On the history of the international protection of refugees
|
|
|
Gilbert Jaeger
|
|
W
|
|
hereas the history of protection of refugees dates
back at least a few centuries, not to mention refugee situations in Antiquity, the history of international protection starts with the League of Nations. No one
would be surprised to learn that the International
Committee of the
Red Cross was the initiator of the international protection system set up by the League of Nations.
The League of Nations period
World War I (1914-1918), its
preliminaries (the Balkan Wars, 1912-1913) and its aftermath in the Near East
(the wars in the Caucasus, 1918-1921, and the Greco-Turkish War, 1919-1922)
caused considerable upheavals in the States involved and especially in the
Russian Empire. Large numbers of refugees (estimates vary between 1 and 2
million) left Russian — later Soviet — territories for various countries of
Europe or Asia Minor, Central and East Asia between 1918 and 1922 and also
thereafter.
|
|
Gilbert Jaeger is a former Director of Protection, UN High
Commissioner for Refugees, Geneva.
|
|
|
|
Emergency relief was provided
mainly by charitable organizations. However, these organizations could not
extend their succour beyond material assistance. Furthermore,
“[resources were becoming exhausted, and there was no
central co-ordinating body. In these circumstances the Joint Committee of the
International Committee of the Red Cross and the League of Red Cross
Societies called a conference of the principal organizations concerned on 16
February 1921, at which it was decided to invite the Council to appoint a
High Commissioner to define the status of refugees, to secure their
repatriation or their employment outside Russia, and to coordinate measures
for their assistance.The proposal was received by the Council on 21 February
1921, and States Members were sounded on the feasibility of international
co-operation and the forms it should take. On 27 June the Council considered
the replies received, they adopted the original proposal in principle, and
instructed the Secretariat to make some preliminary inves- tigation.The
appointment of a High Commissioner was left to the discretion of the
President of the Council. Dr. Fridtjof Nansen accepted the commission on 1
September 1921 .”x
Well before World War I tragic
events in the Ottoman Empire had affected various ethno-religious communities
— the Armenians, who are the victims most frequently mentioned, as well as
Assyrians (Nestorians), Chaldeans (Uniate Nestorians) and Jacobite Syrians.
Turks, Kurds and other Muslim groups also suffered.
As for the Greeks who survived the massacres and the
Balkan and Greco-Turkish Wars, they joined with their Bulgarian or Turkish
counterparts in the “facultative mutual" exchange of populations that
took place under the Treaty of Constantinople (1913), the Turco-Bulgarian
Treaty (1913), the Greek-Turkish Agreement (May 1914) and the Treaty of
Neuilly (1919), and finally in the compulsory exchange of Greek and Turkish
populations provided for by the Treaty of Lausanne (1923).
1 Sir John Hope Simpson, The Refugee Problem, Oxford University Press,
London,
1939, p. 199.
|
|
|
|
In order to protect and assist
the refugees from the Ottoman Empire and the Turkish Republic, the mandate of
the High Commissioner of the League of Nations was extended to Armenians in
1924 and to “other categories of refugees” (Assyrians, Assyro- Chaldeans,
Syrians, Kurds and a small group of Turks) in 1928.
During the League of Nations period (1921-1946)
several institutions were created to perform some or all of the tasks of the
High Commissioner for Refugees: the Nansen International Office for Refugees
(1931-1938), the Office of the High Commissioner for Refugees coming from
Germany (1933-1938), the Office of the High Commissioner of the League of
Nations for Refugees (1939-1946) and the Intergovernmental Committee on
Refugees (1938-1947).
The task of international
protection
These institutions afforded
international protection to refugees on the basis of international legal
instruments generally2 concluded within the framework of the
League of Nations. The first Arrangements of 5 July 1922,31 May 1924 and 12
May 1926 provided a definition of Russian and Armenian refugees and dealt
mainly with “identity certificates” for refugees.
The governments which adopted
the Arrangement relating to the Legal Status of Russian and Armenian
Refugees, of 30 June 1928,“[h]aving agreed that it is necessary to define
more clearly the legal status of Russian and Armenian refugees”, recommended
the appointment of representatives of the High Commissioner for Refugees “in
the greatest possible number of countries”. They also made a number of
recommendations to governments of countries of residence (the term “asylum”
was not used) regarding personal status, divorce, exemption from reciprocity,
from the cautio judicatum solvi and from restrictive labour regulations, expulsion,
taxation and travel visas.3
By adhering to the Convention
relating to the International Status of Refugees, of 28 October 1933, States
Parties for the first time undertook real obligations on behalf of Russian,
|
|
2 A notable exception is the
“Evian 3 League of Nations, Treaty Series,
|
|
Resolution”. See below. Vol.
LXXXIX, No. 2005.
|
|
|
|
Armenian and assimilated refugees.4 It
dealt with administrative measures (the issuance of“Nansen certificates”), refoulement, legal questions, labour
conditions, industrial accidents, welfare and relief, education, fiscal
regime and exemption from reciprocity, and provided for the “creation of
committees for refugees”.
The Convention of 1933 is a
milestone in the protection of refugees and served as a model for the 1951
Convention. Its Article 3 reads:
“Each of the Contracting
Parties undertakes not to remove or keep from its territory by application of
police measures, such as expulsions or non-admittance at the frontier (refoulement), refugees who have been
authorized to reside there regularly, unless the said measures are dictated
by reasons of national security or public order.
It undertakes in any case not
to refuse entry to refugees at the frontier of their countries of origin.
It reserves the right to apply
such internal measures as it may deem necessary to refugees who, having been
expelled for reasons of national security or public order, are unable to
leave its territory because they have not received, at their request or
through the intervention of institutions dealing with them, the necessary
authorizations and visas permitting them to proceed to another country.”
The Convention of 1933 was
ratified by nine States, including France and the United Kingdom, the most
important powers of that time.The UK did not, however, accept the second paragraph
of Article 3. Nevertheless, it was by virtue of this Convention that the
principle of non-refoulement acquired the status of international treaty law.
Mention should be made of two
treaties concluded to provide protection for refugees coming from Germany:
the Provisional Arrangement concerning the Status of Refugees coming
|
|
4 League of Nations, Treaty Series,
Vol. CLIX, No. 3663. Assimilated refugees were
Assyrians, Assyro-Chaldeans, Syrians,
Kurds and a small number of
Turks.
|
|
|
|
from Germany, signed in Geneva on 4 July 1936,5
and the Convention concerning the Status of Refugees coming from Germany,
signed in Geneva on 10 February 1938.6 An Additional Protocol to
these treaties, opened for signature in Geneva on 14 September 1939, extended
them to include refugees from Austria.7
As refugees from Germany were
not entitled to Nansen certificates, these treaties provided for a separate
identity certificate. The Convention of 1938 was likewise modelled on the
Convention of 1933.
Neither the Provisional
Arrangement of 1936 nor the Convention of 1938 mention the expression refoulement, and their provisions on
asylum are weaker than those of the 1933 Convention. It was even laid down
that, in extreme cases, refugees could “be sent back across the frontier of
the Reich”.
A further international legal
instrument of that period is the resolution which the Intergovernmental
Committee on Refugees (IGCR) adopted in Evian on 14 July 1938 to define its
functions.8The Evian meeting was called by President Franklin
Roosevelt outside the formal framework of the League of Nations “for the
primary purpose of facilitating involuntary emigration from Germany
(including Austria)” of
“(1) persons who have not already left their country
of origin (Germany, including Austria), but who must emigrate on account of
their political opinions, religious beliefs or racial origin, and (2) persons
as defined in (1) who have already left their country of origin and who have
not yet established themselves permanently elsewhere...”
|
|
5 League of Nations, Treaty Series,
Vol. CLXXI, No. 3952.
|
|
6 League of Nations, Treaty Series,
Vol. CXCII, No. 4461, p. 59.
|
|
7 League of Nations, Treaty Series,
|
|
Vol. CSCVIII, No. 4634, p. 141.
|
|
8 League of Nations, Official Journal, XIXth Year, Nos 8-9, August-September 1938, pp. 676 and 677; C. 244
M. 143.1938 XII, annex. — See Tommie Sjöberg, The Powers and the Persecuted: The Refugee Problem
and the Intergovernmental Committee on Refugees (IGCR), 1938-1947, Lund University Press, Lund,
1991.
|
|
|
|
For the first time protection was extended to
would-be refugees inside the country of potential departure.
In February 1939 the Member
States of the IGCR appointed as Director the newly appointed High
Commissioner for Refugees, whose headquarters were likewise in London. The
IGCR ended its activities on 30 June 1947, six months after the Office of the
High Commissioner closed. During that time the IGCR also protected the “Nansen
refugees”.
The period 1946-1951
The next important phase in international protection
was that of the International Refugee Organization (IRO). Established on 15
December 1946 by Resolution 62 (I) of the UN General Assembly, it initially
worked as the Preparatory Commission for the IRO from 14 July 1947 to 20
August 1948 and then as full IRO from August 1948 until its termination on 28
February 1952.
The IRO became known as a resettlement agency, for
its principal activity was the resettlement of 1,049 refugees and displaced
persons, mainly from Central Europe, in the United States, Australia, Western
Europe, Israel, Canada and Latin America. However, according to its
Constitution, the IRO was “entrusted with the legal and political protection
of persons who are its concern”.The agreements concluded by the IRO with
governments contain a general clause confirming its competence to provide
protection and often specify certain aspects of the status of IRO refugees.
Contrary to previous or subsequent international agencies, the IRO in some
respects assumed the role of a supranational agency.
The IRO was originally meant to complete its
operational activities on 30 June 1950.As soon became evident, it was
unlikely — to say the least — that the problem of refugees would be solved by
that date.With new refugees from Central and Eastern Europe arriving in
increasing numbers in the West, the Commission on Human Rights adopted a
resolution as early as 1946 in which it expressed the wish: “[t]hat early
consideration be given by the United Nations to the legal status of persons
who do not enjoy the protection of any government, in particular pending the
acquisition of
|
|
|
|
nationality, as regards their legal and social
protection and their documentation.”9
Taking note of that resolution, the Economic and
Social
Council:
“Requests the Secretary-General, in consultation with
interested commissions and specialized agencies:
(a) to undertake a study of the
existing situation in regard to the protection of stateless persons by the
issuance of necessary documents and other measures, and to make
recommendations to an early session of the Council on the interim measures
which might be taken by the United Nations to further this object;
(b) to undertake a study of
national legislation and international agreements and conventions relevant to
statelessness, and to submit recommendations to the Council as to the
desirability of concluding a further convention on this subject.”10
This is the origin of A Study of Statelessness, a key document in the modern
history of international protection of refugees.11 Part One of the
Study, entitled “Improvement of the Status of Stateless Persons”, deals with
refugees who are mostly de facto stateless persons, although some are de jure stateless. It provides a full
history of institutions of internal protection and of international legal
instruments, from the days of the League of Nations until and including the
IRO.
The Study examines in detail the various aspects of
the “status of stateless persons” (read “refugees”): international travel,
right of entry and sojourn, personal status, family rights, rights of
property, exercise of trades or professions, education, relief, social security,
right to appear before the courts as plaintiff or defendant, exemption from
reciprocity, expulsion and reconduction, taxation and military service,
taking into account the provisions of the two existing Conventions of 1933
and 1938. It then discusses the “form to be given to the status”
|
|
9 Official Records of the
Economic and
10 Resolution 116 (VI) D, of 1 and 2 March Social Council, Third Year, sixth session, 1948.
|
|
Suppl. No. 1, 1946, pp. 13-14. 11 UN Doc.
E/1112, of 1 February 1949, and
|
|
E/1112/Add.i, of 19 May 1949.
|
|
|
|
and concludes in favour of a general convention, a lex generalis which would coexist with
previous conventions which should represent the lex specialis.
The main elements of the 1951 Convention relating to
the Status of Refugees can already be found in the Study, which also shows
very clearly the derivation of the 1951 Convention from the pre-war
conventions.
On the “nature and function of protection” the Study
expresses the belief that:
“The conferment of a status is not sufficient in
itself to regularize the standing of stateless persons and to bring them
into the orbit of the law; they must also be linked to an independent organ
which would to some extent make up for the absence of national protection and
render them certain services which the authorities of a country of origin
render to their nationals resident abroad.
Such an organ is undoubtedly
needed. The status of stateless persons, however carefully determined,
cannot become a reality unless there is an organ of international protection.
Such an organ would need to
work in close collaboration with the Governments of the reception countries.
It should comprise a central office with subsidiary
branches in the countries concerned.”
There is nothing new in this. The authors of the
Study merely recommended the system that existed under the League of Nations
and its High Commissioners. This applies also to the main functions of the
central office:
“(a) To collaborate in the application of the
agreements in force;
(b) To facilitate joint and
simultaneous action by Governments on behalf of stateless persons;
(c) To take a census of stateless
persons, determine their requirements, collect all necessary date and
information relating to them;
|
|
|
|
(d) To promote the conclusions of
such new agreements as may be required; and to secure further accessions to
the agreements already concluded;
(e) To conclude with Governments
the arrangements necessary to enable stateless persons to obtain such
documents as will allow them to perform various acts of civil and
administrative life;
(f) To facilitate the admission of
stateless persons into countries willing to receive them temporarily or to
allow them to settle there permanently;
(g) To facilitate the assimilation
and naturalization of stateless persons;
(h) To co-ordinate the work of
private voluntary associations on behalf of stateless persons."
The Study of Statelessness also elaborates on “the
organ responsible for protection” and discusses the merits of the type of
international organ required: a service within the United Nations
Secretariat, a High Commissioner's Office, continuance of the IRO in another
form, or a new specialized agency. It finally recommends that the Economic
and Social Council “recognize the necessity of providing at an appropriate
time permanent international machinery for ensuring the protection of
stateless persons”.
Having considered the Study, the Economic and Social
Council appointed on 8 August 1949 an ad hoc Committee on Refugees and
Stateless Persons to
“Consider the desirability of preparing a revised and consolidated
convention relating to the international status of refugees and stateless
persons and, if they consider such a course desirable, draft the text of
such a convention...”.12
The Council’s intention was that the final draft of
the convention be approved by the UN General Assembly.
|
|
12 ECOSOC Res. 248 (IX), Study of Statelessness, B, of 8 August
1949.
|
|
|
|
Eventually, after the submission and revision of
large sections of the future convention and a further resolution of the Economic
and Social Council, the UN General Assembly decided on 14 December 1950 “to
convene in Geneva a conference of plenipotentiaries to complete the drafting
of and to sign (...) the Convention relating to the Status of
Refugees..."13 The new convention was adopted soon after on
28 July 1951.
As for the aforesaid “permanent international machinery”,
the UN General Assembly decided on 3 December 1949 “to establish, as of 1
January 1951, a High Commissioner's Office for Refugees”,14 and on
14 December 1950 adopted the Statute of the Office of the United Nations High
Commissioner for Refugees.15
Thus since 1 January 1951, the international
protection of refugees has been in the hands of the High Commissioner of the
United Nations on the basis of its Statute. A steadily growing number of
States have meanwhile ratified and implemented the Magna Carta for refugees, the 1951
Convention relating to the Status of Refugees.
•
|
|
13 UNGA Res. 429 (V), Draft Convention relating to the Status of
Refugees, of
|
|
14 December 1950.
|
|
14 UNGA Res. 319 (IV), Refugees
and stateless persons, of 3 December 1949.
|
|
15 UNGA Res. 428 (V), Statute of
the Office of the United Nations High Commissioner for Refugees, of 14
December 1950.
|
|
|
|
Résumé
par Gilbert Jaeger
L’histoire de la protection
internationale des réfugiés commence à l’époque de la Société des Nations, en
réponse aux flux de réfugiés pendant et après la Première Guerre mondiale,
notamment en Russie et dans les Balkans. Suite à une proposition émise lors
d’une conférence convoquée par le CICR et la Fédération internationale, la
Société des Nations nomma, en septembre 1921, un haut commissaire pour les
réfugiés en la personne de Fridtjof Nansen. L’auteur retrace l’histoire des
mesures internationales prises en faveur des réfugiés au cours de
l’entre-deux-guerres, puis pendant la période qui suivit immédiatement la
Seconde Guerre mondiale. C’est pendant cette dernière période, marquée par
des mouvements de réfugiés de grande ampleur, qu'un droit moderne des
réfugiés vit le jour - notamment avec l’adoption en 1951 de la Convention
relative au statut des réfugiés - et que le Haut Commissariat des Nations
Unies pour les réfugiés fut créé.
|
|
Revue internationale de la Croix-Rouge
|
|
International Review of the Red Cross
|
