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Enemy Property

Published online by Cambridge University Press:  30 March 2017

Philip C. Jessup
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Abstract

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Type
Editorial Comment
Information
American Journal of International Law , Volume 49 , Issue 1 , January 1955 , pp. 57 - 62
Copyright
Copyright © American Society of International Law 1955

References

1 See the classic discussion by John Bassett Moore, International Law and Some Current Illusions (1924), pp. 13 ff.; O. C. Sommerich, “A Brief Against Confiscation,” Law and Contemporary Problems, Vol. 11 (1945–1946), p. 152; and the numerous discussions, particularly by Professor Edwin Borchard, in this Journal.

2 “Unquestionably to wage war successfully the United States may confiscate enemy property.ȁ Silesian-American Corporation v. Clark (1947), 332 U. S. 429, 475, digested in this Journal, Vol. 42 (1948), p. 473. Compare Chief Justice Marshall’s views in U. S. v. Percheman (1833), 7 Peters 51, 86. Compare also the position of the American Bar Association in 1943: “Confiscation is contrary to the principles of law. It is contrary to our constitutional law principles and to the principles of international law.” Annual Report of the American Bar Association (1943), p. 454. See also the conclusions in the Final Report of the Subcommittee to Examine and Review the Administration of the Trading with the Enemy Act of the Committee on the Judiciary, U. S. Senate (1954), p. 68: “The Committee feels that the record set forth in this report clearly indicates that the policy of confiscating the individual enemy’s property located in the United States has been an unsound deviation from international law and the historic policy of the Government.”

3 Department of State Bulletin, Vol. 30 (1954), p. 449.

4 For an indication that the general problem is already being considered by the governments of the United States and the Federal Republie of Germany in a friendly spirit, see the exchange of letters between President Eisenhower and Chancellor Adenauer, ibid., Vol. 31 (1954), p. 269.

5 See John B. Howard, “The Paris Agreement on Reparations from Germany,” ibid., Vol. 14 (1946), pp. 1023 ff.

6 Hearings Before a Subcommittee of the Committee on the Judiciary, United States Senate, 83rd Cong., 2nd Sess., on S. 3423 to Amend the Trading with the Enemy Act [the Dirksen Bill] (1954), p. 161. The Secretary of State also testified that as an executive agreement, the Paris Agreement “was without authority whatever to bind the Congress of the United States in this matter.” It is not clear whether the Secretary intended to say that in the light of international law the United States assumed no legal obligation under this agreement.

7 On changed conditions in economic warfare and their impact on the policy of dealing with enemy property, see J. Stone, Legal Controls of International Conflict (1954), pp. 435–136. Cf. Lourie, S. A., “The Trading With the Enemy Act,” Michigan Law Review, Vol. 42 (1943), p. 205, at pp. 232–234CrossRefGoogle Scholar.

8 “After hostilities have ceased there is always, and should be, a period of recapitulation and reappraisement. The harsh and total methods of seizure during the war are weighed in light of the new atmosphere. Inequities are always found to have been done, so that a balancing of interest must be made. We in the United States today are in that national adjusting period.” U. S. Senate Report No. 572, 82nd Cong., 1st Sess. (1951), p. 3.

9 Jack B. Tate, “International Reclamations and the Peace Settlements,” Proceedings, American Society of International Law, 1949, p. 27.

10 Monthly Operations Report of the Foreign Operations Agency, June 30 (1954), p. 42.

11 Statement of Dallas S. Townsend, Assistant Attorney General, Director, Office of Alien Property, Department of Justice, Hearings (cited above, note 6), p. 17.

12 See testimony of James Riddleberger, Director, Bureau of German Affairs, Department of State, Hearings of the Committee on Foreign Relations, U. S. Senate, 83rd Cong., 2nd Sess., on Executives Q & R (1952), p. 145. Cf. Margaret Woodward, “Germany Makes Amends,” Department of State Bulletin, Vol. 31 (1954), p. 126.

13 Statement of Assistant Attorney General Townsend (see note 11, above): “The effect of this [Dirksen] bill, therefore, is to shift the burden of war claims payments from the German taxpayer to the American taxpayer.”

14 See comments by Assistant Attorney General Townsend especially on the case of General Aniline and Film Corporation (cited note 6 above), at p. 19. Cf. Mason, M. S., Conflicting Claims to German External Assets (published by International Reparation Agency, Brussels, 1949), pp. 8–9 Google Scholar.

15 Annex, Pt. III, Art. 13A(iii). See also Pt. IV, Art. 24 (iii). “In signing the agreement the United States stipulated that the agreement shall not apply to the interest of the United States in General Aniline and Film Corporation, New York, N. Y. … The question whether the national security of a country requires retention of property is not subject to the procedure of conciliation (article 38).” Maurer, E. and Simsarian, J., “Agreement Relating to the Resolution of Conflicting Claims to German Enemy Assets,” Department of State Bulletin, Vol. 18 (1948), pp. 3, 4 (note 4), and 6Google Scholar. The text of the Agreement is printed ibid, at pp. 6 ff. The provision that the decision of a “conciliator” is binding and final is novel and of general interest.

16 Editorial comment, “Return of Property Seized During World War II: Judicial and Administrative Proceedings Under the Trading with the Enemy Act,” Yale Law Journal, Vol. 62 (1953), p. 1210, at p. 1222.

17 Ibid., p. 1223.

18 U. S. Participation in the United Nations: Report by the President to the Congress for the Year 1952 (Department of State Publication 5034, 1953), p. 110. The proponents of this resolution took a short-sighted view of their “national interest,” since they all need investment of private capital which will not be attracted if it risks confiscation without compensation.

19 See Neutrality: Its History, Economics and Law: Vol. I (1935), Deák and Jessup, The Origins, Ch. 5; Jessup, Vol. IV (1936), Today and Tomorrow, pp. 66 ff.

20 Clark v. Uebersee Finanz-Korp., A. G. (1947), 332 U. S. 480, digested in this Journal, Vol. 42 (1948), p. 470, and discussed in Yale Law Journal, cited in note 16 above, at pp. 1226 ff. For discussion of various means of “cloaking” enemy interest, see Bishop, J. W. Jr., “Judicial Construction of the Trading with the Enemy Act,” Harvard Law Review, Vol. 62 (1949), pp. 751 ffCrossRefGoogle Scholar.

21 Annex, Pt. V, Art. 26 B and H (ii) (a) and (b). Cf. Ford, A. W., “Protection of Non-Enemy Interests in Enemy Corporations,” California Law Review, Vol. 40 (1952), p. 558 CrossRefGoogle Scholar.

22 See ibid.

23 See Haight, G. W. “International Law and Extraterritorial Application of the Antitrust Laws,” Yale Law Journal, Vol. 63 (1954), p. 639 CrossRefGoogle Scholar. Cf. report of the Swiss Government’s objections to United States’ anti-trust suits against the Swiss watch industry. It is reported that the Swiss Government will “examine the legitimacy of these prosecutions from the viewpoint of international law.” New York Times, Oct. 21, 1954, p. 41, col. 4.

24 Letter of April 13, 1949, from the Acting Legal Adviser of the Department of State to the attorneys for Bernstein in the case of Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 117 F. Supp. (S.D.N.Y., 1953); same case, 210 F. (2d) 375 (2nd Cir., 1954); Department of State Bulletin, Vol. 20 (1949), p. 592, this Journal, Vol. 44 (1950), p. 183, note 1. See digests of case ibid., Vol. 42 (1948), p. 726, Vol. 43 (1949), p. 180, Vol. 44 (1950), p. 182, and Vol. 48 (1954), p. 499.

25 Rosenberg v. Fischer, Swiss Bundesgericht, June 3, 1948, Annuaire Suisse de Droit International, Vol. VI (1949), p. 139; Confiscation of Property of Sudeten Germans Case, Germany, Amtsgericht of Dingolfing (1948), 1948 Annual Digest, Case No. 12; Anglo-Iranian Oil Company v. Jaffrate et al., Supreme Court of the Colony of Aden (1953), this Journal, Vol. 47 (1953), p. 325.

26 It is possible that the Nottebohm Case (Liechtenstein v. Guatemala, I.C.J. Reports, 1953, p. III; this Journal, Vol. 48 (1954), p. 327), may reveal the linkage between enemy alien property cases and other confiscatory measures as was envisaged by a Council on Foreign Relations Study Group in 1945; The Postwar Settlement of Property Rights (1945), p. 39.

27 Work cited (note 1 above), p. vii.

28 See State of the Netherlands v. Federal Reserve Bank of New York et al., 201 F. (2d) 455, (2nd Cir., 1953), digested in this Journal, Vol. 47 (1953), p. 496.

29 Statement by W. H. Reeves, in Hearings (cited above, note 6), p. 180, at p. 185.