B-136066, JULY 7, 1958, 38 COMP. GEN. 7

B-136066: Jul 7, 1958

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MILITARY PAYMENT ORDERS AND CERTIFICATES ISSUED TO PRISONERS OF WAR - TREATY INTERPRETATION - CLAIMS BEFORE AND SUBSEQUENT TO TREATY UNCASHED MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT WHICH WERE ISSUED TO FORMER PRISONERS OF WAR OF AUSTRIAN NATIONALITY PRIOR TO THE ENTRY INTO FORCE OF THE AUSTRIAN STATE TREATY. WHICH PROVIDES IN ARTICLE 24 (5) THAT ALL CLAIMS AND DEBTS AGAINST THE UNITED STATES ARISING OUT OF THE CONVENTIONS ON PRISONERS OF WAR ARE WAIVED. INSTRUMENTS ISSUED SUBSEQUENT TO THE TREATY ARE TO BE VIEWED AS CLAIMS OR DEBTS WAIVED BY ARTICLE 24 AND MAY NOT BE CASHED BY THE UNITED STATES. WHEN THERE IS DOUBT AS TO THE MEANING OF A TREATY PROVISION. IS GIVEN WEIGHT. THERE IS DISTINCTION BETWEEN INTERPRETATION OF TREATIES AND INTERPRETATION OF STATUTES.

B-136066, JULY 7, 1958, 38 COMP. GEN. 7

MILITARY PAYMENT ORDERS AND CERTIFICATES ISSUED TO PRISONERS OF WAR - TREATY INTERPRETATION - CLAIMS BEFORE AND SUBSEQUENT TO TREATY UNCASHED MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT WHICH WERE ISSUED TO FORMER PRISONERS OF WAR OF AUSTRIAN NATIONALITY PRIOR TO THE ENTRY INTO FORCE OF THE AUSTRIAN STATE TREATY, WHICH PROVIDES IN ARTICLE 24 (5) THAT ALL CLAIMS AND DEBTS AGAINST THE UNITED STATES ARISING OUT OF THE CONVENTIONS ON PRISONERS OF WAR ARE WAIVED, MAY BE VIEWED INDEPENDENTLY OF THE CONVENTIONS ON PRISONERS OF WAR AND AS OBLIGATIONS OF THE UNITED STATES WHICH MAY BE CASHED; HOWEVER, INSTRUMENTS ISSUED SUBSEQUENT TO THE TREATY ARE TO BE VIEWED AS CLAIMS OR DEBTS WAIVED BY ARTICLE 24 AND MAY NOT BE CASHED BY THE UNITED STATES. WHEN THERE IS DOUBT AS TO THE MEANING OF A TREATY PROVISION, CONSTRUCTION OF TREATY BY THE POLITICAL DEPARTMENT OF THE GOVERNMENT, WHILE NOT CONCLUSIVE, IS GIVEN WEIGHT. ALSO, THERE IS DISTINCTION BETWEEN INTERPRETATION OF TREATIES AND INTERPRETATION OF STATUTES, IN THAT COURTS HAVE USUALLY HELD THAT WHERE TREATIES ARE OPEN TO TWO CONSTRUCTIONS, ONE RESTRICTING RIGHTS AND THE OTHER ENLARGING THOSE RIGHTS, THE MORE LIBERAL IS PREFERRED.

TO THE SECRETARY OF STATE, JULY 7, 1958:

THIS REFERS TO THE LETTER OF MAY 2, 1958, AND ENCLOSURES, FROM THE DEPUTY UNDER SECRETARY FOR ADMINISTRATION, REQUESTING, IN VIEW OF THE PROVISIONS OF ARTICLE 24 (5) OF THE AUSTRIAN STATE TREATY, 6 U.S.T. 2432, OUR DECISION ON THE PROPRIETY OF CASHING CERTAIN MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT DELIVERED TO CERTAIN AUSTRIAN NATIONALS.

THE MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT IN QUESTION WERE ISSUED TO FORMER PRISONERS OF WAR OF AUSTRIAN NATIONALITY UNDER THE FOLLOWING PROCEDURES AS DESCRIBED IN THE LETTER OF MAY 2:

FOLLOWING CESSATION OF HOSTILITIES IN EUROPE, FORMER PRISONERS OF WAR OF AUSTRIAN NATIONALITY WERE RELEASED AND ISSUED CERTIFICATES INDICATING THAT THEY WERE ENTITLED TO THE PAYMENT OF CERTAIN AMOUNTS UNDER THE PROVISIONS OF THE GENEVA CONVENTION ON THE TREATMENT OF PRISONERS OF WAR. DURING THE PERIOD OF THE OCCUPATION OF AUSTRIA, PROCEDURES WERE ESTABLISHED FOR THE PAYMENT OF THESE OBLIGATIONS. THE PROCEDURES REQUIRED THE CLAIMANT TO DELIVER THE CERTIFICATE TO UNITED STATES AUTHORITIES IN AUSTRIA WHO TRANSMITTED EACH CLAIM TO THE ENEMY PRISONER OF WAR INFORMATION BUREAU, FORT HOLABIRD, MARYLAND, FOR VERIFICATION. UPON VERIFICATION, AN AMOUNT EQUIVALENT TO THE AMOUNT DUE WAS EARMARKED FOR THAT PERSON FROM THE FUNDS AVAILABLE FOR PAYMENT OF THE PRISONER OF WAR CLAIMS. A MILITARY PAYMENT ORDER ( TAB A) OR A CERTIFICATE OF CREDIT ( TAB B) WAS THEN ISSUED AND SENT TO THE UNITED STATES MILITARY AUTHORITIES IN AUSTRIA, WHO FORWARDED IT TO THE AUSTRIAN NATIONAL BANK. THE BANK THEN SENT THE ORDER TO THE CLAIMANT FOR SIGNATURE AND SUBMISSION OF A CERTIFICATE OF CITIZENSHIP. THE AUSTRIAN NATIONAL RETURNED THE ORDER AND CERTIFICATE TO THE BANK WHICH SENT THEM TO THE UNITED STATES MILITARY AUTHORITIES. THE MILITARY AUTHORITIES ISSUED A DOLLAR CHECK IN THE AMOUNT INVOLVED TO THE BANK WHICH CONVERTED THE AMOUNT INTO AUSTRIAN CURRENCY WHICH WAS THEN DELIVERED TO THE INDIVIDUAL. THIS LAST STEP WAS FOLLOWED BECAUSE OF LOCAL AUSTRIAN RESTRICTIONS AGAINST INDIVIDUALS HAVING POSSESSION OF FOREIGN CURRENCY.

THE DEPUTY UNDER SECRETARY STATES THAT THE UNITED STATES MILITARY FORCES WITHDREW FROM AUSTRIA IN SEPTEMBER 1955, IN ACCORDANCE WITH THE PROVISIONS OF THE AUSTRIAN STATE TREATY WHICH BECAME EFFECTIVE JULY 27, 1955. SUBSEQUENT TO THE WITHDRAWAL, AUSTRIAN AUTHORITIES INFORMED THE MILITARY ATTACHE AT THE AMERICAN EMBASSY AT VIENNA THAT A TOTAL OF 720 MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT, TOTALING SOME $26,680 HAD NOT BEEN CASHED. IT IS FURTHER STATED THAT THESE INSTRUMENTS, WITH A FEW EXCEPTIONS, WERE CASES WHERE THE ORIGINAL CERTIFICATE HAD BEEN VERIFIED BY THE ARMY IN 1953 AND 1954, BUT APPARENTLY OWING TO SOME ADMINISTRATIVE DELAY WERE NOT FORWARDED TO THE AUSTRIAN BANK UNTIL MAY AND JUNE, 1955. SOME WERE NOT SENT UNTIL JULY OR EARLY SEPTEMBER, AFTER THE ENTRY IN FORCE OF THE STATE TREATY. IT IS ALSO REPORTED THAT MILITARY DISBURSING OFFICERS ISSUED SOME INSTRUMENTS AFTER ENTRY INTO FORCE OF THE TREATY UNTIL THEY HAD DISCHARGED THE OBLIGATION OF THE UNITED STATES WITH REGARD TO ALL CASES WHICH HAD PROGRESSED PAST THE POINT OF VERIFICATION PRIOR TO ENTRY INTO FORCE OF THE TREATY. UPON INQUIRY BY THE AUSTRIANS AS TO THE PROCEDURE FOR CASHING THESE INSTRUMENTS, THE MILITARY ATTACHE REQUESTED INSTRUCTIONS FROM THE ARMY COMPTROLLER'S OFFICE IN WASHINGTON WHICH IN TURN REQUESTED AN OPINION BY THE ARMY JUDGE ADVOCATE'S OFFICE REGARDING THE EFFECT, IF ANY, OF THE STATE TREATY ON THE CASHING OF THE ORDERS. ADVISORY OPINION WAS RECEIVED BY YOUR DEPARTMENT INDICATING A VIEW THAT ARTICLE 24 OF THE TREATY, 6 U.S.T. 2432, WAIVED ALL SUCH CLAIMS AGAINST THE UNITED STATES. IT IS REPORTED THAT THE COMPTROLLER'S OFFICE WAS ADVISED, ON THE OTHER HAND, THAT THE DEPARTMENT OF STATE HELD THE VIEW THAT THE TREATY PROVISIONS DID NOT AFFECT THE CASHING OF THE INSTRUMENTS IN QUESTION. HOWEVER, SINCE IT DID NOT APPEAR THAT EITHER VIEW WAS SUFFICIENTLY DEFINITIVE TO PERMIT THE COMPTROLLER'S OFFICE TO PROCEED WITH THE CASHING OF THE INSTRUMENTS, IT WAS DECIDED TO SUBMIT THE MATTER HERE FOR DETERMINATION AND IN VIEW OF THE SUBSTANTIAL FOREIGN POLICY ISSUES INVOLVED, IT WAS AGREED THAT THE SUBMISSION WOULD BE BY YOUR DEPARTMENT.

ARTICLE 24 OF THE AUSTRIAN STATE TREATY PROVIDES IN PART AS FOLLOWS:

1. AUSTRIA WAIVES ALL CLAIMS OF ANY DESCRIPTION AGAINST THE ALLIED AND ASSOCIATED POWERS ON BEHALF OF THE AUSTRIAN GOVERNMENT OR AUSTRIAN NATIONALS ARISING DIRECTLY OUT OF THE WAR IN EUROPE AFTER ST SEPTEMBER, 1939, OR OUT OF ACTIONS TAKEN BECAUSE OF THE EXISTENCE OF A STATE OF WAR IN EUROPE AFTER THAT DATE WHETHER OR NOT SUCH ALLIED OR ASSOCIATED POWER WAS AT WAR WITH GERMANY AT THE TIME. * * *

5. THE WAIVER OF CLAIMS BY AUSTRIA UNDER PARAGRAPH 1 OF THIS ARTICLE INCLUDES ANY CLAIMS ARISING OUT OF ACTIONS TAKEN BY ANY OF THE ALLIED OR ASSOCIATED POWERS WITH RESPECT TO SHIPS BELONGING TO AUSTRIAN NATIONALS BETWEEN ST SEPTEMBER, 1939 AND THE COMING INTO FORCE OF THE PRESENT TREATY AS WELL AS ANY CLAIMS AND DEBTS ARISING OUT OF THE CONVENTIONS ON PRISONERS OF WAR NOW IN FORCE.

WHEN THERE IS DOUBT AS TO THE MEANING OF A TREATY PROVISION, THE CONSTRUCTION OF THE TREATY BY THE POLITICAL DEPARTMENT OF THE GOVERNMENT, WHILE NOT CONCLUSIVE, IS GIVEN WEIGHT. ALSO THERE IS A DISTINCTION BETWEEN THE INTERPRETATION OF TREATIES AND THE INTERPRETATION OF STATUTES, IN THAT THE COURTS HAVE USUALLY HELD THAT WHERE TREATIES ARE OPEN TO TWO CONSTRUCTIONS, ONE RESTRICTING THE RIGHTS THAT MAY BE CLAIMED UNDER IT AND THE OTHER ENLARGING THOSE RIGHTS, THE MORE LIBERAL IS TO BE PREFERRED. SEE HACKWORTH'S DIGEST OF INTERNATIONAL LAW, VOLUME 5, SECTION 493.

THE VIEW OF THE DEPARTMENT OF STATE, AS EXPRESSED IN THE LETTER OF MAY 2, IS THAT THE INSTRUMENTS WHICH WERE DELIVERED TO THE AUSTRIAN AUTHORITIES UNDER THE ABOVE DESCRIBED CIRCUMSTANCES ARE NOT "CLAIMS AND DEBTS" ARISING OUT OF THE CONVENTIONS ON PRISONERS OF WAR AS THE PHRASE WAS USED IN THE TREATY. THE MILITARY PAYMENT ORDER CONTAINS AN UNCONDITIONAL PROMISE TO PAY TO THE PERSON NAMED THEREIN A SPECIFIED AMOUNT AND YOUR DEPARTMENT VIEWS THIS AS CONSTITUTING A CLEAR AND UNQUALIFIED OBLIGATION OF THE UNITED STATES IN AND OF ITSELF. AS SUCH IT IS NOT CONSIDERED TO BE A "CLAIM OR DEBT" ARISING OUT OF PRISONER OF WAR CONVENTIONS, AND THE VIEW IS THEREFORE EXPRESSED THAT THEY SHOULD BE CASHED FORTHWITH. SIMILARLY, SINCE THE CERTIFICATES OF CREDIT ARE OFFICIAL STATEMENTS BY AUTHORIZED OFFICIALS OF THE UNITED STATES, DECLARING THAT THE UNITED STATES HAS IN ITS POSSESSION FUNDS RECOGNIZED AS BELONGING TO THE INDIVIDUAL NAMED, IT IS POINTED OUT THAT THE SITUATION IS NOT THAT OF A PERSON ASSERTING IN VAGUE, GENERAL TERMS THAT HE HAS A CLAIM.

IN SUBSTANTIATION OF THE ABOVE INTERPRETATION OF THE TREATY, THE DEPUTY UNDER SECRETARY CITES THE POLICY FOLLOWED DURING THE ENTIRE COURSE OF THE OCCUPATION OF AUSTRIA UNDER WHICH THE UNITED STATES RECOGNIZED TO THE FULL EXTENT ITS FINANCIAL OBLIGATIONS. IT IS STATED THAT THIS POLICY WAS CONSIDERED DESIRABLE FROM A MILITARY AS WELL AS FROM A POLITICAL STANDPOINT, AND WITH RESPECT TO THE RELATION OF THIS POLICY TO ARTICLE 24 (5) OF THE AUSTRIAN TREATY IT IS STATED IN THE LETTER OF MAY 2 THAT---

WITH SUCH A POLICY IN MIND, THERE WAS NO INTENTION ON THE PART OF THE REPRESENTATIVES OF THE UNITED STATES SUDDENLY TO INTRODUCE A CONCEPT THAT OBLIGATIONS OF THE UNITED STATES FULLY ACKNOWLEDGED AND IN WRITING WERE TO BE REPUDIATED. IN THOSE CASES WHERE AN OBLIGATION OF THE GOVERNMENT WHICH MAY HAVE HAD SOME ASSOCIATION WITH PRISONERS OF WAR WAS REDUCED TO AN UNCONDITIONAL PROMISE TO PAY, OR TO A CERTIFIED STATEMENT THAT THE UNITED STATES HELD FUNDS BELONGING TO THE INDIVIDUAL, IT IS INCONCEIVABLE THAT THE UNITED STATES SHOULD REPUDIATE THE PROMISE WHEN IT IS EVENTUALLY PRESENTED BY SEEKING TO GO BEHIND THE INSTRUMENT TO FIND AN ORIGINAL "CLAIM OF DEBT" ARISING OUT OF THE POW CONVENTIONS.

IT IS FURTHER POINTED OUT IN THE LETTER OF MAY 2 THAT YOUR DEPARTMENT BELIEVES THAT IN ADDITION TO THE LEGAL VIEW THAT CASHING THE ORDERS IS ENTIRELY CONSISTENT WITH THE TREATY LANGUAGE, AN ARGUMENT BASED ON EQUITY IS ALSO APPLICABLE IN THE INSTANT CASE SINCE THE RECORDS SHOW THAT THE ONLY REASON THE PAYEES WERE UNABLE TO CASH THE INSTRUMENTS PRIOR TO THE ENTRY INTO FORCE OF THE TREATY WAS BECAUSE THE AMERICAN OFFICIALS DID NOT DELIVER THEM TO THE AUSTRIANS EXPEDITIOUSLY. IT IS URGED THAT UNDER SUCH CIRCUMSTANCES THE TREATY LANGUAGE SHOULD NOT BE SET UP AS A BAR TO THE CASHING OF THE INSTRUMENTS SINCE NOT ONLY WOULD SUCH A RESULT BE INEQUITABLE, BUT IT WOULD ACTUALLY BE CONTRARY TO THE CLEAR NATIONAL POLICY OF THE GOVERNMENT AS HEREINABOVE OUTLINED.

IN VIEW OF THE REPRESENTATIONS AS SET FORTH BY YOUR DEPARTMENT THAT THE AUSTRIAN STATE TREATY WAS NEVER INTENDED TO PRECLUDE THE CASHING OF MILITARY PAYMENT ORDERS AND CERTIFICATES OF CREDIT, AND SINCE THE INSTRUMENTS ISSUED PRIOR TO THE ENTRY INTO FORCE OF THE STATE TREATY MAY REASONABLY BE VIEWED, INDEPENDENTLY OF THE CONVENTIONS ON PRISONERS OF WAR, AS REPRESENTING OBLIGATIONS OF THE UNITED STATES TO THE PAYEES CONCERNED, NO OBJECTION WILL BE RAISED BY OUR OFFICE TO THE CASHING OF SUCH INSTRUMENTS BY APPROPRIATE OFFICERS OF THE DEPARTMENT OF THE ARMY. HOWEVER, WITH RESPECT TO INSTRUMENTS ISSUED SUBSEQUENT TO THE ENTRY INTO FORCE OF THE STATE TREATY, THE CLAIMS OR DEBTS UPON WHICH THEY WERE BASED WERE WAIVED BY ARTICLE 24 OF THE TREATY, AND THEREFORE SINCE THERE APPEARS TO HAVE BEEN NO LEGAL AUTHORITY FOR THEIR ISSUANCE, THEY MAY NOT BE CASHED OR OTHERWISE PAID.