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Encyclopedia of the Palestine Problem

CHAPTER THIRTY EIGHT Part 1 of 4

THE INTERNATIONAL LAW OF RESTITUTION INVALIDATES ALL ZIONIST MEASURES AGAINST THE RIGHTS, PROPERTIES AND INTERESTS OF THE PALESTINIANS

Restitution is a legal term in international law which means integrum restitutio (total restitution) of property rights or interests to persons who were wrongfully deprived of such property rights and interests by expropriation, confiscation, sequestration, seizures, forfeiture, looting, pillage or plunder ! by the occupier of a country in violation of the rules of I international law regarding the inviolability of private or , public property for reasons of race, religion, nationality, I ideology or political opposition. The property rights and i interests should be restored to the former owner or to his successor in interest irrespective of interests of other persons who had no knowledge of the wrongful acts. The restitution must wipe out all consequences of the illegal act and reestablish the situation which would, in all probability, have existed if the illegal acts had not been committed.

SOURCES OF THE LAW OF RESTITUTION

There are eleven sources for the International Law of Restitution:

1. The Law of Belligerent Occupation.

2. The Judgments of the Permanent Court of International Justice.

3. The London Declaration of January 5, 1943 regarding Forced Transfers of Property in Enemy Controlled Territory.

4. The Resolution of the London International Law Conference of July 12, 1943.

5. Other Declarations of the Allied Powers.

6. Legislation of the Governments-in-Exile.

7. Laws of Restitution enacted by the Allied Powers in Germany.

8. The treaties made between the United Nations and former enemy countries after the defeat of the Axis Powers in World War II.

9. The Legislation made by different countries after World War II.

10. The Geneva Convention of 1949.

11. The United Nations Resolutions regarding Permanent Sovereignty of Peoples and Nations over their National Wealth and Resources.

THE LAW OF BELLIGERENT OCCUPATION

The old rule of Belligerent Occupation was that "enemy territory occupied by a belligerent was in every point considered his state property, so that he could do what he liked with it and its inhabitants."' During the second half of the 18th and early 19th centuries, international law was changed. The Belligerent Occupant cannot annex the occupied territory, and Belligerent Occupation has become a temporary status not involving a change in sovereignty. The most important conventions which established this rule were the Hague Conventions of 1899 and 1907. The annex to the Hague Convention No. IV of 18 October, 1907 is entitled "Regulations Respecting the Laws and Customs of War on Land." Articles 42 to 56 have been universally accepted as the principles of international law on Belligerent Occupation. Article 46 states: "Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated." Article 47 states: "Pillage is formally forbidden." Article 55 states: "The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard capital of these properties, and administer them in accordance with the rules of usufruct." Article 56 states: "The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or wilful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings."

The principles laid down in this convention show that military occupation is transitory and does not bring about any acquisition or transfer of sovereignty. The occupant has no right of sovereignty. His authority is limited to temporary powers of purely military and administrative nature.

The Law of War regarding military occupation can be summed up as follows:


1. The occupant does not in any way acquire sovereign rights in the occupied territory but exercises a temporary right of administration on a trustee basis. (2)

2. As long as the people of the occupied country do not accept military conquest, as long as they can manifest, in one way or another, their unalterable will to regain freedom, their sovereignty, even though flouted, restricted and sent into exile, still persists. A nation is much more than outward form of territory and government. It consists of the men and women in whom sovereignty resides. So long as they cherish sovereignty in their hearts, their nation is not dead. It is not to be denied the symbols and forms of sovereignty on foreign soil, or diplomatic relations with other countries. (3)

3. The occupant is not entitled as a rule to alter the existing form of Government, to upset the constitution and domestic laws of the territory occupied or set aside the rights of the inhabitants. (4)

4. Immovable private enemy property may under no circumstances or conditions be appropriated by an invading belligerent ... Private personal property which does not consist of war material or means of transport serviceable for military operations may not as a rule be seized. Articles 46 and 47 of the Hague Regulations expressly stipulate that private property may not be confiscated, and pillage is formally prohibited. (5)

5. Private property cannot be confiscated. The foregoing prohibition extends not only to outright taking in violation of the laws of war but also to any acts which, through the use of threats, intimidation, or pressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of the use of his property without his consent or without authority under international law. (6)

6. Private Real Property. Immovable private enemy property may under no circumstances be seized. It may, however, be requisitioned. (7)

7. Pillage is formally forbidden. (8)

8. The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property.

All seizure or destruction of, or wilful damage to, institutions of this character, historic monuments, works of arts and science, is forbidden, and should be made the subject of legal proceedings. (9)

9. If the occupant has performed acts which, according to International Law, he was not competent to perform, postliminium makes the invalidity of these illegitimate acts apparent. Therefore, if the occupant has sold immovable state property, such property may afterwards be claimed from the purchaser, whoever he is, without compensation. If he has appropriated and sold such private or public property as may not legitimately be appropriated by amilitary occupant, it may afterwards be claimed from the purchaser without payment of compensation. (10)

 

JUDGMENTS OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE


In its Judgment on the "Jurisdiction," in the case of The Chorzow Factory (Germany v. Poland), the Permanent Court of International Justice pointed out that Head 111 of the Convention concerning Upper Silesia concluded at Geneva on May 15, 1922, between Germany and Poland, "is mainly designed to preserve the status quo in Polish Upper Silesia and therefore that, whenever possible, restitutio in pristinum is the natural redress of any violation of, or failure to observe, the provisions therein contained." In its subsequent Judgment as regards the "Indemnity," the Court pointed out, inter alia, on the subject of international wrongful acts and restitution:

"The essential principle contained in the actual notion of an illegal act a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law." (11)

 

LONDON DECLARATION OF JANUARY 5, 1943, REGARDING FORCED TRANSFERS OF PROPERTY IN ENEMY-CONTROLLED TERRITORY

The Declaration Regarding Forced Transfers of Property in Enemy Controlled Territory was issued in London on January 5, 1943, during World War II. It read as follows:


The Union of South Africa, the United States of America, Australia, Belgium, Canada, China, the Czechoslovak Republic, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, Greece, India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Yugoslavia and the French National Committee:

Hereby issue a formal warning to all concerned, and in particular to persons in neutral countries, that they intend to do their utmost to defeat the methods of dispossession practiced by the governments with which they are at war against the countries and peoples who have been so wantonly assaulted and despoiled.

Accordingly the governments making this declaration and the French National Committee reserve all their rights to declare invalid any transfers of, or dealings with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect, of the governments with which they are at war or which belong or have belonged, to persons, including juridical persons, resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.

The governments making this declaration and the French National Committee solemnly record their solidarity in this matter. (12)

RESOLUTION OF LONDON INTERNATIONAL LAW CONFERENCE OF JULY 12, 1943

In July, 1943, an international law conference was held in London. It issued a resolution on July 12, 1943 which deals in detail with the rules governing the validity of the acts of the belligerent occupants and the transfers of, or dealings with, property, rights and interests. The said resolution which reflects the considered opinion of outstanding jurists is hereby quoted in full:


1. The rules governing the validity in third countries of the acts of belligerent occupants and of transfers of, or dealings with, property, rights and interests of any description whatsoever derived from such acts, are rules of international law the nonobservation of which entails international responsibility.

Note: In courts of third States cases may be decided according to a variety of legal considerations, but the result must be in harmony with the rules of international law, the main contents of which are set out below. The Conference has not discussed the conditions under which a third State that does not give effect to the said rules is liable to pay damages to the injured party and/or his State.

2. The occupant does not succeed, even provisionally, to the status or rights of the sovereign whom he displaces. The occupant has at most, under international law, only limited rights of jurisdiction and administration; acts in excess of these limitedrights are null andvoidin law andarenotentitled to legal recognition in any country.

Note: The Conference has not discussed to what extent the powers in international law of the Axis occupants are even more limited owing to the fact that the invasion which led up to occupation constituted a breach of the obligations of the invading Axis powers in international law, nor to what extent the illegal inception of the occupation may be an independent source of invalidity of titles derived from the acts of the occupant.

3. The rights of the occupant do not include any right to dispose of property, rights or interests for purposes other than the maintenance of public order and safety in the occupied territory. In particular, the occupant is not, in international law, vested with any power to transfer a title which will be valid outside that territory to any property, rights or interests which he purports to acquire or create or dispose of; this applies whether such property, rights or interests are those of the State or of private persons or bodies. This status of the occupant is not changed by the fact that he annexes by unilateral action the territory occupied by him.

4. The civil administration established in a country subject to belligerent occupation has no status in international law. Any rule of international law establishing the invalidity of transfers of, or dealing with, property, rights and interests effected by the occupant applies also to similar transfers and dealings carried out by any associate or agent of the occupant acting for him or in his interest.

5. Securities issued or engagements undertaken under the occupant's direction by the central administrative or other public bodies, such as note-issuing banks, municipalities, etc., cannot be made the basis of claims by parties in third countries. It will be for the lawful government after the restoration of its authority to decide what, if any, exceptions shall be made to this principle.

Securities and engagements of any corporate body which the occupant has purported to constitute, or of any corporate body, which he has authorized or compelled to act in violation or circumvention of its constitution, as established under the laws in force before the occupation, are null and void.

Any person or corporate body having issued securities or entered into engagements for purpose contrary to the law in force before the invasion, or solely in the interest of the occupant, may repudiate them after the termination of the occupation by authority of the lawful government.

6. Without prejudice to the foregoing rules, rightful ownership remains in the person who has been dispossessed of anything by outright confiscation or by any device resulting from political pressure by the occupant; the title of a party in a third country derived from the occupant or from his associates or agents is invalid.

7. A person who acquires, even in good faith, any property, rights or interests which are or have been situated in occupied territory or are the property of nationals of that country will if his acquisition of them is derived directly or indirectly from acts of the occupant or his associates or agents not acquire an internationally valid title thereto as against the true owner unless such a title is valid by the law of the occupied country as applied by the reconstituted authorities after the liberation of that country.

8. It will be for the lawful government to take steps, whether legislative or administrative in character, in order to restore any property or status wrongfully disposed of or altered by the occupant or his associates or agents; if taken within a reasonable time after the cessation of the occupation such measures are not to be deemed penal or confiscatory.

I. In countries allied with the occupying Axis Power or with any of its allies thevalidity or invalidity of titles acquired out of an occupied country during the occupation should be governed by the same rules as those imposed upon the Axis Power occupying that country.

II. The attention of the governments of the occupied countries is drawn to the desirability of arranging for the speedy and smooth settlement between their respective countries of claims arising out of the methods of dispossession which have been practised by the Axis Powers. In this connection, the setting up in each country of appropriate bodies working under an agreed set of rules and the constitution of arbitral tribunals might be considered.

III. The governments of occupied countries should, as soon as possible after the liberation, notify through the proper channels to interested parties in third countries a list of such creations or modifications of corporate bodies as have taken place during the occupation in violation or circumvention of existing laws and are not recognized in law, entailing the nullity of securities issued or engagements undertaken by such bodies. (13)

OTHER DECLARATIONS OF THE ALLIED POWERS

The United States of America and Great Britain issued a joint declaration on September 25, 1943 reserving the right to treat as invalid any transfer to neutral ownership of any enemy-owned rights or interests and property in Italy which might have been undertaken in anticipation of the early occupation of Italy by Allied Forces. The United States of America, Great Britain, and the USSR issued a further declaration on February 22, 1944 stating that they did not and would not "recognize the transference of title to the looted gold which the Axis at any time has held or has disposed of in world markets." Similar declarations on gold purchases were made by several of the European Govemments-in- Exile. (14)

The United Nations Monetary and Financial Conference held at Bretton Woods, N.H., in its final act of July 22, 1944 called upon the Governments of neutral countries to take immediate measures to prevent any disposition or transfer within their territories of property looted by the Axis powers. The resolution of Bretton Woods as well as the joint declaration of the Allied Nations of January 5, 1943 were later expressly approved by the Inter-American Conference on Problems of War and Peace held in Mexico City, March 1945. Resolution XIX recommended adequate measures for the "restitution of property unjustly taken from other peoples, namely property the control of which the enemy has obtained by dispossession, looting, violence, fraud, intimidation and other like acts" (15)

 

THE LEGISLATION OF THE GOVERNMENTS-IN-EXILE

Each of the eight Governments-in-Exile, namely, the Governments of Poland, Belgium, Luxembourg, Yugoslavia, Czechoslovakia, Norway, France and Greece issued special laws, or proclamations designed to deal with the violations of property rights during the Axis occupation. These decrees dealt with the effect of measures concerning the transfer, burdening and limitation of the rights of ownership of property held by the States and public and private persons in favor of foreign states and of public and private persons.

Poland: The President of the Polish Republic issued a decree on November 30,1939, relying on the Hague Convention and declaring null and void all legal acts and measures of the Occupying Authorities exceeding the bounds of the temporary administration of the occupied territory. (16)

Belgium: The Belgian Government-in-Exile issued on January 4, 1941 a decree declaring that measures taken by the Occupying Authorities were regarded as repealed ips0 facto, as and when the territory became liberated. The nullification affected all measures affecting public law, administrative organizations, the social order, private law, and the interests of the citizens.

Article II of the decree prescribed that all acts of disposition or burdening of movable and immovable property affected on the part of the enemy, after May 10, 1940, by confiscation, seizure, forced sales, or other measures violating private property, were null and void. (17)

Luxemburg: The Luxemburg Government-in-Exile issued a decree on August 22, 1941 dealing indentically with the same subjects issued by the Belgian Government-in-Exile. The Luxemburg Government stated that the invalidity of the actions of the occupying authorities is based on the violation of international law, of the principle of the equality of all persons, and of the concept of private property. (18)

Yugoslavia: The Yugoslav Government-in-Exile issued a decree on May 28, 1942 concerning transfers and disposals of property in the Kingdom of Yugoslavia after April 6,1941. This decree declared that all transfers and disposals of movable and immovable properties would not be recognized and were void. (19)

Czechoslovakia: The Czechoslovak Government-in-Exile issued a declaration on December 19, 1941 stating that all transfers or dispositions of property which had taken place after September 24,1938 and so far as they had been affected under pressure of enemy occupation or as a result of the abnormal political condition prevailing there, were void. (20)

Norway: The Norwegian Government issued various decrees concerning the measures taken by the Enemy Occupants, namely the decree of January 1941 regarding the invalidity of confiscation, the decree of July 29, 1941 concerning reconsideration of legal decisions during occupation, the decree of October 3, 1941 relating to purchase of shares by Germans, the decree of October 9, 1942 regarding prescription, and the decree of December 18, 1942 declaring the invalidity of legal transactions connected with the occupation. The later decree provided that all transactions which took place after April 9, 1940, could be declared completely or partially invalid and revised at the request of the interested parties within 6 months after secession of hostilities.

Article II of the declaration dealt with the confiscation of real property and rights thereto, and provided that the owners could demand the restoration of their possession without compensation, regardless of the possessor's good faith in his acquisition of these goods. (21)

France: The French Committee of National Liberation issued a decree on November 12,1943 adopting the principles of the Declaration of the United Nations of January 5, 1943, and thereby reserving all rights to declare invalid any transfer or dealing with property, rights and interests of any description whatsoever in France during the occupation period. (22)

Greece: The Greek Government-in-Exile issued a decree on October 22, 1941 relating to property rights and transactions. It declared null and void all forced transfers of property, real or personal, belonging to subjects of Allied Nations and located in Greece. (23)

 

LAWS OF RESTITUTION ENACTED BY THE ALLIED POWERS IN GERMANY

Germany: After the end of the war the Allied powers enacted laws for the restitution of all properties plundered, looted, seized, confiscated and appropriated by the Nazis in Europe.

The first was the Military Government Law, No. 59, enacted on November 10, 1947 by the United States Authorities for the restitution of identifiable property of Nazi victims in the United States Zone. (24)

The following are the most important principles of this law:


ARTICLE I


I. "It shall be the purpose of this law to effect to the largest extent possible the speedy restitution of identifiable property (tangible and intangible property) to persons who were wrongfully deprived of such property within the period from January 30,1933 to May 8,1945, for reasons of race, religion, nationality. ideology or political opposition to National Socialism."

2. "Property shall be restored to its former owner or to his successor in interest in accordance with the provisions of this law even though the interests of other persons who had no knowledge of the wrongful taking must be subordinated. Provisions of law for the protection of purchasers in good faith, which would defeat restitution, shall be disregarded except where this law provides otherwise."


ARTICLE II


....property shall be considered confiscated within the provisions of this law if the person entitled thereto has been deprived of it, or has failed to obtain it despite a well founded legal expectancy of acquisition, as a result of:

(a) transaction contra bonos mores, threat or duress, or an unlawful taking or any other tort;

(b) seizure due to a governmental act or by abuse of such act;

(c) seizure as the result of measures taken by the N.S.D.A.P., its formations or affiliated organizations, provided the acts described in "a" to "c" were caused by or constituted measures of persecution for any of the reasons set forth in Article I.

Confiscation by a governmental act within the meaning of Par. 1(b) shall be deemed to include, among other acts, sequestrations, confiscation, forfeiture by order of operation of law, and transfer by order of the state or by a trustee appointed by the state. The forfeiture by virtue of a judgment of a criminal court shall also be considered a confiscation by agovernment act, if such judgment has been vacated by order of an appropriate court or by operation of law.

The French authorities and British authorities in Germany enacted restitution laws for their respective zones with much the same principles as the law enacted for the American Zone.

The most important principles of the law enacted for the British Zone were the following (25):


1. The purpose of the law is to effect to the largest extent possible a speedy restitution of identifiable property to persons, whether natural orjuridical, who were unjustly deprived of it between January, 1933 and May, 1945, by reason of their race, creed, nationality, or political opposition to National Socialism.

2. Property is to be restored to its former owner, or his successor in interest, in accordance with the provisions of this law, even though the interest of other persons who had no knowledge of the wrongful taking must be subordinate. Purchase in good faith is no defense.

3. Any transfer or relinquishment of property made by a person who was directly exposed to measures of persecution on grounds of race, creed, nationality or political belief, and any transfer or relinquishment of property made by a person who belonged to a class which the Nazi Government or party intended to eliminate from the cultural or economic life of Germany, is presumed to be an unjust deprivation.

In cases where victims had no heirs or successors, organizations were formed in the three Western Zones to recover this heirless property and use the proceeds thereof for the relief and rehabilitation of Nazi victims.

Later on in 1950, the Inter-Allied Governing Authority the Kommandatura - enacted Restitution Laws. "The Laws were to be administered by German courts and agencies, subject to supervision by the Allied control and to the final authority of a supreme appellate court composed of Allied judges in each Zone."

When the Western powers ended their military governments in Germany in 1954, and Germany resumed its sovereignty, the German Government assumed greater responsibilities for restitution and compensation for Nazi victims, and maintained a form of international control. The conventions entered into between the Western powers and Germany in 1954 imposed limits on the restored national sovereignty of Germany in relation to matters which were controlled by the Allies during the occupation. They provide for the continuation of international supervision of restitution and compensation.

These conventions dealt with:

I. Internal restitution providing for the restitution of identifiable property to the victims of Nazi oppression, and to bodies and organizations.

2. Compensation for the victims of Nazi persecution.

3. External restitution: searching for and restoring jewelry. furniture and other movables removed by Nazis from the occupied countries.

The German government agreed that an official, designated by each of the three governments for the purpose of reporting on the progress of the restitution program, should be granted reasonable facilities and supplied with the necessary information.

It was further agreed that a Supreme Restitution Court be established, composed of a Swedish president, six judges, three of whom would be German and the other three American, British and French, In case of dispute between the three powers and the Federal Republic of Germany about matters relating to restitution and compensation, the matter would be referred to the International Arbitral Tribunal. (26)

 

RESTITUTION IN THE PEACE TREATIES OF FEBRUARY 10, 1947

The Peace Treaties of February 10, 1947 contain detailed provisions with regard to restitution of property, rights and interests to their rightful owners. These provisions are contained in article 78 of the Peace Treaty with Italy and corresponding provisions are included in the Treaties with Hungary: article 24; Romania: article 24; Bulgaria: article 22; Finland: article 24.

As all these articles are identical, we quote from Article 78 of the Treaty with Italy which is as follows (27):

 

PART VII. PROPERTY, RIGHTS AND INTERESTS ARTICLE 78


1. In so far as Italy has not already done so, Italy shall restore all legal rights and interests in Italy of the United Nations and their nationals as they existed on June 10, 1940 and shall return all property in Italy of the United Nations and their nationals as it now exists.

2. The Italian Government undertakes that all property, rights and interests passing under this Article shall be restored free of all encumbrances and charges of any kind to which they may have become subject as a result of the war and without the imposition of any charges by the Italian Government in connection with their return. The Italian Government shall nullify all measures, including seizure, sequestration or control, taken by it against United Nations property between June 10,1940 and the coming into force of the present Treaty. - In cases where the property has not been returned within six months from the coming into force of the present Treaty, application shall be made to the Italian authorities not later than twelve months from the coming into force of the present Treaty, except in cases in which the claimant is able to show that he could not file his application within this period.

3. The Italian Government shall invalidate transfers involving property, rights and interests of any description belonging to United Nations nationals, where such transfers resulted from force or duress exerted by Axis Governments or their agencies during the war.

(c) "Property" means all movable or immovable property, whether tangible or intangible, including industrial, literary and artistic property, as well as all rights or interests of any kind in property.

 

TREATIES WITH HUNGARY, BULGARIA AND RUMANIA

In the Peace Treaties with Hungary, Bulgaria and Rumania.

Each of the three countries was required to restore all legal rights and interests of the United Nations and their nationals as they existed at the outbreak of war (Bulgaria: April 24, 1941; Hungary and Rumania: September 1, 1939) and to provide for the return of the property of the United Nations and their nationals, as this property existed at the time of the treaty. All encumbrances and charges to which the property rights and interests had become subject as aresult of war were to be removed. The governments were required to nullify all measures, including seizures, sequestration, and control, taken by them against property of United Nations nationals, between the outbreak of war and the coming into force of the treaty. All transfers resulting from force or duress exerted by the Axis governments or their agencies were invalidated.

The property to be returned had to be restored to good order. In cases where property could not be returned or where, as a result of the war, a United Nations national had suffered a loss by reason of damage to property, compensation was to be payable in the local currency to the extent of two-thirds of the sum necessary, at the date of payment, to purchase similar property or to make good the loss suffered. The term "property" included all movable and immovable property, tangible and intangible, industrial, literary and artistic property. The compensation was to be paid free of levies, taxes or other charges. but was subject to foreign exchange control.

In addition to the foregoing undertaking, each of the former enemy powers agreed to indemnify United Nations nationals for the loss or damage they sustained as a result of war measures applied to their property during the war, which were not applicable to the property of their own nationals .... (28)

 

TREATY OF PEACE WITH JAPAN


In the Treaty of Peace with Japan, signed at San Francisco on September 8, 1951, it was provided that upon application (within 9 months of the entry into force of the Treaty between Japan and the Allied Power concerned), Japan would (within 6 months) return the property, tangible and intangible, and all rights or interest of any kind in Japan of each Allied Power and its nationals which was within Japan at any time between December 7, 1941, and September 2, 1945, unless the owner thereof had freely disposed of it without duress or fraud. (Article 15 (a).) Japan agreed that all such property should be returned free of all encumbrances and charges to which it might have become tiubject because of the war, and without charges of any kind for its return. By paragraph (a) of article 15 it was also provided that in cases where such property could not be returned or had suffered injury or damage as a result of the war, compensation "will be made on terms not less favorable than the terms provided in the draft Allied Powers Property Compensation Law approved by the Japanese Cabinet on July 13, 1951." This Law 264 was approved by the Japanese Diet and was promulgated in the Japanese Official Gazette on November 26, 1951.

Subsequently, Governments of Allied Powers, including the United States, concluded an agreement for the Settlement of Disputes Arising Under Article 15(a) of the Treaty of Peace with Japan. The Agreement entered into force for the United States on June 19, 1952. It contained provision for the appointment of three-member Commissions for the settlement of disputes concerning the interpretation and execution of article 15(a). (29)

 

EUROPEAN LEGISLATION FOR RESTITUTION OF PROPERTY TO RIGHTFUL OWNERS

The following is a summary of Legislation on restitution of property enacted in the various European countries.

AUSTRIA

Austria enacted several laws dealing with the restitution of property. The Law of May 10,1945 concerning the census of properties and property rights which had been alienated since March 13, 1938, either by individual action or on the basis of laws or decrees on racial, national or other grounds connected with the usurpation of power by the National Socialists. The Austrian Government further enacted other laws setting forth in detail the methods and procedures to be used in effecting restitution of property. These dealt with the restitution of property which had been taken by the German Reich, or that had been confiscated, aryanized or through other means taken from the rightful owners during the period of the German Occupation. (3)

BELGIUM

Belgium enacted several laws dealing with restitution of property and war damage to private property, namely: (a) Decree-Law of March 12, 1945 concerning premises and the eviction of tenants thereof.

(b) Decree-Law of March 19, 1945 concerning suspension of the Statute of Limitations and preemptory terms in civil and commercial matters, forfeiture in contractual matters, and extension of certain time limitations.

(c) Decree-Law of May 18, 1945 concerning involuntary dispossession of bearer certificates.

(d) Decree-Law of September 19, 1945 concerning a declaration of War Damage to private property. (31)

BULGARIA

Bulgaria enacted several laws dealing with the restitution of immovable and movable properties which were wrongly taken or confiscated during the period of the Axis Occupation. It is worth noting that the Decree-Law of February 24, 1945 dealt with the abrogation of Anti-Jewish laws. The said decree laid down that "all laws, decisions and decrees issued within the period of January 23, 1941 to September 9, 1944, concerning the transfer to the State, with or without consideration of movable and immovable properties which belonged to Jews, Jewish Cultural, Political and other Organizations and legal persons, and which were taken over or confiscated in favor of the State in accordance with the Anti-Jewish Legislation, are annulled. All confiscation of such properties is void. Real Estate, alienated or confiscated by the State on the strength of the void laws, is returned to the Jews, Jewish Cultural, Political and other Organizations and legal persons. In case such properties had been transferred by the State to a third person, the deed of transfer, mortgages and other easements made within the period of the sequestration by the State until the effective date of this Decree-Law are declared void."

The same Decree stated also "that all confiscated movables, money, valuables and similar objects confiscated on the strength of Anti-Jewish laws as well as those taken for safekeeping by various authorities are to be returned to the owner in the state in which they are found." It was further provided that "Equally void are sales of Jewish movables effected by the Commissariat of Jewish Affairs and Tax Collectors, on the basis of Anti-Jewish Legislation as well as by liquidators of Jewish enterprises."

Transfers to third persons effected after August 3 1, 1944 were void while such transfers made before this date were null if the buyer knew the origin of the goods.(32)

CZECHOSLOVAKIA

The Decree of the President of Czechoslovakia of May 19, 1945 invalidated "all property transactions and transfers made after September 29, 1938, regardless of whether they were concerned with movable or immovable properties, insofar as they were occasioned by pressure of occupation or by national, racial or political persecution." The Decree further provided "that all properties under National Administration which were taken from the rightful owners and lost in consequence of national, political and racial persecution are to be returned at once to their owners or the heirs of the owners." (33)

DENMARK

Decree number 475 of October 1, 1945 provided in 56 articles for indemnification and restitution of property to the victims of the occupation period and for the establishment of an office to deal with such claims. (34)

FRANCE

France issued Decree number 45- 17 1 of February 3,1945, and Decree number 40- 10 15 of May 23,1945, amending the Decree of November 14, 1944 concerning acts of spoliation. These Decrees declared null and void all court and administrative decisions as well as agreements made in the period between June 16, 1940 and August 9, 1945. The Decree of April 1 1,1945 dealt with movable properties which were stolen, abandoned or confiscated during the Enemy Occupation, and provided that such properties should be returned to their rightful owners.

Decree number 45-770 of April 21, 1945 dealt with the procedural provisions for the restitution of property and rights and declared "that persons whose properties, rights and interests were subject - even if with their material concurrence - to act of dispossession through sequestration, provisional administration, management, liquidation, confiscation or any other exorbitant measure in consequence of legislative and other acts of the Vichy Government or of the German Authorities, are entitled to establish the nullity of the acts of dispossession on the basis of either the Ordinance of November 12, 1943 or that of August 9, 1944. The nullity is established de jure. The dispossessed owner regains the properties, rights and interests without obligations and mortgages assumed by the possessors but with all improvements and new accessories."

The said laws further laid down that movables alienated were to be treated according to the legal provisions for loss of stolen goods and could be reclaimed after the cession of hostilities. The decree further established a legal presumption that "contracts made after June 16, 1940 concerning the transfer of movables, rights to real estate and commercial enterprises; of rights to industrial, literary and artistic properties; of partnerships and commercial firms and of securities and similar valuables, made either by direct transfer of titles to the bearer or contracts on registered stock, are considered as having been concluded under duress." The decrees further ordered the immediate restitution of the properties, rights and interests involved. (36)35

HOLLAND

Holland issued the Decree of September 17, 1944 conceming the reestablishment of justice. This Decree vested all powers for the reestablishment of justice in a special Council the decisions of which had the power of a judicial verdict. The Council could declare null and void totally or partially, legal relations regarding property and property rights affected or changed during Enemy Occupation and could order the return of property objects and rights lost during the Enemy Occupation. The restitution involved no compensation except in cases of bona fide or encumbered acquisition. (36)

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Encyclopedia of the Palestine Problem
By Issa Nakhleh

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