Some Private International Law Problems Arising Out of European Racial Legislation, 1933–1945
| Date | 01 October 1947 |
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00057.x |
| Published date | 01 October 1947 |
| Author | S. W. D. Rowson |
THE
MODERN
LAW
REVIEW
Volume
10
October
1947
No.
4
SOME PRIVATE INTERNATIONAL LAW
PROBLEMS ARISING
OUT
OF
EUROPEAN
RACIAL LEGISLATION,
1933-1945
(1)
INTRODUCTORY
Is
1933
the Nazis came to power in Germany and commenced
their violent persecution of the Jews. In the course
of
this
persecution they made the fullest use of the whole apparatus
of
the law, and in time their example was followed
by
other
European States which voluntarily or by compulsion found
themselves part of the Axis, and which signified their attach-
ment to it
by
turning on the Jewish communities in their midst.
The purpose of this article
is
to examine some of the problems
to
which the existence of legislation of this nature has given
rise.
It
is not necessary to give
a
detailed description
of
this legislation, but the following general picture will suffice.
According to the German system, race was the decisive factor in
determining who is a Jew. Nationality was
of
no importance.
The law set up numerous legal restrictions on the personal
and political rights of the
‘
non-Aryan
’
population, such as the
prohibition
of
marriage between Jews and citizens
of
German
or
similar blood. Other laws were passed imposing extra-
ordinary restrictions on Jews and other non-Aryans
’
with
regard to their property, their freedom to dispose of their
possessions,
and
their occupational freedom.’ The prototype
of this legislation is found in the so-called Nuremberg Laws
of
September
15,
1935.
The Law Respecting Reich Citizenship
1
S.
Goldschmidt,
Legal Claims against Germany,
New
York,
1945,
p.
149.
There
is a voluminous literature
on
German anti-semitism.
Good
summaries
of
the
legislation
will
be found
in
Hope Simpson,
The Refugee Problem, Report of
a
Swoey,
London,
1939,
and Supplement,
London,
1939.
James
G.
McDonald’s
letter
of
resignation, as High Commissioner for German Refugees, dated
December
27,
1935,
contains
a
thorough description
of
the legislation then
existing. James Parkes,
The Emergence of the Jewish Problem,
London,
1946,
also contains eome useful information. Texts
of
all important laws issued
during the period
1938-1945
can
be found in the
Contemporary Jewish Record,
New York,
1938-1945;
and indications
of
the state
of
affairs in different
countries can be seen
in
the volumes
of
the
American Jewish Year
Book,
Philadelphia,
from
1933
onwards.
2
Parkes,
op.
cit.,
p.
5323.
Reichgesetzblatt
i
(1935),
p.
1146:
see Garner.
’
Recent German Nationality Legislation
’
in
American Journal
of
Internationd
Law,
1701.
30
(1936),
p.
96.
345
VOL.
19
23
346
MODERN
LAW
REVIEW
VOL.
10
and the Reich Flag Law3 placed the Jews in the position
of
second-class citizens, while the insulting Law for the Protection
of German Blood and Honour4 had the object of preventing
sexual intercourse between Jews and non-Jews. This law
contained the following clauses which are important for our
purpose
:-
1
(i) Marriages between Jews and nationals of German or
kindred blood are forbidden. Marriages concluded
in defiance of this law are void, even if, for the
purpose of evading this law, they are concluded
abroad.
(ii) Proceedings for annulment may be initiated only by
the Public Prosecutor.
5
(i) Whoever acts contrary to the provision of
1
will be
punished with penal servitude.
Other countries adopted similar provisions, which, although
varying from the German in points of detail, do not give rise to
particular problems.6 We shall therefore concentrate in this
study on the German laws.
(2)
BASIC
PRINCIPLES
The fundamental rules for deciding what is foreign law, after,
by application of the principles of English private international
law, it is ascertained that
a
foreign system of law
is
applicable,
are as follows:-
(i) Where the court has recourse
to
the law of
a
foreign
country it may only apply the law which
is
in
force
Reichgesetzblatt
i
(1935),
p.
1145.
Parkes,
op.
tit.,
p.
224.
Reichgesetzblatt
i
(1935) 1146-7.
For discussion,
see
Dictz,
'
La Nouvelle LCgislation allemande
6ur
le marriage
',
in Clunet,
Journal
du
droit international,
Vol.
66
(1939),
p.
53.
The
term
'
Jew
'
was defined in
two
sectionti and five sub-sectione in the Firet
Decree
to
the Reich Citizenship Law, November
17, 1935,
in
Reichgesetzblatt
i
(1935),
pp.
1333-4.
The texts
of
many of these laws will be found in
B.
D. Weinryb,
Jewish
Emawipation under Attack,
New York,
1942.
But much of the war-time
legislation introduced under German occupation is not easily available. For
specific count,ries t.he following works can be consulted
:
Italy,
E.
Momiglieno,
Storia
Tragica
e
Grotteaca del
Razzismo
Fascista,
Verona,
1946
;
France,
H.
Snider,
'
Tights and Shades
of
Jewish Life in France,
1940-42
'
in
Jewish
Social Studies,
New York, ,October,
1943;
Czecho lovakia, M. Mwkowitz,
The
Jewish Situation in the Prorectorate
of
Bohemia-lk!otaqia,
ibid.,
January,
1942
;
Hungary,
L.
Rittenberg, The Crisis in Hungary
,
Contemporary Jewish
Record,
New York, May,
1939.
A
useful summary
of
the position as it existed
after the termination of hostilities, will be found in Appendix
I1
of
the Report
of
the Anglo-American Committee
of
Enquiry regarding
the
Problem
of
European Jewry and Palestine, Parliamentary PapeR, Misc. No.
8
(1946),
Cmd.
6808,
and
mlich
general information in I,emkin,
Axis
Rule in Occupred
Europe,
Washin,at,on,
1944.
To continue reading
Request your trial