Revisions of the Treaty of Versailles 9780231889766

Table of contents :
PREFACE
CONTENTS
ABBREVIATIONS
PART ONE. THE NATURE AND SCOPE OF PROVISIONS DESIGNED TO EFFECT CHANGES IN THE TREATY OF VERSAILLES
CHAPTER I. INTRODUCTION
CHAPTER II. RECONSIDERATION OF TREATIES
CHAPTER III. REVISION OF PERMANENT CLAUSES IN PART XII
CHAPTER IV. TREATY MODIFICATION BY AMENDMENTS
CHAPTER V. CHANGES APPLICABLE TO PROVISIONAL STIPULATIONS
CHAPTER VI. MACHINERY FOR MODIFYING THE SETTLEMENT OF 1919
PART TWO. REVISIONS OF THE TREATY OF VERSAILLES
CHAPTER VII. AMENDMENTS TO PART I: THE COVENANT OF THE LEAGUE OF NATIONS
CHAPTER VIII. A M E N D M E N T T O P A R T XIII: I N T E R N A T I O N A L LABOR O R G A N I Z A T I O N
CHAPTER IX. ASPECTS OF T R E A T Y MODIFICATION BY AMENDMENT
CHAPTER X. REVISIONS OF PART VIII: REPARATION
CHAPTER XI. CONCLUSIONS
BIBLIOGRAPHY
INDEX

Citation preview

REVISIONS THE OF

OF

TREATY

VERSAILLES

REVISIONS THE OF

OF

TREATY

VERSAILLES BY

WALDO

E.

STEPHENS

N E W Y O R K : MORNINGSIDE H E I G H T S

COLUMBIA

UNIVERSITY

1939

PRESS

COPYRIGHT

1939

COLUMBIA U N I V E R S I T Y PRESS, N E W

YORK

Foreign agents: OXFORD UNIVERSITY PRESS, Humphrey Milford, Amen House, London, E.C. 4, England, AND B. I. Building, Nicol Road, Bombay, India; MARUZF.N COMPANY, LTD., 6 Nihonbashi, Tori-Nichome, Tokyo, Japan MANUFACTURED

IN T H E

U N I T E D STATES OF

AMERICA

TO DORIS RUTH and DEAN

PREFACE T H E years from 1920 to 1933 mark a definite period in international diplomacy. The predominant note in the relations of States during these post-war years was strict adherence to treaty obligations and the reliance upon accepted procedures for achieving peaceful change. Throughout this period, however, there was increasing opposition to the peace treaties of 1919 and to the machinery of international controls established at Versailles. The attempts of certain victors to establish hegemony over the defeated powers hindered the work of organizing a community of "fully self-governing" nations within the framework of a League of Nations. The conflicting policies of the nations responsible for the settlement of 1919 tended to neutralize their defense of the peace treaties against the powers committed to revision. The resurgence of militant nationalism throughout the world challenged the principles of internationalism which had been universally proclaimed at the close of the World War. Since 1933 the League of Nations' program of collective security has been replaced by alliances and power politics, treaty repudiation, military aggression that seemingly ignored the most elementary rules of warfare, foreign intervention in civil war, the creation of puppet administration in opposition to the wishes of the peoples involved, the dismemberment or conquest of independent States, and a general return to armed might as the arbiter of international disputes. This alarming drift toward a condition of international anarchy stresses anew the need for "the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind." The successful restriction of recourse to war necessarily presupposes the acceptance by all powers of a substitute for war as an

Vlll

PREFACE

instrument to safeguard the rights of States and to effect necessary changes in contractual relations. This poses the question of treaty revision. The authors of the peace treaties of 1919 foresaw this problem and attempted to introduce for the first time a norm of treaty revision within a voluntary system of international organization. Since 1920 the nations have been constantly confronted with the issues relating to treaty revision. It should be evident from recent happenings in Europe and Asia that agencies, procedures, and the will to effect peaceful change in the contractual relations of States must be achieved, not as an ad hoc expedient for staving off war, but as the accepted practice in adjusting the competitive policies of contemporary world powers. The scope of the present work is confined to the period following the World War when governments sought to employ accepted procedures, other than war, for the revision of their contractual obligations incorporated in the Treaty of Peace between the Allied and Associated Powers and Germany. The frequent unilateral denunciation or breach of treaty commitments, such as we have witnessed during the past few years, should not be confused with the efforts of States to modify their treaty relations by methods agreed upon by the signatory powers. The violation of a law is one thing; the orderly endeavor to modify the law through accepted agencies is quite another. It is hoped that this brief account of the first attempt of modern States to achieve revisions of a peace treaty within a definite field of international organization will throw some light upon the elements of strength and weakness in this initial experiment in behalf of peaceful change. It is impossible to express my deep sense of gratitude and lasting indebtedness to the persons who have contributed so much to make possible the benefits associated with this undertaking. The foremost among them is Professor Charles Cheney Hyde, whose inspiration as a teacher, scholarly advice, and encouragement as a friend will be remembered long after this work is put aside; also Professors Joseph P. Chamberlain and Philip C. Jessup, whose

PREFACE

ix

generous sharing of their time and knowledge leaves me grateful for the privilege of working with them. He is fortunate indeed who can receive the combined guidance of three such leaders as Professors Hyde, Chamberlain, and Jessup. I wish to avail myself of this opportunity to pay special tribute to the late Professor Parker T . Moon, who made teaching a glorious profession and his students his lasting friends. My sincere thanks go to Professor James T . Shotwell for his constant encouragement and helpful interpretation of world affairs; to Professors Carlton J. H. Hayes, James C. Egbert, and Schuyler C. Wallace for their many favors; to Miles O. Price, law librarian, for his generous and efficient help and for his loyalty as a friend; to Cecile G. Libby for her able assistance in preparing the manuscript for publication; and to the staff of the International Law Library, especially Miss Ferner, for untiring service. For her abiding confidence in the face of discouragements and for her unselfish labors to make this work possible, I wish to express my deepest indebtedness to my wife, Doris Stephens. N o one is more deserving of my gratitude for true benefits conferred through years of preparation for this task than my mother. I am indebted to the authors for permission to quote from the following publications: David Hunter Miller, The Drafting of the Covenant; Francis Deak, The Hungarian Quarterly. If there should be anything that is worthy of praise in this work, the credit must be shared with those who have contributed so generously of their advice and time. The author alone accepts full responsibility for the mistakes which inevitably beset one seeking to interpret a movement involving the interests of nations. W . E. S. NEW

YORK

MAY I , 1939

CITY

CONTENTS PART T H E

NATURE

EFFECT

AND

ONE

SCOPE OF

CHANGES

IN T H E

PROVISIONS TREATY

OF

DESIGNED

TO

VERSAILLES

xiii

ABBREVIATIONS I. II. III.

INTRODUCTION RECONSIDERATION OF T R E A T I E S : A R T I C L E REVISION CLE

IV.

3

OF

PERMANENT

CLAUSES

IN

19

7

PART

XII:

ARTI-

377

28

T R E A T Y MODIFICATION BY A M E N D M E N T S

41

Amendments to Part I : Article 26

V.

41

Amendments to Part X I I I : Article 422

53

Amendments to Annex II to Part V I I I : Paragraph 22

62

C H A N C E S A P P L I C A B L E TO PROVISIONAL STIPULATIONS

74

International Regime of Transit, Waterways, Ports, and Railways: Article 379

75

International Transport: Article 366

80

Temporary Provisions regarding Ports, Waterways, and Railways: Article 378

VI.

85

Commercial Relations: Article 280

95

Independence of Austria: Article 80

97

M A C H I N E R Y FOR M O D I F Y I N G T H E S E T T L E M E N T OF 1 9 1 9

P A R T REVISIONS VII.

AMENDMENTS OF N A T I O N S

OF T H E TO P A R T

T W O

TREATY I:

109

THE

OF

VERSAILLES

COVENANT

OF T H E

LEAGUE 119

xii

CONTENTS

VIII.

Article 4

127

Article 6

140

Article 12

145

Article 13

150

Article 15

154

Article 16

159

Article 26

169

Summary

176

AMENDMENT

TO P A R T X I I I :

IZATION, A R T I C L E IX. X.

XI.

ASPECTS

OF T R E A T Y

INTERNATIONAL

LABOR

ORGAN-

393

182

M O D I F I C A T I O N BY A M E N D M E N T

R E V I S I O N S OF P A R T V I I I :

REPARATION

196 205

Modifications under Paragraph 22 of Annex II

205

Agreements Not Specifically Authorized by the Treaty

220

THE DAWES PLAN

220

THE YOUNG PLAN

233

THE LAUSANNE AGREEMENT

247

CONCLUSIONS

255

BIBLIOGRAPHY

263

INDEX

275

ABBREVIATIONS Am. J. I. L.: American Journal of International Law Br. & For. State Papers: British & Foreign State Papers Diary: My Diary at the Conference of Paris Drafting the Covenant: The Drafting of the Covenant Harv. L. Rev.: Harvard Law Review Survey: Survey of International Affairs 1920-

PART ONE

T H E NATURE AND SCOPE OF PROVISIONS DESIGNED TO E F F E C T CHANGES IN T H E T R E A T Y OF VERSAILLES

CHAPTER I INTRODUCTION T H E nomenclature of international law and relations is not sufficiently codified to assure a uniform use and distribution of terms required to deal precisely with the various aspects of the practices of States. The lack of adequate terminology has resulted in the over-use of certain concepts to cover divergent activities and developments in the relations of nations. A n example is the popular phrase "treaty revision." It is a convenient expression with which to label a variety of changes in international arrangements and to suggest a general solution of various international problems. It suggests possibilities of relief to the State that may be burdened by the terms of a contractual relation that it was forced to accept. It inspires the State that has made a bad bargain to seize upon any convenient pretext whereby it may cause another party to yield to more congenial terms. It encourages a State which has been dealt with inequitably to make an eloquent plea for a reconsideration of the arrangement. Whatever the claims of a contracting State may be, the reasons given in support of its demands for a change are not necessarily indicative of the existence of a legal right to gain one. In recent years the phrase "treaty revision" has been associated with a particular treaty, The Treaty of Peace between the Allied and Associated Powers and Germany 1 (signed at Versailles, France, June 28, 1919, and officially declared in force, January 10, 1920) and with the efforts of a particular power, Germany, to free itself from the burdens imposed upon it by the settlement. The general confusion of thought concerning the nature and scope of the provisions designed to effect certain changes in the Treaty of Versailles, the modifications actually executed, and the procedure 1

Hereafter referred to as the Treaty of Versailles.

4

INTRODUCTION

by which revisions have been accomplished would seem to warrant an analysis of the agreement drawn up at Paris in 1919 and of the most significant changes achieved by post-war agreements. Widely divergent practices of States are suggested in the opposing views of what constitutes treaty revision. On the one hand, treaty revision is considered as the modifications and changes contemplated in the settlement and effected in accord with the stipulations accepted by the signatory powers, as well as the new agreements negotiated for the purpose of altering the obligations binding upon the parties. According to this view, any relaxation of the treaty burdens by extending, modifying, or terminating the arrangement in accord with the procedure agreed upon by the powers is regarded as revisory. Opposed to this conception of treaty revision, there is a more precise and what is believed to be a more accurate use of the term. In reality, "to revise a treaty is to change its terms during the life of the arrangement." 2 Such action betokens a successful endeavor on the part of the contracting States to modify what was binding upon them through the terms of their existing arrangement. If this be true, then the provisions of a treaty, which under certain contingencies afford an opportunity to one party or to some outside entity or agency to alter the scope of particular burdens, as specified in the original text, do not betoken arrangements for revision, for they are woven into the instrument itself and constitute a part of the agreement. T h e successful invocation of such provisions manifests no change in what was originally agreed upon. Thus, technically there can be no revision in carrying out what a treaty contemplates, for such action is not at variance with its terms. However, the general terminology and the practices of States associated with the modification of treaties are so divergent and still so interrelated that it is practically impossible to draw a precise limitation for the use of the term "revision" without con2 For a fuller interpretation of this definition of treaty revision see Charles Cheney Hyde, "The Revision of Treaties," The Hungarian Quarterly, II ( 1 9 3 6 - 3 7 ) , 203 ff.

INTRODUCTION

5

fronting the necessity for a strict classification of a great variety of State practices. There was general recognition at Paris of the necessity f o r providing "permanent processes" whereby the settlement of

1919

itself could be modified. Facilities for altering the treaty terms were made available to the contracting parties. These ranged from provisional arrangements which were to be superseded by more detailed schemes of administrative control over rivers, ports, and railways to possibilities of changes to be effected by amendments and the negotiation of fresh agreements. T h e lack of restraint on the part of the Allied Powers to abstain f r o m exercising compulsion to produce Germany's acceptance of the settlement did not presage a willingness on their part to grant Germany a right to escape what had been gained at terrific costs. T h e y reserved for themselves the authority to initiate changes or veto proposals for modifications. T h e endeavor of the writer is to determine first of all the nature and scope of the treaty provisions designed to permit some change in the agreement and the extent to which Germany or the other contracting parties could participate in carrying out the arrangements; also to make an analysis of post-war negotiations to determine the types of new adjustments which have been made either through the facilities provided for in the treaty or by the negotiation of fresh agreements apart f r o m treaty authorization. While subscribing to the more limited use of the term "treaty revision," the author has presented materials included in this analysis primarily as an account of the practice of States in preparing a peace treaty at the close of a protracted war, in accepting arrangements for modifying their contractual relations, and in seeking new settlements outside the scope of the treaty terms. Accordingly, it may be contended that this study touches little upon the subject of actual treaty revision and that its function is chiefly to portray situations and methods whereby modifications of contractual relations might be effected in pursuance of the

6

INTRODUCTION

treaty itself and to show in particular how there was withheld from Germany the privilege of making and enjoying the benefit of arrangements for modification. However, since the most important changes effected in the original'treaty terms were achieved by fresh agreements, outside the stipulations in the treaty, the term "revision" has been used to designate what might be considered the most significant modifications among all those effected in the original agreement.

C H A P T E R II RECONSIDERATION ARTICLE

OF

TREATIES

19

T H E Covenant of the League of Nations comprises Part I of the Treaty of Versailles. 1 The drafting of Article 19 of the Covenant marked the development of a plan that reflected a design which differs sharply from the one originally proposed for treaty modification. Article 19 as incorporated in the treaty reads as follows : The Assembly may from time to time advise the reconsideration by Members of the League of Nations of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world.

The numerous bilateral and multipartite treaties negotiated during the fifty years preceding the World War marked an important trend in State practice in providing for subsequent revision of technical, commercial, and nonterritorial agreements. 2 Previously the failure of belligerent powers to agree upon some plan for the revision of peace treaties as well as the unwillingness 1 The Covenant also constitutes Part I of the Treaty of St. Germain with Austria, the Treaty of Trianon with Hungary, and the Treaty of Neuilly with Bulgaria. 2 Among the numerous treaties of the second half of the nineteenth century which provide for subsequent revisions, the following topics indicate the subject matter considered by States as suitable for periodic consideration: public health, William M. Malloy, Treaties, Conventions . . . between the United States of America and Other Powers (Washington, 1910), II, 2214, Art. 5; literary and artistic work, G. F. von Martens, Nouveau recueil général de traités, deuxième série (Gottingen, 1887), XII, 173, Art. 17; safety of life at sea, Malloy, op. cit., ILL, 2943, Art. 14; care of wounded in time of war, ibid., II, 2183, Art. 3 1 ; publication of customs tariffs, ibid., II, 1996, Art. 1 5 ; protection of trade marks, ibid., ILL, 2935, Art. 1 7 ; control of liquor traffic in Africa, British and Foreign State Papers, XCIX, 490, Art. 3; telegraph communication, Malloy, op. cit., ILL, 2889, Art. 1 1 ; transportation by rail, Martens, op. cit., IX, 720, Art. 20; weights and measures, Malloy, op. cit., II, 1924, Art. 12; customs regulations in China, Treaties and Agreements with and concerning China, i8ç4~igiç, edited by John V. A. MacMurray (New York, 1 9 2 1 ) , I, 342, 352, Art. 1 5 ; 4 1 1 , Art. 8; 423, Art. 17.

8

RECONSIDERATION OF TREATIES

of the signatories to reconsider the contractual arrangement had frequently resulted in the denunciation by dissatisfied powers of their treaty commitments. 3 T h e main preoccupation of statesmen had been to establish the voluntary procedures of diplomatic negotiation, conciliation, and mediation, international conference, and, indirectly, arbitration and judicial settlement as peaceful means of effecting changes in the rights and possessions of States. O n no previous occasion, however, had the representatives of the victor powers given so much consideration to draft proposals for the revision of a treaty terminating a w a r as the Allied representatives did in their preparation of the text of the Treaty of Versailles. T h e most important discussions bearing upon the question of a definite provision in the peace treaty for a later revision of its terms, took place in the meetings of the special commission appointed by the Peace Conference, on January 25, 1919, to prepare a D r a f t C o v e n a n t f o r a League of Nations. 4 3

Refusal on the part of the contracting parties to revise or reconsider the terms of

treaties w h i c h w e r e considered oppressive or no longer applicable gave rise to the d e n u n ciation of the a g r e e m e n t by the f o l l o w i n g p o w e r s : In 1870 Russia denounced A r t . 13 of the T r e a t y of Paris of 1 8 5 6 ; Br. £r For. State Papers, L X I , 1 1 9 3 - 1 2 2 7 ; Sir W a l t e r G . F. Phillimore, Three In

Centuries

1886 Russia

of Treaties

denounced

of Peace and Their

Art.

59 of

Jaequemyns, " C h r o n i q u e d u droit international tional

Teaching

the T r e a t y

of

( L o n d o n , 1 9 1 9 ) , pp. 80-85.

Berlin

(1885-1886),"

of

1878;

Revue

M.

G.

de droit

Rolininterna-

( L e i p z i g , 1 8 8 7 ) , X I X , 3 7 - 4 9 . Serbia, in 1 9 1 3 , denounced the treaty of 1 9 1 2 w i t h

B u l g a r i a ; J. A . R. Marriott, The ney B. Fay, The

Origins

Eastern

of the World

Question

( O x f o r d , 1 9 2 4 ) , pp. 4 4 3 - 7 4 ; also Sid-

War ( N e w Y o r k , 1 9 3 0 ) , pp. 4 3 0 - 4 7 . For a discus-

sion of repudiations and violations of treaties see J. B. W h i t t o n , " L a Règle pacta sunt s e r v a n d a , " Recueil

de l'Académie

de la Haye

" T h e Sanctity of T r e a t i e s , " International tional Peace international

(New public,

Y o r k , October,

(Paris, >934), I L , 2 2 0 - 4 2 ; see also W h i t t o n ,

Conciliation,

C a r n e g i e E n d o w m e n t for Interna-

1 9 3 5 ) , N o . 3 1 3 , p. 405; Revue

générale

de

droit

d e u x i è m e série (Paris, 1 9 2 0 ) , II, 106 f. Various aspects of treaty denun-

ciation and violation are discussed in The

American

421 ff., 526 ff., 7 7 5 ff.; X X X I I I , 12 ff.; also Foreign * D a v i d H u n t e r Miller, The

Drafting

of the

Journal of International Affairs,

Covenant

Law,

XXXII,

X V I I , 197 ff., 305 ff. (New York,

1 9 2 8 ) , I, 76 ff.,

130 ff.; II, 1 5 5 if., 229 ff. A study of the preparatory w o r k w h i c h preceded the meetings of the L e a g u e c o m m i s s i o n and the official minutes of the commission's proceedings d u r i n g the d r a f t i n g of the C o v e n a n t is indispensable for an understanding of the v i e w s of the Allied leaders r e g a r d i n g a revisory clause in the pcace treaty. See especially Miller, op. see also Miller, My Diary Baker, Woodrow

Wilson

at the and

H . W . V . T e m p e r l e y , A History

Conference

World

of Paris ( N e w Y o r k , 1 9 2 4 ) ; Ray

Settlement

cit.;

Stannard

( N e w Y o r k , 1 9 2 2 ) , especially I and III;

of the Peace Conference

at Paris ( L o n d o n , 1 9 2 0 - 2 4 ) .

RECONSIDERATION OF TREATIES

9

The first official draft convention,5 outlining the plan of organization and function of a league, was prepared by a committee appointed by the British government and headed by Lord Phillimore. N o specific reference was made to treaty revision in the Phillimore plan, except the requirement that States should procure release from previous agreements which imposed obligations inconsistent with the terms of the proposed convention before they could become members of the League. 8 The Phillimore draft was submitted to the British government, on March 20, 1918. Special emphasis was placed upon the peaceful settlement of all disputes between States. The Interim Report addressed to Mr. Balfour, British Foreign Minister, stated that the Phillimore committee had been instructed to enquire into various plans which might afford "some alternative to war as a means of settling international disputes." 7 A copy of the Phillimore draft was forwarded to President Wilson in May, 1918. Colonel Edward M. House, personal adviser to President Wilson, was requested by the President to examine the conditions on which a League of Nations might be constituted. Colonel House, in his "Suggestions for a Covenant of a League of Nations," submitted in Article X X of his draft the following proposal for limited treaty modifications: 5 In the course of the World War a number of very important proposals regarding the organization of the peace were made. Among the many schemes propounded, the most significant were those sponsored by the League to Enforce Peace, the Central Organization for a Durable Peace, the League of Nations Society, Viscount Bryce and others, and the Fabian Society. Practically all of these unofficial suggestions for organizing the peace included in some form the general principle stressed by the Allied governments in their note to President Wilson in January, 1 9 1 7 , which approved of the "institution of international arrangements designed to prevent violent conflicts between nations." The Draft Treaty sponsored by the Fabian Society was the only proposal dealing directly with the modification of treaty relations by peaceful means. See Article 16A of the Fabian Society project. Leonard S. Woolf, Framework, of a Lasting Peace (London, 1 9 1 7 ) , pp. 112 ff.; also Woolf, International Government (New York, 1 9 1 6 ) . 9 Miller, Drafting the Covenant, I, 3; II, Doc. 1 , p. 3. 7 Ibid., I, 4, paragraph 1. The report of the committee appointed by the French government to examine the conditions on which a League of Nations might be established was the next plan submitted. There is no reference to treaty revision in the French report. Ibid., I, 1 0 - 1 1 ; II, 238-46.

RECONSIDERATION OF TREATIES

10

T h e C o n t r a c t i n g P o w e r s unite in several guarantees to each other of their territorial integrity a n d political independence, subject, h o w e v e r , to such territorial modifications, if a n y , as m a y b e c o m e necessary in the f u t u r e b y reason of c h a n g e s in present racial conditions and aspirations, pursuant to the principle of self-determination a n d as shall also be r e g a r d e d by three-fourths of the D e l e g a t e s as necessary a n d proper f o r the w e l f a r e of the peoples c o n c e r n e d ; r e c o g n i z i n g also that all territorial changes i n v o l v e equitable compensation and that the peace of the w o r l d is superior in importance and interest to questions of b o u n d a r y . 8

T h e House draft was forwarded to President Wilson, on July 16, 1918, 9 with a letter of transmittal to the effect that "it would not do to have territorial guarantees inflexible . . . that conditions might so change in the course of time as to make it a serious handicap for certain portions of one nation to continue under the government of that nation." T h e suggestions prepared by Colonel House were drafted independently of the outline followed by the Phillimore committee. T h e proposal for territorial modifications, in case future change made such readjustments necessary, was introduced by Colonel House. 1 0 In his opinion "the peace of the world is superior in importance and interest to questions of boundary." This emphasis was balanced, however, by the view that "all territorial changes involve equitable compensation." This was the first important proposal that the powers should agree to consider the modification, at a later date and by reason of certain changed conditions, of the treaty terms relating to ter8

Ibid., II, Doc. 2, p. 10; see also Baker, op. cit.. Ill, Doc. 9, pp. 81 f f . Baker, op. cit., I, 218. Miller, Drafting the Covenant, I, 14. The proposal for a territorial guarantee originated in the fall of 1914 when Colonel House urged President Wilson to inaugurate a policy which would weld together the States of the Western Hemisphere and which would serve as a model for the European nations when peace should be restored. The first article of the proposed Pan-American Pact, which was prepared by President Wilson in the course of his conference with Colonel House, on December 16, 1914, provided for "Mutual guaranties of political independence under republican form of government and mutual guaranties of territorial integrity." In its language and intent Article 1 of the Pan-American Pact is the prototype of Article 10 of the Covenant of the League of Nations. For a revised draft of the Pact and an account of the negotiations relating to the same see Charles Seymour, The Intimate Papers of Colonel House (New York, 1926-28), I, 207-34. 9

10

RECONSIDERATION OF TREATIES

II

ritorial transfers. T h e language of Article X X of Colonel House's Suggestions and the idea expressed in his letter to President Wilson reflect a strong conviction that this provision should be made an integral part of a territorial guarantee. His proposal did not include a detailed outline of the procedure to be followed in modifying the territorial arrangements. His emphasis was essentially revisory with the League to be empowered to effect territorial modifications if three-fourths of the delegates should regard such changes as necessary and proper. Colonel House's proposal to grant authority to three-fourths of the League members to require treaty changes under certain conditions suggested an important departure f r o m the practice of States in revising instruments of agreement. 1 1 T h e House suggestion was incorporated almost word for word as Article III in the following text of President Wilson's first draft of the Covenant: T h e Contracting Powers unite in guaranteeing to each other political independence and territorial integrity; but it is understood between them that such territorial readjustment, if any, as may in the future become necessary by reason of changes in present racial conditions and aspirations or present social and political relationships, pursuant to the principle of self-determination, and also such territorial readjustments as may in the judgment of three-fourths of the Delegates be demanded by the welfare and manifest interest of the peoples concerned, may be effected, if agreeable to those peoples; and that territorial changes may in equity involve material compensation. T h e Contracting Powers accept without reservation the principle that the peace of the world is superior in importance to every question of political jurisdiction or boundary. 1 2

Colonel House had stressed changes in "racial conditions and aspirations" as sufficient grounds for future consideration of the 11 In the final draft of Article 26 of the Treaty of Versailles, the Covenant of the League of Nations could be modified if a "majority" of the members of the Assembly and all the members of the Council ratified a protocol of amendment. Amendments to Part XIII of the treaty required ratification by three-fourths of the members of the Assembly. See infra, p. 53. 12 Miller, Drafting the Covenant, II, 12.

12

RECONSIDERATION OF TREATIES

territorial settlement. President Wilson emphasized "social and political relationships" as additional factors justifying the modification of treaty arrangement. He supported the theory that the peace of the world is superior in importance to "every question" of political jurisdiction or boundary. In the House and Wilson drafts the contracting States were to be asked to accept two principles which were considered necessary for the maintenance of world peace: First, they would unite in guaranteeing each other political independence and territorial integrity. It was assumed that such assurance would reduce the danger of external aggression and thereby contribute to the cause of peace. But a guarantee of territorial integrity involved an obligation to perpetuate the status quo. It would crystallize new frontiers in the face of powerful national forces which would seek territorial change. Second, there was to be an understanding between the contracting powers that a readjustment of the territorial settlement might be effected by peaceful procedure if racial, social, and political conditions warranted it and if in the judgment of three-fourths of the delegates of the League the welfare and manifest interest of the peoples concerned demanded such territorial readjustment. It is evident from Article X X and Article III of the drafts quoted above that the authors intended to make it possible for Germany, or any other signatory power, to require a reconsideration of the treaty provisions relating to the territorial settlement. On the ship George Washington, bound for Europe, President Wilson clarified certain points in his first draft pertaining to the coming treaty settlement and the necessity for subsequent revision of whatever terms would be imposed upon Germany. He stressed the necessity for treaty revision as a corollary to provisions for territorial guarantees. This is revealed in his statement recorded by Dr. Isaiah Bowman, who accompanied President Wilson to Europe in December, 1919. According to Dr. Bowman's notes, which cover the special meeting called on the ship, on

RECONSIDERATION OF TREATIES

13

December 10, 1918, President Wilson stated that the League of Nations implied political independence and territorial integrity plus later alteration of terms and alteration o£ boundaries if it could be shown that injustice had been done or that conditions had changed. A n d such alteration would be the easier to make in time as passion subsided and matters could be viewed in the light of justice rather than in the light of a peace conference at the close of a protracted w a r . 1 3 Upon his arrival in Europe, December 14, 19x8, President W i l son received two new drafts outlining more specific proposals for a League of Nations. One draft had been prepared by General Jan Christian Smuts, of South Africa, and the other by Lord Robert Cccil, of Great Britain. Only the Cecil draft, given the official title of "British Draft Convention, January 20, 1919," provided for a collective guarantee and for the future modification of treaty arrangements. Lord Robert Cecil recognized the dangers of a stereotyped settlement supported by an unconditional guarantee. In his Draft Convention, he proposed that: 1. (i) They (the High Contracting Parties) enter into the obligations intended to secure the avoidance of war which are contained in Chapter II. of this Convention, (ii) They undertake to respect the territorial integrity of all States members of the League, and to protect them from foreign aggression, and they agree to prevent any attempts by other States forcibly to alter the territorial settlement existing at the date of, or established by, the present treaties of peace. 2. If at any time it should appear that the boundaries of any State guaranteed by Article 1 (i), (ii) do not conform to the requirements of the situation, the League shall take the matter under consideration and may recommend to the parties affected any modification which it may think necessary. If such recommendation is rejected by the parties affected, the States members of the League, shall, so far as the territory in question is concerned, cease to be under the obligation 13

Ibid., I, 41-44. My italics.

i4

RECONSIDERATION OF TREATIES to protect the territory in question from forcible aggression by other States, imposed upon them by the above provision. 14

The British scheme provided for a much wider guarantee than President Wilson's proposal. It was a guarantee of peace, rather than a guarantee of territorial integrity, with the high contracting parties entering into obligations intended to "secure the avoidance of war." Great and small States alike would be bound, jointly and severally, to take action against any State which broke the peace for any reason whatsoever. The British leaders questioned the wisdom of a guarantee limited solely to the political independence and the territorial integrity of the signatory powers. It seemed to imply that the frontiers of States would be regarded as being unalterable. The early drafts of the British proposals stressed two aspects of the problem of organizing the peace: First, the negotiation of treaties and agreements of a collective character to which the signatory powers would adhere without recourse to war to effect a change; Second, the acceptance of provisions for regular conferences between the States in order to maintain and to extend the agreements arrived at. The States would be called upon solemnly to pledge themselves to co-operate in the League for the prevention of war by eliminating, so far as possible, the causes of international disputes, by providing for the pacific settlement of such disputes should they arise, and by encouraging a general system of international co-operation for promoting the peaceful progress of mankind. 15

The Wilson draft, Article III, contemplated "future territorial readjustment" as the exercise of a right to be given to the signatory States. The Cecil draft, Article I, proposed a "recommendation of changes by the League" as a procedure as distinguished from a legal justification or a right to request such changes. The chief inducement to persuade the parties affected to accept the League 14 Ibid., II, Doc. io, pp. 106 f.; Baker, op. at., Ill, 131 f. 18 Miller, Drafting the Covenant, n, 106.

RECONSIDERATION OF TREATIES

15

recommendation was the guarantee of protection. Failure to accept the League's advice by a particular power would free the other members of the League from the obligation to protect the territory in question from forcible aggression. There was strong opposition on the part of certain delegates, especially the French, to the joining, in a single article, of the territorial guarantee and the provision for territorial modification. 10 They objected to any proposal which would weaken the territorial settlement once it was recorded in the peace treaty. The French position was strengthened by the stand taken on this question by David Hunter Miller, of the United States. He feared the revision principle would legalize agitation in Eastern Europe and lead to a future war. 1 7 If the conference should adopt the principle of treaty revision to allow for future alterations of territorial boundaries, it would, he said, tend to make the "dissatisfaction permanent . . . compel every Power to engage in Propaganda and . . . legalize irredentist agitation." 18 As a counter-proposal Mr. Miller cited the Swiss government's method of handling claims of different nationalities and advocated the principle of minority protection in regions where it was impossible to draw boundaries according to racial or social preference. The opposition of Mr. Miller to the original proposals favoring revision of territorial settlements was one of the most important influences which prompted the members of the League commission to modify the early drafts of the Covenant bearing upon this point. In the course of a conversation with Lord Robert Cecil, on January 21, 1919, when the British proposal for future territorial adjustments was discussed, Mr. Miller's criticism was accepted as valid. The fact was not to be overlooked, however, that "treaties could not be made immutable." By way of a compromise Lord Robert Cecil suggested that provision should be made in the treaty for "revision generally not specifically relating to bound18 17 18

Jean Ray, Commentaire du pacte de la Société des Nations (Paris, 1930), p. 559. Miller, Drafting the Covenant, I, 53. For Miller's "comment" on Wilson's idea see ibid., II, 70-72.

RECONSIDERATION OF TREATIES

i6

aries . . . f r o m time to time."

19

T h e suggestion was not acted

upon, however, for Article III of the Cecil-Miller text of January 27, 1919, included a clause w h i c h h a d been drafted by

Lord

Eustace Percy, of Great Britain, a f e w days prior to the m e e t i n g of Lord Robert Cecil and M r . Miller. 2 0 L o r d Percy's draft stated that if at any time it should appear that any feature of the settlement guaranteed by this Covenant and by the present treaties of peace no longer conforms to the requirements of the situation, the League shall take the matter under consideration and may recommend to the parties affected, any modification which it may think necessary. . . . In considering any such modification the League shall take into account changes in the present conditions and aspirations of peoples or present social and political relations. 21

T h e British proposal, whereby the L e a g u e may recommend to the parties affected a modification of the settlement rather than that a signatory State be given a legal right to require a change, was joined w i t h the guarantee clause in President Wilson's second draft. 2 2 A n analysis of the early A m e r i c a n and British drafts of the Covenant of the L e a g u e shows very definite ideas concerning treaty revision. First, all recognized the danger of guaranteeing the territorial settlement without m a k i n g some provisions for peaceful procedure in adjusting territorial disputes. Second, only territorial questions were listed in the House and W i l s o n drafts. Lord Cecil stated in his conversation w i t h M r . Miller, on January 2 1 , 1 9 1 9 , that it w o u l d be advisable to m a k e provision for "revision generally." It was L o r d Percy's draft w h i c h extended the proposed 19 Ibid., I, 52 f. In a memorandum prepared for the consideration of the British government immediately after the Armistice, it was suggested that the "Whole series of treaties should be for a period of ten years only. This would provide useful opportunities at regularly recurring intervals for the amendment and extension of obligations or, should public opinion in any country set in that direction, for their denunciation." See reference to the general plan for treaty revision in League of Nations International Studies Conference, Collective Security, ed. by Maurice Bourquin (Paris, 1936), pp. 321 f. 2 0 For the wording of Article II sec Miller, Drafting the Covenant, II, Doc. 12, p. 134. 2 2 Ibid., p. " Ibid., II, 117 {., Art. 1. 134.

RECONSIDERATION

OF

TREATIES

17

revision principle to include "any feature of the settlement guaranteed by this covenant and by the present treaties of peace." Third, the American and British drafts provided for the League as the agency to consider and recommend any modifications deemed necessary in the light of changed conditions. Fourth, the early American and British drafts indicate that the guarantee of territorial integrity was subject to the acceptance by the signatory States of the specific provision for peaceful readjustment of treaty relations under the direction of the League of Nations.23 There were so many points of difference in the numerous drafts of the Covenant prepared by the American, British, and other delegations that a comprehensive statement covering the various proposals was required to facilitate the work of the commission. The members of the commission appointed the legal advisers of the British and American delegations, Cecil Hurst and David Hunter Miller, to co-ordinate the work of the different committees and delegations. They started, on February 1, 1919, to prepare a restatement of the main provisions in the American and British drafts, the Cecil-Miller text, and the understanding arrived at by President Wilson and Lord Robert Cecil, on January 31, 1919.^ When considering the provision in the early drafts for the future readjustment of territorial commitments, Cecil Hurst proposed that in the revised draft of the Covenant they retain only that part of Article 3 which bound the contracting parties to "respect and preserve as against external aggression the territorial integrity and existing political independence of all States members of the League." They omitted the paragraph providing for the future revision of any feature of the treaty settlement which no longer conformed to the requirements of changed conditions. Mr. Miller favored the proposal made by Mr. Hurst 29 on the ground 23 Hoen Z. Hu, Treaty Revision under Article Nineteen of the Covenant (New York, 1 9 3 1 ) , p. 9. 24 Miller, Drafting the Covenant, I, 65, 67 f. 25 Ibid., pp. 70 f. The immediate sequel to the Hurst-Miller draft was President Wilson's fourth draft of the Covenant, on February 2, 1919. He retained the guarantee of political independence and territorial integrity of all States which were members of the League.

i8

RECONSIDERATION OF TREATIES

that it w o u l d lessen the agitation f o r territorial readjustment a m o n g racial and political minorities. T h e Hurst-Miller draft of the Covenant, w h i c h was accepted by the L e a g u e commission as the basis for discussion, made no definite provision for future readjustment of territorial claims by subsequent modification of the treaty terms. Provision was made in Article V I I f o r the territorial guarantee w h i c h President W i l son had stated in Article III of his early drafts. By w a y of amendment to Article V I I of the Hurst-Miller draft, L o r d Robert Cecil proposed that the commission strike out the phrase "preserve as against external aggression" and insert at the end the f o l l o w i n g w o r d s : "subject, however, to provision being made by the body of delegates for the periodic revision of treaties w h i c h have become obsolete and of International conditions, the continuance of w h i c h may endanger the Peace of the w o r l d . "

26

L o r d Cecil's proposal w e n t further than his original suggestion in Article I of his first draft. 2 7 H e n o w favored the "periodic revision" of treaties w h i c h had become "obsolete," as well as disputes over boundaries. Mr. Miller was instructed by Colonel House, on February 5, 1919, the day f o l l o w i n g the presentation of the Cecil proposal, to prepare a m e m o r a n d u m on the subject of the British a m e n d m e n t to Article V I I of the Hurst-Miller draft of the Covenant. T h e Miller m e m o r a n d u m stressed the fact that the provision

for

"periodic revision of treaties" by the body of delegates was "very dangerous." H e pointed out that the body of delegates could not have power to revise treaties; "only the States themselves can revise their o w n Treaties." Such provision, if made effective, w o u l d limit the obligation of one State even "to respect the integrity and independence of another."

28

Due to strong opposition the provision allowing for territorial readjustment was dropped. Miller, op. cit., I, 72 £.; II, 145 ff. 2 6 Miller, Diary, V , 92. 2 7 Supra, p. 13. 2 8 Miller, Diary, V , 94 (.; also in his memorandum to Colonel House of February 9, Mr. Miller wrote about the British proposal as follows: "If this Article means that the Body of Delegates have any power beyond that of recommendation, it is bad. If it means

RECONSIDERATION OF TREATIES

19

The members of the League commission failed to reach an agreement on the new article proposed by Lord Cecil. In the interim between the fourth meeting, on February 6, and the eighth meeting, on February 1 1 , the British members of the commission re-drafted the amendment submitted by Lord Cecil, providing for the reconsideration of treaties which have become inapplicable. All efforts to have a treaty revision clause accepted by the League commission had met with strong opposition as long as the revisory provision was linked with a territorial guarantee. With the guarantee clause accepted as a separate article, later to be incorporated in the Covenant as Article 10, the way was cleared for a compromise on the proposals for treaty revision. The majority of the commission members objected to the original text of the British amendment to Article VII of the Hurst-Miller draft on the ground that the body of delegates had no power to revise treaties since the fundamental law of several States required legislative consent for such decisions.29 They favored the general idea of reconsidering treaties which had become inapplicable. At the close of the eighth meeting, on February 1 1 , President Wilson submitted the following draft of the proposal suggested by Mr. Miller in his memorandum of February 9 : 3 0 It shall be the right of the Body of Delegates from time to time to advise the reconsideration by the States members of the League, of treaties which have become inapplicable, and of international conditions, the continuance of which may endanger the peace of the world. 3 1

The commission adopted President Wilson's draft as Article 23 of the proposed Covenant. His suggestion, by way of modifying that they have only powers of recommendation, it should say so. I suggest the following substitute: 'The Body of Delegates shall make recommendations as to the periodic revision of treaties which have become obsolete and of international conditions, the continuance of which may endanger the Peace of the World.'" Miller, Drafting the Covenant, I, 202. 29 The amendment proposed by the British delegates as Article 23 of the Covenant read as follows: "The Body of Delegates shall make provision for the periodic revision of treaties which have become obsolete and of international conditions, the continuance of which may endanger the world." Miller, Drafting the Covenant, II, 288. 30 31 Ibid., I, 203. Miller, Diary, V, 420 f.

20

RECONSIDERATION OF

TREATIES

the original Cecil amendment to Article V I I of the Hurst-Miller text, marked an important step toward the final phrasing of w h a t was later to become Article 19 of the Covenant. T h e Cecil amendment stated that the "Body of Delegates shall make provision for the periodic revision of treaties which have become obsolete." Mr. Miller proposed that the body of delegates shall make recommendations as to the periodic revision of treaties, while President Wilson suggested that it shall be the right of the body of delegates "from time to time to advise the reconsideration by States members of the League of treaties which have become inapplicable." W h e n the eighth meeting of the commission adjourned, on February 11, the revised text of twenty-four articles was submitted to a special drafting committee. A new text, consisting of twentysix articles, was prepared by the drafting committee and delivered to the League commission, on February 13, 1919. T h e ninth meeting of the commission was held on this date to start the second reading of the revised text of the Covenant. Article 23, adopted at the first reading, was listed as Article 25 with minor changes in the phrasing. 32 T h e commission completed the second reading of the revised text on February 13. T h e chairman, Lord Robert Cecil, announced that the draft Covenant would be presented to the plenary session of the Peace Conference on the following day. N o vote would be taken in the plenary session on the proposed text. T h e purpose in submitting the Covenant to the full Conference was to bring the plan for a League of Nations to the attention of governments and to secure the criticisms of influential leaders in various countries. During the interim between the tenth meeting, February 13, and the eleventh meeting of the commission, March 22, 1919, numerous suggestions and criticisms were received by the com82

"States members of the L e a g u e " w a s substituted for " t h e States m e m b e r s of

L e a g u e . " T h e phrase " a n d of international conditions, the continuance of w h i c h

the may

e n d a n g e r the peace of the w o r l d " w a s altered slightly to read " a n d of international conditions of w h i c h the continuance m a y e n d a n g e r the peace of the w o r l d . " Miller, the Covenant,

II, 3 1 6 .

Drafting

RECONSIDERATION OF TREATIES

21

mission relating to the Covenant provisions as presented to the plenary session on February 14. President Wilson was away f r o m Paris f r o m February 14 to March

14, 1919. T h e first important conference to consider

changes in the Covenant was held on March 18, four days after President Wilson's return f r o m the United States. A t this meeting with President Wilson, Lord Robert Cecil endeavored to have the President agree to the proposal that the territorial guarantee in what was later to become Article 10 of the Covenant was to be undertaken "subject to the provisions of Article 24."

33

In answer

to L o r d Cecil's statement that this proposed amendment would make no difference in the meaning of the text, President Wilson stated that the French relied upon this one article in the Covenant and that it could not be weakened. T h e change was not made in the text, and this final effort failed to link the provisions f o r territorial guarantee and treaty revision. F r o m this date on, the two proposals were given different emphases in the Covenant of the League of Nations. T h e guarantee clause was strengthened and adopted as Article 10 of the Covenant. T h e clause pertaining to treaty revision was replaced by an arrangement that reflected a design sharply different f r o m the one originally proposed. T h e substitute provision was finally embodied in Article 19. T h e new text of the Covenant, which Lord Cecil delivered to President Wilson, Colonel House, and Mr. Miller on March 18, compressed the Covenant into twenty-four articles with the provision for the reconsideration of treaties listed as Article 22 rather than Article 24. N o change had been made in the text of the article. T h e commission appointed to draft the Covenant resumed its 33

The original draft proposed by the British delegation and accepted as Article 23 was later listed as Article 25, then as Article 24, and appeared in the final draft as Article 19. Miller, Diary, XIX, 32 f. Had the proposal of Lord Cecil been adopted, Article 10 would have read: "The High Contracting Parties undertake, subject to the provisions of Article 24, to respect and preserve as against external aggression the territorial integrity and existing political independence of all States members of the League." Miller, Drafting the Covenant, I, 281 {., 289.

22

RECONSIDERATION OF TREATIES

study of the revised text during its eleventh meeting, on March 22, 1919. A l l of the important criticisms of the Covenant, received after the reading of the text before the plenary session, on February 14, were carefully considered by the d r a f t i n g committee. W h i l e some of these criticisms influenced the final f o r m of the Covenant, no material change was made in the emphasis of Article 22; listed later as Article 19. 34 T h e text prepared by the drafting committee on April 1 and 2 presented Article 22 in the f o l l o w i n g f o r m : T h e Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable and the consideration of international conditions whose continuance might endanger the peace of the world. 3 5

M r . Miller sent copies of the English text of the Covenant, prepared by the drafting committee, to President W i l s o n on A p r i l 4. In a m e m o r a n d u m on the draft to be reported to the League commission he pointed out that the order of the articles had been changed and that the w o r d " A s s e m b l y " had been substituted for the words "Body of Delegates." T h e article on the reconsideration of treaties was listed as Article 19, with very slight changes in the text. A t the last meeting of the commission, on A p r i l 11, the English version of the Covenant was adopted without modification. T h e drafts of the Covenant were worked out almost entirely on a basis of the English texts, the French texts being derived f r o m the English. 3 0 A plenary session of the Peace Conference was held on April 28, 1919. T h e agenda called for the submission of the report of 34

T h e British delegation presented to the commission, o n April

i , a number of pro-

posed changes, one of the most important being the proposal to substitute " A s s e m b l y " f o r " B o d y of D e l e g a t e s " t h r o u g h o u t the C o v e n a n t . T h e c h a n g e was introduced by the c o m mission. Miller, Drafting 35

the Covenant,

I, 403; II, 668.

Article 22 in D o c u m e n t 6 7 9 states " s a m e as Article 19 in D o c u m e n t 6 8 1 . " Article 19

in D o c u m e n t 681 is w o r d e d as stated above. Miller, Diary, V I I , 4 1 0 , 423. 38

Miller, Drafting

the Covenant,

I, 270; II, 4 9 1 - 5 0 0 ; H u , op. cit., p. 1 7 .

RECONSIDERATION OF TREATIES

23

the League commission. President Wilson read the draft Covenant. He made the following comment regarding Article 19: Let me say before reading Article 19, that before being embodied in this document it was the subject matter of a very careful discussion by Representatives of the five greater parties, and that their unanimous conclusion in the matter is embodied in this Article. 37

The resolution adopted during a plenary session of the Peace Conference, on January 25, 1919, stated that "This League should be created as an integral part of the general Treaty of Peace." The commission having agreed definitively on the text of the Covenant at the final meeting, on April 11, and the Covenant of the League of Nations having been unanimously adopted in a plenary session of the Conference, on April 28, Article 19 became an integral part of the Treaty of Versailles. The peace negotiations at Paris in 1919 were not confined to the organization of peace under the League of Nations. The attempted settlement of the war involved the belligerent powers in new relations which not only have burdened the post-war governments of the signatory States but have also threatened the peace system established by the Treaty of Versailles. The defeat of Germany left the way open for the Principal Allied Powers to obtain the rights of sovereignty over portions of enemy territory. There does not appear to have been a sense of legal obligation among these powers to abstain from exacting from Germany what they wanted in the way of her possessions. The exercise of compulsion to produce an acceptance by Germany of a treaty which embodied a cession of a part of her territory called for safeguards which would preclude Germany's efforts successfully to deny the validity of the arrangement. By incorporating the territorial guarantee in the Covenant the members of the League would obligate themselves "to respect and preserve as against external aggression the territorial integrity" of 37

Miller, Diary, X X , 7 ; see also Drafting

the Covenant,

II, 5 6 1 .

24

RECONSIDERATION OF TREATIES

all members of the League and thereby attempt to safeguard what had been won by conquest. By employing the concept of "aggressor," and by providing for sanctions to punish a State that resorted to force to regain lost territory they could provide barriers to protect themselves against Germany's threat to their position of supremacy. By dropping Wilson's idea of an understanding which would legalize efforts to obtain territorial readjustment by peaceful means, the Allied achievement would be simplified and protected from the need of making concessions to dissatisfied powers or defending anew their claims to territory taken from Germany. The Treaty of Versailles, as finally drafted, sanctified conquest by providing for the transfer of rights of sovereignty and control over enemy territory in the face of the opposition of the transferor and regardless, at times, of the desires of its people. 38 The shift, during the drafting of the Covenant, from President Wilson's proposal for the modification of territorial settlement, set out in Article III of his first draft, to the provision in Article 19 that the Assembly may from time to time advise the reconsideration by members of the League of treaties which have become inapplicable substituted an ineffective procedure of "recommendation" for what was intended as a legal right of a State to have its position reconsidered. This advisory function of the League afforded Germany little support for the contention that it was entitled as of a legal right to demand a restoration to her of what had been taken by force. The practice of States reveals the unceasing propensity of defeated States to endeavor to regain by force what they have been obliged to relinquish to a foe, especially where the sacrifice entails the transfer of territory. The records of France's ceaseless military preparation to recover Alsace-Lorraine, of the prolonged struggles of the Polish people to achieve the restoration of Poland, would seem to foretell certain results which might be expected to follow a rigid treaty arrangement such as the Treaty of Versailles. 38

See Hyde, "Conquest Today," Am. f . I. L„ X X X , 471-76.

RECONSIDERATION OF TREATIES

25

Germany's attitude toward and response to the demands of the Allied Powers at Paris in 1919 could afford little assurance that the German people would maintain scrupulous respect for the treaty obligations imposed upon them. Germany's efforts to recover her lost territory would have to be confined to conquest or to the negotiation of a new agreement with the powers directly interested. Her duty to respect the new status of her former possessions arose, not from the provisions in the Treaty of Versailles, but from the fact that the lost territory had become a part of the domain and under the jurisdiction of other States. T h e Principal Allied Powers which participated in the transfer of German territory would no doubt have an interest in any change proposed, but the final decision would rest with the power or powers negotiating with Germany for a readjustment of their territorial boundaries. Such an arrangement could take place without reference to the terms of the Treaty of Versailles. 39 A treaty may take cognizance of achievements wrought by military conquest or confirm the requirements imposed by a victor. Any modification of such a settlement would require a fresh agreement, not a modification of the treaty which recorded the transfer of ownership and control; especially where no provision was made for a subsequent revision of the original agreement. Had the territorial guarantee inserted in the Covenant been accepted by the contracting powers subject to specific terms of subsequent revision of the territorial agreement, as suggested by President Wilson, and had the successor States received the cession of German territory with this special reservation, the rights of the 39 For a full development of this idea see Hyde, "The Revision of Treaties," The Hungarian Quarterly, II ( 1 9 3 6 - 3 7 ) , 203 ff.; see also Sir John Fischer Williams, Some Aspects of the Covenant of the League of Nations (London, 1934), p. 177. The basic fact relating to this question has been stated as follows: "The satisfaction of the desire of certain States which were deprived of territory through the peace settlements in conclusion of the World War to regain what was taken from them by their former enemies would not necessitate a revision of the instruments which recorded confirmation of those deprivations, but rather a retransfer by successors to the sovereignty of what they acquired." Hyde, op. cit., p. 206.

26

RECONSIDERATION OF TREATIES

States concerned would have been restricted by the provisions in the Treaty of Versailles. Under these conditions a modification of the territorial agreement might have involved a revision of the original terms. The refusal of the Principal Allied Powers to join the territorial guarantee and the revision clause denied the dissatisfied States a right to require, under the terms of the treaty, a reconsideration of the territorial settlement. The text of Article 19 of the Covenant does not manifest an intent on the part of the signatory powers to give to any party to the Treaty of Versailles a right to demand during the life of the instrument modification of its terms or release from an obligation to observe the treaty provisions. The official records of the Peace Conference proceedings in 1919, together with the preliminary notes and texts, do not provide any extrinsic facts to support any other conclusion. All proposals for a revisory clause, granting a signatory power a right to require a revision of the agreement, were rejected by the authors of the Covenant. It is obvious that they did not make provision for revising the treaty but introduced a possible procedure for dealing with treaties which are thought to be inapplicable. The members of the League were not obligated to accept the recommendation of the Assembly in behalf of conciliation if a treaty should be considered to be no longer applicable. There is no intimation of any test to be applied by the Assembly or by the League members to determine whether a treaty is still binding. No method was suggested for handling such a question; no procedure outlined to guide interested parties in seeking a hearing; and no legal right or obligation to have such matters decided by the Assembly. Moreover, the Assembly had no authority to do more than "advise" the reconsideration by members of the League of treaties which have become inapplicable. Such advice, or recommendation, if proffered, would be optional; the signatory power being free to accept or reject the proposal. The second part of Article 19 ("the reconsideration of inter-

RECONSIDERATION OF TREATIES

27

national conditions whose continuance might endanger the peace of the w o r l d " ) deals with questions which do not directly pertain to treaties. T h e employment of the provisions in Article 19 is a question of policy, not of law. In view of this fact the course to be pursued by the Assembly or by a League member in dealing with any question that may come within the scope of the article will be determined rather by political factors than by legal requirements. Notwithstanding its inadequacy as an effective measure for revising the Treaty of Versailles, Article 19 represents an attempt of modern States to deal with the problem of peaceful change within the framework of a comprehensive system of legal organization. T h e chief point of significance, however, is the fact that the contracting States did not incorporate in Article 19 a provision granting a legal right to a signatory power to require a revision of the original agreement. In case a party to the treaty is unwilling to reconsider the terms of the settlement and a dissatisfied power refuses to abide by its commitments, there appears to be no corrective measure short of armed force or repudiation. If signatory powers are willing to revise the terms of the treaty, it would seem that this article is of little value unless the interested parties prefer to submit their case to the Assembly for advice. T h e post-war efforts of certain League members to achieve release from treaties which they contended were no longer applicable have revealed the inability of the Assembly to effect treaty changes under the terms of Article 19 of the Covenant. 4 0 40

Hu, op. cit., "The Practical Application of Article X I X , " pp. 18 ff.

C H A P T E R III

REVISION OF P E R M A N E N T

CLAUSES

IN P A R T XII ARTICLE

377

P A R T X I I o£ the Treaty of Versailles, entitled "Ports, Waterways and Railways," deals with the rights and duties of the signatory powers relative to designated transit and transport. Certain articles in this part of the treaty provide for the control, by administrative agencies, of specific ports and rivers and for the regulation of international railway service. Section IV of Part XII concerns the settlement of "Disputes" over treaty interpretation and the "Revision of Permanent Clauses" relating to an administrative regime. 1 T h e specific provision for subsequent modification of articles in Part XII which deal with administrative matters is set forth in Article 377, as follows: A t any time the League of Nations may recommend the revision of such of these Articles as relate to a permanent administrative regime.

In the event that changed conditions warranted a subsequent modification of terms the League of Nations might serve in an advisory capacity to recommend the revision of such of the articles referred to as relate to a permanent administrative regime. Under the terms of the article quoted above, no legal duty was imposed upon the contracting States to acquiesce in the League's recommendation. T h e following articles of the Treaty of Versailles were subject to recommendations for revision: Articles 340-42, 344, 347, 350, 1

Article 3 7 6 states that " D i s p u t e s w h i c h m a y arise between interested P o w e r s

with

r e g a r d to the interpretation and application of the preceding Articles shall be settled as p r o v i d e d by the L e a g u e of N a t i o n s . " F o r the text of Article 3 7 8 see p. 8 5 .

REVISION OF PERMANENT CLAUSES

29

354, 364, and 366. Article 340 provided for the administration of the Elbe River by an International Commission; Articles 341 and 342 set up an administrative regime for the Oder and the Niemen; Article 344 pertained to the location and powers of the commissions referred to in the three articles above. Article 346 re-established the European Commission of the Danube with the representatives of Great Britain, France, Italy, and Rumania constituting the commission; Article 347 established an International Commission to administer the Danube from its source to the Ulm, the point where the competence of the European Commission would begin; Article 350 referred to the works on the Iron Gates on the Danube and the commission entrusted with the administration of this part of the river; Article 354 restored the Convention of Mannheim, of October 17, 1868, and the control of the Central Commission, provided for in the convention, relating to the Rhine and the Moselle; Article 364 gave to the Czechoslovak State the use of the ports of Hamburg and Stettin, in Germany, for a period of ninety-nine years and placed these ports under the general regime of free zones, with the delimitation of these areas and the establishment of conditions for their utilization to be decided by a special commission; and Article 366 renewed the conventions and arrangements signed at Berne, on October 14, 1890, September 20, 1893, July 16,1895, June 16, 1898, and September 19, 1906, regarding the transportation of goods by rail. The first official action of the Peace Conference relating to a program for the handling of transit and transport affairs was taken on January 23,1919, when the Supreme Council adopted the resolution submitted by Lloyd George authorizing the appointment of a special commission "to inquire into the question of the international regime of Ports, Waterways and Railways." 2 The commission was appointed by the Peace Conference in plenary session, on January 25.® 2

Miller, Diary, XIV, 12. The commission was to be composed of fifteen members, two for each of the great powers, the United Sûtes, the British Empire, France, Italy, and Japan, and five elected 3

30

REVISION OF PERMANENT CLAUSES

M. Claveille, of France, urged the delegations attending the first meeting of the Commission on Ports, Waterways, and Railways, on February 3, 1919, to prepare a list of general rules pertaining to transport and navigation which could be applied later to specific cases. This appeared to be the logical course for the commission to take in view of the fact that the structure of the new Europe would determine largely the explicit designation of the ports, rivers, and railways to which an international regime would be applied. The more important questions to be considered by the commission, according to the French viewpoint, were the following: ( 1 ) the characteristics which ports, rivers, or railways should possess in order to necessitate being placed under an international regime; (2) the delimitation of the area or section of railways or waterways to which the international regime should extend; (3) the States which were to participate in the international regime of any given railway or waterway; (4) the authorities to be entrusted with the administration of international railways and waterways. 4 The French proposed to start with rivers. Since there were specific waterways which had been regulated by international conventions, it would be comparatively easy to draft general rules for the administration of additional rivers which would be declared international. Later they could do the same in connection with ports. It would be necessary to establish a new regime for railways in view of the general confusion in rail transport caused by the break-up of the Austro-Hungarian Empire and the transfer of German territory to neighboring powers. 5 The British delegates were in accord with the idea of defining certain broad principles "common to the regulation of all international rivers, or of all international railways or of free ports." A special proposal subby all the powers with special interests. The small powers chose at their meeting, on January 27, Belgium, China, Greece, Serbia, and Uruguay to elect one representative each. Delegates from Poland, Portugal, Rumania, and Czechoslovakia were added after the first meeting of the commission, on February 3. Miller, Drafting the Covenant, I, 76, 83 f.; II, 695-97. * Ibid., XII, 2 0 1 - 6 . * Miller, Diary, XI, 203 f.

REVISION OF PERMANENT CLAUSES

31

mitted to the commission by the British, on February 10, 1919, in the form of a draft convention on freedom of inland transit, pointed out that the specific task before the commission was "to decide to which ports, waterways, and railways, geographically specified, an international regime is to be applied." This was considered essential in order to determine the characteristics and practical organization of a particular regime. 6 David Hunter Miller, of the United States, learned from Mr. Sifton, of the British delegation, that the British proposal included rivers between Canada and the United States.7 Mr. Miller submitted a reservation to the British draft as to all rivers in North America, pointing out that six of these rivers already formed the subject of special conventions between Canada and the United States.8 He urged the commission to name in the treaty the rivers to which they would apply the principles discussed under Article 1 of the British and French drafts. 9 Mr. Crespi, of Italy, proposed an amendment to Article 8 of the French draft to the effect that the "administration of the waterways referred to in Article 1 should be entrusted to an International Commission, the composition and duties of which should be settled by the special regulations applying to each particular river." 6

10

Ibid., XI, 235. Two subcommissions were appointed to study and report on special subjects pertaining to the broad field of transit and transport. They received copies of the draft conventions prepared by the British and the French delegations bearing on freedom of transit, international rivers, free ports, and international railways. The procedure favored by the chairman was to have the representatives of the British and French governments read their respective drafts. A general discussion would follow. A drafting committee should then be asked to prepare a comprehensive draft, incorporating important observations and amendments which might mark the open discussions. Miller, Diary, XII, 354 f. 7 Ibid., I, 126. 8 Ibid., XII, 355; United States Treaty Series, No. 548; Malloy, op. cit., Ill, 2607 ff.; also Br. & For. State Papers, CII, 137 ff. 9 For the text of the "Draft Convention relating to International Rivers," submitted by the British, and the proposed "Draft concerning International Rivers," prepared by the French, see Miller, Diary, XII, 361, 366 ff. Article 1 of the drafts became Article 331 of the Treaty of Versailles with specific rivers named as Mr. Miller suggested. 10 ibid., pp. 359 ff. Article 8 of the French draft, p. 368. There was general agreement concerning the necessity for establishing freedom of navigation. The difficulty arose over

REVISION OF PERMANENT CLAUSES

32

In view of the fact that there w a s not an international commission for all international rivers, and since the regime already set u p for particular rivers was satisfactory, the commission w o u l d have to provide for a new regime for certain waterways. A n international commission might be set up in any one of three w a y s : either by arrangements between the riparian States, or at the request of another interested State, or on the initiative of the L e a g u e of Nations. Specific provision m i g h t be made to vary the p o w e r of each international commission to meet the requirements of each international river. Even in cases w h e r e there were only

two

riparian States it was considered advisable to set up a regime on a basis of w i d e internationalization; for example, the regime for the Elbe, the Oder, and the Vistula. N e w l y formed States m i g h t be required to deal directly w i t h G e r m a n y if such arrangements were not made. 1 1 It w o u l d be essential to give such commissions w i d e powers to control and direct activities on the rivers internationalized. 1 2 M r . Crespi suggested that it w o u l d be the task of another international body "to m o d i f y , if necessary, the regime decided upon for a given river, or the composition of a given Commission." A special d r a f t i n g committee was authorized to submit a draft of the clauses to be inserted in the preliminary peace treaty bearing upon the international regime of rivers. T h e draft was completed on March i , 1919, and delivered to the general Commission on Ports, Waterways, and Railways on that date. A consideration of the draft relating to the international regime of rivers engaged the members of the commission at their meeting on M a r c h 4. T h e necessity of determining the routes to be subjected to conthe question of the administration of international rivers. Mr. Segers, of Belgium, suggested three methods by w h i c h an administration might be effected: ( i ) by an international commission, ( 2 ) an interriparian commission, or ( 3 ) by entrusting administration to the only riparian State interested. 11

Ibid., p. 374. T h r e e basic questions had to be decided: ( 1 ) the method of administration; ( 2 ) the composition of the international commission w h e n set up; and ( 3 ) the powers of the commission. Ibid., p. 375. 12

REVISION OF PERMANENT CLAUSES

33

trol before stating the definite provisions of an international regime was stressed. Mr. Miller, speaking for the United States, said that it did not seem possible "to establish a Convention to include all the navigable rivers of the world." He proposed that specific rivers in Europe be enumerated and a special international regime be set up to administer these waterways. On March 10, 1919, Mr. Sifton, of the British delegation, read the following clauses which his government wished to see inserted in the peace treaty: 1. T h e conditions of the Convention relating to the international regime of waterways shall apply from now onwards as far as the High Contracting Parties are concerned to the following rivers: T h e Rhine, the Elbe, the Oder, the Vistula, the Danube, the Rhine-Danube Canal, and all signatories of the Treaty shall undertake to use their influence to obtain the concurrence of all the interested neutral Powers. 2. T h e administration of the above-mentioned waterways shall devolve on International Commissions composed in the first instance of representatives of the Powers specified in each case . . . 1 S

A special case was made of the Rhine waterway. After prolonged discussion of the interests of the various riparian and nonriparian States it was decided that a separate chapter should be inserted in the peace treaty providing for a central commission to govern the Rhine. It was understood that the Allies should have a majority representation on the central commission. It would also be necessary to require German adherence to certain changes to be made in the regime of 1868, as set forth in the Mannheim Convention. 14 For the time being it was considered advisable to take the Mannheim Convention as a working basis for the Rhine regime, subject to certain amendments. The purpose of the commission, according to Mr. Hudson, of the United States, was not to "make a new Convention, but merely to insert in the Rhine Convention some of the principles from the General Convention See "Draft relating to International Rivers," Miller, Diary, XI, 278 f. For proposed clauses applying to waterways, which the French submitted for insertion in the peace treaty, sec ibid., p. 285. 13

14

REVISION OF PERMANENT CLAUSES

34

on International Rivers relating to the freedom of navigation, dues and taxes."

15

M . Claveille, of France, stated emphatically that he could not accept clauses w h i c h would be applicable to the R h i n e and not to other rivers. T h e chairman stated that there w o u l d be no object in providing for a general convention to cover various rivers if the main principles of the general convention were to be inserted in the clauses covering each separate river cited as international in the treaty of peace. 1 8 T h e Secretary-General proposed the f o l l o w i n g text for insertion in the treaty: "Article i . T h e Danube is declared international f r o m its mouth to U l m . . . . Articlc 3. W i t h i n six months of the signing of the Preliminary Peace Treaty, an International C o m mission . . . shall meet with the object of d r a w i n g u p a definitive statute for the Danube." Other waterways declared as international were the Danube f r o m the point at w h i c h it becomes navigable d o w n to the sea, together with its tributaries, channels and lateral canals, and the Rhine-Danube waterway, should it be constructed. 1 7 T h e Central Powers were to be required to adhere to the definitive statute w h i c h w o u l d be drafted. Special clauses relating to the Elbe, Oder, Danube, and the Rhine-Danube waterw a y were proposed by the Secretary-General, on M a r c h 22, 1919, for insertion in the preliminary treaty of peace. 1 8 General Mance, of Great Britain, favored the insertion in the peace treaty of clauses establishing an international regime f o r the Elbe, the Oder, the N i e m e n , and the Danube on the same basis as the international regime for the Rhine, that is, "subject to the provisions of any future convention." T h e British urged further that the regime for the Elbe, the Oder, the N i e m e n , and the Danube come into force immediately f o l l o w i n g the signing of the preliminary peace treaty. 1 9 T h e regime proposed w o u l d adhere to the general principles regarding rivers w h i c h the commission had Ibid., p. 291. " Ibid., pp. 390 f.

15

" Ibid.

" Ibid., pp. 384 f. 1» Ibid., p. 398.

REVISION OF PERMANENT CLAUSES

35

carefully considered. It was hoped that these general principles would eventually be incorporated in a general convention applicable to all international rivers. During the meeting, on March 24, the Secretary-General stressed the two assignments before the commission: first, to phrase a general definition of the river systems to be subjected to internationalization; second, to formulate the method of indicating by name the rivers and river systems to which the international regime would apply. They should expressly state, for example, that the Danube would be internationalized as far as Ulm in order to avoid the difficulty of trying to define by a convention the scope of the international regime. They would eventually be forced to include all river systems in Europe if specific waterways were not indicated by name. T h e geographical limits to which internationalization should extend would have to be defined. 20 The chairman called for a discussion of the specific rivers to be placed under a permanent administrative regime. T h e Elbe, the Oder, the Niemen, and the Danube were named with special reference to the extent of the waterways which would be subject to international control. A special draft of the general convention relating to ports was prepared and submitted to the commission on March 26, 1919. 2 1 A complete draft of the clauses on ports, waterways, and railways to be inserted in the preliminary peace treaty, except the clauses pertaining to the Elbe, the Oder, the Niemen, the Danube, and the Rhine, was presented for discussion by the commission on March 29.2 2 On March 30 Mr. Hudson, of the United States, submitted the following addition to the draft clauses: " A t any time the League of Nations may recommend the revision of such of these clauses as relate to a permanent administrative regime." 2 3 This proposal embodied the suggestion made by Mr. Crespi 2 4 to the effect that 20 2S

¡bid., pp. 400 f. ¡bid., p. 58.

21

22 Miller, Diary, XII, 22. Ibid., pp. 42 f. 24 Supra, p. 32.

REVISION

36

OF

PERMANENT

CLAUSES

it would be the task of another international body "to modify, if necessary, the regime decided upon for a given river." The text of the clauses concerning ports, waterways, and railways and those relating to the Elbe, the Oder, the Danube, the Niemen, the Moselle, and the Rhine rivers, prepared for insertion in the peace treaty, was adopted by the commission on March 30, 1919. 2 5 The Hudson proposal for subsequent revision of the clauses relating to a permanent administrative regime was recorded as Article 61 in the draft of April 7, 1919. T h e provisions concerning disputes and subsequent modification of permanent clauses were grouped under a separate chapter and later adopted as Section IV of Part XII of the treaty. The report of the commission on April 7 brought to the attention of the Supreme Council the fact that the draft clauses provided for: [a] definite and permanent regime of administration and exploitation for the Rhine, the Elbe, the Oder, and the Niemen, reserving the possibility of the future application to these river systems of whatever regulations may later be imposed by a General Convention drawn up by the Allied and Associated States . . . dealing with rivers regarded as international. 26

In the matter of the Danube the commission did not consider it advisable to incorporate in the preliminary peace treaty a definitive statute for a river in which so many different interests, at times conflicting, were involved. The commission provided, however, for a provisional regime, at the same time stipulating for the acquiescence of the enemy powers in the definitive regime at a later date. The commission urged the replacing of the provisional regime by a definite statute governing the river and recommended that a conference be called within three months for the express purpose of drafting such a statute.27 25

Miller, Diary, XII, 78, 87.

28

Ibid., XI, 14.

27

Ibid., pp. 14 f.

REVISION OF PERMANENT CLAUSES

37

The Supreme Council decided, in April, that there would be no preliminary peace treaty and that all stipulations to be inserted in a single treaty with Germany should be restudied. The Commission on Ports, Waterways, and Railways reconsidered the first draft of clauses intended for the preliminary peace treaty. A second report was drafted by the commission and delivered to the Surpreme Council on April 25. Among the additional articles incorporated in the draft was one anticipating the possible construction of a Rhine-Danube navigable waterway. This waterway, according to the stipulations in the treaty, was to be placed under an international regime. The second draft retained Article 61 without changing the wording in the first draft, of April 7-28 The article authorizing the League of Nations to recommend the revision of the articles which relate to a permanent administrative regime was later inserted as Article 377 in the Treaty of Versailles. The German Observations on the Conditions of Peace, delivered to the Allies under date of May 29, 1919, pointed out that Germany was prepared to accept the provisions for revision of the agreements pertaining to the river systems with the definite understanding that only "the riparian States are to participate in the Administration." The extent to which riparian States were to be permitted to participate in the administration would be determined "in proportion to their economic interests, to the length of the river within their territories, and to their river conservancy expenses." 29 Germany favored the retaining of the organization and functions of the Central Commission for the Rhine, demanded a place on the commission set up to control the mouth of the Danube and the right to participate ex officio in all matters pertaining to the Danube, opposed the creation of a commission to administer the Oder on the ground that this was entirely a German river, and 28

Ibid., p. 74.

28

Ibid., p. 89.

REVISION OF PERMANENT CLAUSES

38

offered to negotiate directly with the riparian States in the matters pertaining to the N i e m e n and the Vistula rivers. 30 T h e reply of the A l l i e d and Associated Powers to G e r m a n y , on June 9, 1919, stressed the fact that the provisions pertaining to internal communication routes did not include the w h o l e of the G e r m a n river and canal systems. T h e y applied only to five specifically named river systems w h i c h are all international as defined by the Congress of V i e n n a and by later conventions. 3 1 T h e A l l i e d note further pointed out that the functions of the river commissions were limited to the practical application of the principles laid d o w n either in Articles 332-37 of the treaty, or in a future international convention w h i c h would be subject to the approval of the League of Nations. T h e i r powers were extended in all cases to the territory of at least one A l l i e d and Associated Power as w e l l as to G e r m a n y . 3 2 T h e reason for including nonriparian States on the river commissions was to give representation in accord w i t h the general interest in "free circulation on the rivers regarded as transit routes" and to prevent the strongest riparian State f r o m "abusing her preponderating influence to the detriment of the others." T h e international regime w o u l d be extended ultimately to the Rhine-Meuse and the Rhine-Danube waterways. 3 3 N o change was made in the stipulations in Article 377 of the conditions of peace as a result of the exchange of notes between the A l l i e d and Associated Powers and G e r m a n y . T h e original text of Mr. Hudson's additional clause to the commission's draft of articles to be inserted in the treaty w a s finally adopted without alteration. 30

Ibid.,

p. 90 n .

31

Ibid.,

p. 93. T h e O d e r , f o r e x a m p l e , " f r o m its confluence w i t h the O p p a , w a s de-

clared international under a T r e a t y between A u s t r i a and Prussia dated the 8th A u g u s t , 1839." 32 33

Ibid. By w a y of an annex to the report of June 9 the commission suggested certain c h a n g e s

in Part X I I of the treaty pertaining to the regime of the D a n u b e . For the c h a n g e s si Article 349 see ibid., p. 97.

REVISION OF PERMANENT CLAUSES

39

In view of the highly technical nature of this aspect of international relations a close check was necessary on any proposal for altering the regime provided for in the treaty. 34 The League of Nations, with its power to establish special technical commissions, was made the clearing house for information and negotiations bearing upon international transit and transport. T h e advisory function of the League, provided for in Article 377, was similar in import to the role of the Assembly under Article 19 of the Covenant, where its advice might be given in the case of treaties which have become inapplicable. Article 377 differs from Article 19 only in that no factual conditions are prerequisites to a recommendation, and it is the League of Nations rather than the Assembly that is named to render the advisory service. It does not impose upon the signatory powers a legal obligation to acquiesce in the recommendations any more than the League members were required to act in accord with the advice which the Assembly might give concerning the reconsideration of treaties. It suggests rather a general procedure without stipulating the course to be followed by the League or by the interested powers in attempting a revision of the articles listed. The rush of work at the Peace Conference together with the complexity of the problems pertaining to international navigation prompted the Allied Powers to accept provisional regulations for certain international waterways. Under Article 379 of the Treaty of Versailles the Allied and Associated Powers clearly reserved for themselves the authority to revise the original treaty regulations applying to a permanent administrative regime, with Germany obligated to adhere "to any General Conventions regarding the international regime of transit, waterways, ports or railways 34 The Commission on Ports, Waterways and Railways urgently requested in their report of April 25, 1 9 1 9 , that the Peace Conference make no modification in the draft clauses submitted in view of the fact that the whole matter of transportation was highly technical. They pointed out that the minutes of the proceedings of the commission and subcommission afforded adequate records from which parties to a dispute over the correct interpretation or application of clauses could find the meaning which the parties who drafted and the powers who later accepted the treaty clauses gave to these treaty terms. Ibid., p. 44.

40

REVISION OF P E R M A N E N T

CLAUSES

which may be concluded" by them. 35 Although the approval of the League of Nations was stipulated, there was nothing to indicate that the Allied and Associated Powers were legally bound to acquiesce in the League's decision or that the League had the power of veto in considering the terms of the general convention to be drawn up by the powers named. The text of Article 377, together with the records of the proceedings of the commission appointed to draft the articles in Part XII of the treaty, does not reveal any design or intent to make revision of Part X I I a legal requirement. There is no indication of the conditions which would constitute a prerequisite for the League's recommendation for a change. The Allied and Associated Powers reserved the right to prepare a general convention relating to certain waterways, which would supersede the regime set out in various articles in Part X I I . Certain international commissions were authorized to prepare a project for the revision of existing international agreements and regulations applicable to waterways, the project to be drawn up in conformity with the general convention. These functions to be performed by the Allied and Associated Powers and by the commissions were essentially acts of treaty fulfillment, not treaty revision. It was left largely to the discretion of the victor powers to determine the time and nature of the changes to be effected in the permanent administrative regime. 85

For full text of Article 379 see infra, p. 76.

C H A P T E R IV

T R E A T Y MODIFICATION BY A M E N D M E N T S AMENDMENTS

TO P A R T I : A R T I C L E

26

P R O V I S I O N was made in Article 26 of the Covenant of the League of Nations whereby the members of the League could effect necessary modifications of the contractual arrangements set forth in Part I of the Treaty of Versailles. The text of this article is as follows: Amendments to this Covenant will take effect when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly. N o such amendment shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.

The provisions in this article deal primarily with the procedure for amending the first twenty-six articles of the treaty rather than with the legal right of a signatory power to require a modification of the Covenant. They stress the adjective rather than the substantive side of the legal commitments embodied in Part I of the treaty. They introduce a process of treaty modification, however, which may have an important bearing upon the development of international law. The novel feature of this provision for amending the Covenant is the right granted to a group of States whose membership is constantly changing, and whose adherence to the Treaty of Versailles is not a prerequisite for League membership, to effect a fundamental change in the terms of Part I of the treaty. 1 In the normal practice of States a treaty can be amended after 1

Harold J. Tobin, The Terminalion of Multipartite Treaties (New York, 1933), pp. ¿27-30; also "The Role of the Great Powers in Treaty Revision," Am. f . I. L., XXVIII, 487-505.

42

TREATY MODIFICATION BY

AMENDMENTS

it has been put into force by the process which the contracting parties followed when the agreement was originally concluded; the subsequent consent of all the powers being required unless the authority to amend the original agreement was delegated to a particular group of States.2 It is an exception to the rule when 2 T h e procedure followed in amending the Statute of the Permanent Court of International Justice presents an interesting contrast with the provisions for amending certain parts of the Treaty of Versailles. T h e statute of the Permanent Court of December 1 6 , 1 9 2 0 , made no provision for the adoption of future amendments. T h e modification of the statute set forth in the protocol of revision of September 1 4 , 1 9 2 9 , likewise failed to provide for a process of amendment. As the statute depends for its efficacy on the protocol of signature to which it is annexed, the process of amendment would seem to require formal concurrence by all the signatories to the original protocol of signature. In the absence of specific provisions to the contrary the stipulations of an international agreement can be modified only with the consent o£ all parties. T h e general rule does not require, however, that such consent be manifested in any particular w a y . In the case of the Protocol of Revision of 1929 it was provided that the Assembly should "by a suitable resolution, adopt for its part the amendments to the Statute of the Court and the draft protocol relating thereto." On September 1 4 , 1 9 2 9 , the Assembly adopted the amendments to the statute of the Permanent Court and the draft protocol. T h e protocol provided that it should "be presented for signature to all the signatories of the Protocol of December 16, 1 9 2 0 . " On January 1 , 1 9 3 4 , the protocol of revision had been signed on behalf of all the signatories of the protocol of signature of December 16, 1920. All the States or members of the League which ratified the protocol of 1 9 2 0 had ratified the new protocol with the exception of Abyssinia, Brazil, Panama, and Peru. Their ratifications were required for the entry into force of the protocol of revision. Abyssinia ratified later. Panama announced in a note, dated July 5, 1 9 3 3 , to the Secretary-General of the League, that as its National Assembly had not yet approved the amendments to the Court's statute, it could not ratify the protocol of revision, but that " i t saw no objection to the entry into force of that Protocol." In a resolution adopted by the Assembly of the League, September 1 1 , 1 9 3 5 , the first committee of the Assembly was authorized to consider the steps to be taken in order that the protocol of revision could be put into force. T h e committee stated in its report that the States parties to the protocol of December 16, 1920, should have ratified the protocol of revision or "should have assured the Council that they had no objection to the coming into force of the amendments." Lacking such expression from the States which had ratified the protocol of 1920, the protocol of revision "could not come into force." An unusual procedure was recommended by the committee to prevent further delay in putting the revised statute into force. T h e Council, at the request of the Assembly, was to take the nccessary measures to put the protocol into force on February i , 1 9 3 6 , if the last instruments of ratification were not deposited before that date and " o n condition that the States which have not already ratified have not in the meanwhile made objection to the contemplated procedure." T h e Assembly approved this course in a resolution adopted on September 27, 1 9 3 5 . A letter, dated October 10, 1 9 3 5 , was dispatched from the Secretary-General of the League to the governments of Brazil, Panama, and Peru, requesting them to notify the Secretary-General in case these three governments should desire to formulate any objection to the procedure contemplated by the Assembly's resolution. Panama had already informed the Secretary-General that it raised no objection to the protocol entering into force. N o formal objections were registered in the replies from Peru on October 3 1 , 1 9 3 5 , and f r o m Brazil on November 8, 1 9 3 5 . In accordance with the Assembly's resolution of September 2 7 , 1 9 3 5 , the Secretary-General informed the States members of the League on February 3, 1 9 3 6 , that the conditions pre-

TREATY MODIFICATION BY AMENDMENTS

43

those negotiating a multipartite treaty make provision for amendments such as that set forth in Article 26 of the Covenant. 3 Amendments to treaties in the course of negotiation and prior to the final exchange of ratifications are obviously in a different category. 4 The launching of an experiment in continuous international co-operation through the League of Nations, under the restrictions of a written instrument, called for a more liberal provision for modifying the terms of the agreement. 5 The design of the authors of the League Covenant, which was accepted by the signatory powers, indicates the nature and scope of Article 26 of the Covenant. N o provision was made for the amendment of Part I of the Treaty of Versailles in the early drafts of the proposed Covenant, or in the original Hurst-Miller text adopted, on February 3, 1919, as the basis of discussion by the commission on the League of Nations. T h e preliminary texts had limited all proposals for subsequent revision of the treaty to territorial arrangements and later to a reconsideration of treaties which have become inapplicable. The amendment clause embodied in Article 26 was the result of repeated attempts made by the British delegation to have the commission accept an arrangement which would allow for a subsequent modification of the terms of the Treaty of Versailles. 6 scribed had been fulfilled and that the protocol had entered into force on February 1 , 1936. Brazil's instrument of ratification was finally deposited on January 26, 1937. For a full account of the procedure followed in amending the statute adopted in 1920 see Publications of the Permanent Court of International Justice, Annual Report, Series E—Nos. 1 0 - 1 3 ; also Manley O. Hudson, The Permanent Court of International Justice (New York, 1934), pp. 182 ff.; also "Amendment of the Covenant of the League of Nations," 38 Harv. L. Rev., 903 ( 1 9 2 5 ) . 3 Various conventions of the Universal Postal Union provide for amendment otherwise than by unanimous agreement. See Article 20 of the Convention of June 1, 1878. Br. & For. State Papers, L X I X , 2 1 7 ; Article 26 of the Convention of July 4, 1891, ibid., LXXXIII, 535; ibid., L X X X I X , 77. 4 David Hunter Miller, Reservations to Treaties (Washington, 1 9 1 9 ) , pp. 1 1 8 , 1 6 1 . See also Senate Report No. 176, 36th Congress, 1st Session, pp. 3 f.; Part 2, p. 2. 5 The Constitution of the United States provides for its own amendment without the nccessary concurrence of all the states of the American Union. 6 See supra, pp. 10, i t , 1 3 , 16, 20, 22.

44

TREATY MODIFICATION BY AMENDMENTS

T h e first official proposal for an amendment clause to be inserted in the treaty was made by the British delegation on February 6,1919. The British draft proposals were circulated during the fifth meeting of the League commission, on February 7,7 with the suggestion that the following article should be added: "Article 23: Amendments to the constitution and functions of the League can be made by a unanimous vote of Executive Council confirmed by a majority of the Body of Delegates." 8 The eighth meeting of the commission, on February 1 1 , marked the first general discussion of the article providing for amendments to the Covenant. 0 T h e form of the article touched the important question whether the members of the commission were attempting to creatc an institution higher in authority than the States or whether they were drafting a section of a treaty in which the established rules of international law governing treaty revision would apply in full force. These alternatives produced corresponding proposals for amendments to the Covenant. The British text provided for amendments to be effected by votes of the League members in the executive council and the body of delegates; each body being a conference of the representatives of governments. In opposition to this plan, David Hunter Miller, of the United States, supported the formula which provided for the ratification of each new proposed amendment by the separate States whose representatives compose the executive council and the body of delegates of the League. Mr. Miller, in a memorandum prepared on February 9, dealing with the proposed new article submitted by the British, argued that "the Covenant is a treaty; or strictly speaking, a part of a treaty, and any amendment thereof is technically, and might indeed be substantially, a new engagement." 1 0 He added that the language of the British pro8 ~ Miller, Drafting the Covenant, I, 1 8 3 , 203 ff. Ibid., II, 5 5 5 . T h e British draft proposal was listed as Article 24 rather than Article 23 as oridnally offered for consideration. 10 Miller, Drafting the Covenant, I, 204. Article 4 of the text of the American Institute of International L a w Project No. 2 1 reads as follows: "Every amendment, modification, or 8

TREATY MODIFICATION BY AMENDMENTS

45

posal failed to take sufficient note of the essential difference, f r o m the legal standpoint, between the voting of an amendment to the original instrument by the League members in the executive council and body of delegates and the required ratification by governments of a proposed amendment to comply with the constitutional requirements of the signatory powers. M r . Miller suggested as a counter proposal to the British amendment the following wording of the new article: "Amendments to the constitution of the League will be effective when ratified by the States whose representatives compose the Executive Council together with a majority of the States whose representatives compose the Body of Delegates."

11

M . Venizelos, of Greece, contended that they should not make it too difficult for the member States to modify the statutes of the League of Nations. 1 2 H e recognized that the British proposal, if adopted, would compel member States in the minority to submit to the majority votes in the proposals for amendments to the Covenant, or to withdraw f r o m the League. While favoring the provision which would make it easy to revise the statute of the League and to avoid the withdrawal from membership of powers in the minority, M . Venizelos advocated a provision requiring the ratification of proposed amendments by a three-fourths majority of the body of delegates. This would serve as an added safeguard to protect the rights of small powers as members of the League. 1 3 M . Venizelos's suggestion did not satisfy the members of the commission who defended the right of each signatory power to have a voice in revising a treaty to which it is a party. A member of the League might be opposed to a particular amendment submitted by another member and yet wish to retain its membership in the League. addition to the text of a treaty is a new proposal binding only upon the express acceptance of the other contracting parties." Am. /. /. L., Special Supplement, X X , 348. 11 Miller, Drafting the Covenant, I, 204. 13 1 2 Ibid., II, 289. Ibid.

46

TREATY MODIFICATION BY

AMENDMENTS

The British proposal favoring a simple majority of the members of the body of delegates was changed to a three-fourths majority to express more adequately the opinions voiced in the commission meetings. At the close of the discussion by the commission, on February 1 1 , President Wilson read the revised text of the British article sponsored by Lord Robert Cecil. It provided: "Amendments to the Covenant will take effect when ratified by the States whose representatives compose the Executive Council, and by three-fourths of the States whose representatives compose the Body of Delegates." The article was adopted temporarily by the commission. 14 The new text made adequate provision to safeguard the rights of the States represented on the Council of the League of Nations in the matter of amendments to the Covenant. For members of the Assembly it was not sufficient to protect the right of the power not willing to ratify a proposed amendment. 1 5 A n additional clause was required to permit a dissenting power to withdraw from membership in the League. The members of the League commission, desirous of securing the opinion and suggestions of various leaders regarding the proposed Covenant of the League, submitted the draft Covenant to the plenary meeting of the Peace Conference on February 14, 1919. 1 0 A flood of criticisms and suggestions followed this reading of the text. Numerous proposals for altering the Covenant were received by the League commission. One proposal bearing upon the article providing for amendments to the Covenant was submitted by Elihu Root and cabled by the Department of State to Robert Lansing of the American Delegation, on March 28. In his proposed amendment Mr. Root made the following suggestion: A d d to Article twenty-four the following: T h e Executive Council shall call a general conference of members of the League to meet net less than five or more than ten years after the signing of this convention for 14

¡bid., p. 290.

« Ibid., 1,205.

1« Ibid., II, 326.

T R E A T Y MODIFICATION BY AMENDMENTS

47

the revision thereof, and at that time, or at any time thereafter upon one year's notice, any member may withdraw from the League. 17 A withdrawal clause had already been inserted in Article I, paragraph 3, of the text of the Covenant so Mr. Root's proposal on this point was of little value. Proposals for amending the Covenant could be made yearly in the Assembly meeting, so there was no need to make plans for a revisory conference as Mr. Root suggested in his draft amendment. Representatives of certain neutral powers met with the members of the League commission on March 20-21 to discuss proposed changes in the text of the League Covenant. The amendments submitted by the neutral powers proved to be more helpful in the drafting of the final text of Article 26 of the Covenant. The representative of Chile pointed out that if the powers agreed upon the League of Nations for perpetuity they would obligate their governments indefinitely, thus endangering the stability of the League. It seemed advisable to give a little flexibility to the agreement, creating periods, cases, and conditions under which a State would be allowed to withdraw. 1 8 The representative of Switzerland proposed the adjunction of a paragraph which would be a corrective of the amendment article. The Swiss proposal stated that "In case of amendments to this Covenant extending to its essential (elements) or creating, modifying or abolishing special rights and obligations with regard to certain States or groups of States, the States which have voted against such amendments may withdraw from the League." 1 9 17 Ibid., I, 379-81. Mr. Root's proposal for a revisory conference within five or ten years was based upon his consideration of the situation in Europe in 1919 and the futility of guaranteeing indefinitely a settlement which would be subjected to inevitable change. In a letter to Will Hays, March 29, 1919, Mr. Root stated that if the arrangement were made perpetual "it would be an attempt to preserve for all time unchanged the distribution of power and territory made in accordance with the views and exigencies of the Allies." He shared the views of President Wilson regarding the necessity for a guarantee clause to reinforce the lines of reconstruction set out in the peace treaty, but such a commitment should be balanced by a definite revisory provision. See "Letter of Honorable Elihu Root to Honorable Will Hays regarding the Covenant of the League of Nations," Am. /. I. L., XIII, 580-94. 18 18 Miller, Drafting the Covenant, II, 644. Ibid., p. 645.

48

TREATY MODIFICATION BY AMENDMENTS

The influence of the changes proposed by the neutral powers is to be noted in the additional paragraph adopted by the commission at a later meeting as a corrective to the clause providing for amendments to the Covenant. The question of withdrawal from the League by a member which dissented from the opinion of the majority had been discussed prior to the conference with the neutral powers. The thirteenth meeting of the League commission, on March 26, 1919, renewed the discussion by the members regarding the article on amendments. Lord Robert Cecil proposed the deletion of "three-quarters" and the substitution of "a majority" of ratifications by members of the body of delegates for amending the Covenant. This change would meet the objection that the Covenant would be practically unalterable if three-fourths of the members were required to ratify amendments to the Covenant. 20 M. Venizelos opposed the change on the ground that the smaller States would lose more of their rights by such a provision. This objection raised again the question of withdrawal from the League in case a power failed to ratify a proposed amendment to the Covenant. 21 The commission adopted the Cecil proposal for amending the Covenant by the ratification by a simple majority in place of a three-fourths majority of the members of the Assembly.22 The proposed draft of Article 24 of the Covenant, recorded later as Article 26, read as follows, on March 26: Amendments to this Covenant will take effect w h e n ratified by the States whose representatives compose the Executive Council and by a majority of the States whose representatives compose the Body of Delegates. A n y State a member of the League may, after giving two years' 20

Ibid., p. 357-

At this point in the discussion, President Wilson amendment to the Cecil proposal which he considered of lowed for the withdrawal of a League member after the ratification of the treaty of peace, after giving one year's duties under the terms of the Covenant. Ibid., pp. 357 f. 21

22

Ibid., p. 360.

asked permission to submit an importance. His amendment alexpiration of ten years from the notice and after fulfilling all its

TREATY MODIFICATION BY AMENDMENTS

49

notice of its intention, w i t h d r a w f r o m the L e a g u e , provided all its international obligations a n d all its obligations u n d e r this covenant

shall

h a v e been fulfilled at the time of its w i t h d r a w a l . 2 3

In view of the constitutional provision governing the practice of various States in treaty making it was not possible to obligate a State to abide by a stipulation which allowed for a revision of the agreement to which it was a party without affording it an opportunity to register its consent or dissent. A member of the League could not be compelled to act against its will. On the other hand it was essential to refrain f r o m making the treaty "rigid and unchangeable."

24

Rather than make the serious mistake of blocking

all future attempts to amend the Covenant by peaceful means, the members of the commission agreed to leave the way open for a dissenting member of the League to withdraw; the loss of a League member was considered less serious than the failure to provide for the subsequent amendments to an instrument which might need revision. T h e commission adopted, therefore, the following paragraph to safeguard the rights of a State dissenting f r o m an amendment to the Covenant: "Provided that no such amendment shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League."

25

T h e two paragraphs constituting the provisions in Article 26 for modifying Part I of the Treaty of Versailles allowed for a somewhat novel process of amendment. T h e phrase in paragraph 23 Ibid., pp. 359 f. The drafting committee presented its revised text of the Covenant to the commission on April 5. Listed as Article 25 was a provision to the effect that "Amendments to this Covenant will take effect when ratified by the States whose Representatives compose the Council and by a majority of the States whose Representatives compose the Assembly." The paragraph allowing for withdrawal of League members in case of dissent from a proposed amendment to the Covenant was temporarily dropped, ¡bid., p. 682. 24 Ibid., p. 387. 25 The words "Provided that" were not essential to the meaning of the clause allowing for withdrawal from the League by a dissenting member. As an aid to the French translation Mr. Miller struck out these two words and left the second clause in what was now Article 26 as a separate sentence. A further change in the wording of the proposed article was the insertion of the phrase "Members of the League" for "States" and the "Body of Delegates" respectively. Miller, Drafting the Covenant, I, 473; II, 693.

50

TREATY MODIFICATION BY AMENDMENTS

i of this article suggests that only a majority of the members of the League whose representatives compose the Assembly, together with the members whose representatives compose the Council, need ratify an amendment to the Covenant. In practice, however, the rule of unanimity would prevail, since no such amendment shall bind any member of the League which signifies its dissent therefrom. Accordingly, there has been unanimity in the acceptance of the amendments to the Covenant, even though not all States may have ratified the protocol of amendment. The dissent of a League member would be apparent as such member would thereby terminate its membership in the League. There is no instance of a League member withdrawing on this ground. From the standpoint of international law an amendment to Part I of the treaty is not binding as against a dissenting State. Without a registered dissent, however, a League member is legally bound by the terms of the amendment. The basis of this obligation is, not the failure of a State to register its dissent or that silence may be interpreted as tacit consent, but the fact that the signatory powers agreed in their acceptance of the original treaty terms to this method of amending the Covenant. A privilege was granted each member to dissent from an amendment and withdraw from the League, but it was not considered likely that a State would exercise this right. The advantages to be enjoyed by a League member were thought to outweigh the additional burdens which an amendment might impose upon a dissatisfied power. It should be noted further that as long as the signatory powers acted through the League of Nations a majority of the powers, members of the Assembly and all those belonging to the Council, could effect a change in Part I of the treaty. If they should call a separate revisory conference, which they could do without reference to the treaty provisions, a unanimous decision of all original signatory powers would be required to effect a modification of the Covenant. A modification by means of a majority decision carried with it a requirement that such action be confined within

TREATY MODIFICATION BY AMENDMENTS

51

the limits set forth in the stipulations and regulations governing the League of Nations. The recent interpretations of Article 26 of the Covenant by the League committees show further that the signatory powers in accepting the Covenant intended to make the provision for amendments to the Covenant more than an executive measure for fulfilling a treaty obligation. From a study of the question raised in connection with the application of Article 26 of the Covenant it is seen that the first committee of the Second Assembly of the League of Nations dealt with the question of regulations governing the ratification and rejection of amendments to the Covenant. The right conferred upon any member of the League by the provision in the second paragraph of Article 26 was considered. It was recognized that the terms set forth in this paragraph could not be considered as limiting the effects of the coming into force of amendments which might have received the required number of ratifications.26 Moreover, the binding force of these amendments extends to all members. The only right reserved for those whose opposition to the amendment is unalterable is to express their refusal to accept it; by such refusal they cease ipso facto to be members of the League. Important procedural matters were not provided for in the treaty stipulations concerning amendments. No reference was made in the treaty, for example, to the method of framing and formalizing amendments to be placed before the members of the League for the ratification envisaged in Article 26 of the Covenant. The Covenant itself did not stipulate how proposals of amendments were to be placed before the members of the League. Again the question of the preponderance necessary in the Assembly for voting an amendment was not covered. Would such a proposal require a unanimous vote on the part of the representatives which compose the Assembly or would a majority vote be sufficient ? 28

Records of Assembly, 1921, Plenary, pp. 710 f.

52

T R E A T Y MODIFICATION BY

AMENDMENTS

From the standpoint of the legal effect of the article envisaging subsequent amendments to the Covenant, the question concerning the form in which proposals of amendment should be placed before the members of the League for adoption was of very great importance. T h e form to be given to resolutions of amendment received special consideration by the first committee of the Second Assembly in 1921. It was the opinion of a large number of the committee members that such resolutions in no way formed a draft convention, the product of a diplomatic conference, to which the representatives of the States would have to attach their signatures. It was viewed as the outcome of deliberations on the part of the Assembly acting as an autonomous body in virtue of the competence conferred upon it by the Covenant. According to this view it would be the Assembly's resolution which is subject to ratification by the States, not the signature of their representatives. If this view should prevail, it would be sufficient that every resolution of amendment be drawn up in the form of an act by the Assembly and signed by the President and Secretary-General. Such a procedure might violate the constitutional law of the member States and conflict with diplomatic usage. T o avoid difficulty on this point the committee on amendments suggested that each amendment voted by the Assembly should take "the form of protocols, embodying the resolutions of amendment voted by the Assembly, and signed by the President and the Secretary-General, and also open to signature by plenipotentiaries." 27 This form given to resolutions of amendment would provide the necessary documentary basis for the subsequent ratification by the members of the League as provided in Article 26 of the Covenant. 28 Ratification of these protocols raised important questions. No conditions on ratification were stated in Article 26 of the Covenant. N o time limit was set within which ratification needed to be effected. T h e requirement governing the number of ratifica27 28

Ibid., p. 712. For a statement of the form to be given to resolutions of amendment to the Covenant,

ibid., pp. 712 f.

TREATY MODIFICATION BY AMENDMENTS

53

tions might also raise some difficulties in view of the changing membership in the Council and in the Assembly. These matters pertaining to procedure are given additional consideration in Chapter IX. 29 Regardless of the many procedural matters which were not covered in the original text, Article 26 belongs with the provisions in the Treaty of Versailles designed to effect certain modifications in the instrument of agreement. A legal right was not granted to a contracting party, however, to require a subsequent revision by amendment. Each member of the League would be privileged to submit a resolution of amendment with no assurance whatever that it would be adopted or would receive the required number of ratifications. AMENDMENTS TO PART X I I I : ARTICLE 422

Part XIII of the Treaty of Versailles deals with questions of labor and provides for the organization and function of the International Labor Organization. Article 422 of the treaty delegates authority to the States members of the League of Nations to amend the terms of Part XIII in accord with the procedure set forth in the following paragraph: Amendments to this Part of the present Treaty which are adopted by the Conference by a majority of two-thirds of the votes cast by the Delegates present shall take effect when ratified by the States whose representatives compose the Council of the League of Nations and by three-fourths of the Members. 30 29

See infra, pp. 1 9 7 ff. T h e following provisions in the treaty help to clarify the stipulations in Article 422: Article 388: " T h e permanent organization shall consist of: " ( 1 ) a General Conference of Representatives of the Members and, "(2) an International Labour Office controlled by the Governing Body described in Article 3 9 3 . " Paragraph 1 , Article 389: " T h e meetings of the General Conference of Representatives of the Members shall be held f r o m time to time as occasion may require, and at least once in every year. It shall be composed of four Representatives of each of the Members, of whom two shall be Government Delegates and the two others shall be Delegates representing respectively the employers and the workpeople of each of the Members." 30

54

TREATY MODIFICATION BY

AMENDMENTS

T h e assumption underlying Part X I I I of the treaty was that the Covenant of the League of Nations did not provide for the handling of all matters which pertained to the peaceful relations of States. It would be necessary to eliminate the causes of international strife which, it was thought, involved the industrial evils and injustices prevailing in our contemporary industrial society. 31 Throughout the period of the war, from 1914 to the opening of the Peace Conference in 1919, organized labor had sought through resolutions and mass action to secure some assurance of the participation of the representatives of labor in a permanent arrangement for the handling of social and economic problems. As early as October, 1918, a special commission appointed by the British government prepared a draft convention relating to the machinery and procedure required for the international regulation of industrial conditions. 32 Committees appointed by the American and French governments also prepared preliminary drafts of conventions which assured labor a place in the proposed scheme of international control. In addition to the resolutions, memoranda, and proposals submitted by the various groups interested in this phase of organizing the peace the early drafts of the League Covenant suggested that the contracting parties agree "to secure and maintain fair and humane conditions of labor for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend ; and to that end agree to establish as part of the organization of the League a permanent Bureau of Labour." 3 3 At a plenary session of the Peace Conference op January 25, 1919, a resolution was submitted favoring the appointment of a commission composed of two representatives apiece from the five 31 See Report of the Commission on International Labour Legislation to the Plenary Session of the Peace Conference 1919. International Labour Office, Official Bulletin, I (April, 1919-August, 1920), 260 f. 32 James T. Shotwell, The Origins of the International Labor Organization (New York, 1934), II (Document 25), 1 1 7 . 33 Miller, Drafting the Covenant, II, 277, 3 1 5 ; see also Shotwell, op. cit., I, 83 ff.

TREATY MODIFICATION BY AMENDMENTS

55

great powers and five representatives to be elected by the other powers represented at the Peace Conference.34 They were to inquire into the conditions of employment from the international aspect and to consider the international means necessary to secure common action on matters affecting conditions of employment, and to recommend the form of a permanent agency to continue such inquiry and consideration in cooperation with and under the direction of the League of Nations. 3 5

The resolution was adopted and the commission was appointed on January 31, 1919, to draft a constitution for a labor organization. There was little in the way of pre-war treaties to guide the commission in drafting the new instrument of agreement on labor legislation. Separate governments had accomplished a great deal in improving the status of labor through social legislation. In the field of international agreements, however, there were only two general treaties which obligated signatory powers to adhere to a particular standard of working conditions: one restricted night work for women in industry,36 and the other prohibited the use of white phosphorus in matches.37 The commission was called upon to do pioneer work, to draft plans for an organization for which there was no precedent or parallel in the history of international politics.38 Since the new undertaking would be largely experimental, it was essential that provision be made in the treaty for subsequent modification of the terms pertaining to the International Labor Organization. At the first meeting of the commission, on February 1, 19x9, 34

At a meeting of the other powers attending the Conference, January 27, 1919, it was agreed that Belgium should be allowed to nominate two representatives on the commission, and Cuba, Poland, and Czechoslovak Republic one each. Shotwell, op. cit., I, 1 2 5 - 3 0 . 35 International Labour Office, Official Bulletin, op. cit., I, r. 36 International Convention respecting the Prohibition of Night Work for Women in Industrial Employment. Berne, September 26, 1906. Shotwell, op. cit., I, 9 f., 492. 37 International Convention respecting the Prohibition of the Use of White (Yellow) Phosphorus in the Manufacture of Matches. Berne, September 26, 1906. Shotwell, op. cit., I, 9 - 1 1 , 495-9738 Ibid., I, xx.

56

TREATY MODIFICATION BY

AMENDMENTS

M. Loucheur, of Francc, requested that the British delegation supply the members of the commission with copies of the British proposals for an international convention. The chairman, M. Colliard, asked the other delegations to present a draft of their proposals to the general secretary for distribution. The British draft was adopted by the commission as the basis for discussion. In the first complete draft of the British plan for a labor convention in the treaty form, dated January 26, 1919, provision was made for amendments to the convention. Paragraph 36 of Chapter III of the British plan reads as follows: "Amendments to the provisions of this convention may be submitted to the Conference, but shall only come into effect if they are unanimously agreed to and ratified by all the High Contracting Parties." The text of the British plan of February 2, which was adopted by the commission on February 4, made no change in the wording of the above provision for amendments. The amendment proposal was listed as Article 36. 30 Mr. Barnes, of the British delegation, recognized that the articles as drafted would make subsequent modification of the convention too difficult. Sir Malcolm Delevigne, of Great Britain, proposed to substitute for the original wording a text based on Article 26 of the League of Nations Covenant, which at that time allowed for an amendment to the Covenant to take effect when ratified by the States whose representatives compose the executive council and by three-fourths of the States whose representatives compose the body of delegates.40 The members of the commission recognized that the wording of Article 26 of the draft Covenant was far more satisfactory than the original text of Article 36 of the British draft of February 2. M. Vandervelde, of the Belgian delegation, asked that the provision for revising the convention be made even more elastic in order that neutral and enemy States would be able in the future to 39 40

International Labour Office, Official Bulletin, op. cil., I, 8, 15 f. Ibid., p. 7 1 .

T R E A T Y MODIFICATION BY AMENDMENTS

57

participate in the work of the International Labor Organization. With such a large membership as that proposed for the organization, it would lessen its effectiveness if necessary modifications were to be blocked by the rule of unanimity. The Belgian delegation urged, therefore, that the provision for amendments allow for modifications of the constitution by a two-thirds majority of the votes cast. It was considered a bold stroke to propose a two-thirds majority in place of the practice of unanimity in revising international conventions. This innovation had been accepted, however, in the matter of adhesion to a labor convention which might be drawn up by the International Labor Organization. 41 It seemed advisable to apply the same principle to the question of amending the original constitution. The president of the commission suggested that the different texts on this point be circulated among the members of the commission to enable them to determine the proper action to be taken on this matter when the vote of the commission was taken at the next meeting. 42 At the fifteenth meeting of the commission, February 27, 1919, Sir Malcolm Delevigne presented a revised text of the original draft in the following form: Amendments to this Convention which are adopted by the Conference by a majority of two-thirds of the votes cast by the Delegates present, shall take effect when ratified by the States whose representatives compose the Executive Council of the League of Nations, and by three41 Article 18 of the British draft of February 2, provided that "When the Conference (of the International Labor Organization) has approved any proposals as to an item in the agenda, these proposals shall be embodied in the form of an international convention. This convention shall then forthwith be laid for final consideration and decision before the Conference. If the convention receives the support of two-thirds of the votes cast, it shall be held to be adopted by the Conference." The convention, with proper signatures, was to be deposited with the Secretary-General of the League. The principle of two-thirds majority for adoption of a proposed convention or recommendation by the delegates attending the conference was retained in the final draft approved by the commission and submitted to the Plenary Session of the Peace Conference, April 1 1 , 1919. It was approved by the Peace Conference and incorporated in the peace treaty as Article 405. Shotwell, op. cit., I, 392. 42 International Labour Office, Official Bulletin, op. cit., I, 72.

58

TREATY MODIFICATION BY AMENDMENTS

fourths of the States whose representatives compose the body of Delegates of the League. 4 3

The British representative explained that the text presented was based upon that of Article 26 of the Covenant. There was an important difference, however, in the provision allowing the labor conference to take the initiative as regards amendments. T h e adoption of an amendment submitted to the conference required a two-thirds vote by the delegates present. N o provision was made in Article 26 of the Covenant for the preponderance necessary in the Assembly for voting an amendment to the Covenant. As in Article 26 no reference was made in the labor convention to the method of framing and formalizing amendments to be placed before the States whose ratification was required. N o provision was made for the procedure for submitting proposed amendments to the labor conference. Amendments to Part XIII of the treaty called for ratification by three-fourths of the States whose representatives compose the Assembly. In the case of amendments to the Covenant only a majority of the States represented in the Assembly were required to ratify the protocol of amendment. The constitution of the International Labor Organization as drafted by the commission was to be made an integral part of the peace treaties. The article providing for amendments to Part XIII of the Treaty of Versailles disassociated the labor organization from the other parts of the peace treaty to the extent that it might be free to develop as changed conditions would require. 44 Amendments to the stipulations set out in Articles 387-427 inclusive of the treaty could be initiated by the General Conference of the International Labor Organization. 40 The treaty text as revised and passed by the commission on the second reading, March 10, 1919, read as follows: 43

44 Ibid., p. 76. Shotwell, op. cit.,!, x x v . " T h e only conncction with those clauses of the treaties of peace which imposed conditions upon the Central Powers is the one which was designed to safeguard social insurance in the territories taken from them, and was conceived solely to ensure social justice to all concerned." Ibid. 43

TREATY MODIFICATION BY AMENDMENTS

59

Amendments to this Convention which are adopted by the Conference by a majority of two-thirds of the votes cast by the delegates present shall take effect when ratified by the States whose representatives compose the Executive Council of the League of Nations and by three-fourths of the States whose representatives compose the body of delegates of the League. 4 6

The commission, on March 23, 1919, adopted the final draft of Part XIII of the treaty together with the report on the work of the commission which was to be submitted to the Peace Conference. A plenary session of the Peace Conference was held on April 11, 1919, at which time Mr. Barnes, of Great Britain, addressed the conference in behalf of the commission and submitted their report on international labor legislation.47 Representatives of Cuba, Bolivia, Ecuador, and Panama introduced reservations to the draft convention on the ground that the failure to adhere to the principle of unanimity in amending the convention would impose upon their respective governments an obligation in violation of constitutional provisions.48 Sir Robert Borden introduced an amendment to the resolution moved by Mr. Barnes whereby the conference authorized "the Drafting Committee to make such amendments as may be necessary to have the Convention conform to the Covenant of the League of Nations in the character of its membership and in the method of adherence." The conference assented to this amendment and then adopted Mr. Barnes's resolution by a unanimous vote.49 Article 37 of the commission's draft report was altered by the 4 9 The commission held thirty-five meetings and drafted its conclusions in two parts: the first consisted of a draft convention providing for the establishment of a permanent organization to advance international labor legislation; the second part of the commission's conclusions embodied certain declarations of principle pertaining to the rights and interests of labor. Ibid., pp. 413 and 415. 4 7 Miller, Diary, X X , 53; Report of the Commission on International Labour Legislation to Plenary Session of the Peace Conference, International Labour Office, Official Bulletin, op. at., pp. 260 ff. 48 Ibid., pp. 301-3. 4 9 Ibid., p. 304.

6o

TREATY MODIFICATION BY

AMENDMENTS

drafting committee in accord with the provisions of the above amendment and incorporated in the Treaty of Versailles as Article 422. The changes made by the committee in the phrasing of this article pertaining to future amendments to the convention completed the work of the Peace Conference in the matter of a definite provision for modifying Part X I I I of the Treaty of Versailles. In the commission meetings repeated references had been made to the necessity for making the amendment stipulation conform to the provisions in Article 26 of the Covenant. The final text of Article 422 of the treaty is not so specific on the point of the ratification of a resolution of amendment as the text of Article 26. A member of the League of Nations which dissented from an amendment to the Covenant would cease to be a member of the League. There is no reference to the status of a member which refused to ratify or dissented from an amendment to the constitution of the International Labor Organization. In view of the repeated references to the necessity for making the amendment clause in Part XIII conform to the provisions in Article 26 of the Covenant, one might assume that a more specific provision for amending the articles in Part X I I I would have been adopted at the time the signatory powers agreed to the procedure for amending this part of the treaty. There was general recognition of the need to allow for subsequent modification of the treaty provisions pertaining to labor. T h e agencies authorized to direct the procedure were designated in Article 422. This article like the stipulation in Article 26 of the Covenant is primarily procedural. It grants no legal right to a signatory power, to a member of the League of Nations or of the International Labor Organization to require a revision of Part X I I I of the treaty. Each member of the labor organization would be privileged to exercise its rights as a member to submit a proposal for an amendment to Articles 387-427, inclusive. If the required number of States should ratify a resolution of amendment,

T R E A T Y MODIFICATION BY A M E N D M E N T S

61

following its adoption by the conference by a majority of twothirds of the votes cast by the delegates present,50 the part of the treaty included in the scope of Article 422 would thereby be modified. It is evident that the members of the special commission appointed to draft the constitution of the labor organization sought to create the machinery by which the provisions in Part X I I I of the treaty could be changed. A n acceptance of the procedure by which an amendment to the treaty may be effected does not obligate a signatory power to ratify whatever amendment the conference may adopt. By its acceptance of the terms of Articles 26 and 422 of the treaty a member State is bound by the provisions of the new amendments to Parts I and XIII of the treaty, where the change is effected according to the procedure set forth, even though the State may refuse to ratify the protocol of amendment. Each State may exercise its right to dissent from the fresh agreement. The authors of the Covenant and of the Constitution of the International Labor Organization, whose work was approved by all the signatory powers, anticipated the preponderance of membership in the League and the International Labor Organization together with the advantages in belonging to these bodies as deterrents to dissent on the part of member States. In the case of members of the League of Nations there was a specific provision to the effect that a dissent from an amendment to the Covenant would automatically remove the dissenting State from membership in the League of Nations. Such withdrawal from the League membership would not mean loss of membership in the International Labor Organization, as a State could belong to one body without being a member of the other. 50 T h e two-thirds majority required for the adoption of a draft amendment by the delegates present may mean that less than two-thirds of the States delegates would vote in favor of the amendment. The body of delegates includes the representatives of the employers and the workpeople of the member States as well as the government delegates. T h e employerlabor group may register the majority vote required to adopt a proposed amendment. N o provision was made in Article 26 of the Covenant for the percentage of votes required to adopt a draft amendment to the Covenant. Since the League delegates consisted of State representatives only, the methods of adopting amendments would differ in the Assembly and in the General Conference of the International Labor Conference.

62

T R E A T Y MODIFICATION BV

AMENDMENTS

AMENDMENTS TO A N N E X I I TO PART V I I I : PARAGRAPH 2 2

Part V I I I of the Treaty of Versailles, entitled "Reparation," sets forth the arrangements whereby Germany was to make compensation for all damage done to the civilian population of the Allied and Associated Powers and to their property as a consequence of Germany's part in the World War. 5 1 Authority was delegated to an inter-Allied body, the Reparation Commission, to serve as the exclusive agency of the Allied and Associated governments for the handling of reparation payments. Annex II to Part VIII of the treaty deals with the form, powers, and functions of the Reparation Commission. Provision was made in Paragraph 22 of Annex II for the governments represented from time to time upon the commission to amend the terms of this annex. Paragraph 22 reads as follows: "Subject to the provisions of the present Treaty this Annex may be amended by the unanimous decision of the Governments represented from time to time upon the Commission." T h e Peace Conference dealt with the question of reparation in the same manner as it handled other important issues on the conference agenda. A special commission was appointed to study the question and to prepare a report on their findings and their recommendations. 52 T h e work was allocated to three subcommittees 01 The exaction of an indemnity from Germany was indicated in pre-conference negotiations and understandings, such as the acceptance by the Allied governments and Germiny of the bases of peace negotiations stated by President Wilson in 1918; also the Armistice Agreement, of November 1 1 , 1918. In his address to Congress, January 8, 1918, Presicent Wilson declared that the invaded territories were to be restored, as well as evacuated ind freed. In his note of November 5, 1918, the President stated that the Allied governmints felt that no doubt ought to be allowed to exist as to what this provision implied, "he Allied governments understood that compensation would be made by Germany "for all damage done to the civilian population of the Allies and their property by the aggresaon of Germany." Article XIX of the Armistice Agreement, of November 1 1 , 1918, proviled for "Reparation of damages, without prejudice to all further claims and demands on the part of the Allies and of the United States." Temperley, op. cit., I, 236 ff. 52 On January 23, 1919, the Supreme Council adopted a resolution submitted by Lbyd George recommending the appointment of a commission "to examine and report, first, on the amount for reparation which the enemy countries ought to pay; secondly, on what tiey are capable of paying; and thirdly, on the method, form and time in which paymuits should be made." Miller, Diary, XIV, 14 f.; XIX, 266.

TREATY MODIFICATION BY AMENDMENTS

63

with instructions to determine if possible ( 1 ) the valuation of damages; (2) the financial capacity of the enemy States to pay; and (3) the measures of control and the guarantees to be established. The subcommittees worked independently and presented three separate reports. The Commission on Reparation met in a body to discuss questions of principle and to co-ordinate the work of the subcommittees. The work of the first subcommittee turned upon the definition of principle justifying the indemnity which would be imposed upon Germany. There were four possible bases of settlement: the drafting of the treaty by the victors in accord with Wilson's Fourteen Points and the Allied war aims; 6 3 the contractual arrangement set forth in the secret treaties negotiated during the war by certain Allied Powers; 6 4 the right of conquest; and war guilt. It was the last of these four alternatives which was taken as the basis of the reparation settlement. The right of the Allied governments to collect reparation was proclaimed in Article 231 of the treaty. Germany was compelled to accept the responsibility for causing all the loss and damages to which the Allied and Associated governments and their nationals had been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies. German resources were not adequate to make complete compensation for all damages, but the victors required reparation for the losses suffered by the civilian population of the Allied and Associated Powers. 55 The report of the first subcommittee on classes of damage caused by "German aggression" was presented to the Reparation Commission and to the Supreme Council on March 31, 1919. The members of the subcommittee failed to reach an agreement on the total losses for which compensation would have to be paid by 83 W. Henry Cooke and Edith P. Stickney, Readings in European International Relations (New York, 1931), pp. 418, 420, 538, 546, 551. " Ibid., pp. 455, 469, 472, 527. ss Article 232 of the treaty. See also paragraph 5 of Annex I to Part VIII, which provided for pensions to be included in the category of war damages, infra, note 61.

64

TREATY MODIFICATION BY AMENDMENTS

G e r m a n y . T h e i r report listed the categories of d a m a g e w h i c h w e r e properly subject to reparation, and the methods of valuation. T h e y stressed w h a t G e r m a n y w o u l d have to pay for without establishing a figure f o r the total amount she w o u l d have to p a y . 5 6 T h e report of the second subcommittee on the capacity of the enemy States to pay reparation and also the f o r m of the p a y m e n t was submitted on A p r i l 8, 1 9 1 9 , w i t h the f o l l o w i n g statement: " T h e sub-Committee have been unable to demonstrate

scien-

tifically, upon the basis of pre-war figures of industry and trade, the ability of the enemy countries to p a y the a m o u n t of proved claims as they are set f o r t h . "

57

T h e third subcommittee on measures of control and guarantees were unable to prepare a definitive report due to the failure of the first and second subcommittees to m a k e specific recommendations as to the total damages f o r w h i c h reparation w o u l d be required. T h e failure of the subcommittees to determine w h a t

Germany

should pay and w h a t she could pay b r o u g h t the reparation question before the Supreme Council. T h e situation c o n f r o n t i n g the A l l i e d leaders required a different approach to the reparation problem. T h e Commission on Reparation w i t h its twenty-nine members was considered too large to accomplish the results desired. T h e Supreme Council decided to replace it w i t h a small, i n f o r m a l committee which could w o r k more closely w i t h the heads of the A m e r i c a n , British, F r e n c h , and Italian delegations. Little progress was made until a g r o u p composed of the A m e r i c a n members of the special committee, N o r m a n H . D a v i s , A l b e r t Strauss, and T h o m a s W . L a m o n t , prepared a m e m o r a n d u m setting forth in outline a proposed course of procedure. T h e i r m e m o r a n d u m was submitted to President Wilson on M a r c h 25, 1 9 1 9 , w i t h an accomp a n y i n g letter f r o m M r . Davis. 5 8 In his letter to President Wilson, « Miller, Diary, XIX, 272. " Ibid. 58 The separate proposals drafted by the American experts and submitted to President Wilson were the outgrowth of the failure of the special committee to reach agreement! as

T R E A T Y MODIFICATION BY AMENDMENTS

65

Mr. Davis stated that it was the opinion of the three American advisers that the second subcommittee of the Commission on Reparation should be requested to make its report and withdraw. Among the points suggested for the subcommittee's report was one to the effect that "a Commission be provided for in the Peace Treaty which shall have power, within certain limits, to determine what can and should be paid during certain periods by Germany." 59 The memorandum prepared by the three American advisers made very specific proposals regarding the handling of the reparation matter. They drew up a series of schedules in the form of draft clauses to be inserted in the treaty. Schedule " A " provided for a commission with plenary powers to perform certain functions of importance in fixing the total which Germany would be required to pay and in determining the method of settlement. Schedule " B " presented a list of suggestions for instructions to the commission. Schedule " C " provided for the organization, rules of procedure, powers, duties, and responsibilities of the proposed commission. Paragraph (9) of the memorandum proposed that "This instrument is subject to amendment by the undersigned Governments or . . . of them." 60 T h e various points stressed by the three American experts in their memorandum to President Wilson were incorporated in the final draft of the reparation clauses of the Treaty of Versailles. T h e above suggestion for amending the clauses, which provided for the organization and functions of the Reparation Commission, was later embodied in the text as Paragraph 22 of Annex II to Part VIII of the treaty. The reparation agreement set forth in Part VIII involved a three-cornered arrangement with the Allied and Associated governments, Germany, and a permanent Reparation Commission to the figure for the total reparation bill. The members of the special committee had decided to submit separate reports to the heads of their respective delegations. 59 60 Baker, op. cit.. Ill, 384. Ibid., p. 393.

66

TREATY MODIFICATION BY AMENDMENTS

obligated to perform certain functions. The signatory powers acknowledged Germany's legal duty to pay reparation and the legal right of certain Allied and Associated Powers to receive compensation. T h e total reparation bill to be paid by Germany was not stated in the treaty. Under Article 232 compensation could be claimed from Germany for all damage done to the civilian population of the Allied and Associated Powers and to their property. 01 The total due from Germany would be announced, on or before May 1 , 1 9 2 1 , by the Reparation Commission which was empowered by the treaty to act as the exclusive agency of the Allied and Associated governments. T h e total sum payable was to be computed by the commission on a basis o£ ten categories of civilian and property damage listed in Annex I to Part VIII of the treaty. Detailed arrangements for receiving payments from Germany were not completed during the Peace Conference. These matters were left to the discretion of the commission which had the power to determine not only Germany's capacity to pay but the most suitable methods for handling the annuities. The successive installments to be paid by Germany in satisfaction of the Allied claims were to be divided by the Allied and Associated governments in proportions which were to be agreed upon by them. 02 01 T h e principle of c o m p e n s a t i o n f o r all d a m a g e d o n e to the civilian population of the A l l i e d a n d Associated P o w e r s a n d to their property w a s extended to include possible obliga-

tions to be a s s u m e d by the A l l i e d a n d Associated g o v e r n m e n t s at a later date. P a r a g r a p h 5 of A n n e x 1 to P a r t V'lII p r o v i d e d f o r c o m p e n s a t i o n , w h i c h m a y be claimed f r o m G e r m a n y u n d e r A r t i c l e 2 3 2 , as f o l l o w s : " A s d a m a g e caused to the peoples of the A l l i e d and Associated P o w e r s , all pensions and c o m p e n s a t i o n in the n a t u r e of pensions to n a v a l a n d military victims of w a r

(including

m e m b e r s of the air f o r c e ) , w h e t h e r m u t i l a t e d , w o u n d e d , sick or invalided, a n d to the d e p e n d e n t s of such victims, the a m o u n t d u e to the Allied and Associated G o v e r n m e n t s bei n g calculated f o r each of t h e m as b e i n g the capitalized cost of such pensions a n d c o m p e n sation at the date of the c o m i n g into f o r c e of the present T r e a t y , on the basis of the scales in f o r c e in F r a n c e at such d a t e . " 6

- T h e S p a A g r e e m e n t of J u l y 1 6 , 1 9 2 0 , p r o v i d e d f o r the f o l l o w i n g division of sums

to be received f r o m G e r m a n y u n d e r the reparation settlement:

State British France Italy Japan

Empire

Percentage . 21.00 .

52.00

.

10.00

TREATY MODIFICATION BY A M E N D M E N T S

67

T h e governments represented upon the commission had the power and authority to cancel the whole or any part of Germany's obligations. 63 The treaty stipulated that the delegates to the commission were to be nominated by the United States,64 Great Britain, France, Italy, Japan, Belgium, and the Serb-Croat-Slovene State. 65 Each of these powers was permitted to appoint one delegate and also one assistant delegate who would be privileged to take his place on the commission in case of illness or absence, and at all other times he would have the right to be present at the proceedings without taking any part therein. On no occasion could the delegates of more than five of the above-named powers have the right to take part in the proceedings of the commission and to record their votes. The delegates of the four great powers were given this right on all occasions. The additional vote on the commission was to be granted to a delegate of one of the other governments represented, the particular delegate to be chosen on a basis of the nature of the question before the commission for consideration. 66 Each government represented upon the commission had the right to withdraw upon twelve-months notice filed with the commission and confirmed in the course of the sixth month after the date of the original notice. 67 State Percentage Belgium 8.00 Portugal 0.75 A total of 6.5 percent was to be allocated to Grecce, Rumania, the Serb-Croat-Slovcne State and all other powers entitled to reparation. Toynbce, Surrey 1920-23, p. 120. 63 Article 234 and paragraph 13, Annex II. 64 Paragraph 2, Annex II to Part VIII. 85 The name of the Kingdom of the Serbs-Croats and Slovenes was changed to Yugoslavia by decree of October 3, 1929. L'Europe nouvelle, October 26, 1929, p. 1436. 96 "The Delegates of the United States, Great Britain, France and Italy shall have this right on all occasions. The Delegate of Belgium shall have this right on all occasions other than those referred to below. The Delegate of Japan shall have this right on occasions when questions relating to damage at sea, and questions arising under Article 2C0 of Part IX (Financial Clauses) in which Japanese interests are concerned, are under consideration. The Delegate of the Serb-Croat-Slovene State shall have this right when questions relating to Austria, Hungary or Bulgaria arc under consideration." Paragraph 2 of Annex II. Sec also paragraph 3 of Annex II. 67 Paragraph 2 of Annex II.

68

TREATY MODIFICATION BY

AMENDMENTS

In case of voluntary default by Germany the Allied and Associated Powers had the right to invoke certain sanctions, such as economic and financial prohibitions and reprisals. 68 N o one of the Allied and Associated governments assumed any responsibility in respect of any other government, each member of the commission being responsible to no one except to the government appointing him. 69 Subject to the provisions of the Treaty of Versailles, Annex II to Part V I I I could be amended by the unanimous decision of the governments represented from time to time upon the commission. 70 Article 26 of Part I, Article 422 of Part X I I I , and paragraph 22 of Annex II to Part V I I I embraced the same principle, although the procedure to be followed in effecting a treaty change by amendment was different in each case. Beneath the diversity in procedure and the varying number of governments authorized to participate there was an acknowledgment of the possibility of revision by amendment. The power granted in the treaty to the governments represented upon the Reparation Commission to amend the provisions in Annex II to Part VIII and the authority to deal with reparation payments delegated to the Reparation Commission, involved two distinct and quite different expressions of authority. The provisions in Annex II yielded to certain States the power to revise the terms of this part of the treaty. T h e provisions for the establishment of the Reparation Commission delegated authority to an international organization, acting as agent for the creditor powers, to work out the best methods for handling the reparation problems within the limits of the contractual agreement. The Reparation Commission constituted a fact-finding body authorized to consider all claims for damages submitted by the Allied and Associated governments. Upon completion of these 68 70

69 Paragraph 1 8 of Annex II. Paragraph 2 1 . Paragraph 22, subject to the provisions in Part VIII of the treaty.

TREATY MODIFICATION BY AMENDMENTS

69

hearings the commission would notify the German government, by May 1 , 1 9 2 1 , of the results of their findings. 7 1 After determining the total reparation bill the commission was to draw up a schedule of payments prescribing the time and manner for securing and discharging Germany's entire obligation. F r o m time to time the commission could consider the resources and capacity of Germany. It might exercise its discretion to the extent of extending the date and modifying the f o r m of payments. 7 2 T h e commission was further empowered to arrange for payments by Germany of the 20 billion marks required in the treaty as the first installment of the reparation settlement; 7 3 to designate the procedure for the restitution of cash, animals, and objects of various descriptions seized by Germany during the w a r ; to credit Germany with all deliveries and transfers of property effected in accord with the treaty provisions. T h e commission could meet in any place and at any time it deemed convenient; organize its own program; elect its own officers; appoint all necessary officers, agents, and employees required for the execution of its functions; constitute committees whose members need not be members of the commission; 7 4 and take all executive steps necessary to discharge its duties. It was not bound by any particular code or rules of law or by any particular rule of evidence or of procedure. It had the authority to interpret the provisions of Annex II pertaining to its own organization and functions; to receive, sell, hold, and distribute reparation payments to be made by G e r m a n y ; to determine the conditions under which Germany would cover by guarantee of bonds and obligations the equivalent of the amount of proved claims which were not paid in gold, ships, se71

72 73 Article 2 3 5 . Article 2 3 3 . Article 2 3 4 . T h e authority of the Reparation Commission "to constitute committees, whose members need not necessarily be members of the Commission" enabled the governments represented upon the commission to appoint the members of the Dawes Committee in 1924 without departing from the terms of the treaty arrangements. See paragraph 7 of Annex II. 74

70

TREATY MODIFICATION BY

AMENDMENTS

curities, and commodities. It was required to keep a close watch on G e r m a n taxes to m a k e sure that they were as heavy proportionately as those of any of the A l l i e d Powers represented on the commission. 7 5 T h e commission was responsible f o r securing a series of bonds f r o m G e r m a n y as evidence of the reparation obligations, f o r f i x i n g the dates f o r the payment of interest, and f o r a r r a n g i n g f o r the amortization f u n d . In case of a decision by the commission to postpone any part of the capital or interest of any verified debt of G e r m a n y , a written statement was required s h o w i n g the reasons f o r this action. A s to voting, unanimity was required on the f o l l o w i n g questions: those involving the sovereignty of any of the A l l i e d and Associated Powers or the cancellation of the w h o l e or of any part of the debt or obligations of G e r m a n y ; questions pertaining to the amount and conditions of bonds or other obligations to be issued by the G e r m a n government, the time and m a n n e r f o r selling, negotiating, or distributing bonds, any postponement of

pay-

ments, the introduction of a n e w method of measuring damages, and the interpretation of the provisions of A n n e x II of the treaty. A l l other questions could be decided by the vote of a majority of the delegates entitled to vote. 7 0 T h e decisions taken in accord with the powers conferred upon the commission became b i n d i n g without further proceedings. 7 7 G e r m a n y agreed irrevocably to the possession and exercise by the commission of the power and authority given to it under the terms of the treaty and thereby accepted a contingent obligation to comply with the decisions of this body. 7 8 In its observations on the conditions of peace the G e r m a n government strongly objected to the extensive powers granted to the permanent Reparation Commission. T h e reply of the A l l i e d and Associated governments, on June 1 6 , 1 9 1 9 , stated the f o l l o w i n g reasons f o r creating this body as their exclusive agent: 73

P a r a g r a p h 1 2 ( b ) of A n n e x II.

7,)

P a r a g r a p h 1 3 of A n n e x I I .

77

P a r a g r a p h 1 4 of A n n e x II.

78

Article 240.

TREATY MODIFICATION BY AMENDMENTS

71

T h e vast extent and manifold character of the damage caused to the allied and associated powers in consequence of the war has created a reparation problem of extraordinary magnitude and complexity, only to be solved by a continuing body, limited in personnel and invested with broad powers to deal with the problem in relation to the general economic situation. T h e allied and associated powers, recognizing this situation, themselves delegate power and authority to a reparation commission. This reparation commission is, however, instructed by the treaty itself so to exercise and interpret its powers as to insure, in the interest of all, an early and complete discharge by Germany of her reparation obligations. 79

Germany was given the right to present arguments and evidence on any question connected with her capacity to pay, but she could not take any part whatever in the decisions of the commission. 80 She was committed in advance to accept the results of the exercise of the authority delegated to the commission. N o specific treaty provision was required to achieve a revision of the reparation settlement. A fresh agreement voluntarily negotiated by the signatory powers with the intent of modifying the terms of the original commitments would suffice. However, under the provision in paragraph 22 of Annex II to Part V I I I the governments represented on the Reparation Commission could amend Annex II. There was no legal duty accepted by or imposed upon the signatory powers to perform the function of modifying by amendment the provisions in Annex II to Part VIII of the treaty. The records of the proceedings of the Peace Conference and the terms of the peace treaty do not indicate that the parties agreed to modify the reparation chapters of the settlement. Paragraph 22 of Annex II suggested the means whereby a revision could be made. It also listed the small number of Allied States that could, if conditions warranted, effect whatever changes seemed advisable in the contractual terms set forth in Annex II. 79 Conditions of Peace with Germany, 1st Session (Washington, 1 9 1 9 ) , p. 128. 60 Paragraphs 9 and 1 0 of Annex II.

U.S. Senate Document No. 140, 66th Congress,

72

TREATY MODIFICATION BY

AMENDMENTS

It was essential to provide for procedure whereby the treaty stipulations could be modified due to the uncertainties associated with the attempts to liquidate the war problems, and in view of the fact that the governments represented on the Reparation Commission had the right to receive more than 93 percent of the total reparation payments. T h e rules of procedure for amending Annex II would be decided by the governments authorized to participate. They were not bound by any particular rules of procedure so far as carrying out this phase of their authority was concerned. T h e treaty simply stated who might amend Annex II but was silent on the questions relating to how, or when, or why such an amendment should be effected. A proposed amendment to the Covenant of the League of Nations, or to the constitution of the International Labor Organization, required the adoption of a resolution of amendment by the Assembly of the League, or the General Conference of the International Labor Organization, prior to its submission for ratification to governments represented on the Council and the Assembly of the League of Nations. Amendments to Annex II of Part VIII could be effected by the unanimous decision of the governments represented from time to time upon the Reparation Commission. The power to amend the provisions in Annex II embraced the right to cancel the whole or any part of the debt or obligations of Germany despite the fact that certain signatory powers not represented on the commission would have their contractual rights altered by such action. The legal right to modify the treaty terms included in Annex II, as well as other terms of the reparation agreement, was limited to six powers represented on the Reparation Commission. These six States could cancel the treaty rights of all other signatory powers so far as their rights under the agreement to receive reparation payments were concerned. This provision in the treaty, which would appear to be quite unusual, seems to be in accord with a growing practice whereby the great powers of Eu-

T R E A T Y MODIFICATION BY AMENDMENTS

73

rope have taken an active part in revising treaties involving the rights of various States. 81 81 Tobin, "The Role of the Great Powers in Treaty Revision," Am. /. /. L., XXVIII, 487505; also The Termination of Multipartite Treaties, pp. 206 ff.

CHAPTER V

C H A N G E S APPLICABLE T O PROVISIONAL STIPULATIONS T H E chief point of interest in this analysis of the articles of the Treaty of Versailles which make some reference to possible modifications of certain treaty relations accepted by the signatory powers is whether a contracting State may, as a legal right, demand that the terms of the treaty be reconsidered or revised. The language employed to record the contractual relations of States is frequently the cause of controversy over the interpretation to be given to clauses which provide for certain changes. A dissatisfied power may believe it has solid ground for demanding revision of a treaty, yet experience real difficulties in establishing a legal obligation on the part of the other contracting party or parties to comply with its demands. Real difficulty presents itself in the matter of determining exactly what acts or events serve to free a contracting State from its treaty burdens. A State may find itself still obligated in point of law to remain steadfast to its undertakings despite the hardships involved or the arguments advanced to show that conditions have altered. The pressure of necessity, or the desire to secure some relief from treaty requirements, does not give rise to a legal right to demand a modification of the agreement even when extra hardships are encountered by a State obligated to abide by the treaty terms. Neither does dissatisfaction with the contractual arrangement give birth to a legal right to be released. A contingent obligation expressed in treaty clauses or a future relation conditioned by the occurrence of a certain event, if accepted by the signatory powers, does not of itself confer a legal right to require a change in the treaty arrangements. A continuation of the contractual ob-

PROVISIONAL STIPULATIONS

75

ligation may be intended even where the language of the agreement calls for some alteration of the transitory arrangement. There are several articles in the Treaty of Versailles which provide for subsequent changes in the treaty relations to meet the requirements of special conditions. Where the Allied governments reserved the right to make such changes as seemed desirable or necessary after a stated period of time and Germany was committed by the original instrument of agreement to accept such changes, it would seem that Germany was thereby bound by a contingent legal obligation to abide by whatever adjustments the Allies might effect in fulfillment of the treaty terms. These articles in the treaty which employ the language of change, modification, amendment, or revision, have frequently been misjudged as specific provisions for revising the original compact, 1 and as privileges extended to Germany to escape the burdens of the treaty requirements. A brief analysis of these clauses will clarify the nature and scope of the changes to be effected in the instrument of contract in fulfillment of its terms.

INTERNATIONAL

REGIME

OF T R A N S I T ,

PORTS, A N D R A I L W A Y S :

WATERWAYS,

ARTICLE

379

A change was contemplated in the international regime of transit, waterways, ports, and railways as set forth in certain articles in Part VIII of the Treaty of Versailles. There was no expression of intent to free Germany or any other power from these obligations concerning transit and transport. On the other hand, there was a clear and definite expression of a legal commitment requiring Germany to adhere to any general conventions regarding the international regime of transit, waterways, ports, or rail1 Pitman Benjamin Potter, " T h e Revision of Treaties," Geneva Special Studies, Vol. (Vienna, Ill, No. 9 ( 1 9 3 2 ) ; Josef Laurenz Kunz, Die Revision tier Pariser Friedensverträge 1 9 3 2 ) ; Hoen Zoe Hu, Treaty Revision under Article Nineteen of the Covenant (New York, 1 9 3 1 ) ; J. C. M. Garnett, Treaty Revision and the Covenant oj the League of Nations (London, 1 9 3 3 ) ; Sir R. Gower, Treaty Revision and the Hungarian Frontiers (London, 1936).

PROVISIONAL STIPULATIONS

76

ways which the Allied and Associated Powers might conclude within five years of the putting into force of the treaty. A blanket or general obligation was accepted by Germany under the terms of Article 379 of the treaty which reads as follows: Without prejudice to the special obligations imposed on her by the present Treaty for the benefit of the Allied and Associated Powers, Germany undertakes to adhere to any General Conventions regarding the international regime of transit, waterways, ports or railways which may be concluded by the Allied and Associated Powers, with the approval of the League of Nations, within five years of the coming into force of the present Treaty.

T h e general conventions embodying the changes to be introduced in the international regime were to be concluded with the approval of the League of Nations. This general or blanket obligation covered all of the articles in Part X I I in which separate provisions were made for the drafting of specific conventions to supersede the temporary international arrangements. The following stipulations in Part XII of the treaty were covered by the text of Article 379: 1. Under the heading "Navigation," Section II of Part X I I of the treaty, a special regime was outlined in Articles 332-37. The Elbe, the Oder, the Niemen, and the Danube were declared international rivers and made subject to the treaty regulations. 2 Article 338 provided that the transitory arrangement should be "superseded by one to be laid down in a General Convention drawn up by the Allied and Associated Powers, and approved by the League of Nations, relating to the waterways recognized in such Convention as having an international character." Under the terms of Article 379, Germany was required to adhere to this general convention as well as to all projects prepared in accordance with Article 343 of the treaty for the revision of existing international agreements and regulations pertaining to these rivers.3 2 3

Article 3 3 1 of the T r e a t y of Versailles.

Article 3 4 3 called f o r each of the international c o m m i s s i o n s n a m e d in Articles 3 4 0 - 4 2 to administer the E l b e , the O d e r , and the N i e m e n , to prepare a project " f o r the revision of

PROVISIONAL STIPULATIONS

77

Special clauses relating to the Danube were incorporated in the treaty. Under Article 348 a new international commission was authorized to undertake the administration of the river "in conformity with the provisions of Articles 332-37 until such time as a definitive statute regarding the Danube is concluded by the Powers nominated by the Allied and Associated Powers." Germany agreed to accept the regime to be laid down for the Danube by a conference of the powers which was to be called within one year after the putting into force of the treaty. Germany would be permitted to send representatives to the proposed conference. 4 Separate clauses relating to the Rhine and the Moselle were also included in the treaty under Chapter IV, Section II, of Part XII. It was stipulated that from the date of the going into force of the treaty 5 "the Convention of Mannheim of October 17, 1868, together with the Final Protocol thereof, 6 shall continue to govern navigation on the Rhine." The combined provisions of the Convention of Mannheim, the Final Protocol thereof, and the Treaty of Versailles, Articles 355-62, defined the Rhine regime to be administered by a central commission. 7 Article 354 of the Treaty of Versailles called for the central commission to meet within a maximum of six months from the coming into force of the treaty "to draw up a project of revision of the Convention of Mannheim," cited in the treaty as constituting a part of the regime for the Rhine. This project was to be drawn up in harmony with the the existing international agreements and regulations, drawn up in conformity with the General Convention referred to in Article 338, should such Convention have been already concluded. In the absence of such Convention, the project for revision shall be in conformity with the principles of Articles 332 to 3 3 7 " of the Treaty of Versailles. The international agreements and regulations then governing the navigation of the Elbe, the Oder, and the Niemen were to be provisionally maintained in force until the ratification of the above-mentioned projects. In all cases where such agreements and regulations were in conflict with the provisions of Articles 332-37 or of the general convention to be concluded the latter provisions were to prevail. This assured the modification of past agreements and regulations to harmonize with the terms of the treaty or general convention. 4 e Article 349. Article 354. 6 Edward Hertslet, The Map of Europe by Treaty (London, 1875), III, 1 8 4 7 - 5 2 . T See Article 355 of the Treaty of Versailles for the list of powers to be represented on the central commission.

PROVISIONAL

78

STIPULATIONS

provisions of the general convention referred to in Article 338 and to be submitted to the powers represented on the central commission. Thus separate arrangements were made for changing the regime applicable to the international waterways named in the treaty: the Elbe, the Oder, the Niemen, the Danube, and the Rhine. The commitments relating to these waterways and the proposed modification of the regime administering the same were all accepted by Germany subject to the general obligation in Article 379. 2. Under Chapter V of Section II, Part XII, clauses were inserted which required Germany to lease to the Czechoslovak State, in the ports of Hamburg and Stettin, for a period of ninetynine years, areas which were to be placed under the general regime of free zones set out in Articles 328-30 of the treaty. These northern ports were to be used for the direct transit of goods coming from or going to the Czechoslovak State. The following provision was made in Article 364 for the subsequent revision of the conditions applicable to the stated areas in the ports of Hamburg and Stettin: T h e delimitation of these areas, and their equipment, their exploitation, and in general all conditions for their utilisation, including the amount of the rental, shall be decided by a Commission consisting of one delegate of G e r m a n y , one delegate of the Czecho-Slovak State and one delegate of Great Britain. These conditions shall be susceptible tf revision every ten years in the same manner. G e r m a n y declares in advance that she will adhere to the decisions so taken. 8

3. Section III of Part X I I of the treaty dealt with Railways. The clauses regime The transit, 8

relating to international transport set out the provisional which was subject to readjustments under Article 366.® above articles bearing upon the international regime of waterways, ports, and railways, provided separately for

Articles 363 and 364.

0

For text of Article 366 sec infra, p. 80.

PROVISIONAL STIPULATIONS

79

definite conventions to be concluded by the Allied and Associated Powers for the purpose of establishing a more effective regime than they could define at Paris in 1919. Article 379 dealt collectively with the administrative agencies and the general convention which the Allied and Associated Powers might conclude within five years of the coming into force of the Treaty of Versailles. Article 379 was inserted in the treaty, under the heading "Special Provision," 1 0 to fill in the gap left by the French demands for limited arrangements with Germany on freedom of transit and the American request that a general convention be drafted at a later date. T h e British proposal for a general convention granting "freedom of transit" was on the order of a negative, selfdenying ordinance. 1 1 T h e whole field of international communications and transport by water, land, and air called for positive methods of international co-operation. The temporary arrangements for freedom of transit covered by the articles enumerated would have to be drawn up at some later date. The French and American opposition to the British efforts to have the general conventions drafted during the peace negotiations resulted in the insertion in the treaty as Article 379 of the "Special Provision" whereby Germany was legally bound to adhere to any convention which the Allied and Associated Powers might negotiate within a period of five years. The reason for imposing this contingent legal obligation upon Germany was stated in the reply of the Allies to the German observations on the conditions of peace. The Allied note stated: Until general conventions, which will be integral parts of the statute of the League of Nations, can render possible a wider application of these principles, it has appeared necessary to insert at once the essential provisions of such general conventions in the Treaty of Peace so that an enemy State may not, by future obstructive procedure and for political reasons, prevent their being put into force, and further to insist in 10 11

Section V of Part XII of the Treaty of Versailles. Baker, Woodrow Wilson and World Settlement, II, 438.

8o

PROVISIONAL

STIPULATIONS

advance that such general conventions shall be accepted in their entirety in the future. 1 -

Important changes have been made in the original treaty arrangements 1 3 but the post-war conventions amount to a fulfillment of the treaty stipulations rather than a revision of the terms of the agreement accepted. INTERNATIONAL T R A N S P O R T : A R T I C L E

366

Under the terms of Article 366, Section III of Part X I I of the treaty, the signatory powers agreed to renew the Berne conventions and arrangements regarding the transportation of goods by rail and to be governed by the supplementary provisions in Section III until a new convention for the transportation of passengers, luggage, and goods by rail should be concluded. The obligations accepted by the contracting powers were embodied in the following text of Article 366: From the coming into force of the present Treaty the H i g h Contracting Parties shall renew, in so far as concerns them and under the reserves indicated in the second paragraph of the present Article, the conventions and arrangements signed at Berne on October 14, 1890, September 20, 1893, July 16, 1895, June 16, 1898, and September 19, 1906, regarding the transportation of goods by rail. If within five years from the date of the coming into force of the present Treaty a new convention for the transportation of passengers, luggage, and goods by rail shall have been concluded to replace the Berne Convention of October 14, 1890, and the subsequent additions referred 12 The Treaty of Peace . . . together with the Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace (His Majesty'» Stationery Office, London, 1 9 2 ; ) , p. 349. 13 For copies of the agreements and conventions concluded under the auspices of the League of Nations and in accord with the provision in Article 379 of the treaty see, League of Nations Publications, A. 6(a). 1938. Annex 1. V. Geneva, September 10, 1936; League of Nations Treaty Series, VII, n f f . , 35 ff., 65 f f „ 73 ff.; XLVII, 55 ft.; LVIII, 285 ff., 3 1 5 ff.; XXXVI, 75 ff.; LVH, 65 IT.; XCIV, 277 ff.; LXXVII, 3671?.; LXXVIII, 17 ff.; League of Nations, Council, Verbatim Report of the Fifth Meeting of the Second Session (1920), p. 15; Official fournal (1920), No. 2, p. 42.

PROVISIONAL STIPULATIONS

8l

to above, this new convention and the supplementary provisions for international transport by rail which may be based on it shall bind Germany, even if she shall have refused to take part in the preparation of the convention or to subscribe to it. Until a new convention shall have been concluded, Germany shall conform to the provisions of the Berne Convention and the subsequent additions referred to above, and to the current supplementary provisions.

The terms of the new convention would bind Germany even if she should refuse to take part in the preparation of or to subscribe to the instrument intended to carry out the design for altering the provisions in Section III of Part XII. 1 4 The acceptance by Germany of the procedure set forth in the treaty for altering the conventions and arrangements governing rail transport did not necessitate Germany's subsequent adherence to a new convention. This contingent legal obligation bound Germany regardless of any objection she might raise to the terms of the subsequent arrangement. The new regime would modify certain provisions in the Treaty of Versailles. It would not, however, amount to a release from the legal commitments accepted by the signatory powers. During a plenary session of the Peace Conference, on January 25, 1919, the delegates decided to appoint a special commission to study the questions relating to the international regime of ports, waterways, and railways which they proposed to set up. 1 5 In view of the many technical difficulties involved in international transport and transit it was necessary to appoint two subcommissions to inquire into and report on special phases of the commission's assignment. One subcommission, consisting of ten members, was charged with the duty of drawing up a special draft convention relating to freedom of transit. The other, consisting of nine mem14

According to Article 379 Germany "undertakes to adhere" to any general conventions regarding the international regime of transit, waterways, ports, and railways which may be concluded by the Allied and Associated Powers within five years of the coming into force of the Treaty of Versailles. 15 Miller, Diary, XI, 9.

82

PROVISIONAL STIPULATIONS

bers, was instructed to prepare draft regulations regarding rivers, ports, and railways. 16 A t the third meeting of the subcommission dealing with ports, waterways, and railways, March i , 1919, Mr. Crespi, of Italy, submitted on behalf of the Italian delegation a motion regarding the urgent decision which the member governments had to take regarding the resumption of international railway traffic. 17 It was suggested that steps should be taken immediately "to open international negotiations between Allied and neutral States, to replace by a new Convention the Convention for the international transport of goods, signed at Berne in 1890, which is to end on 31st December, 1919. If by that date it is not possible to put the new Convention into force, it is recommended that the present Convention (Berne, 1890), be prolonged." 1 8 Experience had shown the necessity of international agreements in the matter of railroad transport. Mr. Crespi considered it essential to take every precaution during the Peace Conference to assure specific provision for the regulation and control of all railway transport within the jurisdiction of the German government. N e w arrangements required to meet changed political alignments produced by the break-up of the Austro-Hungarian Empire and the creation of new States would necessitate thorough preliminary studies. By way of a provisional safeguard it seemed advisable to provide for the renewal of the Berne Convention until the European powers could negotiate a new convention which would meet the requirements of post-war Europe. In the meantime, in order to facilitate commercial activities, definite proposals were made by the Italian delegation to the Allied and neutral States pertaining to the interrupted international rail service. 19 These proposals were modified and inserted in the treaty of peace to supplement the provisions in the Berne Convention of 1890. The supplementary stipulations in the treaty were 1» Ibid., p. 12. "Ibid., p. 384.

17 19

Miller, Diary, XII, 381. Ibid.

PROVISIONAL

STIPULATIONS

83

considered essential for the protection of Allied interests until a new convention could be drafted to cover matters pertaining to goods, passengers, and luggage. The chief problem was to assure temporarily a continuation of whatever regulations had been formulated in previous conventions regarding rail transport; also to assure the Allies of most-favored-nation treatment on matters of traffic rates, routing of shipments, and handling of goods to avoid unnecessary delay and to prevent the diverting of traffic to the profit of German railways. 20 Germany's observations on the conditions of peace, May 29, 1919, were submitted to the special commission for study and for the drafting of a reply covering the provisions governing railway transport. In a special report to the Supreme Council the commission stated that the remarks of the German government concerning communications (Part XII of the Conditions of Peace) were for the most part too general to warrant a detailed reply. They were not in the nature of technical objections but definite opposition to principles, both from the theoretical and the political point of view. 21 The German government recognized that the proposed measures were capable of practical application from the technical viewpoint. First of all, Germany objected to the treaty provisions regarding communications and transport on the ground that her sovereign rights would be infringed by the introduction of international controls over her ports, navigable waterways, and railways. She opposed the incorporation of "a definite contractual obligation in the Treaty of Peace." 2 2 Germany claimed the right to enter the League of Nations on a footing of equality with other powers. There was strong objection on her part to an arrangement which would not be applicable immediately, on a basis of reciprocity, to all contracting parties. There was general acceptance by Germany of the principles embodied in the conditions of peace 20

21 Miller, Diary, XI, 268-71. Ibid., pp. 88-96. Herbert Kraus and Gustav Rödiger, Urkunden zum Friedensverträge (Berlin, 1921), pp. 674 ff. 22

84

PROVISIONAL STIPULATIONS

respecting communications and transit, but she could not agree to the exclusive application of these provisions to German territory without reciprocal obligations being extended to Allied countries. She contended that the proposed arrangement amounted to meddling in the internal organization of her railway traffic and operation. The requirement of adherence to subsequent international conventions intended to control railways and canals within her territory constituted, in her opinion, "a violation of her independence." 2 3 In their reply, of June 16, 1919, the Allied governments refused to accede to the German request for basic modifications of the principles set forth in Part XII (Ports, Waterways and Railways) of the Conditions of Peace. The stipulation calling for a renewal of the Berne Convention, of October 14, 1890, and subsequent additions was inserted in the final treaty text as Article 366. T h e new general convention would constitute a modification of the conventions, and treaty provisions adopted as a temporary arrangement to regulate railway transport and communications. 24 Germany was obligated to accept the subsequent convention to be drafted by the Allied and Associated Powers. N o provision was made for Germany to be released from the terms of the treaty or to be relieved of the burdens which might be embodied in the new convention. The terms of Article 366 and Article 379 imposed upon Germany a contingent increase or extension of a legal burden. These articles were not revisory. The text of Article 379 provides that "Germany undertakes to adhere to any General Convention" which may be concluded by the Allied and Associated Powers. It is not clear whether a degree of freedom could be exercised by Germany in taking the final step of adherence required to make the terms of the general convention binding upon her. Refusal on Germany's part to ad=3 Ibid. See Convention and Statute on the International Regime of Railways, signed, Geneva, December 9, 1923. Convention and Protocol came into force March 23, 1926. Germany ratified the Convention December 5, 1927. League of Nations, Treaty Series, XLVII, 55 ff. 24

PROVISIONAL STIPULATIONS

85

here to the general convention would no doubt be contrary to the provision in Article 379, but would it make the new convention effective so far as Germany would be concerned? In Article 364, where provision was made for the subsequent revision of the conditions applicable to the stated areas in the ports of Hamburg and Stettin, Germany "declares in advance that she will adhere to the decisions" to be taken by the special commission authorized to effect such changes. It would seem that the intent of the Allied Powers was to impose upon Germany a strict obligation to accept and abide by the terms of new conventions and arrangements which might be drawn up to supersede or extend arrangements set forth in Part X I I of the Treaty of Versailles. TEMPORARY PROVISIONS REGARDING PORTS, WATERWAYS, AND RAILWAYS: ARTICLE 378

The clauses in Part X I I of the Treaty of Versailles relating to ports, waterways, and railways are of two kinds: some deal with temporary and others with permanent arrangements between the Allied and Associated Powers and Germany. The temporary clauses are enumerated in Article 378 as follows: T h e stipulations in Articles 321 to 330, 332, 365, and 367 to 369 shall be subject to revision by the Council of the League of Nations at any time after five years from the coming into force of the present Treaty. Failing such revision no Allied or Associated Power can claim after the expiration of the above period of five years the benefit of any of the stipulations in the Articles enumerated above on behalf of any portion of its territories in which reciprocity is not accorded in respect of such stipulations. T h e period of five years during which reciprocity cannot be demanded may be prolonged by the Council of the League of Nations.

This article provides for the revision by the Council at any time after five years from the coming into force of the treaty of Articles 321-30, 332, 365, and 367-69. The Allied Powers secured for themselves in these fifteen articles, for a period of five years, the most-

86

PROVISIONAL STIPULATIONS

favored-nation treatment of traffic on German railways and fluvial waterways. Absolute freedom of transit "by rail, navigable waterway, or canal, to persons, goods, vessels, carriages and mails" coming from or going to the Allied and Associated Powers, was guaranteed through Germany (Articles 321 and 3 3 2 ) ; the treatment granted German nationals was to be applied to the Allies without any distinction or preference (Article 3 2 3 ) ; all favors and reduced tariffs granted on German railways or navigable waterways for the benefit of German ports were to be extended to the seaports of the Allied and Associated Powers (Articles 325-26); the vessels of Allied nationals would enjoy freedom of navigation in ports and inland navigation routes of Germany (Article 3 2 7 ) ; free zones in ports were to be maintained (Articles 328-30); and the nationals, property, and flags of all powers were to be treated on a footing of perfect equality on the waterways declared to be international in Article 331 (Article 332). Freedom of railway transports and of related services was assured in Articles 365, and 367-69. Article 378 provided for two possible courses of action in the matter of modifying the temporary, nonreciprocal obligations imposed upon Germany: first, the transitory arrangements recorded in the above articles could be revised after five years should the Council of the League of Nations deem such a course advisable; second, the benefits enjoyed by the Allied and Associated Powers under the terms of the agreement could be prolonged by the Council of the League beyond the five-year period; or an Allied or Associated Power could claim a continuation of the benefit of any of the stipulations in the Articles enumerated in Article 378, on behalf of any portion of its territories providing reciprocity would be accorded to Germany in respect of such stipulations. T h e provision for revising the clauses in the treaty which were enumerated in Article 378 was submitted to the Supreme Council by the commission on the international regime of ports, waterways, and railways which had been authorized by the Peace Con-

PROVISIONAL STIPULATIONS

87

ference to deal with questions of freedom of transit, international rivers, aerial navigation, and railway routes of international interest. At a meeting of the subcommission on freedom of transit, February 13, 1919, the chairman, Mr. White, of the United States, set forth in his opening remarks the ideas which were later to be embodied in the provisions of Article 378 of the peace treaty. 25 T h e chairman recognized the necessity of agreeing upon certain fundamental principles and the settlement of specific problems in the light of these principles. Experience might reveal the urgency of modifying certain principles to meet a given case. The principles were to be applied, however, until such time as the nation affected should have recovered from the economic dislocation wrought by German aggression. He expressed the view that no nation should obtain permanently advantages which "contravene general principles which are believed to be in the interest of all mankind." On the other hand, preferential treatment might properly be vouchsafed for a certain period of time to such nations as have suffered to an exceptional degree at the hands of the enemy. 28 A m o n g the definite proposals submitted by the chairman for the consideration of the subcommission on freedom of transit was the drafting of an agreement which would be subject to revision in cases in which the application of general principles to circumstances arising from the war proved to be unjust. The special draft relating to freedom on inland transit, submitted to the subcommission on March 1, 1919, laid down the principle of freedom of transit in time of peace by railway, navigable waterway, or canal, for persons, goods, and ships, or any other means of transport across territories belonging to or controlled by the signatory powers. 27 Article 10 of the revised draft convention allowed by way of a temporary exception, certain parties to the agreement to be "relieved from obligations of the present Convention for a period which shall not exceed 25

Miller, Diary, XII, 297 f.

28

Ibid., p. 298.

27

Ibid., p. 337. Art. 1.

88

PROVISIONAL STIPULATIONS years f r o m the signature of the Preliminary

Peace

Treaty," on the ground of the serious economic situation resulting f r o m the depredations of enemy troops on its soil. T h e r e was the further stipulation that " T h e above-mentioned period may be prolonged, if necessary, by a resolution of the L e a g u e of Nations."

28

T h e discussion concerning the draft convention brought out the contradictions in the texts w h i c h had been prepared by the British and A m e r i c a n delegates. 29 T h e British draft convention asserted that the high contracting parties declare themselves in favor of "the principle of freedom of transit." F r e e d o m of transit was made the general rule. T h e United States delegates had stated that they w o u l d not consent to bind themselves w i t h respect to anything but "a concrete point f o r m i n g the special object of this Convention."

30

Article I of the amendments to the British draft,

submitted by the United States delegates, provided as follows: " T h e H i g h Contracting Parties hereby accept and agree to observe inter se the f o l l o w i n g principles of f r e e d o m of transit. . . ."

31

T h e A m e r i c a n and British delegates w e r e requested to prepare a new draft w h i c h w o u l d reconcile the conflicting viewpoints set forth in their proposed texts. T h e i r combined proposal, submitted on March 3, 1919, suggested the f o l l o w i n g measures: to impose freedom of transit for Allied goods and transports on the enemy countries; to call an international conference at a later time to draw up a final convention; to extend f r e e d o m of transit to all the new territories. 32 T h e r e was general approval of the A n g l o - A m e r i c a n formula for dealing w i t h the matter of freedom of transit on the ground that the new draft took into account the actual situation of the enemy countries in relation to the A l l i e d Powers and the new States. W h e n the final draft convention on f r e e d o m of transit was submitted for discussion to the general commission on ports, water28

Ibid., pp. 339 f.

29

For provisions of the British D r a f t C o n v e n t i o n on F r e e d o m of Inland Transit and t h e

proposed a m e n d m e n t s submitted by the United States see Miller, op. cit., X I , 2 3 1 ; XII, 3 1 1 . 30

Ibid., XII, 331.

31

Ibid., p. 311.

32

Ibid., pp. 341 f.

PROVISIONAL STIPULATIONS

89

ways, and railways, on March 8, 1919, the British delegate explained that it was the wish of the commission to establish a general convention applicable to all States, but the short time available forced it to limit this convention "to those States which, as a result of the war, stood in greatest need of this Convention." 3 3 The aim of the French delegation was not only to ensure freedom of commercial intercourse between the Allied and Associated Powers across enemy territory, but also to break down the barriers which enemy States might raise against Allied commerce on their territory. By way of an addendum to the convention on freedom of inland transit, the British suggested that the following clause be inserted in the treaty of peace so that the final paragraph of the convention would read: T h e above obligations shall take effect immediately on the ratification of the Treaty of Peace. T h e y may be modified by the Council of the League of Nations on application by any of the Central Powers, made not less than five years after the ratification of the Treaty of Peace. 34

General Mance, of the British delegation, explained that penal clauses would not be imposed on Germany for more than a certain period of time, the time necessary for the reconstruction of the devastated regions, five or ten years, for instance. 35 The French contended that it would not be possible to state a time limit for the enforcement of the treaty of peace and that the clauses referred to by General Mance as penal would certainly not be changed until Germany was admitted to the League of Nations. This would be an indefinite period of time since the French considered Germany's admission impossible "until the German mentality had changed." 3 6 Prolonged discussion strengthened the opposing forces and made the achievement of the British program impossible. In response to the French appeal a special clause was drafted which 33 35

Ibid., XI, 255 f. Ibid., p. 273.

31 36

Ibid., p. 261. Ibid.

90

PROVISIONAL STIPULATIONS

imposed upon Germany freedom of transit for Allied trade without any reciprocal rights for G e r m a n trade in Allied countries. T h e British were defeated in their attempt to introduce a general convention based upon the fundamental principle of liberty, equality, and continuity in the international regime of transit and waterways. 3 7 T h e British sought a definite understanding on the following point: if the draft clauses under discussion were applied solely to the enemy States, it was to be understood that the powers would meet later, at a time not yet fixed, in order to apply similar clauses to their o w n territory. T h e delegations were asked if they were agreed as to fixing the period of application at five years, w h i c h had been specified in the British draft. M r . Segers clarified the meaning of the provision regarding the length of time to w h i c h Germany w o u l d have to submit to the special arrangement for freedom of transit. Germany w o u l d not be privileged, according to the terms of the treaty, to demand the abrogation of the clauses after the

five-year

period but w o u l d be allowed reciprocity or the revision of the clauses to accord w i t h the changes required by experience. 38 Germany's admission to the League of Nations was made a prerequisite to revision. M r . Hudson, of the United States, maintained that Germany should have the right to demand revision prior to her admission into the League. T h e French opposed any such arrangement on the ground of Germany's unfitness to join the League. 3 9 M r . Fountain, of the British delegation, suggested that G e r m a n y w o u l d at least enjoy the right "merely of laying her case for revision before the L e a g u e " should the treaty provision 3 7 The British proposal for a general convention guaranteeing freedom of transit and the American suggestion for a subsequent conference to negotiate such an agreement were both embodied in the League Covenant, Article 23, to the effect that "Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League: . . . (e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League." By sidetracking these two plans for future action the French were able to have the commission concentrate upon the problem of securing freedom of transit for Allied trade in German territory and ports. 38

Miller, Diary, XI, 358.

39

Ibid., p. 361.

PROVISIONAL STIPULATIONS

91

deny her the right to demand revision. The French relied upon the "good faith" clause of the Covenant to block Germany's early entrance into the League for the purpose of seeking a revision of the articles on freedom of transit. Mr. Hudson restated the American position by saying that the United States delegation had endorsed the clauses on freedom of transit on "the distinct assumption that there should be a time limit to their application." It was also understood that the time limit should not be dependent on Germany's admission to the League for its revision or extension of benefits on a basis of reciprocity. 40 The British proposal favored the "unconditional right of revision after the lapse of five years." 4 1 It was contended that the clauses should not remain in force after that period of time without some assurance that reciprocity would be extended to the defeated powers. While the French solution allowed for revision only on the ground of Germany's admission to membership in the League of Nations, the Belgian government added that membership in the League should not entitle Germany to seek revision prior to the end of the five-year period. 42 There was general agreement on the part of the members of the commission that the defeated powers would be required "to grant freedom of transit through their territories, on the routes most convenient for international transit, either by rail, navigable waterway or canal, to all persons, mails, goods, ships, carriages and wagons coming from or going to the territories. . . ." of the Allied and Associated Powers. 43 The first report of the commission on the international regime of ports, waterways, and railways was submitted to the Supreme Council on April 7, 1919. A special draft, consisting of 61 articles to be inserted in the peace treaty, accompanied the report. N o specific provision for subsequent revision of transitory obligations 40 42

Ibid., pp. 359 f. Ibid.

41 43

¡bid., p. 378. Ibid., XII, 42, Art. I.

92

PROVISIONAL STIPULATIONS

w a s made in the articles relating to ports, waterways, and railways. T h e British delegates submitted a special article, 6ia, w h i c h they suggested should be added to those drafted by the commission. T h e British proposal was presented for the consideration of the commission at its meeting, on A p r i l 22, 1919. T h e n e w article stated: T h e stipulations in Articles 1 to 10,12, 32, 45, 47-49 shall be subject to revision by the Council of the League of Nations, but this revision cannot be made before the expiration of the five years from the coming into force of this Treaty. Provided, that after the expiration of five years or of such longer period as the Council of the League of Nations may decide, no Allied or Associated Power can claim the benefit of any of the stipulations enumerated in these Articles on behalf of any portion of its territories in which reciprocity is not accorded in respect of such stipulation. 44

T h e article was adopted t w o days later w i t h a modification of the text, the principles stated being retained. 4 5 T h e commission, in a later report of A p r i l 25, urgently requested that the conference make no modification in the draft clauses in view of the highly technical nature of the matter of transportation. T h e y pointed out that the minutes of the proceedings of the commission and subcommission recorded the details of their discussions and that parties interested in the treaty provisions could find in the minutes the reasons for the decisions taken. 4 6 Article 378 of the Treaty of Versailles is identical in substance w i t h Article 61a submitted to the Supreme Council on April 25, 1919, by the commission on ports, waterways, and railways. Certain modifications in language were made by the drafting committee to make the provisions of this section conform to the general style and phrasing of the treaty. In their reply to the objections of the G e r m a n government to the conditions of peace, the A l l i e d Powers listed the general principles which underlie and explain the texts of the treaty referring 44

Ibid., pp. 112, 117.

45

Ibid., p. 128.

40

Miller, op. cit., XI, 44.

PROVISIONAL STIPULATIONS

93

to the regime governing traffic and transit. First, the object of the treaty of peace, stated in Article 23a of the Covenant of the League, was "to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all members of the League." This purpose had been incorporated in Part X I I of the treaty with special provisions made applicable to Germany for a limited time. These obligations which were imposed upon Germany were made necessary, it was stated, by the devastation of certain regions during the war. Second, until such time as the powers could negotiate general conventions, which would "give the principles wider applications," it was essential to insert immediately certain provisions in the treaty to prevent Germany from resorting to obstructions which might prevent the conventions from being put into force. Third, stipulations in the treaty allowed for the extension of these provisions and the "ultimate benefit of reciprocity" in cases where relationships were capable of being made reciprocal. Fourth, a minimum of five years must elapse, however, before such benefits could be extended to Germany. Germany was required to accept this five-year period on grounds that she could not reap a benefit from the devastation caused the Allies by her military aggression. At the end of the five years Germany could claim reciprocal benefits on the territory of the Allied and Associated Powers 4 7 providing the Council did not revise the stipulations or prolong the arrangement established by the terms of the articles listed in Article 378. Germany was forced to accept temporarily specific limitations upon her freedom of action in restricting Allied trade, transport, and nationals. The principle of reparation was fundamental in Article 378 as a punitive measure and as a safeguard for Allied interests during the first five years of reconstruction. During this period no change was provided for in the obligations imposed upon Germany or in the special benefits to be enjoyed by the Allied nations. A t the end of the five years Germany could seek reciprocal benefits. N o legal Miller, op. cit., XII, 173 f.

94

PROVISIONAL STIPULATIONS

right was granted Germany under this provision to demand revision of the agreement set forth in the terms of Article 378. She would be privileged to lay her case for modification before the League of Nations without any assurance that her appeal would be acted upon favorably. Under the terms of the treaty Germany could not demand the abrogation of the clauses after the fiveyear period. After the expiration of five years no Allied or Associated Power could claim the benefit of any of the stipulations in the articles enumerated on behalf of any portion of its territory in which reciprocity should not be accorded to Germany. The legal commitment taken by Germany under this part of the treaty was subject to an arrangement whereby the League of Nations could modify or prolong the agreement without a right on Germany's part to require the same. Should the League refrain from modifying or prolonging the arrangement, each Allied and Associated Power would be required to grant to Germany reciprocal rights on behalf of all portions of its territory if it were to be able to claim a continuation of the benefits listed in the stipulations of Article 378. The arrangement provided for in this article was rather flexible so far as the League's authority could be exercised in altering the relations of the contracting parties. But no legal right was granted to Germany to escape the obligations set forth in the agreement. The most that Germany could expect would be reciprocal treatment to be accorded by each Allied and Associated Power after a stated period of time. The granting of reciprocal treatment by an Allied Power might mean a continuation of the treaty arrangement for Germany and the power granting such benefit. T h e power to decide was granted to the Council or an Allied State, without assigning a right to Germany to require reconsideration prior to the fulfillment of the time period and the exercise of the authority granted to the Council. Following the completion of certain events and time Germany could request reciprocal treatment. In case of refusal the

PROVISIONAL

STIPULATIONS

95

treaty arrangement set forth in Article 378 would be terminated between Germany and the State refusing to act favorably upon Germany's request. COMMERCIAL RELATIONS: ARTICLE 2 8 0

Part X of the Treaty of Versailles, "Economic Clauses," comprises eight sections, which may be divided into two groups: the first group, Sections I and II, concerns future commercial relations between the Allied and Associated Powers and Germany, involving customs, navigation, repression of unfair competition, treatment and rights of Allied nationals in Germany, and rules for treaties; the second group, Sections III to V I I I , relates to the settlement of private interests, to the liquidation of the past relating to pre-war debts and contracts, property rights and interests, and industrial property. T h e obligations imposed on Germany by Chapter I, Section I of Part X , are set out in Articles 264-70 and are subject to the following provisions in Article 280: The obligations imposed on Germany by Chapter I and by Articles 271 and 272 of Chapter II above shall cease to have effect five years from the date of the coming into force of the present Treaty, unless otherwise provided in the text, or unless the Council of the League of Nations shall, at least twelve months before the expiration of that period, decide that these obligations shall be maintained for a further period with or without amendment. Article 276 of Chapter IV shall remain in operation, with or without amendment, after the period of five years for such further period, if any, not exceeding five years, as may be determined by a majority of the Council of the League of Nations. On the question of "Customs, Regulations, Duties and Restrictions" (Articles 264-70) the treaty granted to all the Allied and Associated Powers the benefits of the most-favored-nation treatment in Germany for imports and exports as well as transit. N o discrimination by indirect methods was allowed against the commerce of Allied and Associated Powers. Germany was denied re-

96

PROVISIONAL STIPULATIONS

ciprocal advantages. T h e Allies retained complete control over their customs tariffs and freedom of action in dealing with German products imported into Allied countries. The maritime navigation regulation, Article 271, likewise allowed the most-favored-nation treatment for Allied ships engaged in sea fishing, coastal trade, and towage in German territorial waters. Article 272 gave the Allies exclusive right to inspect and police their vessels employed in fishing in the North Sea. 48 T h e most-favored-nation treatment was also extended, under Article 276, to the nationals of Allied and Associated Powers in Germany. Germany agreed to refrain from subjecting their property to any direct or indirect tax not borne by German nationals. N o special prohibition or restriction could be imposed upon the nationals of the Allied Powers interfering with their profession, trade, or industry. The above obligations were imposed upon Germany for a minimum period of five years unless, as stated in Article 280, they were extended for a longer period with or without amendment by a majority of the Council of the League of Nations. Under the terms of Article 280 Germany was committed to a contingent increase of burden, subject to the decision of the Council of the League. The language of the treaty provisions allowed for the burdens to be continued, increased according to amendments as stated, or terminated. Twelve months before the expiration of the five-year period stated in Article 280, amendments could be introduced by the Council for the purpose of effecting a change in the treaty arrangement. There is no evidence of intent on the part of the victor powers to grant Germany a right to be released from or to require the alteration of these treaty provisions. If the Council should decide to retain the treaty provisions or to amend the terms of agreement, Germany was bound legally to comply with the action of the Council. The German note of May 29, 1919, on the conditions of peace, 48

Br. & For. State Papers, LXXIII, 39 ff., Articles 26-28; see also A. P. Daggett, "The Regulation of Maritime Fisheries by Treaty," Am. /. I. L., XXVIII, 693 ff., especially 702 £.

PROVISIONAL STIPULATIONS

97

stressed the point that Germany is entitled, on the strength of the preliminary agreements (pre-Armistice) regarding the contents of the actual treaty of peace, to demand that the economic provisions of the treaty of peace shall be drawn with full regard to the perfect equality of Germany's rights with those of the other nations.49 The reply of the Allied and Associated Powers, June 16, 1919, stated that "equality can only be established by arrangements which take into account the existing differences in economic strength and industrial integrity of the peoples of Europe." 50 Reciprocal advantages would be possible for Germany at the close of the transitory period specified in Article 280, providing the Council of the League of Nations did not amend the treaty stipulations and impose upon Germany an additional burden. The Allies contended that the damage done the neighboring States by German aggression justified the prohibitions as reparation measures. The Allies required a brief period to recover their economic balance. At the proper time the League of Nations might be able to handle all the matters pertaining to the economic rights of Germany by amending the provisions in Chapters I and II of Section I or by allowing the unilateral advantages granted the Allies to terminate. It rested with the Allied governments and with the Council of the League to decide. Their decision would be binding upon Germany in view of the contingent increase of burden which Germany accepted under Article 280 of the Treaty of Versailles. INDEPENDENCE OF A U S T R I A :

ARTICLE 80

Before the cessation of hostilities in 1918 the Austro-Hungarian Empire was broken by the separatist movements sponsored by the various national groups which had constituted the former inhabit49 Conditions of Peace with Germany, Senate Document No. 149, 66th Congress, 1st Session (Washington, 1919), p. 92. 50 Ibid., p. 107.

98

PROVISIONAL STIPULATIONS

ants of the territories ruled by the Hapsburgs. 51 On October 16, 1918, the Emperor Charles endeavored to rebuild the old regime by issuing an "Imperial Manifesto Federalizing the Austrian Lands," proposing a plan by which each race would "create its own constitutional status in the territory in which it dwells." The new arrangement would guarantee "independence to each national state-unit." 52 It was too late; the Poles and the Czechs formed their separate, independent States; 53 the Magyars severed their relations with Austria proper; the Italians, Rumanians, Croats, Slovenes, and Serbs were seeking political readjustments which would be more in accord with their racial, religious, and linguistic interests. Three alternatives confronted the German Austrians: First, they could undertake the task of living on as a separate State divorced from large-scale political control and affiliations which had characterized the history of these people. Second, they could become a member of a Danubian federation and seek to reconcile their inferior position to the domination of the new States and nationalities formerly members of the Austrian Empire. Third, they could seek a close union with the people of the German Reich and participate in the affairs of the dominant German State. They decided to unite with Germany. A declaration of independence was issued in the name of the German Austrian group, on October 21, 1918, and, on November 12, 1918, they proclaimed themselves an independent "GermanAustrian Republic." 54 In a special law of November 12, 1918, they declared that "German-Austria forms an integral part of the German Republic." 50 The principle of self-determination had been 51 Edmund von Glaise-Horstenau, The Collapse of the Austro-Hungarian Empire (New York, 1930), pp. 251 ff.; Carlton J. H. Hayes, A Political and Cultural History of Modern Europe (New York, 1932, 1936), I, 38 ff.; II, 784-854. 62 Malbone W. Graham, Jr., New Governments of Central Europe (London, 1924), Document No. 1, pp. 501 f. " T e m p e r l e y , A History of the Peace Conference at Paris, V, 157 ff.; Am. /. I. L., Supplement, XIV (1920), 3 1 1 ff.; Eduard Benes, My War Memoirs (Boston, 1928). 54 F. F. G. Kleinwaechter, Self-determination for Austria (London, 1929), p. 1 1 . 65 Graham, op. cit., Artidc II, Document No. 7, p. 508.

PROVISIONAL STIPULATIONS

99

stressed by President Wilson as "an imperative principle of action" which statesmen would henceforth ignore at their peril.56 The German Austrians considered it their right to voice their preference for a German-Austrian union and thereby to determine the conditions of their economic and political existence. In the opinion of certain Allied leaders the unity of the Germans of Austria and of the Reich would create a serious threat to the security of the succession States, especially Czechoslovakia. A concerted effort on the part of the German-speaking peoples in Europe might upset the treaty arrangements as the merging of the German States under the leadership of Bismarck in 1871 had destroyed the balance of power in Europe. With the German Austrians singled out from all the nationalities formerly under the Dual Monarchy, the German Reich had an opportunity to complete the work of Bismarck and to achieve the unity of most of the German peoples throughout Central Europe. Allied governments contended that the common interests of Berlin, Vienna, and Budapest in the subjection of the Poles, the Czechs, and the Croats made it necessary to separate the ruling powers in Germany, Austria, and Hungary. The union of Germany and Austria would assure the control of the military and economic resources of Austria from Berlin.57 The ascendency of the German-Magyar groups at the expense of Austria might follow. It was necessary, therefore, to assure an independent foreign policy in Austria and in Hungary and to prevent the military union of German, Austrian, and Hungarian forces. The peace of 68 In his address at Mt. Vernon on July 4, 1918, President Wilson had called for "the settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship, upon the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people." Woodrow Wilson, War and Peace, Presidential Messages, Addresses, and Public Papers (¡917-1924), edited by Ray Stannard Baker and William E. Dodd (New York, 1927), I, 233. 67 Early in January, 1918, a report by the American Inquiry to President Wilson helped to define the "War Aims and Peace Terms" which were later to be stressed. This report was prepared by S. E. Mezes, David Hunter Miller, and Walter Lippmann. Baker, Woodrow Wilson and World Settlement, III, 23 ff.

IOO

PROVISIONAL STIPULATIONS

Europe was deemed to demand it. T h e security of the succession States appeared to require it. Extreme measures had to be adopted at Paris in 1919 to break the bonds of G e r m a n claims upon Austria due to the debts for money expended by G e r m a n y in behalf of Austria and to the threat of G e r m a n domination in eastern Europe. T h e Allied governments, under the leadership of France, compelled G e r m a n y to recognize the independence of Austria as inalienable except by the Council's consent. T h e legal obligation to abide by a possible subsequent decision of the L e a g u e Council affecting the treaty status of Austria was recorded in Article 80 of the treaty as follows: Germany acknowledges and will respect strictly the independence of Austria, within the frontiers which may be fixed in a Treaty between that State and the Principal Allied and Associated Powers; she agrees that this independence shall be inalienable, except with the consent of the Council of the League of Nations. 5 8

T h e original proposal for the restrictions placed upon Germ a n y and Austria was introduced by M . Tardieu, chairman of the central committee on territorial questions, at the Peace Conference. T h i s committee was appointed by the Supreme Council, on February 27, 1919, to study special questions pertaining to territory. M . Tardieu introduced his proposal, M a r c h 15, 1919, in the f o r m of the f o l l o w i n g resolution: 5 9 . . . the Central Committee on Territorial Questions suggest that it would be expedient to impose on Germany, in the preliminaries of peace, a pledge to take no step, political or economic, which can infringe the independence of Austria. . . . It simply observes that there is an Austria independent of Germany, and recommends the maintenance, between German-Austria and Ger6 8 A similar obligation was imposed upon Austria in Article 88 of the Treaty of St. Germain. 6 9 Miller, Diary, XIX, 72.

PROVISIONAL STIPULATIONS

101

many, of the frontier existing on the ist of August, 1914, reserving such changes as may result, for either State, from the creation of the Czechoslovak Republic. 60 T h e proposal of the central committee was placed before the Supreme Council f o r its consideration. O n A p r i l 22, 1919, M . Clemenceau submitted the f o l l o w i n g article to the Council of F o u r : " G e r m a n y recognizes the independence of German-Austria within the frontiers as defined by the present treaty." 6 1 T h e possibility that future conditions m i g h t warrant an alteration in the status and relations of Austria prompted the members of the Supreme Council to approve, on May 2, 1919, the f o l l o w i n g revised article: " G e r m a n y acknowledges and w i l l fully respect the independence of Austria w i t h i n the frontiers established by the present Treaty as inalienable, except by consent of the Council of the League of N a t i o n s . " 8 2 In view of the fact that the frontiers of Austria were only in part defined, Cecil Hurst suggested that they insert the phrase "frontiers w h i c h may be fixed" in place of "frontiers established by the present T r e a t y . "

63

W i t h this slight

revision in the phrasing the provision was inserted in the Treaty of Versailles as Article 80. T h e G e r m a n treaty was approved in plenary session of the Peace Conference on M a y 6, 1919, and submitted to the G e r m a n delegation, on M a y 7- 64 T h e question of the independence of Austria was given special consideration in the observations of the G e r m a n delegation on the conditions of peace addressed to the Allies on M a y 27, 1919. T h e y stated: 81 Ibid., pp. 72 f. Ibid. Ibid., p. 73. The Italian delegation withdrew from the conference April 24, 1919, and did not return until May 4. During their absence President Wilson, Mr. Lloyd George and M. Clemenceau decided some very important matters pertaining to the future interests and welfare of European States. 6 3 Nina Almond and Ralph Haswell Lutz, The Treaty of St. Germain, a Documentary History of Its Territorial and Political Clauses. "Hoover War Library Publications," No. 5 (Stanford University, 1935), p. 631. 84 Conditions of Peace with Germany, Senate Document No. 149, 66th Congress, ist Session (Washington, 1 9 1 9 ) , pp. 9 - 1 2 . 80

82

102

PROVISIONAL STIPULATIONS

In Article 80 the permanent recognition of the independence of Austria within the frontiers established by the present Treaty of the Allied and Associated Powers is demanded. Germany has never intended, and never will intend, to use force to effect any alteration in the GermanAustrian frontier. In the event, however, that the people of Austria, whose history and civilization have, for a thousand years, been most closely linked with Germany, should desire to re5 In their reply to the G e r m a n observations the A l l i e s stated in their c o m m u n i c a t i o n of J u n e 16 that the A l l i e d a n d Associated P o w e r s take note of the declaration in w h i c h G e r m a n y declares that she " h a s never h a d a n d w i l l never h a v e the intention of c h a n g i n g by violence the f r o n t i e r between G e r m a n y a n d A u s t r i a ! "

86

T h i s important decision a f f e c t i n g the rights a n d i n d e p e n d e n c e of A u s t r i a w a s taken b e f o r e the A u s t r i a n delegation arrived in Paris. T h e A u s t r i a n delegates w e r e not g i v e n an opportunity to express their wishes in the matter prior to the decision taken b y the A l l i e d g o v e r n m e n t s . T h e A u s t r i a n g o v e r n m e n t registered its c o m p l a i n t in an official c o m m u n i c a t i o n , on J u l y 10, 1 9 1 9 . It stated that German Austria cannot recognize the full value of treaties of which the contents were not brought to her knowledge. It would be, furthermore, doubtless contrary to the intentions of the Powers to prejudice the liberty and independence of a third State by arrangements drafted without her knowledge. 6 7 B e t w e e n the date of the s i g n i n g of the T r e a t y of Versailles, J u n e 28, 1 9 1 9 , a n d the deposit of the required n u m b e r of ratifica65 60 87

Almond and Lutz, op. eit., p. 632. Conditions of Peace with Germany, p. 1 1 3 . Almond and Lutz, op. cit., p. 628.

PROVISIONAL STIPULATIONS

tions to declare the treaty in force, October 10, 1919, the new German Constitution was adopted, August 1 1 , 1919, by the Constituent Assembly sitting at Weimar, Germany. Special provision was made in Article 61, Section IV, of the new constitution for the representation of "German-Austria" in the Reichsrat "after union with the German Reich." 68 This constitutional provision was looked upon by the members of the Peace Conference at Paris as a violation of Article 80 of the Treaty of Versailles. A special resolution was adopted by the Council of Heads of Delegations, on August 26, 1919, providing for a discussion of the violation of the German treaty by the terms of Article 61 of the German Constitution.69 A special note from the French delegation, under date of August 26, 19x9, pointed out that: According to Article 60 of the Constitution, the Council of the Empire is instituted for the representation of the "German countries" in the legislation and administration of the Empire, and the territory of the Empire is composed of the territories of the German countries (Article 2 of the Constitution). 7 0

The proposed arrangement under Article 61 of the German Constitution was a violation of the engagement taken by Germany in Article 80 of the peace treaty which had been signed on June 28,1919. The drafting committee was authorized, on August 27, to prepare a special article on the independence of Austria to be inserted in the Austrian treaty.71 On August 29 the committee addressed to the Supreme Council the following observation: 68 Howard Lee McBain and Lindsey Rogers, The New Constitutions oj Europe (New York, 1 9 2 3 ) , p. 187. 69 70 Almond and Lutz, op. at., p. 632. Ibid., p. 633. 71 The proposed article to be inserted in the Austrian Treaty stated that "The independence of Austria is inalienable unless with the consent of the Council of the League of Nations. Consequently Austria engages to abstain, except with the consent of the said Council, from any act whatsoever that would jeopardize her independence dircctly or indirectly in whatever way, notably and up till her admission as a Member of the League of Nations, by way of participation in the affairs of another Power." Almond and Lutz, op. cit., p. 634.

PROVISIONAL

104

STIPULATIONS

1. Article 61 of the German Constitution of A u g u s t n , 1919, is not in conformity with the spirit of Article 80 of the G e r m a n Treaty. 2. T h e sending of the following note and the insertion of the following stipulation in the Austrian Treaty would be of a nature to avoid future disputes: 7 2 In response to the r e c o m m e n d a t i o n of t h e d r a f t i n g c o m m i t t e e t h e S u p r e m e C o u n c i l dispatched the c o m m i t t e e ' s d r a f t statement to t h e G e r m a n g o v e r n m e n t : T h e Allied and Associated Powers having taken cognizance of the G e r m a n Constitution of August 11, 1919, inform the German Government that they consider the provisions of Article 61, alinea 2, of the said Constitution as not complying with the spirit of Article 80 of the Peace Treaty signed at Versailles June 28, 1919, and that in conformity with Article 178 of this Constitution, the provision considered above would have no effect outside of the conditions stipulated in Article 80 of the said Peace Treaty. 7 3 T h e G e r m a n d e l e g a t i o n addressed the f o l l o w i n g note to the P r e s i d e n t of the Peace C o n f e r e n c e , S e p t e m b e r 5, 1919, to e x p l a i n f u r t h e r the position t a k e n by the G e r m a n g o v e r n m e n t r e g a r d i n g t h e f u t u r e status of A u s t r i a : T h e Germans . . . assumed that it would not be in contradiction of Article 80 of the Peace Conditions, which in its last sentence specifically points towards a future possibility of a change in Austria's political independence with the assent of the League of Nations, if the road to this possibility were paved by an amicable approach between the two countries in accordance with the principles of the right of self-determination of peoples. For this reason Article 61, section 2, has been incorporated in the German Constitution. 7 4 T h e A l l i e d g o v e r n m e n t s d e m a n d e d that A r t i c l e 61 of the G e r m a n C o n s t i t u t i o n should be r e n d e r e d n u l l a n d v o i d . By w a y of a counter-proposal the G e r m a n

government

s u g g e s t e d that

they

s h o u l d m a k e the article n o n a p p l i c a b l e a n d w i t h o u t legal force. 7 5 72 74

Ibid., pp. 633 f. Ibid., pp. 637 f.

73 76

Ibid., p. 634. Miller, Diary, XVI, 496 £.

PROVISIONAL STIPULATIONS

105

T h e Council of the Heads of the Delegations still at Versailles on September 1 1 , 1919, drafted a demand that Germany register in a diplomatic act its recognition of the fact that Article 61 of the Weimar Constitution was null and void. 78 A special diplomatic act was signed at Paris on September 22, 1919, by the Principal Allied and Associated Powers and Germany in the following terms: . . . the German Government, admits and declares that all the provisions of the German Constitution of the nth August, 1919, which are in contradiction with the terms of the Treaty of Peace signed at Versailles on the 28th June, 1919, are null and void. The German Government admits and declares that the second paragraph of Article 61 of the said Constitution is therefore null and void, and in particular that Austrian representatives cannot be admitted to the Reichsrat, except so far as the Council of the League of Nations, in accordance with Article 80 of the Treaty of Peace, should consent to such a change in the international status of Austria. . . . 7T T h e reply of the Allied and Associated Powers, of September 2, 1919, to the observations of the Austrian delegation on the general provisions of the political clauses in the Treaty of St. Germain, emphasized the fact that It has appeared useful to consecrate by a special disposition the principles recognized by the Treaty concluded with Germany (article 80), that the independence of Austria is inalienable; it could be otherwise only with the consent of the Council of the League of Nations. . . . T8 T h e Allies contended that the provision for Austrian independence set forth in Article 88 of the Treaty of St. Germain, as well as in Article 80 of the Treaty of Versailles, was justified on the ground that the Austrian people shared in a large measure with their neighbors, the Hungarian people, responsibility for the ills which Europe had suffered in the course of the World W a r . 79 77

Ibid.,

pp. 5 0 3 - 5 .

Almond and Lutz, op. at., p. 643.

78

Ibid., p. 629.

io6

PROVISIONAL STIPULATIONS

In the opinion of the Allied leaders the war was precipitated by the ultimatum which the government of Austria sent to Serbia demanding acceptance within a period of forty-eight hours of a list of exactions which amounted virtually to the suppression of the independence of that State. The Allies contended that "this ultimatum was but a hypocritical pretext to begin a war which the old autocratic government of Vienna, in close accord with the Rulers of Germany, had prepared long ago, and for which it judged the moment had arrived." 79 The traditional policy of supremacy of the old Austrian government had alienated the good will and loyalty of her former subjects, they stated, and the various nationalities were "without exception, and justly, resolved to constitute themselves into independent States." While the Allied Powers were desirous of aiding the Austrian people to accommodate themselves to the new situation and to regain prosperity, this could not be done at any time "at the expense of the new States issued from the old empire." 80 In the interim between the signing and the ratification of the Austrian treaty the Austrian government had occasion to appeal to the Allied governments for support against separatist movements. A resolution adopted by the Allied leaders and transmitted to the Austrian government, December 16, 1919, gave an official interpretation of Article 88 of the Austrian treaty and indirectly of Article 80 of the German treaty. The Allies declared that they would oppose any steps "which, contrary to the provisions of Article 88 of the said Treaty, would result in compromising in whatever manner, directly or indirectly, the political and economic independence of Austria." 8 1 The terms of the article were not limited to legal and political interests. They foresaw the possibility of economic rapprochement and sought to forestall the very agreement which the German and Austrian authorities embodied 79 80

Treaty of Peace with Austria, Senate Document No. 1 2 1 (Washington, 1919), p. 3. 81 Ibid., p. 5. Almond and Lutz, op. cit., p. 330.

PROVISIONAL STIPULATIONS

107

in the A u s t r o - G e r m a n customs union agreement of M a r c h 19, 1931. 82 T h e official minutes of the proceedings of the Supreme Council, the exchange of notes and the signing of a special diplomatic act regarding Paragraph 2 of Article 61 of the G e r m a n Constitution, the statement of the Allies transmitted to Austria, September 2, 1919, and the resolution of December 16, 1919, setting forth the A l l i e d interpretation of the article safeguarding Austria's independence, all contributed to an understanding of the real intent and purpose u n d e r l y i n g the provision in Article 80 of the Treaty of Versailles. T h e acceptance by G e r m a n y of these understandings and treaty commitments obligated her to respect the independence of Austria w h i c h was declared inalienable except by the consent of the Council of the L e a g u e of Nations. Germany's legal commitment w a s subject to the possession and exercise of the authority given to the C o u n c i l to determine the status of Austria. T h e r e was n o right granted G e r m a n y to require a change in the treaty arrangement. A s a m e m b e r of the Council, G e r m a n y w o u l d be afforded an opportunity to seek the consent of the Council to a change in Austria's status. T h i s privilege of membership, however, w o u l d not remove the legal obligation imposed upon G e r m a n y as a signatory power to abide by whatever decision the Council might take in the matter. L i k e a n u m b e r of other treaty stipulations, provision was made for the modification of treaty relations without altering the legal obligations of the contracting powers. Austria could no doubt appeal to the L e a g u e for a consideration of her position as an independent State. But even in the case of Austria there is n o recognition of a right to require a revision of the legal commitments. 8 3 T h e political, economic, and social consequences of the 82 Publications of the Permanent Court of International justice. Series A . / B . — N o . 41. Customs regime between Germany and Austria (Protocol of March 19, 1931) Advisory Opinion of September 5, 1931. 8 3 T h e provisions in Articles 88-91 of the Treaty of St. Germain are more specific in dealing with the independence of Austria than the text of Article 80 of the Treaty of Versailles.

io8

PROVISIONAL

STIPULATIONS

treaty provisions relating to Austria's independence have been very far-reaching. The question of the effect upon Austria of the provision in Article 80 and the results of Germany's annexation of Austria do not come within the scope of this analysis of the contingent legal obligation imposed upon Germany as a signatory power. Her recent unilateral repudiation of the treaty provision regarding the independence of Austria does not of itself terminate her contractual obligations. 84 The Allied Powers reserved through the Council of the League of Nations the authority to readjust the treaty settlements pertaining to Austria's independence and Germany's relation thereto. T h e consent of the Council was required to alter the status of Austria. Germany was obligated under the terms of Article 80 of the Treaty of Versailles to abide by whatever action might be taken in this matter. 84

Article I of the Anschluss Law promulgated by the German government on March 13, 1938, following the annexation of Austria, states that "Austria is a land of the German Reich." See The New Yor\ Times, March 14, 1938; also James Wilford Garner, "Questions of State Succession Raised by the German Annexation of Austria," Am. /. I. L., XXXII, 421-38.

CHAPTER

VI

M A C H I N E R Y FOR M O D I F Y I N G T H E S E T T L E M E N T OF 1919 O N E of the most important pronouncements made in 1919 by the Allied and Associated governments regarding the provisions in the treaty for subsequent modification of the settlement was stated in a letter from the President of the Peace Conference, M. Clemenceau, to the head of the German delegation, on June 16, 1919, as follows: It (the treaty) creates the m a c h i n e r y f o r the peaceful a d j u s t m e n t of all international problems by discussion a n d consent, w h e r e b y the settlem e n t of 1 9 1 9 itself, can be modified f r o m time to time to suit n e w facts a n d n e w conditions as they arise. 1

This letter voiced the unanimous opinion of the Principal Allied and Associated Powers and was sent in reply to the German demands for fundamental changes in the conditions of peace drawn up by the Allied and Associated governments. In his letter to the German delegation M. Clemenceau assured them that the machinery required for the peaceful adjustment of all international problems had been established; that permanent processes were provided whereby the treaty settlement of 1919 could be modified from time to time to suit new facts and new conditions as they might arise.2 1 Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace, published by His Majesty's Stationery Office, Cmd. 258, Miscellaneous, No. 4 (London, 1 9 1 9 ) , p. 10. 2 Some of the points of the settlement which would need reconsideration were stressed by General Smuts, of South Africa. He said: "There are territorial settlements which will need revision. There are guarantees laid down which we all hope will soon be found out of harmony with the new peaceful temper and unarmed state of our former enemies. There are punishments foreshadowed over most of which a calmer mood may yet prefer to pass the sponge of oblivion. There are indemnities stipulated which cannot be expected without grave injury to the industrial revival of Europe, and which it will be in the interest of all to render more tolerable and moderate." Temperley, op. cit.. Ill, 74 f.

110

MACHINERY FOR MODIFICATION

In his first draft of the Covenant of the League President Wilson stressed the need for an understanding between the contracting parties, allowing for such territorial readjustment as might in the future become necessary by reason of changes in racial conditions or social and political relations. In his address before the plenary session of the Peace Conference, on January 25, 1919, he emphasized again that the proposed settlements would need subsequent reconsideration and alterations. He asked the conference to set up "permanent processes" to enable the signatory powers to effect necessary changes. 3 The official communication from M. Clemenceau, voicing the intent of the Allied and Associated Powers, definitely indicated that the machinery for the peaceful adjustment of all international problems might be employed to modify the settlement of 1919 itself.4 The Allied note of June 16 did not amount to a pledge, however, on the part of the Allied and Associated Powers to use whatever machinery was set up to revise the terms of the peace treaty. Neither did it give Germany a right to say, we accepted the conditions of peace with the understanding that its terms would be modified from time to time when new conditions required a change, or when the German position warranted a reconsideration of the agreement. It does not appear to have been 3

Miller, Drafting the Covenant, II, 155-58. On January 6, 1930, Viscount Cecil, one of the authors of Article 19 of the Covenant, addressed the following interpretation of the intent of the authors of the Covenant to Mr. Paul de Auer: "As regards the intention of those who drafted the Covenant, I am not aware that anyone intended to draw a distinction between the classes of treaties to which the Article might apply. I have no knowledge of any intention to exclude the peace treaties in particular. "As regards the legal meaning of the text of Art. 19, there is in my opinion nothing to imply that any special class of treaties is excluded (e. g., territorial settlements of the peace treaties of 1919). "As regards the expediency of invoking Art. 19 for the revision of particular treaties I can, of course, express no opinion. It is clearly necessary, if war is to be ruled out as a means of effecting change, that there should be some means of effecting a revision of the legal status quo. You will remember that a resolution of the Tenth Assembly reaffirmed the right of any League State to raise a question of treaty revision under Article 19: but whether the treaty would in fact be recommended for reconsideration would depend upon the unanimous vote of the Assembly." The Grotius Society, Problems of Peace and War (London, 1933)» XVIII, 166. 4

MACHINERY

FOR MODIFICATION

III

anything more than a recognition of the fact that the terms of the treaty provided for certain agencies and procedures which could be employed by the signatory powers in case they should decide to reconsider the treaty provisions. M. Clemenceau stated that the treaty created the machinery for the peaceful adjustment of all international problems whereby the settlement of 1919 itself could be modified from time to time. He did not state that the Allied and Associated Powers u/ould make use of the treaty machinery at the request of Germany for a modification of the settlement. The Allies were free to determine whether there were new facts and conditions requiring change. If convinced that they existed, revisory processes could be used. Germany's attempt to secure a definite pledge from the Allied and Associated governments in behalf of subsequent revision of the treaty drew from the Allied spokesmen a clear statement of their position in this matter. A n ultimatum was issued, in June, 1919, by the Allied and Associated governments, demanding a complete acceptance or a refusal of the conditions of peace by Germany. In their letter of June 22, 1919, accepting the demand to sign the conditions of peace without reservations, the German delegation addressed the following request to the President of the Peace Conference: T h e German Government believes itself to be entitled to address the following modest request to the allied and associated Governments, in the expectation that the allied and associated Governments will consider the following declaration as an integral portion of the treaty: " W i t h i n two years, counting from the day when the treaty is signed, the allied and associated Governments will submit the present treaty to the high council of the powers, as constituted in article 4, for the purpose of subsequent examination. Before this high council the German plenipotentiaries are to enjoy the same rights and privileges as the representatives of the other contracting powers of the present treaty." 5 0 Conditions of Peace with Germany, U.S. Senate Document No. 149, 66th Congress, 1st Session (Washington, 1 9 1 9 ) , p. 164.

112

MACHINERY FOR MODIFICATION

T h e A l l i e d and Associated Powers refused to grant a concession. In their reply to the G e r m a n request they stated: T h e y can accept or acknowledge no qualification or reservation and must require of the G e r m a n representatives an unequivocal decision as to their purposes to sign and accept as a whole, or not to sign and accept the treaty as finally formulated. 6

T h e r e was general recognition a m o n g the peace delegations in 1919 that the dislocations caused by the W o r l d W a r w o u l d require permanent processes and agencies f o r the peaceful adjustment of international disputes. M a n y of the treaty sections w o u l d need subsequent reconsideration and alteration. Provision

was

made for special agencies to dircct whatever negotiations the signatory powers m i g h t favor. T h e treaty provisions w h i c h created the machinery "whereby the settlement of 1919 can be modified f r o m time to t i m e " fall under t w o general headings: first, the articles w h i c h named the League of Nations, the Council and the Assembly of the League, and the Conference of the International Labor Organization to perform certain functions in effecting treaty adjustments; second, the articles w h i c h authorized the States w h o s e

representatives

composed the members of designated agencies to m o d i f y parts of the treaty. Under Article 277 of the treaty the L e a g u e of Nations may recommend at any time the revision of the articles in Part X I I w h i c h relate to a permanent administrative regime. T h e provision in Article 80 declared the independence of Austria to be inalienable except w i t h the consent of the C o u n c i l of the League. T h e Council could amend the obligations imposed on G e r m a n y by Chapter I, by Articles 271-72 of Chapter II and by Article 276 of Chapter I V of Part X . T h e stipulations in Articles 321-30, 332, 365, 367-69, in Part XII, were made subject to revision by the Council of the League of Nations at any time after five years f r o m the coming into force of the Treaty of Versailles (Article 378). 6

Ibid., p. 165.

MACHINERY FOR MODIFICATION

113

The Assembly of the League may advise the reconsideration by members of the League of treaties (including the Treaty of Versailles) which have become inapplicable (Article 19). The Assembly may also assist in the preparation of amendments to Part I of the treaty (Article 26). The General Conference of the International Labor Organization had first to adopt amendments to Part XIII before submitting the proposed changes to the States represented on the Council and the Assembly for ratification (Article 422). The second group of treaty provisions relating to possible modification of the contractual arrangements delegated to a number of States the authority to revise particular sections of the treaty. Annex II to Part VIII could be amended by the unanimous decision of the governments represented from time to time upon the Reparation Commission (Paragraph 22 of Annex II). Amendments to the Covenant of the League would take effect when ratified by the members of the League whose representatives compose the Council and by a majority of the members of the League whose representatives compose the Assembly (Article 26). A similar provision for amending Part XIII of the treaty called for the States whose representatives compose the Council and for threefourths of the members of the League to ratify an amendment after it had been adopted by the General Conference of the International Labor Organization (Article 422). The Allied and Associated Powers were named in Article 379 to conclude general conventions, with the approval of the League of Nations, to supersede the international regime of transit, waterways, ports, and railways created by the original terms of the treaty. There was no uniformity in the phrasing employed to designate the powers who were to participate in altering the treaty provisions. Amendments could be effected in different cases by "the Governments" represented from time to time on the Reparation Commission, by "the Members of the League" and by "the States" whose representatives compose the Council and the Assembly.

ii4

MACHINERY FOR MODIFICATION

These revisory provisions were not confined to the original signatory powers or to a permanent group of States.7 The membership of each body established by the treaty would be changing constantly. The treaty made practically no provision for the procedures to be followed in modifying the terms of the agreement. This lack of precision was due to the method employed in appointing a large number of commissions and committees to prepare the texts of different parts of the treaty. There was no common or general policy for co-ordinating the work of the various groups. Furthermore, there were no established rules of procedure for treaty negotiations or modifications by which the authors of the treaty could be guided in their drafting of the treaty provisions. The relations of States and the response of peoples to foreign developments touching their welfare are not sufficiently standardized to enable governments to adopt detailed regulations for the modification of their treaty rights. The use of the treaty machinery for the readjustment of treaty provisions was made a voluntary matter on the part of the contracting powers. There was no legal duty to employ the machinery to revise the Treaty of Versailles. The peace treaty was drawn up in a manner which safeguarded the advantages of the victor powers. No provision was made to release Germany from her legal obligations. The arrangements for the voluntary employment of certain agencies and procedures marked the extent of the Allied acceptance of plans for treaty readjustments. The decision of the Allied and Associated Powers to impose a dictated settlement upon Germany blocked all efforts to introduce proposals for subsequent revision of the treaty. The opposition of certain victor powers to the repeated attempts made by Germany 7 There is no definite provision requiring alt the contracting parties to participate in the revision of every part of the Treaty of Versailles or to accede to the changes effected by a special group of powers. The parties which have not participated in the revisory proceedings have shown no disposition to assert any right to be included in the modifications already made.

MACHINERY FOR MODIFICATION

115

to have her position reconsidered resulted in a prolonged conflict which produced the willful repudiation of certain treaty provisions by Germany and the rearming of former belligerents. Power diplomacy and military alliances have rendered more difficult the peaceful adjustment of international problems by discussion and consent; the procedure whereby the settlement of 1919 might be modified.

PART TWO

REVISIONS OF THE TREATY OF VERSAILLES

CHAPTER VII A M E N D M E N T S T O P A R T I: T H E C O V E N A N T OF T H E L E A G U E OF NATIONS T H E modification of the League Covenant has been an important topic of discussion in government and international circles from the day of the League's inception to the present. 1 The pressure of time, the political rivalry of the Allied Powers, and the strain of overwork at the Peace Conference made it impossible for the members of the League commission to avoid rather serious imperfections in the drafting of the League Covenant. These imperfections were more pronounced after the League was established than they had appeared to be in the specifications for such an international body. The commission appointed to draft the Covenant in 1919 rejected numerous articles which various governments sought to have inserted in the text of the Covenant. 2 The provisions made in Article 26 for amendments opened the way for many of the ideas 1 League of Nations, Official Journal, 1936, Special Supplement No. 154, "Documents relating to the Question of the Application of the Principles of the Covenant"; Records of Assembly, 1936. A resolution adopted by the Assembly on October io, 1936, provided for the appointment of a special committee to study the following problems: the question of the universality of the League (participation of all States in the League, co-operation with nonmember States, co-ordination of the Covenant of the League with the Pact of Paris and with the treaty signed at Rio de Janeiro on October 10, 1933, on the initiative of the Argentine, regional or continental organization of the League); the question of methods which might be employed with a view to the application of the principles of the Covenant (amendments to the Covenant, accessory agreements, interpretative resolutions, etc.); questions relating to the internal organization of the League (Articles 1, 3, 4, and 7 of the Covenant); Article 10; Article 1 1 ; questions relating to the pacific settlement of disputes (Articles 1 2 , 1 3 , 14, and 15 of the Covenant); Article 16 (general obligations, regional pacts of mutual assistance); Article 19; problem of the separation of the Covenant from the peace treaties. For a report of the special committee set up to study the application of the principles of the Covenant see League of Nations, A. 7. 1938, VII. Other works dealing with the League reforms include, The Royal Institute of International Affairs, The Future of the League of Nations (London, 1936); League of Nations, V. Legal, 1 9 2 1 - 2 3 ; collection of League documents bearing upon proposed amendments to the Covenant, ibid., 1 9 2 7 - 2 8 ; A . 79 ( 1 ) . 1938. V. 2 Miller, Drafting the Covenant, I, 3 ff.

120

AMENDMENTS TO PART I

rejected by the commission at Paris to reappear later at Geneva in the form of draft amendments. Proposals were submitted to the First and Second Assembly in 1920 and 1921 to amend no fewer than 14 articles of the Covenant. 3 The decision of the government of the United States to abstain from membership in the League produced definite proposals in League circles for the modification of the Covenant to facilitate the adherence of the United States.4 T h e absence of the Soviet Union and, at first, Germany from the League Council also limited the scope and influence of the League of Nations which depended upon universality of membership for its real strength. Different methods were employed to adjust the League machinery to meet the problems created by the political, economic, and social developments in the post-war period. These various factors have led to a number of reforms of the League of Nations since the League was inaugurated in 1920.5 By formal amendments to the Covenant, Articles 4, 6, 12, 13, and 1 5 have been modified, involving the organization of the Council, the system of determining the financial contributions to the League by its members, and the settlement of disputes by judicial means. Broad interpretations of the Covenant provisions by the Council and Assembly resolutions 8 and special negotiations and 3 Records of Assembly, 1920, Plenary; ibid., 1 9 2 1 ; ibid., 1920 and 1 9 2 1 , Committee No. 1. For the texts of the amending protocols sec Manley O. Hudson, International Legislation (Washington, 1 9 2 1 ) , I, 19-42. 4 In the discussion of Article 10 in the Third Assembly the French delegate, after defending the provisions in this article, stated that if the United States were to join the League it would bring such strength "that we could well consent to some sacrifices; but that if Article 10 is to be modified, it must be modified when the United States joins us and in agreement with the United States." Records of Assembly, 1922, Plenary, p. 214. When the International Blockade Commission was studying the application of Article 16 in 1920, it was stated that the failure of the League to contain all or nearly all States as members made it necessary to adapt the procedure of economic blockade to conditions unforeseen at the Peace Conference. Records of Assembly, 1 9 2 1 , Committee No. 3, p. 381. See also Official Journal, 1925, p. 447. 6 Williams, Some Aspects of the Covenant of the League of Nations, pp. 2 1 1 ff. 6 A resolution can only explain or apply, not change, a passage in the Covenant. The decision may be reversed by a succeeding unanimous vote of the Assembly, since a resolution interpreting an article of the Covenant requires a unanimous vote of the Assembly, it being a "decision" in the meaning of Article 5. Resolutions have been adopted by the

AMENDMENTS TO PART I

121

agreements outside the framework of the League 7 have had a definite bearing upon the course which the League has taken in adjusting its program to post-war changes. Only the amendments to the Covenant which constitute a modification of the original treaty provisions will be considered here. During the nineteen years of the League's existence seventeen protocols of amendments to the Preamble, Articles i, 4, 5, 6, 12, 1 3 , 1 5 , 16, 26, and the Annex to the Covenant have been voted by the Assembly and transmitted to the member States for ratification. Out of the nine articles listed five have been modified by amendments. T h e changes made in three of these, Articles 12, 13, 15, are slightly more than verbal. Protocols of amendments to Articles 16 and 26, and the more recent instrument of amendments to the Preamble, Articles 1, 4, 5, and the Annex, await the Council and the Assembly for the purpose of interpreting important articles of the Covenant, especially Articles 10 and 16, and the application of Articles n and 19. The Assembly resolutions include resolutions of approval, of guidance, suggestions and requests to the Council, and constitutional regulations. One of the resolutions adopted by the Second Assembly in 1 9 2 1 was thought at one time to be sufficient without resorting to an amendment to Article 16. See Records of Assembly, 1923, Committee No. 1 , p. 1 2 ; ibid., pp. 14 f.; Records of Assembly, 1 9 2 1 , Plenary, pp. 435, 802 ff.; also pp. 432, 454, 456; Records of Assembly, 1 9 3 1 , Committee No. 3, pp. 39, 59 ff. 7 The Pact of Paris, the General Act, the Locarno Treaties, and the Pan-American Treaties embraced obligations other than those in the Covenant. These commitments taken by the signatory powers, many of whom were members of the League, gave rise to a demand for a revision of the Covenant to make its provisions harmonize with the new agreements. The plan known as the Draft Treaty of Mutual Assistance, which was intended to facilitate the reduction of armaments by the adoption of a general treaty supplemented by regional treaties of security, was developed in 1923. The following year the League sponsored the more elaborate Protocol for the Pacific Settlement of International Disputes, the so-called Geneva Protocol, which included a comprehensive plan of arbitration and security. Article 2 of the Protocol specified that its provisions were to be incorporated as soon as possible in the Covenant of the League of Nations. When the Protocol also failed to gain acceptance, the members of the League turned to more limited undertakings. In 1925 the governments of France, Great Britain, Belgium, Italy, Czechoslovakia. Poland, and Germany negotiated the Locarno Treaties, which embodied the principle of regional guarantees and the peaceful settlement of disputes. Later the Assembly of the League evolved a group of Model Treaties of Non-Aggression and Mutual Assistance ( 1 9 2 7 ) , the so-called "General Act" (1928), the Model Treaty for Strengthening the Means of Preventing War (1929), and the Draft Treaty for Financial Assistance to States Victims of Aggression (1929). Since these agreements could come into force between a few States only, they would not replace the Covenant. They would tend to take the place of amendments to the Covenant so far as the few signatory powers were concerned. See Secretariat of the League of Nations, Ten Years of World Cooperation, 1930, pp. 77-97.

122

AMENDMENTS TO PART I

required number of ratifications by the League members of resolutions already voted by the Assembly.8 The adoption of Article 26 by the League commission in 1919 did not produce the degree of flexibility in modifying the Covenant which its authors expected. From the League's inception to the present this article has proven to be unsatisfactory in its treatment of the procedural aspects of amending the Covenant. The opening of the First Assembly, in 1920, marked the first flood of requests for amendments to the Covenant which, if they had been adopted, would have changed fundamentally the character of the League experiment. The early effort to modify the Covenant and, indirectly, the Treaty of Versailles was considered so serious that Mr. Balfour, of Great Britain, took a definite stand against the first Assembly's setting out "to pull to pieces" the "great international instrument" which, he contended, gave a seal to the peace of the world.® Mr. Balfour, speaking as rapporteur of Committee No. 1 of the Assembly, stated that the members of the committee had decided that the moment was inopportune for amending the Covenant. This decision was not prompted by any opposition to amendments to Part I of the treaty. The reasons given by Mr. Balfour were twofold: First, "If you change the Covenant," he said, "you change the Treaty of Versailles. The Covenant is embodied in the Treaty; and is an integral part of the Treaty, and we thought it very undesirable at this moment and in the circumstances in which we find ourselves, that the Assembly should set to work to pull to pieces that great international instrument." 10 The members of the committee did not consider it within their power to undertake a labor of treaty revision which would have been repugnant to a vast majority of the League members. Second, the League of Nations was only eleven months old. Its experience and 8 Fourteen amendments were submitted to the Assembly in 1920 and 19.21 and one to the Assembly in 1924. See Records of Assembly, 1 9 2 1 and 1924, Plenary. 9 10 Records of Assembly, 1920, Plenary, p. 247. Ibid.

AMENDMENTS TO PART I

123

that of its members was necessarily insufficient to determine the proper changes to m a k e in the Covenant of the n e w international body.11 T h e forces seeking revision of the Covenant were so strong, however, that the Council of the L e a g u e was asked to appoint a special committee to consider proposals for amendments and to submit a report covering the same at the Assembly meeting the f o l l o w i n g year. T h e resolution adopted by the First Assembly read as follows: T h e Assembly of the League of Nations decides: T h a t the amendments to the Covenant proposed by the Danish, N o r wegian and Swedish Governments shall, at this moment, not be taken into consideration by the Assembly; and that the Council be invited to appoint a committee to study the said proposals of amendment, together with any which may be submitted by a Member of the League, within a period to be fixed by the Council. T h e Committee shall report to the Council, which shall place the conclusions before the Assembly at its next session. 12

T h e Council appointed a special committee on amendments at its t w e l f t h session, in February, 1921. 1 3 T w o reports were submitted by the committee f o l l o w i n g their meetings in April, June, and September, 1921. 14 T h e reports dealt w i t h substantive problems raised by various suggestions, as well as with technical and procedural matters w h i c h might arise in the course of submitting protocols of amendment for ratification. In its summary of the first report the committee on amendments stressed the belief that 1 1 League of Nations, Committee on Amendments to the Covenant, First Report of the Committee to the Council, A . 24. 1921. V . ; C. 110. M. 62. 1921. V. 12 Records of Assembly, 1920, Plenary, p. 259. 13 Minutes of the Twelfth Session of the Council, pp. 51 f. 1 4 League of Nations, Documents, A . 24. 1921. V . ; A . 24 ( 1 ) . 1921. V . A classification of the proposed amendments, which were referred to the Committee on Amendments to the Covenant, shows that a total of 26 amendments was submitted for consideration. These included questions of arbitration, conciliation and judicial settlement, blockade and economic weapons, meetings of the Assembly, unanimity of the Assembly, finances of the League, membership of the Council, admission to membership of the League, and Articles 10 and 21.

124

AMENDMENTS TO PART I

the fundamental principles of the Covenant were both equitable and well founded. Several modifications which constituted, not any transformation of the League organization, but an adaptation of the League procedure to meet circumstances, were recommended for adoption. The proposals of the committee alluded to the composition of the League of Nations, to its rights and duties, to its constitution, and to the obligations of its members. 15 T h e method by which the Covenant should be amended and the form in which a proposed amendment should be drafted were covered by the committee in its second report, on September 7, 1921. This particular aspect of the problem had not been referred to the committee by the Assembly. However, the committee anticipated the difficulties which would arise and prepared certain observations bearing upon the details of amending the Covenant. It seemed desirable that the proposed amendments should take the form of acts emanating from the Assembly, the only body competent to vote them. Each amendment voted by the Assembly might be made the subject of a special protocol, containing the text of the amendment and recording the votes of the members of the League Assembly. Each of these protocols could then be signed by the delegates who had voted for the amendment. This would give the documentary basis for the ratification by the members of the League which is provided for in Article 26. T h e committee recommended the adoption of a special provision to the effect that for the amendment to become valid it must receive the ratifications prescribed by Article 26 within a period of two years from the date of the voting of the amendment. It was also suggested that the Assembly should expressly resolve that a notification of dissent from an amendment in accordance with paragraph 2 of Article 26 should be made within a period of not more than one year after the coming into force of the amendment had been notified to the members of the League. This was viewed 15

League of Nations, First Report of the Committee

on Amendments,

A . 24. 1 9 2 1 . V .

AMENDMENTS TO PART I

125

by the committee as a reasonable regulation of the exercise of the right given to the members of the League by paragraph 2 of Article 26. The committee's reports and recommendations were presented to the Second Assembly in 1921. The Rumanian representative reminded the members of the Assembly that there were two classes of amendments which they had to consider. The first class included the amendments of minor importance which had only an explanatory character. He favored the adoption of such amendments in view of their contribution to the strengthening of the Covenant. The second class of amendments comprised proposals to alter what the Rumanian delegate called the letter and the spirit of the League charter. In his opinion they involved the risk of seriously infringing upon the Covenant. T o allow this type of amendment to the Covenant would lessen the value of the League of Nations and weaken the peace treaties. He appealed to the Assembly to reject any amendment which might involve this result. A m o n g the more drastic changes proposed in the First and Second Assembly meetings were Argentina's efforts to achieve universality of membership in the League by a plan whereby all sovereign States, recognized by the community of nations, be admitted to join the League by a voluntary decision on their p a r t ; 1 8 Colombia's proposal to relax the rule of unanimity by amending Article 5 of the C o v e n a n t ; 1 7 Canada's distrust of Article 10 and the repeated efforts made to amend the guarantee provision, resulting finally in an interpretative resolution; 1 8 Czechoslovakia's proposal to amend Article 21 in order that agreements between members of the League might be negotiated for the purpose of defining or completing the engagements contained in the Covenant for the maintenance of peace. 19 The appeal of the Rumanian delegate directs attention to the 18 18 19

17 Records of Assembly, 1920, Plenary, p. 279. Ibid., 1 9 2 1 , pp. 690 £. Ibid., pp. 693-95; ibid., 1922, Plenary, Annex 19, pp. 149 f. Ibid., 1 9 2 1 , Plenary, p. 706.

126

AMENDMENTS TO PART I

fact that the five amendments to the Covenant, which were later ratified, did not alter in any way the League principles. T h e changes effected by amendments dealt almost entirely with the form and procedure of the League bodies. While the amendments did not correct the shortcomings in the original provisions of the Covenant, they did modify the terms of the treaty. T h e second Assembly adopted the committee's proposal concerning the form to be given to resolutions of amendment and almost immediately formulated protocols for amendments to seven articles of the Covenant. The revisionist pressure which produced resolutions in 1920 and 1921 to amend no fewer than 14 articles of the Covenant lost its momentum with the acceptance of the seven protocols of amendment and the discovery of the slowness with which ratifications were made. A second period of agitation for revising the Covenant appeared with the proposal to harmonize the Covenant with the Pact of Paris. 20 Serious study was given to this proposition but the movement subsided with the emergence of strong opposition to further changes in the Covenant. A recent revival of agitation to revise the Covenant was started by the withdrawal of Japan, Germany, and Italy from membership in the League; and more recently there have been demands for drastic changes in the organization and function of the League of Nations. 2 1 T h e amendments to Articles 4, 6, 12, 13, and 1 5 of the Covenant are presented in the following pages. T h e numerous proposals for additional amendments, which were submitted by various governments, but not adopted, have not been included in this study, except the resolutions of amendments to Articles 16 and 26 which were adopted by the Assembly and submitted to the League members for ratification; the required number of ratifications is awaited to bring the amendments into force. 20 George Kidd, "Changes in the League, Past and Proposed," Geneva Special Studies, V. 1934, Nos. 7 - 8 , pp. 29 f. 21 Am. /. /. L., XXXin, 138 ff. For references to the resolution of amendments adopted by the Assembly of the League in September, 1938, see infra, p. 176, n. 1 8 1 .

AMENDMENTS TO PART I ARTICLE

I27

4

The Council of the League of Nations, according to the original text of Article 4 of the Covenant, "shall consist of Representatives of the Principal Allied and Associated Powers, 22 together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion." Paragraph 2 of Article 4 provides that "with the approval of the majority of the Assembly, the Council may name additional Members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council." Prolonged controversy marked the discussion of the League commission meetings in 1919 regarding the representation of the great and small powers on the Council. While an agreement was reached whereby five great powers were to have permanent representation and representatives of four other members of the League should be chosen from time to time by the Assembly, there was no definite provision in the Covenant for the length of term and re-eligibility of nonpermanent members. An additional provision was required to cover these matters. Proposals were submitted by the Scandinavian governments— Norway, Sweden, and Denmark—at the First Assembly meeting, in 1920, for the modification of Article 4 of the Covenant. They supported a proposed amendment to the effect that nonpermanent members should be elected for four years and should be made 22 On April 28, 1919, the text of paragraph i of Article 4 of the proposed Covenant named the United States, the British Empire, France, Italy, and Japan as the permanent members of the Council. The Council of Three, President Wilson, Lloyd George, and M. Clemenceau, gave specific direction prior to May 5 that the language of paragraph 1 be changed so as to read, "The Council shall consist of Representatives of the Principal Allied and Associated Powers . . ." The Italian delegates were absent from the conference at this time on account of the difference of opinion regarding Fiume. There was a bare possibility that Italy would not sign the peace treaty. For this reason it was decided that Italy should not be named as one of the permanent members of the Council of the League. Miller, Drafting the Covenant, I, 499. For proposals to change this phrase see League of Nations, Official Journal, 1920, pp. 353 £.; Records of Assembly, 1920, Plenary, pp. 262 f.

128

AMENDMENTS TO PART I

noneligible to succeed themselves and that the first four nonpermanent members should be chosen for terms of three, four, five, and six years, respectively. 23 The representative of Argentina proposed that all the members of the Council should be elected by the Assembly in conformity with the principle of the equality of States, in order that within a given period of time all the States members of the League might be represented on the Council. 24 Portugal favored a term of one year for nonpermanent members, such members to be declared noneligible for re-election for the following ten years. 25 Geographical distribution of the nonpermanent seats was supported by the Chinese and Argentine delegations.26 Numerous other proposals bearing upon the question of nonpermanent members of the Council were advanced. These dealt with a system of rotation of members, methods of selection, re-eligibility, and equality. Practically all these suggestions would have required some modification of the Covenant. 27 A n analysis of the various proposals submitted shows that two general tendencies were stressed: first, representation by rotation and, second, representation by regional or geographical association. T w o important principles were defined and accepted in the course of the discussions on the proposed amendments to the Covenant. First, it was recognized that the Assembly had the right to define conditions of re-eligibility of nonpermanent members and to fix the length of service of such membership. This meant that the Assembly taking such action would limit future Assemblies on these points. 28 Second, the adoption of the rule of twothirds majority for the fixing of such regulations was accepted in order to avoid the dangers of the rule of unanimity. A n amendment to Article 4 of the Covenant was voted by the Assembly on October 5, 1921. It was based upon the two principles 23

Records of Assembly, 1920, Committee No. 1, Annex 3, pp. 68-70. 28 Ibid., Plenary, pp. 90 f. Ibid., p. 253. 2a lbid., Committee No. i , pp. 15-20. 27 League of Nations, Committee on Amendments to the Covenant, Document A. 24. 1 9 2 1 . V . pp. 27-29. 28 Records of Assembly, 1920, Plenary, p. 414; ibid., 1 9 2 1 , Committee No. 1, p. 122. 24

AMENDMENTS TO PART I

129

cited above. T h e amendment was to be inserted between paragraphs 2 and 3 of Article 4. T h e proposed amendment read as follows: " T h e Assembly shall fix by a two-thirds majority the rules dealing with the election of the non-permanent Members of the Council, and particularly such regulations as relate to their term of office and the conditions of re-eligibility."

29

A protocol

embodying this amendment was opened for signature on October 5, 1921. T h e number of ratifications required to bring the amendment into force was not obtained until July 29, 1926. T h e political controversies produced by the efforts to achieve what would appear to be a minor alteration of the treaty arrangement reveal the difficulties which confront those seeking a readjustment of treaty arrangements by amendments to the original terms of agreement. T h e persistence of the small powers in endeavoring to w i n additional representation on the Council resulted in a definite change in the Council's membership, which in effect constituted a modification of the arrangements accepted at Paris in 1919. 3 0 T h e original plan of the Principal Allied governments was to make the Council the executive body of the League with membership limited exclusively to the great powers. 3 1 L o r d Robert Cecil contended that the Council, comprising only the great powers, should direct the work of the League and that all other powers should recognize this fact. 3 2 W h e n the principal Allied leaders saw the impossibility of limiting Council membership to the great powers alone, they adhered strictly to the principle that the great powers should be in the majority. 3 3 On paper the Council membership gave the advantage to the great powers. In practice the great 29

Ibid., 1921, Plenary, p. 854. Kidd, "Changes in the League, Past and Proposed," Geneva Special Studies, V, Nos. 7-8. 1934. P- 1331 32 Miller, Drafting the Covenant, II, pp. 41,61, 68 f. Ibid., p. 61. 33 The compromise providing for five permanent and four non-permanent seats on the Council was originally suggested by General Smuts in his "Practical Suggestion for the League of Nations," dated December 16, 1918. He argued that "The advantage of this constitution is that the Great Powers obtain a majority . . . representation on the council and could not, therefore, complain that their interests run the risk of being swamped by the multiplicity of small states." Ibid., II, pp. 39-42, especially p. 41. 30

i3o

AMENDMENTS TO PART I

powers never achieved their anticipated majority. 34 The British leaders failed at Paris to win sufficient support to limit the Council to the representatives of the five major powers on the Allied side. The compromise with the small powers left the great powers with a majority of one. The abstention of the United States from membership in the League resulted in a numerical equality of seats between the permanent and nonpermanent members. The Council in session soon discovered that certain nonpermanent members, such as Brazil and Spain, did not consider themselves small powers and that they worked more in harmony with the great powers, on many topics, than the leaders had expected. Furthermore, the composition of the Council as originally organized was a continuation of the war alliance of certain powers. 35 None of the defeated powers was represented on the Council. Only the victor States and one neutral were granted membership. This can be accounted for in part by the special duties which the Council had to perform in the execution of the peace treaties. 30 A controversy arose over the question of increasing the Council membership. The increase in the number of nonpermanent seats from four to six was initiated by a resolution adopted by the Third Assembly on September 25, 1922. 37 This decision taken by the Assembly was in accord with the Council's opinion that such a change, "while it modified the principle on which paragraph 1 of Article 4 of the Covenant was based," 3 8 should be effected in order to achieve the desired relation between the number of permanent and nonpermanent members. T h e increase would not, however, prejudice the re-establishment of the previous arrangement by an addition to the number of permanent seats on the Council. The cause, as distinct from the occasion, of the controversies 34

Felix Morley, The Society of Nations (Washington, 1 9 3 2 ) , pp. 340 f. Ibid., p. 342. 36 See Article 48, paragraph 17 to the Annex to Article 50 and Article 213 of the Versailles Treaty. 37 Records of Assembly, 1922, Plenary, p. 222; Morley, op. cit., p. 350. 38 Toynbee, Survey 1926, p. 14. 35

AMENDMENTS TO PART I w h i c h resulted in the first increase of nonpermanent seats on the Council has a direct bearing upon the attempt to a m e n d Article 4. T h e determination of the original nonpermanent members of the Council to retain their seats made rotation of membership difficult so l o n g as they could secure the required n u m b e r of votes for re-election. 39 Sectional or regional solidarity of States created well-organized movements to secure representation on the Council. Blocks of States seeking representation of an Hispanic or Iberian group, an A m e r i c a n group, a non-western or Asiatic group, forced a recognition of the geographical factor in L e a g u e representation. 40 A n u m b e r of States belonging to an intermediary class of powers, such as Brazil, Poland, Spain, and C h i n a , appeared at the close of the W o r l d W a r . T h e y were not great powers in the sense of belonging w i t h Great Britain and France. T h e y could not be grouped w i t h Belgium, Holland, and Switzerland. A s a result of the W o r l d W a r the balance of political and material power, as between the great powers and the States of lesser influence, had shifted to a marked degree in favor of the large number of small States. 41 Recognition of this fact was recorded in the C o v e n a n t in the provision for nonpermanent seats on the Council. Representatives of the smaller States were to enjoy a special position w i t h the great powers in the conduct of the L e a g u e affairs. T h e r e were t w o distinct groups a m o n g the lesser States w h i c h had been overlooked by the major powers. T h e

intermediary

powers considered their superiority over the small powers as being firmly established, as the great powers had viewed their position distinct f r o m the lesser States taken collectively. T h e demands of the intermediary powers for seats on the Council required special consideration. Surrender of a nonpermanent seat by one of the four members of the Council was looked upon as d a m a g i n g to the dignity and prestige of the o u t g o i n g member. Failure to be recognized as an 39

Morley, op. cit., p. 350.

40

Toynbec, op. at., p. 16.

41

Ibid., p. 21.

3

I 2

AMENDMENTS TO PART I

important power by membership on the Council was taken as a reflection upon the worthiness and achievement of the lesser States. 42 All of these factors entered into the proposals for increasing the number of nonpermanent seats from four to six. It was largely a constitutional question. Article 4 provides that the four nonpermanent Council members "shall be selected by the Assembly from time to time in its discretion." T h e Third Assembly, which voted to raise the number of nonpermanent members from four to six, adopted rules of procedure for the election of the nonpermanent members. The recommendation was made that the choice of the nonpermanent members should be made with due consideration for the main geographical divisions of the world, the great ethnical groups, the different religious traditions, the various types of civilization, and the chief sources of wealth. The votes cast at this Third Assembly meeting, in September, 1922, resulted in the appointment of Brazil, Spain, Uruguay, Belgium, Sweden, and China to the six nonpermanent seats. Rules of procedure adopted by one Assembly for the election of nonpermanent members of the Council might not be acceptable to the Assembly members at a later date. T o eliminate the uncertainty regarding the binding force of such rules, the Second Assembly had voted in favor of an amendment to Article 4 of the Covenant, providing for a rotation of nonpermanent members on the Council. This arrangement was considered essential to afford the small powers equal opportunity for Council representation and to prevent certain nonpermanent members from monopolizing the Council seats through repeated re-election. Article 26 of the Covenant requires the ratification of an amendment by all the governments whose representatives compose the 42 For an expression of the Chinese attitude see the text of China's formal application f o r a permanent seat on the Council. Ibid., p. 26. In his reply to the special request that Spain's scat at the Council not be left vacant the Marquis de Estella stated, on September 4, 1 9 2 6 : " M y personal inclination would lead me to agree immediately to the suggestion if it were not my duty to watch over the prestige of this ancient, glorious, and well-beloved Spain which has been relegated to a position inferior to that which it merits and must take a dignified refuge in a proud abstention." Ibid., p. 7 1 .

AMENDMENTS TO PART I

133

Council and by a majority of those whose representatives compose the Assembly. Spain was a member of the Council. She opposed the plan which would prevent her from retaining her seat as a nonpermanent member. As long as she refused to ratify the protocol of amendment, she could block the introduction of the system of rotation of membership embodied in the amendment to Article 4 of the Covenant. France was interested in retaining Belgium as a member of the Council in view of their close co-operation in dealing with Germany. The French government also withheld its ratification of the protocol of amendment. T o secure the required number of ratifications, it would be necessary to satisfy the demands of these and other governments on matters pertaining to their political interests. This involved prolonged negotiations and tedious delays in effecting an amendment to the Covenant. Without waiting for the amendment to go into force, the Third Assembly adopted the rules of procedure for the actual election of nonpermanent members and placed special emphasis upon the recommendation for the guidance of future Assemblies in the choice of nonpermanent members of the Council. The proposal for the rotation in office of the lesser powers amounted to little more than an idea. Spain, Brazil, and Belgium continued to sit on the Council until 1926, each holding its place as a nonpermanent member for seven years. Uruguay and Sweden, the two additional members chosen in 1922, were re-elected by the Assemblies in 1923, 1924, and 1925. Czechoslovakia replaced China in 1923 because of a revolution in the latter country. T h e year 1926 was a crucial year in the Council of the League. The application of Germany for League membership was the signal for other powers seeking permanent seats on the Council to present their demands. Germany's decision to apply for admission to the League had been expressed in a communication to the States members of the Council on September 29,1924. Four months later, February 9, 1925, the German government sent a communication to the French government proposing a pact of security which was

i34

AMENDMENTS TO PART I

later embodied in the Pact of Locarno, October 16, 1925. 43 T h e negotiations which took place from February 9 to October 16, 1925, were marked by repeated discussions concerning Germany's membership in the League of Nations. 44 France and Great Britain contended that Germany should become a member of the League as a "preliminary condition and an integral part of the new Rhineland security plan." This commitment on Germany's part should be made without conditions or reservations as to her obligations under the Covenant. The members of the Council, to whom Germany dispatched her communication of September 29, 1924, touching upon membership in the League and Germany's election to a permanent seat on the Council, gave no indication in their replies that they would contest Germany's demand for a permanent seat on the Council. The proposal to admit Germany to the League and to assign her a permanent Council seat raised an important question regarding the composition of the Council. Was this change in the Council's composition to be made separately from and prior to any general reconstruction of that body or as part of a general program of reconstruction which would allocate additional permanent seats to other powers simultaneously? 45 This aspect of Germany's admission to the League does not appear to have been considered by the powers during the negotiations at Locarno. 48 The fulfillment of two separate and important conditions was specified in the Locarno Pact for Germany's admission to the League: first, the signatory powers were required to ratify the several agreements negotiated at Locarno; second, the admission of Germany as a member of the League should be consummated on the terms contemplated as between Germany, France, and Great Britain, in so far as these terms had been defined. 47 The 43

44 Toynbcc, Survey 1925, II, 19 f. Ibid., pp. 25-66. 46 Ibid., 1926, pp. 1 f. Ibid., 1925, pp. 25-66. 47 "Final Protocol of the Locarno Conference, 1925," Am. /. I. /.., Supplement, XX, pp. 2 1 , 25. 45

AMENDMENTS TO PART I

J

35

first condition required action on the part of the Locarno Powers alone. T h e ratification of the Locarno Treaties by G e r m a n y was the vital issue. T o overcome the strong opposition of the G e r m a n Nationalists to the ratification of the Locarno treaty of mutual guarantee, w h i c h meant the voluntary acceptance on the part of G e r m a n y of the loss of Alsace, Lorraine, Eupen, and Malmedy, D r . Stresemann, Foreign Minister of G e r m a n y , held out the promise that G e r m a n y was to receive a permanent seat on the League C o u n c i l ; that no other changes in the Council were contemplated as a result of Germany's election to membership. 4 8 T h e second condition for the c o m i n g into force of the Locarno Pact, the admission of G e r m a n y to membership in the League, depended upon the action of all the States members of the League. T h e terms on w h i c h G e r m a n y was to be admitted to membership and to be given a permanent seat on the Council had not been clearly defined or understood. France and Great Britain had not taken into account the g r o w i n g determination of certain powers to secure the recognition of their right to a permanent seat on the Council. T h e announcement of the plan to make G e r m a n y a member of the League brought to a head the ambitions of the States seeking Council seats. A controversy arose in the Council and in the Assembly w h i c h threatened to destroy the benefits of the Locarno agreements. O n Germany's side there was the demand that her appointment as a permanent Council m e m b e r should not be merged in a general reconstruction of the Council. For the States seeking permanent seats or an adjustment w h i c h would enable them continuously to hold nonpermanent seats, the admission of

Germany

w o u l d serve as an opening for a general demand for the enlargement of the Council. France and Great Britain were caught between the necessity of aiding G e r m a n y in securing membership in the League, as a condition for the coming into force of the 48

Morlcv, op. cit., p. 357.

I36

AMENDMENTS TO PART I

Locarno Pact, and the reconciliation of demands by members of the League upon whom these two great powers relied for the support of other important policies.49 The League Council held a meeting on February 12, 1926, and decided that an extraordinary session of the Assembly should be convened on March 8,1926. A special agenda for the Assembly was approved by the Council. It included ( 1 ) the request of Germany for admission to the League and (2) a decision of the Assembly on the proposals which might be made by the Council regarding the application of Article 4 of the Covenant. T h e special session of the League Assembly in March, 1926, failed to achieve the admission of Germany as a member of the League. Spain, Brazil, and Poland refused to accept less than permanent seats on the Council. While the official opinion in British and French circles favored the enlargement of the Council in order to increase its moral authority as well as its efficiency in handling the increasing volume of League business, there was general approval of adhering to the understanding which the Allied leaders had with Germany. 5 0 All efforts to reconcile the claims of Brazil and other powers seeking permanent Council seats either failed to win the approval of these powers or were turned down by the German government. The alternatives confronting the Assembly offered one of two courses: either Germany would be admitted to membership in the League and to a permanent seat on the Council and the Assembly would be asked to elect two new nonpermanent members in place of Sweden and Czechoslovakia, 51 or the whole matter 43 The most detailed accounts of the controversy and negotiations leading up to Germany's admission to membership, in September, 1926, may be found in League of Nations, Records of Assembly, 1926; Official Journal, March, 1925, pp. 323 ff.; Am. /. I. L... XVIII, 1924, pp. 436 ff.; Foreign Affairs, IV, 535 ff.; Toynbee, Survey 192;, pp. 1 - 7 8 ; Morley, op. cit., pp. 354 ff.; John Spencer Bassett, The League of Nations (New York, 1928), pp. 300-35; Georges Scelle, Une Crise de la Société des nations (Paris, 1927); Jean Ray, Commentaire de Pacte de la Société des Nations, pp. 178 ff. 50 Records of Assembly, Special Session, March, 1926, Special Supplement No. 42. 01 These two powers agreed to withdraw as nonpermanent members to make way for certain States seeking permanent seats.

AMENDMENTS TO PART I

137

would be postponed because an immediate solution was impossible. T h e Assembly had to adjourn without reaching an agreement. In a recommendation adopted by the Assembly before adjourning the hope was expressed that all the difficulties would be surmounted before the September session of the Assembly to enable Germany to take her place as a member of the League at that time. The Council adopted an important resolution, at its meeting on March 18, favoring the appointment of a special committee to study the composition of the Council and the method of electing the members. T h e resolution authorized the committee to give particular attention to the claims put forward by, or on behalf of, any member of the League. Any government seeking a seat on the Council would be permitted to lay before the committee a statement in support of its case. 52 The first meeting of the committee on the composition of the Council was held on May 10, 1926. Claims for permanent seats on the Council were submitted by five governments besides Germany: Brazil, Spain, Poland, China, and Persia. Lord Robert Cecil, of Great Britain, submitted proposals which were adopted as a basis of discussion. T h e method of electing the nonpermanent members of the Council, the matter of increasing the nonpermanent members from six to nine, and the question of re-eligibility were points listed for discussion. 53 In case no change was made in the permanent members, except for the admission of Germany, the proposals submitted by Lord Cecil would produce the following general results: a Council of fourteen members would be created. Five of these would be permanent, three would be semipermanent, since they would be made eligible for re-election at the end of their term of office, and six would be nonpermanent and noneligible for three years after the completion of their term 82 The committee consisted of representatives of the members of the Council and of Argentine, China, Germany, Poland, and Switzerland. 53 For the text of Lord Cecil's proposals and subsequent additions sec the League of Nations, Committee on the Composition of the Council, Part I, V. Legal, 1926. V. 16.

I38

AMENDMENTS TO PART I

of membership. T h e system of rotation was to be introduced, allowing for membership on the Council of all members of the League. A t its final meeting, on May 17, the committee presented a report covering its work and its decision to recommend the adoption of the principle of increasing the nonpermanent members of the Council. T h e committee had also adopted draft regulations concerning the method of election and the number to be chosen. Recognition of the claim of various States to geographical representation was recommended by the committee. T h e French government had announced during the session of the committee on the composition of the Council that the French ratification of the amendment to Article 4 of the Covenant, adopted by the Assembly, in 1921, had been deposited. T h e Spanish delegate announced to the Council on June 10, 1926, that his government had decided to proceed with the ratification of the amendment to Article 4. T h e completion of the required number of ratifications of the amendment removed the last obstacle in the way of introducing a system of rotation in the election of Council members. This had been achieved, however, by an agreement to enlarge the Council and to afford certain powers an opportunity to qualify for re-election as members of the Council. Spain and Brazil had threatened to withdraw from the League unless they were assured permanent seats on the Council. A revised draft of the regulations covering the election of nonpermanent members of the Council was adopted by the commission on September 1 , 1926. The seventh session of the Assembly was held in Geneva, September 6-25, 1926. Neither Spain nor Brazil sent delegates to the meeting of the Council or to the Assembly. T h e Council approved the report of the committee on the composition of the Council at its meeting on September 4. It was decided by the Council to ask the Assembly to deal immediately and simultaneously with Germany's admission to the League, her election to a permanent seat

AMENDMENTS TO PART I

139

on the Council, and the increase in the number of nonpermanent seats from six to nine. 54 The proposal to rush all matters through in this fashion produced strong objections from the delegates of Norway and Sweden. The General Committee of the Assembly decided that on September 8, the Assembly should be asked to vote, first, on the question of Germany's admission to the League, and, second, on a combined resolution approving the allocation of a permanent seat on the Council to Germany and the addition of three nonpermanent members on the Council. T h e two resolutions were adopted unanimously by the Assembly. Germany was accordingly admitted to the League and assigned a permanent seat on the Council. The regulations adopted by the committee on the composition of the Council regarding the method of election and tenure of nonpermanent members were referred to the First Committee of the Assembly. A n amended draft was agreed upon by the committee. The only important change was the re-establishment of the right of the Assembly to proceed at any time to an election of all the nonpermanent members of the Council. The Assembly adopted, on September 15, the regulations relating to the election, term of office, and conditions of re-eligibility of the nonpermanent members of the Council. 53 The election of the nonpermanent members took place on September 16. Of the seventeen members of the League who received votes, the following were elected to membership on the Council: Poland, Rumania, and Chile for three years; Holland, Colombia, and China for two years; and Belgium, Salvador, and Czechoslovakia for one year. Poland received the required two-thirds majority in a separate ballot which made her eligible for re-election. The Council now consisted of five great powers and nine lesser powers. A marked change had taken place in the Council membership in response to the insistent demands for wider representation of 54

Official Journal, 1926, p. 1241.

55

Records of Assembly, 1926, Plenary, pp. 68-80.

140

AMENDMENTS TO PART I

small powers and for continued recognition befitting the prestige of powers such as Poland and China. T h e increased demand for conciliatory efforts on the part of the Council, as contrasted with arbitration and judicial settlement, may have contributed to the needs for providing a larger membership to report on the various assignments given the League, but the demands for recognition made by certain powers whose prestige was involved would appear to have been the chief reason for increasing the number of Council seats. The amendment to Article 4, achieved through prolonged negotiations and political compromises regarding membership, effected a revision of the original provision covering the make-up of the Council of the League/' 0 T h e long delay in completing this change emphasized the serious handicaps involved in an attempt to revise the League Covenant by amending the terms of the original text. The employment of the machinery and procedure stipulated in the treaty for modifying the Covenant involved governments in serious political controversies. T h e large number of States permitted to participate in the work of amending the Covenant and the complexity of their political interests and rivalries lying outside the scope of the League would seem to preclude an organized effort to achieve a fundamental revision of Part I of the Treaty of Versailles. T h e fault lies not so much with the amending process as with the political controversies which make it difficult to apply the procedure stipulated in the Treaty of Versailles. ARTICLE

6

Paragraph 5 of Article 6 of the treaty text of the Covenant made the following provision regarding the allocation of League expenses: 66 In the original text of Article 4 of the Covenant, the paragraphs dealt with the permanent and nonpermanent members of the Council, the methods of increasing membership of both classes, the time and place of its meetings, its scope of action, special representation on the Council and the voting powers of the members. The first two points have been the chief topics of discussion and controversy.

AMENDMENTS TO PART I

141

T h e expenses of the Secretariat shall be borne by the Members of the League in accordance with the apportionment of the expenses of the international Bureau of the Universal Postal Union.

T h e British draft of the Covenant, dated January 20, 1919, provided for the apportionment of the League expenses as follows: T h e expenses of the League other than those occasioned by meetings of the Council of the League, shall be borne by the States members of the League, in accordance with the distribution among the members of the Postal Union of the expenses of the International Postal Bureau. T h e expenses occasioned by the meetings of the Council of the League shall be divided equally among the States represented on the Council. 5 7

T h e Hurst-Miller compromise draft of the League Covenant, dated February 3, 1919, and used as the basis of discussion by the League commission, provided in Article 4 that "the expenses of the Secretariat shall be borne by the States members of the League in accordance with the distribution among members of the Postal Union of the expenses of the International Postal Union."

58

The

text of the Covenant as adopted at the plenary session of the Peace Conference, on February 14, incorporated the Hurst-Miller phrasing with a slight change in the wording of this paragraph. 5 9 A slight change was made in Article 5 of the February draft of the Covenant. It stated that "the expenses of the Secretariat shall be borne by the States members of the League in accordance with the apportionment of the expenses of the International Bureau of the Universal Postal Union."

60

With the deletion of the word

"State" or "States" f r o m the Covenant, the provision for the apportionment of expenses, as recorded in the draft of February 14, was adopted. This paragraph concerning the League's finances was considered by some as the weakest in the Covenant. 6 1 T h e early drafts 57

Article 1 5 , Chapter I, of the British draft. Baker, Woodrow Settlement, III, 134. 58 59 Ibid., p. 145. Ibid., p. 165. Ibid. 81 Ray, Commentaire du Pacte de la Société des Nations, p. 254.

Wilson and

World

142

AMENDMENTS TO PART I

of the Covenant were unsatisfactory. 82 T h e British draft, of January 20, 1919, had provided for "the expenses of the League, other than those occasioned by meetings of the Council." T h e HurstMiller draft, of February 3, substituted the word "Secretariat" for "the L e a g u e " and thereby limited the provision for finances to one phase of the League's activities. Provision was made, for example in Article 399 of Part X I I I of the Treaty of Versailles, for certain expenses of the International Labor Office and the International Labor Conference to be paid "out of the general funds of the League." Paragraph 5 of Article 6 of the Covenant did not provide for any general funds f r o m which the International Labor Organization could be

financed.

T h e apportionment of the expenses of the International Bureau of the Universal Postal Union was based on a much smaller budget. W h e n this scale was applied to make up a budget to cover the League expenses it was evident that the prevailing scale of apportionment would not w o r k . T h e method of allocating the expenses of the Secretariat was inequitable. In the first place, many States on the Universal Postal Union's list were not members of the League. T h e area and resources of some countries belonging to the Postal Union had been reduced. Other States had been greatly strengthened and were able to bear a larger percentage of the League's expenses. It was apparent that some modification of this provision would be required. Before the meeting of the First Assembly requests were made by certain members that this question receive immediate attention. A t its fifth session the Council received a report covering this matter. T h e authors of the report stated that modification of this part of Article 6 of the Covenant was necessary to overcome the difficulty. 63 This action on the part of the Council marked its first and only initiative with respect to amending the Covenant. 64 T h e First Assembly gave special attention to correcting this 82

Hudson, "Amendments to the Covenant of the League of Nations," 38 Harp. L. Rev., 926 (1925). 63 84 League of Nations, Official Journal, 1920, pp. 142 f. Hudson, op. at., p. 926.

AMENDMENTS TO PART I

143

difficulty. The first and second budgets of the League of Nations were drawn up by the Secretary-General; the first to cover the periods up to March 31, 1920, and from April 1 to June 30, 1920; the second, from July 1 to December 31,1920. These budgets were adopted by the Council and later submitted to the First Assembly for approval.05 The presentation of this question to the Assembly gave rise at once to the matter of the Assembly's powers with respect to finances. There was general acceptance of the idea that the composition of the Assembly, with its broad representation of members, made this body the logical one in the League to determine appropriations and to pass upon measures pertaining to finances. An opinion was expressed later by the committee on amendments that "the Assembly alone is competent to deal with this matter, and should not share its rights with any other body." 68 The delegates from the Netherlands proposed an amendment to the Covenant conferring upon the Assembly the power to "fix the annual budget of the League" and "to regulate its accounts." From this proposal there developed the text of the amendment to Article 6 which was submitted by the committee on amendments: "The expenses of the League of Nations shall be borne by the Members of the League in the proportions fixed by the Assembly." 87 The question of unanimity appeared again, and it was thought that the size of the Assembly would make it unwieldy for the purpose of passing upon finances if its action had to wait upon unanimous approval. The committee on amendments suggested an addition to the proposal of the Netherlands to the effect that "these matters shall be decided by a three-fourths majority, in which there shall be included the votes of all the Members of the League represented on the Council." The first committee of the Second Assembly decided that such an amendment was unnecessary.68 e
Ibid. League of Nations, Document A. 24. 1 9 2 1 . V. p. 14. Records of Assembly, 1 9 2 1 , Plenary, p. 136. 68 Ibid., Meetings of Committees, pp. 98-100. The proposed amendment had been approved by a subcommittee; ibid., pp. 179-90. 07

144

AMENDMENTS

TO

PART

I

The Second Assembly voted the amendment proposed by the Netherlands and submitted by the committee on amendments. Proposals envisaging the vote of financial measures by a twothirds or a three-fourths majority were dropped. During the period when the League authorities were considering these matters other proposals were being made for correcting the method of allocating expenses. The alternatives were the modification by the Postal Union of its scheme of apportionment or the modification of the Covenant. A special committee of experts was set up by the financial conference at Brussels in 1920 to study the question. The Swiss Federal Council was approached by this special committee to seek its aid in changing the Postal Union's apportionment. The matter was taken up by the First Assembly during the time that the Universal Postal Congress was in session in Madrid. The First Assembly took up the question with the Postal Union and finally came to the conclusions that the best way out of the difficulty was to amend the Covenant.00 The committee on amendments had already approved the proposal for an amendment submitted by the Netherlands to the effect that the matter of allocation of expenses be left to the Assembly. The Second Assembly voted to submit three amendments to Article 6 of the Covenant for consideration by the members of the League. The first amendment proposed to substitute for the last paragraph in Article 6 the provision that "the expenses of the League shall be borne by Members of the League in the proportion decided by the Assembly." The second provided for the addition of a paragraph approving a temporary allocation until a permanent allocation of expenses could be made by the Assembly. The third amendment allowed for the addition of a new annex outlining the bareme for this temporary allocation.70 69

Hudson, op. cit., p. 927. T h e Assembly voted three amendments to Article 6 : The Assembly decides that the following shall be included in the Annex of the Covenant. . . . III. Allocation of the expenses of the League. . . . The expenses of the League shall be borne by the Members of the League in the proportion decided by the Assembly. . . T h e allocation of the expenses of the League set out on 70

AMENDMENTS TO PART I

145

Three protocols, embodying the amendments, were opened for signature on October 5, 1921. The first of the three amendments, replacing paragraph 5 of Article 6 of the Covenant, received the required number of ratifications and came into force on August 13, 1924, three years following the opening for signature of the protocols of amendment to Article 6. 71 The amendment was thus substituted for the original paragraph. With this change in the original text, all the expenses of the League were provided for, and the Assembly could apportion the contributions of the members of the League. The recognition of the urgency of the amendment to paragraph 5 of Article 6 did not suffice to overcome the political rivalry of States whose conflicting national interests were frequently injected into the League's efforts to achieve a needed reform. Ratification was made difficult in view of the advantage afforded certain States to force a compromise on matters unrelated to the League reform as compensation for ratifying an amendment to which there could scarcely be a real objection.72 Article

12

It was the consensus of Allied leaders at Paris in 1919 that a permanent world court would be needed to advance the cause of judicial settlement of international disputes. Proposals were submitted during the Peace Conference at Paris supporting the establishment of general machinery for handling international disputes by judicial procedure. The problems of settling the war and organizing the peace were so numerous and so pressing that the delegates made no attempt to draft a definite plan for the establishment of a world court. The Peace Conference made provision for this work at a later date by directing the Council of the Annex III shall be applied as from January ist, 1 9 2 2 , until a revised allocation has come into force after adoption by the Assembly. League of Nations, Official Journal, 1922, pp. 1 0 - 1 3 . 71 72 Official Journal, 1924, p. 1 1 4 7 . Records of Assembly, 1 9 2 3 , Plenary, p. 48.

146

AMENDMENTS TO PART I

League of Nations, in Article 14 of the Covenant, to formulate and submit for adoption "plans for the establishment of a Permanent Court of International Justice." At its meeting in London on February 13, 1920, the Council of the League appointed a special advisory committee of jurists to draft a plan for the new court and to advise the Council in the performance of its duties. 73 The committee met at T h e Hague from June 16 to July 24, 1920. The proposed statute of the permanent court was drawn up by the committee of jurists and submitted to the Council of the League of Nations at San Sebastian on August 5, 1920. 74 For several months the Council and the Assembly considered the plan prepared by the committee. A number of amendments were agreed upon, and the project was finally adopted by the Assembly on December 13, 1920. 75 A protocol of signature was opened on December 16, 1920, and the plan for the court, approved by the Council and the Assembly, was annexed to the protocol as a statute.70 The statute came into force in September, 1921, following the ratification of the protocol of signature by twenty-eight States. T h e adherence to the statute of the Permanent Court of International Justice by the States members of the League made it advisable to amend the Covenant in order to clarify the text of Articles 12, 13, and 1 5 relative to the "judicial settlement of disputes." N o provision was made in these articles of the Covenant for disputes to be submitted to the Permanent Court of International Justice. While the Court would be competent to hear and determine "any dispute of an international character" which the parties 73 League of Nations, Council, Verbatim Report, Fifth Meeting of the Second Session, February 1 3 , 1920, pp. 3 - 1 5 . li lbid., Eighth Session, pp. 33, 1 6 5 - 7 1 . 75 The chief alteration was the removal from the clauses of the Statute of the provisions granting the Court compulsory jurisdiction in certain classes of legal disputes. Both the original and modified texts of the Statute are found in the Records oj Assembly, 1920, Plenary, pp. 436 ff. See League of Nations, Documents concerning the Action Tal^en by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court, V. Legal, 1920, III. 257. 76 ¡bid., pp. 258 ff.

AMENDMENTS TO PART I

147

would submit to it, there was no specific designation of "judicial settlement" as a means of adjusting their differences. 77 T h e original text of Article 12 of the Covenant pledged the members of the League to submit to arbitration or to inquiry by the Council any dispute between them which was likely to lead to a rupture. In any event they were obligated to delay resort to war, even if the award should be unsatisfactory to both parties. By naming the specific methods of peaceful settlement of disputes, which was somewhat of an innovation, 78 the undertakings in Article 12 lead directly to the stipulations in Articles 13, 14, and 1 5 of the Covenant, which prescribed in greater detail the methods of settlement accepted by the League members. Various proposals for strengthening the League machinery contemplated changes in Article 1 2 by establishing commissions of conciliation 79 and inserting a provision for judicial settlement in the Covenant. 80 Draft amendments authorizing the establishment of commissions of conciliation were first presented by the Scandinavian powers, in July, 1919. 8 1 In the proposed amendments disputes involving judicial procedure were to be submitted to the Permanent Court of International Justice, with nonjudicial disputes to go to the commission of arbitration and conciliation. A proposed annex to the Covenant would contain provisions governing the appointment of commissions by each member of the League in conjunction with every other member. The first committee of the Second Assembly viewed the proposed plan for appointing commissions as unnecessary, since the Covenant already provided two methods of settling disputes. It was also regarded as 77 See Article 14 of the Draft Covenant, March 26, 1919, Miller, Drafting the Covenant, II, 652. 78 P. Fauchille, Traité de droit international public (Paris, 1926), I, 634. 79 Definite proposals were made to the Commission on the League of Nations in 1919 which would have authorized the Council to establish conciliation commissions. Provision had been made in the Covenant for such action by the Council, and the proposals were tabled. Miller, Drafting the Covenant, II, 626-27; see also I, 333. 80 With the signing of the Pact of Paris, in August, 1928, it seemed advisable to incorporate in the Covenant the undertakings contained in the Pact. Records of Assembly, 1928, Plenary, p. 9 1 ; ibid., p. 54; ibid., 1929, Plenary, pp. 34, 168; ibid., 1930, p. 168. 81 Records of Assembly, 1 9 2 1 , Plenary, p. 137; Official Journal, 1920, p. 358.

148

AMENDMENTS TO PART I

inadvisable by reason of the complications which would develop from the establishment of some fifty commissions. Moreover, the Council had authority to appoint conciliation commissions if conditions warranted such action.82 The failure of the First Assembly to act favorably upon the Scandinavian proposal terminated the efforts to introduce this measure of reform into Article 12 of the Covenant.83 A special committee was appointed by the Council to prepare a report on the best procedure for the League to adopt in dealing with the question of altering Article 12 of the Covenant.84 The efforts to amend the conciliation procedure of the Covenant were replaced by proposals to include "judicial settlement" as one of the methods of peaceful settlement listed in Article 12. The chairman of the first committee of the Second Assembly raised the question whether the proposed changes in Articles 12, 13, and 15 would require amendments since the Permanent Court had been established in pursuance of an article in the Covenant. He contended that amendments would be purely formal for they would merely make mention of judicial settlement. It was agreed, however, that it might be well to insert the necessary clauses in Articles 12, 13, and 15 to clarify the text.85 M. Rolin, of Belgium, was of the opinion that "any amendment, even a purely formal one, was subject to the general procedure for ratification." 86 The draft amendments to Articles 12, 13, and 15 were adopted by a majority of the first committee, four voting against the measures.87 The general rapporteur, Herluf Zahle, stated before the Assembly, October 4, 1921, that it seemed advisable "to mention explicitly the method of judicial settlement by the Court in the Articles of the Covenant which enumerate the methods of settlement of disputes between the Members of the League." 88 The 82

Records of Assembly, 1 9 2 1 , Plenary, pp. 696 f.; ibid., Committee No. 1, pp. 148 ff. Ibid., 1920, Plenary, pp. 259 f.; ibid., 1921, pp. 696, 823. 8i 85 Ibid., 1921, Plenary, pp. 823-27. Ibid., Committee No. 1, p. 33. 88 87 88 Ibid. Ibid., p. 34. Ibid., Plenary, p. 827.

83

AMENDMENTS TO PART I

149

committee reported only "drafting amendments," and the modifications they proposed to introduce into the said articles were "purely modifications of f o r m . "

89

M . Motta, of Switzerland, con-

sidered it important to include reference to the Permanent Court of International Justice among the measures to which recourse must be had by two States engaged in a dispute before they have recourse to war. 9 0 The draft amendments called for the insertion of the words "or judicial settlement" in paragraph 1 of Article 12 of the Covenant between the phrases "either to arbitration" and "or to inquiry by the Council"; also the words "or the judicial decision" after the word "arbitrators" in paragraphs 1 and 2 of Article 12. 9 1 T h e Second Assembly of the League adopted the following resolution of amendment at its meeting, on October 4, 1 9 2 1 : T h e Members of the League 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 judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months after the award by the arbitrators or the judicial decision, or the report by the Council. In any case under this article, the award of the arbitrators or the judicial decision shall be made within a reasonable time, and the report of the Council shall be made within six months after the submission of the dispute. 92

A protocol of amendment was opened f o r signature on October 4, 1921, and the amendment came into force September 26, 1924, having been ratified by the members of the League whose representatives composed the Council and by a majority of the members whose representatives composed the Assembly. 9 3 T h e

amend-

ment as adopted is now part of the present text of Article 1 2 of the Covenant. 89

Ibid. »0 Ibid., p. 828. Ibid., pp. 829 f. The first committee unanimously concurred in the declaration that the amendments to Articles 1 2 , 1 3 , and 1 5 were purely formal in character. 92 Ibid., p. 829. 93 League of Nations, Treaty Series, X X I X , p. 67 n. 91

150

AMENDMENTS

TO

ARTICLE

PART

I

13

Article 13 details certain categories of disputes which under the original terms of the article the members of the League were "generally" required to submit to arbitration. It was considered desirable by certain members of the League to make more definite and more compelling this obligation to have recourse to arbitration. 94 The obligations listed in Article 1 3 were narrowly limited. 115 If the procedure for peaceful adjustment of disputes were to be made effective, the undertakings to arbitrate or seek judicial settlement would have to be broadened by incorporating the necessary clause in Articles 12, 13, and 15 of the Covenant. T h e Danish, Norwegian, and Swedish governments proposed that the expression "generally" should be omitted from paragraph 2 of Article 13. 90 In their proposed amendments submitted to the First Assembly they sought to make recourse to either arbitration or judicial settlement compulsory in all disputes likely to lead to war. 97 In order to complete the system of compulsory settlement of disputes the Norwegian government urged the adoption of the following provision which was intended as an addition to Article 1 3 : In

c a s e of

disagreement

between

the parties o n

the q u e s t i o n

as

to

w h e t h e r the d i s p u t e shall, in a c c o r d a n c e w i t h the t e r m s of this A r t i c l e , or, w i t h any special convention b e t w e e n the parties, be submitted j u d i c i a l s e t t l e m e n t , this p r e l i m i n a r y q u e s t i o n s h a l l b e t h e P e r m a n e n t C o u r t of I n t e r n a t i o n a l

finally

to

settled b y

Justice.98

Under the terms of this proposal the Permanent Court of International Justice would decide whether a dispute came within the 94

For comments by the Swedish government on the proposed amendments to the Covenant see League of Nations, Official Journal, 1920, p. 356. 95 The members of the League are obligated under paragraph 1 only to submit to arbitral procedure a dispute "which they recognize to be suitable" for arbitration. Paragraph 2 of Article 13 states that certain types of dispute, legal in nature, are among those "generally" suitable for submission to arbitration. 96 Official Journal, 1920, pp. 354-56. 97 98 Records of Assembly, 1920, Committee No. 1 , p. 74. Ibid.

AMENDMENTS TO PART I

field of judicial settlement. With a League member obligated to carry out in good faith any award it would thereby be prevented from refusing to submit a legal dispute to the Court. M. Costa, of Portugal, favored the proposal to omit the word "generally" and added that the deletion of the first paragraph of Article 13 would be advisable. This suggestion involved the dropping of the agreement to arbitrate disputes which the members of the League "recognize to be suitable" for submission to arbitration.09 M. Pueyrredon, head of the delegation of the Argentine, listed the proposals for amendments which the Argentine government desired to have discussed. These included the admission of all sovereign States, the admission of small States without right of voting, and the "obligatory submission of disputes to the Courts of Arbitration and Justice." 1 0 0 The object of these various representatives was to create an unlimited obligation to resort to arbitration. T h e drastic change proposed was not approved by the committees which were authorized to study the questions involved. 101 T h e committee on amendments reported to the Second Assembly in 1921 after careful study of the amendments submitted to the First Assembly. T h e committee considered the proposal of the Danish, Norwegian, and Swedish governments to omit the word "generally" from the second paragraph of Article 13. It was the opinion of the committee that the word "generally" was "deliberately inserted into the Covenant in order that Governments might be left a certain freedom to decide whether they would submit their disputes to arbitration or not." A n obligation to resort exclusively to arbitration was not in conformity with the Covenant, which was evidenced by the insertion of the words "which they recognize to be" in the first paragraph of Article 13. 99

100 Ibid., Plenary, p. 253. Ibid., p. 277. Compulsory arbitration was later incorporated in the draft of the Geneva Protocol. David Hunter Miller, The Geneva Protocol (New York, 1925), pp. 133 ff. When the Geneva Protocol was under consideration in 1924, it was again proposed that the "unfortunate adverb" generally be deleted. Records of Assembly, 1924, Committee No. 1, pp. 15 ff. 11,1

152

AMENDMENTS TO PART I

T h e members of the League were to be free to choose between various procedures: arbitration by the Council or, if desired, the Assembly of the League, accompanied by the obligation to choose one of these methods of settlement. 10 - T h e committee were of the opinion that Article 36, the optional clause, of the statute of the Permanent Court, affirmed the compulsory jurisdiction of the Court in disputes identical with those provided for in paragraph 2 of Article 13 of the Covenant. They recommended the postponement of this phase of the amending process until the final ratification of the optional clause which met the need for compulsory arbitration of certain legal disputes. 103 T h e committee decided that the word "generally" should be retained in paragraph 2 of Article 13. 1 0 4 When the statute of the Permanent Court of International Justice was adopted, it became desirable to modify Article 13 to conform with the added obligation accepted by the League members to settle disputes by judicial means. The proposed text of Article 14 of the draft Covenant, as drawn up in the Hurst-Miller revision, of March 26, 1919, stated that the Permanent Court of International Justice was to "hear and determine any dispute or difference of an international character, including any matter which the parties recognize as suitable for submission to it for arbitration under the foregoing Article." 1 0 5 This stipulation in the text of the Covenant has been interpreted by some as an indication of the intent of the authors of the Covenant to include judicial settlement under "arbitration." 1 0 0 An amendment submitted to the first committee of the Assembly in 1920 mentioned specifically judicial settlement as contrasted with a strict use of the term "arbitration." 1 0 7 The Norwegian amendment would have substi102

103 Ibid., 1 9 2 1 , Plenary, pp. 137, 697 f. ¡bid. Ibid., 1924, Committee No. 1, pp. 15 ff. 105 Miller, Drafting the Covenant, II, 652. lon See W. Schiicking, "Le Développement du Pacte de la Société des Nations," in Hague Académie de Droit International, Recetul des cours, X X , 375. 107 Records of Assembly, 1920, Committee No. 1, pp. 73 f. 104

AMENDMENTS TO PART I

153

tuted "judicial settlement" for "arbitration" in the original text. Paragraph 1 of Article 1 3 would have read: T h e Members of the League agree that if there should arise between them any dispute which in their opinion will admit of judicial settlement and which cannot be satisfactorily settled by diplomacy they will submit the whole subject-matter to judicial settlement. 108

T w o additional changes were suggested in this first paragraph. T h e words "if there should arise between them any dispute" were to be substituted for the phrase "whenever any dispute shall arise between t h e m " ; and the words "which in their opinion will admit of judicial settlement" were to replace "which they recognize to be suitable for submission to arbitration." T h e committee on amendments decided to provide the two methods of arbitration and judicial settlement as alternatives. A n amendment to Article 1 3 called, therefore, for the insertion of the words "or judicial settlement" and "decision" in the proper phrases in all the paragraphs of Article 1 3 . 1 0 9 A modification of paragraph 3 of Article 1 3 was also required. Paragraph 3 of Article 1 3 of the original text of the Covenant provided as follows: For the consideration of any such dispute the court of arbitration to which the case is referred shall be the court agreed on by the parties to the dispute or stipulated in any convention existing between them.

T h e proposed amendment to Article 13 covering this stipulation called for the insertion of the following provision after paragraph 2 of this article: For the consideration of any such dispute, the Court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them. 1 1 0 108 110

Ibid., p. 74. Records of Assembly,

109 League of Nations, Document A. 24 ( 1 ) . 1 9 2 1 . V. p. 5. 1 9 2 1 , Plenary, p. 829.

AMENDMENTS TO PART I

i54

While reference was made to the Permanent Court of International Justice, the members of the League were left free to choose any tribunal agreed on by the parties to the dispute. The Norwegian proposals for amendments to Article 13, as stated above, and the scheme for the establishment of a commission of arbitration and conciliation appointed by the parties were not adopted by the Assembly of the League. A protocol of amendment to Article 13 was opened for signature on October 5, 1921, having been voted unanimously by the Assembly on October 4, with only eight States absent or abstaining from voting. 1 1 1 Despite their purely formal character, the amendments did not come into force until special effort was made by the Assembly to secure the required number of ratifications. T h e minor changes in Article 13 became a part of the Covenant on September 26, 1924, when the amendment came into force. 1 1 2 T h e above amendment was incorporated in the Covenant, and it is now a part of the present text of Article 13.

ARTICLE

15

Provision was made in Article 15 of the Covenant for the handling of all disputes not submitted to arbitration or to judicial settlement in accordance with Article 1 3 by calling upon the Council of the League. " A n y party to the dispute may effect such submission" by giving notice of the existence of the dispute to the Secretary-General. A full investigation and consideration of the matter would be authorized by the Council. Paragraphs 2-5 of Article 13 provide the Council with facilities of conciliation and publicity to aid it in its endeavor to find a solution. T h e obligations embodied in paragraphs 6-8 constitute the most important aspect of the arrangements outlined in this article. If the report of the Council covering the facts and conclusions pertaining to a dispute is adopted unanimously by members of the Council other than the 111

Ibid., pp. 829 f.

112

League of Nations, Treaty Series, XXIX, 73.

AMENDMENTS TO PART I

155

representatives of one or more of the parties to the dispute, the members of the League agree that they will not go to war with any party to the dispute which complies with the Council's recommendations. Lack of unanimity among the Council members, excluding the party or parties to the dispute, leaves the members free to take such action as "they shall consider necessary for the maintenance of right and justice." If the question involved should arise out of a matter which by international law is solely within the "domestic jurisdiction" of one of the parties, the Council will make no recommendation as to a settlement. T h e dispute might be referred to the Assembly where the procedure would be similar to that followed by the Council. A report made by the Assembly, if concurred in by all the members of the Council and by a majority of the "other members" of the League, excluding the parties to the dispute, shall have the same force as a report concurred in by all the members of the Council exclusive of the parties to the dispute. The procedure which may be employed by the Council in seeking a settlement of international disputes has attracted universal attention. Many proposals have been submitted to clarify the meaning of the paragraphs in Article 15 by interpretative resolutions or drafting amendments to the article. Others have sought to introduce new obligations which would have altered fundamentally the provisions in this part of the Covenant. In the draft amendments to the Covenant of the League of Nations communicated by the Norwegian government to Committee No. 1 of the Assembly, in 1920, the following amendment to Article 1 5 was proposed: " I f , in accordance with Article 12, a dispute must be submitted to the Council, it will be sufficient for one of the parties to notify the Secretary-General, who will take all the necessary measures, etc." 1 1 3 The original text of paragraph 1 of Article 15 made reference to any dispute likely to lead to a rup113

Records of Assembly, 1920, Committee No. 1, pp. 74 ff. A slightly different wording o£ the proposed amendment was published in the Official journal, 1920, p. 359.

I56

AMENDMENTS TO PART I

ture, which is not submitted to arbitration "in accordance with Article 13." Under Article 12 the League members were originally obligated to submit any dispute likely to lead to a rupture either to arbitration or to inquiry by the Council. Only arbitral procedure was covered in Article 13, with the League members obligated under Article 1 5 to submit a dispute to the Council in case of failure to employ arbitration in accordance with Article 1 3 . 1 1 4 This proposed amendment was not reported to the Second Assembly by the committee on amendments. The Swiss government proposed an amendment to Article 1 5 as it was originally incorporated in the draft of the Covenant, in March 1919. They contended that commissions of conciliation should be a permanent part of the League. T h e Executive Council (later the Council of the League) was a political body. It was to be established for the purpose of keeping the peace of the world, and it could hardly prove equal to its functions of dealing with "big and dangerous matters" and operate as an agency of conciliation at the same time. The Dutch delegation supported the Swiss proposal and submitted an amendment to Article 15 providing for the setting up of boards of conciliation. 115 Lord Robert Cecil raised the question whether there should be conciliation before the dispute was taken before the Executive Council. His explanation of the intention of the Covenant was as follows: Where arbitration was possible, this had been considered to be the best method. In other cases, either party could take the question either to the Executive Council or to the body of Delegates. These bodies could then take one of three courses: ( a ) send the case to arbitration or to a judicial court, for their advice. 114 T h e phrase "in accordance with Article 1 3 " was inserted in the first paragraph of Article 1 5 of the Covenant just before the "Conditions of Peace" were submitted to the German delegation. T h e draft Article 1 5 previously had referred to any dispute likely to lead to a rupture "which is not submitted to arbitration as above." Miller, Drafting the Covenant, I, 500. 115 Miller, op. cit., II, 626 f.

AMENDMENTS TO PART I

157

( b ) appoint a special Commission to investigate and advise on the dispute. (c) retain the matter entirely in their own hands and try to bring the parties together and arrange the affair by conciliation. 1 1 6

He stated that the Covenant envisaged a procedure intermediate between arbitration and decision by the Executive Council or Body of Delegates (the Assembly). The Dutch delegation favored the establishment of commissions of conciliation to consist of persons not connected with the governments. They desired compulsory arbitration for all justiciable disputes with a permanent court to decide which were justiciable; all other disputes to go to the permanent board of conciliation. Further criticisms of Article 1 5 in the Second Assembly of the League were based on the ground that "the Council is a body of a too definitely political character, and the Assembly is too large to assume the duties of conciliation." 1 1 7 Certain members considered that a commission, the composition of which would be left to the choice of the parties, would be better qualified to apply the procedure of conciliation. The committee on amendments did not recommend the proposed amendment. They did not consider it advisable to introduce into the Covenant side by side with the two methods which were already available for the parties to a dispute—recourse to arbitration and recourse to the Council and the Assembly—a third method of conciliation which would be obligatory. T h e appointment and maintenance of a large number of commissions of conciliation would prove complex and rigid and might prove ineffective in handling certain disputes which would have to be referred to the Council for final consideration. 118 Furthermore, the Council could appoint commissions of conciliation if the need arose, and it was essential for the Council to retain responsibility for the procedure of conciliation. 119 A compromise resolution was adopted by the Assembly, on 118 118

Ibid., p. 627. Ibid., p. 697.

117 119

Records of Assembly, 1921, Plenary, p. 696. ¡bid., Committee No. 1, pp. 149 f.

I58

AMENDMENTS TO PART I

October 4, 1921, authorizing the Council to appoint a committee for the purpose of investigating "the procedure of conciliation as outlined in the amendments put forward by the Norwegian and Swedish Governments, with a view to the formulation of a body of rules on the subject."

120

T h e report of the committee was sub-

mitted to the Council on July 18, 1922, in the form of a draft resolution which was to be submitted to the Assembly for adoption. This method of procedure possessed considerable advantage. It gave greater elasticity to the regulations which were proposed to the States for adoption, since the putting into force of the regulations was always optional. T h e main feature of the procedure of conciliation which the committee advocated was the formation of commissions established by conventions freely concluded between States. A n obligation to form conciliation commissions should not be laid upon the States. T h e task of the committee of enquiry was twofold: ( 1 ) T o adapt the conciliation procedure to the framework of the Covenant without resorting to amendment to Article 15 of the Covenant; (2) T o encourage as much as possible recourse to conciliation. T h e draft rules of procedure submitted by the committee were later adopted and put into effect. 121 T h e efforts to improve the procedure of conciliation by amending Article 15 of the Covenant resulted in the acceptance by the League members of a proposal favoring the voluntary negotiation of agreements of conciliation without altering in any way the terms of the Covenant. T h e Norwegian and Swedish governments included Article 15 of the Covenant in their proposals for drafting amendments to the League Covenant to meet the new conditions created by the establishment of the Permanent Court of International Justice. T h e original text of paragraph 1 of Article 15 provided: If there should arise between M e m b e r s of the L e a g u e any dispute likely to lead to a rupture, w h i c h is not submitted to arbitration in accordance 120 121

Ibid., Plenary, p. 825. Ibid., 1922, Committee No. 1, pp. 13 f.

AMENDMENTS TO PART I

159

with Article 13, the Members of the League agree that they will submit the matter to the Council. T h e insertion of the words "or judicial settlement" in paragraph 1 of Article 15 was necessary in view of the additional commitment to employ this means for the settlement of international disputes. T h e draft proposal f o r amending this part of Article 1 5 made the following change in the original text: If there should arise between Members of the League any dispute likely to lead to a rupture, which is not submitted to arbitration or judicial settlement . . . T h e committee on amendments favored this proposal, and it was submitted to the Second Assembly for adoption, in September, 1921. A protocol embodying the amendment was opened for signature on October 5, 1921, and the required number of ratifications was received in time to declare the amendment in force on September 26, 1924. 1 2 2 T h e amendment as adopted became a part of the text of Article 1 5 of the Covenant.

ARTICLE

16

Six amendments to Article 16 of the Covenant have been voted by the Assembly of the League, none of which has come into effect. One of the six, an amendment of paragraph 1 , Article 16, adopted by the Second Assembly in 1921, was replaced by a revised f o r m of the amendment, by a vote of the Assembly, on September 27, 1924. 1 2 3 Of the five amendments still open to ratification, four constitute important changes in the original terms of the agreement embodied in Article 16, while the fifth provides for a minor textual change. 122 Supplementary Report on the Work, of the League of Nations, Geneva, August 3 1 , 1929, Document A. 6 (a). 1929. League of Nations, Treaty Series, XXIX, 80. For a detailed presentation of the attempts to reconcile Article 15 of the Covenant with the Pact of Paris see Grace Evans Rhoads, Jr., Amendments of the Covenant of the League of Nations Adopted and Proposed (Philadelphia, 1935), pp. 1 1 5 ff. 123 League of Nations, Records of Assembly, 1924, Plenary, pp. 180, 463-65.

i6o

AMENDMENTS TO PART I

T h e special committee on amendments examined in 1921 some thirty proposals for amendments to the Covenant. 1 - 4 The Second Assembly, in adopting five important amendments to Article 16, revealed the efforts made by the members of the League to define more clearly their obligations under this article.1-"' T h e "sanctions" authorized in Article 16 were intended by the authors of the Covenant to deter States from violating their obligations set forth in Articles 12, 13, and 15. T w o instruments of compulsion, economic pressure and military coercion, were provided to enable members of the League to penalize the States which might break their covenants. T h e economic sanctions, including the severance of trade or financial relations, the prohibition of all intercourse between the nationals of League members, and those of a covenant-breaking State, and the prevention of all financial, commercial, or personal intercourse between the nationals of the covenant-breaking State and those of any other State could be invoked by the League when a member's disregard of its covenants was deemed to be an act of war against all other members of the League. The employment of military coercion by the League members depended upon a recommendation of the Council to the several governments concerned. The members of the League had agreed to support one another in the financial and economic measures to be taken under Article 16 and to participate in joint military movements involving free passage through their territory of the armed forces co-operating to enforce the Covenant of the League. 1 2 0 At the time Article 16 was drafted the commission on the League of Nations dealt only with the duty to apply "sanctions" (as they provided for "ratifications" of amendments only in Ar124

Records of Assembly, 1 9 2 1 , Plenary, pp. 821 ff. The rapporteur of the First Committee of the Second Assembly, Mr. Schanzer, referred to Article 16 of the Covenant as having "established a new system of law which, by reason of its very novelty, raises many questions and gives rise to many difficulties of interpretation." Ibid., pp. 402 ff. 126 See Article 16 of the Covenant. 125

AMENDMENTS TO PART I

161

tide 26) without specifying the procedure pertaining to the meeting of obligations under the article. How were the League members to determine when Articles 12, 13, and 15 of the Covenant had been violated? Provision was made in Article 16 for the League members to act simultaneously in applying economic pressure. While the various measures were to be taken immediately by all the States, the question was rather one of a series of similar measures to be taken simultaneously, than of collective and united action. Such procedure would require a common agreement to co-ordinate the action of all the States. This involved an advance understanding pertaining to the means of putting Article 16 into execution. The word "nationals" in paragraph 1, Article 16, implied serious difficulties for States with varied nationalities in case they should undertake to prevent all financial, commercial, or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State. Furthermore, while the Council could recommend to the governments concerned what effective military, naval, or air force they should severally contribute to the armed forces to be used to protect the covenants of the League, the members of the League were not obligated to contribute military forces in accordance with the Council's recommendations. The refusal of the United States to join the League changed the outlook of the great powers regarding the Covenant provisions, especially Article 16. The possibility of League sanctions running counter to the neutral rights of the United States suggested a risk which no member of the League wanted to assume. It was recognized, even before the meeting of the First Assembly, that Article 16 would have to be modified to ensure the support of States required to make it effective as a part of the League's machinery of treaty enforcement. The Assembly was considered better qualified than the Council to propose the necessary changes. It was suggested during the

162

AMENDMENTS TO PART I

Council meetings at San Sebastian, July 30 to August 5 , 1 9 2 0 , that the Assembly should be asked to appoint an international blockade commission for the purpose of studying the problem relating to Article 16 and determining the general plan of action, the organization of the more permanent machinery required, and the principles on which it should work. 1 2 7 T h e First Assembly, entrusted with considering the "economic weapon" of the League, authorized the appointment of an international blockade committee and adopted a number of resolutions to guide the committee in its deliberations. 128 It was recognized that Article 16 embodied one of the essential principles of the legal system incorporated in the Covenant. T h i s system would be altogether incomplete were no provision made for the enforcement of effective sanctions against States which did not fulfill their obligations. 129 On the other hand, the application of Article 16 involved many complicated problems which were difficult to solve. T h e blockade committee faced realistically the situation confronting the League members. T h e authors of the Covenant had considered the League of Nations an organization which would embrace all, or nearly all, States and capable of prompt action in the event of a breach of the Covenant. In the opinion of the committee the application of Article 16, even if the League were a universal force, might have formidable consequences either for the League in general or for some of its members. Since the League of Nations had not yet attained universal membership, a very rigid application of Article 16 would, in the opinion of the committee, not only meet with very great obstacles, but might also involve the States members of the League in real difficulties. T h e committee concluded that certain parts of Article 16 would have to be modified. 1 3 0 Its report, containing proposed amendments and resolutions, was divided into four sections, each headed by one of the following questions: 127 128 129

Official Journal, 1920, pp. 308-10. Records of Assembly, 1920, Plenary, pp. 392 ff. 130 Ibid., 1 9 2 1 , Plenary, p. 425. Ibid.

A M E N D M E N T S TO PART I

163

X. Under what conditions should sanctions be applied? 2. Whose duty is it to decide that the necessity for sanctions has arisen ? 3. A t what moment, and by whom should these measures be applied ? 4. H o w should they be applied? 1 3 1

The international blockade committee had stated that if its various proposals were favorably received it would be expedient to submit the article as a whole to reconsideration and redrafting. The report was referred to the committee on amendments. 1 3 2 T h e amendment of the article was considered indispensable, since the adoption of resolutions of a purely interpretative character would not suffice. 133 It was decided by the third committee of the Assembly, in 1921, that the general form of Article 16 should be retained and that certain amendments should be adopted to regulate the application of economic sanctions. 134 Three amendments dealing with the application of economic sanctions were adopted by the Assembly, in 1921. 1 3 3 T w o amendments, one a substitute for the first amendment of 1921 and a second providing for a textual change in the second paragraph of Article 16, were submitted later, in the Assemblies of 1923, 1924, and 1925. T h e meaning of the term "nationals" in paragraph 1 of Article 16 caused a great deal of misunderstanding. In case of a resort to war by a League member in disregard of its covenants, all other members of the League were required by the terms of paragraph 1 of Article 16 to prohibit relations between the "nationals" of a covenant-breaking State and those of the signatory States and between the "nationals" of offending States and those of all other States, whether members of the League or not. It was not clear whether "nationals of the covenant-breaking State" was intended to include nonresident nationals of the State or to be limited to 131 Ibid., p. 424. The four amendments adopted by the Assembly in 1921 to modify paragraph 1 of Article 16 constituted the answers to the four questions listed above. Ibid., pp. 796-814. 132 Official Journal, 1 9 2 1 , pp. m 6 f . 133 Records of Assembly, 1 9 2 1 , Plenary, p. 425. 134 135 Ibid., Committee No. 3, p. 382. Ibid., Plenary, pp. 803-7.

AMENDMENTS TO PART I

164

resident nationals only. States with a large foreign population would find it extremely difficult to prohibit all intercourse with the nationals of a covenant-breaking State then resident within their borders. The First Assembly agreed that the test for the prohibition of intercourse should be residence, not nationality, 136 and that the prohibitions should be applied to intercourse between States, and not within the States themselves. T o meet the requirements of this situation and to clarify the text of paragraph 1 of Article 16, the blockade committee proposed a resolution of amendment which was adopted by the Second Assembly in the following form: T h e latter part of the first p a r a g r a p h of A r t i c l e 1 6 of the C o v e n a n t shall read as f o l l o w s : . . . w h i c h hereby u n d e r t a k e i m m e d i a t e l y to subject it to the severance of all trade or

financial

relations, the prohibition of all intercourse be-

t w e e n persons residing in their territory a n d persons residing in the territory of the C o v e n a n t - b r e a k i n g financial,

State, a n d

the prevention of

all

c o m m e r c i a l or personal intercourse b e t w e e n persons residing

in the territory of the C o v e n a n t - b r e a k i n g State a n d persons residing in the territory of any other State, w h e t h e r a M e m b e r of the L e a g u e or not.137

The French government contended that the criterion intended by the authors of the Covenant was that of "nationality," not "residence." The practical necessity for prohibiting relations between nationals of belligerents during the war strengthened the importance of retaining the original provision in Article 16. T h e proposed amendment was adopted by the Assembly on October 4, 1921, 1 3 8 the French delegates refraining from voting. T h e refusal of the French government to ratify the protocol of amendment led to the adoption, in 1924, of a substitute amendment proposed by the British in 1923. 1 3 9 136

137 Ibid., 1920, Plenary, pp. 397 f. Ibid., 1 9 2 1 , Plenary, p. 812. Ibid. 139 TTie Assembly adopted a resolution in 1924 to the effect that it was no longer opportune to ratify the first amendment to Article 16 of the Covenant which was adopted in 1921. Records of Assembly, 1924, Plenary, pp. 178-80. 138

AMENDMENTS TO PART I

i65

T h e British substitute a m e n d m e n t a d m i t t e d both

nationality

a n d residence as criteria in a p p l y i n g e c o n o m i c sanctions u n d e r A r t i c l e 1 6 of the C o v e n a n t . T h e expressed purpose of the British proposal w a s to satisfy the objections of the F r e n c h by stating that neither of the criteria, nationality a n d residence, e x c l u d e d other.

140

the

A n obligatory criterion of residence w a s s u p p l e m e n t e d

by an optional prohibition based on nationality. The

Fifth

Assembly

adopted

the

following

resolutions

of

a m e n d m e n t in 1 9 2 4 : T h e Assembly, noting that the amendment to Article 16, paragraph 1, of the Covenant, which was adopted by the Assembly at its second session, has not entered into force and appears to be open to objections which seem to render its entry into force impossible, and considering accordingly that it is 110 longer opportune for further Members of the League to ratify the said amendment, adopts in place thereof the following amendment, which it recommends should be ratified: T h e latter part of the first paragraph of Article 16 of the Covenant shall read as follows: . . . which hereby undertake immediately to subject it to the severance of all trade or financial relations and to prohibit all intercourse at least between persons resident within their territories and persons resident within the territory of the covenant-breaking State, and, if they deem it expedient, also between their nationals and the nationals of the covenantbreaking State, and to prevent all financial, commercial or personal intercourse at least between persons resident within the territory of that State and persons resident within the territory of any other State, whether a Member of the League or not, and, if they deem it expedient, also between the nationals of that State and the nationals of any other State whether a Member of the League or n o t . 1 4 1 T h e revised f o r m of the a m e n d m e n t w a s a d o p t e d on S e p t e m b e r 27, 1924. T h e S e c r e t a r y - G e n e r a l of the L e a g u e n o t i f i e d the m e m bers of the L e a g u e that they need not proceed w i t h the ratification of the first a m e n d m e n t . 1 4 2 140 Ibid., Committee No. i , p. 1 3 . For a statement of the reasons which prompted the various proposals of amendment see ibid., Plenary, pp. 1 7 8 f. 141 Ibid., pp. 464 f. 142 Records of Assembly, 1925, Plenary, p. 178.

166

AMENDMENTS TO PART I

N o provision was made in the original text of Article 16 for the Council to decide what action of a State constitutes a breach of the Covenant. The employment of military coercion by the League members was made dependent, however, upon a recommendation by the Council to the several governments concerned. The broad principle of sanctions received unanimous assent by the League of Nations commission in 1919, 1 4 3 but the method of determining what State was the aggressor in a given case was left unsettled by the commission. 144 T h e blockade committee expressed the opinion in its report of 1921 that each member of the League had the right to decide whether a case existed for the application of economic sanctions. 145 A n interpretative resolution adopted by the Second Assembly in 1921 stated that it was the duty of each member of the League "to decide for itself whether a breach of the Covenant had been committed." 1 4 6 It was the possible function of the Council to intervene in the first place to say whether there had been a breach of the Covenant or not. Its opinion would have a decisive bearing upon the action of the States. 147 Although States had the right to decide when a breach of the Covenant existed, a State which failed to act in case a breach should be declared might be evading its obligation. The exclusion of the parties to the dispute from the Council vote was also deemed advisable. This principle was recognized in paragraph 6 of Article 15. T h e authors of the Covenant failed to make a similar provision for disputes arising under Article 16. It was decided to include this matter in an amendment to the article. The second amendment to be adopted by the Second Assembly in 1921 provided for an opinion of the Council concerning the existence of a breach of the Covenant and the exclusion of 143

Miller, Drafting the Covenant, I, 180. The Norwegian government proposed at the meetings with the neutral States in 1 9 1 9 a separate international act which should "determine the moment when a member of the League shall have broken its engagements and should state the coercive measures which shall be used against that State." For additional proposals for dealing with this problem see Miller, op. cit., II, 642 f. 145 Records of Assembly, 1 9 2 1 , Committee No. 3, p. 355; ibid., Plenary, pp. 404 f. 148 147 Ibid., pp. 429, 802 i f . Ibid., 1920, Plenary, pp. 404 f. 144

AMENDMENTS TO PART I

167

the parties to the dispute f r o m the vote of the Council. T h e amendment read: It is for the Council to give an opinion whether or not a breach of the Covenant has taken place. In deliberations on this question in the Council, the votes of Members of the League alleged to have resorted to war and of Members against whom such action was directed shall not be counted. 1 4 8

With the Council authorized by the proposed amendment to decide whether or not a breach of the Covenant had taken place, it was logical that the Council should notify all the members of the League of the date when the proposed measures of coercion should be applied. T h e original text of paragraph 1 of Article 16 stated that the members of the League would undertake "immediately" to subject the covenant-breaking State to certain economic pressure. T i m e would be required to work out a common plan of action. A t its meeting on October 4, 1921, the Second Assembly adopted the following amendment to Article 16: " T h e Council will notify to all Members of the League the date which it recommends f o r the application of the economic pressure under this article."

149

These amendments have not come into effect due

to the failure of the governments represented on the Council to ratify the protocols. 1 5 0 A m o n g the criticisms of Article 16 of the Covenant received by the League commission on February 14, 1919, the automatic character of the economic sanctions enumerated in paragraph 1 was seriously questioned. It was contended that a pledge to enter into a state of war automatically in the event of a certain act was a mistake. T h e weight of the League behind the Covenant was viewed as a pledge of security against a sudden attack. Besides the League ought to be left to take counsel when the case arose "without a cast-iron pledge." 148

151

It was suggested in 1919 that the article

lia Ibid., 1 9 2 1 , Plenary, p. 805. Ibid.,p. 806. 150 Ratifications of Agreements and Conventions Concluded under the Auspices of the League of Nations, A.6(a). 1938. Annex I. V. pp. 22 f. 151 Miller, Drafting the Covenant, I, 367.

168

AMENDMENTS

TO P A R T

I

be revised. Small States contended that they should not be expected to do more than defend themselves.152 The geographical circumstances of certain States should be taken into consideration by the Council in determining its recommendations to the several governments. The Second Assembly finally adopted the following amendment bearing upon these points: Nevertheless, the Council may, in the case of particular Members, postpone the coming into force of any of these measures for a specified period where it is satisfied that such a postponement will facilitate the attainment of the object of the measures referred to in the preceding paragraph, or that it is necessary in order to minimise the loss and inconvenience which will be caused to such Members. 1 5 3

As in the case of the other amendments to Article 16, this protocol has not received the required number of ratifications to make the amendment effective. Paragraph 2 of Article 16 provides that it shall be the duty of the Council in such case (when a League member resorts to war in disregard of its covenants) to recommend the military, naval, and air force each League member shall contribute to be used against the covenant-breaking State. With the above amendment intended to exempt certain States from the requirement to apply sanctions, the Swedish government's proposal that the wording of the second paragraph be changed 1 5 4 was brought to the attention of the Fourth Assembly by the British delegation. An amendment was proposed by the British government, in 1923, to delete the phrase "in such case" from paragraph 2 of Article 16. The Assembly postponed action until September 21, 1925, 155 when the following amendment was adopted: "The words 'in such case' in the second paragraph of the original text of Article 152 Ibid., II, 641 f. Records of Assembly, 1 9 2 1 , Plenary, p. 807. 164 The amendment suggested by the Swedish government in 1920 would have substituted the following phrase for the wording in Paragraph 2: "In the case referred to in paragraph 1 , it shall be the duty of the Council to recommend . . ." Official Journal, 1920, p. 356. 165 Records of Assembly, 1923, Plenary, pp. 67 f. 153

AMENDMENTS TO PART I 16 of the Covenant shall be deleted."

196

169

U p to the present time the

amendment has not received the required number of ratifications to make it effective. T h e failure of the League members to enforce the sanctions stipulated in Article 16 in cases in which States, members of the League, have resorted to war in violation of their covenants and the unratified amendments of Article 16 have greatly weakened the force of the article. At present we have the original text of Article 16 (still in force), the amendments of the article voted by the Assembly in 1921 (the first of which was withdrawn in favor of an altered text in 1924), the series of "guiding" resolutions adopted in 1921, which conflict to some extent with the text of Article 16, and the amendment voted in 1925. 1 5 7 There seems to be no definite understanding among the members of the League regarding the proper course to be taken to overcome their present difficulties or to correct the weaknesses of the League machinery which have appeared since the various amendments were voted. T h e failure of the League of Nations to enforce sanctions against Japan and the unsuccessful efforts in the case of Italy when they resorted to war in disregard of their covenants may lead to a fundamental revision of the original provisions in Article 16 of the Covenant. There appears to be little confidence at present in this phase of the League machinery for dealing with a covenantbreaking State. ARTICLE

26

T h e text of Article 26 of the Covenant, as finally adopted by the Peace Conference, 1 5 8 did not include provisions for procedure which had to be settled before the principle of revision by amendment could be successfully applied. T h e two short paragraphs of this article covered only the number of ratifications required to 159

Ibid., 1925, Plenary, pp. 100 f. Ratification? of Agreements and Conventions. . . . op. at., A.6(a>, 1938. Annex I. V, pp. 22 ff. 158 Supra, p. 41. 157

AMENDMENTS TO PAKT I

amend the Covenant and the status of a member State dissenting from an amendment adopted by the Assembly of the League. N o provision was made for the initiation of an amendment, the vote of the League Council, the number of votes required to adopt a draft amendment by the Assembly, the governments, members of the Council, whose unanimous vote was required for ratification (whether they were to be limited to the members of the Council at the time the vote was taken in the Assembly or included new members elected to the Council after the amendment was voted and before the required number of ratifications was deposited), or the length of time to be allowed for the ratification of an amendment. During the course of the Second Assembly these questions were dealt with, and a group of three amendments to Article 26 was adopted in an attempt to clarify its terms. The origin of some of the proposals can be traced to the Peace Conference, where similar measures were discussed in the commission on the League of Nations and in the meetings with the neutral States. During the eighth meeting of the commission, Lord Robert Cecil presented a proposal, in a memorandum of British amendments to the Covenant text, 189 to the effect that "amendments to the constitution and functions of the League can be made by a unanimous vote of the Executive Council, confirmed by a majority of the Body of Delegates." 1 6 0 It was insisted by some delegates at the Peace Conference that any amendment of the Covenant "might indeed be substantially a new engagement" 1 6 1 and that each application of Article 26 involved the "ratification of a treaty." In consequence, only provisions relating to the "ratification" of amendments were covered in the final text of the article. Since Article 26 did not deal with the initiation of an amend159

Supra, C h a p t e r IV. O n e A m e r i c a n , t w o British, the G e r m a n , a n d the Swiss drafts of the C o v e n a n t h a d provided in various ways for a m e n d m e n t by the representative body or bodies of the League of N a t i o n s . Miller, Drafting the Covenant, II, 645, 7-45 ff161 160 Miller, op. at., I, 203. Ibid., p . 204.

AMENDMENTS TO PART I

171

ment, the League members sought instruction in the First Assembly pertaining to the proper method of procedure. The general opinion was that a vote of the representative organs of the League would be the logical method of initiating such proposals.162 The article stipulated that an amendment to the Covenant would take effect when ratified by a majority of the members of the League whose representatives compose the Assembly together with all the members whose representatives compose the Council. Was the majority rule to apply to the Assembly in voting for an amendment, or would this belong under the heading of "decisions" and require a unanimous vote as stipulated in Article 5 of the Covenant ? There was a division of opinion in the first committee of the Second Assembly. Some representatives insisted that a unanimous vote of the Assembly was required. Others held that it would defeat the purpose of the amendment provision if it were interpreted in this way. 103 The second subcommittee of the first committee reported in favor of requiring the same majority for the initial vote by the Assembly as for ratification by the governments.184 The Norwegian government had proposed an amendment to Article 26 in the meeting with the neutral States on March 21, 1919. It provided for a three-fourths majority of the Council and of the body of delegates in voting an amendment.105 The members of the Second Assembly could not agree upon an interpretation of paragraph 1 of Article 26. Various proposals were made to remove the uncertainty regarding the original text. The first committee opposed the suggestion to require a unanimous vote of the Assembly. They also rejected the rule of majority vote for the adoption of an amendment. The committee decided to recom162

163 Records of Assembly, 1 9 2 1 , Committee No. 1, pp. 48 ff. Ibid., p. 48. In support of this view it stressed ( 1 ) the difficulty of completing an amendment if unanimity were required, (2) the fact that national sovereignty was protected by the right of a member to dissent and withdraw from the League, (3) the importance of modifying the Covenant and the necessity for assuring a flexible plan. Ibid., pp. 157 f. 155 Supra, p. 47; also Miller, op. cit., II, 645. 164

172

AMENDMENTS TO PART I

mend to the Assembly the adoption of an amendment to Article 26 which would require a three-fourths vote. Before an amendment of this nature could be put into force, it seemed advisable for the Assembly to vote all amendments by a three-fourths majority if possible and the proposed amendments to Article 26 itself unanimously. 100 There was a second question concerning the vote of the Council in the adoption of an amendment by the League members. Should it sit separately, or should the members of the Council cast their votes in the Assembly? The latter was favored by the first committee with due regard to be paid to the rights of the Council in carrying out the procedure. 107 The first amendment to Article 26, voted by the Assembly in 1921, covered this point by including with the Assembly votes "the votes of all the Members of the Council represented at the meeting." A third important question called for an answer. Were the governments represented on the Council, whose unanimous vote was required for the ratification of an amendment, limited to those who were members at the time the amendment was voted, or would new States elected to the Council before the amendment was declared in force be required to ratify also? The three questions stated above were covered in the first amendment to Article 26, which was voted by the Assembly on October 3, 1921. The amendment read as follows: T h e first paragraph of Article 26 of the Covenant shall be replaced by the following text: Amendments to the present Covenant the text of which shall have been voted by the Assembly on a three-fourths majority, in which there shall be included the votes of all the Members of the Council represented at the meeting, will take effect when ratified by the Members of the League whose representatives composed the Council when the vote was 166 Records of Assembly, 1 9 2 1 , Committee No. 1 , p. 187. As a matter of fact this amendment and all the others voted in 1 9 2 1 , except the amendment of Article 6, were unanimously adopted. Ibid., Plenary, pp. 732 (T. 1,7 Ibid., Committee No. 1, pp. 184 f.

AMENDMENTS TO PART I

173

taken, and by a majority of those whose representatives form the Assembly. 168 This amendment to Article 26 has not come into force. N o reference was made in the amendment to the governments represented in the Assembly which were required to ratify an amendment. A subcommittee of the first committee decided in 1921 that the majority of the members of the Assembly required for ratification of an amendment was the majority of the total number of members of the League, not the majority of those States which were present in the Assembly when the amendment was voted. 1 6 9 T h e committee on amendments to the Covenant favored the acceptance of a time limit for the ratification of amendments. T h e y suggested a period of two years. 1 7 0 T h e first committee of the Second Assembly favored eighteen months. They thought this would give the Assembly sufficient time to modify unsatisfactory provisions in the Covenant. 1 7 1 T h e Assembly finally agreed upon a period of twenty-two months, 1 7 2 which was incorporated in an amendment to Article 26 and voted by the Assembly on October 3 , 1 9 2 1 . T h e amendment read as follows: "If the required number of ratifications shall not have been obtained within twenty-two months after the vote of the Assembly, the proposed amendment shall remain without effect." 1 7 3 This amendment to Article 26 has not come into force. There is no limit of time, therefore, within which the required number of ratifications must be obtained to make the proposed amendments effective. If such a provision had been incorporated in the original text of the Covenant, it is likely that all of the amendments voted by the Assembly would have been invalidated. Amendments could be adopted again, however, by succeeding Assemblies. States were urged by 148

149 Ibid., Plenary, p. 733. Ibid., Committee No. 1, p. 163. League of Nations, Committee on Amendments to the Covenant, Second Report of the Committee to the Council, Document A. 24 ( 1 ) . 1921. V. p. 9. 171 Records of Assembly, 1921, Committee No. 1, pp. 163 f.; 186 f. 1,2 178 Ibid., Plenary, pp. 726-30. Ibid., p. 734. 170

i74

AMENDMENTS TO PART I

the first committee of the Fourth Assembly, in 1923, to refrain from ratifying the above amendment to Article 26 until the other amendments had come into force. 174 During the discussion of paragraph 2 of Article 26 by the League commission, Philip J. N . Baker raised the following question in a communication dated April 1 1 , 1919: "Should not a state signify its dissent within a fixed time, say 3 months ? Otherwise it might suddenly refuse—years after—to be bound by an amendment to the Covenant." 1 7 5 The idea of a time limit for expressing a dissent was adopted by the amendments committee, in 1921, as a necessary precaution to prevent a State which had not ratified an amendment from using its failure as an excuse to withdraw from the League at a later time without fulfilling all its obligations. 178 They favored a stipulation whereby a State would have to notify the Secretary-General of its dissent within a year after the adoption of an amendment by the Assembly. 1 7 7 The text of the amendment adopted by the Assembly on October 3, 1921, read as follows: T h e second paragraph of the present Article 26 shall be replaced by the two following paragraphs: T h e Secretary-General shall inform the Members of the taking effect of an amendment. A n y Member of the League which has not at that time ratified the amendment is free to notify the Secretary-General within a year of its refusal to accept it, but in that case it shall cease to be a Member of the League.178

The three amendments voted by the Second Assembly in 1921 in an attempt to clarify the provisions in Article 26 embodied the following principles which would govern their application: 1. Amendments are to be adopted by a three-fourths majority of the Assembly, including the votes of all the Council members represented at the meeting. 174 175 178 177 178

Records of Assembly, 1923, Committee No. I, pp. 29 f. Miller, Drafting the Covenant, I, 457. Committee on Amendments to the Covenant, Document A. 24 ( 1 ) . 1921. V. p. 9. Records of Assembly, 1 9 2 1 , Committee No. 1, p. 164. Ibid., Plenary, p. 735.

AMENDMENTS TO PART I

175

2. Amendments are to take effect when ratified by the members of the League whose representatives composed the Council "when the vote was taken" and by the majority of those whose representatives compose the Assembly. 3. Proposed amendments shall remain without effect if they fail to secure the required number of ratifications within twentytwo months following the vote of the Assembly. 4. Within a year after the entry into force of an amendment any State refusing to accept its provisions is free to notify the Secretary-General of its dissent in order to take advantage of its privilege of withdrawal from the League. 1 7 9 The three amendments to Article 26 were drawn up as three separate protocols and submitted to the members of the League for ratification. Up to the present time the amendments have not been ratified by the required number of States to make them effective. 180 Thus the provision in Article 26 of the Covenant allowing for the modification of the terms of Part I of the treaty is left as originally accepted with three amendments awaiting ratification. T h e important matters relating to procedure, which need to be clarified before the principle of revision by amendment can be successfully applied, have been postponed indefinitely. The restrictive features of the second and third amendments to Article 26 may lessen the possibility of their obtaining the requisite number of ratifications. T h e present status of Article 26 is unsatisfactory in view of the controversy regarding the meaning of the present text of this article. The amendments may come into force in due time with the ratification of the protocols of amendment by the required number of States. 181 170 Ibid., pp. 7 3 3 - 3 5 ; see also Francis O. Wilcox, The Ratification of International Conventions (London, 1935), p. 2 5 1 . 180 League of Nations, Ratification of Agreements and Conventions, Annex A.6(a). 1938. Annex I. V. pp. 24 f. 181 Subsequent to the completion of the manuscript of this study in June, 1938, the Assembly of the League of Nations adopted an additional protocol of amendments to the Covenant which should be classed with the protocols of amendments to Articles 16 and 26, adopted by the Assembly, but not yet ratified by the required number of governments to bring them into force. Since the recent action of the Assembly presents little

176

AMENDMENTS TO PART I

SUMMARY

T h e governments represented at the Paris Peace Conference were confronted with three alternatives in the drafting of an agreement to establish a League of Nations: ( 1 ) to create an agency which would embody the principles of a federation of States; ( 2 ) to set up a confederation of powers; or ( 3 ) to arrange for the co-operation of States in the handling of international affairs. A resolution adopted in a plenary session of the Conference on January 25, 1919, stated that it was essential to the maintenance of the proposed agreements that a League of Nations be more than an additional illustration of the procedure set forth in the above treatment of proposed amendments to Articles 16 and 26, and in view of the fact that an exhaustive study of every phase of such developments cannot be adequately treated in a limited volume, no more than a brief summary of the Assembly's action is included here: On September 30, 1938, the Assembly of the League adopted a resolution designed to meet the repeated objections of certain States to the close association of the Covenant with the treaties of peace and to the limitations imposed upon the League because of specific expressions which tended to associate the duties of the League with the advantages gained by the victorious powers at the close of the World War. The Assembly resolution favored the removal from the Covenant of certain expressions whose retention "might be considered an obstacle to the entry of other States into the League of Nations." At the same time the Assembly adopted a second resolution setting forth proposed amendments to the Preamble, to Articles 1 , 4, and 5, and to the Annex of the Covenant and recommending to the governments of League members the prompt ratification of the protocol embodying these amendments. The protocol was signed on behalf of twenty-eight members of the League, and it is now before the various governments for their ratification. The resolution recommending the ratification of the protocol stressed the point that the proposed amendments, if ratified, would not change the real effect or the spirit of the Covenant. They aim merely to divorce the Covenant of the League from its setting as part of the Treaty of Versailles by omitting phrases such as "Principal Allied and Associated Powers" and "High Contracting Parties," and references to distinctions between the original members of the League, signatories of the treaty of peace, and the States invited to accede to the Covenant. For a general expression of views by various governments concerning the separation of the Covenant from the treaties of peace see League of Nations, Official Journal, Special Supplement No. 154 (1936), pp. 96 f.; also Document C. 350. M. 238. 1937. VII. The report of the special committee set up to study the application of the principles of the Covenant is found in Document A. 7. 1938. VII. For an account of the Assembly's action on September 30, 1938, and documents relating thereto see Records of Assembly (1938), Special Supplement No. 183, pp. 97-100, 143-49, 150-52; also Document A. 78. 1938. VII; Document A. 79 ( 1 ) . 1938. V. A brief summary of the essential points relating to the Assembly's adoption of amendments to the Preamble, Articles 1 , 4, and 5 afld Annex of the Covenant is presented in an editorial comment by Hudson, "Amendment of the Covenant of the League of Nations with a View to Its 'Separation from the Treaties of Peace,'" Am. /. I. L„ XXXIII, 138-45-

AMENDMENTS TO PART I

177

created "to promote international cooperation, to insure the fulfillment of accepted international obligations and to provide safeguards against war." T h e League was to be created as an integral part of the general treaty of peace. Every nation which could be relied upon to promote the League program would be eligible for membership. T h e Conference provided for a committee representing the Allied and Associated Powers to work out the details of the constitution and functions of the League. T h e terms of the Covenant as finally drawn up and accepted by the powers at Paris left the League, as a co-operative experiment, without sufficient authority to decide important matters involving the interests of States and without adequate power to enforce the action it was authorized to take in certain situations. Many proposals were made for changing the terms of the League Covenant. A l l efforts to modify the League structure or to revise the terms of Part I of the treaty have encountered strong opposition within the League membership. T h e proposed reforms of the League fall into two general periods of time: first, those which arose immediately following the inauguration of the League and which were supported by the small powers whose ideas had not been accepted by the League commission in 1 9 1 9 ; second, the more recent demands associated with conditions created by the policies of the great powers. A modification of the terms of the Covenant may relate to the objectives, the plan of organization, and the procedure stipulated in the original agreement. Not only were the first group of suggestions for the modification of the Covenant confined to changes within the limits of the accepted principles of the League, but also practically all the amendments to the Covenant adopted in 1921 deal with questions of procedure in applying provisions in the Covenant. T h e more recent proposals for League reform stress the necessity for m o d i f y i n g the provisions for unanimity (Article 5 ) , territorial guarantees (Article 1 0 ) , war as an instrument of policy (Articles 12, 13, and 1 5 ) , sanctions (Article 16), and the removal

178

AMENDMENTS TO PART I

from the Covenant of certain expressions whose retention might be considered an obstacle to the entry of other States into the League of Nations (the Preamble, Articles i, 4, and 5, and the Annex). There is little likelihood that all these important treaty provisions will be modified in the near future. Yet they constitute the more difficult barriers to the effective operation of the amendment procedure and the co-operation of blocks of States whose policies are in conflict. The actual changes in the Covenant effected by amendments have been very few in view of the numerous demands and proposals for reform. The amendments which have come into force are relatively unimportant when viewed in the light of the urgent matters before the League members and of the lesser problems chosen for consideration. The successful efforts of a few States to modify the terms of the Covenant, despite the opposition of certain governments to treaty change, show that it is possible, although very difficult, to revise the original agreement by amendment. The fundamental difficulty encountered by the League members in amending the Covenant would appear to be due more to the spirit animating certain member States than to the constitutional weakness of the League organization. The defenders of the status quo in Europe have been successful in blocking all efforts to achieve a fundamental revision of Part I of the Treaty of Versailles. Since the Covenant was made an "integral part of the Treaty," certain States have opposed essential changes in the Covenant on the ground that it would establish precedents for modifying other parts of the peace treaty. One great obstacle to the work of amending the Covenant has been the lack of a uniform arrangement for interpreting the terms of agreement and determining the rules of procedure for carrying out its provisions. Political blocks have taken advantage of the situation and have sought to impose their own interpretations upon the League members, or they have withheld their

AMENDMENTS TO PART I

179

ratification of an amendment which was not to their liking. Because of the difficulties associated with the early attempts to amend the Covenant there were presented to the Assembly only one amendment in 1922 and two amendments in 1923. One submitted in 1923 provided for a modified text of the amendment voted to Article 16, paragraph 1, in 1921. The other was a textual amendment which would be necessary if the earlier amendments to Article 16 were ratified. These two amendments were voted in 1924 and 1925, respectively. It took almost three years for the first amendment voted in 1921 to come into force, in August 1924. The latest date on which an amendment came into force was July 29, 1926. Only five amendments to the Covenant (Articles 4 , 6 , 1 2 , 1 3 , and 1 5 ) were achieved during the first nineteen years of the League's existence. Three of these involved verbal changes in the original text of the Covenant (Articles 12, 13, and 1 5 ) . T h e other two concerned important matters relating to the Assembly's control of the League's finances and the right of the Assembly to regulate the term of office and conditions of membership of nonpermanent members of the Council. The political difficulties involved in amending the terms of the Covenant and the urgent demand for the adjustment of States' interests have prompted a number of powers to seek contractual relations outside the provisions of the League Covenant. The supplementary agreements included the Locarno Treaties and the General Act. Each new agreement may raise the problem of reconciling its provisions with the terms of the Covenant. This is evidenced by the urgent requests to amend the Covenant to bring it into harmony with the Kellogg-Briand Pact and the adoption of a resolution by the Assembly authorizing the appointment by the Council of a special committee to study the questions involved. The committee submitted to the Assembly in 1930 its proposals for amending Articles 12, 13, and 15 of the Covenant.

i8o

AMENDMENTS TO PART I

The failure to achieve desired reforms by amendment has produced another method of handling League matters. The League bodies have relied upon the study of particular problems by experts and the broad interpretation of Article 5 of the Covenant to permit recommendations without a unanimous vote of the Council. This approach has been effective in handling minor questions, but of little practical value in influencing great powers to alter their policies or to comply with the League findings and recommendations. T h e procedure of conciliation provided for in Articles 1 1 and 15, the use of fact-finding bodies, discussion, recommendation, and interpretation of various provisions such as Article 16 have been relied upon to adjust some differences which might otherwise be avoided if desired changes in the League organization could be effected by amendment. The Fourth Assembly favored the adoption by unanimous vote of a resolution clarifying doubtful provisions in the Covenant. A resolution to interpret Article 10 of the Covenant failed of adoption by one vote. A number of resolutions of a similar nature were adopted by the Second Assembly in connection with the amendments to Article 16 of the Covenant. Explanatory resolutions may prove satisfactory for a limited time. They are subject to modification by the next Assembly if the members so decide. The present situation confronting the League members would seem to require a modification of the amendment procedure or the calling of a general conference to re-draft the Covenant. T h e essential requirement for treaty revision is the voluntary consent of signatory powers to modify the terms of the original commitments by drafting a new agreement. T h e procedure for expressing the consent of the contracting parties is secondary. The League Covenant makes provision for the participation of the members of the League in the modification of the Covenant by amendments. Such provisions are useful to the extent that the League members are willing to employ this procedure. The difficulties involved in modifying the text of the Covenant

AMENDMENTS TO PART I

181

in order to keep pace with vital changes in the relations of States have prompted certain League members to withdraw from Geneva and to undertake methods of international negotiations which are at variance with the League procedures. While retaining their membership in the League of Nations, certain governments have moved beyond the League's jurisdiction relating to international negotiations. The possibility of achieving what would appear to be necessary reforms through amendment to the Covenant seems to be far less probable today than it did in the early years of the League experiment, when a number of amendments were adopted by the Assembly and later ratified by the required number of States. The amending process has worked smoothly enough when the members of the League have not been involved in serious political controversies. The chief difficulty in effecting amendments to the Covenant has been the delays in securing the ratification of the protocols of amendment by the League members. Such delays, however, are present in practically all treaty making. They are not, therefore, to be looked upon as something peculiar to the functioning of the agencies of the League of Nations. A willingness to abide by treaty commitments together with a determined effort to find a broader basis of compromise must precede any basic change in the League structure or revision of the Covenant.

C H A P T E R VIII AMENDMENT

TO PART

INTERNATIONAL

XIII:

LABOR

ORGANIZATION ARTICLE

393

O N A p r i l 1 1 , 1 9 1 9 , the Peace Conference approved, w i t h some changes, the standing o r d e r s 1 ( f o r the general annual conference, permanent office, and governing body of the International L a b o r Office) prepared by its Commission on International L a b o r Legislation. 2 T h e Conference authorized the organizing committee to proceed with the w o r k of preparing for the first international labor conference in Washington, in October, 1 9 1 9 . 3 A m o n g the numerous duties to be performed by the organizing committee there w a s the task of choosing eight States of chief industrial importance whose representatives would constitute eight of the twelve persons representing the governments on the governing body of the International L a b o r Office. 4 It was necessary to name the eight government members before the

Washington

1 This decision of the conference brought the International Labor Organization into being. Its final constitution was not yet fixed, since it was a conference of the Allied and Associated Powers for the discussion of the preliminaries of peace which had approved the work of the commission. The signature of all contracting parties was required to give the instrument the character of an agreement. 2 Shotwell, The Origins of the International Labor Organization, I, 127-220. 3 The seven governments designated by the conference to form the International Organizing Committee of the Washington Conference included the United States, Great Britain, France, Italy, Japan, Belgium, and Switzerland. 4 The provisions of Article 393 of the treaty were as follows:

"The International Labour Office shall be under the control of a Governing Body consisting of twenty-four persons, appointed in accordance with the following provisions: "The Governing Body of the International Labour Office shall be constituted as follows: Twelve persons representing the Governments; Six persons elected by the Delegates to the Conference representing the employers; Six persons elected by the Delegates to the Conference representing the workers. "Of the twelve persons representing the Governments eight shall be nominated by the Members which are of the chief industrial importance, and four shall be nominated by

AMENDMENT TO PART XIII

I8 3

Conference to comply w i t h the provision in Article 393 of the treaty w h i c h had to be put into effect immediately. 5 T h e remaini n g four government representatives on the g o v e r n i n g body w o u l d be selected at the Washington Conference. T h e committee met in Paris, on A p r i l 14, 1919, to initiate the w o r k authorized by the conference w h i c h was then preparing the text of the treaty of peace. In a circular dated A u g u s t 20, 1919, the committee summed up its w o r k and its proposals. A list of the eight States considered by the committee to be of chief industrial importance was dispatched to all the States n a m e d in the annex to the Covenant of the League of Nations w i t h a request that any objection to the list should be communicated to the committee. T h e eight States suggested were the United States, Great Britain, France, G e r m a n y , Italy, Japan, Belgium, and Switzerland. If G e r many should be excluded on other grounds, it was proposed that Spain should be allotted the eighth place. 9 Objections were submitted by Sweden, Poland, Canada, and India. T h e situation was difficult. A c c o r d i n g to Article 393 of the treaty the governing body of the International Labor Office had to be approved by the conference and in the election of the f o u r additional government members the representatives of the eight States of chief industrial importance were not entitled to take part. It was also impossible for the Council of the L e a g u e of Nations to decide w h i c h were the chief industrial States provided for in the the Members selected f o r the purpose by the G o v e r n m e n t Delegates to the C o n f e r e n c e , e x c l u d i n g the Delegates of the eight Members mentioned a b o v e . " A n y question as to w h i c h are the m e m b e r s of the chief industrial importance shall be decided by the C o u n c i l of the L e a g u e of Nations. " T h e period of office of the Members of the G o v e r n i n g B o d y w i l l be three years. T h e method of filling vacancies and other similar questions m a y be d e t e r m i n e d by the G o v e r n ing B o d y subject to the approval of the Conference. " T h e G o v e r n i n g Body shall, f r o m time to time, elect one of its m e m b e r s to act as its C h a i r m a n , shall regulate its o w n procedure and shall fix its o w n times of meeting.

A

special meeting shall be held if a written request to that effect is m a d e by at least ten m e m b e r s of the G o v e r n i n g B o d y . " 5

L e a g u e of Nations, International

Labour

Conference,

First A n n u a l Meeting, O c t o b e r

29 to N o v e m b e r 29, 1 9 1 9 ( W a s h i n g t o n , 1 9 2 0 ) , p. 1 j . 6

International L a b o u r Office, Official

Bulletin,

I V (July-December, 1 9 2 1 ) , 36.

184

AMENDMENT TO PART XIII

treaty, 7 since the ratifications of the Treaty of Versailles had not been deposited. The Council was, therefore, not entitled to meet. In view of these difficulties, efforts were made at the Washington Conference, in October, 1919, to arrive at a working agreement between the several governments concerned. These efforts were only partially successful. The list of States originally proposed by the organizing committee was adopted, Germany being included. In the election of the four additional government members on the governing body, Spain, Argentina, Canada, and Poland were selected. In consequence Poland and Canada withdrew their previous objections to the organizing committee's choice of the eight States of chief industrial importance. One of the workers' delegates on the governing body was chosen from Sweden, and the Swedish objection was withdrawn. 8 China made no definite demand for representation on the governing body. India restated her objection, and the Indian delegates refused to take part in the election. They contended that since the Council of the League of Nations had not passed on the objections made to the list of eight States of chief industrial importance, as proposed by the organizing committee, the governing body could not be approved without unanimity. This had not been secured.9 Despite the various objections to the nominations made for the government members of the governing body of the International Labor Office the following States were nominated: Belgium, France, Great Britain, Italy, Japan, Germany, Switzerland, Spain, Argentina, Canada, Poland, and, pending the appointment of the United States' representative, Denmark. The Cuban representative, Dr. Justiz, pointed out that only one place on the governing body had been assigned to the twenty Latin American countries. In view of the growing importance, 7 Paragraph 3 of Article 393 provided as follows: "Any question as to which are the Members of the chief industrial importance shall be decided by the Council of the League of Nations." 8 International Labour Office, Official Bulletin, IV, 37. 0 League of Nations, International Labour Conference, op. cit., p. 1 3 1 .

AMENDMENT TO PART XIII

185

politically and economically, of the Latin American States, the labor conference was urged to take such action as might seem fit to "amend" the arrangement of allotting to the group of twenty Latin American countries only one representative out of the twenty-four composing the governing body of the labor office. 10 This marked the initiation of a movement which resulted finally in amending Article 393 of Part XIII of the Treaty of Versailles. The South African delegates lodged an objection to the method of electing members of the governing body. The conference was asked to support the proposal that the governing body should take steps to have further representation, or rather proper representation, of countries other than European. 11 This measure was considered essential if the International Labor Organization were to win the confidence and support of the non-European countries. The objection was submitted to the twenty-fifth session of the International Labor Conference, on November 29,1919, in the form of the following resolution: "That this conference expresses its disapproval of the composition of the governing body of the International Labor Office, inasmuch as no less than 20 of the 24 members of that body are representatives of European countries." 1 2 A motion presented by Mr. Gemmill, of South Africa, called for an amendment to Article 393 of the treaty. His motion stated: . . . in view of the fact that no less than 20 out of the 24 members of the governing body of the International Labor Office, appointed under 10 Ibid. Of the 120 members that composed the committees to study the different matters of the International Labor Conference, 100 were European; 2 were from the Spanish-American countries; and the balance were divided among the rest of the world. In the governing body, 20 members were froin European countries, 3 members fiom non-European countries; and 1 member from the 20 Latin American countries. 11 The original proposal made by those opposed to the composition of the governing body was introduced for the purpose of investing the governing body with full power to revise its own composition. Those who suggested a change in the composition of the governing body did not suggest, nor did they want, any change in the peace treaty. Most of them thought that their object would be served well if a recommendation of this conference were made to the several groups that reasonable representation be given to the extraEuropean countries. League of Nations, Internationa! Labour Conference, op. cit., pp. 194 f. 12 Ibid., p. 196.

AMENDMENT TO PART XIII article 393 (7) of the peace treaty, are representatives of European countries, the conference proceed under article 422 (36) of the treaty to amend the said article 393 (7) by laying down a maximum total representation of countries in Europe and so as to insure more adequate representation of countries outside of Europe. 1 3

The resolution adopted by the conference condemned its own action, but owing to the fact that the groups had selected their representatives without mutual consultation, no immediate remedy was possible. Furthermore, certain governments, especially India, believed that they should be included among the States of chief industrial importance, and they protested against their exclusion from permanent seats. During the first six months of 1920 the Indian case was the subject of detailed study by and exchange of views between the International Labor Office, the Secretariat of the League of Nations, and the India Office. The Indian claim had been submitted to the Council of the League of Nations. During its meetings at San Sebastian, in August, 1920, the Council adopted a report 1 4 bearing upon the Indian case to the effect that any ruling on this question which would involve a reconstruction of the governing body of the Labor Office should not take effect until the completion of the tenure of office, in 1922, of the members of the governing body selected by the conference at Washington in 1919. In the interim the meaning to be attributed to the words "chief industrial importance" should be subjected to careful examination. 15 The SecretaryGeneral of the League was requested to study this question with the International Labor Office and to report to the Council in time 13

Ibid., p. 271. League of Nations, Eighth Session of the Council, 1920, Annex 88, pp. 1 5 7 - 6 1 . International Labour Office, Official Bulletin, IV, 38. As a result of further communications exchanged between the Secretary of State for India and the Secretary-General of the League, the claim of India to representation on the governing body as one of the States of chief industrial importance was included in the agenda of the first meeting of the Assembly of the League of Nations. After a report to the Assembly on the matter, it was decided that the Assembly was not competent either to deal with or to decide the question. Under the treaty of peace the Council was the only body competent to decide such matters. 14 16

AMENDMENT TO PART XIII

i87

for the matter to be discussed before the next election.16 A special committee was appointed to conduct the study. The committee, composed of four members of the governing body and of two experts appointed by the Secretary-General of the League, recognized that the problems connected with this question were such that they could not be dealt with by the conference without a revision of the treaty. The possibility of a revision of Part XIII of the Treaty of Versailles was considered by the standing orders committee of the governing body. It would be difficult to revise the labor provisions in the treaty in view of the procedure prescribed in Article 422 for amending Part XIII. Moreover, sufficient time had not elapsed to test the constitution of the International Labor Organization. 17 The issue before the governing body and the International Labor Conference was that of according satisfaction to the nonEuropean States seeking "proper representation" on the governing body. At first it was thought possible to find a solution either in the full utilization of the provisions of paragraph 5 of Article 393 relating to "substitutes" 1 8 or in the adoption by the Conference of proposals recommending that the three groups (the government, the employers, and the employees) should arrive at certain "understandings" regarding the voluntary allocation of membership. 18 For a detailed report of the findings of the Council of the League on the question of the States of chief industrial importance see International Labour Office, Official Bulletin, VI, 540-91. «Ibid., IV, 39. 18 As regards the system of substitutes, the provision of paragraph 5 of Article 393 was as follows: "The period of office of the Members of the Governing Body will be three years. The method of filling vacancies and other similar questions may be determined by the Governing Body subject to the approval of the Conference." Article 3 of the Standing Orders of the governing body, adopted March 23, 1920, was as follows: "Appointment of Substitutes. In order to ensure the proportional representation of Government, Employers and Workers, as laid down in Article 393 of the Treaty of Peace, members may be replaced in case of absence by substitutes." International Labour Office, Constitution and Rules (1920), p. 28. For proposals regarding an understanding on the question of substitutes see International Labour Office, Official Journal, IV.

i88

AMENDMENT TO PART XIII

The first item on the agenda of the third session of the International Labor Conference, in 1921, was the reform of the constitution of the governing body of the International Labor Office. The governing body submitted certain proposals bearing upon the question of constitutional reform. The determination of the eight States of chief industrial importance could be settled, according to Article 393 of the treaty, by the Council of the League of Nations. The objection to the provision in Article 393 of the treaty allowing only eight States of industrial importance to be represented on the governing body could not be met without revising the treaty. Otherwise the conference could not assure increased representation to extra-European States. The question was whether they should or should not attempt a revision of the Treaty of Versailles to meet the demands of the non-European powers. 19 An adjustment might be effected in terms of the proposed "understandings." An understanding could be reached in one of three ways: First, a recommendation in general terms from the conference to each of the groups to the effect that account should be taken of the possibility of ensuring a reasonable distribution of seats as between European and extra-European Powers. Second, a recommendation in more precise terms could be made by the conference whereby a certain proportion of seats should be assured to extra-European States. Third, the conference could recommend that, in the case of the four elected States, a system of roulement be observed to prevent the re-election of the same four government members, except after the expiration of a given period of time.20 The action of the conference in the three types of understanding could only be in the nature of recommendations that the groups should come to an unwritten working arrangement. 21 A more binding arrangement would be tantamount to changing the provision of Article 393. 18 The proposals made by the governing body of the International Labor Office stre;sed the necessity for "Treaty Revision." See International Labour Conference, Third Session. 1 9 2 1 , II, pp. 645 ff. 20 International Labour Office, Official Bulletin, IV, 44. 21 The government group, the employers group, and the labor group.

AMENDMENT TO PART XIII

189

A fourth proposal was suggested by the governing body in their report to the third session of the International Labor Conference : namely, the approval by the conference of a revised article of the standing orders of the governing body dealing with "substitutes" and "waiting members." 2 2 The employers' and workers' members on the governing body agreed to accept the appointment of substitutes of a nationality other than that of their titulary members. Very strong objection was raised to the suggestion that substitutes for the representatives of the eight States of chief industrial importance should be appointed by other States.23 T h e strong opposition to the method of selecting the States of chief industrial importance and of granting to European States the majority of places on the governing body produced a serious division of powers in the International Labor Organization. Failure to satisfy the various States on this matter would result in loss of support for the work of the labor office. The system of substitutes dealt with in the standing orders of the governing body and in paragraph 5 of Article 393 and the proposed "understandings" which would obligate the three groups to abide by a "gentlemen's agreement" relating to the election of government members of the governing body were not adequate. T h e third session of the International Labor Conference adopted, on October 28, 1921, a proposal to the effect that the question of the reform of the constitution of the governing body should be referred to the commission of selection. In its special report to the conference, the commission stated that in its opinion "the only solution likely to give real satisfaction and to be in the best interests of the International Labour Organization as a whole is one which will involve a revision of the Treaty." 24 The commission was moved to recommend this course in view of the action taken by the Assembly of the League of Nations during its second meeting, in 1921, in adopting a number of amendments to the 22 23 24

International Labour Conference, Third Session, 1921, II, p. 647. Ibid., p. 647. Ibid., p. 649.

190

AMENDMENT

TO PART

XIII

Covenant of the League. Given adequate time for complete consultation and for careful preparation of the proposed amendment to Part X I I I of the treaty, the commission believed there would be no untoward delay in the receipt of the required number of ratifications. It was necessary to assure all members of the International Labor Organization of an equitable share in the work of its various organs. The commission was of the opinion that no solution based on the nonrevision of the treaty could do more than provide uncertain and partial means toward the attainment of such an end. T h e commission recommended revision of Part X I I I with a view to the reform of the constitution of the governing body. T h e International Labor Conference requested the governing body to place on the agenda of the fourth session of the conference proposals to the effect that "modifications of the Treaty of Peace constitute the sole method of amending certain existing imperfections, and of assuring a fully equitable representation on the Governing Body to the Members of the International Labour Organisation." 2 5 T h e first item on the agenda of the fourth session of the International Labor Conference, 1922, was the "Revision of Part XIII of the Treaty of Versailles, and the corresponding Part of the other Treaties of Peace, (a) with a view to the reform of the constitution of the Governing Body." The draft of the revised Article 393 of the Treaty of Versailles submitted by the governing body, read as follows: 1. The International Labour Office shall be under the control of a Governing Body consisting of thirty-two persons: sixteen representing the Governments, eight representing the Employers, and eight representing the Workers. 1. Of the sixteen members representing the Governments, one each 25

Ibid., p. 656.

AMENDMENT TO PART XIII

I9I

shall be nominated respectively by France, Germany, Great Britain, Italy, Japan and the United States of America. 3. T h e ten other members representing the Governments shall be elected by all the Government Delegates at the Conference. Four members of the ten shall belong to non-European States.26

T h e principal changes introduced in the revised draft of Article 393 were as follows: First, the number of members on the governing body was increased from twenty-four to thirty-two. This change met with general approval, since it increased the chances that any particular State might obtain representation on the governing body. Second, the proposed amendment listed six States, instead of eight as stipulated in the treaty, which were to have a right to seats on the governing body. In the amended article these six States were designated by name. There appeared to be little doubt that the States named in paragraph 2 of the revised draft constituted those of chief industrial importance. It did not seem possible to select the two additional States of chief industrial importance without raising serious objections on the part of certain powers whose industrial population was thought sufficient to entitle them to this distinction. Third, out of the ten members representing governments and subject to election by all the government delegates at the conference, four members were to be chosen from non-European States. Fourth, it was decided by the Commission that the States which have a right to a seat on the governing body should take part in the election of the other members of the governing body. Fifth, the States were to be elected, and each government was to be allowed to name the representative of its choice rather than have the government representative elected by ballot. 27 T h e uncertainty expressed in the conference debate concerning the method of adopting the proposed draft of the new Article 2 6 For the full text of the draft presented by the governing body see International Conference, Fourth Session, 1922, I, 501-5. 27 Ibid., p. 246.

Labour

AMENDMENT TO PART XIII

192

393 prompted the Secretary-General to stress the procedure which was required under Article 422 to amend Part X I I I of the treaty. T h e proposed amendment was to be dealt with as they would take up a draft convention. It had to be passed by a majority of twothirds of the delegates present. It would then be transmitted to the office of the Secretary-General of the League of Nations, and in turn submitted to the various States members for ratification. It was not necessary for the Council of the League to intervene, but it was necessary that the proposed amendment of the new article should be ratified by all the members whose representatives compose the Council, and by three-fourths of all the members of the League of Nations. T h e President of the Conference made a final ruling on the debate on various paragraphs of the proposed new article. Article 393, with which they were dealing, was a part of the treaty of peace. T h e new article would be submitted to the conference and treated as a whole rather than as a collection of separate paragraphs to be transmitted to the States subject to separate reservations by the governments. For the sake of convenience the conference could take the paragraphs of the article one by one for discussion. In this matter the conference was master of its own procedure. After dealing with the separate paragraphs of the new article the conference would be asked to vote on the entire article as amended. T h e two-thirds vote necessary for adoption would be called for when the final draft of the article was returned to the conference by the drafting committee. 28 Mr. Lapointe, of Canada, raised strong objection to the proposed clause in the new article which, if adopted, would grant six industrial States permanent seats on the governing body by virtue of their having been named in the amendment to Article 393. He asked for an acceptance of the original treaty provision, which designated a given number of States of chief industrial importance without specifically naming the States. If no exceptions 28

Ibid., p. 255.

AMENDMENT TO PART XIII

193

were made and all the representatives on the governing body were elected by the conference, the chances would be greatly increased for receiving the required number of ratifications of the proposed amendment.29 By way of an amendment to paragraphs 2 and 3 of the new Article 393, Mr. Lapointe proposed the following changes: the draft amendment before the conference stipulated, Article 393, paragraphs 2 and 3, that: Of the sixteen persons representing the Governments, one each shall be appointed respectively by France, Germany, Great Britain, Italy, Japan and the United States of America. T h e ten other persons shall be appointed by the Members selected for the purpose by all the Government Delegates to the Conference. Four of the ten Members so elected shall be non-European States.

The amendment proposed by Mr. Lapointe read as follows: Of the sixteen persons representing the Governments, eight shall be appointed by the Members which are of chief industrial importance, and eight shall be appointed by the Members selected for that purpose by all the Government Delegates at the Conference. Of the sixteen Members represented, six shall be non-European States. 30

The conference adopted the Lapointe amendment. Mr. Sokal, of Poland, submitted an amendment to Mr. Lapointe's amendment. He suggested the deletion of the word "all" in line five and the insertion, after the word "Conference" in line five, of the words "excluding the Delegates of the eight Members mentioned above." This amendment was adopted by the conference. With these slight changes, paragraph 2 of Article 393 reads as follows: Of the sixteen persons representing Governments, eight shall be appointed by the Members of chief industrial importance, and eight shall be appointed by the Members selected for that purpose by the Government Delegates to the Conference excluding the Delegates of the eight 29

Ibid., p. 282.

30

Ibid., p. 288.

194

AMENDMENT TO PART XIII

Members mentioned above. Of the sixteen Members represented six shall be non-European States. 31

With the exception of the two changes proposed by Mr. Lapointe, of Canada, and Mr. Sokal, of Poland, the conference adopted the draft amendment to Article 393 as submitted by the governing body. The amendment to Article 393 of the Treaty of Versailles was promulgated on a vote of the International Labor Conference, November 2, 1922, without any protocol. The proposed amendment was notified to all members by a formal document signed by the president of the Conference and the director of the International Labor Office, on November 15, 1922. 32 T h e French government requested, for constitutional reasons, that a protocol should be prepared for the amendment to Article 393 of the Treaty of Versailles analogous to the protocols drawn up for the amendments to the Covenant. 33 This protocol, dated June 14, 1923, the ratification of which would be equivalent to the ratification of the text adopted by the conference, was signed by the representative of France and deposited with the Secretariat of the League of Nations. T h e situation with regard to the signature and ratification of this protocol was communicated to the members of the International Labor Organization by the Secretary-General of the League of Nations on February 14,1924. 3 4 Both the protocol and the letter from the Secretary-General of the League stated that ratification of the protocol might be con31 Ibid., p. 388. The final text of the amendment to Article 393 of the treaty, as adopted by the International Labor Conference, 1922, is recorded in the Report of the Fourth Session, pp. 606 f. 32 A special committee of the Assembly of the League had recommended that "Each amendment voted by the Assembly might be made the subject of a special protocol, containing the text of the amendment and recording the votes. Each of these protocols should then be signed by the Delegates who have voted for the amendment. This would give the documentary basis for the ratification by Members of the League which is provided for in Article 26." This form was adopted by the Assembly for amendments to the Covenant of the League of Nations. League of Nations, Document A. 24 ( 1 ) . 1 9 2 1 . V. p. 9. 33 For the text of this Protocol see International Labour Office, Official Bulletin, IX, 1924-25, 43; also VIII, 137. ¡bid., IX, 43-

AMENDMENT

TO P A R T

XIII

195

sidered as equivalent to ratification of the actual text voted by the conference. The Secretary-General added that members might ratify the amendment without previously signing the protocol. A number of ratifications were made in this manner.35 Twelve years passed before the required number of ratifications were deposited to effect the revision of Article 393 of the treaty. The changes in membership of the League Council produced delays and much opposition, since all States whose representatives compose the Council of the League of Nations are required to ratify amendments to Part XIII of the treaty.36 The amendment went into force on June 4, 1934, when the last ratification required had been registered on the eve of the reconstitution of the governing body at the International Labor Conference. At the eighteenth session of the conference the election of the members of the governing body took place in accord with the amended text of Article 393 of the Treaty of Versailles.37 35 International Labour Office, Official Bulletin, VII-X, for reports on the methods adopted by the various governments in ratifying the amendment to Article 393 of the treaty. 37 84 International Labour Office, Yearbook, «933. P- 8. Ibid., 1934, p. 7.

CHAPTER IX ASPECTS OF T R E A T Y BY

MODIFICATION

AMENDMENT

T H E procedure of amending Parts I and X I I I of the Treaty of Versailles differs considerably from the usual method of concluding international agreements. Certain delegates at the Peace Conference, in 1919, insisted that each application of the amending process, as stipulated in Article 26 especially, involved the "ratification of a treaty." 1 T h i s contention implied the necessity for adhering to the rule whereby each contracting State would be afforded an opportunity to register its consent to or dissent from the terms of a new agreement. T h e authors of the Covenant evidently viewed the experiment being launched as highly significant, and it was deemed indispensable for the success of the League to facilitate within reasonable limits the adoption of amendments to the original terms of the Covenant. Under the circumstances it was felt that it would be neither just nor prudent to permit the opposition of a f e w members to block a measure which might be regarded as an essential improvement by a majority of the League members. 2 Provision was made in the Covenant whereby all States members of the League would be bound by an amendment ratified by the prescribed number of powers, even though a member State might vote against the proposed amendment. T h e first paragraph of Article 26 dealt explicitly only with the number of ratifications required to amend the terms of the Covenant ; namely, all the members of the League whose representatives compose the Council and a majority of members whose representatives compose the Assembly. A dissatisfied State could escape the 1 2

Miller, Drafting the Covenant, I, 204. See supra, p. 44, n. 10. Records of Assembly, 1 9 2 1 , Committee No. I , p. 158.

MODIFICATION BY

AMENDMENT

197

provisions of such an amendment by formally registering its dissent. In this event the State would cease to be a member of the League. T h e second paragraph of Article 26 substituted this arrangement for the rule of unanimity in ratifying an amendment which might involve an additional obligation. The procedure of amending the Covenant as well as Part X I I I of the treaty, has been elaborated in practice and by the interpretations of doubtful points by special committees appointed by the Council and the Assembly. A n amendment may originate in a number of different ways. It may be submitted, orally or in writing, in an Assembly meeting, in a committee of the Assembly, or in a communication to the Secretariat of the League from the government of a State represented on the Council or the Assembly. After the proposal is submitted it is put on the agenda of the appropriate committee of the Assembly; usually the first committee on constitutional and legal questions, which has handled most of the suggestions for amending the Covenant. It may be postponed to a later date at the request of the agenda committee or by a vote of the Assembly. Most proposals of amendment, however, are referred to the first committee on constitutional and legal questions, which takes charge of their final drafting. A n amendment rejected by a committee may be brought before the Assembly by its proponent, and a vote on the question may be demanded. A n amendment approved in committee is reported to the Assembly where it is voted upon. If the committee recommends a delay in voting, the Assembly may postpone action for a year with the request that the Council make a special study of the proposed amendment and report to the Assembly at its next meeting. Examples of special committees of this type were the amendments committee appointed by the Council at the request of the Assembly, in 1921, 3 and the committee of eleven appointed, in 1930, to study the question of harmonizing the Covenant with 3

Ibid.,

Si f-

1920,

Plenary, p. 259. Minutes of the Twelfth

Session of the Council,

pp.

198

MODIFICATION BY AMENDMENT

the Pact of Paris. 4 Such committees usually refer draft amendments to the various governments for observations and comments. Different texts may be proposed, and different amendments may be suggested. These in turn are considered by the first committee of the following Assembly. T h e amendment of the Covenant involves two stages in the procedure: the first concerns the vote of the Assembly and the Council in adopting a resolution of amendment; the second relates to the ratification of the protocol of amendment by the governments. T h e form to be given to resolutions of amendment was given special consideration by the first committee of the Second Assembly/' In its recommendations to the Assembly the committee suggested that the amendment resolution adopted by the Assembly was not to be considered a draft convention to which the representatives of the member States must attach their signatures. It was desirable that amendments should take the form of acts emanating from the Assembly, the only body competent to vote on them. 6 T h e resolution of amendment would therefore derive its 4 Records of Assembly, 1928, Plenary, p. 9 1 ; ibid., 1929, pp. 168 f.; Official Journal, 1930, p. 1 0 1 ; Minutes of the Committee of Eleven, League of Nations, C. 160. M. 69. 1930. 5 League of Nations, A. 24 ( 1 ) 1 9 2 1 . V. p. 9. 6 Records of Assembly, 1 9 2 1 , Plenary, p. 7 1 3 . The form employed in drafting a resolution of amendment was as follows: "The . . . Assembly of the League of Nations, under the presidency of . . . assisted by . . . Secretary-General, adopted at its meeting of . . . the following resolution, being an amendment to Article . . . of the Covenant." Here follows the new text. "The undersigned, being duly authorised, declare that they accept, on behalf of the Members of the League which they represent, the above amendment. "The present protocol will remain open for signature by the Members of the League; it will be ratified, and the ratifications will be deposited as soon as possible with the Secretariat of the League. "It will come into force in accordance with the provisions of Article 26 of the Covenant. " A certified copy of the present protocol will be transmitted by the Secretary-General to all Members of the League. "Done at Geneva, on . . . in a single copy, of which the French and English texts are both authentic, and which will be kept in the archives of the Secretariat of the League. "President of the . . . Assemblj: Secretary-General: For: For: "

MODIFICATION BY AMENDMENT

199

legal significance from the fact that it had been voted by the Assembly and signed by the President of the Assembly and the Secretary-General of the League by virtue of the authority delegated to the League body by the powers consenting to the terms of the Covenant. 7 It is the Assembly's resolution, therefore, which is subject to ratification by the States, not a draft convention signed by their representatives. The representatives of certain States may vote against an amendment or abstain from voting, only to have their governments later proceed to ratification. Moreover, the vote of a delegate would not bind his State legally even though the representative might act under close instructions in the matter of signing a protocol. In many instances governments have authorized their representatives in the Assembly to sign a protocol of amendment and later have failed to ratify the same.8 It follows, therefore, that in ratifying a protocol of amendment a State approves, neither the vote of its delegates nor the signature of its plenipotentiary, but the action of the Assembly. It is evident from the nature of the amending process that a signature of a protocol of amendment by the representatives of powers which compose the Assembly is largely a matter of form, involving primarily a compliance with State constitutional laws. In order to avoid possible conflict with the laws of various States pertaining to treaty making the Second Assembly decided that amendments should take the form of protocols, embodying the resolution voted by the Assembly and signed by the President of the Assembly and the Secretary-General of the League. These instruments would be left open for signature by those plenipotentiaries who felt it expedient to sign or who were instructed to do so by their governments. 9 Such an arrangement would provide "the documentary basis for the ratification" provided for in Ar7

Ibid. League of Nations, Ratification of Agreements nex I. V, pp. 2 2 - 2 5 . 9 Records of Assembly, 1921, Plenary, p. 7 1 2 . 8

and Conventions,

A. 6 (a). 1938. An-

200

MODIFICATION BY

AMENDMENT

tide 26. 10 A n amendment is adopted in the form of a protocol to differentiate it from the usual resolutions of the Assembly. While the delegates of most States sign the protocols, there are numerous exceptions to the rule. The protocol of amendment to Article 4 entered into force on July 29, 1926. Three years later, September 2,1929, Belgium, Brazil, Portugal, Salvador, Spain, and Uruguay had ratified the protocol without signing, while Bolivia, Colombia, Costa Rica, Panama, Paraguay, and Persia had signed but had not ratified the protocol. 11 The protocol of amendment to Article 6 came into force on August 13, 1924. Five years later there were four States which had ratified without signing the protocol and six States which had signed but had not proceeded to ratification. The protocol of amendment to Article 12 came into force on September 26, 1924. Five years later eight States had ratified the protocol without signature, while six States had signed without ratifying. 1 2 There was no objection on the part of the Secretary-General to the deposit of ratifications relating to an amendment already in force, for the reason that forbidding such ratifications, even after a considerable lapse of time, would result in compelling the States concerned to leave the League against their will. H o w were the members of the League to vote on the amendment? A formula was adopted which represented a compromise of the positions taken by various members on the question of the number of votes required to adopt a resolution of amendment. T h e first paragraph of Article 26 made provision for ratifications only. The members whose representatives compose the Council and a majority of those whose representatives compose the As10

League of Nations, A. 24 ( 1 ) . 1921. V, p. 9. Official Journal, 1929, p. 1828. Under an opinion of the Secretary-General ratification was permissible without signature. He stated that "It will therefore be seen that while the Protocol is open to signature and ratification by Members of the League, Members which do not desire to sign the Protocol may communicate to the Secretary-General their ratification of the Resolution." League of Nations, Document, C. L. 160. 1924. V. 12 Official Journal, 1929, pp. 1830 f. Similar conditions prevailed in cases of Articles 13 and 15 of the Covenant. 11

MODIFICATION BY AMENDMENT

201

sembly were required to ratify a protocol of amendment to bring it into force. There was no indication here of an intent on the part of the authors of the Covenant to apply the same rule in voting on amendments. Some members of the League contended that the rule of unanimity was required in voting on an amendment in view of the provision in Article 5 of the Covenant, which stipulated that, except where otherwise expressly provided for in the Covenant, decisions of the Assembly shall require the agreement of all the members of the League represented at the meeting. Since Article 26 provides for only a majority of ratifications, not for the adoption of an amendment by a majority vote, it was argued that the rule of unanimity in Article 5 should apply. In answer to this interpretation of Article 26 it was stated in the report of the first committee of the Second Assembly that "resolutions amending the Covenant are in no sense decisions within the meaning of Article 5, since they entirely lack binding force, and, moreover, the coming into force of amendments is subject to their ratification by a certain number of States as provided in Article 26." 1 3 Decisions of the Assembly as such never require ratification unless a wish to the contrary is formally expressed. If ratification of decisions were necessary they would not be strictly speaking decisions, but draft resolutions. It was necessary to avoid confusing Article 5, which imposed unanimity of vote for decisions, and Article 26, which required a majority of ratifications by the governments represented in the Assembly. Others expressed the opinion that the clause in Article 26 which was intended to make amendments possible in practice must be understood to apply both to the vote and to the ratification of amendments. After careful examination of the official pronouncements of officials who participated in drafting the Covenant and of government interpretations of Article 26,14 the first committee concluded that amendments could be adopted by a majority vote, 13 14

Records of Assembly, 1 9 2 1 , Committee No. 1, p. 183. For official pronouncements regarding the meaning of Article 26, ibid., pp. 159 f.

202

MODIFICATION BY

AMENDMENT

but that it would be advisable to make it a three-fourths majority of the votes cast in the Assembly. A recommendation to this effect was adopted by the Second Assembly in the following terms: T h e Assembly recommends to the delegations that no resolution of amendment shall be passed during this session unless it receives a threefourths majority, in which there shall be included the votes of all the Members of the Council represented at the m e e t i n g . 1 5

This recommendation was adopted unanimously by a vote of thirty-seven with fourteen members abstaining from voting and considered as not present. T h e suggestion that the votes of all the members of the Council represented at the meeting should be included in the Assembly votes terminated a controversy over the question whether the Council and the Assembly could vote separately. 16 It seemed unnecessary to have the Council and the Assembly discuss the same question simultaneously and to require the governments participating in the Council and in the Assembly to duplicate their presentation of materials and discussions. Since there was no provision in the rule of procedure for fixing a quorum of the Assembly for voting on such measures, it was necessary to assure a good attendance when a vote was to be taken. Otherwise a small number of members could adopt a proposed amendment in view of rule 19 of the rules of procedure which stated that "representatives who abstain from voting shall be considered as not present." In order to facilitate the voting and ratification by the States the committee agreed to propose to the Assembly sion of certain resolutions of amendments. This would possible for States to accept certain clauses while wishing others in the proposed amendment. 17

member the divimake it to reject

What was to be the relationship between nonratifying States and amendments which had entered into force ? In such cases it 15 17

Ibid., Plenary, pp. 732 f. Ibid., Plenary, pp. 676 f.

16

Ibid., Committee No. 1, p. 162.

MODIFICATION BY AMENDMENT

203

would seem that lack of formal action on the part of a member State would be taken as a tacit acceptance of the amendment. If the State failed to announce its dissent and remained a member of the League, it was assumed to be willing to abide by the provisions of the new arrangement. W e have seen that a number of States have failed to ratify amendments and yet continued their membership in the League after the protocol of amendment had received the required number of ratifications and was declared in force. A definite expression of consent would hardly seem necessary. That expression of consent had already been given by the ratifications of the original agreement embodied in the Covenant. By its terms member States agreed in advance to accept as obligatory all amendments duly adopted and ratified unless they signified their dissent. Otherwise they would seem to be bound by the terms of all amendments regardless of whether or not they formally expressed their consent. The English text of Article 26 provides that if members are not to be bound by an amendment which has come into force, they must signify their dissent. The French text merely indicates that members are free to dissent from amendments to the Covenant and says nothing about any duty to signify such dissent.18 Failure to ratify an amendment or to register a dissent may indicate that a State, although opposed to the change, finds the inconvenience of respecting the amendment less serious than withdrawing from the League. In a large body, such as the Assembly of the League, opposition to amendments will not always be inspired by the same motives. Governments may be unconvinced as to the opportuneness or urgency of any particular amendment put forward, or they may elect to postpone an alteration in the Covenant in order to avoid a withdrawal of dissatisfied States.19 The considerations which prompted the authors of the Covenant to adopt provisions for amending Part I were responsible for 18

League of Nations, A. 24 (1), 1921. V, p. 6.

19

Records of Assembly, 1921, Committee No. i , p. i6r.

204

MODIFICATION BY

AMENDMENT

the acceptance of similar stipulations for modifying the constitution of the International Labor Organization, Part XIII of the treaty. Article 422 of Part XIII was admittedly based on Article 26 of the League Covenant. While the initiative as regards amendments to Part XIII was left with the International Labor Conference, ratification of amendments by all the governments represented on the Council and three-fourths of those represented in the Assembly of the League was required before amendments would enter into force. In this latter respect the procedure is more difficult than that prescribed in Article 26 where a majority were required to ratify. The constitution of the International Labor Organization has been amended only once. We do not have the records of State practice and discussions bearing upon the application of Article 422 such as we have for Article 26 of the treaty. The formula adopted in the two articles provided a means of revising Parts I and XIII but burdened the members of the League and of the International Labor Organization with serious difficulties relating to procedure in carrying out the treaty provisions.

CHAPTER X REVISIONS OF P A R T VIII: REPARATION C H A N G E S in the terms of Part VIII of the Treaty of Versailles fall into two general divisions: first, the revisions introduced in accord with paragraph 22 of Annex II to Part VIII, which stipulated that the provisions in this annex could be amended by the unanimous decision of the governments represented from time to time upon the Reparation Commission; second, the new agreements negotiated by certain Allied Powers and Germany for the purpose of revising the entire scheme of the reparation settlement originally set forth in Part VIII—especially the Dawes Plan, the Young Plan, and the Lausanne Agreement. The method employed in dealing with these treaty changes has been to summarize briefly the conditions which gave rise to the revisions in order to clarify the terms of the new provisions. MODIFICATIONS UNDER P A R A G R A P H 2 2 OF A N N E X

II

The Reparation Commission formally came into existence on the putting into force of the Treaty of Versailles, on January 10, 1920. The main duty of the commission established under the terms of the treaty was the administration of the provisions in Part VIII. 1 The work of the commission really began some months earlier with the institution by the Peace Conference of the organization committee of the Reparation Commission. The first function of this committee was to draw up a scheme of organization 1 The commission was responsible, in addition, for the administration of the reparation chapters of the Treaty of St. Germain with Austria, the Treaty of Trianon with Hungary, and the Treaty of Neuilly with Bulgaria. For a list of the most important duties imposed by the treaties upon the Reparation Commission see Reparation Commission, V. Report on the Work, of the Reparation Commission from 1920 to 7922 (London, 1923), pp. 4-9; also Appendix I, pp. 172 ff.

2O6

REVISIONS OF PART VIII

which had been left untouched by the provisions of the peace treaty. 2 T h e committee also devoted much time to the study of some of the questions with which the Reparation Commission would be called upon to deal at an early date. During the period between the coming into force of the Treaty of Versailles, on January 10, 1920, and April 30, 1921, the Reparation Commission had two main tasks to perform: First, it had to establish the total of the damages inflicted by Germany and to make known the total of Allied claims by May 1, 1921. Second, it was responsible, under the terms of Article 235 of the treaty, for the collection as a first installment of the reparation due f r o m Germany of cash and commodities to the value of twenty billion gold marks. 3 T o enable the Allied and Associated Powers to proceed at once to the restoration of their industrial and economic life, pending the full determination of their claims, Germany was required to pay during 1919, 1920, and the first four months of 1921 the equivalent of the above amount in such manner (gold, commodities, ships, and securities) as the Reparation Commission might designate. 2 The treaty went no further with the problem of organization than to provide for the appointment of delegates and assistant delegates to represent the United States, Great Britain, France, Italy, Japan, Belgium, and the Serb-Croat-Slovene State, for the appointment of assessor delegates to represent other Allied and Associated Powers, for the constitution of the permanent bureau of the commission in Paris, and for certain rules governing the discussions and the methods of voting of the commission. In the preparation of a document such as the Treaty of Versailles it was impossible to foresee the numerous difficulties which would arise or to guard against the occurrence of textual difficulties and obscurities which could only be discovered in the process of execution. 3 T h e English text of Article 2 3 5 is as follows: " I n order to enable the Allied and Associated Powers to proceed at once to the restoration of their industrial and economic life, pending the full determination of their claims, Germany shall pay in such instalments and in such manner (whether in gold, commodities, ships, securities or otherwise) as the Reparation Commission may fix, during 1 9 1 9 , 1920 and the first four months of 1 9 2 1 , the equivalent of 20,000,000,000 gold marks. Out of this sum the expenses of the armies of occupation subsequent to the Armistice of November 1 1 , 1 9 1 8 , shall first be met, and such supplies of food and raw materials as may be judged by the Governments of the Principal Allied and Associated Powers to be essential to enable Germany to meet her obligations for reparation may also, with the approval of the said Governments, be paid for out of the above sum. T h e balance shall be reckoned towards liquidation of the amounts due for reparation. Germany shall further deposit bonds as prescribed in paragraph 1 2 (c) of Annex II hereto."

REVISIONS OF PART VIII

207

The first difficulty emerged in the days of the organization committee before the coming into force of the treaty. It arose out of a consideration of the use to which Germany might put her securities which did not fall within the requirements of Articles 260 and 297/ While these two provisions together affected a considerable proportion of the foreign securities held by Germany, there remained a certain amount of securities which constituted the most suitable form of wealth for the payment of reparation. Since these securities were easily transferable and, therefore, easily dissipated, the Principal Allied Powers sought to ascertain whether the Reparation Commission had the right to require Germany to hand over, in addition to payments she was to make under other provisions of the treaty, securities in full or part settlement of the twenty billion gold marks scheduled for payment under Article 235-

The question was referred to the organization committee's legal advisers. The commission, on taking up the question soon after its constitution, found itself faced with a majority and a minority opinion from its advisers.5 The difference of opinion disclosed by the legal advisers was reproduced in the commission itself. The question was one of interpretation, and under paragraph 13 ( f ) of Annex II to Part VIII unanimity was necessary for "the interpretation of the provisions of this Part of the present Treaty." Consequently the commission could not interpret the treaty either as giving them the right to demand that Germany should hand over securities not specifically allocated by the treaty to other purposes or as requiring Germany to pay twenty billion gold marks in excess of deliveries in kind. This controversy revealed the neces4 Under Article 260 the Reparation Commission could demand the transfer of "any rights and interests of German nationals in any public utility undertaking or in any concession operating in Russia, China, Turkey, Austria, Hungary and Bulgaria . . . or in any territory formerly belonging to Germany or her allies to be ceded by Germany or her allies to any Power or to be administered by a Mandatory" under the treaty. Article 297 made the property of German nationals within the territory or under the control of an Allied country available for die compensation of damages to Allied property in Germany. s For a summary of the views put forth in the majority and minority reports see Reparation Commission, op. at., Appendix IV, p. 182; Appendix V, p. 184.

208

REVISIONS OF PART VIII

sity for an amendment to Annex II whereby differences of opinion between the members of the Reparation Commission on the interpretation of the provisions of this part of the treaty could be submitted to arbitration. T h e adoption of such an amendment by the governments represented on the commission is treated below in this chapter. T h e commission sought an immediate escape f r o m the difficulty relating to treaty interpretation by notifying Germany that she should immediately take the necessary steps to meet her obligations. At the same time the commission requested the German government to make known its plans for fulfilling the requirements of Article 235. A t this juncture the Allied governments met in a series of conferences, 6 endeavoring to find a reparation settlement along lines other than those laid down by the Treaty of Versailles and consequently outside the Reparation Commission's authority. 7

The

underlying problem of reparation was not solved at these conferences. Neither were they successful in circumventing the difficulties attending the execution of Article 235. Germany had contended that all the payments, deliveries, and cessions applied

to the reparation

account were

also to be

credited to her under Article 235. She presented an excessive valuation of the payments made (later recognized as excessive by the German government) and claimed the whole of the twenty billion gold marks had been delivered. T h e prolonged controversy involving the Allied Powers, the Reparation Commission, and Germany prompted the commission to declare Germany in default in respect of her obligations under Article 235 of the treaty to the extent of twelve billion gold marks. T h e default was notified to Germany on May 3, 1921. This decision taken by the Reparation Commission automati6

Conferences were held in London, February-March, 1920; Boulogne, June 21-22, 1920; and later at Spa, July 5 - 1 6 , 1920. For list of international conferences sec Toynbee, Survey 1920-23, pp. 1 if.; Reparation Commission, op. at., p. 14. 7 Reparation Commission, op. at., p. 14.

REVISIONS OF PART VIII

209

cally transferred the question to the Allied governments under paragraphs 1 7 and 18 of A n n e x II to Part VIII. T h e Allied governments represented on the commission met in London to consider the problems raised by Germany's failure to make payments. T h e situation called for the drafting of new plans for future reparation payments. T h e members of the Reparation Commission were called to London to receive a draft schedule of payments already agreed upon by the interested governments. This draft was formally adopted by the commission and notified to Germany on May 5, 1921, together with an ultimatum f r o m the Allied governments. In their communication the Allied Powers notified Germany of their decision on three important matters: first, the immediate initiation of preparatory measures for the occupation of the R u h r ; second, the adoption of the new schedule of payments which prescribed the time and manner for discharging the entire reparation obligation by Germany under Articles 2 3 1 - 3 3 of the treaty;

8

third, the requirement that the German government undertake within six days of the receipt of the ultimatum to make payments and to furnish the guarantees demanded by the Reparation Commission. On May 1 1 , Germany accepted the terms of the Allied ultimatum and thereby placed the reparation question on a new basis—the schedule of payments. During the London conference a special protocol was signed, on May 5, 1921, by the Principal Allied Powers and Belgium providing for the amending of A n n e x II of the reparation chapter. A t least three changes were effected in the original treaty arrangements by this amendment: ( a ) the provisions for a new bond issue by Germany under the new schedule of payments, ( b ) the establishment of a committee of guarantee, and (c) the arrangement for special agreements between Germany and an Allied Power for the delivery of materials for the restoration of devastated areas. 8 Reparation Commission. III. Official Documents relative to the Amount of Payments to Be Effected by Germany under Reparations Account. Vol. I, May I, 1920-July 1 , 1922 (London, 1922), pp. 4 ff.

210

REVISIONS OF PART Vili

The original stipulation in paragraph 12 (c) of Annex II called for Germany to deliver to the Reparation Commission twentybillion-mark gold bearer bonds payable not later than May 1, 1 9 2 1 ; a second issue of forty-billion-mark gold bearer bonds with special interest charges; and a pledge to issue a third series of forty-billion-mark gold bearer bonds when called upon by the commission. 9 The amendment to Annex II of Part V I I I of the treaty, approved by the Supreme Council in the form of an additional paragraph 1 2 A , modified the scheme for Germany's delivery of bonds. Article 2 of the schedule of payments stipulated that Germany should "create and deliver to the Commission in substitution for bonds already delivered or deliverable under paragraph 12 (c) of Annex II of Part V I I I (Reparation) . . . the bonds hereafter described": Series A , "Bonds for an amount of 12 milliards gold marks"; Series B, "Bonds for a further amount of 38 milliards gold marks"; Series C, "Bonds for 82 milliards of gold marks, subject to each subsequent adjustment by creation or cancellation of bonds as may be required under Article ( 1 ) . " 1 0 The Reparation Commission was given power to require Germany to assign certain revenues and assets to service the bonds. It also gave power to a committee of guarantee to be appointed by the Reparation Commission to supervise the application of the assigned revenues and prescribe the dates and manner of payment of sums due to the service of the bonds or other payments in respect of the German debt. 1 1 Provision for the committee of guarantee was made, not in the original text of the Treaty of Versailles, but in the above amendment to Annex II of the reparation chapter. The provisions for the committee were embodied in and made operative by Articles 6 and 7 of the schedule of payments. Article 6 of the schedule read 9

Paragraph 12, Annex II, Part VIII of the treaty. For the full statement of the provisions under the above headings see "Schedule of Payments Prescribing the Time and Manner for Securing and Discharging the entire Obligation of Germany for Reparation under Articles 2 3 1 , 232 and 233 of the Treaty of Versailles." Reparation Commission, III. Official Documents, I, 4-9. 11 Reparation Commission, V. Report 1920-1922, p. 147. 10

REVISIONS OF PART VIII

211

as follows: " T h e Commission will within 25 days from this notification, in accordancc with paragraph 1 2 A (d), Annex II of the Treaty as amended, establish the special Sub-Commission to be called the Committee of Guarantees." 1 2 Article 7 of the schedule further charged the committee with the duty of securing the application of Articles 241 and 248 of the treaty. 13 Additional functions were assigned by the Reparation Commission under Articles 241 and 248 and paragraph 1 2 (b) of Annex II. 1 4 The committee of guarantees was set up by the Reparation Commission on May 27, 1921. It was composed of representatives of Great Britain, France, Italy, and Belgium. T h e new schedule of payments and the protocol amending Annex II provided for a much closer supervision over German internal affairs than the Reparation Commission had imposed upon Germany during the first period of the reparation controversy. T h e schedule of payments, while replacing the requirements in Article 235 of the treaty, took no notice of the prior claims on German payments which had to be satisfied before reparation accounts were payable. Article 8 of the schedule of payments allowed for separate arrangements between Germany and an Allied Power for deliveries of materials for the restoration of devastated areas. The provision in this article read: In accordance with paragraph 9 (2) of Annex II as amended Germany shall on demand, subject to the prior approval of the Commission, provide such material and labour as any of the Allied Powers may require towards the restoration of the devastated areas of that Power, or to enable any Allied Power to proceed with the restoration or development of its industrial or economic life. T h e value of such material and 12

Reparation Commission, III. Official Documents, I, 7. Ibid. 14 In Annex II paragraph 12 (b) the commission was charged with the duty, in periodically estimating Germany's capacity to pay, of examining "the German system of taxation" with a view to maintaining priority for treaty charges over the servicc of internal loans and to make certain that the German scheme of taxation was at least as heavy as that of any of the powers represented on the commission. 13

212

REVISIONS OF PART VIII

labour shall be determined in each case by a valuer appointed by Germany and a valuer appointed by the Power concerned, and, in default of agreement by a referee nominated by the Commission. This provision as to valuation does not apply to deliveries under Annexes, III, IV, V , and V I to Part VIII of the Treaty. 1 5 T h e French government negotiated an agreement with Germ a n y , w h i c h was signed at Wiesbaden, G e r m a n y , on October 6, 1921, providing for deliveries of materials required for the restoration of the devastated regions of France. 1 6 T h e Wiesbaden agreement introduced n e w features in the arrangement for reparation payments. Paragraph 19 of A n n e x II to Part V I I I of the treaty required G e r m a n y to m a k e payments in gold or its equivalent on account of the proved claims of the creditor powers; the same to be received by the Reparation C o m m i s sion in the f o r m of chattels, properties, and commodities. A n n e x I V to Part V I I I of the treaty likewise required G e r m a n y to devote her economic resources directly to the physical restoration of the invaded areas of the Allied and Associated Powers, w i t h the commission authorized to supervise or to regulate such transfers by G e r m a n y . T h e Wiesbaden agreement arranged for the direct reconstruction of the French devastated areas through deliveries of G e r m a n plant and materials by means of private contracts entered into by private concerns. Article I of the Wiesbaden agreement provided: " T h e r e shall be f o r m e d in G e r m a n y an

organisme

de droit privé for the delivery of plant and materials that may be required by the French sinistrés grouped in a manner to be determined later by the French Government."

17

T h e G e r m a n pri-

vate company was to be reimbursed for its deliveries by the 15

See Schedule of Payments, Reparation C o m m i s s i o n , III. Official

Documents,

19

Reparation C o m m i s s i o n , II. Agreements

in Kind

by Germany 17

Ibid.,

under the heading

of Reparations

concerning

Deliveries

I, 8. to Be

Made

( L o n d o n , 1 9 2 2 ) , pp. 3 ff.

p. 4. T h e arrangement for private concerns to handle deliveries in k i n d tended

to eliminate the delays w h i c h m a r k e d the political adjustments on these matters. u n d e r l y i n g reason for the use of the French sinistrés 1 7 , 1 9 1 9 , w h e r e b y the sinistrés

The

w a s f o u n d in the F r e n c h l a w of April

w e r e safeguarded against any definite utilization of their

f u n d s in the f o r m of reparation for w a r d a m a g e s . By m a k i n g t h e m a party to the contract w i t h the private G e r m a n concern this legal requirement w o u l d be m e t .

REVISIONS OF PART VIII

213

German government and the value of such deliveries would in time be debited to France on account of her share of reparation. A model contract was annexed to the Wiesbaden agreement. Under Article 2 of this model contract the valuation of plant and materials to be delivered by the German organisme de droit privé was to be made by a commission of three members: one French, one German, and a third to be selected by common agreement between the French and German governments, or in case of their failure to agree upon a third member of the commission the choice would be made by the President of the Swiss Confederation. This commission was to settle all questions of prices in accordance with conditions laid down in the contract.18 Paragraph 5 of Annex IV to Part VIII of the treaty stated that: The Commission [Reparation] shall determine the value to be attributed to the materials, articles and animals to be delivered in accordance with the foregoing, and the Allied or Associated Power receiving the same agrees to be charged with such value, and the amount thereof shall be treated as a payment by Germany to be divided in accordance with Article 237 of this Part of the present Treaty.

The Wiesbaden agreement departed from the original treaty arrangement by introducing the following changes : First, a special committee was authorized by the agreement to fix the value of materials to be delivered by the German concern to the French sinistrés in place of the Reparation Commission which had been designated for this function in the treaty. This new commission would also pass upon the question of Germany's capacity to satisfy the French requirements. The Reparation Commission was authorized to perform a similar function under the original treaty arrangement. Second, the special agreement provided for a system of deferred credits to Germany on reparation accounts for the deliveries actually effected. The schedule of payments had imposed added financial burdens upon Germany. The addition of the 18

p. 7.

See Article II of the Wiesbaden agreement, Reparation Commission, II.

Agreements,

214

REVISIONS OF PART VIII

Wiesbaden agreement made the financial obligations much heavier. It also gave France a priority in receipt of reparation payments for which there was no treaty provision or Allied consent. Under the Spa agreement France was to receive 52 percent of the total reparation payments made by Germany in a given year. France would receive more than 52 percent of the total deliveries and payments by Germany under the schedule of payments and the Wiesbaden agreement. The Franco-German arrangement provided that immediate credit was in no case to be given to Germany in any one year in excess of 45 percent of the value of deliveries, providing the total amount was less than one billion marks, or for more than 35 percent of the total value if it exceeded a billion marks. This meant that 55 percent, and perhaps 65 percent, of the value of the Wiesbaden deliveries would be carried in a deferred account, no part of which would be debited to France before May 1, 1926. By deferring a large part of the value for new deliveries, France would not exceed her allotment of the total reparation payments so far as the records would show. Actually France would exceed her proportionate share of German payments and deliveries. 10 In a report on its work from 1920 to 1922 the Reparation Commission pointed out that the Wiesbaden agreement eliminated the operation of a number of provisions in the Treaty of Versailles. T h e commission transmitted copies of the agreement to the creditor powers with the following announcement: While approving of the general principles underlying the arrangement, the commission considered that "the agreement involves certain departures from the provisions of Part VIII of the Treaty of Versailles, notably Article 237, paragraphs 12 and 19 of Annex II and paragraph 5 of Annex IV." 20 As the commission had no power to authorize such departures, it decided to refer the question to the governments represented on the Reparation Commission, recommending 19

Ibid., Article VII, p. 6.

20

Am. /. /. L., Supplement,

1922, XVI, 228.

REVISIONS OF PART VIII

215

a favorable examination of the questions involved. T h e Allied governments represented on the commission received the commission's communication on October 20, 1921. They did not give their approval of the Wiesbaden agreement, however, until March 1 1 , 1922, 21 when the Franco-German settlement was endorsed in a special financial agreement signed in Paris by the representatives of Great Britain, France, Italy, Japan, and Belgium. Under Article 5 of the financial agreement the signatory powers consented that there should be put into operation, subject to the approval of the Reparation Commission, agreements for deliveries in kind similar to the Wiesbaden agreement, which may be concluded by any power participating in reparation, provided that the value of the deliveries in kind effected in virtue of Annexes II—VI to Part V I I I of the treaty should not exceed in the aggregate their 35 percent of German deliveries in kind for 1 9 2 2 . " Article 8 of the schedule of payments adopted as a part of an amendment to Annex II, on May 5, 1921, the Wiesbaden agreement accepted by France and Germany on October 6, 1921, and the special financial agreement of March 1 1 , 1922, effected the changes in the reparation provisions as stated in the preceding paragraphs. Additional amendments to Annex II were provided for in agreements drawn up by the governments represented on the Reparation Commission during August and November, 1924. 23 T h e amendments provided for the representation of the United States on the Reparation Commission when special matters pertaining to the Dawes Plan were being considered, the safeguarding of Allied interests in case of default by Germany under the new agreement adopted at London in 1924, and the arbitration of dis21 22 Ibid., p. 229. Ibid., p. 233. -3 Infra, p. 219, the Dawes Plan; Great Britain, Treaty Scries No. 36 (1924), (4) "The Agreement between the Governments represented on the Reparation Commission to modify Annex IT to Part VIII of the Treaty of Versailles" (London, August 30, 1924). See also Great Britain, Treaty Series No. 5 ( 1 9 2 5 ) , "Protocol Amending Paragraph 13 of Annex II to Part VIII. . . ." (Paris, November 22, 1924).

2l6

REVISIONS OF PART VIII

putes pertaining to the interpretation of the stipulations in A n n e x II to Part V I I I of the treaty. T h e adoption of the plan for reparation payments drawn up by the Dawes commission made it necessary for the governments represented on the Reparation Commission to amend Annex II in order to harmonize the original treaty terms with the provisions in the new contractual arrangements. In a separate agreement of August 30, 1924, the governments of Belgium, France, Great Britain, Italy, Japan, and the Serb-Croat-Slovene State, acting under paragraph 22 of A n n e x II, unanimously decided to modify the terms of the original provisions by the introduction of the following paragraphs 2 A and 16 A and by the amendment of paragraph 17 as set out below: Paragraph 2A. When the Reparation Commission is deliberating on any point relating to the report presented on April 9,1924, to the Reparation Commission by the First Committee of Experts appointed by it on November 30, 1923, a citizen of the United States of America appointed as provided below shall take part in the discussions and shall vote as if he had been appointed in virtue of Paragraph 2 of the present Annex. The American citizen shall be appointed by unanimous vote of the Reparation Commission within thirty days after the adoption of this amendment. In the event of the Reparation Commission not being unanimous, the appointment shall be made by the President for the time being of the Permanent Court of International Justice at The Hague. The person appointed shall hold office for five years, and may be re-appointed. In the event of any vacancy the same procedure shall apply to the appointment of a successor. Provided always that if the United States of America are officially represented by a delegate on the Reparation Commission, any American citizen appointed under the provisions of this paragraph shall cease to hold office and no fresh appointment under these provisions shall be made as long as the United States are so officially represented. Paragraph 16A. In the event of any application that Germany be declared in default in any of the obligations contained either in this part of the present Treaty as put into force on January 10, 1920, and subsequently amended in virtue of Paragraph 22 of the present Annex, or

REVISIONS OF PART VIII

217

in the Experts' Plan dated April 9,1924, it will be the duty of the Reparation Commission to come to a decision thereon. If the decision of the Reparation Commission granting or rejecting such application has been taken by a majority, any member of the Reparation Commission who has participated in the vote may within eight days from the date of the said decision appeal from that decision to an arbitral commission composed of three impartial and independent persons whose decision shall be final. The members of the arbitral commission shall be appointed for five years by the Reparation Commission deciding by a unanimous vote, or failing unanimity by the President for the time being of the Permanent Court of International Justice at The Hague. At the end of the five-year period or in case of vacancies arising during such period the same procedure will be followed as in the case of the first appointments. The president of the arbitral commission shall be a citizen of the United States of America. Paragraph 17. If a default by Germany is established under the foregoing conditions, the Commission will forthwith give notice of such default to each of the interested Powers and may make such recommendations as to the action to be taken in consequence of such default as it may think necessary.24 T h e action taken by the governments represented on the commission in amending the terms of Annex II gave rise to a controversy over the extent of the power to be exercised by these governments. Germany was not requested to sign the agreement effecting the changes listed above. She contended that the modification of Annex II to Part VIII of the treaty, as a result of the London agreement exceeded the authority of amendment reserved to the Allied governments in paragraph 22 of Annex II. Germany objected to what she considered the exercise of an unprecedented power by which a f e w signatory powers were entitled to modify the terms of the agreement without the concurrence of the other contracting powers. The agreement unanimously adopted by the governments of Belgium, France, Great Britain, Italy, Japan, and the Serb-CroatSlovene State was in accord with the terms of paragraph 22 of 24

Reparation C o m m i s s i o n , X I V . Official

Documents

(Paris, 1 9 2 6 ) , pp. 1 5 6 - 6 0 .

2l8

REVISIONS OF PART VIII

Annex II, whereby the authority to amend the provisions in this annex was granted to the States represented on the Reparation Commission from time to time. Under the original terms of the treaty, Germany as a signatory power was obligated to abide by the decisions taken by the six governments as members of the commission. On the occasion of the dispute between the members of the Reparation Commission over the interpretation of Article 235 of the treaty, 25 it was evident that provision would have to be made for the arbitration of such differences of opinion. As early as August 13, 1921, the Supreme Council approved the adoption of an arbitration clause to be added to the terms of Annex II to Part VIII. The following draft of the proposed amendment was submitted for approval: In case of differences of opinion between the Delegates on the interpretation of the stipulations of this part of the present Treaty, the question will be submitted by the unanimous agreement of the Delegates to arbitration. T h e Arbitrator will be selected unanimously by all the Delegates or in default of unanimity will be nominated by the Council of the L e a g u e of Nations. T h e finding of the Arbitrator will be binding on all the interested parties. 28

The final steps required to effect this change were not taken at this time. The governments represented on the Reparation Commission did not adopt an amendment to Annex II providing for the arbitration of disputes over the interpretation of this part of the treaty until November 22, 1924. 27 In the meantime the powers had met in London to adopt the Dawes Plan. The London agreement of August 30, 1924, made special provision for the arbitration of disputes arising over the interpretation of the provisions of the Dawes Plan. 28 The protocol amending paragraph 13 of 25

26 Supra, pp. 208 f. Reparation Commission, Report 1920-1922, p. 13 n. Great Britain, Treaty Series No. 5 (1925). 28 See Clause I of the London Agreement of August 30, 1924, for provision for arbitrating disputes over the interpretation of the clauses of the Dawes Plan. Reparation Commission, XIV. Official Documents, pp. 143 f. 27

REVISIONS OF PART VIII

219

Annex II to Part VIII of the Treaty of Versailles and providing for arbitration was signed at Paris, November 22, 1924, by the governments represented on the Reparation Commission. The governments of France, Great Britain, Italy, Japan, Belgium, and the Serb-Croat-Slovene State, unanimously decided that the following words should be added to paragraph (/) of section 13 of Annex II: In case of difference of opinion between the delegates as to the interpretation of this part of the present treaty, the question may be submitted to arbitration by a unanimous agreement of the delegates. T h e arbitrator must be chosen unanimously by all the delegates, or, failing such an agreement, nominated by the Council of the League of Nations. T h e award of the arbitrator shall be binding on all the interested parties. 29

T h e text of the original draft of the amendment to Annex II was altered slightly in the protocol signed November 22, 1924. With the adoption of the Dawes Plan the handling of the reparation problem was assigned to agencies which tended to replace the Reparation Commission. Following the adoption of the experts' plan in London, on August 30, 1924, the changes effected in the terms of Part VIII of the Treaty of Versailles were in the form of fresh agreements negotiated outside the provisions in the treaty for modifying the original arrangements. The protocol of November 22, referred to above, was the final action of the governments represented on the Reparation Commission in amending the provisions in Annex II to Part VIII. T h e modifications effected by amendments were of secondary importance so far as the basic requirements of solving the reparation problems were concerned. They were significant, however, from the standpoint of the authority exercised by six States in modifying the original terms of the Treaty of Versailles. The acceptance by the signatory powers of the treaty provisions for modifying Annex II precluded any objection that might be raised by a 29

Great Britain, Treaty Series No. 5 ( 1 9 2 5 ) , p. 2.

220

R E V I S I O N S OF P A R T

VIII

contracting State concerning the revisory authority exercised by powers represented on the Reparation Commission. AGREEMENTS N O T SPECIFICALLY

AUTHORIZED

BY THE T R E A T Y THE DAWES PLAN

Revisions of the terms of Part VIII of the Treaty of Versailles by new agreements drawn up by a few signatory powers, without reference to or the authorization of any treaty provision, constitute the most important changes effected by the contracting parties. Prior to 1924 several attempts were made by the Principal Allied Powers to find a solution of the reparation problems outside the treaty stipulations.30 During the three years or more of Allied efforts to enforce and amend the reparation provisions of the treaty the economic, financial, and political conditions of Europe were becoming more ominous. Something more radical than amending Annex II to Part VIII had to be undertaken. The demand for French security against the threat of German revanche, the financial burden of restoring France's devastated regions, and the challenge of a Russo-German rapprochement, contributed to France's decision to use force in order to penalize Germany for her delinquency in making reparation payments and, perhaps, to compel a greater effort on Germany's part to fulfill the treaty requirements. Whatever the purpose may have been, the French policy of force contributed to the developments which 30 In their reply of June 16, 1 9 1 9 , to the German observations on the conditions of peace the Allied governments made a special offer to consider the settlement of Germany's reparation liability in a lump sum. In 1 9 2 0 the Allied governments endeavored in a series of conferences to seek the basis of a reparation settlement along lines other than those laid down in the Treaty of Versailles, and consequendy outside the jurisdiction of the Reparation Commission. These successive meetings aimed at a general solution which would have circumvented the difficulties attending the execution of various treaty provisions. Failure to solve the underlying problem of reparation outside the treaty program forced the Allied Powers to attempt an adjustment through amendments and adherence to treaty arrangements for effecting changes. By 1924 the European situation was so critical that they were forced to adopt more practical means of dealing with the reparation problems.

REVISIONS OF PART VIII

221

later compelled the creditor States to negotiate a new agreement for the handling of reparations. On the initiative of the French government the Reparation Commission announced, on December 26,1922, that the failure of the German government to deliver the required amount of timber for 1922 constituted a willful default by Germany under paragraph 17 of Annex II. The Allied governments had reserved under paragraph 18 of Annex II, Part VIII of the treaty, the right to invoke economic and financial prohibitions and reprisals and such other measures as the respective governments might determine to be necessary in the circumstances. On the grounds of the decision taken by the Reparation Commission the French and Belgian troops occupied the Ruhr metallurgical region of Germany on January 11,1923. 3 1 The cessation of a more serious economic crisis throughout Europe followed the occupation. Negotiations were opened shortly after the French invasion of the Ruhr with the hope of finding a compromise formula which would be acceptable to France and Belgium as well as to Germany. The creditor powers were unable to agree upon a workable plan. The political deadlock prompted the British leaders to turn to the United States with the hope that the American government would assist in solving the problem of intergovernmental debts. The British note of October 12, 1923, was prompted in part by a suggestion made by Charles Evans Hughes, Secretary of State, in an address delivered at New Haven, Connecticut, December 29, 1922.32 Secretary Hughes's suggestion concerning the handling of the reparation questions was related to certain facts which were present in the European situation. Germany was not meeting her fiscal obligations incurred under the Treaty of Versailles. The issue was, not the right of the Allied Powers to collect reparations 31 The French and Belgian troops were joined by the Italian troops in the Rhineland occupied zone. 32 The text of the address will be found in a collection of papers by Charles Evans Hughes entitled The Pathway of Peace (New York, 1925), p. ¡2, esp., pp. 57 f.

222

REVISIONS OF PART VIII

or the duty of Germany to make payments, but the best means of handling an economic problem which embraced the welfare of all Europe. The use of force in order to penalize Germany for her delinquency would not revive the prostrate industries or increase the financial capacity of the debtor to pay. The political interests associated with reparations offered little hope of a successful handling of the difficulties by party leaders in government or by the Reparation Commission acting as the agent for certain creditor powers. The first condition of a satisfactory settlement, in the opinion of Secretary Hughes, was that "the questions should be taken out of politics." In view of the conditions which seemed to require a new appraisal of the reparation problems he proposed the following procedure: W h y should they not invite men of the highest authority in finance in their respective countries—men of such prestige, experience and honor that their agreement upon the amount to be paid, and upon a financial plan for w o r k i n g out the payments, would be accepted throughout the world as the most authoritative expression obtainable? Governments need not bind themselves in advance to accept the recommendations, but they can at least make possible such an inquiry with their approval and free the men w h o may represent their country in such a commission f r o m any responsibility to Foreign Offices and f r o m any duty to obey political instructions. . . . If Governments saw fit to reject the recommendation upon which such a body agreed, they would be free to do so, but they would have the advantage of impartial advice and of an enlightened public opinion. Peoples would be informed, the question would be rescued f r o m assertion and counterassertion, and the problem put upon its w a y to solution. 3 3

Stanley Baldwin, Premier of Great Britain, raised the question in the British note of October 12, 1923, whether the American government would collaborate in the appointment of an expert 33

For an authentic presentation of the proposal made by the American Secretary of State for the handling of the reparation problem see Charles Cheney Hyde, "Charles Evans Hughes," The American Secretaries of State and Their Diplomacy (New York, 1929), X, 374. 378 f.

REVISIONS OF PART VIII

223

committee to enquire into Germany's capacity to pay reparations. 34 T h e British and German governments had made known their willingness to participate in such a plan. France and Belgium refused to give their approval as long as German opposition continued in the Ruhr. T h e collapse of the German scheme of passive resistance, on September 27,1923, opened the way for the adoption of the procedure suggested by Secretary Hughes. In his reply to the British note, on October 15, Secretary Hughes stated that the government of the United States was willing to take part in an economic conference in which all the European Allies chiefly concerned in German reparations should participate, for the "purpose of considering the questions of the capacity of Germany to make reparation payments and an appropriate financial plan for securing such payments."

35

H e further stated the

conditions under which the American government would be willing to lend its assistance. Germany's capacity to pay should be carefully considered without relieving her of her obligations. T h e conference of experts should be advisory. T h e question of Allied indebtedness to the United States should not be brought into the discussions. Since the American government could not appoint a member of the special commission without the consent of Congress, it was Mr. Hughes's opinion that competent American citizens would be willing to participate in "an economic inquiry . . . through an advisory body appointed by the Reparation Commission to make recommendations." This favorable reply from Washington prompted the British government to start negotiations at once with her European Allies. T h e French response to the British note indicated that she would demand strict adherence to the treaty provisions in the proposed enquiry. It was pointed out that the Reparation Commission had the power under the terms of the treaty to appoint a committee 34 The official documents containing the communication from the British government and the American reply are presented in the World Peace Foundation, Reparation (Boston, 1923). VI, 338 ff. 35 Ibid., pp. 340 f.

224

REVISIONS OF PART Vili

of experts to assist in the execution of the commission's functions.36 The proposed committee could not, however, infringe upon the powers of the commission. The commission in turn could make no reduction in the total of the German debt without the unanimous consent of the governments represented upon the Reparation Commission.37 M. Poincaré, of France, stated, on October 28, 1923, that without any departure from precedent the Reparation Commission might ask the unofficial observer of the United States to nominate American experts in order to examine, with French, English, Italian, and Belgian experts "the present capacity of Germany to pay and to demand from the Reich a program of financial and monetary reconstruction and a precise Reparation scheme—all this within the framework of the Treaty." Germany expressed her willingness, in notes of November 14 and 27, to resume payments and deliveries under the treaty, but declared her inability to do so in view of the radical change in her economic status. She requested that an official examination be made of her capacity to pay reparation in pursuance of Article 234 of the treaty. German representatives were to be afforded an opportunity to be heard on the questions pertaining to Germany's economic and financial resources. A resolution was adopted by the Reparation Commission on November 30, 1923, providing for the creation of two committees of experts representing the Allied and Associated Powers. One committee was to study the means of balancing the German budget and the measures to be taken to stabilize the German currency.38 The other committee was to consider the means of estimating the amount of German exported capital and the best method for bringing it back into Germany. The membership 34

Paragraph 7, Annex II to Part VIII. Paragraph 1 3 , Annex II to Part VIII. 38 The German mark had depreciated at this time to such an extent that the percentage of the cost of the dollar as compared with par in November, 1923, was 121,535,713,896,800. League of Nations, Monthly Bulletin of Statistics (November, 1923), No. i i , Table XIV, p. 28. 37

REVISIONS OF PART VIII

225

of the two committees was completed on December 26, 1923.*® The first committee sat from January 14 to April 9, 1924, at which time Charles G. Dawes presented his report as chairman of the committee. The second committee's report was submitted to the Reparation Commission on the same date. The commission announced on April n , that the report of the first committee offered a practical solution of the reparation problem. 40 This report, known as the Dawes Plan, 41 consisted of three parts: I. The committee's conclusions and scheme; II. The currency position; III. A collection of nine annexes dealing with various phases of Germany's financial rehabilitation.42 The Dawes Plan confined its recommendations to the two topics which had been assigned to the first committee for consideration: the means of balancing the German budget and the measures to be taken to stabilize the German currency. The problem was one of taking Germany's foreign debts and of securing annually from the German economy the amounts required to meet her commitments. This demanded the maintenance of the economic unity of the German Reich. The main provisions of the Dawes Plan were as follows: 1. It authorized the establishment of a new Reichsban\ and new 39

The American government was not represented officially on the committees. It viewed with favor, however, the acceptance by American experts of invitations to participate. Two American citizens, Charles G. Dawes and Owen D. Young were appointed to serve on the first committee. Henry M. Robinson was appointed to the second committee of the Reparation Commission. For a complete list of the members of both committees sec Reparation Commission, Official Documents, XIV, i f. 40 Ibid., p. 128. The first committee's report was made all the more significant by the special reference on the part of the second committee to the significance of the first committee's proposals and by the simple formula proposed for meeting the problem of bringing the amount of exported capital back into Germany to strengthen the finances of the Reich. Ibid., pp. 1 1 7 - 2 1 . 41 Charles G. Dawes was elected chairman of the first committee, with the result that the committee's plan was to bear his name. World Peace Foundation, op. cit., pp. 347 f. 42 The nine annexes included ( 1 ) a plan for the organization of a bank of issue in Germany; (2) a suggested index of prosperity; (3) a general report on the German railways; (4) a scheme for the concession of the working of the German railways to a special company; (5) a plan for industrial debentures; (6) a note on the transfer of reparation payments; (7) a note on the currencies circulating in Germany; (8) a provisional survey of the budget of the Reich; (9) an exposition of different incomes drawn from dividends in the year 1920-21, 1923-24, and 1924-25. Ibid., pp. 354 ff.

226

REVISIONS OF PART VIII

currency which would be aided by an external gold loan. This would assist in the stabilization of German currency and financial 41 economy. 2. The payments of annuities were fixed on a basis of a budget moratorium period, when the first payment would be met from foreign loans, to enable Germany to restore her industries and to collect the required revenues; a transition period, when Germany's income was to be derived from railways, industrial debentures, transport tax, and the budget; and a standard year, the fifth year of the annuities, when the real load of reparation payments would have to be born by German economy. 44 T h e fixation of annuities comprised all amounts for which Germany would be liable to the Allied and Associated Powers. This measure tended to eliminate all controversy over special accounts and payments under various titles. 3. The committee of experts recognized the important difference between Germany's capacity to pay taxes and Germany's capacity to transfer wealth abroad. T h e German government was required under the Dawes Plan to collect taxes and revenue and to pay the same into the Reichsban\, in the form of gold marks, to the credit of the Allied and Associated governments. T h e creditor governments assumed responsibility for transferring these sums abroad. 43 4. The sources of the annuities were defined. Germany was to pay the treaty charges from taxes, railway revenue, and industrial debentures. In addition to the income from railway and industrial bonds, revenues were pledged as collateral budget contributions from alcohol, tobacco, beer, sugar, and customs. 48 5. A special transfer committee was established to manage the transfer of payments across the foreign exchanges. Danger of creating instability through excessive remittances made this move necessary as a safeguard to the creditor powers. 47 43

Ibid., Section VI of Part I of the Dawes Report, pp. 367-69. ** Ibid., Sections VII and X of Part I, pp. 369, 384. 4 5 Ibid., Section XIII, pp. 387 f. 46 47 Ibid., Sections IX and XIV, pp. 376, 388 f. Ibid., Section XIII, pp. 387 f.

REVISIONS OF PART VIII

227

6. A n index of prosperity was to be employed in determining Germany's continued capacity to meet reparation payments. This would enable Germany's creditors to share in her prosperity and at the same time safeguard Germany in case of an economic recession. 48 Commensurate taxation was to be carried out as f a r as possible in conformity with the treaty requirements. 7. T h e new plan proposed by the committee of experts was to be supervised by an Agent-General for Reparation Payments who would co-ordinate the various functions performed by different agencies prior to the adoption of the experts' report. 8. Definite arrangements were made in a special agreement for the arbitration of reparation disputes; nineteen different bases of jurisdiction being authorized. 9. Contingent sanctions and guarantees were allowed. N o military sanctions were permissible, however, which would impede the necessary economic activities of Germany. Neither was there to be any special financial arrangements other than those stipulated in the Dawes Plan. These provisions would prevent separate military action, such as the R u h r occupation by France and Belgium, and individual transactions like the Wiesbaden agreement. 10. T h e matters pertaining to reparations were transferred from Inter-Allied to international supervision, with Germany voluntarily participating in the new arrangements. T h e Dawes committee did not state a new total for Germany's reparation accounts. France opposed every attempt to reduce Germany's indebtedness. While requiring Germany to meet her treaty commitments within the utmost limit of her capacity, 49 the experts recognized the need for international confidence as a prerequisite for financial stabilization. Such confidence could not be restored until Germany and the Allied powers gave assurance of their willingness to liquidate the war problems. 50 T h e Dawes Plan suggested important alterations in the original 48 48 60

Ibid., Section VIII, pp. 369, 372 ff. Am. ]. I. L., Supplement, 1922, XIX, 51, Article 5. World Peace Foundation, Reparation, p. 357.

228

REVISIONS OF PART Vili

set-up of the reparation machinery: First, the reparation bodies were to be reduced and co-ordinated. 51 Second, the committee made easier the handling of reparation by drafting arrangements which more closely approximated Germany's capacity to pay taxes and her ability to transfer wealth abroad. 52 Germany was required to raise the funds to pay the reparation annuities. T h e responsibility for converting the German marks into foreign currencies was assumed by Germany's foreign creditors. 53 Third, the financial, industrial, and commercial activities of Germany were to be organized more systematically and governed more closely. T h e German government notified the Reparation Commission on April 16, that it regarded the reports as practical proposals for the handling of reparation. 54 The following day the Reparation Commission decided unanimously to approve the committee's conclusions and to adopt the plan outlined in the two reports. They also decided to transmit and to recommend the reports to the interested governments. 55 Favorable response was received by the commission from Great Britain, France, Belgium, Italy, Jugoslavia, and Japan. T h e drafting of the experts' reports constituted the first step in the adjustment of conflicting policies relating to reparation. The co-ordination of Allied efforts to establish the Dawes Plan was the next important step. A conference on June 22-23 between M. Herriot, who had replaced M. Poincaré as Premier of France, and Ramsay MacDonald, of Great Britain, helped to clarify the policies of the two powers. The two prime ministers agreed that, subject to the convenience of the interested States, a conference should be held in London during the latter part of July for the purpose of outlining the procedure to be adopted for putting the proposed plan into operation. 56 T h e governments of Italy, Belgium, Japan, Jugoslavia, Rumania, Greece, Portugal, and the United States were invited to send repre81 53 55

Ibid., Section XVI, pp. 393-95. Ibid., Section XIII, pp. 387 f. Ibid.

62

Ibid., Section VIII (d), pp. 374 f. * Toynbee, Survey 1924, p. 359. 56 Toynbee, op. cit., p. 365.

5

REVISIONS OF PART VIII

229

sentatives to a conference to be convened in London on July 16, 1924. Notes were dispatched also to the governments of Czechoslovakia, Poland, Brazil, Siam, Liberia, and Cuba, the other powers directly interested in the reparation settlement, assuring them that they would be kept informed of the proceedings in London and be given a hearing on matters pertaining to their interests. 57 In the invitation dispatched to the Italian government on June 23, the object of the proposed conference was defined as follows: the Conference's chief object will be to agree upon terms of an instrument which will formally bind the parties to do the several things prescribed in report of General D a w e s and will be signed both by the Allies and G e r m a n y . T h i s instrument might take the f o r m of a protocol in order to avoid any appearance of a desire on the part of the Allies to amend T r e a t y of Versailles. 5 8

Certain difficulties confronted the Allied governments in the matter of drafting an instrument which would formally bind the contracting powers to introduce the changes prescribed in the Dawes report and at the same time to avoid all appearance of an intent to modify the treaty. Germany would undertake to adopt all measures, legislative, administrative, and financial, required in the report. By way of consideration Germany would receive a pledge f r o m the Allies to perform certain duties. T h e y would forego the economic and financial sanctions which might impede the economic and administrative freedom of Germany, both inside and outside the territories occupied under the Treaty of Versailles. Furthermore, the Allies would assure Germany that these sanctions would not be reimposed except in the circumstances contemplated in the report. Some agency other than the Reparation Commission was to be invested with the power to declare whether these circumstances had arisen. T h e ground for the British proposal for the establishment of some authority other 57

British White Paper, Cmd. 2 1 8 4 of 1924. Toynbee, op. cit., p. 368. Germany was not invited to attend the conference until the Allies had reached an agreement on certain points pertaining to the adoption of the Dawes Plan. 53

230

REVISIONS OF PART VIII

than the Reparation Commission was stated in the British communication to the Italian, Belgian, and Japanese governments: T h e engagements which Germany is to undertake under the scheme proposed in General Dawes' Report go far beyond those imposed by Treaty of Versailles, and it seems, therefore, to His Brittanic Majesty's Government that duty of deciding whether a flagrant failure has occurred cannot properly be entrusted to Reparation Commission, since functions of that Commission are strictly determined by Treaty of Versailles. 59

While admitting that the engagements which Germany would be asked to accept under the Dawes Plan went " f a r beyond those imposed by the Treaty of Versailles," Mr. MacDonald and M. Herriot argued that the provisions of the Dawes Plan were not incompatible with the terms of the treaty. Technically the governments could harmonize the reparation clauses of the treaty and the Dawes Plan. In reality Part VIII of the treaty as well as other clauses in the original peace settlement would be modified by the adoption of the plan. At the second plenary meeting of the London conference held on July 23, 1924, a committee of jurists was appointed, consisting of Sir Cecil Hurst and M. Fromageot, with the following terms of reference : 1. Does the putting into operation of the Dawes Plan give rise to questions—and, if so, which—requiring to be settled by agreement with Germany? 2. What procedure should be adopted in order to arrive at such agreement without in any way running counter to the Treaty of Versailles? 6 0

The committee of jurists reported on July 28 to the effect that the putting of the Dawes Plan into operation without in any way running counter to the Treaty of Versailles would require the conclusion of separate agreements: one between the Reparation Commission and the German government; a second between the 89

Ibid., p. 369.

60

British White Paper, Cmd. 2270 No. 17, pp. 15 f.

231

REVISIONS OF PART VIII

Allied governments and the German government; and a third between the Allies themselves. 61 T h e conference agreed to this procedure. Germany was invited to send representatives to London, along with the members of the Reparation Commission, to sign the new agreements. Mr. MacDonald welcomed the German delegates at the fifth plenary meeting of the conference, on August 5, in the following words: W e are all anxious that the responsibilities which this report imposes upon us should be accepted not because they must be, but because there is a common desire to make a serious and an honest attempt to fulfil obligations to which signatures are attached, and to attach signatures after discussions in which every party has been fairly heard." 2

This was to be a voluntary settlement with Germany participating in the final proceedings. Dr. Marx, of Germany, replied to Mr. MacDonald in the following manner: W e see here the way which will and must lead our people to freedom and peace and at the same time afford a possibility of their working together with the other peoples in the joint reconstruction of Europe. T h e restoration of mutual confidence is the first essential for the fruitful co-operation of the nations. 63

By way of contrast to the signing of the Treaty of Versailles, on June 28, 1919, this new note of co-operation indicated a more satisfactory handling of the reparation controversy. The employment of force to compel Germany to pay reparations bad accomplished little in the way of treaty fulfillment. Public opinion was still too adamant, however, to permit a fundamental change in Germany's treaty commitments. The Allied leaders were seeking a point of balance between the pressure of economic necessity on one side and the demands of their nationals to defend their treaty rights on the other, between Germany's capacity and willingness 61

¡bid., pp. 132-36.

62

Ibid., No. 26, 162.

63

Ibid.

232

REVISIONS OF PART Vili

to pay reparation and the ability of the Allies to transfer wealth to cover their war losses. They had to modify their reparation demands and the treaty machinery for transferring German payments. T h e Fromageot-Hurst report of July 25 recommended that the texts of the new agreements should be drawn together as annexes attached to a final protocol of the conference. The protocol, signed on August 30, 1924, embraced the following agreements: one between the Reparation Commission and Germany providing for the payment of reparations as prescribed in the Dawes Plan; a second between the Allies and Germany relating to the interpretation of the first agreement and the settlement by arbitration of disputes which might arise out of it; also arrangements for the putting into operation of the provisions governing the payment of reparation under the Dawes Plan; a third between the Allies and Germany outlining the plan for the restoration of the fiscal and economic unity of Germany upon which the Dawes Plan was to be based; and a fourth between the Allies themselves limiting their authority, granted under the Treaty of Versailles, to invoke sanctions in the event of defaults on Germany's part. 64 Before the close of the year 1924 all necessary steps were taken to put the Dawes Plan into operation. T h e new agreements did not reduce the total reparations bill which had been announced by the Reparation Commission early in 1921. Important changes were made, however, in the machinery and the procedure for handling the obligations and transferring the payments from Germany to the creditor States. T h e governments participating in the London conference had deliberately evaded certain questions which required immediate consideration: H o w long were the Dawes annuities to continue? What had become of the 132 billion marks of indebtedness which the Reparation Commission had announced as Germany's reparation obligation? Were the annuities provided for in the Dawes 64

Reparation Commission, X I V . Official Documents, 1927, pp. 130 ff.

REVISIONS OF PART VIII

233

Plan to continue until this total was paid ? H o w much was to be credited to Germany on account of her total reparation payments up to the time when the Dawes Plan went into effect ? Where was Germany to secure the funds to meet the Dawes annuities after the railway and industrial bonds had all been redeemed ? In order to deal with the problems raised by these and other questions the contracting powers would have to revise further the provisions in Part VIII of the Treaty of Versailles. Economic necessity would compel a readjustment of political arrangements to comply with economic realities. THE

YOUNG

PLAN

T h e Dawes Plan stated that the proposed plan was only a temporary arrangement; that the experts had not attempted a solution of the whole reparation problem. Their proposals were framed "to facilitate a final and comprehensive agreement as to all the problems of reparation and connected questions" as soon as circumstances made this possible. 65 T h e plan as adopted called for a payment by Germany of one billion gold marks the first year. T h e funds were to be provided from foreign loans and from interest on German railway bonds. T h e second year payment amounted to 1,220 million gold marks. T h e annuities increased each year until the fifth, or standard year, when a total of 2,500 million gold marks would be required. Germany met her obligations the first year without difficulty. It was evident, however, that the amount of the standard annuities would exceed Germany's capacity to provide sufficient revenue without further loans. 66 The Agent-General for reparation reported that the Dawes Plan had re-established confidence in Europe and aided Ger65 "Reports of the Expert Committees Appointed by the Reparation Commission," British White Paper, Cmd. 2105 of 1924, p. 43. 66 Department of Commerce, "American Underwriting of German Securities," Trade Information Bulletin, No. 648; also Reparation Commission, XXIIA, Official Documents, 1930, p. 38.

234

REVISIONS OF PART VIII

many's restoration.67 He reminded the European powers, however, in his report of May 30, 1925, that the real problem relating to reparation was unsolved. He said: "The results achieved in these directions (i.e., the stabilization of the German budget and currency) do not by themselves mark a final readjustment. They are rather the starting point from which readjustment must proceed." 68 The warning was repeated, on November 30, 1925, that the road to recovery had not been fully traveled and that many difficulties remained to be overcome. 69 When events had moved further and they could see more clearly the effects of reparation payments on the economic developments of the world, the contracting powers might perhaps look forward "to the further and more comprehensive settlement that the experts foresaw in the concluding words of their Report." 7 0 On December 10, 1927, the Agent-General pointed out two specific weaknesses in the Dawes Plan which would have to be corrected. The provision for transfer protection, for example, tended to save the German public authorities from some of the consequences of their own actions. Likewise, the uncertainty as to the total amount of the reparation liabilities tended to diminish the normal incentive in Germany to carry through the reforms that would be in the country's own interests. The economic, political, and social maladjustments in Europe could not be corrected until Germany was given a definite task to perform on her own responsibility without foreign supervision and transfer protection. 71 The adoption of the Dawes Plan, in 1924, relieved the political tension in Europe and prepared the way for important negotiations. In turn, the Locarno Treaties, Germany's admission to the League of Nations with a permanent seat on the Council, provision for an early evacuation of the Rhine, and the signing of the 67

Reparation Commission, Reparation Commission, May 30, 1925, p. 55. 89 Reparation Commission, 70 Reparation Commission, 71 Reparation Commission, 68

XVIII, Official Documents, 1928, p. 108. X , Report of the Agent-General for Reparation XI, op. cit., November 30, 1925, p. 102. X V , op. cit., p. 106. XVII, op. cit., December 10, 1927, pp. 1 7 1 f.

Payments,

REVISIONS OF PART VIII

235

Kellogg Pact made easier the reopening of the reparation question. Following a series of private conferences between the Belgian, French, British, German, Italian, and Japanese delegates at Geneva, an official statement was released on September 16, 1928, announcing that an agreement had been reached on "the necessity for a complete and definite settlement of the reparations problem and for the constitution for this purpose of a committee of financial experts to be nominated by the six Governments." 7 2 In the mandate of the committee of experts thus to be formed it was stated in the following terms of reference: "That these proposals shall include a settlement of the obligations resulting from the existing treaties and agreements between Germany and the creditor Powers." 7 3 The Allied governments did not reach a decision until' December 23, 1928, on the question of the procedure to be followed in appointing the committee of experts. The Reparation Commission met in Paris on January 10, 1929, to appoint the experts nominated by the five creditor powers. The German government had appointed its representatives on January 9. Five months had been devoted to the ironing out of controversies which had blocked the convening of the conference. The first meeting of the committee was held in Paris, on February 1 1 , 1929. Owen D. Young, of the United States, was chosen as chairman of the committee. The general assignment, when broken down into a more specific statement of objectives, included the following: 1. T h e final determination of Germany's liability for reparation. This included the fixing of the amount of annuities which Germany should pay and the period of time over which they should be paid. 2. T h e abolition of foreign controls in Germany and the setting up of a new organization for the receipt and disbursement of the annuities. 3. T h e development of a plan for the mobilization and ultimate issuance 72 73

Royal Institute of International Affairs, Documents on International Affairs, 1928, p. 53. Am. J. I. L„ Supplement, XXIV, 81.

236

REVISIONS OF PART VIII

for sale on the world market of a ccrtain portion of the German annuities. 74

From February 11 to early in June the members of the Young committee were engaged on questions relating to Germany's economic condition and the transfer of reparation payments, the scaling down of the total amount Germany would have to pay, and the reallocation of the German annuities.75 The final report of the Young committee was accepted and signed by the interested powers on June 7, 1928. Considering the numerous matters involved the report was remarkable for its brevity.70 The points of advantage, whether to Germany or to her creditors, claimed for the Young proposal were summarized by the committee as "a reduction in the existing obligations of Germany" accompanied by "an essential modification in their financial and political status." The Young Plan provided for several important changes in the terms of Part VIII of the Treaty of Versailles: Fixation of the period and amount of payments.—The Dawes Plan imposed upon Germany, by virtue of the index of prosperity, increasing annuities without fixing the number of annuities. The Young Plan indicated a definite number of fixed annuities and thereby reduced the total of the reparation payments. Disappearance of the index of prosperity.—The index of prosperity introduced in the Dawes Plan was a device of unknown and uncertain benefits. It was abolished in the Young Plan. The disappearance of this element of uncertainty was looked upon as a 74 Thomas W. Lamont, "The Final Reparations Settlement," Foreign Affairs, VIII (1929-30), 336, 343; also, Am. /. I. L., Supplement, X X I V , pp. 81 ff. 75 The creditor powers reserved the right to withhold their approval of the findings of the committee of experts as they did in the case of the Dawes Commission in 1924. The position of the interested governments relative to the findings of the experts had been clearly stated by Secretary Hughes, on December 29, 1922: "Governments need not bind themselves in advance to accept the recommendations, but they can at least make possible such an inquiry with their approval and free the men who may represent their country in such a commission from any responsibility to Foreign Offices and from any duty to obey political instructions." Supra, pp. 223 f. 78 Am. ]. 1. L., Supplement, X X I V , 81 ff.

REVISIONS OF PART VIII

237

benefit to Germany in view of the fact that only general estimates could be made of the ultimate effect of the index. Attainment of financial autonomy.—Under the treaty and the Dawes Plan, Germany could discharge her obligations in marks through a system of transfer protection only. This placed strict limitations upon her credit and financial policies. The Young Plan restored Germany's financial autonomy. All agencies established previously for the collection and transfer of reparation were abolished. These included the Reparation Commission, the AgentGeneral for Reparation Payments, and foreign commissions supervising German economic processes which had been pledged as security for Germany's commitments. Postponement of payments.—A safeguard was provided against an exceptional emergency which might interrupt the normal operation of German economy. T h e reparation annuity was divided into two parts: one was subject to postponement of payment and transfer, whereby Germany could on her own initiative resort to temporary measures of relief; the other part of the annuity was nonpostponable. Deliveries in kind.—Deliveries in kind, allowed in the treaty and the Dawes Plan, constituted an artificial form of international trade. The Young Plan provided for the cessation of this method of payment within ten years. Mobilization of annuities.—There was a mutual acceptance by the Allied creditors of a reduction in the total value of reparation payments due from Germany. T h e receipt by the creditors of early payments, which would arise from the mobilization and commercialization of annuities within a limited time would more than offset the reduction allowed on the total indebtedness.77 It afforded the Allied governments an opportunity to liquidate their commitments for reconstruction without waiting indefinitely for their payments from Germany. Moreover, the new arrangement rested upon the voluntary undertaking of the German govern77

Ibid.,

pp. 92-97.

238

REVISIONS

OF

PART

VIII

ment; an assurance to which further guarantees could add little. Financial organization.—The Dawes Plan sought to improve upon the treaty arrangement by transferring the reparation questions from the political to the economic and financial sphere which presumed constant co-operation of debtor and creditors. The Young Plan advanced further by placing the reparation payments under the control of a purely financial institution. It provided for the establishment of a Bank for International Settlements with facilities for the transfer of reparation payments and the promotion of international financial relations. The Young Plan adjusted the special scheme of reparation payments to the established procedure of international exchange and transfer of funds. Cancellation of joint liabilities.—The treaty provisions imposing upon Germany joint liability for Austrian, Bulgarian, and Hungarian reparation were terminated. The Young Plan continued the work begun by the Dawes Plan, which could do little more than outline the required readjustments. By the final reduction of the German debt, by the establishment of a progressive scale of annuities and the facilities for the transfer of payments, which the Bank for International Settlements offered, the Young Plan proposed important changes in the original provisions of Part VIII of the Treaty of Versailles.78 The presentation of the findings of the Young committee was followed by a conference of creditor governments summoned to consider the adoption of the Young Plan. The governments of Great Britain, France, Italy, Japan, Belgium, and Germany invited the other treaty powers directly affected by the new proposals to participate in the proceedings to be opened at The Hague on August 6, 1929. The first period of the conference lasted until August 31. A second period extended from January 3-20, 1930. Once again conflicting national policies delayed the negotiations and transcended the impartial study of the committee of experts.79 78

ibid., pp. 107-9. Opposition to the provisions in the report of the experts was voiced in London immediately after the text was released. The British objections were based upon the proposed 79

REVISIONS OF PART VIII

239

In calling T h e Hague conference it was the aim of the governments of Germany, Belgium, France, Great Britain, Italy, and Japan "to make a complete and final settlement of the question of reparations." T h e acceptance by the creditor powers of smaller annuities than those fixed in the treaty and in the Dawes Plan depended upon the certitude and ease with which the creditors could transfer the payments under nonpolitical conditions. Germany's willingness to abide by the provisions set forth in the Young Plan enabled her to escape a large part of the total reparation bill. 80 Closely related to the question of the amount and number of annuities to be paid by Germany was the problem of creating a new organ, a Bank for International Settlements, which would serve as financial agent for the creditor powers. 81 This involved important changes in the original treaty arrangements: 8 2 First, the new agency was to be set up outside Germany and was to have no authority to interfere in Germany's internal affairs. Second, it was to be exclusively financial in its organization and functions. Third, it would be nonpolitical in character, thereby removing the reparation question from the realm of political control and intervention. Fourth, it would replace the machinery and agencies created by the Treaty of Versailles for the transfer of reparation payments. 83 In an agreement with Germany signed at The Hague, on January 20, 1930, the governments of Belgium, France, Great Britain, changes which would vitally affect the percentage of reparations which had been assigned to Great Britain in previous agreements. 80 Paragraph 1 3 , Annex II, Part VIII of the treaty. 81 This meant the abolition of the administration of the office of Agent-General and of the various commissions set up in Berlin under the Dawes Plan, together with the Reparation Commission with its various powers defined in the Treaty of Versailles. 82 Paragraph 38 of the Report of the Committee of Experts. Am. J. I. L., Supplement, X X I V , 86. 83 Paragraph 72 of the experts' report stated: "The bank excludes from its procedure all political influences, and business principles and practice intervene to facilitate the settlement of Germany's obligations without in any way qualifying her independent and sole responsibility. The Office for Reparation Payments and its associated organizations in Berlin will be retired, and the Reparation Commission's relations with Germany will be terminated. Germany will assume the responsibility for raising and transferring the annuities, and the bank takes over the work of their receipt and disbursement."

240

REVISIONS OF PART VIII

Italy, and Japan recognized "the necessity, with a view to putting into force the N e w Plan, of the constitution of the Bank for International Settlements." 8 4 They further agreed that " f r o m and after the date on which the N e w Plan comes into force, the Office for Reparation Payments and the organizations in Berlin connected therewith shall be abolished and the relations with Germany of the Reparation Commission shall come to an e n d . " 8 6 All financial functions necessitated by the new plan were to be transferred to the Bank for International Settlements. T h e leading creditor States had agreed, at Geneva, on September 16, 1928, to open negotiations relating to ( 1 ) the evacuation of the Rhineland; (2) the final settlement of the reparation problems; and ( 3 ) the constitution of a committee of verification and conciliation. T h e plan for the evacuation of the Rhineland was stated in an exchange of notes, on August 20, 1929, 88 between the governments of Belgium, Great Britain, and France on the one side and Germany on the other. T h e Y o u n g Plan for the settlement of the reparation problems was before the conference at T h e Hague. T h e constitution of a committee of verification and control was determined by an agreement signed at T h e Hague, on August 30. This agreement, however, was drawn up subject to the adoption of the Y o u n g Plan by all the signatory powers. 87 T h e question involved was that of determining a means of verifying and conciliating disputes which might arise under the new arrangements. T h e Treaty of Versailles had accorded the Allied and Associated Powers extensive authority which entitled them to apply sanctions in case of certain treaty violations by Germany. Under Article 430 of the treaty the Allies had the right to reoccupy the Rhineland if the Reparation Commission declared Germany in default on the 84

Article 6 of the agreement with Germany. Am. J. I. L., Supplement, XXIV, 265. Ibid., Article 4. 86 "International Agreement on the Evacuation of the Rhineland Territory," ibid., pp. 144-52. 87 "Final Act," Hague Conference on Reparations, January, 1930. Ibid., pp. 259 if. 85

REVISIONS OF PART VIII

24I

whole or any part of the treaty obligations relating to reparations. N o mention was made in the Y o u n g Plan of this provision. Neither was there specific arrangement for dealing with a case of willful default on the part of Germany. 8 8 T h e Allied governments, headed by France, were unwilling to forego the right assured to them under Article 430. T h e matter of the committee of verification and conciliation resolved itself into a question of method by which disputes pertaining to the fulfillment of German obligations could be examined under the normal conditions of peace. It was based on confidence in Germany's willingness to keep her pledges. T h e abolition of the Reparation Commission and the willingness to suppress the agreement of August 30, 1924, to amend Part V I I I (paragraph 16 of Annex I I ) of the treaty reflected the extent to which the creditor powers were willing to go in seeking a solution of the reparation problem. 89 By the terms of the amendment adopted in 1924, a default by Germany could be established by the Reparation Commission, subject to an appeal of the decision of an arbitral commission by any member of the Reparation Commission who had participated in the vote. Joint action was to follow such decision, thereby preventing isolated sanctions such as the R u h r incident. T h e abolition of the Reparation Commission by the Y o u n g Plan left an opening for political intervention under improbable circumstances. Under the terms of the Y o u n g Plan the authority of the creditor powers in relation to Germany was limited. In separate declarations the creditor and debtor governments dealt with the question of a default by Germany and prescribed judicial review of the same before resorting to action. T h e Allied declaration stated that if Germany violated the terms of T h e Hague agreement of January 20, 1930, the creditor nations would submit the 88

Specific provision was made for Germany to benefit by a two-year moratorium in case economic conditions seriously affected the ability of Germany to make payments. 89 "Agreement Between the Governments Represented on the Reparation Commission to Modify Annex II to Part VIII of the Treaty of Versailles," London, 1924. Am. /. I. L., Supplement, XIX, 51 f.

242

REVISIONS OF PART VIII

question to the Permanent Court of International Justice to determine whether the German government had committed acts amounting to a willful default. In the event of an affirmative decision by the court, the creditor powers would be privileged to resume full liberty of action. 90 Germany consented to this arrangement. T h e elimination of sanctions as stipulated in the Treaty of Versailles, the modification of the compulsory measures authorized by the Dawes Plan, and the new agreement to submit certain disputes to judicial review were among the significant changes introduced by the Y o u n g Plan. W h e n the system of reparation payments was first developed in Part V I I I of the treaty, the debt was to be evidenced by certain bonds which were to be issued to the Reparation Commission by the German government. In their attempt to shift the reparation payments f r o m political to financial controls, the committee of experts drafted a plan for a close assimilation of Germany's debt to the established routine for handling international payments. Germany was required to deliver to the Bank for International Settlements certificates of indebtedness covering the annuities fixed in the Y o u n g Plan. T h e certificates carried coupons for each annuity. T h e coupons were in two parts. One part represented the nonpostponable portion of the annuity which Germany was required to meet. T h e second represented the postponable part of the annuity. T h e nonpostponable coupon had prior rights f o r payments. T h e Bank f o r International Settlements was to decide whether Germany should create issuable bonds representing the capitalization of any part of the nonpostponable portion of the annuity. Collateral guarantees were not required under the new plan, except the certificates of liability deposited with the Bank for International Settlements by the German Railway Company, covering the amount of the tax for which it was responsible. Ger80 See Declaration of the Allied Governments at The Hague. Am. J. I. L., op. at., X X I V , 271 f.

REVISIONS OF PART VIII

243

many had to promise that she would not assign as collateral for other obligations certain customs and consumption revenues. Under the heading "Liquidation of the Past," Section 9 of the Young report, specific provision was made for liquidating a number of reparation obligations. All reparation accounts between the Reparation Commission and Germany relating to transactions prior to the adoption of the Dawes Plan were to be canceled. This meant a considerable reduction by the Allied governments of their total claims against Germany. It also involved the dissolution of the joint liability for reparations of Germany, Austria, Hungary, and Bulgaria. It abolished all obligations, present or future, which might result from the joint liability imposed upon these powers by the peace treaties.91 Paragraph 146 of the committee's report recommended in particular that the Allied Powers should not attempt to collect the amounts due Germany from her former Allies, which had been authorized in Article 261 of the Treaty of Versailles. Germany on her part was to renounce any net balance which might be due her from these accounts.92 At the time the peace treaty was drafted the Allied governments attempted to deprive Germany of all rights and interests which she, or any German nationals, had acquired in Russia, China, Turkey, Austria, Hungary, and Bulgaria. Article 260 of the treaty required the transfer to the Reparation Commission, for the benefit of the Allied governments, of all German properties situated in the above territories. The Young Plan proposed that if there were any such properties which had not been liquidated at the time the Young Plan was adopted, the treaty arrangements should be terminated. To assure the restoration of confidence indispensable for the successful working of the Young 91

Ibid., p. 105, paragraph 145 of the Report of the Committee of Experts. Annex II of the Final Act signed at The Hague, January 20, 1930, provided as follows: 2 (ii) "The claims of Germany against Austria, Hungary and Bulgaria referred to in Article 261 of the Treaty of Versailles and the debts of Germany referred to in Articles 2 1 3 of the Treaty of St. Germain, 196 of the Treaty of Trianon and 145 of the Treaty of Neuilly are finally cancelled and the securities and documents relating thereto shall be destroyed." Ibid., p. 273. 92

244

REVISIONS OF PART VIII

Plan, the committee recommended that the creditor governments forego, from the date of the acceptance of the report, their right to seize, retain, or liquidate the property owned or controlled by German nationals and having a situs in the territory of the creditor States. It was further recommended that all outstanding questions concerning such property should be cleared up by separate arrangements between the governments concerned and Germany within one year after the coming into force of the Young Plan. 93 The important changes in the Treaty of Versailles effected by the Young Plan were not confined to the provisions in Part V I I I dealing with reparations. The above reference to the provisions in Articles 260-61 called for a modification of the financial terms set forth in Part I X of the treaty. The recommendations submitted by the committee of experts were embodied in special instruments of agreement drawn up during the conference at The Hague. These negotiations marked a decisive step in the financial reconstruction of Europe. Fourteen agreements, drawn together in a final act, were approved and signed, on January 20, 1930, by the representatives of twenty nations: namely, Austria, Belgium, Bulgaria, Czechoslovakia, France, Germany, Great Britain, Australia, Canada, India, New Zealand, South Africa, Greece, Hungary, Italy, Japan, Jugoslavia, Poland, Portugal, and Rumania. These agreements provided, not only for a revised settlement of Germany's obligations and the cancellation of the reparation indebtedness of Austria, Hungary, and Bulgaria, but also for the consolidation or liquidation of the 93 This recommendation was carried out by a series of separate conventions with Germany which are enumerated in the final act. They included:

Australia: Convention, The Hague, January 1 7 , 1930. Belgium: Convention on Belgian Marks, Brussels, July 1 3 , 1929. Belgium: Convention, Brussels, July 13, 1929. Canada: Convention, The Hague, January 14, 1930. France: Convention, Paris, December 3 1 , 1929. Great Britain: Convention, London, December 28, 1929. New Zealand: Convention, The Hague, January 17, 1930. Poland: Convention, Warsaw, October 3 1 , 1929. For the provisions of the above conventions see Am. /. I. L., Supplement, X X I V , 261.

245

REVISIONS OF PART VIII

so-called "liberation" debts of Czechoslovakia, Jugoslavia, Poland, and Rumania. T h e twenty powers named above were directly interested, either as creditors or debtors, in the reparation settlements set forth in the peace treaties (Versailles, St. Germain, Trianon, and Neuilly). As parties to the original settlements they were included as signatory powers to the revisory agreements drawn up at T h e Hague. Of those named, the following were parties to the Treaty of Versailles: Belgium, Czechoslovakia, France, Germany, Great Britain, Australia, Canada, India, N e w Zealand, South Africa, Greece, Italy, Japan, Jugoslavia, Poland, Portugal, and Rumania. Of the original signatory powers to the Treaty of Versailles, the following were not included among those who were parties to the agreements negotiated at T h e Hague: Bolivia, Brazil, China, Cuba, Ecuador, Guatemala, Haiti, Hedjaz, Honduras, Liberia, Nicaragua, Panama, Peru, Siam, and Uruguay. Since no special authority was granted to the powers represented at The Hague to revise the reparation provisions of the treaty, the action taken by the parties to the Young Plan would not constitute a modification of the treaty rights of the powers which originally accepted the settlement of 1919. In view of their minor interest in reparation payments the revision effected would not be considered a matter of sufficient importance perhaps to warrant a serious objection on their part to the action taken by creditor and debtor powers to terminate or to revise the reparation agreement. In a summary of the agreements concluded at The Hague 94 the British Chancellor of the Exchequer, Philip Snowden, stated that the new agreements taken together represented "a general liquidation of the financial questions raised by the war and the subsequent Treaties of Peace." T h e agreement concluded with Germany provided that the Y o u n g Plan should not take effect until the Reparation Commis84

1-11.

Royal Institute of International Affairs, Documents

on International

A0airs,

1 9 3 0 , pp.

246

REVISIONS OF PART VIII

sion and the chairman of the Kriegslastenhommission the following:

reported

1. T h e ratification of the main agreement by G e r m a n y and the enactment of the requisite G e r m a n laws. 2. T h e ratification of the main agreement by four out of the five powers principally concerned, viz. Belgium, Great Britain, France, Italy, and Japan. 3. T h e constitution of the B a n k for International Settlements and the receipt by it of the Debt Certificates of the G e r m a n government and the G e r m a n railways. 9 5

Ratification of the final act by the required number of governments took some time. The requirements were met first by Germany when the presidential decree, promulgating the law passed by the German Parliament, was published on March 18. The record of Germany's ratification was deposited in Paris, on March 26, 1930. The ratifications of the Belgian, British, French, and Italian governments were deposited on May 9, 1930. With the completion of all acts required of governments and committees, the Reparation Commission and the Kriegslastenhommission issued a joint report, on May 17, 1930, declaring that the conditions laid down in The Hague agreement had been met and that the Young Plan was in force. The surviving functions of the existing reparations organizations were transferred to the Bank for International Settlements. The Reparation Commission and the Kriegslastenhommission were put into liquidation.96 Nearly a year after the signature of the agreement to adopt the Young Plan, with certain amendments, the plan was declared to be in force. Once again the terms of Part VIII of the Treaty of Versailles had been revised with the hope that "a complete and final settlement of the Reparation problem had been achieved." An important revision of the reparation provisions of the Treaty of Versailles had been effected by twenty of the thirty-three signa03

Ibid., p. 3.

96

Toynbcc, Survey 1930, pp. 526 f.

REVISIONS OF PART VIII

247

tory States which had originally agreed to the terms of the reparation settlement. THE LAUSANNE

AGREEMENT

The Young Plan was launched on May 17, 1930, as a complete and final settlement of the reparation problems. By the end of the year the world economic conditions were so serious that responsible leaders in various countries were suggesting the need for further revision of the reparation settlement. T w o major difficulties confronted Germany in meeting the required annuities: First, the financial powers of the separate states of the Reich complicated the work of securing sufficient revenue to meet reparation payments in addition to all other budgetary requirements. Second, the transfer of payments through international exchange., v,ao r^nJeicd almost impossible in 1930 and 1931 on account of the world-wide business depression. The volume of foreign loans and short-term credits in Germany, which followed the adoption of the Dawes Plan and the wiping out of Germany's internal debt by inflation, had aided Germany in the restoration of her industrial and commercial systems. By borrowing to meet her reparation annuities Germany was piling up foreign debts to an extent that the service alone on these obligations would eventually absorb all her transfer surplus. The crisis in the financial centers of the world made impossible additional loans for reparation purposes in 1930. The first important proposal to meet the crisis was made by President Herbert C. Hoover, on June 20, 1931, 97 when he announced that the American government favored "the postponement during the one year of all payments on inter-governmental debts, reparations, and relief debts, both principal and interest, of course, not including obligations of Governments held by private parties." The offer to postpone all payments upon the debts of foreign govern97

United States, Department of State, Press Releases, No. 91, June 27, 1 9 3 1 , pp. 481 i f .

248

REVISIONS OF PART VIII

ments to the American government was made conditional on a like postponement for one year of all payments on intergovernmental debts owing to the important creditor-powers. T h e purpose of this action was "to give the forthcoming year to the economic recovery of the world." 98 The so-called "Hoover Moratorium," or "Hoover Year," was delayed in its application due to the opposition of the French government. The American Secretary of State, Henry L . Stimson, sought to allay French fears by assuring them that the President's plan did not "propose a reconsideration or impairment of any international agreements," but extended only to "the simple postponement for one year of the payments under such agreements." 99 T h e French note of June 24,1931, stressed the numerous sacrifices already made (the successive reductions in the German debt, the executing in advance of the evacuation of the third Rhineland zone in exchange for a complete and definitive settlement of the reparation problem) and emphasized what the French government considered the broader implications of the European economic crisis: factors which could not be resolved by the mere postponement of Germany's payments under the Young Plan. 1 0 0 After prolonged negotiations the American and French governments reached an agreement, on July 6, 1931, for the postponement of the payment of intergovernmental debts from July 1, 1931, to June 30, 1932. 1 0 1 A committee of experts, provided for in the Franco-American agreement of July 6, 1 0 2 met in London, in August, 1931, to consider the factors essential to "reconcile the material necessities with the 98 Ibid., p. 482; also Royal Institute of International Affairs, Documents on International Affairs, 1 9 3 1 , pp. 1 1 4 f. 99 United States, Department of State, op. cit., p. 487. 100 Sec the note of the Frcnch government, ibid. 101 Ibid., No. 93, July n , 1 9 3 1 , pp. 41 f. President Hoover's proposal was accepted by the governments of Austria, Belgium, Bulgaria, Czechoslovakia, France, Germany, Hungary, Italy, Japan, Poland, Portugal, Rumania, the United Kingdom of Great Britain, and also as regards relief debts by the governments of Denmark, Holland, Norway, Sweden, and Switzerland. See Documents on International Affairs, 1 9 3 1 , p. 1 1 8 . io: Paragraph 4 (c). Ibid., pp. 1 1 8 ff.

REVISIONS OF PART VIII

249

spirit of President Hoover's proposal." It was decided by the committee representing the creditor-powers that "effect should be formally given to the suspension of payments under the New Plan [Young Plan] by a Protocol, which would come into force after ratification and would have retroactive effect to July 1, 1931." 1 0 3 This protocol concerning Germany 104 is important from the standpoint of an agreement to suspend reparation payments and in the light of the failure of the signatory powers to ratify the Lausanne Agreement of June 16,1932, whereby the creditor powers accepted a proposal to terminate all reparation payments under the Young Plan. At the time of the London conference, in August, 1931, the problem causing a great deal of concern to certain governments was the revival of the reparation scheme following the period of the moratorium. Officials in Germany, France, and Great Britian sought a final solution of the reparation issue. Great Britain favored the cancellation of all intergovernmental debts. Failing this, she would reduce her claims against Germany to an amount equal to Great Britain's obligations to her creditors. Germany viewed the whole reparation set-up as unjust and impractical. The United States government had consistently refused to consider reparations and war debts in the same category.105 France sought adequate political compensation for her consent to modify the contractual arrangement with Germany. M. Laval, of France, visited President Hoover in Washington, in October, 1931, to discuss matters pertaining to intergovernmental debts, the recovery of international trade, and the forthcoming world disarmament conference. In a joint communiqué, issued on October 25, it was stated that prior to the expiration of the Hoover i " 3 Paragraph 12. See "Report of the London Committee of Experts, August 1 1 , 1 9 3 1 , " ibid., pp. 1 1 8 , 1 2 1 . 104 See "Protocol concerning Germany, August 1 1 , 1 9 3 1 . " Ibid., p. 124. 105 For statement of American government's position see President Hoover's announcement of June 27, 1 9 3 1 . Press Releases, No. 9 1 , p. 483.

250

REVISIONS OF PART VIII

Moratorium some agreement regarding intergovernmental debts would be necessary. T h e initiative in this matter, however, should be taken at an early date by the European powers principally concerned within the framework of the agreements existing prior to July 1 , 1 9 3 1 . 1 0 6 T h e Y o u n g Plan provided for the appointment of a special advisory committee by the Bank for International Settlements upon formal application by the German government, to hear the evidence pertaining to Germany's economic condition. 1 0 7 T h e report of the committee, convened under the agreement concluded at T h e Hague, on January 20,1930, 1 0 8 stated, in the conclusions of the committee, that "the adjustment of all inter-governmental debts (reparations and other war debts) to the existing troubled situations of the world . . . . is the only lasting step capable of re-establishing confidence which is the very condition of economic stability and real peace."

109

A n appeal was made to the governments upon

which the responsibility for action rested at the time to permit no delay in coming to decisions necessary to ameliorate the grave crisis. T h e British government suggested, on December 30, 1 9 3 1 , that an international conference should be called to consider the matter submitted by the committees which had completed their studies of the economic and financial crisis in Germany. A n announcement was made, on February 13, 1932, that Lausanne, Switzerland, had been selected as the meeting place of the powers concerned. T h e creditor powers stated that their objective was as follows : 109

Ibid., No. 109, October 3 1 , 1 9 3 1 , pp. 383 f. Royal Institute of International Affairs, Documents on International Affairs, 1 9 3 1 , p. 132. A communiqué issued by the London Conference, July 23, 1 9 3 1 , recommended the appointment of a committee of representatives nominated by the governors of the central banks to inquire into the immediate further credit needs of Germany. For the text of the report of the committee of experts appointed on the recommendation of the London Conference see ibid., pp. 133 ff. 108 Ibid., pp. 164 ff. The Basle Committee was appointed on the recommendation of the London Conference, 1 9 3 1 . The text of the Basle report was signed on August 18. Ibid., pp. 133 ff. 109 Ibid., p. 1 8 1 . 107

REVISIONS OF PART VIII

251

. . . to agree to a lasting settlement of the questions raised in the Report of the Basle Experts and on the measures necessary to solve the other economic and financial difficulties which are responsible for, and may prolong, the present world crisis. 110 T h e conference was opened at Lausanne, on June 16,1932. R a m say M a c D o n a l d , president of the conference, stated in his o p e n i n g address that "engagements solemnly entered into cannot be set aside by unilateral repudiation" and that "if default is to be avoided engagements w h i c h have proved incapable of f u l f i l l m e n t should be revised by agreement."

111

Germany's position was set forth in the f o l l o w i n g statement released by Chancellor von Papen, on June 29,1932: The confidence of the world could only be restored if the victorious Powers would bring themselves to eliminate the discriminations of the Versailles Treaty. If thereby Germany's equality of status and security were established, the Chancellor would consider it possible for Germany to pay her share towards the general effort to reconstruct world economy in the form of a contribution, of which the full restoration of economic equilibrium in Germany and in the world was naturally a prerequisite. 112 G e r m a n y sought the deletion of Article 231 of the T r e a t y of V e r sailles; the so-called "war-guilt clause." T h e Lausanne conference sat f r o m June 16 till July 9. T h e y finally

adopted a final act w i t h five annexed instruments, listed as

f o l l o w s : ( 1 ) agreement w i t h G e r m a n y ; (2) transitional measures p r o l o n g i n g the G e r m a n payments w h i c h had been suspended by the powers, o n June 1 6 , 1 9 3 1 ; ( 3 ) resolution on non-German reparations, r e c o m m e n d i n g the appointment of a special committee to study the questions; ( 4 ) resolution relating to the

financial

and

economic reconstruction of Central and Eastern E u r o p e ; ( 5 ) resolution relating to a w o r l d economic conference. 1 1 3 1,0

Royal Institute of International A f f a i r s , Documents

on International

Affairs,

1932,

p . 12. 111

The Times

113

Royal Institute of International A f f a i r s , Documents

p. 13.

( L o n d o n ) , June 1 7 , 1 9 3 2 , p. 14.

112

Ibid., June 30, 1932, p. 14.

on International

Affairs,

1932,

REVISIONS OF PART VIII

252

T h e most important provision in the agreement with Germany, July 7, 1932, was set forth in Article 2 as follows: On its coming into force the present Agreement will put an end to and be substituted for the reparation regime provided for in the Agreement with Germany, signed at T h e Hague on January 20, 1930, and the Agreements signed at London on August 1 1 , 1931, and at Berlin on June 6, 1932; the obligations resulting from the present Agreement will completely replace the former obligations of Germany comprised in the annuities of the " N e w P l a n . " 1 1 4

T h e agreement provided for Germany to make an eventual payment through the Bank for International Settlements of some three billion gold marks. This obligation was to be evidenced by bonds which were to be issued in such amounts and at such times as the world market would assure their absorption. T h e bonds could not be negotiated by the bank for at least three years ; not until July 9,

1935A proposal had been made for the establishment of funds for the general reconstruction of Europe. Under the Lausanne Agreement the proceeds from the German bonds were to be placed in a special account in the Bank for International Settlements. T h e final allocation of the funds would be decided in due course by the powers, other than Germany, signatory to the agreement. T h e procedure for handling this special fund implied that the German payments might be applied to the debt settlement with the United States. Before concluding the final agreement with Germany, four of the creditor powers negotiated, on July 2, a secret "Gentlemen's Agreement," providing that ratification of the Lausanne Agreement would not be effected until "a satisfactory settlement has been reached between them and their own creditors." In case they could not secure a satisfactory settlement of their war debts and the agreement was not ratified, the governments interested would consult together as to what should be done. In that event "the legal posi114

Ibid., pp. 14, 16.

REVISIONS OF PART VIII

253

tion" as between all the governments would revert to that which existed before the Hoover Moratorium. 1 1 5 It was evident to the government of the United States that the Lausanne conference had produced a united front and purpose among certain European creditor powers on the question of war debts. Congress had given notice at the time the Hoover Moratorium was approved that the members of Congress were opposed to the cancellation or reduction of the indebtedness of foreign countries to the United States. 1 1 6 T h e provisions of the Lausanne Agreement cancelled Germany's previous commitments under the Young Plan with the exception of the service on the Dawes Plan and the Young Plan loans, the Belgian mark settlement, the mixed claims, and the cost of the United States A r m y of Occupation. The cancellation was contingent upon the ratification of the Lausanne Agreement. T h e Lausanne conference marked the end of the long, tortuous conflict over reparations which extended from Paris, in 1919, to the Lausanne Agreement of July 7,1932. The final agreement signed at Lausanne was not ratified by the signatory powers and, therefore, was never put into force. Technically Germany may still be considered bound by the provisions of the Young Plan. There seems to be little possibility, however, under present conditions, of reviving the reparation payments on a basis of the agreements accepted prior to the Lausanne conference. A n attempt on the part of the creditor powers to require Germany to renew her obligations would undoubtedly precipitate a serious international crisis. All Europe had suffered from the attempts to impose an uncertain financial and commercial scheme upon Germany at the close of the World War. Numerous attempts were made to relieve the strain by revising the original terms of the treaty agreement. First the amendments adopted to alter the provisions in Annex II to Part V I I I of the treaty failed to provide the necessary readjustments. Fi115

Ibid., p. 22. The "Gentlemen's Agreement" was signed by the representatives o£ Belgium, Great Britain, France, and Italy. 118

Ibid., 1931, pp. 130 f.

254

REVISIONS OF PART VIII

nally, the powers that had amended Annex II were forced to initiate new agreements outside the treaty provisions and without authorization of any treaty clause, which resulted in terminating the reparation settlement embodied in Part VIII of the Treaty of Versailles.

CHAPTER XI CONCLUSIONS I A M O N G all the articles of the Treaty of Versailles which contemplate a variety of changes to be affected in the peace settlement there is not a single provision which purports to confer upon a contracting State a legal right to free itself from its treaty commitments or to require a revision of the terms of the agreement. The Principal Allied Powers dictated the terms of the treaty, in 1919, and imposed a settlement upon Germany which was intended to give them greater security and safeguard their position of supremacy. While they contemplated the relinquishment of some of the prerogatives of their commanding position as victors, such as the transitory arrangements, they did not propose to afford Germany an opportunity to escape the legal burdens imposed upon her in the treaty. The lack of legal or moral restraint on the part of the Allied Powers to abstain from exercising compulsion to produce Germany's acceptance of the settlement did not presage a willingness on their part to grant Germany a right to escape what had been gained at terrific costs. There was general recognition of the necessity for providing permanent processes whereby the settlement of 1919 itself could be modified, but the question of treaty revision was so tied up with the requirements for national security, as they saw it, that the Allied Powers could not bring themselves to accept a definite commitment to revise the treaty at a later date. The complexity of the problems pertaining to the conservation of the advantages gained during the war made the victors extemely cautious in adopting any measures which might compromise their position of advantage. The proposal for treaty revision which afforded the greatest

256

CONCLUSIONS

possibility for modifying the contractual arrangement was the one submitted by President Wilson during the preparation of the League Covenant. Due to French opposition and to the objections raised by David Hunter Miller, the plan was dropped. Neither the provisions in the Treaty of Versailles nor the records of the conference proceedings indicate in any contingency an intent on the part of the signatory powers to give any contracting party a right to require a release from its legal commitments. Sufficient facilities for revising the treaty terms were made available to the contracting parties in case the willingness to revise should be present. Arrangements for the voluntary employment of certain agencies and procedures marked the extent of the acceptance by the Allies of proposals for treaty reconsideration and possible readjustments. The most important modifications contemplated involved amendments to Part I, Part XIII, and Annex II to Part VIII of the treaty. These changes could be effected in a manner that avoided the necessity for all signatory powers to participate in each new agreement. There was no stated period of time required for the contracting parties to undertake the work of amending the provisions cited above. There was likewise no uniform plan for the number of States required to ratify the proposed changes. In the case of the Covenant of the League of Nations a majority of the members of the Assembly together with all the members of the Council were required to ratify a protocol of amendment; a three-fourths majority was required to amend the provisions in Part XIII, and a unanimous approval of the governments represented on the Reparation Commission was necessary to amend the terms of Annex II to Part VIII. There was no legal obligation accepted by or imposed upon the contracting parties to perform the function of modifying by amendments or by any other method the provisions of the agreement. The use of the agencies and procedures stipulated was voluntary and, therefore, a matter of policy, not of law.

CONCLUSIONS

257

With so many discordant policies reflected in the emphases of the parties to the Treaty of Versailles, and in view of the lack of authority of the treaty agencies to compel adherence to the proposed courses of action, there was little likelihood that the powers would avail themselves of the treaty machinery to modify the settlement of 1919. Something more than procedural stipulations and the establishment of machinery for the readjustment of treaty relations was required. T h e members of the various bodies provided for in the treaty could propose changes in the provisions relating to the organization and function of such bodies. There was no obligation whatever on the part of the other members to carry out the requests or suggestions for modification. Furthermore, the authority delegated to a body such as the League of Nations to "advise," to "recommend," and to "approve" certain action by the members relative to treaty modifications, did not impose an obligation upon the member States to acquiesce in the League's decisions, except in the cases in which Germany was obligated to abide by the League's action in extending or modifying provisional arrangements. A number of treaty stipulations were designed to extend or modify contingent legal obligations. T h e action contemplated involved a fulfillment of treaty terms, which established transitory or provisional controls, rather than a revision of the legal obligations. T h e treaty dealt very briefly with the procedure to be followed by the various agencies through which the powers might undertake some modification of their agreement. Those preparing the treaty text failed to specify the procedure to be employed in effecting a revision of the terms, except in the case of amendments to certain parts of the agreement where the powers were to direct their efforts through designated agencies. The lack of a uniform approach to questions of procedure was due in part to the failure to co-ordinate the work of the separate committees and commissions authorized to prepare various parts of the treaty text. T h e procedure to be fol-

258

CONCLUSIONS

lowed by the designated agencies in u n d e r t a k i n g modifications of the original settlement would have to be determined by the parties at the time the questions of revision were considered.

II T h e most important treaty revisions effected by w a y of fresh agreements w i t h the intent to m o d i f y the original arrangements were not provided for in the Treaty of Versailles ; at least no definite provision was made for the changes w h i c h were set forth in the three separate agreements regarding reparation—the D a w e s Plan, the Y o u n g Plan, and the Lausanne A g r e e m e n t . These modifications were made by a proccss which was not stipulated in the treaty and by a varying number of parties to the original agreement. T h e governments that participated in the L o n d o n conference, in 1924, the conference at T h e H a g u e , in 1929, and 1930, and the Lausanne conference, 1932, w h e n the new reparation agreements were accepted, did not include all of the original signatory powers. Furthermore, the number of governments participating in each conference varied f r o m the eight invited to L o n d o n to accept the D a w e s Plan to the twenty that signed the Y o u n g Plan agreements at T h e H a g u e and the twelve that signed the Lausanne A g r e e m e n t abolishing reparations. Ratification of the Lausanne A g r e e m e n t was made dependent upon the terms of a special arrangement set forth in a "Gentlemen's A g r e e m e n t , " w h i c h was signed by only four of the original contracting parties. T h e varied number of States that were parties to the separate agreements and their action taken without definite authorization of the original contractural provisions, constitute one of the most important aspects of the revisions of the Treaty of Versailles. N o t only did these powers effect modifications without reference to the treaty stipulations but also the procedure and methods employed were outside the scope of the treaty arrangements. This was no doubt inevitable in view of the indifference of most contracting parties to the rights of a few powers to

CONCLUSIONS

259

collect reparations; also to the difficulties involved in securing the unanimous approval of all the signatory powers to a general revisory arrangement. N o serious objection appears to have been raised to the efforts of a minority of powers to liquidate the financial commitments set forth in the peace treaty. T h e amendments to Part I, Part XIII, and A n n e x II to Part V I I I of the treaty were of secondary importance so far as correcti n g the real causes of controversy over the settlement was concerned. T h e fact that the powers achieved a modification of the treaty terms by amendments w o u l d seem to warrant further consideration of the possibilities of extending this procedure to alter the provisions of multipartite treaties; especially w h e r e there are as m a n y parties to the arrangement as the membership in the L e a g u e of Nations and the International Labor Organization presents. T h e amendatory procedure has been sufficiently effective w h e n the contracting parties were not too involved in outside political controversies. T h e chief drawback to the use of the machinery for m o d i f y i n g the settlement of 1919 has been the unwillingness of the contracting parties to co-ordinate their efforts and to forego whatever advantages m i g h t arise for them to bargain f o r some rew a r d f o r their consent to a change. T h e agencies created by the treaty lacked the authority to decide and the power to enforce their decisions in many cases w h e r e action was needed. O n e of the most discouraging factors in the account of post-war efforts to achieve a modification of certain treaty provisions has been the delay w h i c h regularly occurred between the acceptance of some scheme to effect a change and the actual inception of the n e w agreement. T h e entire world has suffered f r o m the misfortunes arising f r o m the attempt to dictate a settlement of the war problems. A t present there is great confusion regarding the status of the peace treaty and the rights and duties of the contracting parties as a result of the limited revisions of the original terms of the agreement, repudiation of various treaty commitments, negotiation of arrange-

2Ô0

CONCLUSIONS

ments unrelated to the peace treaty, the execution of various stipulations, and the foregoing of contractual rights to avoid military conflicts. T h e failure of the contracting parties to make a mere flexible arrangement for modifications or adjustments of the treaty provisions may be considered a primary cause of the critical conditions in the field of international l a w and relations w h i c h n o w confront all nations. O n e cannot but w o n d e r w h a t the results m i g h t have been had the A l l i e d Powers accepted at Paris the proposal w h i c h w o u l d have enabled the belligerent powers to effect in a more orderly manner revisions of the Treaty of Versailles.

BIBLIOGRAPHY

BIBLIOGRAPHY T H I S study is based primarily on the text of the Treaty of Versailles, the records of the Peace Conference proceedings in 1919, and the subsequent agreements effecting some change in the original treaty terms. This source material has been supplemented by interpretations of the developments bearing direcdy on the revisions of the peace treaty. The chief topic of interest has been the practice of States in preparing a multipartite treaty at the close of a protracted war and in handling their conflicting interests within the scope of the accepted provisions. The materials relating to the Treaty of Versailles have reached such proportions that a selected bibliography is necessary to limit a study of this type to reasonable requirements of time and space. Since most of the official records and documents relating to the questions selected for study were originally prepared in English texts, translations into other languages being made in many instances from these drafts, the materials in English have been the chief source of information for the preparation of this study.

TREATIES OF PEACE, 1 9 1 9 - 2 3 Treaty of Peace between the Allied and Associated Powers and Germany; Signed at Versailles, June 28, 1919. Carnegie Endowment for International Peace ( N e w Y o r k , 1924), 2 vols. Treaty of Peace between the Allied and Associated Powers and Austria; Signed at Saint-Germain-en-Laye, September 10, 1919. Treaty of Peace between the Allied and Associated Powers and Hungary; Signed at Trianon, June 4, 1920. Treaty of Peace between the Allied and Associated Powers and Bulgaria; Signed at Neuilly-sur-Seine, November 27, 1919. Treaty between the United States and Germany; Signed, August 25, 1921, to Restore Friendly Relations Existing between the T w o Nations Prior to the Outbreak of War. Conditions of Peace with Germany; Exchange of Notes between the German Peace Delegation and the Allied and Associated Powers respecting the Conditions of Peaces Presented to Germany on May 7, 1919 . . . Washington, Govt. Print. Off., 1919 (U.S. 66th Cong., 1st sess. Senate. Doc. 149). Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace . . . London, H . M .

264

BIBLIOGRAPHY

Stationery Off., 1919 (Gt. Britain Foreign Office; Miscellaneous, N o . 4 [ 1 9 1 9 ] ) C m d . 258. Treaty of Peace with Germany, Hearings before the Committee on Foreign Relations . . . Washington, Govt. Print. Off., 1919 ( U . S . 66th Cong., ist sess. Senate. Doc. 106). Treaty of Peace with Austria. Letter of Allied and Associated Powers Transmitting to the Austrian Delegation the Treaty of Peace with Austria . . . Washington, Govt. Print. Off., 1919 (U.S. 66th Cong., ist sess. Senate. Doc. 1 2 1 ) . TREATY

COLLECTIONS

British and Foreign State Papers ( L o n d o n ) . Fuachille, Paul, Traité de droit international public (Paris, 1926). Great Britain, Treaty Series (London, 1892- ) . Hertslet, Sir Edward, T h e Map of Europe by Treaty (London, 1875- ) . Hudson, Manley O., International Legislation (Washington, 1 9 3 1 - 3 7 ) . League of Nations, Treaty Series (London, 1920- ) . Malloy, William M., Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers, 1776-1909 (Washington, 1910-23). Martens, G . F . von, Nouveau recueil général de traités, deuxième série (Göttingen-Leipzig, 1876-1908). United States, Treaty Series (January, 1908, N o . 489- ) . OFFICIAL REPORTS AND PUBLICATIONS

Great Britain, White Papers, C m d . 1547, 2105, 2184, 2270, 3343, 3947, 3995, 4126. United States, Department of State, Foreign Relations, 1910. Press Releases, N o . 91, June 27, 1 9 3 1 ; N o . 109, October 3 1 , 1931. Department of Commerce, "American Underwriting of German Securities," Trade Information Bulletin, N o . 648. League of Nations Official Journal (1920- ) . Records of the Assembly, Plenary Meetings (1920Meetings of the Committees. Council, Minutes (1920- ) .

).

BIBLIOGRAPHY

265

Committee on Amendments to the Covenant. First Report of the Committee to the Council. June 17, 1921. Doc. A . 24. 1921. V . Second Report of the Committee to the Council, September 9, 1921. Doc. A . 24 ( 1 ) , 1921. V . Report to the Third Assembly, September 1 1 , 1 9 2 2 . Doc. A . 55.1922. V . Report of the Committee for the Amendment of the Covenant of the League of Nations in Order to Bring It into Harmony with the Pact of Paris, Records of the Assembly (1930), Meeting of Committee I. Amendments to the Covenant. Protocol of an Amendment to Article 16, adopted by the Fifth Assembly of the League of Nations. Doc. A . 123. 1924. V . Documents relating to the Questions of the Application of the Principles of the Covenant (Geneva, 1936). Supplementary Report on the Work of the League of Nations, Geneva, August 31, 1929. Doc. A . 6 (a). 1929. Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court. Ratification of Agreements and Conventions Concluded under the Auspices of the League of Nations. A . 6 (a). 1938. Annex I. V . Monthly Bulletin of Statistics, November, 1923. International Labor Conference, First Annual Meeting October 29 to November 29, 1919 (Washington, 1920). League of Nations Doc. A . 24 ( 1 ) 1921, p. 9. International Labor Office International Labor Conference (Geneva, 1920- ). Official Bulletin (April, 1919- ). Report on the Institution of a Procedure for Amendment of Conventions (Geneva, 1924). T h e International Labor Organization. The First Decade (London, i93i)Nineteenth Session. Report of the Director (Geneva, 1935). Yearbook, 1933 (Geneva). Permanent Court of International Justice Annual Reports, Series E—Nos. 10 to 13 (January, 1922- ). Publications . . . Series A / B , No. 41. Customs regime between Ger-

266

BIBLIOGRAPHY

many and Austria. Protocol of March 19, 1931, and Advisory Opinion of September 5 , 1 9 3 1 . (1931— ). Reparation Commission Official Documents. Publications (London, 1922-30) ; also (Paris, 192228). Official Documents relative to the Amount of Payments to be Effected by Germany under Reparation Account . . . (London, 1923), V I . Agreements concerning Deliveries in Kind to Be Made by Germany under the Heading of Reparations . . . (London, 1922), II. Report on the Work of the Reparation Commission from 1920 to 1922 . . . (London, 1923), V . Reports of the Expert Committees Appointed by the Reparation Commission . . . (London, 1924), Cmd. 2105. T h e Experts' Plan for Reparation Payments . . . (London, 1927). Report of the Agent-General for Reparation Payments, May 30, 1925, November 30, 1925, December 10, 1927 (London). Settlement of the Reparation Problem, Report of the Committee of Experts, 1929 (London, 1929). International Agreement on the Evacuation of the Rhineland Territory (Miscl. No. 7,1929, Cmd. 3417). Lausanne Agreements, Documents on International Affairs, 1932, Royal Institute of International Affairs (London, 1933). TREATISES AND MONOGRAPHS

Almond, Nina, and Lutz, Ralph Haswell, editors, The Treaty of St. Germain, a Documentary History of Its Territorial and Political Clauses with a Survey of the Documents of the Supreme Council of the Paris Peace Conference (Stanford University, 1935). A n Introduction to a Bibliography of the Paris Peace Conference; Collections of Sources, Archive Publications, and Source Books (Stanford University, 1935). Baker, Ray Stannard, Woodrow Wilson and World Settlement ( N e w York, 1923), 3 vols. Baruch, Bernard M., The Making of the Reparation and Economic Sections of the Treaty ( N e w York, 1920). Bassett, John Spencer, T h e League of Nations ( N e w York, 1928). Benes, Eduard, My W a r Memoirs (Boston, 1928).

BIBLIOGRAPHY

267

Benes, Eduard, T h e Austro-German Customs Union Project (Prague, 1931). Bergmann, Carl, T h e History of Reparations (London, 1927). Bourquin, Maurice, editor, Collective Security, a Record of the Seventh and Eighth International Studies Conferences (Paris, 1936). Carnegie Endowment for International Peace, T h e Paris Peace Conference, History and Documents. General editor, James Brown Scott ( N e w York, 1934- ). Chamberlain, Joseph P., T h e Regime of the International Rivers : Danube and Rhine ( N e w York, 1923). Clark, J. Reuben, Data on German Peace Treaty (Washington, 1919). Dean, Vera Micheles, "Political Realignments in Europe," Foreign Policy Reports, Vol. I X , N o . 5, pp. 46-56. — " T o w a r d a N e w Balance of Power in Europe," Foreign Policy Reports, Vol. X , N o . 5, pp. 54-68. Fay, Sidney B., T h e Origins of the World War, 2d ed. rev. ( N e w York, 193°) • Garnett, J. C . M., Treaty Revision and the Covenant of the League of Nations (London, 1933). Glaise-Horstenau, Edmund von, T h e Collapse of the Austro-Hungarian Empire ( N e w Y o r k , 1930). Goellner, Alader, L'Article 19 du Pacte de la Société des Nations; la revision des traités sous le régime de la Société des Nations (Paris, 1925). Gower, Sir Robert, Treaty Revision and the Hungarian Frontiers (London, 1936). Graham, Malbone W., Jr., N e w Governments of Central Europe (London, 1924). Guétant, Louis, L a Revision du traité de Versailles (Paris, 1925). Harvard L a w School, Research in International L a w , III. L a w of Treaties. D r a f t Convention Prepared for the Codification of International L a w (Washington, 1935). Haskins, Charles H . , and Lord, Robert H., Some Problems of the Peace Conference (Cambridge, 1920). Hayes, Carlton J. H., A Political and Cultural History of Modern Europe ( N e w Y o r k , 1932, 1936), 2 vols. House, E . M., and Seymour, C., What Really Happened at Paris ( N e w York, 1921). H u , Hoen Z., Treaty Revision under Article Nineteen of the Covenant (New York, 1931).

268

BIBLIOGRAPHY

Hudson, Manley O., The Permanent Court of International Justice ( N e w York, 1934). Hughes, Charles E., The Pathway of Peace (New York, 1925). Hyde, C. C., International L a w Chiefly as Interpreted and Applied by the United States (Boston, 1922), 2 vols. Charles Evans Hughes, American Secretaries of State and Their Diplomacy (New York, 1929), X , 201-401. Jessup, Philip C., The United States and the World Court (Boston, 1929). The Permanent Court of International Justice: American Accession and Amendments to the Statute, International Conciliation, November, 1929, No. 254, pp. 541-51. Keynes, John M., The Economic Consequences of the Peace (London, i920)• Kidd, George, Reform of the League of Nations, Geneva Special Studies, V , Nos. 7-8,1934. Kleinwaechter, F . F . G., Self-determination for Austria (London, 1929). Kommentar zum Friedensverträge. Editor, Dr. Walther Schücking (Berlin, 1920-21), 8 vols. Kommentar zum Friedensverträge. Urkunden zum Friedensverträge vom Versailles vom 28. juni, 1919. Dr. Herbert Kraus and Gustav Rödiger (Berlin, 1920-21), 2 vols. Kunz, Josef L., Die Revision der Pariser Friedensverträge (Wien, 1932). L a Documentation internationale: la Paix de Versailles. General editor: A . G . de Lapradelle (Paris, Les Editions Internationales, 1929- ). League of Nations, Secretariat, Ten Years of World Co-operation (London, 1930). Lessing, Otto Edward, Minorities and Boundaries (The Hague, 1931). McBain, Howard Lee, and Rogers, Lindsay, The New Constitutions of Europe (New York, 1922). Marriott, J. A . R., The Eastern Question, 3d ed. (Oxford, 1924). Miller, David Hunter, Reservations to Treaties, Their Effect, and the Procedure in Regard Thereto (Washington, 1919). My Dairy at the Conference of Paris, with Documents (New York, 1924), 21 vols. The Geneva Protocol (New York, 1925). The Drafting of the Covenant (New York, 1928), 2 vols. Moore, J. B., International L a w and Some Current Illusions (New York, 1924). Morley, Felix, The Society of Nations (Washington, 1932).

BIBLIOGRAPHY

269

Mowat, R. B., A History of European Diplomacy, 1914-25 (New York, 1927). Noble, George Bernard, Policies and Opinions at Paris, 1919 (New York, 1935). Phillimore, Sir Walter G . F., Three Centuries of Treaties of Peace and Their Teaching (London, 1919). Potter, Pitman Benjamin, The Revision of Treaties, Geneva Special Studies, III, No. 9, 1932. Reform of the League, Geneva Special Studies, V I I , No. 7, 1936. Radoïkovitch, M. M., La Revision des traités et le Pacte de la Société des Nations (Paris, 1930). Ray, Jean, Commentaire du Pacte de la Société des Nations (Paris, 1930). Rhoads, Grace Evans, Jr., Amendments of the Covenant of the League of Nations Adopted and Proposed (Philadelphia, 1935). Riches, Cromwell A., The Unanimity Rule and the League of Nations (Baltimore, 1933). Royal Institute of International Affairs, Documents on International Affairs, 1928- (London, 1929- ). Scelle, Georges, Une Crise de la Société des Nations (Paris, 1926). Schiff, Victor, The Germans at Versailles, 1919 (London, 1930). Seton-Watson, R. W., Treaty Revision and the Hungarian Frontiers (London, 1934). Seymour, Charles, The Intimate Papers of Colonel House (New York, 1926-28), 4 vols. Shotwell, James T., War as an Instrument of National Policy (New York, 1929). editor: The Origins of the International Labor Organization (New York, 1934), 2 vols. Tardieu, André, The Truth about the Treaty (Indianapolis, 1921). Temperley, Harold W . V., editor. A History of the Peace Conference of Paris (London, 1920-24), 6 vols. Tobin, Harold J., The Termination of Multipartite Treaties (New York, 1933). Toynbee, Arnold, Survey of International Affairs 1920- (Oxford University Press, 1927- ). Williams, Sir John Fischer, Some Aspects of the Covenant of the League of Nations (London, 1934). Woolf, Leonard S., The Framework of a Lasting Peace (London, 1917). International Government (New York, 1916).

270

BIBLIOGRAPHY

ARTICLES

Binkley, Robert Cedric, " T e n Years of Peace Conference History," T h e Journal of Modern History, I, 607-29. Brierly, J. L., "Some Considerations on the Obsolescence of Treaties," Problems of Peace and War, T h e Grotius Society (London), X I , 11-20. British Year Book of International L a w , T h e (1920- ). Daggett, A . P., " T h e Regulation of Maritime Fisheries by Treaty," A m . J. I. L., X X V I I I , 693-717. Deak, F., " T h e Movement for Revision of the Peace Treaties," in Proceedings of the Institute of Citizenship, 4th session, Emory University, 1931, pp. 67-76. Garner, James W., "Questions of State Succession Raised by the German Annexation of Austria," A m . J. I. L., X X X I I , 421-38. Garnett, J. C. M., "Treaty Revision and the Covenant of the League of Nations," Publication, League of Nations Union (London, 1933), N o . 353. Hudson, Manley O., " T h e Revision of the Statute of the World Court," Foreign Affairs, I X , 341-45. "Amendment of the Covenant of the League of Nations," 38 Harvard L a w Review, pp. 903-53. "Amendment of the Covenant of the League of Nations with a View to Its 'Separation from the Treaties of Peace,'" A m . J. I. L., X X X I I I , 138-45. Hyde, C. C., "Conquest Today," A m . J. I. L., X X X , 471-76. " T h e Revision of Treaties," The Hungarian Quarterly, II, (1936-37), 203-12. Jessup, Philip C., "Revising the Statute of the Permanent Court of International Justice," A m . J. I. L., X X I V , 353-56. Keen, F. N., "Revision of the League of Nations Covenant," Problems of Peace and War, The Grotius Society (London), V , 95-108. K u n z , Josef L., "The Problem of Revision in International L a w , " A m . J. I. L., X X X I I I , 33-55. Lamont, Thomas W., " T h e Final Reparations Settlement," Foreign Affairs, V I I I , 336-63. Llewellyn-Jones, Frederick, "Treaty Revision and Article X I X of the Covenant of the League of Nations," Problems of Peace and War, The Grotius Society (London), X I X , 13-31.

BIBLIOGRAPHY

271

Manning, C. A . W., " T h e Proposed Amendments to the Covenant of the League of Nations," T h e British Yearbook of International L a w , 1930, pp. 158-71. Moon, Parker T . , " T h e Need for Peaceful Change in Europe and the Far East," Proceedings of the American Society of International L a w (Washington, 1936), X X X - X X X I , 26-31. N e w Fabian Research Bureau, "Revision of Treaties and Changes in International L a w , " (London, 1934), No. 14. N e w Y o r k Times, The, March 14, 1938. Rolin-Jaequemyns, M . G., "Chronique du droit international (188586)," Revue de droit international (Leipzig, 1887), X I X , 37-49. Schiicking, W., " L e Développement du Pacte de la Société des Nations," Hague Académie de Droit International, Receuil des cours, X X ,

349"58Tobin, Harold J., " T h e Role of the Great Powers in Treaty Revision," A m . J. I. L., X X V I I I , 487-505. Whitton, John B., " T h e Sanctity of Treaties," International Conciliation, October, 1935, No. 313. Williams, Sir John Fischer, " T h e Permanence of Treaties," A m . J. I. L., X X I I , 89-104.

INDEX

INDEX Abyssinia, 4211 Agent-General for Reparation Payments, 228, 235, 238, 24011 Aggressor, method of determining left unsettled, 166 Agreements outside framework of League, 1 2 1 , 180 Allied and Associated Powers, correspondence concerning German Observations on the Conditions of Peace, 38, 79, 84, 93, 97, 102, 109, 1 1 2 , 2 2 m Alsace-Lorraine, France's efforts to recover, 25 Amendment procedure, 41 ff., 124, 17076, 197-205, 257, 258; various applications of, 42«, 43»; provisions for, before application of revision principle, 170-76; method of initiating, 1 7 1 ; adoption in form of protocol, 195», 200; treaty ratification involved in, 197 Amendments Committee, 123 ff., 198 American Inquiry report to Wilson, 99» American Institute of International Law Project No. 2 1 , Art. 4 of text, 44« Anschluss Law, 108« Arbitration, court of, League members free to choose, 154 Arbitration, of international disputes, 147 ff., 150-55; compulsory, 1 5 2 ; as alternative to judicial settlement, 1 5 3 , 159; of reparation disputes, 209, 218, 219, 228 Argentine Republic, The, 137», 1 5 1 ; plan to achieve universality of membership in League, 125, 128; International Labor Office representation, 185 Armistice Agreement, provision for reparation, 62 n Australia, 246 Austria, 245, 246, 250»; independence of, 98-108; efforts of German-Austrians to unite with Germany, 98 ff.; "Imperial Manifesto Federalizing the Austrian Lands," 98; St. Germain Treaty, toon, 105, io8n, 206 n; official complaint against Allies' action, 102; reply to, 1 0 5 ; special provision in German Constitu-

tion for representation of "GermanAustria" in the Reichsrat, 103 ff.; responsibility for World War effects, 106; customs union, 107; right to require revision of legal commitments, not recognized, 108; reparation, 239, 244, 246 Austro-Hungarian Empire, confusion in rail transport caused by break-up of, 30, 82; broken by separatist movements, 98, 106; evils of, 106

Baker, Philip J. N., 174 Baldwin, Stanley, 223 Balfour, Arthur James, Lord, 9; stand against revision of Covenant, 122 Bank for International Settlements, 239, 240, 241, 243, 244, 247, 248, 2 5 1 , 253 Barnes, George N „ 56, 59 Basle Committee, 25 m , 252 Belgium, 32n, 55n, 56, 91, 139, 149, 201, 247; reparation, 67, 2 1 2 , 216, 2 1 7 , 2 1 8 ; 220, 229, 236, 240, 241, 246, 247, 2500, 254/1; membership on Council, 1 3 2 , 1 3 3 ; International Labor Office representation, 18311, 184, 1 8 5 ; Ruhr occupation, 222, 224 Berne, conventions and arrangements re transportation of goods by rail, 29, 80, 82, 84 Bilateral treaties, prewar, 7 Bismarck, Prince von, merging of German States by, 99 Blockade Committee, see International Blockade Committee Bolivia, 59, 201 Borden, Sir Robert, 59 Bowman, Isaiah, 12 Brazil, 42», 1 3 1 , 2 0 1 ; membership on Council, 130, 1 3 2 , 133, 136, 1 3 7 , 138 British, see Great Britain "British Draft Convention, January 20, 1 9 1 9 , " 1 3 ff.; see also Cecil, Lord Robert Bryce, Viscount, 9n Bulgaria, 245, 246, 250«; Treaty of Neuilly, 206»; reparation, 239, 244, 246

276

INDEX

Canada, 125, 193, 246; rivers, 3 1 ; International Labor Office representation, 184, 185, 193 Cecil, Robert, Lord, 16, 17, 21, 46, 129, ' 5 7 . 171; draft of Covenant ("British Draft Convention, January 20, 1 9 1 9 " ) , 13 ff.; proposals re treaty revision, 15, 18, 20; Cecil-Miller text, 16, 17; Covenant presented to plenary session of Peace Conference, 20, 46; conference with Wilson re territorial guarantee, 2 1 ; proposal for amending Covenant, 48; interpretation of intent of authors of Covenant, non; proposals re composition of Council, 137 Central Commission for the Rhine, 38 Central Committee on Territorial Questions, 100 Central Organization for a Durable Peace, gn Charles, Emperor of Austria, 98 Chile, 47, 139 China, 128, 131, 137», 245; membership on Council, 132«, 133, 137, 139; International Labor Office representation, 1 8 ; Claveille, Albert, 30, 34 Clemenceau, Georges, 101, i o m , 127n; official communication to German delegation, 109 ff. Colombia, 125, 139, 201 Commercial relations, 95-97 Commission appointed to prepare a draft Covenant, 8; legal advisers to co-ordinate work of committees and delegations, 17; Hurst-Miller draft accepted as basis for discussion by, 18, 43; meetings; texts presented to, 19 ff. Commission of Arbitration and Conciliation, 148, 154 Commission on International Labor Legislation, 183 Commission on Ports, Waterways, and Railways, authorized and appointed, 29; membership, 29»; questions considered by, 30; its specific task, 3 1 ; consideration of draft re international regime of rivers, 32; clauses intended for preliminary peace treaty reconsidered, 37; request that no modification be made in draft clauses, 39»

Commission on Reparation, see Reparation Commission Commissions of conciliation, 147, 148, 157. 158 Committee of Eleven, 198 Committee of Guarantees, 2 1 2 Committee on Amendments to the Covenant, 123 ff., 198 Committee on the Composition of the Council, 137 Communications, international, see Ports, Waterways and Railways Compulsion, instruments of, see Military coercion; Sanctions Compulsory arbitration, see Arbitration Conciliation procedure of the Covenant, >47 ff-. I55-6O Congress of Vienna, 38 Convention of Mannheim, 29, 33, 77 Costa, Alfonso da, 151 Costa Rica, 201 Council of Three, 127» Crespi, Silvio, 3 1 , 32, 36, 82 Cuba, 55», 59, 185 "Customs, Regulations, Duties and Restrictions," 96 Customs union, Austro-Gcrman, 107 Czechoslovakia, 5511, 125, 137, 139, 246, 250»; use of ports of Hamburg and Stettin, 29, 78, 85; creation of, 98, 101; threat of German-Austrian union to, 99; membership on Council, 133 Danube, administration of, 29, 33,

34,

35» 36. 38. 76. 77. 78 Davis, Norman H., reparation proposals, 64 Dawes, Charles G., 226 Dawes Committee, 69n Dawes Plan, 206, 216, 221-34, 259; adoption of, 217, 220, 229; provision for arbitration of disputes arising over, 219, 228; main provisions, 226; weaknesses, 235; changes caused by Young Plan, 237 ff., 243 Debts, governmental, Hoover Moratorium, 249 ff.; indebtedness to U.S., 253, 254; effect of Lausanne Conference, 254 Decisions, unanimity of vote for, 172, 202

INDEX Delevigne, Sir Malcolm, 56, 57 Denmark, 250»; stand on amendment to Covenant, 1 2 3 , 1 2 7 ; proposal re settlement of disputes, 148, 150, 1 5 2 ; International Labor Office representation, 185 Devastated areas, materials for the restoration of, 2 1 2 ff. Disputes, international, machinery for handling, 146-60 Dissent from amendments, 49, 50, 5 1 , 124, 174, 1 7 5 ; time limit for, 174, 176 Draft Treaty for Financial Assistance to States Victims of Aggression, 1 2 1 » Draft Treaty of Mutual Assistance, 1 2 m "Economic Clauses" of treaty, 95 Economic sanctions, 160-70; see also Sanctions Elbe, administration of, 29, 32, 3 3 , 34, 35. 36, 76. 78 Ecuador, 59 Estella, Marquis de, quoted, 1 3 2 » European Commission of the Danube, 29 Fabian Society, Draft Treaty sponsored by, 9 n Financial Assistance to States Victims of Aggression, Draft Treaty for, 1 2 m Fishing rights, 96 Five-year period during which reciprocity cannot be demanded, 85 (., 90 ff., 96 Fountain, Henry, 91 France, 1270, 134, 1 3 5 , 1 3 6 , 195, 247, 257; report of committee on a League of Nations, 9n; opposition to territorial readjustment, 1 5 ; efforts to recover Alsace-Lorraine, 25; representatives, 29, 3 ° . 3 3 " . 34. 54. 56. 1°'. " 5 . 229, 2 3 1 , 2 5 1 ; reparation, 67, 2 1 2 , 216-29 passim, 236, 240-54 passim; attitude toward freedom of commercial intercourse, 89 ff.; influence in preventing German-Austrian union, 100 ff.; stand on Council memberships, 133, 134 ff.; Pact of Locarno, 134, 1 3 5 ; refusal to ratify amendment of Art. 16, 165; International Labor Office representation, 183«, 184, 185, 1 9 1 ; restoration of devastated regions of, 2 1 3 ff.;

2 77

Franco-German reparation settlement endorsed, 2 1 3 ff.; policy of force against Germany, 2 2 1 ; Ruhr occupation, 222, 224 Freedom of transit, 79; special draft relating to, 87; Anglo-American formula, 88 ff. Fromageot, Henri, 2 3 1 , 233; FromageotHurst report, 233 Gcmmill, William, 186 "General Act," 1 2 m , 180 General Convention on International Rivers, 33 Geneva Protocol, 1 2 m , 1 5 2 0 "Gentlemen's Agreement" on reparation, 254. 259 Geographical factor in League representation, 128, 1 3 1 , 138 George Washington, conference on, 12 "German-Austrian Republic," 99 German Austrians, efforts to unite with Germany, 98 ff.; three alternatives confronting, 98 Germany, 135, 1370, 232, 246, 250/1, 252; compulsion upon, 5, 23 ff.; privilege of treaty modification withheld from, 6, 25, 26; League provisions against, 24; international regime of transit and transport in, 28-40, 75-95; stated areas in Hamburg and Stettin, 29. 78, 85; railways, 30, 78, 80-85, 86 ff.; attitude toward administration of rivers, 37; Allies reply to, 38; German Observations on the Conditions of Peace, 37, 83, 97, 102, 109, i n ; reply of Allied Powers, 38, 79, 84, 93, 97, 102, 109, 1 1 2 , 2 2 i n ; obligated to adhere to conventions re international regime of transit, waterways, ports or railways, 40; reparation, 62-73, 55 (see also Reparation); war guilt made basis of settlement, 63; attitude toward Reparation Commission and powers granted it, 70; bound by contingent legal obligation to abide by treaty terms, 75, 79, 8 1 , 84, 107, 256; claims right to enter League on footing of equality, 83; objection to treaty provisions re communications and transport, 83; re admission to League,

278

INDEX

Germany (Continued) 89, 90, 236; freedom of transit for Allied trade imposed upon, 90 ff.; economic burdens imposed by treaty, 95 IT.; efforts of German Austrians to unite with, 98 ff.; merging of German States by Bismarck, 99; Constitution adopted, 103; special provision in Constitution for representation of "German-Austria" in the Reichsrat, 103 ff.; note explaining position taken re future status of Austria, 104; customs union, 107; unilateral repudiation of treaty provision re independence of Austria does not terminate contractual obligations, 108; Anschluss Law, io8n; complete acceptance or refusal of conditions of peace demanded of, 111, 114; reasons for repudiation of treaty provisions, 117; withdrawal from League, 126; application for League membership, 133 IT.; terms of admission to membership, 135; Pact of Locarno, 134, 135; admitted to League and assigned permanent seat on Council, 139; International Labor Office representation, 184, 185, 191; Dawes Plan, 206, 216, 217, 219, 220, 221-34, 235. 237 ff-. *43. 259; Young Plan, 206, 234-48, 254; Lausanne Agreement, 206, 248-55; payments required of, 207, 208, 211, 234, 253; transfer of securities held by, 208; schedule of payments, 210 if.; bonds, 210, 243; materials for restoration of devastated areas, 212 ff.; Franco-German reparation setdement endorsed, 213 If.; default in payments, 222; objection to modification of Part VIII of treaty, 218; capacity to pay, 224, 225; abolition of foreign controls in, 237; liability for Austrian, Bulgarian, and Hungarian reparation, 239, 244, 246; difficulties caused by depression, 248 Great Britain, 67, 127«, 134, 135, 136, 171, 247; committee on a League of Nations, 9; representatives and delegations, 9, 13 ff., 29, 30, 31, 33, 34, 44, 48, 56, 59, 89, 90, 91, 101, 129, '37. '57, 171, 223, 229, 231, 247, 252; Cecil-Miller text of Covenant, 16, 17; Hurst-Miller draft of Covenant, 18 ff., 43, 141 f., 153; draft convention

re regulation of industrial conditions, 54 ff.; Anglo-American formula for freedom of transit, 88 ff.; stand on Council memberships, 130, 134 ff.; failure to limit Council to five major powers, 130; proposals re amendment of Art. 16, 165, 169; International Labor Office representation, 183«, 184, 185, 191; reparation, 212, 216, 217, 218, 220, 222 ff., 229, 236, 240, 241, 246, 247, 250, 252, 2541» Greece, 246; representative of, 45, 48 Guarantee clause becomes Art. 10 of Covenant, 19, 21 Guarantees, Committee of, 212 Hague conferences on reparation, 240, 241, 243, 245-47, 259 Hamburg, stated areas in port of, 29, 78, 85 Herriot, £douard, 229, 231 Holland, 139, 157, 2501»; proposes amendment to Art. 6 of Covenant, 143 Hoover, Herbert C., 249, 250», 251 Hoover Moratorium, 249 ff. House, Col. Edward M., 9, 10, 16, 18, 21; "Suggestions for a Covenant of a League of Nations," 9-12, 16; excerpt, 10 Hudson, Manley O., 33, 35, 36, 39, 90, 91 Hughes, Charles Evans, suggestion concerning reparation, 222 ff.; quoted, 223, 237 n Hungary, 245, 246, 250»»; Treaty of Trianon, 206»; reparation, 239, 244, 246; see alto Austro-Hungarian Empire Hurst, Sir Cecil, 101, 231, 233; appointed to co-ordinate work on draft Covenant, 17; Hurst-Miller draft, 18 ff., 43, 14: f., 153; Fromageot-Hurst report, 233 Imports and exports, 96 India, 246; International Labor Office representation, 184, 185, 187 Industrial conditions, international regulation, 54; see also International Labor Organization Industrial States, International Labor Office representation, 183 ff. Intercourse, prohibition of, 161, 164 ff. International Blockade Commission, 120»

INDEX International Blockade Committee, purpose and appointment of, 162; work on problem of sanctions, 163, 164, 166 International Commission of the Danube, 29 International disputes, machinery for handling, 146-60 International Labor Conference, 183 ff.; methods of adopting amendments, 61»; provision for expenses, 142; nationality of committee members, 186 n; constitutional reform of International Labor Organization, 189, 190, 20;; draft of revised Art. 393 of treaty, 191 International Labor Office, provision for expenses, 142; representation on governing body of, 183-96; non-European members, 186 ff.; appointment of substitutes, 188, 190; proposed "understandings," 189 International Labor Organization, provision for organization and function of, in Part XIII of treaty, 53; provision for amendments, 55, ; 6 ff.; draft proposals, 56, 57; constitution to be made an integral part of peace treaties, ; 8 ; membership in, independent of League membership, 6 1 ; body of delegates, 61 n; representatives authorized to effect treaty adjustments, 1 1 2 , 1 1 3 ; finances, 142; creation of, 183; constitutional reform, 189, 190, 20;; division of powers in, 190 International law, inadequate terminology, 3 International regime, railways and rivers, see Railways; Rivers Italy, 127/1, 247; representatives of, 29, 3 1 , 67, 82; reparation, 67, 212, 216, 217, 2t 8, 220, 229, 236, 240, 241, 246, 247, 2;on, 254»; absence of delegates from Peace Conference, ioin, 127»; withdrawal from League, 126; failure to enforce sanctions against, 170; International Labor Office representation, 183», 184, 1 8 ; , 191 Japan, 217, 246, 126;

127n, 247; reparation, 67, 216, 218, 220, 229, 236, 240, 241, 250n; withdrawal from League, failure to enforce sanctions against,

279

170; International Labor Office representation, 183», 184, 185, 191 Judicial settlements of disputes, 147 ff., 15«. >53. >59 Jugoslavia, name given to, 67»; reparation, 67, 217, 218, 220, 229, 246 Justiz, Dr. Francisco Carrera, 185 Kellogg-Briand Pact, 236; requests to bring Covenant into harmony with, 180 Kriegslasten^ommission, 247, 248 Labor, international safeguards for, 54; lack of precedents for drafting legislation, 55; see also International Labor Lamont, Thomas W., reparation proposals, 64 Lansing, Robert, 46 Lapointe, Ernest, 193 Latin American countries, representation in International Labor Office, 185 Lausanne Agreement, 206, 248-5;, 259; provisions, 253 Lausanne Conference, 252, 254, 259 Laval, Pierre, 251 League of Nations, proposals outlining organization and function, 9 ff.; function of body of delegates re treaty revision, 18 ff.; protection against Germany's threat to position of supremacy, 24; impotence in matter of treaty changes, 26 f., 40; advisory service re changes in Part XII of treat)', 28; made clearing house for international transit and transport affairs, 39; withdrawal from membership in, 4 ; - ; i passim; member States' dissent from amendments, 49. 50, 51. >24. >75. >76; withdrawal from membership would not affect labor organization membership, 61; Germany's application for membership, 83, 133 ff.; discussions re Germany's admission to, 89, 90; representatives authorized to effect treaty adjustments, 1 1 2 f.; scope and influence limited by absence of nonmembers, 120, 130, 162; efforts to meet problems created by post-war developments, 120; resolutions, 120n, 1 8 1 ; number of protocols of amendments voted and transmitted to member States, 1 2 1 ; rep-

28O

INDEX

League of Nations (Continued) rescntation on Council, 127-40; nonpermanent members, 127, 132, 137 ft.; majority rule, 128, 129, 172, 173, 175, 203; geographical factor in representation, 128, 1 3 1 , 138; representation of the great powers, 129, 140; efforts of small powers to win additional representation on Council, 129; alliances and balance of power on Council, 130 ff., 140; controversy over increasing Council membership, 130 ft.; intermediary class of powers, 1 3 1 ; claims for permanent seats on Council, 133 ft.; terms of Germany's admission to, 135; system of rotation introduced, 138; Germany admitted and assigned permanent scat on Council, 139, 236; Council membership increased, states elected, 139; marked change in Council membership, 140; apportionment of expenses, 141-45; Assembly made responsible for budget, 143 ft.; establishment of world court, 146; conciliation procedure, 147 ft., 155-60; arbitral procedure, 147 ft., 15055; submission of disputes to inquiry by Council, 147, 149; provision for handling disputes not submitted to arbitration or judicial settlement, by Council, 155-60; procedure of Council in settlement of disputes, 156; weakened by failure to enforce sanctions, 169 f.; vote of Council on amendments to Covenant, 170 ft.; ratification of amendments to constitution and functions of, 1 7 1 ; three alternatives in drafting agreement to establish, 177; summary of proposed reforms, 178 ft.; opposition to all efforts to modify structure of, or to revise terms of treaty, 178; jurisdiction re international negotiations, 181; withdrawal of members from, 181; Council's authority in matter of International Labor Office representation, 184, 187, 189, 193, 196; recommendations that amendments should take the form of protocols, 195n, 200; lack of authority to impose an obligation upon members, 258 Covenant: Article 19 an attempt to deal with reconsideration of treaties, 7-27; comprises Part I of Treaty of

Versailles, 7; special commission appointed to prepare draft Covenant, 8; House draft, 9-12, 16; British drafts, 9, 13 ft.; territorial readjustment, 10 ft., 24; Wilson drafts, 11-13, 14, 16 ft., i8n; territorial guarantee, 12 ft., 18, 19, 24, 26; definite ideas re treaty revision in American and British drafts, 16; differences in drafts necessitate co-ordination of work of different committees and delegations, 17; Hurst-Miller draft, 18 ft., 43, 141 f., 153; revised texts submitted to Commission, 20; to Peace Conference, 20, 46; Wilson draft of Miller proposal adopted, 20; territorial guarantee and treaty revision given different emphases in, 21; English version adopted, 22; adopted by Peace Conference, 23; lacks provision for revising treaties, 26; makes possible procedure for dealing with treaties, 26; provision for modifications of Part I of Treaty of Versailles, 41-53; provisions for amendments to, 44 ft.; ratification of amendments to, 45, 46, 48 ft., 52, 124, 200, 257; rights of a State dissenting from amendment to, safeguarded, 49, 124; question of regulations governing ratification and rejection of amendments to, 51; form in which proposals of amendment should be placed, 52; freedom of transit proposals, gon; amendments to Part I, 119-82; imperfections in drafting of, 1 1 9 ; contractual relations outside provisions of, 121, 180, 181; agreements that tend to take place of amendments to, 121/1; pressure for revision of, 122, 123, 125, 126; amendment procedure, 124, 170-76, 197-205; form for drafting amendments, 124, 126, 199; two classes of amendments, 125; drastic changes in, proposed, 125; provision for nonpermanent Council members, 127, 132; reasons for difficulty in amending, 140; number of proposals examined by committee on amendments, 160; no provision for deciding what action constitutes breach of,

INDEX League of Nations (Continued) 166; provision for opinion of Council re existence of breach of, and exclusion of parties to dispute from vote of Council, 167; status of provision allowing for modification of Part I of treaty, 176; amendments aimed to divorce Covenant from Treaty of Versailles, 176«; terms of, left League without sufficient power and authority, 1 7 7 ; modification of terms, summary, 178-82; requests to bring it into harmony with Kellogg-Briand Pact, 180; question of harmonizing with Pact of Paris, 198 Articles: proposed amendments to Preamble, Art. 1 , 4, 5, and Annex, 1 2 1 , 177«, 178 Art. 4, 120, 127-40, 201 Art. 5, unanimity of vote for decisions, 202 Art. 6, 120, 141-45, 201 Art. 10, 19, 2 1 Art. 1 2 , 120, 146 50, 156, 1 6 : , 201 Art. 1 3 , 120, 147, 148, 150-55, 156, 161 Art. 14, 146, 147, 1 5 3 Art. 1 5 , 120, 147, 148, 150, J 55-60, 161 Art. 16, 1 2 1 , 126, 160-70, 1760 Art. 19, 7-27; steps in its building, 20, 2 1 , 22; becomes an integral part of treat)-, 23; analyzed, 26; compared with Art. 377 of Treaty of Versailles, 39; classes of treaties to which it might apply, n o n Art. 23, 20, 90» Art. 26, 4 1 , 1 1 9 , 1 2 1 , 1 2 2 , 124, 125, 126, 1 3 3 , 170-76, 197-205 passim; as basis of draft proposal for labor organization, 56, 58, 60 League of Nations Society, 9n League to Enforce Peace, 9 n Lippmann, Walter, 100» Lloyd George, David, 29, 62 n, 10m, 127 n Locarno Pact, 1 2 m , 134, 1 3 5 , 136, 180, 236 London Agreement of Aug. 30, 1924, 219 London Conference, July, 1924, 230, 2 3 1 , 259

Loucheur, Louis, 56 MacDonald, Ramsay, 229, 2 3 1 ; quoted, 232, 252 Majority vote on amendments, 128, 129, 1 7 1 , 172, 173, 175, 197, 202 Mance, General, 34, 89 Mannheim Convention, 29, 33, 77 Maritime navigation regulation, 96 Marx, Doctor, quoted, 232 Matches, white phosphorus in, 55 Mezes, S. E., ioon Military coercion, 24, 160, 1 6 1 , 162, 166, 169 Miller, David Hunter, 2 1 , 22, 3 1 , 33, 49«, 100n, 257; opposition to revision of territorial settlements, 1 5 ; Hurst-Miller draft, 18 if., 43, 141 f., 1 5 3 ; memorandum on amendment to Art. VII of HurstMiller draft, 18, 19, 20; Cecil-Miller text, 16, 1 7 ; appointed to co-ordinate work on draft Covenant, 1 7 ; memorandum re amending process, 44 Model Treaties of Non-Aggression and Mutual Assistance, 1 2 1 » Moratorium, Hoover, 249 if. Moselle, river, administration of, 29, 36, 77 Most-favored-nation treatment, 83, 86 ff., 96 Motta, Giuseppe, 149 Multipartite treaties, prewar, 7 Mutual Assistance, Draft Treaty of, 1 2 m Nationality as criterion in applying sanctions, 164 ff. Nationals, intercourse between, prohibited, 1 6 1 , 164; meaning of term, 164 Navigation regulation, 3 1 » , 96; see also Ports; Rivers; Transit and Transport Netherlands, see Holland Neuilly, Treaty of, 2o6n, 246 Neutral powers submit amendment proposals, 47 New Plan, see Young Plan New Zealand, 246 Niemen, river, administration of, 29, 34, 35, 36, 38, 76. 78 Night work for women, 55 Non-Aggression and Mutual Assistance, Model Treaties of, 1 2 m Nonjudicial disputes, settlement of, 148

282

INDEX

Norway, i66n, 172, 250»; stand on amendment to Covenant, 123, 127, 139; proposal re settlement of disputes, 14859 passim Oder, river, administration of, 29, 32, 33, 34. 35. 36. 38. 76, 78 Panama, 42», 59, 201 Pan-American Pact, ion Papen, Franz von, quoted, 252 Paraguay, 201 Paris, Pact of, 1 2 m , 147»; question of harmonizing with Covenant, 199 Peace, proposals regarding organization of, 9; principles necessary for maintenance of, 12; superior importance, 12; British Draft Convention a guarantee of, 14 Peace, Treaty of, 3; see also Versailles, Treaty of Peace Conference, commission appointed by, to prepare a draft Covenant, 8; Covenant submitted to plenary session of, 20, 46; nature of peace negotiations, 23 ff.; adopts Covenant, 23; attitude toward treaty modification, 26; handling of transit and transport affairs, 29; action leading to labor organization, 54; handling of question of reparation, 62; origin of proposals to clarify terms of Art. 26, 1 7 1 ; establishment of a League of Nations, 177; creation of International Labor Organization, 183 Pensions in category of war damages, 63»,

66«

Percy, Lord Eustace, clause to Cecil-Miller text drafted by, 16, 17 Permanent Court of International Justice, procedure followed in amending the statute of, 42»; plans for establishment of, 146; statute, 147, 152; disputes to be submitted to, 148, 149, 1 5 1 , 153, 154, 243; compulsory jurisdiction of, 152 Persia, 137, 201 Peru, 42« Phillimore, Lord, draft Covenant, 9 Poincare, Raymond N. L., 225, 229 Poland, 55», 1 3 1 , 137«, 194, 246, 250«; struggles for restoration of, 25; independent state formed, 98; threat of German-Austrian union, 99; member-

ship on Council, 136, 137, 1 3 9 ; International Labor Office representation, 184, 185, 194 Political independence, guarantee of, 12, 18n Ports, administration of, 29, 30, 40; stated areas in Hamburg and Stettin, 29, 78, 85; favors and reduced tariffs for benefit of, 86 "Ports, Waterways and Railways" (Part XII of treaty), 28-40; international regime: Art. 379 of treaty, 75-80; clauses relating to, 3 ; f.; work of subcommissions, 81 Portugal, 128, 1 5 1 , 201, 246, 25OÎI Postal Union, 4311, 1 4 1 , 142, 144 Prohibition of intercourse, 1 6 1 , 164 ff. Protection, guarantee of, 15 Protocol, amendment adopted in form of, 1950, 200 Protocol for the Pacific Settlement of International Disputes, 121», 152» Pueyrredon, Honorio, 1 5 1 Racial conditions and aspirations as grounds for territorial readjustment, 11 Railways, administration of, 28, 30, 40, 78, 80-85, 86 ff.; Berne conventions re transportation of goods, 29, 80, 82, 84; clauses relating to, 35 f. Ratification of amendments to Covenant, provisions relating to, 45 ff., 124, 17076, 197, 200 ff.; time limit, 174, 176 Ratification of a treaty involved in amending process, 197 Reparation, Part VIII of treaty, 62-73, 1 1 3 . 206-55, 257, 259, 260; war guilt made basis of settlement, 63; proposals of American advisers, 64; terms of agreement covering, 66; principle of, fundamental in Art. 378, 94; Dawes plan, 206, 216, 217, 219, 220, 221-34, 235, 237 ff., 243, 259; agreements not specifically authorized by treaty, 206, 22155. 259; Young Plan, 206, 234-48, 259; Lausanne Agreement, 206, 248-55, 259; materials for restoration of devastated areas, 2 1 2 ff.; Franco-German settlement endorsed, 2 1 3 ff.; related to sanctions, 228, 2 3 1 , 233, 242, 243; Austrian, Hungarian, and Bulgarian, 239, 244, 246; instruments of agreement

INDEX Reparation (Continued) drawn up during Hague Conference, 241, 243, 245-47; Hoover Moratorium, 249 ff.; Franco-American agreement of July 6, 1 9 3 1 , 249; secret "Gendemen'i Agreement" on, 254, 259 Reparation Commission, authorized agency for handling reparation payments, 62; provision for amending terms dealing with, 62, 68, 7 1 ; reports of subcommittees, 63 f.; proposals of American advisers, 64; representation upon, 67, 216, 217; provisions governing, 68-70; Germany's attitude toward, 70; reasons for creation of, 7 1 ; authority to revise sections of treaty, 1 1 3 ; creation and function of, 206; organization committee, 206; main tasks, 207 ff.; right to require transfer of securities, 208; differences of opinion re treaty interpretation, submitted to arbitration, 209, 218, 219; Committee of Guarantees, 2 1 2 ; creation of two committees of experts, 2 2 ; ; abolition of, 238, 240», 241», 242, 248; final report, 247 Residence, as test for prohibition of intercourse, 164 S. Revision, term, 4, 6; see also Treaty revision Revisory provision, linking of territorial guarantee with, 19, 21 Rhine, administration of, 29, 33, 34, 36, 77. 78 Rhine-Danube waterway, 33, 34, 37, 38 Rhineland, occupation of, 236, 242, 249 Rhine-Meuse waterway, 38 Rivers, administration of, 28, 30 ff.; methods for international regime, 3 ; , 76-78; clauses relating to, 35 f.; riparian States' participation in, 37, 38; functions of the commissions, 38 Robinson, Henry M„ 226» Rolin, Henri, 149 Root, Elihu, amendment proposal, 46, 47n Rotation system introduced, 138 Ruhr occupation, 222, 224 Rumania, 29, 1 2 ; , 139, 246, 250» Russia, see Soviet Union St. Germain, Treaty of, 206«, 246; provisions re Austria, 100», 105, io8n

283

Salvador, 139, 201 Sanctions, authorized in Art. 16, 160; application of, 161 if.; lack of procedure pertaining to, 1 6 1 ; types, 1 6 1 ; risk of running counter to neutral rights of U. S., 162; assent by League commission to broad principle of, 166; rights and duties of member Sûtes, 167; automatic character of, questioned, 168; failure to enforce against Covenantbreaking States, 169, 170; related to reparation, 228, 231, 233, 242, 243 Scandinavian countries, proposals re settlement of disputes, 148, 150, 152, 158, 159; see also Denmark; Norway; Sweden Schanzer, Carlo, quoted, I6OR Serbs, Croats and Slovenes, Kingdom of, name changed to Yugoslavia, 67 n; reparation, 67, 217, 218, 220, 229, 246 Severance of trade or financial relations, 161, 1 6 ; Sifton, Arthur L., 31, 33 Smuts, Jan Christian, draft of Covenant, 13; quoted, 109», 129» Snowden, Philip, 247 Social and political relationships as justification of treaty modification, 12 Social insurance safeguards, 58/1 Sokal, François, 194 South Africa, 13, 246; attitude re representation in International Labor Office, 186 Soviet Union, 120, 245 Spa Agreement, 66 n, 215 Spain, 1 3 1 , 201; membership on Council, 130, 1 3 1 » , 133, 136, 137, 138; International Labor Office representation, 184, 185 Stettin, stated areas in port of, 29, 78, 8s Stimson, Henry L., 249 Strauss, Albert, reparation proposals, 64 Stresemann, Gustav, 1 3 ; Substitutes, appointment of, in International Labor Office, 188, 190 Sweden, 137, 169, 184, 185, 250«; stand on amendment to Covenant, 123, 127, 139; membership on Council, 132, 133; proposal re settlement of disputes, 148, 150, 152, 158, 159 Swiss Federal Council, 144 Switzerland, 15, 13711, 149, 183», 184, 185, 2500; amendment proposal, 47; proposal re conciliation procedure, 156

284

INDEX

Tardieu, André, 100 Terminology, results of inadequate, 3 Territorial Questions, Central Committee on, 100 Territorial settlement, Covenant provisions for, 10 ff., 24; guarantee, 12 ff., 16, 18, 26; opposition to readjustment, 15, i8n, 26; linking of revisory provision with guarantee; becomes Art. 10 of Covenant, 19, 21 Time limit for expressing dissent, 174, 176; for ratification of amendments, 174 Traffic and transit, see Transit Transit and transport affairs, program for handling, 28-40, 75-80; League made clearing house for international, 39; principles underlying texts referring to, 93 Treaties, rcconsidcration of, attempted in Article 19 of Covenant, 7-27; denunciation of, by dissatisfied powers, 8; tenyear limit proposed, i 6 n ; Covenant provision for dealing with, 26 Treaty, see under name, e. g. Versailles, treaty of Treaty revision, use and effects of phrase, 3; opposing concepts, 4; privilege of, withheld from Germany, 6, 25, 26; trend during prewar years, 7; conditions governing ratification, un, 45, 197; periodic, 18; attitude of Peace Conference, 26, 40; impotence of League, 26, 40; the normal amending process, 4 1 ; applications of amending process, 42», 43»; question of legal right of a State to demand, 74 ff.; machinery for modifying the settlement of 1919, 109-15, 258; organizations authorized to effect, 112; provisions for procedure before application of principle of revision by amendment, 170-76; proposal affording greatest possibility for modification, 257; conclusions, 256-61; see also Versailles, Treaty of Trianon, Treaty of, 2o6n, 246 Turkey, 245 Unanimity, rule of, 172, 202 United States, 67, 127n; drafts of Covenant, 9-13, 14, 16 ff., i8n, 20; HurstMiller draft, 18 ff., 43, 1 4 1 f., 1 5 3 ; representatives, 9 if., 15 ff., 3 1 , 33, 35,

46, 54, 64, 87, 90, l o i n , 222, 226», 249; rivers, 3 1 ; Constitution provides for own amendment, 43 n; AngloAmerican formula for freedom of transit, 88 ff.; effect of abstention f r o m membership in League, 120, 130, 162; International Labor Office representation, 183», 184, 1 9 1 ; representation on Reparation Commission, 2 1 6 , 2 1 7 ; help in solving inter-governmental debts and reparation problems, 222, 237, 249; indebtedness to, 253, 254 Universal Postal Union, 43», 1 4 1 , 142, 144 Uruguay, 2 0 1 ; membership on Council, 132. 133 Vandervelde, Émile, 56 Vcnizelos, F.lcuthcrios, 43, 48 Versailles, Treaty of (Treaty of Peace), 3; explanation of provisions for changes in, 3-6, 8; Covenant comprises Part I of, 7; reconsideration of, attempted in drafts of Covenant, 8 ff.; territorial readjustment, 10 ff., 23; provisions for ratification of amendments, u n ; Art. 19 of Covenant becomes an integral part of, 23; provisions by which conquest sanctified, 24; inadequacy of Art. 19 as a measure for revising, 27; modification of Part XII, "Ports, Waterways and Railways," 28-40, 75-95; Arts. 340-42, 344. 347, 350. 354. 364, 366. subject to recommendations for revision, 28; international transport, rail: Art. 366, 29, 30, 80-85; text of clauses concerning ports, waterways and railways adopted, 36; Art. 377 compared with Art. 19 of Covenant, 39; modification by amendments, 41-73; amendments to Part I, 41-53, 68, 1 1 3 , 176, 197 ff., 257, 260; provisions for amendment of treaty and of Permanent Court of International Justice compared, 42*1; modification of Part XIII, 53-61, 68, 1 1 3 , 183-96, 197 ff., 205, 257, 260; provision for International Labor Organization, 53 ff. (see also under International . . .); provision for amendments to stipulations in Art. 387-427, 58; recognition of need to allow for modification of provisions re labor, 60; provisions covering German

INDEX Versailles, Treaty of (Continued) reparation, 62-73, 106-55, 2 57< 259, 260; modifications, Part VIII, Annex II, par. 22, 62-73, 1 1 3 , 206-21, 257, 260; Art. 26 of Part I, Art. 422 of Pan XIII, and par. 22 of Annex II to Part VIII embrace same principle re revision by amendment, 68; question of contractual relations of states and the legal right to demand modification of treaty arrangements, 74 ff.; Art. 379, 76 ff.; Art. 35462 covering regime for the Rhine, 77; Art. 378, 85 ff., 1 1 2 ; commercial relations: Art. 280, 95-97; Part X , "Economic Clauses," 95; independence of Austria: Art. 80, 98-108, 1 1 2 ; machinery for modifying, 109-15, 258; recommendations for revision provided under Art. 277, 1 1 2 ; organizations authorized to effect adjustments in, 1 1 2 ; drawn up to safeguard advantages of victor powers, 1 1 4 ; reasons that would seem to preclude organized effort to achieve revision of Part I, 140; amendments to Covenant aimed to divorce Covenant from, 176n; League's opposition to all efforts to revise terms of, 178; why modification of Part I opposed, 179; agreements re reparation not specifically authorized by, 206, 2 2 1 - 5 5 , 259; modifications, other par. of Part VIII, Annex II, 2 1 6 ff.; modification of financial terms in Part IX, 245; countries that were parties to, 246; conclusions re revision of, 256-61; legal burdens imposed upon Germany by, 256; legal right of State to free itself from treaty commitments or to require revision of terms, not conferred by, 256; proposal for revision affording greatest possibility for modification, 257; confusion re status of, 260; world-wide effect of, 260; see also Treaties; Treaty Vienna, Congress of, 38 Vistula, river, administration of, 32, 33, 38

War, obligation to delay resort to, M9. 155 "War Aims and Peace Terms," 99«

147,

285

War guilt made basis of reparation settlement, 63 Washington Conference, see International Labor Conference Waterways, see Ports; Rivers Weimar Constitution, 103 ff. White, Henry, 87 White phosphorus in matches, 55 Wiesbaden agreement between France and Germany, 2 1 3 - 1 6 Wilson, Woodrow, 9, 1 7 , 2 1 , 22, 46, 64, 99, 1 0 m , 102, 127/1; requests Col. House to examine conditions on which a League of Nations might be constituted, 9; proposal for territorial guarantee urged upon, i o n ; drafts of Covenant, 1 1 - 1 3 , 14, 16 ff., 18»; on alteration of League terms, 1 3 ; draft of proposal by Miller, 19; draft adopted as Art. 23 of proposed Covenant, marks step toward final phrasing of Art. 19, 20; conference with Lord Cecil re territorial guarantee, 2 1 ; comment re Art. 19, 23; shift from his proposal for modification of territorial settlement, 24; amendment allowing for withdrawal from League, 48»; on reparation by Germany, 62*1; on settlement based upon acceptance by people immediately concerned, 99»; asks "permanent processes" to effect necessary changes in treaty, n o ; proposal for treaty revision affording greatest possibility for modification, 257 Women, night work, 55 World Court, see Permanent Court of International Justice World War, Austro-Hungarian responsibility for ills of, 106 Young, Owen D., 226«, 237 Young Plan, 206, 234-48, 259; compared with Dawes Plan; changes caused by, 237 ff.; most significant changes, 243; cancellation of Germany's commitments under, 250, 254 Yugoslavia, 67«; see also Serbs, Croats and Slovenes, Kingdom of Zahle, Herluf, quoted, 149