Treaties, States Parties and Commentaries
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Commentary of 1958 

[p.518] The Diplomatic Conference wished the measures recommended to the High Contracting Parties within the restricted limits established by the previous Article to be as effective as possible. For that purpose, it laid down detailed regulations concerning the apportionment of costs (1).


Some of these costs will be borne in any case by the Detaining Power. The principle of the first paragraph, the Rapporteurs explained, is that the Detaining Power shall bear the costs involved in returning the internee to his domicile at time of internment, unless he was taken into custody on the high seas, in which case the Detaining Power shall pay the cost of completing his journey or of his return to his point of departure. Since internment was decided upon in the interest of the Detaining Power, it is only fair that that Power should bear the financial consequences of return or repatriation. Whether that is always in the best interests of the internee, in view of new conditions which may face him as a result of the events, is another question dealt with in the next paragraph.


As the Rapporteurs explain (2), the second paragraph establishes a distinction between repatriation carried out at the wish of the Detaining Power and voluntary repatriation at the wish of the internee or his Government. In the first case only are the expenses to be borne by the Detaining Power. In the second case, they are borne only in so far as they relate to the journey to the borders of the Detaining Power's territory; the remainder will be paid by the person himself or by his Government, particularly if the order to return to the [p.519] country of origin is given by that Government (3). Finally, a person interned at his own request in accordance with Article 42 will be able to obtain from the Detaining Power only the payment of the cost of his return to his former residence, in accordance with paragraph 1 of this Article, which does not make any distinction between the various categories of internees. However, the Detaining Power, it appears, escapes responsibility for all the costs of possible repatriation and is not even bound to pay for the part of the journey made in its own territory.
It should be noted that this paragraph implicitly recognizes the internee's right to choose between return to his residence or repatriation. It also implies that the Detaining Power has the right to refuse the internee permission to reside in its territory. At that point, what will happen if the internee thus refused permission himself opposes his repatriation? It would be contrary to the spirit of the Convention if he could be forcibly repatriated when he feared persecution in his country of origin for his political opinions or his religious beliefs. In such a case he would become a refugee, obliged to seek a new domicile in a country different from the one in which he is living. While awaiting the result of his efforts to find such a new domicile, the Detaining Power is bound by its humanitarian duty to tolerate his presence in the country on a temporary basis.
It is to be hoped that the right of a State to refuse a released internee permission to reside in its territory, even when the person concerned had his regular domicile there beforehand, will only be used for very serious reasons. Such a refusal, indeed, may have very wide repercussions on the family life and material interests of the individual, and his presence must seriously prejudice or have prejudiced the security of the State for it to be justified in taking such a serious decision. In particular, this clause cannot be taken as entitling a government to expel automatically at the end of hostilities all enemy aliens whether they have been interned or not and to confiscate their property.


The detailed provisions of Article 45 concerning the possible transfer of internees entail expenditure which it is logical to make the [p.520] Powers concerned bear in proportion to the advantages that each obtains from the arrangement. In view of the diversity of circumstances which may arise, it was not possible to provide any other solution than an agreement covering each particular case between the Powers concerned. Whatever happens, no part of the costs is to be borne by the internees themselves.


This clause reserves the right of Parties to the conflict to make special agreements concerning the costs of the exchange and repatriation of their nationals in enemy hands. It is drafted in the same spirit as paragraph 2 of Article 132 in order to further to the utmost possible degree the conclusion of such agreements and to alleviate the sufferings of the internees.
These special agreements must not deal only with the methods of exchange or repatriation. It would be contrary to the spirit of the Convention to use Article 135 as a pretext for the conclusion of agreements for the forced repatriation of certain internees, for example. This provision like all those dealing with repatriation, must be interpreted with the humanitarian duty in mind which opposes the handing over by one State to another of individuals threatened with persecution in the territory of that other State for their political or religious opinions.

Notes: (1) [(1) p.518] The details were not included in the Stockholm
Draft but were embodied in the Convention by the
Diplomatic Conference. See ' Final Record, ' Vol. II-A, p.

(2) [(2) p.518] Ibid., Vol. II-A, p. 844;

(3) [(1) p.519] It should be noted, however, that the fact
that the order is given does not mean that it must be
obeyed. The person concerned, if he fears persecution in
his country of origin for his political opinions or his
religious beliefs, must remain free to disobey the order.
In this connection, see what was said concerning voluntary
repatriation in the commentary on Article 132;