Washington University Law Review
Volume 5 Issue 3
January 1920
International Law Applied to the Treaty of Peace
Sterling E. Edmunds St. Louis Bar Association
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Recommended Citation Sterling E. Edmunds, International Law Applied to the Treaty of Peace, 5 ST. LOUIS L. REV. 109 (1920). Available at: https://openscholarship.wustl.edu/law_lawreview/vol5/iss3/1
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 N Washington University School of Law 0 3.
INTERNATIONAL LAW Applied to The TREATY OF PEACE
Considering the terms of the Treaty of Versailles, as they relate to the actual settlements, from the standpoint of International Law, it may be affirmed that no modern, treaty of peace has done this system such violence; certainly not the cynical treaty of Vienna of 1815. For the treaty, in spite of the wickedness of its settlements, left us some progressive principles of the utmost value, notably that of the freedom of international rivers. Further, its labors in behalf of the abolition of the slave-trade were surely worthy of the world's approval. In the Treaty of Versailles, however, it is difficult to find a single pro- gressive principle established, while rule after rule of the law of nations here- tofore recognized as instituted for the protection of all states, is ignored or violated where it conflicts with the purposes of the respective Allied and Associated Powers. The validity of title founded in conquest is not abolished, as it might have been, and as the world was led to believe it would be; embodied as it was in the preliminaries to negotiation. The recognition of the secret treaties, confirming the rights of conquest, stood in the way of this benign possibility. The plebiscite, designed to prevent the handing of peoples around like flocks of the field, was not established as a principle of the law of nations, as the world was also led to expect it would be. There is only a very restricted application of it in the terms, and with respect to some territories, it is denied altogether. Neither is the right of option, designed for the protection of individuals of minorities, established. It is permitted in some instances of cession, but withheld altogether in others.
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As to the Covenant of the League of Nations, it is a reactionary institu- tion rather than a progressive one, in that it ignores the whole modern trend toward the establishment of international relations upon the foundations of law, rather than upon compromise and expediency. The Covenant of the League of Nations looks to the establishment of superintendence over inter- national relations by political as distinguished from legal methods. There is not a single reference to international law in the whole Covenant that points to any definite plan whatever for the progressive improvement and exten- sion of that law. In neither the Council of the League of Nations nor in any body to function under it, in the proposed settlement of disputes, is there any provision for the limitation of their actions within the settled principles of law. It is possible for the League of Nations to take up and carry on the achieve- ments of the last two decades, starting where the Hague Conferences left off and looking to the progressive development of law and the substitution of judicial settlements for mere arbitration based on compromise, but such an intention is nowhere manifested in the Covenant. In fact there appears to be almost a complete abandonment of the lessons of the past. Not only does the Treaty of Versailles fail to lend its great sanction to the establishment of progressive principles, but it sets aside, so far as future validity is concerned, many principles wrung only with the most laborious effort from a self-interested world. Thus the rules instituted for the protec- tion of private property on land and in territorial waters, and even that pro- tecting the piyate property of prisoners of war, are swept aside. The settled distinctions with respect to belligerent rights of destruction, and those limiting the exercise of beligerent force within lawful bounds, are confounded. The effect of the outbreak of war on treaties is thrown into greater confusion than ever by reason of inconsistent and contradictory action. In the stipulation for the trial and punishment of those German nationals found guilty of violations of the laws of civilized warfare a wholesome step forward has been taken calculated to sustain these laws in the times to come and to promote their observance. It was not necessary to the placing of the severest burdens upon Germany to have declared that Germany must accept the responsibility for causing all loss and damage to which the Allied and Associated governments and their nations have been subjected; for, as pointed out in the discussion of the article, the laws of war plainly distinguish between lawful and unlawful loss and damage. The amount of unlawful loss and damage for which Germany is responsible, in view of her utterly barbarous methods of carrying on war, probably far exceeds any sum which may ultimately be received. To have adhered to these laws in assessing reparation-as it is proposed to invoke the law in the infliction of.punishments-would have done incalculable service
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toward the effective establishment of these restraints upon warlike violence. In the failure of the Allied and Associated governments to take this course, they have established a precedent which future belligerents will fail to act upon in freeing themselves from heretofore fixed limitations upon the use of force. It must be borne in mind that one of the sources of Interna- tional Law is just such a great international congress as that assembled at Versailles; it is these gatherings mainly that make and unmake itJ principles. Such congresses are therefore under a very solemn responsibility to the future of the world. In the preface to Prof. William E. Hall's scholarly treatise on Interna. tional Law, which has run through many editions, is the following remarkable prophecy, penned in 1889: "Looking back over the last couple of centuries we see inter- national law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Pro- gressively it has taken firmer hold, it has extended its sphere of operation, it has ceased to trouble itself about trivial formalities, it has more and more dared to grapple in detail with the fundamental facts in the relations of states. The area within which it reigns beyond dispute has in that time been infinitely enlarged, and it has been greatly enlarged within the memory of living men. But it would be idle to pretend that this progress has gone on without check. In times when wars have been both long and bitter, in moments of revolutionary passion, on occasions when temptation and opportunity of selfishness on the part of neutrals have been great, men have fallen back into disregard of law and even into true lawlessness. And it would be idle also to pretend that Europe is not now in great likelihood moving towards a time at which the strength of international law will be too hardly tried. Probably in the next great war the questions which have accumulated during the last half century and more will all be given their answers at once. Some hates, moreover, will crave for satisfaction; much envy and greed will be at work; but above all, and at the bottom of all, there will be the hard sense of necessity. Whole nations will be in the field; the commerce of the world may be on the sea to win or lose; national existences will be at stake; men will be tempted to do any- thing which will shorten hostilities and tend to a decisive issue. Conduct in the next great war will certainly be hard; it is very doubtful if it will be scrupulous, whether on the part of belligerents or neurtals; and most likely the next war will be great. But there can be very little doubt that if the next war is unscrupulously waged,
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it also will be followed by a reaction towards increased stringency of law. In a community, as in an individual, passionate excess is followed by a reaction of lassitude and to some extent of con- science. On the whole the collective seems to exert itself in this way more surely than the individual conscience; and in things within the scope of international law, conscience, if it works less impulsively, can at least work more freely than in home affairs. Continuing temptation ceases with the war. At any rate it is a matter of expe- rience that times, in which international law has been seriously disregarded, have been followed by periods in which the European conscience has done penance by putting itself under straiter obli- gations than those which it before acknowledged. There is no rea- son to suppose that things will be otherwise in the future. I there- fore look forward with much misgiving to the manner in which the next great war will be waged, but with no misgiving at all as to the character of the rules which will be acknowledged ten years after its termination, by comparison with the rules now considered to exist." Only the first half of this prophecy has been fulfilled; in the pursuit of material and illogical objects by the Allied and Associated governments the opportunity to realize the latter half has been postponed to a later time. The sweeping aside of all restraints by the victors must cause something of a shock to those who read the articles of the treaty in the belief that the character of imposed peace has changed. It is to be hoped, however, that with the cooling of passions and the coming of sober second thought to the world the influence of the great inter- national jurists of the United States, of France, of Italy and of Great Britain will reassert itself toward the readjustment, restatement and restoration of the principles of International Law, as the only foundation upon which the relations of nations can rest in definite security. The following analysis is, of necessity, a mere outline, in which the articles of the treaty are paraphrased in the interest of brevity; only a work of volumes would permit of a thorough discussion of the multifarious phases of the settlement and their relation to and effect upon the law of nations:
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NOTE.-The paragraphs in light face the ctatus, asserting that they possess inter- type are the official text of the treaty; the national personality only for some purpose. paragraphs printed in black face type em- His lir.t embraced ninety-seven. None of the body the law applicable to each preceding British dominions or colonies is mentioned paragraph of the treaty. as possessing the essential attributes of an international person qualified for association in the Family of Nations. (See W. Allison THE TREATY Phillips, The Peace Settlements, 1815 and Part L The Covenant of the League of 1919. Edinburgh Review, July, 1919, as to Nations. exclusion of German states from the Holy The High Contracting Parties, in order Alliance. to promote international co-operation and Any fully self-governing state, dominion to achieve international peace and or colony may become a member if its security, admission is agreed to by two-thirds of By the acceptance of obligations not to the Assembly, provided that it shall give resort to war, effective guarantees of its sincere intention By the prescription of open, just and to observe its international obligations and honorable relations between nationq. shall accept such regulations as may be By the firm establishment . f the under- prescribed by the League as to its military st ,ndings of international law as the actual and naval forces and armaments. rule of conduct among governments, and This paragraph confounds all previously By the maintenance of justice and a with respect to Interna- obliga- accepted principles scrupulous respect for all treaty tional personality and sovereignty. If it con- tions in the dealings of organized peo- notes the assumption ipso facto by such do- ples with one another. minion or colony of a bona fide free and Covenant of this League Agree to this independent status, there is nothing incon- of Nations. sistent, but then it would cease to be a do- Not only does the Covenant fail to pro- minion or colony. Thus the British empire " any means for the "firm establishment would be broken up. of the understandings of international iw," Half and part-sovereign states says Op- but the treaty itself appears to discard many penheim (Vol. 1, pp. 529-530) may be par- vital principles of the customary as well as ties to international negotiation, but so-called of the conventional law of nations. (See Colonial states, as the Dominion of Canada, Comment opposite Articles 282-287.) can never be parties to International negotia- tion. Thus viewed from the standpoint of the be Article 1. Members of the League shall Law of Nations, the Dominion of Canada, the named in the Annex and those signatories Commonwealth of Australia, New Zealand those named (as invited) as also such of and the Union of South Africa are British without reservation by a dec- shall accede territory. (Ibid Vol. 1, p. 231.) the secretariat claration deposited with of Nations can be of the coming into No genuine League within two months founded upon such basic inequalities. These force of the treaty. inequalities appear not only in the organic Thirty-two States, dominions, and colonies structure from the outset but they appear mentioned in the Annex as signatories are with respect to the treatment of subsequently declared members (though China, one of the admitted members. seates mentioned, refused to sign) and thir- Any member may, after two years' no- teen others are named as those invited to tice of its intention so to do, withdraw in all. become members, making forty-five from the League, provided that all its in- in 1910, Oppenheim, the eminent English ternational obligations and all its obliga- successor to Westlake as Whewell Professor under this Covenant shall have been pp. tions at Cambridge, asserted (Vol. 1, Int. Law, fulfilled at the time of withdrawal. 162-64) that there were then in Europe say- enty-four states possessing international per- The effect of notice of intended withdrawal sonality and therefore members of the Fam- would be immediately to transfer to the By of Nations. He included the twenty-four League the power of inquiry into and de- German states and free towns. He cites cision upon the whole body of international twenty-one states in the Americas, one in relations of the notifying state. Nor does it Africa and one in Asia. As to China, Siam, appear that time would bar any case. Afghanistan and Thibet he denied to them In a particular case a state may, of its own
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free will, submit to an outside authority for time as occasion may require and at least decision the question of its fulfillment or once a year, and it may deal with any nonfulfillment of certain obligations, without matter within the sphere of action of the derogating in any way from its sovereignty; League or affecting the peace of the but to transfer the right of final decision over world. the whole of its foreign relations is to yield The enlargement of the Council can take the very essence of external sovereignty. place only by unanimous consent of the Such state would occupy the position of ward Council, with the approval of a majority to the outside authority. (See 1 Halleck, Ch. of the Assembly. Self-interest will always III, Sec. 1; Bluntschli, Sec. 64; Vattel, Ch. adjust and readjust the balance in the Coun- 1; Manning, p. 93; Hall, Sec. 1; 1 Westlake, cil. Ch. 3.) Any member not represented on the Article 2. The action of the League shall Council shall be invited to send a repre- be effected through the instrumentality of sentative to sit as a member at any meet- an Assembly and of a Council, with a per- ing during the consideration of matters manent Secretariat. specially affecting the interests of such member. Article 3. The Assembly shall consist of Although a state whose affairs are under representatives of members of the League. consideration by the Council may have a It shall meet at stated intervals and from representative thereon, the rule of unanimity time to time as occasion may require, and excludes the vote of this added representa- at its meetings may deal with any matter tive. (Infra Article 5.) Such representa. within the sphere of action of the League tive is therefore not an equal in fact. or affecting the peace of the world. At meetings of the Assembly each member At meetings of the Council each mem- of ber represented the League shall have one vote and not shall have one vote and mor than three representativs. not more than one representative. While there is equality in the vote of the It will be observed that the Assembly, Council, the principle is nullified by inequali. which is a representative body, in principle ty of representation. at least, is not required to meet within any definite period as is the Council (infra Arti- Article 5. Except where otherwise provid- cle 4). Although apparently clothed with ed, decisions of the Assembly and the concurrent power, it is in vital respects sub- Council shall require agreement of all ordinate to the smaller Council. The basis members represented at the meeting. of legal equality in any League of Nations Matters of procedure, including appoint- necessarily requires equality in voting. (See ment of committees to investigate partic- Scott, The Hague Peace Conferences, Vol. ular matters, may be decided by a ma- I, p. 37.) jority present. That Article 4. The Council is to say, there must be agreement shall consist of rep- as to such representatives resentatives of the Principal Allied and present. Associated Powers (the United States, The first meeting of the Assembly and Great Bfitain, Italy, France and Japan), the first meeting of the Council shall be together with four other members to be summoned by the President of the United selected by the Assembly from time to States. time in its discretion. Belgium, Brazil, This would constitute the President of the Spain and Greece are named provisional United States the presiding officer of both members. bodies temporarily, at least. It will be noted that the principle of equal- Article 6. The permanent secretariat shall ity disappears at this point, the five Great be established at the seat of the League. Powers constituting themselves an indefeasi- The secretariat shall comprise a Secretary ble majority. Yet every attempt at organiz- General and such other secretaries and ing a League of Nations must start from and staff as may be required. keep intact the independence and equality of The first Secretary-General shall be the all civilized states. (Oppenheim (1919), The person named in the Annex; thereafter he League of Nations, p. 33.) shall be appointed by the Couticil with the With the approval of a majority of the approval of a majority of the Assembly. Assembly, the Council may name addi- Secretaries and Staff shall be appointed tional members whose representatives shall by the Secretary General with the ap- have fixed places in the Council. proval of the Council. The Council shall meet from time to The Secretary General shall act in that
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at all meetings of the Assembly cials will be sent into the territories of non- capacity members. and of the Council. occu- be The buildings and other property The expenses of the Secretariat shall officials or by the pied by the League or its borne by members in accordance with its meetings shall of the Interna- representatives attending apportionment of expenses be inviolable. tional Bureau of the Universal Postal Union. Article 8. The members of the League rec- of peace re- As to the possible magnitude of the per- ognize that the maintenance infra Comment opposite Article quires the reduction of national arma- sonnel, see with 282. ments to the lowest point consistent national safety and the enforcement by of international obliga- of the League is es- common motion Article 7. The seat tions. tablished at Geneva. The Council may de- cide at any time to establish the seat else- The Council, taking into account the where. geographical situation and circumstances for All positions under or in connection with of each state, shall formulate plans the League including the secretariat, shall such reduction for consideration and ac- be open equally to men and women. tion of the several governments. Representatives of members of the Such plans shall be subject to reconsid- League and officials of the League when eration and revision at least every ten engaged on the business of the League years. shall enjoy diplomatic privileges and im- After these plans shall have been adopt- munities. ed by the several governments the limits of armaments fixed therein shall not be Diplomatic privileges and immunities in- exceeded without the concurrence of the elude extrs-territorinlity, that is, immunity Council. from local law, civil and criminal, in for- Members agree that the manufacture by sign countries, such immunities extending to private enterprise of munitions of war is his the agent's residence and to those in open to grave objections. The Council suite. Owing to the inviolability attaching shall advise how the evil effects can be by the law of nations to the person of a prevented. diplomatic agent, a crime committed against Members undertake to interchange full him is punished with exceptional severity and frank information as to the scale of by the laws of all states. (U. S. vs. Hand, their armament, their programs and of 2 Wash. 435) their industries adaptable to warlike pur- The diplomatic immunities extended to all poses. ofcials of the League must be considered as deriving from the respect due to the soy- The deduction is a fair one that "the geo- eseighty of the League as a distinct politi- graphical situation and circumstances" to aa entity, as the immunities of an ambassa- be taken into account in reduction of arma- dor flow from the respect due to the person ments create an exception in favor of the of the sovereign whom he represents. Great Powers, whose far-flung empires may Yet Article 7 appears to exten the Pin- be thought to require large military and na- ciple far beyond its application even in val establishments. And the Great Pow- the the case of ambassadors in clothing these ers, constituting a dominant force in offcials with the status apparently anywhere Council, will formulate plans for themselves "when engaged on the business of the as well as for other states. League." Diplomatic immunities do not at- The hegemony of the Great Powers in the teach under the law of nations to ambassa- League is silently recognized throughout the dors passing through third countries. They Covenant. Yet historically a Great Power can claim no more than courteous treatment. of today is not necessarily a Great Power of (I Westlake, pp. 273-275; 1 Oppenhein. pp. tomorrow. Spain, Portugal and Sweden were 469-470; 1 Twiss, Sec. 222; 1 Wharton, Sec. Great Powers in 1815. Germany, Austria- 97; 4 Moore, Sec. 643.) Hungary and Russia were great Powers in By the Treaty of Berlin, 1878, and the 1914. of London, 1883, instituting the Dan- And, it may be asked, who will keep in Treaty in ube Commission, the principle of inviolabil- order those who are to keep the world ity was recognized as between the signato- order? ries as attaching to the respective represen- shall not Article 9. A permanent Commission tatives, their archives, etc. But it was advise the Council on the as be constituted to contemplated as of universal application, execution of the provisions of Article I in the present instance where League offi-
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and 8 relating to military and naval ques- her states; so that there is not only the duty tions. to abstain from giving any recognition or This would undoubtedly be a military com- assistance to a revolting portion of a mem- mission whose functions would include super. ber state, but there exists the duty to aid in intending disarmament of states newly ad- putting down such revolt should some other mitted as well as directing the forces neces- state assist the revolting portion. sary to vindicate international obligations. It is plainly a renewal of the proposition of the Holy Allies at the Congress of Aix-la- Article 10. Members of the League under- Chapelle, 1818, to stereotype the state pos- take to respect and preserve as against session, which was promptly rejected by Lord external aggression the territorial integrity Castlereagh as impossible of achievement un- and existing political independence of all til existing wrongs had been righted... (Alli- members of the League. In case of any son's Life of Castlreagh, Vol. 5, p. 66.) such aggression or in case of any threat or danger of such aggression, the Council Article II. Any war or threat of war, shall advise upon the means by which this whether immediately affecting members or obligation shall be fulfilled. not, is hereby declared a matter of con- This Article embraces two distinct obliga.- cern of the League, and the League shall gions in the first sentence: viz., "To respect" take any action deemed wise and effectual the territorial integrity and existing political to safeguard the peace of nations. In case independence of member states, and to "pre- any such emergency should arise the Sec- serve" the same as against external aggres- retary General shall on the request of any sion. member forthwith summon a meeting of A state undertaking to respect the terri- the Council. torial integrity of another contracts to re- What, it is pertinent to ask, constitutes frain from doing anything that shall in any a threat of war? The extent and variety of way impair or impeach that territorial integ- acts and situations embodying a threat of rity, including its possessions, dependencies, war defy enumeration, It is impossible even colonies, protectorates, leased territories, to catalogue acts and causes of war. One spheres of influence and hinterlands. All of instance of a threat of war, in that it is a these terms express degrees of territorial hostile act, may be cited: namely, any pre- rights. (1 Westlake Ch. 6.) mature recognition of belligerency or of in- Under existing principles of the law of dependence extended to a people struggling Nations states are under a general duty to to be free. (Hall, pp. 39-42; Woolsey, Sec. respect the territory and independence of all 180; Davis, 4th ed. pp, 277-278). other states. This duty connotes the right The term "threat of war" is absolutely un- of all states to complete immunity from in- defined in the terminology of the law of na- terference by others. But there are excep- tions. It may be construed to embrace any tions to this general rule recognized by the degree of friction in international negotia. law. A state may lawfully decline to re- tion and authorized intervention by the spect the territory and independence of an- League. other (1) in self-defense, (2) in accordance It is the friendly right of each mem- with treaty stipulations, (3) on grounds of ber to bring to the attention of the As- humanity, and (4) in behalf of an oppressed sembly or Council any circumstance population. (Davis 4 ed. p. 104, Woolsey whatever affecting international relations Sec. 43; Wheaton sec. 36; Snow p. 57; Hall which threatens to disturb international Sec. 88; Lawrence Sec. 74-89; 1 Moore p. peace or good understanding. 73.) It is presumed that the right of the As- The acceptance of the obligation "to re- sembly or Council to obtrude itself into the spect" the territorial integrity and existing ordinary diplomatic negotiations between political independence of member states states would not be needlessly exercised, yet means therefore a mutual engagement not the right is apparently contemplated if the to interfere on grounds of humanity or to negotiations do not move smoothly. The assist an oppressed people or otherwise with- possession of the untrammeled right of nego- in the territorial limits of member states. This tiation is the test of independence. (Manning obligation would probably forbid extending a pp. 93-100; Westlake, Chap. VII; I Halleck, recognition of belligerency to revolting peo- Ch. IV., Sec. 1.)) ples within the territories of member states. The second obligation in the first sentence Article 12. Members agree that if there of Article 10 is that to preserve as against should arise between them any dispute external aggression the -territorial integrity likely to lead to a rupture, they will sub- and existing political independence of mem- mit the matter either to arbitration or to
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inquiry by the Council, and they agree in Court as a means for building up a body of no case to resort to war until three legal decisions that the American delegation able months after the award by arbitrators or to The Hague Conference of 1907 was con- the report by the Council. In any case the to bring about the adoption of a draft award by arbitrators shall be made within vention for the institution of a Court of Ar- and the report of the bitral Justice. The matter of representation a reasonable time imme- shall be made within six months alone prevented it from being put into Council solution after submission. diate operation, a difficulty easy of today. in this Article The obligation embodied The convention establishing the Permanent has been assumed generally by the civilized Court of Arbitration appears to be the only treaties; and sates of the world in bilateral one of the dozen or more of beneficient con- since 1899 the Permanent Court of Arbitra- signed at The Hague in 1907 that is oc- ventions tion at The Hague has been successfully recognized by the Principal Allied and Asso- disputes. It cupiod with a great variety of ciated Powers as possessing any binding force is true that in a great majority of these bi- or as worthy of survival. (See Article 287., vital lateral treaties, "questions of honor and appears to be a distinct break with the quesdons, are There street," that S, poliwl past twenty years' development of law and excepted and reserved. There are certain judicial processes as the pre-eminently de- political questions that are admittedly not sirable means toward the establishment of arbitrable, as, for example, with us, one in- peace, and an espousal of the doctrine of volving the validity of the Monroe Doctrine. force. The principle of delay has been similarly ambodied in bilateral treaties, providing for Article 14. Council shall formulate and eommissions of inquiry in place of reference submit to members of the League for adop- to arbitration, though it has not been ex- tion plans for a Permanent Court of Inter- yisiv*applied as yet, except by the United national Justice. States in the so-called Bryan treaties of 1913- The convention referred to (supra, oppo- 1914. site Article 13) is ready at hand, having the civilized states of a been accepted by all Article 13. Members agree that whenever the world. (See Scott, The Hague Confer- they dispute arises between them which ences.) recognize as suitable for submission to ar- bitration, and which cannot be satisfactor- Article 15. Members agree that any dispute ily settled by diplomacy, they will submit likely to lead to a rupture, not submitted the whole subject matter to arbitration. in accordance with Article 13, will be sub- may Disputes as to interpretation of treaties, mitted to the Council. Any party questions of international law, as to effect submission by giving notice to the as to will com- the existence of any fact which, if estab- Secretary General. The parties General state- lished, would constitute a breach of inter- municate to the Secretary or as to the extent and ments of their case with all relevant facts national obligation forthwith of reparation to be made for such and papers, and the Council may nature thereof. are declared to be suitable for ar- direct the publication breach will endeavor to effect a biiration. For the consideration of any The Council and if successful a statement such dispute the Court of Arbitration to settlement, giving the facts and which such case is referred shall be the shall be made public, on or stipulated in any con- explanations. If the dispute is not settled court agreed or by ma- between the parties. Members the Council, either unanimously vention a report and rec- to carry out the award in good faith, jority vote, shall publish agree ommendations. Any member of the League and not to resort to war against a member therewith. In the event of fail- or Council may do likewise. complying of the Council is unani- carry out such award the Council If the report ure to members other than shall propose what steps should be taken mously agreed to by of one or more parties give effect thereto. the representatives to to the dispute, such members will not go "teeth" in the conven- This Article puts to war with any party complying with the tions of 1899 and 1907 establishing the Per- at The Hague. recommendation. mmaent Court of Arbitration Council fails to reach a report and deternned many If the This Court has heard unanimously agreed to by members other gave controversies, but its determinations than those in dispute, members reserve the largely upon compromise %ave been founded. right to take such action as they consider and expediency rather than upon the applI' necessary for the maintenance of right and ation of the principles of law. It Was due justice. to an existing sense of the inadequacy of this
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This Article attempts to deal with disputes conferred in this Article and in Article 12, other than those known as "justiciable," dealt provided that a report made by the As. with in Article 13. It is realized that some sembly be concurred in by members in of these questions are beyond amicable solu- The Council and a majority of other mem- tion. They are outside the realm of law and bers of the League other than the parties no principle of law or possibility of compro- to the dispute. mise can give hope of settlement. In such circumstances the League apparently sanc- The apparent concurrent power of the tions a resort to war, after conciliation Azsembly will be seen by this Article to have through the medium of the disappeared, requiring the concurrence of Council has failed. the Council The principles embodied in Article 12, 13 to effectuate its action, thus leav. and 1S are sound; the objection lies in the ing the Council the preponderantly powerful methods of their application. authority in the scheme. What provision is made, it may be asked, Article 16. Should for cases of self-defense any member resort to against sudden at- war in disregard of its covenants under tack, as for example, a border raid? Must Articles the state assailed submit pasively until the 12, 13 and 15, it shall ipso facto be deemed to have committed an act of Council has deliberated upon the questipn of war against all other "external aggression" members of the or upon conciliation? League, which hereby undertake to sub. The right of self-defense appears nowhere to jedt it to the severance of all trade or be recognized in the sense that it has hereto- financial relations, the prohibition of all for existed. (Hershey, 144-146, and notes.) intercourse between their nationals and If the dispute between the parties is the nationals of the Covenant-breaking claimed by one of them, and is found by state ancd the nationals of any other state. the Council, to arise out of a matter which It shall be the duty of the Council in by international law is solely within the such case to recommend to the several domestic jurisdiction of that party, the governments concerned what effective mil- Council shall so report and make no rec- itary, naval or air force the members shall ommendations. severally contribute to the armed forces to be used to protect the Covenants of the It. will be observed that as to whether or League of Nations. not a dispute arises out of a matter "which by international law is solely within domes- It is for the Council (or the Assembly with tic jurisdiction" is for the Council to find. the consent of the Council under Article 15) There is a great variety of things a state to decide when the contingency arises under may do in pursuance of its territorial su- which the duty of invoking and applying premacy, or domestic jurisdiction, which have measures of commercial warfare falls upon international effect, and which may or may members. not infringe the rights of other states. Thus The terms "resort to war" must be held to all persons, including aliens, within the terri- include defensive and offensive warlike vio- torial limits of a state are subject to the lance, as well as war legally declared and war jurisdiction of that state, yet the state to in its material sense. (The Three Friends which the alien owes allegiance may right- (1896) 166 U. S.) The obligations under fully protect him abroad and compel a stand- this paragraph are clear and definite. ard of treatment recognized by International The duty of commercial boycott appears Law. (See Borchard, Diplomatic Protection, to arise ipso facto with a determination by etc.) So all exercises of domestic jurisdiction the Council as to a "resort to war"; the duty having international effect may be held to in- to contribute armed forces appears to rest volve international concern. Knowing that on a decision of the League ad referendum. "It is the duty of a good judge to extend his Members of the League agree, further, jurisdiction," it is conceivable that much ex- mutually to support one another in finan- ercise of domestic jurisdiction having inter- cial and economic measures in order to national effect might ultimately pass under minimize the loss and inconvenience re- the control of the Council in the application sulting, and that they will afford passage of this Article. of troops through their territories. The Council may in any case refer the Whether or not a member contributes to question to the Assembly, and it shall be the armed forces he shall contribute his share referred to the Assembly at the request of toward the financial burden assumed by either party, if such request be made with- those states employing their forces against in fourteen days after the submission of the recalcitrant state, and become a passive the dispute to the Council. The Assembly ally at least to the extent of permitting the shall have all the powers of the Council passage of troops across his territory. Such
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assistance constitutes war quite as fully as by inconsistent obligations shall take im- though troops were furnished. mediate steps to procure release therefrom. Any member of the League which has The execution of this Article is left to the violated any covenant may be declared no conscience of the members; there is no pro- longer a member by unanimous vote of vision for scrutiny into existing treaties of the Council excluding the vote of the meme- alliance and other conventions serving special ber in disfavor. aims, nor is there any criterion by which in- Article 17. This Article extends the force consistency may be deterzbined to exist. Thus of Articles 12 to 16 inclusive to non-mem- the Anglo-Japanese Alliance, with respect to- bers of the League, who shall be invited to the special interests of those two states in accept the obligations of membership for Asia, announces as an object the preserva- the purpose of the dispute. tion of peace. It may be contended by the Upon such invitation the Council shall High Contracting Parties that no incompati- immediately institute an inquiry. bility exists; that it is in fact a "regional un- derstanding" for securing the maintenance of This paragraph clothes the Council with peace. (See Article 21.) jurisdiction over all matters affecting or held to affect international relations arising in It is clear that different standards will be non-member states, with or without the ap- applied as between the Principal Allied and proval of such non-members. It necessarily Associated Powers on the one hand, and the involves a denial of the heretofore accepted small states on the other. principles of the equality and independence of states. Article 21. Nothing in this Covenant shall There is no limit to the measures that may be deemed to affect the validity of interna- he taken. tional engagements, such as treaties of ar- bitration, or regional understandings like If both parties to the dispute be non- the Monroe Doctrine, for 4securing the members and decline to accept the obliga- maintenance of peace. tions of membership, the Council may take such measures and make such recommen- In the first part of this sentence all bilateral dations as will prevent hostilities and re- and multi-lateral treaties of arbitration are sult in settlement. recognized as possessing continuing binding On the whole this Article reduces those force. (See comment opposite Article 282- non-members desiring to retain sovereignty 287.) and independence to the same condition of As to the Monroe Doctrine, it is not a wardship to the Council as is produced in the regional understanding; it is a mere unilateral eases of members other than the Prinipal declaration of state policy which has never Allied and Associated Powers. received the recognition of any state as a rule The power to be assumed by the Council of international law. It is, however, founded appears to be that of unlimited intervention. upon the right of self-preservation, which Consent to the exercise of the power may be right is recognized by international law. (I inferred as to signatories, but it can not be Phillimore, Sees. 210-220; 1 Twiss, Sees. 106- inferred as to non-signatory or non-member 108-110; 1 Halleck, Ch. TV, Sees. 1-7, 18- dates. The principle of independence would 27; Wheaton, Sec. 60; Woolsey, Sees. 17-37; vanish from the law of nations under this Davis p. 93.) Article. The term "regional understanding" is new in diplomatic language and has no history Article 18. Every treaty or international from which a definition may be drawn. It engagement entered into hereafter by any would appear, however, to embrace a vast member shall be forthwith registered with field of bilateral and multilateral treaties, con- th Secretariat and published. No such ventions and agreements relating to geo-- treaty shall be binding until so registered. graphical areas and to the various degrees of existing territorial rights. The aggression of Article 19. The Assembly may from time all powerful states upon weaker ones, estab- to time advise the reconsideration of lishing protectorates, spheres of influence, treaties which have become inapplicable. spheres of interest and hinterlands, and ex- acting territory on lease, has been clothed Article 20. Members severally agree that invariably in language emphasizing the anx- the covenant abrogates all obligations and iety of the aggressor for the maintenance of understandings inter se which are incon- peace and the extension of protectionf Such sistent with the terms thereof, and that is the language of diplomacy, and if accepted they will not hereafter enter into incon- literally, all such agreements, founded upon sistent engagements. Any member bound force and fraud alone, are validated (See
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1 Westlake, 121-142, for discussion of minor Other peoples, especially those in Africa, territorial rights.) must be placed under a mandatory respon- This Article evidences merely a continua- sible for administration, order, morals, the tion of the stereotyping process, seeking to prohibition of the slave-trade and liquor bind down mighty natural forces that no hu- traffic, and the prevention of military or- man power can hold in check. As a perti- ganization among the natives. nent illustration of regional understanding the There are territories, such as Southwest Lansing-Ishii agreement of 1917 reorganizes Africa and certain of the South Pacific the "special interests" of Japan in China, on islands which, owing to sparseness of popu- the ground of contiguity; if the principle of lation, remoteness from civilization or con- equality has any validity whatever China is tiguity to the territory of the mandatory, equally entitled to a recognition of special can best be administered as integral por. interests in Japan upon the same ground. tions of its territory. These understandings are not like the Mon- This is the paragraph that conceals roe Doctrine, which but harbors no aggressive conforms designs, but from the materialistic European to secret arrangements for the dis- position of German southwest African and Asiatic points of view, the Monroe Doc- col- onies to France and certain Pacific island trine is in the same category. possessions to Japan. It is a mere mandate for annexation. Article 22. To those colonies and territories which have ceased to be under the sover- In every case the mandatory shall render eignty of the states which formerly gov- to the Council an annual report in refer- erned them and which are inhabited by ence to the territory committed to his peoples not yet able to stand by them- charge. selves under the strenuous conditions bf The degree of authority, control or ad- the modern world, there shall be applied ministration to be exercised by the manda- the principle that the well-being and de- tory shall, if not previously agreed upon, velopment of such peoples form a sacred be explicitly defined by the Council. trust of civilization and that securities for the performance of this trust should be em- With the possible exception of Belgium the four Principal Allied Powers, who sit in the bodied in this covenant. The best method Council, will alone retain possession of the of effecting this purpose is to entrust the German colonies. They will, therefore, re- Jutelage of such peoples to advanced na- tions, as mandatories on behalf of the port to themselves annually and define their degrees of control, occupying the dual rela- League. tion of principal and agent in this trust. These peoples are perfectly able to stand alone if protected against despoilment and A permanent commission shall be con- degradation at the hands of aggressive power- stituted to receive and examine annual re- ful states. ports and advise as to the observance of mandates. The character of the mandate must dif- fer according to the stage of development Such a commission can not perform a ser. of the people, the geographical situation of ous function. the territory, its economic conditions and other similar circumstances. Article 23. Subject to and in accordance with After the laudable conventions existing or hereafter sentiments of the pre- agreed upon the members of ceding paragraphs this is intended to prepare the League: (a) Will endeavor to maintain fair the reader for certain exceptions, and made nec- humane conditions essary in view of the existence of definite ob- of labor for men, wom- ligations in secret treaties 'en and children in all countries; and arrangements (b) Will undertake to secure just treat- for the distribution of the spoils of war. ment of native inhabitants under their con- Certain communities of the former Turk- trol; ish empire have reached a stage of devel- (c) Will entrust the League with gen- opment where their independence can be eral supervision over agreements relating provisionally recognized, subject to the ren- to traffic in women and children, and in dering of administrative advice and assist- opium and other dangerous drugs; ance by a mandatory. (d) With supervision of trade in arms This refers to Asia Minor and conforms in countries in which it may be necessary; to the age-long British policy of dominating (e) Will make provisions to secure free- the road to India. The principal community dom of communications and transit and referred to is Hedjaz, which is thus created equitable treatment for commerce of all as a vassal state of Great Britain. members;
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(f) Will endeavor to take steps for the law; the conference, by means of unani- prevention and control of disease. mous agreement presents to the nations a dr&4 which, when ratified cosnidered in con- represented, This program, when nations, becomes by the approval of 24 and 282 infra, re- by the nection with Articles the internal and constitutional organs, the i magnitude of labors and a diversity veals law of the ratifying nation. When ratified administrative power, the logical develop- of by the nations as a whole it becomes jus ment of which would abolish all conceptions law in among na- inter gentes, that is, international of sovereignty and independence of the word. At most the tions. the strict sense decree or resolution of a majority binds Article 24. There will be placed under the the majority; it does not, and under exist- direction of the League all existing inter- ing conditions, it can not well control an national bureaux if the parties to such individual state." treaties consent. All such bureaux here- Oppenheim, in his three lec.u-es on the after established shall be placed under the League of Nations (Supra, p. 36) in 1919, direction of the League. declared it essential that the League start The Council may include as part of the from the beginning made by the two Hague expenses of the Secretariat the expenses Conferences. This the Peace Conferenco of any bureau or commission placed under failed utterly to do. the League's direction. (See Comment opposite Article 23, 282.) Annex I. Original Members of the League of Nations Signatories of the Treaty: Article 26. Amendments to this covenant The United States of Nicaragna will take effect when ratified by members America Panama whose representatives compose the Coun- Belgium Peru cil and by a majority of the members Bolivia Poland whose representatives compose the Assem- Brazil China bly. No amendment shall bind a member British Empire Cuba which signifies dissent, but in such case it Canada Ecuador shall cease to be a member. Australia France It will be observed that there are no limits South Africa Greece to the powers which the Council may assume New Zealand Guatemala under this Article, nor are there any limita- India Portugal tions upon the powers of the Council in the Haiti Roumania whole covenant comparable to ai internation- Hedjaz Serb, Croat, Slovene al bill of rights. Honduras State The structure contemplates not an associa- Italy Siam tion of equals, but the subordination of the Japan Czecho-Slovakia many to the authority of the few. The over- Liberia Uruguay ruling authority is not a diplomatic assembly States invited to accede to the Covenant: but a small group in which unequal repre- Argentine Republic Persia sentation exists, combining and confusng Chili Salvador legislative, executive and judicial power. The Columbia Spain distinction may be clarified by a quotation Denmark Sweden from Dr. James Brown Scott's The Hague Netherlands Switzerland Peace Conferences, Vol. 1, pp. 35-36: Norway Venezuela "It must not, however, be forgotten that Paraguay great-indeed radical and essential-dif- ferences exist between a parliament and a Annex II. First Secretary General of the diplomatic assembly. A parliament legis- League of Nations: lates for a nation, and by means of proper The Honorable Sir James Eric Drum- representatives, it legislates for various mond, K. C. M. G., C. B. Interna- component parts of the nation. Part II. Boundaries of Germany. tional conferences in which the nations of Part III. Political Clauses for Europe. the world are represented, recommend to the nations represented, or legislate ad SECTION L-BELGIUM. A parliament presupposes referendum. and con- subordination; a conference equality. A Article 31. Germany recognizes of parliament binds the dependent; a con- sents to the abrogation of the Treaty ference recommends to the equal and in- Neutralization of April 19, 1839, and un- dependent nations. The parliament, by dertakes to recognize and to observe any into by means of majorities, decrees or issues a conventions which may be entered
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the Principal Allied and Associated Pow- Although the plebiscite was invoked as ers or any of them, in lieu thereof. early as 1552 by Henry 11 of France, after The first part of this Article apparently the capture of Toul, Metz and Verdun, its takes cognizance of the continuing force of fixed position in international practice begins the principle enunciated by the London Con- in the French revolutionary period. Incon- ference of 1871, to the effect that it is an sistent though it may seem, the United States essential principle of the public law of Europe has evinced little approval of the doctrine in that no state may release itself from the oh- its own practice. ligations of a multilateral law-making treaty, In the Articles of the treaty referred to it or modify the terms thereof, except with the must be assumed that the final disposition of consent of the other contracting parties, pre- the territories ceded to Belgium will be in viously obtained. accordance with the expressed wishes of the The latter part of the Article looks to inhabitants, though no pledge is given that some new arrangement whereby Belgium's such will be the case, nor is the disposing territorial situation is to remamn permanently authority expressly bound to observe such fixed as a buffer state on the west coast of wishes. Europe, in which arrangement, however, it is anticipated that the United States, as one of Article 35. Provision is made herein for the the Principal Allied and Associated Powers, appointment, within fifteen days after the may not take part. coming into force of the treaty, of a com- mission to delimit the boundaries of the Article 32. The condominum of Prussia German territories going to Belgium. and Belgium over Moresnet neutre is If the final disposition of these territories replaced by the passage of this territory is to depend upon plebiscites it seems need- under the single sovereignity of Belgium. less to have provided for a formal delimita- This is in effect annexation of Moresnet tion of boundaries in advance. neutre by Belgium, with the consent of the Powers. Article 36. With the actual transfer of sov- This territory has been in dispute since ereignty "over the territories referred to 1815 because of lack of agreement as to the above"-that is, upon the coming into boundary treaty of that date between the force of the treaty by ratification-"Ger- Netherlands and Prussia. man nationals habitually resident in the The renunciation of the territory in favor territories will definitely acquire Belgian of Belgium excludes the possibility of a plebis- nationality, ipso facto, and will lose their cite, and it does not appear that the inhabi- German nationality. But German nationals tants are given any right of option. who became residents in the territories after August 1, 1914, shall not obtain Bel- Articles 33-34 stipulate for the cession of gian nationality without a permit from the Prussian Moresnet ano Eupen and Malmedy Belgian government. to Belgium, in which, within six months the inhabitants may indicate in writing a Complementary to the right of plebiscite in the mass of a desire to see the whole or a part of the population, looking to the pro- territory remain under German sovereign- tection of the political rights of a people with ity. The League of Nations will decide as respect to their territory, there has developed for the protection of the minority to any action taken. in ase of transfer of territory, the so-called right of op- Anciently and until the close of the 18th tion, under which the individual may retain century it was the universal practice of suc- his old allegiance, if he so desires, by the cessful belligerents, in cases of conquest and formal recording of that election. (3 Moore, forced cession, to subject the inhabitants in Digest, Sees. 379-380; Boyd vs. Thayer, 143 such conquered or ceded territory forthwith U. S. 135.) to the new allegiance, regardless of their The Article opposite contains the remark- wishes or preferences. It is no longer per- able provision that German nationals habitual- missible, however, to hand such populations ly resident in the ceded territory will become around, in view of the development of politi- Belgian nationals immediately upon the actual cal principles which recognize the sovereign- transfer of sovereignty to Belgium, and will ty of the people as the governing factor in lose their German nationality. Since allegi- the political and social life of civilized states. ance to Germany thus ceases Germany's right This development has given rise to the plebis- and obligation to protect them likewise cite, under which the people may indicate en ceases. That is one of the practical effects. masse their wishes as to the disposition of the territory. (Funck-Brentano et Sorel (1887), Article 37. However, within two years Ger- 157 f. and 335 ff.; I Rivier, 210.) man nationals over 18 years of age, in
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such territories will be entitled to opt for they can emigrate to the United States or to German nationality, option by the husband some other place is doubtful, at least before including the wife, and by the parents, in- they have transferred their residence to Ger- cluding their children under 18 years of many. age. The provision with respect to their immov- Persons thus opting "must within the able property appears to accord with enlight- ensuing twelve months transfer their place ened practice. of residence to Germany." They may retain their immovable prop- Article 39. Belgium will assume a portion erty in the territories and may carry with of the public debt on account of such ter- them their movable property free from ex- ritories to be calculated on the basis. port or import taxes, with respect to such (a) Of the ratio of the average for the property. three years of 1911, 1912 and 1913 of It appears that German nationals who have revenues of the ceded territories and the become involuntary Belgian nationals may ex- average for the same years of the revenues ercise the option to divest themselves of Bel- of the German empire, or gian nationality within two years after the (b) Of the same ratio in its application coming into force of the treaty and become to the German state to which such ceded German nationals again, the German nation- territory belonged as of August 1, 1914. ality laws to the contrary notwithstanding. to be determined by the Reparation Com- There is a provision of the German laws mission. which declares that a German national ac- In cases of conquest or cession, such as quiring allegiance elsewhere automaticaly this, the rule is embraced in the maxim, res forfeits his German nrttionality. It is difficult transit cum suo onere; that is to say, the to understand how one who has forfeited a conquerer succeeding to the rights must also particular nationality may opt for it; -et since assume the burdens running with the terri- the acquisition of new nationality by Germans tory. However, there are exceptions in prac- this case is involuntary, it may properly be in tice. As to the public debt he need not share as void from the standpoint of Ger- viewed in that portion imposed for the prosecution man domestic law. of the war; and the calculation of the debt As has been pointed out (supra opposite to be assumed by Belgium properly refers to Article 30) the inhabitants of conquered or the pre-war period. The portion to be as- ceded territory may not be compelled to ac- sumed conforms to enlightened practice. cept the new allegiance against their will. Nothing is said, however, concerning other status and is essen- Nationality is a judicial contractual obligations running with the ter- tially voluntary. We have contended for the ritory, and it must be inferred that these are principle in various manifestations from the assumed subject to the law with respect to foundation of this government, until at length same. (1 Moore, p. 334; 1 Westlake, p. 75; it has become fixed in the law of nations. Scott, Cases, 85.) (3 Moore's Digest, Sec. 439; Scott, Cases 375.) However, Belgium shall acquire all prop- To force a new allegiance even upon the erty and possessions situated in such terri- outcast German, and merely temporarily, as tory, belonging to the German empire and in this case, is none the less a violation of states, including the private property of the former German emperor and other the law of nations. Even the Congress of Vienna, that reac- royal personages, free from any obligation tionary gathering which divided the spoils of to make compensation or to allow credit for same in the financial statement. Europe in 1i15, did not attempt such a thing. On the contrary in Article VII of the Treaty An invasion of the law of inviolability of of Paris of 1815, it is declared that in all private property occurs in the Article in ques- countries which shall change sovereigns, a tion and that relates to the taking over by period of six years shall be allowed to the Belgium of the private property of the former inhabitants, of whatsoever condition or na- German emperor and other royal personages, tionality, "to dispose of their property, if along with public property. A century ago they should think fit to do so, and to retire no distinction was made between the private to whatever country they may choose." property of the sovereign and the domains of The present treaty requires those opting the state. Napoleon, for example, appropri- for German nationality, within the ensuing ated the private property of the Elector of twelve months, to "transfer their place of Hesse-Cassel. residence to Germany," which appears to Though the property of a monarch is mean that they shall quit the soil of Belgium assimilated to that of the state, and as such physically and return to Germany... Whether devolves on the successor, the private prop-
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erty of a sovereign or other head of the the spirit of law. (See Comment, Article state in his personal capacity, is under the 74.) protection of the principle of the inviolabil- ity of private property quite as fully as that Article 46. The extent of France's rights in of the individual subjects. (Phillipson, Ter- the Saar Basin mines is set out by refer- mination of War, etc., p. 321.) ence to Chapter I of an Annex. French ownership is extended to deposits for SECTION II.-LUXEMBURG. which concessions may or may not have Articles 40-41. Germany renounces the been granted, whether private or public benefit of various treaties with Luxemburg property, with the right of working, not and recognizes its withdrawal from the working or transferring the right to work German Zollverein; agrees to the termina- the mines; all accessories and subsidiaries, tion of the regime of neutrality and ac- including plant and equipment, by-prod- cepts in advance any arrangements to be uct plants, electric lines, buildings, dwell- made by the Allied and Associated Powers ings, schools, hospitals, and all other prop- continuing the Grand Duchy as a buffer erty enjoyed by the present owners, go state. Germany also recognizes the Grand with the mines to France, free from all Duchy as sharing in the commercial ad- debts and charges. Germany must pay vantages to be enjoyed by the Allied and over any sums due employes on account Associated Powers. of pensions for old age or disability. This is a purely political arrangement, de- Workmen of French nationality may be signed to take Luxemburg from under the introduced into the region and they shall influence of Germany's commercial and polit- have the right to belong to labor unions. ical system. France shall have the right to establish and maintain schools for its employes, and SECTION I1.-LEFT BANK OF THE of giving instruction in the French lan- RHIN. guage. It may also maintain hospitals, dis- pensaries, and other charitable Articles 42-44. Fortifications either on the and social left bank of the Rhine or on the right bank institutions. to the west of a line drawn 50 kilometers France shall enjoy complete liberty with respect to the east of the to the distribution, dispatch and Rhine is forbidden, as sale prices of the products are military manoevres and the assembly of the mines. of armed forces in such area. It does not appear that German workmen Violation of these terms shall be regard- have a right to belong to labor unions. ed as a hostile act against the Powers The government of the Saar Basin is signatory of the treaty, and as calculated provided for in Chepter II of an Annex to disturb the peace of the world. referred to in Aricle 46. It will be en- In this arrangement, looking to the pre- trusted to a Governing Commission of five vention of Germany ever again possessing a members chosen by the Council of the strategic frontier against France, it will he League of Nations, to include a citizen of observed that all states signatory of the France, a native of the Sanr Basin who is treaty, including those neutral in the Great not a citizen of France, and three mem- War, should they ratify it, are to be bound bers belonging to three countries other by this provision. It is in effect the neutral- than France or Germany; appointed annu- ization of such portion of Germany under a ally. One of the five will be designated world garantee. as Chairman and he will act as the Execu- tive. SECTION IV.-SAAR BASIN. The Commission shall have all the pow- Article 45. As compensation for the de- ers hitherto belonging to the German Em- struction of coal mines in the north of pire, Prussia and Bavaria in such region, France and as reparation Germany cedes and shall be charged with the protection to. France in full and absolute possession, abroad of the interests of the inhabitants. with exclusive rights of exploitation, un- Nevertheless it is declared the existing na- emcumbered and free from all debts and tionality of the inhabitants remain un- charges, the coal mines of the Saar Basin. affected, unless they choose to acquire a It will be for Germany to indemnify the different nationality. proprietors. What, it may be asked, is the political This Article disregards, utterly the rights status of German nationals under the Gov- of private property to the extent that the erning Commission? Their nationality is Sam Basin mines are privately owned, and is said to be unaffected, yet nationality implies in effect an act of confiscation in violation of allegiance and allegiance involves the right
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and duty of protection. (Hershey, Essentials the present treaty," that is, June 28, 1919, France can of Pub. Int. Law, p. 236.) The protection no amount of colonization by of German nationals is given over to the overcome that fact. Commission. Germany may not The question arises, however, may those Governing from the Saar exert herself anywhere in their behalf. No who have meantime removed is placed in their way against de. Basin back to Germany, enjoy the privileges hindrance They would parting from the country or acquiring a of taking part in the plebiscite? in fact, these clauses, includ- seem to be qualified if more than 20 years new nationality; "all iag ample safeguards with respect to their of age, since the provision designates dear. private property, are of customary liberality. persons," etc., yet it is not The League shall decide, "talkng into ac- The inhabitants may elect local assem- count the wishes of the inhabitants as ex- blies, every inhabitant over the age of 20 by the voting," with respect to the without pressed years having the right to vote, disposition of the territory. There is as final distinction of sex. Such inhabitants no obligation to respect the results of the may desire to leave the territory may do plebiscites; it is merely to be taken into so without restriction as to property. account along with other things. The Governing Commission is supreme is said of the rights of German it Nothing in interpreting the scheme under which labor. France, as the one big employer in by is instituted, the decisions to be taken the territory, dominating practically every majority. business and enterprise, is free wholly to sub- The inhabitants may elect local assemblies, stitute French for German labor, through but it is nowhere set out what the dgree of which the entire German population might influence such assemblies will have in the be compelled to emigrate. In such a con- to ordering of the domestic concerns. tingency it might then become important settle whether absentees, who were resident Article 47. The ultimate fate of the Sear in the Sar Basin in 1919, had the right to Basin is here dealt with by reference to take part in the plebiscite. Chapter III of an Annex. In this chapter it is set out that at the termination of Article 48. This deals with the fixing of a period of fifteen years the population of boundaries of the Saar Basin. the Sear Basin may have a plebiscite, the vote to be taken by communes or districts Article 49. Germany renounces in favor of on the three following propositions: the League of Nations, in the capacity of (a) Maintenance of the regime of the trustee, the government of the territory Governing Commission; (b) Union with defined above. France; (c) Union with Germany. A unique question of sovereignty arises All persons without distinction of sex, from this Article. It is stlted that Germany more than 20 years of age, resident in the renounces in favor of the League of Nations territory at the date of the signature of as trustee only the government of the Saar the present treaty, will have the right to Basin, and it is contemplated that German vote. Other conditions may be made by sovereignty subsists, since provision is made the League of Nations. The League shall for "renunciation of sovereignty or cession" decide on the ultimate sovereignty, tak- by Germany ultimately, in the event the ing into account the wishes of the inhabi- League of Nations decides to award the whole tants thus expressed. If the League de- or a part of the territory to France. cides in favor of Germany in whole or in Yet the political or governmental author- part, the rights of France shall be re-pur- ity over a territory is the very essence of chased in gold, the price to be fixed by sovereignty, and by the provisions of Chap- a commission of three, one of whom shall ters U and III this authority, internal as well be nominated by France, the second by as external, is vested in the Governing Com- Germany, and the third by the League of mission. It is even charged with the pro- Nations, who shall be neither a Frenchman toction abroad of German nationals, inhabi- nor a German. The League of Nations tents of the territories. It may thus be con- will take all decisions by majority. tended that Germany has parted with sover- eignty over the Sear Basin. If such a con- It is not quite plain why the "repurchase" a have dition as the suspension of sovereignty is of the Saar Basin by Germany should occurs a plebiscite. legal possibility it may be that such been made contingent upon pp. 252-254.) German, in the Saar Basin. (1 Moore, The population is overwhelmingly treaty seeks to de- voters are those only In whatever terms the and since the qualified however, it apepars to of age who were "resident in scribe the transaction, over 20 years case of disguised cession, on all the territory at the date of the signatume of be a simple
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fours with the so-called leased territory of (1) Persons who lost French nationality the European powers and Japan in China, under the treaty of 1871 and acquired the restoration of such territories depending German nationality. upon certain and uncertain contingencies. (2) The legitimate descendants of The Saar Basin case differs, of course, in the those referred to above, except those whose fact that a third state, and not the cessionary descendants in the paternal line include a is given exclusive rights of exploitation. (I German who emigrdted into Alsace-Lor- Westlake, 133-139; Hershey, pp. 184-185.) raine after July 15, 1870. (3) All persons born in Alsace-Lor- SECTION V.-ALSACE-LORRAINE- raine of unknown parents or whose na- The High Contracting Parties recogniz- tionality is unknown. ing the moral obligation to redress the It will be observed that the treaty here wrong done by Germany in 1871, both to attempts to determine the French nationality the rights of France and to the wishes of of the inhabitants without in any way con- the population of Alsace-Lorraine, which sulting their wishes. It institutes three broad were separated from their country in spite classes of persons whose nationality is of the solemn protest of their representa- changed arbitrarily. Those in the classes tives at the Assembly of Bordeaux, agree have nothing to say in the matter. upon the following Articles: The first class "reinstated" in French na- tionality includes all those who, upon the ces- Article 51. The territories of Alsace and sion of Alsace-Lorraine to Germany in 1871, Lorraine are retroceded to France. declined to avail themselves of the right to As set out in the preamble the taking of opt for French nationality under Article U Alsace-Lorraine by Germany in 1871, con- of the Treaty of Frankfort, but chose to re- stituted a moral, not a legal wrong; that is main and acquire German nationality. to say, title to the territory of another state It is conceivable that many of this class founded in conquest is quite as legal and un- are satisfied with their acquired German na- impeachable as if founded upon voluntary tionality and are thus involuntarily trans- cession. It is a principle that violates our ferred to a new allegiance. modern sense of justice, but it is nevertheless And so in the second class, the descend- a settled one. ants of the first class, it is probable that many It is to the credit of the High Contracting will not willingly renounce their' German Parties that they recognized the moral obli- allegiance. gation to redress this wrong, both to the These persons are denied the right to opt rights of France as sovereign over the terri- for German nationality. tory, and to the wishes of the people. If The Annex also sets out the following this measure were applied universally the classes as eligible to opt for French nation- moral principle would thereby attain the po- ality: sition of a legal one, since he basis of all (1) All persons whose ascendants in- law is universal acquiescence or assent. The clude a Frenchman or a French woman High Contracting Parties have not only failed who failed to opt for French nationality in to seize the opportunity to legalize the prin- 1871. ciple against conquest and the rights of (2) All foreigners, not German nation- peoples to choose their own way of obedience als, who become citizens of Alsace Lor- by the universal application of these princi- raine prior to August 3, 1914. ples, but they have destroyed and nullified (3) All Germans domiciled in Alsace- the force of this instance of its application in Lorraine since July 15, 1870, or who had settlements which repudiate these principles an ascendant so domiciled. (see Part IV, Sec. 8, Articles 156-158); nor (4) All Germans, domiciled or born in is any intimation given in the treaty that ex- Alsace-Lorraine. who served in the Allied isting instances of the subjection of peoples or Associated armies. to alien governments against the will of such (5) All persons born in Alsace-Lor- peoples constitutes a moral wrong. (See Sec. raine before May 10, 1870, of foreign par- VI, Article 147.) ents and the descendants of such persons. Article 53. The political status of the in- (6) The husband or wife of any per- habitants of Alsace-Lorraine is fixed in this son whose French nationality may have Article by reference to an Annex which been restored in the three classes referred makes the following decisions: to above, or who may have claimed and As from November 11, 1819, the follow- obtained French nationality in accordance ing persons are ipso facto reinstated in with the preceding provisions. French nationality: The rule that the nationality of the wife
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and children follow that of the husband and nationality; however, within two years Ger- rather is apparently ignored. The anomalous man nationals there may opt for German na- situation is thus made possible that a French tionality. national, residing in French territory, may have a wife who is an alien to him and to Article 55. This deals with the public debt her own children. of Alsace-Lorraine by reference to Article Subject to the above exceptions no Ger- 255, Part IX of the treaty, which sets out mans born or domiciled in Alsace-Lorraine that since Germany refused to assume any of the public debt of Alsace-Lorraine in shall acquire French nationality, even though they are citizens of Alsace-Lor- 1871 France shall receive the territories raine, except by the normal process of nat- free and quit of all public debts, nor shall on the repa- uralization, on condition of having been any credit be given for same domiciled from a date previous to August ration account. 3, 1914, and of submitting proof of three In principle, therefore, there is no differ- years" unbroken residence. ence between the conquest and the recon- The treaty, while arbitrarily restricting the quest, so far as the conduct of the victors is right of option to limited classes and to a concerned. Each takes all it can get over and above the reparation account. particular nationality (French) does not attempt to set aside the principle of naturali- Article 56. In conformity with the provi- zation. sions of Article 256, Part IX, France shall France will be solely responsible for enter into possession of all property and their diplomatic and consular protection estate in the territories belonging to the from the date of application for natural- German empire, the German states, as well ization. as the Crown property and the private The practice of enlightened states, which property of the former German emperor may be said to conform to the law, in respect and other German sovereigns, without any of protection abroad of declarant aliens, is payment or credit on account of same. that such protection is asserted to the ful See Comment, Article 39. extent in countries other than those of origin. As against their native countries no such Article 58. Provision is made for "repay- rights are claimed in view of the continuing ment in marks of the exceptional war ex- allegiance of such declarants up to the mo- penditure advanced during the course of ment of complete acquirement of a new na- the war by Alsace-Lorraine, or by public tionality. The rule rests upon a sound and bodies in Alsace-Lorraine on account of logical fovndation. (3 Moore, pp. 893, 895.) the empire in accordance with German law, such as payment to the families of However France proposes to override it as na- persons mobilized, requisitions, billeting against Germany, in behalf of German of troops and assistance to persons who tionals who have declared their intention to have been evacuated." become French citizens. It is safe to say that the position can only be maintained by a Thus France not only does not assume any stronger as against a weaker state. portion of the German debt in connection Considering the nationality provisions gen- with Alsace-Lorraine, but there is to be re- erally with respect to Alsace-Lorraine, it ;,Ul paid the sums Alsace-Lorraine, in common be seen that a plebiscite has not been consid- with all parts of the empire, was called on to ered, although Germans may predominate in expend as indicated. granted. the territories; nor is option freely Article 59. France will collect on its own Large classes of persons are made French account Imperial taxes of every kind levi- by the fiat of the treaty and other citizens able and not collected at the time of the are declared eligible Vo restricted classes armistice, November 1 1, 1918. claim French citizenship. None is declared capable of choosing any other nationality. Article 60. Germany shall restore without Those in whom German nationality continues delay to Alsace-Lorrainers all property, are marked out by the treaty with equal rights and interests belonging to them on definitenes. November II, 1918, situated in German The utter absence of observance of the territory. doctrines of plebiscites and option, and of uniformity in dealing with like situation may Article 62. Germany undertakes to bear be seen by comparison with Articles 36-37, the expense of all military and civil pen- whereby German nationals resident in the sions earned in Alsace-Lorraine on Novem- territories ceded to Belgium acquire Belgian ber i, 1918, and to pay annually the nationality ipso facto, and lose their German sums to which persons resident in Alsace-
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Lorraine would have been entitled under warlike acts as are within the compass of the German rule. lawful rights of belligerents. Taking into consideration this exception Article 63. Germany's liability for injury there is no principle of public international and damage is declared by reference to law that enlarges the legal responsibility of Part VIII (Reparation), as follows: one of the belligerents because it was the '-he Allied and Associated Govern- aggressor. In fact it is generally impossible ments affirm and Germany accepts the to determine with accuracy whether or not responsibility of Germany and her allies for a particular state was or was not the aggres- causing all the loss and damage to which sor. It is clear in the Franco-Prussian war the Allied and Associated Governments of 1870-71, in the Anglo.Boer war of 1900 and their nationals have been subjected as and in the Turco-Italian war of 1912, but no a consequence of the war imposed upon one has yet determined whether Russia or them by the aggression of Germany and Japan was the aggressor in 1904. (See The her allies." Peace Problem (1916) John Bauett Moore.) The Allied and Associated Governments In order to avoid as far as possible the require and Germany undertakes to make evils of society it is agreed, says Vattel, to compensation for all damage done to the regard every lawfully declared war as just on civilian population of the Allied and Asso- both sides. (Halleck, International Law, 4th ciated Governments and to their property ed., Vol. 1, p. 571.) during the period of the belligerency of This statement of the law has undergone each by such aggression by land, by sea no change up to the present. Out of this and from the air, and in general, all dam- view has necessarily sprung the law of neu- age as defined in Annex 1, hereto. trality. Damages have been calculated on the War brings into operation a great variety premise that since Germany was the aggres- of laws defining rights and duties of bellig- sor, she precipitated and carried on an un- erents and neutrals, and among its rights lawful war, and should therefore be responsi- accruing to a belligerent is that to inflict any ble for all damage of whatsoever kind, damage upon his enemy, which has a inili- whether resulting from the operations of her- tary object. There are certain specific limi- self and her allies, or from the measures of tations upon a belligerent's means of injur- the Allied and Associated Governments. ing his enemy, both at sea and on land, de- While it is within the power of a successful signed to prohibit needless and wanton injury belligerent to impose any terms he wishes'the and damage. However, it may be asserted law of nations nowhere makes any distinc- as a general principle of the laws of war that tion between a just and an unjust war, nor all damage and injury inflicted in pursuit of a between a lawful and an unlawful war. In military object are lawful. (Lawrence, 4th view of the law, since each sovereign nation ed., Sec. 206, p. 549; Spaight, 112). may alone determine the demands of its wel- The Annex then declares: ware and interest, it is the right of each to "Compensation may be claimed from determine when its exigencies require a Germany under Article 232 above in resort to war. Since 1899 (The Hague, Con- respect of the total damage under the fol- vention No. 4) a distinction has been made lowing categories: between a war lawfully declared and one not (1) Damage done to injured persons thus declared. and to surviving dependents by personal From a moral standpoint a war may be injury to or death of civilians caused by unjust and unrighteous, as that precipitated acts of war, including bombardments or by Germany unquestionably was, but it can other attacks on land, on sea or from the not be unlawful, since it is the supreme and air, and all direct consequences thereof, final apepal of all states in the protection of and of all operations of war by the two their well-being. groups of belligerents wherever arising. It has been argued, and not without force, that by reason of the obligations assumed by Civilians are under the protection of the Germany toward Belgium under the treaty of laws of war, but their immunity from direct Neutralization of April 19, 1839, it became and intentional injury is dependent upon legally impossible for Germany to carry on peaceable and non-hostile conduct. It is one war against Belgium; and that Germany may of the marked moral achievements of the not therefore claim the benefits of the laws last century that the great divisions of popu- of war odinarily obtaining; that is to say, in lations of belligerent states into combatants the case of Belgium, Germany is not entitled and non-combatants, with definite law regu- to deny responsibility for such destruction, lating their rights and duties, have been fines, contributions, requisitions and othor made.
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Whence, civilians, taking no part in hos- (2) Damage by Germany and her allies tilities may not lawfully be made the object caused to civilian victims by acts of cruelty, of direct injury. Nevertheless their injury or violence or maltreatment, may properly give killing as a mere incident to the carrying out rise to legal responsibility, where such acts of a lawful military operation involves no of cruelty, violence or maltreatment were not responsibility. For example, enemy munition permissible-and many of such are-under plants are lawful objects of attach If in such the laws of war. For example, the right of attacks death should ensue to au or the em- reprisal upon a rebellious population in a ployees, men, women and children, no lia- militarily occupied district, may lawfully in- bility whatever would rest upon the govern- volve extreme violence, even to the shooting ment of the attacking force. So, too, the in. of civilians and the destruction of whole cidental deaths of civilians in cases of bom- towns. (Spaight, 465-470.) bardment of defended towns, villages, build- It is the right of a belligerent state to im. ings and places involve no liability. (Holland, prison, intern and deport enemy civilians, p. 30; Spaight, pp. 140-180). particularly male persons of military age, and It has never been settled what constitutes to use reasonable disciplinary measures a "defended" place; but it has been con- against them for cause. tended by eminent authority (Westlake, Col- Legal responsibility properly lies in the lected Papers) that the presence of a single matter of exposure at sea in view of the set- soldier or company of soldiers might be suf- tled principle requiring provision for the safe- ficient to constitute a defended place. If this ty of crew and passengers of a captured be so, it may be said that in the present great vessel. war hardly a city, town or village in any of (3) Damage caused by Germany or her the belligerent states was undefended, so allies in their own territory or in occupied great were the proportions of the populations or invaded territory to civilian victims, of taken into the armies. all acts injurious to health or capacity to As to the immunity of non-combatants, it work or to honor, as well as to surviving may be asked, to what degree, if any, was dependents of such victims. this immunity compromised in the present Great War in view of the universal mobili. As to acts injurious to health or capacity zation of man, woman and child-power be- to work such conditions might follow the hind the armies of the respective belliger- exercise of lawful violence, as reprisals ents? against a disobedient or resisting population in a militarily occupied territory. Family The following principles of law are settled: (a) That acts of war, including bombard- honor is clearly under the inviolable protec- monts and other attacks on land and from the tion of the laws of war. (The Hague, 1907, ar, involve no legal liability whatever so long Convention 4, Art. 46). as they have a military object and are not (4) Damage caused by ainy kind of mal- directed against an undefended place. treatment of prisoners of war. (b) That attacks at sea against public <4) There is no legal liability in cases of armed enemy vessels involve no liability; that damage resulting from reasonable disciplin- attacks upon unarmed merchantmen, not ary measures in which the victim was culpa- guilty of flight or resistance, are illegal and ble. (5) As damage caused to the peoples of do involve liability. But even where flight or the Allied and Associated Powers all pen- resistance has been overcome there is a legal obligation to provide for the safety of crew sions and compensation in nature of pen- sions to naval and military victims of the and passengers. The placing upon a vanquished belligerent war, whether mutilated, wounded, sick or of responsibility for all damage and injury invalided, and to the dependents of such resulting from the operations of the victor is victims. a mere exercise of power in the nature of (5) This is a mere exercise of power by indemnity; it can not be construed as repara- the victor over the vanquished in the nature tion. of indemnity. (2) Damage caused by Germany and (6) The cost of assistance by the gov- her allies to civilian victims of acts of ernments of the Allied and Associated cruelty, violence and maltreatment (in- Powers to prisoners of war and their fam- cluding injuries to life or health as a con- ilies and dependents. sequence of imprisonment, deportation, in- It is customary among belligerents to com- ternment or evacuation, or exposure at sea pute the respective costs of maintenance of or of being forced to labor) wherever prisoners of war, including salaries allowed arising, and to the surviving dependents of officers, and to settle any balance at the such victims. peace.
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The provision is in the nature of indem- too, private property may be taken under the nity where it exceeds this custom. right of requisition. (Spaight, 199-200). (7) Allowance by the governments of (10) Damage in the form of levies. the Allied and Associated Powers to the fines and other similar exactions imposed families and dependents of mobilized per- by Germany or her allies upon the civilian sons and persons serving with the armed population. forces. (10) Levies (contributions and requisi- This is a mere exercise of power in the tions) and fines are lawful measures of war. nature of indemnity. Levies in service, in supplies and in cash are lawful if undertaken for the needs of the (8) Damage caused to civilians by be- army, or in lieu of or in addition to taxes, ing forced by Germany or her allies to for the support of the administration of occu- labor without just compensation. pied territory, provided that they are in pro- (8) The services of civilians in militarily portion to the resources of the territory; and occuped territory may be requisitioned, nor provided further that they are not levied for does the law require more than that a receipt mere purposes of plunder. for such services shall be given. The receipt Fines are a lawful measure against the dis- does not imply liability on the part of the obedience of a population in a militarily occu- giver to redeem it. (2 Westlake, 270; Bord- pied territory, if responsibility for disobedi- well, 319; Spaight, 402-405.) ence be collective. It is the mildest manifes- (9) Damage in respect of all property tation of the right of reprisal. (Spaight, 383, wherever situated belonging to any of .he 408-410.) Allied or Associated Powers or their na- Article tionals, with the exception of naval and 64. Regulations concerning the con- military works or materials, which have trol of the Rhine and the Moselle are laid down by been carried off, seized, injured or de- reference to Part XII of the stroyed by acts of Germany or her allies treaty. Part XII, Chapter IV, provides on land, on sea or from the air, or damage among other things that Germany shall cede directly in consequence of hostilities or of to France tugs and vessels registered any operations. in German Rhine ports, including fittings and gear, installations, berthing and an- This provision ignores the whole body of chorage accommodations, docks, ware- settled law with respect to allowable dam- houses, plants, etc., whether publicly or age and destruction. Such legal destruction privately owned, in an amount to be de- includes: cided by an arbitrator to be apopinted by (a)AI destruction of naval and military the United States, "due regard being had to works, including shops, railroads and equip- the needs of the parties concerned." The ment, munition plants, barracks and all build- value of such property shall be set off ings used by armed forces (other than hos- against the total sums due from Germany. pitals). (b) Destruction of private property inci- This is purely an economic advantage in dental to bombardment. the nature of indemnity. It is repugnant to (c) Destruction of property of military the spirit of the law at least to the extent that value to prevent it falling into the hands of private property exists in such tugs, ves- the enemy. sels, etc. (See Comment, infra, Article 74.) (d) Destruction of property to facilitate Article 65. This Article gives to France an attack or to impede pursuit. certain economic advantages in the ports To summarize, it may be said that all de- of Strasburg and Kehl under the Central struction which serves a military end, and is Rhine Commission, to be presided over by not purely wanton, is lawful. (Spaight, 111 et a Frenchman. seq., 418.) This is in the nature of indemnity. As to property carried off or seized, the law makes a distinction between public mov- Articles 66-67. Railway and other bridges ables, that is, government-owned property, across the Rhine within the limits of Al- and private property. The former is con- sace-Lorraine throughout their length be- fiscable under the laws of war the latter is come French property, as do all Imperial not. (Spaight, 411, 412; 2 Westlake, 103- railways and tram concessions, entailing no 104; Bonfils Nos. 1191-1193). payment on the part of France. Yet even private property may be seized This is in the nature of indemnity. No and converted by a belligerent if it is obligation with respect to uniformity of tolls noxious, that is to say, if it is of a character appears to rest upon France in connection lending itself peculiarly to warlike use; so, with the use of these international bridgee.
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Articles 68-71. Additional economic advan- restitution of or compensation for all private tages are given to France, including ex- property of nationals of Allied or Associated emption from customs duties on natural or Powers in German hands. It is true that it manufactured products of Alsace-Lorraine is declared that Germany will compensate her entering Germany and the import into Al- nationals who are thus dispossessed, but in sace-Lorraine of certain goods from Ger- view of the extent of the various indemnities many free from internal duties in Ger- imposed it is doubtful that this declaration many; supply of electric current to Alsace- can ever be fulfilled. It is therefore, at best, Lorraine by Germany; prohibition of Ger- disguised confiscation. man participation in enterprises in Alsace- From antiquity to the dawn of the 19th Lorraine; renunciation of German rights century it was the custom of a belligerent regarding trade in potash sales. to seize and convert the private property of nationals of his enemy, while the private ene- These are in the nature of indemnity. my individual might be dealt with after the Article 74. The French government reserves desires of the captor. In the last century, the right to retain and liquidate all the however, a settled distinction in the law has property, rights and interests which Ger- differentiated the private unarmed enemy per- man nationals or societies controlled by son and his property from the public armed Germany possessed in Alsace-Lorraine on enemy person and public property, on the November 11, 1918. Germany will com- principle that war is a relation between states pensate her nationals thus dispossessed. and not between individuals. The former, The product of these liquidations shall be classified as non-combatant, is entitled to pro- applied in accordance with the stipulations tection in his person and property; the latter, of Sections III and IV of Part X of the classified as combatant, may be made the ob- treaty. ject of direct hostile action. As to public Section III (Article 296) provides for property, all movables of the enemy govern- the settlement through clearing offices to ment are liable to confiscation. Private be established by each of the High Con- property is under the protection of written tracting Parties of the following classes of law, declaring it to be inviolable. (The debts: Hague, 1907, Convention IV, Article 46). (a) Debts due before the war from a This must be understood to be qualified, national of an Allied or Associated power, however, by certain definite exceptions. (See residing within its territory, to a national Comment on Article 63, sub-section 9). of Germany or her allies, residing in its Private settlements of debts between a territory. national of an Allied or Associated Power (b) Debts payable during the war to na- and a national of Germany or her allies tionals of Allied or Associated powers, is assimilated even after peace to trading payment of which was suspended by the with the enemy and will involve "the same war. penalties as are at present provided" in (c) Any interest accrued before or dur- such legislation. All legal processes for ing the war on securities issued by Ger- the private recovery of such debts will be many or her allies. prohibited. (d) Any capital sums which have be- Creditors shall give notice to the Clear- come payable in respect of securities issued ing Office within six months of debts due by Germany or her allies. to them. The High Contracting Parties will pro- Any person having claimed payment of hibit all settlements otherwise than through an enemy debt which is not admitted in the clearing offices; they will he respec- whole or in part shall pay to the Clearing tively responsible for the payment of such Office, by way of fine, interest at 5 per cent debts as were due from their nationals. on the part not admitted, during the pen- (Debts due by inhabitants of invaded terri- dency of such claim. tory will not be thus guaranteed, nor does A person "having unduly refused to ad- the guarantee extend to a debtor who was mit the whole or part of a debt claimed insolvent before the war or whose property from him" shall pay, by way of fine, 5 per was liquidated under emergency legisla- cent of the amount "with regard to which tion). his refusal shall be disallowed." for This Article and its references (Sections Clearing offices shall be responsible 31 and IV of Part X) commit the Allied and the collection of such fines, which "will Associated governments to the confiscation of be credited to the other Clearing Office, al private property of German nationals, which shall retain them as a contribution whether situated in their own territories or toward the costs" of the office. is set up as in the territories taken from Germany, and A Mixed Arbitral Tribunal
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a court of appeal as between disagreeing obloquy, yet it may be disregarded." (Hal- Clearing Offices. leck, 4th ed., Vol. 1, p. 587). This would require an Act of Congress to The power to confiscate enemy property carry it into execution. cannot be exercised by the United States, As to the universally recognized rule of however, except by the direct authprity of law forbidding the confiscation of private Congress. (Brown vs. United States, 8 enemy debts, see, infra, Comment opposite Cranch, R. 123). The extent of authority Article 302. existing in the absence of such legislation is to sequester using reasonable care to conserve Section IV. (Article 297) sets out the fol- such property for its owners, under an obli- lowing with respect to the private prop- gation to restore it or its equivalent at the erty, rights and interests of German na- peace as we have done through the law creat- tionals situated in Allied and Associated irg the Alien Property Custodian. Even this countries: right is generally qualified by treaty. (See (a) Germany shall immediately discon- Treaty with Prussian, 1828, 2 Malloy, p. tinue all war measures (including liquida- 1496). tion and transfer) taken against the prop- The far-reaching effect of this policy is erty, rights and interests of nationals of likely to hamper American investments all Allied and Associated Powers, such nation- over the world. als to enjoy full rights in accordance with (e) Nationals of Allied and Associated Article 298. Powers shall be entitled to compensation in (b) The Allied and Associated govern- respect of damage or injury to their prop- ments reserve the right to retain and erty, rights or interests, including any liquidate all property, rights and interests company in which they are interested, due belonging to German nationals, or com- to war measures of liquidation or transfer; panies controlled by them within their and they may be compensated out of pri- territories, colonies, possessions and pro- vate property of German nationals in the tectorates, including the territories ceded. hands of Allied and Associated German govern- nationals shall not be able to ments. Germany will receive credit on the dispose of such property nor to subject it reparation account as to any balances, to any charges. which shall be paid to the Reparation Com- German nationals who acquire ipso facto mission. the nationality of an Allied or Associated (i) Germany undertakes to compensate Power shall not be liable to such depriva- her nationals thus deprived of their pri- tion of their private property. vate property by the Allied and Associated It appears under this sub-section that the Powers. United States is empowered to seize, in addi- (j) The amount of all capital taxes lev- tion to the private property situated in the ied on property of Allied and Associated United States of German nationals resident in nationals by Germany after November 11, Germany already sequestered by the Alien 1918, shall be refunded. Property Custodian, the private property of all German nationals resident in the United See Comment opposite Article 74. States. An Act of Congress would, however, By Sections a and b (Article 298) Ger- be necessary as a condition precedent to the many undertakes to restore to nationals of exercise of that power. Allied and Associated Powers their prop- "What we have said of the detention of the erty, rights and interests as they existed enemy's person also holds good with respect prior to the war, and not to subject such to the right to seize and confiscate all enemy property, rights and interests to any mea- property found within the territory of the sures not applied equally to property of other belligerent at the commencement of German nationals. hostilities. In former times this right was By Annex, paragraph i, under Section exercised with great rigor, but it has now IV, Germany confirms all acts of Allied become an established, though not inflexible and Associated Powers with respect to the rule of international law, that such property property of German nationals. is not liable to confiscation as prize of war. By paragraph 2. Germany agrees that no This rule, says Chief Justice Marshall (Brown claim or action shall be brought against vs. United States, 8 Cranch, R. 123) "like any Allied or Associated Power or person other precepts of morality, of humanity and on account of acts or omissions with re- even of wisdom, is addressed the judgment spect to German property. of the sovereign-it is a guide which he fol- By paragraph 10, Germany will, within lows or abandons at his will; and, although six months, deliver to each Allied or Asso- it can not be disregarded by him without ciated Power, all securities, certificates,
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deeds or other documents of title held by tics of what is left of Austria are predomi- its nationals and relating to property, nantly German, the subject peoples of the old rights or interests situated in the territory dual monarchy having been accorded the of that Allied or Associated Power, includ- right of self-determination. Yet the achieve- ing any shares, stock, debentures, debei- ment of German unity is forever forbidden. ture stock, or other obligation of any com- This ignores the inexorable lessons of his- pany incorporated in accordance with the tory and makes for Irredentism. laws of that power. She will further fur- nish any information desired concerning SECTION VII.-CZECHOSLOVAK STATE. property of her nationals so situated. Articles 81-83. Germany recognizes the in- On the whole, it may be said that in the dependence of the Czecho-Slovak state and pursuit of large indemnities the Allied and renounces all rights and title over a portion Associated governments have in these Arti- of Silesian territory therein described. Clns repudiated principles, which, in the lan- See Comment under Article 36. guage of Spaight, the eminent English pub- icist, constitute the Magna Charta of war Article 84. German nationals habitually resi- law. (War Rights on Land, p. 374). And dent in territories recognized as forming since the remaining great powers have con- part of the Czecho-Slovak state will obtain eerted in its repudiation it may be assorted Czecho-Slovak nationality ipso facto and that they have brought to naag9ht the en lose their German nationality. lightened and laborious work of a century in t*is regard. Article 85. Within a period of two years German nationals over 18 years of age the concluding paragraph of the By resident in such territories may foregoing provisions are de- habitually Annex the German nationality; "within the industrial, literary and opt for clared to apply to same period Czecho-Slovaks who are Ger- artistic property. man nationals and are in a foreign coun- This provision appears, with respect to try will be entitled, in the absence of any some of the signatories, to make a "scrap in the foreign ' provision to the contrary of paper of the "Revised Berne Convention" law, and if they have not acquired the for the protection of copyrights, signed No- foreign nationality by complying with the vember 13, 1908, and other similar treaties. requirements laid down by the Czecho (See Comment Article 286). Slovak state." SECTION VI.-AUSTRIA. See Comment under Article 37. Article 86. The Czecho-Slovak state agrees Article 80. Germany acknowledges and will to embody in a treaty with the Allied and respect strictly the independence of Aus- power provisions for the pro- agrees Associated tria within frontiers to be fixed and tection of inhabitants differing from the that the independence is inalienable. majority in race, language or religion. Provision in the new German Constitu- See Treaty of Berlin, 1878, Articles 5, 25, in tion for a seat for an Austrian delegate 35 and 44, recognizing conditional inde- was held by the Prin- the German Reichsrat pendence of Bulgaria, Roumania, Servia and eipal Allied and Associated Powers to be (Martens, N. R. G. 2nd Ser. respect" Aus- Montenegro. violative of this obligation "to 111, p. 449). with the trian independence. (Compare right, and perhaps the the territorial This implies the mutual obligation "to respect" duty of intervention. integrity and existing political independence, (To be continued.) under Article 10.) The racial cheracteris-
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