Section VI.—Austria (Art. 80)
Germany acknowledges and will respect strictly the independence of Austria, within the frontiers which may be fixed in a Treaty between that State and the Principal Allied and Associated Powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations.
Note to III, 80
The German delegation declared that “Germany has never intended, and
never will intend to use force to effect any alteration in [Page 199]the German-Austrian frontier”, but if
the people of Austria should desire union with Germany, “Germany cannot
pledge herself to oppose the wishes of her German brothers in Austria”
Relations, The Paris Peace Conference, 1919, vi, 832).
This article is a unilateral undertaking of Germany. Article 88 of the treaty of peace with Austria, which differs from it in important respects, reads:
“The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently Austria undertakes in the absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power.”
The difference between the two articles in the treaties is accounted for by a circumstance transpiring between their respective dates—June 28 and September 10, 1919. The Constitution of the German Reich was adopted at Weimar on July 31, 1919 and became effective on August 11. In article 61 occurred this paragraph:
“German-Austria after its union with the German Commonwealth will receive the right of participation in the National Council [Reichsrat] with the number of votes corresponding to its population. Until that time the representatives of German-Austria have a deliberative voice.”
The Supreme Council of the Principal Allied and Associated Powers on September 2 required the elimination of this paragraph on the ground that it constituted a formal violation of article 80 of the treaty of peace with Germany in two respects: (1) the assimilation of Austria to the German states was incompatible with the independence of Austria; and (2) such participation of Austria in the Reichsrat would create a “political tie and a common political action between Germany and Austria in absolute opposition to the independence of the latter”. In consequence of these representations a diplomatic act was signed in Paris on September 22, 1919, in the presence of representatives of the Principal Allied and Associated Powers, in which the German Government admitted and declared “that all the provisions of the German Constitution of August 11, 1919 which are in contradiction of the terms of the Treaty of Peace [Page 200]signed at Versailles on June 28, 1919 are null and void”. The German Government further “admits and declares that the second paragraph of Article 61 of the said Constitution is therefore null and void” (file 763.72119/7621).
At that time and for the next decade there was considerable sentiment in both Austria and Germany for the Anschluss, or union, of the two countries. On March 19, 1931 the Austrian and German Governments signed a protocol at Vienna by which they agreed “to enter into negotiations for a treaty to assimilate the tariff and economic policies of their respective countries” (Permanent Court of International Justice, Series A/B, No. 41, 93).
Protocol No. I of October 3, 1922 (12 League of Nations Treaty Series, p. 385), which was the basis for the financial reconstruction of Austria, guaranteed the political independence, territorial integrity, and sovereignty of Austria, and involved a pledge by Austria to “abstain from any economic or financial engagement calculated directly or indirectly to compromise this independence”. The Austro-German customs-union plan of 1931 seemed to be legally at variance with this stipulation. The British Government submitted the question to the Council of the League of Nations, and the French Government handed in a lengthy memorandum discussing the legal, economic, and political implications of the customs-union protocol. The Council segregated the legal question of the compatibility of the contemplated customs union with the treaties and the 1922 protocol, and requested an advisory opinion upon that question from the Permanent Court of International Justice. The opinion of the Court (Series A/B, No. 41) handed down on September 5, 1931 by a majority of eight to seven, found the proposed customs regime to be incompatible with the Geneva protocol of 1922. Seven judges only found it incompatible with article 88 of the treaty of peace with Austria. However, on September 3, 1931, two days before the opinion was rendered, the Austrian and German representatives informed the Council of the League of Nations that they did not propose to proceed with the intended negotiation of a customs regime.
In a speech to the Reichstag on May 21, 1935 the German Führer asseverated: “Germany neither intends nor wishes to interfere in the internal affairs of Austria, to annex Austria or to conclude an Anschluss”. On July 11, 1936 Germany entered into an agreement with Austria, which was assured in article 1 that “the German Government recognizes the full sovereignty of the federated state of Austria in the spirit of the pronouncements of the German Führer [Page 201]and Chancellor of May 21, 1936” (31 Martens, Nouveau recueil général de traités 3e série, p. 643). The International Military Tribunal in its indictment of October 18, 1945 (Trial of War Criminals, Department of State publication 2420, p. 32) asserts that immediately afterward and particularly from November 5, 1937 “plans of aggression in violation of that treaty were being made”.
In March 1938 National Socialist elements in Austria, supported by three ultimatums from the German Government, forced the resignation of the Austrian Chancellor and took over the Government without any affirmative or confirmatory action on the part of the President. The new authorities invited Adolf Hitler, the National Socialist Führer and German Chancellor, who was at the border with German troops, to enter Austria. He did so on March 12. The President “by request of the Federal Chancellor resigned his functions in a letter of March 13”. Thereupon, the National Socialist regime, also on March 13, “resolved” a “federal constitutional law” proclaiming that “Austria is a state [Land] of the German Reich”. The German Government on the same March 13 published a law to the same effect.
For a detailed account of the events and their significance, see Attitude of the United States Toward Austria, by Herbert Wright, (U. S. Congress, H. Doc. 477, 78th Cong., 2d sess.).
The United States did not recognize the German absorption of Austria but, like other governments, took cognizance of the de facto situation in current relations.
An exchange of notes effected at Berlin May 6 and September 10, 1938 (194 League of Nations Treaty Series, p. 313) applied Anglo-German treaties of commerce, navigation, extradition, and air navigation in lieu of Anglo-Austrian treaties “in consequence of the German law of March 13, 1938, relating to the union of Austria with the German Reich”. The British proposing note stated:
“There are certain bilateral Treaties between the United Kingdom and Austria which correspond very closely to the similar Treaties between the United Kingdom and Germany and where the latter Treaties are of such a kind that their provisions can be applied to Austria as a part of the Reich without the necessity of any adaptation His Majesty’s Government assume that, in accordance with the ordinary legal principles in the case of these Treaties, the treaty between the United Kingdom and Germany may be held now to cover Austria, and the corresponding Treaty between the United Kingdom and Austria may be held to have lapsed.”
The Governments of the United Kingdom, the Soviet Union, and the United States in the declaration issued at the Moscow Conference on November 1, 1943 were agreed “that Austria, the first free country to fall a victim to Hitlerite aggression, shall be liberated from German domination.” They regarded “the annexation imposed upon Austria by Germany on March 15, 1938 as null and void” and considered themselves “as in no way bound by any changes effected in Austria since that date”. The directive to commanders in chief of the occupying forces recorded a decision of their governments “to reestablish an independent Austrian state” (Department of State Bulletin, Oct. 28, 1945, p. 661).
A provisional Austrian government was formed at Vienna by Karl Renner on April 29, 1945.