Published: 28 January 2021 Author: Christian Richter
On 18 October 2019, the German Federal Foreign Office presented a diplomatic note to the Greek Ambassador to Berlin, formally rejecting Greece’s demands for the payment of war reparations and compensation for the First and Second World Wars. The Federal Government thereby responded to a note delivered by the Greek Ambassador on 4 June 2019, requesting the opening of negotiations on the Greek demands. In a statement to German news agency dpa on the same day, a spokesperson for the Federal Foreign Office explained:
“The Federal Government’s legal position on this issue remains unchanged: the reparations issue has been conclusively settled. Nothing has changed in this respect. […].
We hope that we can continue on the path of reconciliation with Greece that has been begun by previous generations.”
For the Federal Government, the reparations issue was legally and politically settled with the Treaty on the Final Settlement with Respect to Germany (Two-Plus-Four Treaty) of 12 September 1990. The Federal Government holds the view that war reparations claims only come into being as a result of a peace treaty. There is also support in State practice that at the time of the end of the Second World War, the legal existence of reparation claims depended on these claims being specified in a peace treaty. The unconditional surrender of the German Reich on 8 and 9 May 1945 ended the state of war but did not qualify as a peace treaty. The London Debt Agreement of 1953 also did not constitute a peace treaty. Article 5(2) of the Agreement expressly provided that the consideration of claims arising out of the Second Word War “shall be deferred until a final settlement of the problem of reparation” – meaning the settlement of the reparations question in one or more peace treaties with the countries which had been at war with Germany. Because of the Cold War, a peace treaty between Greece and Germany was never signed. However, the termination of the state of war between Greece and Germany was determined in Greek law No. 2023 of 10 March 1952. On 7 December 1952, diplomatic relations between the two countries, which had been severed during the war, were reestablished.
It could be argued, and indeed has been argued by the Federal Government, that the Treaty on the Final Settlement with Respect to Germany of 12 September 1990 (Two-Plus-Four Treaty) constitutes “a final settlement of the problem of reparation” in terms of Article 5(2) of the London Debt Agreement. The Two-Plus-Four Treaty is not a classic peace treaty but replaced such a peace treaty. Forty-five years after the end of the war, a classic peace treaty was no longer necessary. As indicated in the preamble and the title of the Treaty, the agreement was to constitute “the final settlement with respect to Germany” and dealt with all questions arising out of the Second World War, including the problem of reparation. As Greece is not a signatory to the Two-Plus-Four Treaty, it has been argued that the Treaty was not binding on Greece. While it is correct that, according to Article 34 of the Vienna Convention on the Law of Treaties, treaties are not binding on third States, it should be taken into account that Greece, like other countries that had been at war with Germany, has tacitly accepted that the four major allied powers – the United States, the Soviet Union, the United Kingdom and France –acted on its behalf with regard to the question of reparations when concluding the Two-Plus-Four Treaty. In the time before and after the conclusion of the Two-Plus-Four Treaty none of the former allies, including Greece, has objected to that practice. On the contrary, Greece, like the other participating States of the Conference on Security and Co-operation in Europe (CSCE), expressly welcomed the conclusion of the Two-Plus-Four Treaty as a signatory to the Charter of Paris for a New Europe.
Even if claims for war reparations arose independently of any peace treaty or if the Two-Plus-Four Treaty could not be considered a de facto peace treaty settling the question of war reparations, it could still be argued that Greek reparations claims no longer exist today. While international law does not provide clear rules on the exact time limit for inter-State claims to be presented, international law must know of a principle of limitations, as otherwise claims from the ancient past could still be presented today. International law recognises the principle of estoppel as a general principle of law in terms of Article 38(1)(c) of the Statute of the International Court of Justice (ICJ). The essence of estoppel is that a State is bound to the expectations it has created by its conduct and the other party can bona fide rely on. Greece, like other former allied States, has welcomed Germany to several international organizations such as the United Nations, NATO, and the OSCE, and has accepted Germany’s considerable financial contributions. Most importantly, Germany has been the largest net contributor to the budget of the European Union (EU), by which Greece has been benefiting greatly. Since becoming a member of the EU in 1981, Greece has benefitted from German payments to the amount of more than 10 billion euros. Germany’s integration into the EU must also be taken into account when considering war reparations claims. Germany’s driving motivation behind the integration in the EU was to right the wrongs the country had committed during World War II. By admitting the former enemy State into international organisations and by accepting its transfer payments within the framework of the EU, Greece has raised the expectation that reparations claims would not be presented anymore – an expectation Germany could reply upon. It is therefore argued that, 29 years after the final settlement in the Two-Plus-Four Treaty, 66 years after the London Debt Agreement, and 74 years after the end of the Second World War, Greek reparation claims must be considered time-barred.
Category: State responsibility