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INTERNATIONAL LAW 
 
 APPLIED TO THE 
 
 TREATY OF PEACE 
 
 BY 
 
 STERLING E. EDMUNDS. LL. D. 
 
 LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 
 
 SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 
 
 Being a Comparative Analysis of the Covenant 
 
 and Treaty of Versailles of June 28. 1919. 
 
 with the Articles of the Settlement 
 
 and the Applicable Principles 
 
 of the Law of Nations 
 
 Set out in Parallel 
 
 Columns. 
 
INTERNATIONAL LAW 
 
 APPLIED TO THE 
 
 TREATY OF PEACE 
 
 J 5 BY 
 STERLING E£ EDMUNDS, LL. D. 
 LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 
 SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 
 
 Being a Comparative Analysis of the Covenant 
 
 and Treaty of Versailles of June 28. 1919. 
 
 with the Articles of the Settlement 
 
 and the Applicable Principles 
 
 of the Law of Nations 
 
 Set out in Parallel 
 
 Columns 
 
 [|1H O 
 

INTERNATIONAL LAW 
 
 APPLIED TO THE 
 
 TREATY OF PEACE 
 
 BY 
 
 STERLING E. EDMUNDS, LL. D. 
 
 LECTURER ON INTERNATIONAL LAW ST. LOUIS UNIVERSITY LAW 
 
 SCHOOL AND FORMER ASSISTANT IN THE DEPARTMENT OF STATE. 
 
 Considering the terms of the Treaty of Versailles, as they relate to the 
 actual settlements, from the standpoint of International Law, it maybe affirmed 
 that no modern treaty of peace has done this system such violence; certainly 
 not the cynical treaty of Vienna of 1815. For that treaty, in spite of the wicked- 
 ness 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 01 
 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. 
 
 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 private property of prisoners of war, are swept aside. The settled 
 distinctions with respect to belligerent rights of destruction, and those limiting 
 the exercise of belligerent force within lawful bounds, are confounded. The 
 effect of the outbreak of war on treaties i3 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 
 
 — 2 — 
 
the law in the infliction of punishments — would have done incalculable service 
 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 not 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 its 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 Lav/, 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 neutrals; and most likely the next war will be great. But there 
 can be very little doubt that if the next v/ar is upscrupulously waged, 
 it also will be followed by a reaction towards increased stringency 
 
 — 3 — 
 
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: 
 
 — 4 
 
International Law and the Treaty of Peace. 
 
 THE TREATY 
 
 Part 1. The Covenant of the League of 
 Nations. 
 
 The High Contracting Parties, in order 
 to promote international co-operation and 
 to achieve international peace and se- 
 curity, 
 
 By the acceptance of obligations not to 
 resort to war, 
 
 By the prescription of open, just and 
 honorable relations between nations, 
 
 By the firm establishment of the under- 
 standings of international law as the actual 
 rule of conduct among governments, and 
 
 By the maintenance of justice and a 
 scrupulous respect for all treaty obliga- 
 tions in the dealings of organized peo- 
 ples with one another, 
 
 Agree to this Covenant of this League 
 of Nations. 
 
 THE LAW. 
 
 Not only does the Covenant fail to pro- 
 vide any means for the "firm establishment 
 of the understandings of international law," 
 but the treaty itself appears to discard many 
 vital principles of the customary as well as 
 of the conventional law of nations. (See 
 Comment opposite Articles 232-287.) 
 
 Article 1. Members of the League shall be 
 those signatories named in the Annex and 
 also such of these named (as invited) as 
 shall accede without reservation by a dec- 
 laration deposited with the secretariat 
 within two months of the coming into 
 force of the treaty. 
 
 Thirty-two States, dominions, and colonies 
 mentioned in the Annex as signatories are de- 
 clared members (though China, one of the 
 states mentioned, refused to sign) and thir- 
 teen others are named as those invited to 
 become members, making forty-five in all. 
 
 In 1910, Oppenheim, the eminent English 
 successor to Westlake as Whewell Professor 
 at Cambridge, asserted (Vol. I, Int. Law, pp. 
 162-64) that there were then in Europe sev- 
 enty-four states possessing international per- 
 sonality and therefore members of the Fam- 
 ily of Nations. He included the twenty-four 
 German states and free towns. He cites 
 twenty-one states in the Americas, one in 
 Africa and one in Asia. As to China, Siam, 
 Afghanistan and Thibet he denied to them 
 the status, asserting that they possess inter- 
 national personality only for some purpose. 
 His list embraced ninety-seven. None of the 
 British dominions or colonies is mentioned 
 as possessing the essential attributes of an 
 international person qualified for association 
 in the Family of Nations. (See W. Allison 
 Phillips, The Peace Settlements, 1815 and 
 1919. Edinburgh Review, July, 1919, as to 
 exclusion of German states from the Holy 
 Alliance.) 
 
 Any fully self-governing state, dominion 
 or colony may become a member if its 
 admission is agreed to by two-thirds of 
 the Assembly, provided that it shall give 
 
 This paragraph confounds all previously 
 accepted principles with respect to Interna- 
 tional personality and sovereignty. If it con- 
 notes the assumption ipso facto by such do- 
 
 — 5 — 
 
effective guarantees of its sincere intention 
 to observe its international obligations and 
 shall accept such regulations as may be 
 prescribed by the League as to its military 
 and naval forces and armaments. 
 
 minion or colony of a bona fide free and 
 independent status, there is nothing incon- 
 sistent, but then it would cease to be a do- 
 minion or colony. Thus the British empire 
 would be broken up. 
 
 Half and part-sovereign states says Op- 
 pcnheim (Vol. I, pp. 529-530) may be par- 
 ties to international negotiation, but so-called 
 Colonial states, as the Dominion of Canada, 
 can never be parties to International negotia- 
 tion. Thus viewed from the standpoint of the 
 Law of Nations, the Dominion of Canada, the 
 Commonwealth of Australia, New Zealand 
 and the Union of South Africa are British 
 territory. (Ibid Vol. I, p, 231.) 
 
 No genuine League of Nations can be 
 founded upon such basic inequalities. These 
 inequalities appear not only in the organic 
 structure from the outset but they appear 
 with respect to the treatment of subsequently 
 admitted members. 
 
 Any member may, after two years' no- 
 tice of its intention so to do, withdraw 
 from the League, provided that all its in- 
 ternational obligations and all its obliga- 
 tions under this Covenant shall have been 
 fulfilled at the time of withdrawal. 
 
 The effect of notice of intended withdrawal 
 would be immediately to transfer to the 
 League the power of inquiry into and de- 
 cision upon the whole body of international 
 relations of the notifying state. Nor does it 
 appear that time would bar any case. 
 
 In a particular case a state may, of its own 
 free will, submit to an outside authority for 
 decision the quection c? its fulfillment or 
 nonfulfillment of certain obligations, without 
 derogating in any way from its sovereignty; 
 but to transfer the right of final decision over 
 the whole of its foreign relations is to yield 
 the very essence of external sovereignty. 
 Such state would occupy the position of ward 
 to the outside authority. (See 1 Halleck, Ch. 
 Ill, Sec. 1; Blumtschli, Sec. 64; Vattcl, Ch. 
 1; Manning, p. 93; Hall, Sec. 1; 1 Westlake, 
 Ch. 3.) 
 
 Article 2. The action of the League shall 
 be effected through the instrumentality of 
 an Assembly and of a Council, with a per- 
 manent Secretariat. 
 
 Article 3. The Assembly shall consist of 
 representatives of members of the League. 
 It shall meet at stated intervals and from 
 time to time as occasion may require, and 
 at its meetings may deal with any matter 
 within the sphere of action of the League 
 or affecting the peace of the world. At 
 meetings of the Assembly each member of 
 the League shall have one vote and not 
 more than three representatives. 
 
 Article 4. The Council shall consist of rep- 
 resentatives of the Principal Allied and 
 Associated Powers (the United, States, 
 Great Britain, Italy, France and Japan), 
 together with four other members to be 
 selected by the Assembly from time to 
 
 It will be observed that the Assembly, 
 which is a representative body, in principle 
 at least, is not required to meet within any 
 definite period as is the Council (infra Arti- 
 cle 4). Although apparently clothed with 
 concurrent power, it is in vital respects sub- 
 ordinate to the smaller Council. The basis 
 of legal equality in any League of Nations 
 necessarily requires equality in voting. (See 
 Scott, The Hague Peace Conferences, Vol. 
 1, p. 37.) 
 
 It will be noted that the principle of equal- 
 ity disappears at this point, the five Great 
 Powers constituting themselves an indefeasi- 
 ble majority. Yet every attempt at organiz- 
 ing a League of Nations must start from and 
 keep intact the independence and equality of 
 
 — 6 — 
 
time in its discretion. Belgium, Brazil, 
 Spain and Greece are named provisional 
 members. 
 
 all civilized states. (Oppenheim (1919), The 
 League of Nations, p. 33.) 
 
 With the approval of a majority of the 
 Assembly, the Council may name addi- 
 tional members whose representatives shall 
 have fixed places in the Council. 
 
 The Council shall meet from time to 
 time as occasion may require and at least 
 once a year, and it may deal with any 
 matter within the sphere of action of the 
 League or affecting the peace of the 
 world. 
 
 The enlargement of the Council can take 
 place only by unanimous consent of the 
 Council, with the approval of a majority 
 of the Assembly. Self-interest will always 
 adjust and readjust the balance in the Coun- 
 cil. 
 
 Any member not represented on the 
 Council shall be invited to send a repre- 
 sentative to sit as a member at any meet- 
 ing during the consideration of matters 
 specially affecting the interests of such 
 member. 
 
 At meetings of the Council each mem- 
 ber represented shall have one vote and 
 not more than one representative. 
 
 Article 5. Except where otherwise provid- 
 ed, decisions of the Assembly and the 
 Council shall require agreement of all 
 members represented at the meeting. 
 
 Matters of procedure, including appoint- 
 ment of committees to investigate partic- 
 ular matters, may be decided by a ma- 
 jority present. 
 
 Although a state whose affairs are under 
 consideration by the Council may have a 
 representative thereon, the rule of unanimity 
 excludes the vote of this added representa- 
 tive. (Infra Article 5.) Such representa- 
 tive is therefore not an equal in fact. 
 
 While there is equality in the vote of the 
 Council, the principle is nullified by inequali- 
 ty of representation. 
 
 That is to say, there must be agreement 
 as to such representatives present. 
 
 The first meeting of the Assembly and 
 the first meeting of the Council shall be 
 summoned by the President of the United 
 States. 
 
 This would constitute the President of the 
 United States the presiding officer of both 
 bodies temporarily, at least. 
 
 article 6. The permanent secretariat shall 
 be established at the seat of the League. 
 The secretariat shall comprise a Secretary 
 General and such other secretaries and 
 staff as may be required. 
 
 The first Secretary General shall be the 
 person named in the Annex; thereafter he 
 shall be appointed by the Council with the 
 approval of a majority of the Assembly. 
 
 Secretaries and Staff shall be appointed 
 by the Secretary General with the ap- 
 proval of the Council. 
 
 The Secretary General shall act in that 
 capacity at all meetings of the Assembly 
 and of the Council. 
 
 As to the possible magnitude of the per- 
 sonnel, see infra Comment opposite Article 
 282. 
 
 The expenses of the Secretariat shall be 
 borne by members in accordance with the 
 apportionment of expenses of the Interna- 
 tional Bureau of the Universal Postal 
 Union. 
 
 rticle 7. The seat of the League is es- 
 tablished at Geneva. The Council may de- 
 
 — 7 — 
 
cide at any time to establish the seat else- 
 where. 
 
 All positions under or in connection with 
 the League including the secretariat, shall 
 be open equally to men and women. 
 
 Representatives of members of the 
 League and officials of the League when 
 engaged on the business of the League 
 shall enjoy diplomatic privileges and im- 
 munities- 
 
 Diplomatic privileges and immunities in- 
 clude extra-territoriality, that is, immunity 
 from local law, civil and criminal, in for- 
 eign countries, such immunities extending to 
 the agent's residence and to those in his 
 suite. Owing to the inviolability attaching 
 by the law of nations to the person of a 
 diplomatic agent, a crime committed against 
 him is punished with exceptional severity 
 by the laws of all states. (U. S. vs. Hand, 
 2 Wash. 435.) 
 
 The diplomatic immunities extended to all 
 officials of the League must be considered 
 as deriving from the respect due to the sov- 
 ereignty of the League as a distinct politi- 
 cal entity, as the immunities of an ambassa- 
 dor flow from the respect due to the person 
 of the sovereign v/hom he represents. 
 
 Yet Article 7 appears to extend the prin- 
 ciple far beyond its application ,even in 
 the case of ambassadors in clothing these 
 officials with the status apparently anywhere 
 "when engaged on the business of the 
 League." Diplomatic immunities do not at- 
 tach under the law of nations to ambassa- 
 dors passing through third countries. They 
 can claim no more than courteous treatment. 
 (1 Westlake, pp. 273-275; 1 Oppenheim, pp. 
 469-470; 1 Twiss, Sec. 222; 1 Wharton, Sec. 
 97; 4 Moore, Sec. 643.) 
 
 By the Treaty of Berlin, 1878, and the 
 Treaty of London, 1883, instituting the Dan- 
 ube Commission, the principle of inviolabil- 
 ity was recognized as between the signato- 
 ries as attaching to the respective represen- 
 tatives, their archives, etc. But it was not 
 contemplated as of universal application, as 
 in the present instance where League offi- 
 cials will be sent into the territories of non- 
 members. 
 
 The buildings and other property occu- 
 pied by the League or its officials or by 
 representatives attending its meetings shall 
 be inviolable. 
 
 Article 8. The members of the League rec- 
 ognize that the maintenance of peace re- 
 quires the reduction of national arma- 
 ments to the lowest point consistent with 
 national safety and the enforcement by 
 common motion of international obliga- 
 tions. 
 
 The Council, taking into account the 
 geographical situation and circumstances 
 of each state, shall formulate plans for 
 such reduction for consideration and ac- 
 tion of the several governments. 
 
 Such plans shall be subject to reconsid- 
 eration and revision at least every ten 
 years. 
 
 After these plans shall have been adopt- 
 
 The deduction is a fair one that "the geo- 
 graphical situation and circumstances" to 
 be taken into account in reduction of arma- 
 ments create an exception in favor of the 
 Great Powers, whose far-flung empires may 
 be thought to require large military and na- 
 val establishments. And the Great Pow- 
 ers, constituting a dominant force in the 
 Council, will formulate plans for themselves 
 as well as for other states. 
 
 The hegemony of the Great Powers in the 
 League is silently recognized throughout the 
 Covenant. Yet historically a Great Power 
 of today is not necessarily a Great Power of 
 tomorrow. Spain, Portugal and Sweden were 
 Great Powers in 1815. Germany, Austria- 
 
 s — 
 
ed by the several governments the limits 
 of armaments fixed therein shall not be 
 exceeded without the concurrence of the 
 Council. 
 
 Members agree that the manufacture by- 
 private enterprise of munitions of war is 
 open to grave objections. The Council 
 shall advise how the evil effects can be 
 prevented. 
 
 Members undertake to interchange full 
 and frank information as to the scale of 
 their armament, their programs and of 
 their industries adaptable to warlike pur- 
 poses. 
 
 Hungary and Russia were Great Powers in 
 1914. 
 
 And, it may be asked, who will keep in 
 order those who are to keep the world in 
 order? 
 
 Article 9. A permanent Commission shall 
 be constituted to advise the Council on the 
 execution of the provisions of Articles I 
 and 8 relating to military and naval ques- 
 tions. 
 
 Article 1 0. Members of the League under- 
 take to respect and preserve as against 
 external aggression the territorial integrity 
 and existing political independence of all 
 members of the League. In case of any 
 such aggression or in case of any threat 
 or danger of such aggression, the Council 
 shall advise upon the means by which this 
 obligation shall be fulfilled. 
 
 This would undoubtedly be a military com- 
 mission whose functions would include super- 
 intending disarmament of states newly ad- 
 mitted as well as directing the forces neces- 
 sary to vindicate international obligations. 
 
 This Article embraces two distinct obliga- 
 tions in the first sentence: viz., "To respect" 
 the territorial integrity and existing political 
 independence of member states, and to "pre- 
 serve" the same as against external aggres- 
 sion. 
 
 A state undertaking to respect the terri- 
 torial integrity of another contracts to re- 
 frain from doing anything that shall in any 
 way impair or impeach that territorial integ- 
 rity, including its possessions, dependencies, 
 colonies, protectorates, leased territories, 
 spheres of influence and hinterlands. AH of 
 these terms express degrees of territorial 
 rights. (1 Westlake Ch. 6.) 
 
 Under existing principles of the law of 
 Nations states are under a general duty to 
 respect the territory and independence of all 
 other states. This duty connotes the right 
 of all states to complete immunity from in- 
 terference by others. But there are excep- 
 tions to this general rule recognized by the 
 law. A state may lawfully decline to re- 
 spect the territory and independence of an- 
 other (1) in self-defense, (2) in accordance 
 with treaty stipulations, (3) on grounds of 
 humanity, and (4) in behalf of an oppressed 
 population. (Davis 4 ed. p. 104, Woolsey 
 Sec. 43; Wheaton Sec. 36; Snow p. 57; Hall 
 Sec. 88; Lawrence Sec. 74-89; 1 Moore p. 
 73.) 
 
 The acceptance of the obligation "to re- 
 spect" the territorial integrity and existing 
 political independence of member states 
 means therefore a mutual engagement not 
 to interfere on grounds of humanity or to 
 assist an oppressed people or otherwise, with- 
 in the territorial limits of member states. This 
 obligation would probably forbid extending a 
 recognition of belligerency to revolting peo- 
 ples within the territories of member states. 
 
 The second obligation in the first sentence 
 of Article 10 is that to preserve as against 
 external aggression the territorial integrity 
 
 — 9 — 
 
and existing political independence of mem- 
 ber states; so that there is not only the duty 
 to abstain from giving any recognition or 
 assistance to a revolting portion of a mem- 
 ber state, but there exists the duty to aid in 
 putting down such revolt should some other 
 stato assist the revolting portion. 
 
 It is plainly a renewal of the proposition of 
 the Holy Allies at the Congress of Aix-Ia- 
 Chapelle, 1818, to stereotype the state pos- 
 session, which was promptly rejected by Lord 
 Castlereagh as impossible of achievement un- 
 til existing wrongs had been righted. (Alli- 
 son's Life of Castlereagh, Vol. 5, p. 66.) 
 
 Article II. Any war or threat of war, 
 whether immediately affecting members or 
 not, is hereby declared a matter of con- 
 cern of the League, and the League shall 
 take any action deemed wise and effectual 
 to safeguard the peace of nations. In case 
 any such emergency should arise the Sec- 
 retary General shall on the request of any 
 member forthwith summon a meeting of 
 the Council. 
 
 What, it is pertinent to ask, constitutes 
 a threat of war? The extent and variety of 
 acts and situations embodying a threat of 
 war defy enumeration. It is impossible even 
 to catalogue acts and causes cf war. One 
 instance of a threat of war, in that it is a 
 hostile act, may be cited: namely, any pre- 
 mature recognition of belligerency or of in- 
 dependence extended to a people struggling 
 to be free. (Hall, pp. 39-42; Woolsey, Sec. 
 180; Davis, 4th ed. pp. 277-278). 
 
 The term "threat of war" is absolutely un- 
 defined in the terminology of the law of na- 
 tions. It may be construed to embrace any 
 degree of friction in international negotia- 
 tion and authorize intervention by the 
 League. 
 
 It is the friendly right of each mem- 
 ber to bring to the attention of the As- 
 sembly or Council any circumstance 
 whatever affecting international relations 
 which threatens to disturb international 
 peace or good understanding. 
 
 It is presumed that the right of the As- 
 sembly or Council to obtrude itself into the 
 ordinary diplomatic negotiations between 
 states would not be needlessly exercised, yet 
 the right is apparently contemplated if the 
 negotiations do not move smoothly. The 
 possession of the untrammeled right of nego- 
 tiation is the test of independence. (Manning 
 pp. 93-100; Westlake, Chap. VII; 1 Halleck, 
 Ch. IV., Sec. 1.) 
 
 Article 12. Members agree that if there 
 should arise between them any dispute 
 likely to lead to a rupture, they will sub- 
 mit the matter either to arbitration or to 
 inquiry by the Council, and they agree in 
 no case to resort to war until three 
 months after the award by arbitrators or 
 the report by the Council. In any case the 
 award by arbitrators shall be made within 
 a reasonable time and the report of the 
 Council shall be made within six months 
 after submission. 
 
 The obligation embodied in this Article 
 has been assumed generally by the civilized 
 states or the world in bilateral treaties; and 
 since 1899 the Permanent Court of Arbitra- 
 tion at The Hague has been successfully oc- 
 cupied with a great variety of disputes. It 
 is true that in a great majority of these bi- 
 lateral treaties, "questions of honor and vital 
 interest," that is, political questions, are 
 excepted and reserved. There are certain 
 political questions that are admittedly not 
 arbitrable, as, for example, with us, one in- 
 volving the validity of the Monroe Doctrine. 
 
 The principle of delay has been similarly 
 embodied in bilateral treaties, providing for 
 commissions of inquiry in place of reference 
 to arbitration, though it has not been ex- 
 tensively applied as yet, except by the United 
 States in the so-called Bryan treaties of 1913- 
 1914. 
 
 — 10 
 
Article 1 3. Members agree that whenever a 
 dispute arises between them which they 
 recognize as suitable for submission to ar- 
 bitration, and which cannot be satisfactor- 
 ily settled by diplomacy, they will submit 
 the whole subject matter to arbitration. 
 
 Disputes as to interpretation of treaties, 
 as to questions of international law, as to 
 the existence of any fact which, if estab- 
 lished, would constitute a breach of interna- 
 tional obligation or as to the extent and 
 nature of reparation to be made for such 
 breach are declared to be suitable for ar- 
 bitration. For the consideration of any 
 such dispute the Court of Arbitration to 
 which such case is referred shall be the 
 court agreed on or stipulated in any con- 
 vention between the parties. Members 
 agree to carry out the award in good faith, 
 and not to resort to war against a member 
 complying therewith. In the event of fail- 
 ure to carry out such award the Council 
 shall propose what steps should be taken 
 to give effect thereto. 
 
 This Article puts "teeth" in the conven- 
 tions of 1899 and 1907 establishing the Per- 
 manent Court of Arbitration at The Hague. 
 This Court has heard and determined many 
 grave controversies, but its determinations 
 have been founded largely upon compromise 
 and expediency rather than upon the appli- 
 cation of the principles of law. It was due 
 to an existing sense of the inadequacy of this 
 Court as a means for building up a body of 
 legal decisions that the American delegation 
 to The Hague Conference of 1907 was able 
 to bring about the adoption of a draft con- 
 vention for the institution of a Court of Ar- 
 bitral Justice. The matter of representation 
 alone prevented it from being put into imme- 
 diate operation, a difficulty easy of solution 
 today. 
 
 The convention establishing the Permanent 
 Court of Arbitration appears to be the only 
 one of the dozen or more of benefacient con- 
 ventions signed at The Hague in 1907 that is 
 recognized by the Principal Allied and Asso- 
 ciated Powers as possessing any binding force 
 or as worthy of survival. (See Article 237.) 
 There appears to be a distinct break with the 
 past twenty years' development of law and 
 judicial processes as the pre-eminently de- 
 sirable means toward the establishment of 
 P~ace, and an espousal of the doctrine of 
 force. 
 
 Article 1 4. Council shall formulate and 
 submit to members of the League for adop- 
 tion plans for a Permanent Court of Inter- 
 national Justice. 
 
 The convention referred to (supra, oppo- 
 site Article 13) is ready at hand, having 
 been accepted by all the civilized states of 
 the world. (See Scott, The Hague Confer- 
 ences.) 
 
 Article 1 5. Members agree that any dispute 
 likely to lead to a rupture, not submitted 
 in accordance with Article 1 3, will be sub- 
 mitted to the Council. Any party may 
 effect submission by giving notice to the 
 Secretary General. The parties will com- 
 municate to the Secretary General state- 
 ments of their case with all revelant facts 
 and papers, and the Council may forthwith 
 direct the publication thereof. 
 
 The Council will endeavor to effect a 
 settlement, and if successful a statement 
 shall be made public, giving the facts and 
 explanations. If the dispute is not settled 
 the Council, either unanimously or by ma- 
 jority vote, shall publish a report and rec- 
 ommendations. Any member of the League 
 or Council may do likewise. 
 
 If the report of the Council is unani- 
 mously agreed to by members other than 
 the representatives of one or more parties 
 to the dispute, such members will not go 
 to war with any party complying with the 
 recommendation. 
 
 If the Council fails to reach a report 
 unanimously agreed to by members other 
 than those in dispute, members reserve the 
 right to take such action as they consider 
 necessary for the maintenance of right and 
 justice. 
 
 This Article attempts to deal with disputes 
 other than those known as "justiciable," dealt 
 with in Article 13. It is realized that some 
 of these questions are beyond amicable solu- 
 tion. They are outside the realm of law and 
 no principle of law or possibility of compro- 
 mise can give hope of settlement. In such 
 circumstances the League apparently sanc- 
 tions a resort to war, after conciliation 
 through the medium of the Council has failed. 
 The principles embodied in Articles 12, 13 
 and 15 are sound; the objection lies in the 
 methods of their application. 
 
 What provision is made, it may be asked, 
 for cases of self-defense against sudden at- 
 tack, as for example, a border raid? Must 
 the state assailed submit passively until the 
 Council has deliberated upon the question of 
 "external aggression" or upon conciliation? 
 The right of self-defense appears nowhere to 
 he recognized in the sense that it has hereto- 
 fore existed. (Hershey, 144-146, and notes.) 
 
 11 
 
If the dispute between the parties is 
 claimed by one of them, and is found by 
 the Council, to arise out of a matter which 
 by international law is solely within the 
 domestic jurisdiction of that party, the 
 Council shall so report and make no rec- 
 ommendations. 
 
 It will be observed that as to whether or 
 not a dispute arises out of a matter "which 
 by international law is solely within domes- 
 tic jurisdiction" is for the Council to find. 
 There is a great variety of things a state 
 may do in pursuance of its territorial su- 
 premacy, or domestic jurisdiction, which have 
 international effect, and which may or may 
 not infringe the rights of other states. Thus 
 all persons, including aliens, within the terri- 
 torial limits of a state are subject to the 
 juricdiction of that state, yet the state to 
 which the alien owes allegiance may right- 
 fully protect him abroad and compel a stand- 
 ard of treatment recognized by International 
 Law. (See Borchard, Diplomatic Protection, 
 etc.) So all exercises of domestic jurisdiction 
 having international effect may be held to in- 
 volve international concern. Knowing that 
 "it is the duty of a good judge to extend his 
 jurisdiction," it is conceivable that much ex- 
 ercise of domestic jurisdiction having inter- 
 national effect might ultimately pass under 
 the control of the Council in the application 
 of this Article. 
 
 The Council may in any case refer the 
 question to the Assembly, and it shall be 
 referred to tli2 Assembly at the request of 
 either party, if such request be made with- 
 in fourteen days after the submission of 
 the dispute to the Council. The Assembly 
 shall have all the powers of the Council 
 conferred in this Article and in Article 12, 
 provided that a report made by the As- 
 sembly be concurred in by members in 
 the Council and a majority of other mem- 
 bers of the League other than the parties 
 to the dispute. 
 
 The apparent concurrent power of the 
 Assembly will be seen by this Article to have 
 disappeared, requiring the concurrence of the 
 Council to effectuate its action, thus leaving 
 the Ccuncil the preponderantly powerful au- 
 thority in the scheme. 
 
 Article 1 6. Should any member resort to 
 war in disregard of its covenants under 
 Articles 12, 13 and 15, it shall ipso facto 
 be deemed to have committed an act of 
 war against all other members of the 
 League, which hereby undertake to sub- 
 ject it to the severance of all trade or 
 financial relations, the prohibition of all 
 intercourse between their nationals and 
 the nationals of the Covenant-breaking 
 state and the nationals of any other state. 
 
 It shall be the duty of the Council in 
 such case to recommend to the several 
 governments concerned what effective mil- 
 itary, naval or air force the members shall 
 severally contribute to the armed forces to 
 be used to protect the Covenants of the 
 League of Nations. 
 
 Members of the League agree, further, 
 mutually to support one another in finan- 
 cial and economic measures in order to 
 minimize the loss and inconvenience re- 
 sulting, and that they will afford passage 
 of troops through their territories. 
 
 It is for the Council (or the Assembly with 
 the consent of the Council under Article 15) 
 to decide when the contingency arises under 
 which the duty of invoking and applying 
 measures of commercial warfare falls upon 
 members. 
 
 The term "resort to war" must be held to 
 include defensive and offensive warlike vio- 
 lence, as well as war legally declared and war 
 in its material sense. (The Three Friends 
 (1896) 166 U. S.) The obligations under 
 this paragraph are clear and definite. 
 
 The duty of commercial boycott appears 
 to arise ipso facto with a determination by 
 the Council as to a "resort to war"; the duty 
 to contribute armed forces appears to rest 
 on a decision of the League ad referendum. 
 
 Whether or not a member contributes to 
 the armed forces he shall contribute his share 
 toward the financial burdens assumed by 
 those states employing their forces against 
 the recalcitrant state, and become a passive 
 ally at least to the extent of permitting the 
 passage of troops across his territory. Such 
 assistance constitutes war quite as fully as 
 though troops were furnished. 
 
 — 12 
 
Any member of the League which has 
 violated any covenant may be declared no 
 longer a member by unanimous vote or 
 the Council excluding the vote of the mem- 
 ber in disfavor. 
 
 Article 1 7. This Article extends the force 
 of Articles 12 to 16 inclusive to non-mem- 
 bers of the League, who shall be invited to 
 accept the obligations of membership for 
 the purpose of the dispute. 
 
 Upon such invitation the Council shall 
 immediately institute an inquiry. 
 
 This paragraph clothes the Council with 
 jurisdiction over all matters affecting or held 
 to affect international relations arising in non- 
 member states, with or without the approval 
 of such non-members. It necessarily involves 
 a denial of the heretofore accepted principles 
 of the equality and independence of states. 
 
 There is no limit to the measures that may 
 be taken. 
 
 If both parties to the dispute be non- 
 members and decline to accept the obliga- 
 tions of membership, the Council may take 
 such measures and make such recommen- 
 dations as will prevent hostilities and re- 
 sult in settlement. 
 
 On the whole this Article reduces those 
 non-members desiring to retain sovereignty 
 and independence to the same condition of 
 wardship to the Council as is produced in the 
 cases of members other than the Principal 
 Allied and Associated Powers. 
 
 The power to be assumed by the Council 
 appears to be that of unlimited intervention. 
 Consent to the exercise of the power may be 
 inferred as to signatories, but it can not be 
 inferred as to non-signatory or non-member 
 states. The principle of independence would 
 vanish from the law of nations under this 
 Article. 
 
 Article 1 8. Every treaty or international 
 engagement entered into hereafter by any 
 member shall be forthwith registered with 
 the Secretariat and published. No such 
 treaty shall be binding until so registered. 
 
 Article 19. The Assembly may from time 
 to time advise the reconsideration of 
 treaties which have become inapplicable. 
 
 Article 20. Members severally agree that 
 the covenant abrogates all obligations and 
 understandings inter se which are incon- 
 sistent with the terms thereof, and that 
 they will not hereafter enter into incon- 
 sistent engagements. Any member bound 
 by inconsistent obligations shall take im- 
 mediate steps to procure release therefrom. 
 
 The execution of this Article is left to the 
 conscience of the members; there is no pro- 
 vision for scrutiny into existing treaties of 
 alliance and other conventions serving special 
 aims, nor is there any criterion by which in- 
 consistency may be determined to exist. Thus 
 the Anglo-Japanese Alliance, with respect to 
 the special interests of those two states in 
 Asia, announces as an object the preserva- 
 tion of peace. It may be contended by the 
 High Contracting Parties that no incompati- 
 bility exists; that it is in fact a "regional un- 
 derstanding" for securing the maintenance of 
 peace. (See Article 21.) 
 
 It is clear that different standards will be 
 applied as between the Principal Allied and 
 Associated Powers on the one hand, and the 
 small states on the other. 
 
 — 13 — 
 
Article 21. Nothing in this Covenant shall 
 be deemed to affect the validity of interna- 
 tional engagements, such as treaties of ar- 
 bitration, or regional understandings like 
 the Monroe Doctrine, for securing the 
 maintenance of peace. 
 
 In the first part of this sentence all bilateral 
 and multi-lateral treaties of arbitration are 
 recognized as possessing continuing binding 
 force. (See comment opposite Article 282- 
 287.) 
 
 As to the Monroe Doctrine, it is not a 
 regional understanding; it is a mere unilateral 
 declaration of state policy which has never 
 received the recognition of any state as a rule 
 of international law. It is, however, founded 
 upon the right of self-preservation, which 
 right is recognized by international law. (1 
 Phillimore, Sees. 210-220; 1 Twiss, Sees. 106- 
 108-110; 1 Halleck, Ch. IV, Sees. 1-7, 18- 
 27; Wheaton, Sec. 60; Woolsey, Sees. 17-37; 
 Davis p. 93.) 
 
 The term "regional understanding" is new 
 in diplomatic language and has no history 
 from which a definition may be drawn. It 
 would appear, however, to embrace a vast 
 field of bilateral and multilateral treaties, con- 
 ventions and agreements relating to geograph- 
 ical areas and to the various degrees of ex- 
 isting territorial rights. The aggression of 
 all powerful states upon weaker ones, estab- 
 lishing protectorates, spheres of influence, 
 spheres of interest and hinterlands, and ex- 
 acting territory on lease, has been clothed 
 invariably in language emphasizing the anxi- 
 ety of the aggressor for the maintenance of 
 peace and the extension of protection. Such 
 is the language of diplomacy, and if accepted 
 literally, all such agreements, founded upon 
 force and fraud alone, are validated. (See 
 1 Westlake, 121-142, for discussion of minor 
 territorial rights.) 
 
 This Article evidences merely a continua- 
 tion of the stereotyping process, seeking to 
 bind down mighty natural forces that no hu- 
 man power can hold in check. As a perti- 
 nent illustration of regional understanding the 
 Lansing-Ishii agreement of 1917 recognizes 
 the "special interests" of Japan in China, on 
 the ground of contiguity; if the principle of 
 equality has any validity whatever China is 
 equally entitled to a recognition of special 
 interests in Japan upon the same ground. 
 
 These understandings are not like the Mon- 
 roe Doctrine, which harbors no aggressive 
 designs, but from the materialistic European 
 and Asiatic points of view, the Monroe Doc- 
 trine is in the same category. 
 
 Article 22. To those colonies and territories 
 which have ceased to be under the sover- 
 eignty of the states which formerly gov- 
 erned them and which are inhabited by 
 peoples not yet able to stand by them- 
 selves under the strenuous conditions of 
 the modern world, there shall be applied 
 the principle that the well-being and de- 
 velopment of such peoples form a sacred 
 trust of civilization and that securities for 
 the performance of this trust should be em- 
 bodied in this covenant. The best method 
 
 These peoples are perfectly able to stand 
 alone if protected against despoilment and 
 degradation at the hands of aggressive power- 
 ful states. 
 
 — 14 — 
 
of effecting this purpose is to entrust the 
 tutelage of such peoples to advanced na- 
 tions, as mandatories on behalf of the 
 League. 
 
 The character of the mandate must dif- 
 fer according to the stage of development 
 of the people, the geographical situation of 
 the territory, its economic conditions and 
 other similar circumstances. 
 
 Certain communities of the former Turk- 
 ish empire have reached a stage of devel- 
 opment where their independence can be 
 provisionally recognized, subject to the ren- 
 dering of administrative advice and assist- 
 ance by a mandatory. 
 
 Other peoples, especially those in Africa, 
 must be placed under a mandatory respon- 
 sible for administration, order, morals, the 
 prohibition of the slave-trade and liquor 
 traffic, and the prevention of military or- 
 ganization among the natives. 
 
 There are territories, such as Southwest 
 Africa and certain of the South Pacific 
 islands which, owing to sparseness of popu- 
 lation, remoteness from civilization or con- 
 tiguity to the territory of the mandatory, 
 can best be administered as integral por- 
 tions of its territory. 
 
 In every case the mandatory shall render 
 to the Council an annual report in refer- 
 ence to the territory committed to his 
 charge. 
 
 The degree of authority, control or ad- 
 ministration to be exercised by the manda- 
 tory shall, if not previously agreed upon, 
 be explicitly defined by the Council. 
 
 A permanent commission shall be con- 
 stituted to receive and examine annual re- 
 ports and advise as to the observance of 
 mandates. 
 
 After the laudable sentiments of the pre- 
 ceding paragraphs this is intended to prepare 
 the reader for certain exceptions, made nec- 
 essary in view of the existence of definite ob- 
 ligations in secret treaties and arrangements 
 for the distribution of the spoils of war. 
 
 This refers to Asia Minor and conforms 
 to the age-long British policy of dominating 
 the road to India. The principal community 
 referred to is Hedjaz, which is thus created 
 as a vassal state of Great Britain. 
 
 This is the paragraph that conceals but 
 conforms to secret arrangements for the dis- 
 position of German southwest African col- 
 onies to France and certain Pacific island 
 possessions to Japan. 
 
 It is a mere mandate for annexation. 
 
 With the possible exception of Belgium the 
 four Principal Allied Powers, who sit in the 
 Council, will alone retain possession of the 
 German colonies. They will, therefore, re- 
 port to themselves annually and define their 
 degrees of control, occupying the dual rela- 
 tion of principal and agent in this trust. 
 
 Such a commission can not perform a seri- 
 ous function. 
 
 Article 23. Subject to and in accordance 
 with conventions existing or hereafter 
 agreed upon the members of the League; 
 
 (a) Will endeavor to maintain fair and 
 humane conditions of labor for men, wo- 
 men and children in all countries; 
 
 (b) Will undertake to secure just treat- 
 ment of native inhabitants under their con- 
 trol; 
 
 (c) Will entrust the League with gen- 
 eral supervision over agreements relating 
 to traffic in women and children and in 
 opium and other dangerous drugs; 
 
 (d) With supervision of trade in arms 
 in countries in which it may be necessary; 
 
 (e) Will make provisions to secure free- 
 dom of communications and transit and 
 equitable treatment for commerce of all 
 members; 
 
 This program, when considered in con- 
 nection with Articles 24 and 282 infra, re- 
 veals a magnitude of labors and a diversity 
 of administrative power, the logical develop- 
 ment of which would abolish all conceptions 
 of sovereignty and independence among na- 
 tions. 
 
 15 — 
 
(f) Will endeavor to take steps for the 
 prevention and control of disease. 
 
 Article 24. There will be placed under the 
 direction of the League all existing inter- 
 national bureaux if the parties to such 
 treaties consent. All such bureaux here- 
 after established shall be placed under the 
 direction of the League. 
 
 The Council may include as part of the 
 expenses of the Secretariat the expenses 
 of any bureau or commission placed under 
 the League's direction. 
 
 Article 26. Amendments to this covenant 
 will take effect when ratified by members 
 whose representatives compose the Coun- 
 cil and by a majority of the members 
 whose representatives compose the Assem- 
 bly. No amendment shall bind a member 
 which signifies dissent, but in such case it 
 shall cease to be a member. 
 
 (See Comment opposite Articles 23, 282.) 
 
 It will be observed that there are no limits 
 to the powers which the Council may assume 
 under this Article, nor are there any limita- 
 tions upon the powers of the Council in the 
 whole covenant comparable to an internation- 
 al bill of rights. 
 
 The structure contemplates not an associa- 
 tion of equals, but the subordination of the 
 many to the authority of the few. The over- 
 rulling authority is not a diplomatic assembly 
 but a small group in which unequal repre- 
 sentation exists, combining and confusing 
 legislative, executive and judicial power. The 
 distinction may be clarified by a quotation 
 from Dr. James Brown Scott's The Hague 
 Peace Conferences, Vol. 1, pp. 35-36: 
 
 "It must not, however, be forgotten that 
 great — indeed radical and essential — dif- 
 ferences exist between a parliament and a 
 diplomatic assembly. A parliament legis- 
 lates for a nation, and by means of proper 
 representatives, it legislates for various 
 component parts of the nation. Interna- 
 tional conferences in which the nations of 
 the world are represented, recommend to 
 the nations represented, or legislate ad 
 referendum. A parliament presupposes 
 subordination; a conference equality. A 
 parliament binds the dependent; a con- 
 ference recommends to the equal and in- 
 dependent nations. The parliament, by 
 means of majorities, decrees or issues a 
 law; the conference, by means of unani- 
 mous agreement presents to the nations 
 represented, a draft which, when ratified 
 by the nations, becomes by the approval of 
 the internal and constitutional organs, the 
 law of the ratifying nation. When ratified 
 by the nations as a whole it becomes jus 
 inter gentes, that is, international law in 
 the strict sense of the word. At most the 
 decree or resolution of a majority binds 
 the majority; it does not, and under exist- 
 ing conditions, it can not well control an 
 individual state." 
 
 Oppenheim, in his three lectures on the 
 League of Nations (Supra, p. 36) in 1919, 
 declared it essential that the League start 
 from the beginning made by the two Hague 
 Conferences. This the Peace Conference 
 failed utterly to do. 
 
 — 16 
 
Annex I. Original Members of the League 
 of Nations Signatories of the Treaty: 
 
 The United States of Nicaragua 
 
 America Panam» 
 
 Belgium Peru 
 
 Bolivia Poland 
 
 Brazil China 
 
 British Empire Cuba 
 
 Canada Ecuador 
 
 Australia France 
 
 South Africa Greece 
 
 New Zealand Guatemala 
 
 India Portugal 
 
 Haiti Roumania 
 
 Hedjaz Serb, Croat, Slovene 
 Honduras State 
 
 Italy Siam 
 
 Japan Czecho-Slovakia 
 
 Liberia Uruguay 
 
 States invited to accede to the Covenant: 
 
 Argentine Republic Persia 
 
 Chili Salvador 
 
 Columbia Spain 
 
 Denmark Sweden 
 
 Netherlands Switzerland 
 
 Norway Venezuela 
 Paraguay 
 
 Annex II. Fir3t Secretary General of the 
 League of Nations: 
 
 The Honorable Sir James Eric Drum- 
 mond, K. C. M. G., C. B. 
 
 Part II. Boundaries of Germany. 
 
 Part III. Political Clauses for Europe. 
 
 SECTION I.— BELGIUM. 
 
 Article 31. Germany recognizes and con- 
 sents to the abrogation of the Treaty of 
 Neutralization of April 19, 1839, and un- 
 dertakes to recognize and to observe any 
 conventions which may be entered into by 
 the Principal Allied and Associated Pow- 
 ers or any of them, in lieu thereof. 
 
 The first part of this Article apparently 
 takes cognizance of the continuing force of 
 the principle enunciated by the London Con- 
 ference of 1871, to the effect that it is an 
 essential principle of the public law of Europe 
 that no state may release itself from the ob- 
 ligations of a multilateral law-making treaty, 
 or modify the terms thereof, except with the 
 consent of the other contracting parties, pre- 
 viously obtained. 
 
 The latter part of the Article looks to 
 some new arrangement whereby Belgium's 
 territorial situation is to remain permanently 
 fixed as a buffer state on the west coast of 
 Europe, in which arrangement, however, it is 
 anticipated that the United States, as one of 
 the Principal Allied and Associated Powers, 
 may not take part. 
 
 Article 32. The condominium of Prussia 
 and Belgium over Moresnet neutre is 
 replaced by the passage of this territory 
 under the single sovereignity of Belgium. 
 
 This is in effect annexation of Moresnet 
 neutre by Belgium, with the consent of the 
 Powers. 
 
 This territory has been in dispute since 
 1815 because of lack of agreement as to the 
 boundary treaty of that date between the 
 Netherlands and Prussia. 
 
 The renunciation of the territory in favor 
 
 — 17 — 
 
of 3elgium excludes the possibility of a plebis- 
 cite, and it does not appear that the inhabi- 
 tants are given any right of option. 
 
 Articles 33-34 stipulate for the cession of 
 Prussian Moresnet and Eupen and Malmedy 
 to Belgium, in which, within six months 
 the inhabitants may indicate in writing a 
 desire to see the whole or a part of the 
 territory remain under German sovereign- 
 ity. The League of Nations will decide as 
 to any action taken. 
 
 Anciently and until the close of the 18th 
 century it was the universal practice of suc- 
 cessful belligerents, in cases of conquest and 
 forced cession, to subject the inhabitants in 
 such conquered or ceded territory forthwith 
 to the new allegiance, regardless of their 
 wishes or preferences. It is no longer per- 
 missible, however, to hand such populations 
 around, in view of the development of politi- 
 cal principles which recognize the sovereign- 
 ty of the people as the governing factor in 
 the political and social life of civilized states. 
 This development has given rise to the plebis- 
 cite, under which the people may indicate en 
 masse their wishes as to the disposition of the 
 territory. (Funck-Brentano et Sorel (1887), 
 157 f. and 335 ff.; 1 Rivier, 210.) 
 
 Although the plebiscite was invoked as 
 early as 1552 by Henry II of France, after 
 the capture of Toul, Metz and Verdun, its 
 fixed position in international practice begins 
 in the French revolutionary period. Incon- 
 sistent though it may seem, the United States 
 has evinced little approval of the doctrine in 
 its own practice. 
 
 In the Articles of the treaty referred to it 
 must be assumed that the final disposition of 
 the territories ceded to Belgium will be in 
 accordance with the expressed wishes of the 
 inhabitants, though no pledge is given that 
 such will be the case, nor is the disposing 
 authority expressly bound to observe such 
 wishes. 
 
 Article 35. Provision is made herein for the 
 appointment, within fifteen days after the 
 coming into force of the treaty, of a com- 
 mission to delimit the boundaries of the 
 German territories going to Belgium. 
 
 If the final disposition of these territories 
 is to depend upon plebiscites it seems need- 
 less to have provided for a formal delimita- 
 tion of boundaries in advance. 
 
 Article 36. With the actual transfer of sov- 
 ereignty "over the territories referred to 
 above" — that is, upon the coming into 
 force of the treaty by ratification — "Ger- 
 man nationals habitually resident in the 
 territories will definitely acquire Belgian 
 nationality, ipso facto, and will lose their 
 German nationality. But German nationals 
 who became residents in the territories 
 after August I, 1914, shall not obtain Bel- 
 gian nationality without a permit from the 
 Belgian government. 
 
 Complementary to the right of plebiscite in 
 the mass of a population, looking to the pro- 
 tection of the political rights of a people with 
 respect to their territory, there has developed 
 for the protection of the minority in case of 
 transfer of territory, the so-called right of op- 
 tion, under which the individual may retain 
 his old allegiance, if he so desires, by the 
 formal recording of that election. ( 3 Moore, 
 Digest, Sees. 379-380; Boyd vs. Thayer, 143 
 U. S. 135.) 
 
 The Article opposite contains the remark- 
 able provision that German nationals habitual- 
 ly resident in the ceded territory will become 
 Bslgian nationals immediately upon the actual 
 transfer of sovereignty to Belgium, and will 
 lose their German nationality. Since allegi- 
 ance to Germany thus ceases Germany's right 
 and obligation to protect them likewise 
 ceases. That is one of the practical effects. 
 
 Article 3 7. However, within two years Ger- 
 man nationals over 18 years of age, in 
 
 It appears that German nationals who have 
 become involuntary Belgian nationals may ex- 
 
 18 
 
such territories will be entitled to opt for 
 German nationality, option by the husband 
 including the wife, and by the parents, in- 
 cluding their children under 18 years of 
 age. 
 
 Persons thus opting "must within the 
 ensuing twelve months transfer their place 
 of residence to Germany." 
 
 They may retain their immovable prop- 
 erty in the territories and may carry with 
 them their movable property free from ex- 
 port or import taxes, with respect to such 
 property. 
 
 ercise the option to divest themselves of Bel- 
 gian nationality within two years after the 
 coming mto force of the treaty and become 
 German nationals again, the German nation- 
 ality laws to the contrary notwithstanding. 
 
 Ihere is a provision of the German laws 
 which declares that a German national ac- 
 quiring allegiance elsewhere automatically 
 forfeits his German nationality. It is difficult 
 to understand how one who has forfeited a 
 particular nationality may opt for it; yet since 
 the acquisition of new nationality by Germans 
 in this case is involuntary, it may properly be 
 viewed as void from the standpoint of Ger- 
 man domestic law. 
 
 A £*i Ha ™^ eG , n P oi , nted ou * (supra, opposite 
 Article 30) the inhabitants of conquered or 
 ceded territory may not be compelled to ac- 
 cept the new allegiance against their will, 
 nationality is a juridical status and is essen- 
 tially voluntary. We have contended for the 
 principle m various manifestations from the 
 foundation of this government, until at length 
 ?» « bec , on !5 fixed in ^e law of nations. 
 (3 Moore s Digest, Sec. 439; Scott, Cases 
 
 To force a new allegiance even upon the 
 outcast German, and merely temporarily, as 
 m this case, is none the less a violation of 
 the law of nations. 
 
 Even the Congress of Vienna, that reac- 
 tionary gathering which divided the spoils of 
 Europe in 1 SI 5, did not attempt such a thing. 
 On the contrary in Article VII of the Treaty 
 of Paris of 1815, it is declared that in all 
 countries which shall change sovereigns, a 
 period of six years shall be allowed to the 
 inhabitants, of whatsoever condition or na- 
 tionality, "to dispose of their property, if 
 they should think fit to do so, and to retire 
 to whatever country they may choose." 
 
 The present treaty requires those opting 
 for German nationality, within the ensuing 
 twelve months, to "transfer their place of 
 residence to Germany," which appears to 
 mean that they shall quit the soil of Belgium 
 physically and return to Germany. Whether 
 they can emigrate to the United States or to 
 some other place is doubtful, at least before 
 they have transferred their residence to Ger- 
 many. 
 
 The provision with respect to their immov- 
 able property appears to accord with enlight- 
 ened practice. 
 
 Article 39. Belgium will assume a portion 
 of the public debt on account of such ter- 
 ritories to be calculated on the basis 
 
 (a) Of the ratio of the average for the 
 three years of 1911, 1912 and 1913 of 
 revenues of the ceded territories and the 
 average for the same years of the revenues 
 of the German empire, or 
 
 (b) Of the same ratio in its application 
 to the German state to which such ceded 
 territory belonged as of August I, 1914, 
 to be determined by the Reparation Com- 
 mission. 
 
 In cases of conquest or cession, such as 
 this, the rule is embraced in the maxim, res 
 transit cum suo onere; that is to say, the 
 conquerer succeeding to the rights must also 
 assume the burdens running with the terri- 
 tory. However, there are exceptions in prac- 
 tice. As to the public debt he need not share 
 in that portion imposed for the prosecution 
 of the war; and the calculation of the debt 
 to be assumed by Belgium properly refers to 
 the pre-war period. The portion to be as- 
 sumed conforms to enlightened practice. 
 
 Nothing is said, however, concerning other 
 
 — 19 
 
However, Belgium shall acquire all prop- 
 erty and possessions situated in such terri- 
 tory, belonging to the German empire and 
 states, including the private property of 
 the former German emperor and other roy- 
 al personages, free from any obligation to 
 make compensation or to allow credit for 
 same in the financial statement. 
 
 contractual obligations running with the ter- 
 ritory, and it must be inferred that these are 
 assumed subject to the law with respect to 
 same. (1 Moore, p. 334; 1 Westlake, p. 75; 
 Scott, Cases, 85.) 
 
 An invasion of the law of inviolability of 
 private property occurs in the Article in ques- 
 tion and that relates to the taking over by 
 Belgium of the private property of the former 
 German emperor and other royal personages, 
 along with public property. A century ago 
 no distinction was made between the private 
 property of the sovereign and the domains of 
 the state. Napoleon, for example, appropri- 
 ated the private property of the Elector of 
 Hesse-Cassel. 
 
 Though the property of a monarch is as- 
 similated to that of the state, and as such 
 devolves on the successor, the private prop- 
 erty of a sovereign or other head of the 
 state in his personal capacity, is under the 
 protection of the principle of the inviolabil- 
 ity of private property quite as fully as that 
 of the individual subjects. (Phillipson, Ter- 
 mination of War, etc., p. 321.) 
 
 SECTION II.— LUXEMBURG. 
 
 Articles 40-41. Germany renounces the 
 benefit of various treaties with Luxemburg 
 and recognizes its withdrawal from the 
 German Zollverein; agrees to the termina- 
 tion of the regime of neutrality and ac- 
 cepts in advance any arrangements to be 
 made by the Allied and Associated Powers 
 continuing the Grand Duchy as a buffer 
 state. Germany also recognizes the Grand 
 Duchy as sharing in the commercial ad- 
 vantages to be enjoyed by the Allied and 
 Associated Powers. 
 
 This is a purely political arrangement, de- 
 signed to take Luxemburg from under the 
 influence of Germany's commercial and polit- 
 ical system. 
 
 SECTION III.- 
 
 -LEFT BANK OF THE 
 RHINE. 
 
 Articles 42-44. Fortifications either on the 
 left bank of the Rhine or on the right bank 
 to the west of a line drawn 50 kilometers 
 to the east of the Rhine is forbidden, as 
 are military manoevres and the assembly 
 of armed forces in such area. 
 
 Violation of these terms shall be regard- 
 ed as a hostile act against the Powers 
 signatory of the treaty, and as calculated 
 to disturb the peace of the world. 
 
 In this arrangement, looking to the pre- 
 vention cf Germany ever again possessing a 
 strategic frontier against France, it will be 
 observed that all states signatory of the 
 treaty, including those neutral in the Great 
 War, should they ratify it, are to be bound 
 by this provision. It is in effect the neutral- 
 ization of such portion of Germany under a 
 world guarantee. 
 
 SECTION IV.— SAAR BASIN. 
 
 Article 45. As compensation for the de- 
 struction of coal mines in the north of 
 France and as reparation Germany cedes 
 to France in full and absolute possession, 
 with exclusive rights of exploitation, un- 
 encumbered and free from all debts and 
 charges, the coal mines of the Saar Basin. 
 
 This Article disregards utterly the rights 
 of private property to the extent that the 
 Saar Basin mines are privately owned, and is 
 in effect an act of confiscation in violation of 
 the spirit of law. (See Comment, Article 
 74.) 
 
 — 20 — 
 
It will be for Germany to indemnify the 
 proprietors. 
 
 Article 46. The extent of France's rights in 
 the Saar Basin mines is set out by refer- 
 ence to Chapter I of an Annex. French 
 ownership is extended to deposits for 
 which concessions may or may not have 
 been granted, whether private or public 
 property, with the right of working, not 
 working or transferring the right to work 
 the mines; all accessories and subsidiaries, 
 including plant and equipment, by-prod- 
 uct plants, electric lines, buildings, dwell- 
 ings, schools, hospitals, and all other prop- 
 erty enjoyed by the present owners, go 
 with the mines to France, free from all 
 debts and charges. Germany must pay 
 over any sums due employes on account 
 of pensions for old age or disability. 
 
 Workmen of French nationality may be 
 introduced into the region and they shall 
 have the right to belong to labor unions. 
 
 France shall have the right to establish 
 and maintain schools for its employes, and 
 of giving instruction in the French lan- 
 gauge. It may also maintain hospitals, dis- 
 pensaries, and other charitable and social 
 institutions. 
 
 France shall enjoy complete liberty with 
 respect to the distribution, dispatch and 
 sale prices of the products of the mines. 
 
 The government of the Saar Basin is 
 provided for in Chapter II of an Annex 
 referred to in Article 46. It will be en- 
 trusted to a Governing Commission of five 
 members chosen by the Council of the 
 League of Nations, to include a citizen of 
 France, a native of the Saar Basin who is 
 not a citizen of France, and three mem- 
 bers belonging to three countries other 
 than France or Germany; appointed annu- 
 ally. One of the five will be designated 
 as Chairman and he will act as the Execu- 
 tive. 
 
 The Commission shall have all the pow- 
 ers hitherto belonging to the German Em- 
 pire, Prussia and Bavaria in such region, 
 and shall be charged with the protection 
 abroad of the interests of the inhabitants. 
 Nevertheless it is declared the existing na- 
 tionality of the inhabitants remains un- 
 affected, unless they choose to acquire a 
 different nationality. 
 
 The inhabitants may elect local assem- 
 blies, every inhabitant over the age of 20 
 years having the right to vote, without 
 distinction of sex. Such inhabitants as 
 may desire to leave the territory may do 
 so without restriction as to property. 
 
 The Governing Commission is supreme 
 in interpreting the scheme under which it 
 is instituted, the decisions to be taken by 
 majority. 
 
 It does not appear that German workmen 
 have a right to belong to labor unions. 
 
 What, it may be asked, is the political 
 status of German nationals under the Gov- 
 erning- Commission? Their nationality is 
 said to be unaffected, yet nationality implies 
 allegiance and allegiance involves the right 
 and duty of protection. (Hershey, Essentials 
 of Pub. Int. Law, p. 236.) The protection 
 of German nationals is given over to the 
 Governing Commission. Germany may not 
 exert herself anywhere in their behalf. No 
 hindrance is placed in their way against de- 
 parting from the country or acquiring a 
 new nationality; in fact, these clauses, includ- 
 ing ample safeguards with respect to their 
 private property, are of customary liberality. 
 
 The inhabitants may elect local assemblies, 
 but it is nowhere set out what the degree of 
 influence such assemblies will have in the 
 ordering of the domestic concerns. 
 
 Article 47. The ultimate fate of the Saar 
 Basin is here dealt with by reference to 
 
 It is not quite plain why the "repurchase" 
 of the Saar Basin by Germany should have 
 
 — 21 — 
 
Chapter III of an Annex. In this chapter 
 it is set out that at the termination of 
 a period of fifteen years the population of 
 the Saar Basin may have a plebiscite, the 
 vote to be taken by communes or districts 
 on the three following propositions: 
 
 (a) Maintenance of the regime of the 
 Governing Commission; (b) Union with 
 France; (c) Union with Germany. 
 
 All persons without distinction of sex, 
 more than 20 years of age, resident in the 
 territory at the date of the signature of 
 the present treaty, v/ill have the right to 
 vote. Other conditions may be made by 
 the League of Nations. The League shall 
 decide on the ultimate sovereignty, tak- 
 ing into account the wishes of the inhabi- 
 tants thus expressed. If the League de- 
 cides in favor of Germany in whole or in 
 part, the rights of France shall be re-pur- 
 chased in gold, the price to be fixed by 
 a commission of three, one of whom shall 
 be nominated by France, the second by 
 Germany, and the third by the League of 
 Nations, who shall be neither a Frenchman 
 nor a German. The League of Nations 
 will take all decisions by majority. 
 
 been made contingent upon a plebiscite. 
 The population is overwhelmingly German, 
 and since the qualified voters are those only 
 over 20 years of age who were "resident in 
 the territory at the date of the signature of 
 the present treaty," that is, June 23, 1319, 
 no amount of colonization by France can 
 overcome that fact. 
 
 The question arises, however, may those 
 who have meantime removed from the Saar 
 Basin back to Germany, enjoy the privileges 
 of taking part in the plebiscite? Thsy would 
 seem to be qualified if more than 20 years 
 of age, since the provision designates "all 
 persons," etc., yet it is not clear. 
 
 The League shall decide, "taking into ac- 
 count the wishes of the inhabitants as ex- 
 pressed by the voting," with respect to the 
 final disposition of the territory. There is 
 no obligation to respect the results of the 
 plebiscites; it is merely to be taken into ac- 
 count along with other things. 
 
 Nothing is said of the rights of German 
 labor. France, as the one big employer in 
 the territory, dominating practically every 
 business and enterprise, is free wholly to sub- 
 stitute French for German labor, through 
 which the entire German population might 
 be compelled to emigrate. In such a con- 
 tingency it might then become important to 
 settle whether absentees, who were resident 
 in the Saar Basin in 1919, had the right to 
 take part in the plebiscite. 
 
 Article 48. Thi3 deals with the fixing 
 boundaries of the Saar Basin. 
 
 Article 49. Germanv renounces in favor of 
 the League of Nations, in the capacity of 
 trustee, the government of the territory 
 defined above. 
 
 A unique question of sovereignty arises 
 from this Article. It is stated that Germany 
 renounces in favor of the League of Nations 
 as trustee only the government of the Saar 
 Basin, and it is contemplated that German 
 sovereignty subsists, since provision is made 
 for "renunciation of sovereignty or cession" 
 by Germany ultimately, in the event the 
 League of Nations decides to award the whole 
 or a part of the territory to France. 
 
 Yet the political or governmental author- 
 ity over a territory is the very essence of 
 sovereignty, and by the provisions cf Chap- 
 ters II and III this authority, internal as well 
 as external, is vested in the Governing Com- 
 mission. It is even charged with the pro- 
 tection abroad of German nationals, inhabi- 
 tants of the territories. It may thus be con- 
 tended that Germany has parted with sover- 
 eignty over the Saar Basin. If such a con- 
 dition as the suspension of sovereignty i3 a 
 legal possibility it may be that such occurs 
 in the Saar Basin. (1 Moore, pp. 252-254.) 
 
 In whatever terms the treaty seeks to de- 
 scribe the transaction, however, it appears to 
 be a simple case of disguised cession, on all 
 fours with the so-called leased territory of 
 the European powers and Japan in China, 
 the restoration of such territories depending 
 upon certain and uncertain contingencies. 
 The Saar Basin case differs, of course, in the 
 
 — 22 
 
SECTION V.— ALSACE-LORRAINE. 
 
 fact that a third state, and not the cessionary 
 is given exclusive rights of exploitation. (1 
 Westlake, 133-139; Hershey, pp. 184-185.) 
 
 The High Contracting Parties recogniz- 
 ing the moral obligation to redress the 
 wrong done by Germany in 1871, both to 
 the rights of France and to the wishes of 
 the population of Alsace-Lorraine, which 
 were separated from their country in spite 
 of the solemn protest of their representa- 
 tives at the Assembly of Bordeaux, agree 
 upon the following Articles: 
 
 Article 51. The territories of Alsace and 
 Lorraine are retroceded to France. 
 
 As set out in the preamble the taking of 
 Alsace-Lorraine by Germany in 1871, con- 
 stituted a moral, not a legal wrong; that i3 
 to say, title to the territory of another state 
 founded in conquest is quite as legal and un- 
 impeachable as if founded upon voluntary 
 cession. It is a principle that violates our 
 modern sense of justice, but it is nevertheless 
 a settled one. 
 
 It is to the credit of the High Contracting 
 Parties that they recognized the moral obli- 
 gation to redress this wrong, both to the 
 rights of France as sovereign over the terri- 
 tory, and to the wishes of the people. If 
 this measure were applied universally the 
 moral principle would thereby attain the po- 
 sition of a legal one, since the basis of all 
 law is universal acquiescence or assent. The 
 High Contracting Parties have not only failed 
 to seize the opportunity to legalize the prin- 
 ciple against conquest and the rights of 
 peoples to choose their own way of obedience 
 by the universal application of these princi- 
 ples, but they have destroyed and nullified 
 the force of this instance of its application in 
 settlements which repudiate these principles 
 (see Part IV, Sec. 8, Articles 156-158); nor 
 is any intimation given in the treaty that ex- 
 isting instances of the subjection of peoples 
 to alien governments against the will of such 
 peoples constitutes a moral wrong. (See Sec. 
 VI, Article 147.) 
 
 Article 53. The political status of the in- 
 habitants of Alsace-Lorraine is fixed in this 
 Article by reference to an Annex which 
 makes the following decisions: 
 
 As from November II, 1 9 I 8, the follow- 
 ing persons are ipso facto reinstated in 
 French nationality: 
 
 ( 1 ) Persons who lost French nationality 
 under the treaty of 1871 and acquired 
 German nationality. 
 
 (2) The legitimate descendants of those 
 referred to above, except those whose de- 
 scendants in the paternal line include a 
 German who emigrated into Alsace-Lor- 
 raine after July 15, 1870. 
 
 (3) All persons born in Alsace-Lorraine 
 of unknown parents or whose nationality 
 is unknown. 
 
 It will be observed that the treaty here 
 attempts to determine the French nationality 
 of the inhabitants without in any way con- 
 sulting their wishes. It institutes three broad 
 classes of persons whose nationality is 
 changed arbitrarily. Those in the classes 
 have nothing to say in the matter. 
 
 The first class "reinstated" in French na- 
 tionality includes all those who, upon the ces- 
 sion of Alsace-Lorraine to Germany in 1871, 
 declined to avail themselves of the right to 
 opt for French nationality under Article II 
 of the Treaty of Frankfort, but chose to re- 
 main and acquire German nationality. 
 
 It is conceivable that many of this class 
 are satisfied with their acquired German na- 
 tionality and are thus involuntarily trans- 
 ferred to a new allegiance. 
 
 And so in the second class, the descend- 
 ants of the first class, it is probable that many 
 will not willingly renounce their German 
 allegiance. 
 
 These persons are denied the right to opt 
 for German nationality. 
 
 The Annex also sets out the following 
 classes as eligible to opt for French nation- 
 ality: 
 
 — 23 
 
( 1 ) All persons whose ascendants in- 
 clude a Frenchman or a French woman 
 who failed to opt for French nationality in 
 1871. 
 
 (2) All foreigners, not German nation- 
 als, who became citizens of Alsace-Lor- 
 raine prior to August 3, 1914. 
 
 (3) All Germans domiciled in Alsace- 
 Lorraine since July 15, 1870, or who had 
 an ascendant so domiciled. 
 
 (4) All Germans, domiciled or born in 
 Alsace-Lorraine, who served in the Allied 
 or Associated armies. 
 
 (5) All persons born in Alsace-Lor- 
 raine before May 10, 1870, of foreign par- 
 ents and the descendants of such persons. 
 
 (6) The husband or wife of any per- 
 son whose French nationality may have 
 been restored in the three classes referred 
 to above, or who may have claimed and 
 obtained French nationality in accordance 
 with the preceding provisions. 
 
 The rule that the nationality of the wife 
 and children follow that of the husband and 
 father is apparently ignored. The anomalous 
 situation is thus made possible that a French 
 national, residing in French territory, may 
 have a wife who is an alien to him and to 
 her own children. 
 
 Subject to the above exceptions no Ger- 
 mans born or domiciled in Alsace-Lorraine 
 shall acquire French nationality, even 
 though they are citizens of Alsace-Lor- 
 raine, except by the normal process of nat- 
 uralization, on condition of having been 
 domiciled from a date previous to August 
 3, 1914, and of submitting proof of three 
 years' unbroken residence. 
 
 France will be solely responsible for 
 their diplomatic and consular protection 
 from the date of application for natural- 
 ization. 
 
 The treaty, while arbitrarily restricting the 
 right of option to limited classes and to a 
 particular nationality (French) does not 
 attempt to set aside the principle of naturali- 
 zation. 
 
 The practice of enlightened states, which 
 may be said to conform to the law, in respect 
 of protection abroad of declarant aliens, is 
 that such protection is asserted to the full 
 extent in countries other than those of origin. 
 As against their native countries no such 
 rights are claimed in view of the continuing 
 allegiance of such declarants up to the mo- 
 ment of complete acquirement of a new na- 
 tionality. The rule rests upon a sound and 
 logical foundation. (3 Moore, pp. 893, 895.) 
 
 However France proposes to override it as 
 against Germany, in behalf of German na- 
 tionals who have declared their intention to 
 become French citizens. It is safe to say that 
 the posiiion can only be maintained by a 
 stronger as against a weaker state. 
 
 Considering the nationality provisions gen- 
 erally with respect lo Alsace-Lorraine, it will 
 be seen that a plebiscite has not been consid- 
 ered, although Germans may predominate in 
 ihe territories; nor is option freely granted. 
 Large classes of persons are made French 
 citizens by the fiat of the treaty and other 
 restricted classes are declared eligible to 
 claim French citizenship... None is declared 
 capable of choosing any other nationality. 
 Those in whom German nationality continues 
 are marked out by the treaty with equal 
 definiteness. 
 
 The utter absence of observance of the 
 doctrines of plebiscite and option, and or 
 uniformity in dealing with like situation may 
 be seen by comparison with Articles 36-37, 
 
 24 — 
 
whereby German nationals resident in the 
 territories ceded to Belgium acquire Belgian 
 nationality ipso facto, and lose their German 
 nationality; however, within two years Ger- 
 man nationals there may opt for German na- 
 tionality. 
 
 rticle 55. This deals with the public debt 
 of Alsace-Lorraine by reference to Article 
 255, Part IX of the treaty, which sets out 
 that since Germany refused to assume any 
 of the public debt of Alsace-Lorraine in 
 1871 France shall receive the territories 
 free and quit of all public debts, nor shall 
 any credit be given for same on the repa- 
 ration account. 
 
 In principle, therefore, there is no differ- 
 ence betwen the conquest and the recon- 
 quest, so far as the conduct of the victors is 
 concerned. Each takes all it can get over 
 and above the reparation account. 
 
 rticle 56. In conformity with the provi- 
 sions of Article 25 6, Part IX, France shall 
 enter into possession of all property and 
 estate in the territories belonging to the 
 German empire, the German states, as well 
 as the Crown property and the private 
 property of the former German emperor 
 and other German sovereigns, without any 
 payment or credit on account of same. 
 
 rticle 58. Provision is made for "repay- 
 ment in marks of the exceptional war ex- 
 penditure advanced during the course of 
 the war by Alsace-Lorraine, or by public 
 bodies in Alsace-Lorraine on account of 
 the empire in accordance with German 
 law, such as payment to the families of 
 persons mobilized, requisitions, billeting 
 of troops and assistance to persons who 
 have been evacuated." 
 
 See Comment, Article 39. 
 
 Thus France not only does not assume any 
 portion of the German debt in connection 
 with Alsace-Lorraine, but there is to be re- 
 paid the sums Alsace-Lorraine, in common 
 with all parts of the empire, was called on to 
 expend as indicated. 
 
 rticle 59. France will collect on its own 
 account Imperial taxes of every kind levi- 
 able and not collected at the time of the 
 armistice, November II, 1918. 
 
 rticle 60. Germany shall restore without 
 delay to Alsace-Lorrainers all property, 
 rights and interests belonging to them on 
 November 11, 1918, situated in German 
 territory. 
 
 rticle 62. Germany undertakes to bear 
 the expense of all military and civil pen- 
 sions earned in Alsace-Lorraine on Novem- 
 ber II, 1918, and to pay annually the 
 sums to which persons resident in Alsace- 
 Lorraine would have been entitled under 
 German rule. 
 
 rticle 63. Germany's liability for injury 
 and damage is declared by reference to 
 Part VIII (Reparation), as follows: 
 
 "The Allied and Associated Govern- 
 ments affirm and Germany accepts the 
 responsibility of Germany and her allies for 
 causing all the loss and damage to which 
 the Allied and Associated Governments 
 and their nationals have been subjected as 
 
 Damages have been calculated on the 
 premise that since Germany was the aggres- 
 sor, she precipitated and carried on an un- 
 lawful war, and should therefore be responsi- 
 ble for all damage of whatsoever kind, 
 whether resulting from the operations of her- 
 
 25 — 
 
a consequence of the war imposed upon 
 them by the aggression of Germany and 
 her allies." 
 
 The Allied and Associated Governments 
 require and Germany undertakes to make 
 compensation for all damage done to the 
 civilian population of the Allied and Asso- 
 ciated Governments and to their property 
 during the period of the belligerency of 
 each by such aggression by land, by sea 
 and from the air, and in general, all dam- 
 age as defined in Annex I, hereto. 
 
 self and her allies, or from the measures of 
 the Allied and Associated Governments. 
 While it is within the power of a successful 
 belligerent to impose any terms he wishes the 
 lav/ of nations nowhere makes any distinc- 
 tion between a just and an unjust war, nor 
 between a lawful and an unlawful war. In 
 view of the law, since each sovereign nation 
 may alone determine the demands of its wel- 
 fare and interest, it is the right of each to 
 determine when its exigencies require a 
 resort to war. Since 1899 (The Hague, Con- 
 vention No. 4) a. distinction has been made 
 between a war lawfully declared and one not 
 thus declared. 
 
 From a moral standpoint a war may be 
 unjust and unrighteous, as that precipitated 
 by Germany unquestionably was, but it can 
 not be unlawful, since it is the supreme and 
 final appeal of all states in the protection of 
 their well-being. 
 
 It has been argued, and not without force, 
 that by reason of the obligations assumed by 
 Germany toward Belgium under the treaty of 
 Neutralization of April 19, 1839, it became 
 legally impossible for Germany to carry on 
 war against Belgium; and that Germany may 
 not therefore claim the benefits of the laws 
 of war ordinarily obtaining; that is to say, in 
 the case of Belgium, Germany is not entitled 
 to deny responsibility for such destruction, 
 fines, contributions, requisitions and other 
 warlike acts as are within the compass cf the 
 lawful rights of belligerents. 
 
 Taking into consideration this exception 
 there is no principle of public international 
 law that enlarges the legal responsibility of 
 one of the belligerents because it was the 
 aggressor. In fact it is generally impossible 
 to determine with accuracy whether or not 
 a particular state was or was not the aggres- 
 sor. It is clear in the Franco-Prussian war 
 of 1870-71, in the Anglo-Boer war of 1900 
 and in the Turco-Italian war of 1912, but no 
 one has yet determined whether Russia or 
 Japan was the aggressor in 1904. (See The 
 Peace Problem (1916) John Bassett Moore.) 
 
 In order to avoid as far as possible the 
 evils of society it is agreed, says Vattel, to 
 regard every lawfully declared war as just on 
 both sides. (Halleck, International La^v, 4th 
 ed., Vol. 1, p. 571.) 
 
 This statement of the law ha3 undergone 
 no change up to the present. Out of this 
 view has necessarily sprung the lav/ of neu- 
 trality. 
 
 War brings into operation a great variety 
 of laws defining rights and duties of bellig- 
 erents and neutrals, and among its rights 
 accruing to a belligerent is that to inflict any 
 damage upon his enemy, %vhich has a mili- 
 tary object. There are certain specific limi- 
 tations upon a belligerent's means of injur- 
 ing his enemy, both at sea and on land, de- 
 signed to prohibit needless and wanton injury 
 and damage. However, it may be asserted 
 as a general principle of the laws of war that 
 all damage and injury inflicted in pursuit of a 
 
 26 — 
 
The Annex then declares: 
 
 "Compensation may be claimed from 
 Germany under Article 232 above in 
 respect of the total damage under the fol- 
 lowing categories: 
 
 military object are lawful. (Lawrence, 4th 
 ed., Sec. 206, p. 549; Spaight, 112). 
 
 ( 1 ) Damage done to injured persons 
 and to surviving dependents by personal 
 injury to or death of civilians caused by 
 acts of war, including bombardments or 
 other attacks on land, on sea or ifrom the 
 air, and all direct consequences thereof, 
 and of all operations of war by the two 
 groups of belligerents wherever arising. 
 
 Civilians are under the protection of the 
 laws of war, but their immunity from direct 
 and intentional injury is dependent upon 
 peaceable and non-hostile conduct. It is one 
 of the marked moral achievements of the 
 last century that the great divisions of popu- 
 lations of belligerent states into combatants 
 and non-combatants, with definite law regu- 
 lating their rights and duties, have been 
 made. 
 
 Whence, civilians, taking no part in hos- 
 tilities may not lawfully be made the object 
 of direct injury. Nevertheless their injury or 
 killing as a mere incident to the carrying out 
 of a lawful military operation involves no 
 responsibility. For example, enemy munition 
 plants are lawful objects of attack. If in such 
 attacks death should ensue to all of the em- 
 ployees, men, women and children, no lia- 
 bility whatever would rest upon the govern- 
 ment of the attacking force. So, too, the in- 
 cidental deaths of civilians in cases of bom- 
 bardment of defended towns, villages, build- 
 ings and places involve no liability. (Holland, 
 p. 30; Spaight, pp. 140-180). 
 
 It has never been settled what constitutes 
 a "defended" place; but it has been con- 
 tended by eminent authority (Westlake, Col- 
 lected Papers) that the presence of a single 
 soldier or company of soldiers might be suf- 
 ficient to constitute a defended place. If this 
 be so, it may be said that in the present great 
 war hardly a city, town or village in any of 
 the belligerent states was undefended, so 
 great were the proportions of the populations 
 taken into the armies. 
 
 As to the immunity of non-combatants, it 
 may be asked, to what degree, if any, was 
 this immunity compromised in the present 
 Great War in view of the universal mobili- 
 zation of man, woman and child-power be- 
 hind the armies of the respective belliger- 
 ents? 
 
 The following principles of lav/ are settled: 
 
 (a) That act3 of war, including bombard- 
 ments and other attacks on land and from the 
 air, involve no legal liability whatever so long 
 as they have a military object and are not 
 directed against an undefended place. 
 
 (b) That attacks at sea against public 
 armed enemy vessels involve no liability; that 
 attacks upon unarmed merchantmen, not 
 guilty of flight or resistance, are illegal and 
 do involve liability. But even where flight or 
 resistance has been overcome there is a legal 
 obligation to provide for the safety of crew 
 and passengers. 
 
 27 — 
 
The placing upon a vanquished belligerent 
 of responsibility for all damage and injury 
 resulting from the operations of the victor is 
 a mere exercise of power in the nature of 
 indemnity; it can net be construed as repara- 
 tion. 
 
 (2) Damage caused by Germany and 
 her allies to civilian victims of acts of 
 cruelty, violence and maltreatment (in- 
 cluding injuries to life or health as a con- 
 sequence of imprisonment, deportation, in- 
 ternment or evacuation, or exposure at sea 
 or of being forced to labor) wherever 
 arising, and to the surviving dependents of 
 such victims. 
 
 (2) Damage by Germany and her allies 
 caused to civilian victims by acts of cruelty, 
 violence or maltreatment, may properly give 
 rise to legal responsibility, v/here such acts 
 of cruelty, violence or maltreatment were not 
 
 permissible and many of such are — under 
 
 the laws of war. For example, the right of 
 reprisal upon a rebellious population in a 
 militarily occupied district, may lawfully in- 
 volve extreme violence, even to the shooting 
 of civilians and the destruction of whole 
 towns. (Spaight, 465-470.) 
 
 It is the right of a belligerent state to im- 
 prison, intern and deport enemy civilians, 
 particularly male persons of military age, and 
 to use reasonable disciplinary measures 
 against them for cause. 
 
 Legal responsibility properly lies in the 
 matter of exposure at sea in view of the set- 
 tled principle requiring provision for the safe- 
 ty of crew and passengers cf a captured ves- 
 sel. 
 
 (3) Damage caused by Germany or her 
 allies in their own territory or in occupied 
 or invaded territory to civilian victims, of 
 all acts injurious to health or capacity to 
 work or to honor, as well as to surviving 
 dependents of such victims. 
 
 A3 to acts injurious to health or capacity 
 to work, such conditions might follow the 
 exercise of lawful violence, as reprisals 
 against a disobedient or resisting population 
 in a militarily occupied territory. Family 
 honor is clearly under the inviolable protec- 
 tion of the laws of war. (The Hague, 1907, 
 Convention 4, Art. 46). 
 
 (4) Damage caused by any kind of mal- 
 treatment of prisoners of war. 
 
 (4) There is no legal liability in cases of 
 damage resulting from reasonable disciplin- 
 ary measures in which the victim was culpa- 
 ble. 
 
 (5) As damage caused to the peoples of 
 the Allied and Associated Powers all pen- 
 sions and compensation in nature of pen- 
 sions to naval and military victims of the 
 war, whether mutilated, wounded, sick or 
 invalided, and to the dependents of such 
 victims. 
 
 (5) This is a mere exercise of power by 
 the victor over the vanquished in the nature 
 of indemnity. 
 
 (6) The cost of assistance by the gov- 
 ernments of the Allied and Associated 
 Powers to prisoners of war and their fam- 
 ilies and dependents. 
 
 (7) Allowance by the governments of 
 the Allied and Associated Powers to the 
 families and dependents of mobilized per- 
 sons and persons serving with the armed 
 forces. 
 
 It is customary among belligerents to com- 
 pute the respective costs of maintenance of 
 prisoners of war, including salaries allowed 
 officers, and to settle any balance at the 
 peace. 
 
 The provision is in the nature of indem- 
 nity where it exceeds this custom. 
 
 This is a mere exercise of power in the 
 nature of indemnity. 
 
 — 28 — 
 
(8) Damage caused to civilians by be- 
 ing forced by Germany or her allies to 
 labor without just compensation. 
 
 (8) The services of civilians in militarily 
 occupied territory may be requisitioned, nor 
 does the law require more than that a receipt 
 for such services shall be given. The receipt 
 does not imply liability on the part of the 
 giver to redeem it. (2 Westlake, 270; Bord- 
 well, 319; Spaight, 402-405.) 
 
 (9) Damage in respect of all property 
 wherever situated belonging to any of the 
 Allied or Associated Powers or their na- 
 tionals, with the exception of naval and 
 military works or materials, which have 
 been carried off, seized, injured or de- 
 stroyed by acts of Germany or her allies 
 en land, on sea or from the air, or damage 
 directly in consequence of hostilities or of 
 any operations. 
 
 This provision ignores the whole body of 
 settled law with respect to allowable dam- 
 age and destruction. Such legal destruction 
 includes: 
 
 (a) AH destruction of naval and military 
 works, including shops, railroads and equip- 
 ment, munition plants, barracks and all build- 
 ings used by armed forces (other than hos- 
 pitals). 
 
 (b) Destruction of private property inci- 
 dental to bombardment. 
 
 (c) Destruction of property of military 
 value to prevent it falling into the hands of 
 the enemy. 
 
 (d) Destruction of property to facilitate 
 an attack or to impede pursuit. 
 
 To summarize, it may be said that all de- 
 struction which serves a military end, and is 
 not purely wanton, is lawful. (Spaight, 1 1 1 et 
 seq., 418.) 
 
 As to property carried off or seized, the 
 law makes a distinction between public mov- 
 ables, that is, government-owned property, 
 and private property. The former is con- 
 fiscable under the laws of war; the latter i3 
 not. (Spaight, 411, 412; 2 Westlake, 103- 
 104; Bonnls Nos. 1191-1193). 
 
 Yet even private property may be seized 
 and converted by a belligerent if it is 
 noxious, that is to say, if it is of a character 
 lending itself peculiarly to warlike use; so, 
 too, private property may be taken under the 
 right of requisition. (Spaight, 199-200). 
 
 (10) Damage in the form of levies, 
 fines and other similar exactions imposed 
 by Germany or her allies upon the civilian 
 population. 
 
 (10) Levies (contributions and requisi- 
 tions) and fines are lawful measures of war. 
 Levies in service, in supplies and in cash are 
 lawful if undertaken for the needs of the 
 army, or in lieu of or in addition to taxes, 
 for the support of the administration of occu- 
 pied territory, provided that they are in pro- 
 portion to the resources of the territory; and 
 provided further that they are not levied for 
 mere purposes of plunder. 
 
 Fines are a lav/ful measure against the dis- 
 obedience of a population in a militarily occu- 
 pied territory, if responsibility for disobedi- 
 ence be collective. It is the mildest manifes- 
 tation of the right of reprisal. (Spaight, 383, 
 408-410.) 
 
 Article 64. Regulations concerning the con- 
 trol of the Rhine and the Moselle are laid 
 down by reference to Part XII of the 
 treaty. Part XII, Chapter IV, provides 
 among other things that Germany shall 
 cede to France tugs and vessels registered 
 in German Rhine ports, including fittings 
 and gear, installations, berthing and an- 
 
 This is purely an economic advantage in 
 the nature of indemnity. It is repugnant to 
 the spirit of the law at least to the extent 
 that private property exists in such tugs, ves- 
 sels, etc. (See Comment, infra, Article 74). 
 
 — 29 — 
 
chorage accommodations, docks, ware- 
 houses, plants, etc., whether publicly or 
 privately owned, in an amount to be de- 
 cided by an arbitrator to be appointed by 
 the United States, "due regard being had to 
 the needs of the parties concerned." The 
 value of such property shall be set off 
 against the total sums due from Germany. 
 
 Article 65. This Article gives to France 
 certain economic advantages in the ports 
 of Strasburg and Kehl under the Central 
 Rhine Commission, to be presided over by 
 a Frenchman. 
 
 This is in the nature of indemnity. 
 
 Articles 66-67. Railway and other bridges 
 across the Rhine within the limits of Al- 
 sace-Lorraine throughout their length be- 
 come French property, as do all Imperial 
 railways and tram concessions, entailing no 
 payment on the part of France. 
 
 Articles 68-71. Additional economic advan- 
 tages are given to France, including ex- 
 emption from customs duties on natural or 
 manufactured products of Alsace-Lorraine 
 entering Germany and the import into Al- 
 sace-Lorraine of certain goods from Ger- 
 many free from internal duties in Ger- 
 many; supply of electric current to Alsace- 
 Lorraine by Germany; prohibition of Ger- 
 man participation in enterprises in Alsace- 
 Lorraine; renunciation of German rights 
 regarding trade in potash salts. 
 
 Article 74. The French government reserves 
 the right to retain and liquidate all the 
 property, rights and interests which Ger- 
 man nationals or societies controlled by 
 Germany possessed in Alsace-Lorraine on 
 November 11, 1918. Germany will com- 
 pensate her nationals thus dispossessed. 
 The product of these liquidations shall be 
 applied in accordance with the stipulations 
 of Sections III and IV of Part X of the 
 treaty. 
 
 Section III (Article 296) provides for 
 the settlement through clearing offices to 
 be established by each of the High Con- 
 tracting Parties of the following classes of 
 debts: 
 
 (a) Debts due before the war from a 
 national of an Allied or Associated power, 
 residing within its territory, to a national 
 of Germany or her allies, residing in its 
 territory. 
 
 (b) Debts payable during the war to na- 
 tionals of Allied or Associated powers, 
 payment of which was suspended by the 
 war. 
 
 (c) Any interest accrued before or dur- 
 ing the war on securities issued by Ger- 
 many or her allies. 
 
 (d) Any capital sums which have be- 
 come payable in respect of securities issued 
 by Germany or her allies. 
 
 The High Contracting Parties will pro- 
 
 This is in the nature of indemnity. No 
 obligation with respect to uniformity of tolls 
 appears to rest upon France in connection 
 with the use of these international bridges. 
 
 These are in the nature of indemnity. 
 
 This Article and its references (Sections 
 III and IV of Part X) commit the Allied and 
 Associated governments to the confiscation of 
 all private property of German nationals, 
 whether situated in their own territories or 
 in the territories taken from Germany, and 
 restitution of or compensation for all private 
 property of nationals of Allied or Associated 
 Powers in German hands. It i3 true that it 
 is declared that Germany will compensate her 
 nationals who are thus dispossessed, but in 
 view of the extent of the various indemnities 
 imposed it is doubtful that this declaration 
 can ever be fulfilled. It is therefore, at best, 
 disguised confiscation. 
 
 From antiquity to the dawn of the 19th 
 century it was the custom of a belligerent to 
 seize and convert the private property of na- 
 tionals of his enemy, while the private enemy 
 individual might be dealt with after the de- 
 sires of the captor. In the last century, how- 
 ever, a settled distinction in the lav/ has dif- 
 ferentiated the private unarmed enemy per- 
 son and his property from the public armed 
 enemy person and public property, on the 
 principle that war is a relation between states 
 and not between individuals. The former, 
 classified as non-combatant, is entitled to pro- 
 tection in his person and property; the latter, 
 classified as combatant, may be made the ob- 
 ject of direct hostile action. As to public 
 property, all movables of the enemy govern- 
 
 30 
 
hibit all settlements otherwise than through 
 the clearing offices; they will be respec- 
 tively responsible for the payment of such 
 debts as were due from their nationals. 
 (Debts due by inhabitants of invaded terri- 
 tory will not be thus guaranteed, nor does 
 the guarantee extend to a debtor who was 
 insolvent before the war or whose property 
 was liquidated under emergency legisla- 
 tion). 
 
 Private settlements of debts between a 
 national of an Allied or Associated Power 
 and a national of Germany or her allies 
 is assimilated even after peace to trading 
 with the enemy and will involve "the same 
 penalties as are at present provided" in 
 such legislation. All legal processes for 
 the private recovery of such debts will be 
 prohibited. 
 
 Creditors shall give notice to the Clear- 
 ing Office within six months of debts due 
 to them. 
 
 Any person having claimed payment of 
 an enemy debt which is not admitted in 
 whole or in part shall pay to the Clearing 
 Office, by way of fine, interest at 5 per cent 
 on the part not admitted, during the pen- 
 dency of such claim. 
 
 A person "having unduly refused to ad- 
 mit the whole or part of a debt claimed 
 from him" shall pay, by way of fine, 5 per 
 cent of the amount "with regard to which 
 his refusal shall be disallowed." 
 
 Clearing offices shall be responsible for 
 the collection of such fines, which "will 
 be credited to the other Clearing Office, 
 which shall retain them as a contribution 
 toward the costs" of the office. 
 
 ment are liable to confiscation. Private 
 property is under the protection of written 
 law, declaring it to be inviolable. (The 
 Hague, 1907, Convention IV, Article 46). 
 This must be understood to be qualified, 
 however, by certain definite exceptions. (See 
 Comment on Article 63, sub-section 9.) 
 
 This would require an Act of Congress to 
 carry it into execution. 
 
 As to the universally recognized rule of 
 law forbidding the confiscation of private 
 enemy debts, see, infra, Comment opposite 
 Article 302. 
 
 A Mixed Arbitral Tribunal is set up as 
 a court of appeal as between disagreeing 
 Clearing Offices. 
 
 Section IV. (Article 297) sets out the fol- 
 lowing with respect to the private prop- 
 erty, rights and interests of German na- 
 tionals situated in Allied and Associated 
 countries: 
 
 (a) Germany shall immediately discon- 
 tinue all war measures (including liquida- 
 tion and transfer) taken against the prop- 
 erty, rights and interests of nationals of 
 Allied and Associated Powers, such nation- 
 als to enjoy full rights in accordance with 
 Article 298. 
 
 (b) The Allied and Associated govern- 
 ments reserve the right to retain and 
 liquidate all property, rights and interests 
 belonging to German nationals, or com- 
 panies controlled by them within their 
 territories, colonies, possessions and pro- 
 tectorates, including the territories ceded. 
 
 German nationals shall not be able to 
 dispose of such property nor to subject it 
 to any charges. 
 
 German nationals who acquire ipso facto 
 the nationality of an Allied or Associated 
 
 It appears under this sub-section that the 
 United States is empowered to seize, in addi- 
 tion to the private property situated in the 
 United States of German nationals resident in 
 Germany already sequestered by the Alien 
 Property Custodian, the private property of 
 all German nationals resident in the United 
 States. An Act of Congress would, however, 
 be necessary as a condition precedent to the 
 exercise of that power. 
 
 "What we have said of the detention of the 
 enemy's person also holds good with respect 
 
 31 — 
 
Power shall not be liable to such depriva- 
 tion of their private property. 
 
 to the right to seize and confiscate all enemy 
 property found within the territory of the 
 other belligerent at the commencement of 
 hostilities. In former times this right was 
 exercised with great rigor, but it has now 
 become an established, though not inflexible 
 rule of international law, that such property 
 is not liable to confiscation as prize of war. 
 This rule, says Chief Justice Marshall (Brown 
 vs. United States, 8 Cranch, R. 123) "like 
 other precepts of morality, of humanity and 
 even of wisdom, is addressed to the judgment 
 of the sovereign — it is a guide which he fol- 
 lows or abandons at his will; and, although 
 it can not be disregarded by him without 
 obloquy, vet it may be disregarded." (Hal- 
 leck, 4th ed., Vol. 1, p. 587). 
 
 The power to confiscate enemy property 
 cannot be exercised by the United States, 
 however, except by the direct authority of 
 Congress... (Brown vs. United States, 8 
 Cranch, R. 123). The extent of authority 
 existing in the absence of such legislation is 
 to sequester using reasonable care to conserve 
 such property for its owners, under an obli- 
 gation to restore it or its equivalent at the 
 peace as we have done through the lav/ creat- 
 ing the Alien Property Custodian. Even this 
 right is generally qualified by treaty. (See 
 Treaty with Prussia, 132S, 2 Malloy, p. 
 14S6). 
 
 The far-reaching effect of this policy i3 
 likely to hamper American investments all 
 over the world. 
 
 (e) Nationals of Allied and Associated 
 Powers shall be entitled to compensation in 
 respect of damage or injury to their prop- 
 erty, rights or interests, including any 
 company in which they are interested, due 
 to war measures of liquidation or transfer; 
 and they may be compensated out of pri- 
 vate property of German nationals in the 
 hands of Allied and Associated govern- 
 ments. Germany will receive credit on the 
 reparation account as to any balances, 
 which shall be paid to the Reparation Com- 
 mission. 
 
 (i) Germany undertakes to compensate 
 her nationals thus deprived of their pri- 
 vate property by the Allied and Associated 
 Powers. 
 
 (j) The amount of all capital taxes lev- 
 ied on property of Allied and Associated 
 nationals by Germany after November I 1, 
 1918, shall be refunded. 
 
 See Comment opposite Article 74. 
 
 By Sections a and b (Article 298) Ger- 
 many undertakes to restore to nationals of 
 Allied and Associated Powers their prop- 
 erty, rights and interests as they existed 
 prior to the war, and not to subject such 
 property, rights and interests to any mea- 
 sures not applied equally to property of 
 German nationals. 
 
 By Annex, paragraph 1, under Section 
 
IV, Germany confirms all act3 of Allied 
 and Associated Powers with respect to the 
 property of German nationals. 
 
 By paragraph 2, Germany agrees that no 
 claim or action shall be brought against 
 any Allied or Associated Power or person 
 on account of acts or omissions with re- 
 spect to German property. 
 
 By paragraph 1 0, Germany will, within 
 six months, deliver to each Allied or Asso- 
 ciated Power, all securities, certificates, 
 deeds or other documents of title held by 
 its nationals and relating to property, 
 rights or interests situated in the territory 
 of that Allied or Associated Power, includ- 
 ing any shares, stock, debentures, deben- 
 ture stock, or other obligation of any com- 
 pany incorporated in accordance with the 
 lav/s of that power. She will further fur- 
 nish any information desired concerning 
 property of her nationals so situated. 
 
 On the whole, it may be said that in the 
 pursuit of large indemnities the Allied and 
 Associated governments have in these Arti- 
 cles repudiated principles, which, in the lan- 
 guage of Spaight, the eminent English pub- 
 licist, constitute the Magna Charta of war 
 law. (War Rights on Land, p. 374). And 
 since the remaining great powers have con- 
 certed in its repudiation it may be asserted 
 that they have brought to naught the en- 
 lightened and laborious work of a century in 
 this regard. 
 
 By the concluding paragraph of the 
 Annex the foregoing provisions are de- 
 clared to apply to industrial, literary and 
 artistic property. 
 
 SECTION VI.— AUSTRIA. 
 
 This provision appears, with respect to 
 some of the signatories, to make a "scrap 
 of paper" of the "Revised Berne Convention" 
 for the protection of copyrights, signed No- 
 vember 13, 1908, and other similar treaties. 
 (Sea Comment Article 236). 
 
 Article 80. Germany acknowledges and will 
 respect strictly the independence of Aus- 
 tria within frontiers to be fixed and agrees 
 that the independence is inalienable. 
 
 Provision in the new German Constitu- 
 tion for a seat for an Austrian delegate in 
 the German Reichsrat was held by the Prin- 
 cipal Allied and Associated Powers to be 
 violative of this obligation "to respect" Aus- 
 trian independence. (Compare with the 
 mutual obligation "to respect" the territorial 
 integrity and existing political independence, 
 under Article 10.) The racial characteris- 
 tics of what is left of Austria are predomi- 
 nantly German, the subject peoples of the old 
 dual monarchy having been accorded the 
 right of self-determination. Yet the achieve- 
 ment of German unity is forever forbidden. 
 This ignores the inexorable lessons of his- 
 tory and makes for Irredentism. 
 
 SECTION VII.— CZECHO-SLOVAK STATE. 
 
 Articles 81-83. Germany recognizes the in- 
 dependence of the Czecho-Slovak state and 
 renounces all rights and title over a portion 
 of Silesian territory therein described. 
 
 Article 84. German nationals habitually resi- 
 dent in territories recognized as forming 
 part of the Czecho-Slovak state will obtain 
 Czecho-Slovak nationality ipso facto and 
 lose their German nationality. 
 
 See Comment opposite Article 36. 
 
 Article 85. Within a period of two years 
 German nationals over 1 8 years of age 
 
 See Comment opposite Article 37. 
 
 — 33 
 
habitually resident in such territories may 
 opt for German nationality; "within the 
 same period Czecho-Slovaks who are Ger- 
 man nationals and are in a foreign coun- 
 try will be entitled, in the absence of any 
 provision to the contrary in the foreign 
 law, and if they have not acquired the 
 foreign nationality, to obtain Czecho-Slo- 
 vak nationality by complying with the 
 requirements laid down by the Czecho 
 Slovak state." 
 
 Article 86. The Czecho-Slovak state agrees 
 to embody in a treaty with the Allied and 
 Associated powers provisions for the pro- 
 tection of inhabitants differing from the 
 majority in race, language or religion. 
 
 See Treaty of Berlin, 1878, Articles 5, 25, 
 35 and 44, recognizing conditional inde- 
 pendence of Bulgaria, Roumania, Servia and 
 Montenegro. (Martens, N. R. G. 2nd Ser. 
 Ill, p. 449). 
 
 This implies the right, and perhaps the 
 duty of intervention. 
 
 SECTION VIII. — POLAND. 
 
 Articles 87-88. Germany recognizes com- 
 plete independence of Poland and cedes 
 certain territory, provision being made for 
 delimitation of frontiers, and for plebi- 
 scites in portions of Upper Silesia. 
 
 Poland was extinguished by a final parti- 
 tion among Russia, Prussia and Austria in 
 1795, confirmed by the Congress of Vienna 
 in 1815. In the present treaty large parts 
 of Austrian and Prussian Poland are to be 
 returned to the reconstituted State. A set- 
 tlement with respect to Russian Poland lies 
 in the future. 
 
 The provisions of this section are founded 
 upon political rather than upon legal con- 
 siderations, however, a primary object be- 
 ing the erection of a strong buffer state be- 
 tween Germany and Russia; for, in spite of 
 the wrongful and unlawful acts of Russia, 
 Prussia and Austria in the three partitions 
 their titles had become good in law by pre- 
 scription. (1 Oppenheim, pp. 309-310). 
 
 By Annex 1 under Section VIII those 
 qualified to vote shall be persons, with- 
 out distinction of sex, who have completed 
 their twentieth year and who were born 
 in the plebiscite area or have been domi- 
 ciled therein since a date to be determined 
 by an International Commission in charge. 
 On the conclusion of the voting the Com- 
 mission will make a recommendation to 
 the Allied and Associated Powers as to 
 the frontier of Germany in Upper Silesia 
 in which "regard will be paid to the 
 wishes of the inhabitants as shown by the 
 vote, and to the geographic and economic 
 conditions of the locality." 
 
 Article 9 1 . German nationals habitually 
 resident in territories recognized as form- 
 ing part of Poland will acquire Polish na- 
 tionality ipso facto and will lose their Ger- 
 man nationality with the exception of those 
 or their descendants who became resident 
 in the territories after January 1, 1908, 
 who require special authorization from the 
 Polish state to become Polish nationals. 
 Within two years Germans thus becoming 
 
 Here again involuntary naturalization is 
 resorted to, v/ith, however, a subsequent 
 right to opt. (See Comment opposite Arti- 
 cles 36 and 37.) It will be observed in this 
 Article that persons opting "may" transfer 
 their residence within twelve months. 
 
 — 34 — 
 
Poles, as well as Poles resident in Ger- 
 many who are German nationals, over 1 8 
 years of age, may opt for the other na- 
 tionality respectively. 
 
 Persons thus exercising the right to 
 opt "may" within the succeeding twelve 
 months transfer their place of residence 
 to the state for which they have opted. 
 Each will be entitled to retain his im- 
 movable property in the territory of the 
 other and freely to carry with him his 
 movable property. 
 
 Within the same period Poles in for- 
 eign countries, who are German nationals, 
 will be entitled, in the absence of restric- 
 tions in the foreign law, to acquire Polish 
 nationality by complying with the require- 
 ments laid down by the Polish State. 
 
 Article 92. Poland will assume a portion of 
 the Prussian and German debt attributa- 
 ble to the territory on the basis of the 
 ratio between the average for the years of 
 1911, 1912 and 1913, of such revenues of 
 ceded territory and the average for the 
 same years of revenues of the German 
 empire, with the exception that there 
 shall be excluded that portion arising from 
 German and Prussian projects of coloni- 
 zation. 
 
 See Comment opposite Article 39. 
 
 Article 93. Poland agrees to embody in a 
 treaty with the principal Allied and Asso- 
 ciated Powers such provisions as may be 
 deemed necessary to the protection of in- 
 habitants who differ from the majority in 
 race, language or religion. 
 
 See Comment opposite Article 86. 
 
 SECTION IX.— EAST PRUSSIA. 
 
 Articles 94-98. Provision is made herein 
 for a plebiscite by the inhabitants to indi- 
 cate their choice as between remaining a 
 part of Germany or becoming incorpo- 
 rated into Poland under the same proce- 
 dure and conditions previously set out in 
 Articles 87 and 88 and the Annex 
 thereto. 
 
 It does not appear that any right of option 
 is given to the minority. 
 
 SECTION X.— MEMEL. 
 
 Article 99. Germany renounces in favor of 
 the Principal Allied and Associated Pow- 
 ers all rights and title over Memel and 
 undertages to accept in advance any dispo- 
 sition to be made of same. 
 
 This renunciation of sovereignty is made 
 in favor of the Principal Allied and Asso- 
 ciated Powers, by which the United State* 
 becomes possessed of an undivided one-fifth 
 interest in the territory. The right to 
 acquire territory is incident to and inferable 
 from Art. 1, Sec. 8, U. S. Constitution, but 
 the disposition of territory thus acquired by 
 the United States is in the sole power of 
 Congress. (Art. IV, Sec. 3, U. S. Const.). 
 The power to dispose of such territory is a 
 legislative one and can not be delegated. 
 
 35 — 
 
Articles 100-102. Germany renounces in 
 favor of the Principal Allied and Asso- 
 ciated Powers territory within certain 
 boundaries on the Baltic within which the 
 "Free City of Danzig" is to be created, 
 "under the protection of the League of 
 Nations." 
 
 Ibid. 
 
 Article 103. A constitution for the Free 
 City of Danzig will be drawn up by rep- 
 resentatives of the Free City and a High 
 Commission appointed by the League of 
 
 Nations. 
 
 Article 104. The Principal Allied and Asso- 
 ciated Powers undertake to negotiate a 
 treaty between Poland and the Free City 
 of Danzig which will insure reciprocal 
 economic privileges, ensure Poland control 
 of the Vistula and of the whole system 
 of railways within the Free City, with 
 the exception of street railways, ensure 
 Poland the right to develop waterways, 
 docks, etc., and which will provide that 
 Poland shall conduct the foreign relations 
 of the Free City as well as undertake the 
 diplomatic protection of its citizens 
 abroad. 
 
 Article 105. German nationals habitually 
 resident in the territory of the Free City 
 of Danzig "will ipso facto lose their Ger- 
 man nationality" on the coming into force 
 of the treaty "in order to become na- 
 tionals of the Free" City of Danzig." 
 
 Such a treaty as contemplated between 
 Poland and the Free City of Danzig would 
 involve the transfer of the sovereignty over 
 the so-called Free City to Poland, in view 
 of the proposal to give Poland control of 
 foreign affairs of the Free City; for that 
 control is the test of sovereignty. 
 
 A3 cited supra, it involves for the United 
 States a constitutional question, being alien- 
 ation of territory, and would require an act 
 of Congress in addition to ratification of the 
 present treaty. 
 
 It is interesting to study in connection 
 with this project the erection of the Free 
 City of Cracow, by the Congress of Vienna 
 in 1815, under the protection of Russia, 
 Prussia and Austria, and the annexation of 
 that so-called Free City by Austria in 1843. 
 (Nys. 1, pp. 333-385). 
 
 It will be observed that German nationals 
 thus losing German nationality do not at 
 that instant acquire any other, as in the 
 preceding instances cited; until they becoma 
 nationals of the Free City they are without 
 any nationality, or what the Germans term 
 staatlos or heimatlos. 
 
 Article 1 06. Within two years German na- 
 tionals over 18 years of age may opt for 
 German nationality, though those opting 
 "must" transfer their residence to Ger- 
 many within the ensuing twelve months. 
 
 Section 107. All property situated within 
 the Free City of Danzig belonging to the 
 German empire or to any German state 
 shall pass to the Principal Allied and 
 Associated Powers for transfer to the Free 
 City of Danzig or to the Polish State as 
 they may consider equitable. 
 
 See Comment opposite Article SI. 
 
 As the United States would possess an 
 undivided one-fifch interest, it would require 
 an act of Congress to alienate that interest. 
 (Vide supra, opposite Articles 99 and 104). 
 
 Article 108. The proportion of public debt 
 to be assumed by the Free City of Dan- 
 zig is to be calculated on the ratio indi- 
 cated for Poland in Article 92, without 
 the exceotion therein indicated. 
 
 Ratio is set out in Article 254 of the 
 treaty. 
 
 SECTION XII.— SCHLESWIG. 
 
 Article 109. 
 
 rovision is made in 
 
 the< 
 
 Denmark was despoiled of Schleswsg by 
 
 SG 
 
Articles for a plebiscite within certain 
 described territory by which the inhabi- 
 tants may indicate their desire for incor- 
 poration with Denmark, the right to vote 
 being given to all persons, without dis- 
 tinction of sex, who have completed their 
 twentieth year and who were born in the 
 zone in which the plebiscite is taken or 
 have been domiciled there since a date 
 before January 1, 1900, or had been ex- 
 pelled by Germany. 
 
 Prussia and Austria in 1864. Two years 
 later Prussia became the sole possessor in 
 war with Austria, which left Prussia supreme 
 in the German political system. Schleswig 
 is Denmark's Alsace-Lorraine and the treaty 
 properly attempts to undo the wrong suf- 
 fered by the Scandinavian state. 
 
 It may be remarked, however, that Den- 
 mark was not officially consulted in the ar- 
 rangements made by the Allied and Associat- 
 ed Powers. 
 
 Article 1 1 0. Germany renounces definitely 
 in favor of the Principal Allied and Asso- 
 ciated Powers all rights of sovereignty 
 over territories situated to the north of a 
 frontier line fixed by the Allied and Asso- 
 ciated Powers, who "will hand over the 
 said territories to Denmark." 
 
 See Comment opposite Articles 99, 104 
 and 107. 
 
 Article 112. "All the inhabitants of the 
 territory which is returned to Denmark 
 will acquire Danish nationality ipso facto 
 and will lose their German nationality," 
 with the exception that persons who had 
 become habitually resident in this terri- 
 tory after October 1 , 1918, can become 
 Danish nationals only with permission of 
 the Danish government. 
 
 See Comment opposite Article 36. 
 
 Article 113. Within two years any person 
 over 1 8 years of age, born in the terri- 
 tory, not habitually resident in this re- 
 gion, may opt for Danish nationality, and 
 any person over 1 8 years of age, habit- 
 ually resident in the region, may opt for 
 German nationality. Those opting must 
 transfer their place of residence within 
 the ensuing twelve months. They will be 
 entitled to retain their immovable prop- 
 erty and freely to carry their movable 
 property with them. 
 
 See Comment opposite Article 37. 
 
 Article 1 I 4. The proportion of public debt 
 to be assumed by Denmark with respect to 
 territory restored will be calculated en 
 the ratio indicated in the case of the Free 
 City of Danzig. (See Article 108). 
 
 By the treaty of October 30, 1864, by 
 which Denmark renounced all rights over 
 the three duchies of Lauenburg, Holstein 
 and Schleswig in favor of the Emperor of 
 Austria and the King of Prussia, these 
 duchies assumed their portion of the Danish 
 debt. 
 
 SECTION XIII.— HELIGOLAND. 
 
 Article I 15. All fortifications on the islands 
 of Heligoland and Dune shall be destroyed 
 and shall not be reconstructed. 
 
 SECTION XIV.— RUSSIA AND RUSSIAN 
 STATES. 
 
 This constitutes a restriction on German 
 territorial supremacy, technically described 
 as a negative servitude. So many, both neg- 
 ative and positive, and military and eco- 
 nomic, have been imposed upon Germany by 
 the present treaty that it is doubtful that 
 Germany can be described as a fully sover- 
 eign state, at least during their continuance. 
 
 Article 116. Germany agrees to respect as 
 
 Arrangements entered into by two or more 
 
 97 
 
inalienable the independence of all terri- 
 tories which were part of the former Rus- 
 sian empire, and, by reference to Article 
 292, accepts definitely the abrogation of 
 the Brest-Litovsk treaties and all other 
 agreements with the Maximalist govern- 
 ment. 
 
 The Allied and Associated governments 
 reserve the rights of Russia to obtain res- 
 titution and reparation as against Ger- 
 many. 
 
 states with respect to another can not, of 
 course, bind that other state. These are po- 
 litical and economic, rather than legal pro- 
 visions. 
 
 Article 1 1 7. Germany undertakes to recog- 
 nize any treaties and agreements subse- 
 quently to be entered into by the Allied 
 and Associated Powers with Russia or 
 Russian states. 
 
 PART IV.— GERMAN RIGHTS AND INTER- 
 ESTS OUTSIDE OF GERMANY. 
 
 Article 118. In territory outside of her 
 European frontiers as fixed by the treaty 
 Germany renounces all rights, titles and 
 privileges whatever in or over territory 
 formerly belonging to her or to her allies, 
 and undertakes to recognize any measures 
 taken with regard to same. 
 
 !n this general renunciation it is not clear 
 in whose favor it is made. 
 
 SECTION I.— GERMAN COLONIES. 
 
 Article 1 1 9. Germany renounces in favor 
 of the Principal Allied and Associated 
 Powers all her rights and titles over her 
 oversea possessions. 
 
 Article 120. All movable and immovable 
 property belonging to Germany or a Ger- 
 man state shall pass to the government 
 exercising authority over such territories, 
 in accordance with Article 257, which de- 
 clares that no portion of the public debt 
 shall be assumed, that no credit shall be 
 given to Germany on the reparation ac- 
 count, and that such property taken over 
 shall include the private property of the 
 former German emperor as well as that 
 of other royal personages. 
 
 Article 121. The provisions of Sections 1 
 and IV of Part X shall apply to such ter- 
 ritories whatever the government adopted. 
 Section I of Part X provides for the en- 
 joyment of economic privileges in Ger- 
 many with respect to the produce and 
 manufactures of such territories. 
 
 Section IV provides for the confiscation 
 of all private property of German nationals 
 and its application toward the settlement 
 of claims and indemnities; and for resti- 
 tution or compensation with respect to all 
 private property of nationals of the Allied 
 and Associated governments in German 
 hands. 
 
 See Comment opposite Articles 99, 104 
 and 107. 
 
 See Comment opposite Article 39. 
 
 See Comment opposite Article 74. 
 
 — 38 — 
 
Article 122. The government exercising 
 authority over such territories may make 
 such provisions as it thinks fit with refer- 
 ence to repatriation of German nationals 
 and to the conditions upon which German 
 subjects of European origin shall, or shall 
 not, be allowed to reside, hold property, 
 trade or exercise a profession. 
 
 In no treaty of peace imposed in modern 
 times is to be found a provision comparable 
 to this in severity toward individuals of the 
 enemy country. Not only are these private 
 persons lo be despoiled of their property 
 but they may be denied the right to hold 
 property, to trade or practice a profession, 
 or they may be expelled en masse. All re- 
 sponsibility to assist in their repatriation is 
 denied. 
 
 Article 123. The provisions of Article 260 
 apply as to all agreements concluded with 
 German nationals in such territories. Ar- 
 ticle 260 gives to the Reparation Commis- 
 sion power to cause Germany to dispossess 
 her nationals of any rights or interests they 
 may have in any public utility or conces- 
 sion operating in Russia, China, Turkey, 
 Austria, Hungary and Bulgaria, or in any 
 ceded ierritories, and turn the same over 
 to the Reparation Commission. Germany 
 shall be responsible for indemnifying her 
 nationals so dispossessed. 
 
 See Comment opposite Article 74. 
 
 Article 124. Germany undertakes to pay for 
 damage suffered by French nationals in 
 the Cameroons at the hands of German 
 civilian* or military forces, in accordance 
 with an estimate to be presented by 
 France. 
 
 See Comment opposite Article 63, subsec- 
 tion (1). 
 
 The irresponsible acts of civilians of a 
 belligerent government can not form the legal 
 basis of a claim against his government. With 
 respect to such cases the exaction is dis- 
 guised indemnity. 
 
 Article 125. Germany renounces all rights 
 under the conventions of November 1 4, 
 1911, and September 28, 1912, relating to 
 Equatorial Africa and undertakes to pay 
 to the French government, on its estimate, 
 all deposits, credits, advances, etc., effect- 
 ed in virtue of these agreements in favor 
 of Germany. 
 
 By the conventions of November 14, 1911, 
 France ceded to Germany 107,000 square 
 miles of Equatorial Africa, with a popula- 
 tion of 1,000,000 as the price for German 
 recognition of the French protectorate in 
 Morocco. This area will thus come back to 
 France, giving her a total of about 775,000 
 square miles and 10,000,000 of negroes in 
 this colony. 
 
 Article 126. Germany undertakes to accept 
 and observe the agreements made or to be 
 made by the Allied and Associated Powers 
 or some of them with any other power 
 with regard to the trade in arms and 
 spirits, and to the matters dealt with in 
 the General Act of Berlin of February 26, 
 1885, the General Act of Brussels of July 
 2, 1890, and the conventions completing 
 or modifying the same. 
 
 It is incorrect, says Oppenheim (Int. Law, 
 Vol. 1, p. 368, n.), to maintain that the law 
 of nations has abolished slavery, but there 
 is no doubt that the conventional law of na- 
 tions ha3 tried to abolish the slave trade. 
 
 Three important general treaties have 
 been concluded for that purpose during the 
 nineteenth century, since the Vienna Con- 
 gress — namely, ( I ) the treaty of London, 
 1841, between Great Britain, Austria, France, 
 Prussia and Russia; (2) the General Act of 
 the Congo Conference of Berlin, 1885, and 
 (3) the General Act of the Anti-Slavery 
 Conference of Brussels, 1890. 
 
 Of the principal civilized states ratifying 
 this last international effort to abolish human 
 slavery in Africa, France alone ratified with 
 so many reservations as practically to have 
 freed herself from its obligations. 
 
 (See reservations in act of ratification of 
 General Act of Congo Conference by the 
 United States Senate disclaiming approval of 
 African Colonies, etc.; 2 Malloy, p. 1991.) 
 
 Article 126 does not indicate what the 
 
 — 39 
 
Allied and Associated Powers or some of 
 them contemplate, whether a tightening or a 
 relaxation of the obligations. 
 
 Article 12 7. TI12 native inhabitants of the 
 former German oversea possessions shall 
 be entitled to the diplomatic protection 
 of the govern-rients exercising authority 
 over those territories. 
 
 This is confirmation of the passage of 
 such territories under the sovereignty of the 
 state to which they are allotted, since the 
 exercise of diplomatic protection is only pos- 
 sible as an incident to the possession of ex- 
 ternal sovereignty. 
 
 SECTION II.— CHINA. 
 
 Article 128. Germany renounces in favor 
 of China all benefits and privileges result- 
 ing from the provisions of the final proto- 
 col signed at Pekin on September 7, 1901, 
 and from all annexes, notes and documents 
 supplementary thereto. She likewise re- 
 nounces in favor of China any claim to 
 indemnities accruing thereunder subse- 
 quent to March 14, 1917. 
 
 It will be noted that with respect to China 
 no declaration is made to the effect that all 
 treaties and agreements are abrogated, as is 
 done in other instances (infra, Articles 135, 
 138, 148), but there is here only a renun- 
 ciation by Germary. 
 
 Among the benefits and privileges of the 
 protocol of September 7, 1S01, was the com- 
 memorative arch erected in Peking to Baron 
 von Kettclcr at the demand of Germany. 
 
 Germany also received economic privileges 
 and an interest in the total Boxer indemnity 
 of $328,000,000, payable in 39 years. 
 
 Article 129. China need not grant Ger- 
 many the advantages and privileges en- 
 joyed by the other High Contracting 
 Parties under the treaties of August 29, 
 1902, and September 2 7, 1905. 
 
 Article 130. Germany cedes to China all 
 the buildings, wharves, pontoons, barracks, 
 forts, arms, vessels and other public prop- 
 erty which are situated or may be in the 
 German concessions at Tientsin and Han- 
 kow or elsewhere in Chinese territory, ex- 
 cept as otherwise provided in Section VIII, 
 relating to Shantung. Consular and dip- 
 lomatic residences or offices and property 
 in the Legation Quarter are also excepted. 
 
 These concessions comprise comparatively 
 small areas which have been wrung from 
 China by all of the European powers in ad- 
 dition to their so-called "leased territory" in 
 China. The titles in all instances are found- 
 ed on force or threats of force, though the 
 German concessions only are canceled. 
 
 Plainly, China can not be bound by any 
 provisions of the treaty unless and until she 
 ratines it. 
 
 Article 131. Germany undertakes to restore 
 to China within twelve months all astro- 
 nominal instruments which her troops in 
 1900-1901 carried away from China, and 
 to defray all expenses incident thereto. 
 
 Nothing is said of restitution by any of 
 the other High Contracting parties, whose 
 troops, with the Germans, to quote the emi- 
 nent English authority Spaight, indulged in 
 "looting and robbery, naked and unashamed"; 
 nor do Great Britain and France offer to re- 
 turn from their museums any of the works 
 of art taken from the Summer Palace at 
 Pekin in 1860, yet the Grand Allies com- 
 pelled France to recognize the inviolability of 
 property of rare artistic or scientific value in 
 1815 and to restore the same, even though it 
 had passed to France by express treaty stipu- 
 lation. (Final Act, Congress of Vienna, June 
 9, 1815.) 
 
 Article 132. Germany agrees to the abro- 
 gation of the leases under which the Han- 
 kow and Tientsin concessions are held. 
 
 "China, restored to the full exercise of 
 her sovereign rights in the above areas, 
 
 There is an affectation of virtue in this act 
 of restoring China "to the full exercise of 
 
 40 
 
declares her intention of opening them to 
 international residence and trade." 
 
 Article 133. Germany waives all claims 
 arising out of the capture and condemna- 
 tion of German ships in China and the 
 liquidation, sequestration or control of 
 German property, rights and interests in 
 China since August 14, 1917. Such prop- 
 erty may be retained and used to satisfy 
 clair.-s cf Chinese nationals, any balance to 
 be turned over to the Reparation Com- 
 mission. 
 
 her sovereign rights," but how little ground 
 there is for it can be seen from the words 
 immediately following, which plainly put 
 those sovereign rights in a strait- jacket; 
 whatever is given is given to be immediately 
 taken away. 
 
 The law forbids the capture and condem- 
 nation of enemy ships found in the waters of 
 a belligerent on the outbreak of war. They 
 may be seized and used, but only under an 
 obligation to make restitution and compen- 
 sation. (Report of American Delegation to 
 the Hague Conference of 1907. The Hague 
 Peace Conferences, 1 Scott, pp. 556-568.) 
 
 Article 134. Germany renounces in favor 
 of Great Britain German state property in 
 the British concession at Shameen at Can- 
 ton, and in favor of France and China 
 conjointly the property in German schools 
 in the French concessions at Shanghai. 
 
 It would appear that China is the logical 
 beneficiary of this German state property in 
 both instances, being the sovereign of the 
 territory in which it is situated. 
 
 SECTION III.— SIAM. 
 
 Article 135. Germany recognizes that all 
 treaties, conventions and agreements be- 
 tween her and Siam, and all rights, title 
 and privileges derived therefrom, includ- 
 ing all rights of extra-territorial jurisdic- 
 tion, terminated as from July 22, 1917. 
 
 The effect of this Article is to absolve 
 Siam from responsibility for any breaches of 
 treaty obligations from the date mentioned. 
 
 The outbreak of war does not abrogate all 
 treaties; only those are annulled or sus- 
 pended which are incompatible with the state 
 of war, such as treates of commerce and 
 navigation. (5 Moore, pp. 376-377.) 
 
 Those treaties contemplating a permanent 
 arrangement of things, and those entered into 
 with a view to war, remain in force. (Scott, 
 cases, 4128; Lawrence, 4th ed., Sec. 146.) 
 
 As to the abrogation of the right of extra- 
 territorial jurisdiction in Siam, enjoyed by 
 Germany along with all other civilized states, 
 it may be asked whether or not Germany 
 alone is to be denied this protection for her 
 nationals in Siam? Extra-territorial jurisdic- 
 tion is instituted by civilized states through 
 treaty in backward states in order that their 
 nationals may not be subjected to legal sys- 
 tems that are incompatible with enlightened 
 principles of justice. In many backward 
 states their so-called legal systems authorize 
 practices that are utterly barbarous. As their 
 systems improve and approximate accepted 
 standards the right of extra-territoriality is 
 yielded, as in the recent case of the powers 
 with respect to Japan. 
 
 There is no principle in morals that can 
 justify the denial of extra-territorial jurisdic- 
 tion to Germany in such cases. 
 
 Article 136. All German public property, 
 with the exception of diplomatic and con- 
 sular offices, pass ipso facto to Siam with- 
 out compensation, and all private property 
 of German nationals in Siam may be re- 
 
 See Comment opposite Article 74. 
 
 — 41 — 
 
tained and applied to satisfy Siamese claim- 
 ants. 
 
 Article 13 7. Germany waives all claims on 
 account of seizure or condemnation of 
 German ships in Siamese waters, the liqui- 
 dation of German property or the intern- 
 ment of German civilians. 
 
 It appears that the Allied and Associated 
 Powers alone are to have the benefit of exist- 
 ing law instituted for the universal protec- 
 tion of property and peraons. 
 
 SECTION IV.— LIBERIA. 
 
 Article 138. Germany renounces all rights 
 and privileges arising from the arrange- 
 ments of 1911 and 1912 regarding the 
 nomination of a German receiver of cus- 
 toms. 
 
 Article 1 39. Germany recognizes that all 
 treaties between her and Liberia termi- 
 nated from August 4, 1917. 
 
 Article 140. The property, rights and in- 
 terests of Germans in Liberia may be re- 
 tained and used to satisfy Liberian claim- 
 ants. 
 
 In 1912 a loan of $1,700,000 was raised, 
 secured by customs rubber tax and tax on 
 native laborers shipped from Liberia, which 
 was administered by an American General 
 Receiver and British, French and German 
 Receivers. Military police were at the same 
 time placed under control of American mili- 
 tary officers. 
 
 The treaty pretends to adopt as a princi- 
 ple that the outbreak of war automatically 
 abrogates all treaties and agreements of ev- 
 ery character (vide, Comment opposite Arti- 
 cle 135), yet in the case of China only a 
 few specified conventions and agreements are 
 declared "renounced" by Germany. (See 
 Comment, infra, opposite Article 156.) 
 
 No specific provision appears to be made 
 for the taking over of German public prop- 
 erty in Liberia. 
 
 See Comment opposite Article 74. 
 
 SECTION V.— MOROCCO. 
 
 Article 141. Germany renounces all rights 
 and privileges under the General Act of 
 Algeciras of April 7, 1906, and by the 
 Franco-German agreements of February 9, 
 1909, and November 4, 1911. 
 
 France is thus left a free hand in Morocco, 
 and is restored to an even more favorable 
 position than before Germany forced her par- 
 ticipation through the Agidir and other inci- 
 dents. Although the integrity of Morocco 
 has been and is a subject of guarantee, its 
 formal reduction to a French colony appears 
 not far distant. This is forecasted in the 
 Article immediately following. 
 
 Article 142. Germany recognizes the French 
 protectorate in Morocco and renounces the 
 regime of the capitulations therein; that is 
 to say, extra-territorial jurisdiction. 
 
 See Comment opposite Article 135. 
 
 Article 143. The Sherifian government shall 
 have complete liberty in regulating the 
 status of German nationals. 
 
 See Comment opposite Article 122. 
 
 Article 144. All private and public Ger- 
 man property in Morocco, movable and 
 immovable may be taken over, the public 
 property passing to the Sherifian empire 
 (France), and the private property to 
 satisfy claimants. 
 
 See Comment opposite Article 74. 
 
 — 42 — 
 
Article 145. Germany shall ensure the 
 transfer to a person named by France of 
 all German shares in the State Bank of 
 Morocco, Germany being responsible for 
 indemnifying private owners thus dispos- 
 sessed. 
 
 Ibid. 
 
 Article 146. Moroccan goods entering Ger- 
 many shall enjoy the privileges accorded 
 French goods. 
 
 SECTION VI.— EGYPT. 
 
 Article 147. Germany recognizes the Brit- 
 ish protectorate over Egpyt and renounces 
 the regime of the capitulations. 
 
 Until December 18, 1914, the date of the 
 British proclamation of a Protectorate, Tur- 
 key was the nominal sovereign of Egypt, 
 though constantly, since the British occupa- 
 tion in 1882, Great Britain had increased her 
 control over the administration. Egypt, 
 though a vassal state, was nevertheless con- 
 sidered a part-sovereign member of the fam- 
 ily of nations, capable of issuing a proclama- 
 tion of neutrality, sending and receiving con- 
 suls as diplomatic agents and of holding joint 
 sovereignty with Great Britain over Soudan. 
 (1 Oppenheim, p. 142.) This position of 
 Egypt is clearly impeached by British action. 
 
 Article 148. All treaties, agreements and 
 contracts concluded by Germany with 
 Egypt are abrogated. 
 
 See Comment opposite Articles 135 and 
 139. 
 
 Article 149. Until Egyptian law is substi- 
 tuted by a reorganization of the judicial 
 system British consular tribunals will as- 
 sume jurisdiction over German nationals 
 and property. 
 
 It will be observed not even this alterna- 
 tive was provided with respect to the position 
 of German nationals in Siam. 
 
 Article 150. The Egyptian government 
 shall have complete liberty in regulating 
 the status of German nationals in Egypt. 
 
 See Comment opposite Article 122. 
 
 Article 151. Germany consents to the abro- 
 gation of the decree issued by the Khedive 
 on November 28, 1904, relating to the 
 public debt. 
 
 Article 1 52. Germany consents to the 
 transfer to Great Britain of the powers 
 conferred on the Sultan of Turkey by the 
 convention of October 29, 1888, concern- 
 ing the Suez Canal. 
 
 Article 153. All German public property 
 in Egypt passes to the Egyptian govern- 
 ment without payment. 
 
 All private German property may be 
 retained and applied toward satisfaction of 
 claims. 
 
 See Comment opposite Article 74. 
 
 Article 154. Egyptian goods entering Ger- 
 many shall enjoy the same privileges ac- 
 corded British goods. 
 
 — 43 — 
 
SECTION VII— TURKEY AND 
 BULGARIA. 
 
 Article 155. Germany undertakes to recog- 
 nize any arrangements made with Turkey 
 and Bulgaria with reference to any rights, 
 interests and privileges whatever of Ger- 
 many or German nationals in those coun- 
 tries. 
 
 Apparently such property is to be confis- 
 cated as in all other instances. 
 
 SECTION VIII.— SHANTUNG. 
 
 Article 156. Germany renounces in favor 
 of Japan all her rights, title and privileges 
 — particularly those concerning the terri- 
 tory of Kiaochow, railways, mines and sub- 
 marine cables — which she acquired in vir- 
 tue of the treaty concluded by her with 
 China on March 6, 1898, and of all other 
 arrangements relative to the province of 
 Shantung. 
 
 All German rights in the Tsingtao- 
 Tsinanfu railway, including its branch lines, 
 together with its subsidiary property of 
 all kinds, stations, shops, fixed and rolling 
 stock, mines, plant and material for the 
 exploitation of the mines, are and remain 
 acquired by Japan, together with all rights 
 and privileges attaching thereto. 
 
 The German state submarine cables from 
 Tsingtao to Shanghai and from Tsingtao to 
 Chefoo, with all the rights, privileges and 
 properties attaching thereto, are similarly 
 acquired by Japan, free and clear of all 
 charges and encumbrances. 
 
 It will be observed first that with respect 
 to China, one of the Allied and Associated 
 Power;;, the doctrine that the supervention of 
 a state of war automatically abrogates all 
 treaties and agreements is not applied. 
 
 On the contrary, the German lease on Kiao- 
 chow, together with privileges and conces- 
 sions in Shantung, are held to be so far con- 
 tinuing as to be capable of transfer by Ger- 
 many to Japan; and this in spite of the fact 
 that by the terms of the treaty of March 8, 
 1898, the privileges are non-transferable. 
 
 Yet this treaty, wrung from China by Ger- 
 many under a threat of force, was such an 
 agreement as might properly be held to have 
 been annulled by the entrance of China into 
 the war. Treaties granting privileges, says 
 Snow (Int. Law, p. 99), are abrogated by 
 war. 
 
 It is true that in May, 1915, Japan wrung 
 from China, under a threat of war, an agree- 
 ment to abide by such disposition of Kiao- 
 chow and the privileges in Shantung, as 
 Japan and Germany might ultimately agree 
 upon; yet the perfidy of the whole affair was 
 such as to justify the reprobation cf the civil- 
 ized world. So lacking was the proceeding 
 in morals that Japan preferred to abandon 
 all reference to it as a basis of right in the 
 Treaty of Peace and fell back on the doubt- 
 ful legal ground appearing in the article. 
 
 It is plain, however, that from August 14, 
 1917, the date China declared war, Ger- 
 many's rights in Kiaochow lapsed. A re- 
 nunciation by Germany to Japan of something 
 not legally possessed is therefore a mere null- 
 ity. (See The Shantung Question, by Al- 
 pheus H. Snow, The Nation, Vol. CIX, Bo. 
 2829, September 20, 1919.) 
 
 All property belonging to the German em- 
 pire and the German states in China became 
 liable to seizure as fair prize by China on 
 August 14, 1917. 
 
 As to the private property of German na- 
 tionals, while it became liable to sequestra- 
 tion, it did not in law become liable to con- 
 fiscation, although private German property 
 in concessions which China might consider 
 prejudicial to public policy might be can- 
 celed, with or without compensation as the 
 case may be. 
 
 No distinction appears to be made, how- 
 ever, in the attempt to grant all property to 
 
 — 44 — 
 
Article 157. Movable and immovable prop- 
 erty of the German state, as well as all 
 rights which Germany might claim, are ac- 
 quired by Japan free and clear of all 
 charges and incumbrances. 
 
 Japan, although the phraseology is charac- 
 teristically Japanesque. 
 
 This enemy state property being within 
 the restored sovereign jurisdiction of China, 
 it is for China alone to say whether she will 
 exercise her war right to confiscate it. No 
 third state can possibly acquire legal title to 
 it, save through China's previous seizure or 
 approval. 
 
 Article 158. Germany will hand over to 
 Japan within three months all records, reg- 
 isters, archives, deeds and documents of 
 every kind, and will give particulars of all 
 treaties, arrangements or agreements relat- 
 ing to right3, title and privileges in Shan- 
 tung. 
 
 If an international court of arbitral justice 
 could take cognizance of this provision it 
 could find no legal ground upon which to 
 compel performance by Germany for the rea- 
 sons set out (supra, Comment opposite Arti- 
 cle 156). It is a pure arrangement of force 
 in contempt of law. 
 
 If a court of arbitral justice is to be set up 
 by the League of Nations it is pertinent to 
 ask v/hether the Allied and Associated Powers 
 would consent to a review of this transaction 
 and to abide by an award in conformity with 
 the law? 
 
 Part V. MILITARY, 
 CLAUSES. 
 
 NAVAL AND AIR 
 
 SECTION I.— MILITARY CLAUSES. 
 Chapter I. 
 
 Articles 159-163. These Clauses seek to re- 
 duce Germany's military forces to fixed 
 limits. 
 
 Chapter II. 
 
 Articles 164-172. These Clauses seek to 
 establish equipment limits and exclude im- 
 portations. They prohibit the manufacture 
 of poisonous gases to Germany while de- 
 manding that Germany reveal to the Prin- 
 cipal Allied and Associated Powers all 
 formulae with respect to her manufacture 
 of such gases and explosives. 
 
 Chapter III.— RECRUITING AND MILITARY 
 TRAINING. 
 
 Articles 173-179. These Clauses prohibit 
 universal military service in Germany and 
 place restrictions on training calculated to 
 ensure the maxima in military forces pre- 
 viously referred to. 
 
 Chapter IV.— FORTIFICATIONS. 
 
 Article 1 80. This Clause provides for de- 
 struction and disarmament of certain Ger- 
 man fortresses. 
 
 It may be remarked that although Germany 
 is forbidden to have universal military service, 
 most of the Allied and Associated Powers, in- 
 cluding the United States, have adopted it in 
 their military programs. 
 
 — 45 — 
 
SECTION II.— NAVAL CLAUSES. 
 
 Articles 181-197. These Clauses fix the 
 number and type of vessels Germany may 
 have, forbid the building of others, for- 
 bid the construction by Germany of sub- 
 marines, provide for the sweeping up of 
 mines, fix the naval personnel, limiting it 
 to voluntary engagements for long periods, 
 and regulate wireless. 
 
 It will be observed that no obligation has 
 been assumed by the Allied and Associated 
 Powers to forego the building of submarines. 
 On the contrary, the submarine occupies a 
 conspicuous place on all the new naval pro- 
 grams, 
 
 SECTION III.— AIR CLAUSES. 
 
 Articles 198-202. These Clauses fbrbid 
 Germany to possess military or naval air 
 forces, provide for the demobilization of 
 existing forces, admit freedom of passage 
 to Allied and Associated aircraft, and 
 compel the surrender of all aircraft and 
 parts thereof by Germany. 
 
 SECTION IV.— INTER-ALLIED COMMIS- 
 SIONS OF CONTROL. 
 
 Articles 203-210. Inter-Allied Commissions 
 of Control shall be appointed by the Prin- 
 cipal Allied and Associated Powers to en- 
 f; rce all the provisions of the preceding 
 three sections. They may establish them- 
 selves at the seat of the German govern- 
 ment and must receive every facility in 
 their missions. Their orders shall be car- 
 ried out at Germany's expense and the up- 
 keep and cost of such Commissions shall 
 be borne by Germany. 
 
 SECTION V.— GENERAL ARTICLES. 
 
 Article 211. Germany mu3t within three 
 months conform her laws to the preceding 
 sections. 
 
 Part VI. PRISONERS OF WAR AND 
 GRAVES. 
 
 SECTION I.— PRISONERS OF WAR. 
 
 Articles 214-216. These Articles provide 
 for repatriation of prisoners of war as soon 
 as possible after the peace, including Ger- 
 man nationals who were habitually resi- 
 dent in Allied or Associated countries. 
 
 By Articles 3 and 18 of the Armistice of 
 November 11, 1918, immediate repatriation 
 was stipulated for all interned civilians, in- 
 cluding persons under trial or convicted, and 
 hostages, as well as inhabitants of occupied 
 territories, who were nationals of Allied or 
 Associated governments. There was no reci- 
 procity. 
 
 Article 217. Germany shall bear the whole 
 cost of repatriation. 
 
 This expense is usually included in the 
 maintenance of prisoners' accounts and set- 
 tled by the payment of any balance due after 
 comparison of accounts. (See Article XIII, 
 Treaty of Portsmouth, 1905; see Article 224, 
 infra.) 
 
 — 46 — 
 
Articles 218-219. Prisoners of war and in- 
 terned civilians awaiting disposal or under- 
 going sentence for offenses against disci- 
 pline shall be repatriated despite that fact, 
 but those awaiting disposal or under sen- 
 tence for common law crimes may be re- 
 tained. 
 
 This, being reciprocally applicable, is in 
 accordance with practice and the law. 
 
 Article 220. The Allied and Associated gov- 
 ernments reserve the right to make repa- 
 triation of German nationals conditional up- 
 on the immediate release of any Allied or 
 Associated nationals in Germany. 
 
 Article 221. Germany undertakes to give 
 every facility to prisoners' Commissions to 
 facilitate inquiries concerning missing pris- 
 oners and to punish any German nationals 
 who may have concealed the presence of 
 any Allied or Associated prisoners, or who 
 have neglected to reveal the presence of 
 such prisoners. 
 
 Article 223. Germany undertakes to restore 
 without delay all articles, money, securities 
 and documents belonging to nationals of 
 Allied and Associated governments which 
 have been retained by Germany. 
 
 It will be observed that this obligation is 
 not set out as reciprocal, yet it is a settled 
 principle of the laws of war that the private 
 property of prisoners of war remains their 
 property and must be restored. (Spaight, 
 pp. 279-280; Ariga, Le Guerre russo-japo- 
 naise, p. Ill, n.) 
 
 Is it conceivable that the Allied and Asso- 
 ciated governments wish to reserve the right 
 to set aside as to themselves the binding 
 force of such an enlightened rule of war 
 law? Are no exceptions whatever to be 
 made in the repudiation of the principle of 
 inviolability of private property? 
 
 Article 224. Repayment of sums due for 
 maintenance of prisoners is reciprocally 
 waived. 
 
 SECTION II.— GRAVES. 
 
 Article 225. The Allied and Associated gov- 
 ernments and Germany engage to respect 
 and maintain graves of soldiers and sailors 
 buried in their respective territories. They 
 agree to recognize any commission appoint- 
 ed by an Allied or Associated government 
 for the purpose of identifying, registering, 
 caring for or erecting suitable monuments 
 over said graves. 
 
 Furthermore, they agree to afford, as far 
 as requirements of public health allow, ev- 
 ery facility for giving effect to requests 
 that the bodies of their soldiers and sailors 
 may be transferred to their own country. 
 
 It will be observed that Allied and Asso- 
 ciated governments alone are to be permitted 
 to appoint representatives to identify, register 
 and care for the graves of their dead. The 
 German government is denied these rights 
 with respect to her dead. The world was 
 entitled to expect some magnanimity and 
 generosity at least in dealing with a subject 
 of such peculiar sanctity. 
 
 Article 226. Graves of prisoners of war and 
 civilians shall be maintained a3 provided 
 in Article 225, and each government shall 
 furnish the other with all information with 
 respect to same. 
 
 — 47 — 
 
Part VII. PENALTIES. 
 
 Aiticle 227. The Allied and Associated 
 Powers publicly arraign William II of 
 Hohenzollern, formerly German emperor, 
 for a supreme offense against international 
 morality and the sanctity of treaties. 
 
 A special tribunal will be constituted 
 to try the accused, thereby assuring him 
 the guarantees essential to the right of de- 
 fense. It will be composed of five judges, 
 one appointed by each of the following 
 powers, namely: the United States of Amer- 
 ica, Great Britain, France, Italy and Japan. 
 
 In its decision the tribunal will be guided 
 by the highest motives of international pol- 
 icy, with a view to vindicating the solemn 
 obligations of international undertakings 
 and the validity of international morality. 
 It will be its duty to fix the punishment 
 which it considers should be imposed. 
 
 However black the iniquity of the former 
 German emperor is under the moral law, his 
 offenses are not crimes under any known 
 system of jurisprudence with this exception: 
 that if it can be proved — and it probably 
 can be that the former emperor is the au- 
 thor of any orders directing the violation of 
 the laws of civilized warfare, he is triable 
 before the military tribunal of any country 
 suffering through the carrying out of such 
 orders. In that respect his liability appears 
 to be unquestionable. He was a military per- 
 sonage in addition to a ruler. 
 
 But he is not arraigned on the charge of 
 being the responsible author of violations of 
 the laws of war; ha is arraigned "for a su- 
 preme offense against intarnational morality 
 and the sanctity of treaties." There is no 
 such offence in any penal code known to 
 man, and it is the most elemental principle 
 of criminal jurisprudence that no one can be 
 punished for acta which, when committed, 
 did not constitute a crime. We see this prin- 
 ciple expressly embodied in our constitutional 
 system in the prohibition against the enact- 
 ment by Congress of an ex post facto law. 
 
 The Society of Nations may by agreement 
 establish for the future a system of interna- 
 tional criminal law, including as crimes, of- 
 fenses against international morality and the 
 faith of treaties; they may institute a court 
 and confer jurisdiction as to the future; but 
 to set up a court and assume to create crimes 
 out of past acts condemned by no system of 
 law is to do violence to the basic principles 
 of jurisprudence. 
 
 That the Allied and Associated govern- 
 ments can, as a precautionary measure of 
 self-defense, place the former German em- 
 peror in a position where he can no longer 
 menace their safety goes without saying. 
 
 The Allied and Associated Powers will 
 address a request to the government of the 
 Netherlands for the surrender to them of 
 the ex-Emperor in order that he may be 
 put on trial. 
 
 Such offenses as the former German em- 
 peror is guilty of are essentially political in 
 their character, the principal offense being 
 the initiation of a war of aggression against 
 Europe. 
 
 It is an elemental principle of the law of 
 nations, embodied in municipal systems and 
 in treaties universally, that no state shall be 
 bound to deliver up political offenders who 
 have fled to their territories. The State in 
 which asylum has been found may deliver 
 up such fugitive, but it is wholly for that 
 state to decide. 
 
 There is this to be said with respect to 
 the rights of the Allied and Associated gov- 
 ernments in relation to the ex-Emperor: that 
 if his situation in Holland constitutes a men- 
 ace to the Allied and Associated governments 
 of sufficient gravity they may invoke the 
 rights of self-preservation in eliminating that 
 menace. And under cases of extreme neces- 
 sity the vindication of this right may allow- 
 ably involve what would ordinarily amount 
 
 48 — 
 
Article 228. Germany recognizes the right 
 of the Allied and Associated governments 
 to bring before military tribunals persons 
 accused of violations of the laws of war. 
 Germany will hand over all persons who 
 are specified. 
 
 Article 229. Persons guilty of criminal acts 
 against the nationals of one of the Allied 
 and Associated Powers will be brought be- 
 fore the military tribunals of that power. 
 
 Persons guilty of criminal acts against 
 the nationals of more than one of the Al- 
 lied and Associated Powers will be brought 
 before military tribunals composed of mem- 
 bers of the Powers concerned. The ac- 
 cused shall be entitled to have his own 
 counsel. 
 
 lo an infraction of the law of nations. (Hall, 
 268; 1 Westlake, 302.) 
 
 In other words, assuming the necessity to 
 exist, the Allied and Associated governments 
 might be justified even in the use of force 
 to recover the person and render the ex- 
 Emperor harmless. (Hershey, pp. 144-146; 
 yet see Queen vs. Dudley et al., 14 Q. B D., 
 273.) 
 
 The procedure here indicated appears fully 
 to conform to the legal requirements. There 
 is no question of the jurisdiction of military 
 tribunals over crimes against the laws of war. 
 In all sentences of death, however, it would 
 seem necessary that some reviewing authority, 
 analogous to the Commander-in-Chief, exist. 
 (Spaight, pp. 461-462.) 
 
 This is one of the most wholesome of all 
 the provisions in the Treaty of Peace. It is 
 essentially calculated to vindicate that great 
 branch of the law of nations comprised with- 
 in the laws of war. It will give an added 
 sanction of the highest value to that law. No 
 belligerent in the future will care to embark 
 upon a course of deliberate disregard of the 
 laws of civilized warfare v/ith such a deter- 
 rent example before its eyes. 
 
 While mixed military tribunals are unusu- 
 al, there appears no valid objection to their 
 use in the cases indicated. 
 
 The rights of the accused are adequately 
 protected by the provision permitting the 
 choosing of counsel. 
 
 Article 230. The German government will 
 furnish all documents considered necessary 
 to the discovery of offenders and the just 
 appreciation of responsibility. 
 
 Part VIII. REPARATION. 
 
 SECTION I.— GENERAL PROVISIONS. 
 
 Articles 231-244, together with Annexes 1-4. 
 These Articles, affirming Germany's re- 
 sponsibility for causing all the loss and 
 damage suffered by Allied and Associated 
 governments and their nationals, and insti- 
 tuting means, including a Reparation Com- 
 mission, through which restitution and 
 compensation are to be made, have been 
 discussed in part. (Infra, opposite Article 
 63, together with Annex I, par. 1-10.) 
 
 It is to be noted (Annex II, 11) that the 
 Reparation Commission "shall not be bound 
 by any particular code or rules of law" or 
 rules of evidence. It must necessarily be 
 freed from any such obligation if it is to 
 carry out certain terms of the treaty. 
 
 Article 232. Germany pledges complete res- 
 toration of Belgium, and, in addition, to 
 make reimbursement of all sums borrowed 
 
 It may fairly be contended that the exac- 
 tion of these conditions rests so far in a 
 legal justification as to take them out of the 
 
 — 49 — 
 
by Belgium of the Allied and Associated 
 governments up to November II, 1918, as 
 a consequence of the violation of the 
 Treaty of Neutralization of 1839. 
 
 category of indemnity. (See Comment op- 
 posite Article 63.) Germany, being solemn- 
 ly bound to respect the neutrality of Belgium, 
 is properly denied the benefits that might ac- 
 crue to a belligerent not so bound and 
 clothed with the rights of war in their full 
 force. Hence, it may be argued, that all 
 destruction wrought, including that of the 
 Allied and Associated governments in repell- 
 ing Germany, all requisitions, contributions 
 and fines imposed, and all other acts preju- 
 dicial to Belgium, must be repaired by Ger- 
 many. 
 
 No warrant exists, however, for the plac- 
 ing of the other Allied and Associated gov- 
 ernments in the category with Belgium. With 
 respect to them Germany was legally at war, 
 and as a belligerent she possessed ipso facto 
 the right to enter upon and carry out de- 
 struction having a military object (see supra, 
 opposite Article 63, par. 9); she possessed 
 the war rights to levy requisitions, contribu- 
 tions and fines (see supra, opposite Article 
 63, par. 10). 
 
 Only where Germany exceeded the limits 
 of these rights — and those instances were 
 numberless — does a legal justification for the 
 exaction of reparation exist. (Spaight, 462- 
 463; II Oppenheim, pp. 319-321.) 
 
 To determine the instances and degree of 
 responsibility of Germany for violations of 
 the laws of war would require inquiry into 
 the facts — unquestionably a long and tedious 
 process — and an award in each case. The 
 alternative of agreement upon lump sums 
 covering estimated unlawful damage and the 
 like would not have been open to serious 
 objection. Either of these courses would 
 have tended to establish more firmly and 
 promote respect for law. In ignoring these 
 settled principles, defining war rights and du- 
 ties as to persons and property, the Allied 
 and Associated governments wipe out the 
 whole progressive development of the law 
 and throw the world back upon the doctrine 
 of the unlimited right of the victor obtaining 
 through the Middle Ages. 
 
 As the laws of war permit of certain de- 
 struction of property, so they allow acts of 
 violence against the persons of civilians un- 
 der certain circumstances, yet no notice is 
 taken of these distinctions in the provisions 
 looking to the compensation of civilians of 
 the Allied and Associated governments in all 
 cases of injury and damage (see supra, op- 
 posite Article 63, par. 2). Civilians (non- 
 combatants) have certain rights and duties 
 arising in times of belligerency, and their im- 
 munity from intentional injury is predicated 
 upon the performance of those duties. Among 
 those duties is abstention from all war-like 
 acts. A civilian engaging in war-like con- 
 duct is a war criminal. Many of such per- 
 sons deserve the affectionate remembrance of 
 their own countries, but their punishment is 
 none the less the lawful right of the enemy. 
 (Spaight, 335 et seq.) 
 
 If it is proposed to enforce reparation in 
 
 — 50 
 
behalf of civilians of this class, described in 
 law as unlawful belligerents, as well as in 
 behalf of those suffering from acts in ex- 
 cess of the lawful exercise of power, the 
 whole benign system of principles relating 
 to combatants and non-combatants and de- 
 fining their rights and duties is confounded. 
 It does not constitute progress; it does con- 
 stitute reaction. (See Spaight, Chapter III, 
 pp. 34-72.) 
 
 Annex III. 
 
 ( 1 ) Germany recognizes the right of 
 the Allied and Associated Powers to re- 
 placement, ton for ton, and class for class, 
 of all merchant ships and fishing boats 
 lost or damaged owing to the war. 
 
 Germany will hand over all merchant 
 ships, public and private, which are of 
 1600 tons and upward; one-half of all 
 ships between 1000 and 1600 tons; one- 
 quarter of all steam trawlers and one- 
 quarter of all fishing boats. 
 
 The right to capture and destroy an ene- 
 my's merchant ships, under certain limita- 
 tions, including a general obligation to pro- 
 vide for the safety of passengers and crew, 
 is a settled one under the laws of maritime 
 warfare. (II Oppenheim, 242-245; II West- 
 lake, 309-312.) 
 
 These limitations include a summons or 
 warning as a condition precedent to any re- 
 sort to force, a qualification constantly and 
 deliberately violated by Germany in her sub- 
 marine warfare. 
 
 In such instances, it may be said generally, 
 the destruction was unlawful and involves 
 liability to make compensation. But no dis- 
 tinction is made, so far as replacement is con- 
 cerned, with respect to those vessels lawfully 
 warned and sunk during resistance or flight 
 and those prizes destroyed at sea under law- 
 ful conditions. So far as the latter category 
 is concerned, replacement can be viewed only 
 as indemnity; not as reparation. 
 
 As to replacement of fishing boats of the 
 Allied and Associated governments, the law 
 recognizes coast-fishing vessels alone as ex- 
 empted from capture and destruction, and 
 then only on condition of their innocent em- 
 ployment. It is well known that the fishing 
 fleets of all the maritime states in the Great 
 War were very largely used in mine-planting 
 and mine-sweeping, under which circum- 
 stances no immunity could attach to them 
 under the law. (Hall, Int. Law, 6th ed., pp. 
 444-445; Pacquette Habana, 195, U. S., 
 677.) 
 
 To enforce replacement in such cases must 
 necessarily constitute indemnity, rather than 
 reparation for wrong done. 
 
 As to the private property in ships to be 
 handed over, see Comment opposite Article 
 74. 
 
 (8) Germany waives all claims against 
 Allied and Associated governments in re- 
 spect of the detention, employment, loss 
 or damage of any German ships. 
 
 German vessels found in the territorial 
 waters of most of the states at war with 
 Germany were taken over by such states un- 
 der a right to use them, though with an im- 
 plied obligation to restore them at the peace 
 and make compensation. They may not be 
 confiscated. (See Report of American Dele- 
 gation to Hague Conference, 1907, cited 
 supra, opposite Article 133.) So far, there- 
 fore, as the taking over of such vessels other- 
 wise innocent is concerned, it must be con- 
 sidered as indemnity, and not as reparation. 
 
 51 — 
 
One of the results is a repudiation of the 
 age long policy of the United States looking 
 to the approximation of the laws of maritime 
 warfare to the laws of land warfare in the 
 matter of immunity of private property. (7 
 Moore's Digest, pp. 460, 461, 462, 467; 
 McKinley's annual message, December 5, 
 1898; Roosevelt's annual message, Decem- 
 ber 7, 1903.) 
 
 (9) Germany waives all claims as to 
 vessels or cargoes sunk by the Allied and 
 Associated Powers. 
 
 A victorious belligerent may be justified in 
 practice in declining to have the legality of 
 its actions inquired into by the vanquished, 
 but such a course can not contribute to 
 clarification and a firmer establishment of 
 the law. 
 
 Annex IV. 
 
 (I), (2), (3), (4), (5). These para- 
 graphs provide for the immediate delivery 
 by Germany to the Allied and Associated 
 Powers, through the Reparation Commis- 
 sion, of animals, machinery, tools and like 
 articles which have been seized, consumed 
 or destroyed by Germany in Allied and 
 Associated countries, lists of such articles 
 desired to be filed by Allied and Associ- 
 ated governments. Machinery, equipment, 
 tools and the like are to be demanded not 
 in excess of thirty per cent of the quan- 
 tity of such articles in any one establish- 
 ment or undertaking. Services may be 
 required toward repairing damage in lieu 
 of physical restoration. 
 
 As to animals for food or transport, they 
 may rightfully be taken under the war right 
 of requisition, a receipt being given. This 
 receipt does not imply an obligation on the 
 part of the giver to redeem it. (Holland, 
 No. Ill; Bordwell, 107, 318.) Yet it is not 
 unusual in practice that the giver has been 
 compelled to redeem it if he is vanquished. 
 That is the extent to which the principle of 
 inviolability of private property is satisfied. 
 (See supra, opposite Article 63, pars. 8 and 
 10.) 
 
 As to machinery, equipment, tools and the 
 like, these may also be seized under requisi- 
 tion. They may be destroyed as a part of 
 some military design to overcome the hostile 
 army, under the authority of the laws of war, 
 involving no liability to make compensation. 
 Liability to make compensation appears to be 
 recognized as to certain classes of private 
 property taken over by an enemy force for 
 use. (Juragua Iron Co. vs. U. S., Sup. Ct., 
 Feb. 23, 1909.) 
 
 All of these distinctions are ignored in 
 the Articles opposite. 
 
 SECTION II.— SPECIAL PROVISIONS. 
 
 Articles 245-246. These Clauses provide 
 for restitution by Germany of trophies, 
 works of art, etc., carried away from 
 France in 1870-1871; the restitution of the 
 original Koran of the Caliph Othman, 
 taken from Medina by Turkish authorities, 
 and other articles and restitution to the 
 University of Louvain of manuscripts, in- 
 canabula, books and other objects in num- 
 ber and value corresponding to those de- 
 stroyed. 
 
 This recalls the enforced restitution of 
 works of art seized by Napoleon I in Italy 
 upon the entrance into France of the Grand 
 Allies in 1815. It is unquestionably settled 
 law that property of this character is inviol- 
 able. Yet the museums of Europe still hold 
 quantities of precious works of the class of 
 specially protected property representing the 
 so oil 3 of war. 
 
 Under the provisions of Part VIII a 
 Reparation Commission is instituted, to be 
 composed of one delegate each of the 
 United States, Great Britain, France and 
 Italy, with a delegate from Japan, Belgium 
 or the Serb-Croat-Slovene state sitting un- 
 der specified conditions as the fifth mem- 
 ber. 
 
 In view of the wide latitude of control of 
 German internal affairs placed in the hands 
 of the Commission, it is difficult to escape 
 the conclusion that for an indefinite period 
 at least Germany will cease to be a fully 
 sovereign nation. Particularly is this indi- 
 cated in the undertaking of Germany to 
 pass, issue and maintain any legislation, or- 
 
 — 52 — 
 
To this Commission is confided the pow- 
 er to eniorce the various stipulations for 
 reparation and indemnity. The Commis- 
 sion may fix as a first installment (wheth- 
 er in gold, commodities, ships, securities 
 or otherwise) the equivalent of 20,000,- 
 000,000 gold marks, nearly $5,000,000,- 
 000. The findings of the Commission as 
 to the total sums due on account of dam- 
 age shall be concluded and notified to 
 Germany on or before May 1, 1921. The 
 Commission shall thereafter consider the 
 resources and capacity of Germany to 
 
 pay- 
 Germany further agrees to direct her 
 economic resources to reparation relating 
 to merchant shipping, to physical restora- 
 tion, to coal and derivatives of coal, and 
 to dyestuffs and other chemical products, 
 to be credited to the reparation account. 
 
 In addition to the total sum fixed, Ger- 
 many shall make restitution in cash of cash 
 taken away, seized or sequestered and 
 shall make restitution of animals, objects 
 of every nature and securities taken away, 
 seized or sequestered. 
 
 Germany agrees irrevocably to the pos- 
 session and exercise by the Commission 
 of the power and authority set out in the 
 treaty and Germany undertakes to pass, 
 issue and maintain in force any legislation, 
 orders and decrees that may be necessary 
 to give complete effect to the treaty provi- 
 sions. 
 
 The Commission may appoint all neces- 
 sary officers, agents and employes required 
 and may delegate authority to such offi- 
 cers. All its proceedings shall be secret 
 unless it should decide otherwise for spe- 
 cial reasons. Germany may present argu- 
 ments as to her ability to pay. The Com- 
 mission shall not be bound by any partic- 
 ular system or rules of law, but shall be 
 guided by justice, equity and good faith. 
 
 The Commission may determine that 
 Germany shall cover by way of guarantee 
 by an equivalent issue of bonds any 
 amount of proved claims not paid in gold, 
 ships or otherwise. It shall examine the 
 German system of taxation with a view 
 to seeing that it is fully as heavy propor- 
 tionately as that of any power represented 
 on the Commission. 
 
 In order to facilitate the restoration of 
 economic life in Allied and Associated 
 countries, Germany undertakes to issue 
 forthwith 60,000,000,000 marks gold 
 bearer bonds and to deliver forthwith a 
 covering undertaking in writing to issue a 
 further installment of 40,000,000,000 
 marks gold bearer bonds of various dates 
 and rates of interest largely in the con- 
 trol of the Commission. 
 
 In case of any voluntary default by 
 Germany the Allied and Associated gov- 
 ernments may take any action they deem 
 necessary, Germany agreeing not to regard 
 any such measures as acts of war. When 
 all the amounts due from Germany and 
 
 ders and decrees which may be notified to 
 her as necessary to give effect to the treaty. 
 
 53 — 
 
her allies or the decisions of the Com- 
 mission have been discharged the Commis- 
 sion shall be dissolved. 
 
 PART IX.— FINANCIAL CLAUSES. 
 
 Article 248. It is declared the cost of repa- 
 ration to be a first charge "upon all the 
 assets and revenues of the German Empire 
 and its constituent states." 
 
 Article 249. Germany shall pay the total 
 cost of occupation by Allied and Associat- 
 ed armies, including the keep of men and 
 beasts, lodging, pay and allowances, and 
 the cost of requisitions resorted to by the 
 armies of occupation. 
 
 See Comment on Requisitions opposite Ar- 
 ticles 428-432. 
 
 Article 254. Where any payment is to be 
 made on account of the assumption of a 
 portion of the German debt chargeable to 
 ceded territory, it shall be made to the 
 Reparation Commission and not to Ger- 
 many. 
 
 Article 256. Powers to which German ter- 
 ritory is ceded shall acquire all property 
 and possessions situated therein belonging 
 to the German empire, to German states, 
 and to the former emperor and other royal 
 personages. The acquiring state shall pay 
 the equivalent of the value fixed to the 
 Reparation Commission for the credit of 
 Germany. 
 
 Alsace-Lorraine and territories ceded to 
 Belgium are made exceptions as to the 
 requirement of payment. 
 
 See Comment opposite Article 39. 
 
 See Comment opposite Article 55. 
 
 Article 257. Where German territory is 
 confided to a mandatory no portion of the 
 public debt will be assumed nor shall any 
 payment be made or credit given on ac- 
 count of public property taken over by 
 the mandatory. 
 
 Article 258. Germany renounces all rights 
 accorded to her or her nationals by trea- 
 ties, conventions or agreements of what- 
 soever kind, to representation upon or par- 
 ticipation in the control or administra- 
 tion of Commissions, State Banks, agen- 
 cies, or other financial or economic or- 
 ganizations of an international character 
 in any Allied or Associated country or in 
 Austria, Hungary, Bulgaria or Turkey. 
 
 Thus are extinguished all of the once am- 
 bitious plan3 cf the German empire in the 
 southeast of Europe and in Asia Minor, in- 
 cluding the projects of Berlin-to-the-Persian 
 Gulf. And thus all portentous obstacles in 
 the road to India are cleared away. 
 
 It is not indicated in whose favor the re- 
 nunciation is made. 
 
 Article 259. Germany will deliver within 
 one month to such authority as the Prin- 
 cipal Allied and Associated Powers may 
 designate Turkish gold deposited in the 
 Reichsbank to secure the first issue of 
 Turkish currency notes and other Turkish 
 gold on deposit, as well as gold trans- 
 ferred by Austria-Hungary as collateral for 
 loans. 
 
 — 54— 
 
Germany confirms her renunciation of 
 the Brest-Litovsk and Bucharest treaties 
 and will deliver to Roumania or to the 
 Allied and Associated governments all 
 monetary instruments, specie, securities 
 and goods received under these treaties. 
 
 All such sums of money, securities, etc., 
 will be disposed of by the Principal Al- 
 lied and Associated Powers in a manner 
 to be determined by them. 
 
 Article 260. Germany, on demand of the 
 Reparation Commission, will become pos- 
 sessed of any rights or interests of Ger- 
 man nationals in public utilities or con- 
 cessions operating in Russia, China, Tur- 
 key, Austria, Hungary and Bulgaria, or 
 in any territories of those states, and 
 transfer the same to the Reparation Com- 
 mission. Germany shall be responsible for 
 indemnifying her nationals thus dispos- 
 sessed and shall receive credit on the 
 reparation account for the value of rights 
 transferred. 
 
 It will be observed that China, one of the 
 the Associated and Allied Powers, is placed 
 in the category of enemy countries so far as 
 contemplated projects of economic exploita- 
 tion are concerned. 
 
 Article 261. Germany will transfer to the 
 Allied and Associated Powers any claims 
 to payment or repayment by Austria, Hun- 
 gary, Bulgaria or Turkey. 
 
 See Comment opposite Article 259 as to 
 Bulgaria. 
 
 PART X.— ECONOMIC CLAUSES. 
 
 SECTION I.— COMMERCIAL RELATIONS. 
 
 CHAPTER I.— CUSTOMS REGULATIONS. 
 
 DUTIES AND RESTRICTIONS. 
 
 Articles 264-270. These Articles grant ex- 
 ceptional and uniform privileges to Allied 
 and Associated governments in the mat- 
 ter of duties and charges on their products 
 and manufactures entering Germany. 
 
 For a period of five year3 natural and 
 manufactured products of Alsace-Lorraine 
 shnll be exempt from all customs duties. 
 
 For a period of three years Polish prod- 
 ucts shall enjoy like exemption. A simi- 
 lar right is reserved for Luxemburg. 
 
 It can not be doubted that these provi- 
 sions go far toward limiting the sovereignty 
 of Germany. 
 
 In the absence of reciprocity these econo- 
 mic measures are in the nature of indemnity. 
 
 CHAPTER II— SHIPPING. 
 
 Article 271. As regards sea fishing, coast- 
 ing trade and towage vessels of Allied and 
 Associated Powers shall enjoy most-fa- 
 vored-nation treatment in German terri- 
 torial waters. 
 
 This is clearly a restriction placed upon 
 the internal sovereignty of Germany. 
 
 Article 2 72. Germany agrees that all rights 
 of inspection and police shall, in the case 
 of fishing boats of the Allied Powers, be 
 exercised solely by ships of those powers, 
 in North Sea fisheries. 
 
 By the International Convention of May 6, 
 1882, for the Regulation of the Police of the 
 Fisheries of the North Sea, Great Britain, Bel- 
 gium, Denmark, France, Germany and Hol- 
 land agreed upon certain reciprocal rights 
 
 — 55 — 
 
CHAPTER III.— UNFAIR COMPETITION. 
 
 Article 274. Germany undertakes to adopt 
 legislative and administrative measures to 
 repress exportation, manufacture, distribu- 
 tion or sale in its territory of all goods 
 bearing any marks, names, devices or de- 
 scription calculated to convey a false indi- 
 cation of origin, type or nature of such 
 goods. 
 
 CHAPTER IV.— TREATMENT OF NATION- 
 ALS OF ALLIED AND ASSOCIATED 
 POWERS. 
 
 of visiting vessels of signatory states by spe« 
 cial cruisers. Germany is thus ejected from 
 these arrangements. 
 
 Article 276. Germany undertakes: (a) Not 
 to subject nationals of Allied and Asso- 
 ciated Powers to any prohibition in regard 
 to the exercise of occupations, professions, 
 trade and industry not equally applicable 
 to all aliens; (b) Not to subject them to 
 any regulation or restriction not applic- 
 able to nationals of the most favored na- 
 tion; (c) Not to subject their property, 
 rights or interests to any charge or tax 
 not imposed on its own nationals or their 
 property. 
 
 Compare with action taken in Articles 122, 
 143, 150. 
 
 Article 2 78. Germany agrees to recognize 
 any new nationality acquired by her na- 
 tionals under the laws of Allied and Asso- 
 ciated powers or by treaty, and to regard 
 them as having severed their allegiance. 
 
 See Comment opposite Article 37. 
 
 Article 279. Germany undertakes to ap- 
 prove the designation of Consuls-general, 
 Consuls, Vice Consuls and Consular 
 Agents by Allied and Associated Powers 
 and to admit them to exercise their func- 
 tions in German ports and towns. 
 
 The matter of receiving a particular for- 
 eign Consul (through issuing an exequatur) 
 or dismissing him (through revoking the exe- 
 quatur) is a right to be exercised wholly at 
 the pleasure of the receiving state, though 
 exequaturs are rarely revoked without cause. 
 
 It appears, however, that Germany is de- 
 nied the right to decline to receive a desig- 
 nated consular officer even though he be per- 
 sona non grata. 
 
 CHAPTER V.— GENERAL ARTICLES. 
 
 Article 280. Obligations imposed on Ger- 
 many by Chapter I and by Articles 271 
 and 272 of Chapter II shall cease in five 
 years unless continued by the Council of 
 the League of Nations. 
 
 The obligations under Article 276 shall 
 continue for five years and may be ex- 
 tended for five years. 
 
 Article 281. If the German government en- 
 gages in international trade it shall not be 
 deemed to have any rights, privileges or 
 
 This proposition is founded upon such ele- 
 mental principles that it seems hardly neces- 
 sary to have referred to it. 
 
 — 56 — 
 
immunities of sovereignty in respect there- 
 of. 
 
 SECTION II.— TREATIES. 
 
 Article 282. There are here designated 
 twenty-six multilateral treaties, conven- 
 tions and agreements of an economic and 
 technical character, which, it is declared, 
 shall alone be applied as between Ger- 
 many and those Allied and Associated 
 Powers parties thereto. They include 
 conventions relating to international pro- 
 tection of cables, birds, minors, to motor- 
 cars, railways, customs inspection, tolls, 
 tonnage, measurement of vessels, collisions 
 and salvage at sea, the metric system, phar- 
 macopoeial firmulae for potent drugs, ag- 
 riculture, the establishment of a concert 
 pitch; for the suppression of white phos- 
 phorus in the manufacture of matches, ob- 
 scene literature, white slavery and phyl- 
 loxera; and relating to other subjects. 
 
 The recital of international agreements of 
 general concern set out as surviving the war 
 and binding Germany looks to Article 24 of 
 Part I (The Covenant of the League of Na- 
 tions) of the Treaty, where it is declared 
 all international bureaux shall be placed un- 
 der the direction of the League. 
 
 Some idea of the magnitude of the pro- 
 posed League's labors in fields other than 
 those political may be obtained from this 
 Article. 
 
 To what extent these conventions would be 
 energized with a resultant conflict with inter- 
 nal authority in the respective states is a 
 matter of opinion. It can not be doubted, 
 however, that each would occupy a separate 
 department, under a separate head, with its 
 corp3 of experts and agents. 
 
 Articles 283-285. Further international trea- 
 ties are designated herein which are to 
 come into force conditionally, including 
 the Postal, Telegraphic and Radio-Tele- 
 graphic conventions. 
 
 Article 286. The conventions of 1883 and 
 June 2, 1911, for the protection of indus- 
 trial property; of Berne, 1886, for the 
 protection of literary and artistic work, 
 and of 1908 and 1914, relating to the 
 same subjects, are revived, subject to ex- 
 ceptions and restrictions contained in the 
 treaty. 
 
 By paragraph 15 of Annex I, Section IV, 
 Article 297, the industrial, literary and artis- 
 tic property of German nationals within the 
 territories of Allied and Associated govern- 
 ments and ceded German territories is denied 
 the protection of the conventions mentioned 
 in Article 286 and is declared confiscable. 
 
 These treaties were made with the object 
 cf the permanent protection of these classes 
 of private property and can not be consid- 
 ered as abrogated by the supervention of 
 war, although their operation between sig- 
 natories was necessarily suspended. (5 
 Moore, 376-377.) At the times of negotia- 
 tion of the treaties it was fully realized that 
 private property of all kinds was under the 
 protection of the law during war and that 
 must be considered as assumed in the indefi- 
 nite duration agreed on as to the continu- 
 ance of such treaties. (See 3 Malloy, Trea- 
 ties, etc., Article 17*4 p. 375.) 
 
 The action of the Allied and Associated 
 governments in respect of Germany is plain- 
 ly, therefore, a violation of the treaty. 
 
 Article 287. The convention of The Hague 
 of July 17, 1905, relating to civil proce- 
 dure is revived, though not applicable to 
 France, Portugal and Rcumania. 
 
 What, it may be asked, is the status of the 
 dozen other highly important Hague Conven- 
 tions, including the whole code of the law of 
 land warfare? All except that for the pa- 
 cific settlement of international disputes ap- 
 pear to be discarded. (See Comment op- 
 posite Article 13.) 
 
 - 57 
 
Article 288. Special rights and privileges 
 granted to Germany by the treaty of De- 
 cember 2, 1899, in Samoa shall be con- 
 sidered terminated as of August 4, 1914. 
 
 This was the tripartite treaty between the 
 United States, Great Britain and Germany, 
 relieving the United States from an entang- 
 ling and vexatious joint control of the Sa- 
 mcan Islands and dividing them between the 
 three powers. Germany received Upolu, 
 Savaii and all other islands west of longitude 
 171 west of Greenwich. (See Introduction 
 to C. K. Davis, International Law.) 
 
 Reciprocal privileges of trade were grant- 
 ed. (Compare this Article as to date of ter- 
 mination of Germany's privileges with Article 
 156.) 
 
 Article 289. Each Allied and Associated 
 power shall notify to Germany the bilateral 
 treaties or conventions it wishes to revive 
 with Germany. 
 
 As to the effect of the outbreak of war on 
 treaties, there is a lack of agreement among 
 the authorities as to whether certain classes 
 of treaties are merely suspended or annulled 
 so as to require re-negotiation. 
 
 This much is certain: 
 
 (a) Dispositive treaties, setting up a per- 
 manent condition of things, such as those of 
 cession, boundary, independence, neutral- 
 ity and the like are unaffected. (Soc. for 
 Prop, of Gospel vs. New Haven, 8 Wheaton 
 464, 494; Scott, Cases, 428.) 
 
 (b) Law-making treaties to which third 
 powers are parties, such as the Hague, 1899 
 and 1907, Postal Union, Industrial Property, 
 and the like remain in force, though sus- 
 pended in operation as between belligerent 
 signatories. (Hershey, Essentials of Pub. 
 Int. Law, p. 361.) 
 
 (c) Conventions entered into with a view 
 to hostilities become operative. 
 
 (d) Political treaties, such as alliance, are 
 abrogated. 
 
 (e) Treaties of commerce, navigation, etc., 
 may be treated as annulled or suspended or 
 continuing at the will of the belligerents, 
 signified in the treaty of peace. (5 Moore, 
 376, 377.) 
 
 Treaties and treaty provisions in conflict 
 with the Treaty of Peace shall not be re- 
 vived. 
 
 The United States maintained in 1898 that 
 the last mentioned class of treaties was mere- 
 ly suspended, but yielded to Spain's insistence 
 that they be considered abrogated, in accord- 
 ance with the Spanish decree of April 23, 
 1898. 
 
 In the present treaty Germany has nothing 
 to say; it is for the Allied and Associated 
 governments alone to revive or abrogate any 
 or all of its bilateral treaties with Germany. 
 
 Thus the rule of law is left even more in 
 doubt than before. 
 
 All bilateral treaties not notified as re- 
 vived within six months shall remain abro- 
 gated. 
 
 The above provisions shall apply even 
 
 Uruguay, Ecuador and Bolivia, who are 
 
 — 58 — 
 
as between an Allied and Associated Pow- 
 er that was not at war with Germany. 
 
 Allied and Associated Powers, did not declare 
 war on Germany, but merely severed diplo- 
 matic relations. To deal with them as bel- 
 ligerents with respect to their treaty rela- 
 tions is most unusual. The situation might 
 have been met with more consistency by a 
 declaration that Germany agreed to a revi- 
 sion of the treaties in accordance with their 
 wishes and the requirements of the Treaty of 
 Peace. 
 
 Yet the conclusion of a treaty of peace 
 with Germany on the part of these three 
 rtates which have not been at war with 
 Germany is even more remarkable. 
 
 Article 290. Germany recognizes that all 
 treaties, agreements, etc., concluded with 
 Austria, Hungary, Bulgaria or Turkey since 
 August I, 1914, are abrogated. 
 
 Article 291. Germany undertakes to secure 
 to Allied and Associated governments and 
 nationals all privileges granted to Austria, 
 Hungary, Bulgaria or Turkey or their na- 
 tionals so long as such privileges are en- 
 joyed by the latter. 
 
 Article 292. Germany recognizes that all 
 treaties and agreements concluded with 
 Russia or with Roumania are abrogated. 
 
 See Comment opposite Article 128. 
 
 Article 293. Any concession, privilege or 
 favor which any Allied or Associated Pow- 
 er, Russia or Russian state has been forced 
 to grant Germany or a German national 
 since August I, 1914, by reason of mili- 
 tary occupation, or otherwise, is annulled. 
 No claims shall result from this annulment. 
 
 Article 294. Germany undertakes to grant 
 to Allied and Associated Powers and their 
 nationals the benefit ipso facto of rights 
 and advantages of any kind granted to neu- 
 trals in the war, so long as such rights 
 remain in force. 
 
 Through this provision will be revealed the 
 price, if any, paid by Germany for the neu- 
 trality of any European state. 
 
 The acquisition of such rights and privi- 
 leges, if any exist, can hardly be justified as 
 reparation. 
 
 Article 295. Those of the High Contracting 
 parties who have not yet signed and rati- 
 fied the Opium Convention of January 23, 
 1912, agree to bring the convention into 
 force within twelve months. Ratification 
 of the present treaty shall be considered 
 ratification of the Opium convention. 
 
 SECTION III.— DEBTS. 
 
 Article 296. This Section dealing with debts 
 due to and from the respective nationals 
 of Allied and Associated governments and 
 Germany has been referred to in Article 
 74, supra. 
 
 See Comment opposite Article 74. 
 
 — 59 — 
 
SECTION IV.— PROPERTY, RIGHTS AND 
 INTERESTS. 
 
 Article 297. This Section, declaring the pur- 
 pose of universal retention of all private 
 German property in the hands of Allied 
 and Associated governments and else- 
 where, while committing Germany to res- 
 titution and compensation in the matter of 
 private property of Allied and Associated 
 nationals, has been referred to in Article 
 74, supra. 
 
 SECTION V.— CONTRACTS, PRESCRIP- 
 TIONS, JUDGMENTS. 
 
 Article 299. Contracts between enemies 
 shall be considered dissolved, except in re- 
 spect of a debt arising out of an act done 
 or money paid thereunder. Other excep- 
 tions are indicated. 
 
 The United States, Brazil and Japan are 
 excepted from the operation of this Ar- 
 ticle. 
 
 See Comment opposite Article 74. 
 
 The United States Supreme Court has re- 
 peatedly held that war does not dissolve or 
 annul contracts entered into before the war; 
 that they are merely suspended and that a 
 right of suit revives with the peace. (Wil- 
 liams vs. Paine (1887), 169 U. S. 55) And 
 so far as resident alien enemies are con- 
 cerned contracts with them are wholly unaf- 
 fected (McVeigh vs. U. S., 11 Wall. 259.) 
 
 It therefore became impossible to commit 
 the United States to a policy of dissolution 
 of contracts as desired by the other Allied 
 and Associated Powers without running 
 counter to the law of the United States. 
 
 The participation of Great Britain in this 
 action is likewise in contravention of long- 
 established British law and policy. (See 2 
 Westlake, p. 48; 2 Oppenheim 138.) 
 
 Article 300. This deals with periods of pre- 
 scription or limitation of right of action 
 as to contracts excepted from the general 
 policy of dissolution. 
 
 Article 301. As between enemies no nego- 
 tiable instrument made before the war shall 
 be deemed to have become invalid by rea- 
 son of failure within the required time to 
 present it for acceptance or payment or to 
 give notice. 
 
 Article 302. Judgments given by courts of 
 Allied and Associated Powers shall be rec- 
 ognized by Germany as final. Judgments 
 of German courts shall not be thu3 recog- 
 nized. 
 
 ANNEX.—-GENERAL PROVISIONS. 
 
 The following classes of contracts are 
 excepted from dissolution without preju- 
 dice to the right of confiscation, referred 
 to in Article 29 7: 
 
 (a) Those having as their object the 
 transfer of real estate or personal property 
 where the object had passed before the 
 supervention of way; 
 
 (b) Leases and agreements for leases 
 of land and houses; 
 
 It appears, therefore (Subsection (e) An- 
 nex I), that at least some forms of private 
 enemy debts are to be confiscated, and that 
 the United States is a party to the policy 
 along with the other Allied and Associated 
 Powers. Yet it is the settled law of the 
 United States that they may not be. 
 
 By every nation, whatever its form of gov- 
 ernment, the confiscation of debts has long 
 been considered disreputable. Wilson, J., in 
 Ware vs. Hylton (1796), 3 Dall. 199, 281. 
 
 The Conqueror is denied the right to con- 
 fiscate private property, on the ground that 
 it would violate "the modern usage of na- 
 tions which has become law." Marshall, C. 
 J., U. S. vs. Percheman, 7 Peters, 51. 
 
 (See also Planters' Bank vs. Union Bank, 
 16 Wall. 483; Williams vs. Bruffy, 96 U. S. 
 176, 186-188.) 
 
 — 60 — 
 
(c) Contracts of mortgage, pledge or 
 lien; 
 
 (d) Concessions concerning mines, 
 quarries or deposits. 
 
 (e) Contracts between individuals or 
 companies and states, provinces or other 
 similar juridical persons, and concessions 
 granted by states, provinces or other jurid- 
 ical persons. 
 
 These are excepted from dissolution 
 without prejudice to the right of seizure 
 and retention provided for in Article 297. 
 
 Rules made by recognized Exchanges for 
 closure of enemy contracts are confirmed, 
 including the closure of cotton "futures" 
 on July 31, 1914, by the Liverpool Cot- 
 ton Association. 
 
 No claim on the ground of sale of secur- 
 ity shall be admitted if the creditor acts 
 in good faith. 
 
 If a person before or during the war be- 
 came liable on a negotiable instrument in 
 accordance with an undertaking of a per- 
 son who subsequently became an enemy, 
 the latter shall remain liable. 
 
 SECTION VI.— MIXED ARBITRAL 
 TRIBUNAL. 
 
 Articles 304-305. These Articles, together 
 with an annex, provide for the setting up 
 of a Mixed Arbitral Tribunal between each 
 of the Allied and Associated Powers on 
 the one hand and Germany on the other, 
 to decide all questions within their com- 
 petence under Sections III, IV, V and VII, 
 relating to Debts, Property, Rights and In- 
 terests, Contracts, Prescriptions and Judg- 
 ments and Industrial Property. 
 
 The Mixed Arbitral Tribunals are pri- 
 marily an appellate body to which disputes 
 arising in the "Clearing Offices" may be 
 taken. 
 
 Appeals may also be taken to these tri- 
 bunals from judgments of German courts 
 inconsistent with the terms of the treaty; 
 not, however, from Courts of Allied and 
 Associated governments. 
 
 They may adopt such rules of procedure 
 as are in accordance with justice and 
 equity. 
 
 These bodies do not deserve the appella- 
 tion of "tribunals" in view of the limitations 
 upon their powers to decide controversies in 
 accordance with law. This inability is inher- 
 ent in the settlement which is the negation of 
 law. It will be observed each is empowered 
 to adopt its own rules of procedure instead 
 of applying the system, together with the 
 law, ready at hand in The Hague Convention 
 of 1907, establishing a Court of Arbitral 
 Justice, the achievement of the American 
 delegation. 
 
 The object of its establishment was to re- 
 place international settlements based on com- 
 promise and expediency by settlements found- 
 ed upon judicial determinations, to the end 
 that the universal reign of law might be 
 promoted. 
 
 SECTION VII.— INDUSTRIAL PROPERTY. 
 
 Articles 306-311. Conventions for the pro- 
 tection of industrial, literary and artistic 
 property, mentioned in Article 286, shall 
 be re-established between the High Con- 
 tracting parties. 
 
 The subject of the protection of industrial, 
 literary and artistic property has been re- 
 ferred to in the discussion of Article 298 and 
 the Annex thereto. 
 
 The policy of Allied and Associated coun- 
 
 61 — 
 
Nevertheless, all acts done, or to be 
 done, in Allied and Associated countries 
 in respect of such property of German na- 
 tionals shall have full force and effect. 
 
 No claims on account of such acts shall 
 be allowed. 
 
 Any sums due for the use of such Ger- 
 man property shall be treated as other 
 German property. 
 
 The provisions of the Article shall not 
 apply to rights in industrial, literary or 
 artistic property which have been dealt 
 with through liquidation of businesses or 
 companies. 
 
 tries with respect to such German property, 
 including patents, during the war, was, with 
 the exception of that in liquidation, to per- 
 mit its use under an obligation to pay at the 
 peace a fair compensation. The patentees 
 and other German owners will not, however, 
 receive such sums in view of the requirement 
 of payment to the Reparation Commission 
 
 SECTION VIII.— SOCIAL AND STATE IN- 
 SURANCE IN CEDED TERRITORIES. 
 
 Article 312. Germany undertakes to trans- 
 fer to any Power to which German terri- 
 tory is ceded and to any mandatory such 
 portion of reserves accumulated by the 
 government or by private organizations as 
 is attributable to the carrying on of 
 social or state insurance. 
 
 These sums must be applied to the per- 
 formance of the obligations arising under 
 such insurances. 
 
 PART XL— AERIAL NAVIGATION. 
 
 Articles 313-320. Aircraft of Allied and 
 Associated Powers shall have full liberty of 
 passage and landing over and in the terri- 
 tory and territorial waters of Germany, and 
 shall enjoy the same privileges as German 
 aircraft. 
 
 All public aerodromes in Germany shall 
 be open to aircraft of Allied and Associat- 
 ed Powers. 
 
 Any regulations applied by Germany to 
 aircraft of Allied and Associated Powers 
 shall apply equally to German aircraft. 
 
 As regards commercial air traffic, air- 
 craft of Allied and Associated Powers 
 shall enjoy most-favored-nation treatment. 
 
 Germany shall require all German air- 
 craft flying over her territory to comply 
 with all the rules as to lights, signals, etc., 
 laid down in the Convention relative to 
 aerial navigation concluded between Al- 
 lied and Associated governments. 
 
 All of these obligations remain in force 
 until January 1, 1923, unless before that 
 time Germany is admitted to the League 
 of Nations or shall have been authorized 
 to adhere to the Convention relative to 
 aerial navigation. 
 
 The convention relative to aerial naviga- 
 tion concluded by the Allied and Associated 
 Powers recognizes at the outset that every 
 state possesses complete and exclusive juris- 
 diction in the air space above its territory 
 and territorial waters, and it deals with the 
 subject by analogy to customary control ex- 
 ercised over territorial waters, recognizing the 
 right of innocent passage, making require- 
 ments for registry, nationality markings, logs, 
 lights, signals, etc. 
 
 By the terms of Articles 313-320, German 
 sovereignty over her aerial space is set aside, 
 at leact, until January 1, 1923. 
 
 — 62 — 
 
PART XII— PORTS, WATERWAYS AND 
 RAILWAYS. 
 
 SECTION I.— GENERAL PROVISIONS. 
 
 Articles 321-326. Germany undertakes to 
 grant freedom of transit through her ter- 
 ritories by rail, waterway or canal, to per- 
 sons, goods, vessels, carriages, wagons and 
 mails coming from or going to any Allied 
 or Associated Power. They shall be sub- 
 jected to no transit duty, delays or restric- 
 tions, and shall be entitled to national 
 treatment. 
 
 Goods in transit shall be exempt from 
 customs and similar duties. 
 
 No control shall be maintained over 
 transmigration traffic beyond that neces- 
 sary to insure that passengers are bona 
 fide in transit. 
 
 No discrimination or preference in du- 
 ties, charges or prohibitions relating to im- 
 portations or exportations from her terri- 
 tories may be made. Nor may any surtax 
 against the ports or vessels of any Allied 
 or Associated Power be levied. 
 
 The transport of perishable goods shall 
 be promptly facilitated. 
 
 Seaports of Allied and Associated Pow- 
 ers are entitled to all favors and reduced 
 tariffs granted on German railways or nav- 
 igable waterways for the benefit of Ger- 
 man ports or any port of another Power. 
 
 The provisions of these Articles are sub- 
 ject to revision by the Council of the 
 League of Nations after five years. Fail- 
 ing such revision no Allied or Associated 
 Power can claim the benefits of these ar- 
 ticles without reciprocity after five years. 
 
 See Comment opposite Articles 264-270. 
 
 SECTION II.— NAVIGATION. 
 
 CHAPTER I.— FREEDOM OF NAVIGATION 
 
 Article 327. Nationals of Allied and Asso- 
 ciated Powers and their vessels shall enjoy 
 in all German ports and inland water 
 routes the same treatment as German na- 
 tionals, vessels and property, including 
 transport of goods and passengers to and 
 from ports and places in Germany. Equal- 
 ity of treatment shall extend to all facili- 
 ties and charges. 
 
 Should Germany extend preferential 
 treatment to one Allied or Associated 
 Power it shall automatically extend to all. 
 
 These privileges shall be subject to re- 
 vision by the Council of the League of 
 Nations after five years. Failing such revi- 
 sion, their enjoyment shall depend upon 
 reciprocity. 
 
 The exclusive right of a state to control 
 its coasting trade, including that in inland 
 waters, is an essential incident to its terri- 
 torial supremacy. The law of nations, there- 
 fore, recognizes the right of a state to ex- 
 clude foreign vessels from such navigation 
 and trade. (1 Oppenheim, pp. 257-258.) 
 This right was formerly held to apply even 
 as between a state and its colonies. (See 
 Wheaton, 5th ed., pp. 765-766.) 
 
 The provisions of Article 327 constitute a 
 further invasion of German sovereignty dur- 
 ing their continuance. 
 
 As to the economic privileges they are in 
 the nature of indemnity. 
 
 CHAPTER II.— FREE ZONES IN PORTS. 
 
 Articles 328-330. These Articles provide for 
 
 Ibid. 
 
 — 63 — 
 
the maintenance of free zones in German 
 ports on August 1, 1914, and the granting 
 of economic privileges in the same, as well 
 as in others established by the treaty. 
 
 The duration and conditions are the 
 same as mentioned supra, Article 32 7. 
 
 See Article 65. 
 
 CHAPTER III.— CLAUSES RELATING TO 
 THE ELBE, THE ODER, THE N IE- 
 MAN AND THE DANUBE. 
 
 ( 1 ) GENERAL CLAUSES. 
 
 Articles 331-338. The rivers mentioned in 
 the title are declared international within 
 certain boundaries, together with the lat- 
 eral canals and channels. 
 
 The nationals, property and flags of all 
 Powers shall be treated on a footing of 
 perfect equality. Nevertheless German 
 vessels shall not, for five years, carry pas- 
 sengers or goods between ports of Allied 
 or Associated Powers without the author- 
 ity of such Power. 
 
 Charges shall be based only on cost of 
 maintenance and improvement of navigable 
 conditions. 
 
 The General Convention of the Allied 
 and Associated Powers relating to the 
 waterways in question will become the con- 
 trolling act when approved by the League 
 of Nations. 
 
 Compare with internationalization of Rhine 
 and Scheldt by Congress of Vienna, 1815. 
 (Martens, N. R. II, pp. 379, 427; Wheaton's 
 History, 282-284, 552.) 
 
 Previous to the Congress of Vienna, the 
 use of great international European rivers as 
 well as international straits was subject to 
 tolls levied not only for purposes of main- 
 tenance of navigation, but for revenue as 
 well. (1 Moore, Sec. 134.) 
 
 The principle may now be said to be set- 
 tled, however, that navigation of rivers that 
 traverse more countries than one is open to 
 all states upon equal terms, and that tolls 
 may not be levied for profit. (1 Westlake, 
 Ch. VIII.) 
 
 Article 339. Germany shall cede to Allied 
 and Associated Powers within three months 
 after ratification a proportion of tugs and 
 vessels registered in ports of river sys- 
 tems referred to in Article 331, in addi- 
 tion to those mentioned (Part VIII, Annex 
 III) and including facilities, to be deter- 
 mined by an arbitrator or arbitrators nom- 
 inated by the United States, due regard 
 being paid to the needs of the parties con- 
 cerned. 
 
 Indemnification of private owners shall 
 be a matter for Germany to deal with. 
 
 See Part VIII, Annex III, following Article 
 242, and Comment, supra. 
 
 It is difficult to explain upon what grounds 
 this Article is founded other than upon in- 
 demnity and the purpose of Allied and Asso- 
 ciated Powers to consolidate their economic 
 advantages in Europe. 
 
 (2) Special clauses relating to the Elbe, 
 the Oder and the Nieman. 
 
 Articles 340-341. These Articles place the 
 Elbe and Oder under the administration 
 of international commissions and fix rep- 
 resentation upon the commissions. 
 
 Articles 342-345. Upon request by a ripa- 
 rian state the League of Nations will insti- 
 tute an international Commission for the 
 Nieman composed of the representative 
 from each riparian state and three others. 
 Such Commissions will prepare projects 
 for revision of systems in force in accord- 
 ance with the General Convention referred 
 to in Article 338. 
 
 — 64 — 
 
ube 
 
 (3) Special Clauses relating to the Dan- 
 
 Articles 346-353. The European Commis- 
 sion of the Danube reassumes the powers 
 it possessed before the war. Neverthe- 
 less, as a provisional measure, Germany 
 shall not be represented thereon. Where 
 the competence of the old Commission 
 ceases an international Commission re- 
 ferred to in Article 331, shall direct the 
 administration, composed of tv/o Germans, 
 one representative of each other riparian 
 state, and one representative of each non- 
 riparian state represented on the old Com- 
 mission. 
 
 The mandate given Austria-Hungary by 
 the Treaty of Berlin of 1878 to carry out 
 works at the Iron Gates is abrogated. 
 
 Germany shall make restitution, repara- 
 tion and indemnities for damages inflicted 
 on the European Commission of the Dan- 
 ube during the war. 
 
 The European Danube Commission was in- 
 stituted by the Treaty of Paris of 1856, and 
 reconstituted by the Treaty of Berlin, 1878, 
 and again in London in 1883. It was made 
 independent of the territorial governments, 
 its members, offices and archives enjoying in- 
 violability. Its competence extended from 
 Ibraila downwards to the mouth of the Dan- 
 ube. (I Twiss, Sees. 150-152.) 
 
 During the war the Commission ceased to 
 function owing to Germany's violation of the 
 treaty. It was to all intents and purposes 
 abolished with Germany substituted in its 
 stead. 
 
 CHAPTER IV.— CLAUSES RELATING TO 
 THE RHINE AND THE MOSELLE. 
 
 Articles 354-356. The Convention of Mann- 
 heim of October 17, 1868, creating a Cen- 
 tral Commission of the Rhine, shall be- 
 come operative, subject to modification 
 according with the General Convention 
 previously referred to. 
 
 The Commission shall consist of four 
 representatives of German riparian states, 
 four of France, one of whom shall be 
 president, and two each of Holland, Switz- 
 erland, Great Britain, Italy and Belgium. 
 Certain articles of the Mannheim Conven- 
 tion are abrogated in the interest of free 
 navigation. 
 
 The Rhine became free as an international 
 river by a declaration of the Congress of 
 Vienna, but the enjoyment of this status was 
 long in question owing to a dispute over 
 phraseology concerning the rights of regu- 
 lation confided to co-riparian powers. 
 
 In the settlements attempted in the present 
 treaty it is questionable whether the co-ripa- 
 rian states are recognized in the administra- 
 tion to the extent to which principle and 
 custom entitle them. 
 
 Article 35 7. Within three months from date 
 of notice Germany shall cede to France 
 tugs and vessels registered in Rhine ports, 
 from among those remaining after satis- 
 fying previous articles, including installa- 
 tions, berthing and anchorage accommo- 
 dations, or shares in German Rhine naviga- 
 tion companies, the amounts to be deter- 
 mined by an arbitrator or arbitrators ap- 
 pointed by the United States. 
 
 The same shall apply to cessions in the 
 port of Rotterdam. 
 
 Credit shall be allowed on the repara- 
 tion account. 
 
 See Part VIII, Annex III, following Article 
 242. 
 
 See Comment opposite Article 339. 
 
 Article 358. Subject to provisions in pre- 
 ceding Articles, France shall have the ex- 
 clusive right to power derived from Ger- 
 man works on the river within the two 
 extremes of the French frontier. A pay- 
 ment of one-half the value of power taken 
 from Germany shall be made by France. 
 
 Germany will construct no lateral canal 
 on the right bank of the Rhine, but recog- 
 
 These provisions are plainly in contraven- 
 tion of the understood rights of a co-riparian 
 state. 
 
 — 65 — 
 
nize the right of France to fix the limits 
 of necessary sites and occupy lands inci- 
 dent to the building and operations of wiers 
 which France, subject to the Central Com- 
 mission, may establish. 
 
 Germany shall make it her business to 
 indemnify any proprietors burdened with 
 such servitudes. 
 
 \rticle 361. Germany shall construct in her 
 territory the necessary portion of a deep- 
 draught Rhine-Meuse Canal should Belgium 
 desire same within twenty-five years. 
 
 \rticle 362. Germany will not oppose the 
 extension of the jurisdiction of the Cen- 
 tral Rhine Commission to the Moselle, be- 
 low the Franco-Luxemburg frontier and to 
 the Rhine above Basle to Lake Constance 
 and to lateral canals. 
 
 :hapter v.— clauses giving the 
 
 czecho-slovak state the use 
 
 of northern ports. 
 
 \rticles 363-364. Germany shall lease for 
 99 years to the Czecho-Slovak state areas 
 in Hamburg and Stettin, to be placed un- 
 der the general regime of free zones. 
 
 Delimitation of such areas, etc., shall 
 be under the control of a Commission con- 
 sisting of one German, one Czecho-Slovak 
 and one British representative. 
 
 These clauses are reminiscent of the oper- 
 ations of the European powers in China be- 
 ginning in 1398. (See 5 Moore, 471 et seq., 
 534.) 
 
 section iii.— railways. 
 
 :hapter i.— clauses relating to 
 international transport. 
 
 Articles 365-369. Germany submits to a 
 great variety of regulations intended to 
 extend the economic privileges of Allied 
 and Associated governments on German 
 railways, the privileges to be revised with- 
 in five years by a general convention 
 which will bind Germany whether she ad- 
 heres or not. 
 
 Germany shall co-operate in establish- 
 ing through ticket service required by any 
 Allied or Associated government to insure 
 communication with each other, and shall 
 accept trains and forward them with a 
 speed equal to her best trains. 
 
 No special regulations shall be applied 
 to such service by Germany which will 
 impede or delay it. 
 
 This is a further extension of economic 
 advantage, no reciprocity being granted. 
 
 CHAPTER II.— ROLLING STOCK. 
 
 Article 370. Germany will adapt her rail- 
 way systems to the physical requirements 
 of Allied and Associated Powers, the roll- 
 ing stock of the latter to enjoy equal 
 
 — 66 — 
 
treatment with the German, as regard* 
 movement, upkeep and repairs. 
 
 CHAPTER III.— CESSION OF RAILWAY 
 LINES. 
 
 Article 371. Railways in ceded German pos- 
 sessions shall be handed over in good con- 
 dition and with complete rolling stock; as 
 to lines having no rolling stock commis- 
 sions shall fix the quantity to be supplied. 
 
 CHAPTER IV.— PROVISIONS RELATING 
 TO CERTAIN RAILWAY LINES. 
 
 Articles 372-374. Provision is here made 
 for the regulation of railway lines at fron- 
 tiers; for the construction of new lines and 
 the conditional denunciation of the St. 
 Gothard railway convention. 
 
 SECTION IV.— DISPUTES AND REVISION 
 OF PERMANENT CLAUSES. 
 
 Articles 376-377. To the League of Nations 
 is confided settlement of disputes under 
 these Articles, together with a right to re- 
 vise the same at any time. 
 
 SECTION V.— SPECIAL PROVISION. 
 
 Article 379. Germany undertakes to adhere 
 to any conventions relating to transit, 
 waterways, ports or railways concluded by 
 the Allied and Associated Powers, with the 
 approval of the League of Nations, within 
 five years. 
 
 SECTION VI.— CLAUSES RELATING TO 
 THE KIEL CANAL. 
 
 Articles 380-386. The Kiel Canal is by 
 these Articles placed in the category of an 
 international one, as to tolls, etc., though 
 Germany's sovereignty over both banks is 
 recognized to the extent of permitting its 
 closure against states at war with Ger- 
 many and limiting the rights of loading 
 and unloading of goods and passengers to 
 certain ports specified by Germany. 
 
 PART XIII.— LABOR. 
 
 PART XIV.— GUARANTEES. 
 
 SECTION 1 .—WESTERN EUROPE. 
 
 Article 428. As a guarantee for the execu- 
 tion of the present treaty, the German 
 territory situated to the west of the Rhine, 
 together with the bridgeheads, will be oc- 
 
 The Articles respecting guarantees can 
 best be dealt with in their entirety. 
 
 Many means have been resorted to in the 
 past for compelling performance of the con- 
 
 — 67 
 
cupied by Allied and Associated troops 
 for a period of fifteen years from the com- 
 ing into force of the present treaty. 
 
 Article 429. If the conditions of the pres- 
 ent treaty are faithfully carried out by 
 Germany the occupation referred to in Ar- 
 ticle 428 will be successively restricted as 
 follows: 
 
 ( 1 ) At the end of five years there will 
 be evacuated the bridgehead of Cologne 
 and territories north of a line running 
 along the Ruhr, etc. 
 
 (2) At the end of ten years there will 
 be evacuated the bridgehead of Coblenz, 
 and territory north of a line to be drawn 
 from the intersection between the frontiers 
 of Belgium, Germany and Holland, run- 
 ning about 4 kilometers south of Aix-la- 
 Chapelle, etc. 
 
 (3) At the end of fifteen years there 
 will be evacuated the bridgeheads of Mainz 
 and Kehl and the remainder of German 
 territory. 
 
 If at that date the guarantees against 
 unprovoked aggression by Germany are not 
 considered sufficient by the Allied and As- 
 sociated governments, the evacuation of oc- 
 cupying troops may be delayed to the ex- 
 tent regarded necessary to obtain the re- 
 quired guarantees. 
 
 Article 430. If during occupation or after 
 the expiration of fifteen years the Repara- 
 tion Commission finds that Germany re- 
 fuses to observe the whole or part of her 
 obligations under the treaty, the whole or 
 part of the areas specified will be re-occu- 
 pied immediately by the Allied and Asso- 
 ciated Powers. 
 
 Article 431. If before the expiration of fif- 
 teen years Germany complies with all the 
 undertakings resulting from the treaty, the 
 occupying forces will be withdrawn imme- 
 diately. 
 
 Article 432. All matters pertaining to oc- 
 cupation not provided for in the treaty 
 shall be regulated by subsequent agree- 
 ments which Germany undertakes to ob- 
 
 ditions of peace imposed. They have in- 
 cluded placing the engagements under the 
 aegis or religion, with the kissing of the 
 cross and the administration of the oath 
 (Bonfils, Paris, 1912, p. 526); the giving and 
 receiving of hostages, as when Henry Vill 
 gave to Francis I, in 1527, two archbishops, 
 eleven bishops, eight nobles as well as thir- 
 teen towns; the giving of a pledge as when 
 the diamonds of the crown of Poland were 
 given to Prussia; guarantees by third states, 
 as that in the treaty of neutralization of Bel- 
 gium of April 19, 1839, relating to the sep- 
 aration of the latter from Holland. (Termi- 
 nation of War, etc., Phillipson, pp. 207, et 
 seq.) Military occupation of a part of a 
 state's territory has been the most usual 
 mode during the last century where guaran- 
 tees were required. 
 
 Thus by the Treaty of Paris, November 20, 
 1815, after the final overthrow of Napoleon, 
 Great Britain, Austria, Prussia and Russia 
 stipulated for the occupation of positions 
 along the French frontier with a force of 
 150,000 men, holding twenty fortresses. The 
 maximum period of occupation was limited 
 to five years, and might be terminated earlier. 
 An indemnity of 700,000,000 francs had 
 been imposed, and in addition France was 
 required to pay 50,000,000 francs annually 
 toward maintenance of the occupying forces. 
 Civil and judicial administration, collection 
 of taxes, customs and police, were to con- 
 tinue in the occupied area as before. Evac- 
 uation did not hinge on the payment of the 
 indemnity, bui: primarily upon the restora- 
 tion of internal tranquility and the suppres- 
 sion of revolutionary agitation which the 
 Grand Allies feared might spread to their 
 own countries. (A. Sore!, Hiatoire, Paris, 
 1875, Vol. II, pp. 355-356.) In fact the in- 
 demnity had not been paid at the time of 
 evacuation. 
 
 An instance bearing closer analogy to the 
 present is found in the Treaty of Frankfort 
 of 1871, by which an indemnity of 5,000,- 
 000,000 francs was exacted, with payment 
 demanded as fellows: 500,000,000 in 30 days; 
 1,000,000,000 within one year; 500,000,000 
 on May 1, 1872; 3,000,000,000 on March 2, 
 1874, with interest at 5 per cent. Meantime 
 German troops were to remain in occupa- 
 tion of French territory at the expense of 
 France, with provision for evacuation only as 
 the installments were paid. The occupying 
 forces were reduced successively from 500,- 
 000 men and 150,000 horses to 150,000 men 
 and 50,000 horses, to 120,000 men and 40,- 
 000 horses, to 80,000 men and 30,000 horses. 
 The period of occupation was shortened by 
 the rapidity with which France was enabled 
 to discharge the indemnity. 
 
 There are other instances of occupation 
 as a guarantee as in the Chino-Japanese war 
 of 1895, where China, by the terms of the 
 Treaty of Shimonoseki, was required to pay 
 200,000,000 taels, and the Greco-Turkish 
 war, where by the Treaty of Constantinople 
 
 — 68 — 
 
SECTION II.— EASTERN EUROPE. 
 
 Article 433. As a guarantee of the provi- 
 sions abrogating the treaty of Brest-Lit- 
 ovsk and all other agreements with the 
 Maximalist government of Russia, and to 
 insure peace in the Baltic Provinces and 
 Lithuania, all German troops at present in 
 such territories shall return within Ger- 
 many's frontiers as soon as the Principal 
 Allied and Associated governments think 
 the moment suitable. These troops shall 
 abstain from requisitions and shall in no 
 way interfere with measures for national 
 defense adopted by the provisional govern- 
 ments of Esthonia, Latvia and Lithuania. 
 No other German troops shall be sent to 
 these territories. 
 
 PART XV.— MISCELLANEOUS PROVI- 
 SIONS. 
 
 of 1897 Greece was required to pay $20,- 
 000,000. 
 
 The present treaty requires Germany to 
 pay as "reparation" certain definite sums 
 and others to be computed by a Reparation 
 Commission upon inquiry into her capacity 
 to pay. As has been pointed out, while 
 some of these demands are designated as 
 "reparation" the term "indemnity" is more 
 fitting. 
 
 Reparation connotes amends for legal 
 wrongs; indemnity is founded in the mere 
 exercise of power in excess of reparation 
 with the object of self-enrichment. 
 
 It will be observed that reservations occur 
 in the Articles of guarantee whereby Allied 
 and Associated troops may re-occupy Ger- 
 man territory in any case of default within 
 the fifteen years or afterwards, running into 
 an indefinite future with the obligations im- 
 posed upon Germany. 
 
 Practically this reservation is of little value 
 without the League of Nations or some such 
 promise of permanence to the concert of 
 Allied and Associated Powers. History at- 
 tests that such coalitions are of brief dura- 
 tion, that the interests even of allies conflict 
 too frequently and too vitally in the vicissi- 
 tudes of even a few years to permit of ex- 
 pectation of permanency. Wherefore, and 
 with the further object of recementing ami- 
 cable relations as quickly as possible, prac- 
 tical statesmanship has been on the side of 
 terms of peace that might be met as quickly 
 as possible, with safety. 
 
 In some respects the present treaty is more 
 severe than the Treaty of Frankfort of 1871, 
 as, for example, in relation to occupation. 
 It permits a greater degree of interference 
 with the civil administration and authorizes 
 the levying of requisitions upon the inhabi- 
 tants, forbidden to Germany by Article VIII 
 of the treaty of 1871. 
 
 Article 434. Germany undertakes to recog- 
 
 — 69 
 
nize the full force of treaties of peace and 
 additional conventions of the Allied and 
 Associated Powers with Germany's allies, 
 and to recognize all disposition of terri- 
 tories and the establishment of new states. 
 
 Article 435, with Annexes I and II. These 
 Clauses, incorporating verbatim memoires 
 of France and Switzerland, relate to a 
 change in the economic and political sit- 
 uation of a portion of Savoy and the Gex 
 district, established by the Congress of 
 Vienna in 1815. Switzerland is willing, 
 apparently, to concede economic readjust- 
 ments, provided the guarantees of neutral- 
 ity given in the treaties of 1815, and par- 
 ticularly by the Declaration of November 
 20 of that year, are recognized by all of 
 the Allied and Associated Powers. 
 
 A part of Savoy was neutralized by the 
 Congress of Vienna in 1815, in connection 
 with the neutralization of Switzerland, and 
 certain free zones were established in which 
 there should be exemption from transit dues. 
 In 1860 France acquired Savoy from Sardinia, 
 subject to these servitudes. 
 
 It appears that Switzerland is willing to 
 trade, submitting to economic readjustments, 
 if the United States can be induced to join 
 in the guarantee of her neutrality. This 
 guarantee does not extend to the independ- 
 ence of Switzerland, but it does include the 
 integrity and inviolability of Swiss territory. 
 It is a collective guarantee on the part of 
 Great Britain, Austria, France, Portugal, 
 Prussia, Spain and Russia. 
 
 The Allied and Associated Powers refer 
 to this guarantee, in Article 435, as one 
 "constituting international obligations for the 
 maintenance of peace." This would appear 
 to relate forward to Article 21 of the League 
 of Nations covenant as a "regional under- 
 standing" the validity of which is not affected 
 by the covenant. 
 
 Article 436. The High Contracting parties 
 declare and place on record that they have 
 taken note of the Treaty of July 17, 1918, 
 between France and the Prince of Monaco, 
 denning their relations. 
 
 Article 438. The Allied and Associated 
 Powers except from the general policy of 
 retention and liquidation of all German 
 property, public and private, outside of 
 Germany, the property of Christian reli- 
 gious missions of German societies and 
 persons. Such property will be handed 
 over to boards of trustees appointed by 
 the governments concerned. 
 
 This relaxation of the policy of universal 
 confiscation of German property appears to 
 be an afterthought, a concession to argu- 
 ments of German plenipotentiaries which 
 could not in conscience be withheld. 
 
 Germany waives all claims relating to 
 this subject. 
 
 Article 439. Germany undertakes to put 
 forward no pecuniary claim against any 
 Allied or Associated Power, including 
 those not at war with her, on account of 
 events which occurred at any time before 
 the coming into force of the present 
 treaty. 
 
 Thus all pecuniary claims which Germany 
 might prefer against Allied or Associated 
 Powers are swept into oblivion. 
 
 Article 440. Germany accepts and recog- 
 nizes as binding all decrees and orders of 
 Allied and Associated Powers concerning 
 German ships and goods and the payment 
 of costs made by their prize courts and 
 undertakes to put forward no claims. 
 
 In concluding peace, the signatory powers 
 pledge themselves either impliedly or express- 
 ly to regard as settled not only all of their 
 differences existing before the war and lead- 
 ing to it, but also all such mutual claims as 
 may have arisen during the war in connec- 
 
 — 70 
 
The Allied and Associated Powers, how- 
 ever, reserve the right to examine all de- 
 cisions and orders of German prize courts, 
 whether affecting the rights of nationals of 
 Allied and Associated Powers or neutral 
 states. Germany undertakes to give effect 
 to any recommendations made after exam- 
 ination of such cases. 
 
 tion with the conduct of hostilities. Al- 
 though treaties of peace in the past have 
 dealt with^ captures where no judgment of 
 condemnation has been pronounced, none 
 has ever contemplated a re-opening of cases 
 where a judicial determination has been ar- 
 rived at. It was accepted that such deter- 
 mination once pronounced forever settled 
 the property rights in question. 
 
 The Article in question is therefore most 
 unusual, but may be justified to the extent 
 that it contemplates a reconsideration of the 
 many cases involved in the unlawful destruc- 
 tions of merchantmen by German submarines, 
 and particularly any dicta attempting to up- 
 hold them as valid. 
 
 The Peace Conference might very wisely 
 have taken up the whole subject of prize law, 
 in this connection, calling into life The 
 Hague Convention of 1907 establishing an 
 International Court of Prize, and making pro- 
 vision for the clarification and approximation 
 of the law to juster standards; and the United 
 States might then have realized its age long 
 policy looking to the establishment of gen- 
 eral immunity of private property as a prin- 
 ciple of the law of maritime warfare. (7 
 Mocre, 461).