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The Nuremberg Trial and the International Law of the Future

Published online by Cambridge University Press:  20 April 2017

Alan R. Rado
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Extract

On the 24th of October, 1945, the nationalization of mines, certain industrial enterprises, banks, and insurance companies was decreed in Czechoslovakia. The decrees took effect on the 27th day of October, 1945, the day of their promulgation. The purpose of this study is to examine these measures and their effects, first, on foreign-owned property in Czechoslovakia and, second, on assets of Czechoslovak nationalized enterprises located abroad. Particular emphasis will be placed on the effect of the decrees on property owned by American nationals in Czechoslovakia and on assets situated in the United States of enterprises nationalized in Czechoslovakia.

Type
Research Article
Information
American Journal of International Law , Volume 41 , Issue 4 , October 1947 , pp. 795 - 806
Copyright
Copyright © American Society of International Law 1947

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References

1 The decrees are published in the Collection of Laws and Regulations of the Czechoslovak Republic, 1945, under No. 100-103. Decree No. 100 concerns the nationalization of the mines and of certain industrial enterprises, decree No. 101 the nationalization of certain enterprises of the food industry, decree No. 102 the nationalization of banking corporations, and decree No. 103 the nationalization of private insurance companies.

2 The basic provisions of all the decrees are similar and references will be made to decree No. 100 which is typical of the legislative purpose and method.

3 Decree No. 100, § 4.

4 Same, § 12(1).

5 Same, § 5(1).

6 Same, § 5(4).

7 Same, § 13(1).

8 Same, § 16(1). The term “single merchant” designates individual traders as distinguished from partnerships and business corporations.

9 Same, § 18(1) and (2).

10 Úřední List and üradny Vestník. Same, § 12(2).

11 Same, § 8(1).

12 Same, § 7.

13 Same, í 7(3).

14 Same, § 8(2).

15 Same, § 9(l).

16 Same, § 9(2).

17 Same, § 9(3).

18 Same, § 10(1) and (2).

19 Collection of Laws and Regulations of the Czechoslovak Republic, No. 8/1928; Decree No. 10.

20 A special section in the Czechoslovak Ministry of Foreign Affairs has been established to receive foreign claims. The Department of State acts as transmitting agent for filing such claims. For instructions with regard thereto, see Department of State Bulletin, Dec. 1, 1946, p. 1003, March 2, 1947, p. 397.

21 A summary of these provisions is contained in Oatman, The Nationalization Program in Czechoslovakia, Department of State Bulletin, Dec. 8, 1946, p. 1027.

22 For an official presentation of the circumstances that led to nationalization, see E. Benes, “Postwar Czechoslovakia” Foreign Affairs, Vol. 24 (1946), pp. 397, 407.

23 See H. Herz, “Expropriation of Foreign Property,” in this Journal, Vol. 35 (1941), p. 243, for discussion of different theories.

24 See 29 C.J.S. 777, A. J., Vol. 18, p. 631.

25 See 15 C.J.S. 827.

26 E. M. Borchard, Diplomatic Protection of Citizens Abroad, 1925, § 44.

27 Same, § 51.

28 Same, § 75. See also Hackworth, G. H., Digest of International Law. , Vol. V, pp. 587–589 Google Scholar.

29 Decree No. 100, § 7.

30 Arbitration treaty (1928), U. S. Treaty Ser. 781; Conciliation treaty (1928), U. S. Treaty Ser. 782; Extradition treaty (1925), U. S. Treaty Ser. 734; Supplementary extradition treaty (1935), U. S. Treaty Ser. 895; Naturalization convention (1928), U. S. Treaty Ser. 804; Reciprocal trade agreement (1938), Exec. Agreement Ser. 147.

31 Notes are reprinted in this Journal, Vol. 32 (1938), Supplement, p. 181; see Hull notes of July 21 and August 22, 1938.

32 See Compensation for expropriated lands, Agreement between the United States and Mexico, effected by exchanges of notes signed November 9 and 12, 1938, and April 17 and 18, 1939, Exec. Agreement Ser. 158.

33 Above, note 31.

34 See Hull note of August 22, 1938, above, note 31, at pp. 191, 193.

35 Decree No. 100, § 9(1).

36 In the Mexican agrarian expropriation the Mexican government had also issued agrarian bonds for the purpose of compensating the affected landholders. See note of Mr. Hay of August 3, 1938, above, n. 26.

37 Decree No. 100, § 9(1) and (3).

38 Decree No. 100, § 9(3).

39 For a discussion of adequacy of compensation, see C. C. Hyde, “Compensation for Expropriation,” in this Journal, Vol. 33 (1939), p. 108.

40 § 8(2) of decree No. 100 reads:

Compensation shall be determined according to the status of the assets and the liabilities of the nationalized enterprise on the day when it is taken over by the national enterprise. The compensation shall be equal to the ordinary value of the property, as computed on the basis of official prices prevailing on the day of the decree’s promulgation, or, where such prices do not exist, as determined by an official valuation, after deduction of the liabilities.

41 See Award of the Permanent Court of Arbitration at The Hague rendered on October 13, 1922, reprinted in this Journal, Vol. 17 (1923), p. 362, saying at p. 392: “Just compensation implies a complete restitution of the status quo ante, based, not upon future gains of the United States or other powers, but upon the loss of profits of the Norwegian owners as compared with other owners of similar property.”

42 Czechoslovak crown (koruna; abbr. Kč) which is worth about 2 United States cents at the present time.

43 See Oatman, above, note 21, at p. 1031.

44 Same.

45 Department of State Bulletin, December 1, 1946, pp. 1004-1005.

46 Collection of Laws and Regulations of the Czechoslovak Republic, No. 134/1946. The law was passed on May 15, 1946, promulgated on June 18, 1946 and declared effective as of September 30, 1946. Tax is on the increase in the value of property between January 1, 1939 and November 15, 1945. Returns were to be submitted prior to November 30, 1946. See also Department of State Bulletin of November 17, 1946, p. 915, and July 6, 1947, p. 46.

47 Borchard, cited above, note 26, § 200.

48 There have been instances where aliens domiciled within the territory of the United States, and who have declared an intention to become citizens thereof, appear to have been regarded as entitled to claim the benefits of American nationality when they suffered wrong at the hands of foreign States other than the country of origin.

Hyde, International Law (1945), § 275 at 897.

49 Borchard, § 234:

In the case of international claims, the rule uniformly adopted is that American naturalization cannot serve to nationalize a claim which arose prior to the date of naturalization of its owner. In other words a claim must be national in origin as well as at the time of presentation.

50 Decree No. 100, §§ 1(1), 4(1), 36.

51 Same, § 12(2).

52 Naturalization convention (1928), U. S. Treaty Ser. 804. Article I provides:

Nationals of the United States who have been or shall be naturalized in Czechoslovak territories shall be held by the United States to have lost their former nationality and to be nationals of Czechoslovakia. Reciprocally, nationals of Czechoslovakia who have been or shall be naturalized in the territories of the United States shall be held by Czechoslovakia to have lost their former nationality and to be nationals of the United States. The foregoing provisions of this Article shall not be applicable to a national of either country who obtains naturalization in the other while his country is at war. ...

Article II provides :

Nationals of either of the Contracting States naturalized as provided in Article I, shall not, upon their return to the territory of the country of which they were formerly nationals, be prosecuted or punished for expatriation or for having failed, prior to their naturalization, to answer summonses to military service which had been served upon them within a period of five years preceding their naturalization.

53 For a discussion of the conflict hereby created, see Borchard, § 253.

54 See Oatman, at p. 1031.

55 In 1935, in a case where the claimants had the nationality of the Dominican Republic as well as the nationality of the United States, the Department of State held that it could not espouse their claim. Hackworth, Digest of International Law, Vol. Ill, p. 354. See also Vol. V, pp. 821-822, in relation to a settlement agreement between the United States and Turkey in 1934 in which claims of naturalized American citizens who were also nationals of Turkey were not included.

56 See Shapleigh v. Mier, 299 U. S. 468 (1936).

57 246 U. S. 297, 303 (1917).

58 315 U. 8.203 (1941).

59 Decree No. 100, $ 4(2).

60 For a brief description of the Soviet decrees, see Joint Stook Co. v. Nat. City Bank, 240 N. Y. 368, 373, 148 N. E. 552, 554 (1925) ; In re Russian Bank for Foreign Trade (1933), Ch. 745, 757.

61 In re Russian Bank for Foreign Trade (1933), Ch. 745; Sedgwick Collins & Co. v. Bosnia Ins. Co. (1926), 1 K. B. 1.

62 (1926) 1 K. B.1 cited above, note 61, p. 15.

63 Sokoloff v. Nat’l City Bank, 239 N. Y. 158, 145 N. E. 917 (1924) ; James & Co. v. Second Russian Ins. Co., 239 N. Y. 248, 146 N. E. 369 (1925) ; Joint Stock Co. v. Nat’l City Bank, 240 N. Y. 368, 148 N. E. 552 (1925) ; Petrogradsky M. K. Bank v. Nat’l City Bank, 253 N. Y. 23, 170 N. E. 479 (1930) ; Vladikavkazsky By. Co. v. N. Y. Trust Co., 263 N. Y. 369, 189 N. E. 456 (1934) ; Moscow Fire Ins. Co. v. Bank of N. Y. & Trust Co., 280 N. Y. 286, 20 N. E. (2d) 758 (1939), affirmed: 309 U. S. 624 (1939).

64 Vladikavkassby Ry. Co. v. N. Y. Trust Co.

65 301 U. S. 324 (1936).

66 315 U. S. 203 (1941).

67 Moscow Fire Ins. Co. v. Bank of N. Y. & Trust Co., 280 N. Y. 286, 20 N. E. (2d) 758 (1939), affirmed: 309 U. S. 624 (1939).

68 301 U. S. 324, 330 (1936).

69 301 U. S. 324, 332 (1936).

70 Borchard, “Confiscations : Extraterritorial and Domestic,” in this Journal, Vol. 31 (1937), p. 675; Jessup, “The Litvinoff Assignment and the Belmont Case,” in same, Vol. 31 (1937), p. 481; Borchard, “Extraterritorial Confiscations,” in same, Vol. 36 (1942), p. 275; Jessup, “The Litvínov Assignment and the Pink Case,” in same, Vol. 36 (1942), p. 282.

71 Notes are reprinted in this Journal, Vol. 28 (1934), Supplement, p. 2.

72 Vlaaikavkazsky Ry. Co. v. N. Y. Trust Co., at p. 378; Dougherty v. Equitable Life Assurance Soc., 266 N. Y. 71, 90 (1934) ; Moscow Fire Ins. Co. v. Bank of N. T. & Trust Co., 280 N. Y. 286, 303 (1939).

73 U. S. v. Belmont, 301 U. S. 324, 332 (1936) ; U. S. v. Pink, 315 U. S. 203, 231 (1941) ; Steingut v. Guaranty Trust Co. of New York, 58 F. Supp. 623, 633 (1944).

74 See note in Columbia Law Seview, Vol. 41 (1941), pp. 1072, 1082, for a discussion of the public policy concept.

75 Dutch decree of May 24, 1940, in C. C. H., War Law Service, Foreign Supplement, par. 91, 251.

76 Anderson v. N. V. Transandine Handelmaatschappij, 28 N. Y. S. (2d) 547 (1941), affirmed: 289 N. Y. 9, 43 N. E. 502 (1942).

77 Lorenteen v. Lydden and Co., Ltd. (1942), 2 K. B. 202.

78 Olson v. U. S., 292 U. S., 246, 255 (1933) ; U. S. v. Miller, 317 U. S. 369, 373 (1942) ; U. S. ex rel. T. V. A. v. Powelson, 319 U. S. 266, 275 (1942).