Washington University Law Review

Volume 5 Issue 4

January 1920

International Law Applied to the Treaty of Peace

Sterling E. Edmunds St. Louis Bar Association

Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview

Part of the Law Commons

Recommended Citation Sterling E. Edmunds, International Law Applied to the Treaty of Peace, 5 ST. LOUIS L. REV. 173 (1920). Available at: https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1

This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. ST. LOUIS LAW REVIEW

Vol. V Published by the Undergraduates of the Washington University School of Law No 4.

INTERNATIONAL LAW Applied to The TREATY OF PEACE Continued

SECTION VIIL-POLAND. in which "regard will be paid to the wishes of the inhabitants as shown by the Articles 87-88. Germany recognizes com- vote, and to the geographic and economic plete independence of Poland and cedes conditions of the locality." certain territory, provision being made for delimitation of frontiers, and for plebi- Article 91. German nationals habitually scites in portion* of Upper Slesia. resident in territories recognized as form- Poland was extinguished by a final parti- ing part of Poland will acquire Polish na- tion among Russia, Prussia and Austria in tionality ipso facto and will lose their Ger- 1795, confirmed by the Congress of Vienna man nationality with the exception of those in 1815. In the present treaty large parts or their descendants who became resident of Austrian and Prussian Poland are to be in the territories after January 1, 1908, returned to the reconstituted Stats. A set- who require special authorization from the doment with respect to Russian Poland lies Polish state to become Polish nationals. in the future. Within two years Germans thus becoming The provisions of this section are founded Poles, as well as Poles resident in Ger- upon political rather than upon legal con- many who are German nationals, over 18 siderations, however, a primary object be- years of age, may opt for the other na- ing the erection of a strong buffer state be- tionality respectively. tween Germany and Russia; for, in spite of Persons thus exercising the right to the wrongful and unlawful acts of Russia, opt -may" within the succeeding twelve Prussia and Austria in the three partitions months transfer their place of residence their titles had become good in law by pre. to the state for which they have opted. scription. (I Oppenheim, pp. 309-310.) Each will be entitled to retain his im- movable property in the territory of the By Annex I under Section VIII those other and freely to carry qualified to vote shall with him his be persons, with- movable property. out distinction of sex, who have completed their twentieth year and who were born Within the same period Poles in for- in eign countries, who are German nationals, the plebiscite area or have been domi- will be entitled, in the absence of ciled therein since a date to be determined restric- tions in the foreign law, to acquire Polish by an International Commission in charge. nationality by complying On the conclusion of the voting with the require- the Com- ments laid down by the Polish State. mission will make a recommendation to the Allied and Associated Powers as to Here again involuntary naturalization is the frontier of Germany in Upper Silesia resorted to, with, however, a subsequent

Washington University Open Scholarship ST. LOUIS LAW REVIEW

right to opt. (See Comment opposite Arti- "Free City of Danzig" is to be created, "under the protection cles 36 and 37.) It will be observed in this of the League of Article that persons opting "may" transfer Nations." their residence within twelve months. Ibid. Article 92. Poland will assume a portion of Article 103. A constitution for the Free the Prussian and German debt attributa- City of Danzig will be drawn up by rep- ble to the territory on the basis of the resentatives of the Free City and a High ratio between the average for the years of Commission appointed by the League of 1911, 1912 and 1913, of such revenues of Nations. ceded territory and the average for the same years of revenues of the German Article 104. The Principal Allied and Asso- empire, with the exception that there ciated Powers undertake to negotiate a shall be excluded that portion arising from treaty between Poland and the Free City German and Prussian projects of coloni- of Danzig which will insure reciprocal zation. economic privileges, ensure Poland control See Comment opposite Article 39. of the Vistula and of the whole system of railways within the Free City, with Article 93. Poland agrees to embody in a the exception of street railways, ensure treaty with the principal Allied and Asso- Poland the right to develop waterways, clated Powers such provisions as may be docks, etc., and which will provide that deemed necessary to the protection of in- Poland shall conduct the foreign relations habitants who differ from the majority in of the Free City as well as undertake the race, language or religion. diplomatic protection of its citizens See Comment opposite Article 86, abroad. Such a treaty as contemplated between IX.-EAST PRUSSIA. SECTION Poland and the Free City of Danzig would Articles 94-98. Provision is made herein involve the transfer of the sovereignty over for a plebiscite by the inhabitants to indi- the so-called Free City to Poland, in view cate their choice as between remaining a of the proposal to give Poland control of part of Germany or becoming incorpo- foreign affairs of the Free City; for that rated into Poland under the same proce- control is the test of sovereignty. dure and conditions previously set out in As cited supra, it involves for the United Articles 87 and 88 and the Annex States a constitutional question, being alien- thereto. ation of territory, and would require an act in addltion to ratification of the It does not appear that any right of option of Congress present treaty. is given to the minority. It is interesting to study in connection SECTION X.-MEMEL. with this project the erection of the Free City of Cracow, by the Congress of Vienna Artidle 99. Germany renounces in favor of in 1815, under the protection of Russia, the Principal Allied and Associated Pow- Prussia and Austria, and the annexation of ers all rights and title over Memel and that so-called Free City by Austria in 1848. undertakes to accept in advance any dispo- (Nys. 1, pp. 383-385). sition to be made of same. This renunciation of sovereignty is made Article 105. German nationals habitually in favor of the Principal Allied and Asso- resident in the territory of the Free City ciated Powers, by which the United States of Danzig "will ipso facto lose their Ger- becomes possessed of an undivided one-fifth man nationality" on the coming into force interest in the territory. The right to of the treaty "in order to become na- acquire territory is incident to and inferable tions of the Free-City of Danzig." from Art. 1, Sec. 8, U. S. Constitution, but It will be observed that German nationals the disposition of territory thus acquired by thus losing German nationality do not at the United States is in the sole power of that instant acquire any other as in the Congress. (Art. IV, Sec. 3, U. S. Conat.). preceding instances cited; until they become The power to dispose of such territory is a nationals of the Free City they are without legislative one and can not be delegated. any nationality or what the Germans term staatlos or heimatlos. Articles 100-102. Germany renounces in favor of the Principal Allied and Asso- Article 106. Within two years German na- ciated Powers territory within certain tionals over 18 years of age may opt for boundaries on the Baltic within which the German nationality though those opting

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

"rnust' transfer their residence to Ger- Article 112. "All the inhabitants of the many within the ensuing twelve months. territory which is returned to Denmark will acquire Danish nationality ipso facto See Comment opposite Article 91. and will lose their German nationality," that persons who had Section 107. All property situated within with the exception the Free City of Danzig belonging to the become habitually resident in this terri- German empire or to any German state tory after October 1, 1918, can become with permission of shall pass to the Principal Allied and Danish nationals only Associated Powers for transfer to the Free the Danish government. City of Danzig or to the Polish State as See Comment opposite Article 36. they may consider equitable. Article 113. Within two years any person As the United States would possess an over 18 years of age, born in the terri- undivided one-fifth interest, it would require tory, not habitually resident in this re- an act of Congress to alienate that interest. gion, may opt for Danish nationality, and (Vide supra, opposite Articles 99 and 104). any person over 18 years of age, habit- ually resident in the region, may opt for Article 108. The proportion of public debt German nationality. Those opting must to he assumed by the Free City of Dan- transfer their place of residence within zig is to be calculated on the ratio indi- the ensuing twelve months. They will be cated for Poland in Article 92, without entitled to retain their immovable prop- the exception therein indicated. erty and freely to carry their movable Ratio is set out in Article 254 of the property with them. treaty- See Comment opposite Article 37. SECTION XIL-SCHLESWIG. Article 114. The proportion of public debt to be assumed by Denmark with respect to Article 109. Provision is made in these territory restored will be calculated on Articles for a plebiscite within certain the ratio indicated in the case of the Free described territory by which the inhabi- City of Danzig. (See Article 108). tants may indicate their desire for incor- By the treaty of October 30, 1864, by poration with Denmark, the right to vote which Denmark renounced all rights over being given to all persons, without dis- the three duchies of Lauenburg, Holstein tinction of sex, who have completed their and Schleswig in favor of the Emperor of twentieth year and who were born in the Austria and the King of Prussia, these zone in which the plebiscite is taken or duchies assumed their portion of the Danish have been dqmiciled there since a date debt. before January 1, 1900, or had been ex- SECTION XIII.-HELIGOLAND. pelled by Germany. Article 115. All fortifications on the islands Denmark was despoiled of Schleswig by of Heligoland and Dune shall be destroyed Prussia and Austria in 1864. Two years and shall not be reconstructed. later Prussia became the sole possessor in war with Austria, which left Prussia supreme This constitutes a restriction on German in the German political system. Schleswig territorial supremacy, technically described is Denmark's Alsace-Lorraine and the treaty as a negative servitude. So many, both neg- to undo the wrong suf- ative and positive, and military and eco- properly attempts Germany by fered by the Scandinavian state. nomic, have been imposed upon It may be remarked, however, that Den- the present treaty that it is doubtful that described as a fully sover- mark was not officially consulted in the ar- Germany can be state, at least during their continuance. rangements made by the Allied and Associat- eign ed Powers. SECTION XIV.-RUSSIA AND RUSSIAN STATES. Article I 10. Germany renounces definitely in favor of the Principal Allied and Asso- Article 116. Germany agrees to respect as ciated Powers all rights of sovereignty inalienable the independence of all terri- over territories situated to the north of a tories which were part of the former Rus- frontier line fixed by the Allied and Asso- sian empire, and, by reference to Article ciated Powers, who "will hand over the 292, accepts definitely the abrogation of said territories to Denmark," the Brest-Litovsk treaties and all other See Comment opposite Articles 99, 104 agreements with the Maximalist govern- and 107. ment.

Washington University Open Scholarship ST. LOUIS LAW REVIEW

The Allied and Associated governments of claims and indemnities- and for resti- reserve the rights of Russian to obtain res- tution or compensation with respect to all titution and repatation as against Ger- private property of nationals of the Allied many. and Associated governments in German hands. Article 117. Germany undertakes to recog- See Comment opposite Article 74. nize any treaties and agreements subse- quently to be entered into by the Allied Article 122. The government exercising and Associated Powers with Russia or authority over such territories may make Russian states. such provisions as it thinks fit with refer- Arrangements entered into by two or more ence to repatriation of German nationals states with respect to another can not, of and to the conditions upon whch German course, bind that other state. These are po- subjects of European origin shall, or shall litical and economic, rather than legal pro- not, be allowed to reside, hold property, visions. trade or exercise a profession. In no treaty of peace imposed in modern RIGHTS AND INTER- PART IV.--GERAN times is to be found a provision comparable ESTS OUTSIDE OF GERMANY. to this in severity toward individuals of the Article 118. In territory outside of her enemy country. Not only are these private European frontiers as fixed by the treaty persons to be despoiled of their property hold Germany renounces all rights, titles and but they may be denied the right to property, to trade or practice a profession, FriVileges whatever in or over territory belonging to her or to her allies, or they may be expelled en masse. Al re. ormerly is and undertakes to recognize any measures sponsibility to assist in their repatriation taken with regard to same. denied. In this general renunciation it is not clear Article 123. The provisions of Article 260 in whose favor it is made. apply as to all agreements concluded with German nationals in such territories. Ar- SECTION I--GERMAN COLONIES. ticle 206 gives to the Reparation Commis- in favor sion power to cause Germany to dispossess Article 119. Germany renounces rights or interests they Allied and Associated her nationals of any of the Principal may have in any public utility or conces- rights and titles over her Powers all her sion operating in Russia, China, Turkey, oversea possessions. Austra, Hungary and Bulgaria, or in any Sea Comment opposite Articles 99, 104 ceded territories, and turn the same over and 107. to the Reparation Commission. Germany immovable shall be responsible for indemnifying her Article 120. All movable and nationals so dispossessed. property belonging to Germany or a Ger- man state shall pass to the government See Comment opposite Article 74. exercising authority over such territories, for in accordance with Article 257, which de- Article 124. Germany undertakes to pay nationals in clares that no portion of the public debt damage suffered by French the hands of German shall be assumed, that no credit shall be the Cameroons at given to Germany on the reparation ac- civilians or military forces, in accordance count, and that such property taken over with an estimate to be presented by shall include the private property of the France. former German emperor as well as that See Comment opposite Article 63, subsec. of other royal personages. tion (1). a See Comment opposite Article 39. The irresponsible acts of civilians of belligerent government can not form the legal Article 121. The provisions of Sections 1 basis of a claim against their government. and IV of Part shall apply to such ter- With respect to such cases the exaction Is ritories whatever the government adopted. disguised indemnity. Section I of Part X provides for the en- joyment of economic privileges in Ger- Article 125. Germany renounces all rights many with respect to the produce and under the conventions of November 14, manufactures of such territories. 1911, and September 28, 1912, relating to Section IV provides for the confiscation Equatorial Africa and undertakes to pay property of German nationals to the French government, on its estimate, of all private etc., effect- and its application toward the settlement all deposits, credits, advances,

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

ed in virtue of these agreements in favor SECTION II.-CHINA. of Germany. Article 128. Germany renounces in favor By the conventions of November 14, 1911, of China all benefits and privileges result- France ceded to Germany 107,000 square ing from the provisions of the final proto- miles of Equatorial Africa, with a popula- col signed at Pekin on September 7, 1901, tion of 1,000,000 as the price for German and from all annexes, notes and documents recognition of the French protectorate in supplementary thereto. She likewise re- Morocco. This area will thus come back to nounces in favor of China any claim to France, giving her a total of about 775,000 indemnities accruing thereunder subse- square miles and 10,000,000 of negroes in quent to March 14, 1917. this colony. It will be noted that with respect to China Article 126. Germany undertakes to accept no declaration is made to the effect that all and observe the agreements made or to be treaties and agreements are abrogated, as is made by the Allied and Associated Powers done in other instances (infra, Articles 135, or some of them with any other power 138, 148), but there is here only a renun. with regard to the trade in arms and ciation by Germany. spirits, and to the matters dealt with in Among the benefits and privileges of the the General Act of Berlin of February 26, protocol of September 7, 1901, was the com. 1885, the General Act of Brussels of July memorative arch erected in Peking to Baron 2, 1890, and the conventions completing Yon Ketteler at the demand of Germany. or modifying the same. Germany also received economic privileges and an interest in the total Boxer indemnity (Int. Law, It is incorrect, says Oppenheim of $328,000,000, payable in 39 years. Vol, 1, p. 368, n.), to maintain that the law of nations has abolished slavery, but there Article 129. China need not grant Ger- is no doubt that the conventional law of na. many the advantages and privileges en- tions has tried to abolish the slave trade. joyed by the other High Contracting Three important general treaties have Parties under the treaties of August 29, been concluded for that purpose during the 1902, and September 27, 1905. nineteenth century, since the Vienna Con- gress-namely, (1) the treaty of London, Article 130. Germany cedes to China all 1841, between Great Britain, Austria, France, the buildings, wharves, pontoons, barracks, Prussia and Russia; (2) the General Act of forts, arms, vessels and other public prop- the Congo Conference of Berlin, 1885, and erty which are situated or may be in the (3) the General Act of the Anti-Slavery German concessions at Tientsin and Han- Conference of Brussels, 1890. kow or elsewhere in Chinese territory, ex- Of the principal civilized states ratifying cept as otherwise provided in Section VIII, this last international effort to abolish human relating to Shantung. Consular and dip- slavery in Africa, France alone ratified with lomatic residences or offices and property so many reservations as practically to have in the Legation Quarter ara also excepted. freed herself from its obligations. These concessions comprise comparatively (See reservations in act of ratification of small areas which have been wrung from General Act of Congo Conference by the China by all of the European powers in ad- United States Senate disclaiming approval of dition to their so-called "leased territory" in African Colonies, etc.; 2 Malloy, p. 1991.) China. The titles in all instances are found- not indicate what the ed on force or threats of force, though the Article 126 does canceled. Powers or some of German concessions only are Allied and Associated by any whether a tightening or a Plainly, China can not be bound them contemplate, treaty unless and until she relaxation of the obligations. provisions of the ratifies it. Article 127. The native inhabitants of the former German oversea possessions shall Article 131. Germany undertakes to restore be entitled to the diplomatic protection to China within twelve months all astro- of the governments exercising authority nominal instruments which her troops in over those territories. 1900-1901 carried away from China, and to defray all expenses incident thereto. This is confirmation of the passage of such territories under the sovereignty of the Nothing is said of restitution by any of state to which they are allotted, since the the other High Contracting parties, whose exercise of diplomatic protection is only pos- troops, with the Germans, to quote the emi- sible as an incident to the possession of ex- nent English authority Spaight, indulged in ternal soveignty. "looting and robbery, naked and unashamed";

Washington University Open Scholarship ST. LOUIS LAW REVIEW

nor do Great Britain and France offejr to re- and privileges derived therefrom, includ- turn from their museums any of the works ing all rights of extra-territorial jurisdic- of art taken from the Summer Palace at tion, terminated as from July 22, 1917. Pekin in 1860, yet the Grand Allies com- The effect of this Article is to absolve pelled France to recognize the inviolability of Siam from responsibility for any breaches of property of rare artistic or scientific value in treaty obligations from the date mentioned. 1815 and to restore the same, even though it The outbreak of war does not abrogate all had passed to France by express treaty stipu- treaties; only those are annullel or sus. lation. (Final Act, Congress of Vienna, June pended which are incompatible with the state 9, 1815.) of war, such as treaties of commerce and Article 132. Germany agrees to the abro- navigation. (5 Moore, pp. 376-377.) gation of the leases under which the Han- Those treaties contemplating a permanent arrangement of things, and those entered into kow and Tientsin concessions are held. with a view to war, remain in force. (Scott, "China, restored to the full exercise of cases, 4128; Lawrence, 4th ed., Sec. 146.) above areas. her sovereign rights in the As to the abrogation of the right of extra- declares her intention of opening them to territorial jurisdiction in Siam, enjoyed by and trade." international residence Germany, along with all other civilized states, There is an affectation of virtue in this act it may be asked whether or not Germany of restoring China "to the full exercise of alone is to be denied this protection for her her sovereign rights," but how little ground nationals in Siam? Extra-territorial jurisdic- there is for it can be seen from the words tion is instituted by civilized states through immediately following, which plainly put treaty in backward states in order that their those sovereign rights in a strait-jacket; nationals may not be subjected to legal sys- whatever is given is given to be immediately tems that are incompatible with enlightened taken away. principles of justice. In many backward states their so-called legal systems authorize Article 133. Germany waives all claims As their capture and condemna- practices that are utterly barbarous. arising out of the systems improve and approximate accepted the tion of German ships in China and is control of standards the right of extra-territoriality liquidation, sequestration or yielded, as in the recent case of the powers German property, rights and interests in with respect to Japan. China since August 14, 1917. Such prop- There is no principle in morals that can retained and used to satisfy erty may be justify the denial of extra-territorial jurisdic- Chinese nationals, any balance to claims of tion to Germany in such cases. he turned over to the Reparation Com- mission. Article 136. All German public property, The law forbids the capture and condem- with the exception of diplomatic and con- nation of enemy ships found in the waters of sular offices, pass ipso facto to Siam with- a belligerent on the outbreak of war. They out compensation, and all private property may be seized and used, but only under an of German nationals in Siam may he re- obligation to make restitution and compen- tained and applied to satisfy Siameso claim- sation. (Report of American Delegation to ants. the Hague Conference of 1907. The Hague See Comment opposite Article 74. Peace Conference, I Scott, pp. 556-568.) Article 137. Germany waives all claims on Article 134. Germany renounces in favor account of seizure or condemnation of of Great Britain German state property in German ships in Siamese waters, the liqui- the British concession at Shameen at Can- dation of Germany property or the intern- ton, and in favor of France and China ment of German civilians. the property in German schools conjointly It appears that the Allied and Associated at Shanghai. in the French concessions Powers alone are to have the benefit of exist. It would appear that China is the logical ing law instituted for the universal protec- beneficiary of this Germany state property in tion of property and persons. both instances, being the sovereign of the territory in which it is stuated. SECTION IV.-LIBERIA. SECTION III.-SIAM. Article 138. Germany renounces all Tights and privileges arising from the arrange- ATcle 135. Germany recognizes that all ments of 1911 and 1912 regarding the treaties, conventions and agreements be- nomination of a German receiver of cus- tween her and Siam, and all rights, title toms.

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

In 1912 a loan of $1,700,000 was raised, (France), and the private property to secured by customs rubber tax and tax on satisfy claimants. native laborers shipped from Liberia, which See Comment opposite Article 74. was administered by an American General Receiver and British, French and German Article 145. Germany shall ensure the Receivers. Military police were at the same transfer to a person named by France of time placed under control of American mili- all German shares in the State Bank of tary officers. Morocco, Germany being responsible for indemnifying private owners thus dispos- Article 139. Germany recognizes that all sessed. treaties between her and Liberia termi- Ibid. nated from August 4, 1917. The treaty pretends to adopt as a princi- Article 146. Moroccan goods entering Ger- ple that the outbreak of war automatically many shall enjoy the privileges accorded abrogates all treaties and agreements of ev- French goods. ery character (vide, Comment opposite Arti- Ibid. cle 135), yet in the case of China only a SECTION VI.-EGYPT. few specified conventions and agreements are Article 147. Germany recognizes the Brit- declared "renounced" by Germany. (See ish protectorate over Egypt and renounces Comment, infra, opposite Article 156.) the regime of the capitulations. Article 140. The property, rights and in- Until December 18, 1914, the date of the terests of Germans in Liberia may be re- British proclamation of a Protectorate, Tur- tamed and used to satisfy Liberian claim- key was the nominal sovereign of Egypt, ants. though constantly, since the British occupa- No specific provision apepars to be made tion in 1882, Great Britain had increased her for the taking over of German public prop- control over the administration. Egypt, erty in Liberia. though a vassal state, was nevertheless con- sidered See Comment opposite Article 74. a part-sovereign member of the fam- ily of nations, capable of issuing a proclama- SECTION V.-MOROCCO. tion of neutrality, sending and receiving con- suls as diplomatic agents and holding joint Article 141. Germany renounce& all rights sovereignty with Great Britain over Soudan. and privileges under the General Act of (1 Oppenheim, p. 142.) This position of Algeciras of April 7, 1906, and by the Egypt is clearly impeached by British action. Franco-German agreements of February 9, 1909, and November 4, 1911. Article 148. All treaties, agreements and contracts concluded by Germany France is thus left a free hand in Morocco, with Egypt are abrogated. and is restored to an even more Favorable position than before Germany forced her par- See Comment opposite Articles 135 and ticipation through the Agidir and other inci. 139. dents. Although the integrity of Morocco Article 149. Until Egyptian law is substi- has been and a a subject of guarantee, its tuted by a reorganization of the judicial formal reduction to a French colony appears system British consular tribunals will as- not far distant. This is forecasted in the sume jurisdiction over German nationals Article immediately following. and property. Article 142. Germany recognizes the French It will be observed not even this alterna- protectorate in Morocco and renounces the tive was provided with respect to the position regime of the capitulations therein; that is of German nationals in Siam. to say, extra-territorial jurisdiction. Article 150. The Egyptian government See Comment opposite Article 135. shall have complete liberty in regulating the status of German Article 143. The Sherifian government nationals in Egypt. shall See Comment have complete liberty in regulating the opposite Article 122. status of German nationals. Article 151. Germany consents to the abro- See Comment opposite Article 122. gation of the decree issued by the Khedive on November 28, 1904, relating to the Article 144. All private and public Ger- public debt. man property in Morocco, movable and immovable may be taken over, the public Article 152. Germany consents to the property passing to the Sherifian empire transfer to Great Britain of the powers

Washington University Open Scholarship ST. LOUIS LAW REVIEW

conferred on the Sultan of Turkey by the many to Japan; and this in spite of the fact convention of October 29, 1888, concern- that by the terms of the treaty of March 8, ing the Suez Canal. 1898, the privileges are non-transferable. Yet this treaty, wrung from China Article by Ger- 153. All Germany public property many under a threat of force, was in Egypt passes to the Egyptian such an govern- agreement as might properly be held to ment have without payment. been annulled by the entrance of All private Germany property China into may be the war. Treaties granting privileges, retained and applied toward satisfaction says of Snow (Int. Law, p. 99), axe abrogated by claims. war. Article 154. Egyptian goods entering Ger- It is true that in May, 1915, Japan wrung many shall enjoy the same privileges ac- from China, under a threat of war, an agree- corded British goods. ment to abide by such disposition of Kiao. chow and the privileges in Shantung, See Comment opposite Article 74. as Japan and Germany might ultimately agree upon; yet the perfidy SECTION VII.-TURKEY AND of the whole affair was such as to justify the reprobation BULGARIA. of the civil- ized world. So lacking was the proceeding Article 155. Germany undertakes to recog- in morals that Japan preferred to abandon nize any arrangements made with Turkey all reference to it as a basis of right in the and Bulgaria with reference to any rights, Treaty of Peace and fell back on the doubt. interests and privileges whatever of Ger- ful legal ground appearing in the article. many or German nationals in those coun- It is plain, however, that from August 14, tries. 1917, the date China declared war, Ger. many's rights in Kiachow Apparently such property is to be confis. lapsed. A re- nunciation by Germany to Japan cated as in all other instances. of something not legally possessed is therefore a mere null. ity. (See The SECTION VIII.-SHANTUNG. Shantung Question, by Al. pheus H. Snow, The National, Vol. CIX, Bo. Article 156. Germany renounces in favor 2829, September 20, 1919.) of Japan all her rights, title and privileges All property belonging to the German em- -particularly those concerning the terri- pire and the German states in China became tory of Kiachow, railways, mines and sub- liable to seizure as fair prize by China on marine cables--which she acquired in vir- August 14, 1917. tue of the treaty concluded by her with As to the private property of German na. China on March 6, 1898, and of all other tionals, while it became liable to sequestra. arrangements relative to the province of tion, it did not in law become liable to con. Shantung. fiscation, although private Germany property All German rights in the Tsingtao- in concessions which China might consider Tsinanfu railway, including its branch lines, prejudicial to public policy mght be can- together with its subsidiary property of celed, with or without compensation as the all kinds, stations, shops, fixed and rolling case may be. stock, mines, plant and material for the No distinction appears to be made, how- exploitation of the mines, are and remain ever, in the attempt to grant all property to acquired by Japan, together with all rights Japan, although the phraseology is charac. and privileges attaching thereto. teristically Japanesque. The German state submarine cables from Article 157. Movable Tsingtao to Shanghai and from Tsingtao to and immovable prop- Chefoo, with all the rights, privileges erty of the German state, as well as all and rights which properties attached thereto, are similiarly Germany might claim, are ac- acquired by Japan, free quired by Japan free and clear of all and clear of all charges charges and encumbrances. and incumbrances. It will be observed This enemy state property being within first that with respect the to China, one of the restored sovereign jurisdiction of China, Allied and Associated it is for Powers, the doctrine that China alone to say whether she will the supervention of exercise a state of war automatically her war right to confiscate it. No abrogates all third state treaties and agreements is not applied. can possibly acquire legal title to On the contrary, it, save through China's previous seizure or the German lease on Kiao- approval. chow, together with privileges and conces- sions in Shantung, are held to be so far con- Article 158. Germany will hand tinuing over to as to be capable of transfer by Ger- Japan within three months all records, reg-

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

isters, archives, deeds and documents of bid the construction by Germany of sub- every kind, and will give particulars of all marines, provide for the sweeping up of treaties, arrangements or agreements relat- mines, fix the naval personnel, limiting it ing to rights, title and privileges in Shan- to voluntary engagements for long periods, tung. and regulate wireless. If an international court of arbitral justice It will be observed that no obligation has could take cognizance of this provision it been assumed by the Allied and Associated could find no legal ground upon which to Powers to forego the building of submarines. compel performance by Germany for the rea- On the contrary, the submarine occupies a sons set out (supra, Comment opposite Arti- conspicuous place on all the new naval pro. cle 156). It is a pure arrangement of force grams. in contempt of law. If a court of arbitral justice is to be set up SECTION III.-AIR CLAUSES. by the League of Nations it is pertinent to Articles 198-202. These Clauses forbid ask whether the Allied and Associated Powers Germany to possess military or naval air would consent to a review of this transaction forces, provide for the demobilization of and to abide by an award in conformity with existing forces, admit freedom or passage the law? to Allied and Associated aircraft, and Part V. MILITARY, NAVAL AND AIR compel the surrender of all aircraft and parts thereof by Germany. CLAUSES, SECTION I.-MILITARY CLAUSES. SECTION IV.-INTER-ALLIED COMMIS- SIONS OF CONTROL Chapter 1. Articles 159-163. These Clauses seek to re- Articles 203-210. Inter-Allied Commissions duce Germany's military forces to fixed of Control shall be appointed by the Prin- limits, cipal Allied and Associated Powers to en- force all the provisions of the preceding Chapter I. three sections. They may establish them- Articles 164-172. These Clauses seek to selves at the seat of the German govern- establish equipment limits and exclude im- ment and must receive every facility in portations. They prohibit the manufacture their missions. Their orders shall be car- of poisonous gases to Germany while de- ried out at Germany's expense and the up- manding that Germany reveal to the Prin- keep and cost of such Commissions shall cipal Allied and Associated Powers all be borne by Germany. formulae with respect to her manufacture of such gases and explosives. SECTION V.--GENERAL ARTICLES. Article 211. Germany must within three Chapter II1.-RECRUITING AND MILITARY months conform her laws to the preceding TRAINING. sections. Articles 173-179. These Clauses prohibit Part Vl. PRISONERS OF WAR AND universal military service in Germany and GRAVES. place restrictions on training calculated to ensure the maxima in military forces pre- SECTION I.-PRISONERS OF WAR. viously referred to. that although Germany Articles 214-216. These Articles provide It may be remarked for repatriation of prisoners of war as soon is forbidden to have universal military service, the peace, including Ger- Associated Powers, in- as possible after most of the Allied and who were habitually resi- States, have adopted it in man nationals cluding the United dent in Allied or Associated countries. their military programs. By Articles 3 and 18 of the Armistice of Chapter IV.-FORTIFICATIONS. November 11, 1918, immediate repatriation civilians, in- for de- was stipulated for all interned Article 180. This Clause provides cluding persons under trial or convicted, and certain Ger- struction and disarmament of hostages, as well as inhabitants of occupied man fortresses. territories, who were nationals of Allied or SECTION I1.-NAVAL CLAUSES. Associated governments. There was no recl- procity. Articles 181-197. These Clauses fix the number and type of vessels Germany may Article 217. Germany shall bear the whole have, forbid the building of others, for- cost of repatriation.

Washington University Open Scholarship ST. LOUIS LAW REVIEW

for IMe PURPOWe Of "lykU3_ reering Two emponw is usuefy ime ded In de CUFr o r erctilmsem, dd d@&m1 &&eoa ofuenewe'aute adis ee. over smid graves. a ~~ ~ ~ ~~Ltd- Xi-oU&eum.(SoA"W Furthermore, they agree so 6ed, as far Torat of Ferteinouth, IMS; a" Article 224, e requirement of public health anew. ev. 4y fcity foriva affet to requeot that he odie soldiers *ad sin Articles 218-219. i tuwonre of war and in- may be transferred to their ewa censtry. Semed civilian . awaitig dispeal or under- It WE be Observed tha Aled sId Ame. gelg~se~ntenc or ease. against pun.-shall be repatriated despite that fact, ate gmrn oe Nalone e ped awaiting disposal or under men- reght" bt thoe ewdie f26 Graves of er dead. on for common law rimes may be to di The Cairns. gevernmentamlym denied tshee tIrhilft with respect to her dead. Tim "a W TMe binWa lr eal MpRNSMe, is ha entitled to expeet me Mmindy sued ansodmm with practad gnerot ata I& deal g I a smbjoet of snob peaUle sanctity. Article 220. The Allied and A1eociated o- emamnte reserve the right to make.rep.. Article 226. Graves of prsoners of war and triation of German nationals conditional civilian s hll e maintained as provided upon the nmediate release of any Allied in Article 225. and each government shall or Associated nationals in Germany. furnish A ether with all ouation with respect to same. Article 221. Germany undertakes to give every facility to prisoners Commissions to Part VIr PENALTIES. facilitate inqUiries concerning Missing priS- oners and to punish any German nationals Article 227. The Allied and Associated who may have Concealed the presence of Powers poicl arraign Wtlliam H. of any Allied or Associated prisoners or who ohenollern, former Gderman emperor have neglected to reveal the presence of for a supreme elfena. against internatima such prisoners. moralit and the sanctity of treatie A special tribunal will be constituted Article 223. Germany undertakes to res1or to try the accused, thereby aseurinag him without delay all articles, money, securities the guarantees essential to the right of d0. and documents belonging to ationa*l* of fern. It will be composed of five ages, Allied and Associated governments which one appointed by each of the fposed hae been retained by Germany. powers, namely: the Uited States of Aer- It m he obiersed that th& oligato is ica. Great Britain. France. Italy ad Japan. not set ot ns recirocal yet kt is a settled in its decision the tribunal wi beguid e prinewpe of Ohe laws of war that the priuat by the highest motives ojx international pol- preeryefpeeenraof wMar rea AD m ~& to vindicating the solmn prpMry and must bo reetere, (Spaigh, obia-tionst, with a viewof international undertakinge pp. 21 ; ArlgAm Le Guam ruse-J&P- and the valdty Of international moIrality. nalee, V. III, a.) It will be its duty to fLx the punihment Is it concevable that the Allied and Asso- which it considers should be Imposed. ciaed geverneats wish to reesm' the righ Hoewevar black the Wnquity of the fer to set aside te themseves the binding Ceim. eumperor I under the moral law, hie fom *I push an enlghteemd ruo of war offenes are inet crime n INeWne to he sye law? Are so exceptions whatever mof Jrlauurudaoeo with thsecp I amad. in the repuiatin of the principle of thtVit can Se preod-sind Itpo=bl inrvabillty of private property? earn he-that the forme emperer is the an. Aitele 224. Repayment of sum. due for themr of any orders direetin the Vielation of amiteane of prisoner is reciprocally the laws of eivilled warfare, be I.is~ waived. before the nMilty htrumal of sanw suffIcn threuh the eaeslagf GM SECTION IL--GRAVES. ordes. I& that nepe hP aat pe Article 225. The Allied and Associated goy- to be U06eeieable. ie wa ! W prWWItr emnments and Germany engae to respoct seaeIaddi to a ruler and maintain ors bae Is net arraigned on the charge of bure in their respective terrtoris They rspsil Wauto of vIoldati of greto ecguer any commission appont- the kw&of War; he k rage "for a so. ed by an A or Asociated government Pr. offews aeua inarmlem-orall

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE and the sanctity of treaties." There is no Article 228. Germany recognizes the right such offense in any penal code known to of the Allied and Associated governments man, and it is the most elemental principle to bring before military tribunals persons of criminal jurisprudence that no one can be accused of violations of the laws of war. punished for acts which, when committed, Germany will hand over all persons who did not constitute a crime. We see this prin- are specified. ciple expressly embodied in our constitutional The procedure here indicated appears fully system in the prohibition against the enact- to conform to the legal requirements. There mant by Congress of an ex post facto law. is no question of the jurisdiction of military The Society of Nations may by agreement tribunals over crimes against the laws of war. establish for the future a system of interna- In all sentences of death, however, it would tional criminal law, including as crimes, of- eem necessary that some reviewing authority, fenses against international morality and the analogous to the Commander-in-Chief, exist. faith of treaties; they may institute a court (Spaight, pp. 461-462.) and confer jurisdiction as to the future; but This is one of the most wholesome of all to set up a court and assume to create crimes the provisions in the Treaty of Peace. It is out of past acts condemned by no system of essentially calculated to vindicate that great laws is to do violence to the basic principles branch of the law of nations comprised with- of jurisprudence. in the laws of war. It will give an added That the Allied and Associated govern- sanction of the highest value to that law. No ments can, as a precautionary measure of belligerent in the future will care to embark self-defense, place the former German em. upon a course of deliberate disregard of the poror in a position where he can no longer laws of civilized warfare with such a deter- menace their safety goes without saying. rent example before its eyes. and Associated Powers will The Allied Article 229. Persons guilty of criminal acts address a request to the government of the of one of the Allied surrender to them of against the nationals Netherlands for the and Associated Powers will be brought be- the ex-Emperor in order that he may be of that power. put on trial. fore the military tribunals Persons guilty of criminal acts against Such offenses as the former German em- the nationals of more than one of the Al- peror is guilty of are essentially political in lied and Associated Powers will be brought their character, the principal offense being before military tribunals composed of mem- the initiaton of a war of aggresson against bers of the Powers concerned. The ac- Europe. cused shall be entitled to have his own It is an elemental principle of the law of counsel. nations, embodied in municipal systems and shall be While mixed military tribunals are unusu- in treaties universally, that no state no valid objection to their offenders who al, there appears bound to deliver up political use in the cases indicated. have filed their territories. The State in been found may deliver The rights of the accused are adequately which asylum has the that protected by the provision permitting up such fugitive, but it is wholly for ehoosing of counsel. state to decide. There is this to be said with respect to Article 230. The German government will the rights of the Allied and Associated gov- furnish all documents considered necessary ernments in relation to the ex.Emperor: that to the discovery of offenders and the just if his situation in Holland constitutes a men- appreciation of responsibility. ace to the Allied and Associated governments of sufficient gravity they may invoke the Part VIII. REPARATION. that rights of self-preservation in eliminating SECTION I.-GENERAL PROVISIONS. menace. And under cases of extreme neces. sity the vindication of this right may allow- Articles 231-244, together with Annexes 1-4. ably involve what would ordinarily amount These Articles, affirming Germany's re- to an infraction of the law of nations. (Hall, sponsibility for causing all the loss and 268; 1 Westlake, 302.) damage suffered by Allied and Associated In other words, assuming the necessity to governments and their nationals, and insti- exist, the Allied and Associated governments tuting means, including a Reparation Com- might be justified even in the use of force mission, through which restitution and to recover the person and render the ex- compensation are to be made, have been Emperor harmless. (Hershey, pp. 144-146; discussed in part. (Infra, opposite Article yet see Queen vs. Dudley et al., 14 Q. B. D., 63, together with Annex I, par. I-10.) 273.) It is to be noted (Annex II, 11) that the

Washington University Open Scholarship ST. LOUIS LAW REVIEW

Reparation Commission "shall not be bound of the unlimited right of the victor obtaining by any particular code or rules of law" or through the Middle Ages. rules of evidence. It must necessarily be As the laws of war permit of certain de- freed from any such obligation if it is to struction of property, so they allow acts of carry out certain terms of the treaty. violence against the persons of civilians un- der certain circumstances, Article 232, Germany yet no notice is pledges complete res- taken of these distinctions toration of Belgium, and, in addition, to in the provisions looking to the compensation of civilians make reimbursement of all sums borrowed of by Belgium of the Allied the Allied and Associated governments in all and Associated cases of governments up to November injury and damage (see supra, op- 11, 1918, as posite Article a consequence of the violation of the 63, par. 2). Civilians (non- Treaty of Neutralization of 1839. combatants) have certain rights and duties arising in times of belligerency, and their im- It may fairly be contended that the exac- munity from intentional injury is predicated tion of these conditions rests so far in a upon the performance of those duties. Among legal justification as to take them out of the those duties is abstention from all war-like category of indemnity. (See Comment op- acts. A civilian engaging in war-like con- posite Article 63.) Germany, being solemn- duct is a war criminal. Many of such per- ly bound to respect the neutrality of Belgium, sons deserve the affectionate remembrance of is properly denied the benefits that might ac- their own countries, but their punishment is crue to a belligerent not so- bound and none the less the lawful right of the enemy. clothed with the rights of war in their full (Spaight, 335 et seq.) force. Hence, it may be argued, that all If it is proposed to enforce reparation in destruction wrought, including that of the behalf of civilians of this class, described in Allied and Associated governments in repell- law was unlawful belligerents, as well as in ing Germany, all requisitions, contributions behalf of those suffering from acts in ex- and fines imposed, and all other acts preju. cess of the awful exercise of power, the dicial to Belgium, must be repaired by Ger- whole benign system of principles relating many. to combatAnt sand non-combatants and de- fining their rights and duties is confounded. No warrant exists, however, for the plac- It does not constitute progress; it does con- ing of the other Allied and Associated gov- stitute reaction. (See Spaight, Chapter 11I, ernments in the category with Belgium. With pp. 34-72.) respect to them Germany was legally at war, and as a belligerent she possessed ipso facto Annex Ill. the right to enter upon and carry out de- (I) Germany recognizes the right of struction having a military object (see supra, the Allied and Associated Powers to re- opposite Article 63, par. 9); she possessed placement, ton for ton, and class for class, the war rights to levy requisitions, contribu- of all merchant ships and fishing boats tions and fines (see supra, opposite Article lost or damaged owing to the war. 63, par. 10). Germany will hand over all merchant Only where Germany exceeded the limits ships, public and private, which are of of these rights--and those instances were 1600 tons and upward; one-half of all numberless-does a legal justification for the ships between 1000 and 1600 tons; one- exaction of reparation exist. (Spaight, 462- quarter of nll steam trawlers and one- 463; 11 Oppenheim, pp. 319-321.) quarter of all fishing boats. To determine the instances and degree of The right to capture and destroy an ene- responsibility of Germany for violations of my's merchant ships, under certain limita- the laws of war would require inquiry into tions, including a general obligation to pro- the facts-unquestionably a long and tedious vide for the safety of passengers and crew, process---and an award in each case. The is a setted one under the laws of maritime alternative of agreement upon lump sums warfare. (11 Oppenheim, 242-245; i West- covering estimated unlawful damage and the lake, 309-312.) like would not have been open tQ serious These limitations include a summons or objection. Either of these courses would warning as a condition precedent to any re- have tended to establish more firmly and sort to force, a qualification constantly and promote respect for law. In ignoring these deliberately violated by Germany in her sub- settled principles, defining war rights and du- marine warfare. ties as to persons and property, the Allied In such instances, it may be said generally, and Associated governments wipe out the the destruction was unlawful and involves whole progressive development of the law liability to make compensation. But no dis- and throw the world back upon the doctrine tinction is made, so far as replacement is con-

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE corned, with respect to those vessels lawfully Annex IV. warned and sunk during resistance or flight (1), (2), (3), (4), (5). These para- and those prizes destroyed at sea under law- graphs provide for the immediate delivery ful conditions. So far as the latter category by Germany to the Allied and Associated is concerned, replacement can be viewed only Powers, through the Reparation Commis- as indemnity; not as reparation. sion, of animals, machinery, tools and like of fishing boats of the articles which have been seized, consumed As to replacement and Allied and Associated governments, the law or destroyed by Germany in Allied coast-fishing vessels alone as ex- Associated countries, lists of such articles recognizes Associ- empted from capture and destruction, and desired to be filed by Allied and Machinery, equipment, then only on condition of their innocent em- ated governments. is well known that the fishing tools and the like are to be demanded not ployment. It quan- fleets of all the maritime states in the Great in excess of thirty per cent of the any one establish- War were very largely used in mine-planting tity of such articles in may be and mine-sweeping, under which circum- ment or undertaking. Services stances no immunity could attach to them required toward repairing damage in lieu under the law. (Hall, Int. Law, 6th ed., pp. of physical restoration. 444-445; Pacquette Habana, 195, U. S. 677.) As to animals for food or transport, they be taken under the war right in such cases must may rightfully To enforce replacement requistion, a receipt being given. This rather than of necessarily constitute indemnity, receipt does not imply an obligation on the reparation for wrong done. part of the giver to redeem it. (Holland, As to the private property in ships to be No. I; Bordwell, 107, 318.) Yet it is not handed over, see Comment opposite Article unusual in practice that the giver has been 74. compelled to redeem it if he is vanquished. extent to which the principle of claims against That is the (8) Germany waives all of private property is satisfied. governments in re- inviolability Allied and Associated (See supra, opposite Article 63, pars. 8 and spect of the detention, employment, loss or of any German ships. 10.) damage As to machinery, equipment, tools and the German vessels found in the territorial like, these may also be seized under requisi- waters of most of the states at war with tino. They may be destroyed as a part of Germany were taken over by such states un- some military design to overcome the hostile der a right to use them, though with an im- army, under the authority of the laws of war, plied obligation to restore them at the peace involving no liability to make compensation. and make compensation. They may not be Liability to make compensation appears to be confiscated. (See Report of American Dele- recognized as to certain classes of private gation to Hague Conference, 1907, cited property taken over by an enemy force for supra, opposite Article 133.) So far, there- use. (Juragua Iron Co. vs. U. S., Sup. Ct., fore, as the taking over of such vessels other- Feb. 23, 1909.) wise innocent is concerned, it must be con- All of these distinctions are ignored in sidered as indemnity, and not as reparation. the Articles opposite. One of the results is a repudiation of the SECTION II.-SPECIAL PROVISIONS. age long policy of the United States looking to the approximation of the laws of maritime Articles 245-246. These Clauses provide warfare to the laws of land warfare in the for restitution by Germany of trophies, matter of immunity of private property. (7 works of art, etc., carried away from Moore's Digest, pp. 460, 461, 462, 467; France in 1870-1871; the restitution of the McKinley's annual message, December 5, original Koran of the Caliph Othman, 1898; Roosevelt's annual message, Decem- taken from Medina by Turkish authorities, ber 7, 1903.) and other articles and restitution to the (9) Germany waives all claims as to University of Louvain of manuscripts, in- vessels or cargoes sunk by the Allied and canabula, books and other objects in num- Associated Powers. ber and value corresponding to those de- stroyed. A victorious belligerent may be justified in practice in declining to have the legality of This recalls the enforced restitution of its actions inquired into by the vanquished, works of art seized by Napoleon I in Italy but such a course can not contribute to upon the entrance into France of the Grand clarification and a firmer establishment of Allies in 1815. It is unquestionably settled the law. law that property of this character is inviol-

Washington University Open Scholarship ST. LOUIS LAW REVIEW

able. Yet the museums of Europe still hold German system of taxation with a view quantities of precious works of the clan of to seeing that it is fully as heavy propor- specially protected property representing the tionately as that of any power represented spoils of war. on the Commission. Under the provisions of Part VIII a In order to facilitate the restoration of Reparation Commission is instituted, to be economic life in Allied and Associated composed of one delegate each of the countries, Germany undertakes to issue United States, Great Britain, France and forthwith 60,000,000,000 marks gold bearer Italy, with a delegate from Japan, Belgium bonds and to deliver forthwith a or the Serb-Croat-Slovene state sitting un- covering undertaking in writing to issue a der specified conditions as the fifth mem- further installment of 40,000,000,000 ber. marks gold bearer bonds of various dates To this Commission is confided the pow- and rates of interest largely in the con- er to enforce the various stipulations for trol of the Commission. reparation and indemnity. The Commis- In case of any voluntary default by Germany sion may fix as a first installment (wheth- the Allied and Associated gov- ernments may take any action they er in gold, commodities, ships, securities deem or otherwise) the equivalent of 20,000,- necessary, Germany agreeing not to regard 000,000 gold marks, nearly $5,000,000,- any such measures as acts of war. When all the amounts 000. The findings of the Commission as due from Germany and to the total sums due on account of dam- her allies or the decisions of the Com- age shall be concluded and notified to mission have been discharged the Commis- Germany on or before May 1, 1921. The sion shall be dissolved. Commission shall thereafter consider the In view of the wide latitude of control of resources and capacity of Germany to German internal affairs placed in the hands pay. of the Commission, it is difficult to escape Germany further agrees to direct her the conclusion that for an indefinite period econonic resources to reparation relating at least Germany will cease to he a fully to merchant shipping, to physical restora- sovereign nation. Particularly is this indi- tion, to coal and derivatives of coal, and cated in the undertaking of Germany to to dyestuffs and other chemical products, pass, issue and maintain any legislation, or- to be credited to the reparation account. ders and decrees which may be notified to In addition to the total sum fixed, Ger- her as necessary to give effect to the treaty. many shall make restitution in cash of cash taken -away, seized or sequestered and PART IX.-FINANCIAL CLAUSES. shall make restitution of animals, objects Article 248. It is declared the cost of repa- of every nature and securities taken away, ration to be a first charge "upon" all the seized or sequestered. assets and revenues of the German Empire Germany agrees irrevocably to the pos- and its constituent states." session and exercise by the Commission Article 249. Germany shall pay the total of the power and authority set out in the cost of occupation by Allied and Associat- treaty and Germany undertakes to pass, ed armies, including the keep of men and issue and maintain in force any legislation, beasts, lodging, pay and allowances, and orders and decrees that may be necessary the cost of requisitions resorted to by the to give complete effect to the treaty provi- armies of occupation. sions. The Commission may appoint all neces- See Comment on Requisitions opposite Ar- sary officers, agents and employes required ticles 428-432. and may delegate authority to such offi- Article 254. Where any payment is to be cers. All its proceedings shall be secret made on account of the assumption of a unless it should decide otherwise for spe. portion of the German debt chargeable to ciai reasons. Germany may present argu- ceded territory, it shall be made to the ments as to her ability to pay. The Com- Reparation Commission and not to Ger- mission shall not be bound by any partic- many. ular system or rules of law, but shall be guided by justice, equity and good faith. Article 256. Powers to which German ter- The Commission may determine that ritory is ceded shall acquire all property Germany shall cover by way of guarantee and possessions situated therein belonging by an equivalent issue of bonds any to the German empire, to German states, amount of proved claims not paid in gold, and to the former emperor and other royal ships or otherwise. It shall examine the personages. The acquiring state shall pay

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

the equivalent of the value fixed to the transfer the same to the Reparation Com- Reparation Commission for the credit of mission. Germany shall be responsible for Germany. indemnifying her nationals thus dispos- See Comment opposite Article 39. sessed and shall receive credit on the Alsace.Lorraine and territories ceded to reparation account for the value of rights Belgium are made exceptions as to the transferred. requirement of payment. It will be observed that China, one of the See Comment opposite Article 55. Associated and Allied Powers, is placed in the category of enemy countries so far as Article 257. Where German territory is contemplated projects of economic exploita- confided to a mandatory no portion of the tion are concerned. public debt will be assumed nor shall any payment be made or credit given on ac- Article 261. Germany will transfer to the count of public property taken over by Allied and Associated Powers any claims the mandatory. to payment or repayment by Austria, Hun. gary, Bulgaria or Turkey. Article 258. Germany renounces all rights See Comment opposite Article 259 as to accorded to her or her nationals by trea- Bulgaria. ties, conventions or agreements of what- soever kind, to representation upon or par- PART X.-ECONOMIC CLAUSES. ticipation in the control or administra- SECTION 1.-COMMERCIAL RELATIONS. tion of Commissions, State Banks, agen- cies, or other financial or economic or- CHAPTER I.-CUSTOMS REGULATIONS. gantzations of an international character DUTIES AND RESTRICTIONS in any Allied or Associated country or in Articles 264-270. These Articles grant ex- Austria, Hungary, Bulgaria or Turkey. ceptional and uniform privileges to Allied Thus are extinguished all of the once am- and Associated governments in the mat- bitious plans of the German empire in the ter of duties and charges on their products southeast of Europe and in Asia Minor, in- and manufactures entering Germany. cluding the projects of Berlin-to-the-Persian For a period of five years natural and Gulf. And thus all portentous obstacles in manufactured products of Alsace-Lorraine the road to India are cleared away. shall be exempt from all customs duties. It is not indicated in whose favor the re- For a period of three years Polish prod- nunciation is made. ucts shall enjoy like exemption. A simi- Article 259. Germany will deliver within lar right is reserved for Luxemburg. one month to such authority as the Prin- It can not he doubted that these provi- cipal Allied and Associated Powers may sions go far toward limiting the sovereignty designate Turkish gold deposited in the of Germany. Reichshank to secure the first issue of In the absence of reciprocity these econo- Turkish currency notes and other Turkish mic measures are in the nature of indemnity. reOld on deposit, as well as gold trans- f red by Austria-Hungary as collateral for CHAPTER I.-SHIPPING. loans. Article 271. As regards sea fishing, coast- Germany confirms her renunciation of ing trade and towage vessels of Allied and the Brest-Litovsk and Bucharest treaties Associated Powers shall enjoy most-fa- and will deliver to Roumania or to the vored-nation treatment in German terri- Allied and Associated governments all torial waters. monetary instruments, specie, securities and goods received under these treaties. This is clearly a restriction placed upon All such sums of money, securities, etc., the internal sovereignty of Germany. will be disposed of by the Principal Al- Article 272. Germany agrees that all rights lied azid Associated Powers in a manner of inspection and police shall, in the case to be determined by them. of fishing boats of the Allied Powers, be Article 260. Germany, on demand of the exercised solely by ships of those powers, Reparation Commission, will become pos- in North Sea fisheries. sessed of any rights or interests of Ger- By the International Convention of May 6, man nationals in public utilities or con- 1882, for the Regulation of the Police of the cessions operating in Russia, China, Tur- Fisheries of the North Sea, Great Britain, Bel- key, Austria, Hungary and Bulgaria, or gium, Denmark, France, Germany and Hol- in any territories of those states, and land agreed upon certain reciprocal rights

Washington University Open Scholarship ST. LOUIS LAW REVIEW

of visiting vessels of signatory states by spe- years unless continued by the Council of cial cruisers. Germany is thus ejected from the League of Nations. these arrangements. The obligations under Article 276 shall continue for five years and may be ex- CHAPTER III.-UNFAIR COMPETITION. tended for five years. Article 274. Germany undertakes to adopt Article 28 1. If the German government en- legislative and administrative measures to gages in international trade it shall not be repress exportation, manufacture, distribu- deemed to have any rights, privileges or tion or sale in its territory of all goods immunities of sovereignty in respect there bearing any marks, names, devices or de- of. scription calculated to convey a false indi- This proposition is founded upon such ele- cation of origin, type or nature of such mental principles that it seems hardly neces- goods. sary to have referred to it. CHAPTER IV.-TREATMENT OF NATION- SECTION II. TREATIES. ALS OF ALLIED AND ASSOCIATED POWERS. Article 282. There are here designated twenty-six mutilateral treaties, conven- Article 276. Germany undertakes: (a) Not tions and agreements pf an economic and to subject nationals of Allied and Asso- technical character, which, it is declared, ciated Powers to any prohibition in regard shall alone be applied as between Ger- to the exercise of occupations, professions, many and those Allied and Associated trade and industry not equally applicable Powers parties thereto. They include to all aliens; (b) Not to subject them to conventions relating to international pro- any regulation or restriction not applic- tection of cables, birds, minors, to motor- able to nationals of the most favored na- cars, railways, customs inspection, tolls, tion; (c) Not to subject their property, tonnage, measurement of vessels, collisions rights or interests to any charge or tax and salvage at sea, the metric system, not imposed on its own nationals or their pharmacopoeial firmulae for potent drugs, property. agriculture, the establishment of a concert Compare with action taken in Articles 122, pitch; for the suppression of white phos- 143, 150. phorus in the manufacture of matches, oh- scene literature, white slavery and phyl- Article 278. Germany agrees to recognize loxera; and relating to other subjects. any new nationality acquired by her na- The recital of international agreements of tionals under the laws of Allied and Asso- general concern set out as surviving the war ciated powers or by treaty, and to regard and binding Germany looks to Article 24 of them as having severed their allegiance. Part I (The Covenant of the League of Na- See Comment opposite Article 37. tions) of the Treaty, where it is declared Article 279. Germany undertakes to ap- all international bureaux shall be placed un- prove the designation of Consuls-general, der the direction of the League. Consuls, Vice Consuls and Consular Some idea of the magnitude of the pro- Agents by Allied and Associated Powers posed League's labors in fields other than and to admit them to exercise their func- those political may be obtained from this tiona in German ports and towns. Article. To what extent these conventions would be The matter of receiving a particular for- energized with a resultant conflict with inter- eign Consul (through issuing an exequatur) nal authority in the respective states is a or dismissing him (through revoking the exe- matter of opinion. It can not be doubted, quatur) is a right to be exercised wholly at however, that each would occupy A separate the pleasure of the receiving state, though department, under-a separate head, with its exequaturs are rarely revoked without cause. corps of experts and agents. It appears, however, that Germany is de- nied the right to decline to receive a desig- Articles 283-285. Further international trea- nated consular officer even though he be per- ties are designated herein which are to sona non grata. come into force conditionally, including the Postal, Telegraphic and Radio-Tele- CHAPTER V.--GENERAL ARTICLES. graphic conventions. Article 280. Obligations imposed on Ger- Article 286. The conventions of 1883 and many by Chapter I and by Articles 271 June 2, 1911, for the protection of indus- and 272 of Chapter I shall cease in five trial property; of Berne, 1886, for the

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

protection of literary and artistic work, treaties or conventions it wishes to revive and of 1908 and 1914, relating to the with Germany. same subjects, are revived, subject to ex- As to the effect of the outbreak of war on ceptions and restrictions contained in the treaties, there is a lack of agreement among treaty. the authorities as to whether certain classes By paragraph 15 of Annex I, Section IV, of treaties are merely suspended or annulled Article 297, the industrial, literary aud artis- so as to require re-negotiation. tic property of German nationals within the This much is certain: territories of Allied and Associated govern- (a) Dispositive treaties, setting up a per- meats and ceded German territories is denied manent condition of things, such as those of the protection of the conventions mentioned cession, boundary, independence, neutral- in Article 286 and is declared confiscable. ity and the like are unaffected. (Soc. for These treaties were made with the object Prop, of Gospel vs. New Haven, 8 Wheaton of the permanent protection of these classes 464, 494; Scott, Cases, 428.) of private property and can not be consid- (b) Law-making treaties to which third ered as abrogated by the supervention of powers are parties, such as the Hague, 1899 war, although their operation between sig- and 1907, Postal Union, Industrial Property, natories was necessarily suspmnd. (5 and the like remain in force, though sus- Moore, 376-377.) At the times of negotia- pended in operation as between belligerent tion of the treaties it was fully realised that signatories. (Hershey, Essentials of Pub. private property of all inds was under the Int. Law, p. 361.) protection of the law during war and that (c) Conventions entered into with a view must be considered as assumed in the indefi- to hostilities become operative. nite duration agreed on as to the continu- (d) Political treaties, such as alliance, are ane of such treaties. (See 3 Malloy, Trea- abrogated. ties, etc., Article 17%, p. 375.) (e) Treaties of commerce, navigation, etc., The action of the Allied and Associated may be treated as annulled or suspended or governments in respect of Germany is plain- continuing at the will of the belligerents, ly, therefore, a violation of the treaty. signified in the treaty of peace. (5 Moore, of The Hague 376, 377.) Article 287. The convention 1898 that to civil proce- The United States maintained in of July 17, 1905, relating class of treaties was mere- is revived, though not applicable to the last mentioned dure insistence France, Portugal and Roumania. ly suspended, but yielded to Spain's that they be considered abrogated, in accord- What, it may be asked, is the status of the ance with the Spanish decree of April 23, domn other highly important Hague Conven- 1898. tions, including the whole code of the law of In the present treaty Germany has nothing laod warfare? All except that for the pa- to say; it is for the Allied and Associated cifi settlement of international disputes ap- governments alone to revive or abrogate any per to be discarded. (See Comment op- or all of its bilateral treaties with Germany. posite Article 13.) Thus the rule of law is left even more in Article 288. Special rights and privileges doubt than before. granted to Germany by the treaty of De- Treaties and treaty provisions in confct cember 2, 1899, in Samoa shall be con- with the Treaty of Peace shall not be re- sidered terminated as of August 4, 1914. vived. This was the tripartite treaty between the All bilateral treaties not notified as re- United States, Great Britain and Germany, vived within six months shall remain abro- relieving the United States from an entang- gater. ling and vexatious joint control of the Sa- The above provisions shall apply even moan Islands and dividing them between the as between an Allied and Associated Pow- three powers. Germany received Upolu, er that was not at war with Germany.. Savaii and all other islands west of longitude Uruguay, Ecuador and Bolivia, 'who are 171 west of Greenwich. (See Introduction Allied and Associated Powers, did not declare to C. K. Davis, International Law.) war on Germany, but merely severed diplo- Reciprocal privileges of trade were grant- matic relations. To deal with them as bel- ed. (Compare this Article as to date of ter- ligerents with respect to their treaty rela- mination of Germany's privileges with Article tions is most unusual. The situation might 156.) have been met with more consistency by a Article 289. Each Allied and Associated declaration that Germany agreed to a revi- power shall notify to Germany the bilateral sion of the treaties in accordance with their

Washington University Open Scholarship ST. LOUIS LAW REVIEW

wishes and the requirements of the Treaty of SECTION IV-PROPERTY RIGHTS AND Peace. INTERESTS. Yet the conclusion of a treaty of peac with Germany on the part of these three Article 297. This Section, declaring the pur- states which have not been at war with pose of universal retention of all private Germany is even more remarkable. German property in the hands of Allied and Associated governments and else- Article 290. Germany recognizes that all where, while committing Germany to res- treaties, agreements, etc., concluded with titution and compensation in the m.tter of Austria, Hungary, Bulgaria or Turkey since private property of Allied and Associated August 1, 1914, are abrogated. nationals, has been referred to in Article 74, supra. See Comment opposite Article 291. Germany undertakes to secure Article 74. to Allied and Associated governments and nationals all privileges granted to Austria, SECTION V.-CONTRACTS, PRESCRIP- Hungary, Bulgaria or Turkey or their na- TIONS, JUDGMENTS. tions so long as such privileges are en- joyed. by the latter. Article 299. Contracts between enemies shall be considered dissolved, except in re- Article 292. Germany recognizes that all spect of a debt arising out of an act done treaties and agreements concluded with or money paid thereunder. Other excep- Russia or with Roumania are abrogated. tions are indicated. See Comment opposite Article 128. The United States, Brazil and Japan are excepted from the operation of this Ar- Article 293. Any concession, privilege or ticle. favor which any Allied or Associated Pow- er, Russia or Russian state has been forced The United States Supreme Court has re- to grant Germany or a German national peatedly held that war does not dissolve or since August 1, 1914, by reason of mili- annul contracts entered into before the war; that they are merely suspended and that a tary occupation, or otherwise, is annulled. right of suit revives with the peace. (Wil- No claims shall result from this annulment. liams vs. Paine (1887), 169 U. S. 55.) And Article 294. Germany undertakes to grant so far as resident alien enemies are con- to Allied and Associated Powers and their cerned contracts with them are wholly unaf. nationals the benefit ipso facto oE rights fected. (McVeigh vs. U. S., 11 Wall. 259.) and advantages of any kind granted to neu- It therefore became impossible to commit trals in the war, so long as the United States to a policy of dlssolution such rights of contracts as desired by the other Allied remain in force. and Associated Powers without running Through this provision will be revealed the counter to the law of the United States. price, if any, paid by Germany for the neu- The participation of Great Britain in this trality of any European state. action is likewise in contravention of long- The acquisition of such rights and privi- established British law and policy. (See 2 leges, if any exist, can hardly be justified as Westlake, p. 48; 2 Oppenhein 138.) reparation. Article 300. This deals with periods of pre- Article 295. Those of the High Contracting scription or limitation of right of action parties who have not yet signed and rati- as to contracts excepted from the general fled the Opium Convention of January 23, policy of dissolution. 1912, agree to bring the convention into force within twelve months. Ratification Article 301. As between enemies no nego- of the present treaty shall be considered tiable instrument made before the war shall ratification of the Opium convention. be deemed to have become invalid by rea- son of failure within the required time to SECTION II.-DEBTS. present it for acceptance or payment or to give notice. Article 296. This Section dealing with debts due to and from the respective nationals Article 302. Judgments given by courts of of Allied and Associated governments and Allied and Associated Powers shall he rec- Germany has been referred to in Article ognized by Germany as final. Judgments 74, supra. of German courts shall not be thus recog- See Comment opposite Article 74. nized.

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

PROVISIONS. of a Mixed Arbitral Tribunal between each ANNEX,--GENERAL of the Allied and Associated Powers on Germany on the other, The following classes of contracts are the one hand and all questions within their com- excepted from dissolution without preju- to decide petence under Sections 111, IV, V and VII, dice to the right of confiscation, referred relating to Debts, Property, Rights and In- to in Article 297: and Judg- having as their object the terests, Contracts, Prescriptions (a) Those Industrial Property. estate or personal property ments and transfer of real Arbitral Tribunals are pri- the object had passed before the The Mixed where marily an appellate body to which disputes supervention of way; be for leases arising in the "Clearing Offices" may (b) Leases and agreements taken. houses; of land and also be taken to these tri- of mortgage, pledge or Appeals may (c) Contracts bunals from judgments of German courts lien; inconsistent with the terms of the treaty; (d) Concessions concerning mines, not, however, from Courts of Allied and quarries or deposits. individuals or Associated governments. (e) Contracts between adopt such rules of procedure provinces or other They may companies and states, accordance with justice and and concessions as are in similar juridical persons, equity. by states, provinces or other jurid- granted do not deserve the appella- ical persons. These bodies from dissolution tion of "tribunals" in view of the limitations These are excepted in to the right of seizure upon their powers to decide controversies without prejudice inability is inher- provided for in Article 297. accordance with law. This and retention the negation of by recognized Exchanges for ent in the settlement which is Rules made each is empowered enemy contracts are confirmed, law. It will be observed closure of rules of procedure instead the closure of cotton 'futuresa to adopt its own including the system, together with the 31, 1914, by the Liverpool Cot- of applying on July at hand in The Hague Convention ton Association, law, ready of sale of secur- of 1907, establishing a Court of Arbitral No claim on the ground the American if the creditor acts Justice, the achievement of ity shall be admitted delegation. in good faith. The object of its establishment was to re- a person before or during the war be- If In place international settlements based on com- came liable on a negotiable instrument of a per- promise and expediency by settlements found- accordance with an undertaking the end became an enemy, ed upon judicial determinations, to son who subsequently reign of law might be shall remain liable. that the universal the latter promoted. therefore (Subsection (e) An- It appears, PROPERTY. nex 1), that at least some forms of private SECTION VII.-INDUSTRIAL and that enemy debts are to be confiscated, Conventions for the pro- party to the policy Articles 306-311. the United States is a industrial, literary and artistic Allied and Associated tection of along with the other property, mentioned in Article 286, shall it is the settled law of the Powers. Yet be re-established between the High Con- United States that they may not be. gov- tracting parties. By every nation, whatever its form of to be long Nevertheless, all acts done, or ernment, the confiscation of debts has countries Wilson, J., in done, in Allied and Associated been considered disreputable. in respect of such property of German na- Ware vs. Hylton (1796), 3 Dall. 199, 281. the right to con- tionals shall have full force and effect. The Conqueror is denied of such acts shall on the ground that No claims on account fiscate private property, be allowed. "the modern usage of na- it would violate sums due for the use of such Ger- has become law." Marshall, C. Any tions which man property shall be treated as other J., U. S. vs. Percheman, 7 Peters, 51. Bank vs. Union Bank, German property. Sea also Planters' provisions of the Article shall not Williams vs. Bruffy, 96 U. S. The 16 Wall. 483; apply to rights in industrial, literary or 176, 186-188.) artistic property which have been dealt businesses or SECTION VI-MIXED ARBITRAL with through liquidation of TRIBUNAL companies. The subject of the protection of industrial, These Articles, together property has been re- Articles 304-305. up literary and artistic with an annex, provide for the setting

Washington University Open Scholarship ST. LOUIS LAW REVIEW

ferred to in the discussion of Article 298 and ercised over territorial waters, recognizing the Annex thereto. the right of innocent passage, making require. The policy of Allied and Associated coun- ments for registry, nationality markings, logs, tries with respect to such German property, lights, signals, etc. including patents, during the war, was, with By the terms of Articles 313-320, German the exception of that in liquidation, to per- sovereignty over her aerial space is set aside, mit its use under an obligation to pay at the at least, until January 1, 1923. peace a fair compensation. The patentees PART XIl-PORTS, WATERWAYS AND and other German owners will not, however, receive such sums in view of the requirement RAILWAYS. of payment to the Reparation Commission. SECTION 1.-GENERAL PROVISIONS. SECTION VIII.-SOCIAL AND STATE IN- Articles 321-326. Germany undertakes to SURANCE IN CEDED TERRITORIES. grant freedom of transit through her ter- Article 312. Germany undertakes to trans- ritories by rail, waterway or canal, to per- fer to any Power to which German terri- sons, goods, vessels, carriages, wagons and any Allied tory is ceded and to any mandatory such -mails coming from or going to shall be sub- portion of reserves accumulated by the or Associated Power. They government or by private organizations as jected to no transit duty, delays or restric- is attributable to the carrying on of tions, and shall be entitled to national social or state insurance. treatment. These sums must be applied to the per- Goods in transit shall be exempt from formance of the obligations arising under customs and similar duties. over such insurances. No control shall be maintained transmigration traffic beyond that neces- PART XI.-AERIAL NAVIGATION. sary to insure that passengers are bona fide in transit. Articles 313-320. Aircraft of Allied and No discrimination or preference in du- Associated Powers shall have full liberty of ties, charges or prohibitions relating to im- passage and landing over and in the terri- portations or exportations from her terri- tory and territorial waters of Germany, and tories may be made. Nor may any surtax shall enjoy the same privileges as German against the ports or vessels of any Allied aircraft. or Associated Power be levied. All public aerodromes in Germany shall The transport of perishable goods shall be open to aircraft of Allied and Associat- be promptly facilitated. ed Powers. Seaports of Allied and Associated Pow- Any regulations applied by Germany to ers are entitled to all favors and reduced aircraft of Allied and Associated Powers tariffs granted on German railways or nav- shall apply equally to German aircraft. igable waterways for the benefit of Ger- As regards commercial air traffic, air- man ports or any port of another Power. craft of Allied and Associated Powers The provisions of these Articles are sub- shall enjoy most-favored-nation treatment. ject to revision by the Council of the Germany shall, require all German air- League of Nations after five years. Fail- craft flying over her territory to comply ing such revision no Allied or Associated with all the rules as to lights, signals, etc., Power can claim the benefits of these ar- laid down in the Convention relative to ticles without reciprocity after five years. aerial navigation concluded between Al- See Comment opposite Articles 264-270. lied and Associated governments. All of these .obligations remain in force SECTION 1.-NAVIGATION. until January 1, 1923, unless before that CHAPTER I.-FREEDOM OF NAVIGATION time Germany is admitted to the League of Nations or shall have been authorized Article 327. Nationals of Allied and Asso- to adhere to the Convention relative to ciated Powers and their vessels shall enjoy aerial navigation. in all German ports and inland water The convention relative to aerial naviga- routes the same treatment as German na- tion concluded by the Allied and Associated tionals, vessels and property, including Powers recognizes at the outset that every transport of goods and passengers to and state possesses complete and exclusive juris. from ports and places in Germany. Equal- diction in the air space above its territory ity of treatment shall extend to all facili- and territorial waters, and it deals with the ties and charges. subject by analogy to customary control ex. Should Germany extend preferential

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

treatment to one Allied or Associated (Martens, N. R. 11, pp. 379, 427; Wheaton's Power it shall automatically extend to all. History, 282-284, 552.) These privileges shall be subject to re- Previous to the Congress of Vienna, the vision by the Council of the League of use of great international European rivers as Nations after five years. Failing such revi- well as international straits was subject to sion, their enjoyment shall depend upon tolls levied not only for purposes of main- reciprocity. tenance of navigation, but for revenue as The exclusive right of a state to control well. (1 Moore, Sec. 134.) its coasting trade, including that in inland The principle may now be said to be set- waters, is an essential incident to its terri- tled, however, that navigation of rivers that torial supremacy. The law of nations, there- traverse more countries than one is open to fore, recognizes the right of a state to ex- all states upon equal termS, and that tolls clude foreign vessels from such navigation may not be levied for profit. (1 Westlake, and trade. (1 Oppenheim, pp. 257-258.) Ch. VIIL) This right was formerly held to apply even as between a state and its colonies. (See Article 339. Germany shall cede to Allied Wleaton, 5th ed., pp. 765-766.) and Associated Powers within three months The provisions of Article 327 constitute a after ratification a proportion of tugs and further invasion of German sovereignty dur- vessels registered in ports of river sys- ing their continuance. terms referred to in Article 331, in addi- As to the economic privileges they are in tion to those mentioned (Part VIII, Annex the nature of indemnity. Ill) and including facilities, to be deter- mined by an arbitrator or arbitrators nom- CHAPTER ll.-FREE ZONES IN PORTS. inated by the United States, due regard being paid to the needs of the parties con- Articles 328-330. These Articles provide for cerned. the maintenance of free zones in German Indemnification of private owners shall ports on Auguet 1, 1914, and the granting be a matter for Germany to deal with. of economic privileges in the same, as well See Part VI1, Annex 1I, following Articles as in others established by the treaty. 242, and Comment, supra. The duration and conditions are the It is difficult to explain upon what grounds sme as mentioned supra, Article 327. this Article is founded other than upon in- Ibid. demnity and the purpose of Allied and Asso- See Article 65. ciated Powers to consolidate their economic advantages in Europe. CHAPTER IlL-CLAUSES RELATING TO (2) Special clauses relating to the Elbe, The ELBE, THE ODER, THE NIE- the Order and the Nieman. MAN AND THE DANUBE. Articles 340-341. These Articles place the (i) GENERAL CLAUSES. Elbe and Oder under the administration Articles 331-338. The rivers mentioned in of international commissions and fix rep- the title are declared international within resentation upon the commissions. together with the lat- certain boundaries, Articles 342-345. Upon request by a ripa- eral canals and channels. rian state the League of Nations will insti- The nationals, property and flags of all tute an international Commission for the Powers shall be treated on a footing of Nieman composed of the representative perfect equality. Nevertheless German from each riparian state and three others. vessels shall not, for five years, carry pa.- Such Commissions will prepare projects sengers or goods between ports of Allied for revision of systems in force in accord- or Associated Powers without the author- ance with the General Convention referred ity of such Power. to in Article Charges shall be based only on cost of 338. (3) Special Clauses relating to the Dan- maintenance and improvement of navigable ube. aonditions. The General Convention of the Allied Articles 346-353. The European Commis- and Associated Powers relating to the sion of the Danube reassumes the powers waterways in question will become the con- it possessed before the war. Neverthe- trolling act when approved by the League less, as a provisional measure, Germany of Nations. shall not be represented thereon. Where Compare with internationalization of Rhine the competence of the old Commission ad Scheldt by Congress of Vienna, 1915. ceases an international Commission re-

Washington University Open Scholarship ST. LOUIS LAW REVIEW

ferred to in Article 331, shall direct the tions, berthing and anchorage accommo- administration, composed of two Germans, dations, or shares in German Rhine naviga- one representative of each other riparian tion companies, the amounts to be deter- state, and one representative of each non- mined by an arbitrator or arbitrators ap- riparian state represented on the old Com- pointed by the United States. mission. The same shall apply to cessions in the The mandate given Austria-Hungary by port of Rotterdam. the Treaty of Berlin of 1878 to carry out Credit shall be allowed on the repara- works at the Iron Gates is abrogated. tion account. Germany shall make restitution, repara- See Part VIII, Annex III, following Article tion and indemnities for damages inflicted 242. on the European Commission of the Dan- See Comment opposite Article 339. ube during the war. The European Danube Commission was in- Article 358. Subject to provisions in pre- stituted by the Treaty of Paris of 1856, and ceding Articles, France shall have the ex- reconstituted by the Treaty of Berlin, 1878, clusive right to power derived from Ger- and again in London in 1883. It was made man works on the river within the two independent of the territorial governments, extremes of the French frontier. A pay- its members, offices and archives enjoying in- ment of one-half the value of power taken violability. Its competence extended from from Germany shall be made by France. Ibralia downwards to the mouth of the Dan- Germany will construct no lateral canal ube. (1 Twiss, Sees. 150-152.) on the right bank of the Rhine, but recog- During the war the Commission ceased to nize the right of France to fix the limits function owing to Germany's violation of the of necessary sites and occupy lands inci- treaty. It was to all intents and purposes dent to the building and operations of wiers abolished with Germany substituted in its which France,, subject to the Central Com. stead. mission, may establish. Germany shall make it her business to CHAPTER IV.-CLAUSES RELATING TO indemnify any proprietors burdened with THE RHINE AND THE MOSELLE such servitudes. Articles 354-356. The Convention of Mann- Article 361. Germany shall construct in her heim of October 17, 1868, creating a Cen- territory the necessary portion of a deep- tral Commission of the Rhine, shall be- draught Rhine-Meuse Canal should Belgium come operative, subject to modification desire same within twenty-five years, according with the General Convention previously referred to. Article 362. Germany will not oppose the The Commission shall consist of four extension of the jurisdiction of the Cen. representatives of German riparian states, tral Rhine Commission to the Moselle, be- four of France, one of whom shall be low the Franco-Luxemburg frontier and to president, and two each of Holland, Switz- the Rhine above Basle to Lake Constance erland, Great Britain, Italy and Belgium. and to lateral canals. Certain articles of the Mannheim Conven- These provisions are plainly in contraven. tion are abrogated in the interest of free tion of the understood rights of a co-riparian navigation. state. The Rhine became free as an international river by a declaration of the Congress of CHAPTER V.-CLAUSES GIVING THE Vienna, but the enjoyment of this status was CZECHO-SLOVAK STATE THE USE long in question owing to a dispute over OF NORTHERN PORTS. phraseology concerning the rights of regu- lation confided to co-riparian powers. Articles 363-364. Germany shall lease for 99 years to the Czecho-Slovak In the settlements attempted in the present state areas treaty it is questionable whether the co-ripa- in Hamburg and Stettin, to be placed un- rian states are recognized in the administra. der the general regime of free zones. tion to the extent to which principle and Delimitation of such areas, etc., shall sustom entitle them. be under the control of a Commission con- sisting of one German, one Czecho-Slovak Article 357. Within three months from date and one British representative. of notice Germany shall cede to France These clauses are reminiscent of the oper. tugs and vessels regitered in Rhine ports, ations of the European powers in China be- from among those remaining after satis- ginning in 1898. (See 5 Moore, 471 et seq., fying previous articles, including installa- 534.)

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

SECTION III.-RAILWAYS. the Allied and Associated Powers, with the approval of the League of Nations, within CHAPTER I.-CLAUSES RELATING TO five years. INTERNATIONAL TRANSPORT. SECTION VI-CLAUSES RELATING TO Articles 365-369. Germany submits to a THE KIEL CANAL. great variety of regulations intended to extend the economic privileges of Allied Article 380-386. The Kid Canal is by and Associated governments on German these Articles placed in the category of an railways, the privileges to be revised with- international one, as to tolls, etc., though in five years by a general convention Germany's sovereignty over both banks is which will bind Germany whether she ad- recognized to the extent of permitting its heres or not. closure against states at war with Ger- Germany shall co-operate in establish- many and limiting the rights of loading ing through ticket service required by any and unloading of goods and passengers to Allied or Associated government to insure certain ports specified by Germany. communication with each other, and shall accept trains and forward them with a PART XIII.-LABOR. speed equal to her best trains. create an in- applied Articles 387 to 427, inclusive, No specil regulations shall be international body representing by Germany which will dependent to such service labor and possessing extraordinary pow- or delay it. impede ers, with the obvious object of introduc- This is a further extension of economic ing class legislation into the law of na- advantage, no reciprocity being granted. tions and of promoting the independence STOCK. and solidarity of internationally organized CHAPTER I.-ROLUNG labor. Article 370. Germany will adapt her rail- A satisfactory discussion of this part of the way systems to the physical requirements Treaty is not permitted within the limits of of Allied and Associated Powers, the roll- this work. It may be dismissed with the ing stock of the latter to enjoy equal statement that it attempts to create an inter- treatment with the German, as regards national imperium in imperio based on the movement, upkeep and repairs. unnatural and illogical distinction of class. CHAPTER II.-CESSION OF RAILWAY PART XIV.--GUARANTEES. LINES. SECTION I.-WESTERN EUROPE. Article 371. Railways in ceded German pos- sessions shall be handed over in good con- Article 428. As a guarantee for the execu- dition and with complete rolling stock; as tion of the present treaty, the German to lines having no rolling stock commis- territory situated to the west of the Rhine, sions shall fix the quantity to be supplied. together with the bridgeheads, will be oc- cupied by Allied and Associated troops CHAPTER IV.-PROVISIONS RELATING for a period of fifteen years from the com- TO CERTAIN RAILWAY LINES. ing into force of the present treaty. Articles 372-374. Provision is here made Article 429. If the conditions of the pres- for the regulation of railway lines at fron- ent treaty are faithfully carried out by tiers; for the construction of new lines and Germany the occupation referred to in Ar- the conditional denunciation of the St. ticle 428 will be successively restricted as Gothard railway convention. follows: years there will AND REVISION (1) At the end of five SECTION IV.-DISPUTES be evacuated the bridgehead of Cologne OF PERMANENT CLAUSES. and territories north of a line running the League of Nations along the Ruhr, etc. Articles 376-377. To will is confided settlement of disputes under (2) At the end of ten years there these Articles, together with a right to re- be evacuated the bridgehead of Coblenz, vise the same at any time. and territory north of a line to be drawn from the intersection between the frontiers SECTION V.-SPECIAL PROVISION. of Belgium, Germany and Holland, run- undertakes to adhere ning about 4 kilometers south of Aix-la- Article 379. Germany etc. conventions relating to transit, Chapelle, to any (3) At the end of fifteen years there waterways, ports or railways concluded by

Washington University Open Scholarship ST. LOUIS LAW REVIEW

will be evacuated the bridgeheads of Mainz been imposed, and in addition France was and Kehl and the remainder of German required to pay 50,000,000 francs annually territory. toward maintenance of the occupying forces. If at that date the guarantees against Civil and judicial administration, collection unprovoked aggression by Germany are not of taxes, customs and police, were to con- considered sufficient by the Allied and As- tinue in the occupied area as before. Evac. sociated governments, the evacuation of oc- uation did not hinge on the payment of the cupying troops may be delayed to the ex- indemnity, but primarily upon the restora. tent regarded necessary to obtain the re- tion of internal tranquility and the suppres. quired guarantees. sion of revolutionary agitation which the Article 430. If during occupation or after Grand Allies feared might spread to their the expiration of fifteen years the Repara- own countries. (A. Sorel, Histoire, Paris, tion Commission finds that Germany re- 1875, Vol. II, pp. 355-356.) In fact the in- fuses to observe the whole or part of her demnity had not been paid at the time of obligations under the treaty, the whole or evacuation. part of the areas specified will be re-occu- An instance bearing closer analogy to the pied immediately by the Allied and Asso- present is found in the Treaty of Franklort ciated Powers. of 1871, by which an indemnity of 5,000,- 000,000 francs was exacted, with payment Article 43 1. If before the expiration of fif- demanded as follows: 500,000,000 in 30 days; teen years Germany complies with all the 1,000,000,000 undertakings resulting within one year; 500,000,000 from the treaty, the on May 1, 1872; occupying forces will 3,000,000,000 on March 2, be withdrawn imme- 1874, with interest at 5 per diately. cent. Meantime German troops were to remain in occupa. Article 432. All matters pertaining to oc- tion of French territory at the expense of cupation not provided for in the treaty France, with provision for evacuation only as shall be regulated by subsequent agree- the installments were paid. The occupying ments which Germany undertakes to ob- forces were reduced successively from 500,. serve. 000 men and 150,000 horses to 150,000 men The Articles respecting guarantees can and 50,000 horses, to 120,000 men and 40,- best be dealth with in their entirety. 000 horses, to 80,000 men and 30,000 horses. Many means have been resorted to in the The period of occupation was shortened by past for compelling performance of the con- the rapidity with which France was enabled ditions of peace imposed. They have in- to discharge the indemnity. eluded placing the engagements under the There are other instances of occupation aegis of religion, with the kissing of the as a guarantee as in the Chino-Japanese war cross and the administration of the oath of 1895, where China, by the terms of the (Bonfils, Paris, 1912, p. 526); the giving and Treaty of Shimoneski, was required to pay receiving of hostages, as when Henry VIII 200,000,000 taels, and the Greco-Turkish gave to Francis I, in 1527, two archbishops, war, where by the Treaty of Constantinople eleven bishops, eight nobles as well as thir- of 1897 Greece was required to pay $20,- teen towns; the giving of a pledge as when 000,000. the diamonds of the crown of Poland were The present treaty requires Germany to given to Prussia; guarantees by third states, pay as "reparation" certain definite sums as that in the treaty of neutralization of Bel- and others to be computed by a Reparation gium.of April 19, 1839, relating to the sep- Commission upon inquiry into her capacity aration of the latter from Holland. (Termt- to pay. As has been pointed out, while nation of War, etc., Phillipson, pp. 207, et some of these demands are designated as seq.) Military occupation of a part of- a "reparation" the term "indemnity" is more state's territory has been the most usual fitting. mode during the last century where guaran- Reparation connotes amends for legal tees were required. wrongs; indemnity is founded in the mere Thus by the Treaty of Paris, November 20, exercise of power in excess of reparation 1815, after the final overthrow of Napoleon, with the object of sell-enrichment. Great Britain, Austria, Prussia and Russia It will be observed that reservations occur stipulated for the occupation of positions in the Articles of guarantee whereby Allied along the French frontier with a force of and Associated troops may re-occupy Ger- 150,000 men, holding twenty fortresses. The man territory in any case of default within maximum period of occupation was limited the fifteen years or afterwards, running into to five years, and might be terminated earlier. an indefinite future with the obligations im- An indemnity of 700,000,000 francs had posed upon Germany.

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1 INTERNATIONAL LAW APPLIED TO THE TREATY OF PEACE

Practically this reservation is of little value 20 of that year, are recognized by all of without the League of Nations or some such the Allied and Associated Powers. promise of permanence to the concert of A part of Savoy was neutralized by the Allied and Associated Powers. History at- Congress of Vienna in 1815, in connection tests that such coalitions are of brief dura- with the neutralization of Switzerland, and tion, that the interests even of allies conflict certain free zones were established in which too frequently and too vitally in the vicissa- there should be exemption from transit dues. tudes of even a few years to permit of ex- In 1860 France acquired Savoy from Sardinia, pectation of permanency. Wherefore, and subject to these servitudes. with the further object of recementiag ami. It appears that Switzerland is willing to cale relations as quickly as possible, prac- trade, submitting to economic readjustments, tical statesmanship has been on the side of if the United States can be induced to join terms of peace that might be met as quickly in the guarantee of her neutrality. This as possible with safety guarantee does not extend to the independ- In some respects the present treaty is more ence of Switzerland, but it does include the severe than the Treaty of Frankfort of 1871, integrity and inviolability of Swiss territory. as, for example, in relation to occupation. It is a collective guarantee on the part of It permnts a greater degree of interference Great Britain, Austria, France, Portugal, with the civil administration and authorizes Prussia, Spain and Russia. the levying of requisitions upon the inhabl- The Allied and Associated Powers refer tants, forbidden to Germany by Article VIII to this guarantee, in Article 435, as one of the treaty of 1871. "constituting international obligations for the maintenance of peace." This would appear SECTION I.-EASTERN EUROPE. to relate forward to Article 21 of the League covenant as a "regional under- provi- of Nations Article 433. As a guarantee of the standing" the validity of which is not affected sions abrogating the treaty of Brest Lit- by the covenant. ovik and all other agreements with the Maximalist government of Russia, and to in the Baltic Provinces and Article 436. The High Contracting parties insure peace they have all German troops at present in declare and place on record that Lithuania, taken note of the Treaty of July 17, 1918, territories shall return within Ger- such and the Prince of Monaco, many's frontiers as soon as the Principal between France Allied and Associated governments think defining their relations. the moment suitable. These troops shall abstain from requistitiont and shall in no Article 438. The Allied and Associated way interfere with measures for national Powers except from the general policy of defense adopted by the provisional govern- retention and liquidation of all German ments of Esthonia, Latvia and Lithuania. property, public and private, outside of No other German troops shall be sent to Germany, the property of Christian reli- these territories. gious missions of German societies and persons. Such property will be handed PART XV.-MISCELLANEOUS PROVI- over to boards of trustees appointed by SIONS. the governments concerned. Germany waives all claims relating to Article 434. Germany undertakes to recog- this subject. nize the full force of treaties of peace and additional conventions of the Allied and This relaxation.of the policy of universal Associated Powers with Germany's allies, confiscation of German property appears to and to recognize all disposition of terri- be an afterthought, a concession to argu. tories and the establishment of new states. ments of German plenipotentiaries which could not in conscience be withheld. Article 435, with Annexes I and II. These Clauses, incorporating verbatim memoires Article 439. Germany undertakes to put of France and Switzerland, relate to a forward no pecuniary claim against any change in the economic and political sit- Allied or Associated Power, including uation of a portion of Savoy and the Gex those not at war with her, on account of district, established by the Congress of events which occurred at any time before Vienna in 1815. Switzerland is willing, the coming into force of the present treaty. apparently, to concede economic readjust- pecuniary claims which Germany ments, provided the guarantees of neutral- Thus all against Allied or Associated ity given in the treaties of 18 15, and par- might prefer into oblivion. ticularly by the Declaration of November Powers are swept

Washington University Open Scholarship 198 ST. LOUIS LAW REVIEW

Article 440. Germany accepts and recog- has ever contemplated a re-opening of cases nizes as binding all decrees and orders of where a judicial determination has been ar- Allied and Associated Powers concerning rived at. It was accepted that such deter- German ships and goods and the payment mination once pronounced forever settled of costs made by their prize courts and the property rights in question. undertakes to put forward no claims. The Article in question is therefore most The Allied and Associated Powers, how- unusual, but may be justified to the extent ever, reserve the right to examine all de- that it contemplates a reconsideration of the cisions and orders of German prize courts, many cases involved in the unlawful destruc. whether affecting the rights of nationals of tions of merchantmen by German subma. Allied and Associated Powers or neutral rines, and particularly any dicta attempting states. Germany undertakes to give effect to uphold them as valid. to any recommendations made after exam- The Peace Conference might very wisely ination of such cases. have taken up the whole subject of prize law, In concluding peace, the signatory powers in this connection, calling into life The pledge themselves either impliedly or express- Hague Convention of 1907 establishing an ly to regard as settled not only all of their International Court of Prize, and making pro- differences existing before the war and lead- vision for the clarification and approximation ing to it, but also all such mutual claims as of the law to juster standards; and the United may have arisen during the war in connec- States might then have realized its age long tion with the conduct of hostilities. Al. policy looking to the establishment of gen- though treaties of peace in the past have eral immunity of private property as a prin. dealt with captures where no judgment of cipte of the law of maritime warfare. (7 condemnation has been pronounced, none Moore, 461.) STERLING E. EDMUNDS.

https://openscholarship.wustl.edu/law_lawreview/vol5/iss4/1