Abstract
To maintain and develop its economic interests in the period following the end of the First World War the United States entered into an increasing number of legal relations protecting its new position of commercial leadership. In the 1920s the United States entered into treaties of friendship, commerce and navigation; 1 of consular relations, visa fees, customs, and finance; of literary, artistic, and industrial property protection; of martime and aerial relations; of postal and telecommunications relations; of uniform weights and measures, agriculture and whaling. These economic treaties will be discussed in this chapter in the order just given.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Of this type alone the United States entered into about a dozen such instruments, all of which were generally similar, from 1923 to 1936.
The only exception to this statement is exports to Italy, which actually rose from 1928 to 1938, although imports dropped almost in half in the same period. Source: United States Bureau of the Census, Statistical Abstract of the United States for the appropriate years; see also League of Nations, Network of World Trade, p. 155 (1942).
17 Stat. 845; I Treaties (Malloy) 969.
In 1948 Vernon G. Setser, Acting Ass’t Chief, Division of Commercial Policy, Department of State, testified that the United States had urged termination because the Fascist government was not applying its provisions in accordance with American interests. Hearing on Proposed Treaty of Friendship, Commerce, and Navigation between United States and Italy, Subcommittee of Committee on Foreign Relations of Senate, 80th Cong., 2d sess., 1948, p. 3. A new treaty was negotiated but not concluded because of U.S. non-recognition of the conquest of Ethiopia. On the power of the President to terminate the treaty on his own authority, see 5 Hackworth 330-31.
Signed Dec. 16, effective Dec. 15, 1937. 51 Stat. 361; EAS 116; 187 L.N.T.S. 15. For the diplomatic correspondence regarding termination of the 1871 treaty and formulation of the new temporary arrangement, see For. Rels., 1936, v. II, pp. 340-60; and ibid., 1937, v. II, pp. 435-506.
For revival procedure under the peace treaty, see infra p. 328. The agreement was probably terminated or at least suspended as a result of the war. Thomas C. Blaisdell, Assistant to Secretary of Commerce for International Trade, asserted on April 30, 1948, that the 1937 agreement “is no longer recognized as legally operative by the present Italian government. Italy has voluntarily continued to provide most-favored-nation treatment with regard to customs duties.” Hearing on Proposed Treaty of Friendship, Commerce and Navigation between United States and Italy, Subcommittee of Committee on Foreign Relations of Senate, 80th Cong., 2d sess., 1948, p. 29. The United States lodged no protest against the position Italy had taken in respect to the agreement.
Effective July 26, 1949. 63 Stat. 2255; TIAS 1965; see also 80th Cong., 2d sess., Sen. Exec. E. Some of the provisions of the 1937 agreement were incorporated in the 1948 treaty, such as the one which sought to avoid the discriminatory channeling of imports and exports practiced by Italy and Germany before the war. Application of most-favored-nation treatment to areas under occupation or control was arranged for by the agreement of June 28, 1948, (62 Stat. [pt. 3] 2913, TIAS 1829) as amended by agreement of January 13, 1953 (TIAS 2769). Before 1948 the Italian-American agreement of December 6, 1945 (59 Stat. 1731, EAS 492) and the exchange of notes on Financial and Economic Relations of August 14, 1947 (61 Stat. [pt. 4] 3962, TIAS 1757), later interpreted by the agreement of February 24, 1949 (63 Stat. [pt. 3] 2415, TIAS 1919), had regulated commercial relations between the two countries.
Sources: 1929 figures — United States Bureau of the Census, Statistical Abstract of the United States, 1934, pp. 428-29; 1935 figures — Ibid., 1937, pp. 458-59; 1938 through 1941 figures — Ibid., 1943, pp. 538-39.
Signed February 21, 1911. 37 Stat. 1504, III Treaties (Redmond) 2712.
The Senate resolution was introduced July 18, 1939 and a similar one was introduced in the House of Representatives on the following day.
Article 17 of the treaty. See 1 D.S. Bull. 81 (1939).
The termination took effect six months from the date of notification. For. Rels. Japan, 1931-1941, v. II, p. 189.
For the extensive correspondence regarding termination of the 1911 treaty and the possibility of formulating a new one, see For. Rels., 1939, v. III, pp. 558 ff., ibid., Japan, 1931–1941, v. II, pp. 189 ff., and ibid., 1940, v. IV, pp. 625-636.
I.e., six months after the date of notification. However, the Japanese Embassy contended that the treaty expired at midnight, January 25. 5 Hackworth 332.
79 F. Supp. 468, 472 (1947). For authority for this statement he simply says, “See Hackworth, Digest of International Law (U.S. Gov. Print. Office, 1943.)” Of all of the references made by Hackworth to the treaty, only two might have accounted for Judge Ganey coming to such a conclusion — the first was a telegram sent by the Department of State to the Consul at Shanghai in which the Department of Labor with the concurrence of the Department of State stated that it was willing to permit persons in the United States as “treaty merchants” under the terminated treaty to qualify as visitors temporarily admitted for business or pleasure under Sect. 3 (2) of the Immigration Act of 1924. 3 Hackworth 750-51. The second was the correspondence and memoranda of the State Department concerning whether the President needs the consent of Congress before he can terminate a treaty. As to the first point, obviously such permission was granted as a matter of comity only; as to the second, by the time the Arakawa case was decided-1947-there should have been no doubt remaining that the treaty was terminated by executive action on the date intended by Secretary of State, i.e., January 26, 1940. (5 Hackworth 331-33.) Hackworth could certainly not be fairly cited as authority to the effect that there was any doubt as to whether the 1911 treaty was terminated.
At 472. For strong criticism of the case, see Rank, pp. 520-21.
332 U.S. 633.
At 648. Similarly, in Palermo v. Stockton Theatres, 172 P.2d 103 (1946), rev’d 32 Cal. 2d 53, 195 P.2d 1 (1948), Justice Peek stated: “On January 26, 1940, the treaty between the United States and Japan was abrogated.” (at 104). In accord: Takeo Tadano v. Manny, 160 F.2d 665 (1947) discussing the error of an immigration inspector of proceeding on the assumption the treaty was still in force long after it was abrogated.
Entered into force Oct. 30, 1953. Senate Exec. O, 83d Cong., 1st sess. TIAS 2863. 28 D.S. Bull. 531 (1953); 29 D.S. Bull. 165, 525 (1953). Since then other agreements regulating commercial relations have been signed, such as one on March 8, 1954 (TIAS 2969) and two “double taxation” conventions on April 16, 1954 (TIAS 3175 and TIAS 3176).
Bulgaria, Provisional Commercial Agreement, signed August 18, 1932, effective August 18, 1932, 48 Stat. 1753; EAS 41; 136 L.N.T.S. 73: Revived pursuant to 1947 Treaty of Peace by note of March 8, 1948. In accordance with a note of February 20, 1950, the Swiss took over United States’ interests in Bulgaria after diplomatic relations between Bulgaria and the United States were severed (22 D.S. Bull. 356 [1950]), and on July 12, 1951 the Swiss Government notified Bulgaria of the United States’ denunciation of the 1932 Provisional Commercial Arrangement. 25 D.S. Bull. 95 (1951). Germany, Treaty of Friendship, Commerce, and Consular Rights, signed December 8, 1923, effective October 14, 1925, 44 Stat. 2132, IV Treaties (Trenwith) 4191, part of Art. 7 terminated by agreement signed June 3, 1935, effective October 14, 1935, 49 Stat. 3258, IV Treaties (Trenwith) 4221. Temporarily revived by agreement with Federal Republic of Germany signed June 3, 1953, TIAS 2972, 83d Cong., 1st sess., Senate Exec. N, 29 D.S. Bull. 97, 225-26 (1953). Replaced by Treaty of Friendship, Commerce and Navigation signed October 29, 1954. Senate Executive E, 84th Cong., 1st sess. Hungary, Treaty of Friendship, Commerce and Consular Rights, signed June 24, 1925, effective October 4, 1926, 44 Stat. 2441, IV Treaties (Trenwith) 4318. Revived pursuant to Article 10 of 1947 Treaty of Peace by note of March 9, 1948. On July 5, 1952, the 1925 treaty with Hungary terminated in accordance with the notice of termination given by the United States on July 5, 1951, under the procedure established by Article 25 of the treaty. 25 D.S. Bull. 95 (1951), and 26 D.S. Bull. 946 (1952). Rumania, Provisional Commercial Agreement, signed August 20, 1930, effective September 1, 1930, 47 Stat. 2593, EAS 8, 115 L.N.T.S. 115. Revived pursuant to 1947 Treaty of Peace by note of February 26, 1948. On June 27, 1951, the United States notified Rumania of its desire to terminate the Provisional Commercial Arrangement of 1930. 25 D.S. Bull. 95 (1951).
Even before hostilities actually began between Germany and the United States trade had rapidly dropped to a low level. Government control over exports to Germany and the British blockade resulted in 1940 in the United States importing more than 34 times as much from Germany as it exported to that country in dollar values (exports: $156,000; imports: $5,414,000). The following year both imports and exports were down greatly with more than 200 times as much in dollar value being imported as was exported (exports: $17,000; imports: $3,471,000). These figures should be compared with the interwar high in German-American trade — in 1928 the U.S. exported $467,260,000 worth of goods and imported $222,130,000 worth. Sources 1928 figures — United States Bureau of the Census, Statistical Abstract of the United States, 1933, pp. 420-21; 1940 and 1941 figures — ibid., 1943, pp. 536-37. See also, League of Nations, Network of World Trade, p. 155 (1942).
Article 4 is identical in both treaties. It reads: “Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn. “Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.”
June 9, 1947,331 U.S. 503.
See infra, p. 310.
For further discussion see infra, p. 232.
Senate Exec. D., 68th Cong., 1st sess.; For. Rel., 1923, vol. II, pp. 22ff.; For.Rel., 1924, vol. II, pp. 183-92; Kuhn, “The New Commercial Treaty with Germany,” 19 A.J.I.L. 553 (1925). Its duration was set at 10 years and thereafter unless terminated in accordance with the provisions of Article 31. Special provisions regarding termination of the 5th para. of Article 7 and Articles 9 and 11 were contained in the reservations of the United States (T.S. 725, p. 32.) The 1923 treaty was the first of the post-World War I treaties to be concluded by the United States of the type desired by Charles Evans Hughes, then Secretary of State. It served as a prototype for subsequent treaties with Austria, Estonia, Finland, Honduras, Hungary, Liberia, Norway, Poland, El Salvador, and Thailand. Further, these have served as the point of departure for the post-World War II treaties of friendship, commerce, and consular rights. See Leyser, “Treaties of Friendship,” 7 Australian Outlook 132-35 (1953). In a press release dated October 29, 1954, the Department of State said that the 1923 treaty “was the forerunner and basic instrument in the development of this Government’s modern commercial treaty program.” 31 D.S. Bull. 681-82 (1954).
The German Government gave notice of its intention October 13, 1934. In accordance with the agreement, paragraphs 2, 3, 4, 6 and 7 ceased to have force and effect as of October 14, 1934. (T.S. 897). D.S. Press Releases 249, 263, (1934); ibid., 292, 318-19 (1935). See also two administrative regulations executing the modifications: Treasury Decision 47864 (September 14, 1935), regarding termination of the paragraphs mentioned above of Article 7 at close of business October 14, 1935, and Treasury Decision 47865 (September 16, 1935), stipulating that trade-agreement rates would cease to be applicable to German products on and after October 15, 1935.
28 D.S. Bull. 565-66 (1953).
Agreement with the Federal Republic of Germany concerning Application of the 1923 Treaty with Germany, TIAS 3062; 83d Cong., 1st sess., Senate Exec. N; 28 D.S. Bull. 877-78 (1953); ibid., v. 29, pp. 93-94, 225-26 (1953). The Senate approved the agreement subject to a reservation which left unchanged present restrictions on foreigners seeking to enter certain professions in the United States. See p. 185, n. 2, infra. The agreement entered into force October 22, 1954, and was proclaimed by the President November 5, 1954.
Article 1 of the June 3, 1953 agreement provided that the 1923 treaty, as amended, “shall be applied and be considered fully operative between the United States of America and the Federal Republic of Germany on and after the effective date of the present agreement insofar as either High Contracting Party may not have heretofore notified the other Party in accordance with Article 31 of the aforesaid Treaty of an intention to modify or omit any of its Articles, and except as otherwise provided in the following Articles, without prejudice to the previous status of any provisions of the aforesaid Treaty which may have remained operative or may have again become operative at any time since the outbreak of hostilities between the United States of America and Germany.” By an exchange of notes dated June 2, 1953, the United States had already given notice that Article 6 should cease to be binding. The only reason for inclusion of the reference to notifications under Article 31 was so as to make this exchange of notes effective (83d Cong., 1st sess., Senate Exec. N, p. 2.) Article 3 contained a military escape clause both from the obligations of this agreement and the 1923 treaty: “None of the provisions of the present agreement or of the [1923] Treaty shall be considered as affecting in any way (1) the rights or obligations of either Party in respect of measures to safeguard essential security interests …” Article 4 provided that “pending the peaceful reunification of Germany,” the agreement will be “applied and considered fully operative” in the Federal Republic of Germany and in West Berlin.
See infra, pp. 171, 183, 184, 185. Dulles admitted that the status of the 1923 treaty “has been somewhat uncertain” and that this agreement of 1953 has been entered into “to clarify the status of the treaty, pending the conclusion of a more modern treaty of friendship, commerce, and navigation as an important step toward normalization of relations between the two countries.” 83d Cong., 1st sess., Senate Exec. N. p. 2. Before a subcommittee of the Senate Committee on Foreign Relations, Samuel C. Waugh, Assistant Secretary for Economic Affairs of the Department of State, stated on July 13: “The treaty as amended in 1935 remained in full force until the outbreak of hostilities between the United States and Germany in 1941. As a result of these hostilities and of certain actions taken by the Occupying Powers after the cessation of hostilities, the status of the treaty has become somewhat uncertain. Although there are some precedents in international law and judicial decisions which shed light on the effects of war on international treaties and agreements, these precedents and decisions are not sufficient to afford a sure guide as to the status of all the various provisions of a comprehensive treaty such as the one of 1923 with Germany.” 29 D.S. Bull. 225. (1953).
In Clark v. Allen, p. 510: “It is true that since the declaration of war on December 11, 1941 (55 Stat. 796), the Act and the Executive Orders issued thereunder have prohibited the entry of German nationals into this country (Sect. 3[b]), have outlawed communications or transactions of a commercial character with them (Sect. 3 [a]), and have precluded the removal of money or property from this country for their use or account (Sect. 7 [c]; Sect. 5 [b], as amended; Exec. Order No. 8785, 3 C.F.R. Cum. Supp. 948). We assume that these provisions abrogate the parts of Article 4 of the treaty dealing with the liquidation of the inheritance and the withdrawal of the proceeds, even though the Act provides that the prohibited activities and transactions may be licensed (Sect. 5 [a]).”
Rank, pp. 353, n. 137, 514-15, n. 166.
Dr. Rank asserts that it is “reasonable to assume that the intention of the parties was that (all the provisions) remained valid and intact in case of war, although they were not in fact applied.” (P. 514, n. 166).
Senate Exec. E, 84th Cong., 1st sess. The Senate gave unanimous advice and consent to ratification on July 27, 1955, Cong. Rec. 10040. This treaty is the 11th of the type the United States has been entering into in its commercial relations since World War II. See p. 161, n. 4 supra, for the 1953 treaty with Japan, which is very similar in its terms. Commercial relations with the Federal Republic are being regulated by other recent treaties as well, such as the Convention for the Avoidance of Double Taxation with respect to Taxes on Income, July 22, 1954 (TIAS 3133). For a recent statement on postwar commercial treaty relations, see Scheuner, “Zweiseitige handelsverträge und multilaterale Handelsvereinbarungen,” 52 Friedenswarte 97-115 (1954).
Article 28. See infra, p. 191, regarding maintenance of the consular provisions (i.e., Articles 17 through 28, as amended by Article 2 of the agreement of June 3, 1953). Article 29 of the 1954 treaty establishes the duration of the convention as 10 years and thereafter, except that termination may occur on one year’s notice after the initial decade has passed.
Article 4 of the 1923 treaty was based on Article 10 of the Treaty of 1785 with Prussia (8 Stat. 84, 88, II Treaties [Malloy] 1477). Article 10 appears as Article 10 of the renewal Treaty of July 11, 1799 (8 Stat. 162, 166, II Treaties [Malloy] 1486) and was again copied as Article 14 of the Treaty of May 1, 1828 (8 Stat. 378, 384, II Treaties [Malloy] 1496). When the 1923 treaty was before the Senate to obtain its consent to ratification Secretary of State Hughes wrote Senator Lodge, Chairman of the Committee on Foreign Relations, that “Comment regarding Article 4 of the new draft is believed to be unnecessary except to call attention to the similarity of this Article to Article 14 of the Treaty with Prussia [of May 1, 1828].” Dated January 17, 1924, Department of State File 711.622/36m MS., Nat. Archives, quoted in petitioner’s brief, Clark v. Allen, October term 1946, docket no. 626, pp. 33-34. Citations to 52 treaties modeled on the treaty of 1785 with Prussia are collected in ibid., Appendix C, p. 93; see also Gibson, W.M., Aliens and the Law (1940), Appendix B, Table 8, pp. 182-83.
“Nationals and companies of either party shall be accorded national treatment, within the territories of the other party, with respect to acquiring property of all kinds by testate or intestate succession or under judicial sale to satisfy valid claims. Should they because of their alienage be ineligible to continue to own any such property, they shall be allowed a period of at least five years in which to dispose of it.” The clause is similar in import, if not in language, to one formulated by David Hunter Miller for possible inclusion in the Treaty of Versailles. 6 Miller, My Diary, p. 379 (Doc. 503). The present author has no information indicating that Miller’s formulation influenced the drafting of the comparable provision in the 1954 treaty.
California Probate Code, Sect. 259, in 1942 provided: “The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.” Sect. 259.2 provided: “If such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take such property, the property shall be disposed of as escheated property.” This latter section was repealed by Cal. Stats. 1945, c. 1160, which also repealed the condition regarding receipt of moneys in the United States.
The Attorney General succeeded to the functions of the Alien Property Custodian on October 15, 1946, pursuant to Exec. Order No. 9788, 11 F.R. 11981.
40 Stat. 411 (1919), as amended by the First War Powers Act of 1941, 55 Stat. 839(1941).
Vesting Order No. 762, 8 F.R. 1252.
Crowley v. Allen, 52 F. Supp. 850 (1943). The court held the California statute unconstitutional as an improper invasion of foreign affairs. Judge Goodman did not believe that the question of the effect of war on treaties was relevant, but did state that “It is not beyond question that war did in fact abrogate the treaty.” (p. 854). He asserted that even if it is assumed that war did bring the treaty to an end, Congress by amending the Trading with the Enemy Act as it did in December 1941 showed clearly its intent to occupy the field of financial transactions involving enemy aliens to the exclusion of state and local authorities.
Allen v. Markham, 147 F.2d 136 (1945).
326 U.S. 490(1946).
Allen v. Markham, 156 F.2d 653 (1946); noted in 47 Col. L. Rev. 318 (1947).
He thought that the abrogation must have resulted in view of the retention by the United States of the property in the hands of the Alien Property Custodian at the end of the war. Joint resol. 67th Cong., 1st Sess., 42 Stat. 105, 106 (1921). But the Supreme Court has held that this action was still consistent with the survival of the prior treaty until the permanent confiscation in 1921 (Cummings v. Deutsche Bank, 300 U.S. 115 [1937]).
See note 2, p. 168, supra.
Clark v. Allen, 331 U.S. 503 (1947). Noted in 1947 Annual Survey of American Law, New York University, pp. 16-17; 170 A.L.R. 953 (1947); 23 Notre Dame Law Rev. 266 (1947); 21 S. Calif. L. Rev. 106 (1947); 7 Lawyers Guild Rev. 270 (1947); 32 Minn. L. Rev. 407 (1948).
Exec. Order No. 9193, para. 5, 3 C.F.R. Cum. Supp. 1174, 1176. (Court’s footnote).
Treaty with Great Britain, Arts. 1, 2, March 2, 1899, 31 Stat. 1939. Treaty with Norway, Art. 4, June 5, 1928, 47 Stat. 2135, 2138. (Court’s footnote). See Boyd, “Treaties Governing the Succession to Real Property by Aliens,” 51 Mich. L. Rev. 1001 (1953), for full discussion of such provisions. According to Gibson, 18 reciprocal inheritance treaties were in force in 1940. Aliens and the Law (1940).
Letter to Messrs. L. and E. Lehman, June 23, 1895, 5 Moore 375.
Letter to Alien Property Custodian Palmer, 1918 For. Rel. Supp. 2, p. 309; 5 Hackworth 379.
Later Chief Justice of the United States.
Opinion of Attorney-General, letter to H.B. Riley, State Controller, July 15, 1942, cited in respondent’s brief, p. 43, Clark v. Allen.
Text of the letter in Brief of the Attorney-General in Clark v. Allen; in an unpublished Department of State document, Law of Treaties, p. 203 (1950); in App. B, Appelant’s (U.S.A.) Petition for a hearing by the Surpeme Court of California, in the matter of the Estate of Knutzen; and in Lenoir, pp. 144-45. In a letter dated September 9, 1955, to the author from Charles I. Bevans, Assistant Legal Adviser, Department of State, Grew’s statements were quoted. Grew said in respect to Lansing’s statement of September 10, 1918, that his “statement was made prior to the judicial decisions discussed herein and before the approach represented by those decisions had been so clearly adopted by the courts. There appears to be a trend toward recognizing greater continuing effectiveness of treaty provisions during war than in earlier times. It is believed that Secretary Lansing’s statement does not represent the view which would now be held.” The judicial decisions to which Grew refers are the cases of Karnuth v. U.S., Techt v. Hughes, and The Sophie Rickmers. This view of the Department of State as expressed by Grew was reaffirmed by a letter from the Department to the Department of Justice dated March 18, 1949, in respect to an identical treaty provision in the agreement of June 24, 1925 between the United States and Hungary: “(T)he Department is of the view that the legal effect of these provisons was unchanged by the recent state of war, although, under the Trading with the Enemy Act and Executive Orders issued thereunder, it was not possible to withdraw the proceeds of inheritances.” Also quoted in Law of Treaties, op. cit., p. 208.
A District Court in California stated in 1952 that the decision in Clark v. Allen did not prevent the judicial branch from finding an extradition treaty no longer in existence even though the political branch was of the opinion it was still in force. Artukovic v. Boyle, 107 Fed. Supp. 11, 23 (1952), noted in 47 A.J.I.L. 319 (1953). The Court of Appeals (9th Cir.) reversed the judgment of the lower court, saying in part, that if the Chiefs of State of two countries agree as to the legal status of a treaty between them and their decision is “based upon supporting facts,” their decision if not conclusive “should at least weigh very heavily.” The Court of Appeals followed the view of the executive. 211 F.2d 565, 574, cert, den., 348 U.S. 818, reh. den. 348 U.S. 889 (1954). Also see In re Nepogodin’s Estate, in which the court maintains it must rely on the political department to determine if a treaty has been terminated. 134 Adv. Cal. Rep. 192, 285 P.2d 672 (1955).
Part of the Article was rearged as abrogated. Supra p. 166, n. 1.
7 Lawyers Guild Rev. 270 (1947).
The fact that the Circuit Court of Appeals relied more heavily than the Supreme Court upon the probable original intent of the parties helps account for their divergent conclusion. Charles Cheney Hyde as an important apostle of the “intent theory” wrote in 1945: “The provisions of a treaty enabling the nationals of either contracting party thereafter to acquire immovable property within the territory of the other would hardly in themselves betoken a design to create a privilege that would survive the shock of war. Thus, while the occurence of war between the parties would doubtless not affect acquisitions of property previously made in pursuance of the agreement, it would be difficult to maintain that it was their design that the privilege should survive that event.” 2 Hyde 1551.
Rank, p. 514.
Ibid.
See, for example, Secretary of State Lansing’s letter of September 10, 1918, quoted supra, p. 171.
Such a provision covering parts of the treaty of 1828 was included in that agreement. The provision first appeared in the treaty of 1795 with Prussia.
The difficulties with the “intent theory” are discussed at p. 18, supra.
Hartford Accident and Indemnity Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 150 (1948).
229 N.Y. 222, 128 N.E. 185 (1920). See supra, p. 41.
Supra, p. 39.
In obiter dicta Justice Cardozo had said: “The plaintiff is a resident; but even if she were a non-resident, and were within the hostile territory, the policy of the nation would not divest her of the title whether acquired before the war or later. Custody would then be assumed by the alien property custodian … It follows that even in its application to aliens in hostile territory, the maintenance of this treaty is in harmony with the nation’s policy and consistent with the nation’s welfare.” (p. 244). (But since throughout World War I the Department of State took the view that nonresident aliens got no inheritance rights from any treaties, the Custodian did not vest any rights which might have grown out of the treaties.) In the same vein as the dicta quoted here from the Techt case is the dictum of the Supreme Court in Karnuth v. U.S. in which it is said that treaty provisions “giving the right to citizens or subjects of one of the high contracting powers to continue to hold and transmit land in the territory of the other” survive the war. (p. 237). Other decisions which had upheld rights of inheritance or to hold or convey real property during or after a supervening war include: Society for the Propagation of the Gospel v. New Haven, 8 Wheat. 464, 494-95 (1823), Carneal v. Banks, 10 Wheat. 181 (1825), Goos v. Brocks, 117 Neb. 750, 223 N.W. 13 (1929), State of Kansas v. Reardon, 120 Kan. 614, 245 P. 158 (1926). The Society case is discussed supra, p. 31; the latter two cases are discussed infra, p. 317. For an excellent review of the jurisprudence see Lenoir, “The Effect of War on Bilateral Treaties,” 34 Geo. L. J. 129 (1946). An indication of the general desire to extend the effect of Article 4 of the 1923 treaty over as great a time period and number of cases as possible is obtained from Vogel v. New York Life Ins. Co., in which the court held that the article was intended to be retroactive over the period of the First World War and to apply to wills then made. 55 F.2d 205 (1932), cert, den., 287 U.S. 604(1933).
Sect. 2 of the California statute declares itself to be an “urgency measure” enacted to keep the property and money of citizens dying in this country from being sent to “foreign countries to be used for the purposes of waging a war that eventually may be directed against the Government of the United States.” Thus, even though the Supreme Court in Clark v. Allen overruled part of the California statute, the purpose of passing the law was not contravened by the Court since the inheritance was vested in an American official, the Alien Property Custodian. Other states have or had statutes similar to the one in California, which likewise restricted enemy nationals in their property rights as those rights would exist under the applicable treaty: Montana, Laws of Montana (1939), c. 104; Nevada, Nevada Compiled Laws (Supp. 1931–1941) sect. 9894; Oregon, Oregon Compiled Laws Annotated (1940) sect. 61-107; Arizona, Arizona Code Annotated (1939) sections 39-111; Oklahoma, Oklahoma Statutes Annotated (1941) title 60, section 121; Texas, Texas Statutes Annotated (Vernon, 1936) Articles 166, 167, 177; Connecticut, Connecticut General Statutes (1930) section 5055. See Lenoir, p. 130; Note, 170 A.L.R. 966 (1947).
For an excellent discussion of the personal property aspects of the decision, see Meekison, “Treaty Provisions for the Inheritance of Personal Property, considered with reference to Clark v. Allen,” 44 A.J.I.L. 313 (1950).
Hence the Alien Property Custodian (or his successor, the Attorney-General), for he must “stand in the shoes” of the German legatees. McGrath v. Dravo Corp., 183 F.2d 709, 713 (1950); A. Gusmer, Inc. v. McGrath, 196 F.2d 860, 862 (1952).
The foreign law must be proven as a question of fact. Nussbaum, “Proving the Law of Foreign Countries,” 3 Am. J. Comp. L. 60 (1954). On the proof of foreign law, especially in California, Note, 42 Calif. L. Rev. 701 (1954). Martin Domke, “American-German Private Law Relations, Cases 1945–1955,” has an excellent discussion of questions of proving the existence of reciprocal rights in German courts. Bilateral Studies in Private International Law, Arthur Nussbaum, editor, pp. 15-19(1956). For criticism of the requirement that foreign law must be proven as a fact, see Auerbach, “Right of Non-Resident Alien to take Real and Personal Property,” 25 S. Cal. L. Rev. 329 (1952). See note 1, p. 181, infra, for mention of cases which sought to determine whether reciprocity existed in German inheritance law during World War II.
In 1949 the personal property was distributed to the Custodian upon a finding that Alvina Wagner was a German national. Meekison, op. cit., p. 317.
The number of estates involved with Germany alone is great. In 1946 the Attorney General estimated that some 250 estates of identical nature to the one involved in Clark v. Allen had already been vested just in the state of California. Brief, Clark v. Allen, p. 7.
Thus, the District Court was in error when it held that the California law was unconstitutional as an invasion of the federal domain of foreign affairs.
“[The] Supreme Court would have been justified in reaching a different conclusion. The cases dealing with a similar problem which resulted from the First World War, [n. omitted] relied on by the Court, are distinguishable because of dissimilar conditions following as well as preceding the Second World War.” 32 Minn. L. Rev. 407(1947).
23 Notre Dame Lawyer 266, 268 (1947). This is not an isolated remark of just one commentator on the Clark case — this is the overly optimistic view which has generally been expressed about the case.
Even if the Custodian had not vested the property, no funds could have been transferred to the German relatives during the war. By Executive Order 8785 the United States prohibited transfers of credit between banking institutions in the United States and those in any European country except under Treasury licenses, and this was true of payments of American inheritances to Germany and the receipt of German inheritances by Americans too. 6 F.R. 2897 (1941). The German Foreign Exchange Law of December 12, 1938, Reichgesetzblatt, 1938, I, p. 1733, required a license to pay obligations owed by Germans to foreigners. The Treatment of Enemy Property Act of January 15, 1940, Reichgesetzblatt, 1940,1, p. 191, was extended by the Decree of April 9, 1942, so as to prohibit the payment of any money to nationals of the United States. Reichgesetzblatt, 1942, I, p. 171. Consequently, under the laws of both countries payments for inheritances could not be made.
Domke, Martin, op. cit., pp. 40-42, n. 183 citing Matter of Herter’s Estate, 300 N.Y. 532, 89 N.E.2d 252 (1949); McGrath v. Davis, Estate of August Bunzen, 107 Cal. App.2d 98, 236 P.2d. 765 (1951). See also In re Meyer’s Estate, 107 Cal. App.2d. 799, 238 P.2d 597 (1951).
To say that it would be an act of grace is no exaggeration — Secretary of State Dulles himself has said it would be a “matter of grace” and that the aliens “have no legal right to claim their property back.” Hearings on S. 3423, before a Subcommittee of the Committee on the Judiciary of the Senate, 83d Cong., 2d sess., pp. 164, 167, 173 (1954). The Supreme Court has held that ownership of the property rests entirely in the Custodian after his vesting action. Cummings v. Deutsche Bank, 300 U.S. 115 (1937). As a result of such action the United States has taken title to about half a billion dollars worth of assets in each of the two world wars. S. 3423 was introduced in the Senate to return the confiscated property, but the bill did not become law. As of July 15, 1957, nothing has been returned except to certain persons who were themselves victims of Nazi aggression, such as racial and religious minorities. Sect. 32 (a), in Public Law 322, 79th Cong., 2d sess., amended by Sect. 2, Public Law 671, 79th Cong., 2d sess. See “Return of Property seized during World War II,” 62 Yale L. J. 1210 (1953); Dulles, John Foster, “Status of Former German and Japanese Property,” 31 D.S. Bull. 69 (1954); 33 D.S. Bull. 971-73 (1955).
Winslow Act of March 4, 1923 (42 Stat. 1511) provided for return to former owners of property valued at $10,000 or less. Return of an additional 80% of the property over $10,000 was authorized by the Settlement of War Claims Act of 1928 (45 Stat. 254, 270). The remaining 20% was kept by the United States as security for payment by Germany of the awards of the Mixed Claims Commission. After 1934 no more property was returned because Germany had defaulted on her promises to satisfy claims of the United States and its citizens.
Professor Jessup asserts that the confiscation itself is probably not permitted under international law, although the American courts have allowed it. “Enemy Property,” 49 A.J.I.L. 57 (1955). For statements in support of this idea see Final Report of the Subcommittee to Examine and Review the Administration of the Trading with the Enemy Act, Committee on the Judiciary of the Senate, 83d Cong., 1st sess., pp. 10, 11 (1954), where quotations from leading jurists and statesmen are reproduced. One author, writing in 1939, agreed with this point of view but thought that the law should be changed with the added requirement that the government have responsibility for reimbursing the aliens after the war. Gathings, J.A., International Law and American Treatment of Enemy Property, dissertation at New York University (1939). At present the United States is obligated not to return the seized German external assets. This obligation is based upon the 1946 Paris agreement, signed by 18 nations. The agreement came into effect January 14, 1946. Article 6 provided: “Each Signatory Government shall, under such procedures as it may choose, hold or dispose of German enemy assets within its jurisdiction in manners designed to preclude their return to German ownership or control and shall charge against its reparation share such assets …” 14 D.S. Bull. 114, 117 (1946). Pursuant to authorization by Congress, the United States also entered into an agreement sponsored by the Interallied Reparations Agency in Brussels for the purpose of settling interallied jurisdictional disputes over the German external assets. This latter agreement became effective January 21, 1951, and has led to payments by The Netherlands and Denmark to the United States. Thus, while the obligation seems clear enough, Secretary of State Dulles has denied that in regard to the return of vested assets “that the freedom of Congress in this matter has been curtailed in any way” by the Paris Agreement. When speaking of both the 1946 and the 1951 agreements he stated: “I do not believe that there is or can be any executive agreement, not approved by the Congress in the form of legislation or a treaty, which would bar the Congress from doing what it pleases with respect to this vested property.” Hearing on S. 3423 to Amend the Trading with the Enemy Act before a Subcommittee of the Committee of the Judiciary of the Senate, 83d Cong., 2d sess., p. 172 (1954). At least until recently the intention of the United States after World War II has been to retain the German property and with it pay the claims of Americans who suffered at the hands of the Germans. At Yalta Roosevelt agreed that the United States would take over German property in the United States as part of her share of reparations, and that he would seek to get the necessary legislation to retain for this country all German property in America. 2d Plenary Meeting February 5, 1945, Livadia Palace, N.Y. Times, March 17, 1955, sect. C. In the Paris conventions of 1954 the Federal Republic of Germany agreed to compensate its citizens for losses of property held by the Allies. While the Adenauer government has thus accepted the Paris solution, it still has not carried out its obligation of compensating its own citizens.
Annual Report, Office of Alien Property, p. 1 (1954). The International Claims Settlement Act of 1949, as amended by Public Law 285 of August 9, 1955, 69 Stat. 562, provides for the liquidation of property the Custodian has vested. The literature and jurisprudence on the subject of vesting enemy property is voluminous. See, e.g., Dulles, “The Vesting Powers of the Alien Property Custodian,” 28 Cornell L. Q. 245 (1943); compare Carlson, “Foreign Funds Control and the Alien Property Custodian,” 31 Cornell L. Q. 1 (1945); 1 Amer. J. Comp. L. 395 (1952), commenting on Zittman v. McGrath, 340 U.S. 446 (1951). For discussion of recovery of property confiscated by enemy occupant, see 53 Col. L. Rev. 561 (1953) and Amer. J. Comp. L. 261 (1952), both commenting on State of The Netherlands v. Federal Reserve Bank of New York, 99 F. Supp. 655 (1951), 201 F.2d 455 (1953); S.F.N.R. v. Vogt and Raab-Karcher, 48 A.J.I.L. 165 (1954). For a statement of German law regarding treatment of enemy property at the time of the outbreak of World War II, see Behandlung des feindlichen Vermögens, by K. Krieger and W. Helfermehl, München and Berlin (1942). For a recent German statement of American law and practice as it affected German private property, see Die Behandlung des Feindlichen Privatvermögens in den Vereinigten Staaten von Amerika, by Hans W. Baade, dissertation, Kiel (1951). Much useful information can be obtained from recent hearings on administration of the Trading with the Enemy Act, as well as amendment of it: Hearings and Final Report of Subcommittee to investigate the administration of the Trading with the Enemy Act, Committee on the Judiciary of the Senate, 83d Cong., 1st sess. (1953), and Hearings before the Committee on Interstate and Foreign Commerce of the House of Representatives, 83d Cong., 1st sess. (1953); Hearings before a Subcommittee of the Committee on the Judiciary considering amendments to the Act, 83d Cong., 1st sess. (1953).
The propensity of American courts to uphold private property rights is well known, even though the courts have upheld the vesting of enemy property in time of war. In several recent cases the courts have held that property rights derived from treaty provisions may survive the termination of the treaty itself. Santovincenzo v. Egan, 284 U.S. 30 (1932); Petition of Mazurowski, 331 Mass. 33, 116 N.E.2d 854, 857 (1953), 48 A.J.I.L. 504 (1954), 102 U. of Pa. L. Rev. 7 (1954); In Re Braier’s Estate, 305 N.Y. 148, 111 N.E.2d 424 (1953).
161 P.2d 598 (1945), rev’d 31 Cal.2d 573, 191 P.2d 747 (1948).
Criticized in 47 Col. L. Rev. 318 (1947). See p. 319, note 11, for list of treaties and cases concerning them in which the provisions have been construed to give the aliens actual inheritance rights. The California court had assumed without deciding that the treaty was not abrogated by the declaration of war between Germany and the United States.
Blank v. Clark. 79 F. Supp. 373 (1948); Annual Digest, 1948, Case No. 143. The Alien Property Custodian had already vested the inheritance. Plaintiff’s power of attorney from the German heir was insufficient to permit him to take the property from the Custodian under provisions of the Trading with the Enemy Act and rulings thereunder.
In re Miller’s Estate, 104 Cal. App. 2d 1, 230 P.2d 667, 670 (1950). Two other cases in which the courts cite Clark v. Allen with approval regarding inheritance of realty in spite of a war are In re Meyer’s Estate, 107 Cal. App.2d 799, 238 P.2d 597 (1951), noted in 46 A.J.I.E. 573 (1952), discussed infra, p. 314; and Hartford Accident and Indemnity Co. v. Wolbarst, 95 N.H. 40, 57 A.2d 151 (1948).
The best summary of the jurisprudence may be found in Martin Domke, “Ame-ican-German Private Law Relations, Cases 1945–1955,” Bilateral Studies in Private International Law, Arthur Nussbaum, editor, pp. 14-19 (1956). The most instructive case is In re Krachler’s Estate, 199 Or. 455, 263 P.2d 772(1953). Judge Brand reviewed the jurisprudence and German legal system at length and came to the conclusion that reciprocity did not exist as of December 8, 1943. Another case worthy of noting is In re Nepogodin’s Estate, 134 Adv. Cal. Rep. 192, 285 P.2d 672 (1 955), although it dealt with China. Of course, the reason why Hitler Germany maintained such reciprocity at all is clear: the number of estates in which property in Germany would be left to Americans would be inconsequential compared to the number in the United States left to Germans. Hitler established an organizational arrangement to carry out the Absentee Administration Degree by providing for a ppointment of an administrator for the inheritance of absent enemy nationals (including Americans). This arrangement is discussed briefly in In re Miller’s Estate, 230 P. 2d 667, 673-74 (1950).
See note 1, supra., p. 176.
Sup. Ct. of Calif., 36 Cal.2d 159, 222 P.2d 874 (1950).
Article 1 of the 1925 treaty with Hungary is identical. Paragraph 1 is as follows: “The nationals of each of the High Contracting Parties shall be permitted to enter, travel and reside in the territories of the other; to exercise liberty of conscience and freedom of worship; to engage in professional, scientific, religious, philanthropic, manufacturing and commercial work of every kind without interference; to carry on every form of commercial activity which is not forbidden by the local law;“to own, erect or lease and occupy appropriate buildings and to lease lands for residential, scientific, religious, philanthropic, manufacturing, commercial and mortuary purposes; to employ agents of their choice, and generally to do anything incidental to or necessary for the enjoyment of any of the foregoing privileges upon the same terms as nationals of the state of residence or as nationals of the nation hereafter to be most favored by it, submitting themselves to all local laws and regulations duly established.” Paragraphs 2, 3 and 4 provide for equal tax treatment, access to the courts, and protection of person and property.
See note 1, p. 166, supra, for statement in Clark v. Allen regarding abrogation of part of Article 4. The remarks apply with equal force to much of Article 1.
During the negotiations for the Agreement Concerning the Application of the 1923 Treaty with Germany (of June 3, 1953, TIAS 3062) “consideration was given to the question whether any provision was necessary to prevent the 1923 treaty being invoked to challenge vesting actions taken under the Trading with the Enemy Act. To obviate any possibility of this happening, the language of Article 1 was drawn so as to insure that the agreement would have prospective effect only, and new vesting of German property has already ceased.” Statement of Samuel C. Waugh, Assistant Secretary for Economic Affairs, Department of State, made before a subcommittee of the Senate Committee on Foreign Relations on July 13, 1953, printed in 29 D.S. Bull. 225 (1953). The day that Adenauer signed the June 3d agreement he made the following oral statement to the press: “The Government of the Federal Republic of Germany will not appeal to the provision of Article 1, paragraph 4 … in order to bring about the return of the German assets expropriated by the Government of the United States of America during the period between December 11, 1941, and the entry into force of the agreement signed today or the entry into force of the treaties signed in Bonn on May 26, 1952, whichever date is earlier.” On the same day the United States Government announced that no new vesting would take place. The two statements are included in TIAS 3062, p. 16.
Parts may be found in Articles 1, 2, 3, 5 through 9, 11, 12. But note paragraph 5 of Article 2: “The provisions of the present article shall be subject to the right of either party to apply measures that are necessary to maintain public order and protect the public health, morals, and safety.”
Quoted in Brief of Attorney General in Clark v. Allen; most of text of the letter also available in Law of Treaties, p. 203.
Department of State, United States Treaty Developments, Appendix III (C) (2) (2).
IV Treaties (Trenwith) 4203.
The Act of May 22, 1918, as amended by the Act of June 21, 1941 (40 Stat. 559; 55 Stat. 252) provided the basic structure for control over entry and departure of aliens from November 14, 1941, when the President issued Proclamation 2523 (6 F.R. 5821). Thus, even before the Japanese attack on Pearl Harbor the Secretary
Letter dated June 8, 1953, to Dr. Rank. Rank, p. 344.
During hearings before a subcommittee of the Senate Committee on Foreign Relations. 29 D.S. Bull. 225 (1953).
279 U.S. 231 (1929). For discussion of facts and decision in the case, see supra, p. 46.
The House Committee on Immigration and Naturalization stated in February, 1929, that if the Supreme Court did not remedy the evil of the Circuit Court of Appeals decision in the Karnuth case by holding Article 3 abrogated, the Congress would have to right the wrong. Report No. 2301, 70th Cong., 2d sess., February 1929, p. 2. See p. 46, supra.
Article 2. Senate Exec. E, 84th Cong., 1st sess.; July 27, 1955, Cong. Rec. 10040. The comparable part of the 1953 Treaty of Friendship with Japan is Article 1, paragraphs 1 & 2 (a). Exec. 0, 83d Cong., 1st sess. See note 4, p. 161, supra.
The letter was addressed to the Commissioner of Alcoholic Beverage Control of the State of New Jersey. Law of Treaties, p. 201. The applicable part of Article 1 of both the treaty with Germany and the 1925 treaty with Hungary was that the alien “shall be permitted. … to engage in … commercial work of every kind without interference; to carry on every form of commercial activity which is not forbidden by local law …” When the Senate gave its advice and consent to the June 3, 1953 treaty with the Federal Republic concerning the application of the 1923 treaty, it did so subject to the following reservation, which was acceded to by the Federal Republic in a note dated September 18, 1954: “Article I … shall not extend to professions which, because they involve the performance of functions in a public capacity or in the interest of public health and safety, are state-licensed and reserved by statute or constitution exclusively to citizens of the country, and no most-favored-nation clause in the said treaty shall apply to such professions.” The Senate gave its advice and consent to ratification of the 1953 Treaty of Friendship with Japan subject to a reservation similar to this one. The 1954 Treaty of Friendship with the Federal Republic contains no provision which has the effect of extending to citizens of the other party national treatment with regard to practice of the professions.
Department of State, United States Treaty Developments, Appendix III (C), sheet of June 1948.
150 Neb. 383, 34 N.W.2d 400 (1948), reh. den. 150 Neb. 647, 35 N.W.2d 647 1949).
34 N.W.2d 400, 403.
Section 7 (b), 50 U.S.C.A. Appendix, specifically prohibits the prosecution of any suit or action at law or in equity by a non-resident enemy alien prior to the end of the war. As the Supreme Court said in Ex parte Colonna, 314 U.S. 510 (1942): “war suspends the right of enemy plaintiffs to prosecute actions in our courts.”
Parts of the Trading with the Enemy Act were amended thereafter, but not Section 7 (b).
Item 4 of Syllabus formulated by the court.
Kuku Nagano v. McGrath, 187 F.2d 759, 766.
House of Representatives, 82d Cong., 1st Sess., Doc. 188, p. 3. The same statement was quoted in Senate, 82d Cong., 1st Sess., Report 892, p. 3. The House Committee on Foreign Affairs reported on July 18, 1951: “… termination of the state of war will permit Germans to sue in our courts …” 82d Cong., 1st Sess., Report 706, p. 2. See also, Dresler v. Greeff, 282 App. Div. 465, 124 N.Y.S.2d 412 (1953); Decisions of the Commissioner of Patents, June 9, 1954, 105 U.S. Patent Quarterly 480, 481; De Sayve v. De La Valdene, 124 N.Y.S.2d 143 (1953).
In The Leontios Teryazos, the court said that a resident enemy alien is not precluded from suing in time of war and is not precluded from interposing a defense to any action brought against him in any federal or state court. 45 F. Supp. 618 (1942). See also Kaufmann v. Eisenberg, 177 Misc. 939, 32 N.Y.S.2d 450 (1942).
The access to the courts provision appears in the 1954 treaty as Article 6(1). For a World War I case applying provisions comparable to Article 1 (4) (concerning security and protection) in the 1923 treaty with Germany even though the treaty in question was not revived after World War I, see Hempel v. Weedin, 23 F.2d 949 (1928), infra, p. 317. The provisions were applied as of November 16, 1923.
“Article VI. In the event of war between either High Contracting Party and a third State, such Party may draft for compulsory military service nationals of the other having a permanent residence within its territories and who have formally, according to its laws, declared an intention to adopt its nationality by naturalization, unless such individuals depart from the territories of said belligerent Party within sixty days after a declaration of war.”
The Selective Training and Service Act of 1940, 50 U.S.C.A. Appendix, Sect. 303 (a), provided that “no citizen or subject of any country who has been or who may hereafter be proclaimed by the President to be an alien enemy of the United States shall be inducted for training and service under this Act unless he is acceptable to the land or naval forces.” The Court of Appeals has stated that this provision “is for the protection of the United States and not for the benefit of the alien enemy.” Leonhard v. Eley, 151 F.2d 409 (1945). In this case petitioner was a German drafted before war was declared. See also, United States v. Lamothe, 152 F.2d 340 (1945); Ruiz Alicea v. United States, 180 F.2d 870, 872 (1950).
65 Stat. 75 (1951).
TIAS 2972. The diplomatic mission of the Federal Republic acknowledged the note by a note of the same day. Ibid.
The courts have held that reciprocity of tonnage taxation cannot affect the national safety and is therefore compatible with war. Flensburger Damfercompagnie v. U.S., 59 F.2d 464 (1932), cert. den. in U.S. v. Flensburger Dampf er compagnie, 286 U.S. 564 (1932); The Sophie Rickmers, 45 F.2d 413 (1938). For an opposite view see 31 Col. L. Rev. 894 (1931). See infra, p. 316.
The comparable provisions in the 1925 treaty with Hungary were 11 and 12. Both the German and Hungarian treaties contained the following important limitation: “In case either of the High Contracting Parties shall be engaged in war, it reserves to itself the right to prevent from operating within its jurisdiction under the provisions of this article, or otherwise, enemy nationals or other aliens whose presence it may consider prejudicial to public order and national safety.”
N.D. Texas, 68 F. Supp. 216 (1946).
Schacht v. Young, 164 F.2d 882 (1947).
28 D.S. Bull. 565-66 (1953). These were the talks between Chancellor Adenauer and Secretary of State Dulles in Washington, D.C.
The comparable provisions of the 1925 treaty with Hungary are Articles 14 through 22.
Infra, note 1, p. 199.
October 13, 1950.
TIAS 3062, p. 18.
Letter of June 8, 1953 from Charles I. Bevans, Assistant Legal Adviser, Department of State, to Richard Rank, quoted in Rank, pp. 344-45.
Article 19 (2). “Lands and buildings situated in the territories of either High Contracting Party, of which the other High Contracting Party is the legal or equitable owner and which are used exclusively for governmental purposes by that owner, shall be exempt from taxation of every kind, National, State, Provincial and Municipal, other than assessments levied for services or local public improvement by which the premises are benefited.” The identical part of the 1925 treaty with Hungary is Article 16 (2). Article 2 of the June 3, 1953, agreement with the Federal Republic amends this part of Article 19 by reinforcing the right of each government to acquire and hold property in the other. This makes explicit a right which was already implicit in Article 19. See the statement of Samuel C. Waugh, Assistant for Economic Affairs of Department of State, which was made before a subcommittee of the Senate Committee on Foreign Relations on July 13, 1953, 29 D.S. Bull. 225 (1953).
The text of these notes is printed in Brownell v. City and County of San Francisco, 126 Cal. App.2d 102, 271 P.2d 974, 977, 978 (1954).
The text of the protocol is printed in ibid.
Under the Trading with the Enemy Act, as amended.
Section 201 of the California Revenue and Taxation Code provides that all property in California is subject to local taxation except property exempt under the laws of the United States. Section 36 (b) of the Trading with the Enemy Act provides that property has the same status for tax purposes during the vesting period as it had prior to vesting.
MS., Department of State, file 711.622/9-1648. Quoted in Law of Treaties, p. 211.
He said further: “This view is in complete accord with the policy long followed by this Government, both in time of peace and in time of war, with regard to property belonging to the government of one country and situated within the territory of another country. This Government has consistently endeavored to extend to the property of other governments situated in territory under the jurisdiction of the United States of America the recognition normally accorded such property under international practice and to observe faithfully any rights guaranteed such property by treaty. This Government, likewise, has been equally diligent in demanding that other governments accord such recognition and rights to its property in their territories …” Two other letters of similar import were written by officials in the Legal Adviser’s Office of the Department of State and were introduced into evidence in the Brownell case (at p. 978).
Quoted in Law of Treaties, p. 211.
126 Cal. App.2d 102, 271 P.2d 974 (1954), digested in 49 A.J.I.L. 90 (1955), noted in 53 Mich. L. Rev. 758 (1955).
126 Cal. App. 2d 105-07, 271 P.2d at 976.
126 Cal. App. 2d 109, 271 P.2d at 979.
Ibid.
Id. at 112, 271 P.2d at 980.
126 Cal. App.2d 113-14, 271 P.2d at 981.
Also, it is possible that the property was tax exempt even in the absence ot a treaty. See 53 Mich. L. Rev. 758 (1955), citing Bishop, “Immunity from Taxation of Foreign State-Owned Property,” 46 A.J.I.L. 239 (1952).
However, inexact exposition rather than a changing point of view may account for the differences.
Even the German Embassy property in Washington was vested and sold. In 1954 the Senate passed a bill (S. 1573) to pay $300,000 to the Federal Republic for the construction of a new Embassy building, although this was done as an act of grace rather than the fulfillment of any obligation. The legislation regarding return of some vested assets to Italy included some governmental property. Dulles in letter to Sen. Dirksen. Hearings on S. 3423 before Subcommittee of Senate Committee on the Judiciary, 83d Cong., 2d sess., p. 174 (1954). In the Japanese Peace Treaty it was agreed that all Japanese diplomatic and consular property would be returned.
Letter dated June 18, 1948, quoted in Law of Treaties, p. 217.
Apparently this was the view of the court in U.S. v. Heine, 149 F.2d 485 (1945)
E.g., In re Weidberg’s Estate, 15 N.Y.S.2d 252 (1939), in which the distributive shares of four German nationals (apparently Jewish) would not in the court’s opinion be remitted by the German Consul to them.
Six Northeastern states have enacted legislation to prevent any funds from estates being sent to residents of communist occupied territories since the beneficiaries would not get all they would be entitled to. On February 19, 1951 the Treasury Department prohibited payment to residents of such territories. 16 F.R. 3479. Domke, op. cit., pp. 20, 21; 28 Wisc. Bar Bull. 17 (1955); 25 5. Cal. L. Rev. 297 (1952).
305 N.Y. 148, 111 N.E.2d 424 (1953), noted in 47 A.J.I.L. 506 (1953).
See Rank, p. 519. Apparently Dr. Rank misinterpreted the meaning of the case because he was unaware of the fact that the treaty had been revived by the United States pursuant to the 1947 Treaty of Peace. Therefore, the reason that the treaty was in force at the time the Surrogate decided the case initially (October 29, 1951), 108 N.Y.S.2d 417, was that it was revived. There is no way of knowing how, in the court’s opinion, the war had influenced the effectiveness of the treaty. Dr. Rank also states that the United States Government’s action in terminating the 1925 treaty in 1952 shows that this government “felt it necessary to take steps to terminate it despite the war with Hungary.” Of course such action was necessary once the treaty was revived, but the action has no bearing upon the United States attitude regarding the effect of war on the treaty.
When on July 27, 1955, Sen. Green asserted, “The operations of the German treaty of 1923 were interrupted by the war …,” his statement was correct only in a general sense and could not be taken as an accurate statement on some parts of the treaty. Cong. Rec, 1955, p. 10046.
Cf. G.G. Fitzmaurice, “The Juridical Clauses of the Peace Treaties,” 73 Hague Recueil 314-15(1948).
The Federal Republic of Germany has regarded the 1923 treaty as abrogated by World War II, according to information from Dr. Ellinor von Puttkamer, Department for Foreign Affairs at Bonn, as described in Rank, p. 353, n. 137. Rank asserts, “The general view of German courts seems to be that bilateral treaties, even those concerning private rights, are abrogated by war.” (p. 532). For authority he cites 4 Neue Juristische Wochenschrift 831 (1951) and several recent cases. Textwriters holding the same view as the courts: Riezler, Internationales Zivilprozessrecht (1949) pp. 24 ff and Baumbach-Lauterbach, Zivilprozessordnung (1950), Einleitung IV, p. 23, cited Rank, p. 533.
Signed May 8, 1878, effective September 18, 1878. 20 Stat. 725, I Treaties (Malloy) 977. Article 11 was annulled by a supplemental consular convention signed February 24, 1881, effective June 29, 1881. 22 Stat. 831, I Treaties (Malloy) 983. This supplemental convention and Article 13 of the 1868 convention were abrogated under the Seamen’s Act of March 4, 1915, 38 Stat. 1164, 1184. See For. Rel., 1915, 6, 10; For. Rel., 1917, 18.
Signed June 5 and 17, 1881, effective June 13, 1883. 23 Stat. 711, II Treaties (Malloy) 1505. Article 11 and 12 were abrogated under the Seamen’s Act of March 4, 1915, 38 Stat. 1164, 1184. See For. Rel., 1915, 6, 10; For. Rel., 1917, 17.
The treaties with Italy and Rumania were revived by notes of February 6, 1948, and February 26, 1948, respectively. Department of State, United States Treaty Developments, Appendix III (A), pp. 7, 11.
Law of Treaties, p. 218.
In a French case involving a consular convention but not involving the United States the Court of Appeal of Lyons (1st Chamber) decided on October 13, 1921, that the Treaty of Frankfurt between France and Germany (which had not been revived by the French Government) had ceased to exist from the date of the declaration of war. 49 Clunet 391 (1923); Annual Digest, 1919–1922, p. 390.
43 Stat. (pt. 1) 976.
The agreements are not printed in any of the standard treaty collections. The date of signature and the effective date for each agreement were as follows: Bulgaria, June 19 and 29, 1925, effective August 1, 1925; Germany, May 27 and 31, 1932; Hungary, April 6 and 21, 1936, effective May 1, 1936; Italy, February 11,21, and 26, 1929, effective March 1, 1929; Japan, July 6 and 7, 1926, effective July 10, 1926. The agreement listed for Hungary was only of six months’ duration, but was extended by a series of notes exchanged in 1936 and 1937. By notes exchanged on August 18 and September 21 and 23, 1937, the agreement was extended for an indefinite period. For a general discussion of the visa work of the Department of State, see 21 D.S. Bull. 523(1949).
P. 241, note a.
Department of State, United States Treaty Developments, pages relating to passport visa fees agreement of February 26, 1929, sheet of December 1949, p. 1. A related agreement was effected by notes verbales of September 28 and 29, 1948, effective November 1, 1948. 62 Stat. (pt. 3) 3480, TIAS 1867. The latter agreement provided under certain conditions for the waiver of visa requirements for American citizens travelling to Italy and for the granting of non-immigrant visas of 24 months’ validity to Italian citizens travelling to the United States.
The Hungarian note was acknowledged on September 23, 1939. Department of State, United States Treaty Developments, pages relating to passport visa fees agreement of April 21, 1936, sheet of December 1950, p. 2.
Ibid., Appendix III (A), p. 5. Over a year before the peace treaty with Hungary was signed, the United States had entered into diplomatic relations with that country but the present author has been unable to discover if the visa fees agreement was applied before the agreement was revived. See Blakeslee, George, The Far Eastern Commission, 1945’1952, published by the Department of State, pub. 5138, Far Eastern Series 60, p. 100 (1953).
The United States received the note October 27, 1949. The agreement therefore terminated January 27, 1950. Department of State, United States Treaty Developments, loc. cit.
Ibid., pages relating to passport visa fees agreement of June 29, 1925, sheet of December 1949, p. 1.
Ibid., Appendix III (A), p. 2.
Ibid., pp. 11-12.
21 D.S. Bull. 523, 534 (1949). In Department of State, United States Treaty Developments, loc. cit., the agreement was regarded as in force as of the date of publication, December 1950. But in the list of such agreements published in 1952 in Visa Circular No. 101, quoted in TIAS 2930, Rumania is again excluded.
They were similarly excluded from the 1952 list referred to in the preceding footnote.
Effective October 1, 1952. TIAS 2932.
Article 7 (a). TIAS 2490, 3 UST 3169.
Perhaps one reason why the Department chose to make the new agreement rather than revive the old was that Japan might have objected that the agreement was not a bilateral “treaty or convention” as stipulated in the revival article of the peace treaty.
Notes were exchanged December 12 and 30, 1952, and January 9, 1953. The resulting agreement was effective February 1, 1953. TIAS 2771.
Signed August 27 and September 5, 1931, effective August 31, 1933. Not printed.
Signed January 5, 1938, effective January 5, 1938. 52 Stat. 1509, EAS 124, 191 L.N.T.S. 207.
Pursuant to the 1947 treaty of peace. Department of State, United States Treaty Developments, Appendix III (A), p. 1.
Signed February 6, 1922, effective August 5, 1925. 44 Stat. (pt. 3) 2122, III Treaties (Redmond) 3125. In addition to the United States, Italy and Japan were among the other 12 parties to this treaty.
Article 2 provided that the rights accorded to the United States under the Boxer Protocol “and under agreements supplementary thereto shall cease.” Article 2 of the 1922 agreement provided for carrying out part of the treaty of commerce with China of 1903. The latter agreement (signed October 8, 1903, 33 Stat. 2208 I Treaties [Malloy] 261) was made, according to its Preamble, “in view of” part of Article 11 of the Boxer Protocol of 1901. Thus, if the 1922 agreement may, under these circumstances, properly be included as a supplementary convention of the Boxer Protocol the United States gave up its rights under it in 1943. The 1943 treaty was signed January 11, 1943, and may be found in 57 Stat. 767, TS 984.
See Article 15 et seq. But cf. Article 29 which listed nine superseded treaties and did not include the multipartite 1922 agreement. For text of the 1946 treaty of friendship, commerce, and navigation, see 63 Stat. (pt. 2) 1299, TIAS 1871. The treaty was signed November 4, 1946, and became effective November 30, 1948.
Signed July 5, 1890, effective April 1, 1891. 26 Stat. 1518, II Treaties (Malloy) 1996. Under Article 282 (5) of the Treaty of Versailles Germany agreed that the convention should be applied again as between Germany and the Allied and Associated Powers. At the outbreak of World War II every state against which the United States went to war was a party to this convention.
Articles 3, 4.
Department of State, International Agencies in which the United States Participates, Pub. 2699, p. 56 (1946).
Ibid., p. 55. See also Department of State, Participation of the United States in International Conferences, 1941–1945, Pub. 2665 (1947), in which the Bureau was referred to as an organization which was active during World War II (p. 212).
Department of State, International Agencies in which the United States participates. Pub. 2699, p. 58 (1946). The last preceding payment made by the United States to the Bureau was for the fiscal year ending March 31, 1940. Ibid., p. 57. However, Congress did appropriate $1,318.77 for the fiscal year ending June 30, 1941, although the Department of State did not turn the money over to the Bureau. This appropriation was considerably smaller than the one for the fiscal year ending in 1940. The Bureau collected a little money during the war from sales of its Bulletin, as well as from some governmental contributions.
The publications are always sent to the Bureau of Foreign and Domestic Commerce of the Department of Commerce.
Department of State, Participation of the United States in International Conferences, 1949–I950, Pub. 4216, pp. 166-67 (1951). The union has recently been referred to as “a forerunner of GATT.” Alexandrowicz, Charles H., International Economic Organizations, p. 70 (1953).
Department of State, Participation of the United States in International Conferences, op. cit., pp. 166-68.
Effective May 5, 1950. 72 U.N.T.S. 3.
Also, the name of the International Customs Bulletin was officially changed to International Journal.
As of November 7, 1955, the United States was still not a party to the Protocol. 33 D.S. Bull. 769 (1955).
72 U.N.T.S. 3, 21.
Cf. “List of Inter-Governmental Organizations in the Economic and Social Field,” United Nations Doc. E/1687, p. 45.
The Protocol of 1950 entered into force May 5, 1950. 33 D.S. Bull. 769 (1955).
Signed March 10 and May 5, 1926, effective from January 1, 1921. 47 Stat. (pt. 2) 2599, EAS 10, 113 L.N.T.S. 21.
Signed March 31 and June 8, 1926, effective from July 18, 1924. 47 Stat. (pt. 2) 2578, EAS 3, 108 L.N.T.S. 463.
The agreement with Italy was revived by a note of February 6, 1948. Department of State, United States Treaty Developments, Appendix III (A), p. 8. The agreement with Japan was revived by a note of April 22, 1953. 28 D.S. Bull. 722 (1953).
Exchanges of notes, dated September 5 and October 8, 1923, January 19, May 5, September 3, November 29, and December 11, 1924, and March 20, 1925, effective from January 1, 1921. 47 Stat. (pt. 2) 2627, EAS 17, 119 L.N.T.S. 185.
Department of State, United States Treaty Developments, Appendix III (C) (4) (2).
Signed March 30, 1955. Convention Relating to Taxes on Income. 84th Cong., 1st Sess., Exec. C.
Signed April 16, 1954. Convention Relating to Taxes on Income. 83d Cong., 2d Sess., Sen. Exec. D.
Commerce Clearing House, Report 13, New Developments.
Signed July 22, 1954, effective from January 1, 1954. TIAS 3133.
Sen. Exec. J. 83d Cong., 2d Sess., p. 3.
In the discussion which follows, the debt arrangements are discussed as if they were treaties. This is done because the Department of State has regarded them as treaties upon numerous occasions. They are listed as treaties in the publications of the Department, and the revival of them after World War II (discussed below) was on the basis that they were bilateral treaties. But cf. Mann, “The Law Governing State Contracts,” 21 B.Y.I.L. 11 (1944); Williams, Sir John Fischer, Chapters on Current International Law and the League of Nations, p. 259 (1929).
Signed April 25, 1924, effective from December 15, 1923. Printed in Combined Annual Reports of the World War Foreign Debt Commission, p. 132 (1927). The negotiation of the agreement had been authorized by 42 Stat. 363, as amended.
Signed December 4, 1925, effective from June 15, 1925. Printed in Combined Annual Reports of the World War Foreign Debt Commission, p. 244 (1927). The negotiation of this agreement had been authorized by 42 Stat. 363, as amended.
Signed November 14, 1925, effective from June 15, 1925. Printed in Combined Annual Reports of the World War Foreign Debt Commission, p. 222 (1927). The negotiation of this agreement had been authorized by 42 Stat. 363, as amended.
Signed June 23, 1930, effective June 23, 1930. Agreement between the Governments of the German Reich and the United States of America, published by the Treasury Department (1930). This agreement was authorized by 46 Stat. 500.
For a statement showing the principal and interest funded and amount to be received over the funding period for each debtor country, see Memorandum covering the World War Indebtedness.…, published by the Bureau of Accounts, Fiscal service, Treasury Department, p. 18 (1941).
Department of State, Press Releases, June 20, 1931, p. 482.
Hungary: Signed May 27, 1932, effective from July 1, 1931. Rumania: Signed June 11, 1932, effective from July 1, 1931. Italy: Signed June 3, 1932, effective from July 1, 1931. Germany: Signed May 26, 1932, effective from July 1, 1931. Each of these agreements was published by the Treasury Department in 1932. The moratorium agreements were authorized by Public Resolution 5, 72d Cong., approved December 23, 1931. For description of the extensive interwar debt arrangements, see For. Rel., The Paris Conference, 1919, vol. XIII, pp. 380-412 (1947).
Throughout World War II Finland continued making her payments, both on principal and interest. On October 14, 1943, Finland and the United States entered into an agreement extending the period of payment. Secretary of the Treasury, Annual Report, 1944, pp. 160-61. On August 24, 1949, Congress passed a law which recognized Finland as “alone among our debtors of the First World War” in her consistent repayment of the debt, and provided that future payments made on the debt by Finland would be utilized to facilitate educational exchanges between the two countries. 63 Stat. 630.
Secretary of the Treasury, Annual Report, 1942, p. 101. Rumania had made a token payment of $100,000.00on its debt on June 15, 1940. Ibid., 1941, pp. 191, 553-54.
Cf., ibid., all the Reports at least through fiscal year ending June 30, 1954, passim.
Public Resol. 110, approved June 12, 1941. Secretary of the Treasury, Annual Report, 1944, pp. 160-61.
Secretary of the Treasury, Annual Report, 1941 through 1954, passim.
Article 81 of the Italian treaty. The comparable articles with Hungary and Rumania were 31 and 29, respectively.
Hungary: Note of March 9, 1948. Rumania: Note of February 26, 1948. Italy: Note of February 6, 1948. Department of State, United States Treaty Developments, Appendix III (A), pp. 4, 7, 11.
Public Law 285 of August 9, 1955, provided in Title II, Section 202 (b) that vested and liquidated property previously owned by Bulgaria, Hungary, or Rumania, or any national thereof, shall be covered into the Treasury. Section 302 established a Claims Fund within the Treasury for claims by United States’ nationals against each of these countries, as well as one for claims against Italy. The moneys covered into the Treasury under Section 202 (b), as well as $5,000,000 paid by Italy into the Treasury pursuant to the Memorandum of Understanding (61 Stat. 3962), were allotted to the various Claims Funds. Section 303 provided in part: “The [Foreign Claims Settlement] Commission shall receive and determine in accordance with applicable substantive law, including international law, the validity and amounts of claims of nationals of the United States against the Governments of Bulgaria, Hungary, and Rumania, or any of them, arising out of the failure to-… (3) meet obligations expressed in currency of the United States arising out of contractual or other rights acquired by nationals of the United States prior to April 24, 1941, in the case of Bulgaria, and prior to September 1, 1939, in the case of Hungary and Rumania, and which became payable prior to September 15, 1947.” 69 Stat. 562. These claims probably include bonds issued on the debts arising from World War I when those bonds are held by nationals of the United States. On March 13, 1956, the United States Government announced seizure of about $25,000,000 worth of Rumanian, Hungarian, and Bulgarian blocked or frozen assets. The seizures were taken in partial satisfaction of claims against those countries. N.Y. Times, March 13, 1956, p. 10.
Landman, “The War Debt and a Solution,” 9 World Affairs Interpreter 142, 147 (1938).
Article 2 (c) of the Final Act. The conference met November 9-December 21, 1945. Department of State, Participation of the United States in International Conferences, 1945–1946, Pub. 2817, pp. 55-57 (1947).
Notes exchanged March 6, 1951, effective March 6, 1951. TIAS 2274, 2 UST 1249.
Department of State, Final Report of the International Conference on German External Debts, February 28, 1952–August 8, 1952, pub. 4746, European and British Commonwealth Series 38 (1952).
Effective September 16, 1953. TIAS 2792. See 36 D. S. Bull. 444 (1957).
Ibid., Article 5 (1).
Ibid., Annex I, 10 (4).
Effective September 16, 1953. TIAS 2796.
TIAS 2792, Annex I, 10 (5).
TIAS 2796, Article 5.
TIAS 2796, Preamble, para. 4.
Secretary of the Treasury, Annual Report, 1954, p. 109.
Convention on the Settlement of Matters Arising out of the War and the Occupation, as amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, signed October 23, 1954, effective May 5, 1955. The text is available in Senate Doc. 11, 84th Cong., 1st Sess.
Ibid., Chapter 10, Article 2.
Ibid., Chapter 10, Article 4. Since treaties published in the Reichgesetzblatt became a part of German law, it appears that this article refers to the treaties as well as private contract obligations; however, one cannot be absolutely certain that the article does refer to debt obligations under treaty.
Supra, p. 35, note 5. See Moore, J.B., “The Effect of War on Public Debts and Treaties — The Case of the Spanish Indemnity,” 1 Col. L. Rev. 209 (1901). See also Article 128 of the Treaty of Versailles in which Germany renounced “in favour of China any claim to indemnities accruing [under the Boxer Protocol of September 7, 1901] subsequent to March 14, 1917.”
2 Brit. and For. State Papers 378; Martens, 2 Nouveau Recueil de Traités 275.
Article 4.
McNair, Arnold, The Law of Treaties, p. 530 (1938).
Signed September 9, 1886. 77 British and Foreign State Papers 22. The convention has gone through several revisions.
Effective July 10, 1895. TS 342-A.
22 Op. Atty. Gen. 268 (1898).
Article 13. 30 Stat. 1754, II Treaties (Malloy) 1690.
II Treaties (Malloy) 1710.
Ibid., p. 1711.
Letter of November 26, 1902. Ibid., p. 1712.
The Department of State regarded the 1902 exchange of notes as a new agreement. TS 474, II Treaties (Malloy) 1710.
Effective April 14, 1903. 33 Stat. (pt. 2) 2105, II Treaties (Malloy) 1701.
Signed January 15, 1892. 27 Stat. 1022, I Treaties (Malloy) 557.
Signed January 30, 1912, effective October 16, 1912. 37 Stat. (pt. 2) 1631, III Treaties (Redmond) 2692.
40 Stat. 411.
Sect. 10 (a, c).
“International Copyright Relations of the United States,” 27 Yale L.J. 348 (1918).
6 Miller, My Diary 348, doc. 497. The memorandum of Mr. Brown to which Miller refers appears as ibid., doc. 494.
42 Stat. 2271,2272.
Plischke, p. 260.
4 UNESCO Copyright Bulletin, Nos. 1-2, p. 127. The statement must be read with the following qualification, however: “In view of the unsettled international juridical situation of Germany, particularly the absence of peace treaties following World War II, information concerning the state of international relations of Germany can be given only with reservations as to its accuracy.” Ibid., pp. 123-24.
Pub. 2103 (1944).
Pub. 6346 (1956). See infra, p. 340, n. 1.
Note of May 27, 1922. The Senate gave its advice and consent to revival. 5 Hackworth 387. For the Proclamation of June 3, 1922, extending to Hungary the advantages of the copyright law of 1919, see 42 Stat. 2277. The Proclamation differed from the one issued for Germany because it omitted the provision stating that nothing in the Proclamation should be regarded as interferring with existing arrangements between the two countries involved.
The period of compliance with requirements was extended to 15 months after the proclamation of peace (as to works published after August 1, 1914, and before the proclamation of peace.) The proclamations were issued under the Act of Decem-ber 18, 1919. 41 Stat. 368. For a complete list of the proclamations respecting copyright, cf. 17 U.S.C.A. Sect. 9, or Universal Copyright Convention Analyzed, edited by Kupferman and Foner, p. 643 (1955). The list has been revised by the Department of State as of January 20, 1955.
The dates and citations for the appropriate proclamations for each enemy country were: Germany, May 25, 1922, 42 Stat. (pt. 2) 2271; Hungary, June 3, 1932, 42 Stat. (pt. 2) 2277; Italy, June 3, 1922, 42 Stat. (pt. 2) 2276; Rumania, May 14, 1928, 45 Stat. (pt. 2) 2949; Japan, May 17, 1906, 34 Stat. (pt. 3) 2890 (the proclamation of the entrance into force of the copyright convention with Japan.)
The revived convention with Hungary has already been discussed. An exchange of notes dated February 12, March 4 and 11, 1915, effected a copyright agreement with Italy, effective May 1, 1915. The arrangements were entered into in accordance with the Act of March 4, 1909, 35 Stat. (pt. 1) 1075. The resultant proclamations may be found in 36 Stat. (pt. 2) 2685 and 39 Stat. (pt. 2) 1725. III Treaties (Redmond) 2705. A copyright convention with Japan was signed November 10, 1905, effective May 10, 1906. 34 Stat. (pt. 3) 2890, I Treaties (Malloy) 1037. Two other agreements were signed by Japan and the United States concerning the reciprocal protection of copyrights and certain other rights in China and in Korea. The agreement regarding China was signed May 19, 1908, effective August 16, 1908. 35 Stat. (pt. 2) 2044, I Treaties (Malloy) 1043. The agreement regarding Korea was signed May 19, 1908, effective August 16, 1908. 35 Stat. (pt. 2) 2041, I Treaties (Malloy) 1041. Even though the Department of State does not list in its Treaties in Force, 1941 (1944) exchanges of notes with certain of the other countries for which proclamations have been issued, this does not mean that such agreements have not been entered into. E.g., the Proclamation with respect to Rumania was issued May 14, 1928. Notes were exchanged May 13 and October 13, 1927, and May 12 and 19, 1928. See Department of State, United States Treaty Developments, Appendix III (A), p. 12. The formal treaties with Hungary (1912) and Japan (1906) are the exception rather than the rule, for in all the United States has entered into only five bipartite copyright treaties. World Copyright, An Encyclopedia, edited by H.L. Pinner, vol. 1, p. 843 (1953).
Hearings on the International Copyright Convention, 77th Cong., 1st Sess., p. 147. Also described in the hearings was a French law which permitted free use of the works of nationals of any country in broadcasting and other use of national importance during the period of the energency. Compensation to the foreign national would be dependent upon the pleasure of a French tribunal. Ibid., p. 149, citing Bulletin of International Radio Diffusion, Geneva (1940). In 1953 in referring to the war or emergency legislation the editor of World Copyright stated that “some of it [ran] counter to the Berne Convention which no belligerent member ever renounced.” World Copyright, vol. 1, p. v of Preface.
Bureau de l’Union International pour la protection des oeuvres littéraires et artistiques, Le Droit d’Auteur, 1940, p. 37. Ränk, p. 108.
Article 26 of the order of February 15, 1940.
Ränk, at p. 109.
Reichsgesetzblatt, 1940, vol. I, p. 947; Le Droit d’Auteur, loc. cit.
Ränk, p. 109.
5 D.S. Bull. 172(1941).
Ränk, p. 16, n. 1.
Both laws were amendments to the Copyright Act of 1909, Sect. 8. 17 U.S.C.A. Sect. 9. The United States copyright law of 1947 made no substantive changes in the provisions of the 1909 Act and its amendments, except to omit obsolete provisions.
17 U.S.C.A. Sect. 9.
Department of State, Proclamations, Treaties and Conventions establishing Copyright Relations between the United States of America and other Countries, revised as of January 20, 1955. The proclamation was subsequently terminated by another proclamation of May 26, 1950. Both proclamations included the British possessions and Palestine (excluding Trans-Jordan). Ibid. An extension of time for securing ad interim and permanent copyright by British nationals had already been accorded by statutory amendment. See Howell, Herbert A., The Copyright Law, 3d ed., p. 203 and chapter 9.
The proclamation was issued December 12, 1951, effective December 12, 1951. 66 Stat. C13. It was based on an exchange of notes between Italy and the United States. TIAS 2382, 2 UST 2575.
At p. 1579, quoted in Kempelman, Max M., “The United States and International Copyright,” 41 A.J.I.L. 406, 422 (1947).
Some of the prewar copyright contracts involved nonenemy foreign nationals. Hearings before the Subcommittee to Investigate the Administration of the Trading with the Enemy Act of the Senate Committee of the Judiciary, 83d Cong., 1st Sess., pt. 1, p. 361 (1953). The vesting policy was stated to be as follows: “The basic policy with respect to copyright property has been to vest those copyrights in books, music, plays, and other scientific, literary, and cultural works which qualified persons have requested licenses to exploit. After vesting, such properties are licensed on royalty terms prevailing generally in the trade.” There were some exceptions to this basic policy of selective vesting. Statement of Lewis E. Rubin, Chief, Management and Liquidation Branch, Office of Alien Property, Department of Justice, ibid., p. 360. Royalties were also charged on use of the copyrights and were paid to the United States Government.
The Copyright Law, 3d Ed., p. 203 (1952).
154 F.2d 480, aff’g 51 F. Supp. 233 (1946). In the lower court no mention whatsoever was made of the treaty.
At 486 of 154 F.2d.
“Lettre d’Italie,” p. 14.
For a copy of the order see Le Droit d’Auteur, 1947, No. 2, pp. 13-14. For description of the treatment given by Italy to foreign works and authors under the law of April 22, 1941, and the decrees of May 18, 1942 and August 23, 1946, see 4 UNESCO Copyright Bulletin, Nos. 1-2, pp. 139-43 (1951).
The period of extension in France was changed by a law of September 21, 1951. Similar extensions were effected by a number of countries during and after World War I. Masouye, Claude, “Les prorogations de guerre,” Revue internationale du droit d’auteur, No. 3, pp. 49-73 (1954). For discussion of an extension resulting from an exchange of notes in 1951 regarding a bipartite copyright treaty between France and Italy (which had been revived under the 1947 peace treaty), see ibid., No. 4, pp. 81, 90-92(1954).
Article 79 of the Italian treaty, Article 25 of the Bulgarian treaty, Article 29 of the Hungarian treaty, and Article 27 of the Rumanian treaty. Even though the Bulgarian treaty had bilateral copyright provisions in it and was signed by the United States, this country still does not have any copyright relations with Bulgaria. Department of State, Proclamations, Treaties and Conventions establishing Copyright Relations between the United States of America and other Countries, revised as of January 20, 1955, n. 10.
Annex XV of the Italian treaty and Annex IV of the Bulgarian, Hungarian, and Rumanian treaties. Mr. Masouye has voiced the complaint that too few of the treaty powers have complied with the requirement for extension of the period of enjoyment of the copyright. Masouye, op. cit., No. 3, pp. 49, 52. It would appear to the present author that the language of the treaties (“the normal duration of such rights shall be deemed to be automatically extended” by the indicated period) makes unnecessary any special action of extension, although the Department of State has not acted on this assumption, as indicated by the exchange of notes which preceded the 1951 Proclamation extending certain rights in the field of copyright to Italian nationals. TIAS 2382, 2 UST 2575.
Effective August 14, 1947. 61 Stat. (pt. 4) 3962, TIAS 1757.
Annex I to the Memorandum of Understanding. Ibid.
The dates of the revival notes were March 12, 1948, February 26, 1948, March 9, 1948, respectively. Department of State, United States Treaty Developments, Appendix III (A), pp. 4, 9, 12.
Official Gazette of the Allied High Commission for Germany, October 27, 1949.
As amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, signed October 23, 1954, in force May 5, 1955. Sen. Doc. 11, 84th Cong., 1st Sess., p. 110, Article 8(1).
The statement was an official reply to the UNESCO copyright questionnaire. 4 UNESCO Copyright Bulletin, No. 3, p. 82 (1951).
The same article also provided for extension of the period of protection of the copyright for the length of time between the outbreak of the war and the coming into force of the peace treaty.
Department of State, Proclamations, Treaties and Conventions establishing Copyright Relations between the United States of America and other Countries, revision of August 1, 1951.
The Department extended this statement so as to include also the reciprocal copyright conventions which the United States had concluded with Japan for copyright protection in China and Korea. The bilateral treaty regarding China was signed May 19, 1908, effective August 16, 1908. 35 Stat. 2044, I Treaties (Malloy) 1043. Under a treaty and exchange of notes between China and the United States the United States relinquished its extraterritorial rights in China. By a treaty between Japan and China it was agreed that the Government of Japan should abolish extraterritorial rights possessed by Japan in China. Signed November 30, 1940, effective November 30, 1940. The bilateral treaty regarding Korea was signed May 19, 1908, effective August 16, 1908. 35 Stat. (pt. 2) 2041, I Treaties (Malloy) 1041. Department of State, Proclamations …, op. cit., n. 14. In referring to the 1905 copyright treaty with Japan and the above two treaties relating to China and Korea, the Department of State said that it “has not reached any specific conclusion as to the effect of World War II upon the operation” of each of the three conventions. 2 UNESCO Copyright Bulletin, No. 4, p. 148, notes 393-95.
Department of State, Proclamations …, op. cit., revision of January 20, 1955.
29 D.S. Bull. 824(1953).
TIAS 2906. On the same date as the signing of the notes the President issued a proclamation according national treatment to nationals of Japan in copyright matters. Both the agreement and the proclamation were to continue in force until April 28, 1956.
29 D.S. Bull. 824 (1953). But since the 1905 convention was not considered abrogated until April 22, 1953, it would appear that it would have been necessary to make it retroactive only to that date.
29 D.S. Bull. 824, 826 (1953).
TIAS 2906, p. 17; 29 D.S. Bull. 824, 827 (1953).
TIAS 2906, p. 18.
TIAS 2906, p. 10; 29 D.S. Bull. 824, 826 (1953). The reference in the quoted passage to Article 19 (d) of the treaty of peace is apparently in error even though it appears in both the literal and D.S. Bull. print of the agreement.
Signed September 6, 1952. TIAS 3324; 49 A.J.I.L. (Supp.) 149 (1955); 83d Cong., 1st Sess., Exec. M.
The Berne convention of 1886, as revised, to which almost every country in the world except the United States belonged at the outbreak of World War II, has been regarded as remaining in full force during both World Wars. The Berne Bureau continued its work and principal publication (Le Droit d’Auteur) without interruption. Some courts have held that the convention was suspended as between enemy countries, however. Germany was a party before the war, and the convention became effective again for the Federal Republic of Germany pursuant to an exchange of notes dated February 6 and 7, 1950. Bundesanzeiger No. 144 (1950). For discussion of the effect of World War I on the Berne convention see Harvard Research, pp. 1197-1201; Tobin, 108, 112, 140, 186; Rank, pp. 100-08. For discussion of the effect of World War II on the Berne convention see Ränk, pp. 108-14; Mentha, Bénigne, “La Guerre et les unions internationales pour la protection de la propriété industrielle et des oeuvres littéraires et artistiques …,” Schweizerische Vereinigung für Internationales Recht, No. 36 (1943). A Canadian court held on March 15, 1948, that the Berne convention was suspended with respect to France when that country became enemy-occupied as of June 21, 1940. Thus, a Frenchman was held to be unable to acquire a copyright in Canada during the war. Annual Digest, 1948, pp. 439-41.
Signed June 2, 1911, effective May 1, 1913. 38 Stat. (pt. 2) 1645, III Treaties (Redmond) 2953. Revised by convention signed November 6, 1925, effective June 1, 1928, as to the United States March 6, 1931. 47 Stat. (pt. 2) 1789, IV Treaties (Tren-with) 4945. Revised by convention signed June 2, 1934, effective August 1, 1938. 53 Stat. (pt. 3) 1748, IV Treaties (Trenwith) 5516. These three conventions were all revisions of the convention of the Union of Paris of 1883. 25 Stat. 1372, II Treaties (Malloy) 1935.
Signed February 23, 1909, effective August 1, 1909. 36 Stat. (pt. 2) 2178, I Treaties (Malloy) 578.
There were three trademark agreements with Italy, one for reciprocal protection between Italy and the United States, one for protection of trademarks in Morocco, and one for similar protection in China. The first was signed June 1, 1882, effective June 1, 1882. 23 Stat. 726, I Treaties (Malloy) 984. The second was signed June 13, 1903 and March 12, 1904, effective March 12, 1904. I Treaties (Malloy) 989. The third was signed December 18, 1905, effective December 18, 1905. I Treaties (Malloy) 991.
There were two trademark agreements with Japan, one for reciprocal protection of trademarks in China and one for similar protection in Korea. The first was signed May 19, 1908, effective August 16, 1908. 35 Stat. (pt. 2) 2044, I Treaties (Malloy) 1043. The second was signed May 19, 1908, effective August 16, 1908. 35 Stat. (pt. 2) 2041, I Treaties (Malloy) 1041.
Signed March 18 and 31, 1906, effective June 25, 1906. 34 Stat. (pt. 3) 2901, II Treaties (Malloy) 1510.
By notes of February 6 and March 12, 1948, respectively. Department of State, United States Treaty Developments, Appendix III (A), pp. 8-10. It is somewhat surprising that the Department revived the agreement with Italy regarding trademarks in Morocco in the light of what J.B. Brown said in 1919 at the Paris Peace Conference in regard to comparable agreements with Germany (relating to Morocco and China): “These agreements have never been of any material importance … Further, because of the probable change of status of both Morocco and China as a result of the present war, the importance of these two arrangements probably becomes even less than before. At best they were but make-shift arrangements to procure such protection as was possible in view of the circumstances…” 6 Miller, My Diary 333 doc. 494.
Like the agreement with Japan relating to China, the agreement involving Korea was not revived. For the statement of the Department of State referred to, see notes 1 and 2, p. 228 supra.
By note of February 26, 1948. Department of State, United States Treaty Developments, Appendix III (A), p. 12.
Before the Department of State gave notice of the desire of the United States to revive the convention, the matter was referred to the Senate, which by resolution gave its advice and consent to the giving of such notice. 62 Cong. Rec. (pt. 3) 2897. This procedure was not followed after World War II and the Senate had no opportunity to express its opinion on the matter of specific revivals.
6 Miller, My Diary 331, doc. 494. For approval by David Hunter Miller, the American Technical Advisor, of the suggestion in the memorandum, which was written by J.B. Brown, that the 1909 patent treaty be continued in force, see 6 Miller, My Diary 348, doc. 497. See also, 8 Miller, My Diary 322, doc. 787.
6 Miller, My Diary 329-30, doc. 494.
40 Stat. 411.
40 Stat. 1020.
Sargeant and Creamer, “Enemy Patents,” 11 Law and Contemporary Problems 92, 93(1945).
Holtzoff, Alexander, “Enemy Patents in the United States,” 26 A.J.I.L. 272, 273 (1932).
42 Stat. 1511.
Less than 3000 valid patents were returned to former enemy owners. Sargeant and Creamer, “Enemy Patents,” 11 Law and Contemporary Problems 92, 93 (n. 3), (1945).
Approved on March 10, 1928. 45 Stat. 254.
Holtzoff, op. cit., p. 279.
The Treaty of Versailles provided against the possibility of claims by the German Government or its citizens for actions of the Allies during World War I. Also, the prewar system of industrial property rights was restored in general. See Articles 297, 298 and Annex; Articles 306-11. For discussion of Articles 306-11, in which it is pointed out that the war was not allowed to defeat American interests in Germany such as through the failure of Americans to pay their annual taxes in Germany or to work the patent in the war period in Germany, see 20 Miller, My Diary 543-49. Article 286 of the Treaty of Versailles provided that the Paris Convention of 1883 as revised by the 1911 convention “will again come into effect as from the coming into force of the present Treaty.” According to the comparable provisions in the treaties of St. Germain and Trianon, those treaties were to be “applied” (in the French text: “remis en vigueur”). This was Article 237 of St. Germain, and Article 220 of Trianon. The provisions which were adopted in all three peace treaties differ sharply from a draft provision which the American delegation had submitted to the conference to the effect that “all international conventions and treaties concerning industrial or literary property between the contracting parties, or between two or more of them, in force August 1, 1914, and all personal rights of nationals derived therefrom, shall be recognized as having continued in full force and effect and are confirmed.” 6 Miller, My Diary, Appendix A. The present author is unable to share the view of Dr. Tobin when he asserts, “A consideration of the status of these conventions during the war would indicate that the draft provision of the American delegation was more nearly in accord with the facts than was the clause which found its way into the treaty.” Tobin, p. 185. For lists of the wartime legislation and orders relating to enemy property, see Senate Committee of the Judiciary, The Alien Property Custodian, committee print, 82d Cong., 2d Sess. (1953). Two bibliographies on enemy property in World War I are: Carnegie Endowment for International Peace Library, … Enemy Property in World War I, mimeographed in 1944 (a selective bibliography on treatment of enemy property in the United States, France, Germany, and Great Britain); United States Office of the Alien Property Custodian, Bibliography on Enemy Property Control in the United States, I917–I943 (1944).
McNair, Arnold, The Law of Treaties, pp. 550-51, n. 1 (1938). But cf. S.H.H. v. L.Ch. in Paris, decided October 26, 1914, in which the German Reichsgericht upheld the domestic force of the 1883 Paris convention as between a German and a Frenchman while Germany was at war with France. 85 Entscheidungen des Reichsgerichts in Zivilsachen 374; Hudson, Cases on International Law, p. 474 (1951).
Ladas, Stephen, The International Protection of Industrial Property, p. 723 (1930).
40 Stat. 757 (appropriation for fiscal year ending June 30, 1919).
Tobin, p. 106.
Ladas, op. cit., pp. 723-27.
111 British and Foreign State Papers 591.
Cf. the issues for 1939 through 1945.
Department of State, International Agencies in which the United States Participates, Pub. 2699, p. 74 (1946). In the same publication the Department said, “The Bureau continues to operate at Berne on a somewhat reduced scale.” (p. 75).
For further information on the Bureau during the early part of the war, see Mentha, Bénigne, La guerre et les unions pour la protection de la propriété industrielle et des oeuvres littéraires et artistiques (1943).
La Propriété Industrielle, 1945, p. 1. Slovakia had sought to adhere to the 1883 convention, as revised, with its adherence to be effective May 10, 1941. 5 D.S. Bull. 188 (1941); La Propriété Industrielle, 1941, p. 41. In a note dated June 6, 1941, Germany declared that it would treat the Paris convention as binding in Polish territory. 5 D.S. Bull. 172 (1941); La Propriété Industrielle, 1941, p. 89. French Morocco adhered to the Paris Convention, as revised, January 21, 1941. Ibid., p. 3. After the cessation of hostilities a great number of states ratified or adhered to the industrial property conventions. After the U.S.S.R. occupied Estonia and Lithuania in 1940, it notified the International Bureau in Berne that the Paris Convention would be suspended in respect to those two countries, which had been parties to the convention until that time. Rank asserts that this action by the U.S.S.R. did not impair the legal position of the two Baltic states in their relation to the convention. Ränk, p. 93. On October 3, 1944, Great Britain registered with the League of Nations two industrial property treaties to which the British and German Governments had become parties before the war. This might be construed to constitute implied recognition of their survival after the outbreak of war. For the registrations, see 205 L.N.T.S. Nos. 4833 and 4834.
Executive Order No. 8389, 5 F. R. 1400 (1940).
Executive Order No. 8785, 6 F.R. 2897 (1941).
Executive Order No. 8832, 6 F.R. 8786 (1941).
Title III of the Act amended Sect. 5 (b) of the Trading with the Enemy Act of 1917, so that during war or a period of national emergency declared by the President “any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President in such agency or person as may be designated from time to time by the President, and upon such terms and conditions as the President may prescribe such interest or property shall be held, used, administered, liquidated, sold, or otherwise dealt with in the interest of and for the benefit of the United States.” 55 Stat. 839.
7 F.R. 5205 (1942).
Hearings before the Subcommittee to Investigate the Administration of the Trading with the Enemy Act of the Senate Committee of the Judiciary, 83d Cong., 1st Sess., p. 1, p. 426 (1953).
The Alien Property Custodian, Patents at Work, p. 7 (1943).
Hearings, op. cit., p. 376.
The Alien Property Custodian, op. cit., pp. 9, 11.
Hearings, op. cit., p. 380.
Ibid., p. 379.
Ibid., p. 361.
For further information on enemy property during the war cf. Domke, Martin, Trading with the Enemy in World War II (1943), and a supplementing volume by the same author, The Control of Alien Property (1947). The best compilation of legislation and bibliography on the Trading with the Enemy Act in both wars is Senate Committee on the Judiciary, The Alien Property Custodian, committee print, 82d Cong., 2d Sess. (1953).
3 UST 552, TIAS 2415.
Signed January 14, 1946. 61 Stat. (pt. 3) 3157, TIAS 1655. See esp. Article 6 (A). Cf. also Nadelmann, “Local Enemy Assets and the Paris Agreement on Reparation,” 40 A.J.I.L. 813-17 (1946); 15 D.S. Bull. 300 (1946).
The applicable provisions with each of the enemy countries were: Italy, Article 78; Bulgaria, Article 23; Hungary, Article 26; Rumania, Article 24.
The applicable provisions with each of the enemy countries were: Italy, Article 79; Bulgaria, Article 25; Hungary, Article 29; Rumania, Article 27.
This last privilege was not to be construed to entitle nationals of the defeated country to any patent or utility model rights with respect to inventions of military value. The applicable portions of the treaties were: Italy, Annex XV; Bulgaria, Annex IV; Hungary, Annex IV; Rumania, Annex IV. For further discussion of enemy property under the peace treaties, see Martin, “The Treatment of Enemy Property under the Peace Treaties of 1947,” 34 Grotius Society, Problems of Public and Private International Law 77 (1948); Mann, “Enemy Property and the Paris Peace Treaties,” 64 The Law Quarterly Review 492 (1948).
Articles 14 and 15. Article 14 contains the following statement regarding trademarks: “The Allied Powers agree to deal with Japanese trademarks … on a basis as favorable to Japan as circumstances ruling in each country will permit.” A final peace settlement has yet to be signed with a unified Germany, but in the meantime the industrial property relations between Germany on the one hand the United States, Great Britain, and France on the other are regulated by Chapters 9 and 10 (with annexes) of the Convention on the Settlement of Matters Arising out of the War and the Occupation, as amended by Schedule IV to the Protocol on the Termination of the Occupation Regime in the Federal Republic of Germany, signed October 23, 1954. S. Doc. No. 11, 84th Cong., 1st Sess., pp. 104-14 (1955). The claims of the Federal Republic and German nationals based upon actions taken by the Allies during the war and in connection with the state of war were to remain in abeyance until the final peace settlement. The Federal Republic agreed to return unincumbered to their former owners foreign property taken over by Germany during the war. In talks conducted between German and American representatives on April 9, 1953, the United States had indicated its willingness to continue to make available to former German owners increasing numbers of trademarks. 28 D.S. Bull. 566 (1953). However, no such provision appeared in the 1954 convention.
61 Stat. 794.
61 Stat. (pt. 4) 3962, TIAS 1757.
Ibid., Memorandum of Understanding, Article I (3).
Ibid., Annex I.
14 Zeitschrift für auslandische öffentliches Recht und Völkerrecht 267 (1951). An order issued from the German patent office on October 28, 1950, indicated that the multipartite industrial property conventions were regarded as only suspended during the war as between belligerents. Ibid.
31 D.S. Bull. 881 (1954). But see Plischke, p. 260, in which reference is made to an aide memoire signed by the two governments in late 1953 revalidating the 1909 patent agreement.
15 U.S.C.A. Sect. 1126 (b).
Signed April 4, 1947, effective November 10, 1947. 61 Stat. (pt. 3) 3316, TIAS 1667.
Ex parte E. Leitz, Inc., 105 U.S. Patent Quarterly 480, 481 (1955).
Chicago Pneumatic Tool Co. v. Ziegler, 151 F.2d 784 (1945).
Stauffer v. Exley, 184 F.2d 962, 964 (1950).
Second Civil Senate, Reichsgericht, 169 Entscheidungen des Reichsgericht in Zivilsachen 240 (1942).
Second Civil Senate, Reichsgericht, 170 Entscheidungen des Reichsgericht in Zivilsachen 302 (1943).
Signed May 17, 1880, effective July 16, 1881. 22 Stat. 815, I Treaties (Malloy) 1024.
Signed June 1 and August 5 and 17, 1931, effective August 15, 1931. 47 Stat. (pt. 2) 2665, EAS 23, 137 L.N.T.S. 175.
Note of February 6, 1948. Department of State, United States Treaty Developments, Appendix III (A), p. 8.
Effective February 14, 1867. 14 Stat. 679, I Treaties (Malloy) 1217.
The interesting history of the lighthouse is described in Stuart, Graham, The International City of Tangier, 2d ed., pp. 26-34 (1955). See also a brief discussion by the same author, “The Problem of Tangier,” 1 Yearbook of World Affairs 92 (1947).
The lightkeeper remained an exile in Spain throughout the war but received his salary nevertheless. At the end of the war he was reinstated in his old post and continued in it until his death in 1927. Stuart, The International City of Tangier, op. cit., p. 30, n. 48.
Signed December 18, 1923. 28 L.N.T.S. 542.
Stuart, The International City of Tangier, op. cit., p. 32.
Marchegiano, “The Juristic Character of the International Commission of Cape Spartel Lighthouse,” 25 A.J.I.L. 339 (1931). “An examination of the Treaty of May 31, 1865, demonstrates the presence, in this Commission, of the essential elements considered by jurists as necessary for the existence of an autonomous international organization, since it has an individuality of its own, independent of the states which compose it.” Ibid., p. 340.
Statement by Colonel Yuste, Chief of the Spanish Army of Occupation, quoted in Delore, “The Violation by Spain of the Statute of Tangier and its Consequences as they affect the United States,” 35 A.J.I.L. 140 (1941). The United States protested against the Spanish action on the basis that such action was not in accordance with the treaty rights possessed in the International Zone by the United States. 3 D.S. Bull. 430 (1940). For a statement of the Spanish point of view, see Del Castillo, “L’exéprience internationale de Tanger,” 20 Revue Internationale Française du Droit des Gens 172(1951).
Department of State, Participation of the United States Government in International Conferences, 1941–1945, Pub. 2665, p. 212 (1947).
Stuart, The International City of Tangier, op. cit., p. 33.
54 Stat. 187.
Stuart, The International City of Tangier, op. cit., p. 33.
This assertion is made by Stuart in “The Problem of Tangier,” 1 Yearbook of World Affairs 92, 100 (1947), but it appears surprising that such recognition was not accorded by at least Germany and Italy.
Ibid., p. 101.
Department of State, Participation of the United States Government in International Conferences, 1945–1946, Pub. 2817, pp. 146-47 (1947).
Blix, Hans, On the Rule of Uninimity of Revision of Multilateral Treaties, a case study of treaties regarding Tangier, unpublished manuscript, p. 36 (1956). After careful examination of the prewar treaties respecting Tangier, Blix comes to the conclusion that they were not abrogated by the war (p. 37).
British Treaty Series No. 24 (1946). The agreement is also published in 3 UST 5509, even though the United States was not a party. See 13 D.S. Bull. 380 (1945).
Department of State, Participation of the United States Government in International Conferences, 1941–1945, Pub. 2665, p. 212 (1947).
Hearings before the Committee on Appropriations on the Third Deficiency Appropriation Bill, 1946, House, 79th Cong., 2d Sess., vol. 171, pp. 187-88 (1946).
Italian representation as specified in the 1928 convention was provided for in a Protocol signed November 10, 1952, effective November 10, 1952, which amended the Anglo-French Agreement of 1945. Cf. Article 2. 3 UST 5501, TIAS 2752.
In 1956 nine states, including the United States, recognized the abolition of the international regime and declared the applicable treaties abrogated. 35 D. S. Bull. 842-44(1956).
Stuart, The International City of Tangier, op. cit., p. 33.
Signed September 23, 1910, effective March 1, 1913. 37 Stat. (pt. 2) 1658, III Treaties (Redmond) 2943. Implementing legislation consists of “An Act to harmonize the national law of salvage with the provisions of the international convention for the unification of certain rules with respect to assistance and salvage at sea, and for other purposes,” approved August 1, 1912. 37 Stat. 242; 46 U.S.C. 727-31.
Treaty of Saint Germain-en-Laye, Article 234; Treaty of Trianon, Article 217; Treaty of Versailles, Article 282.
But see United States v. James L. Richards, 179 F.2d 530 (1950), a case involving a government ship giving aid to a private ship, in which Article 14 was interpreted to apply ‘“as regards all persons interested’ when government ships are involved in salvage operations who, when a Government ship is the rescuer, are typically its owner and personnel.” (at p. 533).
Uruguay adhered July 24, 1915. Egypt adhered November 29, 1943, effective January 1, 1944. Department of State, United States Treaty Developments, pages relating to salvage at sea convention of September 23, 1910, sheets dated December 1949, pp. 2, 3.
Publicover v. Alcoa S.S. Co., 168 F.2d 672, 677 (1948).
United States v. James L. Richards, 179 F.2d 530 (1950).
But see Bertel v. Panama Transport Co., 109 F. Supp. 795, aff’d 202 F.2d 247, reh. den. 74 S.Ct. 118, cert. den. 74 S.Ct. 35 (1953), involving libellants who claimed to have salvaged the vessel on October 9, 1939 at a time when they were residents of German-occupied Denmark. The court held that the two year statute of limitations ran against them, since their right to sue was not suspended until December, 1941, when the United States declared war against Germany and Section 2 (a) of the Trading with the Enemy Act became applicable to them and removed the right of uit.
This information on the revival appears in a letter dated June 8, 1953, from Charles I. Bevans, Assistant for Treaty Affairs, Department of State, to Dr. Rank. Rank, p. 345.
Signed August 25, 1924, on behalf of the United States, June 23, 1925, ratification deposited by the United States, June 29, 1937, effective as to the United States, December 29, 1937. 51 Stat. 233, IV Treaties (Trenwith) 4935. See also 32 A.J.I.L. Supp. 121 (1938), for related papers; Kamalanavin, Komala, L’unification internationale des règles en matière de connaissement (1942); Stödter, Rolf, Geschichte der Konnossementsklauseln (1953); Knauth, Arnold W., The American Law of Ocean Bills of Lading, 4th ed. (1953).
49 Stat. 1207. For a careful comparative analysis of the treaty and the act, provision by provision, see Knauth, loc. cit.; also, a memorandum of the Department of State dated June 5, 1937, printed as enclosure 3 in TS 931, pp. 44-49.
Sect. 4 of the Act; Article 4 of the treaty. The United States War Shipping Administration adopted a standardized bill of lading for carriage of goods on the vessels it operated. It covered all outbound shipments from continental United States ports (excluding Alaska) and was prescribed for use from August 15, 1942. General Order 16, July 6, 1942, as amended by Supp. 1, July 22, 1942, and Supp. 8, March 20, 1943, Sect. 303.11, Title 46 C.F.R., Cumulative Supp. 11336. They were formulated so as to fall within the provisions of the convention and the Carriage of Goods at Sea Act of 1936. The sections relating to war were 4, 5, and 20. The common law has long allowed a carrier to plead war as a contract exemption. For praise of the practicality of the wartime exemption clauses, consult Knauth, op. cit., pp. 224-45.
205 L.N.T.S. 204.
Letter dated June 8, 1953, from Charles I. Bevans, then Assistant for Treaty Affairs, Department of State, to Dr. Rank. Rank, p. 345.
Signed October 12, 1929, adherence of the United States deposited July 31, 1934, effective February 13, 1933, as to the United States October 29, 1934. 49 Stat. (pt. 2) 3000, IV Treaties (Trenwith) 5250.
Article 20 provides in part: “The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.” Even though Section 40 of the British Civil Aviation Act of 1949 does not include war among the defenses in cases for damage caused by aircraft, Shawcross and Beaumont state, “Although there must be considerable doubt, it is submitted that when the accident is caused by an Act of God or of the King’s Enemies, the owner of the aircraft may not be liable under [section 40].” Shawcross and Beaumont, Air Law, 2d ed., Para. 475 (1951). The British Civil Aviation Act of 1949 is printed ibid., Para. 2081. The reasons for permitting the defense of the “King’s Enemies” in the British Act would appear to the present author to be equally applicable to Article 20 of the Warsaw convention. Article 20 has been interpreted in the United States courts, but without mention of war as a possible defense.
Article 38 of the Convention on Regulation of Aerial Navigation, signed October 13, 1919, to which the United States never became a party, provided: “In case of war, the provisions of the present Convention shall not affect the freedom of action of the contracting states either as belligerents or as neutrals.” 1 Hudson, International Legislation 374. Article 38 of the Convention on Air Navigation between Spain and 20 American Republics, signed November 1, 1926, was identical with Article 38 of the 1919 convention. 11 Revue juridique internationale de la locomotion aérienne 97 (1927). Article 29 of the Commercial Aviation Convention between the United States and other American Republics, signed February 20, 1928, effective as to the United States August 26, 1931, contained the identical provision which appeared in Article 38 of each of the two conventions mentioned above. 47 Stat. 1901, IV Treaties (Malloy) 4729. Article 89 of the International Civil Aviation Convention, signed December 7, 1944, effective April 4, 1947, provided: “In case of war, the provisions of this Convention shall not affect the freedom of action of any of the contracting States affected, whether as belligerents or as neutrals. The same principle shall apply in the case of any contracting State which declares a state of national emergency and notifies the fact to the Council.” 61 Stat. (pt. 2) 1180, TIAS 1591. Article 89 was a product of the Drafting Committee of Subcommittee 2, Committee I. The inclusion of “national emergency” in the article was originally proposed by the British delegation. Department of State, Proceedings of the International Civil Aviation Conference, Chicago, November 1–December 7, 1944, vols. I and II, pub. 2820, doc. 350, p. 693 (1949). Cf. also doc. 402 and doc. 48 (7, ii). At the December 2, 1944, meeting of Subcommittees 1 and 2 of Committee I the Cuban representative suggested that Article 45 of the convention be amended so as to provide that, in time of war or emergency, the seat of the organization might be changed temporarily by a two-thirds vote of the Assembly. The British and Australian representatives argued that such a change was unnecessary since a temporary seat could always be established during emergency conditions without changing the permanent seat. Article 45 as finally adopted stated: “The seat may be temporarily transferred elsewhere by decision of the Council.” Ibid., doc. 465. In Articles 6 and 9 of the Canadian draft of the proposed convention the Board or Council was given the power to grant, renew, alter, amend, modify, suspend or revoke a certificate for international air services without a hearing in the event of an emergency or pursuant to a decision of the international security organization which they expected to be established. Ibid., p. 579. The Canadian proposal was not incorporated into the final convention. For two recent instances in which the “national emergency” clause was employed by Iraq and Egypt so that the International Civil Aviation Convention would not apply to Israel, see Shawcross and Beaumont, Air Law, 2d ed., Para. 217 (1951).
Dr. Ränk asserts that it was the intention of the parties who concluded the air navigation conventions that those conventions should be suspended between the belligerents during a war since civil air travel automatically ceases between them. Ränk, p. 177. See also Shawcross and Beaumont, Air Law, 2d ed., Para. 217 (1951). The present author is unable to accept this view. It appears that the parties in concluding the conventions were not willing to state precisely what would be the legal consequence of war and chose instead to leave it up to the individual belligerents and neutrals as to what extent they would continue to apply the various parts of the convention when war occurred. The wording of the applicable articles appears to support this conclusion.
Lissitzyn, Oliver J., International Air Transport and National Policy, p. 10 (1942); Shawcross and Beaumont, Air Law, 2d ed., Para. 7 (1951).
Department of State, United States Treaty Developments, pages relating to aviation convention of October 12, 1929, sheets dated December 1950, p. 2.
Ibid. Recognition of the continued force of the Warsaw convention was given by Pakistan when its Ministry of Foreign Affairs, in a note addressed to the American consulate at Karachi and dated January 22, 1948, stated that the convention “continues to be applicable to Pakistan subject to the reservation that it shall not apply to International Carriage by Air performed directly by [Pakistan].” Ibid., n. 10.
Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S. 2d 420 (1943), aff’d 267 App. Div. 947, 48 N.Y.S.2d 271 (1944), ajf’d 293 N.Y. 878, 59 N.E.2d 785 (1944), cert. den. 324 U.S. 882 (1945); Indemnity Insurance Co. of North America v. Pan American Airways, 58 F. Supp. 338 (1944); Garcia v. Pan American Airways, 269 App. Div. 287, 55 N.Y.S. 2d 317 (1945), aff’d 295 N.Y 852, 67 N.E. 2d 257 (1946), cert. den. 329 U.S. 741 (1946); 77 N.Y.S. 2d 256 (1947), aff’d 274 N.Y. App. Div. 996 (1948). Contra: Choy v. Pan American Airways, 1 Aviation Cases (CCH) 946 (1941).
The question of the applicability of the Warsaw convention to a flight from New York to Frankfurt, Germany, in October, 1946, was presented before a court in the United States but the parties reached a settlement outside the court; consequently, there was no judicial determination of the issue. Law of Treaties, p. 219. Infra, p. 256.
Garcia v. Pan American Airways, 269 App. Div. 287, 55 N.Y.S. 2d 317 (1945), aff’d 295 N.Y. 852, 67 N.E. 2d 257 (1946) cert. den. 329 U.S. 741 (1946); 77 N.Y.S. 2d 256 (1947), affd 274 N.Y.App.Div. 996 (1948); Indemnity Insurance Co. of North America v. Pan American Airways, 58 F.Supp. 338 (1944). Portugal’s accession to the convention was deposited on June 18, 1947. Department of State, United States Treaty Developments, pages relating to aviation convention of October 12, 1929, sheets dated December, 1950, p. 2.
Vila v. Pan American Airways, 66 F.Supp. 907 (1946). See also Glenn v. Cia. Cubana de Aviacion S.A. & Pan American World Airways & United States, 102 F.Supp. 631 (1952).
Ulen v. American Airlines, 7 F.R.D.371 (1947), aff’d 186 F.2d 529 (1949). The convention was again applied in a case in which Mexico City was included among the stops in a flight which crashed on November 29, 1949. Grey v. American Airlines, 95 F.Supp. 756 (1950).
Extracts from most cases decided by courts of the United States may be found in International Civil Aviation Organization, Cases on the Warsaw Convention (1929–1955), doc. 36. Three cases appear to have been omitted from that compilation: Chutter v. K.L.M Royal Dutch Airlines, 132 F.Supp. 611 (1955); Vila v. Pan American Airways, 66 F.Supp. 907 (1946); Lee v. Pan American Airways, 89 N.Y.S.2d 888, 300 N.Y. 545 (1949), cert. den. 339 U.S. 920 (1950).
As Justice Hagarty said in Garcia v. Pan American Airways: “There is nothing in the Convention which conditions its application upon nationality, but, on the contrary, its provisions affect the rights of all litigants. It must be so enforced.” 55 N.Y.S.2d 217, 222 (1945). In Glenn v. Cia. Cubana de Aviacion S.A. & Pan American World Airways & United States, the court held that “the provisions of the Convention apply irrespective of the Cuban citizenship of the defendant carrier Cubana…” 102 F. Supp. 631 (1952).
See esp. Article 1 (2).
The court then applied the convention to a round trip flight to Lisbon, Portugal, even though Portugal was not a party to the convention. The flight originated and terminated in New York, but the plane crashed in Portugal on February 22, 1943. 55 N.Y.S. 2d 317 (1945).
Jessup, Lande, Lissitzyn, and Chamberlain, International Organization, p. 31 (1955). See The International Air Transport Association, Conditions of Carriage for Passengers and Baggage (Article 17 [2] and Conditions of Carriage for Cargo (Article 13 [2], printed in Shawcross and Beaumont, Air Law (Supp.), Paragraphs 5049 and 5050 (1955). The Association adopted these conditions of carriage at Honolulu in 1954. Compare the 1950 formulation of conditions of carriage of the Association. Shawcross and Beaumont, Air Law, Para. 5001, Article 1 (1) (1951).
Article 1 (2) of the convention. See also n. 2, p. 255 supra.
The letter, dated December 7, 1948, was from the Assistant for Treaty Affairs (Barron) to Mr. David L. Corbin. Law of Treaties, p. 219. In numerous discussions within the International Civil Aviation Organization the question of revision of the Warsaw Convention was brought up. The United States Delegates never doubted the continued validity of the convention. On September 1, 1940, the Civil Aeronautics Board approved agreements by air carriers providing for adoption of uniform con-ditions of contract with regard to international air travel, but ruled that agreement by United States air carriers must be revised to conform to the Warsaw convention. Civil Aeronautics Board, International Air Transport Association Traffic Conference Resolutions, Agreements CAB Nos. 269 R 23 (128/275), September 1, 1949. 18 U.S. Law Week 1042, 2129.
The letter, dated June 8, 1953, was written to Dr. Rank. Rank, p. 344.
It appcars that it might be the view of the Department that the application of the Warsaw convention was a matter of internal law or regulation of each of the occupying powers rather than an automatic return to effectiveness. The phrase used by Mr. Barron in his letter of December 7, 1948, quoted above, indicating that the convention “should be given effect” in the occupied territory would lend support to such a conclusion.
Plischke, p. 257. Even though Italy was not one of the powers which gave its consent to a reapplication agreement, the Landgericht of Hamburg, in the Federal Republic, held on April 6, 1955, that the convention was applicable to a shipment of goods from West Germany to Italy since the convention was a part of German law. Scandinavian Airlines System v. Firma Oskar Wucherpfennig, 4 Zeitschrift für Luftrecht 226 (1955), digested 49 A.J.I.L. 583 (1955). The court did not mention that Italy had declared war against Germany in 1943 and that Italy had not entered into a reapplication agreement with the Federal Republic.
This information is from a letter dated June 8, 1953, from Mr. Charles I. Bevans, Treaty Advisor, Department of State, to Dr. Rank. Rank, p. 345.
But see the following note from the legation of the People’s Republic of Rumania, sent to the Chancellor of the Federal Republic by way of the Allied High Commission: “The Rumanian Government does not admit that the provisions of the Warsaw Convention of 1929… have come into effect again between Rumania and the Federal Republic of Germany.” Bodenschatz, “Die Einwirkung des Krieges auf die Anwendbarkeit des Warschauer Abkommens,” 3 Zeitschrift für Luftrecht 11, 16 (1954). Bodenschatz denies that the note is of any legal significance, arguing that the convention was not even suspended, is still in full force, and could be terminated by Rumania only if the denunciation procedure provided for in Article 39 of the convention were complied with. Ibid.
Article 4(1). Sen. Doc. 11, 84th Cong., 1st Sess., p. 77, 114 (1955).
Phillipson v. Imperial Airways, Ltd., 1 All E.R. 761 (1939), U. S. Av. R. 63, Digest Supp. (1939).
Shawcross and Beaumont, Air Law, Paragraphs 359 (note d), 3130, 3178, 3217 (1951); Ibid., Supp., Para. 3789.
2 Bundesgesetzblatt 176 (1951).
This statement was made by Drion and quoted with approval by Bodenschatz. Drion, “Kritische Bemerkungen zum Anwendungsbereich des Warschauer Abkommens,” 2 Zeitschrift für Luftrecht 303, 305 (1953); Bodenschatz, “Die Einwirkung des Krieges auf die Anwendbarkeit des Warschauer Abkommens,” 3 Zeitschrift für Luftrecht 11, 12(1954).
Bodenschatz, ibid., p. 15.
Achtnich, “Luftrechtliche Betrachtungen anlässlich des Absturzes eines Flugzeuges der K.L.M. am 22. März 1952 bei Frankfurt a.M.,” 1 Zeitschrift für Luftrecht 323,331 (1952).
Department of State, Aspects of United States Participation in International Civil Aviation, Pub. 3209, p. 54 (1948).
Signed September 28, 1955. Article 22 provides that the Protocol will come into force on the 19th day after the deposit of the 30th ratification. The Protocol is printed in Shawcross and Beaumont, Air Law (Supp.), addendum (1955).
Signed May 27, 30, and 31, 1932, effective June 1, 1932. 47 Stat. (pt. 2) 2721, EAS 38, 133 L.N.T.S. 409.
Signed May 27, 30, and 31, 1932, effective June 1, 1932. 47 Stat. (pt. 2) 2732, EAS 39, 133 L.N.T.S. 427.
Signed October 13 and 14, 1931, effective October 31, 1931. 47 Stat. (pt. 2) 2668, EAS 24, 137 L.N.T.S. 209.
Article 2(1): “Each of the Parties undertakes to grant liberty of passage above its territory in time of peace to the aircraft of the other Party, provided that the conditions set forth in the present arrangement are observed.” Article 6 (2) limits this liberty: “Each of the Parties reserves the right under exceptional circumstances in time of peace and with immediate effect temporarily to limit or prohibit air traffic above its territory on condition that in this respect no distinction is made between the aircraft of the other Party and the aircraft of any foreign country.” See also Article 10.
Note dated February 6, 1948. Department of State, United States Treaty Developments, Appendix III (A), p. 6.
Signed November 12, 1954, and January 26, 1955. TIAS 3164.
Plischke, p. 260.
33 D.S. Bull. 146 (1955). Also, the Federal Republic undertook to adhere to the Convention on International Civil Aviation drawn up at Chicago in 1944. Chapter 12, Article 2, of the convention on the settlement of matters arising out of the war and the occupation, as amended by Schedule IV of the Paris Protocol of 1954. Sen. Doc. 11, 84th Cong., 1st Sess., p. 77 (1955).
It should be observed that this statement was made before the agreement with Italy was revived. Senate Committee on Finance, Report of the National Advisory Council on International Monetary and Financial Problems, 80th Cong., 1st Sess., committee print, p. 71 (1948).
In referring to a bilateral aviation treaty of June 29, 1927, between Great Britain and Germany, Shawcross and Beaumont stated in 1951 that it was “In abeyance owing to war.” Air Law, Para. 6008 (1951).
Quoted from Department of State files in Clark, Keith, International Communication, pp. 157-58 (1931).
Ibid., p. 158. 5 Ibid., p. 160.
Ibid.
A declaration and final protocol of interpretation of the convention were signed December 1, 1886, and July 7, 1887. All three instruments were effective May 1, 1888. 24 Stat. 989, 25 Stat. 1424, 1425, II Treaties (Malloy) 1949, 1956, 1958.
7 Moore 369.
Ibid.
Ibid. Commodore Dewey, who later became Rear Admiral Dewey, did not order the Hongkong-Manila cable cut until he had through a British consular officer proposed to the Spanish captain general that both sides should use the cable in order to communicate with respective governments. The suggestion was rejected, and the cable was cut on May 2, 1898. Oral Argument of Fred K. Nielsen, Agent and Counsel for the United States, Cuba Submarine Telegraph Company (Ltd.), and Eastern Extension Australasia and China Telegraph Company (Ltd.), American and British Claims Arbitration, p. 2 (1924).
Clark, op. cit., pp. 164-65. The wartime action and the postwar failure to return or restore the cables differed sharply from the principles expressed in Article 54 of The Hague Regulations annexed to the convention regarding laws and customs of war on land (1907). 36 Stat. 2277, II Treaties (Malloy) 2269. See also Article 54C of the Resolutions of the Institute of International Law on the subject of the laws of naval warfare, p. 188 (1913).
Clark, op. cit., p. 166.
Mance, Sir Osborne, International Telecommunications, p. 67 (1944).
Report of the International Law Commission covering the work of its seventh session, May 2–July 8, 1955, United Nations General Assembly, 10th Sess., Official Records, Supp. No. 9 (A/2934), Articles 34-38; 50 A.J.I.L. 216-17 (1956).
Signed December 9, 1932, effective January 1, 1934, as to the United States June 12, 1934. 49 Stat. (pt. 2) 2391, IV Treaties (Trenwith) 5379.
For discussion of the effect of World War I on the radio and telegraphic conventions see Ränk, pp. 197-98; Tobin, pp. 77, 231; Codding, George A., The International Telecommunication Union, pp. 33, 108-10 (1952); Tomlinson, John D., The International Control of Radiocommunications, pp. 46-48 (1938); and Mance, loc. cit.
Signed at Cairo April 4 and 8, 1938, effective January 1, 1939, as to the United States August 25, 1939. 54 Stat. (pt. 2) 1417, TS 948.
Signed March 27, 1918, effective March 27, 1918. TS 631-A, III Treaties (Redmond) 2707. Although under the peace treaty of 1947 with Italy the United States was privileged to revive this agreement, no revival action was taken.
Article 26 provided that governments could stop private telegraph or telephone communications “if they might appear dangerous to the safety of the state or contrary to the laws of the country, to public order, or to decency.”
When the postal conventions are discussed below, the specific limitations imposed by the United States on communications of all types with the enemy will be described. See infra, p. 278.
Codding, op. cit., p. 193.
For the years 1940–1945, see volumes 7–12 of the Journal des télécommunications. In 1941 the Bureau issued a supplement to its Avant projet de vocabulaire des télécommunications en 8 langues, which had been published in 1940. The Bureau ceased publishing its List of Broadcasting Stations in August, 1942. During the war years the Bureau continued to publish the Statistique générale des radiocommunications, as well as the comparable compilations for telegraph and telephone. It also published the 9th edition of its List of Stations performing Special Services, with a subsequent supplement (1942); and the 11th edition of its Liste alphabétique des indicatifs d’appel des stations terrestres, mobiles et fixes, with a subsequent supplement (1943). The Bureau published other materials as well.
A number of other countries adhered to the telegraph and telephone regulations in the same period. Ränk, p. 199. A number of countries adhered to the radio regulations between 1939 and the time when the United States became directly involved in the war, as well as in the period immediately following hostilities. For a list of ratifications and adherences to the Madrid convention and the Cairo radio regulations, see Department of State, United States Treaty Developments, pages relating to international telecommunications convention of December 9, 1932, sheets dated June 1948 and 1949, pp. 2-7.
7 D.S. Bull. 652 (1942). The Department of State had already been informed of the action taken by Croatia. 5 D.S. Bull. 215 (1941).
Department of State, United States Treaty Developments, op. cit., p. 10, n. 26.
7 D.S. Bull. 653(1942).
Ibid.
In December, 1948, the Department of State listed Haiti as a party to the Madrid convention from August 3, 1935, when it originally adhered to the convention and to the radio regulations. Department of State, United States Treaty Developments, op. cit., p. 3. It should be observed that no mention was made by Haiti of withdrawing from the convention itself or the radio regulations in the letter of March 26, 1942, addressed to the Bureau. In an earlier letter Haiti had asked to have its payments to the Union suspended temporarily. 7 D.S. Bull. 653 (1942).
12 Journal des télécommunications 2-3 (1945).
Delegates were sent by Albania, Bulgaria, Croatia, Denmark, Finland, Germany, Hungary, Italy, the Netherlands, Norway, Rumania, Slovakia, and San Marino. Observers were sent by Spain, Switzerland, Turkey, and the Vatican City.
Came into force April 1, 1943. Reichgesetzblatt, 1943, II, p. 122; 9 Journal des télécommunications 162 (1942).
Article 5 of the universal postal union convention of 1939 and Article 13 of the Madrid convention envisaged such regional unions.
For further information on the European Union see 10 Journal des télécommunications 1, 29-35, 119, 135 (1943); 11 Journal des télécommunications 53-59 (1944).
Department of State, International Agencies in which the United States Participates, Pub. 2699, p. 267 (1946).
Marconi Wireless Telegraph Company of America v. United States, 320 U.S. 1,15 (1943).
United States National Archives, Federal Records of World War II, Vol. I, p. 723 (1951). In the custody of the Frequency Allocation and Treaty Division is correspondence regarding the fulfillment of treaty obligations. Ibid., p. 937.
The basic legislation is Section 303 (r) of the Communications Act of 1934, approved June 19, 1934, as amended May 20, 1937. 50 Stat. 191; 47 U.S.C. 303 (r). During the war, boards were established for special purposes, especially in the field of radio. The War and Navy Departments and the Federal Communications Commission continued to handle international telecommunications problems which arose. United States National Archives, op. cit., p. 723. Regulations regarding radio issued by the Federal Communications Commission are codified under Title 47 of C.F.R. and published currently in the F.R. The Commission revised its rules and regulations relating to “frequency allocations and radio treaty matters” in order to make them consistent with existing treaty obligations. 13 F.R. 8130, 14 F.R. 2280; 47 C.F.R. 2. This revision was effective February 1, 1949. Appendix A of Part II of Title 47 of C.F.R. consists of a list of “Laws, Treaties, Agreements and Arrangements relating to Radio.” By Executive Order 9863, dated May 31, 1947, the President designated the International Telecommunication Union as entitled to enjoy certain privileges, exemptions, and immunities under the International Organizations Immunities Act of December 29, 1945 (59 Stat. 669). 12 F.R. 3559.
Department of State, Participation of the United States Government in International Conferences, 1945–1946, Pub. 2817, pp. 40-41 (1947).
For discussion of the conferences in which the United States participated, see ibid., July 1, 1945–June 30, 1946, Pub. 2817, pp. 40-41 (1947); ibid., July 1, 1946–June 30, 1947, Pub. 3031, pp. 169, 184 (1948); ibid., July 1, 1947–June 30, 1948, Pub. 3443, pp. 148, 159, 317 (1949); and successive issues of the same series. On December 4, 1945, an agreement relating to telecommunication was concluded under authority of Article 13 of the Madrid convention. The agreement was signed by the United States and certain Governments of the British Commonwealth. It came into force March 9, 1946, as to the United States March 15, 1946. 60 Stat. 1636, TIAS 1518.
Codding, op. cit., p. 206.
Ibid., p. 207.
The delegate was sent under the executive authority of the Supreme Commander. Only the United States delegation on the Far Eastern Commission believed the Supreme Commander had correctly acted within his discretionary authority. Blakeslee, George, The Far Eastern Commission, 1945–1952, published by the Department of State as Pub. 5138, Far Eastern Series 60, p. 88 (1953).
Effective January 1, 1949 with exception noted in Article 47 of the radio regulations. 63 Stat. (pt. 2) 1399, TIAS 1901. The United States did not sign all of the radio regulations. The revised telegraph regulations were signed at Paris August 5, 1949, and entered into force with regard to the United States on September 26, 1950. TIAS 2175. By an agreement approved by the General Assembly November 15, 1947, effective January 1, 1949, the International Telecommunication Union was brought into relationship with the United Nations as a specialized agency. Final Acts of the International Telecommunication and Radio Conferences, Atlantic City, 1947, “International Telecommunication Convention,” p. 108-E.
63 Stat. (pt. 2) 1399, 2151. Codding, in reviewing some of the disputes which arose during the Atlantic City conferences, gives several quotations from delegates indicating that the Madrid convention was still regarded as in force. Codding, op. cit., pp. 205-35, passim.
The date on which the instrument of accession was deposited with the General Secretariat was January 24, 1949. International Telecommunication Union, Annual Report, 1953, p. 25.
Far Eastern Commission Minutes, April 14, 1949, p. 3, quoted in Blakeslee, op. cit., p. 93.
Blakeslee, op. cit., p. 94; Codding, op. cit., p. 414.
Codding, op. cit., p. 415.
However, the delegates from France, Great Britain, and the United States to the radio conference submitted detailed statements of the frequency requirements for their respective zones. Also, in the closing hours of the conference a letter was received from the “Allied Control Authority for Germany” in which further lists of requirements for all four zones were contained. Codding, op. cit., p. 349.
Department of State, Participation of the United States Government in International Conferences, 1948–1949, Pub. 3853, p. 165 (1950). Representatives from the three western zones of Germany also took part in the 15th Plenary Assembly of the International Telephone Consultative Committee meeting in Paris in July, 1949. International Telecommunication Union, Report of the Administrative Council to the Plenipotentiary Conference of Buenos Aires, 1952, on the Activities of the I.T.U. from 1948 to 1952, p. 16 (1952).
Department of State, Participation of the United States Government in International Conferences, 1950–1951, Pub. 4571, p. 152 (1952).
This authorization was given by the Council at its Sixth Session, which was held April 16–May 26, 1951, at Geneva. Ibid., p. 148.
International Telecommunication Union, Annual Report, 1953, p. 26.
The Federal Republic had already been admitted on the basis of the special Protocol. The East German Government was informed that it might be possible to become a member through the procedure described in Article 1 of the Atlantic City convention, i.e., the process of referendum. Department of State, Participation of the United States Government in International Conferences, 1951–1952, Pub. 4900, p. 189 (1953). At the time of signing the International Telecommunication Convention of Buenos Aires, Albania, Bulgaria, Hungary, Poland, Rumania, and Czechoslovakia declared that the German Democratic Republic had acceded to the Atlantic City convention and was therefore a full member of the Union. International Telecommunication Union, International Telecommunication Convention, Final Protocol, Buenos Aires, 1952 (1953).
Department of State, Participation of the United States Government in International Conferences, 1952-1953, Pub. 5534, p. 98 (1954).
International Telecommunication Union, International Telecommunication Convention, Resolution No. 12, Buenos Aires, 1952 (1953).
Ibid.
Signed March 20, 1934, effective January 1, 1935. 49 Stat. (pt. 2) 2741. Post Office Print. 174 L.N.T.S. 171.
Signed May 28, 1939, effective July 1, 1940. 54 Stat. (pt. 2) 2049. Post Office Print. It should be observed that this convention became effective at a time when many of the signatories were at war with one another.
Postal treaties and conventions are not submitted for Senate approval. The Act of June 12, 1934, provided that “the Postmaster General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions,” and that if his interpretations and constructions of the provision of any treaty or convention are approved by the President, they are “final and conclusive upon all officers of the United States.” 48 Stat. 943.
Also, Article 57 of the same convention exempts Postal Administrations from all responsibility for loss of registered correspondence owing to a force majeure. Further, see Article 80.
“Postal and Counter Work During Wartime,” 7 L’Union Postale 162 (1946).
For discussion of the effects of World War I on the Universal Postal Union Conventions, see Clark, Keith, International Communications, pp. 50-53 (1931); Mance, Sir Osborne, International Road Transport, Postal, Electricity and Miscellaneous Questions, pp. 127-30 (1947); McNair, Arnold, The Law of Treaties, pp. 535-36 (1938); Harvard Research, p. 1199; Tobin, pp. 74, 180; Ränk, pp. 184-88.
Bulgaria, August 2 and 26, 1922, 42 Stat. 2205; Germany, February 6 and March 16, 1939, 53 Stat. 2183; Hungary, July 3 and August 16, 1928, 45 Stat. 2677; Italy, October 11, 1929, 46 Stat. 2397; Japan, June 1 and 20, 1938, 53 Stat. 1877; Rumania, August 10 and March 12, 1937, 50 Stat. 1630.
Bulgaria, April 3, 1922; Germany, September 10 and October 6, 1923; Hungary, April 3 and May 6, 1922; Italy, March 31 and April 20, 1877, 20 Stat. 683; Japan, April 18 and May 23, 1885; Rumania, October 18 and November 17, 1932. As indicated, only the agreement with Italy was printed.
Signed January 5, 1932, 47 Stat. 1966.
Signed January 15, 1931. Not printed.
The agreements were revived with the indicated country by a note of the date stated: Bulgaria, March 8, 1948; Hungary, March 9, 1948; Italy, February 6, 1948; Japan, April 22, 1953; Rumania, February 26, 1948. The revival notes to the Balkan countries and Italy may be found in Department of State, United States Treaty Developments, Appendix III (A), pp. 2, 5, 8, 12. The revival note to Japan is printed in 28 D.S. Bull. 722 (1953). The Department of State included the agreements with Germany in its publication Treaties in Force, 1955, Pub. 6364 (1956). Thus, the Department regards the agreements as in force with respect to the Federal Republic of Germany. See infra, p. 340, n. 1.
These agreements were as follows: A separate Protocol to the April 3, 1922, money order agreement with Bulgaria, signed September 6, 1923, effective October 1, 1923. Not printed. Additional Convention to the convention relating to exchange of money orders of 1877 with Italy, signed August 9 and 24, 1880, 21 Stat. 788. Three agreements with Japan: Additional Convention to the convention for the exchange of money orders, signed May 25 and June 22, 1888, effective October 1, 1888; Additional Articles to the convention for the exchange of money orders, signed April 5 and May 4, 1889, effective June 4, 1889; Additional Convention for the exchange of postal money orders, signed May 7 and June 1, 1904, effective July 1, 1904. None of these three agreements with Japan were printed. These agreements with Bulgaria, Italy, and Japan were revived by the same notes as indicated in the preceding footnote, and the notifications of their revival may therefore be found in the same sources.
2 D.S. Bull. 720 (1940).
For the lists of countries and texts of the Post Office Department statements for all these countries, see ibid., pp. 720-21. The list included certain neutrals and some countries which subsequently fought in the war on the Allied side. Great Britain was not included, although that country applied a system of “mailcerts” to parcels mailed from the United States to various European and African countries. See correspondence between the American Counselor of the Embassy in London (Johnson) to the Secretary of State (Hull), quoted in United States Naval War College, International Law Documents, 1944–1945, p. 87; see also 7 Hackworth 216.
Department of State, Treaties in Force, 1941, pp. 220-22, note “a” (1944).
40 Stat. 412, Section 3.
40 Stat. 412, Section 3 (c). Subsection (d) gave the President authority to censor all communications to all foreign countries when he “shall deem that the public safety demands it.” In practice some communications of a purely personal character were transmitted to and from enemy countries through the facilities of the Red Cross. Information on the prohibition against the transmission of messages to or from enemy territory may be found in 8 D.S. Bull. 296 (1943).
United States v. Leiner, 143 F.2d 298 (1944); United States v. Krepper, 159 F.2d 958, cert. den. 330 U.S. 824 (1946); Welsh v. United States, 267 F. 819, mandamus den. 254 U.S. 607(1920).
Department of State, International Agencies in which the United States Participates, Pub. 2699, p. 301 (1946).
No reports were issued for 1945 or 1946.
For an accounting of the legal actions taken in connection with the convention prior to the entrance of the United States into the war, see: 1 D.S. Bull. 756 (1939); 2 D.S. Bull. 149, 220, 315, 399, 425, 481, 525 (1940); 3 D.S. Bull. 27, 62, 272, 403 (1940); 4 D.S. Bull. 30, 80, 769 (1941); 5 D.S. Bull. 188, 287 (1941); 6 D.S. Bull. 110 (1942). Action taken in respect to the 1934 convention is reported in 1 D.S. Bull. 390, 644-45 (1939); 4 D.S. Bull. 676 (1941).
Journal Officiel, January 25, 1947, p. 363, cited in Ränk, p. 189.
7 D.S. Bull. 693(1942).
7 D.S. Bull. 888 (1942).
6 D.S. Bull. 423 (1942).
6 D.S. Bull. 528 (1942).
8 D.S. Bull. 10 (1943).
L’Union Postale, 1946, p. 104. 5 14 D.S. Bull. 350 (1946).
15 D.S. Bull. 552 (1946).
Ibid.
16 D.S. Bull. 304 (1947).
Supra, p. 269.
Signed September 25, 1946, effective January 1, 1947. 61 Stat. (pt. 4) 3479, TIAS 1680.
See also Articles 2 (2), 25 through 29, 112, 114, 115.
Parcel Post Service, signed September 25, 1946, effective January 1, 1947. 61 Stat. (pt. 4) 3524, TIAS 1681. See the Preamble and Articles 4, 6, 13. Exchange of Money Orders, signed September 25, 1946, effective January 1, 1947. 61 Stat. (pt. 4) 3540, TIAS 1682. See the Preamble and Article 22. The agenda prepared by the delegation to the Rio de Janeiro conference from the United States reflected the belief that the United States regarded the Universal Postal Conventions as in full force. Department of State, Participation of the United States Government in International Conferences, 1946–1947, Pub. 3031, p. 168 (1948).
Letter dated January 7, 1948, from J. Mervyn Jones, British Foreign Office, to Dr. Rank. Rank, p. 346.
Department of State, International Agencies in which the United States Participates, Pub. 2699, pp. 301-02 (1946).
Department of State, Participation of the United States Government in International Conferences, 1946–1947, Pub. 3031, p. 183 (1948). The new convention was signed July 5, 1947. 62 Stat. (pt. 3) 3157, TIAS 1850. The names of all the former enemy countries were included in the Preamble as members of the Union. By an agreement approved by the General Assembly on November 15, 1947, effective July 1, 1948, the Universal Postal Union was brought into relationship with the United Nations as a specialized agency. The agreement is printed in TIAS 1850, p. 194.
Department of State, United States Treaty Developments, pages relating to Universal Postal Union Convention of July 5, 1947, sheets dated December, 1950, pp. 1-3. As of November 1, 1953, the Federal Republic of Germany was still not a party to the convention. Central Office of Information, London, Guide to International Organizations, Part I (12388-159), sheet of November 1953.
The convention was signed July 11, 1952, effective July 1, 1953. 7 UST 1118, TIAS 2800.
Department of State, Participation of the United States Government in International Conferences, 1951–1952, Pub. 4900, p. 189 (1953).
Effective January 14, 1889. 25 Stat. 1465, II Treaties (Malloy) 1959.
Effective January 14, 1889. 25 Stat. 1469, II Treaties (Malloy) 1962.
Act of October 6, 1917. 40 Stat. 412, Section 3.
8D.S. Bull. 296(1943).
TIAS 3121. 31 D.S. Bull. 791 (1954).
Mention in passing should be made of the treaty for the production and marketing of sugar, signed September 1, 1937, ratified by the United States April 4, 1938, but not proclaimed by the President until April 20, 1945. Since not all the signatories ratified immediately, Hungary, acting under Paragraph 4 of the Protocol, brought the convention into force as of September 1, 1937, between itself and five other states making declarations of intent to ratify. (Haiti, Cuba, Poland, the Netherlands, and Belgium). On July 22, 1942, the United States and a number of Allied and neutral states signed a Protocol which brought the 1937 treaty into force as of September 1, 1937, as between themselves. 69 Stat. 949. The 1942 agreement was extended by another signed on August 31, 1944. 59 Stat. 951. All three agreements were proclaimed April 20, 1945, effective as of September 1, 1937. Thus, the 1937 agreement was effective as of September 1, 1937, for two groups of states, with some overlapping (Haiti, Cuba, the Netherlands, and Belgium). Since the convention was not actually in force in respect to the United States at the outbreak of World War II, it will not be discussed in this study.
Signed May 20, 1875, effective January 1, 1876, as to the United States August 2, 1878. 20 Stat. 709, II Treaties (Malloy) 1924.
Signed October 6, 1921, effective February 10, 1923, as to the United States October 24, 1923. 43 Stat. (pt. 2) 1686, III Treaties (Redmond) 3088, IV Treaties (Trenwith) 4868.
Similarly, the meeting scheduled for 1919 was not held until 1921 because of the unsettled post-World War I conditions.
Department of State, International Agencies in which the United States Participates, Pub. 2699, p. 110 (1946).
From 1945 on, regular appropriations have been made annually. During the war the budget of the Bureau was approximately $49,000 per annum. Since the war the budget has approached $57,170 per annum, of which the United States pays about $7,350 through the Department of State budget. This compares with $4,342.50, which was the United States appropriation for the Bureau for the fiscal year ending June 30, 1941 (54 Stat. 187). The Bureau drew a little money during the war from interest on investments and fees charged for making calibrations.
Department of State, International Organizations in which the United States Participates, Pub. 3655, pp. 119-20 (1950).
United Nations Doc. E/1314.
United Nations Doc. E/1687.
Signed June 7, 1905, effective July 19, 1906, as to the United States August 13, 1906. 35 Stat. (pt. 2) 1918, II Treaties (Malloy) 2140. Amended by Protocol signed April 21, 1926, effective January 1, 1927, as to the United States August 25, 1934. 49 Stat. (pt. 2) 3350, IV Treaties (Trenwith) 4959.
Hobson, Ashley, International Institute of Agriculture, p. 73 (1931).
Tobin, p. 184.
Hearings on Third Deficiency Appropriation Bill, 1946, before the Senate Committee on Appropriations, 79th Cong., 2d Sess., vol. 44, p. 96. For a full discussion of the activities of the Institute during the war see its The Work of the International Institute of Agriculture during the War (1940–1945).
For a complete list of the publications of the Institute see Food and Agriculture Organization of the United Nations, Temporary Bureau, List of Publications (October 1947).
According to testimony of Mr. J. P. Hendrick. Hearings, op. cit., p. 95.
Ibid., p. 98. Also in the record were printed three letters from United States military personnel thanking the Institute for its aid in the Allied war effort. Ibid., p. 97.
No enemy states participated in the conference. Upon the invitation of the United States Government, the Danish Minister at Washington attended in his personal capacity. Department of State, Participation of the United States Government in International Conferences, July 1, 1941–June 30, 1945, Pub. 2665, p. 58 (1946).
54 Stat. 187.
Hearings, op. cit., p. 99.
This statement was made by Mr. J. P. Hendrick, Acting Associate Chief, Division of International Organizational Affairs, Department of State. Ibid., p. 98.
60 Stat. 621.
59 Stat. 529.
The conference was held at Quebec, October 16–November 1, 1945. Department of State, Participation of the United States Government in International Conferences, July 1, 1945–June 30, 1946, Pub. 2817, p. 3 (1947).
Ibid., p. 14. Before the war the Permanent Committee met quarterly.
In 1946 the Department of State provided the Senate Committee on Appropriations with a list of members of the Institute. All six enemy states were included in the list. Hearings, op. cit., p. 93.
Department of State, Participation of the United States Government in International Conferences, July 1, 1945–June 30, 1946, Pub. 2817, p. 14 (1947).
Effective January 28, 1948. 62 Stat. (pt. 2) 1581, TIAS 1719.
Department of State, United States Treaty Developments, pages relating to International Institute of Agriculture convention of June 7, 1905, sheets dated December, 1950, p. 5. When Rumania signed, it mentioned that the Rumanian Government favored the maintenance of the Institute as the European section of the Food and Agriculture Organization at Rome. Ibid.
Ibid.
Even though the Preamble used the words “parties to the Convention” of 1905, Haiti signed the Protocol. Haiti had withdrawn from the Institute by a letter dated June 16, 1942 (reflecting, incidentally, the belief of that government that the convention was in force during the war), addressed to the Director of the Institute at Rome. Ibid., p. 2, n. 4.
Department of State, Participation of the United States in International Conferences, July 1, 1946–June 30, 1947, Pub. 3031, p. 91 (1948). The preceding General Assembly meeting was held in Rome, May 20-24, 1940, with 50 countries present. The meeting which had been scheduled for May, 1942, was canceled. Before the war the General Assembly met biannually.
Department of State, Participation of the United States Government in International Conferences, July 1, 1947–June 30, 1948, Pub. 3443, p. 100 (1949).
62 Stat. 1581, 1583, n. 1. At no place in the Protocol of 1946 is the termination of the amending Protocol of 1926 mentioned; but it may be presumed that with the termination of the principal instrument it likewise came to an end.
Leiss and Dennett, European Peace Treaties after World War II, p. 113 (1954). No mention of the convention of 1905 appears in the peace treaty with Japan either.
Ibid.
Signed September 24, 1931, effective January 16, 1935. 49 Stat. (pt. 2) 3079, IV Treaties (Trenwith) 5372.
Signed June 8, 1937, effective May 7, 1938. 52 Stat. 1460, IV Treaties (Trenwith) 5573.
Signed June 24, 1938, effective December 30, 1938, as to the United States, March 30, 1939. 53 Stat. (pt. 3) 1794, TS 944, 196 L.N.T.S. 131.
Department of State, Participation of the United States Government in International Conferences, July 1, 1941–June 30, 1945, Pub. 2665, p. 99 (1947).
For text see Sen. Exec. D, 78th Cong., 2d Sess. The United States signed but did not ratify this agreement; consequently, the United States was not a party to this protocol. The agreement did come into force on October 5, 1945, for five states.
Effective October 5, 1945, for all signatories except the United States, which signed subject to ratification and did not subsequently ratify.
Department of State, United States Treaty Developments, pages relating to whaling agreement of June 8, 1937, sheets dated December, 1949, pp. 1-4.
E.g., in England Hurst, McNair and Fitzmaurice — all of whom have served as legal officers of the Foreign Office — hold such views, although Fitzmaurice excludes certain provisions of commercial treaties. Hurst has stated: “The whole class of commercial treaties may, therefore, safely be considered as treaties which the parties intended not to survive the outbreak of war between them unless they used language which made a contrary intention apparent.” Hurst, p. 43. McNair asserts, “The view of the United Kingdom Government as to the effect of war upon a Commercial Treaty is that a pre-war Commercial Treaty between two opposing belligerents is ipso facto abrogated by the outbreak of war, unless it can be reasonably inferred from any stipulations contained in it that the parties intended it to revive after a war between them.” Law of Treaties, p. 365 (1938). To substantiate his view he refers to a Report by the Queen’s Advocate (Dr. J. D. Harding) dated January 17, 1859: “Commercial Treaties are abrogated by War, and not revived by Peace without express stipulation.” Ibid. McNair states further: “In view of the vicissitudes of trade and industry there is a probability, which now may well amount to a prima facie presumption, that the contracting parties do not intend to enter into obligations which will remain binding for all time.” Ibid. Fitzmaurice, “The Juridical Clauses of the Peace Treaties,” 73 Hague Recueil, pp. 314-15, places commercial treaty provisions into two categories: Those with regard to duties, tariffs, taxes and dues and those with regard to “rights of access and matters of establishment” (i.e., acquiring, holding, transferring property in each other’s territory — intended to create permanent rights). Those of the first category are regarded as coming to an end altogether in the event of war. Those of the second category are regarded by Fitzmaurice as continuing in force during war “although their immediate operation may be suspended” and as automatically regaining their full effect at the end of the war.
The official position of the Federal Republic of Germany (as of early 1953) as told to Rank by Dr. Ellinor von Puttkamer, Bonn, Department for Foreign Affairs, is that multilateral commercial conventions are considered as still in force, such as the International Sugar Convention of March 5, 1902, together with its Additional Protocol. All bilateral commercial conventions are abrogated with some few exceptions. As examples of the abrogated conventions the German-Greek Convention concerning the Amendment of the Convention of Commerce and Shipping of March 24, 1928, and the German-Dutch Convention concerning the Exchange of Goods, March 25, 1939, are given. The exceptions are of two types — those concerning taxes, revenues, and finance, are still in force but may require revision to meet post-war conditions and those establishing reciprocal privileges for citizens to establish themselves in the other country, to buy and inherit property, to conduct their affairs there, and to engage in certain occupations continue in force without revision. Rank, p. 354. In World War I the allies took the position that commercial treaties to which only belligerents were parties terminated with the outbreak of war and did not revive automatically at peace. See confirmation of the idea in Recommendations of the Economic Conference of the Allies at Paris on June 14–17, 1916, Parliamentary Papers, 1916, Cmd. 8271. McNair says that the British Government was advised to the same effect in 1917. McNair, Arnold, The Law of Treaties, p. 545 (1938).
E.g., the German Reichsgericht held in 1925 (S.E. v. G. and G.) that the treaty between Germany and Russia of February 10, 1894, with the additional convention of July 15, 1904, was “a treaty of commerce, and like all other treaties of commerce with enemy powers it lost its validity with the outbreak of war.” Therefore, the court regarded the treaty as terminated by World War I, even though the treaty provision involved in the case was one permitting the subjects of one country to acquire immovable property in the territories of the other contracting party. 111 Entscheidungen des Reichsgerichts in Zivilsachen, p. 40; 36 Zeitschrift für internationales Recht 408 (1926); Annual Digest, 1925–1926, p. 438. See also, Annual Digest, 1919–1922, pp. 242-43. For a list of German cases decided during World War I, some of which upheld the validity of the treaties involved while others did not, see Rank, p. 531, note 236. Generally, the German courts in World War II have followed the rule that bilateral treaties between belligerents are terminated. See 4 Neue Juristische Wochenschrift 38 (1951) and Rank, pp. 532-33 for World War II cases. For recent summaries of the French jurisprudence, see ibid., pp. 523-28; Scelle, “The Incidence of a State of War on the Law of Contract,” 77 Journal du droit international 27, 28-42 (1950); A. de LaPradelle, “The Effect of War on Private Treaties,” 2 International Law Q. 555, 566-574 (1948); and supra, p. 50. For Dutch jurisprudence, see Rank, 528-31. Apparently, the English courts have not as yet been confronted with a case involving the effect of war on commercial treaties.
For a critique of their views on this matter, see John Bassett Moore’s remarks in “Effects of War on Commercial Intercourse,” in Meares, Iredell, Trading with the Enemy Act, Annotated, pp. 445-70 (1924), where Moore says in part that if they had lived through the intense fighting of World War I “they would have seen their theories discredited and have perceived the emptiness of the supposition that, while nations are engaged in an armed struggle, their inhabitants may be commercially at peace.”
E.g., Fiore, Pasquale, International Law Codified (Borchard’s translation, 1918), sect. 1433; Funck-Bentano et Sorel, Précis du Droit des Gens, 3d ed., 247 (1900).
E.g., Hershey, Amos, Essentials of Public International Law and Organization, rev. ed., p. 567 (1927); 29 Mich. L. Rev. 947 (1931); 44 Harv. L. Rev. 299 (1930); 26 A.J.I.L. 582 (1932); Castel, 51 Mich. L. Rev. 566, 571 (1953).
Techt v. Hughes, 229 N.Y. 222, 246, 128 N.E. 185, 193 (1920).
Rights and permissions
Copyright information
© 1958 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
McIntyre, S.H. (1958). Economic Treaties in Force with Enemy States at the Outbreak of World War II. In: Legal Effect of World War II on Treaties of the United States. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9265-1_5
Download citation
DOI: https://doi.org/10.1007/978-94-011-9265-1_5
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-011-8522-6
Online ISBN: 978-94-011-9265-1
eBook Packages: Springer Book Archive