Displaced Persons and International Law: Prof. E. Reutnicolussi

DISPLACED PERSONS
AND INTERNATIONAL LAW

BY
Prof. E. REUTNICOLUSSI
Innsbruck Unirersity
The logic of evolution followed
hitherto demands that when the
community of nations is founded
relations shall be direct, without
the intermediar/ of the States.
POUT.
BIOGRAPHICAL NOTE
Eduard REUT-NICOLUBBI born June 22, 1888 in Trent; 1911 doctor
of law at Innsbruck University, lawyer in Bozen; 191S-1918 war
service; 1919 member of Austrian Parliament in Vienna; 1921-1924
deputy for South Tyrol in the Italian Parliament; 1927 flight from
Italy becauee of Fascist persecution; 1931 lecturer and 1934 pro-
fessor ol International Law at Innsbruck University.
PRINCIPAL PUBLICATIONS
Das altsterreichische Nationalittenrecht in Sdtiroi, Innsbruck, 9S'J.
Zur Problematik der Heiligkeit der Vertrge, insbruck, 1931.
Unparteilichkeit in Vlkerrecht, Insbruck, 1940.
Die britische Fakultativklau gel als Vebergang zw autonomen Kriegsmanier,
Selbstverlag, 1942.
DISPLACED PERSONS
AND INTERNATIONAL LAW
CHAPTER I
THEORETICAL ASPECTS OF THE RELATION BETWEEN
STATE AND INDIVIDUAL
T
HE topic here dealt with seems to be unimportant at
first sight. One might be of opinion that only a limited
number of persons are concerned as D.P.& who receive
a special treatment in consequence of temporary events in
home or war affairs. Just as those events rise and disappear
in the flowing life of the nations also the consequences of a
legal kind the position of the displaced persons , it
seems, are of short duration and not worth a scientific consi-
deration.
However, behind the narrow fassade there is hidden a deep
structure, behind the affairs of people deportated and exiled
from their homes there is the chief question of the relation
of the individual towards the international community. Thus
this complex of questions becomes basic. We may say to
ourselves and to International Law : tua res agitur. From
this point of view our topic may deserve general attention.
For the classical doctrine the individual does not exist at
all. He has no international personality. He does not exist
as holder of rights and duties of International Law. Subject
to such rights and duties is the State and nothing but the
State. How could it be otherwise ? L'Etat c'est moi , said
Louis XIV. The law of states, the law between states and
the law within states was the law of the princes. And the
6 REUT-NICOLUSSI. DISPLACED PERSONS (6)
citizens were mostly only means for monarchical aims. If
the Duke of Hesse sold entire regiments to Great Britain
during the American War of Independence the citizens were
treated as mere things which have no will of their own, no
personality. The same method was still practiced at the
Vienna Congress as it is to be read in a treaty between
Prussia and Hanover :
La Prusse cde au royaume de Hanovre le comt infrieur de
Lingen et une partie de la principaut de Rhein-Wolbeck, qui sera
dtermin de manire qu'y compris le compte elle donne au Hano-
vre 22.000 mes.
The dependants in this case are mere appartenances of
the soil and are counted in pieces. This opinion was also
supported by philosophy, as for instance by the most
excellent defendant of state' s sovereignty, Hegel. To him
state is <( the moral totality, the realization of liberty , he
obeys but to one single rule : The purpose of the whole .
Here is legally no room left for the individual, especially
in regard the relations between the states. A new concep-
tion arises in the political philosophy of Western Europe
and America at the same time. The rights of men repel the
omnipotence of sovereigns as well as the unlimited power of
the state as a whole. This restriction does not go beyond
the frontiers. In the domain of international relations the
privilege of supreme powers of state is still prevailing. The
legitimate rights of the sovereign are however more and more
shaken by the claims of the nations as natural human group.
The Greek love of freedom casts off the yoke of the sultan,
the Italian nation triumphs over the rule of the Habsburgs.
Serbia, Rumania, Bulgaria gain their independence etc. But
on the level of International Law the Greek, Italian, Serbian,
Rumanian and Bulgarian national states are still indisputably
its subjects. They represent their citizens if they have a
claim on any other state. This claim is in this case the claim
of one state to the other. The individual had no other possi-
bility to gain satisfaction to his claim except via his own
country. Only the sovereign state was enabled to approach
(7) RELATION BETWEEN STATE AND INDIVIDUAL 7
another sovereign, only the state was entitled to make use
of the us standi in iudicio.
Phillimore formulates : The true end of International Law
is the welfare and safety of individuals as members of
states , and even with more emphasis John Basset Moore
writes :
More erroneous still is the doctrin which sees in the man a
subject of the law of nations; the man has international rights in
his character as a subject or citizen of a state through the inter-
mediate of that state.
On the other hand also the state was liable for its subjects
towards the ioreign states for the consequences of a wrong
stigmatised by International Law.
In this regard a genuine identification of the state and the
individual took place. This identification was made clear to
us in the most impressive way by Art. 3 of the Convention
of the Peace Conference of the Hague of Oct. 18th 1907
dealing with law and customs of war on land. The article
reads as follows :
A belligerent party which violates the provisions of the said
regulations shall, if the case demands, be liable to pay compensa-
tion. It shall be responsible for all acts committed by persons
forming parts of its armed forces.
But, as any other rule, also this one was broken by excep-
tions. So for instance in the treatment of pirates. The pirate
has always been regarded as public enemy number one, also
without treaty-rules. A principle of customary law expressed
this literally : Pirata est hostis generis humani. Therefore
he miay be seized by any man-of-war or merchant-man and
brought to punishment.
It is th pirate as an individual who commits an offence
against International Law and is personally liable to any
member of the community of nations without any regard to
his national state. In a similar way a neutral blockade-runner
incurs confiscation by the blockader according to old war
law. At this occasion no proceedings are taken against the
country of the ship violating the blockade.
8 REUT-NICOLUSSl. DISPLACED PERSONS (8)
Apart from such exceptions, up to now International Law
dealt with the position of individuals only in connection
with the problem how the individual has to be treated abroad
and in which relations to each other are the rights and duties
of the native country and the state of residence. It is the
so called law for aliens by which these relations are
settled. On the other hand the classical International Law
principally does not deal with the question of just or unjust
government, of liberal or tyrannic administration and the-
refore it also does not deal with the respect and disrespect
for the right of the citizen in his own country. It is regarded
as the very essence of sovereignty that the government is
the highest authority for the citizen in his own country and
that he cannot call for assistence against it from another
authority. The cases are entirely different, if the individual
lives abroad. It might sound paradoxical, but towards the
foreign states of residence and its government the individual
is not as helpless as towards his own government.
The alien is protected by the right of aliens. The state of
residence and its governments have no free scope at all in
the treatment of the alien. He deserves a certain degree of
respect not as a human being, but as the subject of an other
state. The state of residence has to respect the native state
in his person. He cannot kill him as he likes or deprive him
of his liberty and property. The juridical basis of this res-
triction is the fundamental right of the states to intercourse,
which seems inconsistent with complete privation of the
rights of the alien. The sociologie background for this is the
principal of reciprocity which always was successful : Quod
tu mihi hodie, ego tibi eras. Thus also the right of aliens is
one of the oldest institutions in international relations and
unknown only to the utterly barbarious tribes living in
woods. The International Law keeps to it in accordance to the
old customs and develops it by treaty-rules continually. But
it needs affirmation by treaty in its intrinsical meaning.
There is a standard minimum of civilisation which the state
has to observe towards the alien on its territory, a minimum
is determined by International Law. The Permanent Court
fe) RELATION BETWEEN STATE AND INDIVIDUAL 9
of International Justice declared in its judgement number 7
about certain conditions in Upper Silesia that some measures
against foreigners are not admissable :
Les mesures dfendues sont celles que le droit international
commun ne permet pas de prendre l'gard des trangers. .
This is just the standard minimum for which the native
state can claim its right of protection against the fact that its
citizens are deprived of the same. The respect of human
dignity belongs to it and of legally acquired rights, the
admittance to the court, the guarantee of security and liberty
adequate to a civilized community; as long as the alien does
not behave contrary to order he cannot be expelled. Beyond
this minimum, further rights can be granted to the alien by
state treaties. In many respects the alien enjoys equal rights
with the citizen in virtue of such treaties. But also where
the state of residence has no such treaty-founded duties the
elements of the right of aliens are alive and form the basis
for the protection of citizens abroad. The wrong which is
inflicted upon the citizens of a state by a foreign state is
regarded as inflicted upon the native state itself. Not only
its material interests but, beyond that, also its honour is at
stake. Even if the actual government does not care for the
person of the individual injured by the state of residence it
intercedes for him for reasons of prestige.
To manifest its interest and to give weight to it, the state
of nationality makes use of means of diplomacy; if there
are treaties it also appeals to the arbitrators and, if neces-
sary, it reverts to force.
Thus, Great Britain interfered in the case of her subject
Don Pacifico with great energy :
This British merchant complained that his house had been
sacked by a mob in the city of Athens and papers destroyed. A
blockade was entered upon against Greece until finally the case
was referred to arbitration through the good offices of the French
Government. The amount claimed was 21.29b pounds Sterling and
the award gave Pacifico L. 150.
The case of Great Britain against Greece because of the
io REUT-NICOLUSSl. DISPLACED PERSONS (io)
claim of Don Pacifico is a typical example of lhe fact that
the interests of a single citizen can be protected with the
utmost energy being considered the interests of the state
itself. Also the U.S.A. have availed themselves of drastic
means if a foreign state has not 'shown the obligatory respect
towards their citizens.
The aim of this protection is above all the abolition of
wrong, for instance the release of illegally imprisoned per-
sons, the returning of property which was taken away from
the aliens, the order to the courts to deal with his claims,
the withdrawal of the order of expulsion and so on. Besides
this the native state will claim damages for the harm caused.
To summarise : The position of the individual is therefore not
protected direcly by International Law. On the one hand the
native state can treat him arbitrarily, on the other hand the
individual can appeal to the help of his native state if he is
injured by another state. Only if the state of his nationality
regards the case as its own can the wrong be averted and
repaird. However, under normal conditions, within these
bounds a certain security of the individual is guaranteed. Of
course only under normal conditions, for also this rule is
not fully effective. There are anomalies which the Internatio-
nal Law could not settle satisfactorily.
In connection with displaced persons the questions of citi-
zenship have to be specially mentioned. The positive law
and the fundamental opinions of the qualified authors differ
extremely. According to customary law and treaties the sett-
lement of citizenship belongs to the matters essentialy within
the domestic jurisdiction of the state. That means that every
state can decide freely and at will whether to confer or
withhold its nationality and in respect of whom it chooses.
This can seem reasonable at first sight as it is an intrin-
sical relation which has important consequences; the sett-
lement of which belongs to the original tasks of a sovereign
power. And it can be imagined that the state has free scope
in settling questions of nationality if it lives in splendid
isolation. But this exclusive competence becomes illogical and
unpractical when the state gets into contact with other states.
( i i ) RELATION BETWEEN STATE AND INDIVIDUAL it
For citizenship means submission to the personal supremacy
of the state, thus a special iorm of rule. But, where more
than one make pretentions to ruling power over the same
object, it is in contradiction to juridical logic that each of
them may be entitled to decide.
Therefore it was quite justified that the League of Nations
in 1930 tried to reach an international settlement for the
purpose of avoiding difficulties arising out of the phenomena
of double nationality and statelessness.
Therefore the codification conference in 1930 stated that
it is the general interest of the international comimunity to
make all its, members declare that each individual should
have a nationality . It was added : and that he should have
but one .
As refugees and displaced persons are in many cases state-
less, a detailed consideration of statelessness is necessary.
Above all it must be explained how statelessness comes
into existence. We may say owing to the confusion caused
by the arbitraryness of legislation of the states in matters
of nationality.
In one state, A, citizenship is only granted to persons born
on its territory (iure soli); in an other state, B, it is only given
to those who were born as children of its citizens ^iure san-
guinis). The son of a citizen of A who is born on the territory
of B is stateless, he is not recognised as a citizen in A as
he was born abroad, but at the same time he is nor reco-
gnized as a citizen of B having not been born as the son of
a citizen of B. If in both the states the principle of ius soli
would be in force, or in both of them the ius sanguinis, this
case of statelessness would be avoided. But, as the states
keep to domestic jurisdiction, such contradictions and their
consequences are the results. And statelessness can also come
into existence when there is no rule at all concerning a cer-
tain state of affairs.
Even in such cases in which the states got into touch with
each other to settle problems of citizenship they often left
gaps and thus statelessness was created. This happened, for
instance, in the peace treaties of 1919/1920 by which the
REUT-NICOLUSSI. DISPLACED PERSONS (i2>
nationalities of about 100 millions of people had to be
resettled. Every allied country had its own wishes, which
were respected without any consideration of the consequen-
ces. Many thousands remained so without nationality .
A reason for statelessness, of special importance for our
subject and very much discussed, is denationalisation. If
the state can settle the citizenship all by itself, then it can
also regulate the condition of loss without regard to the legis-
lation to other states. Therefore the loss of nationality does
not at all depend on the condition that the person concerned
gets a new nationality. The circo instances under which a
person can loose their citizenship without acquiring an other
one are various. An individual who had acquired the citi-
zenship of the U.S.A. by himself will loose it, if he has left
the territory of the U.S.A. for a long period. The span of
time is measured in different ways. If he returns to his former
country the loss of U.S. nationality takes place after two
years; if he takes up residence in an other country, after
fixe years. In such a case it is of no importance whether he
regains his former nationality or not, therefore he very often',
becomes stateless.
In contrast to this objective system in the twentieth century
denationalisation is used by governments as a weapon against
their political enemies. This political denationalisation cor-
responds in its effect to the methods in the antiquity and
in the middle ages. The exile who is branded as an enemy
of his country is not allowed to return there. Here we are-
dealing more or less with the first personne dplace ,
displaced person. The individual denationalized for political
reasons is compelled to leave the country 'he belonged to or
is not allowed to returned thereto. Of course, such a govern-
ment does not care whether its former national finds any
other place in the world where he may live and work.
From the point of view of International Law the position
of the stateless deserves analysis. According to the classical'
opinion, International Law has only to deal with the states...
As the stateless does not belong to any state he does not exist
from the point of view of International Law; that means
<i
3
) RELATION BETWEEN STATE AND INDIVIDUAL 13
he does not possess any status which is protected by any
tate. He does not enjoy the benefit of the international right
of aliens. In his relations to the state of residence he cannot
avail himself either of customary law or of conventions.
Therefore the stateless can be expelled by the state of resi-
dence ad libidum and no other state is obliged to allow him
into its territory. Some writers advocate the obligation of
the state which has denationalized a person to re-admit him
into its territory. But under certain circumstances this may
mean death for the denationalized. Even admitted, he might
not regain his nationality and would live in his own country
as an outlaw. And, if he is not admitted, who should enforce
such a doubtful obligation ?
What is the position of the stateless under national law ?
Generally, if the government is not inspired by hostility,
the stateless one is protected by the civil and the penal law
of the state of residence but is excluded from certain pro-
fessions for which nationality is required, such as govern-
ment official, lawyer, physician, pharmacist etc. An exemp-
tion of the cautio iudicatum solvi is out of question for him,
and so he may be prevented from appealing to the courts
for pleading civil rights. Without enjoying the rights of
aliens he must pay the taxes fixed for foreigners. There is
no communis opinio concerning the question whether the
law of the state of his residence or the law of his native state
has to be applied with regard to his majority, to his ability
to contract matrimony and the ability to bequeath his fortune
and to similar problems of status. His liberty of movement
is restricted by the fact that the stateless cannot make any
pretensions to travel documents and therefore cannot get
any visas for other countries.
Political rights arc denied him and political influence in
his favour depends entirely on the interests of the state of
residence.
We dealt with this problem so extensively because the sad
position of the stateless person is shared by the refugee,
who still possesses his citizenship but, being persecuted by
his own government, look for shelter in an other state. He
is the original displaced person of the old type. Also the
refugee is deprived of the protection of his country, de jure
he may claim it, but de facto he cannot avail himself of this
right, as his relations to the government of his country are
hostile. However for him many legal problems are more
easily solved by the sheltering government. They can decide
by themselves the problems of status or the application of the
conventions existing between them and the native state.
Of course much depends on the benevolence of the state of
asylumi, which is perfectly free to grant or to refuse shelter.
To sum up, we must confess that the principles of the clas-
sical International Law that is to say the system in force
up to the end of the first world war must be considered
unsatisfactorily from a general humane point of view.
While the states were considered the only subjects of Inter-
national Law the individuals and their rights were juridi-
cally neglected. But already the dawn of a new idea is in
sight, where governments are reminded, that states are not
celestial bodies but products of man for man.
The conception that only states can be subjects to inter-
national law and that the individual takes part in the rela-
tions between the nations only as citizen, has been opposed
to an increasing extent by theorists since the end of the last
century. This conception coordinated neither with the general
philosophical development, nor with the newer tendency of
state philosophy, as it started with the encyclopaedists and
found its realisation in the constitutions of North America
on one side, and in the French philosophy on the other. If
the opinion of Jean-Jacques Rousseau was recognized as being
correct, that man is born free and predestinated for freedom,
then he could not be treated as a thing which has no will
and therefore no legal capacity. Since the Declaration of Inde-
pendence of the United States declared : We hold this truth
to be selfevident, that all men are created equal... that to
secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed
it was not to be comprehended, why, in international law,
the individual was to disappear totally behind the state, and
(ij) RELATION BETWEEN STATE AND INDIVIDUAL 15
why the government was to be master of the position of the
single human being in international law. What the British
democracy had typified in parliamentary institutions and the
continental institutions had taken over after the model of
the droits de l'homme et du citoyen , could not stop before
the doors of the international community. Immanuel Kant
probably was the first to proclaim the intimate connection
of the international order and the human fundamental rights.
In the treatise On eternal peace the indication is to be
found that peace is only guaranteed by a League of Nations,
which must be formed by states with republican constitution.
The substance of republican constitution Kant saw in the
division of powers, by which inborn, to mankind necessa-
rily belonging and inalienable rights were warranted. Since
then doctrines of the same tendency are repeated by different
winters. Opposed to Phillimore and John Basset Moore arise
Fiore, Heffter, Krabbe, Duguit, Westlake and others, who
with full certainty acknowledge the individual as subject to
the law of nations. The Institut de Droit International ,
in a resolution of the year 1921 pronounced : The State,
in the world, is only a means to an end : that is the perfec-
tion of humanity. There the conclusion cannot be doubtful.
Bergson has drawn it : Toute institution humaine doit
concourir au bonheur humain; l'individu est reconnu comme
l'ultime destinataire de tout droit. Today the opinion that
the individual is a legal subject may be considered prevalent
over the fiction de la personnalit tatique (Scelle).
What authors had substantiated philosophically, by and by
took possession of public opinion and finally conquered the
resistance of the governments. In a series of institutions the
recognition of the individual as subject to rights beside the
states is successful on an increasing scale. The fight against
the slave trade and later against slavery itself has its roots
in nothing less than in the finally undisputed human dignity.
This finds its expression not only in the moral condemnation
of 1815 but since 1841 also in repeated treaty rules about
the abolition of this abuse in the history of the nations. Juxta-
position of individual rights and statepower is already clearly
discernable.
i6 REVT-NICOLUSSI. DISPLACED PERSONS (16)
Also the options connected with cession of territory stipu-
lated by agreements belong to this chapter, when the single
person acquires a right to this or that citizenship by his
declaration in favour of this or that state.
It was objected to the significance of such institutions that
the rights granted by them to the individuals could not be
pleaded before a court and therefore they were irreleyant.
According to our opinion this conclusion is not logical. In
international law one speaks of rights also when an appeal
to law courts is out of the question, as for instance in mar-
tial law. One may speak of shortcomings of the organisa-
tion, in the persecution of such rights on the legal way. The
international law has already made amendments to this defi-
cient organisation. Thus, for instance, the statute of the
Central American Court of Justice permitted the assertion
of rights of individuals by themselves against signatory states
to the court.
In the same manner the,peace treaty of Versailles and the
other peace treaties of that time have granted the appeal to
the Mixed Arbitral Tribunals against states for single per-
sons (Peace Treaty of Versailles, Art. 297, Peace Treaty of
St. Germain Art. 256). Therefore the Permanent Court of
International Justice in its judgement of September 13, 1928
could state in general that a right of complaint as regards
international law may be granted to single persons by means
of a state treaty .
A further step was taken by the fact that in law of labour
a procedure could be started by groups of employers as well
as employees against that member state of the International
Organisation of Labour, which has failed to secure in any
respect the effective observance within its jurisdiction of any
convention to which it is a party . (Peace Tr. of Vers.,
Art. 409).
This international regulation of labour problems has its
root in the Preamble of the 13
t h
part of the Peace Treaty
of Versailles by the indication : whereas conditions of
labour exist involving injustice, hardship and privation to
(i7) RELATION BETWEEN STATE AND INDIVIDUAL 17
large numbers of people and that the signatory states
were moved by sentiments of justice and humanity .
It can not be denied : this recognition of claims of justice
in favour of workers as the right of employer and employee,
In propose sanctions against certain states, contains a proof
that also in international law the single man already enjoys
the immediate protection of the law and does not depend
entirely on the defence of the stete any more. It deserves
special attention that the action of the industrial association
who starts the proceedings may be directed against the native
country of these employers and employees. This is an enti-
rely new aspect within the relations of. international law.
Not only that the unbending legal monopoly of the states
is abolished and a subjective claim of international cha-
racter also beyond the competence of the state is formed,
but, more than that, the international community can be
mobilized by the individuals against their own state, in case
this state neglect its duties towards the individuals.
This innovation would not be so impressive, if it were not
accompanied by a parallel institution, i. e. protection of mino-
rities. The First World War took its start from a minority
problem. Thus the international community, in order to
secure peace for such states having problems of different
nationalities, agreed upon creating a protection of mino-
rities . The observance of these duties was guaranteed by
the League of Nations and the individual as holder of rights
is distinguished from the state, even from his own state,
which is bound by committments. And here, as in the Inter-
national Law of Labour, the possibility of a procedure is
provided which the individual himself, even a single indivi-
dual, may start by means of a complaint to the League of
Nations. This time, apart from members of the Council of the
League of Nations, it is only citizens who can lodge a com-
plaint against their own states.
And again justice is underlined as a moral basis by the
states bound by such treaties :
Poland desiring to conform her institutions to the principle
i8 REUT-NICOLUSSI. DISPLACED PERSONS (i8)
of liberty and justice and to give a sure guarantee to the inhabi-
tants of the territory over which she has assumed sovereignty...
This principi of justice towards the individuals as mem-
bers of religious, racial and linguistic groups of citizens has
penetrated deeply into the conscience of the community of
international law. At the conference of Evian, even the repre-
sentative of the U.S.A. which, as it is known, was not bound
by any such treaties of protection for minority groups, atta-
ched himself to this cause :
Discrimination and pressure against minority group6 and the
disregard of elementary human rights are contrary to the principles
of what we have come to regard as the accepted standards of civi-
lisation.
In the act of securing these standards of civilisation the
Allies did not refrain from breaking into the most sacred
regions of domestic jurisdiction and have imposed far-
reaching bonds, even in cases of citizenship, on Poland and
the other states bound by international protection of mino-
rity groups, as for instance the validity of the jus soli. Reason
for that was, among other things, the fact that in some of
these East-European states citizenship had been denied to
Jews.
With these institutions we find ourselves already on the
ground of basic rights of the individual in international law,
and their recognition by a formal act was only logical. It
was performed by the resolutions of San Francisco, where
the founders of the United Nations in the Preamble to the
Charter declared themselves
. . . determined to reaffirm faith in fundamental human rights,
iu the dignity and worth of the human person, in the equal rights
of men and women and of nations large and small .
With this in the most important Charter of international
law a solemn confirmation of the said development is
contained, namely from the right of states to the right of men
also on this field, where mankind cooperates, in order to
make law replace force. Those fundamental human rights
(ig) RELATION BETWEEN STATE AND INDIVIDUAL ig
namely, which are dealt with here, do not concern states
and their governments any more, but they are adjudicated to
individuals. In the following one reads of the worth of the
human person and of equal rights of men and women, but
also the contents of the fundamental human rights, as it
miay be understood by the precedents and by the following
work of the United Nations, makes us recognize that only
the single human being is their holder. Their starting point
are the four freedoms of Franklin D. Roosevelt; Freedom of
Religion, Freedom of Speach, Freedom from Want, Freedom
from Fear. It cannot be intended that states shall be free in
their religion and it can only refer to single persons, if the
freedom of the expression of opinion stands open to argu-
ment. This becomes still clearer, if one consideres the propo-
sitions of the comaniission which was charged by the United
Nations to prepare a codification of the rights of men. The
work of this com/mission directed by Mrs. Eleanor Roosevelt
was concluded in December 1947 at Geneva. It was laid down
under the title International Charter of Human Rights and
comprises on one hand a Declaration of Human Rights ,
which is to be accepted by the General Assembly as recom-
mendation with moral significance. On the other hand the
project of a convention was worked out, which will bind the
signatory powers and which is called Pact of Human
Rights . The substantive contents of the rights thus treated
corresponds to the rights and principles of municipal law
as laid down in the democratic constitutions of the world.
Everybody has the right to leave his native country and, if
he wishes, to acquire the citizenship of a country which is
ready to receive him. Besides, there is still another point
in the Charter which is of high interest to us : Everybody
has te right to a nationality; everybody, who docs not enjoy
the protection of a government shall be placed under the
protection of the United Nations.
The legal bearing of these definitions will depend on the
attitude of the government towards them and especially on the
fact wheter the sanctions provided in the convention will find
the approval of the states. If it comes to a ratification, then
REUT-NICOLUSSI. DISPLACED PERSONS (20)
according to the unanimous opinion of the commission
a change of scene will take place in the international order,
in so far as the problems dealt with in the Charter and in the
Convention will be eliminated from th domaine rserv
of the states. In the treatment of disputes concerning these
cases the state cannot appeal to domestic jurisdiction and
reject the intervention of the United Nations. The citizen
in such a case will, on the strenght of the Charter, in connec-
tion with the Convention, face 'his own state as self-reliant
legal subject and have the possibility to request the protec-
tion of his human rights.
However, the recognition of human rights in the Preamble
of the Charter of San Francisco gives already evidence of
that change in the international order, by which it shall
become an order between men instead of only between states.
To this solemn affirmation of the subjective rights of the
individual within the society of international law corresponds
another new, not less revolutionizing institution : the inter-
national administration of penal law. At the end of the
Second World War the United States, Great Britain, France
and the U.S.S.R. have adopted a different method in the
Treaty of London of August 8, 1945. They concluded to hand
over themselves the so-called war-criminals partly to the
national courts of the different victorious states, partly to
an international penal court. Thus it happened, and in nume-
rous criminal proceedings, of the indicted statesmen, indus-
trials and generals of the defeated some were sentenced and
others acquitted. These proceedings, undertaken by the four
greatest powers of the world with the participation of nume-
rous smaller states, breaks the principle still confirmed by
the international community at the second peace conference
in the Hague 1907, concerning the responsibility for viola-
tions of martial law. As may be remembered, the article 3
of the Convention concerning the rights and customs of land
warfare of October 18, 1907 clings to the rule of the liability
of states themselves for violations of the regulations about
land warfare and that they have the responsibility for the
actions of their military personnel before the international
(2i) RELATION BETWEEN STATE AND INDIVIDUAL 21
law. For us one side of this innovation is important : that
here the individual appears in the most striking way as capa-
ble of rights and duties in the sense of international law,
i. e., as subject to international law. Not only the state is
capable of offence, who solely was so up to now, but the
single man can be called to account for violations with his
body and soul and with all his fortune. The accused, however,
within the frame of this administration of penal law, has
also his rights, which he may claim without the aid of a
state, rights, which are to secure an unhindered defence.
This has been laid down expressively in the conventions
of 1948.
Clearer than in any other connection the fundamental
change of international law is seen here, for which only
now Politis's definition can be applied indisputably :
Le droit international est l'ensemble des rgles qui rgissent
les rapports des hommes appartenant divers groupes nationaux.
This development of international law, however, did not
take its course without disturbances. It was especially those
last decades which brought about the most vehement oppo-
sition against every mitigation of the so-called classical
conception of international law. Take the attitude of totalita-
rian states. The deification of the state is attempted to be'
justified by some idea of state philosophy. Hegel, the father
of this school, declares the state to be God on earth , the-
refore it has also the greatest right towards the single man
and for him it is the greatest duty to be member of a state
and to devote himself completely to it. (Grundlinien der Phi-
losophie des Rechts oder Naturrecht und Staatswissenschaft
im Umriss, 1821.) It is not to be wondered at that by the
omnipotence of the state the human rights must also vanish
and if they have been left in the constitutions every pos-
sibility to appeal to them against the government is frustrated
by police measures.
It is obvious that such a state does not recognize an
immediate relation of the individual to the international
law community. To it the international order is, to speak
REUT-NICOLUSSl. DISPLACED PERSONS (22)
with Hegel, only valid as external constitutional law and
its breaks it as soon as it hinders its enterprises.
Fascism said Mussolini in a speech before the Senat
disapproves of world-wide fraternisation. It lives for the commu-
nity of the state, watches the nations with a suspicious and vigilant
eye, persues their attitudes, their transformations and their inte-
rests and will not be deceived by temporary and delusive signs.
The totalitarian state can not adher for long to an interna-
tional political organisation because the selflimitation
demanded by it contradicts the very principle of its system
and, in consequence, we see it separate from the League of
Nations. To this separation fully correspond the disregard
of rights of minority groups, the rejection of the freedom of
coalition as it is laid down in the international labour rules.
If the totalitarian state is not the first one to deprive its
dependents of their citizenship for political reasons, this,
nevertheless, has never been exercised to such immense
extent by other states. For there are millions of expatriates
who were expelled from the community of their states by
totalitarian governments, because they had gone abroad or
had not returned from there in order to in the words of
James G. Mac Donald remain loyal to the old ideals of
religious and individual freedom. Millions of them lost their
homes, their nationality, were separated for ever from fami-
lies and friends and at the same time dispossessed of all their
property, which was left under the jurisdiction of the totali-
tarian ruler of their unfortunate mother-country.
Other millions of men were by such governments deprived
of their personal freedom under the hardest conditions in
their own country and forced to hard labour for many years
under circumstances incomparably more grievious than the
life conditions of the slaves in the antiquity or on trans-
oceanic plantations. The flight from such a fate itself was
treated as a crime and all protection was denied to the refu-
gee abroad.
Thus in the totalitarian states a complete lack of right
took, and takes, place, which does not only raise protest in
(2
3
) RELATION BETWEEN STATE AND INDIVIDUAL 23
political circles, but induced also theorists of international
law to take stand and made the international community
start practical measures. For on one hand the question arose
whether with the present state of international solidarity it
was justifiable to interfere in the affairs of totalitarian states.
Had not Grotius already spoken of a right of the sovereigns,
not only to punish injustice committed on themselves and
their subjects, but also that wrong which does not actually
concern them, if it means a grave offence against the law
of nature or of nations, against whomever it may be directed.
And Grotius repeats : I say, against whomeaver it may be,
and not only against their subjects.
From the same source of the law of nature as natural
human right is the condamnation to be derived, which the
Congress of Vienna raised against the slave trade, against
this scourge which already so long is devastating Africa,
which dishonours Europe and has precipitated mankind into
grief .
How much more reason was there for an interference
against governmental methods which surpassed the Neronic
persecutions in extent and not seldom in cruelty ? The law
of nations, however, had not yet formed the humanitarian
intervention in clear and positive rules, yet one could with
good reason be of opinion that the material development of
the international relations and the moral progress in mankind
had grown so far that an interference into such provocative
conditions could not appear but fully admissable. In fact the
Institut de Droit International at the Congress of New York
on October 12, 1929 had concluded an article which reads :
Il est du devoir de tout Etat de reconnatre tout individu le
droit gal la vie et la proprit et d'accorder tous sur son terri-
toire pleine et entire protection de ce droit sans distinction de
nationalit, de sexe, de race, de langue ou de religion.
If, according to the opinion of this highest scientific autho-
rity, there was such a duty of the state in regards of inter-
national law, without doubt there had to exist a right for
the other states to reject violations of these duties. In fact
?4 REUT-NICOLVSSI. DISPLACED PERSONS (24)
the realisation of rights among the states is always condi-
tioned by the readiness to use means of power. If there have
been repeated interventions against the Turkish government
in the 19
t h
century because of massacres of Christians, the
interfering powers could be sure that they were not in any
danger. But in the last decades great powers violated the
rights of humanity. An action against them could have led
to earnest conflicts. For these no government wanted to fake
the responsibility.
Therefore it was agreed upon, instead of taking repressive
measures against the oppressors, to carry through diari tab le
actions for the persecuted, i. e. for those who were in need
of support, namely the displaced persons, the refugees of the
countries of suppression and massacre.
CHAPTER U
THE DISPLACED PERSONS PROBLEM AS A MATTER
OF INTERNATIONAL CONCERN
I
N the light of the explications given up to now the legal
relation of the displaced persons presents itself as a
problem of International Law. Before dealing with it a
definition of the expression must be given. A difference
should be made between a wide and a narrow conception of
the displaced person.
In the wider sense a displaced person can be understood
to be one who lives outside his or her native country and
is protected by international organisations. To this circle
belong those millions of people who since the first World
War have got help as refugees from the League of Nations.
The Institut occasionally has given a definition of them
in the year 1936 :
Tout individu qui, en raison d'vnements politiques survenus
sur le temtoire dont il tait ressortissant, a quitt volontairement
ou non ce territoire ou en demeure loign, qui n'a acquis aucune
nationalit nouvelle et ne jouit de la protection diplomatique d'au-
cun autre Etat.
Today one calls displaced persons in lhe narrower sense
a group of people who belong to the above mentioned group,
but who are supported by the International Refugee Orga-
nisation (I.R.O.), created by the United Nations. This group
is distinguished from the rest of the displaced persons by
the fact that they are a victim of the so called fascist states
and their measures during the second world-war. Because of
the peculiarity of their situation they have also been called
i< short-term refugees .
a6 REUT-NICOLUSSl. DISPLACED PERSONS (26)
In order to avoid confusion the term displaced persons
will be used only for the victims of fascist measures of war-
fare, so called by the I.R.O. for the wider conception we
shall apply the termi refugees . For in order to understand
the legal position of the displaced persons we must also
take into account that of the refugees.
It is true, there have always been refugees, since men lived
in political communities, for always again the true function
of politics, the sovereignty, has been abused for suppression,
and always again the governed have tried, rightly or wrongly
to shake off the sovereignty. Out of these sociologie events
exile and flight arose, and out of these two elements the
political refugees came into being. From Themistocles
and Coriolanus to Dante and Albericus de Gentilis, from
Hugo Grotius and the Huguenots to Voltaire and the Revolu-
tionists of 1848, all the roads of Europe were trodden by the
hunted feet of refugees. The International Law has occupied
itself with them within the frame of the right of asylum'.
Leaving this question aside, let us limit ourselves to the
legal analysis of the position of such refugees, who since the
formation of a more intensive collective system, i. e. since
the foundation of the League of Nations at Geneva, have
become an object of collective assistance beyond the limits
of interests of two states, namely the native country and
the country of refuge.
The reason why refugees are supported at all by the inter-
national bodies is twofold. The number of the refugees may
increase to such an extent that one single state of refuge,
through political or financial reasons, is not willing or able
to bear alone the burden connected with a right of asylum.
If the refugees who are streaming from their native country
to a state of refuge number ten, or even a hundred, thousand,
then the political relation between both states will be endan-
gered to a greater extent than by some hundreds who seek
refuge.
If the state of refuge is, according to International Law,
entitled to expel the refugees who saved themselves into its
territory, then on the other hand no other but their native
(27) MATTER OF INTERNATIONAL CONCERN 27
country is obliged to receive themi. Thus they would be forced,
if no other state were willing to admit them,, to return to the
very place from which they departed, in order to escape from
persecution, imprisonment, torture or even death. It cannot
harmonize with the refined oonscience of the world of today
to extradite to their suppressors such persons who often were
driven to flight only by rude tyranny. Grotius tought :
Those who have been driven from their homes have the right
to acquire a permanent residence in another country, in submission
to the government there in authority.
If the positive rules of International Law should not use
expressive language about this, then on the other hand, the
feeling for justice of the cultivated nations has grown so
strong in this respect that the adaption of the positive law
by corresponding agreements has become inevitable. Until
this adjustment, however, the extradition of refugees to the
state that persecutes them is morally inadmissible. This has
also been declared by a high functionary of the League of
Nations, James G. Mac Donald in his letter of resignation as
High Commissioner for Refugees : <. considerations of diplo-
matic correctness must yield to those of common humanity.
Still more touchingly was this thought expressed by the Pre-
sident of the Social Christian Youth of France, Marc Sangnier,
when speaking of the refugees at the International Conference
for the right of asylum 1936 he said :
S'ils ne sont plus, hlas, reus dans leur Nation, ils n'en
demeurent pas moins des hommes, et 6i les liens qui nous atta-
chent, chacun de nous, notre Nation peuvent tre considrs
comme sacrs, bien plus sacrs encore sont les liens qui nous rat-
tachent l'Humanit tout entire.
Consider the case which occured repeatedly within the last
decades : hundreds of thousands of people must leave their
homes in order to save themselves from the greatest dangers
of freedom and life. They reach the territory of a neigh-
bouring country and are out of the grasp of persecution.
The state of refuge, however, is perhaps, with the best will,
not able to provide this multitude of destitute people with
food and lodging. On the other hand no other state is forced
to take them over as a whole or even only in part. Urgent
moral reasons, however, forbid the sending back of thoe
people who are for the greatest part innocent. Is it not self-
evident in such a case that humanity must stand up for these
in the shape of its organisations which are already exist
to-day ? This was the reason, too, why in the third General
Assembly of the United Nations on February dl, 1946 the
resolution was passed unanimously : This problem is inter-
national in scope and nature. This is to say that, according
to the opinion of the United Nations, the tasks connected
with the refugee problem cannot be treated in the domestic
jurisdiction of the single state, but that, in consequence of
their very nature, they can only find their accomplishment
by cooperation of the community of the states and that for
this purpose an international regulation has become neces>-
sary. For this task does not only require powers superior to
those of the disposal of the single state, but the fates of men
that are at stake are to be treated according to common
humane principles by the family of nations. Also the preser-
vation of peace, an important aim of every international regu-
lation is closely connected with a useful treatment of the
refugee problem, since racial and religious intolerance very
often led to grave conflicts. Consequently the international
community, also in order to secure peace, has reason to
ponder this point and its results, the flight of larger groups of
persons.
Therewith we come to the concrete facts of the refugee
problem and their international regulation.
The flight from a country brings weighty problems in its
wake, if it is a streami of people and not single persons who
leave their native state. Such movements are connected with
two kinds of events, where force plays a decisive part : wars
and revolutions. It has also occured that masses of people
left their residences because of famine, but then they sought
a geographical change and did not have to flee from the
governmental power. Religious and racial suppression have
also caused emigrations, but they seldom took a large form.
(2
9
) MATTER OF INTERNATIONAL CONCERN 29
One may only think of the patience with which the Jews
suffered the sometimes very hard restrictions of liberty and
damages in all countries of Europe. Only if the persecution
threatens life, larger groups of people make up their minds
to abandon home and living and to face uncertainty in a
foreign country. This danger of life however takes place
just then when armied conflict and its harsh rule dominate
the inner and outer life of nations, that is to say in times
of revolutions and wars.
A survey of the cases which caused a collective assistance
of the states, that means an international treatment of the
refugee misery, confirms this statement.
The first occasion was brought about by the immense poli-
tical and social transformation of the Bolsheviks in the year
1917, at the same time a result of the greatest war Russia
had ever fought. More than a million Russian citizens, parti-
sans of Zarism or enemies of the Communist social order, left
their native country then and during the following years for
fear of deportation and capital punishment, and sought refuge
in the whole of Europe and beyond the ocean.
Also in connection with the first World War more than a
million Greeks (Turkish nationals of the Greek Orthodox reli-
gion, as they were called) were expelled from Asia Minor.
Since the Greek minority of Smyrna and the neighbouring
regions seemed to be unreliable because of the religious
contrast and the cultural and historical connection with
the Greeks in the Hellenic kingdom, the Turkish government
decided on their expulsion. It was carried through in the
course of the Greek-Turkish war by the troops of Kemal who
advanced towards the Aegean coast, driving the Greek popu-
lation before them towards the sea. In order to avoid a fright-
ful massacre among these fugitives the Greek and other
governments sent ships to the ports which received the per-
secuted and took them to Greece. At the Peace Conference
of Lausanne 1923 the Greeks gained as compensation the
forced repatriation of about four hundred thousand Turks
(as it reads in the said treaty : Greek nationals of the Moslem
religion) from their homes in Greece to Turkey. The Greeks
jo REUT-NICOLUSSI. DISPLACED PERSONS (30)
expatriated from Asia Minor became, according to the sett-
lements of the treaty, inhabitants and nationals of Greece.
By the same methods, in the same striving after unifor-
maition of the population of the state, the Turks in the same
epoch still expelled 300.000 Armenians, 30.000 Assyrians
and Assyro-Chaldeans from' the country. They fled partly
into deeper Asia, partly under the protection of the Allies to
Europe. The reason of the expatriation was racial difference
and the Christian confession of these groups, which were
considered undesirable by the Turks.
In the Spanish civil war of the year 1936 an extensive flight
occurred in consequence of the defeat of the democratic par-
ties, that poured over the Pyrenees into France. The refugees
are still to-day called Spanish republicans .
In the same manner the great emigration from, Germany
was composed of democrats and, later, of Jews. It had its
source in the persecution of the political adversaries of Natio-
nal Socialism and in Hitler's menace against the Jews. The
emigration originally permitted changed later into a clan-
destine one and extended also to democrats of the countries
allied with, or occupied by, Hitler. After the annexation of
Austria these were joined by the anti-fascists and Jews there,
as weld as those of Hungary, Italy, Bulgaria, Rumania,
Poland, the Netherlands, Belgium, France and the other
territories drawn into the theatre of war.
After the second World War an especially strong group
of refugees was formed by the measures of the Czecho-
Slovakian and Polish governments against the people of Ger-
man race and language living in their states. By the same
method as the Turks in the year 1922 these states tried to
solve the problem of their German minorities by expelling
as a whole those groups of Czecho-Slovakian, or Polish citi-
zens of German language. In the same manner Russian
removed the Germans from the territories annexed by her,
in so far as they were not deported into inner Russia. In the
course of these actions six millions peoples in the Eastern
regions were forced to leave their homes.
In addition to that, several hundred thousands of Volks-
(
3
i) MATTER OF INTERNATIONAL CONCERN 31
deutsche have, in imitation of this example, been turned
out of Hungary and Yugoslavia or have fled from the
advancing Russian army.
AM the groups of people already mentioned have in com-
mon the typical feature that they left their countries either
in consequence of forced measures of their governments or out
of fear of persecution. After the second World War a new,
formerly completely unknown, category of expatriated per-
sons joined them, the displaced persons in the narrower sense.
This category arose from the labour hired more or less by
force during the war by Germany in the occupied countries,
who were to fill the gaps caused by military service in the
German industry and agriculture. The number of the thus
deportated, including the prisoners of war found in Germany,
was estimated to be ten million. Already during the war
the Allies had worked out plans how they would repatriate,
after the termination of hostilities, those workers recruited
by force. In fact this task was solved in respect to the great
majority of the deported. A part of them refused to make
use of this opportunity. In these cases we have chiefly to deal
with dependents of Eastern states, that is to say of Russia
or countries which had got under the immediate power of
Russia or which under the influence of Russia had adopted
a new social order. Some of those deported by Germany
either feared to return home into such altered circumstances,
for political reasons as adversaries of the communist system,
and to expose themselves to the danger of persecution, or
found life unbearable in an entirely changed economic and
social order. Also religious reasons were important for some
people of that category, for in some of the states ruled by
Russia their confessions were exposed to great difficulties.
The number of those displaced persons, who after the
second World War had a physical possibility to return home,
but for the indicated reasons did not make use of it,
amounted to about one million people. They belonged to
twenty different nations.
Finally, besides these large groups of refugees there are
still several smaller groups, as for instance the Italian mi-
3
grs who fled abroad from the Fascist persecution. Since they
did not find international care they shall not be dealt with.
Other similar happenings out of the numerous expatriations
which took place in consequence of treaties of states since
the first world war do not, in spite of some external resem-
blances, belong here, because they lack essential legal ente-
rions of the (( refugees as we defined them, especially the
characteristic of non-protection.
This state of affairs of the refugee problem outlined in
brief has been treated equally in some points, differently in
others, by International Law. The attitude of the cooperating
states was conducted by humanitarian motives on the one
side, by practical expediency on the other. Among the reasons
of humanity again the consideration of the wishes of the
refugees had to play a part. Since more than hundred years it
corresponds to the democratic conception of the right of the
individual that every man may choose freely and by himself
where he wishes to live. No state was allowed to hinder its
subjects, let alone other persons, in leaving its territory and
in acquiring another citizenship. This right was especially
supported by the government of the U.S.A., that for a long
time laid great stress on the fact that the immigration from
Europe should not be prohibited by the European govern-
ments. Also the Congress of the United States took up its
position in this sense. In evident connection with the thesis
of Jean-Jacques Rousseau tout citoyen a le droit inali-
nable de quitter le pays , the Congress cast a resolution on
July 27 1868, which reads :
<( Whereas the right of expatriation is natural and inherent of
all people, indispensable to the enjoyment of the rights of life,
liberty and the pursuit of happiness.
From, there a direct line leads to the resolution of the com-
mission for human rights of the United Nations under the
leadership of Mrs. Eleanor Roosevelt, which reads : Any
person who is not subject to any lawful deprivation of liberty
shall be free to leave any country, including his own.
Thus also in refugee problem it is a principle that the
desire of the refugees to settle outside their native countries
had to be respected.
Naturally the states in taking the necessary measures were
always led by considerations of political opportunity, by the
thought, what was in their best interest. Not seldom in the
past the refugee became the instrument of intrigues.
It can however be stated that with the collective treatment
of the refugee problem between the two world wars the huma-
nitarian viewpoints were superior to those of expediency.
Therefore solutions were found which may be considered
progressive and useful from the point of view.of International
Law. For, we notice a progress and an advantage for the
development of International Law in such forms, where the
inconsistant changeable element of politics gives way to
the durable features of a treatment based on principles. This
very fact, however, seems characteristic to us for the attitude
of the international community towards the refugee problems
including the displaced persons. The resolutions of the League
of Nations and the United Nations, as well as the conventions
concluded in this matter, are inspired by homogeneous ideas
which for themselves and together with the particulars of
the rules form a system that may be considered as having
a positive value. A system that encourages our conviction
of the possibility of expansion and of the future strength of
International Law.
For these reasons we have a double motive to occupy our-
selves with the method with which the international com-
munity has treated the phenomena of the refugee problem.
The migration of peoples which has taken place in Europe
since 30 years, especially from the East to the West, put
the statesmen of the countries of refuge before the most
earnest problems. First of all it was necessary to care for the
nourishment of those people. The households of the commu-
nities and provinces were not prepared for that; still more
difficult was the housing problem. Therefore the governments
of the states of refuge were always again forced to apply to
other nations, especially the wealthy ones, for joint charita-
ble support. The competent authority for the preparation
and application of such collective measures was, since the
end of the first world war, the League of Nations. Besides
the safeguarding of peace between the nations it had put as
its aim to promote international cooperation through the
maintenance of justice. Did not also the support of innocent
people who had been driven to foreign countries and threa-
tened in their mere existence belong to the commandments
of justice ? Besides also the commitments which the member
states had taken over according to article 23 with regard to
the organisation of Labour could be applied to the refugee
problem. For there it read that the members of the League
of Nations
... will establish and maintain the necessary international
organisation lor the purpose of securing fair and human condi-
tions of labour for men, women and children in their own coun-
tries and in all countries to which their commercial and industrial
relations extend .
With fuM right the states of refuge referred to the fact that
formerly international powers had been appealed to for the
removal of damages caused by natural catastrophies as for
instance in the case of the earthquake which destroyed Mes-
sina at the beginning of this century. How much more coope-
ration was necessary now, since the League at Geneva had
been created as proof of the world-wide consciousness of soli-
darity and the realistic connections of interests from conti-
nent to continent.
In the argument on the success or failure of the League
of Nations which is still going on in the public opinion, its
defenders may refer to the fact that the appeal of the states
of refuge has not died away unheared but that good and
useful work was rendered by the League in favour of the
refugees. At any rate, millions of people and their descen-
dants will be grateful to the League of Nations that it mobi-
lized the means of assistance among the widest circles, espe-
cially of the member states themselves, in order to procure
them a new home and, in this home, work and shelter. Surely
neither single states nor private companies could have had
the financial means and the political influence to carry
through those actions for the relief of material need and the
overcoming of legal difficulties. Even a superficial survey
of the work done by the League of Nations on this fieJd will
prove this view.
Immediately after the end of the first World War the
private help, so generous at heart, bestowed on those who
had fled from Russia during the Bolshevist revolution proved
insufficient. The International Committee of the Red Cross
whose chief merit it was to effect this charitable work, then
proposed the appointment of a High Commissionner. He on
one hand had, on the strength of the authority of the inter-
national community, to prepare the provision of financial
means from the governments, on the other hand however in
contact with the governments had to take the most urgent
legal measures for the regulations of the status of the
refugees.
Since the famous arctic explorer and scientist Dr. Fridtjof
Nansen by successful auxiliary work for the return of the
prisoners of war of the Central Powers fron Russia had dis-
played his special faculty for far reaching enterprises, the
League of Nations installed him as High Commissioner for-
th Russian refugees. This choice proved fortunate, for,
owing to Dr. Nansen's energy and skill, an effective treatment
of the problems was possible.
The great philantropist endeavoured above all to set limits
to the conception Russian refugee and with that he really
established a starting point. Russian refugee was defined
as a person of Russian origin who does not enjoy or no
longer enjoys the protection of the government of the
U.'S.S.R. and who has not acquired another nationality .
The criterion of this definition are intelligible. Only he can
claim the aid of other states, who is deprived of the protec-
tion of his own state. As protection there is chiefly to be
understood the issue of identity documents, which in the
present time are indispensable for the residence and all
affairs with authorities in a foreign country, especially also
for the crossing of frontiers, for the moving of residence to
another state. Besides, such documents are the necessary
basis for the most important acts of legal life, for marriage
contracts or divorce, for adoption and for the evidence of
the status, for instance as regards the coming of age, the
'capacity, to make a will and the ius standi in iudicio, etc.
The government of the country from whose personal supre-
macy the refugee has fled or which considers him as an
enemy crossing its plans and damaging its interest, refuse
the prolongation of this passeport or the issue of new travel
or other identity documents to the refugee. It is due to
Dr. Nansen's energy that first the Russian refugees, on the
strength of a convention formed between several states under
the auspices of the League of Nations in the year 1922, were
furnished with an identity card by the state of refuge, which
granted them not only the possibility to travel but also the
above-mentioned Legal basis for so many acts in civil and
administrative life. In the course of the following six years
51 states declared themselves ready to issue a so called
Nansen Certificate to the refugees registered by the High
Gomimissioner. With this the refugees were relieved from
innumerable difficulties which hindered them perpetually.
t he door was open not only to relatives in other countries,
but also to the possibility to earn a living and to the dispatch
of vital legal affairs. Later Dr. Nansen's competence was
extended also to other refugees, as to Armenians, Assyrians
and Assyro-Chaldeans. These also profited by the establish-
ment of the Nansen Certificate. One may say that only by
these documents legal personality was given back to them.
Dr. Nansen's next important task was the repatriation and
resettlement of the refugees. Since Nansen at the time of the
Russian famine had organized an effective auxiliary action
and therefore had even been nominated honorary citizen of
the U.S.S.R., he now succeeded in gaining the permission
of return under assurance of full amnesty for part of the
refugees and with it that solution of their fate which was
most simple and most at hand.
For innumerable others whom the U.S.S.R. did not want
to readmit, or who were deprived of their Russian citizenship
by the Russian expatriation decree of Oct. 28, 1921, Nansen
succeeded in carrying into effect the settlement in European
and oversea countries where they also found a new natio-
nality. Among these countries France, Paraguay and Brazil
deserve special mentioning. The resettlement was also emi-
nently supported by the International Organisation of Labour
owing to its extensive relations and by financial means. Not
only the costs of transport were essentially deminished, but
also an appropriate reception in the countries of the new
settlement was provided for.
Nansen also made it his task to coordinate the financial
aid, be it from the states, be it from private societies and
individuals. In this he was successful too.
"When Dr. Nansen died in the year 1930 the termination
of his work, which to a large extent was already concluded,
was passed on to a Nansen-Office , so called after him,
which preserved the great lines of the first High Commis-
sioner for the refugee problem.
After the creation of the Nansen-Office a reaction set in.
Towards the end of the nineteen-tvventies a kind of weariness
because of the refugee problem became apparent in the
League of Nations. The expense of the apparatus seemed to be
very high and one tried to bring the auxiliary work to a
quick end. The 9
t h
General Assembly of the League of Nations
wished the suppression of the High Commissioner and the
solution of the matter by the naturalisation of the refugees
in the countries of residence or the repatriation to their
countries of origin and the re-establishment of their former
citizenship.
Such a radical solution however was recognized as being
impossible and it was agreed in the frame of the League of
Nations to prepare a ten years planning for the liquidation
of the problem. The Nansen Office had to guarantee further
political and juridical protection to the refugees, according
to a scheme which gave a good general view of the problems
which became urgent through the denial of protection by the
native states. The Office had to certify the family situation
and the personal status as it resulted out of th former acts
3
or of facts having taken place in the country of origin; to
testify the regularity, the value and the conformity with the
old laws of the country of origin of the former acts; to certify
the signatures of the refugees, the copies of the translations
of the passages written in their language; to testify before
the authorities of the country the integrity and the good
conduct of the refugee, his former services, his professional
qualification, his university or academical degrees-, to recom-
mend the refugee to the authorities, especially as regards
questions of visa, of permits for residence, admission to
schools and libraries.
A crisis took place among the refugees when the world
depression of 1930 and the following years forced the govern-
ments to take measures for the protection of their own
subjects.
At that time, according to Bentwich, about half of the
refugees became unemployed. The governments also endea-
voured to get rid of them. In many cases they were expelled
and. became, as it was said, real international vagabonds,
and the tragic deficiency of a world order was verified by
them, in which even innocent men under certain circums-
tances cannot find a place where they may earn their living
for themselves and their families by honest work and in
peace without persecution by the police.
No sooner, however, had the general economic situation
improved a little than a new phenomenon similar to that of
the Russian revolution sprang up : the National Socialist
revolution demanded its victims. On one hand because of
racial discrimination the political rights were taken from the
Jews in Germany, on the other their private rights and
sources of living were reduced in a way that they left the
country in tens and finally hundreds of thousands. But also
arian citizens who refused the National Socialist dictatorship
out of conviction, and therefore seemed dangerous to the
regime, had to leave Germany, legally or illegally, and found
themselves, mostly without means, exposed to an uncertain
fate. The situation of these refugees coming from Ger-
many , as they were called, became still more difficult,
when the National Socialist government in imitation of the
Bolshevist and Fascist example deprived them of their natio-
nality.
This problem, too, was treated, especially by the neigh-
bouring countries of Germany, first from, their own initia-
tive, later however, with the increasing number of those
who sought refuge, it was brought before the League of
Nations. Geneva did not deny the necessity of helping the
refugees from Germany, but first appointed a High Comimis-
sioner in an autonomous position, so that he had not to
report to the League of Nations, but to a High Commission
for refugees coming from Germany. As first High Commis-
sioner the American James G. Mac Donald was appointed,
who 'however withdrew from the office at the end of 1935
with the famous letter to the General Secretary of the League
of Nations. He was succeeded by an Englishman, Sir Neill
Malcolm. His position was different from that of Mac Donald
by his immediate relation with the League of Nations and
was characterized by a limitation of the competence, which
was recorded as follows :
1) The action of the League of Nations in favour of refugees
should be confined to persons having left their country
or origin;
2) The High Commissioner's mission should be confined
to seeking the assistance of governments in order to
find solutions for the problems raised in connection
with the legal status of the refugees, and to studying
the conditions of placing them and finding them
employment;
3) The various tasks connected with the assistance of refu-
gees are in the province of the private organisations,
with which, however, the High Commissioner may set
up any system of liaison which he may consider
effective.
Since certain difficulties could not be removed, among
them above all the impossibility of providing all refugees
V> REUT-NICOLUSSI. DISPLACED PERSONS fee)
with work, the High Commissioner summoned a conference,
which on February 10, 1938 issued a convention concerning
the status of refugees coming from Germany. Out of its
context, among other things, the definition is important by
which those qualified for protection were determined. It read :
refugees coming from Germany were
... persons possessing or having possessed German nationality
and not possessing any other nationality, who are proved not to
enjoy in law or in fact the protection of the German government .
The member states were also bound to grant facilities to
the refugees from Germany in the sense of the former measu-
res for other groups, especially travel certificates with which
they could leave and also re-enter the country, far-reaching
equality of rights with the nationals in questions of employ-
ment, insurances and in legal proceedings', in affairs of edu-
cation and taxes. An agreement was also made regarding
the law governing the personal status of the refugees and
regarding the rights acquired under the national law.
Also the rule of article 17 (a repetition of 1933) deserves
mention :
The enjoyment of certain rights and the benefit of eertain
favours accorded to foreigners subject to reciprocity shall not be
refused to refugees in the absence of reciprocity.
The convention was signed by 7 governments and maent
in these countries an eminent improvement of the legal posi-
tion of the victims of National Socialism. But despite this
improvement and the activity of the Nansen Office on one
hand, of the High Commissioner for refugees coming from
Germany on the other, there remained other 600.000 refugees
in need of help in the year 1938 whose number still increased
after the occupation of Austria by National Socialist Ger-
many. For this reason the League of Nations strove for a
quick liquidation.
Then the President of the United States took the initiative
and summoned a conference to Evian (France), in order to
deliberate the problem of the refugees from Germany as a
whole, especially however with regard to the possibility of
their resettlement. He drew the limits of the conception poli-
tical refugees , who had to be cared for, very wide : per-
sons who desire to leave Germany as well as those who have
already done so.
This invitation was followed by 32 governments and as
result of the thorough deliberations an Intergovernmental
Committee was installed with its residence in London, the
director of which had
... to undertake ngociations to improve, the actual conditions
of exodus from Germany and to replace them by conditions of
orderly emigration... by developing opportunities for permanent
settlement .
The declarations given by the delegations regarding the
possibilities of immigration into their countries were of
importance. It turned out that the European territories were
overcrowded to the greatest extent and only in America
and Australia an immigration on a wider scope could be
considered. It is also worthy of note that a series of delega-
tions expressed the wish that the immigrants should bring
their fortune with them. The representative of President
Roosevelt, Myron Taylor, as chairman of the conference
considered it even essential for an orderly emigration
in contrast to a disorderly exodus that the emigrants
should leave their country of origin with their property and
possessions if they were to take root and sustain them-
selves in countries of settlement .
The cooperation with the assistance work of the U.S.A. and
other states not members of the League of Nations gave the
Intergovernmental Committee a more universal character in
comparison with the organisations directed by the League
of Nations.
On the other hand just those states had held themselves
out of the deliberations of Evian, which had caused the
refugee problem in its most tragic form : Russia, Germany
and Italy. Nor did Japan partake.
At any rate, the Intergovernmental Committee was formed
aad tried in cooperation with the refugee service of the
League of Nations and with the International Labour Office
to give a stimulation to the affairs handed over to it.
Also within the League of Nations a new organisation took
place through the replacing of the Nansen Office and the
High Commissioner for refugees coming from Germany by
a centralized office with a single High Commissioner. His
competence was thus defined :
To provide lor the legal and political protection ol refugees...
to superintend the entry into force and the application of the
legal status of refugees as defined in former conventions... to
facilitate the coordination of humanitarian assistance... to assist
the governments and private organisations in their efforts to pro-
mote emigration and permanent settlement.
The thus coordinated work of the two staffs would perhaps
have been able to solve the questions connected with the
refugee problem within a relatively short time, if the Second
World War had not hindered its activity and had not created
new analogous misery : the problem
1
of the diplaoed persons
in the narrower sense.
This is a phenomenon directly caused by the recent events.
In the Second World War the masses of prisoners of war in
Germany as well as those of the workers there deported had
grown to immense proportions. The Allies considered it be
one of their most urgent tasks after the victory to send back
all displaced persons where they belonged, to their
bornes. This however could not be done immediately, for it
was about ten millions of people who, on destroyed railways
and decayed roads, could leave but slowly. Thus the military
commanders of the Allies were commissioned, together with
the U.N.R.R.A. (the United Nations Relief and Rehabilitation
Administration), to care for maintenance and protection of
the displaced persons. These should be brought back to their
homes as quickly as possible.
Both tasks were for the greatest part solved in an excellent
way. It suffices to give some figures of the first year after the
termination of the hostilities in Germany.
The military commanders in cooperation with U.N.R.R.A.
repatriated no less than 5.888.400 displaced civil persons
from) Germany until the end of May 1946, about 740.000 from
Austria until the end of June 1946 and about 83.000 persons
from Italy in the same time, that was about 85 % of the
total number of the deported. Despite this there were stiH
about 900.000 displaced persons in the mentioned countries
at that time, besides a considerable number in other coun-
tries including the Far East. Of the displaced persons living
in Germany and Italy 17 % were of Baltic, that is Estonian,
Latvian and Lithunian nationality, 30 % were Poles, 7 %
Yugoslavs, 22 % Jews and the remainder pi 24 % Ukrainians,
Russians and stateless. These numbers are in accordance
with an official calculation at a certain point of time. The
greater part of those persons did not want to be brought
back.
The relevant legal feature in the condition of those not
returning was the fact that in contrast to all refugees they
were not persons who had been forced to leave their homes
or were excluded from return by expatriation on the part of
their own government. Rather had the majority of them
been displaced from their country by deportation on the part
of a belligerent enemy. The greater part of them could have
returned to their homes without having to expect direct per-
secution. But this large group refused to return because the
change in the government of their mother-country into a kind
of totalitarian system made life there seem unbearable to
themi. On the other hand however they had the element in
common with the refugees of the old kind that their state, in
case they rejected to return, deprived them, of it diplomatic
protection.
A small part of the displaced persons however, who did
not want to return home, had, being sworn enemies of the
governments of their countries, reason to fear hard persecu-
tion in the case of repatriation. Their status in international
law was equal to that of the refugees of the old style.
The interests of the victorious powers differed considerably
when the Allies had to take up their position in regard to
the situation of the displaced persons unwilling to return.
Not only did their maintenance entail great financial and
economic sacrifices, but the Eastern states desired the repa-
triation of all displaced persons whereas the Western Allies
were prevented by political bonds and by their conception
of human rights to answer to this request. The problem
became the more urgent when the League of Nations was
dissolved in the summer of the year 1946 and at the same
time the auxiliary organisations created by it had to be liqui-
dated. Now it was naturally up to the U.N. as general suc-
cessor of the League of Nations to take over the regulation of
these questions. On close examination of all the arguments,
a solution was finally found, which seemed to be a compro-
mise, in reality however it forms a new institution of inter-
aational law, namely the position of the displaced persons
protected by the International Refugee Organisation.
CHAPTER III
THE POSITION OF THE DISPLACED PERSONS
IN THE NARROWER SENSE
T
HE solution consisted in the foundation of the Interna-
tional Refugee Organisation as a specialized agency,
as it is provided in article 57 of the Charter of the
United Nations. There such foundations by intergovernmen-
tal agreements and having wide international responsibi-
lities in economic, social, cultural, educational, health and
related fields are planned. They serve the purpose men-
tioned in article 55 as
... creation of conditions o stability and wellbeing which are
necessary for peaceful and friendly relations among nations based
on respect for the principle of equal rights and self-determination
of peoples .
Here again it is emphasised as duty of the U.N. to promote
universal respect for an observance of human rights and
fundamental freedoms for all without distinction of race, sex,
language or religion.
In the frame of these purposes and these means of organi-
sation the General Assembly of December 15, 1946 approved
the constitution of the specialized agency mentioned, the
International Refugee Organisation. It was drafted by a spe-
cial committee and discussed at meetings of the Economic
and Social Council.
31 governments had voted for the approval of the consti-
tution, 21 of them signed it themselves. It was to come into
force as soon as 15 governments had ratified the agreement.
This number of ratifications was reached in spring 1948. The
I.R.O. is working according to article 63 of the Charter in
relation with the U.N. on the basis of an agreement between
the I.'R.O. and the Economic and Social Council.
The I.R.0. is in perpetual connection with the Interna-
tional Labour Office, because the experiences and relations
of the latter are of use in the tasks of the I.R.0. as they were
formerly for the different High Commisioners and Committees
created under the auspices of the League of Nations. These
latter institutions do not exist any longer, but the I.R.0.
. has taken over the result of the different conventions, so
that the whole refugee organisation is actually centralized
in I.R.0. today. If a state had formei J y bound itself by a
convention in favour of refugees but did not ratify the consti-
tution of the I.R.0., it still remains bound. It had to maintain
the equality of the refugees with its own subjects, for ins-
tance in insurance affairs. Today it is however up to the
I.R.0. to care for the punctual observance of such com-
mittments.
Since the acquirement of the number of ratifications neces-
sary for the coming into force of the constitution had to
wait a year and a half, a transitory solution became indis-
pensable for the meantime. It was created by the adoption
of an (( Agreement of Interim Measures by the General
Assembly of the U.N. at the time of the approval of the cons-
titution, by which a Preparatory Commission for the Inter-
national Refugee Organisation (P.C.I.R.O.) was built with
the same tasks as the I.R.0., but only for the transition
period. This commission held its first session in February
1947 and prepared the work of the I.R.0. As regards the
structure of the I.R.0. and the P.G.I.R.0. the regulation of
membership deserves mention. Membership is open to mem-
bers of the U.N. and to any other peace-loving state admitted
by a two-thirds majority of the General Council, the chief
organ of the I.R.0. According to a non-binding interpreta-
tion all states are meant with which the members of U.N.
are carrying on normal relations.
The single organs of the I.R.0. in general are formed after
lhe model of those of other similar unions and specialized
agencies. Resides the already mentioned General Council and
(47) THEIR POSITION IN THE NARROWER SENSE 47
the Executive Committee the direction of the I.R.O. lies in
the hands of an Executive Secretary, at present William
Hallam Tuck, U.S.A., and of a Director General. As well as
with the three Assistant Executive Secretaries and the
Controller an important and not always easy task lies in the
hands of the Legal Adviser Dr. Gustav Kullm&nn, Swit-
zerland
Apart from these headquarters at Geneva, with about
250 officials, there are 1.500 more clerks at work in field mis-
sion offices located in the countries whore the majority of
the refugees have their residences or which are most apt
for resettlement. The relation to the governments of these
countries or to the occupation authorities in these countries
are regulated by a series of agreements, which concede
certain rights to the I.R.O. on the line of the function of
consular authorities, and whicli on the other hand secure the
collaboration of those governments with the occupation
authorities.
The position of the nices of the P.G.I.R.O. is defined by an
agreement of January 43, 1948. They are largely equipped
with immunities, privileges and facilities to enable them to
carry on their work on French territory. The Preparatory
Commission has according to this agreement full juridical
personality. They may therefore conclude contracts, acquire
and dispose of immovable and movable property, and ins-
titute legal proceedings. On the other hand the Preparatory
Commission enjoys immunity from jurisdiction, its premises,
its records and other papers are inviolable and its property
in general not subject to seizure or requisition. The Prepa-
ratory Commission is free from the currency regulations and
exampt from custom duties in respect of what they import
for official use.
The delegates of Member Governments convened by the
Preparatory Commission enjoy in the exercise of their duties
the same facilities, privileges and immunities as are accorded
to members of diplomatic missions' accredited to the French
government. Analogous privileges are also accorded to the
officials of the P.C.I.R.O. in the interests of their work.
Finally all police measures required for the protection of the
headquarters of the P.C.I.R.0. on French territory are pro-
mised.
Similar treatment was also granted to the P.C.I.R.0. by
the Italian government and by the occupation authorities of
Germany and Austria.
But also other subjects are regulated by agreements of
the Preparatory Commission with the governments in ques-
tion. Thus, for instance, with Great Britain in respect of the
recruitment of displaced persons resident in the U.S. zone
of Germany.
Another agreement was concluded between the Preparatory
Commission and the government of the Commonwealth of
Australia regarding the immigration to Australia of refugees
and displaced persons and again between His Britannic Majes-
ty' s Government, the Royal Netherlands Government and the
Preparatory Commission for the resettlement in the Nether-
lands of displaced persons and refugees in the British zone
of Germany.
By such agreements not only the functions of the I.R.0. or,
respectively, of the Preparatory Commission is secured, but
its legal personality is fixed at the same time. The whole
structure of international law seems to appear in a new
light owing to the fact that such a specialized agency may
enter into a contract relation with the U.N. on the one hand,
and with the states to which it owes its existence, on the
other. And again it is necessary to examine the classical
conception of the subjects of international law.
One should take especially into consideration the regula-
tion of article 14, par. 2, which provides expressively : the
organisation may assume all or part of the functions and
acquire all or part of the resources, assets and liabilities
of any intergovernmental organisation or agency, the pur-
poses and functions of which lie within the scope of the
organisation. Such action may be taken either through
mutually acceptable arrangements with the competent autho-
rities of such organisations or agencies, or pursuant to autho-
rity conferred upon the organisation by international conven-
tion or agreement.
It needs no explicit reasoning that the I.R.O. is in need
of considerable means in order to discharge its duties. The
budget for the time from July 1, 1948 to June 30, 1949 shows
an expenditure of 155,027.008 dollars. The raising of the
necessary sum is provided for in the constitution chiefly by
contributions which are taken over by the members as with
other unions on the basis of the so-called relevant scale .
The amount of these contributions varies according to size,
the number of population and the extent of the resources,
so that the U.S.A. had planned a contribution of 73,000.000
dollars in the year 1947, Iceland, however, 32.132 dollars.
Neutral countries are requested to make available assets
of victims of Nazi action who have died and left no heirs.
Further the Allies have decided to give to the I.R.O. the
non-monetary gold found by allied forces in Germany for
the rehabilitation and resettlement of non-repatriable vic-
tims of Nazi action. Finally 25,000.000 dollars are to be made
available from a portion of the proceeds of German assets
in neutral countries. This latter transaction constitutes a
novelty in international law which would be worth exa-
mining.
Since the chief aim is to lead the refugees, including the
displaced persons, as quickly as possible from the present
status to a normal relation of civil employment and of resi-
dence, the constitution decided that states can also be
admitted as members, if they submit to the organisation
a plan for the admission to their territory, as immigrants,
refugees OT diplaced persons in such numbers, and on such
settlement conditions as shall, in the opinion of the orga-
nisation, require from the applicant state and expenditure
or investment equivalent, or approximately equivalent to the
contribution that they would be called upon, in accordance
with the relevant scale, to make to the budget of the orga-
nisation.
Apart from this, the I.R.O. also cultivates the collabora-
tion with benevolent societies which on their part raised
and still are raising considerable means. Among these espe-
cially the generous Jewish associations are to be mentioned,
5
o REUT-NICOLUSSI. DISPLACED PERSONS (50)
for instance the Jewish Agency and the Jewish Joint ,
which already sacrificed much for the many thousands of
their brethren who fled from European territory.
As regards the activity of the I.R.O., to which that of the
P.C.I.R.0. corresponds, its legal limits are fixed by the
governments in the resolution of the General Assembly of
the U.N. In the Preamble of the Constitution it is indicated
that the genuine refugees and displaced persons, that means,
the totality of the people committed to the care of the I.R.O.,
constitute an urgent problem which is international in scope
and character. In the following the forms of the assistance
to which the I.R.0. has devoted itself are stressed and among
them a distinction is made. As regards displaced persons,
the main task to be performed is to encourage and assist in
every way possible their early return to their country of
origin.
Here the already mentioned contrast of interests between
the members of the United Nations in this question is
reflected. On one side all persons in an analogous situation
are treated as a uniform problem, namely that of the refu-
gees, the reason why the I.R.O. was so called. On the other
hand the group of the displaced persons (in the narrower
sense) are distinguished from the genuine refugees. The rea-
son of this distinction is, to a certain extent, of formal legal
nature. A general treatment of the refugee problem, was
aimed at. Therefore, above all, the persons who had already
been cared for were put under the protection of the I.R.O.
They are called genuine refugees, or, plainly, refugees. They
may be defined as follows : persons outside of their own
country, who were either a victim of National Socialist or
Falangist persecution or prewar refugees (Nansen refugees
etc.).
Apart from this, the group of the displaced persons in the
narrower sense was created. They are defined by the cons-
titution :
Persons who as a result of the action of the authorities of the
Nazi or Fascist regimes or of regimes which look part on their side
in the Second World War have been deported from or have been
(Si) THEIR POSITION IN THE NARROWER SENSE SI
obliged to leave their country of nationality or o former habitual
residence such as persons who were compelled to undertake forced
labour or who were deported for racial, religious or political
reasons.
We
!
have already heard that such persons, it is true, mostly
were displaced from their homes by force. This force however
ended with the war. Germany or a power associated with
her has no more possibility to prevent them fromt returning
home. If they do not want to return home now the cause
lies with them.
The General Assembly of the U.N. in the interests of peace
tried to meet the thoughts of such governments as far as
possible. Therefore it was declared in annex I to the cons-
titution :
The main task concerning displaced persons is to encourage
and assist in every way their early return to their countries of
origin.
With this, of course, the I.R.O. was not discharged of its
duty to help such displaced persons, if these despite eve-
rything did not decide to follow the invitation of their
governments. In order that no conflict with these govern-
ments might arise out of this cause, it was urged upon the
I.'R.O. in the same annex :
The organisation should endeavour to carry out its function
in such a way as to avoid disturbing friendly relatione between
nations.
Especially in questions of resettlement of displaced per-
sons such a caution ought to be applied.
Further, the same care is bestowed on genuine refugees
and displaced persons. The subjects of support may be
divided into 6 points, which form the lasting objects of the
consideration and the measures of the I.R.O.
The operations of the I.R.O. obviously continue what had
been done for the legions of refugees since the first World
War. Yet the measures are more extended according to the
larger scale of the organisation and its means. The work of
today may also profit by all the experiences and by the
$ REUTNICOLUSSI. DISPLACED PERSONS (52)
concrete institutions which were created since 1921 and
partly have never lapsed. This holds good, for instance, for
the identification and registration of the refugees. According
to the circumstances of flight or release, for instance, directly
from the concentration camp or prison, the refugees are
without civil documents (birth, marriage, study, divorce,
etc.), sometimes they left every identity paper. Not only
the contract of marriage, the application for a job, the
drawing of a letter or of sent money are hindered by this
deficiency, but also the travel from one country to the other,
where the refugee perhaps has his relatives or a possibility
for existence.
A number of states is still today bound by the convention
of the Nansen passports. An other group has taken over simi-
lar obligations at the Intergovernmental Conference on the
adoption of a travel document of October IB, 1946 and in
the corresponding Final Act and Agreement. "With it for a
great number of refugees the identity certificate and. the
entry-permit for the neighbouring country of the state of
residence and the permission to return is already secured.
It is up to the I.R.O. to make the states bound by treaties
observe their duties. A further facility was brought about by
a travel certificate issued by the International Committee of
the Red Cross of Geneva, which is also recognized as valid
document by a series of states and therefore is used to a
certain extent for the crossing of frontiers. Its validity
is temporarily limited and it is issued only for one voyage
but nevertheless it has already rendered good services.
The I.R.O. itself is only able to issue a travel certificate for
the transport to a country of resettlement which has the
single purpose to bring the refugee to his destination.
As a further task, which often is called its most impor-
tant one, the I.R.O. occupies itself with repatriation. With
regard to the displaced persons, that is to say, people who
have been deportated from their homes by Nazi action, it
was repeatedly urged upon the P.C.I.R.O. by the U.N. that
repatriation was the natural solution of their situation. The-
refore the I.R.O. has to make efforts to encourage speedy
(53> THEIR POSITION IN THE NARROWER SENSE 53
repatriation by giving information about conditions in the
countries of origin, and so overcome the unwillingness to
return. The return hom is made more attractive to the
displaced persons by extending the assistance to 90 days
after the return, i. e. by providing them with food for this
period. However there still remain hundreds of thousands
of non repatriable displaced persons, namely such, who
have satisfactory reasons to avoid their country of origin.
As satisfactory reasons are recognized, above all, dangers
to freedom, but also unpolitical circumstances as for ins-
tance if a displaced man in consequence of his deportation
lost his fortune and the basis for his profession at home
and hopes to rebuild a new existence abroad. Without doubt
it is a command of justice and humanity to assist such a
victim of violent measures in his aspirations.
As regards the legai! viewpoint of the repatriation the atti-
tude of the country of origin deserves attention. It may be
different. Owing to various reasons it happens that the refu-
gee or the displaced person wants to return home, but the
state which he considers his native country refuses to admit
him. The reason may, for instance, Lie in the fact that the
nationality of the person is doubtful. Take the case that a
woman obtained a new nationality by marriage, namely that
of her hudband. If the marriage was however divorced the
question, whether the wife may claim, for her former natio-
nality is answered differently according to country and wri-
ter. At any rate it often happened that the state of origin
refused the admission to such a woman for fear of having lu
maintain her and her children in case of destitution.
Naturally also other reasons may be important for the
reluctant attitude of the state. The I.'R.O. has no means to
enforce the admission of the displaced persons. In such a
case the I.R.O. has to treat the refugee, in spite of his willing-
ness to repatriate, as non-repatriable and must try to resettle
him elsewhere. Mostly the state of origin will 'desire the
return, as was expressed in the statements made by delegates
of the Eastern states at the debates in the frame of the U.N.
In the past the state repeatedly made use of the personal
supremacy over its subjects, called them hack and, if they
did not obey to its comimand, deprived them of their natio-
nality and dispossessed them of their property. Sometimes
it also promised fulil amnesty to the refugees in case they
returned. Whether the state of origin could get hold of the
refugee however 'depended on the attitude of the state of
refuge. It happened in the past that despotic governments
extradited their refugees mutually out of political solidarity.
In this sense the governments pf the time of Mettermeli
agreed on mutual committments. Later the extradition of
political criminals disappeared from the treaties because,
especially for political refugees, the right of asylum was
used. Here too a change took place. After the first World
War the Allied and Associated Powers asked the Central
Powers to extradite for trial their own dependants who
during the war, that is to say in the majority of cases by poli-
tical actions, had violated the rules of warfare. Neither did
the totalitarian states of recent time make use of the right
of asylum among each other. When the German armies occu-
pied France, the Italian migrs living there were seized and
handed over to the Fascist government.
With regard to the displaced persons, however, with
exceptions still to be mentioned, the principle holds good
that those states upon which the I.R.O. rests do not make
concession to the personal supremacy of the state of origin
over its subjects abroad. Displaced persons with satisfactory
reasonsr for not returning home have even a claim to stay
outside the country of their nationality and, as long as neces-
sary, to be assisted and protected by the I.R.O.
Care and maintenance is the term of the continuous
economic support, which represents the chief item, in the
budget of the P.C.I.R.O. Thus the expenses for care and
maintenance for the time from the 1
st
of July 1948 to the 30*
of June 1949 are calculated to nearly the half of the total
expenses of the P.C.I.R.O., namely to 75,033.170 dollars
facing the total of 155,027.058. Care and maintenance does
not only comprise food, but beyond that also medical treat-
ment, educational facilities, clothing and all kind of ware-
(s) THEIR POSITION IN THE NARROWER SENSE ss
house supply including the fittings of the camps in which
tho majority of the diplaced persons was lodged. As regards
the food the equal treatment of the displaced persons with
the native population is granted by the occupied countries.
In addition to that however a considerable amelioration is
provided as long as neither repatriation nor resettlement are
possible.
Resettlement and re-establishment namely represent the
alternative final solution of the situation of the refugees
including the displaced persons. The constitution contains
an explicate regulation regarding this point. On one hand the
Preamble reads that the governments recognize that genuine
refugees and displaced persons should be assisted by inter-
national action, either to return to their countries of natio-
nality or former habitual residence or to find new homes
elsewhere under the conditions provided for. Art. 2 then
diffrencites re-establishment, the acquirement of a pro-
fession and the resettlement in an other country. For both
purposes the proteges of the I.R.O. are entitled to full support
by the organisation.
The conditions for resettlement are threefold :
1. fulfilling the conditions laid down in the constitution
for receiving assistance from the I.R.O.;
2. having given satisfactory reasons for not returning to
the country of origin;
3. being unable although willing, to be repatriated as a
result of the refusal by the authorities of their country
of origin to agree to their return.
The resettlement may either be carried through in groups
or individually. Naturally a mass resettlement pre-supposes
an agreement between the I.R.O. and the state in question,
which is to receive the new settlers. The I.R.O. defined mass
settlement as follows : It relates to all movements of refugees
and displaced persons which are carried out under an agree-
ment or arrangement entered into by the P.C.I.R.0. and a
country of reception covering their selection and movement
after their arrival, reception, placement, legal and other
protection. Also for this, as it is seen, the I.R.O. concludes
treaties in proper form
1
, which constitute an innovation in
so far as a specialized agency on one side, a state on the
other, treat about the exception of subjects of a state and
come to an agreement, whereas the native country of the
persons in question is not informed at all about the matter,
at any rate does not partake in the ngociations. The whole
proceedings however devolve under the auspices of the U.N.,
of which as a rule the state of immigration as well as the
state of origin are members. Out of this the conclusion had
to be drawn that the personal supremacy of the state over
the individual is steadily giving place to a closer connection
between the individual and the international community.
Therefore it was throughout suitable that the P.C.LR.O. by
the Executive Secretary directed the following statement to
the commission of human rights, when it met at Geneva at
the end of 1947 :
No group of human individuais can be more interested in an
international Bill on Human Rights than the large number of
persons who are the concern of the International Refugee Organi-
sation the refugees and displaced persons. The position of these
persons is due to a considerable extent to the flagrant violation
of human rights.
The Executive Secretary felt justified in submitting to the
commission certain points for consideration. He suggested
they should proclaim equality before the law so to prevent
any discrimination between the majority and the minori-
ties within the state. Rut also the discrimination between
nationals and aliens should cease as well as discrimination
between different classes of aliens. The Executive Secretary
then recommended strongly rules concerning nationality in
the sense that every person should be declared to have a
right to a nationality if he acquires another nationality or
if his human rights and fundamental freedoms have been
denied him by his state of origin.
At the same time the Executive Secretary also recom-
mended that the commission should recognize the right
of men to leave their own country if they are not subject to
any lawful deprivation of liberty or to any outstanding obli-
gations with regard to national service.
Finally the representative of the P.C.l.'R.O. submitted to
the comission for consideration the problem of expulsion of
aliens, which had brought such terrible mischief to thou-
sands of refugees. His suggestion on this point read :
Aliens shall be expelled only under conditions laid down by
law, and provided l.hat an other stale is willing to receive them
in its territory.
These suggestions were, in presence of the Executive
Secretary, object of intensive consideration by the commis-
sion and were for the greater part adopted verbally to the
draft of the Declaration on Human Rights and of the Covenant
on Human Rights.
Of course we can not neglect that the I.R.O. has to exercise
special caution when performing these important operations.
This was demanded also in the articles of the constitution
which speak of special care being needed in cases in which the
re-establishment or resettlement of refugees or displaced per-
sons might be contemplated, either in countries contiguous
to their respective countries of origin or in non-self-governing
countries.
The organisation should give due weight, among other
factors, to any evidence of genuine apprehension and concern
felt in regard to such plans in the former case by the country
of origin of the persons involved, or, in the latter case by
the indigeneous population of the non-self-governing country
in question. Such immigration, apt lo trouble the friendly
relations between the nations, must be prevented. Besides
mass resettlement there exists an individual migration .
The term is applied to ali movements of individuals and
small groups of eligible refugees and displaced persons who
are not selected by special government missions, the neces-
sary entry-permits (visas) being obtained from consuls or
immigration officials. From the statistics of the P.C.I.R.O. is
to be seen that its work as regards resettlement has reached
a considerable extent as it was sucoessiful in resettling about
117.000 refugees in the first section of its activity, that is
until November 1947. In the programm of the first half year
1948 the resettlement of 234.433 persons was projected, a
programm which lias been carried out in the meantime.
The movements to the countries overseas are carried out
partly by ships of the navies of the United States, Great
Britain and Norway.
It deserves mention in this connection that the P.C.I.R.O.
does not only move Europeans from the old continent to
America, but even leads back overseas Chinese who had
been deported by the Japanese from their settlements to
their former domiciles at Singapore, Siam' and the Nether-
lands Indies, for which it obtained the approval of the res-
pective governments.
This constitution further states that genuine refugees and
displaced persons, until such time as their repatriation or
resettlement and re-establishment is effectively completed,
should as far as possible be put to useful employment in
order to avoid the evil and anti-social consequence of conti-
nual idleness. Also this task can only be solved by agree-
ments with the governments of such countries which for any
reason need labour. Such agreements were actually concluded
by the P.C.I.R.O. in a series of cases, as for instance between
France, Great Britain, Belgium on one hand and the P.C.I.R.O.
on the other. They concerned chiefly the case of the recruit-
ment of miners. But also in Germany and Austria refugees
are employed in the camps as well as in the national eco-
nomy of these countries. During these employments the refu-
gees remain under the protection of the P.C.I.R.O. A dis-
agreeable difficulty lies in the fact that with the employment
by the governments of different countries families as a rule
are separated. An effort is being made to introduce the regu-
lation that the refugee is allowed to take his family with
him into the conditions of the agreement.
The greatest obstacles for employment as well as for resett-
lement are confronted by the specialists . By this term we
understand intellectual and professional workers such as
physicians, lawyers, journalists, teachers, artists. In many
cases their activity depends on examinations, in many others
of a command of the language which is not familiar to them.
In Belgium the universities have worked out a plan in
order to collect scholarships for 10.000 refugee students by
a contribution of university students throughout the world.
This plan has already been put into force in Belgium.
But as an even greater task of special importance the '
constitution charged the I.R.0. to protect genuine refugees
and displaced persons until such time as their repatriation
or resettlement or re-establishment is effectively completed
in rights and legitimate interests.
This very task gives the I.R.0. the disposition which
according to general law of nations lies with the native state
in regard to its nationals. Persons who stay in a foreign state
are not helplessly subjected to its sovereignty. A. series of
right lies with them by customary law and in virtue of agree-
ments. To become effective these rights want enforcement
which only the autority of the state of origin and its interven-
tion with the government of the state of residence can give
them. Yet, the characteristics of the refugee consist in the fact
that his native country refuses such an intervention and
that protection. Like a stateless person the refugee therefore
depends on the voluntary benevolence of the state of resi-
dence. With the absence of benevo'lence the mere residence
can be denied to the refugee even without any incorrectness
on his part and his expulsion can be pronounced. Generally
the refugee owing to his strained relation to the government
of his native state must be undesirable to the state of refuge
from the very beginning and the tragic lot of the stateless
is repeated in this case.
If the action of the U.N. in favour of the refugees was to
constitute a basis aid, the grant of a legal protection had to
play a cardinal part. For what use could care and main-
tenance or the issue of a travel document be if the refugee
taking an extreme case were not allowed to use the
public services or to apply to a police office in a country of
refuge ? More especially then when he were arbitrarily
expelled from the territory of the state ?
6o REUT-NICOLUSSI. DISPLACED PERSONS (6o)
The I.R.0. has, however, taken over the duty of defending
the right of aliens in the place of the native country for the
persons entrusted to it. The basis of this function is on one
hand the constitution of the I.R.0. and the corresponding
resolution of the U.N. They constitute by themselves already
a liaison of those states which belong to the U.N. As regards
the other states, partly former agreements of the I.R.0. are
still effective, partly concrete regulations must be created
by agreements between the I.R.0. and the countries concer-
ned, by which the right of the I.R.0. for legal protection of
the refugee is stipulated. The constitution contains a special
right for this concern, to conclude agreements with countries
able and willing to receive refugees and displaced persons,
of ensuring the protection of their legitimate rights and
interests in so far as this may be necessary. Actually nearly
all states, even if they do not have agreements with the
I.R.O., did not only admit the functions of the protection
but mostly they desire them. In the agreements of the I.R.0.
and the Belgian government concerning the recruitment of
20.000 miners, for instance, the latter even demanded the
condition that the I.R.0. should maintain the legal protec-
tion over the refugees.
The exercise of the legal protection makes it necessary that
the I.R.0. maintains representatives with the governments
concerned. The I.R.0. also in this respect derives a right from
the article of the constitution, for it is there charged and
authorized in general to perform any legal act appropriate
to its purposes.
Also by sending such representatives, from the view-
point of international law the l.R.0. is put on a level with
states. For the right to conclude agreements and to maintain
representatives with governments was always considered a
prerogative of states.
In the performance of these duties the I.R.0. can be
deceived. Many thousands of criminal elements arc. over-
flowing Europe today who do not deserve support of any
kind, even if outwardly the conditions for the refugee assis-
tance seem to exist. Therefore the I.R.0. was charged by the
U.N. to ensure that its assistance is not exploited by persons
in the case of whom it is clear that they are unwilling to
return to their countries of origin because they prefer
idleness to facing the hardships of helping in the recons-
truction of their countries, or by persons who intend to
settle in other countries for purely economic reasons, thus
qualifying as emigrants. On the other hand no serious cause
shall be left without help because of exaggerated precaution.
Again, the constitution recommends the I.R.O. to ensure that
no bona fide and deserving refugee and displaced person is
deprived of assistance. In order to give the I.R.O. essential
facts in the differentiation of undeserving and deserving
refugees, certain classes of persons were indicated in an
annex to the constitution who will not be the concern of
the I.R.O. They are composed of the following ones :
1) War criminals, Quislings and traitors.
2) Any other persons who can be shown :
a) To have assisted the enemy in persecuting the civil
population of countries members of the U.N.; or
6) To have voluntarily assisted the enemy forces since
the outbreak of the second World War in their
operations against the U.N.
3) Ordinary criminals who are extraditable;
4) Persons of German ethnic origin, whether German natio-
nals or members of German minorities in other coun-
tries, who :
o) Have been or may be transferred to Germany from
other countries;
b) Have been during the Second World War evacuated
from Germany to other countries;
c) Have fled from, or into, Germany or from their
places of residence into countries other than Ger-
many in order to avoid falling into the hands of
allied armies.
62 REUT-NICOLUSSI. DISPLACED PERSONS (6a>
5) Persons who are in receipt of financial support and pro-
tection from their country of nationality, unless their
country of nationality requests international assistance
for them.
6) Persons who since the end of the hostilities in the
Second World War :
a) Have participated in any organisation having as
one of its purposes the overthrow by armed force
of the government of their country of origin, being
member of the U.N.; or the overthrow by armed
force of the government of any other member of
the U.N., or have participated in any terrorist
organisation;
ft) Have become leaders of movements hostile to the
governments of their country of origin, being a
member of the U.N. or sponsors of movements
encouraging refugees not to return to their country
of origin;
c) At the time of application for assistance are in the
military or civil service of a foreign state.
Those persons who show all features contained in the defi-
nitions of the refugees and displaced persons and who do
not belong to the excluded groups are called eligible .
The definition is a passive termi and means that they may
be admitted by the I.R.O. into the circle of its proteges.
Whether eligibility is given has to be decided by the I.R.O.,
that is to say by its offices in the field after a screening of
the applicants by the military authorities by administrative
act. With this however a great responsibility is connected.
The denial of the eligibility may perhaps mean the person's
death. If, nameLy, he is not declared eligible he has no claim
to be protected against extradition to his native country.
There however the full weight of political persecution may
expect him. Therefore in order to avoid mistakes which could
arise from a wrong judgement of the facts, the following
regulation was introduced into the constitution : To ensure
(6
3
) THEIR POSITION IN THE NARROWER SENSE 6j
the impartial and equitable application of principles and
terms some special system of semi-judicial machinery should
be created with appropriate constitution procedure and terms
of reference.
This machinery was built up. It is called Board for the
review of I.R.O. eligibility cases . Its functions! are twofold :
It is a tribunal of appeal and it gives advices of legal cha-
racter when requested by the Director General. The seat is
at Headquarters but individual members may be delegated
to sit in any area of operation. The Board consists of eight
persons appointed by the Director General. The Chairman
is chosen from among experienced jurists who have held high
judicial offices in their own countries and who are conversant
with the English and French language. The appeal may be
taken by any refugee or displaced person in the form of a
petition for review or by the I.R.O. itself. In any application
to the Eligibility Board the refugees or displaced person
concerned is entitled to be represented before the board. In
cases of application for review the decision taken by majo-
rity of the members sitting in the case in so far as it refers
to the manner of applying the definition or any interpreta-
tion thereof issued by the Director General or the Executive
Committee or the General Council is final.
Thus eligibility presents itself as a legal claim to be raised
by the individual refugee whereby the new development in
international law shows itself most strikingly and unde-
niably.
However, the U.N. statute in art. 2 still clings to the concep-
tion of the sovereignty of the single member states, but this
sovereignty, in the world of to day, can only be understood
cum grano salis. Besides the restrictions comprised by cus-
tomary law, manifold committments by treaties, membership
of unions and specialized agencies, there are the general prin-
ciples of law recognized by the civilized nations according
to art, 38 of the statute of the International Court of Justice.
The sense of all these restrictions is that the welfare of
mankind as the totality of human individuals becomes more
and more looked upon as the end of the law of nations. The
6
4
REUT-NICOLUSSI. DISPLACED PERSONS (64)
states more and more clearly become discernable a means to
the realisation of human rights. Hegel's apotheosis : Th
state is God on earth , breaks down, as formerly the divine
rights of kings had faded to mere symbolism. Above the
states, a second attempt at a universal organisation is arising,
called forth by the recognition of the unity of the world and
of the interwoven interests of all men. The highest social
interest, the security from violent attacks is, according to the
present plan, handed over to the world organisation and
the state is transferred from its former paramount position
to the rank of an intermediate instance. Accordingly the
citizen is no more am appartenance of the territory of the
state, but a legal subject of his own. The single individual
neither does any longer depend on the exclusive protection
by the state, but is tied by immediate legal link to interna-
tional law and community. As displaced person he may take
his way to the Eligibility Board without, even against, the
will of his country of origin and without intervention of any
other government and obtains a legal decision binding for the
states united within the I.R.O. and therefore obligatory also
for the U.N. Juridically seen, here lies the most interesting
institution created for the displaced persons. The work of the
I.R.O. becomes thereby the expression of world-wide soli-
darity.
BIBLIOGRAPHY
BALOGB. World Peace and lhe Refugee. Problem, Nom. 3>4, 1946, p. 306,
Tydakrif vir Hedendaagse Romeins-Hollandse Reg.
BAUES (Ernest). Die neueste Entwicklung der Flu cftlingsf rage und des Pro-
blems der versetzten Personen, Juristitehe Bltter, 28 fvrier 19-48,
pp. 73-16.
BBNTWICH (Norman), Director of the High Commission for Refugee from
Germany. The Refugees from Germany, 1936, George Allen & Unwin,
London.
The International Problem of Refugees, Geneva Special Studies, Geneva
Research Center.
BOEUM (Werner). Le st at ut juridique des Tfugis, Publications de l'Ins-
titut des Hautes Etudes internationales de l'Universit de Paris, 1936.
ESSEN (J. L. F. van). De Reclitspositie van de Vluchtelingen in het Inter-
nationale Recht, Haarlem, 1948.
EsToniCK (Eric). The Evian Conference and the. Intergovernmental Com-
mittee, The Annuals o/ (fie American Academy of Pol. Science, May 1939.
GIDEL (DE LAPRADELLE, LE Fun). Confiscation des biens des rfugis arm-
niens, Paris, iiiipriiuefre Masis, 1929.
GUGGENHEIM (Paul). Vlkerrechtopolitieche Bemerkungen zum Flchtlings-
problem, Auszug aus dem Buche Flchtlinge wohin ?, Schweizerische
Zentralstelle lr Flchtlingshilfe., Zrich, 1948.
HANSSOH (Michael). The Refugee Problem and the League of Nations, Nobel
Inst i t ut Oslo, 1936.
HOLBOR: (Louise W.) The Legal Stutus of Political Refugee, 1930-1938. The
American Journal of International Law, vol. XXXII, 1938, p. 6SO-703.
K,ULISCHEK (Eugene). The Displacement of Population in Europe, Montreal,
1943.
Me DONALD (James G.). Letter to the Secretary General of the League of
Nations, 27. IS. I9.3S, Publications of the League of Nations.
PERSONNES DPLACES (Les). Echange de notes ent re le gouvernement fran-
ais et le gouvernement sovitique. La documentation franaise, Notes
documentaires et tudes, 14 aot 1947, 695.
POULIN (Guido). Le problme dee rfugis (avec ume bibliographie), Schwei-
erisches Jahrbuch fr internationales Recht, 1946, 111, p. 95-19I.
RAPATRIEMENT (Le) des citoyens sovitiques de zonee franaises d' occupation
(publi dans la Kratnaa Zveida). La documentation franaise. Article
et documents, 8 oot. 1947.
ROSBNFELD (Franz). Die Rechtsstellung der Flchtlinge and Sl-aulenloscen.
Jahrbuch der Basler Juristenvereinigung, Basel, 1943.
RECLASSEMENT (Le) des person-nes dplaces dans l' Inde, Revue internationale
du travail, aot 1948, LVIII, n 2, p. 198-210.
SAGE (Jerry M). The future of dispJaced persons in Europe, The Depart-
ment of State Bulletin, 13 July 1947. XVII, no. 419, p. 86-95.
SCELLE (George). A propos de la loi allemande du 14 juillet 1933 mir la
dchance de la nationalit. Revue critique de droit international, 1934.
THOMPSON (Dorothy). Refugees, Random House, Nov York, 1938.
VsawEij-JoNKEn (H.). Het internationale vluchtelingenvraagstuk, Neder-
landsch Genootschap voor internationale zaken, 1947.
WERNER (Henri). Quelques aspects juridiques diu problme de rfugis,
Zeitschrift lr schweizerisches Recht, 1944, p. 347-389.
CONTENTS
CHAPTER I. Theoretical aspects of the relation between state and
individual tj
A. State and individual in international law as seen by classical
school. General aspect. The state as the only subject of interna-
tional law representing the individual. Dissenting opinions and con-
troversial items.
B. Special features : Slate and citizen. State as protector of its
citizens at home and abroad. Citizen under obligation towards
hie etate. The problem of denationalisation and expatriation.
State and alien. Human, customary and treaty-founded rights of
aliens. Reciprocity.
C. Anomalies. Double nationality. Statelessness. Asylum.
D. Increased consideration of the individual. In theory : Idea of
the
1
sovereignty and selfdetarmination of t i e people. French philo-
sophy, Anglo-Saxon democracy. In law : Plebiscite, option, mino-
rityrights, protection of labour, ius standi in iudicio for individuals
before the Central American Court of International Justice and before
Mixed Arbitral Tribunals, penal responsibility of individuals, reco-
gnition of human Tights and fundamental freedoms.
E. Absorption of the individual by the state. In theory : The tota-
litarian conception of the state. In practice : Denial of fundamental
freedoms and minority rights, expulsion and compulsory transfer
of population, forced labour, restrictions of expatriation and of repa-
triation, denial of protection of certain citizens abroad, denatio-
nalisation.
CHAPTER II The displaced persons problem as a matter of inter-
national concern 26
A. Definition of the term displaced persons . In the) broad sense
identical with refugees . In the restricted sense distinct from
the term refugees as used since the eecond World War.
B. The political background of the displacement in the general
sense. Revolutions. Wars.
C. The various existing groups of displaced persons (refugees).
In consequence of the Bolshevist Revolution; refugees from Russia;
In consequence of the first World War and successive armed com-
fiicte : Greek, Armenian, Chaldean, Assyrian refugees. In conse-
quence of the Spanish civil war : Spanish republican refugees. In
consequence of the National-Socialist revolution : Refugees from
Germany, refugees from Austria. In consequence of the second World
War and successive political changes in various European countries :
Refugees which claim, nationality of about 20 states.
D. Aims of the refugees. To be repatriated now or later. Not to
68 THEIR POSITION IN THE NARROWER SENSE (68)
be repatriated but to be allowed to resettle outside their country
f origin.
E. Motives for the assistance of refugees. Humanitarian conside-
rations. Practical expediency.
F. Reasons of the intervention. Large
1
number of refugees requires
expenditure exceeding means and readiness of single country. Solu-
tion of status problems requires cooperation of many countries.
Form of th help. Assistance by the League of Nations. The work
of Fridtjof Nansen and his office. The work of the other High Com-
missioners of the League of Nations. Assistance by the Intergovern-
mental Committee created with the cooperation of U. S. A. Assis-
tance by U.N.R.R.A. and Military Governments. Assistance by the
Preparatory Commission of the I.R.O. (International Refugee Orga
nisation) created by tho U. N. with resolution of Dec. IS, 1946, to
take over the protection of genuine "refugees and displaced
persons .
CHAPTER III. The position of the displaced parsons u in the
narrower sense W
A. The I.R.O. Legal character of I.R.O. Distinction of genuine
refugcies and displaced persons in the narrower sense.
B. Structure of I.R.O. and Preparatory Commission (P.C.I.R.O.).
Relations to U.N. Relations to governments and occupation autho-
rities.
C. Tasks of I.R.O. and P.C.I.R.O. Identification and registration.
Repatriation. Care and maintenance. Resettlement and re-establish-
ment. Legal and political protection. Useful employment of displaced
persons.
D. The problem o eligibility o displaced persons, refugees and
for protection by I.R.O. Eligibility defined. Eligibility a legal claim
of international character to' be raised by the individual displaced'
person. Eligibility to be' claimed by the displaced person before a
semi-judicial body Eligibility Board.
E. New juridical features in the functions of I.R.O. Protection of
individuals by the international community independent of tho
country of origin. Displaced persons as subjects of international
law.
F. Final consideration. The development of assistance to displaced
persons marks an essential progress in international low by giving
international personality to individuals and by affirming the soli-
darity in the struggle for fundamental freedoms.
BIBLIOGRAPHY 68

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DISPLACED PERSONS

AND INTERNATIONAL LAW

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