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mimeograph form. It is quite different from the theory which motivated the drafting of the legislation by the State Department. The House committee report observes that in many respects the present bill is modeled upon the United States-Mexican Claims Settlement of 1942, and it is exactly for that reason that we think serious possibilities of injustice are inherent in the bill.
The fact of the matter is that the governments of Eastern Europe, Yugoslavia, and others, have done things which were largely unknown in the world before this war. The fact is that international law assumes certain general types of conduct on the part of states which are not applicable to the governments of eastern Europe, and we therefore believe that a commission which is directed to apply principles of international law may be put in a position where it is forced to decree unjust results.
Moreover, we believe that historically international law has been assumed to be a canon governing the conduct of states in dealing with states. It has been held applicable to mixed claims commissions because the parties before mixed claims commissions were states themselves, not the individual at all. But the parties before the Commission which this bill proposes to establish will be individuals. Senator GREEN. Not entirely.
Mr. LANS. I believe so, Mr. Chairman.
Senator GREEN. Has not the United States Government itself claims?
Mr. LANS. Yes; as a claimant.
Senator GREEN. That would make my point; would it not?
Mr. LANS. Yes; you are quite correct; I am sorry. The United States Government has two small claims.
Senator GREEN. The size has nothing to do with the principle.
Mr. LANS. True. You are entirely correct, Mr. Chairman. Let me modify my statement in this respect: For the most part the parties before the Commission will be individuals. The Commission will be adjudicating on the rights of those individuals, and we can see no reason why this committee should not adopt amendments stipulating rules of decision to guide or govern the action of the Commission in the same way that Congress has historically stipulated rules of decision. governing the action of internal administrative agencies or the courts of the United States.
We believe that the international part of this situation has been terminated. The international part was the arrival at a settlement with Yugoslavia. The remaining function is basically a judicial one, and we believe it would lead to more just results if that judicial function were carried out by the principles of law which govern the courts of the United States rather than by principles of international law.
Senator GREEN. Have you anything further to say; either of you? If not, I think it would be appropriate if we would let the representatives of the State Department here reply to your arguments.
DEPARTMENT OF STATE COMMENTS
Mr. TATE. Mr. Chairman, these amendments were suggested to the House committee and were considered by them along with an analysis of them which we made and which is available to you.
Briefly, our feeling is that these amendments are unnecessary and undesirable. We feel that the charter of the Claims Commission is a very broad one, in that they operate within the framework of an agreement of applying rules of international law, and their determination of justice and equity, and we feel that they should have such a charter and that these considerations are considerations that might well be presented to the Commission but need not be written in as rules of decision to be binding upon the Commission.
Senator GREEN. Then you have nothing further to add to the statement that you have presented to the House committee? Mr. TATE. That is right, sir.
Senator GREEN. Very well.
Mr. TATE. I will file this statement, so it can be part of your record here.
Senator GREEN. I think it would be well to put it in evidence at this point.
(The memorandum referred to appears in appendix 2.)
Mr. LANS. I wonder if we could get a copy of that statement from the State Department?
Mr. TATE. We will be glad to furnish you with a copy. I thought you had a copy.
Senator GREEN. You will be furnished with a copy.
Mr. LANS. Thank you.
Senator GREEN. The next witness will be Mr. Manfred Sternberg, of New York City.
For the record, I would like to have it appear that Senator Wiley has come from the other hearing and is now here at this one.
STATEMENT OF MANFRED STERNBERG, NEW YORK CITY
Mr. STERNBERG. My name is Manfred Sternberg, of New York City. I respectfully ask or suggest only one thing--that this international commission may have its seat in the city of New York, because there are more than 70 percent of the claimants living in the city of New York, and it is a big burden on most people who have lost all their fortunes to travel to Washington. If this Commission can sit in New York, it will be much easier for all the interested parties to go to New York than to come to Washington.
Senator GREEN. Is there anything in the bill to prevent its sitting in New York?
Mr. STERNBERG. No.
Senator GREEN. Then it is just a suggestion for the Commission, and not for the committee.
Mr. STERNBERG. A suggestion; yes.
Senator GREEN. Thank you.
Mr. Emil Flesch, of New York.
STATEMENT OF EMIL FLESCH, NEW YORK CITY
Mr. FLESCH. Mr. Chairman, thank you for the opportunity of appearing here before the committee. Although I am a former lawyer, I want to speak only as a layman here. I have some amend
Senator GREEN. If you are a lawyer, are you speaking for some clients?
Mr. FLESCH. No, no; just for myself.
I have about four amendments similar to those which Mr. Neuberger has already suggested, but before 1 suggest these amendments and speak on them I want only to explain my own situation. It is a personal thing, but it will clarify why I am in favor of these amend
Senator GREEN. Are you a claimant yourself?
Mr. FLESCH. Yes.
I, for instance, left Yugoslavia before the German invasion in 1949 and came to the United States in June 1941 with a wife and two children, two sons. My elder son was killed in action in 1945 in the Pacific. He became a citizen in 1944, when he enlisted in the American Army. We took our first papers as soon as we arrived, and became citizens on November 22, 1946, and the first nationalization law in Yugoslavia was issued December 6 or 8, 1946, the same year, so that we became citizens 14 days before that law went into effect.
This I want to tell you, that my mother, 84 years old, my sister, 50 years old, and my brother-in-law, were killed near where we lived in Yugoslavia, in a concentration camp. I mention this because the Yugoslav law which I will quote later says "He who does not return to Yugoslavia cannot apply for restitution of his property through attorneys." Nobody can appear for somebody whose whole family was killed, which I think would be against principles of justice, in that they may lose, therefore, their property.
Now, what happened to my property? My property was a big enterprise, a wholesale hardware store, and those wholesale stores were nationalized in December 1946, but according to some correspondence I had in 1941 after the Germans came in, this store was sold to four people for the amount of approximately 2,000,000 dinar. Senator GREEN. Sold by whom?
Mr. FLESCH. Sold by the puppet government.
Mr. FLESCH. Confiscated it and sold it to four people.
After the Tito government came in and took over, they took it away from these people and a law was issued in 1945 that all property which the occupant or his puppets sold over there had to be restored to the former owners, and if such an owner was in a foreign country, the administration of national property of Yugoslavia had to administer it as a trustee for this former owner.
Then, in 1946, a second law came, and this is its purport, that nobody has restitution unless he comes back to the country. If I remain here in America I cannot ask, through an attorney, for the restoration of the enterprise I had when I was there. I will not return, surely, and now the question is whether this property, which is now administered by the Government of Yugoslavia, was nationalized or whether it was taken away in 1941 or in 1946, before I became an American citizen.
Instead of clarifying it in the agreement with Yugoslavia, they say "nationalization or other taking." What does "other taking" mean? That is such a very big term which can be turned against us, because if they say they took it away in 1941, we have nothing left. Yet those were intended to be words in favor of the claimants.
Senator GREEN. It is a very broad term.
Mr. FLESCH. Yes. Therefore, I have these amendments to propose. Senator GREEN. Have you drafted an amendment?
Mr. FLESCH. I have drafted it, yes.
Shall I give you the draft or read it?
Senator GREEN. I think it would be a good idea to read it.
The term on page 4, line 25, "nationalization or other taking of property" means nationalization according to Yugoslav laws of December 6, 1946, or April 28, 1949, or taking away in procedures devised in the constitution of the Federal People's Republic of Yugoslavia, article 18, on which final decisions were rendered until July 19, 1948.
That means the constitution says that nobody's property can be taken away without legal procedure.
In section 4, page 5, line 7, should be added "These principles require (a) that the fair market value of the properties as of April 6, 1941 (entry of Yugoslavia into the war), should be the basis for the measure of the values of such properties." (b) That persons whose potential supporters in their old age, i. e., relatives in the first degree or husbands, were killed in action fulfilling their patriotic duties in the United States Army should be awarded in full regardless of the portion which remains for other claimants.
(c) That the expropriations decreed in the nationalization laws shall be deemed as full proof that the property was taken at the time the laws were promulgated regardless of any further orders or decrees rendered by the Yugoslav Government. (d) That no individual's property can be deemed abandoned or lost because he did not comply with orders of the respective foreign governments to observe certain terms or to appear before the respective foreign authorities.
Section 7c (1) should read: “To make payments in full of the principal awards of $1,000 or less, certified pursuant to section 5 of this Act, and to make full awards to persons whose potential supporters in their old age were killed in action serving in the United States Army if this supporter was a relative in the first degree or husband or wife.'
Senator GREEN. Did you submit these to the House committee? Mr. FLESCH. No, I did not. I wrote them letters.
Senator GREEN. The committee will be glad to consider these proposals.
Does Mr. Tate care to comment on them now?
Mr. TATE. Mr. Chairman, I think I might briefly comment.
As I understand, hearing Mr. Flesch's statement, he is concerned with two things (1), the problem of the time of acquisition of American citizenship and whether the loss occurred prior to that time or not. On that we feel that the provisions in the bill and the terms of the agreement are controlling. The other has to do with his other points as I understood them, or have to do with the interpretation of the phrase "other taking," "nationalization and other taking," and here again we think that that should be a matter for determination by the Commission. They will have, of course, some extraordinarily difficult questions of determining what the Yugoslav law was, what action was taken under the Yugoslav law, and we think that that is appropriate for the Commission to determine.
I might say in addition that if we exceed the terms of the agreement as to the inclusion of claimants on the nationality question, we to that extent incur a liability on the part of the United States which cannot be discharged out of this fund of $17,000,000.
EXPLANATION OF "OTHER TAKING"
Senator GREEN. It seems to me that the committee itself, this committee, should know what sort of proceedings are covered by that term "other taking." Would you give some illustrations?
Mr. TATE. There are several of the nationalization laws that are included. The first of these was the agrarian reform law for August 1945, the law that involved the nationalization of farm holdings. Senator GREEN. Nationalizztion is one thing. What are the other takings?
Mr. TATE. "Other taking" was put in to give breadth to the scope of determination of the Commission so that they would not be bound by technical aspects and terms of the Yugoslav law, so that they could make a realistic determination of whether the property had been taken.
Senator GREEN. Would it cover such instances as the witness testifies to?
Mr. HERMAN. If I may address myself to that point, the term "other taking" relates to all actions by the Yugoslav Government or the Yugoslav authorities which are not formally nationalization measures under the Yugoslav nationalization laws. To illustrate, many, many actions were taken, we know, by the Yugoslav Government which effectively deprived owners of their property but did not constitute a formal nationalization because nationalization under the Yugoslav law was against compensation provided for property under the same law. Many properties were confiscated on alleged grounds of collaboration, without compensation. That was not a nationalization measure; that was a confiscation measure which we think comes under the words "other taking."
Many properties were were informally sequestered or formally sequestered as the case may be, by Yugoslav authorities, held under an administraion, but the actual transfer of title in a normal sense under the nationalization measures or any other measures of Yugovlavia was not fully accomplished, yet it is conceded that the holders of the property have been effectively deprived of their property rights.
Since this executive agreement pertains to a sequence of events starting on September 1, 1939, and going through July 19, 1948, the intent was to encompass all actual deprivation of property rights, including nationalization. Variations on that are great, and some of the problems are difficult, but our purpose has been to put that in the context of an adjudication, so that the cases might be brought up as claims under this particular catch-all language before the Commission.
Senator GREEN. As I understand your explanation, the facts as stated by the witness, if true, would bring the case within the term "other taking."
Mr. HERMAN. It would if his claim, assuming he is talking of a claim, also qualifies under other provisions of the Executive agreement. Senator GREEN. Yes.
That would answer your question, I think.
Mr. FLESCH. He meant it would be an other taking then, under the puppet government?
Senator GREEN. It would be an other taking as of the date of that other taking or confiscation.