, . . "*" 66th Congress! 1st Session J SENATE / Document . \ No. 156 INTERNATIONAL LAW AND THE TREATY OF PEACE BEING A COMPARATIVE ANALYSIS OF THE COVE- NANT AND TREATY OF VERSAILLES OF JUNE 28, 1919, WITH THE ARTICLES OF THE SETTLEMENT AND APPLICABLE PRINCIPLES OF THE LAW OF NATIONS-SET OUT IN PARALLEL COLUMNS By STERLING E. EDMUNDS, LL. D. Lecturer on International Law, St. Louis University Law School, and former Assistant in the Department of State PRESENTED BY MR. REED November 19, 1919.— Ordered to be printed WASHINGTON GOVERNMENT PRINTING OFFICE 191S ft.' of •• DEC 24 1813 INTERNATIONAL LAW AND 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 may he 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 wickedness of its settlements, left us some progressive principles of the utmost value, notably that of the freedom of international rivers. Further, its labors in behalf of the abolition of the slave trade were surely worthy of the world's approval. In the treaty of Versailles, however, it is difficult to find a single progressive principle established, while rule after rule of the law of nations, heretofore recognized as instituted for the protection of all states, is ignored or violated where it conflicts with the purposes of the respective allied and associated powers. The validity of title founded in conquest is not abolished, as it might have been, and as the world was led to believe it would be, embodied, as it was, in the preliminaries to negotiation. The recognition of the secret treaties, confirming the rights of conquest, stood in the way of this benign possibility. The plebiscite, designed to prevent the handing of peoples around like flocks of the field, was not established as a principle of the law of nations, as the world was also led to expect it would be. There is only a very restricted application of it in the terms, and with respect to some territories it is denied altogether. Neither is the right of option, designed for the protection of individuals or 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 institution rather than a progressive one in that it ignores the whole modern trend toward the establishment of international relations upon the founda- tions of law rather than upon compromise and expediency. The covenant of the league of nations looks to the establishment of superintendence over international 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 what- ever for the progressive improvement and extension 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 tor the limita- tion of their actions within the settled principles of law. It is possible for the league of nations to take up and carry on the achievements 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 protection of private property on land and in territorial waters, and even that protecting 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 is thrown into greater confusion than ever by reason of inconsistent and contradictory action. In the stipulation for the trial and punishment of those German nationals found guilty of violations of the laws of civilized warfare a wholesome step forward has been taken, calculated to sustain these laws in the times to come and to promote their observance. It was not necessary to the placing of the severest burdens upon Germany to have declared that Germany must accept the responsibility for causing all loss and damage to which the allied and associated Governments and their nations have been subjected; for, as pointed out in the discussion of the article, the laws of war plainly distinguish between lawful and unlawful loss and damage. The amount of unlawful loss and damage for which Germany is responsible, in view of her utterly barbarous methods of carrying on war, probably far exceeds any sum which may ultimately be received. To have adhered to these laws in assessing reparation — as it is proposed to invoke the law in the infliction of punishments — would have done incalculable service 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 international 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. 3 INTERNATIONAL LAW AND THE TREATY OF PEACE. In the preface to Prof. William E. Hall's scholarly treatise on international law, which has run through many editions, is the following remarkable prophecy, penned in 1889: Looking back over the last couple of centuries we see international law at the close of each fifty years in a more solid position than that which it occupied at the beginning of the period. Progressively 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 toward 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 weld may be on the sea to win or lose; national existences will be at stake; men will be tempted to do anything 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 war is unscru- pulously waged, it also will be followed by a reaction toward increased stringency of law. In a community, as in an individual, passionate excess is followed by a reaction of lassitude and to some extent of conscience. 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 impul- sively, can at least work more freely than in home affairs. Continuing temptation ceases with the war. At any rate it is a matter of experience 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 straighter obligations than those which it before acknowledged. There is no reason to suppose that things will be otherwise in the future. I therefore 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 termi- nation, 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 international jurists of the United States, of France, of Italy, and of Great Britain will reassert itself toward the readjustment, restate- ment, 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, iu 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. INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. PART I. THE COVENANT OF THE LEAGUE OF NATIONS. The high contracting parties, In order to promote international cooperation and to achieve international cooperation and achieve in- ternational peace and security: 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 understandings of international law as the actual rule of conduct among governments, and By the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another agree to this cove- nant of this league of nations. Article 1. Members of the league shall he those sig- natories named in the annex, and also such of those named (as invited) as shall accede without reserva- tion by a declaration deposited with the secretariat within two months of the coming into force of the treaty. 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 effective guaranties 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. Not only does the covenant fail to provide any means for the "firm establishment of the understand- ings 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 com- ment opposite arts. 282-287.) Thirty-two States, dominions, and colonies men- tioned in the annex as signatories are declared mem- bers (though China, one of the States mentioned, refused to sign) and 13 others are named as those invited to become members, making 45 in all. In 1910 Oppenheim, the eminent English successor to Westlake as Whewell professor at Cambridge, as- serted (vol. 1, Int. Law, pp. 162-164) that there were then in Europe 74 States possessing international per- sonality, and therefore members of the family of na- tions. He included the 24 German States and free towns. He cites 21 States in the Americas, 1 in Africa, and 1 m Asia. As to China, Siam, Afghanistan, and Thibet, he denied to them the status, asserting that they possess international personality only for some purpose. His list embraced 97. None of the British dominions or colonies is mentioned as possessing the essential attributes of an international person quali- fied 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 Ger- man States from the holy alliance.) This paragraph confounds all previously accepted principles with respect to international personality and sovereignty. If it connotes the assumption ipso facto by such dominion or colony of a bona fide free and independent status, there is nothing inconsistent, but then it would cease to be a dominion or colony. Thus the British Empire would be broken up. Half and part sovereign States, says Oppenheim (vol. 1, pp. 529-530), may be parties to international negotiation, but so-called colonial States, as the Do- minion of Canada, can never be parties to international negotiation. Thus viewed from the standpoint of the law of nations, the Dominion of Canada, the Common- wealth of Australia, New Zealand, and the Union of South Africa are British territory. (Ibid., vol. 1, p. 231.) No genuine league of nations can be founded upon such basic inequalities. These inequalities appear not only in the organi" structure from the outset but they appear with respect to the treatment of subsequently admitted members. 5 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Any member may, after two years' notice of its intention so to do, withdraw from the league, provided that all its international obligations and all its obli- gations under this covenant shall have been fulfilled at the time of withdrawal Article 2. The action of the league shall be effected through the instrumentality of an assembly and of a council, with a permanent secretariat. Article 3. The assembly shall consist of representa- tives 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 representa- tives 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 time in its discretion. Belgium, Brazil, Spain, and Greece are named provi- sional members. With the approval of a majority of the assembly, the council may name additional 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. Any member not represented on the council shall be invited to send a representative to sit as a member at any meeting during the consideration of matters specially affecting the interests of such member. At meetings of the council each member repre- sented shall have one vote and not more than one representative. Article 5. — Except where otherwise provided de- cisions of the assembly and the council shall require agreement of all members represented at the meeting. Matters of procedure, including appointment of committees to investigate particular matters, may be decided by a majority present. The first meeting of the assembly and the first meeting of the council shall be summoned by the President of the United States. Article 6. The permanent secretariat shall be estab- lished 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 ho shall be appointed by the council with the approval of a majority of the assembly. THE LAW. The effect of notice of intended withdrawal would be immediately to transfer to the league the power of inquiry into and decision upon the whole body of in- ternational relations of the notifying State. Nor does it appear that time would bar any circumstance. In a particular case a State may of its own free will submit to an outside authority for decision the ques- tion of its fulfillment or nonfulfillment of certain obli- gations without derogating in any way from its sov- ereignty, 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; "Vattel, ch. 1; Manning, p. 93; Hall, sec. 1; 1 Westlake, ch. 3.) It will be observed that the assembly, which i3 a representative body, in principle at least, is not re- quired to meet within any definite period as is the council. (Infra, art. 4.) Although apparently clothed with concurrent power, it is in vital respects subordi- nate 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 equality disap- pears at this point, the five great powers constituting themselves an indefeasible majority. Yet every at- tempt at organizing a league of nations must start from and keep intact the independence and equality of all civilized States. (Oppenheim (1919), The League of Nations, p. 33.) 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 al- ways adjust and readjust the balance in the council. Although a State whose affairs are under consider- ation by the council may have a representative there- on, the rule of unanimity excludes the vote of this added representative. (Infra, art. 5.) Such repre- sentative is therefore not an equal in fact. While there is equality in the vote of the council, the principle is nullified by inequality of representa- tion. That is to say, there must be agreement as to such representatives present. •This would constitute the President of the United States the presiding officer of both bodies temporarily, at least. As to the possible magnitude of the personnel, see infra comment opposite article 282. INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Secretaries and staff shall be appointed by the secre- tary general with the approval of the council. The secretary general shall act in that capacity at all meetings of the assembly and of the council. The expenses of the secretariat shall be borne by members in accordance with the apportionment of expenses of the International Bureau of the Universal Postal Union. Article 7. The seat of the league is established at Geneva. The council may decide at any time to establish the seat elsewhere. 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 immunities. THE LAW. The buildings and other property occupied by tho league or its officials or by representatives attending its meetings shall be inviolable. Article 8. The members of the league recognize that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common motion of international obligations. The council, taking into account the geographical situation and circumstances of each State, shall for- mulate plans for such reduction for consideration and action of the several governments. Such plans shall be subject to reconsideration and revision at least every 10 years. After these plans shall have been adopted by the several governments the limits of armaments fixed therein shall not be exceeded without the concurrence of the council. Diplomatic privileges and immunities include extra- territoriality, that is, immunity from local law, civil and criminal in foreign 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 excep- tional severity by the laws of all States. (U. S. v. 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 sovereignty of the league as a dis- tinct political entity, as the immunities of an ambassa- dor now from the respect due to the person of the sovereign whom he represents. Yet article 7 appears to extend the principle far beyond its application, even in the case of ambassa- dors, in clothing these officials with the status ap- parently anywhere "when engaged on the business of the league." Diplomatic immunities do not attach under the law of nations to ambassadors 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 Whar- ton, sec. 97; 4 Moore, sec. 643.) By the treaty of Berlin, 187S, and the treaty of London, 1883, instituting the Danube commission, the principle of inviolability was recognized as be- tween the signatories as attaching to the respective representatives, their archives, etc. But it was not contemplated as of universal application, as in the present instance, where league officials will be sent into the territories of nonmembers. The deduction is a fair one that "the geographical situation and circumstances" to be taken into account in reduction of armaments create an exception in favor of the great powers, whose far-flung empires may be thougnt to require large military and naval establishments. And the great powers, 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 to-day is not necessarily a great power of to-morrow. Spain, Portugal, and Sweden were great powers in 1815. Germany, Austria- 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? INTERNATIONAL, LAW AND THE TREATY OF PEACE. THE TREATY. Members agree that the manufacture by private enterprise of munitions of war is open to grave ob- jections. 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 purposes. Article 9. A permanent commission shall be con- stituted to advise the council on the execution of the provisions of articles 1 and 8, relating to military and naval questions. Article 10. Members of the league undertake 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. THE LAW. This would undoubtedly be a military commission whose functions would include superintending dis- armament of States newly admitted, as well as direct- ing the forces necessary to vindicate international obligations. This article embraces two distinct obligations in the first sentence, viz: "To respect" the territorial in- tegrity and existing political independence of member States, and to "preserve" the same as against external aggression. A. State undertaking to respect the territorial in- tegrity of another contracts to refrain from doing any- thing that shall in any way impair or impeach that territorial integrity, including its possessions, de- pendencies, colonies, protectorates, leased territories, spheres of influence, and hinterlands. All of these terms express degrees of territorial rights. (1 West- lake, 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 con- notes the right of all States to complete immunity from interference by others. But there are excep- tions to this general rule recognized by the law. A State may lawfully decline to respect the territory and independence of another (1) in self-defense, (2) in accordance with treaty stipulations, (3) on grounds of humanity, and (4) in behalf of an oppressed popu- lation. (Davis, 4 ed., p. 104; Woolsey, sec. 43; Wheaton, sec. 36; Snow, p. 57; Hall, sec. 88; Law- rence, sees. 74-89; 1 Moore, p. 73.) The acceptance of the obligation "to respect" the territorial integrity and existing political independ- ence of member States means, therefore, a mutual en- gagement not to interfere on grounds of humanity or to assist an oppressed people within the territorial limits of member States. This obligation would prob- ably forbid extending a recognition of belligerency to revolting peoples 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 and existing political inde- pendence of member States; so that there is not only the duty to abstain from giving any recognition or assistance to a revolting portion of a member State, but there exists the duty to aid in putting down such revolt should some other State assist the revolting portion. It is plainly a renewal of the proposition of the holy allies at the congress of Aix-la-Cnapelle, in 1818, to stereotype the State of possession, which was promptly rejected by Lord Castlereagh as impossible of achieve- ment until existing wrongs had been righted. (Alli- son's Life of Castlereagh, vol. 3, p. 66.) INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Article 11. Any war or threat of war, whether im- mediately affecting members or not, is hereby declared a matter of concern 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 secretary general shall on the request of any member forthwith summon a meeting of the council. It is the friendly right of each member to bring to the attention of the assembly or council any circum- stance whatever affecting international relations which threatens to disturb international peace or good under- standing. Article 12. Members Agree that if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or to inquiry by the council, and they agree in no case to resort to war until three months alter the award by arbitrators or the report by the council. In any case the award by arbitrators shall he made within a reason- able time and the report of the council shall be made within six months after submission. Article 13. Members agree that whenever a dispute arises between them which they recognize as suitable for submission to arbitration and which can not be satisfactorily settled by diplomacy, they will submit the whole subject matter to arbitration. Disputes as to interpretation of treaties, as to questions of inter- national law, as to the existence of any fact which if established would constitute a breach of international obligation or as to the extent and nature of reparation to be made for such breach are declared to be suitable for arbitration. 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 convention 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 failure to carry out such award the council shall propose what steps should be taken to give effect thereto. THE LAW. 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 of war. One instance of a threat of war, in that it is a hostile act, may be cited: namely, any premature recognition of belligerency or of independence 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 undefined in the terminology of the law of nations. It may be construed to embrace any degree of friction in inter- national negotiation and authorize intervention by the league. It is presumed that the right of the assembly 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 posses- sion of the untrammeled right of negotiation is the test of independence. (Manning, pp. 93-100: Westlake, Cbrp. VII; 1 Halleek, Ch. IV., sec. 1.) The obligation embodied in this article has been assumed generally by the civilized States of the world in bilateral treaties; and since 1S99 the permanent court of arbitration at The Hague has been success- fully occupied with a great variety of disputes. It is true that in a great majority of these bilateral treaties, "questions of honor and vital interest," that is, politi- cal que-tions, are excepted and reserved. There are certain political questions that are admittedly not arbitrable, as, for example, with us, one involving 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 extensively applied as yet, except by the United States in the so-called Bryan treaties of 1913-14. This article puts "teeth" in the conventions of 1899 and 1907 establishing the permanent court of arbitra- tion at The Hague. This court has heard and deter- mined many grave controversies, but its determina- tions have, been founded largely upon compromise and expediency rather than upon the application 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 delega- tion to The Hague conference of 1907 was able to bring about the adoption of a draft convention for the insti- tution of a court of arbitral justice. The matter of representation alone prevented it from being put into immediate operation, a difficulty easy of solution to-day. The convention establishing the permanent court of arbitration appears to be the only one of the dozen or more of beneficent conventions signed at The Hague in 1907 that is recognized by the principal allied and associated powers as possessing any binding force or as worthy of survival. (See art. 287.) There appears to be a distinct break with the past 20 years' develop- ment of law and judicial processes as the preeminently desirable means toward the establishment of peace and an espousal of the doctrine of force. 10 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Article 14. Council shall formulate and submit to members of the league for adoption plans for a per- manent court of international justice. Article 15. Members agree that any dispute likely to lead to a rupture, not submitted in accordance with article 13 will be submitted to the council. Any party may effect submission by giving notice to the secretary general. The parties will communicate to the secretary general statements of their case with all relevant facts and papers, and the council may forth- with 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 majority vote shall publish a report and recommenda- tions. Any member of the league or the council may do likewise. If the report of the council is unanimously agreed to by members other than the representatives of one or more parties to the dispute, 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. 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 recommendations. The council may in any case refer the question to the assembly, and it shall be referred to the assembly at the request of either party if such request be made within fourteen days after the submission of the dis- pute 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 assem- bly be concurred in by members in the council and a majority of other members of the league other than the parties to the dispute. Article 16. Should any member resort to war in dis- regard 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 subject it to the severance of all THE LAW. The convention referred to (supra, opposite art. 13) is ready at hand, having been accepted by all the civilized States of the world. (See Scott, The Hague Conferences.) 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 solution. They are outside the realm of law and no principle of law or possibility of compromise can give hope of settlement. In such circumstances the league apparently sanctions 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 attack, as, for example a border raid. Must the State assailed submit pas- sively until the council has deliberated upon the question of "external aggression" or upon concilia- tion? The right of self-defense appears nowhere to be recognized in the sense that it has heretofore existed. (Hershey, 144-146, and notes.) It will be observed that as to whether or not a dispute arises out of a matter "which by international law is solely within domestic jurisdiction" is for the coiincil to find. There is a great variety of tilings a State may do in pursuance of its territorial supremacy, 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 territorial limits of a State are subject to the jurisdiction of that State, yet the State to which the alien owes allegiance may rightfully protect him abroad and compel a standard of treatment recog- nized by international law. (See Borchard, Diplo- matic Protection, etc.) So all exercises of domestic jurisdiction having international effect may be held to involve international concern. Knowing that "it is the duty of a good judge to extend his jurisdiction" it is conceivable that much exercise of domestic jurisdiction having international effect might ulti- mately pass under the control of the council in the application of this article. The apparent concurrent power of the assembly will be seen by this article to have disappeared, re- quiring the concurrence of the council to effectuate its action, thus leaving the council the preponder- antly powerful authority in the scheme. It is for the council (or the assembly with the con- sent of the council under art. 15) to decide when the contingency arises under which the duty of invoking and applying measures of commercial warfare falls upon members. INTERNATIONAL LAW AND THE TREATY OF PEACE. 11 THE TREATY. trade or financial relations, the prohibition of all inter- course 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 military, 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 financial and economic meas- ures in order to minimize the loss and inconvenience resulting, and that they will afford passage of troops through their territories. Any member of the league which has violated any covenant may be declared no lorger a member by unanimous vote of the council (excluding the vote of the member in disfavor). Article 17. This article extends the force of articles 12 to 16, inclusive, to nonmembers of the league, who shall be invited to accept the obligations of member- ship for the purpose of the dispute. Upon such invitation the council shall immediately institute an inquiry. If both parties to the dispute be nonmembers and decline to accept the obligations of membership, the council may take such measures and make such rec- ommendations as will prevent hostilities and result in settlement. Article 18. Everv treaty or international engage- ment entered into hereafter by any member shdl he forthwith registered with the secretariat and pub- lished. No such treaty shall be binding until so reg- istered. Article 19. The assembly may from time to time advise the reconsideration of treaties which have be- come inapplicable. Article 20. Members severally agree that the cove- nant abrogates all obligations and understandings inter se which are inconsistent with the terms thereof and that they will not hereafter enter into inconsistent engagements. Any member bound by inconsistent obligations shall take immediate steps to procure re- lease therefrom. THE LAW. The term "resort to war" must be held to include defensive and offensive warlike violence 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 appeai-s to rest on a decision of the league ad refer- endum. Whether or not a member contributes to the armed forces he shall contribute his share toward the finan- cial 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 assist- ance constitutes war quite as fully as though troops were furnished. This paragraph clothes the council with jurisdiction over all matters affecting or held to affect international relations arising in nonmember States, with or with- out the approval of such nonmembers. 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. On the whole, this article reduces those nonmembers desiring to retain sovereignty and independence to the same condition of wardship to the council as is pro- duced 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 nonsignatory or non- member States. The principle of independence would vanish from the law of nations under this article. The execution of this article is left to the conscience of the members; there is no provision for scrutiny into existing treaties of alliance and other conventions serving special aims, nor is there any criterion by which inconsistency may be determmed to exist. Thus the Anglo-Japanese alliance with respect to the special interests of those two States in Asia announces as an object the preservation of peace. It may be contended by the high contracting parties that on incompatibility exists; that it is in fact a "regional understanding" for securing the maintenance of peace. (See art. 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. 12 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Article 21. Nothing in this covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration, or regional under- standings like the Monroe doctrine, for securing the maintenance of peace. Article 22. To those colonies and territories which have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there shall be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this covenant. The best method of effecting this purpose is to intrust the tutelage of such peoples to advanced nations, as mandatories on behalf of the league. The character of the mandate must differ according to the stage of development of the people, the geo- graphical situation of the territory, its economic condi- tions, and other similar circumstances. Certain communities of the former Turkish Empire have reached a stage of development where their inde- pendence can be provisionally recognized, subject to the rendering of administrative advice and assistance by a mandatory. THE LAW. In the first part of this sentence all bilateral and multilateral treaties of arbitration are recognized as possessing continuing binding force. (See comment opposite art. 282-287.) As to the Monroe doctrine, it is not a regional un- derstanding; it is a mere unilateral declaration of State policy which has never receh r ed 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 dip- lomatic language and has no history from which a definition may be drawn. It would appear, how- ever, to embrace a vast field of bilateral and multi- lateral treaties, conventions, and agreements relating to geographical areas and to the various degrees of existing territorial rights. The aggression of all power- ful States upon weaker ones, establishing protecto- rates, spheres of influence, spheres of interest and hinterlands, and exacting territory on lease, has been clothed invariably in language emphasizing the anx- iety 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 agree- ments, founded upon force and fraud alone, are vali- dated. (See 1 Westlake, 121-142, for discussion of minor territorial rights.) This article evidences merely a continuation of the stereotyping process, seeking to bind down mighty natural forces that no human power can hold in check. As a pertinent illustration of regional under- standing, the Lansing-Ishii agreement of 1917 recog- nizes 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 Monroe doc- trine, which harbors no aggressive designs, but from the materialistic European and Asiatic points of view the Monroe doctrine is in the same category. These peoples are perfectly able to stand alone if Crotected against despoilment and degradation at the ands of aggressive powerful States. After the laudable sentiments of the preceding para- graphs this is intended to prepare the reader for certain exceptions, made necessary in view of the existence of definite obligations 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. INTERNATIONAL LAW AND THE TREATY OF PEACE. 13 THE TREATY. Other peoples, especially those in Africa, must be placed under a mandatory responsible for adminis- tration, order, morals, the prohibition of the slave- trade and liquor traffic, and the prevention of military organization among the natives. There are territories, such as Southwest Africa and certain of the South Pacific islands, which, owing to sparseness of population, remoteness from civilization, or contiguity to the territory of the mandatory, can best be administered as integral portions of its terri- tory. In every case the mandatory shall render to the council an annual report in reference to the territory committed to his charge. The degree of authority, control, or administration to be exercised by the mandatory shall, if not pre- viously agreed upon, be explicitly defined by the coun- cil. A permanent commission shall be constituted to receive and examine annual reports and advise as to the observance of mandates. Article 23. Subject to and in accordance with con- ventions existing or hereafter agreed upon the mem- bers of the league — (a) Will eneavor to maintain fair and humane con- ditions of labor for men, women, and children in all countries; (b) Will undertake to secure just treatment of native inhabitants under their control; (c) Will intrust the league with general 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 provision to secure freedom of com- munications and transit and equitable treatment for commerce of all members; (/) 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 international bureaux if the Earties to such treaties consent. All such bureaux ereafter established shall be placed under the direc- tion of the league. The council may include as part of the expenses of the secretariat the expenses of any bureau or commis- sion placed under the league's direction. Article 26. Amendments to this covenant will take effect when ratified by members whose representa- tives compose the council and by a majority of the members whose representatives compose the assembly. No amendment shall bind a member which signifies dissent, but in such case it shall cease to be a member. THE LAW. This is the paragraph that conceals but conforms to secret arrangements for the disposition of German Southwest African colonies 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 report to themselves annually and define their degrees of control, occupying the dual relation of principal and agent in this trust. Such a commission can not perform a serious func- tion. This program, when considered in connection with articles 24 and 282 infra, reveals a magnitude of labors and a diversity of administrative power, the logical development of which would abolish all conceptions of sovereignty and independence among nations. (See comment opposite arts. 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 limitations upon the powers of the council in the whole covenant comparable to an international bill of rights. The structure contemplates not an association of equals but the subordination of the many to the au- thority of the few. The overruling authority is not a diplomatic assembly but a small group in which un- equal representation exists, combining and confusing legislative, executive, and judicial power. The dis- tinction may be clarified by a quotation from Dr. James Brown Scott's The Hague Peace Conferences, volume 1, pages 35-36: Itmustnot. however, be forgotten that great— indeed radical and essential— differences exist between a parliament and a diplomatic assembly. A parliament legislates for a nation, and bv means of proper representatives, it legislates for various component parts of the nation. International conferences in which the nations of the 14 INTERNATIONAL, LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. 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 independent nations. The parliament, by means of majorities, decrees or issues a law; the conference, by means of unanimous agreement presents to the na- tions 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 existing con- ditions 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. Annex I. Original Members of the League of Nations Signatories of the Treaty. The United States America. Belgium. Bolivia. Brazil. British Empire: Canada. Australia. South Africa. New Zealand. India. China. Cuba. Ecuador. Frapce. Greece. Guatemala. Argentine Republic. Chili. Colombia. Denmark. Netherlands. Norway. Paraguay. of Haiti. Hedjaz. Honduras. Italy. Japan. Liberia. Nicaragua. Panama. Peru. Poland. Portugal. Ptoumania. Serb-Croat-Slovene State. Si am. Czecho-slovakia. Uruguay. States Invited to Accede to the Coven an i Persia. Salvador. Spain. Sweden. Switzerland. Venezuela. Annex II. First secretary general of the league of nations. The Hon. Sir James Eric Drummond, K. C. M. G., C. B. PART II. BOUNDARIES OF GERMANY. PART III. POLITICAL CLAUSES FOR EUROPE. Section 1. Belgium. Article 31. Germany recognizes and consents to the abrogation of the treaty of neutralization of April 19, 1839, and undertakes to recognize and to observe any conventions which may be entered into by the prin- cipal allied and associated powers, or any of them, in lieu thereof. The first part of this article apparently takes cog- nizance of the continuing force of the principle enun- ciated by the London conference 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 obli- gations of a multilateral law making treaty, or modify the terms thereof, except with the consent of the other contracting parties previously 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 INTERNATIONAL, LAW AND THE TREATY OF PEACE. 15 THE TREATY. Article 32. The condominium of Prussia and Bel- gium over Moresnet neutre is replaced by the passage of this territory under the single sovereignty of Bel- gium. Articles 33, 34 stipulate for the cession of Prussian Moresnet and Eupen and Malmedy to Belgium, in which within six menths the inhabitants may indicate in writing a desire to see the whole or a part of the territory remain under German sovereignty. The league of nations will decide as to any action taken. Article 35. Provision is made herein for the ap- f (ointment, within 15 days after the coming into orce of the treaty, of a commission to delimit the boundaries of the German territories going to Belgium. Article 36. With the actual transfer of sover- eignty "over the territories referred to above" — that is, upon the coming into force of the treaty by rati- fication — German 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 1, 1914, shall not obtain Belgian nationality without a permit from the Bel- gian Government. Article 37. However, within two years German na- tionals over 18 years of age, in such territories will be entitled to opt for German nationality, option by THE LAW. 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. 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 of Bel- gium excludes the possibility of a plebiscite, and it does not appear that the inhabitants are given any right of option. Anciently and until the close of the eighteenth cen- tury it was the universal practice of successful bellig- erents, 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 permissi- ble, however, to hand such populations around, in view of the development of political principles which recognize the sovereighty of the people as the govern- ing factor in the political and social life of civilized states. This development has given rise to the pleb- iscite, 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 tho capture of Toul, Metz, and Verdun, its fixed position in interna- tional practice begins in the French revolutionary period. Inconsistent 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 deposing authority expressly bound to observe such wisnes. If the final disposition of these territories is to depend upon plebiscites it seems needless to have provided for a formal delimitation of boundaries in advance. Complementary to the right of plebiscite in the mass of a population, looking to the protection of the political rights of a people with respect to their ter- ritory, there has developed for the protection of the minority in case of transfer of territory, the so-called right of option, 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 v. Thayer, 143 U. S., 135.) The article opposite contains the remarkable pro- vision that German nationals habitually resident in the ceded territory will become Belgian nationals im- mediately upon the actual transfer of sovereignty to Belgium, and will lose their German nationality. Since allegiance to Germany thus ceases, Germany's right and obligation to protect them likewise ceases. That is one the practical effects. It appears that German nationals who have become involuntary Belgian nationals may exercise the option to divest themselves of Belgian nationality within 16 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. the husband including the wife, and by the parents, including their children under 18 years of age. Persons thus opting ''must within the ensuing 12 months transfer tneir place of residence to Germany." They may retain tiieir immovable proparty in the territories and may carry with them their movable p:op3rty free from expert or import taxes, with re^pact to sU3h proparty. Article 39. Belgium will assume a portion of the public debt on account of such territories to be calcu- lated on the basis — (a) Of the ratio of the average for the three years of 1911, 1912, and 1913 of revenues of the ceded terri- tories and the average for the same years of the rev- enues of the German Empire; or (b) Of the same ratio in its application to the Ger- man State to which such ceded territory belonged as of August 1, 1914, to be determined by the reparation commission. However, Belgium shall acquire all property and possessions situated in such territory, belonging to the German Empire and States, including tiie private property of the former German Emperor and other royal personages, free from any obligation to make compensation or to allow credit for same in the financial statement. THE LAW. two years after the coming, into force of the treaty and become German nationals again, the German nationality laws to the contrary notwithstanding. There is a provision of the German laws which declares that a German national acquiring allegiance elsewhere automatically forfeits his German nation- ality. 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 voluntary it may properly be viewed as void from the standpoint of German domestic law. As has been pointed out (supra, opposite article 30), the inhabitants of conquered or ceded territory may not be compelled to accept the new allegiance against their will. Nationality is a juridical status and is essentially voluntary. We have contended for the principle in various manifestations from the founda- tion of this Government, until at length it has become fixed in the law of nations. (3 Moore's Digest, sec. 439; Scott, cases 375.) To force a new allegiance even upon the outcast German, and merely temporarily, as in this case, is none the less a violation of the law of nations. Even the congress of Vienna, that reactionary gathering which divided the spoils of Europe in 1815, 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 nationality, "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 Ger- man nationality, within the ensuing 12 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 Germany. The provision with respect to their immovable and movable property appears to accord with enlightened practice. 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 conqueror succeeding to the rights must also assume the burdens running with the terri- tory. However, there are exceptions in practice. As to the public debt, he need not share in that portion imposed for the prosecution of the war; and the calcu- lation of the debt to be assumed by Belgium properly refers to the prewar period. The portion to be as- sumed conforms to enlightened practice. Nothing is said, however, concerning other con- tractual obligations running with the territory, and it must be inferred that these are assumed subject to the law with respect to same. (1 Moore, p. 334; 1 West- lake, p. 75; Scott cases, 85.) An invasion of the law of inviolability of private property occurs in the article in question, 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 cen- tury ago no distinction was made between the private Eroperty of the sovereign and the domains of the tate. Napoleon, for example, appropriated the pri- vate property of the elector of Hessel-Cases. INTERNATIONAL LAW AND THE TREATY OF PEACE. 17 THE TREATY. THE LAW. Though the property of a monarch is assimilated to that of the State, and as such devolves on the suc- cessor, the private property of a sovereign or other head of the State in his personal capacity is under the protection of the principle of the inviolability of pri- vate property quite as fully as that of the indi- vidual subjects. (Phillipson, Termination 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 termination of the regime of neutrality and ac- cepts in advance any arrangements to be made by the allied and associated powers continuing the Grand Duchv 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 designed to take Luxemburg from under the influence of Ger- many's commercial and political 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 maneuvers and the assembly of armed forces in such area. Violations of these terms shall be regarded 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 prevention of 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 neutralization of such portion of Germany under a world guaranty. Section IV. Saar Basin. Article 45. As compensation for the destruction of coal mines in the north of France and as reparation, Germany cedes to France, in full and absolute posses- sion, with exclusive rights of exploitation, unencum- bered and free from all debts and charges, the coal mines of the Saar Basin. 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 reference to Chapter I of an annex. French ownership is extended to de- posits for which concessions may or may not have been granted, whether private or public property, with the right of working, not working, or transfer- ring the right to work the mines; all accessories and subsidiaries, including plant and equipment, by- product plants, electric lines, buildings, dwellings, schools, hospitals, and all other property enjoyed by the present owners, go with the mines to France free from all debts and charges. Germany must pay over any sums due employees 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 main- tain schools for its employees and of giving instruc- tion in the French language. It may also maintain hospitals, dispensaries, and other charitable and social institutions. France shall enjoy complete liberty with respect to the distribution, dispatch, and sale prices of the prod- ucts of the mines. S. Doc. 156, 66-1 2 «."-- : 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 confisca- tion in violation of the spirit of law. (See comment, art. 74.) It does not appear that German workmen have a right to belong to labor unions. INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. The government of the Saar Basin is provided for in Chapter II of an annex referred to in article 46. It will be intrusted 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 members belonging to three countries other than France or Germany, appointed annually. One of the five will be designated as chairman, and he will act as the executive. The commission shall have all the powers hitherto belonging to the German Empire, Prussia, and Bavaria in such region and shall be charged with the protection abroad of the interests of the inhabitants. Neverthe- less, it is declared the existing nationality of the inhab- itants remains unaffected, unless they choose to acquire a different nationality. The inhabitants may elect local assemblies, 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 interpret- ing the scheme under which it is instituted, the decisions to be taken by majority. Article 47. The ultimate fate of the Saar Basin is here dealt with by reference to Chapter III of an annex. In this chapter it is set out that at the termi- nation of a period of 15 years the population of the Saar Basin may have a plebiscite, the vote to be taken by communes or districts on the three following propo- sitions: (a) Maintenance of the regime of the govern- ing 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 will have the right to vote. Other conditions may be made by the league of nations. The league shall decide on the ultimate sovereignty, taking mto account the wishes of the inhabitants thus expressed. If the league decides in favor of Germany in whole or in part, the rights of France shall be repurchased 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. Article 48. This deals with the fixing of boundaries of the Saar Basin. Article 49. Germany renounces in favor of the league of nations, in the capacity of trustee, the gov- ernment of the territory defined above. THE LAW. What, it may be asked, is the political status of German nationals under the governing commission? Their nationality is said to be unaffected, yet nation- ality 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 departing from the country or acquiring a new nation- ality; in fact, these clauses, including ample safe- guards 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. It is not quite plain why the "repurchase" of the Saar Basin by Germany should have been made con- tingent upon a plebiscite. The population is over- whelmingly 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 28, 1919, no amount of coloniza- tion by France can overcome that fact. The question arises, however, may those who have meantime removed from the Saar Basin back to Ger- many enjoy the privileges of taking part in the plebi- scite? They 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 snail decide, "taking into account the wishes of the inhabitants as expressed by the voting," with respect to the final disposition of the territory. There is no obligation to respect the results of the plebiscite; it is merely to be taken into account along with other things. Nothing is said of the rights of German labor. France, as the one big employer in the territory, dom- inating practically every business and enterprise, is free wholly to substitute French for German labor, through wnich the entire German population might be compelled to emigrate. In such a contingency it might then become important to settle whether ab- sentees, who were resident in the Saar Basin in 1919, had the right to take part in the plebiscite. 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 "re- nunciation 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 authority over a territory is the very essence of sovereignty, and by the provisions of Chapters II and III this authority, inter- INTERNATIONAL LAW AND THE TREATY OF PEACE. 19 THE TREATY. THE LAW. nal as well as external, is vested in the governing com- mission. It is even charged with the protection abroad of German nationals, inhabitants of the terri- tories. It may thus be contended that Germany has parted with sovereignty over the Saar Basin. If such a condition as the suspension of sovereignty is 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 describe the transaction, however, it appears to be a simple case of disguised cession, or 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 fact that a third state, and not the cessionary is given exclusive rights of exploitation. (1 Westlake, 133-139; Hershey, pp. 184, 185.) Section V. Alsace-Lorraine. The high contracting parties recognizing 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 sepa- rated from their country in spite of the solemn protest of their representatives at the assembly of Bordeaux agree upon the following articles: Article 51. The territories of Alsace and Lorraine are retroceded to Franuins which have become payable in respect of securities issued by Germany or her allies. The high contracting parties will prohibit all settle- ments otherwise than through the clearing offices; they will be respectively responsible for the payment of such debts as were due from their nationals. (Debts due by inhabitants of invaded territory will not be thus guaranteed, nor does the guaranty extend to a debtor who was insolvent before the war or whose property was liquidated under emergency legislation.) Private settlements of debts between a national of an allied or associated power and a national of Ger- many 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 legisla- tion. All legal processes for the private recovery of such debts will be prohibited. Creditors shall give notice to the clearing 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 THE LAW. 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 (Sees. Ill ami IV of Part X) commit the allied and associated Govern- ments to the confiscation of all private property of German nationals, whether situated in their own ter- ritories 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 is true that it is declared that Germany will compensate her nationals who are thus dispossessed, but hi 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 nineteenth century it was the custom of a belligerent to seize and convert the private property of nationals of his enemy, while the private enemy individual might be dealt with after the desires of the captor. In the last century, however, a settled distinction in the law has differentiated the private unarmed enemy person 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 noncombatant, is entitled to protection in his person and property; the latter, classified as combatant, may be made the object of direct hostile action. As to public property, all movables of the enemy Government are liable to confiscation. Private property is under the protec- tion of written law, declaring it to be inviolable. (The Hague, 1907, Convention IV, art. 46.) This must be understood to be qualified, however, by certain definite exceptions. (See comment on article 63, subsection 9.) This would require an act of Congress to carry it into execution. As to the universally recognized rule of law for- bidding ther Confiscation of private enemy debts, see infra, comment opposite article 302. 26 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. 5 per cent on the part not admitted during the pendency of such claim. Persons "having unduly refused to admit 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 collec- tion of such fines, which "will be credited to the other clearing office, which shall retain them as a con- tribution toward the costs" of the office. A mixed arbitral tribunal is set up as a court of appeal as between disagreeing clearing offices. Section IV (Article 297) sets out the following with respect to the private property, rights, and interests of German nationals situated in allied and associated countries: (a) Germany shall immediately discontinue all war measures (including liquidation and transfer) taken against the property, rights, and interests of nationals of allied and associated powers, such nationals to enjoy full rights in accordance with article 298. (6) The allied and associated Governments 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 protectorates, 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 nation- ality of an allied or associated power shall not be liable to such deprivation of their private property. THE LAW. (e) Nationals of allied and associated powers shall be entitled to compensation in respect of damage or injury to their property, 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 private property of German na- tionals in the hands of allied and associated Govern- ments. Germany will receive credit on the repara- tion account as to any balances, which shall be paid to the reparation commission. (i) Germany undertakes to compensate her nation- als thus deprived of their private property by the allied and associated powers. It appears under this subsection that the United States is empowered to seize, in addition 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 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 exer- cised 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 v. 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 follows or abandons at his will; and, although it can not be disregarded by him without obloquy, yet it may be disregarded." (Halleck, 4th ed., vol. 1, p. 587.) The power to confiscate enemy property can not be exercised by the United States, however, except by the direct authority of Congress. (Brown v. United States, 8 Cranch, Pi. 123.) The extent of authority existing in the absence of such legislation is to seques- ter using reasonable care to conserve such property for its owners, under an obligation to restore it or its equivalent at the peace as we have done through the law creating the Alien Property Custodian. Even this right is generally qualified by treaty. (See treaty with Prussia, 1828, 2 Malloy, p. 1496.) The far-reaching effect of this policy is likely to hamper American investments all over the world. See comment opposite article 74. INTERNATIONAL LAW AND THE TREATY OF PEACE. 27 THE TREATY. 0") The amount of all capital taxes levied on property of allied and associated nationals by Germany after November 11, 1918, shall be refunded. By sections a and b (art. 298) Germany undertakes to restore to nationals of allied and associated powers their property, rights, and interests as they existed prior to the war, and not to subject such property, rights, and interests to any measures not applied equally to property of German nationals. By Annex, paragraph 1, under Section IV, Germany confirms all acts of allied and associated powers with respect to the property of Germany 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 respect to German property. By paragraph 10, Germany will, within six months, deliver to each allied or associated power, all securities, certificates, deeds, or other documents of title held by its nationals and relating to property, rights or inter- ests situated in the territory of that allied or associated power, including any shares, stock, debentures, deben- ture stock, or other obligations of any company in- corporated- in accordance with the laws of that power. She will further furnish any information desired con- cerning property of her nationals so situated. By the concluding paragraph of the Annex the fore- fjoing provisions are declared to apply to industrial, iterary, and artistic property. THE LAW. On the whole, it may be said that in the pursuit of large indemnities the allied and associated Govern- ments have in these articles repudiated principles which, in the language of Spaight, the eminent English publicist, constitute the Magna Charta of war law. (War Rights on Land, p. 374.) And since the remain- ng great powers have concerted in its repudiation it may be asserted that they have brought to naught the enlightened and laborious work of a century in this regard. 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 November 13, 1908, and other similar treaties. (See comment, art. 286.) Section VI. Austria. Articles 80. Germany acknowledges and will respect strictly the independency of Austria within frontiers to be fixed and agrees that the independence is inalien- able. Provision in the new German constitution for a seat for an Austrian delegate in the German Reichsrat was held by the principal allied and associated powers to be violative of this obligation "to respect" Austrian independence. (Compare with the mutual obligation "to respect" the territorial integrity and existing political independence, under art. 10.) The racial characteristics of what is left of Austria are predomina- bly German, the subject peoples of the old dual mon- archy having been accorded the right of self-determi- nation. Yet the achievement of German unity is for- ever forbidden. This ignores the inexorable lessons of history and makes for Irredentism. Section VII. Czecho-Slovak State. Articles 81-83. Germany recognizes thein depend- ence of the Czecho-Slovak State and renounces all rights and title over a portion of Silesian territory therein described. Article 84. German nationals habitually resident in territories recognized as forming part of the Czecho- slovak State will obtain Czecho-Slovak nationality ipso facto and lose their German nationality. Article 85. Within a period of two years German nationals over 18 years of age 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 country will be entitled, in the absence of any provision to the con- trary in the foreign law, and if they have not acquired the foreign nationality, to obtain Czecho-Slovak na- tionality by complying with the requirements laid down by the Czecho-Slovak State." See comment opposite article 36. See comment opposite article 37. 28 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. Article 86. The Czecho-Slovak State agrees to em- body in a treaty with the allied and associated powers provisions for the protection of inhabitants differing from the majority in race, language, or religion. See treaty of Berlin, 1878, articles 5, 25, 35, and 44, recognizing conditional independence of Bulgaria, Roumania, Serbia, and Montenegro. (Martens, N. R. G., 2d ser., Ill, p. 449.) This implies the right, and perhaps the duty, of intervention. Section Vin. Poland. Articles 87-88. Germany recognizes complete inde- pendence of Poland and cedes certain territory, pro- vision being made for delimitation of frontiers, and for plebiscites in portions of Upper Silesia. By Annex I under Section VIII, those qualified to vote shall be persons, without distinction of sex, who have completed their twentieth year and who were born in the plebiscite area or have been domiciled therein since a date to be determined by an inter- national commission in charge. On the conclusion of the voting the commission will make a recommenda- tion 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 91. German nationals habitually resident in territories recognized as forming part of Poland will acquire Polish nationality ipso facto and will lose their German nationality, with the exception of those or their descendants who became resident in the ter- ritories after January 1, 1908, who require special authorization from the Polish State to become Polish nationals. Within two years Germans thus becoming Poles, as well as Poles resident in Germany who are German nationals, over 18 years of age, may opt for the other nationality, respectively. Persons thus exercising the right to opt "may" within the succeeding 12 months transfer their place of residence to the State for which they have opted. Each will be entitled to retain his immovable property in the territory of the other and freely to carry with him his movable property. Within the same period Poles in foreign countries, who are German nationals, will be entitled, in the absence of restrictions in the foreign land, to acquire Polish nationality by complying with the requirements laid down by the Polish State. Article 92. Poland will assume a portion of the Prussian and German debt attributable to the terri- tory on the basis of the ratio between the average for the years 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 excep- tion that there shall be excluded that portion arising from German and Prussian projects of colonization. Poland was extinguished by a final partition 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 settlement with respect to Russian Poland lies in the future. The provisions of this section are founded upon political rather than upon legal considerations, how- ever, a primary object being the erection of a strong buffer State between 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 prescription. (1 Oppenheim, pp. 309, 310.) Here again involuntary naturalization is resorted to with, however, a subsequent right to opt. (See comment opposite arts. 36 and 37.) It will be ob- served in this article that persons opting "may" transfer their residence within 12 months- See comment opposite article 39. INTERNATIONAL LAW AND THE TKEATY OF PEACE. 29 THE TREATY. THE LAW. Article 93. Poland agrees to embody in a treaty with the principal allied and associated powers such provisions as may be deemed necessary to the protec- tion of the inhabitants 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 indicate their choice as between remaining a part of Germany or becoming incorporated into Poland under the same procedure 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 prin- cipal allied and associated powers all rights and title over Memel and undertakes to accept in advance any disposition to be made of same. Articles 100, 102. Germany renounces in favor of the. principal allied and associated 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." Article 103. A constitution for the free city of Danzig will be drawn up by representatives of the free city and a high commission appointed by the league of nations. Article 104. The principal allied and associated fiowers undertake to negotiate a treaty between Po- and and the free city of Danzig which will insure reciprocal economic privileges, insure Poland control of the Vistula and of the whole system of railways within the free city, with the exception of street rad- ways, insure 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 German nationality" on the coming into force of the treaty "in order to become nationals of the free city of Danzig." Article 106. Within two years German nationals over 18 years of age may opt for German nationality, though those opting "must" transfer their residence to Germany within the ensuing 12 months. Article 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. This renunciation of sovereignty is made in favor of the principal allied and associated powers, by which the United States becomes possessed of an undivided one-fifth interest hi the territory. The right to acquire territory is incident to and inferable from article 1, section 8, United States Constitution, but the dispo- sition of territory thus acquired by the United States is hi the sole power of Congress. (Art. P7, sec. 3, U. S. Const.) The power to dispose of such territory is a legislative one and can not be delegated. Ibid. 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. As cited, supra, it involves for the United States a constitutional question, being alienation 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 1848. (Nys. 1, pp. 383 r 385.) It will be observed that German nationals thus losing German nationality do not at that instant ac- quire any other, as in the preceding instance cited; until they become nationals of the free city they are without any nationality, or what the Germans term staatlos or heimatlos. See comment opposite article 91. As the United States would possess an undivided one-fifth interest, it would require an act of Congress to alienate that interest. (Vide supra, opposite arts. 99 and 104.) 30 INTERNATIONAL. LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. Article 108. The proportion of public debt to be assumed by the free city of Danzig is to be calculated on the ratio indicated for Poland in article 92, without the exception therein indicated. Section XH. Schleswig. Ratio is set out in article 254 of the treaty. Article 109. Provision is made in these articles for a plebiscite within certain described territory by which the inhabitants may indicate their desire for incor- poration with Denmark, the right to vote being given to all persons, without distinction of sex, who have completed their twentieth year and who were born in the zone in which the plebiscite is taken or have been domisciled there since a date before January 1, 1900, or had been expelled by Germany. Article 110. Germany renounces definitely in favor of the principal allied and associated powers all rights of sovereignty over territories situated to the north of a frontier line fixed by the allied and associated Eowers, who "will hand over the said territories to •enmark." Article 112. "All the inhabitants of the territory which is returned to Denmark will acquire Danish nationality ipso facto and will lose their German na- tionality," with the exception that persons who had become habitually resident in tins territory after Octo- ber 1, 1918, can become Danish nationals only with permission of the Danish Government. Article 113. Within two years any person over 18 years of age, born in the territory, not habitually resident in this region, may opt for Danish nation- ality, and any person over 18 years of age habitually resident in the region may opt for German nationality. Those opting must transfer their place of residence within the ensuing 12 months. They will be entitled to retain their immovable property and freely to carry their movable property with them. Article 114. The proportion of public debt to be assumed by Denmark with respect to territory re- stored will be calculated on the ratio indicated in the case of the free city of Danzig. (See article 108.) Denmark was despoiled of Schleswig by 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 suffered by the Scandina- vian State. It may be remarked, however, that Denmark was not officially consulted in the arrangements made by the allied and associated powers. See comment opposite articles 99, 104, and 107. See comment opposite article 36. See comment opposite article 37. By the treaty of October 30, 1864, by which Den- mark 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 115. All fortifications on the islands of Heligoland and Dune shall be destroyed and shall not be reconstructed. This constitutes a restriction on German territorial supremacy, technically described as a negative servi- tude. So many, both negative and positive, and military and economic, have been imposed upon Ger- many by the present treaty that it is doubtful that Germany can be described as a fully sovereign state, at least during their continuance. Section XIV. Russia and Russian States. Article 116. Germany agrees to respect as inalien- able the independence of all territories which were part of the former Russian Empire, and, by reference to article 292, accepts definitely the abrogation of the Brest-Litovsk treaties and all other agreements with the Maximalist government. The allied and associated Governments reserve the rights of Russia to obtain restitution and reparation as against Germany. Article 117. Germany undertakes to recognize any treaties and agreements subsequently to be entered into by the allied and associated powers with Russia or Russian States. Arrangements entered into by two or more states with respect to another can not, of course, bind that other state. These are political and economic, rather than legal provisions. INTERNATIONAL LAW AND THE TREATY OP PEACE. 31 THE TREATY. THE LAW. PART TV. GERMAN RIGHTS AND INTERESTS 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. In this general renunciation it is not clear in whose favor it is made. Section I. German Colonies. Article 119. 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 German 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 account, 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 I and IV of Part X shall apply to such territories whatever the Government adopted. Section I of Part X provides for the enjoyment of economic privileges in Germany 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 restitution or compensation with respect to all private property of nationals of the allied and asso- ciated Governments in German hands. Article 122. The Government exercising authority over such territories may make such provisions as it thinks fit with reference 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. Article 123. The provisions of article 260 apply as to all agreements concluded with German nationals in such territories. Article 260 gives to the repara- tion commission power to cause Germany to dis- possess her nationals of any rights or interests they may have in any public utility or concession operating in Russia, China, Turkey, Austria, Hungary, and Bulgaria, or in any ceded territories and turn the same over to the reparation commission. Germany shall be responsible for indemnifying her nationals so dispossessed. Article 124. Germany undertakes to pay damage suffered by French nationals in the Cameroons at the hands of German civilians or military forces, in ac- cordance with an estimate to be presented by France. Article 125. Germany renounces all rights under the conventions of November 14, 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., effected in virtue of these agreements in favor of Germany. See comment opposite articles 99, 104, and 107. See comment opposite article 39. See comment opposite article 74. 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 to be despoiled of their prop- erty but they may be denied the right to hold prop- erty, to trade, or practice a profession, or they may be expelled en masse. All responsibility to assist in their repatriation is denied. See comment opposite article 74. See comment opposite article 63, subsection (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 disguised indemnity. By the conventions of November 14, 1911, France ceded to Germany 107,000 square miles of equatorial Africa, with a population 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. 32 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. 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, 18S5, the general act of Brussels of July 2, 1890, and the conventions com- pleting or modifying the same. Article 127. The native inhabitants of the former German oversea possessions shall be entitled to the diplomatic protection of the Governments exercising authority over those territories. THE LAW. 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 con- ventional law of nations has tried to abolish the slave trade. Three important general treaties have been con- cluded for that purpose during the nineteenth century since the Vienna congress, namely, (1) 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 antislavery 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 reserva- tions as practically to have freed herself from its ob- ligations. (See reservations in act of ratification of general act of Congo conference by the United States Senate disclaiming approval of African colonies, etc., 2 Mal- loy, p. 1991.) Article 126 does not indicate what the allied and associated powers, or some of them, contemplate, whether a tightening or a relaxation of the obligations. 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 possible 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 resulting from the provi- sions of the final protocol signed at Peking on Septem- ber 7, 1901, and from all annexes, notes, and docu- ments supplementary thereto. She likewise renounces in favor of China any claim to indemnities accruing thereunder subsequent to March 14, 1917. Article 129. China need not grant Germany the ad- vantages and privileges enjoyed by the other high contracting parties under the treaties of August 29, 1902, and September 27, 1905. Article 130. Germany cedes to China all the build- ings, wharves, pontoons, barracKs, forts, arms, vessels, and other public property which are situated or may be in the German concessions at Tientsin and Hankow, or elsewhere in Chinese territory, except as otherwise provided in Section VIII, relating to Shantung. Con- sular and diplomatic residences or offices and property in the legation quarter are also excepted. Article 131. Germany undertakes to restore to China within 12 months all astronomical instruments which her troops in 1900-1901 carried away from China and to defray all expenses incident thereto. It will be noted that with respect to China no decla- ration is made to the effect that all treaties and agree- ments are abrogated, as is done in other instances (infra, arts. 135, 138, 148), but there i$ here only a renunciation by Germany. Among the benefits and privileges of the protocol of September 7, 1901, was the commemorative arch erected in Peking to Baron von Ketteler 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. These concessions comprise comparatively small areas which have been wrung from China by all of the European powers in addition to their so-called "leased territory" in China. The titles in all instances are founded on force or threats of force, though the Ger- man concessions only are canceled. Plainly, China can not be bound by any provisions of the treaty unless and until she ratifies it. Nothing is said of restitution by any of the other high contracting parties, whose troops, with the Ger- mans, to quote the eminent English authority Spaight, indulged in "looting and robbery, naked and una- shamed"; nor do Great Britain and France offer to return from their museums any of the works of art taken from the Summer Palace at Peking in 1860, yet the grand allies compelled 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 stipulation. (Final act, congress of Vienna, June 9, 1815.) INTERNATIONAL LAW AND THE TREATY OF PEACE. 33 THE TREATY. Article 132. Germany agrees to the abrogation of the least's under which the Hankow and Tientsin con- ns are held. China, restored to the full exercise of her sovereign rights in the above areas, declares her intention of opening them to international 1 1 idi nee and trade. Article 133. Germany waives all claims arising out of the capture and condemnation of German ships in China and the liquidation, sequestration, or control of German property, rights, and interests in China since August 14, 1917. Such property may he retained and used to satisfy claims of Chinese nationals, any bal- ance to be turned over to the reparation commission. Article 134. Germany renounces in favor of Great Britain German Shite property in the British conces- sion at Shameen at Canton, and in favor of France and China conjointly the property in German schools in the French concession at Shanghai. THE LAW. There is an affectation of virtue in this act of restor- ing China "to the full exercise of her sovereign rights," hut how little ground there is for it can he 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 condemnation of enemy ships found in the waters of a belligerent on the outbreak of war. They may be seized and used, hut only under an obligation to make restitution and compensation. (Report of American delegation to The Hague conference of 1907, The Hague Peace Con- ferences, 1 Scot I, pp. 556-568.) 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 HI. Siam. Article 135. Germany recognizes that all treaties, conventions, and agreements between her and Siam, and all rights, title, and privileges derived therefrom, including all rights of extraterritorial jurisdiction, ter- minated as from Jul}' 22, 1917. Article 136. All German public property, with the exception of diplomatic and consular offices, pass ipso facto to Siam without compensation, and all private property of German nationals in Siam may be retained and applied to sa'tisfy Siamese claimants. Article 137. Germany waives all claims on account of seizure or condemnation of German sliips in Siamese waters, the liquidation of German property, or the in- ternment of German civilians. s. Due. 156, 66-1 3 The effect of this article is to absolve Siam from re- sponsibility for any breaches of treaty obligations from the date mentioned. The outbreak of war does not abrogate all treaties; only those are annulled or suspended which are incom- patible with the state of war, such as treaties of com- merce and navigation. (5 Moore, pp. 376-377.) Those treaties contemplating a permanent arrange- ment 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 extraterritorial 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? Extraterritorial jurisdiction is instituted by civilized States through treaty in back- ward States in order that their nationals may not be subjected to legal systems 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 extraterritorial jurisdiction to Germany in such cases. .See comment opposite article 74. It appears that the allied and associated powers alone are to have the benefit of existing law instituted for the universal protection of property and persons. 34 INTERNATIONAL, LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. Section IV. Liberia. Article 138. Germany renounces all rights and priv- ileges arising from the arrangements of 1911 and 1912 regarding the nomination of a German receiver of customs. Article 139. Germany recognizes that all treaties between her and Liberia terminated from August 4, 1917. Article 140. The property, rights, and interests of Germans in Liberia may be retained and used to satisfy i :i ..: ... .1 .: <-„ Liberian claimants. In 1912 a loan of $1,700,000 was ra.ised, 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 military officers. The treaty pretends to adopt as a principle that the outbreak of war automatically abrogates all treaties and agreements of every character (vide, comment op- posite art. 135), yet in the ease of China only a few specified conventions and agreements arc declared "renounced" by Germany. (See comment, infra, op- posite art. 156.) No specific provision appears to be made for the taking over of German public property in Liberia. (See comment opposite art. 74.) Section V. Morocco. Article 141. Germany renounces all rights and privi- leges under the general act of Algeciras of April 7, 1906, and by the Franco-German agreements of February 9, 1909, 'and November 4, 1911. Article 142. Germany recognizes the French pro- tectorate in Morocco and renounces the regime of the capitulations therein; that is to say, extraterritorial jurisdiction. Article 143. The sherifian government shall have complete liberty in regulating the status of German nationals. Article 144. All private and public German prop- erty 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. Article 145. Germany shall insure 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 dispossessed. Article 146. Moroccan goods entering Germany shall enjoy the privileges accorded French goods. France is thus left a free hand in Morocco and is restored to an even more favorable position than before Germany forced her participation through the Agidir and other incidents. 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. See comment opposite article 135. See comment opposite article 122. See comment opposite article 74. Ibid. Section VI. Egypt. Article 147. Germany recognizes the British pro- tectorate over Egypt and renounces the regime of the capitulations. Article 148. All treaties, agreements, and contracts concluded by Germany with Egypt are abrogated. Article 149. Until Egyptian Taw is substituted by a reorganization of the judicial system, British consular tribunals will assume jurisdiction over German na- tionals and property. Until December 18, 1914, the date of the British proclamation of a protectorate, Turkey was the nomi- nal sovereign of Egypt, though constantly, since the British occupation in 1SS2, Great Britain had increased her control over the administration. Egypt, though a vassal State, was nevertheless considered a part- sovereign member of the family of nations, capable of issuing a proclamation of neutrality, sending and re- ceiving consuls as diplomatic agents and of holding joint sovereignty with Great Britain over Soudan. (1 Oppenhcim, p. 142.) This position of Egypt is clearly impeached by British action. See comment opposite articles 135 and 139. It will be observed not even this alternative was provided with respect to the position of German nationals in Siam. INTERNATIONAL, LAW AND THE TREATY OF PEACE. 35 THE TREATY. Article 150. The Egyptian Government shall have complete liberty in regulating the status of German nationals in Egypt. Article 151. Germany consents to the abrogation of the decree issued by the Khedive on November 28, 1904, relating to the public debt. Article 152. Germany consents to the transfer to Great Britain of the powers conferred on the Sultan of Turkey by the convention of October 29, 1888, con- cerning tin 1 Suez Canal. Article 153. All German public property in Egypt passes tn the Egyptian Government without payment. All private German property may be retained and applied toward satisfaction of claims. Article 154. Egyptian goods entering Germany shall enjoy the same privileges accorded British goods. THE LAW. See comment opposite article 122. See comment opposite article 74. Section VII. Turkey and Bulgaria. Article 155. Germany undertakes to recognize any arrangements made with Turkey and Bulgaria with reference to any lights, interests, and privileges what- ever of Germany or German nationals in those countries. Section VIII. Shantung Apparently such property is to be confiscated as in 11 other instances. Article 156. Germany renounces in favor of Japan all her rights, title, and privileges, particularly those concerning the territory of Kiaochow, railways, mines, and submarine cables, which she acquired in virtue of the treaty concluded by her with China, on March G, 1898, and of all other arrangements relative to the Province of Shantung. All German rights in the Tsingtao-Tsinanfu Rail- way, including its branch lines, together with its sub- sidiary 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 at- taching 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 ami associated powers, 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 Kiaochow, together with privileges and concessions in Shantung, are held to be so far continuing as to be capable of transfer by Germany to Japan; and this in spite of the fact that by the terms of the treaty of March 8, 1898, the privileges are nontransferable. Yet this treaty, wrung from China by Germany 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 abro- gated by war. It is true that in May, 1915, Japan wrung from China, under a threat of war, an agreement to abide by such disposition of Kiaochow 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 of the civilized 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 doubtful legal ground appearing in the article. It is plain, however, that from August 14, 1917, the date China declared war, Germany's rights in Kiaochow lapsed. A renunciation by Germany to Japan of something not legally possessed is therefore a mere nullity. (See The Shantung Question, by Alpheus H. Snow, The Nation, Vol. CIX, Bo. 2829, Sept. 20, 1919.) All property belonging to the German Empire 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 nationals, while it became liable to sequestration, it did not in law become liable to confiscation, although private German property in concessions which China might 36 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. consider prejudicial to public policy might be can- celed, with or without compensation, as the case may be. No distinction appears to be made, however, in the attempt to grant all property to Japan, although the phraseology is characteristically Japanesque. Article 157. Movable and immovable property of This enemy State property being within the re- the German State, as well as all rights which Germany stored sovereign jurisdiction of China, it is for China might claim, are acquired by Japan free and clear of alone to say whether she will exercise her war right all charges and encumbrances. 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 If an international court of arbitral justice could within three months all records, registers, archives, take cognizance of this provision, it could find no deeds, and documents of every kind and will give legal ground upon which to compel performance by particulars of all treaties, arrangements, or agreements Germany, for the reasons set out. (Supra, comment relating to rights, title and privileges, in Shantung. opposite, art. 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 whether 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, NAVAL, AND AIR CLAUSES. Section I. Military Clauses. Chapter I. Articles 159-163. These clauses seek to reduce Ger- many's military forces to fixed limits. Chapter II. Articles 164-172. These clauses seek to establish equipment limits and exclude importations. They prohibit the manufacture of poisonous gases to Ger- many while demanding that Germany reveal to the principal 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 It may be remarked that although Germany is for- military service in Germany and place, restrictions on bidden to have universal military service, most of the training calculated to insure the maxima in military allied and associated powers, including the United forces previously referred to. States, have adopted it in their military programs. Chapter IV. Fortifications. Article 180. This clause provides for destruction and disarmament of certain German fortresses. Section II. Naval Clauses. » Articles 181-197. These clauses fix the number and It will be observed that no obligation has been type of vessels Germany may have, forbid the building assumed by the allied and associated powers to forego of others, forbid the construction by Germany of sub- the building of submarines. On the contrary, the marines, provide for the sweeping up of mines, fix the submarine occupies a conspicuous place on all the naval personnel, limiting it to voluntary engagements new naval programs, for long periods, and regulate wireless. Section III. Air Clauses. Articles 198-202. These clauses forbid Germany to oosscss 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. v INTERNATIONAL LAW AND THE TREATY OF PEACE. 37 THE TREATY. Section IV. Interallied Commissions of Control. Articles 203-210. Interallied commissions of con- trol shall be appointed by the principal allied and associated powers to enforce all the provisions of the preceding three sections. They may establish them- selves at the seat of the German Government and must receive every facility in their missions. Their orders shall be carried out at Germany's expense and the upkeep and cost of such commissions shall be borne by Germany. Section V. General Articles. Article 211. Germany must 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 repa- triation of prisoners of war as soon as possible after the peace, including German nationals who were ha- bitually resident in allied or associated countries. Article 217. Germany shall hear the whole cost of repatriation. Articles 218, 219. Prisoners of war and interned civilians awaiting disposal or undergoing sentence for offenses against discipline shall he repatriated despite that fact, but those awaiting disposal or under sen- tence for common-law crimes may be detained. Article 220. The allied and associated Governments reserve the right to make repatriation of German na- tionals conditional upon 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 prisoners and to punish any Ger- man 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 Gov- ernments which have been retained by Germany. By articles 3 and 18 of the armistice of November 11, 1918, immediate repatriation was stipulated for all interned civilians, including persons under trial or convicted, and hostages, as well as inhabitants of oc- cupied territories, who were nationals of allied or as- sociated Governments. There was no reciprocity. This expense is usually included in the maintenance of prisoners' accounts and settled by the payment of any balance due after comparison of accounts. (See Art. XIII, treaty of Portsmouth, 1905; see art. 224, infra.) This, being reciprocally applicable, is in accordance with practice and the law. Article 224. Repayment of sums due for mainte- nance of prisoners is reciprocally waived. Section II. Graves. 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- japonaise, p. Ill, n.) Is it conceivable that the allied and associated 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 invio- lability of private property? Article 225. The allied and associated Governments and Germany engage to respect and maintain graves of soldiers and sailors buried in their respective terri- tories. They agree to recognize any commission ap- pointed by an allied or associated Government for the It will be observed that allied and associated Gov- ernments alone are to be permitted to appoint rep- resentatives to identify, register, and care for the graves of their dead. The German Government is Senied these rights with respect to her dead. The 38 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. purpose of identifying, registering, caring for, or erect- ing suitable monuments over said graves. Furthermore, they agree to afford, as far as require- ments of public health allow, every facility for giving effect to requests that the bodies of their soldiers and sailors may be transferred to their own country. Article 226. Graves of prisoners of war and civilians shall be maintained as provided in article 225, and each Government shall furnish the other with all in- formation with respect to same. THE LAW. world was entitled to expect some magnanimity anil generosity at least in dealing with a subject of such peculiar sanctity. PART VII. PENALTIES. Article 227. The allied and associated powers pub- licly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offense against inter- national morality and the sanctity of treaties. A special tribunal will he constituted to try the accused, thereby assuring him the guaranties essential to the right of defense. It will be composed of five judges, one appointed by each of the following powers, namely, the United States of America, Great Britain, France, Italy, and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international moral- ity. - It will be its duty to fix the punishment which it considers should be imposed. 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 lie may be put on trial. 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 prob- ably can be — that the former Emperor is the author 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 ap- pears 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; he is arraigned "for a supreme offense against inter- national morality and the sanctity of treaties." There is no such offense in any penal code known to man, ami it is the most elemental principle of criminal jurisprudence that no one can be punished for acts which, when committed, did not constitute a crime. We see this principle expressly embodied in our con- stitutional 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 international criminal law, including as crimes offenses against international mor- ality 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 Governments can, as a precautionary measure of self-defense, place the former German Emperor in a position- where he can no longer menace their safety goes without saying. Such offenses as the former German Emperor is guilty of are essentially political in their character, the principal offense being the initiation of a war of aggres- sion against Europe. It is an elemental principle of the law of nations, embodied in municipal systems and in treaties uni- versally, 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 de- liver up such fugitive, but it is wholly for (hat State to decide. There is this to be said with respect to the rights of the allied and associated Governments in relation to the ex-Emperor, that if his situation in Holland con- stitutes a menace to the allied and associated Govern- ments of sufficient gravity, they may invoke the right of self-preservation in eliminating that menace. And under cases of extreme necessity the vindication of this right may allowably involve what would ordinarily amount to an infraction of the law of nations. (Hall, 268; 1 Westlake, 302.) INTERNATIONAL LAW AND THE TREATY OF PEACE. 39 THE TREATY. 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 specilied. Article 229. Persons guilty of criminal arts against the nationals of one of the ; Hied and associated powers will be brought before the military tribunals of that power. Persons guilty of criminal acts against the nation! Is of more than one of the allied and associated powers will be brought before military tribunals composed of members of the powers concerned. Tin' accused shall be entitled to have his own counsel. Article 230. The German Government will furnish all documents considered necessary to the discovery of offenders and the just appreciation of responsibility. THE LAW. 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. (Ilcrshey, pp. 144-146; yet see Queen v. Dudley et al., 14 Q.B.D., 273). The procedure here indicated appears fully to con- form to the leg. 1 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. (Speight, pp. 461, 462.) This is one of the most wholesome of all the pro- visions in the treaty of peace. It is essentially calcu- lated to vindicate that great branch of the law of nations comprised within the lavs of war. It will give an added sanction of the highest value to that law. No belligerent in the future • ill care to embark upon a course of deliberate disregard of the laws of civilized warfare with such a deterrent example before its eves. While mixed military tribunals are unusual 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. PART VIII. REPARATION. Section I. General Provisions. Articles 231-244, together with annexes 1-4. These articles, affirming Germany's responsibility for causing all the loss and damage suffered by allied and associ- ated Governments and their nationals, and instituting means, including a reparation commission, 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.) Article 232. Germany pledges complete restoration of Belgium, and, in addition, to make reimbursement of all sums borrowed by Belgium of the allied ami asso- ciated Governments up to November II, 1918, as a consequence of the violation of the treaty of neutrali- zation of 1839. 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. It may fairly be contended that the exaction of these conditions rests so far in a legal justification as to take them out of the category of indemnity. (See comment opposite art. 63.) Germany, being solemnly bound to respect the neutrality of Belgium, is properly denied the benefits that might accrue to a belligerent nol so hound and clothed with the rights of war in their full force. Hence it may be argued that all destruc- tion wrought, including that of the allied and associ- ated Governments in repelling Germany, all requisi- tions, contributions, and fines imposed, and all other acts prejudicial to Belgium must be repaired by Ger- many. No warrant exists, however, for the placing of the other allied and associated Governments in tne cate- gory with Belgium. Witn respect to them Germany was legally at war, and as a belligerent s le possessed ipso facto the right to enter upon and carry out destruction having a military object (see supra, oppo- site art. 63, par. 9); she possessed the war rights to levy requisitions, contributions, and fines (see supra, opposite art. 63, par. 10) . 40 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. 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 responsi- bility 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 duties as to persons and property, the allied and asso- ciated Governments wipe out the whole progressive development of the law and throw the world hack upon the doctrine of the unlimited right of the victoi obtaining through the Middle Ages. As the laws oi war permit of certain destruction of property, so they allow acts of violence against the persons of civilians under 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 hi all cases of injury and damage (see supra, opposite art. 63, par. 2). Civilians (noncombatants) have certain rights and duties arising in times of belligerency and their immunity from in- tentional injury is predicated upon the performance of those duties. Among those duties is abstention from all warlike acts. A civilian engaging in warlike con- duct is a war criminal. Many of such persons deserve the affectionate remembrance of their own countries, but their punishment is none the less the lawful right of the omeny. (Spaight, 335 et seq.) If it is proposed to enforce reparation in behalf of civilians of this class, described in law as unlawful belligerents, as well as in behalf of those suffering from acts in excess of the lawful exercise of power, the whole benign system of principles relating to combatants and noncombatants and denning their rights and duties is confounded. It does not constitute progress; it does constitute reaction. (See Spaight, Ch. Ill, pp. 3-1-72.) Annex III. (1) Germany recognizes the right of the allied and associated powers to replacement, 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 1,600 tons and upward; one- half of all ships between 1,000 and 1,600 tons; one- quarter of all steam trawlers and one-quarter of all • fishing boats. The right to capture and destroy an enemy's mer- chant ships, under certain limitations, including a gen- eral obligation to provide for tiie safety of passengers and crew, is a settled one under the laws of maritime warfare. (II Oppenheim, 24:2 245: II Westlake, 309- ;!1 :-v These limitations include a .summons or warning as a condition precedent to any resort to force, a qualifi- cation constantly and deliberately violated by Ger- many in her submarine warfare. In such instances, it may he said generally, the destruction was unlawful and involves liability to make compensation. But no distinction is made, so far as replacement is concerned, with respect to those vessels lawfully warned and sunk during resistance or flight and those prizes destroyed at sea under lawful conditions. So far as the latter category is concerned, replacement can be viewed onty as indemnity; not as reparation. INTERNATIONAL LAW AND THE TREATY OF PEACE. 41 THE TREATY. (8) Germany waives all claims against allied and associated Governments in respect of the detention, employment, loss or damage of any German ships. (9) Germany waives all claims as to vessels cargoes sunk by the allied and associated powers. THE LAW. As to replacement of fishing boats of the allied and associated Governments, the law recognizes coast- fishing vessels alone as exempted from capture and destruction,* and then only on condition of their inno- cent employment. 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 circumstances no immunity could attach to them under the law. (Hall, Int. Law, 6th ed., pp. 444-44.5; Pacquette Habana, 195, U. S., 677.) To enforce replacement in such cases must neces- sarily constitute indemnity, rather than reparation for wrong done. As to the private property in ships to be handed over, see comment opposite article 74. German vessels found in the territorial waters of most of the States at war with Germany were taken over by such States under a right to use them, though with an implied obligation to restore them at the peace and make compensation. They may not be confiscated. (See Report of American Delegation to Hague Conference, 1907, cited supra, opposite art. 133.) So far, therefore, as the taking over of such vessels otherwise innocent is concerned, it must be considered as indemnity, and not as reparation. One of the results is a repudiation of the age long policy of the United States looking to the approxi- mation 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, Dec. 5, 1899; Roosevelt's annual message, Dec. 7, 1903.) 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. (1), (2), (3), (4), (5). These paragraphs provide for the immediate delivery by Germany to the allied and associated powers, through the reparation commission, of animals, machinery, tools and like articles which have been seized, consumed, or destroyed by Germany in allied and associated countries, lists of such arti- cles desired to be filed by allied and associated Gov- ernments. Machinery, equipment, tools, and the like are to be demanded not in excess of 30 per cent of the quantity of such articles in any one establishment 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 com- pelled 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 art. 63, pars. (8) and (10).) As to machinery, equipment, tools, and the like, these may also be seized under requisition. 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 com- pensation. Liability to make compensation appears to be recognized as to certain classes of private prop- erty taken over by an enemy force for use. (Juragua Iron Co. v. U. S., Sup. Ct., Feb. 23, 1909.) All ofjihese distinctions are ignored in the articles opposite. 42 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. THE LAW. Section II. Special Provisions. Articles 245-246. Those clauses provide for restitu- tion by Germany of trophies, works, of art, etc., car- ried away from France in 1870-7] ; 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 manu- scripts, incanabula, books, and other objects in num- ber and value corresponding to those destroyed. Under the provisions of Part VIII a reparation commission is instituted, to be composed of one dele- gate each of the United States, Great Britain, France, and Italy, with a delegate from Japan, Belgium, or the Serb-Croat-Slovene State sitting under specified conditions as the fifth member. To this commission is confided the power to enforce the various stipulations for reparation and indemnity. The commission may fix, as a tost installment (whether 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 damage shall lie concluded ami 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 re- sources to reparation relating to merchant shipping, to physical restoration, 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, Germany shall make restitution in cash of cash taken away, seized, or sequestered, and shall make restutition of animals, objects of every nature, and securities taken aWay, seized, or sequestered. Germany agrees irrevocably to the possession and exercise by the commission of the power and au- thority set' out in the treaty, and Germany undertakes to puss, issue, and maintain in force any legislation, orders, and decrees that may be necessary to give complete effect to the treaty provisions. Tne commission may appoint all necessary officers, agents, and employee- required, and may delegate authority to such officers. All its proceedings shall be secret unless it should decide otherwise fur special reasons. Germany may present arguments as to her ability to pay. The commission snail not be bound by any particular system or rules of law, but shall be guided by justice, equity, ami good faith. The commission may determine that Germany shall cover by way ot guaranty by an equivalent issue of bonds any amount of proved claims not paid in gold, ships, or otherwise. It shall examine the German sys- tem of taxation with a view to seeing that it is fully as heavy proportionately as that of any power repre- sented 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 under- taking 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 control of the commission. 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 u lquestion- ably settled law that property of this character is in- violable. Yet the museums of Europe still hold quan- tities of precious works of the class of specially pro- tected property representing the spoils of war. 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 in- definite period at least Germany will cease to be a fully sovereign nation. Particularly is this indicated in the undertaking of Germany to pass, issue, and maintain any legislation, orders, and decrees which may be notified to her as necessary to give effect to the treaty. INTERNATIONAL, LAW AND THE TREATY OF PEACE. 43 THE TREATY. In case of any voluntary default by Germany the allied and associated Governments may take any action they deem necessary, Germany agreeing not to regard any such measure as acts of war. When all the amounts due from Germany and her allies or the decisions of the commission have been discharged, the commission shall he dissolved. THE LAW. Part IX. FINANCIAL CLAUSES. Article 248. It is declared the cost of reparation to he 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 associated armies, including the keep of men and beasts, Lodging, pay and allow- ances, and the cost of requisitions resorted to by the armies of occupation. Article 254. Where any payment is to be made on account of the assumption of a portion of the German debt chargeable to i-vt\a\ territory, it shall he made to the reparation commission and not to Germany. Article 256. Powers to which German territory is ceded shall acquire all property and possessions situ- ated therein belonging to the German Empire, to Ger- man States, and to the former emperor ami other royak personages. The acquiring State shall pay the equivalent of the value fixed to the reparation com- mission for the credit of Germany. Alsace-Lorraine and territories ceded to Belgium are made exceptions as to the requirement of payment. Article 257. Where German territory is confided to a mandatory no portion of the public debt will be assumed nor shall any payment he made or credit. given on account of public proper! \ taken over bj the mandatory. Article 258. Germany renounces all rights accorded to I er or her nationals by treaties, conventions, or agreements of whatsoever kind, to representation upon or participation in the control or administration of commissions. State hanks, agencies, or other financial or economic organizations of an international char- acter in any allied or associated country or in Austria, Hungary, Bulgaria, or Turkey. Article 259. Germany will deliver within one month to such authority as the principal 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 transferred by Austria-Hungary a-- collateral for loans. 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 he dis- posed of by the principal allied and associated powers in a manner to he determined by them. Article 260. Germany, on demand of the reparation commission, will become possessed of any rights or interests of German nationals in public utilities or concessions operating in Russia, China, Turkey, Aus- tria, Hungary, and Bulgaria, or in any territories of these States, and transfer the same to the reparation commission. Germany shall be responsible for in- Sec comment on requisitions, opposite arts. 42S-432 See comment opposite art. 39. See comment opposite art. 55. Thus are extinguished all of the once ambitious plans of the German Emperor in the southeast of Europe and in Asia Minor, including 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 renunciation is made. It will he observed that China, one of the associated and allied powers, is placed in the category <>f enemy countries so far as contemplated projects of economic exploitation are concerned. 44 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. demnifying her nationals thus dispossessed and shall- receive credit on the reparation account for the value of rights transferred. Article 261. Germany will transfer to the allied and associated powers any claims to payment or repay- ment by Austria, Hungary, 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 exceptional and uniform privileges to allied and associated Gov- ernments in the matter of duties and charges on their products and manufacture-; entering Germany. For a period of five years natural and manufac- tured products of Alsace-Lorraine shall be exempt from all customs duties. For a period of three years Polish products shall enjoy like exemption. A similar right is reserved for Luxemburg. Chapter II. Shipping It can not be doubted that these provisions go far toward limiting the sovereignty of Germany. In the absence of reciprocity these economic meas- ures are in the nature of indemnity. Article 271. As regards sea fishing, coasting trade and towage vessels of allied and associated powers shall enjoy most-favored-nation treatment in German territorial waters. Article 272. Germany agrees that all rights of in- spection and police shall, in the case of fisning boats of the allied powers, be exercised solely by snips of those powers in North Sea fisheries. This is clearly a restriction placed upon the internal sovereignty of Germany. By the international convention of May 6, 1882, for the regulation of the police of the fisheries of the North Sea, Great Britain, Belgium, Denmark, France, Germany, and Holland agreed upon certain reciprocal rights of visiting vessels of signatory States by special cruisers. Germany is thus ejected from these ar- rangements. Chapter III. Unfair Competition. Article 274. Germany undertakes to adopt legis- lative and administrative measures to repress expor- tation, manufacture, distribution, or sale in its territory of all goods bearing any marks, names, devices, or description calculated to convey a false indication of origin, type, or nature of such goods. Chapter IV. Treatment of Nationals of Allied and Associated Powers. Article 276. Germany undertakes: (a) Not to subject nationals of allied and associated 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 re- striction not applicable to nationals of the most- favored nation; (c) Not to subject their property, rights or interests to any charge or tax not imposed on its own nationals or their property. Article 278. Germany agrees to recognize any new nationality acquired by her nationals under the laws of allied and associated powers or by treaty, and to regard them as having severed their allegiance. Compare with action taken in articles 122, 143, 150. See comment opposite article 37. INTERNATIONAL LAW AND THE TREATY OF PEACE. 45 THE TREATY. Article 279. Germany undertakes to approve the designation of consuls general, consuls, vice consuls, and consular agents by allied and associated powers and to admit them to exercise their functions in Ger- man ports and towns. THE LAW. The matter of receiving a particular foreign consul (through issuing an exequatur) or dismissing him (through revoking the exequatur) is a right to be exercized wholly at the pleasure of the receiving State, though exequaturs are rarely revoked without cause. It appears, however, that Germany is denied the 'right to decline to receive a designated* consular officer even though he be persona non grata. Chapter V. General Articles. Article 280. Obligations imposed on Germany 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 extended for five years. Article 281. If the German Government engages in international trade it shall not be deemed to have any rights, privileges, or immunities of sovereignty in respect thereof. Section II. Treaties This proposition is founded upon such elemental principles that it seems hardly necessary to have referred to it. Article 282. There are here designated 26 multi- lateral treaties, conventions, and agreements of an economic and technical character, which, it is de- clared, shall alone be applied as between Germany 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 sys- tem, pharmacopceial formulae for potent drugs, agri- culture, the establishment of a concert pitch; for the suppression of white phosphorus in the manufacture of matches, obscene literature, white slavery and phyl- loxera; and relating to other subjects. Articles 283-285. Further international treaties are designated herein which are to come into force condi- tionally, including the postal, telegraphic, and radio- telegraphic conventions. Article 286. The conventions of 1883 and June 2, 1911, for the protection of industrial property; of Berne, 1886, for the protection of literary and artistic work; and of 1908 and 1914, relating to the same sub- jects, are revived, subject to exceptions and restric- tions contained in the treaty. The recital of international agreements of general concern set out as surviving the war and binding Ger- many, looks to article 24 of Part I (the covenant of the league of nations) of the treaty, where it is declared all international bureaux shall be placed under the direction of the league. Some idea of the magnitude of the proposed league's labors in fields other than those political may be ob- tained from this article. To what extent these conventions would be ener- gized with a resultant conflict with internal 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 corps of experts and agents. By paragraph 15 of Annex I, Section IV, article 297, the industrial, literary, and artistic property of German nationals within the territories of allied and associated Governments 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 of the per- manent protection of these classes of private property and can not be considered as abrogated by the super- vention of war, although their operation between signatories was necessarily suspended. (5 Moore, 376- 377.) At the times of negotiation 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 indefinite dura- tion agreed on as to the continuance of such treaties. (See 3 Malloy, Treaties, etc., art. 17£, p. 375.) The action of the allied and associated Governments in respect of Germany is plainly, therefore, a violation of the treaty. What, it may be asked, is the status of he dozent other highly important Hague conventions, including the whole code of the law of land warfare? All except that for the pacific settlement of international dis- putes appear to be discarded. (See comment opposite art. 13.) 46 INTERNATIONAL, LAW AND THE TREATY OF PEACE. THE TREATY. Article 287. The convention of The Hague of July 17, 1905, relating to civil procedure is revived, though not applicable to France, Portugal, and Roumania. Article 288. Special rights and privileges granted to Germany by the treaty of December 2, 1899, in Samoa shall be considered terminated as of August 4, 1914. Article 289. Each allied and associated power shall notify to Germany the bilateral treaties or conventions it wishes to revive with Germany. Treaty and treaty provisions in conflict with the treaty of peace shall not be revived. All bilateral treaties not notified as revived within six months shall remain abrogated. The above provisions shall apply even as between an allied and associated power that was not at war with Germany. THE LAW. This was the tripartite treaty between the United States, Great Britain, and Germany, relieving the United States from an entangling and vexatious joint control of the Samoan 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 granted. (Com- pare this article as to date of termination of Ger- many's right with art. 156.) 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 sus- pended or annulled so as to require renegotiation. This much is certain: (a) Dispositive treaties, setting up a permanent condition of things, such as those of cession, boundary, independence, neutrality, and the like, are unaffected. (Soc. for Prop, of Gospel v. New Haven, 8 Wheat.; 464, 494; Scott, Cases. 428.) (b) Law-making treaties to which third powers are parties, such as The Hague, 1S99 and 1907, Postal Union, Industrial Property, and the like, remain in force, though suspended in operation as between belligerent signatories. (Hershey, Essentials of Put). Int. Law, p. 361.) (c) Conventions entered into with a view to hos- tilities become operative. (d) Political treaties, such as alliance, arc abro- gated. (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.) The United States maintained in 1898 that the last- mentioned class of treaties was merely suspended, but yielded to Spain's insistence that they be con- sidered abrogated, in accordance with the Spanish decree of April 2.3, 1S9S. 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. Uruguay, Ecuador, and Bolivia, who are allied and associated powers, did not declare war on Ger- many, but merely severed diplomatic relations. To deal with them as belligerents with respect to their treaty relations is most unusual. The situation might have been met with more consistency by a declara- tion that Germany agreed to a revision 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 Ger- many on the part of these three States which have not been at war with Germany is even more re- markable. INTERNATIONAL, LAW AND THE TREATY OF PEACE. 47 THE TREATY. Article 290. Germany recognizes that all treaties, agreements, etc., concluded with Austria, Hungary, Bulgaria, or Turkey since August 1, 1914, are abro- gated. Article 291. Germany undertakes to secure to allied and associated Governments and nationals all privi- leges granted to Austria, Hungary, Bulgaria, or Tur- key or their nationals so long as such privileges are enjoyed by the latter. Article 292. Germany recognizes that all treaties and agreements concluded with Russia or with Rou- mania are abrogated. Article 293. Any concession, privilege, or favor which any allied or associated power, Russia, or Rus- sian State 1 as been forced to grant Germany or a German national since August 1, 1914, by reason of military 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 neutrals in the war, so long as such rights remain in force. Article 295. Those of the high contracting parties who have not yet signed and ratified the opium con- vention of January 23, 1912, agree, to bring the con- vention into force within 12 mouths. Ratification of the present treaty shall be considered ratification of the opium convention. Section III THE LAW. See comment opposite article 12S. Through this provision will be revealed the price, if any, paid by Germany for the neutrality oi any European State. The acquisition of such rights and privileges, if any exist, can hardly be justified as repa- ration. Article 296. This section, dealing with debts due to and from the respective nationals of allied and asso- ciated Governments and Germany, has been referred to in article 74, supra. Section IV. Property rights and interests See comment opposite article 74. Article 297. This section, declaring the purpose of universal retention of all private German property in the hands of allied and associated Governments and elsewhere, while committing Germany to restitution and compensation in the matter of private property of allied and associated nationals, has been referred to in article 74, supra. Section V. Contracts, prescriptions, judgments. See comment opposite article 74. Article 299. Contracts between enemies shall be considered dissolved, except in respect of a. debt aris- ing out of an act done or money paid thereunder. Other exceptions are indicated. The United States, Brazd, and Japan are excepted from the operation of this article. Article 300. This deals with periods of prescription or limitation of right of action as to contracts excepted from the general policy of dissolution. The United States Supreme Court has repeatedly 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. (Williams v. Paine (1887), 169 U. S., 55). And so far as resident alien enemies are concerned, contracts with them are wholly unaffected. (Mc- Veigh v. 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 Oppen- heim, 138.) 48 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. Article 301. As between enemies, no negotiable in- strument made before the war shall be deemed to have become invalid by reason 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 recognized by Germany as final. Judgments of German courts shall not be thus recognized. Axxicx. — General Provisions. The following classes of contracts are excepted from dissolution without prejudice to the right of confisca- tion, referred to in article 297: (a) Those having as their object the transfer of real estate or personal property where the object had passed before the supervention of war. (J) Leases and agreements for leases of land and houses. (c) Contracts of mortgage, pledge, or lien. (d) Concessions concerning mines, quarries, or de- posits. (e) Contracts between individuals or companies and States, Provinces, or other similar juridical persons, and concessions granted by States, Provinces, or other juridical persons. These are excepted from dissolution without preju- dice 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 Liver- pool Cotton Association. No claims on the ground of sale of security shall be admitted if the creditor acts in good faith. If a person, before or during the war, became liable on a negotiable instrument in accordance with an undertaking of a person who subsequently became an enemy, the latter shall remain liable. THE LAW. It ajjpears, therefore (subsection (e), Annex 1), 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 State- that the}' may not be. By every nation, whatever its form oi government, the confisca- tion of debts has long been considered disreputable. (Wilson, .!.. in Ware v. Hylton, L796, 3 Dall., Km. 281.) The conqueror is denied the right t i confiscate private property. on the ground that it would violate "the modern usage of nations which has become law." .Marshall, C. J., U. S. r. Percheinan. 7 Peters, 51.) (See also Planter's Bank v. Union Bank, 16 Wall., 483; Williams v. Bruffy, 96 IT. S., L76, lsii-lSS.) 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 competence under Sections III, IV, V, and VII, relating to debts, prop- erty, rights and interests, contracts, prescriptions and judgments and industrial property. The mixed arbitral tribunals are primarily an ap- pellate body to which disputes arising in the "clearing offices" may be taken. Appeals may also be taken to these tribunals 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 rule- of procedure as are in accordance with justice and equity. Section VII. Industrial Property These bodies do not deserve the appellation of "tribunals" in view of the limitations upon their powers to decide controversies in accordance with law. This inability is inherent in the settlement which is the negation of law. It will be observed each is em- powered 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, establish- ing a court of arbitral justice, the achievement of the American delegation. The object of its establishment was to replace in- ternational settlements based on compromise and ex- pediency by settlements founded upon judicial deter- minations, to the end that the universal reign of law might be promoted. Articles 306-311. Conventions for the protection of industrial, literary, and artistic property mentioned in article 286 shall be reestablished between the high contracting parties. Nevertheless, all acts done, or to be done, in allied and associate:! countries in respect of such property of German nationals shall have full force and effect. The subject of the protection of industrial, literary, and artistic property has been referred to in the dis- cussion of article 29S and the annex thereto. The policy of allied and associated countries with respect to such German property, including patents, during the war. was, with the exception of that in liquidation, to permit its use under an obligation to INTERNATIONAL, LAW AND THE TREATY OF PEACE. 49 THE TREATY. No claims on account of such acts shall be allowed. Any sums due for the use of such German property shall be treated as other Gorman 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. 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 Insurance in Ceded Territories. Article 312. Germany undertakes to transfer to any power to which German territory 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 musl be applied to the performance of the obligations arising under such insurances. PART X'. AERIAL NAVIGATION. Articles 313-320. Aircraft of allied and associated powers shall have full liberty of passage and landing over and in the territory 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 associated powers. Any regulations applied by Germany to aircraft of allied and associated powers shall apply equally to German aircraft. As regards commercial air traffic, aircraft of allied and associated powers shall enjoy most-favored- nation treatment. Germany shall require all German aircraft flying over her territory to comply with all rules as to lights, signals, etc., laid down in the convention relative to aerial navigation concluded between allied and asso- ciated Governments. All of these obligations remain in force until Jan- uary 1, 1923, unless before that time Germany is admitted to the league of nations or shall lave been authorized to adhere to the convention relative to aerial navigation. The convention relative to aerial navigation con- cluded by the allied and associated powers recognizes at the outset that every State possesses complete and exclusive jurisdiction in the air space above its ter- ritory ami territorial waters, and it deals with the subject by analogy to customary control exercised over territorial waters, recognizing the right of inno- cent passage, making requirements for registry, na- tionality markings, logs, lights, signals, etc. By the terms of articles 313-32C German sover- eignty over her aerial space is set aside, at least, until January 1, 1923. PART XII. PORTS, WATERWAYS, AND RAILWAYS. Section 1. General Provisions. Articles 321-326. Germany undertakes to grant freedom of transit through her territories by rail, waterway, or canal, to persons, goods, vessels, car- riages, wagons, and mails coming from or going to any allied or associated power. They shall be sub- jected to no transit duty, delays, or restrictions, and shall be entitled to rational treatment. Goods in transit shall be exempt from customs and similar duties. No control shall be maintained over transmigration traffic beyond that necessary .to insure that passen- gers are bona fide in transit. No discrimination or preference on duties, charges, or prohibitions relating to importations or exporta- tions from her territories may be made. Nor may any surtax against the ports or vessels of any allied or associate! power be levied. The transport of perishable goods shall be promptly facilitated. S. Doc. 156, 60-1 i See comment opposite articles 264-270. 50 INTERNATIONAL, LAW AND THE TREATY OF PEACE. THE TREATY. Seaports of allied and associated powers are entitled to all favors and reduced tariffs granted on German railways or navigable waterways for the benefit of German ports or any port of another power. The provisions of these articles are subject to re- vision by the council of the league of nations after five years. Failing such revision, no allied or associated power can claim the benefits of these articles without reciprocity after five years. Section II. Navigation. Chapter I. Freedom of Navigation". THE LAW. Article 327. Nationals of allied and associated powers and their vessels shall enjoy in all German ports ami inland water routes the same treatment as German nationals, vessels, and property, including transport of goods and passengers to and from ports and places in Germany. Equality of treatment shall extend to all facilities and charges. Should Germany extend preferential treatment to one allied or associated power it shall automatically extend to all. These privileges shall l>e subject to revision by the council of the league of nations after live years; failing such revision, their enjoyment shall depend upon reciprocity. The exclusive right of a State to control its coasts ing trade, including that in inland waters, is an essential incident to its territorial supremacy. The law of nations, therefore, recognizes the right of a State to exclude foreign vessels from such navigation and trade. (1 Oppenheim, pp. 257, 258.) This right was formerly held to apply even as between a state 766.) and its colonies. (See Wheaton, 5th ed., pp. 765, The provisions of article 327 constitute a further invasion of German sovereignty during 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 the Ibid. maintenance of free zones in German ports on August See article 65. 1, 1914, and the granting of economic privileges in the same, as well as in others established by the treaty. The duration and conditions arc the same as men- tioned supra, article 327. Chapter III. Clauses Relating to the Elbe, the Oder, the Nieman and the Danube. (l) general clauses. Articles 331-338. The rivers mentioned in the title are declared international within certain boundaries, together with lateral canals and channels. The nationals, property, and flags of all powers shall be treated on a footing of perfect equality. Neverthe- less, German vessels shall not, for live years, carry passengers or goods between ports of allied or asso- ciated power,, without the authority 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 controlling act when approved by the league of nations. Article 339. Germany shall rvAc to allied and associ- ated powers within three months after ratification a proportion of tugs and vessels registered in ports of river systems referred to i .: article 331, in addition to those mentioned (Part VIII, Annex III), and including facilities to be determined by an arbitrator or arbitra- tors nominated by the United States, due regard being paid to the needs of the parties concerned. Indemnification of private owners shall be a matter for Germany to deal with. Compare with internationalization of Rhine and Scheldt by congress of Vienna, 1815. (Martens, N. R. II, pp. 370, 427: Wneaton'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 maintenance of navigation, but for revenue as well. (1 Moore, sec. 134.) The principle may now be said to be settled, how T - ever, 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. VII.) 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 indemnity and the purpose of allied and associated powers to consolidate their economic advantages in Europe. INTERNATIONAL, LAW AND THE TREATY OF PEACE. 51 THE TREATY. THE LAW. (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 com- missions and fixing representation upon the commis- sions. Articles 342-345. Upon request by a riparian State the league of nations will institute an international commission for the Nieman composed of the repre- sentative from each riparian State and three others. Such commissions will prepare projects for revision of systems in force in accordance with the general con- vention referred to in article 338. (3) SPECIAL CLAUSES RELATING TO THE DANUBE. Articles 346-353. The European commission of the Danube reassumes the powers it possessed before the war. Nevertheless, as a provisional measure, Ger- many shall not be representeed thereon. Where the competence of the old commission ceases an interna- tional commission, referred to in article 331, shall direct the administration, composed of two German . one representative of each other riparian State, and one representative of each uonriparian Male repre- sented on the old commission. The mandate given Austria-Hungary by the treaty of Berlin of 1878 to carry out works at the Iron Crates is abrogated. Germany shall make restitution, reparation, and indemnities for damages inflicted on the European commission of the Danube during the war. The European Danube commission was instituted by the treaty of Paris of L856, and reconstituted by the treaty of Berlin, 1878, and again in London in 1883, It was made independent of the territorial govern- ments its members, offices, and archives enjoying inviolability. Its competence extended from Ibraila downward to the mouth of the Danube. (I Twiss, see,. 150 152.) During the war the commission ceased to function owing to Germany's violation of the treaty. It was to all intents ami purpose- abolished with Germany substituted in its stead. Chapter IV. Clauses Relating to the Rhine and the Moselle. Articles 354-356. The convention of Mannheim of October 17, 1868, creating a central commission of the Rhine, shall become operative, subject to modifica- tion 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, Switzer- land, Great Britain, Italy, and Belgium. Certain articles of the Mannheim convention are abrogated in the interest of free navigation. Article 357. Within three months from date of notice Germany shall cede to France tugs anil vessels registered in Rhine ports, from among those remain- ing after .satisfying previous articles, including in- stallations, berthing and. anchorage accommodations, or shares in German Rhine navigation companies, the amounts to be determined by an arbitrator or arbi- trators appointed by the United States. The same shall apply to cessions on the port of Rotterdam. Credit shall be allowed on the reparation account. Article 358. Subject to provisions in preceding articles, France shall have the exclusive right to power derived from German works on the river within the two extremes of the French frontier. A payment 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 recognize the right of France to fix the limits of necessary sites and occupy lands incident to the building and operation of wiers which France, subject to the central commission, may es- tabhsh. The Rhine became free as an international river by a declaration of the congress of Vienna, but the en- joyment of this status was long in question owing to a dispute over phraseology concerning the rights of regulation confided to coriparian powers. In the settlements attempted in the present treaty it is questionable whether the coriparian States art' recognized in the administration to the extent to which principle and custom entitle them. See Part VIII, Annex III, following See comment opposite article 339. article 242. These provisions are plainly in contravention of the understood rights of a coriparian State. 52 INTERNATIONAL LAW AND THE TREATY OF PEACE. • THE TREATY. THE LAW. Germany shall make it her business to indemnify any proprietors burdened with such servitudes. Article 361. Germany shall construct in her territory the necessary portion of a deep-draft Rhine-Meuse Canal should Belgium desire same within 25 years. Article 362. Germany will not oppose the extension of the jurisdiction of the central Rhine commission to the Moselle, below the Franco-Luxemburg frontier, and to the Rhine above Basle to Lake Constance and to lateral canals. Chapter V. Clauses Giving the Czecho-Slovak State the Use of Northern Ports. Articles 363-364. Germany shall lease for 99 years to These clauses are reminiscent of the operations of the Czecho-Slovak State areas in Hamburg and Stettin, the European powers in China beginning in 1898. to be placed under the general regime of free zones. (See 5 Moore, 471 et seq., 534.) Delimitation of such areas, etc., shall be. under the control of a commission consisting of one German, one Czecho-Slovak, and one British representative. Section III. Railways. Chapter I. Clauses Relating to International Transport. Articles 365-369. Germany submits to a great This is a further extension of economic advantage, variety of regulations intended to extend the economic no reciprocity being granted, privileges of allied and associated Governments on German railways, the privileges to be revised within five years by a general convention which will bind Germany whether she adheres or not. Germany shall cooperate in establishing 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 specif 1 regulations shfll be applied to such service by Germauy which will impede or delay it. Chapter II. Rolling Stock. Article 370. Germany will adapt her railway sys- tems to the physical requirements of allied and asso- ciated powerSj the rolling stock of the latter to enjoy equal treatment with the German, as regards move- ment, upkeep, and repairs. Chapter III. Cession of Railway Lines. Article 371. Railways in ceded German possessions shall be handed over in good condition and with com- plete rolling stock; as to lines having no rolling stock, commissions 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 frontiers; for the con- struction of new lines and the conditional denuncia- tion 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 revise 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. INTERNATIONAL, LAW AND THE TREATY OF PEACE. 53 THE TREATY. THE LAW. 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 Germany and limiting the rights of loading and unloading of goods and passengers to certain ports specified by Germany. PART XIII. LABOR. PART XIV. GUARANTIES. Section 1. Western Europe. Article 428. As a guaranty for tlie execution of the present treaty, the German territory situated to the west of the Rhine, together with the bridgeheads will be occupied by allied and associated troops for a period of 15 years from the coming into force of the present treaty. Article 429. If the conditions of the present treaty are faithfully carried out by Germany the occupation referred to in article 42.8 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 tie end of 10 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, running about 4 kilometers south of Aix-la-Chapelle, etc (3) At the end of 15 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 arc not considered sufficient by the allied and associated Governments, the evacua- tion of occupying troops may be delayed to the extent regarded necessary to obtain the required guaranties. Article 430. If during occupation or after the expi- ration of 15 years the reparation commission finds that Germany refuses to observe the whole or part of her obligations under the treaty, the whole or part of the areas specified will be reoccupied immediately by the allied and associated power's. Article 431. If before the expiration of 15 years Germany complies with all the undertakings resulting from the treaty, the occupying forces will be withdrawn immediately. Article 432. All matters pertaining to occupation not provided for in the treaty shall be regulated by subsequent agreements which Germany undertakes to observe. The articles respecting guaranties can best be dealt with in their entirety. Many means have been resorted to in the past for compelling performance of the conditions of peace imposed. They have included placing the engage- ments under the aegis of religion, with the kissing of the cross and the administration of the oath (Bonfils, Paris, 1912, p. 536), the giving and receiving of hostages, as when Henry VIII gave to Francis I in 1527, 2 archbishops, 11 bishops, 8 nobles, as well as 13 towns; the giving of a pledge as when the diamonds of the crown of Poland were given to Prussia; guar- anties by third States, as that in the treaty of neutrali- zation of Belgium of April 19, 1839, relating to the separation of the latter from Holland. (Termination 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 guaranties 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 occu- pation of positions along the French frontier with a force of 150,000 men, holding 20 fortresses. The maximum period of occupation was limited to 5 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, cus- toms, and police, were to continue in the occupied area as before. Evacuation did no hinge on the pay- ment of the indemnity but primarily upon the restora- tion of internal tranquility and the suppression of revolutionary agitation which the grand allies feared might spread to their own countries. (A. Sorel, Histoire, Paris, 1875, Vol. II, pp. 355-356.) In fact the indemnity 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 follows: 500,000,000 in 30 days; 1,000,000,000 within 1 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 occupation 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 54 INTERNATIONAL LAW AND THE TREATY OF PEACE. THE TREATY. 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 guar- anty 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 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 "rep- aration" the term "indemnity" is more fitting. Reparation connotes amends for legal wrongs; in- demnity 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 guaranty whereby allied and associated troops may reoci upy German territory in any case of default withiD the fifteen years or afterwards, running into an indefinite future with the obligations imposed upon Germany. Practically this reservation is of little value without the league of nations or some such promise of per- manence to the concert of allied and associated Eowers. History attests that such coalitions are of rief duration, that the interests even of allies conflict too frequently and too vitally in the vicissitudes of even a lew years, to permit of expectation of perma- nency. Wherefore, and with the further object of re- cementing amicable relations as quickly as possible, practical 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 au- thorizes the levying of requisitions upon the inhabit- ants, forbidden to Germany by Article VIII of the treaty of 1871. Section II. Eastern Europe. Article 433. As a guarantee of the provisions abro- gating the treaty of Brest-Litovsk and all other agree- ments 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 Germany's frontiers as soon as the prin- cipal allied and associated governments think the moment suitable. These troops shall abstain from requisitions and shall in no way interfere with meas- ures for national defense adopted b\ the provisional governments of Esthonia, Lavia, and Lithuania. No other German troops shall be sent to these territories. Part XV. MISCELLANEOUS PROVISIONS. Article 434. Germany undertakes to recognize the full force of treaties of peace and additional conven- tions of the allied and associated powers with Ger- many's allies, and to recognize all disposition of terri- tories and the establishment of new States. INTERNATIONAL LAW AND THE TREATY OF PEACE. 55 THE TREATY. 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 situation of a portion of Savoy and the Gex district, established by the Congress of Vienna in 1815. Switzerland is willing, apparently, to concede economic readjustments, provided the guaranties of neutrality 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. 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 religious missions of German societies and persons. Such property will be handed over to hoards of trustees appointed by the Governments concerned. 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 event which occurred at any time before the coming into force of the present treaty. Article 440. Germany accepts and recognizes 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 under- takes to put forward no claims. The allied and associated powers, however, reserve the right to examine all decisions and orders of Ger- man prize courts, whether affecting the rights of na- tionals of allied and associated powers or neutral States. Germany undertakes to give effect to any recommen- dations made after examination of such cases. 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 he exemption from transit dues, in 1S60 France acquired Savoy from Sardinia, sub- ject (o these servitudes. It appears that Switzerland is willing to trade, sub- mitting to economic readjustments, if the United States can be induced to join in the guaranty of her neutrality. This guaranty does not extend to the independence of Switzerland, hut it does include the integrity and inviolability of Swiss territory. It is a collective guaranty on the part of Great Britain, Austria, France, Portugal, Prussia, Spain, and Russia. The allied and associated powers refer to this guar- anty in article too, 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 "regional understand- ing," the validity of which is not affected by the covenant. This relaxation of the policy of universal con- fiscation of German property appears to he an after- thought, a concession to arguments of German pleni- potentiaries which could not in conscience be with- held. Thus all pecuniary claims which Germany might prefer against allied' or associated powers are swept into oblivion. In concluding peace, the signatory powers pledge themselves either impliedly or expressly to regard as settled not only all of their differences existing before the war and leading to it, hut also all such mutual claims as may have arisen during the war in connec- tion with the' conduct of hostilities. Although treaties of peace in the past have dealt with captures where no judgment of condemnation has been pronounced, none has ever contemplated a reopening of cases where a judicial determination has been arrived at. It was accepted that such determination, once pro- nounced, forever settled the property rights in question. The article in question is therefore most unusual, but may be justified to the extent that it contem- plates a reconsideration of the many cases involved in the unlawful destructions of merchantmen by German submarines, and particularly any dicta attempting to uphold them as valid. The peace conference might very wisely have taken up the whole subject of prize la-w in this connection, calling into life The Hague convention of 1907, estab- lishing an international court of prize and making provision 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 general immunity of private property as a principle of the law of maritime warfare. (7 Moore, 461.) c V ~