CYIL vol. 10 (2019)

MARKÉTA KŘIŽÁKOVÁ CYIL 10 ȍ2019Ȏ USA. At the request of the USA for an explanation of the difference between these terms, France replied that the term solidarity is wider than cooperation. Cooperation concerns signatory states, while solidarity may also apply to states which would not be party to the Convention, but would be in a position to help in the solution of certain aspects of the problem. According to France, cooperation may only be required of states who have signed on to the Convention. 42 There was no other discussion on distinction between these terms. The lack of clarity of the terms then leads to the unclear content of the legal obligation arising from the Convention. The original text of the Convention, proposed by the UN Secretary-General in 1950, even contained Article 3 in the operative part of the Convention, according to which the contracting parties shall to the fullest possible extent relieve the burden assumed by initial reception countries that have afforded asylum to persecuted person by also agreeing to receive a certain number of refugees in their territory. 43 However, according to the commentary on the text the provision was not intended to give rise to specific legal obligations, because its wording was not sufficiently specific as to the concrete number of refugees that states should accept on their territory. 44 Therefore, some states considered that it was not necessary to include such a provision in the operative part of the Convention. 45 The discussion therefore moved to the Preamble. 46 France proposed that the Preamble should contain a provision recognizing that some states may be subject to disproportionate burdens due to their geographical position and that a satisfactory solution to the problem, which the United Nations has recognized the international scope of, cannot be achieved without international cooperation to help to distribute refugees throughout the world. 47 Nevertheless some states argued that this part of the Preamble does not relate to the content of the Convention itself, since it lays down the obligations of states towards refugees, but not the obligation regarding the distribution of refugees between states. 48 Therefore, the reference to the duty of cooperation and the redistribution of refugees lacks justification. However, France stated that Recital 4 of the Preamble was intended as an expression of mere fact. The aim was not to create specific legal obligations. On the other hand, France argued that the Preamble, being bound up with the Convention, would have the same authority as the Convention itself. 49 It is interesting that France viewed Recital 4 of the Preamble and the reference to redistribution of refugees as a force majeure clause that excuses a state for failing to fulfil certain contractual obligations arising from the Convention, such as those relating to the provision of accommodation or the right to work. According to France, international cooperation would be needed in such 42 The Refugee Convention 1951. The travaux préparatoires analysed with a commentary by Dr. Paul Weis. In: unhcr.org , p. 23 [accessed 22. 2. 2019]. Available at: https://www.unhcr.org/protection/travaux/4ca34be29/ refugee-convention-1951-travaux-preparatoires-analysed-commentary-dr-paul.html. 43 UN, Ad Hoc Committee on Statelessness and Related Problems, Ad Hoc Committee on Statelessness and Related Problems, Status of Refugees and Stateless Persons – Memorandum by the Secretary-General , 3 January 1950, E/ AC.32/2 [accessed 22. 2. 2019]. Available at: https://www.refworld.org/docid/3ae68c280.html. 44 UN, Ad Hoc Committee on Statelessness and Related Problems, ibid. 45 INDER, ibid, pp. 533-534. 46 INDER, ibid, p. 534. 47 The travaux preparatoires, ibid, p. 14. 48 The travaux preparatoires, ibid, p. 16 and 18. 49 The travaux preparatoires, ibid, p. 21.

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