except when this was justified by the difference between the two groups (refugees vs. stateless
persons). The text was therefore adopted as drafted by the Refugee Conference subject to
46
amendments on second reading, which never came.
The meaning and implication of this article must thus be derived from that of the Refugee
Convention.
2.
The wording of the relevant article in the Refugee Convention underwent certain
changes. The first draft of the Ad Hoc Committee contained a non-discrimination article of
formally wider implications, viz., it required the states not to discriminate against a refugee
“because he is a refugee”. This would mean that the special status of a person as a “refugee”
could not be used as a reason for refusing to accord him rights which are enjoyed by other
persons (nationals or aliens). The second session of the Ad Hoc Committee decided that the
obligation not to discriminate against a refugee because of his special status might be construed
to include the prohibition to apply “special conditions of immigration imposed on aliens”. For this
reason they added the phrase “within its territory” to indicate that the non-discrimination clause
47
referred to the treatment of aliens within the territory of the Contracting States.
The Refugee Conference excluded the words “within the territory” to denote that the
obligation to avoid discrimination was incumbent upon every Contracting State, not only
48
the State in which the refugee resides.
The Refugee Conference adopted a wording which excluded the “status of a refugee” as a
basis for non - discrimination, thus making it clear that the only prohibited discrimination is
49
among the refugees themselves, and that the Contracting States did not undertake by
this article the obligation to treat refugees in the same manner as other aliens. The
assimilation of refugees to aliens was done in Article 7 (1) of the Refugee Convention.
Thus Article 3 is to be interpreted in the sense that it prohibits only discrimination among
stateless persons” but not between aliens and such persons.
3.
As stated, Article 3 does not contain a full non-discrimination clause; it lists only three
bases for non-discrimination: race, religion, and country of origin. There are, however, other
50
reasons for discrimination such as sex, political opinion, social origin.
The amendments by the Yugoslav representative to Article 3 of the Refugee Convention
51
suggesting the addition of the words “or for other reasons” or "particularly” were rejected.
On the basis of the history of Article 3 of the Refugee Convention we have to conclude that
it was the intention of the drafters of that Convention and of this Convention to restrict the
non-discrimination clause to these three “bases”, although this would be contrary to the
first recital of the Preamble and the intent of this Convention to create a uniform basis for
the treatment of all refugees except when specifically provided for in the Convention. The
Refugee Conference held that Article 3 ought to deal only with such grounds of
52
discrimination as were applied in the countries of persecution, and that everything else
46
SR.5, pp. 2-8.
47
E/1850, para. 21. The United States representative stated in the Conference that "the history of the drafting of Article 3
showed that if the words 'within its territory' were deleted the Convention would affect the whole field of immigration
policy". (SR.5, p. 5.)
48
See the statement by the Israel representative in SR.5, p. 7, as well as the written statement by the World Jewish
Congress (Doc. A/CONF.2/NGO/1) and the oral statement of the World Jewish Congress representative to Article 2 in
SR.4, p. 13.
49
The United States representative interpreted Article 3 to mean that it prohibited "denying to one category of persons
(viz., refugees) rights and privileges enjoyed by others in identical circumstances" (SR.5, p. 4).
50
Article 3 (1) of the Geneva Convention Relating to the Protection of Civilians in Time of War to which reference was
made in the Conference (SR.5, p. 9) contains a "full" non-discrimination clause.
51
A/CONF.2/22 and SR.5, p. 9.
52
SR.5, pp. 11-12.