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Published online by Cambridge University Press: 16 January 2009
The aim of this article is to consider and state the effects upon private rights of treaties of peace, or, more precisely, of some of the normal contents of treaties of peace. We are not concerned with the automatic consequences of the coming into force of a treaty of peace, namely, the cessation of the operation of the many rules of law which affect the nationals and residents of a country upon its passing from a state of war into a state of peace.
We shall deal with the following topics:—
A.—Summary of public international law.
B.—Territorial changes.
C.—Change in nationality—plebiscite—options.
D.—Change in domicil?
E.—The scope of the power of a State to affect the private rights of its nationals.
F.—Effect upon nationals of third States.
G.—How far a peace treaty concluded by the British Crown involves legislation.
H.—The relation of the British Crown to its subjects in regard to a peace treaty.
2 This usually happens upon ratification by all the belligerents, but the treaty may contain a contrary stipulation, e.g. the concluding paragraphs of the Treaty of Versailles of 1919.
3 See generally on the matter, Oppenheim, vol. ii, §§ 257, 272—284, and p. 477, note 2.
4 Upon the whole subject, see Oppenheim, ii, § 99, and McNair, Law of Treaties, ch. 44.
5 By s. 1 of the Annex the deposits of ooal, together with plant, equipment, etc., became ‘ the complete and absolute property of the French State ’.
6 Nabob of the Carnatic v. East India Company (1791) 1 Ves. Jun. 371; (1793) 2 Ves. Jun. 56; Secretary of State for India v. Kamachee Boye Sahaba (1859) 13 Moo. P. C. 22;Google ScholarDoss v. Secretary of State for India (1875) L. E. 19 Eq. 509;Google ScholarCook v. Sprigg [1899] A. C. 572;Google ScholarWest Rand Central Gold Mining Co. v. R. [1905] 2 K. B. 391. For the ‘ act of State ’ aspect, see infra, p. 396.Google Scholar
7 [1899] A. C. 572, 578.
8 (1830) 4 Peters' Eeports, 511.
9 (1833) 7 Peters' Eeports 51; see also Ely's Administrator v. United States, 171 U. S. 220, 223. Abundant American authority will be found in Moore, Digest of International Law, § 99. And see Sayre in American Journal of International Law, xii (1918) pp. 475—497.
10 Cited by Pitt Cobbett, Leading Cases on International Law (5th ed) vol. ii, p. 303.
11 Publications of the Court, Ser. B, No 6.
12 The matter is discussed in great detail by Keith, Theory of State Succession (1907) ch. vi.Google Scholar
13 Private International Law (7th ed. Bentwich), § 299.
14 Comment on Rule 26.
15 Udny v. Udny (1869) L. E. 1 Sc. App. 441.Google Scholar
16 See McNair, Law of Treaties, ch. 29.
17 [1922] 1 A. C. 313, 335.
18 At p. 337.
19 [1933] P. 22, 37; affirmed on another ground [1934] A. C. 91.
20 See the Mavrommatis Case, Publications of the P. 0. I. J. Ser. A, No. 2, p. 11.
21 Supra, note 19. And see an analysis of this case in British Year Book of International Law, 1934, pp. 172—178.Google Scholar
22 Supra, note 19.
23 Note 29, p. 992.
24 [1922] 1 Ch. 174.
25 See McNair in 56 L. Q. E. (1941) pp. 33—73.Google Scholar
26 Supra, Section C.
27 Trompler v. High Court of Zurich, Annual Digest, 1925—1926, Case No. 265. See also Deutsche Bank v. Zirini, Annual Digest, 1919—1922, Case No. 235.Google Scholar
28 M. v. Aktieselskabet K. H., Annual Digest, 1933—1934, Case No. 217.
29 Josef Intoald A. O. v. Pfeiffer (1928) 43 T. L. B. 399; 44 T. L. B. 352 (H. L.).Google Scholar
30 The preceding statements are somewhat dogmatic. For argument and illustrations see McNair, Law of Treaties, cb. ii.
31 See the authorities collected in Oppenheim, vol. ii, § 102, n. 3.
32 Re Ferdinand, Ex-Tsar of Bulgaria [1921] 1 Ch. 107, 139.Google Scholar
33 S. 7. The formula was different in the Trading with the Enemy Acts of the war of 1914—1918.
34 The statutory definition will be found by reading together ss. 2 and 15 of the Trading with the Enemy Act, 1939, as subsequently added to and amended from time to time.
35 Whether during the war time runs under the Limitation Act, 1939, or not, is controversial: see McNair, Legal Effects of War (1920) pp. 60, 61. The peace treaties of 1919—1920 suspended periods of prescription and limitation of actions for the duration of the war and three months after the treaties came into force: see Article 300 of the Treaty of Versailles.Google Scholar
36 This is a popular statement of the effect of some very complicated and detailed provisions of the peace treaties. The procedure referred to applied, in general, to debts and claims as between the nationals of one ex-belligerent residing in its territory and the nationals of an opposing belligerent residing in its territory, that is, the tests of nationality and residence were combined.
37 See note 34 above.
38 A bird's-eye view of the articles of this treaty relating to debts, contracts, private property, rights and interests, industrial property, clearing offices and mixed arbitral tribunals, can be obtained from Picciotto and Wort, The Treaty of Peace with Germany (1919).
The British Government appears to have taken the view in 1935 that the Treaty of Peace Act, 1919, s. 1 of which empowered His Majesty to ‘ make such Orders in Council and do such things as appear to him necessary for carrying out the said Treaty and for giving effect to any of the provisions of the said Treaty ’, enabled the Crown by Order in Council to apply economic sanctions against Italy in the Ethiopian dispute under Article 16 of the Covenant (and of the Treaty); see Oppenheim, vol. ii, § 52d, n. 4, on p. 135.
39 Buron v. Denman (1848) 2 Ex. 167.Google Scholar
40 [1899] A. C. 572, 578.
41 [1905] 2 K. B. 391.
42 Parliamentary Papers, South Africa, 1901 [Cd. 623], cited in Pitt Cobbett. Leading Cases and Opinions, vol. ii (5th ed.) p. 303.
43 (1876) 1 Q. B. D. 487; 2 Q. B. D. 69, 73.
44 [1932] A. C. 14
45 At p. 26. See also for an allegation that a foreign Government is acting as agent or trustee for its nationals, Administrator of German Property v. Knoop [1933] 1 Ch. 439Google Scholar
46 Annual Digest, 1927—1928, Case No.281. See also ibid. 1919—1922, Case No. 233.