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

Doc. No. 35 (E).

Memorandum on the Clauses of the Peace Treaty Concerning Italy’s Renunciation of Claims Against the United Nations, Particularly Those Resulting From the Decisions of the Prize Courts (Art. 66)

undated

Article 66

According to paragraph 1 of Article 66 Italy must waive, on behalf of her Government and nationals, all claims arising directly out of the war or out of actions taken because of the existence of a state of war, whether or not Italy was at war at the time with the country taking such actions.

1. It should be remarked that the date from which this provision applies is September 1, 1939. In this way the Treaty would sanction seizures, captures and other measures taken at a time when Italy was at war with none of the countries adopting these measures. This is contrary to all general principles of law.

2. According to letter c of paragraph 1, Italy would have to agree to accept as valid and binding all decrees and orders of the Prize Courts of the Allied or Associated Powers, even if enacted during Italy’s non-belligerency. This means that Italy must accept all measures adopted by the Prize Courts concerning Italian ships and freights as well as payment of costs. This renunciation is further extended by the provisions under paragraph 5, referring to measures taken by certain countries with regard to Italian ships before Italy was at war with these countries.

Quite apart from the question of the date, it would obviously be unjust to deprive Italy and her nationals of the right to prove, when necessary, the illegality of these measures, a right sanctioned by international law and by the laws of the countries concerned.

3. According to paragraph 3, the waiver of claims under paragraph 1 should include claims against United Nations which were never at war with Italy and merely severed diplomatic relations with her. This is also contrary to the general principles of law, war measures only being admissible as a consequence of the existence of a state of war.

4. Paragraph 5, mentioned above, calls upon Italy to waive all claims concerning measures taken in connection with Italian ships before the outbreak of war. This provision should be suppressed for obvious reasons of justice. Attention is drawn to the fact that this provision would have extremely serious consequences for Italy’s merchant navy. Several countries in fact seized a considerable number of Italian ships which had taken shelter in their ports at a time when Italy was neutral.

5. It should also be remarked that, according to the Armistice of September 3, 1943, later confirmed by the Cunningham–de Courten agreement of Sept. 23, 1943, the Allied and Associated Powers reserved the right to requisition Italian merchant vessels and, therefore, implicitly waived their right to seizure. For this reason as well as for the reasons given above, all these measures, harmful to the interests of the Italian merchant navy, should be considered illegal whether or not they are the result of decisions taken by the Prize Courts.

In view of the above considerations as well as of the remarks made in connection with other Articles of the draft Peace Treaty, the Italian Delegation submits that the losses these provisions would cause to Italy assume the proportion of real reparations. Their amount would often exceed whatever damage Italy may have caused through actions of war. If Italy is compelled to waive her claims on merchant ships to whose restitution she is entitled, she would lose a large number of ships absolutely essential to meet her immediate needs.

In view of the above, Italy asks that sub-paragraph c of paragraph 1, and paragraph 5, be suppressed.