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Commentary - Art. 39. Part III : Status and treatment of protected persons #Section II : Aliens in the territory of a party to the conflict
    ARTICLE 39. -- MEANS OF EXISTENCE (1)


    GENERAL HISTORICAL BACKGROUND

    Article 39 deals exclusively with the means of existence of protected persons. It is based on one of the clauses in the Tokyo Draft (2), which laid down that enemy civilians were to have an opportunity of carrying on their occupations subject to any control or security measures which might be applied to them.
    Experience during the Second World War showed that the living conditions of enemy civilians who remained at liberty in the territory of a belligerent were sometimes more precarious than those of internees. Some Governments encouraged employers to continue to employ their foreign man-power (3); but a great many employees nevertheless lost their jobs because of their enemy nationality and were unable to find work again. Furthermore, when the head of the family was interned or deported his next of kin were often reduced to poverty.
    [p.250] The action taken by belligerent States in such cases varied very greatly. Some of them allowed enemy civilians who were in need to receive social welfare benefits on the same footing as their own nationals; others paid them monthly allowances; others again tried to give them work; and sometimes their home country sent them funds through the good offices of the Protecting Power and the International Committee of the Red Cross.
    But such measures were only palliatives, limited in scope. For while it seemed possible to consider giving civilian internees a monthly allowance to cover their most urgent needs -- the solution for which provision had been made in the case of prisoners of war -- the same course could not unfortunately be adopted in the case of those who were not interned, because of the wide variety of cases and the difficulty of deciding the amount of help necessary. Consequently thousands of people in nearly all the countries involved in the war found themselves in an extremely difficult financial position.
    These facts led the International Committee of the Red Cross to draft the text of an Article which was approved by the various preliminary Conferences and adopted, with certain modifications, by the Diplomatic Conference.

    PARAGRAPH 1. -- RIGHT TO WORK

    The rule of treatment as nationals is applied here once again, but with two reservations: "subject to security considerations and to the provisions of Article 40 ".
    The first reservation is liable to prejudice the position of protected persons most seriously; it might even cause them to lose the whole benefit of the rule placing them on the same footing as nationals, if the control measures applied to them for security reasons were to deprive them of the freedom of action necessary for following a normal occupation. Paragraph 2 is intended to reduce this danger.
    The second reservation refers to the right to compel protected persons to do work to the same extent as nationals of the country concerned are compelled (Article 40 ).
    In most cases it will be possible for security measures to be sufficiently flexible not to hinder those concerned in looking for work. Enemy civilians will therefore find themselves, apart from exceptional cases, in the same position on the labour market as nationals. If in addition they had been granted gainful employment and if allowances had been made to them unconditionally by the Detaining Power as provided for in the Stockholm Draft, they would have enjoyed preferential treatment by comparison with nationals. The Diplomatic [p.251] Conference considered that such a privilege would be excessive and thought it advisable to keep to the rule of treatment as nationals (4).
    Protected persons are therefore placed on a footing of equality with nationals of the country in all cases where they have lost their jobs. They also have an equal right to benefit by the country's social security system and to possible assistance by the State.

    PARAGRAPH 2. -- ALLOWANCES FROM THE COUNTRY OF RESIDENCE

    Nevertheless the State of residence can always institute measures to place protected persons under supervision should it consider that the national interest so demands. Experience has shown that such measures sometimes restrict the freedom of action of those subjected to them and may even prevent them from earning their living. This is so, for example, when people are placed in assigned residence (5) or forbidden to work in certain areas or in certain industries. In such cases the foreigners concerned are forced to leave their work and may often fail to find new posts.
    It is then that the duty of providing assistance falls on the country where the protected person is residing; the duty remains also if he can only find employment on conditions which are not "reasonable". It is true that the wording used in this connection in the Convention may be interpreted in various ways, for what is meant by "reasonable conditions"? Are they minimum conditions, which are left to the discretion of the administrative services concerned? The text gives no guidance on this point.
    It is to be hoped, however, that such cases, which should be exceptions to the general rule, would be judged fairly. The amount of the allowance should depend upon the needs of those concerned and their families and should be sufficient to maintain them in a good state of health. Moreover, a foreigner who is wronged may always appeal to the Protecting Power, whose specific role is to safeguard the interests of protected persons in all cases where the Convention leaves something to the discretion of the Parties to the conflict.
    The persons concerned must at all events receive, as a minimum, allowances equal to the cost of interning them. Since the State considers them to be less dangerous than those interned, it cannot inflict [p.252] a less favourable treatment on them. It will be seen later that a protected person may under certain circumstances demand to be interned (6).

    PARAGRAPH 3. -- OTHER ALLOWANCES

    The State of residence is bound to take the necessary measures to facilitate the transfer and payment of allowances.
    Since direct financial transactions between enemy States are impossible, payment of funds sent from the protected person's country of origin must be made through a neutral agency. This will normally be the Protecting Power, as was the case during the last world war (7).
    This paragraph, however, also mentions the relief societies referred to in Article 30 , that is the International Committee of the Red Cross, the National Red Cross Society of the country of residence or any organization which comes to the assistance of protected persons. The Diplomatic Conference thus stressed that no one could be excluded when it was a matter of bringing practical assistance to protected persons and helping to improve their living conditions.
    During the last world war the International Committee of the Red Cross tried to persuade the Parties to the conflict to adopt measures to assist families when the head of the family was interned as an enemy alien; in certain cases the Committee was authorized to pay allowances to civilians who were not interned, although that role was as a rule reserved for the Protecting Powers (8).
    The action of charitable societies may be on a considerable scale if one of the belligerents loses its international status. Since the Protecting Powers will then have no Power to represent, they will have to terminate their activities and the relief societies will alone retain their right to intervene in favour of protected persons. In such a case, the fact that relief societies are expressly mentioned will prevent a belligerent from basing a refusal of an offer of its services by one of them on Article 11, paragraph 3 , on the grounds that the transfer and payment of funds goes beyond what may be considered humanitarian activities and that it therefore need not accept the offer. The payment of relief in kind is, of course, only one of the many forms of assistance to protected persons which the authorities of the country of residence are bound to facilitate under Article 30 .
    [p.253] In conclusion, it should be noted that Article 98 contains a similar provision in favour of internees.


    Notes: (1) [(1) p.249] For the debates leading up to Article 39, see
    ' Final Record, ' Vol. I, p. 119; Vol. II-A, pp. 656, 740
    and 824-825; Vol. II-B, p. 407;

    (2) [(2) p.249] See p. 4;

    (3) [(3) p.249] See Norman BENTWICH: ' Alien Enemies in the
    United States, ' Contemporary Review, 1943, p. 226;

    (4) [(1) p.251] See ' Final Record of the Diplomatic
    Conference of Geneva of 1919, ' Vol. I, p. 119; Vol. II-A,
    p. 740;

    (5) [(2) p.251] In this case the Convention lays down (in
    Article 41, para. 2) that the Detaining Power is to be
    guided as closely as possible by the rules relating to the
    treatment of internees. See p. 257;

    (6) [(1) p.252] See Article 42, p. 257;

    (7) [(2) p.252] Funds to a value of several hundred million
    Swiss francs were transferred through the good offices of
    the Protecting Powers to civilians held in enemy
    countries;

    (8) [(3) p.252] See ' Report of the International Committee of
    the Red Cross on its activities during the Second World
    War, ' Vol. I, pp. 637 and 639;