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Conciliation Commission with Italy under Treaty of Peace
Published online by Cambridge University Press: 16 May 2017
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- Judicial Decisions
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- Copyright © American Society of International Law 1956
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1 Consisting, under Art. 83 of the Italian Peace Treaty, of one American representative, one Italian representative, and, in case of a failure to agree within three months, a third member to be chosen by mutual agreement (or by the Secretary General of the United Nations in case of inability to agree on the third member). See Domke, “Settlement-of-Disputes Provisions in Axis Satellite Peace Treaties,” 41 A.J.I.L. 911 (1947). Antonio Sorrentino served as the Italian representative in these cases, and first Emmett A. Scanlan, Jr., and later Alexander J. Matturri, as the United States representative. Third members were used in several of the cases.
2 42 A.J.I.L. Supp. 47 (1948). This treaty was clarified and supplemented, as between the United States and Italy, by the so-called “Lombardo Agreement” of Aug. 14, 1947, ibid. 146 and 152.
3 Mimeographed copies of the opinions were made available by an officer of the Department of State.
4 Rendered Oct. 26, 1953, by Antonio Soirentino, and José Caeiro da Matta of Portugal as third member.
5 Commissioner Scanlan dissented on the ground that the order of June 6, 1940, for the vessel to return was so closely connected with the war, and the inability of the American owner to protect his cork so much a result of the war, as to bring this claim within the treaty, since there was “sufficiently direct causal relationship between the war and occurrences which caused the loss.” He believed that in interpreting the treaty phrase account should be taken of the United States’ proposal for the article, which defined “as a result of the war” to include “the consequences of any action taken by the Italian Government, any action taken by any of the belligerents, any action taken under the Armistice of September 3rd, 1943 and any action or failure to act caused by the existence of a state of war.”
6 Decided Dec. 6, 1954, with Emil Sandström of Sweden as third member. There was also a problem as to valuation.
7 The Commission rejected the Italian contention that compensation for “administrative measures” such as requisition was limited to the situations covered by Art. 78, par. 4(d) of the treaty, which reads:
”The Italian Government shall grant United Nations nationals an indemnity in lire at the same rate as provided in sub-paragraph (a) above to compensate them for the loss or damage due to special measures applied to their property during the war, and whieh were not applicable to Italian property. This sub-paragraph does not apply to a loss of profit.”
8 In defining “property” for purposes of Art. 78, par. 9(e) adds that it includes “all seagoing and river vessels, together with their gear and equipment, which were either owned by United Nations or their nationals, or registered in the territory of one of the United Nations, or sailed under the flag of one of the United Nations and which, after June 10, 1940, while in Italian waters, or after they had been forcibly brought into Italian waters, either were placed under the control of the Italian authorities as enemy property or ceased to be at the free disposal in Italy of the United Nations or their nationals, as a result of measures of control taken by the Italian authorities in relation to the existence of a state of war between members of the United Nations and Germany.”
9 See also U.S.A. ex rel. George Lewis Batchelder v. Italian Republic, Case No. 36 (July 26, 1954).
10 Although the final draft of paragraph 4(a) did not use the term “owner,” earlier drafts showed the relevance of Art. 78, par. 9(b), providing that:
” ‘Owner’ means the United Nations national, as defined in sub-paragraph (a) above, who is entitled to the property in question, and includes a successor of the owner, provided that the successor is also a United Nations national as defined in sub-paragraph (a). If the successor has purchased the property in its damaged state, the transferor shall retain his rights to compensation under this Article, without prejudice to obligations between the transferor and the purchaser under domestic law.”
11 Decision of May 19, 1955, by Commissioners Sorrentino and Matturri, and third member José de Yanguas Messía of Spain.
12 Unanimous decision of June 10, 1955, by Commissioners Sorrentino and Matturri, and third member José de Yanguas Messía (Spain).
13 The Commission pointed out that in the Brignone case before the Italo-Venezuelan Commission of 1903 (Ralston, Venezuelan Arbitrations of 1903, p. 710), the claim of a person of both Italian and Venezuelan nationality was rejected even though the protocol establishing the commission gave it jurisdiction over “all the remaining Italian claims, without exception.”
14 See 24 A.J.I.L. Supp. 193 (1930). Of the Hague Convention, the Commission said that it, “although not ratified by all the Nations, expresses a communis opinio juris, by reason of the near-unanimity with which the principles referring to dual nationality were accepted.” The Commission reviewed the cases and literature on claims on behalf of persons having the nationality of both claimant and respondent states.
15 This decision was followed in rejecting the claim in U.S.A. ex rel. Winifred Cecil Mazzonis, Case No. 9 (June 10, 1955), where an American woman born in 1907 had married an Italian in Italy in 1942 and lived with him in Italy until his death in 1948. She made a brief visit to the United States after his death, returned to Italy to settle his estate, and came back to the United States in 1949. The Commission referred to the fact that her marriage was to a person who was an enemy of the United States at the time, and that neither her husband's professional life nor the family's habitual residence had been in the United States; they did not come to the United States after the end of hostilities, and if her husband had not died she “ would presumably still be living in Italy.”
16 Decision of Dec. 6, 1954, joined in by Commissioner Matturri (U.S.A.) and third member Emil Sandström (Sweden). Italian Commissioner Sorrentino dissented on the grounds that treatment as enemy must be equated to nationality rather than made more extensive in coverage, and that after the 1943 Armistice Italy could not be held to have regarded claimant as enemy when it was German or Italian-Fascist enemies of Italy who so regarded him, particularly as there was no evidence that the German authorities actually controlling Trieste and confiscating claimant’s property were applying (or purporting to apply) Italian law. In his view such confiscation might be compensable under Art. 78 to a proper claimant, but it did not “concretize treatment as enemy.”
17 Other cases discussing questions of evidence and proof included U.S.A. ex rel. Stein-way & Sons v. Italian Republic, Case No. 30 (April 10, 1953); U.S.A. ex rel. Eric W. Mandelik v. Italian Republic, Case No. 67 (May 19, 1955); and U.S.A. ex rel. Andrew Znamiecki and Sophie Znamiecki Chace v. Italian Republic, Case No. 28 (May 24, 1955). Valuation was the chief issue in dispute in U.S.A. ex rel. Ermenegilda Petrillo v. Italian Republic, Case No. 24 (March 21, 1952); U.S.A. ex rel. Abraham and Perl Weiss v. Italian Republic, Case No. 27 (Nov. 25, 1953); and U.S.A. ex rel. Adolf Rubin and Isidore Lanczi v. Italian Republic, Case No. 48 (April 6, 1955). In U.S.A. ex rel. Joseph Fatovich v. Italian Republic, Case No. 35 (July 12, 1954), the Commission held that interest was not to be included in the amount of compensation, since the treaty had not specified interest, and this result accorded with “what this Commission considers to be equity and justice to a debtor Government, as well as the sounder opinion of other international tribunals.”
A compromise agreement between the majority owners of an Italian vessel and the Italian Government, specifically reserving any rights under the treaty of claimant as ⅙th owner, did not prevent claimant’s recovery based on sinking of the vessel; U.S.A. ex rel. Rose Barrera v. Italian Republic, Case No. 141 (July 15, 1955).