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

CFM Files

Report of the Legal and Drafting Commission on the Draft Peace Treaty With Italy

C.P.(Plen)Doc. 28

Paris , [October 7, 1946].

The Legal and Drafting Commission has studied the texts of certain provisions of the draft Peace Treaty with Italy which were referred to it by the Political and Territorial Commission for Italy, the Economic Commission for Italy and the Military Commission.

It should be pointed out that the Legal and Drafting Commission has not been charged with the general examination of all the texts of all the draft treaties. It has only been requested to deal with the matters referred to it, and in the case of the draft Treaty with Italy these are mentioned below. In dealing with new articles or amendments referred to it as having been unanimously adopted by other commissions it has only considered the parts of the texts referred to it and containing the amendments.

1. Texts Submitted by the Political and Territorial Commission for Italy to the Legal and Drafting Commission

A. The Legal and Drafting Commission has examined Articles 15, 32, 33, 34, 35, 36, 77 and 78 of the draft Peace Treaty with Italy, referred to it by the Political and Territorial Commission for Italy.

The Commission’s work in this connection has been analysed in another report (Document C.P.(Plen)Doc. 24 Annex).

B. In a letter dated 4th September (Document C.P.(JR) 4), the Chairman of the Political and Territorial Commission for Italy asked the Legal Commission to study the texts of Article 2, paragraphs 2, 3, and 4 and of Article 9 (Annex 2, Section 4) of the draft Peace Treaty with Italy.

At its meeting on the 11th September, the Legal and Drafting Commission decided that a Sub-Committee should study the questions which had been thus referred to it. This Sub-Commission consisted of the representatives of Brazil, Czechoslovakia, France, New Zealand, Norway, U.K., U.S.A. and U.S.S.R. and the Rapporteur of the Commission.

The Sub-Committee held several meetings and finally made a report which was unanimously approved by the Commission at its meeting on the 3rd October, a few modifications being made. The Commission, for instance, pointed out that the word “North-West” in the third line of paragraph 1 of Article 2 of the draft Treaty should be replaced in the English text by “North-East”, so that the English should accord with the Russian and French texts.

A copy of the Sub-Committee’s report (Document C.P.(JR)Red Doc. 1) is annexed to this Report.

C. In his letter of 1st October (Document C.P.(JR)Doc. 31), the Chairman of the Political and Territorial Commission for Italy referred the texts of the modifications to the draft Treaty with Italy which had been unanimously adopted by his Commission to the Legal and Drafting Commission for study. These modifications related to the Preamble, Articles 1 and 5, the heading of Section 4 of Part 1, Articles 11, 12, 18, 19, 20, 28, 31, 38, 76 and Annex 3, para. 1.

The Legal Commission studied these texts at its meeting on 3rd October. It unanimously approved the text of the Preamble, Articles 1, 11, 18, 19, 29 and 38 and Annex 3, Sub-Section 1. Further, it proposed the following textual amendments:

Article 5:

The new paragraph inserted by the Political and Territorial Commission was unanimously approved, except for a typing error in the English text: in line 5, delete the word “no” in the sentence “… or town of no more than 500 inhabitants”.

Heading of Section 4 of Part 1:

The modification of the heading was unanimously approved, except that in the English text the heading should be corrected to read: “Federal People’s Republic.”

Article 12:

The modification adopted by the Political and Territorial Commission for Italy was unanimously adopted. The sentence: “Ces îles seront et demeureront démilitarisées” was re-inserted in the French text. In the English text, the words “Islets dependent on” should be substituted for “Islets depending from”.

On the other hand, the Commission deleted from its agenda the discussion of Articles 28, 31 and 76 which had been erroneously referred to it, since the modifications in question had not been unanimously adopted by the Political and Territorial Commission for Italy.

D. In his letter of 1st October (Document C.P.(JR)Doc.26) the Chairman of the Political and Territorial Commission for Italy transmitted Article 11a of the draft Treaty with Italy to the Legal Commission for scrutiny of its drafting.

The Legal Commission considered that it would be desirable to make the following modifications to the text which was submitted to it:

In the French text, the phrase: “L’ltalie remettra à la Yougoslavie ayant juridiquement le caractère de biens publics” should be replaced by the phrase: “L’ltalie remettra à la Yougoslavie tous les objects ayant juridiquement le caractère de biens publics”.

In the English text, the phrase: “Italy shall deliver all objects of a public legal character” should be replaced by the phrase: “Italy shall deliver all objects having juridically the character of public property.”

In the Russian text of paragraph 3, the phrase: “It is impossible” should be substituted for the phrase: “It is possible” so that the text should accord with the English and French texts.

E. In his letter of the 4th October (Document C.P.(JR)Doc.39), the Chairman of the Political and Territorial Commission for Italy asked the Legal and Drafting Commission to examine, in connection with Article 12 of the draft Peace Treaty with Italy, the text and map of the proposed maritime frontier of Greece in the region of the Dodecanese Islands which had been prepared by the Greek Delegation. At its meeting on the 5th October, the Commission, after noting that no reference had been left to the Treaties of the 4th January 1932 and the 28th December 1932, decided to approve the text and the map submitted by the Greek Delegation, subject to the proviso that they should be [examined] by a Sub-Committee composed of experts from the Delegations of France, U.K., U.S.A., U.S.S.R. and Greece. This Sub-Committee held two meetings and unanimously adopted a resolution making a modification in the 3rd paragraph from the last of the above-mentioned text. A copy of this resolution is annexed to this report. The text describing the frontiers and map will, with the agreement of the Commission, be submitted to the Plenary Conference.

F. In his letter of the 24th September (Document C.P.(JR)Doc. 18), the Chairman of the Political and Territorial Commission for Italy referred for consideration to the Legal and Drafting Commission Sub-Sections 1 and 3 of the text proposed by the Yugoslav Delegation for Article 13a of the draft Peace Treaty with Italy (Document C.P.(Gen) Doc.I.U.8).

At its meeting on the 30th September the Legal and Drafting Commission decided that the Delegates of Belgium, U.S.A., U.S.S.R. and Yugoslavia should form a semi-official working party for the study of this text.

An amended draft text was submitted to the Commission during its eighth meeting which was also held on the 30th September. After some discussion it was put to the vote and adopted as a whole by 17 votes to 1 and 2 abstentions.

Voted for: Australia, Belgium, Byelorussia, Canada, Czechoslovakia, Ethiopia, France, Greece, India, Netherlands, Norway, Ukraine, U.K., U.S.A., U.S.S.R., Union of South Africa, Yugoslavia.

Voted against: Brazil.

Abstained: China, New Zealand.

Absent: Poland.

The text so adopted is annexed to this report.

G. The Chairman of the Political and Territorial Commission for Italy referred by a letter (Document C.P.(JR)Doc. 35) addressed to the Legal and Drafting Commission to the text of paragraph 4 of draft Article 16a contained in the U.S. Delegation’s proposal (Document C.P.(IT/P)Doc. 16), so that it should be brought into line with the French proposal (Document C.P.(IT/P)Doc. 105) which had previously been adopted.

The Legal Commission voted a new text proposed by the U.S. Delegation. 12 votes were cast in favour of the text, 8 Delegations abstained.

Voted for: Australia, Belgium, Brazil, Canada, China, Ethiopia, France, Greece, Netherlands, Union of South Africa, U.K., U.S.A.

Abstained: Byelorussia, Czechoslovakia, India, New Zealand, Norway, Ukraine, U.S.S.R., Yugoslavia.

Several delegations who abstained gave as their reason for abstaining the fact that, in their view, the matter in question was not within the competence of the Legal and Drafting Commission, or that the task of this Commission was not sufficiently well defined in the letter by which the text had been referred to it.

The above mentioned text, on which the Commission voted, is annexed to this report.

H. In a letter of the 24th September (Document C.P.(JR) Doc. 23), the Chairman of the Political and Territorial Commission for Italy referred the Greek proposal for the addition to the annex to Article 68 of the draft Peace Treaty with Italy (Document C.P.(Gen) Doc. I.J.15), to the Legal and Drafting Commission to verify whether the clauses of this proposal did not already appear in the Articles of Annexes of the draft Treaty.

After discussion during its meeting of the 30th September, the Commission instructed its Chairman, its Vice-Chairman and its Rapporteur, with the Delegate for the U.K., to draft the appropriate reply to the Political and Territorial Commission for Italy, taking account of observations made during the meeting in question, particularly by the Delegate for the U.K. This reply took the form of a report, the text of which is annexed to this report (Document C.P.(J.R.)Doc.25).

2. Texts Submitted by the Economic Commission for Italy

A. In a letter of the 21st September (Document C.P.(J.R.)13), the Chairman of the Economic Commission for Italy submitted for study to the Legal Commission the text of paragraph 1 of Article 68 of the draft Treaty with Italy to ensure that the French text, on the one hand, and the English and Russian texts, on the other, were in complete accord.

The Legal Commission unanimously decided to inform the Economic Commission for Italy that in the French text the words “qui sont situés” should be deleted.

B. In a letter of the 2nd October (Document C.P.(JR)33), the Chairman of the Economic Commission for Italy submitted to the Legal and Drafting Commission the text of the modifications, which had unanimously been agreed by his Commission, to the draft Treaty of Peace with Italy.

The Legal Commission unanimously approved the text of Article 65, paragraph 1 and that of sub-paragraph B of paragraph 5 of Article 69.

It also unanimously decided that in the English text of Article 64a, the expression: “The basis of calculation for the settlement”, should be substituted for the expression: “The basis for calculating the settlement”.

It unanimously decided that the following amendments should be made to the text of paragraph 5 of Article 65:

in the phrase in the English text: “from which such objects”, the words “whose territory” should be substituted for the word “which”; in the same English text, in line 6, the word “as” should be inserted after the word “kind”;

in the French text, the word “la” between the words “de” and “meme” should be deleted.

The Commission further decided that the texts of this paragraph should be referred back to the Economic Commission for Italy so that the latter should make them completely concordant by using the words “value” in the English text and “valeur” in the French text, or by using the words “importance” in the English text and “importance” in the French text.

As regards Article 66, the Legal Commission unanimously adopted the following modifications:

in the French text, the expression: “ne fait pas obstacle” will be suggested instead of: “ne déroge pas”;

in the English text, the expression: “shall not prejudice” should be substituted for “without prejudice”.

Parallel corrections should be made in the Russian text.

3. Texts Submitted by the Military Commission

In a letter of the 25th September (Document C.P.(JR) Doc.24), the Chairman of the Military Commission referred to the Legal Commission for consideration the text of the modifications which the Military Commission had unanimously made in the Draft Treaty of Peace with Italy.

The Legal Commission unanimously approved the text of Articles 40, 41, 46a, 46b, 47, 49 and 52 and of Annex 4a.

As regards Article 44, because of divergencies which had been noted in the documents referred to it, the Commission agreed that the English text appearing in brackets in this Article should read as follows: “(other than torpedoes and torpedo launching gear inherent to naval vessels permitted in this Treaty)” instead of as in certain documents “(other than torpedoes and torpedo launching gear inherent to naval vessels) permitted in this Treaty.”

Conclusions

On behalf of the Legal and Drafting Commission, I have the honour to lay this report before the Conference for examination and approval of its conclusions.

The Committee recommends that the Conference should take action:

1. To approve Articles 15, 32, 33, 34, 35, 36, 77 and 78 of the Draft Peace Treaty with Italy, which were the subject of another report by this Commission.

2. To substitute in the third line of paragraph 1 of Article 2 of the English text, the words “North-East” for the words “North-West”.

3. In the 5th line in the English text of Article 5 to delete the word “no”.

4. To change the title of Section 4 of the first part as it appears in English to “Federal People’s Republic”.

5. To re-insert in the French text of Article 12 the words “Ces îles seront et demeureront démilitarisées”, and in the English text to substitute the words “Islets depending on” for the words “Islets depending from”.

6. In the French text of Article 11(a) to substitute the words “L’Italie remettra à la Yougoslavie tous les objets ayant juridiquement le caractère de biens publics” for the words “L’Italie remettra à la Yougoslavie ayant juridiquement le caractère de biens publics”; in the English text to substitute the words “Italy shall deliver all objects having juridically the character of public property” for the words “Italy shall deliver all objects of a public legal character”, and in paragraph 3 of the Russian text to substitute the Russian equivalent for “Il est possible” for the expression “Il est impossible”.

7. To approve the text describing the frontiers and map of the Dodecanese Islands ceded by Italy to Greece in accordance with Article 12.

8. To approve the text of Article 13(a) adopted by a vote of 17 to 1 and 2 abstentions.

9. To approve paragraph 4 of Article 16(a), adopted by a vote of 12 for with 8 abstentions.

10. In paragraph 1 of Article 65 to substitute the words “The basis of calculation for the settlement” for the words “The basis for calculating the settlement”: in the English text to substitute the words “whose territory” for the words “which”; in the English text to insert the word “as” after the word “kind”; in the French text to delete the word “la” between the words “de” and “meme”.

11. To decide whether the objects to be restored by Italy under Article 65 should be appraised according to their value as set out in the English text or according to their importance as set out in the French text.

12. To delete in the French text of paragraph 1 of Article 68, the words “qui sont situés”.

13. In the French text of Article 66 to substitute the words “ne fait pas obstacle” for the words “ne déroge pas”; in the English text to substitute the words “shall not prejudice” for the words “without prejudice”; and to make the corresponding change in the Russian text.

14. In the English text of Article 44 to have the expression read as follows: “(other than torpedoes and torpedo launching gear inherent to naval vessels permitted in this treaty)” instead of the words “(other than torpedoes and torpedo launching gear inherent to naval vessels) permitted in this treaty.”

[Annex 1]

Report of the Legal and Drafting Commission Concerning the Work of the Drafting Sub-Committee

The Political and Territorial Commission for Italy, at its 10th and 11th Meetings decided to submit for the consideration of the Legal and Drafting Commission, paragraphs 2, 3 and 4 of Article 2 of the draft Peace Treaty with Italy, and Article 9 (Annex 2, Section IV) of the same draft. It was a question of referring in Article 2, paragraph 2 of the draft Peace Treaty to the Annex and maps to which it refers, and specifying the detailed description of the Franco-Italian line of frontier, in accordance with the decisions taken by the Political and Territorial Commission for Italy, and altering Section IV of Annex 2 to conform with the terms of the declaration made by the French Delegate to that Commission.

At its meeting of 11th September, the Legal and Drafting Commission set up a Sub-Committee consisting of representatives of the Delegations of the United States of America, Brazil, Czechoslovakia, France, New Zealand, Norway, the U.K. and the U.S.S.R. together with the Rapporteur to the Committee, Mr. François (Netherlands), charged with the examination of the draft text submitted by the French Delegation for the purpose of effecting the proposed alterations.

At its meetings on 16, 21 and 30 September, and 2 October, the Sub-Committee, after having examined the French Delegation’s draft, decided, as regards Article 2, to adopt the text of the French draft which proposes to add at the conclusion of Article 2, the following paragraph: “The detailed description of those sections of the frontier which correspond to modifications 2, 3 and 4 above is contained in Annex … to the present Treaty, and the maps to which this description refers are part of Annex 1”.

The Sub-Committee considers that it would be preferable to insert, at the end of Article 2, a general reference to the Annex which contains a detailed description of the frontier, rather than to make separate references to this Annex, inserted in paragraphs 2, 3 and 4 of the Article in question, in spite of the fact that the Sub-Committee had not been explicitly requested by the Political and Territorial Commission to alter paragraph 1 of Article 2.

Some Delegations pointed out that, at the 3rd line of the first paragraph of Section 3 of Article 2, the figure 2 refers to a distance given as a round figure in kilometres, between the point where the new frontier line rejoins the former one and the Pointe de Charra, and that this figure should be replaced by the figure 3, as the exact distance (2.7 kilometres approximately) is nearer 3 kilometres than 2 kilometres. It was also pointed out that the words “north-west” in the third line of paragraph 1 of Article 2 in the text of the treaty should be changed to “north-east” in the English text in order to correspond to the French and Russian texts and to the facts. The Legal and Drafting Commission not being competent to alter the text of the draft Treaty on this point, the Sub-Committee decided to make a recommendation in the above sense, for transmission to the Political and Territorial Commission.

In order to give effect to the decision of that Commission with regard to an alteration to paragraph 4 of Article 2, the Sub-Committee proposed to substitute for the words: “and shall rejoin the present frontier at the Pas de Strafourche, at about 6 kilometers south-east of Sospel” …, the words: “shall rejoin the existing frontier approximately 100 meters south-west of Monte Margo.”

The French Delegation’s proposal concerning the Annex to which the new paragraph, to be inserted at the end of Article 2, refers was adopted, subject to the corrections proposed by the Delegations of the U.S.A., U.K., and U.S.S.R. The corrected text is given as an annex to this report.

It was agreed that the English and Russian texts should be drafted by the American and Soviet Delegations, in collaboration with the Cartographic Service, so as to ensure concordance between the terms used and the conventional geographic symbols.

With reference to Article 8, the French Delegation had proposed the addition, at the end of paragraph 2, of the following sentence: “The necessary arrangements shall be made, in due time, between the two Governments.” As the Political and Territorial Commission had not referred any proposed alterations of this Article to the Legal and Drafting Commission, the Sub-Committee did not feel called upon to consider this proposal, and the French Delegation therefore remains at liberty to take the question up again during the discussions in the Political and Territorial Commission.

Finally, and with reference to the alteration of Section IV of Annex 2 of the Draft Treaty, the Sub-Committee decided to add the following sentence to the text (in French): “Il entrera également dans le rôle de la Commission Technique de Surveillance de coopérer avec les Services Techniques français compétents pour s’assurer que la sécurité des vallées inférieures n’est pas mise en danger.” Taken from the Record of Decisions of the 11th meeting of the Political and Territorial Commission for Italy, and reproduced in a letter dated September 4, 1946, from the Chairman of that Commission to the Chairman of the Legal and Drafting Commission. The Sub-Committee decided to rectify the English text of the passage as follows in order to bring it into conformity with the French text:

“It shall also be within the functions of the supervisory Technical Commission to co-operate with the competent French Technical Services in order to ensure that the safety of the lower valleys is not endangered.”

The Sub-Committee refrained from inserting a passage indicating that the guarantees in question only constituted a minimum, since it was felt that a declaration of this kind would be lacking in the necessary legal precision.

[Sub-Annex]

[This document consists of detailed descriptions of the sections of the Franco-Italian frontier which correspond to the modifications provided for under Article 2, and of the Dodecanese boundary in view of the provisions of Article 12; for text, see Department of State, Paris Peace Conference, 1946, Selected Documents, page 580.]

[Annex 2]

Article 13a of the Peace Treaty With Italy as Approved by the Commission

1. Within a period of one year from the coming into force of the present treaty, Italian citizens over 18 years of age (or married persons whether under or over that age), whose customary language is one of the Yugoslav languages (Serb, Croat or Slovene), and who are domiciled on Italian territory may, upon filing an appropriate request with the Yugoslav diplomatic or consular representatives in Italy, acquire Yugoslav nationality if the Yugoslav authorities accept their request.

2. In such cases, the Yugoslav Government will communicate to the Italian Government through the diplomatic channel lists of the persons who have thus acquired Yugoslav nationality. The persons mentioned in such lists will lose their Italian nationality on the date of such official communication.

3. The Italian Government may require such persons to transfer their residence to Yugoslavia within a period of one year from the date of the official communication.

4. The rules relating to the effect of options on wives and on children set forth in Article 13, paragraph 2, shall apply.

[Annex 3]

Text of Paragraph 4 of Article 16a of the Draft Peace Treaty With Italy as Approved by the Legal and Drafting Commission

Upon the renunciation of Italian sovereignty, the Free Territory of Trieste shall be governed in accordance with a provisional regime to be established by the Security Council, which shall remain in force until such date as the Security Council shall fix for the coming into force of a permanent Statute which shall have been approved by it. The Free Territory shall thenceforth be governed by the provisions of such permanent statute.

[Annex 4]

Report of the Legal and Drafting Commission on the Greek Proposal for a Special Article on the Position of the Greek Church in Italy

1. The Commission has considered the above-mentioned matter which was referred to it by the Political and Territorial Commission for Italy for an opinion whether the proposal is already covered by any of the existing Articles or Annexes of the Treaty.

2. The Commission considered that a considerable part of the proposal is in effect, covered by existing provisions although in its actual form it goes beyond anything at present contained in the Treaty.

3. It was pointed out that the Greek proposal was really a special case of the restoration of United Nations interests in Italy and that there were of course other special cases of the same kind affecting foreign churches and institutions in Italian territory. The Treaty did not attempt to deal with these special cases as such, but contained a number of general provisions aimed at covering them.

4. It was recognised that the difficulty arose from the fact that the Greek Church institutions in Italy, being incorporated under Italian law, were in form Italian institutions, but it was nevertheless considered that Article 68 covers the first paragraph of the Greek proposal if, as was presumably the case, the Greek Church institutions were treated by the Italians during the war as enemies. If they were not, that is to say, if they merely received the same treatment as other Italian institutions, the case would not be covered by Article 68.

5. The second paragraph of the Greek proposal is considered to be covered by Article 14. It is cast in different language, but it is a special case of the application of Article 14. It is a deduction from it and certainly implicit in the terms of that Article which, if duly applied by the Italian Government, would achieve the object of the Greek proposal.

6. To some extent it seems that the third paragraph of the Greek proposal is covered by Article 68. If the institutions in question have temporarily ceased to function, someone must be entitled to deal with their property. If he is an Italian he will have the ordinary rights of an Italian subject; if a Greek or the Greek Government, the Italian Government will, in the circumstances contemplated by the first part of para. 4 above, be obliged under Article 68 to hand over the property, legal rights and interests of these institutions, and this will of course carry with it the right to administer the property, etc.