INTERRUPTOR AUTOMÁTICO O DISYUNTOR

The first important step towards further development of the notion of refugeehood was made during this period by the Intergovernmental Committee on Refugees (IGCR) (1938-1947) whose initial objective was the protection of German and Austrian refugees^. In virtue of the crucial Resolution IGCR adopted on 14 July 1938, protection would be afforded by the Committee to ‘Persons who have not already left their

'‘’See Sieghart, P., The International Law of Human Rights, Oxford, Clarendon Press, 1983, at 14-15.

^See Grahl-Madsen, A., ‘II regime spéciale dei rifugiati’, 4 Affari Sociali Internazionali (1981) 179, at 183.

^See detailed historico-diplomatic analysis of IGCR in Sjôberg, T., The Powers and the Persecuted The Refugee Problem and the Intergovernmental Committee on Refugees

countries of origin (Germany including Austria), but who must emigrate on account of their political opinions, religious beliefs and racial origin', as well to persons with the above characteristics 'who have already left their country of origin and who have not yet established themselves permanently elsewhere'” .

Even though the refugees covered by the above 1938 Resolution were still identified with some ad hoc ethnic groups of forced migrants, the Resolution marks the move, in the international framework of refugee protection, towards the determination of refugee status on the basis of ideological or racial characteristics of the individual refugee. The second innovation of the above IGCR Resolution was the inclusion in the refugee definition of persons still residing in their country of origin, who for various reasons had not, as yet, emigrated, but their emigration was, nonetheless, imminent.

In 1943 IGCR decided to and did extend its protection to all persons, wherever they may be, who, as a result of events in Europe, have had to leave, or may have to leave, their countries of residence because of the danger to their lives or liberties on account of their race, religion or political

” See Resolution of the Committee, ICR Document, 14 July 1938, cited in Hathaway, J.C., loc. cit. supra n. 3, at 370-1. See also Sjôberg, T., ibid.. n. 50, at 39-98. It was Jewish refugees that the IGCR-founding states had basically in mind in the beginning, ibid. at 51. See also Fox, J.P., German and European Jewish refugees 1933-45: reflections on the Jewish condition under Hitler and the Western World's response to their expulsion and flight', in Bramwell, A.C. (ed.), o p. cit. supra n. 12, at 69.

beliefs'” . The express requisite that only events on the European continent would justify protection to those refugees, was a novel element of refugee status which would dominate in the international system of refugee protection for almost three decades, until the 1967 Refugee Protocol of New York.

The final notional development of refugeehood during the IGCR years was that of July 1946 when the Committee decided that its work programme should extend to ‘those persons within the Committee's mandate who are unwilling or unable to return to their country of nationality or of former habitual residence'” . The unwillingness and/or inability of the refugee to return to her/his homeland was another novel additional element of the refugee definition which remained unaffected and valid in international refugee law until the present time” .

"See Minutes of the Fourth Plenary Session of IGCR, August 15-17, 1944, AJ 43-23, cited in Sjôberg, T., op. cit. supra n. 51, at 146. See also Report submitted by the Director, ICR Document, 25 July 1944, at 2, in Hathaway, J.C.,

ibid.. at 371.

®*Memorandum from the American Resident Representative, ICR Document, 15 August 1946, in Hathaway, J.C., ibid. at 371. See also Sjôberg, T., ibid. at 168 et sea.

” See Article 1 A . (2) of the 1951/1967 Refugee Convention. IGCR, before its liquidation, convened in London in 1946 an international conference where it was signed the Final Act of the Intergovernmental Conference on the Adoption of a Travel Document for Refugees, 11 TINTS 73, No. 150. Article 1 of the Final Act did not add anything novel to the international law of refugee status. It provided (ibid. at 86) for a refugee travel document for refugees who are the concern of the Intergovernmental Committee, provided that the said refugees are stateless or do not in fact enjoy the protection of any Government, that they are staying lawfully in the territory of the Contracting Government concerned, and that they are not benefitting by the provisions regarding the issue of a travel

The creation of the United Nations Relief and Rehabilitation Administration (UNRRA) (1943-1946) marked another short- stepped development of the comprehension of refugeehood on the international plane. The initial aims of UNRRA in 1943 were to contribute to the maintenance of the people who had been displaced during the Second World War (DPs) and who were in areas under UN control, as well as to provide aid for the repatriation of these people^. Despite the fact that one of the primary objectives of UNRRA was the DPs' repatriation, its main work finally focused on the care of those people (around 850,000 in 1946) who did not wish to return to their homes for political reasons, in view of the post-World War II changes of their countries' governments^. It was the beginning of the Cold War period.

No international arrangement or treaty was drawn up for the regulation of the work of UNRRA, and the delimitation of the persons who would be of their concern. In 1945 an UNRRA directive laid down that it would be of concern to the organisation Post-war refugees... if they were displaced from their home during the war...In other words, if their internal

document contained in the Agreements of 5th July 1922, 31st May, 1924, 12th May, 1926, 30th June, 1928, 30th July, 1935, or the Convention of 28th October 1933'.

^See Jaeger, G . , ‘Les Nations Unies et les réfugiés', 22 REDI (1989) 18 at 37, Hathaway, J.C., loc. cit. supra n.3 , at 372 et seq.. Vernant, J., The Refugee in the Post-War World, London, George Allen & Unwin Ltd., 1953 at 30-33, Wyman, M . , DP Europe's Displaced Persons, 1945-1951. London, Toronto, Associated University Presses, 1989, at 46 et seq.

” See Carlin, J.L., The Refugee Connection, London, Macmillan, 1989, at 13, Jaeger, G . , ibid. at 37-38.

displacement (i.e. displacement from their homes) occurred during the war, it is immaterial that their external displacement (i.e. displacement across international frontiers) only occurred post-war'^. This open-ended inclusion clause produced a strong reaction from state members of the international society and especially eastern European states^’ in which thousands of DPs originated. The inclusion clause of UNRRA was finally restricted in 1946 when it was decided to limit its assistance only to displaced persons that were in a position to prove with 'concrete evidence' that they were objectively victims of persecution in their countries of origin®®.

The establishment of the International Refugee Organisation (1946-1951) by the UN General Assembly®^ has been another major event in the contemporary history of evolution of the notion of refugee in international law. Unlike IGCR and UNRRA,

®®UNRRA Incoming Cable No. 8855, 28 December 1945, in Hathaway, J.C., ibid. at 373.

"See Woods, P.A., The term "refugee" in international and municipal law: An inadequate definition in light of the Cuban boatlift', 5 ASILS ILJ (1981) 39, at 41.

"See UNRRA European Region Order 40 (I), 3 July 1946, in Hathaway, J.C., ibid. at 373. No such concrete evidence' of persecution was required, nonetheless, in cases of people who had suffered under discriminatory Nazi legislation'.

"See Constitution of IRO in 18 UNTS 3. On IRO see Sjôberg, T., o p . cit. supra n. 51, at 208 et sea., Jaeger, G., loc. cit. supra n. 56 at 38 et see. . Woods, P.A., loc. cit. supra n. 59 at 40-43, Weis, P., The concept of the refugee in international law', 87 JDI (1960) 928 at 932-4, Hathaway, J.C., ibid. at 374-6, Gallagher, D . , The evolution of the international refugee system', 23 IMR (1989) 579, United Nations, o p . cit. supra n. 3, at 40.

IRO was concerned not with the repatriation of and/or material assistance to refugees, but with their resettlement". It is to be stressed that IRQ was determined to provide assistance only to bona fide refugees and displaced persons’, a term which is repeatedly mentioned in the text of the organi­ sation’s Constitution". This constitutes indeed an irrefragable sign of the contracting states’ willingness to support and provide aid to a selected number of individuals who had left and/or did not wish to return to their homelands only for genuine political reasons.

The refugee definition laid down by the IRO Constitution (Annex 1, Part 1) constitutes a rather complex pronouncement of the post-war victorious states of who would be eligible for the IRQ’s protection as a refugee or a displaced person. The complex structure of Part 1 represents an amalgamation of the, mainly pre-World War 11 refugee definition formulations, based on group-oriented, ad h o c . considerations, and on the individualist, or ideology-based, character of refugee status determination that has dominated in international refugee law after the end of the Second World War. The whole venture of IRO was founded on a basically ideological compromise between

"See 18 UNTS 3 at 5-7, Gallagher, D . , loc. cit. supra n. 61, United Nations, ibid. at 166-7 and at 40, Carlin, J.L., OP. cit. supra n. 57 at 30 and 19 et seq.

"See Preamble of, and para. 1 (a) of Annex 1 to the IRQ Constitution, Preamble to Annex 111 (UN GA Resolution of 12 February, 1946, Doc. A/45) to the IRO Constitution, 18 UNTS at 17 et seq.

the political interests of western and eastern block states^.

Thus, according to the refugee definition laid down by the IRO Constitution (Annex I, Part I) as a refugee would be recognised any ‘person who has left, or is outside of, his country of nationality or of former habitual residence, and who, whether or not he had retained his nationality, belongs to one of the following categories:

(a) victims of the nazi or fascist regimes or of regimes which took part on their side in the second world war, or of the quisling or similar regimes which assisted them against the United Nations, whether enjoying international status as refugees or not®%*

(b) Spanish Republicans and other victims of the Falangist regime in Spain, whether enjoying international status as refugees or not®®;

(c) persons who were considered refugees before the outbreak of the second world war, for reasons of race, religion, nationality or political opinion'.

The definition of Annex I of the IRO Constitution (Part I A) goes on to consider as refugees also persons who, having

®^See Annex I 1. (g) of IRO Constitution, 18 UNTS 3 at 17, and Hathaway, J.C., loc. cit. supra n.3, at 374.

"On the controversy which arose out of this clause see Jaeger, G., loc. cit. supra n. 56, at 42.

"See also Section C para. 2 of Annex I to IRO Constitution. On Spanish refugees see Marrus,M.R., The Unwanted European Refugees in the Twentieth Century, New York, Oxford University Press, 1985, at 190 et seq.

resided in Germany or Austria, and being of Jewish origin or foreigners or stateless persons, were victims of Nazi persecution and were detained in, or were obliged to flee from, and were subsequently returned to, one of those countries as a result of enemy action, or of war circumstances, and have not yet been firmly resettled therein', as well as any person who, 'as a result of events subsequent to the outbreak of the second world war, is unable or unwilling to avail himself of the protection of the Government of his country of nationality or former nationality'. Finally, refugees under IRO were to be regarded also unaccompanied children who are war orphans or whose parents have disappeared, and who are outside their countries of origin'.

All the above individuals, except for the Spanish Republicans and the Falangist regime victims, would become of concern to IRO under two important provisos of Section C of the IRO Constitution's Annex I: either they had to be able to be repatriated and the help of IRO was required, or they had to have definitely, in complete freedom and after receiving full knowledge of the facts, including adequate information®’ from the Governments of their countries of nationality of former

®’See Annex I to IRO Constitution, Section C Para. 1 (b) according to which adequate information' was information regarding conditions in the countries of nationality of the refugees.. .communicated to them directly by representatives of the Governments of these countries, who shall be given every facility for visiting camps and assembly centres of refugees and displaced persons in order to place such information before them'.

habitual residence, expressed valid objections to returning to those countries'. These valid objections' of the refugees concerning their return were of great significance, since the IRO Constitution (Annex I Part I C I . (a)) categorised them as follows :

'(i) persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinions, provided these opinions are not in conflict with the principles of the United Nations...

(ii) objections of a political nature judged by the Organization to be "valid"...

(iii) in the case of persons falling within the category mentioned in section A, paragraphs 1 (a) and 1 (c) compelling family reasons arising out of previous persecution, or, compelling reasons of infirmity or illness'.

CONCLUSION

The 1938-1950 period has been a transitional one in the evolutionary history of the international law of refugee status. The international society represented mainly by European states, started shifting away from the generalised ethnic group-based refugee status determination, approaching a new, novel at that time, method of viewing refugeehood.

The first move was made by IGCR in 1938, that introduced three very important causal elements of refugeehood: race, religion and political opinion were expressly considered to be sufficient grounds of refugee status, if they formed objective

bases of collision between the refugee and the executive of their country of origin. The states that concluded the various agreements of that period wished to provide protection, on the one hand, to individuals originating from specific refugee producing countries (ad hoc group basis) but, on the other, their intention started to gravitate towards an ideological, or individualist^, perspective of the refugee plight and protection.

The framework of international refugee protection which was established by UNRRA and IRO introduced another novelty in the international definition of refugee: the notion of refugee persecution. The IRO Constitution added the element of fear of persecution on the basis of nationality, to the previous bases of race, religion and political opinion. These are all consti­ tutive elements of the legal concept of refugeehood that was about to be established later on in international law.

The 1938-1950 period has been indeed one of amalgamation and transition. It was an era during which the concept of refugeehood on the international plane started to be more obviously politically coloured by, first, the European states that fought against Nazism, and, secondly, the state members of the post-World War II western block, willing to protect mainly persons who did not wish to return to their then eastern block countries of origin. In both cases political motives and interests of states blended with their

humanitarian, in many cases, ideals. The refugee concept was moulded by the above-mentioned states that dominated the world political scene in the 1930s and 1940s. As a consequence, the human rights-oriented post-World War II period of refugee protection, the premises of which would prevail in interna­ tional refugee law in the years that were to come, constituted an evolution of the international refugee definition, in fact through the ideological prism of the western states’ philosophy, and human rights protection considerations that were expressed in the main post-war international human rights treaties.

SECTION 4. THE POST-1950 NOTIONAL EVOLUTION OF REFUGEEHOOD: