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“alien generally”. The same must be true of “illegal” stateless persons: if an alien illegally in a country enjoys certain rights, the same rights must be accorded to a stateless person. Paragraph 1 deals with “stateless persons”, i.e., with persons enjoying the status accorded to a group of aliens under the Convention. To enjoy the status a determination must be made. If the stateless person is in a country where he is to enjoy the rights granted under Article 7 (1), no difficulties will arise; the authorities know who is and who is not a “stateless person”. If the case involves a person not residing in the country concerned, the question will be how to establish his status. The Contracting States, as we have seen, will in practice have to decide by themselves (except for the rights of other states to follow up the implementation of the Convention) whether the person concerned meets the requirements of Article 1, but that, except where serious grounds exist to challenge this determination, it must also be recognized by other Contracting States. 68 4. Paragraph 2 of Article 7 of the Refugee Convention underwent rather considerable changes in the process of framing the Convention. At first the Ad Hoc Committee adopted a text similar to the one which was used in the pre-Second World War arrangements. 69 This version was changed in the second session because it was the “consensus of the Committee that the requirement of reciprocity in the original text should be revised because it was open to different interpretations in different countries”. 70 The conference again changed the text. Paragraph 2 deals with an important element in the legal status of stateless persons. 71 As stated above, aliens enjoy only the most elementary rights (protection of person and property) on the basis of accepted international rules. In all other instances every state is free to treat them as it pleases. Generally, a state is inclined to grant aliens broader rights if its own citizens will be treated in the same way. This is the meaning of “reciprocity” - “I treat your citizens as you treat mine”. “Exemption from reciprocity” means that a person is to be granted rights which ordinarily are accorded on the basis of reciprocity, without requiring reciprocity. The justification for applying the exemption from reciprocity to stateless persons lies in the fact that they do not enjoy the protection of a foreign country. Consequently, they could not qualify under the rule of reciprocity. According to the aforementioned Study of the Secretariat, present-day practice distinguishes three kinds of reciprocity: (a) de facto, (b) diplomatic, and (c) contractual. The first is established on the basis of a law granting certain rights to foreigners in general provided the home state of the foreigner does the same in regard to the citizens of the state enacting the law. 72 The second is also based on law but provides that a foreigner shall enjoy in country A the same rights as granted to nationals of A by the nation to which the foreigner belongs, 73 and the third refers to rights specified in particular conventions among states. While the pre-Second World War conventions on refugees spoke of “reciprocity” without reference to its kind, the Ad Hoc Committee’s drafts treated of “reciprocity” accorded to aliens generally, whether by statute or by treaty arrangements with other countries. 74 This was obvious from the statement of the Ad Hoc Committee that “where .... aliens generally enjoy rights whether by statute or by treaty arrangements with 68 See the comments to Article 1 above. 69 Article 14 of the 1933 and Article 17 of the 1938 Conventions. See also para. 4 of the 1928 Arrangement. 70 E/1850, para 22. 71 It must be pointed out that in some countries (United States, Great Britain) the problem of reciprocity does not arise because aliens are generally granted all (non-political) rights (E/AC.32/SR.34. pp 14, 15). 72 Well-known cases relate to compensation for war damages, the right to be exempt from cautio judicati solvi. 73 A Study of Statelessness by the United Nations Secretariat, August, 1949, pp. 17 ff, 24, and 54 ff. 74 E/1618, Comments to Article 4. The IRO representative interpreted Article 4 as referring to legislative de facto and diplomatic reciprocity (SR.31. para. 4).
other countries (diplomatic reciprocity) these rights would be accorded to refugees also”. This view was also expressed by the Ad Hoc Committee in its second session, stating that “it was the understanding of the Committee that Article 4, para. 2, does not apply to rights conferred by treaty on nationals of a particular country only”. 75 The provision of Article 4 of the Ad Hoc Committee’s draft was, however, considered inappropriate by the Refugee Conference and two amendments were introduced, 76 restricting the exemption from reciprocity to “legislative” reciprocity. In introducing his amendment, the Belgian representative stated that there were two kinds of reciprocity: “diplomatic”, established by a bilateral treaty, and “legislative” the principle of which was embodied in the national legislation of the various countries. 77 He stated that his government could not agree to confer on refugees the rights which certain aliens enjoyed in Belgium by virtue of a bilateral treaty concluded between Belgium and another state; exemption from reciprocity should be confined to rights which were accorded solely on the basis of legislative or administrative reciprocity. 78 The privilege of exemption from reciprocity (having regard to Article 10) is granted stateless persons who have resided in the country for three year 79 5. Paragraph 3 of Article 7 of the Refugee Convention was introduced in the second session of the Ad Hoc Committee in accordance with the general tendency not to impair already existing rights. It makes it obligatory upon states to continue to grant to stateless persons rights ordinarily accorded on the basis of reciprocity only. This relates to rights granted not only on the basis of domestic law but also on other bases. 6. Paragraph 4 of Article 7 of the Refugee Convention (which is now para. 4, of the present Convention) was the result, on the one hand, of the contention of the framers of the Convention that exemption from reciprocity is a very important condition for enjoying a tolerable status, and, on the other, of the contention that some state may not be willing to grant all refugees exemption from all kinds of reciprocity. This contention is also valid as regards “stateless persons”. Paragraph 4 stipulates that the states shall consider favourably the possibility of granting broader exemptions than are obligatory under paras. 2 and 3. This extension could be done in several ways: (a) the states might apply to “old” stateless persons also the exemption from all kinds of conventional reciprocity or from some of them; (b) they might do so, too, in regard to all stateless persons covered in paras. 2 and 3, or to some of them; (c) they might extend the exemption from legislative reciprocity to other groups than those referred to in para. 2. The second Ad Hoc Committee draft of the Refugee Convention did not contain a proviso similar to this paragraph, but the Committee expressed the hope that states would give 75 E/1850, para. 22. The idea was that if reciprocity treaties existed with many countries the situation was equivalent to legislative reciprocity (E/AC.32/SR.34, p. 16 and ibid. SR.36, p. 19). For Belgian opposition toward granting refugees rights resulting from special conventions see E/AC.7/SR.156, p. 13. 76 Belgium (A/CONF.2/11) and Belgium and France (A/CONF.2/32). 77 On another occasion he admitted the existence of de facto reciprocity (SR.24, p. 22 and E/AC.32, SR.36, p. 18). The Dutch representative distinguished three kinds of reciprocity: "legislative", "diplomatic", and "de facto" (SR.24, p. 21): so did the representative of Venezuela in the Ad Hoc Committee (SR.11, para. 8). 78 SR.6, pp. 7-8. Cf. the identical statement by the French representative (ibid., p. 9). 79 The Convention deals in detail with exemption from reciprocity in favour of stateless persons, but does not clarify a problem which may be of great practical importance for their treatment, viz., whether a state can accord them certain rights without involving its obligation to afford the same right to foreigners with a functioning nationality, on the basis of the most favoured nation clause. The question was raised in the Ad Hoc Committee by the Chinese and Belgian representatives but never answered. It is obvious that the reluctance of a state to be liberal toward stateless persons would increase if the answer were in the affirmative. However, this assumption would be incorrect because "stateless persons" are not treated as foreigners with a nationality but sui generis aliens, independent of nationality. Therefore, the special treatment accorded to them is not something which comes within the scope of the most favoured nation clause.
Page 1 and 2: CONVENTION RELATING TO THE STATUS O
Page 3 and 4: (ii) Adoption of a revised Protocol
Page 5 and 6: PART TWO THE INTERPRETATION OF THE
Page 7 and 8: his proposal of September 21, 1954,
Page 9 and 10: Alternative A: For the purpose of t
Page 11 and 12: is to be proven. Thus it is left to
Page 13 and 14: This refers mainly to the Palestine
Page 15 and 16: article was the desire of the membe
Page 17 and 18: should be left to the law of the co
Page 19 and 20: 2. In substance, Article 5 is a sel
Page 21: The article was adopted by a vote o
Page 25 and 26: was to apply to de jure stateless p
Page 27 and 28: The second sentence speaks of “th
Page 29 and 30: 2. Where a stateless person has bee
Page 31 and 32: 3. The uncertainty about the specif
Page 33 and 34: its acceptance would abridge the co
Page 35 and 36: treatment as favourable as possible
Page 37 and 38: There was some opposition to the in
Page 39 and 40: 4. The Convention does not define
Page 41 and 42: falls under the rubric “liberal p
Page 43 and 44: whole or in part by public funds or
Page 45 and 46: 4. The Contracting States will give
Page 47 and 48: The inclusion of the Article in the
Page 49 and 50: Article 26 Freedom of movement Each
Page 51 and 52: of such documents; a fourth, that i
Page 53 and 54: 3. The Contracting States shall giv
Page 55 and 56: principle that only the authority w
Page 57 and 58: is contained in the Refugee Convent
Page 59 and 60: described in para. 2 than those imp
Page 61 and 62: 3. Paragraph 1 deals with the expul
Page 63 and 64: the measures which the states may t
Page 65 and 66: Article 34 Settlement of disputes A
Page 67 and 68: (b) With respect to those articles
Page 69 and 70: signed it. A state which did not pa
Page 71 and 72: that the consent of the General Ass
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France Federal Republic of Germany
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IN WITNESS WHEREOF the President, t
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5. The provisions of paragraphs 2 a
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2. The Contracting States shall giv
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2. The authority or authorities men
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Paragraph 12 The authority issuing
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4. It shall be open for accession b
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MODEL TRAVEL DOCUMENT it is recomme
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Fee paid: Done at ……………
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