Historical precedents for restitution of property or payment of compensation
Nowadays the right to restitution or payment of compensation is a fundamental principle of international law.
International law has over the years elaborated a fairly complete set of norms protecting property during hostilities. These norms belong to such diverse fields of law such as the law of armed conflicts, human rights law, refugee law, the law of international investment and ius ad bellum, which prohibits aggression in international relations (e.g. Hague Convention on the laws of war; UN ‘Pinheiro Principles; UN A/CN4.L602 Responsibility of States for internationally wrongful acts etc.).
However, there is a contrived debate to what extent this principle goes back and if it actually covers World War II and post World War II property confiscations. Affected states still today try to avoid their responsibility and desist from restoring stolen and confiscated properties to their rightful owners. Nonetheless, historical precedents clearly prove that such a responsibility exists and was an issue for the first time during World War II when the question came up whether, according to international law, property of refugees could be protected. The findings of the International Law Conference in London 1943 in this respect have been published by W.R.Bisschop (Grotius Transactions 1943). The collection of precedents shows that states in the past have in fact defended the interests of foreign nationals against their own governments. Also Lawyers such as Dr. George Weiss pursuing Jewish claims found precedents applicable to World War II. The same question was readdressed by United Nations Conciliation Commission for Palestine (A/AC.25/W741):
All in all there are at least eight precedents, which protrude:
· Treaty of Westphalia 1648
· Edict of Tolerance 1790
· Treaty of Nimmeguen 17th September 1678
· Treaty of London 19th April 1839
· Hague Convention on law of Warfare 1907
· Treaty of Severs of 10th August 1920
· Chorzow Factory Case, Germany v Poland 1928 (PIJ)
· Memorandum of London 1943
The Treaty of Westphalia, also known as the treaties of Münster and Osnabrück provided for the general restitution of all seized property. The single most important article on private rights and property from the Münster Treaty was Article 24. It stipulated the restitution of all goods that had been seized or confiscated because of the war. The original owners or their heirs were granted the right to repossess themselves on their own authority, meaning without having to refer to the courts. All official acts of seizure and all transactions to third persons, which had followed seizure, were thereby lifted. As all measures taken during the war now lost their effect, the original owners did not only regain possession, but also their title.
1) The edict of Tolerance 1790 allowed the Hugenots to return and enjoy civil rights, Art.1
2) The Treaty of Nimmeguen 1678 between Spain and France provided in Art 21 that: properties and estates shall be immediately restored to the lawful owners.
3) Also the Treaty of London 1839 provided in Art. XVI that property shall be restored.
4) Art . 46 Hague Convention stipulates that private property cannot be confiscated.
5) Further the Peace Treaty with Turkey 1920 contained in Art.144 provisions for the compensation of Armenian refugees who had fled from Turkey and facilitate the return to their homes.
6) In the Chorzow Factory case, Germany v Poland 1928 the Permanent Court International Justice defined the ‘the broad legal characteristics of restitution in a manner which endures largely unchanged to the present day. Restitution was affirmed not only as one possible form of reparations but as the preferred form. Other remedies such as financial compensation were only to be sought if restitution was not possible. This was based on the corrective justice notion that restitution in kind provided a more appropriate remedy than any alternative that provided redress to the victim without restoring the status quo ante by divesting the wrongdoer of the specific assets in dispute’.
7) In the Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation of Control (1943) the parties ‘reserve all their rights’ to declare invalid transfers of or dealings with property, rights,which have taken place during the period of enemy occupation or control of the territories in question
Hence, the failure to resolve World War II property issues is not due to a lack of legal norms, but a lack of political will and a misconstrued notion of reconciliation, which is so far reaching that including the European Court of Human Rights is incapable of seeing that Justice is served in accordance with International Law.
11.02.2009
Alexandra Mareschi, LLB
