EL MARCO DEL CONTROL DE CONVENCIONALIDAD

On 28 June 1928 a new conference was held in Geneva by the League of Nations, with a view to extending the protection hitherto provided to Russian and Armenian refugees to other persons placed in analogous situations. The Council of the League had already in 1926 considered the extension of protection, and following its relevant resolution the High

2126, Geneva, 30 June, 1928, 93 LNTS 377; see also In re Pecheral. Court of Appeal of Paris, 17 July, 1948, 15 ADRPILC

(1948) 289, Holborn, L.W., 'The legal status of political refugees, 1920-1938', 32 AJIL (1938) 680 at 687.

"See 89 LNTS 53 at 55-9. Compare, e.g., resolution number (2) of the 1928 Legal Status Arrangement on the determination of the refugees' personal status with Article 12 (1) of the 1951 Convention relating to the Status of Refugees. See also resolution number (4) of the 1928 Arrangement and Article 7 of the 1951 Refugee Convention, both of which regard the refugees' exemption from reciprocity; see also Clot v. Schoolianskv. Civil Tribunal of the Seine, 4 November 1930, 5 ADPILC (1929-1930) 333, at 334, Poor Persons' Procedure (Poland) Case, Polish Supreme Court, 11 December 1934, 8 ADPILC (1935-1937) 311. On the rather limited legal effect of the 1928 Arrangement on domestic law see Fidler and Poliakoff V. Cie. Immobilière du Quai de Passv, Civil Tribunal of the Seine, 23 January 1933, 7 ADPILC (1933-1934) 406, In re Kaboloeff, Conseil d'Etat, 8 March 1940, 11 ADRPILC (1919- 1942) 197. See also Agreement Concerning the Functions of the Representatives of the League of Nation's High Commissioner for Refugees, No. 2126, Geneva, 30 June 1928, 93 LNTS 377; see also In re Dame Pecherel, Court of Appeal of Paris, 17 July, 1948, 15 ADRPILC (1948) 289.

Commissioner for Refugees F. Nansen prepared a report suggesting the extension of protection to seven more categories, viz. Assyrians, Assyro-Chaldeans, Ruthenians, Montenegrins, Jews of Bukowina, Beassarabia and Transylvania, the 150 Turks regarded as ‘Friends of the Allies', and some central European refugees, especially those of Hungarian origin^*. The report of the High Commissioner was considered by the Council to be over-comprehensive and, finally, the persons who would be covered by the new Arrangement concerning the Extension to other Categories of Refugees of Certain Measures Taken in favour of Russian and Armenian Refugees^, were only those of Assyrian or Assyro-Chaldean, and Syrian or Kurdish origin, as well as the 150 Turks whose sojourn in and access to Turkey had been prohibited by the Turkish government following the Great War^‘.

As a consequence, all the measures provided for by the

^See Extension to Other Analogous Categories of Refugees of the Measures taken to assist Russian and Armenian Refugees: Resolution adopted by the Assembly during its Seventh Ordinary Session, LNOJ, February 1927, at 155; see also Extension to other Categories of Refugees of the Measures taken to assist Russian and Armenian Refugees, LNOJ, October 1927, at 1137-9; see also Report of the High Commissioner for Refugees, submitted to the Council on June 7th, 1928, in LNOJ, July 1928, at 1000. See also Hathaway, J.C., loc. cit. supra n. 3, at 354-5.

^"Geneva, 30 June 1928, 89 LNTS 63, No. 2006.

^See Protocol to the Declaration of Amnesty, Lausanne, 24 July 1923, 36 LNTS 145, No. 913, at 151. See also Hathaway, J.C., ibid.. at 355-7, Grahl-Madsen, A., o p . cit. supra n. 2, at 128-9. On the Assyrians as a minority see Naby, E . , The Assyrians', in Ashworth, G. (ed.). World Minorities, vol. 2, Sunbury, Middx., Quartermaine House Ltd., 1978, at 12.

previous Arrangements would be extended by the nine states in which the 1928 Extension Arrangement was in force^^ to the above five ethnic groups of refugees. These refugees were defined as follows: On the one hand, an individual would fall in the category of 'Assyrian, Assyro-Chaldean and assimilated Refugee’ if (s)he were a person of Assyrian or Assyro- Chaldean origin, and also by assimilation any person of Syrian or Kurdish origin, who does not enjoy or who no longer enjoys the protection of the State to which he previously belonged and who has not acquired or does not possess another nationality". On the other, as a 'Turkish refugee' would be considered Any person of Turkish origin, previously a subject of the Ottoman Empire, who under the terms of the Protocol of Lausanne of July 24, 1923, does not enjoy or no longer enjoys the protection of the Turkish Republic and who has not acquired another nationality'^®.

The 1933 Convention Relating to the International Status of Refugees” did not contain any more elaborate delimitation of the notion of refugeehood. Article 1 of the Convention authorised the contracting states to introduce 'modifications

” See 89 LNTS 63, No. 2006, at 65.

” From these definitions of refugee groups it is clear that although the Assyrian, Assyro-Chaldean and assimilated refugees' origin referred to ethnicity (cf. Russian refugee definition of the 1926 Arrangement), the Turkish refugees' definition referred rather to territorial origin ( previously a subject of the Ottoman Empire', cf. Armenian refugee definition of the 1926 Arangement).

” 159 LNTS 199, No. 3663. See also Report by the Inter- Governmental Advisory Commission for Refugees on the Work of

or amplifications' in the definitions of Russian, Armenian and assimilated refugees of the 1926 and 1928 Arrangements^, who were covered by the, basically refugee welfare, provisions of the 1933 Convention. The Convention in itself constituted, however, a breakthrough on the scene of the international legislative efforts of the League of Nations aiming at a more comprehensive, detailed*^ emd legally binding, unlike the earlier Arrangements^, framework relating to the personal status of the individual members of the refugee flows of that period in the countries of asylum".

"See 159 LNTS 199, at 203.

"See Preamble to the Convention, 159 LNTS 199, No. 3663, at 201-203. See also United Nations, o p. cit. supra n. 3, at 47-8.

"See Hathaway, J.C., ibid. at 357. R.Y. Jennings called the Arrangements anomalous instruments' on the ground that they do not contain categorical stipulations, but merely "recommend" that a certain course of conduct be followed', in Jennings, R.Y., Some international law aspects of the refugee question', 20 BYIL (1939) 98 at 99 n.l. See also Krenz, F.E.,

‘The refugee as a subject of international law' , 15 ICLQ (1966) 90 at 99.

"See Ivanoff v. Fondation Belaieff. Court of Appeal of Paris, 25 March 1937, 8 ADPILC (1935-1937), 310, Ditte v. Jgudro, French Court of Cassation, 19 January 1948, 15 ADRPILC (1948), 286, In re Galvez. Tribunal de la Seine, 27 March 1947, and Court of Appeal of Paris, 6 December 1947, 14 ADRPILC (1947) 130, Gassock v. Duguay. Civil Tribunal of the Seine, 12 July 1948, Note in 16 ADRPILC (1949) 326. See also Allahverdi v. Lanause. Court of Appeal of Paris, 20 February 1954, 21 ILR (1954) 1, Gilon v. Chmoulowsky, Court of Appeal of Paris, 18 November 1940, 11 ADRPILC (1919-1942) 186. Of special interest is Article 3 of the 1933 Convention proscribing refugees' refoulement, a genuine ancestor of Articles 32 and 33 of the 1951 Refugee Convention; see Kelediian Garabed v. Public Prosecutor, Court of Appeal of Paris, 30 January 1937, 8 ADPILC (1935-1937) 305, Brozoza's Case, Court of Appeal of Toulouse, 9 June 1937, 8 ADPILC (1935-1937) 308. See also Morgenstern, F . , The right of asylum', 26 BYIL (1949) 327 at 341.

1.4 THE INTERNATIONAL LEGAL FRAMEWORK OF REFUGEEHOOD, 1922-