The Facts.—The appellant, formerly a citizen of Geneva, on July 31, 1945, married Werner Levita, a Jewish refugee from Germany resident in France. Levita's German passport was no longer valid, and he was regarded in France as a stateless person, and was conscripted as such for service in the French army. The appellant claimed that she retained her Swiss nationality by virtue of Article 5 of the Order of the Swiss Federal Council of November 11, 1941 (Nouveau Manuel de Droit Suisse (1946), I, p. 37), which provided that a Swiss woman may retain her nationality on marriage if she does not acquire that of her husband. The Federal Department of Justice and Police decided on April 17,1946, that the appellant lost her Swiss nationality on marriage, on the ground that Levita had not lost German nationality. The Federal Department admitted that a German Decree of November 20, 1941, denationalized German Jews resident abroad, but stated that it required, in each individual case, a confirmation from the competent German authority to the effect that the person concerned had actually lost German nationality under that Ordinance, because the meaning of the term ‘Jew’ was difficult to interpret. In the case of Levita no such confirmation had been submitted. Appeal was now brought against that decision. It was contended on behalf of the appellant that her husband lost his nationality by reason of the Ordinance of 1941, and would not be regarded as a German subject by any German authority.

Held: that the appeal must be rejected. The German denationalization decree could not be recognized in Switzerland as it was contrary to Swiss public policy. Moreover, it appeared that since the repeal of Nazi racial legislation by Allied Military Government, German authorities would recognize the German nationality of the appellant. The Court said:

‘Swiss authorities can only decide as a preliminary question of law whether a person possesses a certain foreign nationality. Their decision on that point is a consideration on which the judgment on the actual question at issue will be based. It has not the importance of a judgment on the merits which has become effective. It has not the authority of res

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judicata. Therefore each authority called upon to decide such a question as a preliminary issue does so without being bound by the preliminary decisions given previously by another authority in the same matter.

‘For the decision which must be made in the present case it is in no way decisive that Levita was regarded as a stateless person by some Swiss authorities with reference to the rules applicable to aliens. It is even less decisive that a foreign State—France—regarded him as such.

‘The question whether Levita retained German nationality is one of German law. According to the Elfte Verordnung zum Reichsbürgergesetz a Jew normally resident abroad can no longer be a German national (deutscher Staatsangehöriger). “Normal residence” means that a Jew resides abroad in circumstances which suggest that his stay is not temporary. Moreover, the Ordinance provides that a Jew loses his nationality at the moment when it comes into force, if his normal residence is abroad at that time.

‘Appellant contends that, in virtue of these provisions, her husband had ex lege lost German nationality at the time of marriage. She considers—rightly, it would seem—that the abovementioned legal provisions in themselves bring about the denationalization of persons at whom they are aimed. There is no need for a constitutive or even declaratory act of the competent authority. Nevertheless serious difficulties remain in the solution of the question whether the abovementioned provisions apply to any particular person. In particular, it is still difficult to decide whether that person is a Jew in the meaning given to that term by German law.

‘When the application of foreign nationality legislation raises such difficulties, the administrative authorities are justified in demanding the submission of a declaration from the foreign authority itself. That certificate might be a final decision or judgment of an authority with jurisdiction in matters of nationality, or a simple affidavit from the foreign administrative authorities. Such an affidavit is only a piece of evidence, the bearing of which must be interpreted by the Swiss authorities with regard to the circumstances of the case. In this case it appears to be impossible to submit such an affidavit, as there are no German authorities which can issue it. The Swiss Court must therefore give a preliminary decision on the question whether Levita lost his nationality in virtue of German legislation.

‘But it seems that, in so far as it distinguishes on racial grounds between “Jews” and “Aryans”, German legislation is contrary to Swiss public policy, and can therefore not be applied in Switzerland. Its application would violate the sentiment of justice prevalent in this country in an intolerable manner. The distinction made by German law and based on

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racial arguments is not compatible with the sentiment of justice, because it is contrary to the principle of the equality of men, and violates in an intolerable manner the idea of the equality of citizens before the law, as it is understood in Switzerland. Provisions which draw such a distinction are therefore not applicable in Switzerland, and cannot, as a matter of principle, be sanctioned by a Swiss Court. In the view of the law of Switzerland the husband of the appellant has, therefore, not lost German nationality.

‘Admittedly the Federal Tribunal has always held that States have sovereign power to lay down the conditions of the acquisition and retention of citizenship. It has considered it to be doubtful whether that power is limited by international law. But in the present case there is not a mere violation of international law, but an incompatibility with Swiss public policy which, according to general principles, prevents the application of the foreign law in Switzerland.

‘Nevertheless, for the purpose of applying the rule of Swiss law which provides that a Swiss woman who marries an alien may retain her nationality if she does not acquire that of her husband, we may ask whether the mere fact of statelessness would not constitute a sufficient condition. In other words, when it appears from a concrete, definite and irrevocable decision given by the competent authority of the foreign State, that the latter would not grant its nationality to a Swiss woman who marries one of its subjects, we may ask whether that state of fact—however contrary it may be to principles of law—could exceptionally suffice to permit her to retain Swiss nationality despite her marriage with an alien.

‘That question may remain undecided in the present case. Even if one admits that a definite decision of the foreign State, proving the statelessness of the husband, might be sufficient, that condition is not satisfied in the present case. The German authorities have given no decision denying German nationality to the appellant, or to her husband. Moreover, it seems that the German authorities which function in Germany under the Allied occupation would recognise the German nationality of the appellant and her husband if they were called upon to make a pronouncement on the matter.

‘Professor Egger, in an opinion of October 28, 1945, on the present status of stateless persons of German origin in Switzerland—an opinion given at the request of the Swiss Central Office for Aid to Refugees in Zürich—cites Law No. 1 of Allied Military Government, proclaimed on September 18, 1944, which provides that the principles and doctrines of National Socialism shall be eliminated from German law and administration, and repeals a number of laws enacted since 1933, together with all supplementary carrying-out laws. Amongst these laws are included the “Reichsbürgergesetz” of

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September 15,1935, and all Ordinances relating to its execution. The law of 1944, as quoted by M. Egger, provides that all these legal provisions “are hereby deprived of effect within the occupied territory”. Article 2 provides that Courts and administrative authorities within the occupied territory must not apply any rule of German law which might injure a person on the ground of his race, nationality or religion, or on the ground of his opposition to the National Socialist party and its doctrines.

‘In these circumstances the appellant, who cannot invoke foreign legislation which is contrary to Swiss public policy, cannot assert either that, by reason of a concrete and definite decision of the foreign authorities, she did not acquire German nationality by marriage.’