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Germany’s Responsibility for Austria’s Debts

Published online by Cambridge University Press:  12 April 2017

James Wilford Garner
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Type
Editorial Comment
Information
American Journal of International Law , Volume 32 , Issue 4 , October 1938 , pp. 766 - 775
Copyright
Copyright © by the American Society of International Law 1938

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References

1 Vol. 32, p. 421 ff.

2 A résumé of his speech so far as it relates to Germany’s obligations in respect to the Austrian debts, together with an analysis by Otto D. Tolischus, Berlin correspondent of the New York Times, will be found in that newspaper for June 17, 1938. A somewhat shorter summary is published in the London Times of June 17, p. 16.

3 In the London Times résumé of his speech, Herr Funk is reported to have referred to the Dawes and Young “loans” as “political” debts. But since they were in no sense debts of Austria, it is unnecessary in this note to deal with them.

4 International Law, Vol. I, p. 78. In the same sense see Phillipson, Termination of War and Treaties of Peace, p. 43; Fauchille, Traité de Droit Int. Pub., Pt. I, p. 352; Jèze, Le portage des dettes publiques au cas de démembrement du Territoire (1921), p. 11; Lawrence, Principles of International Law (7th ed.), p. 91; Hyde, International Law, Vol. I, p. 212; the report of the Transvaal Concessions Commission, 1901 (The Lyttelton Commission), and Lord Alverstone’s opinion in the West Rand Gold Mining Company v. the King, [1905] 2 K. B. 391. See also the opinione and the citations of Feilchenfeld, Public Debts and State Succession, p. 393 ff., and Sack, Les Effets des Transformations des États sur Leurs Dettes publiques, etc., p. 165 ff. Sack, however, excludes war debts from the rule of state succession only when the lender knew that the proceeds of the loan were intended to be used by the borrowing belligerent for the purpose of carrying on the war (op. cit., p. 1680). Oppenheim appears to have been one of the few writers who did not except war debts from the general rule requiring a successor state to assume the debts of an annexed or conquered state. International Law, 3rd ed., Vol. I, sec. 82. But his opinion was so obviously unfounded that the distinguished editor of the 5th edition of his work (Lauterpacht) took the liberty of omitting it from that edition with the statement that it was “open to very grave doubt.” Vol. I, p. 150, n. 2.

5 The actual procedure was this: While the British Government declined to admit responsibility for the debts of the South African Republic, it nevertheless satisfied the creditors as a matter of grace, and by the Act of Union passed by the British Parliament in 1909, it was provided that the Government of the Union of South Africa should assume the debts of the component states. Feilchenfeld, op. cit., p. 384.

6 The details concerning the policy of the British Government in respect to the assumption of the debts of annexed states may be found in Feilchenfeld, op. cit., pp. 379–393; Sack, op. cit., pp. 62–64; Cobbett, Leading Cases in International Law, 4th ed., Vol. II, p. 354; and Phillipson, op. cit., p. 327.

7 Feilchenfeld, op. cit., p. 373, as to the details. See also Sack, op. cit., p. 260 ff.

8 Comments by the German Delegation on the Conditions of Peace, pp. 47, 48.

9 See the Reply of the Allied and Associated Powers to the Comments by the German Delegation on the Conditions of Peace, Pt. III, sec. 5.

10 Ibid., Pts. IV and IX.

11 As to the Nazi conceptions of international law, see Preuss, “National Socialist Conceptions of International Law,” American Political Science Review (1935), p. 594 ff.; Brietler, “La Doctrine Nationale Socialiste du Droit des Gens,” in the Revue Ini. de la Théorie du Droit, 1938, p. 115 ff., and the same author’s Die Völkerrectslehre des National Sozialismus, 1938; Carl Schmitt, National Sozialismus und Völkerrecht, 1934; Rogge, Hitler’s Friedens Politik und das Völkerrecht, 1935; and Walz, National Sozialismus und Völkerrecht, 1934. See also Gott, “The National Socialist Theory of International Law,” this Journal, supra, p. 704.