The Supreme Court in effect has held that the United States, as a sovereign nation, may through its legislature adopt and carry out policies which do not conform to established principles of international law.

In so holding, however, the courts have almost uniformly recognized the principles of international law and pointed out the deviation therefrom.

Chief Justice Marshall (Brown v. U. S., 8 Cranch 110, 123) first stressed the important considerations of policy involved including that of reciprocal treatment:

"The commercial nations, in the situation of
the United States, have always a considerable
quantity of property in the possession of their
neighbors. When war breaks out the question,
what should be done with enemy property in our
country, is a question rather of policy than of
law. The rule which we apply to the property of
our enemy, will be applied by them to the property
of our citizens. Like all other questions of
policy it is proper for the consideration of a
department which can modify it at will, not for
the consideration of a department which can pursue
only the law as it is written. It is proper for
the consideration of the legislature, not of the
executive or judiciary.

it

As Chief Justice Marshall emphasized, the question is for the Congress; and the answer turns not on the existence of juridical power but on considerations of national policy.* The central problem, therefore, is not whether privately owned German and Japanese property could lawfully be confiscated by the United States in 1942, under appropriate Congressional authority, as an act of war, but whether those assets, having been vested, should now be returned as an act of grace.

D. The primacy of international law in an international tribunal.

It hardly needs emphasis that the decisions of the Supreme Court of the United States on matters of U. S. law are not

*

See also Ware v. Hylton, 3 Dallas 199; United States v. Chemical Foundation, 272 U. S. 1; Woodson v. Deutsche, etc., Vormals, 292 U. S. 449; Cummings v. Deutsche Bank, 300 U. S. 115.

controlling on international courts or on other countries in determining a question of international law. The classic statement is that of Secretary of State Bayard in 1887:

". . . if a Government could set up its own municipal
laws as the final test of its international rights
and obligations, then the rules of international law
would be but the shadow of a name and would afford
no protection either to States or to individuals.
It has been constantly maintained and also admitted
by the Government of the United States that a
government can not appeal to its municipal regu-
lations as an answer to demands for the fulfill-
ment of international duties. Such regulations
may either exceed or fall short of the require-
ments of international law, and in either case
that law furnishes the test of the nation's lia-
bility and not its own municipal rules. This
proposition seems now to be so well understood and
so generally accepted, that it is not deemed neces-
sary to make citations or to adduce precedents in
its support. "*

Chief Justice Taft, when acting as sole arbitrator between Great Britain and Costa Rica, made the point equally clearly:

"This is not an exceptional instance of an
essential difference between the scope and effect
of a decision by the highest tribunal of a country
and of an international tribunal. The Constitution
of the United States makes the Constitution, laws
passed in pursuance thereof, and treaties of the
United States the supreme law of the land. Under
that provision, a treaty may repeal a statute, and
a statute may repeal a treaty. The Supreme Court
cannot under the Constitution recognize and en-
force rights accruing to aliens under a treaty
which Congress has repealed by statute. In an
international tribunal, however, the unilateral
repeal of a treaty by a statute would not affect
the rights arising under it and its judgment
would necessarily give effect to the treaty and
hold the statute repealing it of no effect."**

* U. S. Foreign Relations, 1887, p. 753.

**

Great Britain v. Costa Rica, 1923, 18 American Journal of
International Law, 147, 159-160 (1924).

Secretary of State Charles Evans Hughes quoted the foregoing passage from Chief Justice Taft's opinion in support of his own formulation of the proposition:

"Where international rights and obligations are involved, controversies not otherwise adjusted would naturally come before an international arbitral tribunal whose decisions would be governed by international law and would not be controlled by municipal law."*

The Permanent Court of International Justice stated the rule with equal brevity:

"From the standpoint of International Law and the
Court which is its organ, municipal laws are
merely facts which express the will and consti-
tute the activities of States, in the same manner
as do legal decisions or administrative measures.

Section 39 of the Trading With the Enemy Act adopted by the Congress in the War Claims Act of 1948, providing that there should be no return of German or Japanese property and that no compensation shall be paid for such property, is clearly in violation of international law and any attempt to justify it must be strictly examined.

As Mr. Justice Frankfurter observed in Guessefeldt v. McGrath, 342 U. S. 308, 319 (1952):

"Considering that confiscation is not easily to be
assumed, a construction that avoids it and is not
barred by a fair reading of the legislation is in-
vited."

Is there any rule of international law which permits a belligerent to do acts which would be illegal in time of peace? When do such rights as a belligerent may exercise during war terminate do they continue after hostilities have in fact

ended?

*

11

Hughes, "Recent Questions and Negotiations, 18 American
Journal of International Law 229, 230 (1924)

** Case concerning certain German interests in Polish Upper
Silesia (The Merits) (Polish Upper Silesia Case) P.C.I.J.
Series A Collection of Judgments, Judgment No. 7 (1926),
p. 19.

E.

Applicability of international law during wartime.

From the very earliest times the waging of war has been subjected to regulations of a legal character, whether the regulations be national or international in scope. It is certainly true that in the stress of combat violations of law are bound to occur because the means do not exist by which the observance of law can be secured. But ordinary administration is superceded by martial law and the United States itself has entered into numerous treaties which contain regulations applicable in time of war and to the conduct of belligerents.

Of these, the most notable are the Hague Conventions of 1907 which are still in force for the United States.*

Even an army in belligerent occupation of an enemy country is not free to take property required for the need of the country. The belligerent occupant is forbidden by the Hague Conventions to confiscate private property. He may only requisition what he needs and he must pay compensation.

This rule is embodied in the U. S. Department of the Army Field Manual, FM 27-10, The Law of Land Warfare, July 1956:

Measures of property control must not

extend to confiscation.

"PRIVATE PROPERTY CANNOT BE CONFISCATED.
HR. art. 46, 2d par.)

"b. Prohibited Acts. The foregoing pro-
hibition extends not only to outright taking in
violation of the law of war but also to any acts
which, through the use of threats, intimidation,
or pressure or by actual exploitation of the
power of the occupant, permanently or temporarily
deprive the owner of the use of his property
without authority under international law."

See U. S. Dept. of State Treaties in Force, Pub. No. 6427, October 31, 1956, p. 217.

416. PRICES AND COMPENSATION FOR REQUISITIONED ARTICLES AND SERVICES

"The prices of articles and services requisitioned will be fixed by agreement if possible, otherwise by military authority. Receipts should be taken up and compensation paid promptly."

The legal property rights which depend upon the rule of international law embodied in the Hague Regulations have been recognized and enforced in numerous decisions of national courts and suits instituted since the war. Thus, the Italian Court of Cassation and the Norwegian Court of Appeal have held that the title of a holder of property after the war depended on whether the original owner from whom it was requisitioned received payment from the requisitioning military authority.*

It is absurd to contend that international law, which so clearly and emphatically prohibits a belligerent occupant of enemy territory from confiscating private property located there, permits the same belligerent to confiscate the private property located in his own territory.

III.

TEMPORARY SEQUESTRATION OF ENEMY PRIVATE PROPERTY
IS PERMITTED BY INTERNATIONAL LAW

International law does permit a belligerent to take temporary control of privately owned enemy alien property located within its own territory. The rationale of this rule is either to lessen the ability of the enemy government to make war or to enhance the ability of the belligerent to prosecute the war.

But it does not permit a belligerent to convert sequestration into confiscation in order to discharge debts owed not by the property owners but by their governments.

* See De Riard v. Medoro, Italy, Court of Cassation, March 11, 1950, International Law Reports Year 1950, Case 141; Johansen v. Gross, Norway, Court of Appeal, March 4, 1948, Annual Digest and Reports of Public International Law Cases, Year 1949, Case No. 176. Numerous similar decisions are to be found in these and earlier volumes reporting cases also in The Netherlands, Belgium, Denmark, France, etc.