Volume #17 - 261.|
CONVENTION DES NATIONS UNIES SUR LE STATUT DES RÉFUGIÉS ET DES APATRIDES
Note du secrétaire d'État aux Affaires extérieures|
pour le Cabinet
CABINET DOCUMENT NO. 178-51|
le 14 juin 1951|
On July 18, 1950, Cabinet authorized the Canadian Delegation to the Economic and Social Council to support, in general terms, the United Nations draft Convention on Refugees and the Protocol on Stateless Persons. Since that time, the Convention and the Protocol have been examined further by both the Economic and Social Council and the General Assembly. At its Fifth Session, the General Assembly decided to convene a Conference of Plenipotentiaries to complete the drafting of and to sign both the Convention and the Protocol. This Conference will take place in Geneva commencing on July 2 and it is the purpose of this memorandum to seek Cabinet approval of Canadian participation in the Conference including the signing of the resultant Convention and Protocol on behalf of the Canadian Government.
2. The purpose of the Convention is to guarantee to refugees the enjoyment of fundamental rights and freedoms without discrimination. The Protocol on Stateless Persons extends these rights to persons who are stateless, but who are not refugees.
3. The Convention, as it is drafted at the present time, has been examined carefully by the competent officials of my Department and of the Departments of Citizenship and Immigration, of Labour, and of National Health and Welfare. As a result of this examination, it appears to be possible for Canada to sign and subsequently ratify the refugee convention and protocol without making any changes in Canadian law. As a United Nations project designed to assist refugees and stateless persons to overcome the handicaps which they have suffered as a result of their present status which, in most cases, was brought about through no fault of their own, I believe that Canada should, if at all possible, sign the Convention and Protocol. This would be further evidence of Canada's support of the worthwhile humanitarian activities being carried out by the United Nations.
4. There are certain articles in the Convention which deal with public education, public relief, and social security. As these subjects are primarily the concern of the provinces of Canada, it is, of course, essential that the Convention include a federal state clause before Canada could sign it. This matter will be under discussion at the July Conference.
5. The Convention includes a clause concerning the expulsion of refugees which makes it mandatory that states shall not expel a refugee "save on grounds of national security or public order". Because of the provisions of Sections 40 and 41 of the Immigration Act which provide for deportation of any person other than a Canadian citizen, or person having Canadian domicile, on a number of grounds, and a similar mandatory provision in the Narcotics and Drugs Act, it is believed that the Canadian Representative may have to make a reservation on this article at the time he signs the Convention unless the wording has been changed, or there is a clear understanding that "national security or public order" includes all of the grounds on which refugees may be deported from Canada in accordance with Canadian law.
6. The present draft of the Convention includes a clause stating that it shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to possession of the nationality of that country. The Canadian Representative might endeavour to secure agreement on an interpretation of this clause that would exempt Canada's landed immigrants from the application of the Convention. Canada accords refugees who come here for permanent residence the great majority of civic rights which are enjoyed by citizens and other residents. It would be desirable but not essential to have this agreement as, in any event, the signing of the Convention and Protocol would not necessitate any change in Canadian law or practice.
7. It is recommended therefore:
(a) That a Canadian Representative attend the Conference of Plenipotentiaries and be given authority to sign the Convention and the Protocol on behalf of the Canadian Government.
(b) That the Convention should not be signed unless it contains a satisfactory federal state clause.
(c) That a reservation be entered in respect to Article 27, para. 1, concerning the expulsion of refugees, unless the wording is clarified, or an understanding is reached that this will not affect Canadian law or practice.
(d) That the Canadian Representative endeavour to secure agreement on an interpretation of Article 1 (D) that would exempt Canada's landed immigrants from the application of the Convention.
(e) That the Canadian Representative should seek further instructions if any fundamental changes are made in the text of the Convention before it is opened for signature.
RESTRICTED [Ottawa, n.d]
UNITED NATIONS CONFERENCE OF PLENIPOTENTIARIES ON THE STATUS
During its Fifth Session, the General Assembly decided to convene, in Geneva, a Conference of Plenipotentiaries to complete the drafting of and to sign both the convention relating to the status of refugees and the protocol relating to the status of stateless persons. This Conference will take place in Geneva commencing July 2. Mr. Leslie Chance, Head of the Consular Division, will be the Canadian representative and he will be assisted by an officer from the Canadian Permanent Delegation in Geneva.
2. The convention which this Conference will consider was drafted in the first instance by an ad hoc committee of the Economic and Social Council. This committee held its first session at Lake Success in January and February 1950 under the chairmanship of Mr. Chance. It held its second session in Geneva in August 1950 and reported to the Fifth Session of the General Assembly. The Economic and Social Council, at its summer session in 1950, only discussed the clause determining what categories of refugees would come under the scope of the convention. The General Assembly also discussed this definition clause and recommended a compromise definition for the consideration of the Conference. The other clauses of the convention were not considered by the Assembly.
3. The refugee convention was designed to guarantee to refugees the enjoyment of fundamental rights and freedoms without discrimination. The purpose of the protocol on stateless persons is to extend the rights covered by the convention to persons who are stateless, but who are not refugees. The draft convention, as it now stands, covers a considerable number of rights which will be extended to refugees by those countries which decide to adhere to it. There are general articles such as the one on discrimination which states that no contracting state shall discriminate against a refugee within its territory on account of his race, religion, or country of origin, or because he is a refugee. There are other more specific clauses which, in some cases, call upon contracting states to grant refugees similar rights to those given to their own nationals, and in other cases, rights similar to those given to other aliens. Examples of these rights are those concerning the acquisition of property and leases and other contracts relating to property; rights concerning the protection of industrial property such as inventions, industrial designs, trademarks and trade names; rights of association; the right of free access to the courts of law; and the right to engage in wage earning employment and self-employment. Contracting states are asked to grant refugees the same rationing privileges as nationals and to treat them not less favourably than aliens in matters pertaining to housing. There are other clauses dealing with such matters as public education, public relief, labour legislation and social security, freedom of movement, identity papers and travel documents.
4. The definition of refugee which the Assembly approved and which the Conference is free to accept, modify, or reject, represents a compromise reached by those countries which preferred a narrow category type definition and those which preferred a broad definition. Canada is in the latter category. In brief, the definition recommended by the Assembly, if adopted, would cover any person who, as a result of events occurring before January 1, 1951, is outside the country of his nationality or former habitual residence because of "well-founded fear of being persecuted for reasons of race, religion, nationality, or political opinions" and who is unable, or unwilling, to return to or to accept the protection of his former government. Among those excluded are persons having the rights and obligations of citizens in their countries of residence; those benefitting from other United Nations Agencies such as the Palestine refugees; war criminals; and persons guilty of nonpolitical offences or acts contrary to United Nations principles.
5. The Canadian Delegation to the 1950 summer session of ECOSOC, on instructions which were approved by Cabinet, gave its general approval to the convention as it was then drafted. It is essential, from Canada's point of view, that a federal state clause be included because of the provisions of Articles 17 to 19 concerning public education, public relief and social security, which are primarily provincial matters. The federal aspects of social security have, of course, been examined by the Department of National Health and Welfare and there would not appear to be any conflict between them and the provisions of the Convention.