The Status of Refugees
| DOI | http://doi.org/10.1111/j.1468-2230.1941.tb00879.x |
| Published date | 01 July 1941 |
| Date | 01 July 1941 |
| Author | H. J. Feist |
THE
STATUS
OF
REFUGEES
51
THE STATUS
OF
REFUGEES
R.
E.
J. COHN’S article on “Legal Aspects of Internment”
(4
M.L.R.
200)
has filled a gap in the discussion on a problem,
involving a variety of non-legal considerations, not always com-
patible with each other. For that reason alone the notes deserve the
praise of all who want to approach the question with impartiality.
The general aim of the Geneva Convention concerning the Status of
Refugees from Germany may perhaps be described as to confer upon
refugees
a
special status and to accord to them most favourable treatment
accorded to nationals of
a
foreign country, excluding thereby any special
treatment not directed against all aliens alike.
It
should be noted, however,
that apart from the reservation mentioned by Mr. Cohn
as
to Art.
5
the
British Government have made
a
general reservation restricting the
application of the Convention to such refugees coming from Germany who
“at
the date of ratification (Sept. 26th,
1938)
no longer enjoyed protection
of the German Government.” The vast majority of the refugees, however,
arrived only after that date in consequence of the pogroms following the
assassination in
Paris
of the German Diplomatist von Rath in November,
The convention being an international treaty between States,
it
is
further doubtful how far
it
can be relied on by the individuals concerned
as distinguished from the contracting Governments. These considerations
limit the practical importance of the Convention to such an extent that
it
seems appropriate to discuss that power
of
the Executive more in detail,
which in fact and expressly has been made the basis for the mass intern-
ment, namely, the Royal Prerogative.
As
stated by Mr. Cohn,
it
can scarcely be doubted that the Home
Secretary may deal with enemy aliens in accordance with his free discre-
tion, and
it
is
settled law now that once an enemy alien is lawfully interned
he
is
as to his remedies in no better position than a prisoner of war (cf.
the cases cited on page
202
and
R.
v.
Knockaloe Cam? Commandant,
ex
pavte
Forman.
87,
L.J.,
K.B.
43).
On the other hand
it
is clear that,
if
for one reason or other,
it
can be shown that the person detainea
is
not
in law an “enemy” alien, an order for internment based on the Prerogative
and not on
a
special statutory power is illegal and could, therefore, be
successfully challenged in
a
Court of Justice.
The problem of the general internment of refugees turns, therefore,
primarily round the question whether or not they are “enemy” aliens in
law; that most of them are friendly in fact is generally recognised.
An “enemy alien” usually is defined as
a
“subject of a state at war with
His Majesty,” although e.g. for the purpose of the “Trading with the
Enemy Act,” the test
is
territorial and not national. Yet,
it
is
submitted,
even in the wider sense of the word the test of nationality
is
not always
decisive; in other words, there may be persons who are enemy subjects
and still are not “enemy aliens.”
The problem of refugees is commonly thought to be a new one, but it
has arisen before, even with regard to the special question under discussion,
in the case of the French Huguenots. Were these refugees during the
Anglo-French War after the revocation of the Edict
of
Nantes treated
as
“friendly” or “enemy” aliens
?
In the case of
Wells
v.
Williams
(I
Lord
Raymond,
282)
we find in this respect the following noteworthy remark:
M
1938.
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