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DALIBOR JÍLEK – JANA MICHALIČKOVÁ
CYIL 7 ȍ2016Ȏ
intention of participating countries was to enter into multilateral treaties with an
ambition of universality. However, the conventions were ratified by only a close
group of states. The conventions from the turn of the century were built on the
principle of nationality, which was not convenient for many third states.
46
The
parties expected that the principle of nationality would bring the most favourable
and most effective regulation of conflict laws. These expectations turned out to be
just a romantic and erroneous belief. Any of the Hague conventions of the turn of
the century did not regulate applicable law for cases of composite law systems.
47
The application of Hague conflict-of-laws rules based on the principle of nationality
failed in an era of massive cross-border movement of people. The Russian revolution
caused involuntary and massive inflows of refugees. Russian refugees residing abroad
for a longer time were deprived of nationality in 1921 by the decree of the All-
Russian Central Council and the Council of People’s Commissars. The reason for
the deprivation of nationality was abandonment of Russia after 7 November 1917 or
residence abroad for more than five years. So individuals became stateless and were
deprived of
de iure
legal protection. Their factual and legal bond with their home
state was completely broken. Thus the international community must have restored
their legal status in the form of surrogate protection.
The international community being formed in the League of Nations always
reacted to the critical situation belatedly.
Ad hoc
international treaties were adopted
under the aegis of the League of Nations. The 1928 Arrangement Relating to
the Legal Status of Russian and Armenian Refugees regulated the personal law
of refugees distinctively from the international treaties adopted by the Hague
Conference on Private International Law at the turn of the century.
48
The
Arrangement departed from the principle of nationality simply because it applied to
persons who did not want to or could not live in their state of origin or appplied to
stateless persons who did not have a place to return to. The principle of nationality
changed into a purposeless and vain connecting factor. The concept of nationality
was useless. Its conceptual role could not have been filled by Russian and Armenian
refugees.
The Arrangement included a reasonable scheme of connecting factors. The
prescribed solution provided for legislative or application choice. The Arrangement
referred to the law of the country of domicile or of the habitual residence of refugees:
Il est recommandé que le statut personnel des réfugiés russes et arméniens soit régi
dans les pays où leur ancienne loi n’est plus reconnue, soit par la loi de leur domicile
ou de leur résidence habituelle, soit, à défaut, par la loi de leur résidence. Cette
46
See Article 1 of the 1902 Convention relating to the settlement of guardianship of minors in the French
version: «La tutelle d’un mineur est réglée par sa loi nationale.»
47
NADELMANN, Kurt H.,
op. cit.
, p. 439.
48
League of Nations Treaty Series, Vol. LXXXIX, No. 2005.