ATTITUDE OF THE UNITED STATES TOWARD

AUSTRIA

A Study of the Legality of the Annexation of Austria by Germany Under International Law and Austrian Constitutional Law and the Policy of the United States Toward the Annexation 1

The attitude of the United States toward Austria depends upon a number of factors, namely, (1) the legality of the annexation of Austria by Germany under international law; (2) the legality of the annexation under the Austrian constitutional law; (3) the traditional attitude of the United States toward the acquisition of territory by force in general; and (4) the application of this traditional policy specifically toward Austria. Hence this study falls naturally in four parts.

I

The legality of the annexation of Austria by Germany under international law stems out from the peace treaties signed in the suburbs of Paris at the end of World War I. The Treaty of Versailles of June 28, 1919, between Germany and the Allied and Associated Powers (including the Principal Allied and Associated Powers), provides (Art. 80)—

Germany acknowledges and will respect strictly the independence of Austria, within the frontiers which may be fixed in a Treaty between that State and the Principal Allied and Associated Powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations." Such a boundary-fixing treaty was the Treaty of St. Germain of September 10, 1919, between Austria and the same Powers, which fixed (Art. 27) the frontiers of Austria with Germany as "The frontier of August 3, 1914." This provision, therefore, is to be considered as incorporated in Article 80 of the Treaty of Versailles as a part of the obligation assumed by Germany.

a

Austria, on her side, assumed a similar obligation under the Treaty of St. Germain, which provides (Art. 88)

The independence of Austria is inalienable otherwise than with the consent of the Council of the League of Nations. Consequently Austria undertakes in the absence of the consent of the said Council to abstain from any act which might directly or indirectly or by any means whatever compromise her independence, particularly, and until her admission to membership of the League of Nations, by participation in the affairs of another Power.

The writer wishes to express his gratitude to his colleague, Dr. Willibald M. Ploechl, for considerable source material upon which the above study is based. The views expressed, however, are exclusively those of the writer.

Carnegie Endowment for International Peace, The Treaties of Peace, 1919-1923 (2 vols., New York

1924), I, p. 59.

Ibid., p. 277.

'Ibid., p. 297.

Austria, however, assumed an additional obligation to that of the "inalienability" of her independence without the consent of the Council of the League of Nations, namely, that of not compromising her independence "by any means whatever" and of not participating "in the affairs of another Power" (evidently meaning Germany) until her admission into the League of Nations.

Both Germany and Austria, therefore, are bound by the peace treaties, which provide that the independence of Austria is inalienable except with the consent of the Council of the League of Nations. Needless to say, the Council of the League of Nations has never expressed any approval of the alienation of the independence of Austria by way of its absorption by Germany. From the point of view of conventional international law, therefore, the annexation of Austria by Germany, lacking that consent, is null and void.

But the obligation assumed by Austria in the Treaty of St. Germain is corroborated and strengthened by the so-called Geneva Protocol. The collapse of Austrian currency in 1922 led Austria to appeal to the Council of the League of Nations, which succeeded in negotiating the basis for the signing, on October 4, 1922, at Geneva, of two protocols concerning the financial and economic reconstruction of Austria by the British, French, Italian, Czechoslovak, and Austrian Governments. In the first of these protocols, the four non-Austrian signatories solemnly declared

That they will respect the political independence, the territorial integrity, and the sovereignty of Austria;

That they will not seek to obtain any special or exclusive economic or financial advantage calculated directly or indirectly to compromise that independence; and the Austrian Government, on its part, undertook—

in accordance with the terms of Article 88 of the Treaty of St. Germain, not to alienate its independence; it will abstain from any negotiations or from any economic or financial engagement calculated directly or indirectly to compromise this independence."

6

Yet within a decade began the efforts of Germany to induce Austria to violate her solemn treaty obligations. The treaty-prohibited negotiations between German Reich Chancelor Heinrich Brüning and his Minister of Foreign Affairs, Dr. Julius Curtius, on the one hand, and Austrian Minister of Foreign Affairs, Dr. Johann Schober, on the other hand, led to the proposal of March 19, 1931 (published two days later), for the establishment of a Customs Union (Anschluss) of Austria with Germany. This plan was abandoned on September 3 by its proponents, after the protests of France, Czechoslovakia, Poland, and other nations, on the eve of an Advisory Opinion by the Permanent Court of International Justice at The Hague that such a union would violate the Geneva Protocol of October 4, 1922, between Austria and the group of Powers guaranteeing a League of Nations loan to Austria. The failure of the plan led to the resignation of the cabinet of which Schober was a member and the eventual formation by Engelbert Dollfuss of his first cabinet in May 1932.

French text and English translation in Manley O. Hudson (ed.), International Legislation, II (Washington, 1931), pp. 882-883. Italics mine.

English translation of the Austro-German Protocol of March 19, 1931, in Manley O. Hudson (ed.), World Court Reports, II (Washington, 1935), pp. 746-748. An account of the final achievement of the Anschlum with its historical background and relevant documents is contained in Völkerbund, VIIth year, no. 11-12 (March 1938) and no. 13 (April 1, 1938).

Edwin M. Borchard, "The Customs Union Advisory Opinion," signed editorial, American Journal of International Law, 25 (1931), p. 711. Text of Advisory Opinion No. 20, September 5, 1931, in Hudson, Werld Court Reports, II (Washington, 1935), pp. 711-743.

When Adolf Hitler became Chancelor of the German Reich on January 30, 1933, he immediately took steps toward the realization of his ambition to unite Austria with Germany, which he had expressed as the foremost goal of his foreign policy when he first embarked on his political career. The very opening lines of Chapter I of Mein Kampf, written in October 1924 and published in 1925, disclosed this intention:

Today I consider it my good fortune that Fate designated Braunau on the Inn as the place of my birth. For this small town is situated on the border between those two German States, the reunion of which seems, at least to us of the younger generation, a task to be furthered with every means and our lives long.

German-Austria must return to the great German motherland, and not because of economic considerations of any sort. No, not even if from the economic point of view this union were unimportant, indeed if it were harmful, it ought nevertheless to be brought about. Common blood belongs in a common Reich. As long as the German nation is unable even to band together its own children in one common State, it has no moral right to think of colonization as one of its political aims.

A few months after he became Chancelor, Hitler sent Dr. Hans Frank, Bavarian Minister of Justice, to Vienna to pave the way for the union. His visit was attended by a number of incidents and his deportation from Austria made Hitler realize that he could not achieve his goal by peaceful measures. Then began a series of incidents with increasing intensity which culminated in Germany's violation of her treaty obligations by the forcible seizure of Austria." That Austria is absolved from any complicity in this treaty violation is evident from an account of the events which led up to it. Dollfuss himself, on the Party Day of the Christian Socialists in May 1933, expressed himself not only opposed to the Anschluss, but even to Austrian NationalSocialism.10 Differences between Berlin and Vienna became accentuated with the acceleration of the German propaganda campaign by the dropping of leaflets from German airplanes over Austrian territory and by German radio attacks on the Austrian Government. On June 19, 1933, the NSDAP in Austria was dissolved.

An exchange of speeches in the autumn of 1933 between Reich Minister of Foreign Affairs, Konstantin Baron von Neurath, on the one hand, and Austrian Vice Chancelor, Dr. Franz Winkler (who had founded a new party, the National Corporative Front), and Chancelor Dollfuss, on the other, resulted in an exchange of political prisoners, but subsequent Nazi acts of terrorism in Austria led the Austrian Government to complain to Berlin and to report the matter to the League of Nations and the great Powers. Hitler explained his position in the Reichstag on January 30, 1934, declaring:

The assertion that Germany has the intention of forcing Austria is absurd and can not be proved. * * * The German Reich is-if the free will of the Austrian Germanity be completely respected-always ready to stretch the hand to a genuine entente."1

But the German reply to the Austrian complaints was not considered satisfactory by Austria. An abortive Social-Democrat putsch

Adolf Hitler, Mein Kampf (compl. and unabr., fully annot. Eng. trans., New York, 1939), p. 8. Italics original.

A popular account of these incidents is given by Harold Nicolson, Why Britain is at War (Harmondsworth, England, 1939), pp. 58-72.

10 For many of the statements of fact mentioned herein, see the "Chronology" in the World Almanac for the respective year and Keesings Archiv der Gegenwart vom 14, Juli 1936, p. 2641, which gives a survey of events from March 21, 1931, to the Agreement of July 11, 1936, and Keesings A. d. G. vom 15. Februar 1958, p. 3424, which brings the account up to that date.

German text in Keesings A. d. G. vom 30. Januar 1934, p. 1254.

on February 12-16 was followed on February 17, 1934, by a declaration of guaranty of Austrian independence by France, Great Britain and Italy on the basis of a dossier on German interference presented by the Austrian Government. The Governments of these three nations issued an announcement to the effect that they took

a common view of the necessity of maintaining Austria's independence and integrity in accordance with the relevant treaties.

The Italian Government went farther, by concluding with Austria (and Hungary) the Rome Protocol of Good Understanding_and Collaboration of March 17, 1934,12 which, in effect, established Italy as the protector of Austrian independence.

The revolt of the Social Democrats which had been suppressed induced the Austrian Government to devise a method for stricter control of affairs. On April 30, 1934, the Austrian Parliament approved the Federal Constitutional Law of that date,13 vesting Federal legislative power, including constitution-legislation, in the Federal Government. The latter was also authorized to regulate the transition to the new order created by the Constitution of May 1, 1934," providing for a "Christian German Federal State on a corporative basis," which had been submitted to and approved in advance by the Parliament before it adjourned sine die on April 30.

Continued violent moves in Austria supposedly inspired by the German Ambassador in Vienna, Dr. Kurt Rieth, finally culminated in the attempted revolution of July 1934. The Austrian Government on July 12, had issued an order whereby courts martial would impose the death sentence on terrorist bombers and even those caught in possession of bombs. On July 25 Chancelor Dollfuss was murdered in his room in the Chancery, Vienna, by Otto Planetta, one of a group of 144 Austrian Nazis who had forced their way in, apparently in expectation of capturing the entire cabinet. They were dislodged and captured a few hours later. The murderer and one of the leaders were court-martialed and hanged on July 30. Germany disavowed any connection with the abortive putsch, ostensibly suppressed Nazi activities in neighboring Bavaria and ordered home the German Ambassador in Vienna for indiscreet conduct, replacing him with former Chancelor Franz von Papen. The Austrian Vice Chancelor, Prince Ernst Rudiger von Starhemberg, carried on for a few days until July 29, when Dr. Kurt Schuschnigg, Minister of Justice, was made Federal Chancelor and formed a cabinet. Both were opposed to the ideology of the Anchluss.

Relations between Austria and Germany continued to attract the attention of the great Powers. The Governments of France, Great Britain, and Italy felt it necessary, on September 27, 1934, to renew their declaration of guaranty of Austrian independence.15 Again, on January 7, 1935, France signed an agreement with Italy providing for consultation in case of a threat to Austrian independence, 16 to which

12 Italian text and English translation in Hudson, International Legislation, VI (Washington, 1937), pp 641-642. Two other Protocols were signed at Rome on March 17 and 23 by the same nations; texts, itd, pp. 643-646.

13 Bundesverfassungsgesetz vom 30 April 1934 über ausserordentliche Massnahmen im Bereich der Verfassung, Bundesgesetzblatt für die Republik österreich, I, no. 255/1934, issue 72.

14 O. Ender, Die neue österreichische Verfassung, mit dem Tert des Konkordates (3 ed., Vienna and Leipal, 1934). See H. Arthur Steiner, "The Austrian Constitution of 1934," American Journal of International Law, 29 (1935), pp. 125–129.

18 Keesings A. d. G. vom 15. Februar 1938, p. 3424; text in G. Fr. de Martens, Nouveau recueil général de (raites, 3d ser., 30, p. 3.

16 Text in London Times, January 12, 1935, p. 11