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
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PREFACE Austria was the first victim of Hitler's policy of aggression. The German 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 diplomatie 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 because 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 internationallaw 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 conclusions 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 international 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 produced an array of contractual obligations and state practices which were utilized by the international community in regard to the Anschluss. 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 international 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 understanding 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 Abbreviations 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 The League of Nations II3 The United Nations II6 The Specialized Agencies of the United Nations 125 VII XIII II2
Xli VIII. Conclusions CONTENTS 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 AöR AJIL Bf'IL Glunet Gmd. DBGBl DRGBl DSB EAS FBHPG For. Rel. H. G. Deb. H.L. Deb. JB JöR JZ Annual Digest and Reports of Public International Law Gases. After 1950 title changed to International Law Reports. Archiv des ifffentlichen Rechts. American Journal of International Law. British f'earbook of International Law. Journal du Droit International. Command Papers from the Sessional Papers. Great Britain, Parliament. Bundesgesetzblatt. Germany. Reichsgesetzblatt. Germany. United States Department of State Bulletin. United States Executive Agreement Series. Annual Report of the Foreign Bondholder's Protective Council, Inc. Papers Relating to the Foreign Relations of the United States. Parliamentary Debates (Hansard). House of Gommons Oificial Report. Parliamentary Debates (Hansard). House of Lords Oificial Report. Juristische Blätter. Jahrbuch des ifffentlichen Rechts der Gegenwart. 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.
XIV NJW ÖBGBl öjz SJIR StGBI TIAS TS UNTS VwGH-A VwGH-F ABBREVIA TIONS Neue juristische Wochenschrift. Bundesgesetzblatt (1946-). Austria. Formerly called Staatsgesetzblatt. Österreichische Juristen-Zeitung. Schweizerisches Jahrbuch für internationales Recht. Staatsgesetzblatt (1946). Austria. After 1946 called Bundesgesetzblatt. United States Treaties and other International Agreements Series and United States Treaties and other International Acts Series. United States Treaty Series. United Nations Treat)l Series. Erkenntnisse und Beschlüsse des Verwaltungsgerichtshofes: Administrativrechtlicher Teil. Austria. Erkenntnisse und Beschlüsse des Verwaltzl1lgsgerichtshofes: Finanzrechtlicher Teil. Austria.