Article in regard to measures relating to national security in time of war or national emergency”.
101
As stated, Article 8 precludes the application (within the limitations of the second sentence)
of exceptional measures to stateless persons if they are based solely on their former
nationality. The contention of the Ad Hoc Committee was that while the government should
not be authorized to treat refugees as enemies, it would take time to screen them. In the
case of an outbreak of war or of a similar event, it might be impossible for a state to make
an immediate distinction between enemy nationals supporting the enemy state and
refugees from that state, especially if they carried national passports. The purpose of
Article 9 of the Refugee Convention was to permit the wholesale provisional internment of
102
refugees in time of war, followed by a screening process. This reasoning may also be
applicable to “stateless persons”. There may also be cases where the status of a person
not possessing a nationality is not clear, i.e., the authorities may have certain doubts
whether he is a bona fide stateless person, despite the previous determination to this
effect. In such instances the states are authorized to apply exceptional measures on a
provisional basis to a stateless person. Such measures may be taken only in time of war or
other grave and exceptional circumstances and only if they are necessary in the interests
of national security. The measures are provisional because they have to be suspended if
the person involved can prove conclusively his status of a bona fide stateless person, or
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that, in his case, they could not be justified by the interests of national security.
The instances of application of Article 9 are described in this article as “time of war or other
grave or exceptional circumstances”. The last words were put in by the Refugee
Conference instead of “national emergency” agreed upon by the Ad Hoc Committee. They
were decided upon as a compromise between the wording of the Ad Hoc Committee,
which was considered by some delegates as too restrictive, and the British proposal to add
a third case to the two agreed upon by the Ad Hoc Committee, namely, “in the interests of
national security”, which would in effect have enabled a state to take exceptional measures
104
at any time. On the basis of the history of this article in the Refugee Convention and its
inclusion in this Convention, it must be assumed that the words “other grave and
exceptional circumstances” include intermediate areas between war and national security,
such as grave instances of cold war, internal crises calling for certain international
precautions, or a state of emergency.
3.
Article 9 grants the Contracting States the authority to determine for themselves what
measures are essential to their national security and whether the person involved is a stateless
person. This authority does not prevent the application of Article 34 (settlement of disputes).
Article 10
Continuity of residence
1.
Where a stateless person has been forcibly displaced during the Second World
War and removed to the territory of a Contracting State, and is resident there, the period of
such enforced sojourn shall be considered to have been lawful residence within that
territory.
101
E/1850, para 23.
102
SR.6, p. 15, SR.26, p. 6; see also E/AC.32/SR.35, p. 6.
103
The Yugoslav representative in the Stateless Persons Conference expressed his view on the meaning of the last
clause in the following words: "A state could adopt provisional measures in respect of a person and then, when it is
established that the said person was stateless, it could either abolish these measures or maintain them if it considered
them necessary for its national security" (SR.5, p. 17).
104
For the discussion see SR.6, pp. 13 ff.