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The International Protection of Refugees

Published online by Cambridge University Press:  30 March 2017

Paul Weis
Paul Weis*
Affiliation:
Office of the United Nations High Commissioner for Refugees
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Extract

The rôle of the individual in international law has for some time past been the subject of searching analysis by distinguished theorists. Recently the traditional doctrine that individuals are its objects only has been forcefully attacked by Professor Lauterpacht. It is intended to describe in this article certain developments on the international plane which affect the position of a specific group of individuals, the refugees.

Type
Research Article
Information
American Journal of International Law , Volume 48 , Issue 2 , April 1954 , pp. 193 - 221
Copyright
Copyright © American Society of International Law 1954

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References

1 The author acknowledges the assistance given by Mr. L. Michael Hacking, former Chief Historian, International Refugee Organization, in the preparation of this article, which was originally completed in 1951 and later revised in the light of subsequent events. The views expressed herein are those of the author, and do not necessarily reflect the opinion of any organization with which he is connected.

2 Lauterpacht, International Law and Human Rights, Part One, Sec. I.

3 Oppenheim, International Law (6th ed., by Lauterpacht), Vol. I, p. 611.

4 Schwarzenberger, International Law, Vol. I, p. 171.

5 The 1951 Convention Relating to the Status of Refugees (see below) provides explicitly that refugees shall not have to fulfil requirements which, by their nature, refugees are incapable of fulfilling (Art. 6). It also seeks to ensure that refugees are not prejudiced by their lack of identity documents: “The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.” (Art. 27.)

6 Jennings, “Some International Law Aspects of the Refugee Question,” in British Year Book of International Law, Vol. XX (1939), p. 106 Google Scholar.

7 U.N. Document A/Conf.2/108.

8 The convention, up to Feb. 1, 1954, has been signed by the following states: Austria, Belgium, Brazil, Colombia, Denmark, Prance, German Federal Republic, Greece, Holy See, Israel, Italy, Liechtenstein, Luxembourg, Netherlands, Norway, Sweden, Switzerland, Turkey, United Kingdom, and Yugoslavia. It has been ratified by Belgium, Denmark, German Federal Bepublic, Luxembourg and Norway. Australia deposited its instrument of accession on Jan. 22, 1954, being the sixth state to become a party to the convention, thereby bringing it into force on April 22, 1954.

8a Resolution 428 (V), Dec. 14, 1950 (of p. 211).

8b Asylum Ordinance of Jan. 6, 1953, BGB1. I, p. 3.

9 U.N. Doe. E/600, p. 16.

10 Lauterpacht, op. cit., p. 412; id. in British Year Book of International Law, Vol. XXV (1948), p. 373.

11 League of Nations Treaty Series, Vol. CLIX, No. 3663. This convention has been signed by 9 states, and ratified by 8 states, i.e., Belgium, Bulgaria, Czechoslovakia, Denmark, France, Italy, Norway, and U.K., some of which made important reservations.

12 League of Nations Treaty Series, Vol. CXCII, No. 4461, extended to refugees from Austria by an additional protocol of Sept. 14, 1939. This convention has been signed by 8 states, and ratified by 3, Belgium, France and U.K., with certain reservations.

13 Art. 33 is, according to Art. 42, excluded from reservations. The Convention Relating to the Status of Refugees allows, as distinct from other conventions concluded under the auspices of the United Nations, for unilateral reservations, but excludes certain provisions from reservations; cf. “United Nations Practice with Respect to Reservations to Multipartite Instruments,” by Yuen-li Liang, this Journal, Vol. 44 (1950), p. 117.

14 ILO Convention 97, Art. 8.

15 ILO Recommendation No. 86, Art. 25.

16 Resolution 8 (I).

17 This refers to the surrender of war criminals, quislings and traitors.

18 See Borchard, Diplomatic Protection of Citizens Abroad (1922), p. 70.

19 IRO Doc. PC/LEG/8.

20 Report of the Ad Hoc Committee on Statelessness and Related Problems (U.N. Doc. E/1618), p. 42.

21 For instance, Art. 11 of the French Civil Code (Napoleonic Code): “A foreigner shall enjoy in France the same civil rights as those granted to French nationals by the treaties of the nation to which such foreigner belongs.”

22 Cf. Reuth-Nieolussi, “Displaced Persons and International Law,” Hague Academy of International Law, Recueil des Cours, 1948 (II), p. 5 Google Scholar.

23 Cf. Exposé des Motifs of the French Government in proposing the ratification of the Convention of October 28, 1933, Documents parlementaires des Chambres, Annexe No. 6988, Session 17 March 1936, p. 627; also Rubinstein, “The Refugee Problem,” in International Affairs, Vol. XV (1936), p. 716.

24 Decree No. 45-766 of March 15, 1945 (J.O. No. 94/1945).

25 IRO Doc. PC/LEG/9, Art. 6.

26 IRO Doc. IRO/LEG/GOV/14, Art. VII.

27 Law No. 23 of March 17, 1950, High Commission O.J. No. 13.

28 P.C.I.J., No. A/7, p. 79.

29 Cf. Kempner, “The Enemy Alien Problem in the Present War,” this Journal, Vol. 34 (1940), p. 443 Google Scholar.

30 See, inter alia, Kempner, loc. cit.; Löwenfeld, “Status of Stateless Persons,” Grotius Society Transactions, Vol. 27 (1946), p. 59 Google Scholar; Weis, P., The Undermining of the Nationality Concept by German Law (London, 1943)Google Scholar.

31 In Great Britain, stateless persons who had enemy nationality at birth are deemed to be enemy aliens, according to the principle of retention of nationality contained in Art. 21 (1) of the Aliens Order 1920, S.E. & O. 448, as amended 1923, S.E. & O. 326.

32 Austria, Belgium, Chile, Czechoslovakia, Denmark, Egypt, France, Guatemala, Holy See, India, Israel, Italy, Japan, Jordan, Lebanon, Liechtenstein, Luxembourg, Mexico, Monaco, Nicaragua, Norway, Pakistan, Philippines, El Salvador, San Marino, Spain, Sweden, Switzerland, Syria, Union of South Africa, Vietnam, and Yugoslavia.

33 U.N. Doc. E/AC.32/L.3.

34 U.N. Doc. E/AC.32/2.

35 U.N. Doc. E/1618, p. 36.

36 League of Nations Treaty Series, Vol. XIII, No. 355.

37 League of Nations Doc. CL.72 (a). 1924.

38 League of Nations Treaty Series, Vol. LXXXIX, No. 2004.

39 Ibid., No. 2006.

40 Annex to League of Nations Document CL.120. 1935.XII.

41 U.N. Treaty Series, Vol. 11, No. 150.

41a According to Art. 37, the convention replaces, without prejudice to Art. 28, par. 2, as between parties to it, the Arrangements of July 5, 1942, May 31, 1924, May 12, 1926, June 30, 1928, and July 30, 1935, the Conventions of Oct. 28, 1933, and Feb. 10, 1938, the Protocol of Sept. 14, 1939, and the Agreement of Oct. 15, 1946. According to Art. 28, par. 2, “Travel documents issued to refugees under previous international agreements by parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.”

42 Cf. on this subject Nathan-Chapotot, La qualification internationale des Réfugiés et Personnes Déplacées dans le cadre des Nations Unies (Paris, 1949)Google Scholar.

43 Annex 224 to Minutes of 13th Session of the Council of the League of Nations, Geneva, June 17–28, 1921.

44 These groups which are covered by prewar international instruments are technically called “statutory refugees.”

45 Resolution 62 (I), Dec. 15, 1946.

46 Art. 2, Sec. 1 of the constitution of the International Refugee Organization.

47 Resolution 319 (A) (IV), Dee. 3, 1949, of the United Nations General Assembly.

47a Resolution 727 (VIII), Oct. 23, 1953, of the U.N. General Assembly.

48 Statute of the Office of the United Nations High Commissioner for Refugees (Resolution 428 (V), Dec. 14, 1950, U.N. General Assembly), Ch. II, Arts. 6 and 7.

49 See supra, p. 202.

49a Resolution 428 (V) B, Dec. 14, 1950.

50 Resolution No. 75 of May, 1948, IEO Doe. PEEP/222/Rev.1.

51 U.N. Doe. A/Conf.1/9.

52 Ch. II, par. 11.

53 Ibid., par. 12.

54 See supra, p. 203.

55 League of Nations Treaty Series, Vol. LXXXIX, No. 2005.

56 See supra, p. 198.

57 ILO Recommendation No. 86.

58 Conf. Doc. C.D.G./MIX/SC.1/GR.25.

59 Cf. Borehard, op. cit., and Dunn, The Protection of Nationals (1932).

60 Cf. dicta in Calvin's case (1608), 7 Co.Rep.1.

61 See U.N. Doc. A/C.3/527, p. 10.

62 See Borchard, op. cit., p. 18. For a different view, see Lauterpacht, International Law and Human Eights (1950), p. 27.

63 Oppenheim, op. cit., Vol. I, p. 626.

64 E.g., the German (Weimar) Constitution of Aug. 11, 1919, Art. 112, par. 2.

65 Cf. numerous decisions, lately the decision of the French Conseil d'Etat in re Corbier, Ann. Digest 1943/45, Case No. 51. For a particularly well-reasoned decision, cf. Swiss Federal Court in Gschwind v. Swiss Confederation, 58 II/R.O. 463 et seq.; also P.C.I.J., No. A/5, p. 12.

66 See Lauterpacht, op. cit., p. 347.

67 See Borchard, op. cit., p. 352, et passim.

68 In the ease of the U.N. specialized agencies or the Office of the UNHCR, which forms part of the U.N. Secretariat, there is, however, the possibility of asking, with the authorization of the U.N. General Assembly, the International Court of Justice for an advisory opinion. (Art. 96, par. 2 of the U.N. Charter.)

69 Cf., e.g., the French delegate, M. Rochefort, at the 4th Session of the General Assembly, Official Records, A/SB/264, p. 24.

70 On the binding force of a recommendation of the U.N. General Assembly, cf. Sloan in British Year Book of International Law, Vol. XXIV (1947), p. 1.

71 According to Art. 4, par. 9, of the IRO constitution, “A member of the Organization undertakes to afford its general support to the work of the Organization.” The support given by member governments to the organization for the exercise of its functions of protection in non-member states has greatly assisted the organization in the effective discharge of its task.

72 See supra, pp. 211–215.

73 See preamble to the IRO constitution.