Occupation of Germany Case (Zurich)

JurisdictionSuiza
CourtCourt of Appeal of Zurich (Switzerland)
Docket NumberCase No. 86
Switzerland, Court of Appeal of Zürich.
Case No. 86
Occupation of Germany Case (Zürich).

International Law — Relation to Municipal Law — Treaties — Termination of — The Law of Switzerland.

Acquisition of Territorial Sovereignty — Conquest — Effect of Debellatio — Allied Occupation of Germany, 1945.

War — Termination of — War of 1939–1945 — Defeat and Occupation of Germany.

Occupation of Enemy Territory — Nature and Effects of — In General — Allied Occupation of Germany before and after End of War of 1939–1945.

Treaties — Operation of — Operation in Municipal Law — Termination of — The Law of Switzerland.

Treaties — Termination of — By Operation of Law — Extinction and Dismemberment of Contracting Parties — Status of Germany.

The Facts.—A resident of Radolfszell, in the French Zone of Occupation of Germany, began a civil action in the Swiss Canton of Zürich. On May 25, 1945, counsel for the defendant, a Swiss citizen, applied by summons for an order requiring the plaintiff to furnish security for costs, on the ground that the plaintiff had no residence in Switzerland and that the Hague Convention on Civil Procedure of 1905 was inapplicable to Germany now that Germany had ceased to exist as a State. With the consent of both parties the Court of first instance consulted the competent Federal department. In his reply, dated August 6, 1945, the Head of the Legal Department of the Swiss Mínistry of Foreign Affairs expressed the opinion that Germany retained the essential character of a State even after the Allied occupation. This was so because no annexation had taken place. Further, the Federal authorities had taken no steps to terminate the application to German nationals of Articles 17–19 of the Hague Convention. The Court of first instance adopted the view of the Department and rejected the motion for security. On appeal,

Held: that the appeal must be dismissed. Germany has not ceased to exist as a State, and the treaty with her is still in force. The Court said:

“By Article 59 (1) of the Code of Civil Procedure a person who is party to an action as plaintiff or counter-claimant is bound, m the absence of an appropriate international treaty, to furnish security for both costs and judgment if he has no fixed residence in Switzerland. In virtue of Article 17 of the International Convention on Civil Procedure of July 17, 1905 (the Hague Convention), to which both Switzerland and Germany acceded, German nationals resident in Germany and appearing in Swiss courts as plaintiffs or interveners are exempt from furnishing security for costs. Whether the plaintiff in the instant proceedings, now the respondent, is relieved from the necessity of furnishing security thus depends on whether the Hague Convention still applies as between Switzerland and Germany.

“If Germany has ceased to exist as a State the Convention can no longer apply, since the existence of international legal rights and duties without a subject is inconceivable. But the Convention also would not apply should the competent Swiss authorities, even if Germany had not ceased to exist as a State, have for any reason given notice of its non-application.

“International law makes a fundamental distinction between two sorts of conquest: belligerent occupation, and annexation.1 According to...

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