Pacta Tertiis, Waiver of Rights and Legal Ideology: Comments on Greek Reparations and the 1990 Two-Plus-Four Treaty

Pacta Tertiis, Waiver of Rights and Legal Ideology: Comments on Greek Reparations and the 1990 Two-Plus-Four Treaty

[Dimitrios Kourtis is a PhD cand. (Intl Law) at the Aristotle University of Thessaloniki, Greece and Fellow of the Hellenic Foundation for Research & Innovation.]

The purpose of the present post is to briefly discuss certain arguments, based on the 1953 London Agreement and the 1990 Two-Plus-Four Treaty, asserted by Germany on different occasions aiming at the dismissal of the legal validity or persistence of reparations claims belonging to Greek nationals and stemming from violations of the laws of war during Greece’s WW2 occupation. This short discussion concludes with some remarks on the relationship between legal norms and ideology.

The London Moratorium

The London Agreement on German External Debts (LDA) was executed on February 27, 1953 under the purpose of alleviating the burden of pecuniary obligations owed by Germany to foreign creditors ‘in the light of the general situation’ (Art. 1). This situation involved the problem of the Two Germanies and the ongoing process of rebuilding West Germany’s capacities to act as the ultimate bastion for the Western bloc in Central Europe.

Art. 5(2) LDA imposed an indefinite moratorium regarding, inter alia, individual claims arising from WW2 occupation atrocities until the final settlement of the reparations problem by a peace treaty –as those executed on February 10, 1947 with Italy (Pt. VI) and Bulgaria/Hungary/Romania (Pt. V)– or at least the reunification of the Two Germanies (Jurisdictional Immunities, Rejoinder of Italy §§3.6, 3.16, 3.28). According to the 1952 Settlement Convention’s Arbitral Commission, Art. 5(2) was a lex specialis taking precedence over general and customary international law, while establishing an exceptional set of rules for WW2 reparations (Apostolidis Claim 460).

The Final Settlement

Until the final settlement any claim falling within the ambit of Art. 5(2) LDA was bound to be dismissed due to the existence of a condition precedent (pending the conclusion of a peace treaty and/or reunification) on which its justiciability depended [Distomo Massacre Case §III.1.a.]. Even so, on September 12, 1990 the event forming part of the LDA’s condition precedent became a legal fact. The Two-Plus-Four Treaty (TFT) solved irrevocably the problem of the Two Germanies via reunification. However, the TFT remained silent on the general issue of reparations, a problem until then considered part and parcel of every final arrangement as confirmed by the 1953 LDA [Art. 5(2)] and the 1955 Settlement Convention [Chap. 6, Art. 1(1)].

Waiver of Reparations Claims & the TFT

As submitted by Lichtenstein in the Certain Property Case (Memorial §5.53), the silence of the TFT does not imply a deviation from the applicable international law on post-war reparations. This argument flows naturally from Art. 7 (termination clause), the only TFT provision addressing the termination of the Four Powers’ rights and obligations regarding Germany. Since Art. 7 is the sole provision with a prima facie waiver-like effect, we need to examine whether it actually amounts to a waiver of reparations on behalf of the Four Powers. The wording of Art. 7(1) is vague, but its systematic interpretation sheds more light to its true meaning.

More precisely, Art. 7 read as a whole supports the conclusion that the termination clause’s [Art. 7(1)] sole purpose was the assumption of full sovereignty by the unified Germany [Art. 7(2)]. Additional evidence to that effect can be drawn from the Four Powers’ Declaration of October 1, 1990. The wording of the Declaration confirms that the termination clause was not a general waiver but a provision abolishing the Four Powers understandings arising from Germany’s post-war occupation and their retainment of certain sovereign rights, regardless of the Two Germanies’ formation. This conclusion is also reinforced by Art. 3(3) of the 2000 US-FRG Agreement, which impedes the US from raising WW2 reparations claims against Germany. Had these rights been terminated by the TFT, such a provision would have been redundant – if not absurd.

The TFT & Third States

Nevertheless, even if we assume that the termination clause covered reparations claims, such a waiver cannot be extended to non-signatories. It is a well-established principle of international law that pacta tertiis nec nocent nec prosunt. This rule is enshrined in Art. 34 VCLT, which is declaratory of pre-existing customary law stemming from the fundamental precepts of sovereign equality and independence (PCIJ Eastern Carelia 27). Additionally, its strict application has been constantly vindicated by international jurisprudence (PCIJ Certain German Interests 29, Free Zones 141; ICJ North Sea §28, 1955 Aerial Incident 138). Thus, without explicit consent, no third State can be bound by a treaty or be obliged to waive its rights accordingly.

Moreover, it has been argued that the Greek claims were extinguished because (a) the TFT made clear (Preamble §12) it contained the final settlement of all legal issues arising from WW2, while (b) the German government declared before the federal parliament (October 27, 1997) that the reparations question became obsolete due to the TFT (Distomo §III.1.b). Neither of the arguments appears convincing, given that Greece never adhered to or accepted the TFT, its legislative ambiance or the 1997 domestic statement of which it was not notified. The only act of recognition regarding the TFT is the participation of Greece in the 1990 CSCE Paris Charter, a document legally non-binding, which noted with ‘great satisfaction’ the conclusion of the TFT. Evidently, such political stipulations do not amount to expressed acceptance as foreseen in Art. 35 VCLT.

Furthermore, the only bilateral treaty providing for partial reparation of Greek nationals persecuted by Nazi measures due to their race, religion or ideology (the Bonn Agreement of March 18, 1960) explicitly retained (Art. III & annexed note verbale on its scope) the claims of Greek individuals not covered by the settlement, namely claims arising from civilian death or damage of property during the country’s occupation. Finally, the inapplicability of the TFT purported waiver and the cessation of the LDA’s moratorium have been asserted by Greece on several occasions, starting with the note verbale of November 14, 1995 calling for negotiations. As a result, it can be argued that neither the TFT nor the LDA impedes the vindication of the claims in question, if Greece decides to espouse them in future negotiations or proceedings.

Conclusion: The Ideology of Norms

As the Greek reparations tripartite claims (inter-State reparations, the occupation loan, individual compensatory claims) resurface, while the Final Report of the Reparations Committee (see here & here) finds its way to the plenary of the Greek parliament, it is important to conclude with addressing the background of the discussed arguments. Making the TFT binding on a non-signatory implies a legal endorsement of powerful States’ ability to create normative precedents for the world at large, something erroneously supported in the age of H. Triepel. Accepting that the Four Powers or even Germany, a contemporary regional Power, can forsake by a single pencil stroke rights and claims of non-nationals –a case going way beyond the problematic national State’s waiver of individual claims in advance (Shimoda et alt.)– normativizes a sense of neocolonialism in European context, revitalizing the debate on centers and peripheries or sovereigns, quasi-sovereigns and… the victimized communities, to paraphrase the influential work of Siba N. Grovogui.

Courts & Tribunals, International Humanitarian Law
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