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Provisions in Peace Treaties

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Legal Effect of World War II on Treaties of the United States

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Abstract

At the end of a war the lack of certainty as to the status of prewar treaties has led to the inclusion in peace treaties of provisions stipulating for the “restoration,” “maintenance” “confirmation” “reestablishment” “retention in force,” “revival,” or “abrogation” of the agreements.1 The language used and intent of the parties is often so ambiguous that it is impossible to learn whether the parties created a new contractual relationship or merely continued the old. The peace treaties to which the United States was a party usually made provision for the prewar agreements, but there has been no consistency as to wording or apparently as to intent.

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References

  1. Extensive lists and some discussion of such provisions in peace treaties appear in 2 Hyde 1553-55; Baker and McKernan, Selected Topics on the Laws of Warfare, pp. 243-44, 258-59 (1919); Crandall, Teaties, Their Making and Enforcement, 2d ed., p. 442, n. 65 (1919); Fauchille, Traité de droit international Public, 8th ed., vol. 2, sect. 1049 (2), (1921); Phillipson, Termination of War and Treaties of Peace, pp. 255-64 (1916).

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  2. Supra, p. 28.

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  3. Except for the additional article contained in the 1831 treaty.

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  4. Wharton, Francis, Digest of the International Law of the United States, 2d ed., Vol. 2, p. 44 (1887). Similarly, on July 12, 1845, Secretary of State Buchanan wrote to Mr. Pakenham, “The general rule of international law is that war terminates all subsisting treaties between the belligerent states.” Ibid.

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  5. Of 1839 (8 Stat. 526, I Treaties [Malloy] 1101) and of 1843 (8 Stat. 578, I Treaties [Malloy] 1105). Actually, by the Act of August 10, 1846 (9 Stat. 94) the United States had already made arrangements for paying the claims of its own citizens from its own funds. The claims of Mexican citizens were extinguished by the war and were not revived. See Moore, 2 International Arbitrations 1249, n. 1.

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  6. Act of March 3, 1891, ch. 538, 1 Supp. Rev. Stat., 2d ed., p. 913, provided that the Court of Claims shall have jurisdiction, among other cases, of: “First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe, or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for.”

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  7. 10 Stat. 1018, 1119.

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  8. 29 Ct. C1. 62(1894).

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  9. Ibid., at p. 67, 68. Also, the court interpreted the statute as requiring that a claimant be an American citizen at the time the depredation occurred. Since the owners of the mining company were not citizens of the United States at the time of the attacks on their property, their claim was disallowed on this basis as well as on the ground that the tribe was not in amity with the United States.

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  10. 168 U.S. 703, 18 S. Ct. 949, 42 L.Ed. 1211, 33 Ct. C1. 501 (1897).

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  11. Signed December 10, 1898, effective April 11, 1899. 30 Stat. 1754, II Treaties (Malloy) 1690.

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  12. For. Rel., 1898, p. 774; 5 Moore, pp. 376-77.

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  13. Similar suggestions with regard to prewar stipulations on extradition, trademarks, and copyrights were also made by the American commissioners and rejected by the Spanish. Lenoir, James J., “Effect of War on Bilateral Treaties,” 34 Georgetown L. J. 129, 147 (1946).

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  14. Exec. Doc. B, 55th Cong. 2d sess., pt. 2, p. 254; Sen. Doc. 62, 55th Cong., 3d sess., pt. 1; 5 Moore 377.

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  15. Signed at Madrid July 3, 1902, effective April 14, 1903. T.S. 422; II Treaties (Malloy) 1701; 33 Stat. 2105.

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  16. Article 29. “All treaties, agreements, conventions, and contracts between the United States and Spain prior to the treaty of Paris shall be expressly abrogated and annulled,” except the 1834 claims convention “which is continued in force by the present convention.” Since Spain and the United States were unable to agree on the status of the prewar treaties, this provision was accepted without further clarification of the status of the treaties from the outbreak of the war until this treaty of 1902 was signed. The language of Article 29 would appear to indicate, however, that the provision came closer to the American attitude than the Spanish attitude; the provision appears to regard the treaties as surviving until terminated by Article 29 itself. The provisions of the post-World War II peace treaties in relation to the consequences of non-revival are more like Article 29 than they are like Article 289 of the Treaty of Versailles (to be discussed below). Infra, pp. 309 ff.

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  17. Under this convention Spain was obligated to make an annual payment of $28,500. In 1898 the payment was not made to the United States, but in December 1899 Spain paid her obligation for both 1898 and 1899 with a note stating that the obligation was suspended by the war but was once again binding upon that government. For a thorough and interesting discussion of the effect of war on the 1834 convention, see Moore, “The Effect of War on Public Debts,” I Col. L. Rev. 209 (1901). During the Crimean War Great Britain continued to pay to Russia interest on the Russo-Dutch loan in accordance with a convention of November 10, 1831 while the war was actually in progress.

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  18. 6 Puerto Rico Fed. Rep. 665 (1914).

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  19. Ibid., at p. 670.

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  20. Signed October 27, 1795. 8 Stat. 138, 18 Stat. (pt. 2) 704, II Treaties (Malloy) 1640, II Treaties (Malloy) 1649.

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  21. Article 11 permitted Spanish subjects to inherit real property in the United States, sell the property within a reasonable time, and withdraw the proceeds. Otherwise, nothing was said about holding real property.

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  22. Lawrence, T.J., The Principles of International Law, p. 313 (1898).

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  23. Ibid.

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  24. By exchange of notes signed January 29 and November 8 and 26, 1902, II Treaties (Malloy) 1710, the copyright agreement of 1895 (T.S. 342-A) was restored to force. The exchange of notes reviving the agreement was only necessary to put the treaty in force once again in Spain, for in the United States the privileges of reciprocal registration of copyrights were immediately accorded to Spanish subjects at the time of the peace proclamation. The proclamation of the President of July 10, 1895, which gave effect to the 1895 copyright agreement, was considered applicable again with the return of peace and no new proclamation was made. Supra, p. 216 f.

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  25. Even during the war the Spanish Government recognized the validity of the Geneva Convention of 1864. Article 10 of the Royal Order of April 24, Madrid, For. Rels., 1898, p. 777, referred to the fact that Spain was still bound by this convention to which both the United States and Spain were parties. Article 8 of the same Order was to the same effect.

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  26. Mr. Storer, American Minister at Madrid, to Mr. Hay, Secretary of State, August 21, 1900. Crandall, Samuel, Treaties, Their Making and Enforcement, 2d ed., pp. 450-51 (1916).

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  27. Signed August 25, 1921. 42 Stat. 1939.

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  28. Similarly, the United States got the benefits of the Treaties of Saint Germain and Trianon when it concluded treaties restoring friendly relations with Austria, signed August 24, 1921, 42 Stat. 1946, III Treaties (Redmond) 2493, and with Hungary, signed August 29, 1921, 42 Stat. 1951, III Treaties (Redmond) 2696.

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  29. David Hunter Miller, Technical Adviser to the American Commission, stated that he did not know who was the author of the following provision, but that it was to be included in the treaties with Austria, Hungary, and Germany: “All international treaties.,agreements and conventions stipulating for permanent rights and making general international arrangements, or aiming to set up a permanent state of things, shall remain in force.” Then the proposed article gave as examples many non-political conventions. 8 Miller, My Diary 318, doc. 784.

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  30. The comparable clauses in the other treaties were Trianon (Article 217 et seq.), Sèvres (Article 269 et seq.), Neuilly (Article 167 et seq.), Saint-Germain (Article 234 et seq.), Lausanne (Article 99 et seq.).

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  31. For. Rel., 1919, Paris Peace Conf., VI, 871. Nielsen, Assistant Technical Adviser to the American Commission at Paris, said in a memorandum that “if it is deemed appropriate to make any concessions it would seem that the German suggestions would be acceptable in principle, at least so far as concerns the Government of the United States, because the effect of it would be, if properly worded treaty stipulations along the lines of these suggestions should be framed, to restore the pre-war status of the belligerent countries with regard to multilateral conventions.” 9 Miller, My Diary 466, doc. 1005.

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  32. For almost all the provisions the word “apply” was used. An exception was Article 99 of the Treaty of Lausanne, which provided that certain non-political treaties were to “enter again into force.” For discussion of the actual wording and a comparison between the English and French versions, see Tobin, pp. 139-41.

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  33. After the war the German Reichsgericht and an international tribunal held that some non-political multilateral treaties ceased to have effect until revived. Decision of the Reichsgericht of November 14, 1923, 107 Entscheidungen des Reichsgerichts in Zivilsachen 282, and decisions of December 15, 1923, Fontes Juris Gentium, decisions of the German Supreme Court, p. 713; Annual Digest, 1923–24, p. 410. Ottoman Debt Arbitration, April 18, 1925, Annual Digest, 1925–26, Case no. 57, pp. 78-9.

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  34. For. Rel., 1919, Paris Peace Conf., XIII, 565. See also letter of Brockdorff-Rantzau, President of the German peace delegation, to the President of the Peace Conference, May 29, 1919, ibid., pp. 39-44; and the answer by Clemenceau, ibid., p. 51. The semi-official Das Diktat von Versailles, compiled by Fritz Berber in 1939, stated that Part X (which includes the revival provisions) of the Treaty of Versailles was abrogated by negotiation or “legal means of another sort.”

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  35. 9 Miller, My Diary 469, doc. 1005.

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  36. E.g., Articles 135 (Siam), 139 (Liberia), 141 (Morocco), 148 (Egypt), 128, and 31.

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  37. 31 Stat. 1878, II Treaties (Malloy) 1595.

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  38. Article J in the Economic Commission draft. 19 Miller, My Diary 412.

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  39. 6 Miller, My Diary 379, doc. 503.

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  40. Hyde believes that the Treaty manifested on the part of the Allies “no sense of legal obligation… to heed any guiding principle indicative of an effect of war upon treaties. ” 2 Hyde 1556.

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  41. Except for the Convention of December 21, 1904, regarding the exemption of hospital ships from dues and charges in ports, no conventions regulating conduct during a war were mentioned. The Convention of March 5, 1902 relating to bounties on sugar, and Protocol, the Additional Act and Declaration of August 28, 1907, and the Protocol Prolonging Union of March 17, 1912 were not mentioned. 95 Brit. & For. State Papers 6; 100 ibid. 482; 105 ibid. 392.

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  42. The status of the treaties with regard to which Germany had renounced its rights and privileges was not clear. See note 2, p. 308, supra.

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  43. Infra, p. 335.

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  44. The comparable provisions in the other peace treaties are Article 241 of St. Germain, Article 224 of Trianon, and Article 168 of Neuilly.

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  45. Thus, such countries as Bolivia, Ecuador, Peru, and Uruguay could revive treaties with Germany even though they had only broken off diplomatic relations with that country and never declared war. For the German protest against this provision, see For. Rel., 1919, Paris Peace Conf., XIII, 565. The inclusion of this provision indicates that it was not the intention of the conferees at Paris to require a state of war in order to produce the legal consequence of abrogation or suspension of the prewar treaties.

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  46. Patent Treaty of 1909 with Germany, 36 Stat. 2178, I Treaties (Malloy) 578; Extradition Convention of 1856 with Austria-Hungary revived as to both Austria and Hungary, 11 Stat. 691, I Treaties (Malloy) 36; and the Copyright Convention of 1912 with Hungary, 37 Stat. 1631, III Treaties (Redmond) 2692. Cf. supra p. 219 regarding 1892 copyright treaty revived after World War II.

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  47. For the action by five states see: Reichsgesetzblatt, 1920, II 1397 (Belgium); ibid., I, 946 (France); ibid., II, 1543 (Great Britain); ibid., p. 1544 (Greece); ibid., p. 1577 (Italy). When the British revived a money order agreement, the note stated that certain words (“German protectorate” and “German postal agencies in foreign countries”) must be considered as excised from the revived agreement since they were contrary to the Versailles Treaty. 5 L.N.T.S. 303.

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  48. For. Rel., 1919, Paris Peace Conf., XIII, 565.

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  49. Memorandum by Nielsen on German objections to treaty provisions, 4 Miller, My Diary 467, doc. 1005. Somewhat later the Allies in their answer to the objections raised by the Germans to Article 289 gave assurances that the article would not be “arbitrarily used for the purpose of splitting up bilateral treaties in such a way that only the obligations should remain on the one side and on the other side only the rights.” For. Rel., op. cit., 566.

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  50. This was the patent treaty of 1909 (note 3, p. 232, supra). The fact that the United States could not have gotten Germany to enter into such a one-sided treaty after World War I is stressed by J.C. Pennie and J.B. Brown in a memorandum prepared for the Department of State, 8 Miller, My Diary 323.

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  51. Treaties in force with Germany and the German States at the outbreak of World War I were: Treaties of extradition with Baden, signed January 30, 1857, 11 Stat. 713, 18 Stat. (pt. 2) 37, I Treaties (Malloy) 51; Bavaria, signed September 12, 1853, 10 Stat. 1022, 18 Stat. (pt. 2) 42, I Treaties (Malloy) 58; Prussia and 22 other states, signed June 16, 1852, 10 Stat. 964, 18 Stat. (pt. 2) 660, II Treaties (Malloy) 1501, extended to Lübeck February 22, 1868, II Treaties (Malloy) 1299. Treaties of property disposition and abolition of droit d’aubaine with Bavaria, signed January 21, 1845, 9 Stat. 826, 18 Stat. (pt. 2) 41, I Treaties (Malloy) 56; Hesse, signed March 26, 1844, 9 Stat. 818, 18 Stat. (pt. 2) 422, I Treaties (Malloy) 947; Saxony, signed May 14, 1845, 9 Stat. 830, 18 Stat. (pt. 2) 690, II Treaties (Malloy) 1610; Würtemburg, signed April 10, 1844, 8 Stat. 588, 18 Stat. (pt. 2) 809, II Treaties (Malloy) 1893; Brunswick and Lüneburg, signed August 21, 1854, 11 Stat. 601, 18 Stat. (pt. 2) 93, I Treaties (Malloy) 156. Treaties of commerce and navigation with Hanseatic Republics, signed December 20, 1827, 8 Stat. 366, 18 Stat. (pt. 2) 400, I Treaties (Malloy) 901; Mecklenburg-Schwerin, signed December 9, 1847, 9 Stat. 910, 18 Stat. (pt. 2) 467, I Treaties (Malloy) 1074; Oldenburg, signed March 10, 1847, 9 Stat. 868, 18 Stat, (pt. 2) 578, II Treaties (Malloy) 1308; Prussia, signed May 1, 1828, 8 Stat. 378, 18 Stat. (pt. 2) 669, II Treaties (Malloy) 1896. Naturalization treaties with Baden, signed July 19, 1868, 16 Stat. 731, 18 Stat. (pt. 2) 38, I Treaties (Malloy) 53; Bavaria, signed 15 Stat. 661, 18 Stat. (pt. 2) 44, I Treaties (Malloy) 60; Hesse, signed August 1, 1868, 16 Stat. 743, 18 Stat. (pt. 2) 423, I Treaties (Malloy) 949; Wiirtemburg, signed July 27, 1868, 16 Stat. 735, 18 Stat. (pt. 2) 811, II Treaties (Malloy) 1895; Northern German Union, signed February 22, 1868, 15 Stat. 615, 18 Stat. (pt. 2) 575, II Treaties (Malloy) 1298. Agreements with German Empire: treaty regarding Samoa, signed December 2, 1899, 31 Stat. 1878, II Treaties (Malloy) 1595; exchange of notes regarding Morocco, signed October 8, 1901, I Treaties (Malloy) 559; exchange of notes regarding China, signed December 6, 1905, I Treaties (Malloy) 560; Patent Convention, signed February 23, 1909, 36 Stat. 2178, I Treaties (Malloy) 578; Consular Convention, signed December 11, 1871, 17 Stat. 921, I Treaties (Malloy) 550; Copyright Convention, signed January 15, 1892, 27 Stat. 1022, I Treaties (Malloy) 557. List compiled from Sen. Doc. 357, 61st Cong, (by Malloy), and 6 Miller, My Diary 342-48, doc. 497.

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  52. Treaties in force with Austria-Hungary at the outbreak of World War I were: Treaties of commerce and navigation, signed August 27, 1829, 8 Stat. 398, 18 Stat, (pt. 2) 21, I Treaties (Malloy) 29; property disposition and consular jurisdiction, signed May 8, 1848, 9 Stat. 944, 18 Stat. (pt. 2) 24, I Treaties (Malloy) 33; extradition, signed July 3, 1856, 11 Stat. 691, 18 Stat. (pt. 2) 26, I Treaties (Malloy) 36; consular rights, signed July 11, 1870, 17 Stat. 821, 18 Stat. (pt. 2) 28, I Treaties (Malloy) 39; naturalization, signed September 20, 1870, 17 Stat. 833, 18 Stat. (pt. 2) 33, I Treaties (Malloy) 45; and arbitration, signed January 15, 1909, 36 Stat. 2156, I Treaties (Malloy) 49, extended by treaty signed May 6, 1914, 38 Stat. 1783, III Treaties (Redmond) 2497. The latter treaty extended the life of the earlier extradition treaty to May 28, 1919, at which time it expired. 8 Miller, My Diary 313, doc. 792, 1 ibid. 251. The list of treaties was compiled from the same sources as those in the preceding footnote.

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  53. 6 Miller, My Diary 378, doc. 503; ibid., vol. 1, pp. 168, 217; ibid., vol. 7, p. 389, doc. 672. Miller formulated the provision.

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  54. 8 Miller, My Diary 313, doc. 792; 1 ibid. 251.

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  55. 6 Miller, My Diary 346, doc. 497.

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  56. Ibid., p. 347.

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  57. E.g., when speaking of the naturalization treaties with the German states, Miller asserted that “these five naturalization treaties should be abrogated.” 6 Miller, My Diary 345, doc. 497.

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  58. The Law of Treaties, p. 548 (1938).

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  59. In a speech before the Senate on September 28, 1921, Senator Kellogg asserted, “All of these treaties are abrogated by the Versailles Treaty.” 61 Cong. Rec. 5862. The views of publicists have varied. Hurst, p. 37, n. 21: The practice of inserting clauses in treaties of peace reviving the treaties in force between the belligerents “seems meaningless unless the war had put an end to the treaties.” Borchard: “the language of Article 289 of the Treaty of Versailles to the effect that notified treaties shall ‘continue in effect’, is more consistent with temporary suspension than with 1917 abrogation.” “The Effect of War on the Treaty of 1828 with Prussia,” 26 A.J.I.L. 582, 585 (1932). (But Borchard totally ignored the rest of the language of Article 289 which would make his conclusion less tenable.) Phillipson, writing before the peace treaties were drafted: “The insertion of a clause merely renewing prior treaties does not necessarily mean that those treaties were extinguished by war.” Termination of War and Treaties of Peace, p. 255, n. 50 (1916). Comment on Article 35 of Harvard Draft Convention on the Law of Treaties: “The renewal clauses may have been inserted as a precaution in order to remove doubt and possible controversy as to the status of the treaties, without an intention of asserting the principle of automatic termination.” (p. 1203). Fenwick: “The provisions of the Treaty of Versailles in respect to the effect of the World War upon the treaties to which Germany was a party were of an exceptional character and represented rather the imposition of penalties upon the defeated state than the recognition of the legal survival of preexisting treaties.” International Law, 3d ed., p. 677 (1948). Hyde: “Arrangements con-cerning former treaties have not implied a recognition of their survival by operation of law, but simply an acknowledgement of the value of their provisions as a basis for fresh covenants.” 2 Hyde 1553. Lauterpacht: “The plan adopted in the Treaties of Peace at the end of the First World War was to regard all treaties to which two belligerents were the only parties as having been annulled by the war, but to give to the victorious Power an option to revive them upon certain conditions.” Oppenheim, L., International Law, 8th ed. by H. Lauterpacht, vol. 2, p. 304 (1955). Fauchille held that such treaties do not revive unless provided for in the peace treaty. 2 Traité de droit international Public 55 (1921).

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  60. The other language of Article 289 confirms this conclusion. Para. 8 reads: “The above regulations apply to all bilateral treaties or conventions existing between all the Allied and Associated Powers and Germany.”

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  61. Signed December 20, 1827. 8 Stat. 366; 18 Stat. (pt. 2) 400. I Treaties (Malloy) 901, 905.

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  62. 107 Cal. App.2d 799, 238 P.2d 597 (1951); 46 A.J.I.L. 573 (1952). Bertha Meyer, a national and resident of Germany, died intestate in Bremen, Germany, August 2, 1924. Some of the heirs were in Germany at the time of her death and throughout World War II. Their shares in the estate were vested by the Alien Property Custodian as enemy property. The administratrix filed her final account of the estate, which consisted of 300 shares of stock in the Honolulu Oil Corporation, on December 1, 1950. Under California law non-resident aliens could not take the property, but the Attorney General (as successor to the Custodian) claimed that the treaty of 1827 with the Hanseatic Republics was still in existence at the time Bertha Meyer died and that its provisions rendered the California law inapplicable. The court, after considering whether the treaty was compatible with World War I and the fact that the treaty had not been revived under Article 289, took the point of view of the Attorney General as its own and held the applicable provisions in force on August 2, 1924.

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  63. For the view of the British Government see statement of McNair on p. 313, supra. For similar French view see Fauchille, loc. cit. In Artukovic v. Boyle the District Court pointed out that the political departments of the United States had regarded all except designated prewar treaties as at an end, and this position was shared by “all the other governments joining in the series of treaties arising out of the Paris Conference of 1919.” 107 F. Supp. 11, 33 (1952), rev’d on appeal without discussion of this point, Artukovic v. Ivancevic, 211 F.2d 565, cert. den. 348 U.S. 818, 99 L.Ed. 645, 75 S.Ct. 28, reh. den. 348 U.S. 889, 99 L.Ed. 698, 75 S.Ct. 202 (1954).

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  64. 6 Miller, My Diary 346-47, doc. 497. He thought that a clause should be inserted in the peace treaty which would obtain equality of treatment for Americans owning property in Germany in case such a privilege was otherwise lost. The Treaty of 1828 with Prussia was comparable to the Treaty of 1827 with the Hanseatic Republics; with respect to the Treaty of 1828 Miller and J.B. Brown expressed the opinion, “This treaty to my mind should certainly be included in the general clause of an-nulment.” Ibid., p. 342.

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  65. 5 Hackworth 386. The period for revival by the United States ran for six months from November 11, 1921, the date on which the Treaty of Berlin of 1921 came into force.

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  66. 5 Hackworth 388-89. At p. 601 the court also cited Goos v. Brocks, 117 Neb. 750, 223 N.W. 13, but again ignored a similar letter written by the Department and included in Goos v. Brocks: “This government did not give notice within the period referred to in Article 289… of its intention to revive the treaty of 1828 between the United States and Prussia, and this treaty, therefore, is not regarded by the Department as now in force.”

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  67. The Assistant Legal Adviser Flournoy to Mr. Theobald Dengler, April 27, 1948, Law of Treaties, p. 214.

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  68. Secretary of State Kellogg stated in a letter of October 23, 1926, that the Treaty of 1828 was terminated by failure of the United States to revive it. Hearings on Proposed Legislation for the Return of Alien Property before Subcommittee No. I of the House Committee on the Judiciary, 69th Cong., 1st Sess., p. 623 (1923). In a letter of November 29, 1926, the Under-Secretary of State asserted: “This Government considered the matter and it was not deemed advisable to give notice within the period referred to in Article 289… of its intention to revive the Treaty of 1828 between the United States and Prussia. In the circumstances, the Department does not consider the Treaty of 1828 was effective in 1924… In connection with the foregoing considerations, the Department desires to point out that it is not passing on the effect of war upon the Treaty of 1828… but that it has confined itself to an expression of views with regard to the interpretation to be placed upon Article 289 of the Treaty of Versailles…” 40 Harv. L. Rev. 752 (1927), n. 29. In 1925 the Assistant to the Economic Adviser expressed his agreement and pointed out the desire of the Department to start with a clean record in forming postwar treaties. 19 A.J.I.L., p. 689 (1925). The German Government wished to see all or at least several bilateral treaties with the United States revived. But when Secretary of State Hughes instructed the American Ambassador at Berlin to notify Germany of his government’s desire to revive the 1909 patent agreement, he asserted that “Of treaties made with German Empire or Independent German States the United States desires to revive only the Patent Agreement.” For. Rel., vol. II, 1922, p. 242. A Presidential Proclamation of March 22, 1922, stated that the tonnage taxes discriminating against Germany were thereby removed. Such a proclamation would not have been necessary if the executive regarded the applicable prewar treaties as still in force since they contained provisions against such discrimination. Sect. 4228, R.S.; 42 Stat. 2267.

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  69. Some commentators are also in agreement with the Department. E.g., Rank, p. 519; 38 Yale L. J. 514 (1929); 26 A.J.I.L. 582, 584 (1932); 51 Mich. L. Rev. 578 (1953). The latter article is especially good.

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  70. 229 N.Y. 222, 128 N.E. 185 (1920).

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  71. 117 Neb. 750, 223 N.W. 13 (1929). Noted 27 Mich. L. Rev. 969 (1928); 77 U. of Pa. L. Rev. 1030.

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  72. 45 F.2d. 413(1930). Noted 31 Col. L. Rev. 893 (1931); 44 Harv. L. Rev. 299 (1930); 29 Mich. L. Rev. 946 (1931). The note in Col. L. Rev. is very critical.

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  73. 59 F.2d 464 (1932), cert. den., United States v. Flensburger Dampfercompagnie, 286 U.S. 564, 76 L.Ed. 1296, 52 S. Ct. 645 (1932).

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  74. The Department of State has never stated exactly when the treaty ceased to exist; thus, in this case the court has gone further than the executive branch has been willing in specifying an exact date.

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  75. Artukovic v. Boyle, Dist. Ct. S.D. Calif. (1952), 107 F. Supp. 11, 33, rev’d without mention of this point, Artukovic v. Ivancevic, 211 F.2d 565, cert. den. 348 U.S. 818, 99 L.Ed. 645, 75 S. Ct. 28, reh. den. 348 U.S. 889, 99 L.Ed. 698, 75 S. Ct. 202 (1954).

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  76. Techt v. Hughes applied the 1848 treaty with Austria so as to allow inheritance at time of death (December 27, 1917) of decedent; Goos v. Brocks applied inheritance provisions of 1827 treaty with Hanseatic Republics as of October 23, 1917; The Sophic Rickmers applied Article 2 of the treaty of 1828 with Prussia so as to prevent the imposition of discriminatory tonnage taxes in the period July 14, 1919 to November 11, 1921; Flensburger Dampfercompagnie v. U.S. applied Article 2 of the Treaty of 1828 with Prussia and Sect. 4229 of the Revised Statutes as of November 1919 so as to prevent the imposition of discrimnatory tonnage taxes.

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  77. German, French, and Italian courts have generally held that the bilateral treaties between the enemies ceased at the moment of the declaration of war. E.g., Immovables (Aliens in Germany) Case, Germany, Reichsgericht in Civil Matters, October 20, 1922, reported in Annual Digest, 1919–22, pp. 242-43 (held the commercial treaty of 1894 between Germany and Russia abrogated by the war); the Reichsgericht affirmed the point on May 23, 1925, and added that the commercial convention of 1904 was abrogated at the outbreak of war too, 36 Zeitschrift für internationales Recht, p. 408 (1926); Annual Digest, 1925-26, p. 438. But cf. S.H.H. v. L.CH. in Paris, Reichsgericht in Civil Matters, 1914, translated in part in Briggs, Herbert, The Law of Nations, 1st ed., p. 449 (1947). France did not revive the Treaty of Frankfurt under which plaintiff claimed diplomatic immunities against Germany, and French Court of Appeal of Lyons (1st Ch.) held on October 13, 1921 that the treaty ceased from the date of declaration of war, Loewengard v. Procureur of the Republic and Bonvier (Sequestrator), 49 Clunet 391 (1923); Annual Digest, 1919–22, p. 390. Court of Colmar held in 1925 a commercial convention between France and Czechoslovakia suspended by the war, 53 Clunet 604. (Etablissements Coullerez c. Maison Stein). In Societa Walter Kidde v. Societa Deutsche Werft, the Italian Court of Cassation held that the effect of Article 289 was not itself to abrogate Article 5 of the 1892 patent convention with Germany, but that the Treaty of Versailles just confirmed the rule of termination of the convention at the outbreak of war. Annual Digest, 1929–30, Case No. 281.

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  78. Of course, since Artukovic v. Boyle was decided a year later in the District Court, that decision was not available to Justice Vallée.

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  79. 120 Kan. 614, 245 P. 158 (1926); 47 A.L.R. 452; 38 Yale L. J. 514 (1929) criticized by Borchard, “The Effect of War on the Treaty of 1828 with Prussia,” 26 A.J.I.L. 582, 584 (1932). The Supreme Court of Kansas applied Article 14 of the 1828 treaty with Prussia as of October 15, 1924, so that alien heirs were permitted to sell property inherited from an American citizen who died on that date. “It seems obvious that there was no intention of absolutely wiping out all former treaties between the United States and Germany,” asserted the court without attempting to find out what the intention really was. Since the court was of the opinion that the provision involved was “not incompatible with hostilities,” it held that it “remained in force until it was replaced by a like provision” of the 1923 treaty with Germany. (p. 160 of the opinion.)

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  80. 23 F.2d. 949 (1928), reversed without discussion of the treaty point, Weedin v. Hempel, 28 F.2d 603 (1928). The court refused to permit the deportation of a German who had come to the United States from Germany on November 16, 1923. The court applied certain provisions of the treaty of 1828 with Prussia which provided that citizens of the other state shall have the same security and protection as natives of the country in which they reside, holding that those provisions survived and were effective in 1927. While it is true that the Meyer case relies upon this case as authority, in Hempel v. Weedin there is no mention whatsoever of Article 289 or of failure to revive the treaty of 1828. The court talks only in terms of the effect of war on the treaty, and in the end seems to base its decision more on the basis of “reciprocity” and “like comity” of Germany toward Americans under similar circumstances rather than the force of the provisions in the 1828 treaty. See also United States v. Hofmann, in which a Federal District Court said: “… American consuls may take depositions of citizens of their own country direct in accordance with the practice founded on Article IX of the German-American Consular Convention of December 11, 1871.” 24 F. Supp. 847, 850 (1938).

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  81. Although in the Meyer case it may be a long time, if ever, before the German heirs actually get the benefit of the property they inherited since it was vested by the Alien Property Custodian.

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  82. Hempel was given a visa to the United States by an American consular officer who knew that Hempel had once been convicted and imprisoned and later pardoned for embezzlement. In Seattle an immigration inspector ordered his deportation to Germany on the ground he had been convicted of a crime involving moral turpitude. This would have been an obvious injustice since he had made no secret of his earlier conviction when applying for the visa and the Department of State saw no reason why he should not be permitted to enter the United States anyway. See supra, note 5, p. 317.

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  83. By William Shakespeare, Act IV, Scene 1.

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  84. Peace Treaty of March 13, 1940, between Finland and USSR, signed at Moscow, is an exception for it contained no provision regarding prewar treaties. Rank, p. 533. Article 6 of the Armistice Agreement between the Soviet Union and Great Britain on the one hand and Finland on the other, signed in Moscow September 19, 1944, provided: “The effect of the Peace Treaty between the Soviet Union and Finland, concluded in Moscow on the 12th of March 1940, is restored subject to the changes which follow from the present Agreement.” Article 9: “The effect of the Agreement concerning the Aaland Islands, concluded between the Soviet Union and Finland on 11 October, 1940, is completely restored.” The peace agreements with the Federal Republic of Germany contained no provisions regarding prewar treaties. Infra, p. 338.

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  85. Signed at Singapore and entered into force the same day. N.Y. Times, January 2, 1946; 92 Cong. Rec. 1125-26.

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  86. For example, Article 20 provides: “Pending admission to any international organization set up since the 7th of December 1941, being an organization of which the United Kingdom or India is a member, the Siamese Government agree to carry out any obligations arising out of or in connection with any such organization or the instrument constituting it as may at any time be specified by the Government of the United Kingdom or the Government of India, as the case may be.”

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  87. The Moscow Declaration of November 1, 1943, called Austria “the first free country to fall a victim to Hitlerite aggression.”

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  88. The Assistant for Treaty Affairs of the Department of State, Charles I. Bevans, wrote on June 8, 1953, “With regard to the status of prewar treaties between the United States and Austria, the Department of State has considered those treaties to be still in force between the two countries.” Rank, p. 344.

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  89. N.Y. Times, May 16, 1955. United States ratification deposited July 9, 1955. TIAS 3298.

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  90. Restoration of “legal rights and interests in Austria” of the “United Nations and their nationals” as those rights existed before the war was provided for in Article 25. Under Article 28 the Allies declared “their intention not to avail themselves of the provisions of loan agreements made by the Government of Austria before March 13, 1938, in so far as those provisions granted to the creditors a right of control over the government finances of Austria.” This indicates that the debt agreements might otherwise have revived in their entirety automatically. The debts themselves were not dissolved by the war (Article 28 [3]).

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  91. Since the United States was not at war with Finland, it did not become a party to the peace treaty with that country. It is very similar to the other 1947 treaties and will not be discussed here.

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  92. Came into force September 15, 1947. Citations: Italy, 61 Stat. (pt. 2) 1245, TIAS 1648; Bulgaria, 61 Stat. (pt. 2) 1915, TIAS 1650; Hungary, 61 Stat. (pt. 2) 2065, TIAS 1651; Rumania, 61 Stat. (pt. 2) 1757, TIAS 1649. For the Senate Hearings, see Executives F,G,H, and I, 80th Cong., 1st sess. (1947). Not one word appears in the hearings on the articles relating to prewar treaties.

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  93. Italy, Article 39; Bulgaria, Article 7; Hungary, Article 9; Rumania, Article 9. The draft treaties had also referred to liquidation of the International Institute of Agriculture, but this provision was deleted by the Council of Foreign Ministers in their New York meeting. The Council added a provision in the Italian treaty recognizing the termination of the International Financial Commission in Greece. (Article 39).

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  94. Involving mandates, the Statute of Tangier, and the Congo Basin Treaties (Articles 40 through 43).

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  95. Italy, Article 18; Bulgaria, Article 6; Hungary, Article 7; Rumania, Article 7. In an otherwise excellent discussion Elmer Plischke, “Reactivation of Prewar German Treaties,” 48 A.J.I.L. 245, 249 (1954), incorrectly states that the Italian Treaty contained no such provision. Both Italy and Rumania complained of the “strange clause” by which they were required to agree to treaties to be formulated in the future. Rumania was anxious to comment on the treaty with Hungary, and Italy wanted to be treated as a co-belligerent against Germany and Austria. Doc., Conference of Paris (GEN) Doc. 3, p. 6; Ibid., Doc. 8 (P).

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  96. Annex to Record of Decisions of 6th meeting, Conference of Paris (JR) 6th meeting, quoted in Bishop, William W., International Law Cases and Materials, p. 155 (1953).

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  97. Cf.: “Furthermore, if the treaty of peace is silent as to the effect of the war on preexisting treaties, it is no more reasonable to assume that the parties thereby intended the abrogation of these treaties than it is to hold the contrary view; that is, that the treaties continue in or resume full operative effect after the cessation of hostilities.” Lenoir, p. 151.

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  98. Letter to Dr. Rank (Rank, p. 344). Dr. Rank had specifically asked for the Legal Adviser’s point of view concerning non-political multilateral treaties.

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  99. Ibid., p. 346. In making its report of the Conference of Paris the New Zealand Delegation referred to Professor Durdenevsky’s statement as “interesting and satisfactory.” The Conference of Paris, 1946, Report of the New Zealand Delegation, Department of External Affairs, Wellington (1947).

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  100. Blakeslee, George H., The Far Eastern Commission, 1945-1952, published by Department of State, pub. 5138, Far Eastern Series 60 (1953), p. 97. To gain favor for its point of view, the Department of State issued a Press Release on August 18, 1949. For other actions of the Department, see Blakeslee, pp. 99-100.

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  101. FEC Minutes, April 21, 1949, pp. 7-8; 20 D.S. Bull. 635 (1949).

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  102. March 2, 1950, FEC Minutes. Blakeslee, op. cit., p. 104; see also pp. 98, 100-101 for other delegations’ statements.

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  103. The FEC passed one policy decision on June 9, 1948 permitting very restricted travel privileges. Second Report by the Secretary-General of the FEC, Department of State pub. 3420, Far Eastern Series 29, pp. 22-23 (1949). General MacArthur had sent participants to six intergovernmental conferences even before this policy decision.

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  104. Supra, p. 272. This action was severely criticized by a majority of members of the FEC.

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  105. The following writers hold the same point of view: Orfield and Re, Cases and Materials on International Law, p. 78 (1955); Rank, p. 535; O’Connell, D. P., “Legal Aspects of the Peace Treaty with Japan,” 29 B.Y.I.L. 423 (1952); Brandon and Leriche, “Suspension of Rights and Obligations under Multipartite Conventions between Opposing Belligerents on Account of War,” 46 A.J.I.L. 532, 534 (1952). Although there was little justification for it then, the Harvard Research in 1935 took the same view in respect to the peace treaties ending World War I. See also 5 Hack-worth 387 (1943).

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  106. The parts of the treaty of peace as drafted by the United States and the United Kingdom remained unchanged at the San Francisco conference. For the draft treaty, see Department of State pub. 4330, Far Eastern Series 49, August 1951. For the formal statements made at the San Francisco conference, see Conference for the Conclusion and Signature of the Treaty of Peace with Japan, Record of Proceedings, Department of State Pub. 4392 (1951) and its supplement, Pub. 4392 A (1952). The Senate consideration of the treaty may be found in Sen. Exec. A,B,C,D, 82d Cong., 2d Sess., and Hearings with regard to the Japanese Peace Treaty…, Committee on Foreign Relations, Senate, 82d Cong., 2d Sess. (1952), but nothing in the discussions bore upon the legal effect of war on treaties.

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  107. Under Article 8 Japan renounced any rights she might have as a result of being a party to the following treaties: The Conventions of St. Germain of September 10, 1919; Montreux Convention of July 20, 1936; Article 16 of the Lausanne Treaty of July 24, 1923; Agreement of January 20, 1930 respecting the Bank for International Settlements and its Statutes. It may be significant that Japan was not required to renounce any rights she might have had as a result of being a party to the Treaty of Versailles and the Treaty of Trianon. Since the Allied Powers were at war with Germany and Hungary but not Austria, one might conclude that the Treaties of Versailles and Trianon were terminated by World War II. Thus, if they were abrogated by the war for all of the parties, there would be no need for Japan to renounce any rights under the treaties of Versailles and Trianon.

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  108. Under Article 10 Japan renounced any rights she might have as a result of being a party to the following treaty: Final Protocol of Settlement of Matters Growing out of the Boxer Uprising in China, September 7, 1901, and all annexes, notes, and documents supplementary thereto.

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  109. Article 8 (a).

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  110. E.g., Orfield and Re, loc. cit., state: “Treaties of peace often specify the legal status of treaties between those who had been at war. This is now regarded as unnecessary with respect to multilateral treaties as they are at the most suspended during war.” Rank, p. 535: “According to the modern legal view, Japan would without such a declaration, have been bound after the cessation of hostilities by all Multilateral Treaties to which she was a party before the outbreak of the war.” See also Brandon and Leriche, loc. cit.

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  111. The applicable articles were: Italy, 44; Bulgaria, 8; Hungary, 10; Rumania, 10; Japan, 7. The provisions in the Balkan peace treaties were almost the same as that of Italy: “1. Each Allied or Associated Power will notify Italy, within a period of six months from the coming into force of the present Treaty, which of its pre-war bilateral treaties with Italy it desires to keep in force or revive. Any provisions not in conformity with the present Treaty shall, however, be deleted from the above-mentioned treaties. 2. All such treaties so notified shall be registered with the Secretariat of the United Nations in accordance with Article 102 of the Charter of the United Nations. 3. All such treaties not so notified shall be regarded as abrogated.” Article 7 of the Japanese treaty: “(a) Each of the Allied Powers, within one year after the present Treaty has come into force between it and Japan, will notify Japan which of its prewar bilateral treaties or conventions with Japan it wishes to continue in force or revive, and any treaties or conventions so notified shall continue in force or be revived subject to such amendments as may be necessary to ensure conformity with the present Treaty. The treaties and conventions so notified shall be considered as having been continued in force or revived three months after the date of notification and shall be registered with the Secretariat of the United Nations. All such treaties and conventions as to which Japan is not so notified shall be regarded as abrogated. (b) Any notification made under paragraph (a) of the Article may except from the operation or revival of a treaty or convention any territory for the international relations of which the notifying Power is responsible, until three months after the date on which notice is given to Japan that such exception shall cease to apply.”

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  112. European Peace Treaties after World War II, ed. by Leiss and Dennett, pp. 113-114 (1954).

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  113. Article 37 in the draft treaty (became Article 44).

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  114. Paris Peace Conference, Doc. 13 bis (G).

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  115. Ibid., Doc. C.P. (GEN) Doc. 3, annexes, p. 7.

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  116. Article 8 of the Bulgarian treaty.

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  117. For lists of those revived under the 1947 treaties, see Department of State, United States Treaty Developments, Appendix III (A).

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  118. Eleven with Bulgaria, 12 with Hungary, 20 with Italy, 14 with Rumania, and 12 with Japan.

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  119. The revival notes to Italy and Bulgaria included two conventions with regard to exchange of money orders; the note to Japan included three with regard to exchange of money orders and one with regard to exchange of information regarding seizures of illicit drugs. None of these agreements were included in the official publication of the Department of State, Treaties in Force, 1941 (1944).

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  120. E.g., on April 22, 1953 the United States notified Japan in accordance with Article 7 (a) “that the Government of the United States of America desires to keep in force or revive the following prewar bilateral treaties and other international agreements with Japan:” (Twelve agreements on extradition, drugs, posts, leaseholds, liquor, and taxation were then listed). “The treaties and other international agreements listed above shall be considered as having continued in force or revived three months after the date of this note, i.e., July 22, 1953. It is understood, of course, that either of the two governments may propose revisions in any of the treaties or other agreements mentioned in the above list. Further, it shall be understood that any of the provisions in the treaties and other agreements listed in this notification which may be found in particular circumstances to be not in conformity with the Treaty of Peace shall be considered to have been deleted so far as the application of the Treaty of Peace is involved, but shall be regarded as being in full force and effect with respect to matters not covered by the latter treaty.” The United States then promised to register with the United Nations Secretariat those agreements “kept in force or revived.” 28 D.S. Bull. 721 (1953). The revival notes under the 1947 treaties are very similar. 18 D.S. Bull. 248-49 (1948). On one occasion the United States used the words “continue in force or revive” rather than “keep in force or revive.” Ibid., revival of agreement for protection of trademarks in Morocco with Italy.

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  121. E.g., Czechoslovakia notified Rumania and Bulgaria of the prewar treaties she desired to “keep in force.” 26 U.N.T.S. 109-13; 26 U.N.T.S. 115-08. In her notification to Italy and Hungary she described which ones “should remain in force,” again with no mention of “revival.” 26 U.N.T.S. 103-07; 26 U.N.T.S. 117-23. For the list of agreements kept in force or revived under the 1947 treaties by the United Kingdom, see 2 Int. L. Q. 535 (1948).

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  122. 67 U.N.T.S. 154; also, 67 U.N.T.S. 139; 67 U.N.T.S. 158.

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  123. Ibid.

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  124. ST/LEG/SER.A/82, p. 20. No. 2426. The same basic wording was used by the Union of South Africa in reviving treaties with Japan. ST/LEG/SER.A/79, p. 8. No. 2258. When France and Australia registered their revivals, the wording was that the treaties are considered to have been “revived.” ST/LEG/SER.A/89, p. 3. No. 2612.

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  125. On this point see the discussion of Argento v. North, 131 F. Supp. 538 (1955), supra, p. 154.

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  126. Hearings on the proposed treaty of friendship, commerce, and navigation with Italy before a subcommittee of the Committee on Foreign Relations, 80th Cong., 2d sess., p. 6 (1948). See also n. 3, p. 315, supra.

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  127. The Court of Appeal of Naples, Italy, held that a bilateral convention with France for Mutual Enforcement of Judgments was not abrogated by World War II. The court based its decision on the fact that neither party gave notice of discontinuance of the treaty under Article 44 of the 1947 peace treaty. In Re Sanges, decided January 31, 1949, Annual Digest, 1949, Case No. 131, p. 382. This holding is difficult to understand, for Article 44 required a positive act to revive a prewar treaty and an unrevived treaty was to be regarded as abrogated. For recent French decisions on treaties with Italy, see supra, p. 50, n. 1.

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  128. Supra, note 1, p. 328.

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  129. Ibid.

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  130. The meaning of words used in the revival provisions has been discussed at great length with writers coming to various conclusions. Supra, p. 313, note 2. Oppenheim, L., International Law, 8th ed. by H. Lauterpacht, vol. 2, p. 305 (1955); Castel, 51 Mich. L. Rev. 566, 571 (1953); Lenoir, pp. 146-51; Georg Schwarzenberger, International Law, vol. 1, 2d ed. (1949); Rank, 535-38.

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  131. The state of war with Germany terminated on October 19, 1951. House Joint Resolution No. 289, approved by the President on October 19, 1951, provided, “That the state of war declared to exist between the United States and the Government of Germany by the joint resolution of Congress approved December 11, 1941, is hereby terminated and such termination shall take effect on the date of enactment of this resolution… “ 65 Stat. 451. Proclamation No. 2950 proclaimed that the state of war with Germany terminated on October 19, 1951. 16 F.R. 10915.

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  132. Official Gazette of the Control Council for Germany, No. 1, p. 9 (1945).

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  133. Plischke, p. 253.

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  134. Comment, 32 Minn. L. Rev. 407, 410 (1948).

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  135. Docket No. 626, October Term 1946, Brief for Respondents, p. 8, 331 U.S. 503 (1947).

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  136. 331 U.S. 503, 514 (1947). Since 1945 the German courts have generally held that the prewar treaties with enemy states were at least suspended by World War II and Proclamation No. 2. For a review of the jurisprudence see “Deutsche Rechtsprechung 1945-1950,” 14 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, pp. 267-70 (1951). See also, Annual Digest, 1949, Case No. 132, pp. 382-83.

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  137. Department of State, Germany, 1947–1949, The Story in Documents, p. 302 (1950). According to Paragraph 2 (c) of the Occupation Statute of April 8, 1949, the three western powers retained control over “foreign affairs, including international agreements made by or on behalf of Germany.” Ibid., p. 90.

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  138. Official Gazette of the Allied High Commission for Germany, No. 52, p. 846 (April 2, 1951). For background information on the origin of Directive No. 6, see Plischke, pp. 251-56.

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  139. Plischke, p. 260.

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  140. Conversation of the author with Mr. W. W. Cox, Acting Director of the Office of Immunities and Treaties, Legal Division of the United Nations Secretariat, on August 25, 1954. In his correspondence with the Federal Republic the Secretary General took the position that the United Nations could not agree that the war had suspended or terminated any of the prewar treaties of Germany, according to Mr. Cox. But cf. the attitude of the Department for Foreign Affairs of the Bonn Government as expressed by Dr. Ellinor von Puttkamer, an official in the foreign office, to Dr. Rank. Rank, pp. 351-55. As far as German internal constitutional procedure was concerned, the treaties were not regarded as new treaties under the Basic Law of the Federal Republic. Plischke, p. 256.

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  141. Letter addressed to Dr. Rank. Rank, p. 344.

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  142. Sen. Doc. No. 11, 84th Cong., 1st Sess. (1955). The agreements entered into force May 5, 1955. 32 D.S. Bull. 826 (1955).

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  1. Stuart Hull McIntyre Ph. D.
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© 1958 Martinus Nijhoff, The Hague, Netherlands

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McIntyre, S.H. (1958). Provisions in Peace Treaties. 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_6

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