treatment could not be required for refugees than was given to nationals. Nevertheless, however short a time a man had been in a country, if he were starving he would, or should, be given public relief or assistance. He considered, therefore, that the word ‘résidant’ should be deleted from the French text.
The French representative said that in view of certain comments, for example, those of the Austrian Government, he wondered whether deletion of the word ‘résidant’ might not give rise to an interpretation by which Contracting States would place the financial burden on small localities. The problem might arise in Switzerland, for instance. So as not to complicate the task, the word ‘résidant’ might be left, though he did not make it a matter of principle. He was thinking of the number of ratifications and reservations.
He thought there were two alternatives: either to say ‘résidant régulièrement’ and ‘lawfully resident’, or to say ‘lawfully’ in which case ‘résidant’ must be omitted. A number of reservations had been made by various Governments. The example already given where a State might invoke the Convention it had signed in order to shift onto municipalities expense which it should itself bear, was not entirely hypothetical. To keep the word ‘résidant’ would prove an adequate safeguard.
The Committee agreed to maintain the English text of Article 18 and to delete the word ‘résidant’ from the French text.
With reference to Article 19 (labour legislation and social security) the US representative pointed out that the Convention on Migration for Employment contained in the French version the words ‘qui se trouvent légalement’.
The French representative said it would be better to say ‘régulièrement’ since ‘légalement’ seemed too decidedly legal, whereas the regulations were of course issued by administrative authorities and would not be in the nature of laws. The Belgian representative thought that the advantages accorded in the text were too important for the idea of lawful residence to be discarded.
The representative of the ILO said his Organization had come up to the same difficulty as the Committee had experienced during the last few days, and the word ‘resident’ had been deleted for the same reasons. The practical formula ‘lawfully within’ had been used; ‘lawfully’ was understood to mean in conformity with the legal provisions enacted to bring the Convention into force.
The representative of the IRO did not think that the problem presented by the wording in Article 19 was serious as the rights referred to were applicable only to residents, and were granted under certain conditions, such as the payment of a certain number of contributions. It was the intention of the Committee to permit the refugees to receive those rights, provided they fulfilled the various other conditions required. Clearly they should enjoy them regardless of residence qualifications.
It was decided to delete the word ‘résidant’ in the French text and to maintain the English text without change. As regards Article 21 (freedom of movement), reference had been made to the problem that would be raised by a large influx of refugees, to whom temporary restrictions on freedom of movement would be applied for reasons of health. As the measures were of a special nature by reason of the persons they applied to, it might be thought that in that case, the disparity between the provisions of the Convention and the measures which would be taken might cause a difficulty.
There would be no reason to apply such measures to aliens generally and to other refugees. He asked whether the Article would limit the possibility of adopting such measures.
The Israeli representative said that the hypothetical case mentioned by the French representative would be covered by the second paragraph of Article 26 (refugees not lawfully admitted), not by Article 21.
The Committee agreed to delete the word ‘résidant’ in the French text of Article 21 and to maintain the English text unchanged.
The Committee also agreed to delete the word ‘résidant’ from the French text of Article 27 (expulsion of refugees lawfully admitted) and to maintain the English text unchanged.
Commentary
It results from the travaux préparatoirs that any refugee who, with the authorization of the authorities, is in the territory of a Contracting State otherwise than purely temporarily, is to be considered as ‘lawfully staying’ (‘résidant régulièrement’). Performing artists on a tournée in a country other than their country of residence may be regarded as being purely temporarily in the country.
Matters Not Included in the Convention
The Report of the ad hoc Committee on its first session contains the following passages:
‘The Draft Convention contains provisions on a number of subjects. The fact that the Draft Convention is silent on a subject means that in this matter the Committee believed that a special provision was not necessary and that Governments would be free to decide upon it at their discretion in accordance with international law.
‘The question of subjection of refugees to military service is an example of a matter regarding which the Draft Convention remains silent despite the fact that the Secretariat draft and the draft of the French Government offered precise provisions on the subject. The Committee felt that such a provision might be open to misinterpretation and that this problem is covered by general rules of international law and practice. On the other hand, it was not intended to suggest that Governments might not require military service of refugees subject to such law and practice.’
THE FINAL ACT
Travaux Préparatoires
At the Conference of Plenipotentiaries the UK representative said under the London Agreement of 1946 travel documents were issued to persons who had been placed under the protection, inter alia, of the inter-governmental Committee for Refugees and any intergovernmental agency called upon to succeed it. The successor organization was in fact the IRO. Since IRO’s work was due to come to an end shortly, certain categories of refugees might have difficulties in future with travel documents.
In those circumstances, he wondered whether the Conference would be prepared to include a recommendation in the Final Act to the effect that governments signatories to the London Agreement of 1946 should continue the issue and recognition of travel documents under that instrument until the present Convention came into force.
The Belgian representative wholeheartedly supported the UK representative’s suggestion. He desired, however, confirmation on one point; to his mind it was a question of recognition by States which were not Parties to the London Agreement of 1946. States Parties to that agreement would in fact remain bound by its provisions.
The UK and Belgium submitted draft recommendations for inclusion in the Final Act:
The UK recommendation read:
Considering that the issue and recognition of travel documents is necessary to facilitate the movement of refugees, and in particular their resettlement,
Urges Governments which are Parties to the Inter-Governmental Agreement on Refugee Travel Documents signed in London on 15 October 1946, or which recognize travel documents issued in accordance with the Agreement, to continue to issue or to recognize such travel documents, and to extend the issue of such documents to refugees as defined in Article 1 of the Present Convention or to recognize the travel documents so issued to such persons, until they shall have undertaken obligations under Article 23 of the present Convention.
The Belgian recommendation read:
The Conference,
Having Recognized that it might be useful and expedient, should there be any differences of opinion relating to the interpretation or application of the Convention which cannot be resolved by other means, to allow the United Nations High Commissioner for Refugees to approach the International Court of Justice directly rather than wait until a Contracting State takes the initiative of submitting the matter to it in application of the relevant Article of the Convention,
Expresses the Hope that the General Assembly of the United Nations will authorize the United Nations High Commissioner for Refugees, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice to give an advisory opinion on any legal question arising within the scope of his activities.
The Holy See submitted a recommendation:
I Considering that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened by a variety of measures relating either to admission to the receiving country, or to other circumstances connected with the refugee’s life,
The Conference
Recommends governments to take the necessary measures for the protection of the refugee’s family, especially with a view to:
1) ensuring that the unity of the refugee’s family is maintained, particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country;
2) extending the rights granted to the refugee to cover all the members of his family; and
3) providing special protection for refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.
II Considering that in the moral, legal and material spheres, refugees need the help of suitable welfare services, especially that of appropriate non-governmental organizations;
The Conference
Recommends governments and inter-governmental bodies to facilitate, encourage and sustain the efforts of properly qualified organizations.
III Considering that at the present time a great many refugees leave their country of origin for political reasons and are entitled to special protection on account of their special position,
The Conference
Recommends governments in the countries of first refuge to grant the right of asylum within their territories with the utmost liberality, and
Recommends all governments to undertake jointly with the countries of first reception to bear the costs arising out of the right of asylum in respect of refugees whose lives are in danger.
The representative of the Holy See said those recommendations were naturally not of a contractual nature, but merely took the form of directives to Contracting and other States with a view to ensuring that the maximum possible assistance was extended to refugees. Assistance to refugees automatically implied assistance to their families, but, although that proposition was an obvious one, it would be wise to include specific reference to the families.
Turning to the second group of recommendations, he remarked that the part that non-governmental organizations had played and would continue to play, particularly in cases of emergency involving a large number of refugees, was fully recognized.
As to the third group of recommendations, he observed that the right of asylum was one of the oldest of human rights. The representative of the German Federal Republic supported the recommendations submitted by the representative of the Holy See. The principle of the right of asylum was embodied in its Constitution.
The US representative said that the US delegation wholeheartedly supported the first two groups of recommendations. He did not think it necessary to stress the US Government’s difficulties, which were well-known, in accepting the recommendations in the third group, and as he could not hold out hope that it could assume further financial commitments after the termination of the IRO, as was suggested in the last part of section III of the recommendations, the US delegation would be obliged to abstain from voting on that section.
The Israeli representative proposed that, in order to reconcile item 2) of the first group of recommendations with the comments of the ad hoc Committee,738 it should be amended to read:
‘making sure that all members of the refugee’s family are accorded the rights granted to refugees’.
The Belgian representative believed the recommendations submitted by the representative of the Holy See would command general support. He felt it would be desirable, however, to insert the word ‘still’ after the word ‘refugees’ in the first line of section III, in order to bring out the fact that the situation in question already existed and was a continuing one.
The representative of the Holy See accepted both the Israeli and Belgian amendments.
The UK representative shared the view that the recommendations submitted by the delegation of the Holy See were both useful and desirable. The UK delegation, however, found itself in the same difficulty as the US delegation with regard to the third group of recommendations. While recognizing the validity of the expression therein of the ideal principle that the financial burden and heavy responsibilities of countries of first refuge should be equally shared by all governments, he felt that it was essential that the Conference should bear in mind the difficulties which, under present conditions, governments experienced in committing themselves to such an undertaking as that contemplated in the last paragraph. It would, indeed, be undesirable to make such a recommendation if governments were not in a position to implement it.
He doubted whether the wording proposed by the Israeli representative’s suggestion for paragraph 2 of the first group of recommendations would actually achieve the desired objections. Drafted in such terms, the paragraph might well implicitly undermine the more categorical view of the ad hoc Committee that governments were under an obligation to take such action in respect of the refugee’s family. In his opinion, it would be regrettable if governments were to take the action therein proposed only when they considered that circumstances enabled them to do so. In fact, he doubted whether it would not be best to delete it.
The Italian representative wholeheartedly supported the recommendations of the delegation of the Holy See.
The representative of the Holy See said that in order to give general satisfaction, he would suggest that the first group of recommendations should be revised to read:
The Conference
Considering that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened, and
Noting with satisfaction that, according to the official comments of the ad hoc Committee, the rights granted to the refugee are extended to the members of his family,
Recommends governments to take the necessary measures for the protection of the refugee’s family, especially with a view to:
1) ensuring that the unity of the refugee’s family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country;
2) providing special protection to refugees who are minor, in particular unaccompanied children and girls, with special reference to guardianship and adoption.
At the suggestion of the Belgian representative it was agreed to insert in the text proposed by the representative of the Holy See the full name of the ad hoc Committee.
The UK representative accepted the revised text proposed by the representative of the Holy See for section 1 of the recommendations. At the same time, in order to make it quite clear that the intention was not to recommend that special laws and regulations should be enacted for the protection of refugees who were minors, but rather that they should be given the full protection afforded by existing legislation, he considered that the last paragraph should begin ‘the protection of refugees who are minors…’ (‘assurer la protection des réfugiés mineurs…’)
The representative of the Holy See accepted the UK representative’s amendment.
Section I as amended was adopted unanimously.
Section II was adopted unanimously.
The US representative wondered whether the representative of the Holy See would agree considering the revision of the third group of recommendations somewhat along the lines of paragraph 4 of the Preamble to the Draft Convention, and thus make it possible for the Conference as a whole to accept it.
The President, referring to section III of the draft recommendations submitted by the representative of the Holy See, said that he had understood that, at the suggestion of the Belgian representative, it had been agreed to insert the word ‘still’ before ‘leave’ in line 1.
The representative of the Holy See suggested that the following text be substituted for section III:
The Conference
‘Considering that many refugees still leave their country of origin for reasons of persecution and are entitled to special protection on account of their position,
Recommends that Governments continue to receive refugees in their territories and that they act in concert in a true spirit of international cooperation in order that these refugees may find asylum and the possibility of resettlement.
The French representative doubted whether it was correct to speak of ‘many refugees leaving their country of origin’; the right term would be ‘a certain number’ of refugees. He also wondered whether it was correct to speak (in the first paragraph) of ‘refugees leaving their country of origin’; it would be more appropriate to use the word ‘persons’, since, at the time of leaving their country of origin, they would not yet be refugees.
The representative of the Holy See agreed that the word ‘persons’ should be substituted for the word ‘refugees’ in the first line of this revised recommendation.
The revised draft recommendation submitted by the representative of the Holy See was adopted, as amended, by 23 votes to none.
The UK subsequently submitted a further recommendation:
Expresses the hope that this Convention will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons present in their territory as refugees and who would not be covered by the terms of paragraph A of Article 1 the treatment for which this Convention provides.
The UK representative explained that he had submitted the draft recommendation in order to cover the contents of former paragraph F of Article 1. He had taken the wording from paragraph 7 of the Preamble to the original text of the draft Convention, a paragraph which, he understood, had first been drafted by the French delegation.
