EN EL MARCO DEL CONTROL DE CONVENCIONALIDAD

In January 1935 Saarland, by virtue of a plebiscite held under the auspices of the League of Nations, was integrated into Germany. About 3,300 persons left Saarland, some because they refused to be granted German nationality, others out of fear of the totalitarian regime in Germany under the National Socialists^. In order to facilitate the movement of those

J.C., loc. cit. supra n.3 at 358-9.

^See Saar Territory: Decisions taken by the Council as a Result of the Plebiscite', LNOJ, February 1935, 133 infra; see also Letter and Aide-Mémoire, dated January 18th 1935,

people, the League of Nations drew up the Plan for the Issue of a Certificate of Identity to Refugees from the Saar on 24 May 1935. According to the Plan, the identity certificate system applied to all the pre-1935 Nansen refugees would be extended to ‘persons who, having previously had the status of inhabitants of the Saar, have left the Territory on the occasion of the plebiscite emd are not in possession of national passports'^. The significance of the 1935 Plan for the development of the legal view of refugeehood on the international plane has been that it provided for the issue of a ‘Nansen refugee document' without conditioning explicitly this issue on the de iure lack or denial of, protection of the refugee on the part of their state of origin^.

The rise of Nazism in Germany was followed by persecution and denationalisation of all those persons considered to be ‘undesirable' by the regime^®. This exodus from Germany had

633-4. See also Grahl-Madsen, A., ‘Protection of refugees by their country of origin', 11 Yale Journal of International Law (1986) 362 at 371-2, Hathaway, J.C., ibid.. at 361-2, Holborn, L.W., ‘The legal status of political refugees, 1920-1938’, 32 AJIL (1938) 680, at 693-4.

38

See LNOJ December 1935, at 1681.

^See Grahl-Madsen, A., loc. cit. supra n. 37 at 372. See also Holborn, L.W., Refugees: A Problem of our Time, vol. I, Metuchen, N.J., The Scarecrow Press, Inc., 1975, at 16 et sea. . See also Bernard v. Jonas. Civil Tribunal of Versailles, 23 September 1949, 16 ADRPILC (1949) 260.

^®See ‘Work of the Committee on International Assistance to Refugees', LNOJ, February 1936, at 142 et sea., United Nations, o p. cit. supra n. 3, at 141, Holborn, L.W., loc. cit. supra n. 37 at 691. See also Fretel v. Wertheimer, French Court of Cassation, 13 March 1948, 15 ADRPILC (1948) 287, Gunauene v. Falk, Court of Appeal of Paris, 27 March 1947, 16 ADRPILC (1949) 224. See also Polish Compensation Case, FRG

as a result at the end of 1938 a number of about 350,000 German refugees", many of whom were de iure and others de facto stateless individuals. The outcome of the response of the League of Nations was a new conference, now on German refugees, which resulted in the 1936 Provisional Arrangement concerning the Status of Refugees coming from Germany". The new expressly statelessness-oriented approach to defining refugeehood in that Arrangement came from its Article 1 which provided that a "refugee coming from Germany" would be considered any person under three conditions: First, that person should have been settled in Germany, secondly (s)he should not possess other than German nationality, and finally it should be established that ‘in law or in fact he does not enjoy the protection of the Government of the Reich'". The significance of that definition has been the explicit, for the

Federal Constitutional Court, 22 October 1974, 74 ILR (1987) 419, French Nationality Compensation Case, Oberlandesgericht, Cologne, 29 August 1973, 74 ILR (1987) 280, Refugee Compensation Claim Case, FRG Federal Supreme Court, 11 July

1968, 60 ILR (1981) 369, Mauritius Transport Case. Supreme Court of West Berlin, 13 July 1967, 60 ILR (1981) 208.

"See United Nations, ibid., at 36.

"Geneva, 4 July 1936, 171 LNTS 75, No. 3952. See also LNOJ, December 1936, at 1419, Hathaway, J.C., loc. cit. supra n. 3 at 362-4, United Nations, ibid. at 43.

"See also the refugee definition laid down by the Institute of International Law in 1936, according to which ‘..."réfugié" signifie tout individu qui, en raison d'événements politiques survenus dans son Etat d'origine, fuit le territoire de cet Etat, soit qu'il quitte le pays volontairement ou sous le coup d'une expulsion, soit que, séjournant à l'étranger, il n'y revienne pas, et qui, au surplus, n'a pas acquis d'autre nationalité et ne jouit pas de la protection diplomatique d'un autre Etat', 39 (I) Annuaire de l'Institut de Droit International (1936), Session de Bruxelles, 5 at 46.

first time, reference of an international legal instrument of refugee protection to the de facto lack of state protection that a refugee may suffer. The factual alienation of the individual from the mechanism of protection the state organs may provide has thus started to become obvious in interna­ tional law. The above refugee definition was actually reiterated in the 1938 Convention concerning the Status of Refugees coming from Germany". Paragraph 1(a) of the first section of Article 1 of the 1938 Convention attributed three main elements to the first category of German refugees established in the Convention: First, they should possess or should have possessed German nationality, secondly, they should not possess any other nationality, and thirdly they should be proved not to enjoy, in law or in fact, the protection of the German Government'. The second category of German refugees in Article 1.1(b) concerned stateless persons who did not possess German nationality and bore three main characteristics: firstly, they were not covered by previous Conventions or Agreements, secondly, they left German territory after having been established therein, and finally, they were proved not to enjoy, in law or in fact, as in the first category of German refugees, the protection of the German government".

^^Geneva, 10 February 1938, 192 LNTS 59, No. 4461. Also in LNOJ, March-April 1938, at 269.

"Para. 2 of Article 1 of the 1938 Convention included te exclusion clause according to which no-one who left Germany for persons of purely personal convenience' should be regarded as a refugee under the instrument. The clause was to survive in post-World War II refugee legislation, see Statute of the UNHCR, UN General Assembly Resolution 428 (V), 14

Following the 1938 Munich Agreement by virtue of which Sudetenland, a region of Czecho-Slovakia, was annexed to the Nazi Germany, 80,000 refugees fled the Czecho-Slovak state*®. The Council of the League of Nations did not initiate any new international agreement or convention with regard to these new refugee flows, but it simply extended the mandate of the High Commissioner's Office for Refugees to the Sudetenlander refugees. They defined them as persons who 'having possessed Czecho-Slovak nationality and not now possessing any nationality other than German, have been obliged to leave the territory which was formerly part of the Czecho-Slovak State - that is, the territory known as the Sudetenland- where they were settled and which is now incorporated in Germany'*’.

The final part of Mitteleuropa refugees that provided another definition of refugeehood in the late 1930s consisted of the refugees from Austria following the 1938 AnschluB. These refugees were protected by the 1939 Additional Protocol to the

December 1950, Chapter II 6. A. (ii), in UNHCR (ed.). Collection of International Instruments Concerning Refugees, Geneva, UNHCR, 1990, 3, at 6. See also Holborn. L.W., loc. cit. supra n. 37 at 695 n.71. On the application of the 1938 Convention in domestic jurisdiction see Kober v. Choi let. Court of Appeal of Paris, 18 February 1949, 16 ADRPILC (1949) 262, Terhoch v. Daudin et Assistance Publique, Court of Appeal of Paris, 8 February 1947, 14 ADRPILC (1947) 121, Goldstrom v. Société La Foncia, Court of Appeal of Paris, 23 January 1946, 13 ADRPILC (1946) 142.

*®See Hathaway, J.C., loc. cit. supra n.3, at 366.

*’See 'International Assistance to Refugees: Extension to Refugees coming from Territories ceded by Czecho-Slovakia to Germany of the Powers of the High Commissioner for Refugees', LNOJ, February 1939, at 72-3.

Provisional Arrangement and to the Convention of 1936 and 1938*®. The structure of the definitional Article 1 of the 1939 Arrangement is identical with Article 1 of the 1938 Convention. It divides, on the one hand, refugees from Austria into those who have possessed Austrian nationality and not possessing any nationality other than German one, were proved not to enjoy, in law or in fact, the protection of the German government. On the other, the second category comprises those stateless persons who were not covered by any previous international instrument and having left the former Austrian Republic, after having been established therein, were proved not to enjoy, in law or in fact, the protection of the German government.