2.
In substance, Article 5 is a self-evident rule because the purpose of the Convention is to
grant stateless persons as many rights as possible, not to restrict them. In certain instances (e.g.,
Article 7 (3) of the Convention) the Contracting States are obliged to maintain special, already
existing, rights of stateless persons, and generally they are encouraged to grant them rights
beyond the minimum prescribed. The Ad Hoc Committee on the Refugee Convention included
the relevant provisions because it “thought it advisable to make it clear that the adoption of the
present Convention should not impair any greater rights which refugees may enjoy prior to or
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apart from this Convention”.
As is evident from its wording, the sense of this Article is that if all or certain groups of
stateless persons enjoy under the domestic law of a given country, or under international
treaties, broader rights than are prescribed by the Convention, accession to the
Convention need not result in the abolition of these broader rights. Nor should the
Convention prevent any state from granting stateless persons such rights in the future. It is,
however, a question whether Article 5 could be construed as meaning an unconditional
obligation on the part of the respective state to maintain the already existing broader rights
or as a “freeze” on such rights. The answer would be that Article 5 works within the general
framework of the right in question: if the right was granted by a unilateral action of the
state, it depends on the decision of the latter as to how long it would be maintained; if it is a
conventional right, the length of its validity depends on the terms of the agreement. Under
Article 5, the Convention cannot be construed as either a lex posterior which automatically
supersedes previous law or treaty provisions or as a superior law to domestic legislation
automatically nullifying domestic law. Any other interpretation would make Article 7 (3)
superfluous and result in “penalizing” liberal states as against those which are less liberal.
Consequently, Article 5 is to be interpreted in the sense that while it need not result in the
abolition or restriction of the special rights, existing or to be granted, the state may abolish
them, except when they rest on a contractual basis.
Article 6
The term “in the same circumstances”
For the purpose of this Convention, the term “in the same circumstances” implies that any
requirements (including requirements as to length and conditions of sojourn or residence)
which the particular individual would have to fulfil for the enjoyment of the right in
question, if he were not a stateless person, must be fulfilled by him, with the exception of
requirements which by their nature a stateless person is incapable of fulfilling.
1.
This article reproduces in full the wording of Article 6 of the Refugee Convention. The
French representative objected to the inclusion of this article and stated that, if it were adopted,
France would have to make a relevant reservation to this Convention. The Australian
representative also objected to it, claiming that it had no place in a document dealing with
stateless persons and that it would cause difficulties in its application. The representatives of
Great Britain and the Netherlands supported the inclusion of the article on the ground that, under
the Convention, stateless persons, if placed on the same footing as other foreigners, would be
obliged to fulfil certain requirements (for instance, produce evidence of nationality) which they
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could not fulfil. The article was adopted by a vote of 14 to 2, with 2 abstentions.
2.
Art. 6 is a definition of a term, incorporated in international conventions, in order to avoid
repetition of what the term implies, in all cases where it was used.
Stateless persons are treated under Art. 7 (1) and some other articles of the Convention in
the same way as other foreigners or as nationals. The words “in the same circumstances”
were introduced by the drafters of the Refugee Convention as a clarification of this
58
E/1850, para. 19.
59
SR.5, pp. 9-10.