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The Legality of the Annexation of Austria by Germany

Published online by Cambridge University Press:  25 April 2017

Herbert Wright
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Extract

The legality of the annexation of Austria by Germany under international law stems out from the peace treaties signed in the suburbs of Paris at the end of World War I. The Treaty of Versailles of June 28, 1919, between Germany and the Allied and Associated Powers.

Type
Research Article
Information
American Journal of International Law , Volume 38 , Issue 4 , October 1944 , pp. 621 - 635
Copyright
Copyright © by the American Society of International Law 1944

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Footnotes

*

The following paper is derived from the author’s memorandum on the “Attitude of the United States toward Austria,” House Doc; No. 477, 78th Cong., 2d Sess.

References

1 Since writing the paper presented here there has come to the author’s attention Hans Klinghoffer, Les aspects juridiques de l’occupation de I’Autriche, Rio de Janeiro, 1943, which covers many of the points made here, but is not as detailed.

2 Carnegie Endowment for International Peace, The Treaties of Peace, 1919–1923, New York, 1924, Vol. I, p. 59.

3 Carnegie Endowment, work cited, p. 277.

4 Carnegie Endowment, work cited, p. 297.

5 French text and English translation in Hudson, Manley O. (ed.), International Legislation, Vol. II, pp. 882–883 Google Scholar. Italics mine.

6 English translation of the Austro-German Protocol of March 19, 1931, in Hudson, Manley O. (ed.), World Court Reports, Vol. II, pp. 746–748 Google Scholar. An acount of the final achievement of the Anschluss with its historical background and relevant documents is contained in Volkerbund, VIIth year, no. 11–12 (March, 1938) and no. 13 (April, 1938).

7 Borchard, Edwin M., The Customs Union Advisory Opinion, this Journal , Vol. 25 (1931), p. 711 Google Scholar. Text of Advisory Opinion No. 20, Sept. 5, 1931, in Hudson, , World Court Reports, Vol. II, pp. 711–743 Google Scholar.

8 Adolf Hitler, MeinKampf, New York, 1939 (compl. andunabr. fully annot. Eng. trans.), p. 3. Italics original.

9 A popular account of these incidents is given by Harold Nicolson, Why Britain Is at War, Harmondsworth, England, 1938, pp. 58–72.

10 For many of the statements of fact mentioned herein, see the “Chronology” in the World Almanac for the respective year and Keesings Archiv der Gegenwart for July 14,1936, p. 2641, which gives a survey of events from March 31, 1931, to the agreement of July 11, 1936, and Keesings Archiv for Feb. 15, 1938, p. 3424, which brings the account up to that date.

11 German text in Keesings Archiv for Jan. 30, 1934, p. 1254.

12 Italian text and English translation in Hudson, International Legislation, Vol. VI, pp. 641–642. Two other Protocols were signed at Rome on March 17 and 23 by the same nations; texts in same, pp. 643–646.

13 Bundesverfassungsgeaetz vom 30 April 1934 ausserordentliche Massnahmen im Bereich der Verfassung, in the Bundesgesetzblatt für die Repvblik österreich, Vol. I, no. 255/1934, issue 72.

14 O. Ender, Die neue österreichische Verfassung, mit dem Text des Konkordates, Vienna and Leipzig, 1934 (3d ed.). See Steiner, H. Arthur, The Austrian Constitution of 1934, this Journal, Vol. 29 (1935), pp. 125–129 Google Scholar.

15 Keesings Archiv for Feb. 15, 1938, p. 3424; text in G. Fr. de Martens, Nouveau recueil gin6ral de traitis, 3d ser., 39, p. 3.

16 Text in The Times, London, Jan. 12, 1935, p. 11.

17 Keesings Archiv for Feb. 15, 1938, p. 3424.

18 Same for May 21,1935, p. 2052. The German text of the entire speech is printed here.

19 Same for May 30, 1935, pp. 2067 ff.

20 Same for June 28, 1935, p. 2114.

21 Same for Aug. 27, 1935, p. 2197.

22 Same for April 21, 1936, p. 2522.

23 Völkerbund, VIIth year, no. 11–12 (March, 1938), p. 150. Cf. New York Times, July 12, 1936, p. 1; The Times, London, July 13, 1936, p. 14.

24 The main outlines of the plan are set forth in Eugene Lennhoff, The Last Five Hours of Austria, London, April, 1938, pp. 75–76.

25 Keesings Archiv for Feb. 12, 1938, p. 3418; Völkerbund, Vllth year, no. 11–12 (March 1938), p. 150. The forcible seizure of Austria was foreshadowed two days earlier, Feb. 10, 1938, when Germany announced its intention to recognize “Manchukuo,” which had been similarly forcibly seized by Japan. A treaty between Germany and “Manchukuo” was signed at Berlin on May 12,1938. Christian Science Monitor, May 12,1938, p. 1; Hackworth, Green H. (ed.), Digest of International Law, Vol. I, p. 338 Google Scholar.

26 See Lennhoff, work cited, pp. 79–81.

27 Völkerbund, issue cited, p. 151; Keesings Archiv for Feb. 16, 1938, p. 3425.

28 Same, p. 3426. This idea was developed by Schuschnigg in the course of a lengthy address on Feb. 24, 1938. Keesings Archiv for Feb. 24, 1938, pp. 3439–3444. For an account of Schuschnigg's visit to Berchtesgaden and its results, see Lennhoff, work cited, pp. 82–101, and Keesings Archiv, passim.

29 Keesings Archiv for Feb. 18, 1938, p. 3428. Italics mine.

30 English translation of proclamation of Schuschnigg in VSlkerbund, issue cited, p. 152; cf. Keesings Archiv for March 9,1938, p. 3466, which also gives the procedure and details for the holding of the plebiscite. For an account of how the news “broke” in Vienna, see also Lennhoff, work cited, pp. 120–133.

31 Vdlkerbund, issue cited, pp. 153–154, which gives an English translation from Wiener Neueste Nachrichten, the morning edition of which was confiscated because of Dr. Jury’s article. Cf. Keesings Archiv for March 11, 1938, p. 3468. Article 65, par. 1, provides that “The people shall be called to vote, when the Federal Government decides”, etc., mentioning three instances of Federal legislation. Ender, work cited, p. 61. On the morning of March 11 an Austrian Nazi newspaper maintained that the proposed plebiscite was illegal and unconstitutional: Lennhoff, work cited, p. 30.

32 Lennhoff, work cited, p. 71.

33 Keesings Archiv for March 11, 1938, p. 3468.

34 Printed in Guido Zernatto, Die Wahrheit über Oesierreich, New York and Toronto, 1939. Zernatto owns the original letters included in this correspondence.

35 Zernatto, work cited, pp. 289 ff.

36 Zernatto, work cited, p. 295.

37 Their attitude in presenting this ultimatum under the threat of withdrawing from the cabinet and declining all responsibility for anything that might subsequently happen, in direct contradiction to the assurances that had been given the preceding day, was determined by the orders that the two Ministers, according to their own testimony, had received from the Reich Government. Seyss-Inquart received his instructions by telephone from Goring and Hess and declared that decisions would henceforth be made in Berlin and his only mission would consist in “transmitting the orders without the slightest influence on the contents thereof.” Zematto, work cited, pp. 307 and 309. Thereby they violated not only their oath, taken in conformity with Article 84, par. 1, of the Constitution, but also Article 93. Their attitude might also be considered to constitute high treason under Section 58 (c) of the Austrian Penal Law, which provides that he commits the crime of high treason who acts in a way “to provoke or increase an external danger for the State or a revolt or a civil war within.”

38 Lennhoff, work cited, pp. 185–186.

39 Keesings Archiv for March 11, 1938, p. 3468; Lennhoff, work cited, p. 196. In the evening of March 11 the German radio commenced to spread the “news” of alleged Communist troubles in Austria to justify the entry of German troops which apparently had been ready since Monday, March 7, that is, two days before Schuschnigg's announcement of the plebiscite.

40 Von Ribbentrop had explained to Lord Halifax in London that the concentration of German troops along the Austrian border was merely as “a measure for the protection of the German frontier!” Lennhoff, work cited, p. 197. The Deutsche Nachrichtenbüro subsequently broadcast a communiqué in which the Reich Government formally denied the sending of an ultimatum to the Austrian Federal Government demanding the formation of a National-Socialist Cabinet, declaring this demand had proceeded from Austrian sources: Volkerbund, issue cited, p. 154.

41 Lennhoff, work cited, p. 208.

42 English translation in Lennhoff, work cited, pp. 213–214; and Volkerbund, issue cited, p. 154; repetition occurs in the original. German text in Keesings Archiv for March 11, 1938, p. 3468.

43 Völkerbund, issue cited, p. 155; Keesings Archiv for March 12, 1938, p. 3469; Lennhoff, work cited, pp. 215–216. The German troops had already left Munich at 1 p.m.

44 Völkerbund, issue cited, p. 155; Keesings Archiv for March 12, 1938, p. 3469; Lennhoff, work cited, p. 236. It would seem to have been unnecessary for a National-Socialist Government which, according to the subsequent plebiscite of April 10, had the support of 99.73 per cent of the population, to have required the assistance of foreign troops, including planes and tanks, to maintain peace and order against the remaining 0.27 per cent.

45 Völkerbund, issue cited, p. 155; Keesings Archiv for March 12,1938, p. 3469; cf. Lennhoff, work cited, pp. 232 and 236.

46 English translation of both addresses in Volkerbund, issue cited, pp. 156–157; German text in Keesings Archiv for March 12, 1938, pp. 3470–3471.

47 German text in Keesings Archiv for March 13,1938, p. 3471; English translation in U. S. Dept. of State, Press Releases, Vol. 18, p. 374, and Volkerbund, issue cited, p. 1.

48 Garner, James W., Questions of State Succession Raised by the German Annexation of Austria, this Journal, Vol. 32 (1938), p. 422 Google Scholar.

49 U. S. Foreign Relations, 1917, Supp. 2, Vol. I, p. 778; Hackworth, work cited, Vol. I, p. 215.

50 U. S. Foreign Relations, 1918, Supp. 2, p. 206.

51 Same.

52 This would not violate Article 23 of the Regulations concerning the Laws and Customs of Land Welfare attached to Hague Convention IV of Oct. 18, 1907, that “A belligerent is also prohibited from compelling the nationals of the adversary to take part in military operations against their country, even in case they were in his service before the commencement of the war” any more than the utilization of Free French soldiers who escaped from forced German military service and for the same reason, that, since they would be volunteers, there would be no compulsion. This Journal, Vol. 2 (1908), Supplement, p. 107; U. S. Foreign Relations, 1907, Pt. 2, p. 1211.

53 U. S. Congress, 78th Cong., 1st sess., Congressional Record, Vol. 89, no. 164 (Nov. 1, 1943), p. 9026; U. S. Dept. of State, Publ. 2162 (War Documents), p. 14.