411.61 Assignments/110: Telegram
The Chargé in the Soviet Union (Henderson) to the Secretary of State
221. Your 134, September 16, 6 p.m.
1. Plotkin stated to me yesterday:
- (a)
- The only organ of the Union which appears competent to make a declaration along the lines desired is the Supreme Court. It can make declarations only upon the request of the Soviet of People’s Commissars or the Central Executive Committee and much time would be required for such a request to be issued and acted upon.
- (b)
- He does not believe any Soviet legal expert in the United States is sufficiently versed in Soviet constitutional law to testify on the point and is of the opinion that it is preferable to have no Soviet witness rather than one who might become entangled by Komar’s shrewd cross examination. Zhukovitsky is a specialist in commercial law rather than in matters of the kind at issue.
2. I have received a note this evening from the Foreign Office dated September 22, 1936, enclosing a copy of an interpretation of the People’s Commissariat for Justice dated September 22, 1936, and a statement of the same date by Plotkin.
3. The English transitional [sic] interpretations of the People’s Commissariat for Justice reads as follows:
“To the People’s Commissariat for Foreign Affairs.
In reply to the inquiry of the People’s Commissariat for Foreign Affairs of the U. S. S. R. of September 19 of the current year, the People’s Commissariat for Justice of the R. S. F. S. R. states:
In accordance with article 3 of the Constitution of the R. S. F. S. R. ‘in harmony with the will of the peoples of the R. S. F. S. R., which peoples at the Tenth Ail-Russian Congress of Soviets made the decision [Page 352] concerning the formation of the U. S. S. R., the R. S. F. S. R. in entering into the composition of the U. S. S. R., transfers to the Union the powers which in accordance with article 1 of the Constitution of the U. S. S. R. have been assigned to the competence of the organs of the U. S. S. R.’ (Collection of Laws of the R. S. F. S. R., 1925, No. 30, article 218).
Article 1 of the Constitution of the U. S. S. R. assigns to the competence of the U. S. S. R., in the person of its supreme organs, among other questions ‘the representation of the Union in international relations, the conduct of all diplomatic relations, the conclusion of political and other treaties with other states’ (Vestnik of the Central Executive Committee, the Soviet of People’s Commissars, and the Soviet of Labor and Defense of the U. S. S. R. 1923, No. 2, article 45).
Thus from the moment of the formation of the U. S. S. R., the disposal of all properties situated abroad and nationalized under the laws of the R. S. F. S. R. passed to the exclusive competence of the U. S. S. R. in the field of relations arising with other States, and only the U. S. S. R. through its organs may conclude treaties with foreign states in regard to these properties.
Hence, the rightfulness of the transfer to the ownership of the Government of the U. S. A. by the Government of the U. S. S. R. of property situated abroad, nationalized according to the laws of the R. S. F. S. R., in particular the property of the insurance companies recognized as nationalized by virtue of the decree of the Soviet of People’s Commissars of the R. S. F. S. R. of November 28, 1918, is perfectly obvious. People’s Commissar for Justice of the R. S. F. S. R. (N. Krylenko).”
4. The translation of the statement signed by Plotkin reads as follows:
“Opinion of Professor M. A. Plotkin, Vice-Director of the Legal Department of the People’s Commissariat for Foreign Affairs.
If I had been questioned concerning the right of the Government of the U. S. S. R. to execute in 1933, an act of disposition of properties nationalized by virtue of the decree of the Government of the R. S. F. S. R. of November 28, 1918, I would have made the following answer:
From the standpoint of Soviet law there is no doubt that the Government of the Union, in concluding in November 1933 the accord with the Government of the U. S. A., had the right to assign to the Government of the U. S. A. the properties of the former Moscow Insurance Company in the U. S. A. nationalized by virtue of the decree of the Soviet of People’s Commissars of the R. S. F. S. R. of November 28, 1918. This is indisputable. Never, insofar as I am aware, from the moment of the formation of the Union has a question arisen concerning such right of the U. S. S. R. The U. S. S. R. repeatedly has entered into agreements with foreign States regarding property nationalized by acts of the republics entering into the composition of the Union. Thus, in the convention concerning the basic principles of mutual relations between the U. S. S. R. and Japan of January 20, 1925,81 the Government of the U. S. S. R. agreed to grant certain concessions [Page 353] with respect to objects nationalized by the Government of the E. S. F. S. E. It is also possible to cite a number of concession contracts concluded directly by the Government of the U. S. S. R. in the name of the U. S. S. R. with foreign companies relating to objects nationalized by decrees of the governments of the constituent republics. Such for instance was the concession contract concluded by the Government of the U. S. S. R. with the American company Harriman (‘The Georgian Manganese’ Stock Company) of June 12, 1925, relating to objects nationalized by decrees of the Georgian Soviet Socialist Republic. Such also was the treaty with the English company ‘Lena-Goldfields’ of April 30, 1925, relating to objects nationalized by decrees of the Government of the R. S. F. S. R., and so forth and so on.
These principles found reflection both in the Constitutions of the constituent Soviet republics and in the Constitution of the Union. In article 3 of the Constitution of the R. S. F. S. R. it is provided that to the exclusive jurisdiction of the U. S. S. R. in the person of its supreme organs belongs the competence provided for in article 1 of the Constitution of the U. S. S. R., namely: ‘The representation of the Union in international relations, the conduct of all diplomatic relations, the conclusion of political and other treaties with other States.’
This provision is understood to mean that the U. S. S. R. in relations with foreign States has the exclusive right to determine the fate of any object of property regardless of whether the property is nationalized by virtue of an act issued by the Government of the U. S. S. R. or as the result of a resolution of the government of a constituent republic.
In this connection it is indisputable that property abroad nationalized by the decrees of the E. S. F. S. E. should be handed over (podlezhit vydache) to the U. S. S. R. which alone has the right to dispose of this property.
It would be incorrect to draw any analogy between acts of sovereign power and private law titles. The transfer of certain rights by the Government of the U. S. S. R. to the Government of the U. S. A. in the accord of 1933 was based on the sovereign rights of the Government of the Union established in the Constitution of the Union. The provisions of the constitutions of the constituent republics correspond to these general Union rules.
This circumstance alone renders superfluous further disquisition with respect to the titles to any property which the U. S. S. R. disposed of in the accord of 1933.
M. A. Plotkin.”
5. I am disappointed although not surprised at the failure of both Plotkin and the Commissariat to make the type of statement desired. From a conversation with Plotkin yesterday I gained the impression that both he and the Commissariat were unwilling, in the absence of precedents, to take the responsibility of stating formally that the foreign assets of the R. S. F. S. R. had become ipso facto the assets of the Union. He said that he believed such to be the case but felt that certain considerations might make it impossible to furnish written statements to that effect. Although the Foreign Office had already closed by the time the two documents arrived, Plotkin returned late [Page 354] this evening at my request to discuss them with me. I told him that I feared that they would not serve the purpose and suggested that if he could not make the statement required with respect to the ownership of assets he might be able to incorporate in his declaration a statement to the effect that any amounts which might have been due to the Government of the R. S. F. S. R. by nationals of foreign countries became due of [to] the Union Government upon the latter’s formation. He replied that he had gone just as far in this direction in the antepenultimate paragraph of his declaration as he felt himself to be justified to go. According to the principles set forth in that paragraph, the property of the insurance company in the United States nationalized by laws of the R. S. F. S. R. was subject to delivery to the U. S. S. R. and therefore due to the U. S. S. R. I asked if he could not state bluntly in his declaration what he had just told me and he answered that he has been careful to word his declaration so that he could back up with law or precedent every assertion contained in it. If he made his assertions any broader he would be venturing into ground which as yet had not been explored by the Soviet judicial legislative system. He added that if a statement of the Supreme Court should be deemed necessary it could probably be obtained within the course of a month or so.