The International Legal Status of Austria 1938–1955

166 Pages·1962·10.145 MB·English

by  Robert E. Clute (auth.)

THE INTERNATIONAL LEGAL STATUS
OF AUSTRIA 1938-1955
THE INTERNATIONAL
LEGAL STATUS OF AUSTRIA
1938- 1955
by
ROBER T E. CL UTE
Department oJ Political Science
University oJ Georgia
THE HAGUE
MARTINUS NIJHOFF
1962
ISBN 978-94-015-0382-2 ISBN 978-94-015-0969-5 (eBook)
DOI10.1oo7/978-94-015-0969-5
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PREFACE
Austria was the first victim of Hitler's policy of aggression. The Ger
man domination of that country (the so-called Anschluss) heralded
the beginning of a diplomatie demarche. The event also had deep
implications for the legal system of the international community.
The Allied occupation of Austria after W orId War II and the long
delay in attaining aState Treaty to arrange for the Allied withdrawal
from Austrian territory eventually gave rise to some doubts as to the
international legal status of the latter.
This study is confined to an examination of the international legal
problems involved in Austria's changed status from the Anschluss of
March 13, I938, until the signing of the State Treaty on May 15,
1955. It is not intended to be a history of the period covered and no
attempt is made to treat fully such fascinating topics as the diplo
matie negotiations leading up to the Anschluss or the story of the long
struggle between the occupying powers to attain aState Treaty for
Austria. The time span of this work was deliberately chosen in a
desire to confine it to an appraisal ofthe legal continuity ofthe Austrian
State and an evaluation of the impact of the Austrian question on the
traditional law of state succession and recognition. The problem of
Austria's new neutralized status resulting from the negotiations in
connection with and subsequent to the signing of the Austrian State
Treaty is worthy of separate treatment and is not dealt with in the
present study.
The writer is indebted to Professor John H. HalloweIl who provided
the original idea for this study. The question of the continuity of the
Austrian State is particularIy significant, not only because of legal
consequences of this continuity on post-Anschluss Austria, but be
cause the Austrian question is apart of the over-all problem of illegal,
vm PREFACE
semi-permanent acquisitions of territory which have occurred with
alarming frequency since World War 1. As may be seen from the
sources cited in this study, a considerable amount of writing has been
done on the international legal status of Austria. However, most of
these writings have been brief and limited in scope. Apparently the
vast quantity of available documentary evidence has not previously
been utilized to full advantage or examined in relation to the inter
nationallaw of state succession as a whole. There is, therefore, a need'
for an encompassing legal appraisal of the Austrian question not only
in order to clarifY Austria's legal status, but to arrive at some con
clusions which may be applicable to states such as Albania and
Ethiopia, which have likewise experienced unlawful, semi-permanent
annexations of their territories.
An examination of available evidences in the light of the inter
national law of state succession indicates that the continuity of the
Austrian State was recognized not only by Austria itself but by the
vast majority of the community of nations. The ability of the Austrian
State to survive despite such a long period of foreign domination is
largely attributable to the movement in the international community
to outlaw illegal acquisitions of territory. This movement has pro
duced an array of contractual obligations and state practices which
were utilized by the international community in regard to the An
schluss. This study does not deal with the entire movement for the
outlawry of such illegal acts, but is only concerned with that part of
the movement which had a direct effect on the reaction of the inter
national community to the Anschluss itself. Before considering effects
ofthe obligation (on the part ofthe family ofnations) not to recognize
illegal acquisitions of territory it is necessary to establish that the
Anschluss was such an illegal act. Wühin the limited scope of this
study an examination has been made of the effect of the movement
on state practice, and the development of the international law of
state succession and recognition.
To my wife, Dons, I wish to express my gratitude for the under
standing and assistance which she has given me in this undertaking.
I wish to thank the members of the Austrian Embassy, particularly
His Excellency, Dr. Karl Gruber, and Dr. Edgar Plan, who were
most generous with their time in discussing the problem with me
and most helpful in assisting me with materials. I also wish to express
my appreciation of the expert and willing aid which I received from
the staffs ofthe Duke University Library, the library ofthe University
PREFACE IX
of North Carolina and the Law Division of the Library of Congress.
Last, hut not least, I would like to thank Professor Robert R. Wilson
for bis patient, kind and able guidance.
R. E. C.
CONTENTS
Preface VII
Abbreviations XIII
I. The Legality of the Anschluss
Conventional Obligations and the Anschluss
The Advent of Anschluss 5
The Reaction of the International Community 8
Conflicting Views II
11. Austrian Independence 23
Constitutional Deve1opments, First Phase 26
Constitutional Deve1opments, Second Phase 34
Domestic Deve10pments and Austrian Authority 35
111. Recognition 43
Court Cases 50
IV. N ationality 64
The War Period 64
The Post-War Period 68
V. The Public Foreign Debt 82
The Anschluss 83
Post-World-War-II Arrangements 89
VI. Treaties 96
The Anschluss Period 97
Austria's Statehood 102
The Continuity of the Austrian State 106
VII. Austria's Status in International Organizations II2
The League of Nations II3
The United Nations II6
The Specialized Agencies of the United Nations 125
Xli CONTENTS
VIII. Conclusions
The Problem
The Anschluss and Traditional International Law 132
Changing Concepts in International Law 134
Appendices 139
A. Cases from National Courts 141
B. Bilateral Agreements to which Austria has been a Party, 1946-1952 144
Selected Bibliography 14B
Index 154
ABBREVIATIONS
Annual Digest Annual Digest and Reports of Public International Law
Gases. After 1950 title changed to International Law
Reports.
AöR Archiv des ifffentlichen Rechts.
AJIL American Journal of International Law.
Bf'IL British f'earbook of International Law.
Glunet Journal du Droit International.
Gmd. Command Papers from the Sessional Papers.
Great Britain, Parliament.
DBGBl Bundesgesetzblatt. Germany.
DRGBl Reichsgesetzblatt. Germany.
DSB United States Department of State Bulletin.
EAS United States Executive Agreement Series.
FBHPG Annual Report of the Foreign Bondholder's Pro
tective Council, Inc.
For. Rel. Papers Relating to the Foreign Relations of the United
States.
H. G. Deb. Parliamentary Debates (Hansard). House of Gom
mons Oificial Report.
H.L. Deb. Parliamentary Debates (Hansard). House of Lords
Oificial Report.
JB Juristische Blätter.
JöR Jahrbuch des ifffentlichen Rechts der Gegenwart.
JZ Süddeutsche Juristenzeitung (April 1946-December
1950). Name changed to Juristenzeitung (January
1950--)·
LNTS League of Nations Trea~ Series.
Military Government Mzlitary Government Austria. Report of the United
States Commissioner. Mter June 1948 title
changed to Givil Affairs Austria.