Doc. No. 12 (E).
Memorandum on the Clauses of the Peace Treaty Concerning the Return of Property to the United Nations (Art. 65)
Article 65
The Italian Government acknowledges its obligation (confirmed in Nos. 1 and 2 of Article 65) to return all property removed from the territory of the United Nations and now in Italy. It is of opinion, however, that the obligation confirmed in No. 3 (to return such property in good condition and to pay for the labour and material entailed by repairs) is particularly hard. This provision, if applied in full, would lay a heavy burden on Italy. As some of the property to be returned was removed from the United Nations by another Axis Power and then transferred to Italy, it would be unfair to compel the latter to repair the damage done before the property was transferred.
Moreover, Italy would also be expected to repair damages due to natural causes and force of circumstance or produced by the United Nations themselves.
The obligation of the Italian Government should be restricted exclusively to repairing such damages as can be ascribed to it. The provision in No. 3 should be modified in this sense.
The provision in No. 7 of the same Article requires the Italian Government to prove that the property belonging to the United Nations was not removed by violence. This reversal of the burden of proof, which is contrary to general usage, would be extremely unfair as in most cases it would be practically impossible for the Italian Government to produce the proofs called for by No. 7.
[Page 190]Further, by this reversal of the burden of proof, the Italian Government would be asked to prove a negative fact, which is also opposed to all generally recognised principles.
The second part of No. 7 concerning the necessity for the Italian Government to produce proof that the property was not forcibly seized should be suppressed.
Concerning the gold transferred by Italy from occupied countries, it is suggested that the word “looted” contained in No. 8 be eliminated, leaving “wrongfully removed to Italy”.
With these modifications the Italian Government accepts the provision in No. 8 and also acknowledges that its obligation to return the gold in question “exists irrespective of any transfers or removals of gold from Italy to any other Power or a neutral country”.
However, the Italian Government wishes to make it clear that, though agreeing to the provision in No. 8, it cannot waive its own claim for the gold removed from Italy by Germany to be returned if found—wherever and in whatever quantity it may be—by any United Nation.
In this connection, it should be stated that Italy considers that all Italian property removed by Germany should be returned to her and, in another Memorandum concerning Article 67 of the draft Treaty, she sets forth the points of law and justice in her favour on this matter.
Coming back to the question of gold, Italy repeats that, since she is ready to return all gold wrongfully removed to Italy, or its equivalent, to its rightful owners, it would be most unjust to deny her the right to get back her own gold.
Attention is also called to the Final Act of the Paris Conference on Reparation (December 21st 1945), which decided that a pool be formed of all the gold found in Germany, or in third countries where it had been transferred by the Germans. This gold was then to be divided among all the Nations whose gold was looted by Germany. Therefore, if the gold removed from Italy by Germany is not totally or partially found it is requested that her right to participate in this gold pool on the same footing as other Nations be acknowledged without delay. Italy’s participation in the pool would naturally refer only to such part of the gold as had not been recovered.
These requests are made without prejudice to whatever solution may be found for the matter considered in Article 67 of the draft Treaty.
For the above reasons it is proposed that No. 8 of Article 65 be modified as follows:
“8. The Italian Government accepts the obligation to restore to the Government of the United Nation concerned all monetary gold wrongfully removed to Italy, or to transfer to the Government of the [Page 191] United Nation concerned an amount of gold equal in weight and fineness to that wrongfully removed. This obligation is recognised by the Italian Government to exist irrespective of any transfers or removals of gold from any other Axis Power or a neutral country.
“In consideration of the above Italy is to be recognised the right to the restoration of the gold looted by the Germans and now in Germany or any other country. Should the gold in question not be totally or partially recovered, Italy is to be allowed compensation for such part as is not recovered from the pool provided for in the final Act of the Paris Reparations Conference (December 21st, 1945)”.