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Published online by Cambridge University Press: 21 May 2009
There are refugees and stateless persons. Some stateless persons are refugees and some refugees are stateless. They all lack proper protection. Often, stateless persons can be considered as refugees, as they might have “a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and are unwilling or unable to avail themselves of the protection of … the country of habitual residence”. Refugees who are not stateless are those who for the above mentioned reasons are unable or unwilling to avail themselves of the protection of the country of their nationality. A difference is sometimes made between de jure and de facto stateless persons. It is better to speak about de jure and de facto unprotected persons. Generally, refugees are de facto unprotected and stateless persons are de jure unprotected. It would moreover seem more appropriate to concentrate on the protection aspect, as nationality can be related to various forms of protection. In this respect the difference between “unable” and “unwilling” should be stressed: stateless persons are normally unable to invoke any protection, while asylum-seekers with a nationality are normally unwilling to avail themselves of the protection of their country of nationality. It is taken for granted that the relationship between a country and its citizens involves ‘protection’ in whatever form that may be.
1. Art. 1.A.2 of the Convention relating to the Status of Refugees (28 July 1951).
2. See Weis, P. in 30 British Yearbook of International Law 1953 p. 480Google Scholar and in the 11 International and Comparative Law Quarterly 10 1962 p. 1086Google Scholar in an article called: “The U.N. Convention on the Reduction of Statelessness, 1961”. Grahl-Madsen, A., in The Status of Refugees in International Law (Leyden 1966) pp. 99–100Google Scholar, differentiates in this respect between the practical and the analytical ‘planes’, as well as the international and municipal ones.
3. GA Res. 31/36 dated 30 11 1976.Google Scholar
4. We will from now on refer to the relevant Conventions and Protocols as follows: 1951 Convention: Convention Relating to the Status of Refugees, 28 July 1951; 1954 Convention: Convention Relating to the Status of Stateless Persons, 28 September 1954; 1961 Convention: Convention on the Reduction of Statelessness, 30 August 1961; 1967 Protocol: Protocol Relating to the Status of Refugees 31 January 1967.
The 1951 Convention (published in 189 UNTS 137) entered into force on 22 April 1954; the 1954 Convention (360 UNTS 117) on 6 June I960; the 1961 Convention (UN Doc.A/ CONF.9/15) on 13 December 1975; and the 1967 Protocol (606 UNTS 267) on 4 October 1967.
5. The Statute has been published as an Annex to GA Res. 428(V), 14 12 1950.Google Scholar
6. In the Statute it has been stated that “The High Commissioner shall follow policy directives given him by the General Assembly or the Economic and Social Council”. (Art. 3).
As far as the expansion, extension and vocabulary is concerned the following survey might be useful:
In 1957 the General Assembly authorized UNHCR “to use his good offices”, GA Res. 1167 (XII), also GA Res. 1388 (XIV) 1959.Google Scholar Later on it was stated (inter alia): GA Res. 1499 (XV) 1960Google Scholar “… refugees who do not come within the competence of the United Nations…”; GA Res. 1671 (XVI) 1961Google Scholar “… to lend his good offices.…”; GA Res. 1673 (XVI) 1961Google Scholar “…to extend his good offices …”; ECOSOC 1655 (LII) 1972 “… refugees… and other displaced persons.
…”; GA Res. 3143 (XXVIII) 1973Google Scholar “… refugees within (the) mandate as well as… those to whom he extends his good offices or is called upon to assist in accordance with relevant resolutions of the General Assembly; ECOSOC 1877 (LVII) 1974 “… returnees and displaced persons …”; GA Res. 3271 (XXIX) 1974Google Scholar “… special humanitarian tasks…”; GA Res. 3455 (XXX) 1975Google Scholar “… (humanitarian) assistance to … displaced persons …”; ECOSOC 20 (LXI) 1976 “… essential humanitarian tasks undertaken by (the) office in the context of man-made disasters, in addition to its original functions”; GA Res. 32/67 (1977)Google Scholar “… requests the High Commissioner to continue to provide humanitarian assistance to refugees and displaced persons of concern to his Office …”.
7. E.g., GA Res. 3143 (XXVIII) 1973.Google Scholar (Emphasis added).
8. Art. 1.1 of the 1954 Convention. For comments on this Convention, see Robinson, N., Convention relating to the status of stateless persons, its history and interpretation (New York 1955).Google Scholar Also Weis, P., “the Convention relating to the status of stateless persons” 10 ICLQ 1961CrossRefGoogle Scholar
9. Cf., A Study of Statelessness, Lake Success, August 1949Google Scholar, New York (E/1112 1.2.49 and E/1112 Add. 1. 19.5.49). Earlier (1945) e.g., Vishniak had already paid ample attention to the differences between stateless persons and refugees: see Vishniak, M., The legal status of stateless persons (New York 1945) pp. 7–10.Google Scholar
10. This is the case with regard to: general obligations, non-discrimination, religion, rights granted apart from the Convention concerned, exemption from reciprocity, exemption from exceptional measures, provisional measures, continuity of residence, seamen, personal status, movable and immovable property, artistic rights and industrial property, right of assocation, access to courts, wage-earning employment, self-employment, liberal professions, rationing, housing, public education, public relief, labour legislation and social security, administrative assistance, freedom of movement, identity papers, fiscal charges, transfer of assets, expulsion and naturalization.
Some differences of minor importance are to be found in Arts. 15 and 17, while Arts. 17.2, 19.2, 25.1 and 28.2 of the 1951 Convention have been deleted either in part or in whole in the 1954 Convention. This is also true for Art. 31 of the 1951 Convention which deals with refugees illegally residing in the country of refuge. This would mean that penalties could be imposed on stateless persons on account of their illegal entry or presence. With regard to the non-refoulement principle (Art. 33 of the 1951 Convention), it is worthwhile quoting the Final Act of the 1954 Conference: “the Conference, Being of the opinion that Article 33 of the Convention Relating to the Status of Refugees of 1951 is an expression of the generally accepted principle that no state should expel or return a person in any manner whatsoever to the frontiers of territories where life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion, Has not found it necessary to include in the Convention relating to the status of stateless persons an article equivalent to Article 33 of the Convention Relating to the status of stateless persons an article equivalent to Article 33 of the Convention Relating to the Status of Refugees of 1951.”
It should be emphasized that refugees for whom the non-refoulement principle should be re-stated, are not subject of the 1954 Convention. It is to be recalled that it is stated in the preamble that: “The High Contracting Parties … considering that only those stateless persons who are also refugees are covered by the Convention relating to the status of refugees of 28 July 1951 and that there are many stateless persons who are not covered by that Convention”, (for whom consequently the 1954 Convention has been agreed). Compare also Scerni, M., “Sulla espulsione dal territorio dello stato”, in Scritti di Diritto Internazionale in onore di Tomaso Perassi, vol. 2 (Milano 1957) pp. 263–277.Google Scholar
However, the above quoted statement in the Final Act, to the effect that the non-refoulement principle is a generally accepted principle is of some importance for those states (and refugees in those states) who are parties to the 1954 Convention, and not to the 1951 Convention or 1967 Protocol. This is true of the following countries: Barbados, Korea, (Republic of), Trinidad and Tobago (situation as at 31 August 1978).
It is to be noted that it is the opinion of the writer that the non-refoulement principle might be regarded as jus cogens. See in this respect the author's Deserteurs, dienstweigeraars en asielrecht (Assen 1976).Google Scholar
11. 1954 Convention, Schedule para. 13.
12. P. Weis, 1961, op.cit. (n.8).
13. In the 1951 Convention a fourth standard of treatment had been included: the most favoured nation treatment, i.e., “the most favourable treatment accorded to nationals of a foreign country”, e.g., in Art. 17.1 1951 Convention.
14. Half of them Western-European. Others include: Argentina, Barbados, Botswana, Costa Rica, Ecuador, Fiji, Guinea, Israel, Lesotho, Liberia, Republic of Korea, Trinidad and Tobago, Tunisia, Uganda, Yugoslavia and Zambia. (Situation as at March 1978). Canada and Austria have acceded to the 1961 Convention, but not to the 1954 Convention.
15. On these efforts, see for example,(1) Seckler-Hudson, C., Statelessness, with special reference to the United States, (Washington D.C. 1934).Google Scholar (2) François, J.P.A., “Le probleme des Apatrides”, (53) Recueil des Cours (de l'Academie de la Have) 1935 – III pp. 283–376.Google Scholar
(3) Lipovano, I.G., L'Apatridie (thèse) (Paris 1935).Google Scholar (4) de Groot, L., Het Personeel Statuut van Apatriden en Bipatriden ('s-Gravenhage 1935).Google Scholar (5) Lessing, J., La obligacion internacional de admision de apatridas (Buenos Aires 1944).Google Scholar
16. Some had stated earlier that statelessness and its reduction were matters which fell within the domestic competence of states, and with which the framework of International Law was not fit to deal, cited by Weis, P. in, Nationality and Statelessness in International Law (London 1956) p. 254.Google Scholar On the 1959 Conference Peiser, G., “La Conference de Geneve sur l'Apatridie”, in 5 Annuaire François de Droit International 1959 pp. 504–522.CrossRefGoogle Scholar
17. The following States attended this Conference convened in New York in August 1961 under the presidency of Mr. W. Riphagen: Argentina, Austria, Belgium, Brazil, Canada, Ceylon, China, Denmark, Dominican Republic, Germany Federal Republic of, France, Holy See, India, Indonesia, Israel, Italy, Japan, The Netherlands, Norway, Pakistan, Peru, Spain, Sweden, Switzerland, Turkey, United Arab Republic, United Kingdom, United States, Yugoslavia. Few third world countries attended and apart from Yugoslavia, none from Eastern Europe.
18. No one of these six countries had made a reservation in respect of Art. 11, which would have been possible in accordance with Art. 17 of the 1961 Convention.
19. Situation as of September 1978. Israel, The Netherlands, and later the Dominican Republic and France, have signed the 1961 Convention, but have not yet ratified this Convention. The Convention entered into force on 13 December 1975, in accordance with Art. 18.1 of the Convention.
20. In favour: most Western and Latin American countries, as well as some African countries, Japan and Laos. Against: The Communist block and Saudi Arabia. Abstaining: All others, including Brazil, Cyprus, Finland, France, Portugal and Yugoslavia.
The relevant paragraph reads: “The General Assembly … Requests the Office of United Nations High Commissioner for Refugees provisionally to undertake the functions foreseen under the Convention … in accordance with its article 11 …”
21. The Draft Resolution submitted by the Third Committee was adopted by the General Assembly on 10 12 1974Google Scholar (3274-XXIX) by 44 votes to 11 with 66 abstentions.
22. The report concerned is an addendum to the report of the UNHCR (GA OR thirty-first session, supplement No. 12B (A/31/12/add.2).
23. GA Res. 31/36, dated 30 November 1976, adopted by 117 votes to 9, with 8 abstentions.
24. Statute, Art. 11: “The High Commissioner shall be entitled to present his views before the General Assembly, the Economic and Social Council and their subsidiary bodies”. Moreover, the High Commissioner shall report annually to the General Assembly through the Economic and Social Council and his report shall be considered as a separate item on the agenda of the General Assembly”.
25. Of course, in accordance with Art. 10(c) of the Statute, which reads: “The High Commissioner shall not appeal to governments for funds or make a general appeal, without the prior approval of the General Assembly”.
26. GA 29th Session, Third Committee (provisional) A/C.3/SR, 2101, 2102 and 2103; GAOR 29th Session A/9691 and A/9896. A/C.3/L. 2137 and A/C.3/L 2140; GAOR 31st Session Suppl. No. 12B (A/31/12/Add. 2).
27. Mutharika, A.P., The regulation of statelessness under international and national law (Dobbs/Ferry, New York 1977) pp. 167, 168.Google Scholar
28. It has been stated in Res. 428 (V) “the General Assembly … calls upon governments to co-operate with the UNHCR … especially by … entering into special agreements with the High Commissioner for the execution of measures calculated to improve the situation of refugees and to reduce the number requiring protection …” In fact most agreements between UNHCR and governments are very general ones, mainly focussing on the 1946 Convention on the Privileges and Immunities of the UN and consequently the status of the staff. These agreements would not have to be amended, albeit true than an exchange of letters might prove to necessary clarifying the status of a UNHCR Branch Office vis-à-vis non-refugee stateless persons.
29. Cf., the Statute, Arts. 8 and 9 in particular.
