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[1] On January 16th, 1930, the Council of the League of Nations adopted the
following Resolution [FN1]:
"The Council of the League of Nations,
Having considered the letter addressed by the President of the
Greco-Bulgarian Mixed Commission to the Secretary-General of the League on
December 19th, 1929, requesting [p5] the Secretary-General, in the name of
the Bulgarian and Greek Governments, to submit to the Council of the League
a request that an advisory opinion be obtained from the Permanent Court of
International Justice, for the use of the Mixed Commission, with regard to
the interpretation of those clauses of the Greco-Bulgarian Convention signed
on November 27th, 1919, which relate to communities:
Requests the Permanent Court of International Justice to give an advisory
opinion covering the questions formulated in the annexes to the letter from
the President of the Mixed Commission, which constitute the three annexes to
this Resolution.
The Council invites the Bulgarian and Greek Governments and the Mixed
Commission to hold themselves at the disposal of the Court for the purpose
of furnishing it with any necessary documents and explanations.
The Secretary-General is authorized to submit the present request to the
Court, together with all documents relating to the question, to explain to
the Court the action taken by the Council in the matter, to give any
assistance required in the examination of the case, and, if desirable, to
take measures to be represented before the Court."
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[FN1] English text transmitted by the Secretary-General of the League of
Nations
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[2] The annexes to this Resolution were as follows [FN1]:
"Annex I.
List of questions drawn up by the Mixed Commission.
September 14th, 1929.
1. - What is the criterion to be applied to determine what is a community
within the meaning of the Convention, inter alia under Article 6, paragraph
2 ?
2. - What conditions must be satisfied in order to cause the Mixed
Commission provided for in the Convention to dissolve a community such as is
meant by the Convention?
3. - What is to be understood by such dissolution? What relations are to be
dissolved ? What is the period by reference to which the existence of such
relations is to be established ?
4. - What attitude is to be observed by the Mixed Commission in cases where
it does not succeed in discovering the ayants droit (persons entitled)
referred to in Article 10, paragraph 2, of the Convention? [p6]
Annex II.
List of questions drawn up by the Bulgarian Government
December 17th, 1929.
1. - Seeing that the Convention deals with voluntary emigration, and that a
community, being a legal fiction, only exists in virtue of the law of the
country in question, whose frontiers it cannot transcend, can it be admitted
that a community may emigrate in virtue of the Convention, or does it not
logically follow that, where the Convention speaks of the property of
communities, this must be understood to mean any private property rights
which emigrants may eventually possess in respect of such property ?
2. - The Mixed Commission, being an executive body entrusted with the duty
of facilitating emigration and liquidating existing rights of emigrants, and
not with the creation of fresh rights, what body would be competent to order
the eventual dissolution of a community, and what laws would such body be
required to observe in such a case ?
3. - Whichever views be adopted, i.e. whether the case is considered to be
one of liquidation merely of emigrants property rights over the property of
the communities or one of liquidation in general of the property of the
communities, must it not on either hypothesis be recognized that the
liquidation must extend to the private property of the moral person which is
constituted by a commune, a commune being the typical example of a community
?
Annex III.
List of questions drawn up by the Greek Government.
December 18th, 1929.
1. - What is, in view of their origin and development, the nature of the
communities referred to in Article 6, paragraph 2', and Article 7 of the
Convention of Neuilly? Do they enjoy, in law or in fact, a personality which
confers upon them some of the attributes of a moral person, and in
particular the right to possess a patrimony separate from that of their
members ?
2. - Do the communities possess the characteristic of being connected as
minorities and racial groups with the [p7] country in which the majority of
the population is of the same race ? What are eventually the consequences,
as regards the allocation of their property, where their members, as
contemplated by Article 10 of the Convetion, are dispersed or absent (in the
legal sense of the term) ?
3. - On what conditions should the dissolution of the communities be made to
depend ?
4. - Does the Convention of Neuilly deal with communities dissolved before
its entry into force ? Should the same rules be applied as regards the
dissolution of these communities and the allocation of the proceeds of the
liquidation of their property as apply in the case of the communities
referred to in Article 7 of the Convention ?
5. - If the application of the Convention of Neuilly is at variance with a
provision of internal law in force in the territory of one of the two
signatory Powers, which of the conflicting provisions should be preferred -
that of the law or that of the Convention ?"
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[FN1] English text transmitted by the Secretary-General of the League of
Nations.
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[3] In pursuance of the Resolution above mentioned, the Secretary-General
submitted to the Court, on January 17th, 1930, a Request for an advisory
opinion in the following terms:
"The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of January 16th, 1930, and in virtue
of the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an
application requesting the Court, in accordance with Article 14 of the
Covenant, to give an advisory opinion to the Council on the questions which
are referred to the Court by the Resolution of January 16th, 1930.
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of this matter, and will, if necessary,
arrange to be represented before the Court."
The Request was accompanied by a file of documents which the President of
the Greco-Bulgarian Mixed Emigration Commission addressed to the
Secretary-General of the League of Nations, together with a letter to the
following effect, dated December 19th, 1929 [FN1] [p8]:
"Athens, December 19th, 1929.
Sir,
In the fulfilment of the task which falls to it, under the Convention
between Greece and Bulgaria of November 27th, 1919, concerning reciprocal
emigration, the Greco-Bulgarian Mixed Commission has encountered certain
difficulties regarding the interpretation to be placed on the provisions of
the said Convention relating to communities.
The laborious discussions which have taken place in the Mixed Commission
upon this question, and the importance which the two High Contracting
Parties have declared that they attach to it, have led the Mixed Commission
to consider the expediency of obtaining an opinion from the Permanent Court
of International Justice.
At the 519th meeting, the two Parties announced through their delegates on
the Mixed Commission that they agreed to entrust to the Commission the
submission to the Council, on their behalf, of a request to the effect that
such an advisory opinion should be obtained.
The efforts of the Mixed Commission, though they did not result in the
preparation of a list of questions satisfactory to the two Parties, enabled
certain questions to be formulated which, in the opinion of the neutral
members of the Com-mission, seem to cover the chief difficulties
encountered.
In addition to these questions, however, each of the Parties has seen fit to
formulate others, and this it has done with the full consent of the other
Party.
You will find in Annexes 1, 2 and 3, the various questions thus presented.
In my capacity as acting President, I therefore have the honour, on behalf
of the two Governments, to ask you to be so good as to lay before the
Council of the League of Nations, a request to the effect that an advisory
opinion be obtained from the Court for the use of the Mixed Commission.
Independently of the question of the form in which the Council may see fit
to ask for this opinion, I venture, on behalf of the Mixed Commission, to
express the hope that the Council will be so good as to consider the present
request during its next session.
I feel that I should add that in resorting to this course, it is not the
intention of the Commission in any way to invalidate the powers and
jurisdiction assigned to it by the Convention of Neuilly.
You will find annexed to this letter the minutes of the above-mentioned
meeting, and in general all information bearing upon the question as a
whole. [p9]
The Mixed Commission holds itself entirely at the disposal of the Council of
the League of Nations and of the Court to supply any further information.
(Signed) James De Reynier,
President."
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[FN1] English text transmitted by the Secretary-General of the League of
Nations.
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[4] In conformity with Article 73, paragraph 1, of the Rules of Court, the
Request was communicated to Members of the League of Nations and to States
entitled to appear before the Court. The Registrar further sent to the
Bulgarian and Greek Governments, which were regarded by the President of the
Court - the latter not being in session - as likely, in accordance with the
terms of Article 73, paragraph 2, of the Rules, to be able to furnish
information on the questions in regard to which the Court's opinion was
sought, a special and direct communication informing them that the Court was
prepared to receive from them written statements and, if desired, to hear
oral statements made on their behalf at a public hearing to be held for the
purpose. By an Order made on January 24th, 1930, the President of the Court
fixed February 28th, 1930, as the date by which written statements, if any,
were to be filed with the Registry of the Court ; at the request of the
Greek Government, this time was extended by means of an Order dated February
4th, 1930, until March 17th, 1930. By that date, the two Governments
concerned had deposited writ-ten statements with the Registry. Subsequently,
on March 21st, 1930, the Registrar informed the Agents of these Governments
that it was not the intention of the Court to call for the sub-mission of
further statements in reply to those which had been filed, but that the
Court would be prepared to receive such statements if presented by April
24th, 1930; before that date, each Government sent to the Registry written
observations upon the statement already filed on behalf of the other.
[5] In accordance with the Resolution of January 16th, 1930, the Council of
the League of Nations had asked the Governments and the Commission for
certain additional information. Furthermore, the acting President of the
Commission informed the Court, by a letter dated June 20th, that he had come
to The Hague in order to place himself at the Court's disposal. [p10]
[6] The Court in the course of public sittings held on June 19th, 20th,
21st, 23rd, 24th, 26th, 27th and 30th and on July 1st, 1930, heard the oral
arguments of M. Théodoroff, Agent, and MM. van Hamel and Verzijl, Counsel,
on behalf of the Bulgarian Government, and of His Excellency M. Politis,
Counsel on behalf of the Greek Government; at the conclusion of the hearings
it also, by a special decision, accepted short written statements addressed
to it by the Agents of the two Governments.
[7] Lastly, by an Order dated June 30th, 1930, the Court invited the
aforesaid Agents and. the President of the Mixed Com-mission to reply to
certain questions formulated therein ; these replies were given by Colonel
Corfe, President of the Mixed Commission, by M. Théodoroff, Agent for the
Bulgarian Government, and by M. Coutzalexis, Agent for the Greek Government,
at the hearing on July 1st.
[8] In addition to the statements and observations of the Governments
concerned, further written information furnished by them and by the Mixed
Commission at the Court's request, as also the documents transmitted to it
by the Secretary-General of the League of Nations, the Court has had before
it numerous documents filed at the hearing either by the representatives of
the said Governments or by the President of the Mixed Commission [FN1].
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[FN1] See annexed list
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[9] In view of the fact that neither of the Governments concerned had upon
the bench a judge of its nationality and that - the "request to the effect
that an advisory opinion be obtained" having, according to the terms of the
letter addressed to the Secretary-General of the League of Nations on
December 19th, 1929, by the President of the Mixed Commission, been
submitted "on behalf of the two Governments"-the question related to an
existing dispute between two States, within the meaning of Article 71,
paragraph 2, of the Rules, the attention of the Parties to this dispute,
namely, the Bulgarian and Greek Governments, was drawn to their right under
Article 31 of the Statute each to choose a judge of their nationality to sit
in the case. The two Governments availed themselves of this right. [p11]
I.
[10] The circumstances which led the Council to submit to the Court the
above-mentioned Request for an opinion may be summarized as follows:
[11] Following upon the entry into force of the Greco-Bulgarian Convention
respecting reciprocal emigration on August 9th, 1920, and in pursuance of a
Resolution of the Council of the League of Nations dated September 20th,
1920, the Mixed Emigration Commission, which was provided for in Articles 8
and 9 of the Convention [FN1], assembled at Geneva on December 18th, 1920.
Almost at the beginning of its sittings, it took up the question of the
interpretation of the Emigration Convention, the provisions of which it
examined, article by article, in the course of the 6th to the 48th meetings
(December 24th, 1920 - July 11th, 1921); a very considerable part of this
time - especially on and after February 17th (28th meeting)-was devoted to
the discussion of Article 12 of the Convention. This article, which the
Commission had considered very difficult to construe, formed the subject of
a detailed report which had been drawn up by the neutral member of the
Commission and the conclusions of which were adopted bу the Commission on
July nth (48th meeting). On January 10th, 1921 (15th meeting), the question
of the preparation of rules was raised in connection with Article 9; this
work however was not seriously taken in hand until later (January-March
1922); it was completed on March 4th, 1922 (96th meeting), when the
Commission unanimously adopted "Rules for the reciprocal and voluntary
emigration of the Greek and Bulgarian Minorities". It officially
communicated these Rules to the two Governments concerned on March 6th,
1922. Not until this was done did the Commission undertake the practical
application of the Convention.
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[FN1] For text of the Convention, see list in Annex
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[12] During the preliminary stages of its work and the early years of its
existence, the Commission was led to adopts more or less incidentally, a
number of decisions affecting the interpretation of the Convention with
respect to the position of communities. These decisions, which are
enumerated in the [p12] written statement sent by the Commission to the
Court at the latter's request, related amongst others to the following
points :
(1) interpretation of the word "persons" in Article 12of the Convention;
(2) liquidation of community property held by an individual in his own name;
(3) method of representation of communities before the Mixed Commission,
more particularly for the purposes of a claim for liquidation;
(4) movable property of communities which may be taken away by emigrants;
(5) provisional measurement and valuation of the immovable property of
communities;
(6) the drawing up and delivery of the instruments of payment in connection
with the liquidation of community property erroneously considered to be the
property of individuals;
(7) interpretation of the conception of a "community" in relation to an
administrative commune.
[13] Meantime, and in view of the fact that the documents relating to a
number of cases of the verification of the rights of ownership in and of the
valuation of certain immovable property belonging to communities had reached
it, the Commission in August 1926 put to the representatives of the two
Governments concerned questions relating to the following points bearing on
the interpretation of Articles 6 and 7 of the Convention:
(1) When is a community to be regarded as "dissolved" under the terms of
Article 6?
(2) To whom should the proceeds of the liquidation of a community considered
as "dissolved" be paid?
(3) What movable property may be carried away in the event of partial
emigration?
[14] On these points, notes and written statements were presented to the
Mixed Commission by the Bulgarian and Greek representatives. It was in these
circumstances that the Comission decided "to instruct its President to put
to the Legal Section of the League of [p13] Nations, on behalf of the Mixed
Commission, such questions as he might consider advisable". On the basis of
the opinions obtained in this way and from other sources, the neutral
members of the Commission, in August 1928, after a period of direct
negotiation between the two Governments concerned, laid before the
representatives of these Governments two interpretation of the clauses of
the Convention relating to the points at issue. The Bulgarian and Greek
members of the Commission expressed their views - by means of letters to the
President (meeting of August 24th, 1928) - with regard to the proposals in
question, the Greek member accepting the second and the Bulgarian member
adopting the first without being able to agree upon a solution acceptable to
both Parties. In these circumstances, the President of the Commission, on
September 15th, 1928, addressed to the Bulgarian and Greek Governments a
letter in which he suggested for the first time that it might per-haps be
useful if the Permanent Court of International Justice could be asked to
give an advisory opinion upon the difficulties encountered by the Commission
with regard to the interpretation to be placed on the clauses of the
Emigration Convention relating to communities. The suggestion, which
remained for a considerable time without response, was put forward again,
more particularly in a letter of July 31st, 1929.
[15] A long series of discussions in the Mixed Commission followed; finally,
at the beginning of December 1929, they culminated in the sending by the two
Governments to the President of written declarations whereby they mutually
consented in principle to a procedure consisting in obtaining an advisory
opinion from the Court; this consent, however, was given on both sides
subject to an express reservation with regard to the final form to be given
to the questions to be submitted to the Court. In pursuance of a formal
decision of the Commission, its President prepared and submitted to his
colleagues a draft list of questions. As this list was not accepted by the
representatives of the two Governments concerned, it was agreed that the
latter might send to the Commission any additions which they wished to make
to the questionnaire. Herein lies the origin of the fact [p14]that first the
Council and subsequently the Court had before them three lists of questions,
which constitute the questionnaires drawn up by the Mixed Commission, the
Bulgarian Government and the Greek Government respectively and annexed to
the Council's Resolution. Those of the two national members were submitted
at the meeting of December 18th, 1929. At the same meeting the Commission
approved, firstly the letter - reproduced in the early part of the present
Opinion - sent on the following day by the President of the Commission to
the Secretary-General of the League of Nations, in order to set in motion
the procedure for obtaining an opinion, and secondly the list of documents
relating to the matter, which the Secretary-General would be requested to
transmit to the Court.
[16] At a previous meeting (December 3rd), the President had already
submitted to the Commission a statement indicating the procedure which he
thought should be followed - or which, in his view, would be followed - for
the purpose of obtaining the opinion of the Court. This statement seems to
have been officially transmitted to the two Governments concerned on behalf
of the Commission. This document, after analysing the relevant provisions of
Article 73 of the Rules of Court, says that "the [written] statements of the
two Parties should conclude with their respective submissions. In these
submissions, each Party should enumerate the submissions which it wishes the
Court to confirm." Leaving aside the question of the correctness of the
opinion thus expressed in relation to advisory procedure, it is to be
observed that the two Governments concerned have conformed to it: the
Memorial filed by each of them is in fact terminated by a series of
"submissions" containing the replies proposed by them to the various
questions upon which the Court's opinion is sought. These submissions may
usefully be reproduced here as authoritative summaries of the opposing
contentions:
Submissions of the Bulgarian Government.
"It is submitted:
1. (a) that the conception of a community within the meaning of the
Convention between Greece and Bulgaria [p15] respecting reciprocal
emigration signed at Neuilly-sur-Seine on November 27th, 1919, is to be
understood in the French sense of the expression "corps et communautés",
that is to say that it covers associations with an ideal aim and
"foundations" enjoying juridical personality, provided that they present
exclusively the characteristics of a racial or religious minority. Such are
the various religious, educational or philanthropic establishments
(religious congregations, churches, convents, monasteries, schools,
hospitals, alms-houses, etc.) and communes, the population of which presents
the characteristics of a minority, in so far as their private property is
concerned ;
(b) that the minority and racial characteristics of communities should be
determined not only with reference to their designation and nominal
affinity, but also with regard both to their origin and to the character of
the bulk of the local orthodox population which contributed to their
creation or maintenance and to the historical fact that until 1870 all
inhabitants of the Ottoman Empire of Greek orthodox religion (Greeks,
Bulgars, Serbs, Vlachs, etc.) were subject, as regards both their personal
and spiritual status, to the authority of the Greek Patriarch of
Constantinople and were all called "Greeks" (Roum millet);
(c) that communities, as juridical persons, are not entitled under the
Convention to benefit by the provisions respecting emigration and are not,
as such, covered by the conception of "emigrants"; only their members who
have exercised in due form the right to emigrate can claim this character;
2. (a) that a community can only be dissolved when all or nearly all its
members have exercised the right to emigrate;
(b) that the Convention only contemplates the dissolution of a community as
the result of the emigration of its members, and not for any other reason;
(c) that the expression "members" of a community is to be understood as
meaning not only its directors and personnel but also all the inhabitants
belonging to the minority, in the locality served by the community, who,
directly or indirectly, contribute to its support or administration; that
only members who have duly exercised the right to emigrate should be taken
into account;
(d) that the Convention does not apply to communities dissolved before its
entry into force;
(e) that with regard to the dissolution of communities and, in general, the
exercise of the right to emigrate, the provisions of the Convention should
prevail over laws and regulations of the country conflicting with them; but
that [p16] in all questions concerning the substance of the law to be
applied - the existence or constitution of communities, the nature,
particulars and extent of rights to property which it is sought to assert in
connection with emigration, the methods of establishing such rights, etc., -
the local legislation in force, under which these rights have been acquired
or created, is alone applicable;
(f) that the Mixed Commission has no power to pronounce the dissolution of a
community except on account of the emigration of its members and then only
in the case of total emigration;
3. (a) that by "dissolution" is to be understood the dissolution of the
legal relations resulting from joint patrimonial interests which unite the
members of the community, if, as a result of such dissolution, the emigrant
members are entitled to claim a portion of the property of the community,
either by reason of the division of the property (an extremely rare case) or
in respect of individual rights over such property; that the moment in time
by reference to which these rights are to be determined is the time at which
the emigration took place;
(b) that only property which is the subject of commercial exchange capable
of private ownership and of being the subject of private rights, is liable
to liquidation;
(c) that only members who have duly exercised the right to emigrate and who
are in a position to assert pecuniary rights over the property of a
community are entitled to apply for its dissolution; that the delegates of
States are not entitled to apply for it and that the Mixed Commission has no
power to pronounce it ex officio;
4. (a) that the proceeds of the liquidated property of a dissolved community
must be handed over to the members who have duly exercised the right to
emigrate and have submitted applications for liquidation - of course within
the limits of their rights as specified above;
(b) that any surplus should revert to the State which has sovereignty over
the territory in which the liquidated property of the dissolved community is
situated."
Submissions of the Greek Government.
"It is submitted:
I. With regard to the definition of the term "communities":
1. that the criterion of the conception of a community within the meaning of
the Convention, inter alia within the meaning of Article 6, paragraph 2, is
that it must [p17] be a group of persons of the same religion and race, must
be of a character both religious and national and must be designed to serve
the common interests of its members in regard to religion, education and
charity; and that the question whether such a community still exists or has
existed in the past is a question of fact to be decided in each case in
accordance with the relevant historical data ;
2. that the community in the sense of the Convention bears no relation
whatever to the commune, from which it differs fundamentally in character,
purpose and composition;
3. that the community within the meaning of the Convention is a body end
owed in law and in fact, or in fact only, with the character of a juridical
person, capable of possessing rights and of being bound by its own
obligations and of possessing property distinct from that of its members;
4. that the community within the meaning of the Convention possesses
essentially minority and racial characteristics linking it to the State to
which it is nationally akin.
II. With regard to the conditions for the dissolution of communities:
1. that the dissolution of communities, in the sense of the Convention, is
the regularization in law of a situational ready existing in fact;
that it is subject to one condition, necessary but sufficient, namely, the
emigration in the future or in the past of the members of the community in
question;
2. that the members of the community in question, whose emigration is
necessary for the dissolution of the community, must be understood to mean
persons who have really formed part of the racial minority of which this
community was the national organ;
that the number of emigrants or emigrated persons is, for the purposes of
the dissolution of the community, a matter of complete indifference. On the
other hand, what is essential is to ascertain whether the community in
question can now continue to fulfil its original purpose, namely, to serve
as national organ for the racial minority which established it;
3. that it is not for the Commission to pronounce the dissolution of a
community, but simply to ascertain whether emigration has in fact taken
place; if it has, it necessarily involves the dissolution in law of any
community already dissolved in fact; [p18]
4. that since the dissolution of communities is not effected by a
pronouncement but follows automatically upon the fulfilment of the condition
upon which the Convention is made dependent, there is no need to consider on
what laws a pronouncement of dissolution should be based;
that the laws of the country in the territory of which the community to be
dissolved has functioned cannot constitute any hindrance to its dissolution;
that if in regard to this point, or in any other respect, they conflict with
the Convention, they are to be regarded as of no effect.
III. With regard to the consequences of the dissolution of communities:
1. that the relations to be dissolved by the dissolution of a community are
those which existed in law up till that date between the community as a
juridical person and, on the one hand, its members who can no longer expect
from it the services which it formerly rendered them and who will be
entitled to benefit by the liquidation of its property, and, on the other
hand, the territorial State, which will be released from the treaty
obligations which it had previously assumed in relation to the community and
will become the owner of its immovable property upon payment to the
Commission of the value of such property;
2. that when the Convention speaks of the property of communities, it does
not mean private patrimonial rights which emigrants might in certain
circumstances possess in re aliena in respect of such property, but the
whole of the movable and immovable property included in the patrimony which
these communities possessed as juridical persons;
3. that in order to decide what relations are to be severed in the event of
the dissolution of a community, the moment in time to be taken is that at
which the dissolution in law of the community takes place, and not that of
its dissolution in fact which may have occurred in the past;
4. that the Convention applies to communities dissolved in fact before its
entry into force. As regards such communities the rules to be applied as
regards their dissolution in law are the same as those applicable to the
communities referred to in Article 7 of the Convention.
IV. With regard to the allocation of the proceeds of the liquidation of
communities:
1. that if the Mixed Commission does not succeed in discovering the
possessors of rights in rem to the liquidated property of a dissolved
community, it must allocate the value of such property to the State to which
the said community is racially akin; [p19]
2. that as regards communities dissolved in fact before the entry into force
of the Convention, the rules to be applied with regard to the allocation of
the proceeds of the liquidation of their property are the same as those
applicable to the communities referred to in Article 7 of the Convention.”
II.
[17] Before answering the questions put, the Court considers it necessary to
recall the general purpose which the Greco-Bulgarian Convention of November
27th, 1919, respecting emigration, was designed to fulfil, as also those of
its provisions which have to be applied and the scope of which should
therefore be clearly defined.
[18] The Greco-Bulgarian Convention concerning emigration constitutes,
according to its Preamble, the execution of Article 56, paragraph 2, of the
Peace Treaty concluded the same day between the Allied and Associated Powers
and Bulgaria. This article forms part of the provisions relating to the
protection of minorities.
[19] This shows the close relationship existing between the Convention and
the general body of the measures designed to secure peace by means of the
protection of minorities.
[20] It was in this spirit, as stated in the Preamble, that the Principal
Allied and Associated Powers considered it opportune that the reciprocal and
voluntary emigration of minorities in Greece and Bulgaria should be
regulated by the Convention. It follows that this Convention cannot apply to
persons other than those who formed minorities-in either one country or the
other.
[21] The general purpose of the instrument is thus, by as wide a measure of
reciprocal emigration as possible, to eliminate or reduce in the Balkans the
centres of irredentist agitation which were shown by the history of the
preceding periods to have been so often the cause of lamentable incidents or
serious conflicts, and to render more effective than in the past the process
of pacification in the countries of Eastern Europe.
[22] With these objects in view, the Convention not only lays down that the
departure of persons wishing to emigrate is not to be hindered in any way,
but also contains clauses [p20] designed to prevent the material losses
which their emigration might entail upon them.
[23] Furthermore, but always in the same spirit, the Convention seeks to
stabilize emigrations which have taken place in the past and, with this
object, gives to these former emigrants - mostly refugees who had fled in
consequence of wars or acts of violence - the possibility of recovering, if
not the actual property, at all events the value of the property which they
had been compelled to abandon on their departure.
[24] In both cases it will readily be understood that, without these clauses
regarding property, there would have been hesitation in the reciprocal
emigration desired by the Powers, and the permanent settlement of the former
refugees would have remained a matter of uncertainty for lack of
encouragement. The general purpose of the Convention would thus have been
compromised.
[25] In these circumstances, the Convention makes provision first and
foremost (Articles 1, 2, 3, 4, 5, 6, 7) for emigration subsequent to the
Convention and carried out in accordance with its terms, and, secondly and
subsidiarily, in a special clause deals with emigration previous to the
entry into force of the Convention. This clause constitutes Article 12.
[26] It should be observed that the Convention, by its provisions, which lay
down the conditions under which the right of emigration is to be exercised
by the respective nationals of the two States, which remove any obstacles
which might interfere with their departure - save of course for a serious
conviction under the ordinary law - which fix conditions as regards age, as
also conditions respecting married women and children and which, in the case
of the former refugees, stipulate that departure is to be followed by
settlement, has clearly indicated that it was individuals who were entitled
to take advantage of its terms.
[27] Nevertheless, the material benefits which from time immemorial in the
East individuals of the same race, religion, language and traditions, have
derived from uniting into communities, are well known.
[28] Accordingly, the Convention does not confine itself to protecting the
separate property of individuals (Article 2, [p21] paragraphs, Article 6,
paragraph 1, and Article 7), but also aims at securing for them, subject to
certain conditions and formalities, the possibility of taking away with them
the movable property and of receiving the value of the immovable property of
the communities which are dissolved by reason of their emigration,
collective property thus being assimilated to individual property.
[29] In the light of these preliminary observations, the various questions
put to the Court call for the following remarks:
Questions Drawn up by the Mixed Commission.
1° "What is the criterion to be applied to determine what is a community
within the meaning of the Convention, inter alia under Article 6, paragraph
2?"
[30] By tradition, which plays so important a part in Eastern countries, the
"community" is a group of persons living in a given country or locality,
having a race, religion, language and traditions of their own and united by
this identity of race, religion, language and traditions in a sentiment of
solidarity, with a view to preserving their traditions, maintaining their
form of worship, ensuring the instruction and upbringing of their children
in accordance with the spirit and traditions of their race and rendering
mutual assistance to each other.
[31] Nowhere is evidence to be found that the Greco-Bulgarian Convention of
November 27th, 1919, regarding emigration intended, by some special
stipulation, to depart in any of its provisions and particularly in Article
6, paragraph 2, from this general traditional conception.
[32] On the contrary, the aim and object of the Convention, its connection
with the measures relating to minorities, the desire of the signatory
Powers, to which the whole Convention bears witness, that the individuals
forming the communities should respectively make their homes permanently
among their own race, the very mentality of the population concerned -
everything leads to the conclusion that the Convention regards the
conception of a "community" from the point of view of this exclusively
minority character [p22] which it has had for centuries past in the East,
and in which it played so important a part both under the Turkish Empire and
at the time of the recognition of the independence of the States which
emerged from the old Turkish provinces or dependencies.
[33] The question whether, in deciding on the application of the Convention,
a particular community does or does not conform to the conception described
above is a question of fact which it rests with the Mixed Commission to
consider having regard to all the circumstances.
[34] In order to fulfil the purpose for which they existed, and in order to
meet the common needs of their members, it was necessary that the
communities should have property at their disposal, that they should have a
patrimony, no matter what legal form their possession of it might take, or
what the local law might be as regards the granting or withholding of
juridical personality so as to enable them to be capable in law of owning
property.
[35] The existence of communities is a question of fact; it is not a
question of law. In actual fact the communities ordinarily possessed
property. The Convention itself recognizes this by referring expressly to
the property, movable
[36] The. question whether, according to local law, a community was or was
not recognized as a juridical person, may be of some importance from the
point of view of the form which its possession of property took. But the
situation of fact is not thereby altered and there is nothing in the
provisions of the Convention respecting the property "belonging to
communities" to indicate that only those communities which have been
accorded special legal recognition by the local legislation are meant. If
that had been its meaning, the Convention would have been in conflict with
the object which it was designed to achieve, namely, to facilitate
emigration as much as possible.
[37] Article 6, paragraph 2, when it mentions communities of which emigrants
may be members, adds the words "(including churches, convents, schools,
hospitals or foundations of any kind whatever)". [p23]
[38] In this connection, two hypotheses must be considered both of which are
covered by the Convention.
[39] A church, convent, school, hospital or any other foundation may,
indeed, constitute a more or less important part of the property belonging
to a community. If so, it is covered by the terms of Article 6, paragraph 2,
and Article 7 of the Convention, which grant to emigrants the property or
the value of the property belonging to their communities.
[40] But by these establishments may also be meant particular institutions
of which emigrants may be members or beneficiaries, which have a separate
existence and which in some cases even have been accorded special
recognition by the local legislation. In such cases, the effect of Article
6, paragraph 2, of the Convention is to assimilate such churches, convents,
schools, hospitals or foundations to communities, so as to secure to
emigrants, who are members or beneficiaries of these institutions, the same
rights in respect of the property thereof as in respect of property
belonging to communities.
[41] With regard to the first question drawn up by the Mixed Commission, the
conclusion is thus reached that the conception of a community within the
meaning of the Greco-Bulgarian Convention regarding emigration is the
historical and traditional conception, - that the question whether,
according to local law, a community was or was not recognized as a distinct
juridical person, need not be considered from the point of view of the
Convention, - that in point of fact the communities possessed property - and
that churches, convents, schools, hospitals or foundations having a separate
existence are, when persons who are members or beneficiaries thereof
emigrate, assimilated to communities.
2° "What conditions must be satisfied in order to cause the Mixed Commision
provided for in the Convention to dissolve a community such as is meant by
the Convention ?"
[42] The existence of a community being, as already stated, a question of
fact and not of law, the same must hold good [p24] as regards its
dissolution, which is also a question of fact and not of law.
[43] The Convention contains no definition of dissolution; it con-fines
itself to providing for cases where dissolution may occur.
[44] The powers conferred by the Convention upon the Mixed Commission relate
to the measures to be taken after dissolution has taken place. But since
dissolution is not the result of legal proceedings, the Mixed Commission is
not called upon itself to dissolve a community, but simply to verify whether
dissolution has taken place, in order then to carry out the measures
prescribed in this event by the Convention.
[45] On the other hand, in order that a community must be regarded as
dissolved from the point of view of the Convention, and in order that the
Commission may thereupon take the measures consequent on such dissolution,
it follows from Article 6, paragraph 2, that certain conditions must be
fulfilled. It rests with the Commission to satisfy itself that they are
fulfilled.
[46] In the first place, the dissolution of the community must be the
consequence of the emigration of persons who were members of it.
[47] In the second place, it is essential that, as a result of this
emigration, of its extent and in general of the conditions in which it has
taken place, the community should be unable to perform its task and fulfil
its purpose.
[48] These are questions of fact which the Commission must decide, and it
has all the powers necessary for this purpose under Article 9 of the
Convention.
[49] Furthermore, if it happened that a community, in the ?. sense of the
Convention, had received special legal recognition under the local law, some
special local legal proceeding; might on that account be necessary in order
that the community should be dissolved in the eyes of the local law. That,
however, would be a proceeding outside the functions of the Mixed Commission
and extraneous to the dissolution of the community as contemplated by the
Convention. [p25]
3° "What is to be understood by such dissolution? What relations are to be
dissolved? What is the period by reference to which the existence of such
relations is to be established ?"
[50] Since, as has been seen, the existence of a community is, within the
meaning of the Convention, only a question of fact, and since the
dissolution itself is also a question of fact, dissolution is the cessation
of the existence of a community. The community ceases to exist, and ceases
to exist in all respects. It would be useless to argue that a community
which has disappeared in fact continues to exist in law, and that this
continued legal existence necessitates a "dissolution in law". Such a
situation could only arise if the communities must, within the meaning of
the Convention, be recognized as juridical persons and, as has been seen,
this is not the case.
[51] As regards the "relations" destroyed by dissolution, the very nature of
a community shows that these relations are bonds of solidarity uniting the
individuals who are members of the community and involving mutual rights and
obligations for these individuals.
[52] If by "relations" are meant the various relations implied by the
existence of the community, it will be seen that the dissolution of the
community terminates not only the relations of the individual members of the
community one with another, but also their relations with the community
itself, as well as the relations between the community and third parties.
[53] Lastly, as regards the moment of time by reference to which the
existence of such "relations" is to be established, in principle this moment
is clearly that immediately preceding the dissolution of the community; on
this dissolution the application of the measures provided for by the
Convention is dependent.
[54] If however the dissolution of a community only takes place as the
result of several consecutive emigrations, the last of these involving
dissolution, it is a question to be considered in each particular case, and
it will rest with the Commission to ascertain whether, and if so to what
extent, the earlier [p26] emigrations have contributed to the dissolution,
and to decide whether they should be taken into consideration for the
purposes of the distribution of the property of the community.
4° "What attitude is to be observed by the Mixed Commission in cases where
it does not succeed in discovering the 'ayants droit' (persons entitled)
referred to in Article 10, paragraph 2, of the Convention ?"
[55] If it is borne in mind that the object of the Greco-Bulgarian
Convention was to facilitate the emigration of individuals to the country to
which they are racially akin, that the Convention provides for the
dissolution of communities precisely because of this emigration and that, in
order to encourage individuals to emigrate, it affords them the possibility,
conditional upon their emigration, of benefiting individually from the
property of the community, it will be evident that this dividing up of the
property is a favour exclusively reserved to persons entitled to avail
themselves of the terms of the Convention.
[56] Since the measures provided for by the Convention are designed to
benefit emigrants, the Mixed Commission must only intervene in order to
satisfy itself that a community is dissolved upon the application of
individuals made personally, or on their behalf, establishing their right to
avail themselves of the Convention and, thereby, their right to invoke its
terms with a view to claiming the allotment to them of movable property or
of a portion of the value of the immovable property belonging to the
dissolved community.
[57] When the property of a dissolved community is liquidated, no matter
when this dissolution has taken place, the only ayants droit (persons
entitled) therefore are the emigrant members of the community who establish
their title and claim liquidation on the ground of dissolution.
[58] It is therefore difficult to see how, at any rate at that moment, the
ayants droit (persons entitled) would not be known.
[59] Nevertheless, it may happen that among the ayants droit (per-sons
entitled) who were known at that time, there may be some who subsequently
cannot be traced in spite of the efforts of the [p27] Commission. In such a
case, the Commission should inform the governments concerned of the fact and
they will take the necessary steps, in accordance with their respective
laws, to ensure that the value is duly paid to the persons entitled to
receive it under the terms of the Convention.
Questions Drawn up by the Bulgarian Government.
1° "Seeing that the Convention deals with voluntary emigration and that a
community, being a legal fiction, only exists in virtue of the law of the
country in question, whose frontiers it cannot transcend, can it be admitted
'that a community may emigrate in virtue of the Convention, or does it not
logically follow that, where the Convention speaks of the property of
communities, this must be understood to mean any private property rights
which emigrants may eventually possess in respect of such property ?"
[60] The various statements upon which this question is based cannot be
regarded as either correct or relevant.
[61] In the first place the Convention does not deal with voluntary
emigration only, since in Article 12 it also deals with former refugees.
[62] In the second place, as has already been seen in connection with the
first question of the Mixed Commission, it is incorrect to regard the
"community" as a legal fiction existing solely by the operation of the laws
of the country.
[63] In the third place, the question whether a community, within the
meaning of the Convention, may or may not emigrate is a question irrelevant
to the application of the Convention which, as has been seen, has for its
object the emigration of individuals. The individual members of the
community, and they alone, can under certain conditions carry away the
movable property of the community and receive the value of its immovable
property. [p28]
[64] As regards any private property rights which emigrants may possess in
respect of the property of the community, these rights form part of the
"pecuniary rights" of emigrants expressly mentioned and protected by Article
2, paragraph 2, of the Convention. They should not be confused with the
movable and immovable property belonging to the community, in regard to
which Articles 6, paragraph 2, and 7 of the Convention provide for
distribution in kind as regards the former and liquidation followed by
distribution of the value as regards the latter.
2° "The Mixed Commission being an executive body entrusted with the duty of
facilitating emigration and liquidating existing rights of emigrants, and
not with the creation of fresh rights, what body would be competent to order
the eventual dissolution of a community, and what laws would such body be
required to observe in such a case ?"
[65] The Convention does not confine itself to entrusting the Commission
with the liquidation of the immovable property of emigrants; it also
entrusts it (Article 6, paragraph 2), where necessary, with the distribution
to emigrants of the movable property and of the proceeds of the liquidation
of the immovable property (Articles 7 and 10) belonging to communities.
Moreover, since the community is not a creation of the local law but has an
existence in fact, its dissolution is also a question of fact; this
dissolution has not to be pronounced by any "competent body", as might
possibly be the case if the community itself had been constituted and
recognized in accordance with some local law. The rights of members are not
therefore created by a decision of the Commission but arise out of the
Convention itself.
[66] For the same reasons the question of the applicability of any
particular legislation cannot arise. [p29]
3° "Whichever views be adopted, i.e. whether, the case is considered to be
one of liquidation merely of emigrants' property rights over the property of
the communities or one of liquidation in general of the property of the
communities, must it not on either hypo-thesis be recognized that the
liquidation must extend to the private property of the moral person which is
constituted by a commune, a commune being the typical example of a community
?"
[67] The "commune" is a territorial district constituted by public municipal
law as an administrative and political unit, and remaining the same no
matter who its inhabitants may be. The conception of a community, within the
meaning of the Convention, and its characteristic features are foreign to
this unit of the internal organization of a country.
[68] In actual fact, it may happen that a community by itself constitutes
the entire population of a commune and that consequently it is the community
which exercises the rights and fulfils the obligations of the inhabitants of
a commune. Should, however, this community disappear for any reason, should
the population change in this administrative district, the commune continues
to exist notwithstanding, for it owes its existence not to the fact of the
presence within its boundaries of inhabitants of some particular race,
religion or traditions, but to the sovereign law of the State.
[69] If a community forming the whole population of a commune possesses
property therein, and if its members emigrate, it is easy to see that this
property will have to be liquidated; but it would be inconceivable if, by
reason of this emigration, property belonging to the commune itself were to
be liquidated. It is evident that such property, since it does not belong to
the community, cannot be liquidated on the ground of emigration.
[70] Of course, if emigrants possessed individual rights in respect of
property jointly belonging to the inhabitants of a commune, such rights must
be respected and would be protected as provided by Article 2 of the
Convention. [p30]
Questions Drawn up by the Greek Government.
1° "What is, in view of their origin and development, the nature of the
communities referred to in Article 6, paragraph 2, and Article 7 of the
Convention of Neuilly ? Do they enjoy, in law or in fact, a personality
which confers upon them some of the attributes of a moral person and in
particular the right to possess a patrimony separate from that of their
members ?"
[71] This question gives rise to the same observations as those made in
regard to the first question of the Mixed Commission, and there is no need
to repeat them.
2° "Do the communities possess the characteristic of being connected as
minorities and racial groups with the country in which the majority of the
population is of the same race? What are eventually the consequences, as
regards the allocation of their property, where their members, as
contemplated by Article 10 of the Convention, are dispersed or absent (in
the legal sense of the term) ?"
[72] It follows from the observations already made with regard to the Mixed
Commission's first question that communities are of a character exclusively
minority and racial.
[73] On the other hand, whatever reasons may be advanced in support of the
allocation to the State to which a community is racially akin of the value
of the property of such community when dissolved, if the members thereof are
dispersed or absent, these reasons are foreign to the aim and object of the
Convention. The latter was in no way intended to lighten by this means the
burden which might devolve upon this State as a result of an influx of
population for the needs of which it has to provide. [p31]
[74] As has been stated, the only persons entitled to benefit by the
Convention and able to invoke it in order, in certain circumstances, to have
allotted to them the property or the value of the property of a dissolved
community, are the emigrant members of such community. To them alone the
allocation of the property is reserved. The intention of the Convention is
by this means to facilitate or stabilize their emigration.
[75] There is nothing in the Convention justifying the deduction that the
relations existing between communities and the country to which they are
racially akin give that country any sort of claim in respect of the movable
property or of the proceeds of the liquidation of the immovable property of
dissolved communities; this holds good even if all the former members have
established themselves in the territory of that country.
3° "On what conditions should the dissolution of the communities be made to
depend ?"
[76] This question gives rise to the same observations as have already been
made with regard to the second question of the Mixed Commission, and there
is no need to repeat them.
4° "Does the Convention of Neuilly deal with communities dissolved before
its entry into force ? Should the same rules be applied as regards the
dissolution of these communities and the allocation of the proceeds of the
liquidation of their property as apply in the case of the communities
referred to in Article 7 of the Convention ?"
[77] The Convention in its various clauses only deals with communities in so
far as concerns their property which, following upon their dissolution as a
consequence of emigration, the Convention devotes to the benefit of persons
who were their members. The provisions with reference to individuals cannot
be extended to communities.
[78] Similarly, and from the point of view of the Convention, it is, as has
been stated, impossible to contemplate a survival [p32] in law of a
community which has in fact ceased to exist and is dissolved.
[79] Entirely different is the question whether Article 12, securing to
persons who had emigrated before the coming into force of the Convention the
value of property left behind them in the country which they have quitted,
also gives them the right to claim the value of the property of communities
of which they were members and which have been dissolved as a consequence of
their emigration.
[80] In regard to this it should be observed that the object of Article 12
is to allow certain persons to have the benefit of the Convention to whom
Articles 1 to 11 are not. applicable. Though it would be contrary to all
sound rules of interpretation to change the system of these articles by
extending their application to persons not contemplated by them, it seems on
the other hand to be in harmony with the aim and spirit of this article to
give to persons who have already emigrated in respect of the "property left
by them" the same economic advantages as are secured by the Convention to
future emigrants. It follows that just as persons emigrating subsequently to
the Convention participate in the property of the community the dissolution
of which is brought about by their emigration, so former refugees ought to
have the possibility of participating in the proceeds of the liquidation of
property belonging to a community of which they were members and the
dissolution of which resulted from their departure.
5° "If the application of the Convention of Neuilly is at variance with a
pro-vision of internal law in force in the territory of one of the two
Signatory Powers, which of the conflicting provisions should be preferred -
that of the law or that of the Convention ?"
[81] In the first place, it is a generally accepted principle of
international law that in the relations between Powers who are contracting
Parties to a treaty, the provisions of municipal law cannot prevail over
those of the treaty.
[82] In the second place, according to Article 2, paragraph 1, and Article
15 of the Greco-Bulgarian Convention, the two [p33] Governments have
undertaken not to place any restriction on the right of emigration,
notwithstanding any municipal laws or regulations to the contrary, and to
modify their legislation in so far as may be necessary to secure the
execution of the Convention.
[83] In these circumstances, if a proper application of the Convention were
in conflict with some local law, the latter would not prevail over the
Convention.
[84] FOR THESE REASONS,
The Court
is unanimously of opinion that the answers to the questions submitted to it
are as follows
I. - Answers to the questions drawn up by the Mixed Commission:
1° The criterion to be applied to determine what is a community within the
meaning of the articles of the Convention, inter alia Article 6, paragraph
2, is the existence, of a group of persons living in a given country or
locality, having a race, religion, language and traditions of their own, and
united by the identity of such race, religion, language and traditions in a
sentiment of solidarity, with a view to preserving their traditions,
maintaining their form of worship, securing the instruction and upbringing
of their children in accordance with the spirit and traditions of their race
and mutually assisting one another.
From the point of view of the Convention, the question whether, according to
local law, a community is or is not recognized as a juridical person need
not be considered; communities can, in fact, possess property; churches,
convents, schools, hospitals or foundations existing as distinct entities
are, when the persons who are members or beneficiaries thereof emigrate,
assimilated to communities.
2° The Mixed Commission, provided for by the Convention, has not itself to
dissolve communities. In the meaning of the Convention, the dissolution of a
community is a fact [p34] which must be verified by the Commission. It must
result from the exercise of the right of emigration by the members of such
community, and this emigration must involve the dis-appearance of the
community or render it impossible for it to carry out its mission or fulfil
its object.
3° By the dissolution of a community is to be understood the breaking up of
the community and the cessation of its existence in all respects.
The "relations" dissolved are those which united the members of the
community. Dissolution terminates the mutual relations of individuals as
members of the community as well as their relations with the community
itself and the relations between the community and third Parties. The
existence of these relations should in principle be determined by reference
to the moment of time immediately preceding the dissolution of the
community.
4° The idea of the Convention is not to admit the dissolution of a community
and the liquidation of its property in the absence of individuals, members
of such community, who manifest their desire to profit by the terms of the
Convention ; it is therefore difficult to see how the ayants droit (persons
entitled) will not be known at the time of the liquidation.
Should there be some who subsequently, notwithstanding the efforts of the
Commission, cannot be traced, the Commission must inform the governments
concerned, with whom it will-rest, in accordance with their respective laws,
to take the necessary steps to ensure that the proceeds of liquidation are
duly paid to those entitled to them under the Convention.
II. - Answers to the questions drawn up by the Bulgarian Government:
1° Private patrimonial rights which emigrants may have in respect of the
property of the community form part of the "pecuniary rights" of emigrants,
and these rights are expressly mentioned and protected by Article 2,
paragraph 2, of the Convention; they are not to be confused with the
property belonging to the community and dealt with in Article 6, paragraph
2, and Article 7. [p35]
2° The dissolution of a community being a fact, it has not to be pronounced
by any body and, so far as regards the application of the Convention, there
is no need to ascertain what particular law is applicable.
3° The liquidation by the Mixed Commission of the property of a community,
within the meaning of Article 6, paragraph 2, and of Article 7, does not
apply to the private property of the commune.
III. - Answers to the questions drawn up by the Greek Government:
1° The reply to this question has been given in paragraphs 1 and 2 of the
reply to the first question of the Mixed Commission.
2° Communities, within the meaning of the Convention, are of a character
exclusively minority and racial. The State to which they are racially akin
does not from this circumstance derive any right to the movable property or
to the proceeds of the liquidation of the immovable property of a dissolved
community whose members are dispersed or absent.
3° The reply to this question has been given in connection with the second
question of the Mixed Commission.
4° The Convention is only applicable to communities dissolved before its
entry into force on the ground of emigration so far as regards the
application of the liquidation of their property. A dissolved community
cannot get the benefit of Article 12, because it cannot comply with the
conditions laid down in that article. Former emigrants are given the
possibility of participating in the division of the proceeds of the
liquidation of the property of the community of which they were members
before its dissolution.
5° Should a proper application of the Convention be in conflict with some
local law, the latter would not prevail as against the Convention. [p36]
[85] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this thirty-first day of July one thousand nine
hundred and thirty, in two copies, one of which is to be deposited in the
archives of the Court and the other to be forwarded to the Council of the
League of Nations.
(Signed) D. Anzilotti,
President.
(Signed) Å. Hammarskjöld,
Registrar [p37]
Annex 1.
[Translation [FN1]
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[FN1] Translated by the Secretariat of the League of Nations
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Convention Between Greece and Bulgaria Respecting Reciprocal Emigration
[FN2]
---------------------------------------------------------------------------------------------------------------------
[FN2] The exchange of ratifications took place at Paris, on the 9th August,
1920
---------------------------------------------------------------------------------------------------------------------
Signed at Neuilly-Sur-Seine, November 27th, 1919.
[Official French text forwarded on August 25th, 1920, by the Minister of
Greece in London, for registration. The registration of this Convention took
place on August 25th, 1920.]
As provided in Article 56, paragraph 2, of the Treaty of Peace with
Bulgaria, concluded the 27th November, 1919, and in accordance with the
decision of the Principal Allied and Associated Powers of 27th November,
1919, to the following effect:
"Having regard to Article 56, paragraph 2, of the Treaty of Peace with
Bulgaria, the Principal Allied and Associated Powers consider it opportune
that the reciprocal voluntary emigration of the racial, religious and
linguistic minorities in Greece and Bulgaria should be regulated by a
convention concluded between those two Powers in the terms decided upon this
day",
The undersigned Plenipotentiaries of Greece, of the one part,
And of Bulgaria, of the other part,
After exchanging their full powers, respectively found in good and due form,
have agreed as follows:
Article 1.
The High Contracting Parties recognize the right of those of their subjects
who belong to racial, religious or linguistic minorities to emigrate freely
to their respective territories.
Article 2.
The High Contracting Parties undertake to facilitate by all the means at
their disposal the exercise of the right referred to in Article 1, and not
to place directly or indirectly any restriction on the right of emigration,
notwithstanding laws or regulations to the contrary, which in this respect
shall be deemed to be without effect. [p38]
In particular, the exercise of the right of emigration shall not affect the
pecuniary rights of the emigrants, as these may exist at the moment of
emigration.
Article 3.
No obstacle shall be placed in the way of the departure of a voluntary
emigrant for any reason whatever, save in case of a final sentence to
imprisonment for an infraction of ordinary law. In case of a sentence which
is not yet final, or of penal proceedings under ordinary law against an
emigrant, he shall be handed over to the authorities of the country to which
he is going by the authorities of the prosecuting country with a view to his
trial.
Article 4.
The right of voluntary emigration belongs to every person over 18 years of
age. It may be exercised during a period of two years from the date of
constitution of the Mixed Commission provided for in Article 8, by means of
a declaration before its representatives. A declaration of intention to
emigrate on the part of a husband shall imply a declaration by his wife; a
declaration of intention to emigrate on the part of parents or guardians
shall imply a declaration by their children or wards under 18 years of age.
Article 5.
Emigrants shall lose the nationality of the country which they leave the
moment they quit it and shall acquire that of the country of destination
from the moment of their arrival there.
Article 6.
Persons who, in execution of the foregoing provisions, exercise the right of
emigration, shall be free to take with them or to have transported their
movable property of every kind without any duty, whether export or import,
being levied from them on this account.
Similarly, in cases where the right of emigration is exercised by members of
communities (including churches, convents, schools, hospitals or foundations
of any kind whatever) which on this account shall have to be dissolved, the
Mixed Commission provided for in Article 8 shall determine whether and in
what circumstances such members shall have the option of freely taking with
them or having transported the movable property belonging to the
communities. [p39]
Article 7.
Real property, rural or urban, belonging to voluntary emigrants or to the
communities to which Article 6 refers, shall be liquidated in accordance
with the following provisions by the Mixed Commission provided for in
Article 9.
Article 8.
Within a period of three months from the entry into force of the present
Convention, a Mixed Commission shall be created, composed of one member
nominated by each of the contracting States concerned and of an equal number
of members of a different nationality, from among whom also the president
shall be chosen, who shall moreover be nominated by the Council of the
League of Nations.
Article 9.
The Mixed Commission shall have the duties of supervising and facilitating
the voluntary emigration referred to in the present Convention and of
liquidating the real property of emigrants.
It will fix the conditions of emigration and of liquidation of real
property.
In general, the Mixed Commission shall have full powers to take the measures
rendered necessary by the execution of the present Convention and to decide
all questions to which this Convention may give rise.
The decisions of the Commission shall be by majority; the President shall
have the casting vote.
Article 10.
The Mixed Commission shall have full power to have a valuation made of real
property, the interested Parties being heard or duly summoned to a hearing.
The government of the country where the liquidation takes place shall pay to
the Mixed Commission, under conditions to be fixed by the latter, and for
transmission to the rightful Parties, the value of the real property
liquidated, which shall remain the property of the said government.
Article 11.
Funds shall be advanced to the Mixed Commission by the States concerned with
a view to facilitating emigration and under conditions fixed by the
Commission. The Commission shall advance to emigrants, according to the
funds available, the value of their real property. [p40]
Article 12.
Persons who before the entry into force of the present Convention have left
the territory of one of the contracting States and have already established
themselves in the territory of the State to which they belong by race,
religion or language, shall have a right to the value of the property left
by them in the country which they have left, such value to be that resulting
from the liquidation which will be made of the property by the Mixed
Commission.
Article 13.
The expenses of the maintenance and working of the Mixed Commission and its
agencies shall be borne by the governments concerned in proportions to be
determined by the Commission.
Article 14.
The present Convention does not prejudice the rights accruing to the persons
concerned under the provisions of treaties or conventions concluded or to be
concluded for the regulation of current matters.
Article 15.
The High Contracting Parties undertake to make in their respective
legislation the modifications necessary to secure the execution of the
present Convention.
Article 16.
Within the period of one year from its entry into force, the present
Convention shall be open to the adhesion of States with a common frontier
with one of the signatory States.
Such adhesion shall be notified through diplomatic channels to the
Government of the French Republic and by it to the signatory or acceding
States, and also to the Mixed Commission. It shall have effect a fortnight
after the notification to the French Government.
The present Convention shall be ratified and the respective ratifications
shall be deposited in Paris by the Signatory Powers at the same time as
their ratifications of the Treaty of Peace signed at Neuilly-sur-Seine on
the 27th November, 1919. It shall enter into force at the same time as the
said Treaty shall enter into force as between Greece and Bulgaria. [p41]
Done at Neuilly-sur-Seine the twenty-seventh November, one thousand nine
hundred and nineteen, in one copy, which shall remain deposited in the
archives of the Government of the French Republic, and of which authentic
copies shall be given to each of the signatory Powers.
(L. S.) (Signed) Eleftherios Veniselos.
(L. S.) (Signed) N. Politis.
(L. S.) (Signed) Al. Stamboliiski.
Certified true copy.
London, the 25th August, 1920.
The Minister of Greece:
(Signed) D. Caclamanos. [p42]
Annex 2.
I. - Documents Transmitted by the Secretariat of the League of Nations:
Convention between Greece and Bulgaria respecting reciprocal emigration (Neuilly-sur-Seine,
November 27th, 1919).
Regulations concerning the reciprocal and voluntary emigration 01 the Greek
and Bulgarian minorities (Athens, March 6th, 1922).
Extracts from the Minutes of the fifty-eighth Session of the Council of the
League of Nations (7th meeting, January 16th, 1930).
Letter from the President of the Greco-Turkish Mixed Emigration Commission
to the Secretary-General of the League of Nations (March 5th, 1930).
Annex:
Decisions taken by the Greco-Turkish Mixed Emigration Commission with
respect to communities:
Decision XVIII (April 4th, 1924).
“ XIX ( „ „, „ ).
“ XXIII (May 27th, „ ).
“ XLV (July 26th, 1928).
Letter from the President of the Greco-Bulgarian Mixed Emigration Commission
to the Secretary-General of the League of Nations (March 6th, 1930).
Letter from the Secretary-General of the League of Nations to the Registrar
of the Court (March 17th, 1930).
II. - Extracts from the Minutes of the Mixed Commission and of Its
Sub-Committees.
(Transmitted either by the Secretariat of the League of Nations, or by the
Bulgarian or Greek Governments, or by the Mixed Com-mission. - In addition
to these extracts, the latter has sent to the Court a complete set of its
minutes.)
|
[43] Meeting of the
Commission: |
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Sent by: |
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No. |
357 |
(Decision 797 L. 9) |
L. of N. |
M. C. |
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|
|
“ |
367 |
( “ 817 L. 10) |
L. of N. |
M. C. |
|
|
|
“ |
374 |
|
L. of N. |
|
|
|
|
“ |
381 |
|
L. of N. |
M. C. |
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|
|
“ |
382 |
|
L. of N. |
M. C. |
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|
|
“ |
385 |
(Decision 843 B. 78) |
L. of N. |
M. C. |
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|
“ |
415 |
(Interpretation of the
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“ |
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Decision 5. 87) |
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Bulg. |
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“ |
432 |
(with annexes) |
L. of N. |
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|
|
|
“ |
436 |
( “ “ ) |
L. of N. |
|
|
|
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“ |
438 |
|
|
|
|
Bulg. |
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“ |
476 |
(Decision 1027 G. 366) |
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|
|
Bulg. |
|
“ |
492 |
( “ 1088 G. 390) |
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|
|
Bulg. |
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“ |
504 |
|
L. of N. |
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|
|
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“ |
505 |
|
L. of N. |
|
|
|
|
“ |
506 |
|
L. of N. |
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“ |
519 |
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L. of N. |
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|
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“ |
525 |
|
L. of N. |
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“ |
535 |
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Greece |
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Meetings of Sub-Committees:
|
No. |
I. |
4 |
L. of N. |
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695 |
L. of N. |
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710 |
L. of N. |
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711 |
L. of N. |
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“ |
III. |
345 |
L. of N. |
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“ |
IV. |
526 a |
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Bulg. |
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527 a |
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Bulg. |
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Decision (Nameche) of |
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February 1930 |
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Bulg. |
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“ |
VI. |
208 |
L. of N. |
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219 |
L. of N. |
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“ |
VII. |
Annex to Decision 367 |
|
M. C. |
|
III. - DOCUMENTS TRANSMITTED BY THE PRESIDENT OF THE MIXED COMMISSION:
Letter from the President of the Greco-Bulgarian Mixed Emigration Commission
to the Registrar of the Court (March 6th, 1930).
Statement of the circumstances of fact and of law which gave rise to the
Mixed Commission's desire to obtain the Court's opinion (March 4th, 1930).
Series of volumes containing the Mixed Commission's decisions:
|
Vol. I. |
A-E |
|
“ II. |
F-G |
|
“ III |
H-G |
Statement concerning the mission and work of the Mixed Commission (May
1929).
Interpretation of Article 12 of the Convention, memorandum of Commandant de
Roover (June 6th, 1921).
Memoranda Nos. 1, 2, 3 and 4:
1. Interpretation of Article 12 of the Greco-Bulgarian Convention (June 6th,
1921).
2. Memorandum concerning the fate of property abandoned by Bulgarians in
Eastern Thrace or by Turks in the new Bulgarian territories (September 21st,
1921).
3. The restitution of real estate to Bulgarian refugees and the right of the
latter in certain circumstances to avail themselves of the Treaty of
Minorities (December 22nd, 1921). [p44]
4. Memorandum concerning the right of emigrants to have their property
valued by the Mixed Commission in relation to the governments' right of
expropriation (April 12th, 1923).
Report by Commandant de Roover on his mission in Bulgaria (February 23rd,
1922).
New method of work (October 18th, 1926).
File containing various forms (1 A, 2 A, 3 A, 1 B, 2 B, 3 B, 4, 5).
IV. - Documents Transmitted by the Bulgarian Government:
Memorial of the Bulgarian Government (March 12th, 1930). Observations of the
Bulgarian Government (April 17th, 1930).
Annexes:
Note on Bulgarian jurisprudence and on orthodox canon law.
Extract from : Orthodox Canon Law (1904), by Dr. Nicodemus Milas, Bishop of
Dalmatia and Istria.
Protocol signed at Geneva on September 29th, 1924, between the
representative of the Greek Government and the President of the Council of
the League of Nations.
Idem, with the Bulgarian Minister for Foreign Affairs.
Observations of those members of the Mixed Commission appointed by the
League of Nations, with regard to the situation of emigrants in Greece and
Bulgaria (March 2nd, 1925).
Enquiry concerning the events at Tarlis (1924).
Documents concerning the character of the religious community at Varna:
Message from the Patriarch of Constantinople of the year 1865, concerning
the appointment of Bishop Ioachim of Varna, addressed to the Orthodox
Christians of Varna, and in which the latter are requested to receive the
Bishop, to obey him, etc. This message is drawn up in Bulgarian and in
Greek.
Copy of the letter, dated February 28th, 1867, addressed by the same Bishop
to the Patriarch of Constantinople and in which the Bishop complains that of
90 villages in his diocese hardly ten, which have a Greek population, accept
his authority.
Letter from the same Metropolitan Ioachim, dated April 3rd, 1866, addressed
to the inhabitants of Baltchik and Mangalia, in which he complains that he
is not paid - written in Bulgarian and in Greek.
Letter from the same Metropolitan, dated March 16th, 1865, addressed to the
inhabitants of Baltchik, written in Bulgarian and Greek, with regard to the
dismissal of a priest and the appointment of another.
Documents concerning certain churches at Plovdiv (Philippopolis):
Photographs (two) of pages 11 and 12 of the codex of the Metropolitan of
Plovdiv, sub 14, dating from February 1783, concerning the settlement of
accounts for the building of the church of St. Marina.
The codex is signed by the notables of Plovdiv, the majority being
Bulgarian, and approved by Bishop Cyrillus.
Photograph of three sheets of a subscription list of March 15th, 1837, for
the construction of the church of St. Paraskeva, which shows the donators,
with two exceptions, are Bulgars and that amongst the donators are purely
Bulgar villages (Avradala [Koprivchtiza], Dervent, Adjar). [p45]
Documents concerning the monastery of St. Vratch situated to the north of
the village of Kouklen, and that of Batchkovo, district of Stanimaka.
(Region of Plovdiv.)
A part of the principal facade of the church of the convent of St. Vratch.
The same facade enlarged, clearly showing the Bulgarian inscriptions.
Photograph of a marble slab with an inscription in Bulgar, of 1696,
recording the construction of the fountain of the monastery.
Seven photographs of holy books of the same monastery written in Bulgar,
dating from the XlVth century, except one of the year 1695, which are in the
National Library of Plovdiv.
Extract in translation from Chapter 24 of the statutes (Typicon) for the
foundation and administration of the convent of Batchkovo, the original of
which is in the Library of the University of Bucharest (Roumania).
Extract in translation from the History of the Bulgars, by Const. Iretchek,
Chap. XXIX.
Bundle of seven letters (in translation) written by Naiden Gueroff, of
Philippopolis (Plovdiv), or addressed to him and to be found in his papers,
which are published in two volumes by the Academy of Science of Sofia.
Five extracts from the manuscript of Constantine Mouravenoff, written in
1870, which is in the National Library at Sofia.
Minutes of meetings Nos. 526 a and 527 a of the Nameche Sub-Committee.
The Bulgarian Official Gazette, June 23rd, 1922 (Rules of the Mixed
Commission).
The Bulgarian Official Gazette, May 2nd, 1928 (law ratifying the
Molloff-Caphandaris Agreement).
V. - Documents Transmitted by the Greek Government:
Memorial of the Greek Government (March 10th, 1930).
Annexes:
Draft agreement regarding reciprocal emigration in the Balkans submitted on
October 24th, 1919, to the Commission for new States and the protection of
minorities by M. N. Politis, Greek Minister for Foreign Affairs.
Interpellation of M. Karandzoulof at the meeting of March 22nd, 1927.
Communiqué of the Bulgarian Ministry for Foreign Affairs regarding an appeal
from the Macedonian National Committee.
Extracts from TheTimes (April 14th and 18th, 1927).
Extracts\ from the paper Makedonia, of Sofia, the organ of the Macedonian
Revolutionary Committee (April 18th and 20th, 1927).
Observations of the Greek Government (April 23rd, 1930).
Annex:
Letter of the Greek delegation to the Greco-Bulgarian Mixed Emigration
Commission (February 14th, 1930).
Four letters of the Bulgarian Diplomatic Agent at Constantinople addressed
to His Holiness the (Ecumenical Patriarch:
Letter sub No. 43 of January 13/25, 1890.
„ „ ,, 278 of March 6th, 1891.
„ ,, ,, 1059 of August 13/25, 1891.
,, ,, ,, 2224 of October 9/21, 1896. [p46]
Title Deeds:
(a) Title Deed sub 9482 dated March 28th, 1884, in the name of the Greek
religious community of Philippopolis (with Frenchtranslation).
(b) Title Deed sub№ 1 of January 3rd, 1903, in the name of theGreek
religious community of Bourgas represented by the Metropolitan of Anchialos,
Mgr. Vassilios, and Kyriazi Thanassof (withFrench translation).
A receipt for the payment of tax sub No. 49917 given by the tax collector
Thodorofi and made out in the name of the religious community of Varna (with
translation into French).
Verbatim minutes of 21st session of the Sobranie, in which on page 1187 is
to be found the speech of M. Bouroff, Bulgarian Foreign Minister.
Three numbers of the Bulgarian paper Makedonia (Nos. 1080, 1081 and 1082, of
May 22nd, 23rd and 26th, 1930), containing three articles by M. Roumenoff.
An authentic copy of a judgment of. the Civil Court of Varna, sub No. 237,
dated October 4th, 1879.
An original declaration dated March 12th, 1884, concerning the delim-itation
of the property ceded by the community of Varna to His High-ness the Prince
of Bulgaria.
_____
Plan of payment of December 8th, 1922.
The Molloff-Caphandaris Agreement of December 9th, 1927.
Report of the Commission of Enquiry into the frontier incidents between
Bulgaria and Greece (Geneva, 1925).
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