¹ English text in U.N. Legislative Series, Laws and Practices Concerning the Conclusion of Treaties, St/Leg/Ser. B/3, pp. 7 ff.

² Bundesgesetzblatt (Federal Gazette, hereafter referred to as BGBl.), No. 1/1920. Macdonald, Mary, The Republie of Austria 1918–1934 (London, 1946), pp. 107–155 Google Scholar, contains an English translation of this Constitution.

³ BGBl. No. 268/1925, Consolidated Text BGBl. No. 367/1925, and BGBl. No. 392/1929, Consolidated Text BGBl. No. 1/1930. Constitutional Law of May 1, 1945, Staatsgesetzblatt (hereafter referred to as StGBl.) No. 4/1945, and Constitutional Law of Dec. 13, 1945, StGBl. No. 232/1945. The Federal Constitution of May 1, 1934, BGBl. No. 1/1934, II (effective 1934–1938), reproduced these provisions without major alterations.

⁴ Ludwig Adamovich, Grundriss des österreichischen Verfassungsrechtes (1947); Josef Hlavač, “Zur innerstaatlichen Verbindlichkeit internationaler Arbeitsiibereinkommen,” Das Recht der Arbeit, August, 1952, pp. 19–23; Jordan, Ludwig, “Bemerkungen zu Art. 9 der österreichischen Bundesverfassung,” 7 Zeitschrift für öffentliches Recht 453–459 (1928)Google Scholar; Hans Kelsen, Die Verfassungsgesetze der Republik Österreich, Vol. V: Die Bundesverfassung vom 1. Oktober 1920, pp. 53–284; Kunz, Josef, “Völkerrechtliche Bemerkungen zur österreichischen Bundesverfassung,” 54–55 Annalen des Deutschen Reichs 295–324 (1921/22)Google Scholar; Métall, Rudolf A., “Das allgemeine Völkerrecht und das in-nerstaatliche Verfassungsrecht, Zur Auslegung des Art. 9 der österreichischen Bundesverfassung,” 14 Zeitschrift für Völkerrecht 161–187 (1927)Google Scholar; “Die gerichtliche Überprüfung von Staatsverträgen nach der österreichischen Bundesverfassung,” 7 Zeitschrift für öffentliches Recht 106–118 (1928)Google Scholar; and “Zur Auslegung des Art. 50 der Bundesverf assung,” Österreichisches Verwaltungsblatt 1930, No. 20, p. 3; Alfred Verdross, “Welche Bedeutung haben zwischenstaatliche Verträge für die innerstaatliche Gesetzgebung,” Verhandlungsschrift des 2. deutschen Juristentages in der CSR, Brünn, 1925, p. 235; and “Le fondement du droit international,” 16 Recueil des Cours, Académie de Droit International 273 (1927, I)Google Scholar; and Völkerrecht (ed. 1955) 65–69.

⁵ Kelsen, 5 op. cit. 75.

⁶ Preuss, Lawrence, “International Law in the Constitutions of the Lander in the American Zone of Germany,” 41 A.J.I.L. 888–889 (1947)Google Scholar; Verdross, Die Einheit des rechtlichen Weltbildes, 111–114, gives a summary of these debates. Due to a comment by Prof. Verdross, the wording of this article, as adopted by the Constitutional Committee, was changed. While the draft of the Committee declared that the generally recognized rules of international law should regulate merely the foreign relations of Germany, the wording finally adopted conforms to the theory propounded by Prof. Verdross that these rules should also be binding as internal law. See note 31 infra.

⁷ Annex No. 991 to the Stenographic Records of the Constituent National Assembly, reprinted by Kelsen, op. cit. 507–520.

⁸ Metall, 14 Zeitschrift für Völkerrecht 161–162 (1927); Kunz, loc. cit. 309.

⁹ Nov. 24, 1950; Seidl-Hohenveldern, “Settlement of Claims for Damages arising out of the Occupation of Austria,” 79 Journal du Droit International 565 (1952), note 11Google Scholar; Oct. 1, 1947, Österreichische Juristen-Zeitung, Reports, No. 790/1947.

¹⁰ Austrian Reichsgesetzblatt (hereafter referred to as EGB1.) No. 174/1913, and No. 180/1913.

¹¹ The Court refused to recognize this ratification as binding, since the Austrian Republic is a different state from the Austro-Hungarian Monarchy. The Court, however, failed to take notice of an official announcement in the Bundesgesetzblatt No. 381/1937, that in 1937 Austria had declared, in the forms required by international law and by the 1934 Constitution, its willingness to recognize the Hague Conventions as binding for Austria.

¹² On this controversial issue see B. Meissner, Sowjetunion und Haager Landkriegsordnung, Forschungsstelle für Völkerrecht und ausländisches öffentliches Recht der Universität Hamburg (1950).

¹³ Decision of Oct. 1, 1947, Österr. Juristen-Zeitung, Reports, No. 790/1947.

¹⁴ Paul Heilbronn, Grundbegriffe des Völkerrechtes 33 (1912), quoted by Kunz, loc. cit. 311, holds that a rule not accepted by the state concerned could never bind this state. See also the decision of the International Court of Justice in the Anglo-Norwegian Fisheries Case, Judgment of Dec. 18, 1951, [1951] I.C.J. Reports 131.

¹⁵ Kelsen, 5 op. cit. 75–76, maintains that Art. 9 would be superfluous, if it would merely imply that the rules already recognized by Austria should be recognized as Austrian law; contra, Jordan, loc. cit. 454–455, and Métall, 14 Zeitschrift für Völkerrecht 169 (1927).

¹⁶ Hoffmann v. Dralle, May 10, 1950, Supreme Court, Off. Coll. SZ XXIII (1950) No. 143; 45 A.J.I.L. 354 (1951); 77 Journal du Droit International 748 (1950); Österreichische Juristen Zeitung, Reports, No. 356/1950.

¹⁷ Seven decisions prior to 1900, decisions of Jan. 20, 1926, Sept. 11, 1928 (Annual Digest (1927–28), Case No. 113, p. 178), June 4, 1930, Jan. 22, 1935, Sept. 17, 1947; contra, Dec. 17, 1907, Feb. 5, 1918, Aug. 27, 1919, Jan. 5, 1920 (Annual Digest (1919–1922), Case No. 79, p. 113), all quoted in Hoffmann v. Dralle.

¹⁸ Austria has, however, not actively opposed the formation of this new rule. It is situations like this to which the authorities quoted (note 14 supra) appear to refer.

¹⁹ Const. Court, Oct. 5, 1951, Off. Coll. No. 2192.

²⁰ In this sense, Verdross, 16 Hague Academy Recueil 273 (1927, I); Kunz, loc. cit. 319.

²¹ Const. Court, Oct. 5, 1950, Off. Coll. No. 2030, U.N. Yearbook on Human Rights for 1950, p. 28. In “Die Allgemeine Deklaration der Menschenrechts als Rechtsquelle,” Juristische Blätter, 1952, pp. 558–559, this writer points out that the Declaration is not legally binding even for Members of the United Nations.

²² Métall, 14 Zeitschrift für Völkerrecht 172 (1927), and the decisions of the Supreme Court of July 9, 1948, Off. Coll. SZ XXI, No. 114, and of May 31, 1951, 1 Am. J. Comp. Law 122 (1952), denying extraterritorial effects to foreign confiscatory decrees.

²³ Constitutional laws shall be adopted in the Nationalrat by a majority of two-thirds of the votes recorded, at least half of its members being present (Art. 44 (1)).

²⁴ Contra Métall, 14 Zeitschrift für Völkerrecht 177 (1927); and Kunz, loc. cit. 320. In its decision of June 24, 1954, Off. Coll. No. 2680, the Constitutional Court explicitly held that these rules rank equally with ordinary laws but not with constitutional laws. For excerpts of decision and comments thereon, see Knoll, Recht der Internationalen Wirtschaft 48 (1954).

²⁵ Cases cited, note 9 supra and note 80 infra.

²⁶ Const. Court, Jan. 10, 1931, Off. Coll. No. 1375.

²⁷ See case cited, note 38 infra.

²⁸ See infra, p. 475.

²⁹ Const. Court, Jan. 10, 1931, Off. Coll. No. 1375.

³⁰ Jordan, loc. cit. 457.

³¹ Supreme Court, May 31, 1950 (Österr. Juristen-Zeitung, Reports, No. 343/1950). This decision correctly describes the effects of Art. 9, but it errs in assuming that the Agreement of June 28, 1946, on the Machinery of Control in Austria (U.K. Treaty Series No. 49 (1946), Cmd. 6558) does contain such rules.

³² Jordan, loc. cit. 456.

³³ Ibid., 455, contra Métall, 14 Zeitschrift für Völkerrecht 181 (1927).

³⁴ P.C.I.J., May 25, 1926, Case concerning certain German Interests in Polish Upper Silesia (The Merits) Series A, No. 7, pp. 29, 37.

³⁵ Decision of March 28, 1952, Off. Coll. No. 2311. This case is more amply discussed infra, p. 464.

³⁶ Par. 59, Strafprozessordnung, RGBl. No. 119/1873, as amended.

³⁷ Notice of the Federal Ministry of Justice of Aug. 4, 1930, Amtsblatt der Justizverwaltung, 1930, No. 20.

³⁸ Supreme Court, March 20, 1953 (Österr. Juristen-Zeitung, Reports, No. 380/1953).

³⁹ Decision of March 15, 1921, Off. Coll. SZ III, No. 32 (Annual Digest (1919–1922), Case No. 208, p. 291).

⁴⁰ Einführungsgesetz zur Jurisdiktionsnorm, RGBl. No. 110/1895, as amended.

⁴¹ The court interpreted “persons” as meaning physical as well as juridical persons.

⁴² To the same effect, par. 2 of the Federal law of June 30, 1948, BGBl. No. 155, on the privileges and immunities of international organizations and of their officials. Karl Satter, “Bestimmung der Grenzen für die inländische Gerichtsbarkeit durch Verwaltungsakte,” Juristische Blätter, 1931, p. 474, criticizes such rules as being contrary to the theory of the separation of powers which prevails in the Austrian Constitution.

⁴³ Cf. Jordan, loc. cit. 457, and in all the cases mentioned so far except the decision cited in note 39 supra.

⁴⁴ See pp. 470–472, infra.

⁴⁵ Under internal law the President shall sign a document of ratification for any such treaty. Insofar as such treaties do not provide an exchange of documents of ratification, these documents are deposited in the Austrian State Archives.

⁴⁶ The Austro-French Cultural Agreement of March 15, 1947 (BGBl. No. 220/1947, 12 U.N. Treaty Series 109, No. 182), was adopted under these procedures. In the Explanatory Notes submitting the agreement to the Nationalrat (Annex No. 364 to the Stenographic Records, V. Legislative Period) the Government adopted the view that the agreement intended to change the Federal Constitution, as it exempted French cultural institutions not only from Federal but also from Land taxes. This is too narrow a construction of the Federal treaty-making power, cf. p. 471 infra; all the more so, as the case of conflicts between Lander taxes and treaties is especially provided for by Par. 7 (4) of the constitutional law, BGBl. No. 45/1948. Contrast the provision of Art. 9 of the Austro-German Agreement of Nov. 23, 1951, BGBl. No. 10/1953, on trainee workers, which exempts certificates required for the purpose of carrying out this agreement from (all) taxes (” … von den Abgaben”). This agreement was not considered to involve changes in constitutional law (Annex No. 544 of the Stenographic Records of the Nationalrat, VI. Legislative Period).

⁴⁷ Josef Unger, quoted by Pitamic, Leonidas in “Die parlamentarische Mitwirkung bei Staatsverträgen in Österreich,” 12 Wiener staatswissenschaftliche Studien 72–73 (1916)Google Scholar; see p. 464 infra.

⁴⁸ Ludwig Bittner, Die Lehre von den völkerrechtlichen Vertragsurkunden 76–81 (1924).

⁴⁹ The agreement cited in note 138 infra is a demonstration that even multilateral agreements are concluded as interdepartmental agreements.

⁵⁰ Kunz, loc. cit. 305, pleads for a restrictive interpretation of this word.

⁵¹ The Austro-Czechoslovak Treaty of Dec. 16, 1921 (BGBl. No. 173/1922, 9 League of Nations Treaty Series 248, No. 257), is explicitly designated by its title as a “Political Agreement.” This treaty contains a mutual guaranty of the respective frontiers, a pledge of neutrality in case one of the parties should become involved in defensive warfare and a promise not to support plans for the re-establishment of the ancien rigime. The treaty also provides for arbitration.

⁵² In this sense Pitamic, loc. cit. 106. Art. 51 (3) of the 1934 Constitution expressly assimilated treaties involving actual changes in laws and treaties obliging Austria to enact legislative measures.

⁵³ Explanatory note of the Austrian Government submitting Conventions No. 99 and No. 100 adopted at the 34th International Labor Conference to the Nationalrat's approval, Annex No. 73 to the Stenographic Records of the Nationalrat, VII. Legislative Period (1953).

⁵⁴ Art. 68 (2) of the 1934 Constitution provided a simplified approval of the legislative bodies for such political treaties as do not involve changes in laws.

⁵⁵ Supreme Court, Feb. 20, 1952, 5 Österreichische Zeitschrift für öffentliches Recht 564 (1953).

⁵⁶ Pitamic, loc. cit. 87–88, shares the opinion of the court. He does, however, discuss the problem under the relevant constitutional provision of the Austro-Hungarian Monarchy (Art. 6 of the Law of Dec. 21, 1867, RGBl. No. 145), which expressly provided that treaties imposing charges on the Empire (“welche das Reich belasten”) required parliamentary approval.

⁵⁷ The Administration's practice does not conform to the stringent rules set up in these decisions. Thus Austria joined UNESCO (BGBl. No. 49/1949) without this adherence having been submitted to the Nationalrat for approval under Art. 50. Yet states joining UNESCO assume the obligation to contribute to the costs of this organization (Art. IX of the UNESCO Constitution of 1945).

⁵⁸ See p. 457 supra and pp. 474–475 infra.

⁵⁹ Const. Law of Dec. 16, 1920, BGBl. No. 8/1921, Const. Law of May 11, 1921, BGBl. No. 293/1921.

⁶⁰ Const. laws BGBl. Nos. 425/1924 and 460/1924, Nos. 218, 284 and 455/1925, No. 187/1926, Nos. 8,112, and 113/1927, Nos. 195 and 417/1931, Nos. 71 and 238/1923; No. 101/1953. The authority granted under most of these laws was limited in time, and such treaties must be submitted to the Nationalrat as soon as possible.

⁶¹ For instance, ordinance of Feb. 4, 1925, BGBl. No. 59/1925, and ordinance of Oct. 28, 1953, BGBl. No. 168/1953. Such ordinances may be issued only with the approval of the Standing Committee of the Nationalrat.

⁶² Art. 68 (1) of the 1934 Constitution incorporated the provisions of these laws into the Constitution itself.

⁶³ For instance, the law of June 30, 1948, BGBl. No. 155, authorized the Federal Government to grant privileges and immunities to international organizations. Thanks to this law Austria could accede to the Convention concerning the Privileges and Immunities of Specialized Agencies of Nov. 21, 1947 (33 U.N. Treaty Series 261, No. I: 521, BGBl. No. 248/1950), without the approval of the Nationalrat. On the other hand, on the strength of this same law, the Austrian Federal Government issued the ordinance of Sept. 8, 1953, BGBl. No. 156, unilaterally granting privileges und immunities to the Inter-Governmental Committee for Migration from Europe (ICEM).

⁶⁴ For instance, Par. 12 of the Passport Law, BGBl. No. 57/1951: “Persons, other than Austrians, shall cross the Austrian border only if they hold an Austrian visa, unless international agreements [italics supplied] or a decree of the Federal Ministry of the Interior provides otherwise.”

⁶⁵ For instance, the Austro-Swiss Inter-Government Agreement of Sept. 14, 1950 (BGBl. No. 202/1951), concerning the mutual abolition of visas for Austrian and Swiss nationals.

⁶⁶ Verdross, Verhandlungsschrift 235.

⁶⁷ Except the generally recognized rules of international law. See p. 455 supra.

⁶⁸ Par. 4 (1) of the Law concerning the Bundesgesetzblatt (BGBl. No. 33/1920), as amended by the laws BGBl. No. 435/1922 and BGBl. No. 277/1925; Adamovich, op. cit. 264.

⁶⁹ Some treaties of these types nonetheless expressly provide that they shall be published in the official gazettes of the states concerned (e.g., Art. 18 of the Austro-Swiss Rhine Regulation Convention of Nov. 19, 1924, BGBl. No. 436/1925). As far as Austria is concerned, such provisions refer to publication in the Bundesgesetzblatt. This clause is superfluous in the case of treaties approved under Art. 50. It was eliminated when the Rhine Regulation Convention of 1924 was replaced by the Convention of April 10, 1954, BGBl. No. 178/1955.

⁷⁰ Par. 2 (3) of the Law concerning the Bundesgesetzblatt.

⁷¹ Non-self-executing agreements involving changes in laws have to be published in the Bundesgesetzblatt as they are “political treaties.” Cf. p. 458 supra.

⁷² A case in point is the multilateral inter-departmental Agreement of 1922 on Fishing in Lake Constance, mentioned in note 138 infra. This agreement was never published. It did not involve changes in laws, as the Vorarlberg Fishing Laws of Feb. 21, 1889, and June 21, 1893 (Tyrol and Vorarlberg Landesgesetzblatt No. 27/1891, and No. 20/1893) left to administrative discretion the fisheries protection measures concerned. As the agreement was non-self-exeeuting, its material provisions were incorporated into Vorarlberg law by the ordinance mentioned in note 143 infra.

⁷³ For instance, an inter-agency agreement on the refueling of railway engines in border stations.

⁷⁴ Thus Art. 70 of the Treaty of St. Germain abrogated the earlier Austrian law on Austrian nationality (StGBl. No. 91/1918). Persons who under Art. 70 of the treaty were excluded from acquiring Austrian nationality thereby lost automatically their Austrian nationality acquired under the prior law. No Austrian law or further administrative procedure was required to produce this effect. Const. Court, Oct. 12, 1920, Off. Coll. No. 60, and Adm. Court, Nor. 11, 1921, Off. Coll. 12.946 (A), both in Annual Digest (1919–1922), Case No. 145, p. 213; Const. Court, Oct. 13, 1922, Off. Coll. No. 154; Const. Court, May 21, 1926, Off. Col. No. 606.

⁷⁵ In a case where the Rome Convention of Nov. 23, 1937, on Transport of Goods by Rail contained somewhat contradictory provisions (Art. 9, par. 1, subpar. 1, stating that freight rates for international carriage should be calculated according to national rates while subpar. 3 of the same paragraph provided a 15-day period for the entry into force of such rates) the Supreme Court, in its decision of Dec. 2, 1953 (82 Journal du Droit International 175 (1955), considered that the latter provision nonetheless overrode the provision of par. 6 (5) of the Railway Traffic Law of Sept. 8, 1938 (German RGBl. II, p. 663), providing a delay of two months before rate increases should enter into force. The international agreement and the law concerned had both become effective in Austria on the same day.

⁷⁶ Adm. Court, March 10, 1923, Off. Coll. No. 13237(A). A provision in the Austro-Rumanian Trade Agreement of Aug. 14, 1920 (BGBl. No. 40), granted to the citizens of the other state “in all respects” equal rights with local citizens. Yet this provision did not prevent the expulsion of a Rumanian from Austria under the Aliens Law of July 27, 1871 (RGBl. No. 88), as another provision of the same agreement provided that the citizens of the other state should remain subject to legislation concerning the control of aliens. Moreover, the Supreme Court on March 27, 1929 (Annual Digest (1929–1930), Case No. 162, p. 263), held that a provision of the Austro-British Treaty of Commerce and Navigation of May 22, 1924 (BGBl. No. 80/1925, 45 League of Nations Treaty Series 165, No. 895), granting “free access to the Courts” to the citizens of the other contracting party did not dispense British citizens suing in Austria from furnishing security for legal costs as provided by prior Austrian legislation. In its decision of Dec. 20, 1935 (Annual Digest (1935–1937), Case No. 177, p. 380), the Supreme Court held that a provision of the Austro-British Extradition Treaty of Dec. 3, 1873 (63 Brit. and For. State Papers 213), according to which a person extradited to Austria should not be tried in Austria for crimes other than those for which he had been extradited, did not prevent the Austrian courts from taking notice of such other crimes as an aggravating circumstance when fixing the penalty to be inflicted for the crime forming the object of the extradition.

⁷⁷ Verdross, Völkerrecht 62 (1955). Patent Appeals Board, April 15, 1953 (Öster-reichisches Patentblatt 1953, pp. 76, 78). A case instructive in this respect was decided by the Adm. Court on Dec. 23, 1924 (Off. Coll. No. 13713 (A), Annual Digest (1919–1922), Case No. 150, p. 180). According to this decision, the wording of Art. 80 of the Treaty of St. Germain left it open to doubt whether the mere declaration of the intention to opt automatically effected a change in citizenship or whether an official recognition of the act of option was required for this purpose. An Austrian ordinance of Aug. 20, 1920 (StGBl. No. 397/1920) could also be interpreted either as considering this official recognition as a constitutive element of the option or merely as declaratory. The doubt was solved by the Austro-Czechoslovak Treaty on Citizenship of June 7, 1920 (BGBl. No. 163/1921, 3 League of Nations Treaty Series 190, No. 98), which made it clear that the recognition was intended to be merely declaratory. This interpretation was held to be valid not only between Austria and Czechoslovakia but also between Austria and the other partners of the Treaty of St. Germain. On Oct. 30, 1929 (Off. Coll. SZ XI (1929), No. 218, p. 625, Annual Digest (1929–1930), Case No. 234, p. 364), the Supreme Court interpreted the Yugoslav Railway Rates Ordinance of Oct. 1, 1926, in a way opposed to its literal meaning, but in the spirit of the Austro-Yugoslav Treaty of Commerce of Sept. 3, 1925 (BGBl. No. 246/1926, effective Aug. 12, 1926), in order to avoid a conflict between their provisions; cf. note 112 infra.

⁷³ Adm. Court, April 14, 1949, Off. Coll. No. 92 (F) (Österr. Juristenzeitung, 1949, p. 436): “The reference of the claimant to … the Treaty fails. The Law against former National Socialists, which was adopted subsequent to the Treaty, ordered the tax to be assessed also from the property which the persons concerned held abroad. The Law does not restrict the application of this rule to cases where Tax Agreements do not contain any provisions to the contrary. Thus the claimant could not refuse to pay tax for his property formerly held abroad, even if the provision of the Law against former National Socialists would violate the Treaty referred to by the claimant.”

⁷⁹ This is explicitly stated by the Constitutional Court in its decision of Dec. 13, 1948 (Off. Coll. No. 1708): “The relevant provisions of the Treaty … have been declared to be a Constitutional Law. … This provision of Austrian Constitutional Law may, however, be altered by a subsequent Constitutional Law …” “Just this has been effected by the Law against former National Socialists. It is only the internal aspect which concerns us here, and not the international one.” [Italics supplied.]

⁸⁰ Const. Court, March 9, 1948, Off. Coll. No. 1607, and Dec. 13, 1948, Off. Coll. No. 1708 (Juristische Blätter, 1949, p. 160).

⁸¹ Advisory Opinion of Nov. 26, 1935, Amtsblatt der Österreichischen Justizverwaltung, 1935, p. 106, at p. 117; Journal du Droit Int., 1936, pp. 442–443, 717–725; Kopehnanas, “Du Conflict entre le traité international et la loi interne,” 18 Revue de Droit International et de Legislation Comparéd 107 (1937), misunderstood a passage in this opinion, which is entirely obiter, as being decisive. In this passage the court discussed the possibility of refusing to apply the Joint Resolution as being contrary to public policy of unconditional fidelity to treaties, but rejected this argument.

⁸² In its decision of July 10, 1936 (Journal du Droit Int., 1937, p. 334), the Supreme Court upheld the views contained in this advisory opinion.

⁸³ Contra, Kelsen, 5 op. cit. 132, 135–136.

⁸⁴ cf. p. 474 infra.

⁸⁵ Kelsen, ibid. 129–130.

⁸⁶ For instance Art. 20 (2) and the clause of promulgation of the Austro-Swiss Social Insurance Convention of July 15, 1950 (BGBl. No. 232/1951).

⁸⁷ Supreme Court, Sept. 29, 1926 (Journal du Droit Int., 1928, p. 191), contra Reisler in 8 Die Rechtsprechung 176 (1926).

⁸⁸ Bittner, op. cit. 262, note 1053, quoting inter alia the Agreement of July 1, 1880, concerning the immediate applicability of the decisions reached at the Congress of Berlin.

⁸⁹ Par. 3 of the Protocol of Provisional Application of the EPU Agreement of Sept. 19, 1950 (Journal du Droit Int., 1950, p. 1039), as well as Art. 24 of the OEEC Convention of April 16, 1948 (ibid., 1946–1948, p. 382), which aims to put these international agreements into operation on signature on a provisional basis, contains a reservation in favor of the constitutional requirements of those member countries where such action would be unconstitutional. Huet, “Aspects Juridiques de 1’Union Européenne de Paiements,” ibid., 1951, pp. 806–810 Google Scholar.

⁹⁰ Stenographic Records, II. Legislative Period, p. 1861.

⁹¹ Annex No. 210 to the Stenographic Records of the Nationalrat, II. Legislative Period.

⁹² Under Art. 70 of the Treaty of St. Germain, the nationals of the former Austro-Hungarian Monarchy acquired the nationality of the successor state exercising sovereignty over the place where they possessed rights of citizenship (pertinenza), i.e., roughly domicile.

⁹³ Federal Court, Feb. 7, 1936, Off. Coll. No. 819 (A).

⁹⁴ Const. Court, March 28, 1952, Off. Coll. No. 2311; cf. also note 35 supra.

⁹⁵ The dicta of the Court are twice obiter. Under Art. 9 of the convention, the guarantees provided therein do not automatically apply to the police force. Moreover, the meeting concerned had not been convened by the Trade Union.

⁹⁶ Off. Coll. SZ XXIII, No. 207.

⁹⁷ BGBl. No. 183/1953. The Nationalrat had approved this convention on July 8, 1953.

⁹⁸ BGBl. No. 11/1936 as amended by BGBl. No. 206/1949.

⁹⁹ Par. 7, ABGB, reads as follows: “If a case can be decided neither on the strength of the words of a law, nor of the meaning, which reasonably can be attributed to this law, the Court shall take into consideration similar situations explicitly settled by other laws and the aims of other laws, related to the law concerned. If the case still remains doubtful, it shall be decided according to the principles of natural justice taking into consideration the circumstances of the case, after these have been carefully assembled and duly weighed.”

¹⁰⁰ See note 53 supra.

¹⁰¹ 15 U.N. Treaty Series 35, No. I: 229.

¹⁰² Const. Court, March 28, 1952, Off. Coll. No. 2311. To the same effect, Supreme Court, Jan. 5, 1926 (Journal du Droit Int., 1928, p. 193), in respect of Art. 62 of the Treaty of St. Germain.

¹⁰³ 9 League of Nations Treaty Series 204, No. 254. On this agreement in general of. Kunz, loc. cit. 298.

¹⁰⁴ Const. Court, March 31, 1924, Off. Coll. No. 272, and May 19, 1925, Off. Coll. No. 598; to the same effect, Supreme Court, March 5, 1929 (Annual Digest (1929–1930), Case No. 40, p. 65), and July 9, 1931 (ibid. (1931–1932), Case No. 32, p. 65), in respect of Art. 203 of the Treaty of St. Germain, providing “that Austria shall assume responsibility for a portion of the debts of the former Austrian Government which is especially secured on railways … in proportion to the railways transferred to Austria.”

¹⁰⁵ See, however, p. 456 supra.

¹⁰⁶ For instance, Adm. Court, Dec. 23, 1924, Off. Coll. No. 13713(A), note 77 supra.

¹⁰⁷ Const. Court, Oct. 8, 1948, Off. Coll. No. 1695.

¹⁰⁸ Announcement of the Federal Chancellery of Dec. 7, 1950, BGBl. No. 17/1951.

¹⁰⁹ See pp. 460–463 supra.

¹¹⁰ See note 113 infra on a broader assimilation of international agreements with laws rather than with ordinances.

¹¹¹ On the aspects of the federal structure of Austria in respect to our problem, see pp. 470–472 infra.

¹¹² A subsequent ordinance therefore can supersede only such international agreements as do not rank equal with laws. This may be the reason underlying the decision of the Supreme Court of Oct. 30, 1929, cited in note 77 supra.

¹¹³ Ordinance of the Federal Ministries of Trade and Agriculture of Feb. 26, 1923 (BGBl. No. 108/1923), concerning the protection of French regional appellations in respect to wine and spirits made pursuant to Art. 227 of the Treaty of St. Germain. Ordinance of the Federal Ministry of Education of June 30, 1949 (BGBl. No. 211/1949), establishing an Austrian UNESCO Commission. According to the preamble of this ordinance it was issued “Pursuant to Art. VII (1) of the UNESCO Constitution” (BGBl. No. 49/1949) concerning the formation of national co-operating bodies. This latter case is all the more remarkable, as the UNESCO Constitution was not adopted under the procedure of Art. 50 of the Federal Constitution, and hence should not have been held equal to a law. In a somewhat similar manner the Constitution of the WHO (BGBl. No. 96/1949), which was also not adopted under Art. 50, served as basis for introducing the International Sanitary Regulations of May 25, 1951, into the Austrian legal system. This was effected not by ordinance but by simple publication of an official announcement (Kundmachung) of the Federal Government of June 13, 1953, in the Bundesgesetzblatt No. 97/1953 to the effect that these regulations have become effective in Austria pursuant to Art. 22 of the Constitution of WHO.

¹¹⁴ See note 119 infra.

¹¹⁵ Kunz, loc. cit. 320.

¹¹⁶ By this construction Kunz aims to conform the Austrian Constitution to the monistic ideal of the superiority of international law over internal law.

¹¹⁷ Oct. 15, 1921, Off. Coll. 1924, Annex 6.

¹¹⁸ Cf. note 23 supra.

¹¹⁹ This rule is very strictly interpreted as excluding practically all delegation of legislative powers to the Administration, e.g., Const. Court, March 12, 1951, Off. Coll. No. 2109, and as prohibiting sub-delegations, i.e., an ordinance shall not be issued on the authority of another ordinance. Const. Court, March 19, 1952, Off. Coll. No. 2276.

¹²⁰ Mann, F. A., “Der Internationale Währungsfonds und das Internationale Privatrecht,” Juristenzeitung 1953, p. 445 Google Scholar, note 20, doubts whether the “interpretation” given by the Board of Executive Directors of the International Monetary Fund of Art. VIII, sec. 2(b) of the Articles of Agreement (BGBl. No. 105/1949, 2 U.N. Treaty Series 39, No. I: 20(a)), pursuant to Art. XVIII of the Articles of Agreement (Fund Circular No. 8, March 15, 1950), would be accepted by the members. In Austria it may possibly be considered ultra vires.

¹²¹ Even a rule or ordinance which is not ultra vires would not be automatically applicable in Austria, if it aimed at binding the general public. It would acquire this effect only after having been published in the Bundesgesetzblatt. See pp. 460–461 supra and the WHO regulations mentioned in note 113 supra.

¹²² 122 League of Nations Treaty Series 315, No. 2800(4): “The High Contracting Parties shall encourage the conclusion of special arrangements between corporations in both countries entrusted by each of them with the execution of the present Arrangement, with a view to facilitating exports and promoting as far as possible their expansion.

“The two Governments shall be empowered to take the necessary steps for the execution of the present Arrangement and to provide the said corporations with the necessary means for the purpose.”

¹²⁸ Const. Court, Feb. 9, 1932, Off. Coll. No. 1433. Pursuant to Art. 8 of this Arrangement (p. 1003 of the Bundesgesetzblatt, 1931), the Austrian Cardboard Cartel and the Hungarian economic corporation had agreed on a reduction of the Hungarian tariff on cardboard exported under the auspices of the Cartel. A non-cartel exporter, who had been refused a quota in the cartel’s contingent, complained of discrimination. The court held that he was not discriminated against as he was free either to join the Cartel or to export at the full tariff rate. The price conditions imposed by the Cartel were held to be legal norms covered by Art. 8 of the agreement. The fact that they had not been published in the Bundesgesetzblatt was held to be immaterial, as they had been made known to all exporters through other channels.

¹²⁴ Annex 442 to the Stenographic Records of the Nationalrat, VI. Legislative Period, Report of the Federal Government submitting to the Nationalrat the Money and Proparty Agreement of June 30, 1952 (BGBl. No. 193/1952).

¹²⁵ 67 U.N. Treaty Series 99, No. I: 869.

¹²⁶ Decision of Oct. 9, 1948, Off. Coll. No. 1701.

¹²⁷ This finding of the court implies that it did not consider the intergovernmental agreement concerned to constitute such a legal norm. See pp. 472–473 infra.

¹²⁸ To the same effect, Supreme Court, April 29, 1953 (Salzburger Nachrichten (Der Staatsbürger), Sept. 1, 1953). According to this decision the Austrian Government, when concluding the lease contract, had acted as trustee of the owner without having obtained the latter’s authority and without a legal basis for its action. The Government therefore had to account to the owner for the sums received under the lease contract. The plea of the Government that it had concluded the lease contract in virtue of an international agreement and that the conclusion of this agreement was an act of state was held immaterial.

¹²⁹ Decision of Dec. 14, 1948, Annex 7 to Off. Coll. for 1948. However, the decision of the court was thereby not deprived of effect, as the Austrian Government subsequently legalized these contracts by requisitioning the houses concerned under Austrian law. This practice was held legal by the courts. Adm. Court, Nov. 16, 1949, Off. Coll. No. 1092 (A); Const. Court, June 28, 1949, Off. Coll. No. 1813 (Juristische Blätter, 1949, p. 501).

¹³⁰ This part of the decision cited in notes 126 and 129 supra, is criticized by Herz, Wilhelm, “Erklärung der Unzuständigkeit als Kompetenzüberschreitung,” Österreichische Juristenzeitung, 1949, p. 413 Google Scholar; and “ Feststellungserkenntnisse des Verfassungsgerichtshofes,” Juristische Blätter, 1950, p. 500, contra Adamovich, “Probleme der Verfassungsgerichtsbarkeit,” ibid., p. 76 Google Scholar.

¹³¹ See p. 473 infra.

¹³² The Federation has, however, concluded international agreements which, inside Austria, were applicable only in the territory of a particular Land; for instance, the treaties of Feb. 23 and June 24, 1925 (BGBl, Nos. 176 and 177/1926), with Italy concerning certain problems resulting from the cession to Italy of parts of Tyrol and Carinthia, respectively.

¹³³ Hence the Trade Agreements of 1945 between Vorarlberg and Switzerland and between Tyrol and Switzerland were unconstitutional. See p. 474 infra.

¹³⁴ Kelsen, 5 op. cit. 82; Hlavac, op. cit. 21, note 12, is right in thus extensively interpreting a statement by Adamovich, op. cit. 266, which is merely concerned with the predominance of the Federal treaty-making power over the administrative power of the Länder.

¹³⁵ The Convention of March 19, 1902, on Protection of Birds Useful to Agriculture was declared applicable in the territory of the Austrian Republic by ordinance of the State Government of Austria (the predecessor of the Federal Government) of June 15, 1920 (StGBl. No. 304/1920), in virtue of Art. 234 of the Treaty of St. Germain.

¹³⁶ According to Annex 73 to the Stenographic Records of the Nationalrat, VII. Legislative Period, I.L.O. Convention No. 100 (BGBl. No. 39/1954), concerning Equal Eemuneration for Men and Women Workers for Work of Equal Value, refers also to the civil servants of the Länder.

¹³⁷ Hlavač, op. cit. 21.

¹³⁸ The agreement reached by the Lake Constance Conference in 1922 concerning the limitation of certain types of Ashing on Lake Constance was signed on behalf of Austria by officials of the Federal Ministry of Agriculture and Forestry (Bernhard Schuster, Die Entwicklung der Hoheitsverhältnisse am Bodensee seit dem 30-jährigen Krieg (Constance, 1951) 133), although fishing is a Land matter.

¹³⁹ Hlavač, op. cit. 21; Kelsen, 5 op. cit. 82.

¹⁴⁰ Idem 83.

¹⁴¹ This is deduced, a contrario, from the fact that Art. 15 (6), which provides a similar sanction for Länder delaying to pass detailed legislation in matters where the Federation has a right to lay down broad legislative principles, contains such a time clause. Adamovich, Die österreichischen Bundesverfassungsgesetze 57 (1947).

¹⁴² Const. Law of Jan. 21, 1948, BGBI. No. 45.

¹⁴³ For instance, Burgenland law of March 8, 1934, on protection of birds useful to agriculture (Burgenland Landesgesetzblatt No. 60/1934) ; see note 135 supra. Par. 25 (2) of Vorarlberg Ordinance No. 30/1936 (Vorarlberg Landesgesetzblatt 1936), transforms the 1922 Agreement on Fishing in Lake Constance into Vorarlberg law; see note 138 supra.

¹⁴⁴ Hlavač, op. cit. 21.

¹⁴⁵ Métall, 7 Zeitschrift für öffentliches Recht 106–118 (1928)Google Scholar.

¹⁴⁶ Adamovich, Grundriss 265–266, 306, tends towards this solution; Kelsen, 5 op. cit. 258, leaves this question open.

¹⁴⁷ The decision cited in note 152 infra concerned lease contracts made pursuant to an international agreement, but not such an agreement itself.

¹⁴⁸ Ordinances of March 25, 1919, StGBl. No. 191, and Feb. 27, 1919, StGBl. No. 152.

¹⁴⁹ July 24, 1917, RGBl. No. 307/1917.

¹⁵⁰ Const. Court, Dec. 15, 1924, Off. Coll. No. 360.

¹⁵¹ See pp. 469–470 supra.

¹⁵² Const. Court, Oct. 9, 1948, Off. Coll. No. 1701.

¹⁵³ See note 129 supra.

¹⁵⁴ 5 op. cit. 136, and Kunz, loc. cit. 305, quoting Strupp, Das völkerrechtliche Delikt 65/66, note 2.

¹⁵⁵ Pitamic, loc. cit. 18, discusses the provision of Art. 6 of the Fundamental Law of Dec. 21, 1867 (RGBl. No. 145), on the exercise of governmental and executive power, which likewise required the consent of Parliament for the validity of certain types of treaties (see note 52 supra). According to him, the authors of this provision intended that such treaties should be void even in international law without parliamentary consent (ibid. 36–37); however, as the Austrian legislators could not alter international law, a treaty ratified by the Head of State without the necessary parliamentary approval would be internationally binding, although null and void in internal law (ibid. 49).

¹⁵⁶ BGBl. No. 40/1920, and Monitorul Official of Oct. 19, 1920, No. 157.

¹⁵⁷ Austria protested against the Eumanian attitude, but did not press the matter any further in order not to jeopardize negotiations concerning the conclusion of a new Austro-Rumanian Trade Agreement which were then already under way and finally led to the conclusion of the agreement contained in the exchange of notes of Feb. 5, 1924 (BGB1. No. 80/1924; Pierre Chailley, La nature juridique des traités internationaux 222–223 (1932)). In its decision of March 10, 1923 (Off. Coll. No. 13237 (A)), the Adm. Court assumed that the earlier agreement was still in force (see note 76 supra). The Austrian point of view was likewise maintained in the later agreement (BGBl. No. 80/1924), as its clause of promulgation in the Bundesgesetzblatt runs as follows: “This … Treaty … has become effective on Feb. 13, 1924. Simultaneously [italics supplied] the Provisional Trade Agreement of August 14, 1920, BGBl. No. 40/1920, has become inoperative.”

¹⁵⁸ “Thus as the promise to pay embodied in the treaty concerned is ineffective and not binding under internal law, a special Federal Law (Art. 10 (1) sub-par. 15) will be required in order to regulate under internal law the compensation for war damages pursuant to the present Treaty.” Supreme Court, Decision of Feb. 20, 1952, 5 Österreichische Zeitschrift für öffentliches Recht 564 (1953).

¹⁵⁹ in the same sense Adamovich, op. cit. 263; Verdross, Völkerrecht 139 (1955).

¹⁶⁰ Adamovich, op. cit. 265.

¹⁶¹ Conclusion by analogy from Art. 140 (3) concerning the judicial review of laws. The finding of the Constitutional Court declaring a law unconstitutional has no retroactive effect.

¹⁶² Die Wirtschaft, Jan. 27, 1946; text of agreement between Vorarlberg and Switzerland in 100 Jahre Handelskammer und gewerbliche Wirtschaft in Vorarlberg (Feld-kirch, 1952), p. 396. The story of this agreement is discussed ibid., pp. 142–143.

¹⁶³ Neue Zürcher Zeitung, Aug. 19, 1946.

¹⁶⁴ Ibid., June 2, 1947.

¹⁶⁵ Métall, 7 Zeitschrift für offentliches Becht 117–118 (1928)Google Scholar.

¹⁶⁶ Contra Métall, ibid. 115.

¹⁶⁷ Note 56 supra.

¹⁶⁸ Publication in the semi-official “Wiener Zeitung” of June 28, 1947, was held to be no substitute for publication in the Bundeagesetzblatt. The agreement concerned was also published in 67 U.N. Treaty Series 89, No. I: 868.

¹⁶⁹ See note 158 supra.

¹⁷⁰ A strange sidelight on this ease is a pending lawsuit against the Austrian Government under the Federal Torts Law of Dec. 18, 1948 (BGBl. No. 20/1949). The claimant alleges that if the agreement had been approved by the Nationalrat, he would have had a direct pecuniary claim against the Austrian Republic. As the Government neglected to submit the agreement to the Nationalrat, it had by this negligence caused him a pecuniary prejudice entitling him to reparation under the Federal Torts Law. Decision of the “Vienna Landesgericht (Court of Appeals), May 20, 1953 (Salzburger Nachrichten, June 20, 1953), in favor of claimant; appeal to Supreme Court pending. This decision establishes in some respects a parallel to the impeachment procedure mentioned on p. 474 supra.

¹⁷¹ Cf. p. 454 supra, and Const. Court, March 9, 1948, Off. Coll. No. 1607: “The claimant is not entitled to lodge a complaint about the alleged violation of the Treaty of St. Germain. … The Const. Court is, moreover, incapable of taking this aspect into consideration under Art. 145 FC on its own initiative as the Federal Law announced in this provision has not yet been enacted.”

¹⁷² According to Kelsen, 5 op. tit. 280, Art. 145 merely establishes sanctions for violations of the generally recognized rules of international law (Art. 9).

¹⁷⁸ Kunz, loc. cit. 323, seems to a certain extent doubtful whether the court should have this power. See, however, note 171 supra, Adamovich, op. cit. 44, and Hlavač, op. cit. 22.

¹⁷⁴ See note 171 supra.

¹⁷⁵ See the list of the 21 I.L.O. conventions adhered to by Austria up to 1950 in BGBl. No. 219/1950.