Status of Int'l Law and Change of Governments?

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Rob - wssob2
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Status of Int'l Law and Change of Governments?

Post by Rob - wssob2 » 03 Jul 2010 06:39

AHF moderator Dave Thompson brought up an interesting point in the Bad Reichenhall thread (http://forum.axishistory.com/viewtopic.php?f=6&t=32087)
As for international treaties, when a country assumes an obligation or makes a pledge to other nations which it is empowered to make, the international treaty trumps any conflicting provision of domestic law. There are many examples of this rule in international law, but perhaps the most interesting illustration is the colloquy between Prof. Jahrreiss and Presiding Judge Brand in the "Justice case," reproduced in "The development of German Law in the 3d Reich" thread at viewtopic.php?f=6&t=70906
Do international treaties still apply when a government has been dissolved?

In France's case, there were three separate governments between 1907 - 1945:

- the Third Republic (dissolved with the Armistice of 1940)
- the Vichy regime
- DeGaule's Provisional Government of the French Republic (GPRF)

The GPRF declared the Vichy government (and the laws it passed 1940-44) unconstitutional (although there is a brief synopsis regarding the legality of this at http://www.jewishvirtuallibrary.org/jso ... egime.html)

In essence, when there is a "regime change," does the new regime have to acknowledge or re-ratify existing convention agreements?

A possible example of this I can think of would be the Kingdom of Serbia, which signed the 3rd Geneva Conventions in 1929, and the NDH Regime of Croatia, which ratified the Geneva Conventions in 1943.

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Re: Status of Int'l Law and Change of Governments?

Post by South » 03 Jul 2010 07:59

Good morning Rob - wssob 2,

Don't mix up different continuing governments and "regime change" governments (the original government "dissolved"). The categories are not the same.

A "new regime", ie a different government does not have to "re-ratify" existing agreements - although there are consequences to defaults. The new Soviet government repudiated all foreign debts. Defaulting on sovereign debt is the best illustration for examining consequences.

There really is no such thing as "international law". All this stuff is actually comity/reciprocity.

A tangent:

For governments that change administrations in one form or other, ie a continuation of the government although with eg a different political party in charge, there is a treaty doctrine "rebus sic stanabus": a substantial change of circumstances. This treaty doctrine allows for the facts and fact pattern of a treaty to be reviewed with sought-for modifications if agreed to by the other treaty partners. This might sound like circular reasoning but, here too, it is based on comity/reciprocity.

Warm regards,

Bob

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Re: Status of Int'l Law and Change of Governments?

Post by David Thompson » 03 Jul 2010 14:50

Rob -- You asked:
Do international treaties still apply when a government has been dissolved?

In France's case, there were three separate governments between 1907 - 1945:

- the Third Republic (dissolved with the Armistice of 1940)
- the Vichy regime
- DeGaule's Provisional Government of the French Republic (GPRF)

The GPRF declared the Vichy government (and the laws it passed 1940-44) unconstitutional (although there is a brief synopsis regarding the legality of this at http://www.jewishvirtuallibrary.org/jso ... egime.html)

In essence, when there is a "regime change," does the new regime have to acknowledge or re-ratify existing convention agreements?
Those are interesting questions. To try and answer them, we have to look at some background issues.

Treaties were originally made between sovereigns and bound them personally, but not their successors. The successor sovereign was free to disregard agreements entered into by his predecessor, and would ratify existing treaties to bind him personally only if he and/or his favorites somehow profited from the terms of the treaty.

This practice gradually changed as sovereigns were replaced by constitutional regimes, but became a problem when the sovereign or constitutional government was overthrown during a revolution or coup d'etat. The usual result of a change of sovereigns or form of government was to void or cancel all pre-existing agreements.

The usual solution was for the outside powers who had treaties with the previous sovereign or system of government to ask the new sovereign or revolutionary regime for assurances, "clarification," or a reaffirmation of rights and obligations. Sometimes this resulted in a renewal of the treaty, sometimes it didn't.

To deal with this and other recurring problems, the 1969 Vienna Convention on the law of treaties ( http://www.worldtradelaw.net/misc/viennaconvention.pdf ) made a number of changes to pre-existing international law. It would be a mistake to assume, however, that the concepts of the Vienna Convention were widely accepted 200, 100 or even 50 years earlier -- if they had been, the convention would have been unnecessary.

Keeping this framework in mind, let's consider the 1940-1946 period. Your first question was:
Do international treaties still apply when a government has been dissolved?
I think this issue turns on how and whether the government has been dissolved. If the "dissolved" government still maintains a physical existence (as a government in exile, or a government "on the run"), I think the answer is yes. If the "dissolved" government no longer has any factual existence, the answer is no.

Your second question was:
In essence, when there is a "regime change," does the new regime have to acknowledge or re-ratify existing convention agreements?
Where the new regime is revolutionary or is a substantially different form of state (as opposed to a different collection of political faces in a continuously operating democracy), I think the answer is yes. Where the basis of state sovereignty has changed, the treaties should be submitted to the new sovereigns for acceptance or rejection. However, if the new government is silent on the subject, there is an inference that it has no objection to the treaties.

This would be the approach in 1940-1946. As noted above, in 1969 the Vienna Convention created a rule or presumption that the treaties would continue in effect until denounced by the new sovereign.

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Re: Status of Int'l Law and Change of Governments?

Post by PFLB » 04 Jul 2010 03:25

The subjects of international law are states, not governments. A change of government does not affect the state's treaty obligations, just as changing the board of directors of a company does not affect its contractual obligations.

'if they had been, the convention would have been unnecessary.'

The VCLT was not enacted to substantially change international law. Like most of what comes out of the International Law Commission, it is essentially a codification of pre-existing customary law. The presumption in favour of continuing validity is one such rule - it was not 'created' by the VCLT but simply restated in written form.
Last edited by PFLB on 04 Jul 2010 15:06, edited 1 time in total.

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Re: Status of Int'l Law and Change of Governments?

Post by Panzermahn » 04 Jul 2010 08:32

Keeping this framework in mind, let's consider the 1940-1946 period. Your first question was: Do international treaties still apply when a government has been dissolved?
I think this issue turns on how and whether the government has been dissolved. If the "dissolved" government still maintains a physical existence (as a government in exile, or a government "on the run"), I think the answer is yes. If the "dissolved" government no longer has any factual existence, the answer is no.
How about the case of PROC and Taiwan? Both maintain that they are the legitimate government of China and both had a physical existence (of course, PROC's existence are way much larger than Taiwan's existence physically) and both trying to claim each other.

I remembered when UN was officially first set up in late 1945, it was the Chinese Republic (under Kuomintang party led by Chiang Kai Shek) that held the UN Security Council Seat as one of the Allied victors in WW2. However, in the aftermath of the Chinese Civil War and with the departure of KMT government to Taiwan, the seat in UN was transferred to PROC

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Re: Status of Int'l Law and Change of Governments?

Post by PFLB » 04 Jul 2010 09:25

Both the PRC and ROC meet the criteria which are generally agreed upon - defined boundaries, sedentary population, monopoly on the use of force within their boundaries, international recognition (in formal and substantial terms - most countries formally recognise the PRC's 'One China' but no one acts on the assumption that it in fact governs Taiwan because it doesn't). It is probably fair to say that they each qualify as states and they are sovereign over the areas which they respectively control.

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Re: Status of Int'l Law and Change of Governments?

Post by David Thompson » 04 Jul 2010 14:05

For a discussion of the Taiwan-China issue, see:

Was Taiwan returned to China after WWII?
http://forum.axishistory.com/viewtopic. ... 8&t=147965

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Re: Status of Int'l Law and Change of Governments?

Post by phylo_roadking » 08 Jul 2010 21:52

There's also the early example vis-a-vis the Hague Conventions of Lenin's specific repudiation of "Tsarist international treaties" in late November 1917....which presupposes that Russia's international treaty obligations DID novate from the Tsarist regime to the Bolshevik state.

it's actually quite rare for an entire nation to vanish off the map in legal terms; yes, there are name and identity changes...compare a map of Central Africa in 1970 with 2010, for instance!...but Germany in 1945, whose existence as a nation was legally expunged for a number of years leaps to mind.

Which leads to the question - given the several years' hiatus of "Germany" as a legal entity"...did "Germany's" pre-Surrender treaty obligations as of May 6th 1945 resume automatically when the FDR was founded...or did the Federal Repblic have to re-sign the many and various international statutes as a "new" signatory??? 8O
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Re: Status of Int'l Law and Change of Governments?

Post by PFLB » 09 Jul 2010 04:09

I don't know myself, but if there is a specific legal rule on the issue it will probably be in one of the inter-Allied agreements, the German instrument of surrender, or one of the laws promulgated by the Allied Control Council.

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Re: Status of Int'l Law and Change of Governments?

Post by Hecht » 09 Jul 2010 15:34

Since the connection between the Bad Reichenall case and this thread is not clear enough to me, may I kindly ask, are we suggesting that since Vichy was considered an uncostitutional Government, then Vichy men serving in german units were not covered by the Geneva Convention?

I apologize if I got it wrong, then nevermind.

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Re: Status of Int'l Law and Change of Governments?

Post by phylo_roadking » 09 Jul 2010 17:48

Since the connection between the Bad Reichenall case and this thread is not clear enough to me, may I kindly ask, are we suggesting that since Vichy was considered an uncostitutional Government, then Vichy men serving in german units were not covered by the Geneva Convention?
....but this is where the essential difference between the NATION of France as a signatory of Hague etc....and the government of post Armistice France comes into it :wink:
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Re: Status of Int'l Law and Change of Governments?

Post by David Thompson » 09 Jul 2010 19:12

phylo -- You asked:
Which leads to the question - given the several years' hiatus of "Germany" as a legal entity"...did "Germany's" pre-Surrender treaty obligations as of May 6th 1945 resume automatically when the FDR was founded...or did the Federal Repblic have to re-sign the many and various international statutes as a "new" signatory??? 8O
The Federal Republic "reinstated" a number of treaties of the former German Reich and "adhered" to international multilateral agreements, according to the Declaration regarding the inclusion of Berlin in international treaties and undertakings of the Federal Republic, May 26, 1952, reproduced in Foreign Relations of the United States 1952-1954, vol. 7 (Germany and Austria), pp. 1249-50.

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Re: Status of Int'l Law and Change of Governments?

Post by phylo_roadking » 09 Jul 2010 19:30

Neither. The Federal Republic "reinstated" a number of treaties of the former German Reich and "adhered" to international multilateral agreements, according to the Declaration regarding the inclusion of Berlin in international treaties and undertakings of the Federal Republic, May 26, 1952, reproduced in Foreign Relations of the United States 1952-1954, vol. 7 (Germany and Austria), pp. 1249-50.
...which would suggest unless I'm mistaken that this does mean that Germany as a nation and thus a signatory didn't exist in the interregnum? That it was a hiatus, with the legal status of German vis-a-vis the various treaties suspended at least and null and void at most UNTIL they reinstated them or said that from x-date they were adhere to them again?

Question - as mentioned above - is there any instrument known by which the Occupying Powers specifically suspended Germany's legal status in respect of these treaties? Or was their declaration that Germany no longer existed as a nation enough to action this?
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Re: Status of Int'l Law and Change of Governments?

Post by David Thompson » 09 Jul 2010 20:16

phylo -- You asked:


(1)
...which would suggest unless I'm mistaken that this does mean that Germany as a nation and thus a signatory didn't exist in the interregnum? That it was a hiatus, with the legal status of German vis-a-vis the various treaties suspended at least and null and void at most UNTIL they reinstated them or said that from x-date they were adhere to them again?
Germany continued to exist as a nation, but the four principle allied states administered its government. See

Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic, June 5, 1945
http://avalon.law.yale.edu/wwii/ger01.asp

Legal status of Germany
http://en.wikipedia.org/wiki/Legal_status_of_Germany

Nation
http://en.wikipedia.org/wiki/Nation

(2)
Question - as mentioned above - is there any instrument known by which the Occupying Powers specifically suspended Germany's legal status in respect of these treaties? Or was their declaration that Germany no longer existed as a nation enough to action this?
See the answer to (1). The succession/accession problem came later, when two new states (German Federal Republic and German Democratic Republic) were formed out of one (Germany). The former state of Yugoslavia presented a similar problem when it broke up into multiple states.

For interested readers -- for a summary of international law as of 1999 on changes of government and treaty obligations, see:

Summary of Practice of the [United Nations] Secretary-General as Depositary of Multilateral Treaties (1999)
http://untreaty.un.org/English/Summary.asp

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Re: Status of Int'l Law and Change of Governments?

Post by Panzermahn » 10 Jul 2010 07:34

Germany continued to exist as a nation, but the four principle allied states administered its government
Are there any legal provisions in international law that allows occupying nations to dissolved the legitimate government of Germany in May 1945 (the Flensburg Government under Grand Admiral Karl Dönitz which were appointed by Hitler in his last will and testament)

I am no international law expert but isn't the normal convention that if the legitimate government of a sovereign nation was dissolved by external forces, that nation itself was de facto dissolved?

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