Doc. No. 16 (G).
Memorandum on the Clauses of the Draft Peace Treaty Concerning Prize Courts and Judgments (Annex 8)
The draft Peace Treaty provides that each of the Allied and Associated Powers reserves the right to examine, according to a procedure to be established by it, all decisions and orders of the Italian Prize Courts involving ownership rights of its nationals and to recommend to the Italian Government that revision shall be undertaken of these decisions or orders which may not be in conformity with international law. Italy shall undertake—it is added—to accept and give effect to all recommendations made in the matter by the Allied or Associated Power concerned.
According to the above, the concerned Allied or Associated Power itself would be given the faculty to decide whether or not a decision of an Italian Prize Court is contrary to international law. This is not consistent with the axiom that nobody can be at the same time a judge and a party to the judgment.
If an Allied or Associated Power considers that a decision of an Italian Prize Court is contrary to international law, the question should be settled under the procedure normally followed for the settlement of international controversies.
It is therefore proposed that the above provision be cancelled, or, failing this, that at least the second part of the second paragraph—where it says that Italy undertakes “to accept all the recommendations made, subsequent to the examination of the said cases and to give effect to such recommendations”—be suppressed.
B. The draft Peace Treaty contains several proposals concerning judgments given by Italian Courts between June 10, 1940, and the coming into force of the Treaty in any proceeding in which a United Nations’ national was unable to make adequate presentation of his case as defendant. Italy’s obligation to accept revision of such judgments or award compensation when necessary is also envisaged.
Now, it is a fact that Italian law has never limited in any way the faculty of enemy nationals to defend their cases before Italian Courts during the war. Article 280 of the Italian loi de guerre after declaring [Page 217] that enemy nationals preserve their ability to stand in judgment as plaintiffs or defendants, adds that when an enemy national is summoned to court and the Court judges that he is unable to defend his case satisfactorily, it appoints a person to represent him in judgment. Moreover, enemy nationals benefited on a par with Italian nationals from the general measures enacted in Italy to extend the terms of procedure.
The case of a United Nations’ national unable during the war to defend himself adequately in an Italian trial can only have arisen exceptionally and even then solely as a consequence of de facto difficulties due to the state of war. It would hardly seem justified therefore to lay the responsibility in such a field on the Italian Government.
However, a procedure for the revision of judgments rendered by Italian Courts during the war against a United Nations’ national could be set up in cases in which he can prove that he was unable to present his defence adequately, but at the same time it would be only fair that such a privilege were limited to the nationals of those United Nations where a reciprocity in favour of Italian nationals exists in this matter.
The British Delegation has also proposed that “judgments given by the Courts of a member of the United Nations in all cases which, under the present Treaty, they are competent to decide, shall be recognised in Italy as final, and shall be enforced without it being necessary to have them declared executory”.
There seems to be no justification for such a departure from the normal rules concerning the execution of foreign judgments.