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THE INTERNATIONAL REGIME OF PORTS, WATERWAYS AND RAILWAYS

PART XII OF THE TREATY OF PEACE WITH GERMANY

FOLLOWING the precedents of previous international conferences, including those of The Hague of 1899 and 1907, the work of preparing clauses on particular subjects for insertion in the Treaty of Peace with Germany was entrusted by the Conference of Paris to various commissions. One of the commissions appointed by the Conference of Paris was the Commission on Ports, Waterways and Railways.

Space will not permit a review in detail of the proceedings of that Commission.

Discussion will only be attempted of the results of its labors, as found in the pending treaty, for in substantially the form adopted by the Commission, the articles of the treaty which are found in Part XII, represent the clauses adopted and reported by the Commission on Ports, Waterways and Railways.

The Commission was composed of nineteen members, representing fourteen Powers, the five Powers "with general interests" having each two representatives (United States, Great Britain, France, Italy and Japan) and nine other Powers having each one representative.1

Signor Crespi, Italian Minister of Food, was president, and Honorable A. L. Sifton, of Great Britain, vice-president of the Commission; the work was in part conducted at meetings of the full Commission, and in part by means of two subcommissions, the first, of ten members under the presidency of Mr. White, of the United States, dealing

1 The personnel of the Commission is given in this JOURNAL for April, 1919, p. 183. The Hon. Henry White and the writer represented the United States.

with questions relating to Freedom of Transit, and the second, of nine members, under the presidency of M. Weiss, of France, dealing with the Régime of Ports, Waterways and Railways.

By invitation of the Commission, the representatives of Switzerland and of Holland were heard at length on the subject of the Rhine. Turning to the treaty, it will be seen that Part XII, "Ports, Waterways and Railways," contains sixty-six articles (about onetenth of the treaty) divided into six sections, two of which (Sections II and III) are in turn divided into chapters. The arrangement is perhaps as logical and convenient as the subject-matter permitted. It is to be emphasized, however, that in regard to any particular question, the inter-relation of various provisions of Part XII requires a careful consideration of its clauses as a whole, and further that other parts of the treaty (the Reparation and Economic clauses and the Covenant of the League of Nations, for example) must in some cases be looked at.

Articles 321 to 326 (Section I) and Articles 327 to 330 (Section II, Chapters 1 and 2) contain clauses which may generally be described as requiring Germany to give equality of commercial treatment to all the Allied and Associated Powers, an equality of treatment, moreover, similar to that given by Germany to German nationals. These provisions are not reciprocal, that is to say, they bind Germany alone, and the Allied and Associated Powers are not required to treat Germany as Germany is required to treat them.

A qualification of the utmost importance, however, as regards these articles is introduced in Article 378, which provides not only that the provisions mentioned 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, but also that after the five years' period no Allied or Associated Power can claim the benefit of any of the stipulations of these Articles, "in which reciprocity is not accorded in respect of such stipulations." While the period of five years during which reciprocity cannot be demanded may be prolonged by the Council of the League of Nations, such prolongation would require, under Article 5, a unanimous vote of the Council, and there is, of course, nothing to prevent the Allied or Associated

Powers or any of them from extending reciprocity in the meantime. if they so desire.

It will thus be seen that the provisions of Articles 321 to 330 are of a very general importance and not only of a particular importance as regards Germany, for they are provisions which, in the contemplation of the Powers opposed to Germany, may well become reciprocal and which indeed must either disappear or become reciprocal after a very limited period.

Accordingly, in every general or special convention hereafter framed, relating to this subject, it may be supposed that these provisions will form at least partially the basis of discussion.

In this connection, the remark contained in the memorandum annexed to the letter of M. Clemenceau on behalf of the Allied and Associated Powers, addressed to the President of the German Delegation on June 16, 1919, may be quoted.

The Covenant of the League of Nations refers specially in Article 23 (e), to "provision to secure and maintain freedom of communications and of transit, and equitable treatment for the commerce of all members of the League. In this connection the special necessities of the regions devastated during the war of 1914-1918 shall be borne in mind." This freedom of communications and equal treatment for all nations on the territory of Germany are exactly those laid down and guaranteed in Part XII of the Conditions of Peace. 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 advance that such general conventions shall be accepted in their entirety in the future. Provision is formally made for the extension of these provisions and for the ultimate grant of reciprocity in respect of all such as are capable of being made reciprocal, but only after five years, unless the Council of the League of Nations decides to prolong that period. It would not have been possible, by immediately granting equal treatment to Germany, to allow her to profit indirectly from the material devastation and the economic ruin for which her Government and her armies are responsible. But at the end of this period Germany will be able to claim on the territory of the Allied and Associated Powers the application of those measures which she to-day describes as constituting a meddling with her in

ternal organization which cannot be borne, or, alternatively, she will herself cease to be bound thereby.

Looking now at these provisions in some detail, they first provide for freedom of transit of "goods, persons, vessels, carriages, wagons and mails, coming from or going to the territories of any of the Allied and Associated Powers, whether contiguous or not."2

Goods in transit are exempt from customs duties and the transportation charges are to be reasonable and are not to depend in any way on the ownership or nationality of any means of transportation employed (Article 321). Somewhat similar provisions regarding transit to and from free zones in German ports are found in Article 330.

Article 322 relates to what is called "transmigration traffic" and is intended to do away with the advantages which were given by Germany before the war to German steamship lines in regard to this emigrant traffic.

The remaining provisions of Section 1 (Articles 323 to 326) establish the rule that the commerce to the Allied and Associated Powers into, from, or across Germany is to be accorded the treatment given to German commerce. The various detailed clauses, such as the prohibition of "any direct or indirect bounty for export or import by German ports or vessels," are intended to be sufficiently inclusive to frustrate any invasions of the general principle, the only exception to which is in regard to the prohibition of discrimination in matters of transportation "based on the frontier crossed," which is "subject to the special engagements contained in the present treaty.”

In this connection reference should be made to the special exceptions regarding Alsace-Lorraine, Poland and Luxemburg, found in Articles 68 and 268, and also to the special provisions as to customs duties, to continue for a period of three years pursuant to Article 269, and to the possibility of a special customs régime in German occupied territory provided for in Article 270. These articles appear

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2 The quotation is from the English text. The French text reads as follows: personnes, marchandises, navires, bateaux, wagons et services postaux en provenance ou à destination des territoires de l'une quelcunque des Puissances alliées et associées, limitrophes ou non.”

in the Supplement to the last number of the JOURNAL, pp. 184, 286288.

The stipulations of Articles 264 to 267 are also of importance in connection with the general clauses mentioned, as they relate to importation, exportation and transit in general. These likewise appear in the Supplement for July, 1919, pp. 285, 286.

According to the general principles mentioned, the subject of navigation is treated in Article 327. The nationals, vessels and property of the Allied and Associated Powers are to be given the same treatment as that given by Germany to German nationals, German vessels, and German property. The general phraseology is supplemented by particular mention of facilities, charges and restrictions of various kinds.

Articles 328 to 330 relate to free zones in German ports. It may fairly be said that these provisions are, in general, such as are recognized as applicable to such a system. Special provision is made, however, that the free zones existing on August 1, 1914, shall be maintained, and that aside from the charges necessary for covering expenses of upkeep, etc., no other charge may be levied on goods, except a statistical duty of one-tenth of one per cent ad valorem. The provisions of Article 327 regarding the treatment of vessels, are, of course, applicable to their treatment in ports containing free zones, and it is out of abundant precaution specifically provided that these conditions of equality are applicable therein.

In considering this subject, reference should be made to Articles 363 and 364, which provide that in the ports of Hamburg and Stettin there shall be leased for ninety-nine years to the Czecho-Slovak State areas to be used for the transit of goods to and from Czecho-Slovakia, and that these areas are to be placed under the general régime of free zones, to which allusion has just been made. Such clauses are, of course, novel and in a very practical way give to the Czecho-Slovak State access to the sea. While imposing upon Germany an international servitude in the nature of a lease for ninety-nine years, it can hardly be doubted that the provisions will be of benefit to Germany herself, as they will necessarily develop her own trade. Nor can any of these conditions be imposed which would continue un

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