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1381714_253487754805305_1476487316_n.jpgs leva na desno: branko copic, stevan raickovic, vasko popa, aleksandar vuco, dusan matic, milos crnjanski, mesa selimovic, ivo andric, petar dzadzic. knjizevni matine, narodno pozoriste 1974.
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Artukovic v. Boyle.Source: The American Journal of International Law, Vol. 47, No. 2 (Apr., 1953), pp. 319-321Published by: American Society of International LawStable URL: http://www.jstor.org/stable/2194839Accessed: 02/11/2013 16:50JUDICIAL DECISIONSTreaties and state succession-Serbia and YugoslaviaARTUKOVIC v. BOYLE. 107 F. Supp. 11.U. S. District Court, S. D. Calif., July 14, 1952.Hall, D. J.Having failed to obtain his surrender as an alleged war criminal, the Yugoslav Government asked extradition of petitioner under the Treaty of Oct. 25, 1901, between the United States and Serbia, 32 Stat. 1890, for murders allegedly committed by him in Yugoslavia during the regime in Croatia established by the Germans during German occupation. Petitioner was granted release on habeas corpus, the court finding that:the Treaty between the United States and the Kingdom of Serbia of 1902 is not now in force and effect between the United States and the country now known as Yugoslavia.The court therefore found it unnecessary to consider the question whether extradition was being sought for political offenses.Although the Department of State had taken the position in 1921 that the treaties between the United States and Serbia applied to the "Kingdom of the Serbs, Croats and Slovenes" (later called Yugoslavia), and that state had agreed,1 and although in 1945-46 the United States and Yugoslavia both stated that the pre-war treaties and agreements between the United States and Yugoslavia remained in effect2, the court arrived at a different conclusion. Commencing with the point that "the President cannot make a treaty without the consent of the Senate," the court concluded that:the question of whether or not a treaty exists between the United States and Yugoslavia is not a matter which lies exclusively within the Executive Department but is a judicial question to be decided by the courts."3Pointing out that Croatia was no part of Serbia until after World War I, when they joined in the Serb-Croat-Slovene State, the court said: "If the treaty of 1902 did not become effective as between . . . the Serb-Croat- Slovene State formed in 1919, then it did not carry through to the country now known as Yugoslavia. . . ." The court believed that respondent re- lied chiefly on Terlinden v. Ames, 184 U. S. 270 (1902), applying the 1852 treaty between the United States and Prussia. Although that treaty was held applicable to parts of the German Empire which were not in Prussia, the court found the reason to be in the phrase in the treaty with Prussia providing for application by other German States "which may hereafter accede to this convention," and said:It must be assumed . . . when the treaty with Serbia of 1902 was negotiated that the representatives of the United States had before them the clauses of the previous treaties and particularly had before them . . . the treaty involved in Terlinden v. Ames.No provision is found in the treaty with Serbia of 1902, as that which existed in the treaties under consideration in Terlinden v. Ames, extending the terms to additional territory. And it must be assumed that had the parties intended that the extradition treaty with Serbia of 1902 should apply to persons residing in territories which might subsequently come under the jurisdiction or sovereignty of Serbia, that the parties would have specifically stated that in the treaty. The omission cannot be supplied by either Executive or Judicial construction.That alone is sufficient in my judgment to compel the conclusion that the treaty of Serbia did not survive the series of events following the first World War so far as to cover Croatia, Bosnia, Herzegovina, Dalmatia, Montenegro, or any of the territories or peoples within them which became a part of the Serb-Croat-Slovene State when that state was created in 1919.Referring to the political turmoil of the Balkans, the court added:it is highly unlikely that the United States would at that time [1902] have stuck its thumb into the Balkan bees nest with the countenance of any language which could be taken as a suggestion that territory should be taken from Turkey or Bulgaria, or Italy, or the Austro- Hungarian Monarchy, to be ultimately added to Serbia, as was finally done in 1919 at the end of the First World War.Moreover, the conception that Yugoslavia, as it now exists, is not a new state but merely a continuation of the existence of the old King- dom of Serbia as it existed prior to 1902, is not justified in the light of the expressions of the times and the events of history following World War I. The court discussed at length the history of the post-World War I settlement and the several treaties of peace, saying in part:The territory which was thus put into the Serb-Croat-Slovene State was taken . . . by force of arms and as a condition of the terms of surrender and peace with those countries. It was not a voluntary cession by Austria-Hungary or Bulgaria to Serbia such as occurred in Germany after the treaties . . . considered in Terlinden v. Ames, supra.None of these treaties, including the treaty with the Serbs-Croats-Slovenes was ever submitted to the United States Senate for ratification.European writers on the subject confirm the idea that the Serb- Croat-Slovene State was a new state.It is significant to note that in the Treaty with the Serb-Croat- Slovene State of September 10, 1919, which was never submitted to the Senate and was never ratified, and thus never came into effect, that Article 12 provides that pending the conclusion of new treaties all the treaties between Serbia and any of the principal and allied powers would ipso facto be binding upon the Serb-Croat-Slovene State....If these treaties automatically became binding upon the Serb-Croat- Slovene State under the theory now advocated by the demanding gov- ernment, it would have been entirely unnecessary to put any such a provision in the treaty.After referring to the provisions in the treaties between the United States and Germany, Austria, and Hungary for the establishment of friendly relations after World War I, pursuant to which certain treaties were re- vived with those states, though a new extradition treaty was concluded with Germany in 1930, the court declared:This is persuasive of the conclusion that it was generally regarded at that time that previous treaties were abrogated unless specifically affirmed or provision made for their affirmation in a treaty ratified by the Senate.......all these things are convincing "evidence that the political departments of this government at the time of the collapse and sur- render" of the Central Powers at the end of World War I in 1919 considered the collapse and surrender and the repartitioning of Europe as "putting an end" to all the previous treaties of the countries in- volved in the war except those specifically designated by the various treaties which were negotiated although not ratified by the United States Government. That is true not only of the political departments of the United States Government but also all the other govern- ments joining in the series of treaties arising out of the Paris Confer- ence of 1919.1 See 5 Hackworth, Digest of International Law 374-375 (1943). See also Lukich v. Department of Labor and Industries, 176 Wash. 221, 223, 29 Pac. (2d) 388 (1934); Urbus v. State Compensation Commissioner, 113 W. Va. 563, 169 S.E. 164 (1933). 2 13 Dept. of State Bulletin 1020; 14 id. 728. 3 The court said that the cases regarded as holding that the executive determination of the continuing effect of a treaty was conclusive, were only dicta, or all depended on Terlinden v. Ames, which it distinguished. Not only did that case involve a treaty which provided for accession by other German states, but the court said that in Terlinden v. Ames there had been repeated action by the Executive, through extradition under the treaty, rather than mere words. The court remarked that "In the instant case . . . not one single instance of extradition under the Serbian Treaty of 1902, since the conclusion of the first World War has been called to the Court's attention, and for that matter not one single instance of extradition under the treaty since its effective date in 1902. " The court said that in Disconto Gesellschaft v. Umbreit, 208 U. S. 570 (1908), the treaty involved was assumed to be in force; that in Charlton v. Kelly, 229 U. 5. 447 (1913) it was a question of interpretation on which the Court followed the Executive; and that in Clark v. Allen, 331 U. S. 503 (1947), this JOURNAL, Vol. 42 (1948), p. 201, the Court examined for itself the question of effectiveness of a treaty rather than just ac- cepting the Executive's view.
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