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The Status of Germany and the Peace Proclamation

Published online by Cambridge University Press:  20 April 2017


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Copyright © American Society of International Law 1952

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1 Kurt v. Laun, “The Legal Status of Germany,” this Journal, Vol. 45 (1951), pp. 267 ff.

2 “War” in the legal sense can only exist between sovereign states assumed to be jurally equal or between a state and an insurgent government which has been generally recognized as a belligerent with jural equality for the purposes of war. See L. Oppenheim (Lauterpacht), International Law, 6th ed., Vol. 2, sees. 58, 59; Q. Wright, A Study of War (Chicago, 1942), pp. 8 ff., 694 ff., 877 ff., 891 ff. In popularizing the phrase “the outlawry of war,” Salmon O. Levinson thought that such “outlawry” would be effected by eliminating the equal status of the participants in hostilities. The essence of “war,” as of the duel, he thought, was such equality; consequently by assuring that the aggressor and the defender would be determined in all hostilities and that they would be accorded a different status, war would be “outlawed”—it would no longer exist in the sense of international law. He gained this conception from John Bassett Moore who wrote him “after you outlaw war, do not use the word war any more but refer always to the inherent right of self defense.” According to Levinson, “Defense against aggression … would not be war any more than defense by an individual, after dueling was outlawed, would be called dueling.” John E. Stoner, S. O. Levinson and the Pact of Paris (Chicago, 1943), p. 196.

3 Wright, Q., “The Transfer of Destroyers to Great Britain,this Journal, Vol. 34 (1940), pp. 680, 689Google Scholar; “The Lend Lease Bill and International Law,” ibid., Vol. 35 (1941), pp. 308 ff.

4 Trial of Major War Criminals, Nuremberg, 1947, Vol. 1, p. 223; Wright, Q., “War Criminals,this Journal, Vol. 39 (1945), p. 266 Google Scholar; “The Law of the Nuremberg Trial,” ibid., Vol. 41 (1947), pp. 66, 71.

5 IV Hague Convention, 1907, Art. 43.

6 Report on Potsdam Conference, Aug. 2, 1945, Department of State Bulletin, Vol. 13 (Aug. 5, 1945), pp. 155 ff.; The Axis in Defeat—A Collection of Documents on American Policy toward Germany and Japan (Department of State, 1945), pp. 10 ff.; Occupation of Germany, Policy and Progress, 1945–46 (Department of State, 1947).

7 Robert H. Jackson, Attorney General, address to Inter-American Bar Association, Havana, Cuba, March 27, 1941, this Journal, Vol. 35 (1941), pp. 348 ff.; Q. Wright, “Permissive Sanctions against Aggression,” ibid., Vol. 36 (1942), p. 103; also above, note 3.

8 Kelsen, Hans, “The International Legal Status of Germany to be Established Immediately upon Termination of the War,this Journal, Vol. 38 (1944), at p. 692 Google Scholar; “The Legal Status of Germany according to the Declaration of Berlin,” ibid., Vol. 39 (1945), pp. 518 ff.

9 The legality of Doenitz’s succession to Hitler has been questioned. See Laun, loc. cit.

10 Proc. 2950, 16 Fed. Reg. 10915; this Journal, Supp., Vol. 46 (1952), p. 12.

11 Department of State Bulletin, Vol. 25, No. 629 (July 16, 1951), p. 9; No. 646 (Nov. 12, 1951), p. 769; U. S. Code, Congressional and Administrative Services, 1951, pp. 4049, 4250.

12 42 U. S. Stat. 105.

13 Kunz, Josef L., “Ending the War with Germany,this Journal, Vol. 46 (1952), p. 114.Google Scholar

14 Department of State Bulletin, Vol. 23, No. 587 (Oct. 2, 1950), pp. 530–531.

15 Ibid., Vol. 25, No. 629 (July 16, 1951), p. 92.

16 Hudson, Manley O., “The Duration of the War between the United States and Germany,Harvard Law Review, Vol. 39 (1925), pp. 1020, 1045CrossRefGoogle Scholar; Arnold v. Ellison (1928), 96 Pa. Super. Ct. 118, 124; First National Bank of Pittsburgh v. Anglo-Oesterreichische Bank, 37 Fed. (2d) 564, 567; Hackworth, Digest of International Law, Vol. 6, pp. 430 ff.

17 Department of State Bulletin, Vol. 12, No. 311 (June 10, 1945), p. 1051; The Axis in Defeat, p. 63; this Journal, Supp., Vol. 39 (1945), pp. 171, 172.

18 The Prize Cases (1862) (Nelson, J., dissenting), 2 Black 690; The Three Friends (1897), 166 U. S. 1.

19 U. S. Executive Agreement Series, No. 236; this Journal, Supp., Vol. 36 (1942), p. 191.

20 Harvard Research in International Law, Draft Convention on Aggression (Jessup, Reporter), this Journal, Supp., Vol. 33 (1939), pp. 823 ff.; Wright, Q., “The Concept of Aggression in International Law,this Journal, Vol. 29 (1935), pp. 373 ff.Google Scholar; above, notes 2, 3, 6.

21 G. G. Wilson, “Insurgency,” U. S. Naval War College, 1900; International Law (3rd ed., St. Paul, 1939), pp. 38 ff., 255.

22 Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control, Cmd. 6418 (London, H. M. Stationery Office, 1943); Council on Foreign Eelations, The Postwar Settlement of Property Rights (New York, 1945), pp. 46 ff., 62 ff.; Q. Wright, “War Claims: What of the Future?”, Law and Contemporary Problems, Summer, 1951, pp. 546 ff.

23 The “Unconditional Surrender” of Germany, called for at the Casablanca Conference of January, 1943, was considered to result in the “conquest” or “debellatio” of Germany, permitting “subjugation” by the conquerors through a declaration of “annexation” or, if they preferred, as they did, an exercise of sovereign authority for a limited time. See Curtis C. Shears, “Some Legal Implications of Unconditional Surrender,” Proceedings, American Society of International Law, 1945, pp. 44 ff.

24 Great Britain v. Costa Rica (Tinoco Arbitration), this Journal, Vol. 18 (1924), pp. 182–187. See also Hopkins (U. S.) v. Mexico (1923), Report of Commission, 1927, pp. 42, 50.

25 Neeley v. Henkel (1901), 190 U. S. 109, 120; Kelsen, in this Journal, Vol. 39 (1945), p. 522. The situation may also be compared to that of Egypt under British occupation from 1882 to 1919 and to that of Mandated and Trust Territories. See Q. Wright, this Journal, Vol. 41 (1947), p. 50; Mandates under the League of Nations (Chicago, 1930), pp. 327 ff.

26 Texas v. White (1869), 7 Wall. 700; Dunning, W. A., Essays on the Civil War and Eeconstruction (New York, 1931), pp. 11 ff.Google Scholar; Q. Wright, A Study of War, p. 914.

27 Ernst H. Peilchenfeld, The International Economic Law of Belligerent Occupation (Washington, 1942), pars. 44, 45, 324, 326.

28 Wright, Q., “Some Thoughts on Recognition,this Journal, Vol. 44 (1950), pp. 548 ffGoogle Scholar.

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