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tions; and hence this Anglo-Franco-American arrangement. Both are made necessary by what are probably permanent features of the international organization and practice of the world. The fact that the traditional American attitude upon alliances arose from a French treaty serves to suggest a comparison between the French treaty of 1778 and the present proposed treaty. Articles I, II, XI, and XII, the more significant parts of the treaty of 1778, read as follows: -

I. If war should break out between France and Great Britain during the continuance of the present war between the United States and England, His Majesty and the said United States shall make it a common cause and aid each other mutually with their good offices, their counsels and their forces, according to the exigence of conjunctures, as becomes good and faithful allies. II. The essential and direct end of the present defensive alliance is to maintain effectually the liberty, sovereignty, and independence absolute and unlimited, of the said United States, as well in matters of government as of commerce. XI. The two parties guarantee mutually from the present time and forever against all other Powers, to wit: The United States to His Most Christian Majesty, the present possessions of the Crown of France in America, as well as those which it may acquire by the future treaty of peace: And His Most Christian Majesty guarantees on his part to the United States their liberty, sovereignty and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain and North America, conformable to the 5th and 6th articles above written, the whole as their possession shall be fixed and assured to the said States, at the moment of the cessation of their present war with England. XII. In order to fix more precisely the sense and application of the preceding article, the contracting parties declare, that in case of a rupture between France and England the reciprocal guarantee declared in the said article shall have its full force and effect the moment such war shall break out; and if such rupture shall not take place, the mutual obligations of the said guarantee shall not commence until the moment of the cessation of the present war between the United States and England shall have ascertained their possessions.

The treaty of 1778 thus was more general in its objects; it guaranteed certain French territorial possessions, pledged American aid in any war between France and Great Britain, and recognized pos

sible French conquests in the West Indies. It was more general by the terms used; the arrangement was called explicitly a “defensive alliance" and the pledges are described technically as “guarantees." By side of the treaty of 1778 the present proposed treaty is very limited and circumspect.

The later history of the treaty of 1778 was not smooth. When France, now Revolutionary France, felt herself compelled to make war upon Great Britain in 1793, the American aid referred to in the treaty of 1778 was not forthcoming. The French do not seem to have formally demanded the aid which might have been expected under the treaty, and, espousing more or less completely the Hamiltonian view that the treaty, made with Louis XVI, could not run in favor of the Republic and that the necessity of American safety demanded neutrality on our part, Washington issued the historic proclamation of 1793, forerunner of his injunction of 1797 to the American people to avoid all "permanent alliances.” Thus Revolutionary France was left to struggle against the “impious band of tyrants” alone.

Such a situation can with difficulty be foreseen in connection with the present treaty. To duplicate the very dangerous situation of 1793 we should have to imagine a Socialist Revolution in France, and, perhaps, a change of party in America, followed by an attack from conservative Germany to prevent the spread of the Bolshevist revolution eastward over the Rhine. In such a case the situation would be instructive for the student of historical parallels.

In point of fact, things much more prosaic are likely to happen, and the legalities of the case, the formalities of the League, the Council, the Covenant and their relations to the proposed treaty, together with the relations of the treaty to American legal and political structure and practice are the matters deserving most study. In this connection it does not appear that the treaty is open to definitive objections, although its provisions do need revision in two places and although its more or less conjectural potentialities are felt to be of serious import for both America and the League.




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.

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

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