Foreign Relations of the United States, 1946, Paris Peace Conference: Documents, Volume IV

CFM Files

Observations on the Draft Peace Treaty With Rumania Submitted by the Rumanian Delegation

C. P. (Gen) Doc. 3

Paris, August 26, 1946.

Table

I. Political and Territorial Clauses

• Preamble
• Part II
• Part VIII

II. Naval, Military and Air Clauses

• Part III

III. Economic Clauses

• Part V
• Part VI
• Annex 6

Observations of the Roumanian Government on the Preamble and on Sections [Parts] II (Political Clauses) and VIII (Final Clauses) of the Draft of the Peace Treaty With Roumania

Having made a thorough study of the provisions of the Draft Peace Treaty with Roumania and as a sequel to the statement made on 13th August, 1946, to the Conference by Mr. Georges Tataresco, Vice-President of the Council and Minister of Foreign Affairs, the Roumanian Delegation has the honour to lay before the Conference the following observations, reserving at the same time the right to amplify or expand them:

The Roumanian Delegation considers itself bound, as much in the interests of historical accuracy as of discharging its responsibilities towards the Roumanian people, to recall the efforts Roumania made and the great sacrifices which she suffered in the cause of the United Nations during the last nine months of the war. In her opinion these efforts and these sacrifices should to a great degree redeem the sins of the past and place Roumania in a different situation from that which is given her in the Treaty under discussion.

It is, of course, true that, as a result of the military events in Europe during May and June of 1940, and with the connivance of a handful of reckless individuals and traitors, Hitlerite Germany was able to make Roumania her temporary ally and drag her into a stupid war. It is equally true, however, that the Roumanian people, who had nothing in common with Hitlerite Germany and whose hopes, in fact, were bound up with the Allied nations, saw in the defeat of Germany their own deliverance.

This was the general feeling which led up to the act of 23rd August, 1944, a date which will be one of the most memorable in Roumanian history.

On that day the King, the Army and the people, united in one single belief and one single hope, burst the German bonds and as one man took their stand by the side of the Allies in the war for the liberation of humanity.

The act of 23rd August, 1944 occurred at a moment when, in the words of Generalissimo Stalin, the glorious Chief of the Red Army, the outcome of the war was not yet clear. It was not an easy or a safe step to take. It involved risks which might have been mortal for the country. At that time Germany had in Roumania an army 612,507 strong, of whom 390,873 officers and men, that is 26 divisions, plus 36,248 officers and men of the Air Force and Navy, were active troops.

The German army took immediate action. For three consecutive days their Air Force bombed the city of Bucharest, almost continuously in a series of terror raids which caused serious damage, while German troops advanced on the capital.

On 23rd August, 1944 the Roumanian people, inspired by genuinely democratic motives and with the full agreement and support of their young and gallant King, took their stand at the side of their natural Allies and resolutely embarked on a war of liberation. In accomplishing one of the greatest and most difficult feats in their history, they have, in our opinion, made a valuable contribution to the war of the United Nations and to final victory.

From that moment Roumania threw into the struggle all her forces and all her resources. Eighteen Roumanian divisions, with a total strength of 385,000 men, supported by an air force, engaged the armed forces of Germany and of Horthy’s Hungary which refused to break away from Germany.

After bitter fighting, and in the record time of eight days, Roumanian territory to the south of the Carpathians was cleared of the invader who left behind more than 5,000 dead and 53,159 prisoners.

Therefore, when the Armistice Terms were signed in Moscow on 12th September, 1944, this first phase of the operations had already ended and the Roumanian Army found itself on the eve of new offensive operations this time in association with the Soviet forces. The Roumanian Army had to continue these efforts until the final surrender of Germany.

Although she had undertaken, by the terms of the Armistice, to contribute to the war on the side of the Allies at least 12 divisions, Roumania had in the field at any time between 23rd August, 1944 and 10th May, 1945, never less than 15 divisions. Operating under the Soviet Supreme Command, the Roumanian armies fought for 260 days under conditions of terrain and climate which were often very severe. Having penetrated to a depth of 1.000 kilometres into the enemy positions, they fought first on their native soil, then in Hungary up to the gates of Budapest, and finally, in Czechoslovakia up to the outskirts of Prague. In the battles which it fought it took 103,214 enemy prisoners.

How much this effort of Roumania’s begun on 23rd August, 1944 contributed to the successful conclusion of the war is set out in a special memorandum which has already been circulated to members of the Conference (see memorandum No. 1).

It will be sufficient to state here that, in addition to the great losses in property and materials of all kinds, to which should be added the losses caused by acts of war on the part of the German and Hungarian armies, the war which Roumania waged on the side of the Allies against Germany and Hungary, from 30th August, 1944 onwards cost her not less than 111,379 killed and wounded, and some units lost their effective strength several times on the field of battle.

Firmly convinced of the contribution she has made to final victory, and conscious of the blood which was so freely shed by her sons in the common cause, Roumania hopes that she will be accorded the common justice of being acknowledged as a co-belligerent.

She further requests:

(a) that, in view of the de facto situation, incidentally confirmed in Article 1 of the Armistice Terms, paragraph 4 of the Preamble to the draft Treaty should be amended so as to show that Roumania entered the war on the side of the Allied Powers on 24th August 1944 and not on 12th September 1944 after the Armistice had been concluded; and

(b) that in view of the de facto and de jure situation confirmed by Article 1 of the Armistice Terms, as also by Article 8 of the draft Peace Treaty, it should be stated at the end of paragraph 4 of the Preamble that Roumania took an active part in the war, not only against Germany, but also against Hungary.

part ii—political clauses

Article 3.

Whilst recognising the very great value of the principles proclaimed in this Article, it is questionable whether their inclusion in a Peace Treaty would not give rise to discrimination.

It would seem that the provisions contained in the Preamble and in Article I of the Charter of the United Nations referring to “respect for human rights and fundamental freedom for all without distinction as to race, sex, language or religion” might in this respect be deemed sufficient. If, on the day when Roumania is invited to become one of the United Nations, it appeared that there were discrepancies in this respect between the system provided for in the Charter and that provided for in the Treaty, it would be difficult to reconcile the retention of the special provisions of Article 3 of the Treaty with “the principle of the sovereign equality of all members” which is laid down in Article II of the Charter.

In order to avoid any semblance of discrimination in the relations between Members of UNO, the Roumanian Government would suggest that in Article 3 it should simply be stated that Roumania, in the exercise of her full sovereign rights and in accordance with the principles embodied in her Constitution and in virtue of the legislation subsequently enacted on 23rd August, 1944 and 6th March, 1945, undertakes to ensure the effective enforcement of the principles which are expressed in Chapter II (Articles 5 to 32—Rights of Roumanians) in the said Constitution. The Roumanian Government feel that they should in particular point out that under Article 5 of the Constitution “All Roumanians without distinction as to racial origin, language or religion, enjoy freedom of conscience, meetings and association and all statutory rights and liberties.”

Those are in fact the principles set out in Article 3 of the Treaty and they have the advantage of not offending national sensibilities by creating a regime of discrimination.

Article 4.

Roumania applies all the provisions laid down in Article 4. There can therefore be no question of her completing them.

In order to avoid any misunderstanding as to the interpretation or the execution of the Treaty, we consider accordingly that in Article 4 the words “undertakes to complete these measures” should be deleted.

Article 7.

The Roumanian Delegation would like to have an opportunity of giving the Conference its views on the questions relating to Roumania in the Peace Treaties referred to in this Article, particularly the Treaty with Hungary.

If Roumania had to undertake forthwith to recognize these Treaties as well as the agreements or arrangements which have already been or will in future be reached in relation to the countries mentioned in this Article and to which she is not or will not be a party, it should at least be made clear that:

(a) These treaties, agreements or arrangements should not involve Roumania or her nationals in obligations or burdens nor deprive them of their existing rights and interest, beyond what is laid down in the present Treaty;

(b) That the States referred to in the present Article should similarly recognize the full force of the Treaty of Peace with Roumania;

(c) That the treaties, agreements or arrangements in question should not be such as to impair Roumania’s rights to reparation arising whether from the Treaties which terminated the first World War or the subsequent agreements relevant thereto.

Article 8.

There is no precedent for a Peace Treaty re-establishing peaceful relations between two belligerent countries without the simultaneous participation of both interested parties.

Yet this is what Article 8 of the Draft Peace Treaty with Roumania does when it says that the state of war between Roumania and Hungary will terminate upon the coming into force of the present Treaty and the Treaty of Peace between the Allied Powers and Hungary.

Although Roumania declared war on Hungary and the Roumanian Armed Forces collaborated with those of the United Nations in the war against Germany and Hungary, there will be no Peace Treaty between Roumania and Hungary.

The Roumanian Government would stress the unusual nature of such a course of procedure which is quite unprecedented in international practice. The latter has established very definitely that a state of war is not legally terminated between belligerents except by a formal treaty of peace.

Under Article 8 we have the curious result that the restoration of a state of peace between two countries can be brought about by a process to which neither of them has given its formal consent.

In these circumstances it is for the Conference to find some means of reconciling the prerogatives of Roumania as a sovereign State, the general principles of international law in regard to the conclusion of treaties and the provisions of the draft Treaty drawn up by the United Nations.

It would appear that the most effective procedure would be for a special Protocol to be concluded between Roumania and Hungary^* simultaneously with the Peace Treaty itself and on the same day as the latter is signed.

The technical device of a “Protocol” as a means of re-establishing peace is commonly resorted to in international practice (e.g. the signature on 22nd December, 1929, of the Protocol of Khabarovsk, which brought to an end the war between China and the U.S.S.R.; the signature on the 12th June, 1935, of the Protocol of Buenos Aires, which brought to an end the Chaco war between Bolivia and Paraguay, etc.)

Article 10.

Roumania considers that the application of Article 10 might lead to serious difficulties since most of the former treaties which would be revived are no longer suited to present-day conditions.

part viii—final clauses

Article 37.

This Article would appear to be superfluous. Roumania herself is not aware of any other States members of the United Nations who were at war with her apart from those listed in the Preamble to the Peace Treaty.

Besides, there is no corresponding Article in the Peace Treaty with Finland.

Article 38.

The wording of this Article is most debatable. It is a contradiction in terms first to stipulate expressly that Roumania should ratify the Treaty, and then to provide that it “will come into force immediately after deposit of ratifications by the U.S.S.R., the United Kingdom, and the United States” quite irrespective of whether ratification by Roumania has or has not been effected. It is a well-established principle that ratification, and not signature alone, gives final force to treaties [Protocol No. 19 of the Berlin Congress of 13th July, 1878] and that “conventions become binding only if they have been ratified”.

Such a departure from accepted principles is still less admissible when it refers to the coming into force of a peace treaty, the most important kind of international agreement.

Annex I.

No map has been supplied.

Note

In the case of those Articles which have not yet been agreed by the Council of Foreign Ministers and in regard to which the Roumanian Government has not made any observations the Roumanian Government reserves the right to present its views at a later date.

Observations of the Roumanian Government on Part III of the Draft Peace Treaty With Roumania (Naval, Military and Air Clauses)

Having taken due note of the principles underlying the provisions of Article 19, and in the light of those principles, the Delegation, in the conditions ruling in Roumania to-day, has the following observations to make:

As a result of the historic event of 23rd August, 1944, the Roumanian Army took such a definite line that its contribution to final victory on the side of the Allies is notable for the following three considerations:

Immediate action as from 4 a.m. on 24 August, 1944.

Total action, in the sense that all the resources of the country, in men and material, were placed at the disposal of the Allies.

Combined action, in the sense that no subversive influence arose within the Army to frustrate or weaken the joint effort.

In fact, the whole Roumanian Army, without the slightest defection by any individual or group, spontaneously accepted the decision of His Majesty King Michael I and the Roumanian people.

In one single night, it took its stand alongside those from whom an accursed regime had tried to separate it, and turned its arms, with complete determination, against those with whom it had morally nothing in common.

Having substantially contributed, immediately after 23rd August, 1944, to the clearing up on Roumanian territory of the German troops still there totalling 612,000 men, 128,682 of these being on the lines of communication and 56,704 in the interior of the country, the Roumanian Army took part in four great series of military operations, namely:

• —Covering the advance and concentration of Soviet troops to the North of the Carpathians;
• —Liberation of Northern Transylvania;
• —Defeat of Horthy’s Hungarian Army;
• —Liberation of Czechoslovakia.

Side by side with the glorious Red Army, the whole Roumanian Army, for 260 days, shed its blood unstintedly and fought with a spirit, a courage, and a disregard for losses which obtained for it not less than 78 written testimonials from various Soviet commanders, among them seven Orders of the Day signed by Generalissimo Stalin and a Decree conferring on H.M. Michael I the Order of Victory.

Throughout all this period of nearly nine months the Roumanian Army put into the line forces which reached a maximum of 29 divisions (with a total manpower of 385,847 men) and never fell below 15 divisions (185,567 men).

The Roumanian Army covered more than 1,000 kilometres, took part in 383 battles or actions, conquered 3,831 towns or villages, captured 103,214 prisoners, and left on the battlefield 169,822 dead, wounded or missing.

In spite of having been forced to carry on a war which she neither wanted nor understood against her natural Allies, we consider that, by its conduct on 23rd August, 1944 and by its subsequent operations, as the above statement shows, the Roumanian Army is entitled to very special consideration from the Allies.

We think this consideration could most suitably be shown by the following modifications in the military clauses of the draft Peace Treaty.

Article 11

a) Since early June this year Roumania has been reorganising her armed forces on the basis of a personnel strength of 138,000 men, as provided for in the above Article (in the case of other ranks this reorganisation had already been completed by 15th July; in the case of officers and N.C.O’s it will be completed by 9th September; under a Decree of 7th August last, 16,120 officers and N.C.O’s out of a total of 41,511 were placed on the reserve list.

In order not to exceed this figure, Roumania, while cutting down to a minimum the strength of the formations she has retained, has had to disband certain troops of the interior. This will make it very difficult to execute certain material operations arising out of the war.

Therefore, the Roumanian Delegation asks that 5,064 men (Officers, N.C.O’s and O.R’s) he added to the 120,000 effectives as laid down for the land forces.

b) As regards the Roumanian Navy, an establishment of 4,565 to man the existing tonnage of 6,500 is quite inadequate.

The draft Peace Treaty provides a personnel of 5,000 men for a total tonnage of 15,000 tons. This means that Roumania would have only 435 additional men for the remaining 8,500 tons.

Roumania, therefore, requests that the strength of the Roumanian Navy be raised to the irreducible minimum of 6,320 men (Officers, Petty Officers and Seamen) instead of the 5,000 permitted.

c) Roumania would point out that it is not her intention that her armed forces should embark on any aggressive plan or scheme against anyone, but that she is sincerely anxious and firmly determined to preserve internal order and to co-operate in the establishment of universal peace within the framework of the United Nations.

Although its numbers are to be reduced the future Roumanian Army must receive thorough modern training, which will enable it to discharge the above-mentioned task.

While Roumania has been allowed to retain, for her land forces, modern methods of training, she has, by contrast, been deprived of bombers, which means that she cannot train personnel in one of the essential departments of air training.

In their present condition Roumanian bomber aircraft could not undertake any kind of offensive action, but they could easily be used for the training of specialist personnel.

Therefore, the Roumanian Delegation requests that the 36 Bomber Aircraft which are now in service with the Roumanian Air Force should be added, as training machines, to the 150 provided for in this Article.

Article 14

In order to complete the training of crews the Roumanian Delegation requests that the only submarine still in Roumania’s possession should be left to her as a training-ship. The present condition of this vessel, which is little better than that of the bombers, makes it impossible for it to undertake any action beyond a very short distance from its base.

Article 15

Most of the war material which Roumania possesses today is obsolete. If Roumania is to be allowed to have a properly equipped army, she should be enabled to keep this equipment in condition and to replace any of it which becomes obsolete.

If Roumania is forbidden to maintain any plant for the supervision, repair or replacement of worn-out or condemned material this will entail an additional burden on the Roumanian budget which will aggravate the economic condition of the country and make it even more difficult to fulfil the obligations which are imposed by the draft Peace Treaty itself.

Roumania has no intention of manufacturing in her arsenals any arms in excess of the minimum necessary for the personnel which she has been allowed to retain, but she considers it essential that she should not be deprived of equipment which would enable her to repair worn-out or condemned material, or to replace any munition expended in the training of her army.

It is, therefore, absolutely necessary that Roumania should be permitted to keep, in the condition in which they now are, the following installations:

a) one arsenal, for the repair of war material;

b) one shop in each of the former armament factories which are to-day practically entirely converted to peace-time requirements, in order to replace war material which is either defective or condemned;

c) a factory for propellant or pyrotechnic purposes for re-testing existing ammunition and for replacing ammunition expended in the course of any year for the training of the armed forces;

d) a naval dockyard for the repair and maintenance of the naval vessels which are permitted under the present draft Treaty.

Article 16

a) For an army reduced as the Roumanian Army has been and lacking the equipment which would allow of the immediate replacement of faulty or condemned material, the necessary minimum of war material cannot be in exact proportion to the effective strength. Otherwise every weapon lost or damaged would mean one trained soldier less.

In the position in which the future Roumanian army will be placed, and in view of the absolute inadequacy of industrial equipment the necessary minimum just referred to should be determined so as to make allowance not only for allocations to active units, but also for a reserve.

As regards the armaments and balance of war material at present in use, Roumania estimates this reserve at 25% of the strictly necessary minimum.

In the case of ammunition it is impossible to determine the quantity which is strictly necessary, since expenditure depends on requirements and the degree of efficiency of the units under training.

Roumania does not propose to make or store ammunition beyond the amount necessary for the training of her troops and for building up a reserve to enable her to discharge the obligations laid upon her by the Treaty.

The Roumanian Delegation believes that the amount of ammunition which she would be entitled to retain should be determined on the following basis:

Ammunition required for training purposes for a period of 10 years and, in addition:

• —a reserve of three items of ammunition for all categories of armaments necessary for the maintenance of internal order and the defence of the frontiers (obligations laid upon the Army under the provisions of the present draft Treaty).

b) In regard to excess war material the Roumanian Delegation would like to point out that:

• —the Roumanian Army as at present equipped has a certain amount of war material of either Allied or German origin which was bought and therefore paid for by Roumania;

If this war material were put at the disposal of the Allies it would mean that the Roumanian contribution to the war effort would be increased by an amount equal to the cost of that material, as it has already been paid for.

The same would apply to war material of Roumanian origin, manufactured in Roumania and for her account.

The Roumanian Delegation, therefore, requests that:

War material captured during the war by the Roumanian Army after August 23rd, 1944, and which the Allied Control Commission has authorised Roumania to retain as war booty, should be left in her possession;

Excess war material of Allied or German origin, which has been paid for by the Roumanian Government, should be placed at the disposal of the Allies and the value thereof credited to the Roumanian Government;

Excess war material of Allied or German origin, not paid for by the Roumanian Government, and war material manufactured in Roumania, should be dismantled and converted into raw material and put at the disposal of the general economy of the country.

If this proposal were adopted, not only would an unjust clause be eliminated, but Roumania would be given the possibility of improving, in however small a measure, the difficult situation in which she finds herself to-day.

Article 20

The delay in returning Roumanian prisoners of war who have remained abroad helps to create and maintain a state of depression both among the population and the army.

Roumania is sure that these prisoners are being well treated. Nevertheless, for the moral rehabilitation of the country and to ensure a return to normal conditions, a date should be fixed for the return of prisoners of war at the earliest possible date.

These are the amendments which the Roumanian Government feels should be asked for in the military clauses of the draft Peace Treaty.

These amendments would fill a number of very serious gaps which have already become apparent in implementing military laws concerning the re-organisation of the army on a new basis in accordance with the provisions of the present draft Treaty.

If these proposals were adopted by the Peace Conference in their entirety, it would not only provide real evidence of the Allies’ consideration for a country whose sacrifices on the battlefields have been borne with complete conviction and entire disinterestedness for the sake of final victory, but it would at the same time transform the Roumanian Army into an instrument serving only the cause of democracy and peace, and well equipped in all respects—moral, professional and material.

Firmly embarked on the new path of democracy, and peace, the Roumanian Army asks that it should in future be given all the confidence which it has already shown it merits both by the spontaneous, united and unanimous action it took on the night of 23rd/24th August, 1944, and by its achievements on the battlefield shoulder to shoulder with the Allies since that date and up to the final destruction of Hitlerite Germany.

The Roumanian Army requests that it should be given in peacetime the facilities which enabled it to fight and shed its blood for the common cause of the Allies in the supreme test of war.

Observations of the Roumanian Government on Part V of the Draft Peace Treaty With Roumania (Reparation and Restitution)

Article 22

[Line of points appears in source text.]

Article 23

Paragraphs 1 and 2:

Roumania accepts the principles of the London Declaration of January 5, 1943.

Paragraph 2 of Article 23, providing the obligation to make restitution irrespective of any subsequent transactions by which the present holder of any such property has secured possession, i.e. even if he acted in good faith, goes beyond the provisions of the Declaration of January 5, 1943. Roumania would thus be assuming additional obligations, even though she had scrupulously observed the principles laid down in this Declaration.

Roumania does, in fact, hold property which she acquired by bona fide and not fictitious means, as a result of transactions which not only have the appearance of legality, as mentioned in the Allied Declaration of January 5, 1943, but which are legal by their very substance. These transactions, which had an indisputably bona fide basis, involved the actual supply of goods as a counterpart for services rendered and were concluded under agreements and conventions of a strictly commercial or financial character.

Roumania, being thus a bona fide purchaser of the goods in question, will take advantage of this status, as the principle of good faith is recognised in international relations.

The point of view we have just stated is, moreover, consonant with the spirit of the text of the “Explanatory Note”, attached to the Allied Declaration of January 5, according to which the rules of equity will apply in determining the validity of the transactions, covered by this Declaration.

True, this appeal to equity is explicitly foreseen only in the relations inter se of the United Nations. But equity is not an isolated consideration to be admitted in some cases and excluded from others. If the conditions under which looted property was acquired are considered “ex aequo et bono”, the State acquiring the property is, eo ipso, entitled to put forward the plea of good faith which is unanimously recognised by all legislations as the most elementary equity.

For the reasons stated above, the Roumanian Government feels it should ask for a modification of paragraph 2 of Article 23, so as to exempt from the application of this Article property acquired in good faith under a deed of legal transfer.

The text of paragraph 2 also states that the obligation to make restitution applies to “property at present in Roumania”. We suggest the insertion before “Roumania” of words “the possession of”. In our opinion, the absence of these additional words can only be due to an oversight.

At the same time, it should be pointed out that the text of paragraph 2 might be construed to mean that restitution applies also to property transferred under commercial agreements or direct commercial transactions concluded by the Roumanian Government or its nationals with the authorities or inhabitants of territories occupied by the Axis-Powers. But, as, firstly, such transfers could not have been effected by force or duress and, secondly, Roumania has provided equivalent material consideration, these observations should be borne in mind when finally drafting paragraph 2.

It should be observed, as regards this same paragraph: that restitution of rolling stock presents a very complicated problem.

The foreign rolling stock on the Roumanian railways represents mostly material which by force of circumstances was held up in Roumania while almost all the Roumanian rolling stock in other countries was put at the disposal of the Allied Armies by the Roumanian Government, for joint military operations after August 24, 1944.

The figures of the Roumanian Railways’ Administration show that:

a) Some 178 locomotives and 42,000 trucks, belonging to Allied and other countries, are operating on the national railways: of these, some 135 locomotives and 20,000 trucks must, after repairs, be handed over to the U.S.S.R. within about one year.

b) 274 locomotives and some 26,000 Roumanian trucks are being used on foreign railways.

The restitution of foreign rolling stock without the corresponding return of Roumanian rolling stock would paralyse Roumania’s railway communications and greatly disorganise her economic system.

This problem needs to be settled as a whole, particularly as other States are in a similar position.

Paragraph 4:

This paragraph provides for the restitution “in good order” of property removed by the Axis Powers by force or duress from the territory of any United Nation.

Such an obligation, though, cannot apply to property which was removed by an Axis Power from the territory of a United Nation and later handed over to Roumania against payment.

As this is a case of property paid for by Roumania, the most that could be expected would be restitution in the condition in which it is being used by the present owner. This would imply Roumania losing the value of this property, but there should be no contingent liability to recondition such property, as that would mean an additional burden on Roumania.

We consider, therefore, that the words “in good order” should be replaced by the words “in the condition in which it is being used by the present owner”.

Paragraph 6:

As the wording of this paragraph might, in certain cases, involve the Roumanian Government in pecuniary burdens if it were, for reasons beyond its control, unable to take the measures in question, it should be made clear that the Roumanian Government is only obliged to take such measures as lie in its power for the restitution of the property.

Paragraph 8:

This paragraph, under which the burden of proving that the property was not removed by force or duress, rests on the Roumanian Government, is not only contrary to the principles of common law, but constitutes an obligation which, in most cases, cannot be fulfilled, seeing that the Roumanian Government is unaware of the circumstances under which such property was acquired by the Axis Powers.

The Roumanian Government ventures to suggest that a new text be drafted making it the duty of the claimant Government to identify the property, to prove its ownership and show that it was removed by force or duress.

Observations of the Rumanian Government on Part VI (Economic Clauses) of the Draft Peace Treaty With Rumania

Article 24

Paragraph 1

The obligation, provided by this paragraph, to restore all the legal rights and interests and return all property, should only apply in favour of the Allied and Associated Powers and their nationals. Considering that this obligation derives from acts of war, to make nationals of a country which has not been at war with Rumania, benefit from this obligation would create for those nationals an unjustifiably privileged status.

While recognising that Rumania is obliged to satisfy the requirements of paragraph 1, we deem it necessary to observe that, in our opinion, this obligation should mean the re-establishment of legal rights and interests as they existed at the moment of the entry into war of each of the Allied and Associated Powders against Rumania. Otherwise, Rumania would find herself burdened with obligations not legitimately arising out of a state of war.

Paragraph 1, as it is worded, seems to oblige the Rumanian Government to repeal in favour of the nationals of Allied and Associated Powers all the legal provisions which applied to them under laws enacted after 22 June, 1941 and even—an unexpected result—after 24 August, 1944, regardless of the fact that this legislation did not discriminate against them.

It is evident that Rumania is prepared, so far as she has not already done so, to repeal all discriminatory legislation affecting the nationals of Allied and Associated Powers. However, to keep the text as it stands at present, would have the effect of setting up on one and the same territory two legal systems, and this would be contrary to the general principles of law and the notion of national sovereignty.

Moreover, the application of this text might lead to such consequences that the legislator would find himself finally obliged to perpetuate legal situations calculated to place the nationals of Allied and Associated Powers in an exceptionally privileged position.

At the same time, innumerable claims for damages from injured parties would be anticipated. This would entail heavy burdens on the Rumanian State and, consequently, lessen its capacity to compensate the Allied and Associated Powers.

Moreover, there is a noticeable absence of a reference, which would seem natural as it is inherent in the spirit of the text: the words: “and which are in the possession of the Rumanian State or its nationals”, should be interpolated after the words: “in Rumania”. The absence of these words seems to be due to an oversight.

Finally, a last and important observation: as the U.S.S.R., which has suffered direct losses as the result of war on its own territory, has made allowance for the fact that Rumania has not only withdrawn from the war against the United Nations, but has declared war against Germany and Hungary and has fought against these two countries with substantial forces, and has reduced its reparation claims to a sum which can be assessed at a fifth of the total damages incurred, we deem it equitable to ask for the same treatment from the Allied and Associated Powers. The more so, as by its action, Rumania shortened the war and thus enabled the Allied and Associated Powers to reduce their losses and their sacrifices.

Considering that some nationals of the Allied and Associated Powers have been enabled, thanks to credits given or facilitated by the Rumanian State or subsidies granted by it, to make good at least some of the losses they sustained, it would be equitable that the amount of losses to be compensated should be computed only on the outstanding reparations, the credits granted or given on easy terms, by the State for this purpose being still borne by the latter, without prejudice, of course, to the reduction mentioned in the preceding paragraph.

Paragraph 6

Considering the de facto situation in Rumania, paragraph 6 appears to be unnecessary.

In the first place, Rumania has not imposed a tax on capital.

Secondly, even if certain taxes could possibly be considered as of an exceptional character, it should be observed that, as a result of price-control and the special circumstances prevailing in Rumania, those taxes are borne entirely by the consumer.

Finally, no fiscal regulation of a discriminatory character have been enacted.

Paragraph 8

In order to avoid certain possible abuses consequent on change of nationality effected during the war, the Rumanian Delegation considers that it would be advisable at the end of subparagraph a, to replace the words “date of the Armistice with Rumania” by the words “date at which the loss or damage was suffered.”

The benefit of this text, as it now stands, could be claimed by persons who were nationals of the Allied and Associated Powers at the date of the Armistice, but did not possess such nationality at the time the damage was caused. The authors of the texts can hardly have wished to create such a situation.

The second paragraph of sub-paragraph a is in contradiction with the principles laid down in the preceding paragraph, as well as with the general principles of law, universally accepted, concerning nationality regulations.

The fact that certain security measures were taken against persons who seemed to endanger the security of the State, cannot affect their personal status.

Article 26

The Rumanian Government ventures to explain why it cannot accept the principle laid down in this Article.

As the property, rights and interests, referred to in this Article, were transferred by their owners to the territory of the Allied and Associated Powers, they thus contributed to the war effort of these powers, while at the same time depriving the Axis Powers of the corresponding financial resources. The omission of this text is intended to avoid punishing Rumanian nationals who, because they believed in the victory of the Allied and Associated Powers, transferred their assets to the territory of these Powers.

The provisions of this Article are still less justified inasmuch as Rumanian nationals who had assets in Axis countries would seem to retain the possibility of recovering them.

Moreover, if owners are allowed to dispose freely of their property, rights and interests, mentioned in Article 26, it would encourage the revival of international trade and thus contribute to the efforts made to restore the country’s equipment and rehabilitate the national economy.

In support of these considerations, we would point to the solution proposed by the U.S.S.R. Delegation in the draft Treaties with Bulgaria and Hungary, and adopted in the Peace Treaty with Finland by the United Kingdom and the U.S.S.R.

Article 27

Rumania wishes to retain for herself and her nationals, her full rights vis-à-vis Germany, Hungary and the nationals of those States, in connection with property, debts and interests.

In view of her sacrifices and the extent of her contribution to the common victory over the Axis Powers, Rumania also intends to maintain her claim to just reparation from Germany and Hungary.

The Rumanian Delegation will submit a special memorandum on this latter point.

Article 29

The provisions of Article 29 obliging Rumania to waive all claims against the Allied and Associated Powers “arising directly out of the war or out of actions taken because of the existence of a state of war—after September 1st, 1939” seem to be unfair.

Rumania remained neutral until 22 June, 1941 and was only in a state of war with certain Allied and Associated Powers after that date. It would, therefore be unfair, if she were prevented from putting forward claims arising out of measures taken by the Allied and Associated Powers during the period of her neutrality.

Consequently, if the Article is to be maintained, it appears necessary to replace the date of 1st September 1939 by that of 22 June 1941.

As for point c), it should be stressed that the renunciation by Rumania of her claims in respect of the decrees of the Prize Courts of the Allied and Associated Powers concerning a period when she was neutral, would constitute for her an unwarranted loss.

It would therefore seem logical that the date of the 1st September stated in point c) should also be changed to the 22nd June 1941.

Paragraph 2

The provisions of the part of this paragraph, beginning with the words “the Rumanian Government agrees”, impair the sovereign right of the Rumanian State to allow for the general interests, the country’s possibilities and the equitable application of the principle of equality of burdens, in the settlement of claims of Rumanian nationals arising from facts of war.

Discrimination would thus be established between the Rumanian nationals who, in virtue of this Article would be subject to two different legal regimes: whereas some would be indemnified under the exceptional provisions of the above-mentioned paragraph, others would be subject to provisions of internal law in the matter of reparations.

It is all the more necessary to eliminate the provisions of this part of paragraph 2 as, by their application, they might establish in favour of the German State and its nationals, debts against Rumania, arising from the facts covered by the present Article.

Paragraph 4

The Rumanian Delegation ventures to draw attention to the fact that the final passage, from the words “including all such currency” up to the end, is useless, considering that in practice and law, this question has been completely settled in Rumania; the exchange of currencies mentioned in this paragraph is terminated and the holding of such currency is regarded as a breach of Rumanian law.

The maintenance of this paragraph would thus offer to holders of such currencies the means of asserting illicit claims.

Paragraph 5

The period during which the waiver of claims by Rumania should apply, should be from the 22nd June 1941 to the 24th August 1944, and not, as stipulated in the draft Treaty, from the 1st September 1939 to the date of the coming into force of the said Treaty.

Article 30

The Rumanian Government cannot raise any objections to the application of most-favoured-nation treatment in any international economic relations that may be entered into in the future.

Nevertheless, so long as a considerable part of Rumania’s annual production has to be applied to the fulfilment of obligations already undertaken, and of those provided for in the Peace Treaty, she desires to retain complete freedom of action in respect of her economic policy, in order to be able to employ the limited resources which are left to her to the best advantage.

In such circumstances, the Rumanian Government consider that the most-favoured-nation clause should be applied in her international economic relations, not as a general obligation imposed by the Peace Treaty, but as a conventional provision, freely subscribed by means of bilateral negotiation.

Having concluded its remarks on each of the clauses of the Peace Treaty, the Rumanian Delegation considers it essential to add some observations on the position as a whole.

First, in view of the complexity of the problem created for Rumania by these clauses, the divergences which exist between their different versions, and the various interpretations to which they may give rise, the Rumanian Delegation reserves the right to amplify its observations or later to clarify its views according to the development of the debate.

Secondly, it should be stated that, whatever the final decisions in respect of the clauses of the Treaty, the latter will impose on Rumania very heavy burdens over a long period of years. Added to the losses suffered by Rumania as a result of the war, the important efforts she has made and has still to make, and the imperative necessity of restoring her equipment and re-establishing her national economy at the earliest moment—on which the execution of her obligations above all depends—Rumania may find herself faced with charges which as a whole will be greater, possibly much greater, than her capacity to pay or her transfer facilities.

In her desire loyally to fulfil the obligations she is about to enter into, Rumania cannot ignore this aspect of the problem.

Therefore, the Rumanian Delegation would be grateful for an opportunity of explaining Rumania’s present economic position to the Economic Commission.

Rumanian proposal in respect of certain Annexes

The Rumanian Delegation considers that Annexes 4, B, C, D, which do not, in their opinion, correspond to the modifications suggested by the Delegation to the Articles to which these Annexes refer, should be withdrawn.

A supplementary note in respect of these Annexes will be presented later if necessary.

Observations of the Roumanian Government Concerning Annex 6 to the Draft Peace Treaty With Roumania

A. Prize Courts.

A provision such as the one contemplated in this Annex is not in conformity with the principle of the international effect of judgments of prize courts. When it is a case of estimating the international responsibility actually incurred by a State as a result of erroneous or unjust prize court judgments, international practice is at present usually determined by the following considerations:

There is general agreement in recognising that prize court judgments shall enjoy the authority of the res judicata, when they are in rem (in the sense that they have full effect and are legally enforceable against States being Third parties as regards transfer in the property of the vessel or the cargo), but not in personam (which implies that the State by which the vessel has been captured is internationally liable for any faults committed by its own Prize Courts, either by omission, or as a result of any breach of international law, and that such default shall entail, in accordance with the generally accepted principles of law, the obligation to compensate the injured party).

Expressed in ordinary language, this principle signifies that, once a Prize Court has rendered judgment, that is when the successive judicial instances have been exhausted, such a judgment becomes irrevocable, and can only be reopened by diplomatic or other procedure. Wheaton rightly saw in this rule “a principle of public law undeniable in itself and necessary for peace and trade” (Wheaton’s Argument: Danish Indemnity, see Moore “Arbitrations”. Vol. V. p. 4555).

In support of this principle, conventional law can be invoked, and the authority of the res judicata in rem enjoyed by prize court judgments, confirmed as these are by former Treaties of Commerce and Navigation (exchange of declarations between Great Britain and Colombia; Art. 12 of the Treaty of 2nd April 1831 between France and Haiti; Art. 14 of the Treaty of 9th December 1834 between France and Bolivia; Treaty of 8th March 1848 between France and Guatemala; Art. 13 the Treaty of 12th March 1848 between France and Costa Rica; Treaty of 22nd February 1856 between France and Honduras, etc.) and by Treaties of Peace (Art. 19 of the Treaty of 14th January 1814) between Denmark and Sweden; Treaty of Zurich of 10th November 1859 between France, Sardinia and Austria-Hungary; Art. 13 of the Treaty of Frankfort of 10th May 1871; Art. 27 of the Treaty of Peace signed at Berlin on 7th March 1918 between Germany and Finland, etc.).

The only exception to these general principles concerns the Peace Treaties of 1919–20. Art. 440 of the Treaty of Versailles—provisions reproduced in the other treaties signed at the same period (Art. 378 of the Treaty of Saint Germain, Art. 296 of the Treaty of Neuilly, Art, 361 of the Treaty of Trianon)—established a differential regime by which Germany undertook definitely to recognise all prizes seized by the Allied Powers, the latter reserving to themselves the right to examine (under conditions to be determined at their own discretion between themselves) the judgments of German prize courts, even in the case of neutral prizes. But this exceptional provision was not, in fact, effectively applied; and it is difficult to accept it as the expression of positive law on this subject. But it is nevertheless this discriminatory clause, contrary to all previous legal doctrine, which it is sought to insert to-day in the draft Peace Treaty submitted to Roumania.

b) Internal Prize Court Jurisprudence is in the same sense; see, in particular, British Prize Courts in Egypt 28th June, 1918, German ship “Lützow” (Fauchille et Basdevant, Jurisprudence britannique en matière de prises maritimes, volume II, 1927, pp. 492–498); Belgian Prize Courts 17th October 1919, ex-Dutch steamship “Midsland” (Verzijl, Le droit des prises de la Grande Guerre, Leyden, 1924, pp. 1289–1290) and 8th December, Dutch sailing ship “Agiena” (ibid., p. 1291).

c) Lastly, international jurisprudence confirms the views expressed above. See the judgment of 30th June 1930 rendered by the special Germano-Portuguese Arbitration Tribunal in the matter of the Portuguese claims against Germany (Portuguese vessel “Cysno” and French vessels “Guadeloupe” and “Florida”, decision, Lausanne, 1930, pp. 24–28; Revue de droit international, 1934, p. 3 & 5.)

Consequently, the Roumanian Government is of opinion that an independent State cannot be required, without injuring the prestige of its courts and without ignoring the principle of res judicata, to review certain judgments rendered by its Prize Courts. The only normal legal method (which the Roumanian Government would for its part be prepared to accept) would be to engage a diplomatic or arbitration procedure applicable only to judgments deliberately contrary to international law and in which the international responsibility of Roumania is involved. In this hypothesis, and provided it was agreed that judgments previously rendered should be accepted as final, the Roumanian Government would be prepared to pay pecuniary compensation, in as far as it was recognised that its responsibility was involved.

It would seem, therefore, that Section A of Annex 6 should provide that each of the Allied and Associated Powers should reserve its right to examine, in accordance with a procedure to be agreed upon with the Roumanian Government, all judgments and orders of Prize Courts affecting the property rights of its nationals. If an Allied or Associated Power considers that a judgment or order of a Roumanian Prize Court is contrary to international law, and if Roumanian constitutional law does not allow or only allows to a limited extent that the consequences of such judgment or order should be nullified by administrative action, the said Allied or Associated Power and the Roumanian Government should agree mutually to fix the amount of pecuniary compensation payable by Roumania. In case of differences of opinion on any of the above points, the question should be referred for decision to an arbitrator, designated by mutual agreement by the parties concerned. If within a period of … the said parties fail to agree upon the appointment of an arbitrator, the latter shall be designated by.…

B. Judgments.

The Roumanian Government wishes to call attention to the obligation which would be imposed to revise all judgments rendered by its own Courts since 22nd June 1941 in connection with any lawsuit in which a national of any of the United Nations should not have had the opportunity of stating his case adequately. Such a procedure, which is tantamount to imposing by authority a review of judgments which have acquired the force of res judicata, is not in accordance with the general principles of lax [lex].

The Roumanian Government therefore prefers the proposal submitted by the United States Delegation, and supported by that of the U.S.S.R., but specifies, that the obligation to review judgments rendered against a national of one of the United Nations shall only apply to judgments which have been rendered in a court before which the national in question was unable to defend his case.

1. The Roumanian Government does not think that this legal instrument should be regarded as a protocol additional to the Peace Treaty seeing that the parties are not identical [Hungary is not a signatory to the Peace Treaty]. [Footnote in source text.]