Papers Relating to the Foreign Relations of the United States, The Paris Peace Conference, 1919, Volume VI
Paris Peace Conf. 185.1/165
The President of the German Delegation (Brockdorff-Rantzau) to the President of the Peace Conference (Clemenceau)
Mr. President: I have the honour to transmit to you herewith the observations of the German Delegation on the draft Treaty of Peace. We came to Versailles in the expectation of receiving a peace proposal based on the agreed principles. We were firmly resolved to do everything in our power with a view to fulfilling the grave obligations which we had undertaken. We hoped for the peace of justice which had been promised to us. We were aghast when we read in that document the demands made upon us by the victorious violence of our enemies. The more deeply we penetrated into the spirit of this Treaty, the more convinced we became of the impossibility of carrying it out. The exactions of this Treaty are more than the German people can bear.
With a view to the re-establishment of the Polish State we must renounce indisputably German territory, nearly the whole of the province of West Prussia, which is preponderantly German, of Pomerania, Danzig, which is German to the core; we must let that ancient Hanse town be transformed into a free State under Polish suzerainty. We must agree that East Prussia shall be amputated from the body of the State, condemned to a lingering death, and robbed of its northern portion including Memel which is purely German. We must renounce Upper Silesia for the benefit of Poland and Czecho-Slovakia, although it has been in close political connexion with Germany for more than 750 years, is instinct with German life, and forms the very foundation of industrial life throughout East Germany.
Preponderantly German circles (Kreise) must be ceded to Belgium without sufficient guarantees that the plebiscite, which is only to take place afterwards, will be independent. The purely German district of the Saar must be detached from our Empire and the way must be [Page 796]paved for its subsequent annexation to France, although we owe her debts in coal only, not in men.
For fifteen years Rhenish territory must be occupied, and after those fifteen years the Allies have the power to refuse the restoration of the country; in the interval the Allies can take every measure to sever the economic and moral links with the mother country and finally to misrepresent the wishes of the indigenous population.
Although the exaction of the cost of the war has been expressly renounced, yet Germany, thus cut in pieces and weakened, must declare herself ready in principle to bear all the war expenses of her enemies, which would exceed many times over the total amount of German State and private assets. Meanwhile her enemies demand in excess of the agreed conditions reparation for damage suffered by their civil population, and in this connexion Germany must also go bail for her allies. The sum to be paid is to be fixed by our enemies unilaterally and to admit of subsequent modification and increase. No limit is fixed save the capacity of the German people for payment, determined not by their standard of life but solely by their capacity to meet the demands of their enemies by their labour. The German people would thus be condemned to perpetual slave labour.
In spite of these exorbitant demands, the reconstruction of our economic life is at the same time rendered impossible. We must surrender our merchant fleet. We are to renounce all foreign securities. We are to hand over to our enemies our property in all German enterprises abroad, even in the countries of our allies. Even after the conclusion of peace the enemy States are to have the right of confiscating all German property. No German trader in their countries will be protected from these war measures. We must completely renounce our Colonies, and not even German missionaries shall have the right to follow their calling therein. We must thus renounce the realisation of all our aims in the spheres of politics, economics, and ideas.
Even in internal affairs we are to give up the right of self-determination. The International Reparation Commission receives dictatorial powers over the whole life of our people in economic and cultural matters. Its authority extends far beyond that which the Emperor, the German Federal Council and the Reichstag combined ever possessed within the territory of the Empire. This Commission has unlimited control over the economic life of the State, of communities and of individuals. Further, the entire educational and sanitary system depends on it. It can keep the whole German people in mental thralldom. In order to increase the payments due by the thrall, the Commission can hamper measures for the social protection of the German worker.[Page 797]
In other spheres also Germany’s sovereignty is abolished. Her chief waterways are subjected to international administration; she must construct in her territory such canals and railways as her enemies wish; she must agree to treaties, the contents of which are unknown to her, to be concluded by her enemies with the new States on the east, even when they concern her own frontiers. The German people is excluded from the League of Nations to which is entrusted all work of common interest to the world.
Thus must a whole people sign the decree for its own proscription, nay, its own death sentence.
Germany knows that she must make sacrifices in order to attain peace. Germany knows that she has, by agreement, undertaken to make these sacrifices and will go in this matter to the utmost limits of her capacity.
1. Germany offers to proceed with her own disarmament in advance of all other peoples, in order to show that she will help to usher in the new era of the peace of Justice. She gives up universal compulsory service and reduces her army to 100,000 men except as regards temporary measures. She even renounces the warships which her enemies are still willing to leave in her hands. She stipulates, however, that she shall be admitted forthwith as a State with equal rights into the League of Nations. She stipulates that a genuine League of Nations shall come into being, embracing all peoples of goodwill, even her enemies of to-day. The League must be inspired by a feeling of responsibility towards mankind and have at its disposal a power to enforce its will sufficiently strong and trusty to protect the frontiers of its members.
2. In territorial questions Germany takes up her position unreservedly on the ground of the Wilson programme. She renounces her sovereign right in Alsace-Lorraine, but wishes a free plebiscite to take place there. She gives up the greater part of the province of Posen, the districts incontestably Polish in population together with the capital. She is prepared to grant to Poland, under international guarantees, free and secure access to the sea by ceding free ports at Danzig, Königsberg and Memel, by an agreement regulating the navigation of the Vistula and by special railway conventions. Germany is prepared to ensure the supply of coal for the economic needs of France, especially from the Saar region, until such time as the French mines are once more in working order. The preponderantly Danish districts of Sleswig will be given up to Denmark on the basis of a plebiscite. Germany demands that the right of self-determination shall also be respected where the interests of the Germans in Austria and Bohemia are concerned.
She is ready to subject all her colonies to administration by the [Page 798]community of the League of Nations if she is recognised as its mandatory.
3. Germany is prepared to make payments incumbent on her in accordance with the agreed programme of peace up to a maximum sum of 100 milliards of gold marks,—20 milliards by May 1, 1926, and the balance (80 milliards) in annual payments without interest. These payments shall in principle be equal to a fixed percentage of the German Imperial and State revenues. The annual payment shall approximate to the former peace Budget. For the first ten years the annual payment shall not exceed one milliard of gold marks a year. The German taxpayer shall not be less heavily burdened than the taxpayer of the most heavily burdened State among those represented on the Reparation Commission.
Germany presumes in this connexion that she will not have to make any territorial sacrifices beyond those mentioned above and that she will recover her freedom of economic movement at home and abroad.
4. Germany is prepared to devote her entire economic strength to the service of reconstruction. She wishes to cooperate effectively in the reconstruction of the devastated regions of Belgium and Northern France. To make good the loss in production of the destroyed mines in Northern France, up to 20 million tons of coal will be delivered annually for the first five years and up to 8 million tons for the next five years. Germany will facilitate further deliveries of coal to France, Belgium, Italy and Luxemburg.
Germany is moreover prepared to make considerable deliveries of benzol, coal tar and sulphate of ammonia as well as dye-stuffs and medicines.
5. Finally, Germany offers to put her entire merchant tonnage into a pool of the world’s shipping, to place at the disposal of her enemies a part of her freight space as part payment of reparation, and to build for them for a series of years in German yards an amount of tonnage exceeding their demands.
6. In order to replace the river boats destroyed in Belgium and Northern France, Germany offers river craft from her own resources.
7. Germany thinks that she sees an appropriate method for the prompt fulfillment of her obligation to make reparation, by conceding participation in industrial enterprises, especially in coal mines to ensure deliveries of coal.
8. Germany, in accordance with the desires of the workers of the whole world, wishes to see the workers in all countries free and enjoying equal rights. She wishes to ensure to them in the Treaty of Peace the right to take their own decisive part in the settlement of social policy and social protection.
9. The German Delegation again makes its demand for a neutral [Page 799]enquiry into the responsibility for the war and culpable acts in its conduct. An impartial Commission should have the right to investigate on its own responsibility the archives of all the belligerent countries and all the persons who took an important part in the war.
Nothing short of confidence that the question of guilt will be examined dispassionately can put the peoples lately at war with each other in the proper frame of mind for the formation of the League of Nations.
These are only the most important among the proposals which we have to make. As regards other great sacrifices and also as regards the details, the Delegation refers to the accompanying memorandum and the annex thereto.
The time allowed us for the preparation of this memorandum was so short that it was impossible to treat all the questions exhaustively. A fruitful and illuminating negotiation could only take place by means of oral discussion. This treaty of peace is to be the greatest achievement of its kind in all history. There is no precedent for the conduct of such comprehensive negotiations by an exchange of written notes only. The feeling of the peoples who have made such immense sacrifices makes them demand that their fate should be decided by an open, unreserved exchange of ideas on the principle: “Open covenants of peace openly arrived at, after which there shall be no private international understandings of any kind, but diplomacy shall proceed always frankly and in the public view.”2
Germany is to put her signature to the Treaty laid before her and to carry it out. Even in her need, Justice is for her too sacred a thing to allow her to stoop to accept conditions which she cannot undertake to carry out. Treaties of Peace signed by the Great Powers have, it is true, in the history of the last decades again and again proclaimed the right of the stronger. But each of these Treaties of Peace has been a factor in originating and prolonging the World War. Whenever in this war the victor has spoken to the vanquished, at Brest-Litovsk3 and Bucharest,4 his words were but the seeds of future discord. The lofty aims which our adversaries first set before themselves in their conduct of the war, the new era of an assured peace of justice, demand a Treaty instinct with a different spirit. Only the cooperation of all nations, a cooperation of hands and spirits can build up a durable peace. We are under no delusions regarding the strength of the hatred and bitterness which this war has engendered; and yet the [Page 800]forces which are at work for an union of mankind are stronger now than ever they were before. The historic task of the Peace Conference of Versailles is to bring about this union.
Observations of the German Delegation on the Conditions of Peace
Table of Contents
1st Part: General Observations.
- The legal basis of the Peace negotiations.
- The contradiction between the Draft Treaty on the one hand, and the agreed legal bases, the earlier assurances of enemy Statesmen, and the general idea of the League of Nations on the other hand.
2nd Part: The German Proposal
- The League of Nations.
- Territorial Questions.
- The right of peoples to self-determination.
- Saar Basin.
- German Austria.
- Eastern questions.
- Russia and Russian States.
- German rights and Interests outside Germany.
- Legal basis of the German duty to give compensation.
- Financial fulfilments.
- Economic provisions.
- Politico-commercial Stipulations.
- Inland Navigation.
- State Treaties.
- Prisoners of War and Graves.
part i: general observations
I. The Legal Basis of the Peace Negotiations
The German Delegation entered upon the task of concluding peace with the conviction that the essential contents of the future Treaty of Peace were already determined in regard to its main features by its preceding history and that a firm basis was given for the negotiations at Versailles. This conviction was based on the following facts.[Page 801]
On the 5th October 1918, the German Government begged President Wilson6 to take in hand the conclusion of peace on the basis of his 14 Points in his message to Congress of the 8th January 1918,7 and on the principles of his subsequent addresses, especially his speech of the 27th September 1918,8 to invite all the belligerent States to send plenipotentiaries for the purpose of entering upon negotiations and to bring about the immediate conclusion of a general armistice.
On the 3rd [8th] October 1918, President Wilson enquired9 whether the German Government accepted his Fourteen Points, and whether the object of their discussion was merely to reach an agreement in regard to the practical application of their details. The German Government expressly replied that this was the case,10 and at the same time expressed the hope that the Allied Governments also would take up their position in accordance with the addresses of President Wilson. Moreover, it said that it was ready to proceed to the evacuation of the occupied territories which President Wilson had declared to be a necessary prelude to the conclusion of an armistice.
After a further exchange of written communications President Wilson declared his readiness on the 23rd October 1918, to communicate the question of an armistice to the Allied Governments.11 He, at the same time, intimated that he had, in order to give effect to his purpose, communicated to the Allies the notes exchanged between himself and the German Government, with the suggestion that in case the Allies agreed to the conditions and principles of peace accepted by Germany, they should through their military authorities indicate the armistice conditions which would guarantee or ensure the detailed stipulations of the peace as accepted by the German Government. Germany, so it was expressly stated, would by accepting such armistice conditions give the best and most convincing proof that she accepted the fundamental conditions and principles of the entire Treaty of Peace.
After the German Government, having regard to the further events concerning internal politics, which President Wilson had referred to in his above-mentioned note of the 23rd October, had given satisfactory assurances in its reply on the 27th October12 President Wilson informed the German Government on the 3rd [5th] November13 that he had received from the Allied Governments, in reply to the information which had been conveyed to them in regard to the exchange of [Page 802]notes with the German Government, a memorandum to the following effect:
“The Allied Governments have given careful consideration to the correspondence which has passed between the President of the United States and the German Government. Subject to the qualifications which follow, they declare their willingness to make peace with the Government of Germany on the terms of peace laid down in the President’s address to Congress in January, 1918, and the principles of settlement enunciated in his subsequent addresses. They must point out, however, that [clause 2, relating to]14 what is usually described as the freedom of the seas, is open to various interpretations, some of which they could not accept. They must, therefore, reserve to themselves complete freedom on this subject when they enter the Peace Conference.
Further, in the conditions of peace laid down in his address to Congress on January 8th, 1918, the President declared that invaded territories must be restored, as well as evacuated and made free. The Allied Governments feel that no doubt ought to be allowed to exist as to what this provision implies. By it they understand that compensation will be made by Germany for all damage done to the civil population of the Allies and to their property by the aggression of Germany by land, by sea, and from the air.”
On the 11th November 1918, the armistice was concluded.15 It results from the exchange of notes which led to the armistice that
- Germany expressly and exclusively accepted as a basis for peace the Fourteen Points of President Wilson and his subsequent addresses. Neither President Wilson, nor any other of the Allied Governments, put forward any other supplementary basis.
- The acceptance of the conditions for the armistice was, according to the persona] assurance of President Wilson, to constitute the best proof of the unambiguous acceptance of the above-mentioned fundamental conditions and principles of peace on the part of Germany. Germany accepted the armistice conditions and in doing so produced the proof demanded by President Wilson. Moreover, she has tried with all her might to fulfil the conditions in spite of their great stringency.
- The Allies also have accepted Wilson’s Fourteen Points and his subsequent addresses as a basis for peace.
- A solemn agreement has, therefore, been come to by both parties, in regard to the basis for peace. Germany has a right to this basis for peace. If the Allies wished to abandon it they would violate an agreement in international law.
As it appears from the above-mentioned historical facts, an unquestionably binding “pactum de contrahendo” has been concluded between [Page 803]the German Government on the one part and the Governments of the Allied and Associated Powers on the other part. In that pact the basis for the conclusion of peace has for both parties been irrevocably laid down.
In regard to the practical application of joint principles, negotiations must be entered upon in accordance with the very words of President Wilson. Germany has a right to discuss the conditions of peace. This discussion can only extend to the application of the Fourteen Points and the subsequent addresses of Wilson. If a peace of a different nature were forced upon Germany it would constitute a breach of a solemn pledge.
II. The Contradiction Between the Draft Treaty on the One Hand and the Agreed Legal Bases, the Earlier Assurances of Enemy Statesmen, and the General Idea of International Law on the Other Hand
The German people laid down its arms trusting in the assurances given in regard to the legal basis of the Peace negotiations. This confidence encouraged the German people in a special degree because it saw in the understanding reached by agreement merely the embodiment of the ideas of principle which had already been previously announced to it most fully by the hostile Statesmen. Our adversaries have repeatedly assured us that they were not waging the war against the German people but against an Imperialist and irresponsible Government. Our adversaries likewise repeated again and again that this unparalleled war should be followed by a new kind of peace, a peace of right and not a peace of force. A new spirit was to emerge from this peace and become embodied in a League of Nations, of which Germany was likewise to become a member. Germany’s position among nations was not to be destroyed and the right of all peoples to self-determination was to be recognised.
All these principles were incorporated in the 14 Points of President Wilson and in his later Declarations.
The Conditions of Peace which have been laid before us stand in open contradiction with all such assurances which have proceeded from the mouths of the hostile statesmen. The following observations may be adduced as evidence in support of this:
1. no war against the german people
The former English Minister, Asquith, stated on September the 27th [26th] in Leeds, to show that the war was not directed against the German people: “Prussian militarism was and still is our objective”.[Page 804]
A similar declaration was made by Lord Robert Cecil on July the 25th [23d], 1917:
“If a really democratic Government were established in Germany that would constitute a powerful guarantee that the dangers which might be expected from Germany in the future would be correspondingly diminished”.
The English Minister of Munitions, Winston Churchill, expressed agreement in this in his speech of October the 3rd, 1914:
“If the Germans are decisively defeated and lose their confidence in their form of Government in such a way as to understand that it will only bring them to misery and make them an enemy of mankind, if also the German people becomes a grown nation, like the free democracies of the world, and if this happens as a result of the severe schooling of the war, then a real and durable peace will come, a healing peace and not one dividing the world by fear and mistrust as the result of the will of one nation to raise itself up over another”.
Similar assurances were given by President Wilson on April the 2nd, 1917 when he said:16
“We have no quarrel with the German people. We have no feeling towards them but one of sympathy and friendship. It was not upon their impulse that their Government acted in entering this war. It was not with their previous knowledge or approval. … It will be all the easier in our conduct of the war to allow the high spirit of justice and equity to predominate, because we are acting without bitterness, because we harbour no enmity against a people and have no wish to injure or prejudice it in any way, but are only opposing armed resistance to an irresponsible Government”.
Moreover on the American Flag Day President Wilson stated in 1917 in Washington:17
“We know now as clearly as we knew before we were ourselves engaged that we are not the enemies of the German people and that they are not our enemies. They did not originate or desire this hideous war or wish that we should be drawn into it; and we are vaguely conscious that we are fighting their cause, as they will some day see it, as well as our own.”
In an address given on the 4th December 191718 it was stated:
“They (the voices of humanity) insist that the war shall not end in vindictive action of any kind; that no nation or people shall be robbed or punished because the irresponsible rulers of a single country have themselves done deep and abominable wrong.”
“We have ourselves proposed no injustice, no aggression. We are ready, whenever the final reckoning is made, to be just with the German people, deal fairly with the German Power, as with all others. There can be no difference between peoples in the final judgment, if it is indeed to be a righteous judgment. * To propose anything but justice, even-handed and dispassionate justice, to Germany at any time, whatever the outcome of the war, would be to renounce and dishonour our own cause. For we ask nothing that we are not willing to accord.”
To-day, after the radical political convulsions which took place in Germany in the late Autumn of 1918, our adversaries are no longer confronted by an irresponsible German Government, but by a German people which is determining its own destiny. The new constitution of the German Empire and the composition of its people’s Government are in harmony with the strictest principles of democracy, while the renunciation of militarist ideas is likewise shown by the fact that the scheme for a League of Nations which Germany proposes for adoption20 contains an agreement for the limitation of armaments which gives greater guarantees than the corresponding stipulations of the Statute of the League of Nations in the Draft Treaty of Peace.
These facts, however, like others, have been completely overlooked in the Draft Treaty of Peace. It is impossible to imagine what more stringent conditions could have been imposed on an Imperialist Government.
2. a peace not of violence but of right
The Peace which was to be concluded with Germany was to be a Peace of right and not of violence. Thus on September 18th, 1917, the French Minister, M. Painlevé, speaking in the Senate and in the Chamber of Deputies, promised the conclusion of a “Peace which was not to be a Peace of constraint or violence, containing in itself the germ of future wars, but a just Peace”.
On the 12th November, 1917, the same statesman said in reference to the Allies, “They are fighting so that at last the nations may know what Peace, Justice and Respect of Right mean without being oppressed by iron laws”.
On the 27th September [December] 1917, the French Minister for Foreign Affairs, M. Pichon, said in the Chamber of Deputies: “Why victory? Is it to conquer, to oppress or to dominate? No, but to [Page 806]assure a Peace of Justice and humanity to the world in accordance with the resolutions voted by the Chamber and the official declarations of the Allied Governments”.
The British Cabinet Minister, Mr. Asquith, declared in his speech at Leeds on 27th [26th] September, 1917, “Still less can we look for a Peace which is worthy of the world [word] in any arrangement imposed by the victor on the vanquished, which ignores the principles of right and sets at defiance the historical traditions, aspirations and liberties of the peoples affected. Such so-called Treaties contain within themselves their own death warrant and simply provide a fertile breeding-ground for future wars.”
On the 10th January, 1918, Mr. Balfour, speaking in Edinburgh, declared, “We never went into the war for selfish objects and we are not going to fight the war to a finish for selfish objects”.
On the 4th September, 1915, Mr. Bonar Law, speaking in the Guild Hall, said, “We are fighting for the moral forces of mankind and for the right of public justice, the foundation of morality. We are fighting for right against might.”†
On the 22nd October, 1917, the British Prime Minister, Mr. Lloyd George, speaking in the House of Commons, said, “We must not place any weapon in the hand of Germany by doing her any real wrong,”‡ and in his speech of the 5th January, 1918, he said, “It is not a question of revenge but of justice. A Peace of revenge would not be justice; we must not have a new Alsace-Lorraine question for the simple reason that we should then repeat Germany’s mistake.”§
In the same way General Smuts, when addressing the dock labourers on the Clyde on the 17th May, 1918, described the aims of the war as the assurance of the freedom and rights of all nations.
On April 2nd, 1917, President Wilson in his address to the two Houses of Congress stated “we shall be satisfied when the rights of mankind are as secure as fact [faith] and the freedom of nations can make them”, while on the 4th December 1917, he made the following statement in his yearly message to Congress: “I believe that I speak for the American people when I say two thingsǁ … when the time [Page 807]comes that we can discuss Peace with the German people with spokesmen whose word we can believe and when these spokesmen are ready in the name of their people to accept a common judgment of the law of nations as to what shall henceforth be the bases of law and of covenant for the life of the world—we shall be willing and glad to pay the full price for Peace and pay it ungrudgingly. We know what that price will be: It will be full, impartial justice, justice done at every point and to every nation that the final settlement must affect, our enemies as well as our friends.” In the same speech, in speaking of the wrongs which will have to be righted, he says, “They cannot and must not be righted by a commission of similar wrongs against Germany and her Allies; the world will not permit the commission of similar wrongs as a means of reparation and settlement. Statesmen must by this [time] have learnt that the opinion of the world is everywhere wide awake and fully comprehends the issues involved.”
In his address to the Mexican journalists on the 9th [7th] June, 1918,21 President Wilson promised to observe the principle that the interests of the weakest and the strongest should be equally sacred: “That is what we mean if we act with sincerity, understanding and real knowledge and perception of the subject. If the common aim of the Governments and their peoples who are united against Germany is really and truly to produce a sure and permanent Peace in the coming Peace negotiations, all those who will have a place at the Peace Conference will be ready and willing to pay the only price at which it is to be had. They must also be ready and willing to create with virile courage the only instrument which can ensure the execution of the terms of Peace. This price is impartial justice on every point, no matter whose interests are thwarted thereby; and not only impartial justice but also satisfaction of all the peoples whose destiny is to be decided.” And in his speech before Congress on the 11th February, 1918,22 the President describes the Peace aims in the [Page 808]following terms: “What we are striving for is a new international order based upon the broad and universal principles of right and justice—no mere Peace of shreds and patches.”
The Draft Treaty shows that none of these solemn and repeated promises has been kept.
Firstly, in [the] territorial question[s]:
In the west a purely German District on the Saar with, at the lowest estimate, 650,000 inhabitants, is to be detached from the German Empire for at least 15 years, solely on the ground that claims have been made to the coal present there.
Reference will be made in connection with the national right of self-determination to the other cessions in the west, and to German Austria and German Bohemia.
In Slesvig, the boundary of the plebiscite area has been drawn through purely German districts, and goes beyond even the wishes of Denmark.
In the east, Upper Silesia is to be detached from Germany and attached to Poland, although it has had no political connection with Poland for 750 years. On the other hand, the province of Posen and almost the whole of West Prussia are to be detached from the German Empire in view of the former configuration of the old Polish State in spite of the fact that millions of Germans live there. Again, the detachment of the District of Memel is to take place without any consideration and any regard to the historical past, with the obvious intention of separating Germany economically from Russia. In order to secure for Poland free access to the Sea, East Prussia is to be completely severed from the remainder of the Empire, and thus condemned to economic and national ruin. The purely German town of Danzig is to become a free State under Polish suzerainty. Conditions such as these are based on no considerations of justice. Their basis is indifferently, now the consideration of an immemorial historical right, now the principle of ethnographical ownership, now the consideration of economic interests. In every case the decision is against Germany.
The settlement of the Colonial question is also contradictory to the idea of a Peace of justice. The essence of State activities in colonial territories consists not in capitalist[ic] exploitation of a less developed race, but in the winning of backward peoples for a higher civilisation. It follows that the more advanced Powers have a certain natural claim to share in colonial activities. Germany also has this natural claim, for German efforts in colonial areas are indisputably great. The German claim is not satisfied by a Treaty which robs Germany of all its colonies.
Not only in the settlement of territorial questions, but in all the demands of the Treaty, we find the notorious principle of Might before Right. To give examples:[Page 809]
According to Article 117, the German Empire is to submit in advance to the conditions of all treaties and agreements made by its enemies with such States as have been set up or may be set up in any part of the former Russian Empire, this applying even to the matter of its own boundaries.
According to the standards of international law, as they were understood on the Continent, the economic war should have been regarded as inadmissible even during hostilities, and private property should have remained inviolable. The Treaty of Peace, however, is not only not satisfied in claiming from Germany, for purposes of national indemnification, the value of all German private property liquidated by enemy Powers in their territories, but the enemy Governments commit the monstrous injustice of reserving to themselves the right to liquidate or subject to any of their War-time regulations during an indefinite period after the conclusion of the Treaty of Peace, any German property in their territories, without any regular indemnification, and without regard to the date of its acquisition. This is to apply even to German property in the German Colonies, to Alsace-Lorraine, and to other territories to be ceded.
It is required that German citizens should be handed over to the Courts of Justice of Enemy Powers; whereas a new solution should have been found, deduced from the principle of a Peace of Justice, by the setting up of an impartial tribunal whose function should be the determination of all breaches of the law of nations which had occurred during the War.
Although President Wilson in his speech of 26th October 191623 recognised “that no single fact has been the cause of the war, but in the last resort the deeper responsibility for the war is borne by the whole European system, its combination of alliances and understandings, a complicated web of intrigue and espionage which inevitably caught the whole family of peoples in its meshes”, “that the explanation of the present war is not so simple and its roots sink deeper into the dark soil of history”, Germany is required to recognise that she and her Allies are responsible for all damage suffered by Enemy Governments and their nationals, consequent on attacks by Germany and her allies. This appears the more intolerable, as it is an indisputable historical fact that some of the States opposed to us, for instance, Italy and Roumania, entered upon the War, as far as they were concerned, [Page 810]for purposes of territorial acquisition. Apart from the fact that there is thus no unexceptionable legal basis for the duty of reparation, imposed upon Germany, the amount of this reparation is to be fixed by a Commission appointed solely by Germany’s enemies, Germany being allotted no share in its decisions. The objects of this Commission are directed simply to the controlling of Germany as a kind of Bankrupt on a large scale.
There are natural rights of nations, as there are natural rights of man. The inalienable basic right of all States is the right to self-maintenance and self-determination. The condition which it is here proposed to impose upon Germany is incompatible with this fundamental right. Germany is to take upon itself obligations of reparation, the amount of which is not even fixed. German rivers are to be subjected to an international control, in which the representatives of Germany remain in an insignificant majority [minority]. It will be possible for canals and railways to be constructed on German soil at the will of foreign authorities.
These few instances show that this was not the Peace of Justice which was promised to us, not the Peace which, in the words of President Wilson, “in all essential points rests on equality and on the basis of the common enjoyment of a good action for the benefit of all in common, in which the equality of nations consists in the equality of their rights”.
3. spirit of the league of nations
In such a peace consideration would have been had to that solidarity of human interests which should find its expression in a League of Nations. How often have promises been made to Germany that this League of Nations would unite the belligerents, conquered and conquerors alike, in a lasting community of law. On the 10th April, 1916, Mr. Asquith said to the French Deputies:
“The Allies’ purpose is to pave the way for an international system which will secure the principle of equal rights for all civilised States.”
On November 1st, 1918, Lord Robert Cecil spoke of a League of Nations spirit that meant not only the machinery of a League, but also the substitution of common work for rivalry in international relations:
“That would be a tremendous change, which would test the patriotism of many people in England. Unless we grapple with this problem with the real and sincere desire to reach a solution which will be to the permanent advantage of the whole civilised world, then indeed it might well be that we should bring upon ourselves a fresh failure, a fresh disaster such as we have suffered in the last four years, and in that case it is by no means certain that European civilisation would survive it.”
On the 26th August, 1915, the former Minister, Sir Edward Grey, said:
“If there are to be guarantees against future war, let them be equal, comprehensive and effective guarantees, that bind Germany as well as other nations, including ourselves.”
The same Minister wrote, in his pamphlet on the League of Nations in 1918:
“A League such as he desires must include Germany, and should include no nation that is not thoroughly convinced of the advantage and necessity of such a League, and is therefore not prepared to make the efforts, and, if need be, the sacrifices necessary to maintain it. In opposition to this idea of Germany, the Allies should set forth, as President Wilson has already set forth, the idea of a peace secured by mutual regard between States for the rights of each and the determination to stamp out any attempt at war, as they would a plague that threatened the destruction of all.
“When those who accept this idea and this sort of peace can in word and deed speak for Germany, we shall be within sight of a good peace.”
On the 12th October, 1918, Lord Grey said:
“Wilson has repeatedly urged that the League of Nations must be a League into which Germany also can be admitted. We cannot make any excuse for excluding Germany except on the ground that every Government belonging to the League must represent a free people, fully determined to carry out the aims of the League in all sincerity.”
A similar wish was expressed by the French Prime Minister Ribot on the 6th June, 1917:
“To-morrow there must be erected a League of Peace in the name of that spirit of democracy which France had the honour of first bringing into the world. The nations which to-day stand in arms will to-morrow constitute the community of nations. That is the future of the human race, or one must despair of its future. [Wilson has said that on this point he is with us.]”
“If peace is to endure”, said President Wilson on the 22nd January, 1917,24 “it must be a peace made secure by the organised major force of mankind.” In his speech to Congress of 8th January, 1918, the President said, “A general association of nations must be formed.” On the 27th September, 1918, he declared:25
“The constitution of that League of Nations and the clear definition of its objects must be a part, [is] in a sense the most essential part, of the peace settlement itself. It cannot be formed now. If formed now it would be merely a new Alliance confined to the nations associated against a common enemy.”
On the 3rd January 1919, President Wilson at Rome defined the task of the Peace Conference in Paris as follows:26
“To organise the friendship of the world, to see to it that all the moral forces that make for right and justice and liberty are united and are given a vital organisation to which the peoples of the world will readily and gladly respond.”
This announcement led the German people to consider it completely certain that they would from the very beginning be allowed to share in the creation of the League of Nations. But in spite of what was then said the Covenant of the League of Nations has been laid down without Germany’s cooperation. Nay, more, Germany is not even on the list of States which have been invited to adhere to the League. Germany can indeed apply for admission, but her admission is made dependent upon “effective guarantees”, whose extent and contents are not even known to her. The importance of Germany is altogether independent of her former military or political power. It is impossible, therefore, to speak of a true League of Nations to which she is not admitted. That which the Treaty of Peace aims at creating is rather a continuation of the coalition of her enemies which does not deserve the name of a “League of Nations.” At the same time, its actual structure is no realisation of the true League of Nations. Instead of the long-dreamt-of holy alliance of the peoples it returns to the fatal conception of a Holy Alliance of 1815, the belief that it is possible for governments to assure the peace of the world by the method of diplomatic conferences and of diplomatic machinery! One misses the provision of technical bodies and non-party [impartial] courts existing side by side with the Council which is controlled by the Great Powers, which can keep the whole civilised world subject to it at the cost of the independence and legal equality of the smaller States. Thus the way is left open for a continuation of the old political system based on force, with all its resentments and rivalries!
4. is germany’s position destroyed?
Again and again have Germany’s enemies given assurances before all the world that they are not aiming at Germany’s destruction. “Who ever wished”, declared the Prime Minister Lloyd George, on the 19th September, 1916, in the House of Commons “to put an end to Germany’s national existence or to her free national development?” On the 20th February, 1918, Lord Milner, the member of the English War Cabinet, said: [Page 813]
“We are not fighting for the destruction of Germany … we are not fighting to take her independence from Germany or to shut her out from her just share in the commerce of the world.”
On the 27th December, 1917, the French Foreign Minister Pichon referred in his address to the Chamber of Deputies to the fact that the answer of the Allies to Wilson’s Note had no thought of the destruction of the German people.
“America must show,” said President Wilson, on October 26th, 1916, at Cincinnati,27 “that she is ready to use not only her moral influence but also physical force if other nations will join her, to ensure that no nation or group of nations attempts to make a tool of any other nation or group of nations, and that the sole aims for which we have fought are the universal rights of the human race.” In the President’s reply to the Pope’s Note on the 27th August, 1917, he says:28
“The American people … believe that peace should rest upon the rights of peoples, not the rights of governments—the rights of peoples great or small, weak or powerful—their equal right to freedom and security and self-government, and to a participation upon fair terms in the economic opportunities of the world—the German people of course included, if they will accept equality and not seek domination.”
Further, President Wilson in a speech to Congress on January 8th, 1918, laid down, as a condition for a just peace:
“The greatest possible relaxation of all economic restrictions and the establishment of an equality of trade conditions for all nations signatory to the Peace Treaty and pledged to uphold it.”
and, according to his New York speech of the 27th September, 1918, the economic boycott should only be permitted as a measure of the executive of the League of Nations.
In contrast to all this, the draft treaty proves that the position of Germany as a world people is to be completely destroyed. Germans abroad are to be deprived of all possibility of carrying on their former connexions in foreign countries, and of again assuring to Germany a share in the world’s commerce, seeing that their estates, which have up to the present been sequestrated, are to be used for purposes of reparation¶ instead of being restored to them.[Page 814]
In the same way it is made impossible for any German to win for his Fatherland a share in the world’s commerce if, even after the signing of the Treaty of Peace, all estates belonging to Germans abroad are to remain subject for an indefinite time to the regulations imposed during the war, and therefore, liable to confiscation. Besides this, it is proposed that, apart from his estate, the German living in an enemy country is not to enjoy the same personal legal rights which an enemy subject can claim in Germany. The intention of eliminating Germany from world commerce is also displayed in the confiscation of her property in the German cables.
Besides all this, there is the destruction of German industrial life at home, which is set forth elsewhere.
Such provisions constitute a complete denial of the fundamental principle of international law, namely, that every people has a right to live. That essential possession ought not to be taken away from Germany for the sake of the industrial interests of other nations.
To the above principles another has been added by the war, and one which the statesmen of all nations have again and again recognised as a primary war aim, namely, the self-determination of peoples. In fact one of the achievements of this war was to enable all peoples to exercise this right. Mr. Asquith in his speech on the 27th [26th?] September 1917 declared it to be a “guiding” principle that “we must proceed in accordance with ethnical relationships, in accordance with historical tradition and above all in accordance with the true wishes and aspirations of the populations concerned.” The same statesman stated on October 11th 1918 “that every national entity should be accorded freedom of self-determination in order to apply to the common good of humanity their particular gifts, qualities and services.” On the 11th September 1914, Mr. Churchill stated that “England must work towards great and sound principles for the European system. And the first of these principles is the principle of nationality.” On the 23rd March 1915 Sir Edward Grey, at that time Minister for Foreign Affairs, referred to “that great idea for which the Allies are fighting, namely, that the nations of Europe should lead their own independent life and develop in full freedom their own form of government and their own national progress.” On the 23rd October 1916, Sir Edward Grey again said “We will fight until we have secured victory and the right of free development under conditions of equality, the right by which all countries can reconstitute themselves in accordance with their union as a family of civilised peoples.” Mr. Lloyd George mentioned on the 5th January 1918 as among the chief war aims “a territorial settlement based on the right of self-determination [Page 815]or the consent of the Government [governed].” On the 12th December 1917 Signor Orlando, the Italian Prime Minister, spoke of the inviolable unity of national consciousness [conscience]. On the 11th January 1918 Monsieur Pichon mentioned among the three conditions of a just and lasting peace the settlement of territorial questions on the basis of the right of peoples to decide their own destiny.29
On the 2nd April 1917 President Wilson declared “We will fight for those great objects which stand nearest to our hearts, for democracy, for the right of all those who were subjected to superior domination to have a voice in the governance of their country.” On the 11th January [February] 1918 President Wilson stated in Congress “that peoples and provinces were not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game. Peoples may now be dominated and governed only by their own consent. Self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril. We cannot have general peace for the asking or by the mere arrangements of a Peace Conference. It cannot be pieced together out of individual understandings between powerful states”. A similar sentiment was expressed in the President’s message to the Senate of January 22nd 1917. “No peace”, he wrote, “can last or ought to last which does not recognise and accept the principle that Governments derive all their just powers from the consent of the governed and that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property.” In his speech of the 4th July 1918,30 President Wilson expressly laid it down as a war aim that “the settlement of every question, whether of territory or 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 which may desire a different settlement for the sake of its own exterior influence or mastery.”
Neither the treatment of the inhabitants of the Saar region as appertaining to the mines, nor the method of consulting the peoples in the districts of Eupen, Malmedy and Prussian Moresnet which has only to take place after they have been placed under Belgian sovereignty, corresponds in the remotest way to these solemn recognitions of the right of self-determination.
The same is true of Alsace-Lorraine. When Germany undertook “to undo the wrong of 1871” she did not intend thereby in any way to abdicate the right to self-determination of the inhabitants of Alsace-Lorraine. The severance of the country without consultation with [Page 816]the people concerned would constitute a new wrong, while at the same time being contrary to one of the recognised principles of the peace.
Further it is incompatible with the conception of national self-determination that 2½ million Germans should be torn from their Mother-country against their will. According to the suggested delimitation, decisions are to be taken over purely German territory to the advantage of our Polish neighbours. Similarly portions of the districts of Guhrau and Militch in Central Silesia are to be torn away, which are inhabited by nearly 44,900 Germans and at most 3,700 Poles. The same applies to the towns of Schneidemühl and Bromberg, of which the latter has at most 18 per cent of Polish inhabitants whereas in the district of Bromberg they constitute not even 40 per cent of the population. In the district of Netze, which is now given to the Poles, President Wilson in his book “The State, Elements of Historical and Practical Politics” (Chapter 7: The Government of Germany, page 255) expressly recognised that the district in question was completely German. The frontier as drawn between Poland on the one side, and on the other Central Silesia, Brandenburg and West Prussia, is justified on strategical grounds. Such grounds however are scarcely tenable in an age when territorial possessions are to be internationally guaranteed by a League of Nations. The completely arbitrary nature of the frontiers drawn in the east is shown by the fact that the districts of Leobschütz and Ratibor in Upper Silesia are given to Czechoslovakia, although Leobschütz has a Czecho-Moravian population of 7.6 per cent and Ratibor 39.7 per cent. The frontier as drawn in the northern districts of East Prussia will include purely German parishes such as Angerburg and Oletzko. This disregard of the principle of self-determination is shown at its worst in the severance of Danzig from the German Empire and its creation as a free state. Neither the historical right nor the present ethnographical distribution of the Polish population can be used in argument as against the German history and the German character of this city. A free access to the sea such as satisfies the economic needs of Poland can be secured by international servitudes [guarantees] or by the creation of free ports. The contemplated severance of the commercial city of Memel from Germany is also in complete disaccord with this principle of self-determination. The same applies to the fact that millions of Germans in German Austria will be prevented from attaining their desire to join Germany, while further millions of such Germans living upon our own frontier will be compelled to remain within the newly constituted Czecho-Slovak State.
Even in regard to the territory which is left to Germany the promise of self-determination is not observed. A Commission for exacting reparations is to be given supreme control over all branches of state [Page 817]administration. Our enemies maintain that they have fought for the great object of democratising Germany. It is true indeed that as a result of this war we are freed from our former rulers, but we are apparently to exchange these for a foreign and dictatorial rule whose object can and must be to exploit the labour of the German people to the advantage of our creditors. Such a surrender of its independence cannot be expected from any state. The right which every state has to self-existence means above everything that it should have complete disposal over [determination of] the internal organisation of its own life. A limitation of this right in the case of Germany is a violation of the basic rights of peoples.
III. The Result
All this proves that this Draft of a Peace Treaty submitted to the German Government is in the sharpest contradiction with the agreed basis for a lasting Peace of Right. Scarcely any single Clause of the Draft Treaty corresponds with the agreed conditions, and as regards territorial questions the draft requires the annexation of purely German territory and the suppression of German nationality. It involves the complete annihilation of German economic life. It reduces the German people to a state of financial slavery which has never yet been known in the history of the world. For these reasons it was characterised as impossible of execution at the Session of the National Assembly on May 12th by the Government, and also by all parties. The putting of this Draft Treaty into effect would signify a fresh disaster for the entire world. And yet so early as 10th October 1914 ex-President Roosevelt uttered the following warning: “Any annihilation, or even crippling of Germany which would lead to her political impotence, would be a catastrophe for mankind.” This would make itself felt immediately in economic matters. If the country were reduced to a state of economic penury, which would be the inevitable result of such a Peace, Germany’s creditors could never obtain the colossal sums which Germany is to pay to them. The harmful consequences of such a Peace would extend far beyond the immediate scope of our enemies’ demands. The economic prosperity of the world is, in the last resort, dependent upon the sum total of goods produced. The complete exclusion of Germany from world trade may eliminate inconvenient competitors, but in general the world is bound to become immensely poorer by the economic collapse of Germany. Such a permanent injury to the well-being of the world is doubly ominous, inasmuch as the war has swallowed up a great part of the national wealth of most of the belligerents. What the world needs is international co-operation in all spheres of activity.[Page 818]
This age of world-wide economic development demands the political organisation of the civilised world. The German Government are in agreement with the Governments of the Allied and Associated Powers in considering that the ghastly devastations which this war has entailed demand the establishment of a new order in the world, an order “of effective acceptance of the principles of the Law of Nations”, and “of just and honourable relations between peoples”. The restoration and reconstruction of the international order of the world can only be secured if the existing authorities succeed in realising in a new spirit the great idea of democracy; if, as President Wilson expressed it on the 4th August 1918,31 there is “settlement of all questions … on the basis of free acceptance of such settlement on the part of the people thereby affected.” Only those peoples which live free and responsible to themselves in accordance with justice can give each other guarantees for just and honourable relations. But these qualities of justice and honour also require that the peoples should mutually guarantee to each other freedom and life as the most sacred and inalienable of all fundamental Laws.
No recognition of these principles can be traced in the Peace document laid before us; a moribund conception of the world, imperialistic and capitalistic in tendency, celebrates in that document its last dreadful triumph. In opposition to these conceptions, which have brought untold disaster to the world, we appeal to that “inborn right” of men and peoples, beneath whose guiding star the English State developed, the people of the Netherlands won freedom, the North American Nation attained its independence, and France shook off absolutism.
The heirs of such sacred traditions cannot refuse this right to the German people, who have only just attained in their internal affairs the capacity to live in accordance with their free will for justice. A Treaty such as that which has been presented to Germany appears to be irreconcilable with respect for this inborn right. Nevertheless Germany, being firmly resolved to carry out her Treaty obligations, makes the following counter proposals.
part ii: the german proposal
I. The League of Nations
Lasting peace in the world can only be attained through a League of Nations which guarantees the possession of equal rights to great and [Page 819]small Powers. In the introductory observations the fact has already been emphasized that expression has also been given to this conception of the essence and object of the League of Nations in significant declarations by the leading statesmen of the Allied and Associated Powers. At the same time it has been necessary to emphasise the wide divergence from this conception apparent in the Covenant of the League of Nations contained in the enemy draft Treaty.
Germany on her part has worked out her own plan for a League of Nations32 and has handed it to the Allied and Associated Governments, and the latter have defined their attitude towards it in their note of May 22nd.33 Without examining here the deductions contained in that note, the German Delegation declares itself ready to negotiate on the basis of the Covenant of the League of Nations contained in the draft Treaty of Peace, on conditions that Germany enters the League as a Power with equal rights immediately on the signature of the agreed Treaty of Peace.
Germany must, however, further demand that, while the fundamental ideas of her own draft covenant for the League of Nations are fully maintained and while expecting that these fundamental ideas will be carried out in the course of time, provisions regarding economic life should be adopted in the Covenant of the League of Nations which would safeguard the complete equality of rights and reciprocity for all nations. In accordance with the declarations of President Wilson in point No. 3 of his address to Congress of January 8th, 1918, to which reference has already been made, the following amplification of the Covenant of the League of Nations is consequently proposed:
“Concerning the practice of commerce, trade and agriculture, the nationals of one member State shall be in a position of equality with the native residents in another member State, and particularly as regards the taxation and imposts thereby involved.
“The member States of the League of Nations shall not participate either directly or indirectly in any measures taken with the object of continuing or resuming the economic war. Forcible measures on the part of the League of Nations shall be reserved to that body.
“All kinds of goods, coming from or going to the territory of a State member of the League of Nations, shall be free from all transit duties in the territories of the member States.
“The mutual traffic between member States shall not be restricted by import, export or transit prohibitions, unless such prohibitions are desirable for reasons of public safety, for the protection of health and prevention of epidemics, or for the carrying out of internal economic legislation.
“The several member States are at liberty to settle their mutual economic relations within the League, other than the relations mentioned above, according to their special requirements by means of special agreements.[Page 820]
“They recognise the creation of an international commercial Treaty as the aim of their endeavours.
“At the same time care must be taken to ensure that no member State or several such States should have the right to interfere in the internal economic or commercial conditions of another member State.”
Further Germany must require in accordance with the declaration of President Wilson of September 27th, 1918:
“That there can be no special selfish economic combinations within the League of Nations and no employment of any form of economic boycott or exclusion is admissible.”
The German Delegation notes with satisfaction that the enemy scheme for a League of Nations contains a stipulation providing for an inexpensive [a fair] and humane regulation of labour conditions and expresses the hope that the application of this clause will realise the ideas which form the basis of the Annex34 to the German Counterproposal for the League of Nations.
The Government of the German Republic are inspired by the conviction that the League of Nations will carry the idea of justice to realisation and are, therefore, ready, on the understanding that Germany shall enter into the League of Nations immediately upon the conclusion of Peace as a Power with equal rights, to agree to the fundamental ideas of the conditions proposed in Part V, regarding military, naval and air fighting forces. In particular, the Government are ready to concede the abolition of universal military service on condition that this is “the initiation of a general limitation of the armaments of all nations”, and that within two years at most from the conclusion of Peace the other States also, in accordance with Article 8 of the enemy Covenant of the League of Nations, undertake to reduce their armaments and to abolish universal military service. The Government of the German Republic by their willingness to disarm in advance of the other Powers are furnishing the best possible proof of the fact that they are once and for all renouncing all militarist and imperialist tendencies.
At the same time the German Government must demand that a period of transition should be allowed to them also. In this connection the following regulation is proposed for Germany:
“The German land fighting forces shall not exceed a total number of 100,000 men including officers and depôts. This army is to be devoted to the maintenance of order within the German Empire, to the control of frontiers and to the obligations incumbent on Germany in consequence of her reception into the League of Nations.[Page 821]
“During a period of transition Germany retains the right to maintain such numbers of troops as are required to preserve internal order which at present is seriously shaken. The length of this period of transition and also the numbers of troops shall be arranged by a special agreement and in case of emergency shall be confirmed by the League of Nations.
“The organisation and armament of the army is to be left to Germany herself as in the case of every member of the League of Nations.
“On condition that she enters the League of Nations on the conclusion of Peace and in the expectation of reciprocity later on, Germany is ready, in accordance with the draft Treaty, to dismantle her fortresses in the West and to establish there a Zone unoccupied by any military forces.
“A special agreement must be concluded in advance as regards the manner in which internal order and safety are to be preserved within this Zone.
“Germany is ready, with the reservation of the necessary financial measures, to deliver not only the surface ships as required by Article 185, but also all ships of the line.
“The principle that no State is to be subjected to special control as regards disarmament, outside the control exercised through the League of Nations, applies to Germany also.”
The German Government are ready to negotiate in regard to all further details on a basis of equality. In this connection due regard must especially be given to the necessary prolongation of the periods laid down in Part V, which are technically impossible to observe, and also to the conversion of war material released from the Army and Navy to peaceful, and especially to economic, objects.
As regards aerial navigation Germany is ready to submit to any limitation to which all members of the League of Nations are subjected, and also to grant to each member of the League of Nations as regards flight over and landing upon her territory the same rights as are granted to Germany by all other Powers.
With a view to dealing rapidly with all points of detail the German Government propose immediate verbal negotiations. They reserve the right, with a view to preparing for these negotiations, to discuss in a special note the details of the Military and Naval conditions set forth in the Draft.
The highest and most precious object of the Peace is to provide an assurance that this war has been the last of all wars and that mankind will be protected from the return of such terrible catastrophes. Germany is ready to do all that lies within her power to contribute to the attainment of this end. Having made the present proposals, it will not be her fault if the nations are deceived in this hope and if conditions are created which, by the force of natural necessity, must lead to new wars.[Page 822]
II. Territorial Questions
1. right of self-determination of the population
No territory may be separated from Germany which by centuries of peaceful union with the German State has indisputably proved that it belongs to the nation, or, if this is not the case, the population of which has not declared itself in favour of separation.
These principles coincide with the basis accepted by both sides for the settlement of territorial questions and contained in four Points of President Wilson’s speech in Congress on February 11th, 1918, which are again quoted below:
“The principles to be applied are these:
- “First, that each part of the final settlement must be based upon the essential justice of that particular case and upon such adjustments as are most likely to bring a peace that will be permanent.
- “Secondly, that peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power; but that
- “Thirdly, every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned and not as a part of any mere adjustment or compromise of claims amongst rival States.
- “Fourthly, that all well defined national aspirations shall be accorded the utmost satisfaction that can be accorded them without introducing new or perpetuating old elements of discord and antagonism that would be likely in time to break the peace of Europe and consequently of the world.”
Moreover, Point 2 of President Wilson’s speech at Mount Vernon on 4th July, 1918, is also applicable, which begins:
“The settlement of every question, whether of territory or 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 which may desire a different settlement for the sake of its own exterior influence or mastery.”
It follows therefore that:
- The surrender of territories cannot be demanded which, like Upper Silesia, has belonged to the German State since 1163, or the Saar district, which with short interludes due to warlike operations, has never been under any but German sovereignty.
- In cases where Germany can consent to surrender of territory, a preliminary plebiscite must at least be held in each community.
All subjects of the German Empire, both men and women, who are over 20 years of age, must be entitled to vote in that plebiscite. Only those persons have the right to vote who are domiciled within the communities and were so domiciled at least one year before the conclusion of peace. The voting must be strictly secret and the proper and regular conduct of the election must be guaranteed. This guarantee can only be assured if all troops are withdrawn from the disputed territory and the plebiscite itself, as well as the administration of the territory until the plebiscite, placed under the control of a neutral government composed of subjects of the States of Denmark, the Netherlands, Norway, Sweden, Switzerland or Spain. Should there be enclaves, they must be mutually exchanged. When fixing the boundaries care must be taken that no more German subjects are placed under the rule of the acquiring State, than subjects of that State under German rule. No material advantages of any kind must be promised to influence the plebiscite; in particular, promises of any freedom from material burdens in the event of the transference of German territory to another State are inadmissible. Freedom of plebiscite excludes the possibility of punishment for actions relating to the plebiscite. The Plebiscite itself must only take place after the conclusion of peace, and the resumption of normal conditions. If necessary, the date must be fixed by the League of Nations.
Germany is in general in favour of the protection of small nationalities. That protection can best be regulated within the limits of the League of Nations. Nevertheless, Germany must, however, demand specific guarantees in the Peace Treaty for those German minorities which are surrendered to a foreign sovereignty. Those minorities must be allowed to cherish their German characteristics, especially by the concession of the right to support and frequent German schools and churches and to publish German newspapers. It would be well if a still more completely cultural autonomy could be procured, on the basis of national land registers. For her part, Germany is determined to treat foreign minorities within her territory according to the same principles.
The right of self-determination of nations must not be a principle which is applied solely to the prejudice of Germany, it must rather hold good in all States alike and especially be also applied where populations of German race wish to be united to the German Empire.[Page 824]
The Draft Peace Treaty demands from Germany recognition of the full sovereignty of Belgium over neutral Moresnet, and the surrender of the circles of Eupen and Malmedy.
Now neutral Moresnet owes its existence to the Frontier Agreement of 26th June, 1816 between Prussia and Holland. The district in question possesses a population of 3,500, the majority of whom are of German extraction and use the German language. Generally speaking, the Clauses of the Agreement have always been interpreted as recognising the suzerainty of Prussia over this district, a suzerainty limited only by the concession of certain joint rights of decision appertaining to Belgium. Prussian Moresnet, which belongs to the Circle of Eupen, has a predominantly German population. In spite of this, no provision whatever is made for a plebiscite in either of these two districts.
At no time in history did the districts of Eupen and Malmedy belong to Belgium or the States which may be regarded as the predecessors of the present Kingdom of Belgium. From the point of view of nationality, the Circle of Eupen is exclusively German. At a recent census of its 25,000 inhabitants, only 98 gave Walloon as their mother-tongue!
In the Circle of Malmedy, out of a population of 37,000 only about 9,500 speak Walloon as their mother-tongue. The Walloons are therefore considerably in the minority. The Walloon spoken in the Malmedy district differs moreover so greatly from the Walloon dialect used in Belgium, and still more so from the French language, that the two populations actually find great difficulty in understanding each other. Since their incorporation with Prussia, the Prussian Walloons have invariably proved themselves loyal Prussian subjects. Only since the enemy occupation have the Belgians succeeded in engineering an artificial agitation for the incorporation of this district with Belgium.
The German Government cannot consent as a matter of principle to the surrender of indisputably German territory. With regard to territories such as these, no plebiscite can come into question. But apart from this, the demand for the surrender to Belgium of the districts of Malmedy and Eupen would be contrary to the principles according to which the determination of all questions connected with suzerainty is subject to the free consent of the populations immediately concerned.
In this case, however, no provision for the taking of a plebiscite has been made; it is merely provided that during six months after the Peace Treaty has come into effect, a list of the population of Eupen and Malmedy shall be drawn up by the Belgian authorities, on which the inhabitants shall be entitled to record their desire as to whether the territory in question shall remain wholly or partly under German [Page 825]suzerainty. All guarantees for the taking of an unbiassed plebiscite are therefore lacking.
The Allied and Associated Governments have expressed the desire that the extensive forest lands of the Eupen district, which include a part of the Herzogenwald, should be taken as compensation for the Belgian forests destroyed by the war. In so far as it is a question of compensation, the German Government declares its readiness, in accordance with the points established by President Wilson, to give satisfaction to these not unjustifiable claims by entering into contracts for deliveries of timber.
This desire of the Allied and Associated Governments cannot, however, be regarded as a justification for demanding the surrender of Eupen and Malmedy. The German Government therefore points out in this connection the inadmissibility of transferring human beings from one suzerainty to another, purely on account of timber and zinc ore.
It appears necessary for Germany to come to an arrangement with Luxemburg regarding the readjustment of mutual relations. The proposals made from the point of view of political economy cannot be accepted, as this would mean that Luxemburg would continue exclusively to enjoy all advantages accruing to her as member of the German Zollverein, although retiring from the same. The principle of reciprocity must be adhered to.
4. district of the saar
There has already been an exchange of correspondence with regard to the question of the Saar district.
In its Notes of 13th and 16th May,35 the German Government suggested a solution which, on the one hand, gives France compensation for her destroyed coal-mines, assured by all equitable guarantees, and, on the other hand, makes it possible for Germany to accede to a settlement which shall be in accordance with the Preliminary Agreement as to the basis of a Peace which has already been signed. The German Government again defines its standpoint regarding the question of the Saar as follows:
The boundaries of the district, the sovereignty over which comes into question “en compensation de la déstruction des mines de charbon dans le nord de la France,” are so drawn that they extend far beyond the coal-bearing lands, and also include large forests, numerous limekilns, glass-works and other most remunerative and, in some cases, [Page 826]world-famed industries. In consequence of the new customs boundaries these territories will become included in French economic zones, so that other objects will be attained, which are in no way connected with compensation for the mines destroyed. Even should the surrender of the coal-mines to France be alone demanded, this would be entirely out of proportion when contrasted with the object of compensation for the French mines destroyed.
As already stated in its Notes of 13th and 16th May, and as again set forth elsewhere in the present Memorandum, the German Government is prepared to guarantee the supply of the coal demand in question by delivery contracts and participations.
Even according to the conviction regarding the economic situation expressed by the Allied and Associated Governments in their Note of 22nd May,36 it would be a fundamental error to believe that it is necessary to exercise political sovereignty in a country in order thereby to secure for one’s self a proportionate share of its production. Such a point of view would be based on no economic or political law.
Surrender would certainly present a rapid solution of this problem, but it would be an unjust one. The reconstruction of the mines in Northern France will be completed in 10 years at the latest. The annual deficit in output, which Germany is bound to make good, will, according to the estimates of the French Government itself, only attain 20 million tons in the most extreme event during the first few years. The amount of coal actually contained in the mines in Northern France has in no wise been decreased by the devastation. In the Saar mines over 11 milliard tons of coal have with certainty been proved to exist, a quantity sufficient for approximately 1,000 years.
By the transfer of ownership of these mines, France would therefore obtain one hundred times the amount which she herself mentions as the maximum extent of her legitimate demands. In order to effect this, the Treaty of Peace makes a demand whereby purely German territory would be severed from Germany and attached as regards economic regime to France, and whereby the attempt is made also to unite it to France politically.
There is no industrial region in Germany the population of which is so permanent, so homogeneous and so little “complex” as that of the Saar district. Among more than 650,000 inhabitants there were in 1918 less than 100 French. The Saar district has been German for more than 1,000 years (since the Treaty of Meersen in A. D. 87037). Temporary occupation as a result of warlike operations on the part of France always terminated, after short duration, in the restoration of the country upon the conclusion of peace. During a period of 1,048 [Page 827]years France has possessed the country for not quite 68 years in all. When, on the occasion of the first Treaty of Paris in 1814,38 a small portion of the territory now coveted was retained for France in fixing boundaries, the population raised the most energetic opposition and demanded “reunion with their German fatherland”, to which they were “related by language, customs and religion.” After an occupation of one year and a quarter, this desire was taken into account in the second Treaty of Paris in 1815.39 Since then the country has remained uninterruptedly attached to Germany and owes its economic development to that connection.
The sentiments of the population are just as German to-day as they were 100 years ago. The labour organisations, the bourgeoisie and artisans, the industrial population and all political parties, are united in the endeavour to remain members of even an impoverished and beaten Germany. Since the Power in occupation renders any free expression of opinion impossible to them, they have published their determination repeatedly and with emphasis, through the intermediary of deputies elected and representatives appointed from the district. And this population, which is thus disposed, is to be subjected, as a result of its connection with coal mines, to a special form of government by the League of Nations, without being granted any rights as regards the five-man Commission set up by the League. The Commission, which need not even have its seat in the Saar district, is not responsible to the population for its actions. Only one of its members need be born and resident in the Saar region, nor is it in anywise guaranteed that he shall not be one of the few foreigners living in the country. This member will not be chosen by the population, but will be appointed by the Council of the League of Nations subject to revocation. Together with four representatives of other States, he will dispose over [decide] the fate of the population with practically unrestricted power. No body representative of the people, with legislative powers, will exist. The population loses all civic rights; it is politically outlawed.
The use of the German language, the schools and the religious life of the people are placed under control; France is permitted to establish national and technical schools, in which instruction will be given in the French language by teachers chosen by France. The future of all officials and employees will be wholly uncertain. There is a danger that the labour legislation in the Saar region will be developed on other principles than those prevailing in the rest of Germany. The principal privilege granted to the inhabitants of the Saar is that of emigration, which, however, includes no protection against eviction.[Page 828]
These provisions affect a population which loves its country, and a considerable part of which is attached to the soil by the system of small holdings. Thus more than 20,000 out of 52,000 miners have their own land and house. The introduction of foreign workmen may take place on a large scale, and the interests of German workmen would thus be endangered. Foreign nationality will be easier to acquire. All this, together with vague regulations regarding customs, currency, administration, railways, etc., gives every opportunity for separating the Saar district from the rest of the Empire. Experience acquired during the Armistice has shown what the population of the Saar territory will in future have to endure. From the day of their arrival, the French troops of occupation have left no stone unturned to prepare it for union with France. Every attempt has been made to induce the population, weakened by the hunger blockade and the strain of the war, to seek political union with France even now. Many people who have not only remained loyal to the Fatherland in their hearts, but who have acknowledged this, have been evicted.
All this is demanded “en compensation de la déstruction des mines de charbon dans le nord de la France, et à valoir sur le montant de la réparation des dommages de guerre dûs par l’Allemagne.” Do the Allied and Associated Governments believe that the German Government can agree to such a proposal? The question of compensation for the mines of northern France cannot be settled on any but an economic basis.
The attempt to sever from the Fatherland, for purely material reasons, a territory the nationality of which is not in dispute, by temporarily subjecting it to the League of Nations, lowers the whole conception of the League.
The object of stipulations regarding the Saar district was, according to the Note of May 24th,40 to afford an example of reparation. The German Government refuses to carry out any reparation as a punishment. Still more does it refuse to put onto the shoulders of single units of population, under guise of a national burden, the punishment which is intended for all.
Should the Saar district be thus assigned to France, the same injustice would be perpetrated as that for which reparation is now demanded from Germany in respect to Alsace-Lorraine: the population of a district would be separated from their fatherland, in spite of the solemn protests of their representatives. Whoever recommends such a solution to France and Germany is providing a fresh source of conflict between the German and French peoples.
The proposal made in the last Note of May 24th to dispense with payment in gold in the event of the repurchase of the coal-mines does [Page 829]not meet the case. The German Government has now handed in the whole of its very extensive proposals for compensation and reparation. It requests the Allied and Associated Powers to give their most serious consideration to the question as to whether they should not again subject the solution of the Saar problem proposed by the Germans to a detailed investigation.
The greater part of Alsace-Lorraine is ancient German territory which, more than a thousand years ago, became incorporated in the ancient German Empire. In the 17th and 18th Centuries the German portions came under French suzerainty, mainly by conquest, without consulting the population, and in many cases against their active resistance. Although the French overlordship was able to bring about political fusion with France, the national habits and peculiarities of the inhabitants were so little affected that in four-fifths of the country the people are still German by language and customs.
When Germany re-entered into possession of these districts in the year 1871 she did not consult the wishes of the people; in this action she considered herself justified by the former action of France and by the blood relationship of the people to Germany. Nevertheless it must be admitted that the present laws take into sufficient consideration the fact that in 1871 a wrong was perpetrated by the omission to consult the wishes of the people.
The German Government has, therefore, in accordance with the agreements which have been universally recognised, pledged itself to redress this wrong. This wrong would not, however, be redressed, but only replaced by a fresh and still greater wrong, if Alsace-Lorraine were now ceded to France unconditionally, as the country would then be torn from the nation to which 87% of its inhabitants belong by virtue of language and customs. Of still greater importance is, moreover, the economic connexion with Germany, which had been very highly developed as a result of the exploitation of the mineral wealth of the country which had taken place since 1871, and the creation of numerous industries of all kinds which found a ready market in Germany.
If, therefore, the people of Alsace-Lorraine are not consulted at this stage, the great object of the settlement of the question of Alsace-Lorraine, i. e. “at last to make peace in the common interests of all”, would not be attained. The danger would, on the contrary, still exist, and this question would in the future continue to afford a cause for national hatred.
A plebiscite should be carried out for the entire population of [Page 830]Alsace-Lorraine, The following three eventualities must be provided for:
- Union with France, or
- Union with Germany as an autonomous State, or
- Complete independence, especially freedom to enter into economic relations with one of the neighbouring States.
The special clauses regarding Alsace-Lorraine which have been included in the Peace Treaty could only be justified on the assumption that the proposed plebiscite had decided on union with France. In this case they call for the following preliminary remarks (all further remarks of whatever kind must be reserved here, as well as for the complete text of the terms of peace):
There is no justification for the ante-dating of the cession of the country to the day of the conclusion of the Armistice. In the other cases in which cession of territory is to take place, either as the result of a plebiscite or without consulting the people, the Peace Treaty has not considered it necessary to make any provisions as to ante-dating. Such procedure is for this reason not feasible, because the result would be to give a new legal complexion to all transactions and legal conditions which had taken place during this period, and which might be affected by the nationality of the country in question and of its inhabitants. The only satisfactory date can be that on which the result of the plebiscite is finally decided.
The question of the nationality of the inhabitants of Alsace-Lorraine cannot be settled on the basis of the proposed conditions, since they are drawn up from a point of view which is legally and in point of fact untenable, i. e. that incorporation of the State with Germany, which has existed since 1871, should be abolished forthwith. The settlement must be carried out in accordance with the principles which have always formed the governing factor in modern peace treaties dealing with the cession of territory, and which have also been taken into consideration in the present treaty in connection with other cases of cession of territory. Similarly a uniform set of conditions should be drawn up for all persons affected by the cession of territory, in view of the change of nationality which follows as the result of such cession of territory. Furthermore, liberal conditions should be made regarding the right of option and emigration. Finally, full provision should be made for safeguarding in an adequate way the rights of the officials engaged in the administration of the country at the time of its occupation. After the cession of the country the German officials can only be utilised subject to their own consent.
Attention has already been called in the Note of the German Delegation, dated May 22nd,41 to the illegal treatment of German private [Page 831]property in Alsace-Lorraine, which has already taken place during the armistice and is now to be sanctioned by the terms of the Peace Treaty, and is also to be rendered possible for the future. Further comment on the illegality of this action will be made in another part of this Memorandum. Special attention should be paid to the great importance which the maintenance of German possessions in Alsace-Lorraine has for German industries.
Provision should be made for renewed participation by German subjects in commerce and industry.
As the Thalweg of the Rhine formed the former boundary between Alsace-Lorraine and Baden, the claims for the incorporation in the French system of the Port of Kehl on the right bank of the Rhine, as well as the regulations for the navigation of the river, seem totally without justification. Further comments regarding this matter are also made in another portion of this memorandum.
As regards the State Railways of Alsace-Lorraine, in conformity with the agreement made in 1871, full payment must be made for what is to be handed over, which must be limited to the lines lying outside German territory. In the same connexion, there can be no question of handing over the eastern half of the bridges over the Rhine, or of the principle of establishing all frontier railway stations on the right bank of the Rhine.
There is a universal national principle, which has been recognised in the Peace Treaty, according to which, when territory changes hands, a State acquiring territory from another State takes over a portion of the national debt of that State, and is to pay for the State possessions in the ceded territory. There can be no justification for the French claim that a departure from this rule should be made in the cession of Alsace-Lorraine. If France now wishes to benefit by the vast increase in the value of the country which has resulted from its economic incorporation with Germany and from the developments caused [expenditures made] by Germany, it is only just that France should take over a corresponding share of the debt which has during this period been incurred in the interests of Alsace-Lorraine. Compensation should be given for the value of German State possessions.
Questions of import and export have been dealt with in the general economic portion of this memorandum.
A further proposal is made to settle by a special agreement all questions arising from the cession of Alsace-Lorraine to France in connexion with the insurance of German workmen and officials [employees], if desirable, on the principle of reciprocity. This agreement would apply especially to the claims of insured persons of one country, which had already arisen and were arising, as opposed to insured persons in the other country, and to the pledges of the insured persons [Page 832]of both countries. In this connexion, a suitable mutual exchange of funds between the insured persons should be carried out. These measures, as has already been remarked, also refer to other German territories, the cession of which is under consideration.
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 German-Austrian frontier. In the event, however, that the people of Austria, whose history and civilisation have, for a thousand years, been most closely linked with Germany, should desire to re-establish the union with Germany, which had only been dissolved in recent times by the act of war, Germany cannot pledge herself to oppose the wishes of her German brothers in Austria. The right of self-determination of the nations cannot be utilised universally and in all cases to the detriment of Germany.
Any other action would be in contradiction to the principles enunciated by President Wilson in his speech to Congress of the 11th February, 1918.
7. eastern questions
Germany has declared her acquiescence in the formation of an independent Polish state “which should include all districts occupied by an indisputably Polish population”.
Through the regulation of territorial questions in the East as provided in Articles 27 and 28, more or less extensive portions of the Prussian provinces of East and West Prussia, Pomerania, Posen and Silesia, which are not inhabited by an indisputably Polish population, are assigned to the Polish state. In defiance of ethnographic considerations numerous German towns and extensive stretches of purely German country are granted to Poland, with the sole purpose of giving Poland favourable military frontiers against Germany, or important railway junctions. Territories severed from Poland in different centuries and territories over which it has never ruled are now assigned to it without distinction. The acceptance of this regulation would thus imply a violation of large districts which are indisputably German. Such a regulation would furthermore run counter to President Wilson’s principle that in the regulation of national questions one should avoid “the establishment of new elements of dispute or enmity or the perpetuation of old ones which would, in time, disturb the peace of Europe and with it that of the World”.[Page 833]
A. Upper Silesia.
This is especially true, in the first instance, of Upper Silesia. The projected cession of the greater part of this district implies an absolutely indefensible breach of the geographical and economic structure of the German state.
Upper Silesia has been since 1163 without any political connection with the Polish state. There are in Upper Silesia no Polish national traditions or reminiscences. The Upper Silesians have no memories of a Polish past or a Polish history. They have never taken part in the Polish wars for liberation. On the contrary, their attitude toward these was that of the outsider and the disinterested non-participant. Poland has no legal claim whatever to the cession of Upper Silesia, and especially none which could be supported on the principles of President Wilson. The parts of Upper Silesia demanded for Poland are not inhabited by an indisputably Polish population. The Reichstag elections of 1903 and 1907 show clearly the tendency of popular national feeling in this respect. Previous to 1903 no Polish delegate was ever elected. In 1907, under the conditions of general, equal, direct and perfectly secret election to the Reichstag the Poles received 115,090 votes, the Germans 176,287; in 1912 the Poles 93,029, the Germans 210,100; in the elections to the National Assembly in 1919, where all citizens of both sexes over 20 years of age had the franchise, and where the poll was general, equal, direct and perfectly secret, the Poles proclaimed abstention from voting. In spite of this almost 60% of the entire electorate voted, i. e. for the various German candidates. It is the general experience in German elections that some 10% of the electorate is prevented by extraneous circumstances from voting, so that the Poles can claim at the very outside one-third of the electorate.
Even after the collapse of Germany’s power, evidences of the predominantly German character of Upper Silesia have not been lacking. On the basis of the new decree the parents of 250,000 school children were free to decide whether their children should be instructed in the German, the Polish or the Moravian language. The parents of somewhat less than 22% of the school children declared for instruction in a language other than German.
The Polish language (High-Polish) is not that of the Upper Silesian who speaks the Polish dialect known as “Wasserpolnisch.” This dialect, which a considerable proportion of the Upper Silesians speak alongside of [in addition to] German, is a mixture of German and Polish elements, which has never been a written language or the language of official documents. It provides no characteristic of a distinct nationality, and implies, especially, no contradiction to a consciousness of German nationality.[Page 834]
The proportion of the Moravian (Czecho-Slovak) population amounted at the last census to 39.7% in the “Circle” (Kreis) of Ratibor, and only 7.6% in the “Circle” (Kreis) of Leobschütz. There can therefore be no claim of a preponderating Czecho-Slovak population in these two circles.
Upper Silesia has to thank German effort for its entire development, both intellectual and material. The representatives and leaders in Art and Science, the leaders of economic life in commerce and trades, in agriculture and industry, are without exception Germans; besides this, too, the leaders in the labour movement and in the trades-unions (Gewerkschaften).
Germany cannot spare Upper Silesia. Poland does not need it.
The most important product of Upper Silesia is coal. The coal production of Upper Silesia amounted last year to 43½ million tons, i. e. about 23% of the total German hard coal production (190 million tons). The cession of Upper Silesia to Poland would not only mean industrial decay for Upper Silesia but very severe economic disadvantages for Germany as a whole. The Upper Silesian hard coal has so far supplied the entire industry of Eastern Germany, in so far as it was not supplied through the ports from England or Rhineland-Westphalia; besides this, parts of Southern Germany and Bohemia; and not only the industry but also principally the gas-works and households. In toto 25 million people have drawn their coal supply from Upper Silesia. If Upper Silesia goes to Poland this provision [supply] is endangered in the most serious way.
The Polish demand for hard coal amounted in the last peace-year to some 10½ million tons, whereas the production of the Polish mines in the district adjacent to Upper Silesia was 6,800,000 tons. Of the remainder, 1½ million tons were imported from Upper Silesia, the rest from the mines of what is now Czecho-Slovakia. Poland’s coal-demand, apart from certain special varieties, could without any difficulty be supplied from its own coal-fields, especially if it exploited properly its mines which are in part not yet rationally developed. Besides this, Poland is getting in Galicia a rich addition of mineral wealth, especially in the recently located coal deposits in Western Galicia.
The cession of Upper Silesia to Poland is not in the interests of the Upper Silesian population. The conditions of life, especially in the matter of sanitary regulations and social amelioration, are incomparably better in Upper Silesia than in the adjacent Poland, where legislation for the benefit of the working classes has but scarcely begun.
The cession of Upper Silesia to Poland is furthermore not in the interests of the other states of Europe and of the World, for it creates beyond a doubt new elements of dispute and enmity. The abstraction [Page 835]of Upper Silesia would remain for Germany an ever-open wound, and the recovery of the lost land would be, from the first hour onward, the glowing desire of every German. That would endanger seriously the peace of Europe and of the World. It is in the self-interest of the Allied and Associated Powers to leave Upper Silesia with Germany, for at the most only with Upper Silesia can Germany fulfil the obligations arising from the war, but without it never. On this basis alone, if on no other, Germany could not acquiesce in the cession of Upper Silesia.
The province of Posen, too, cannot be regarded in its entirety as a district inhabited by an indisputably Polish population. Large parts of the province of Posen have been inhabited for several hundred years by a predominantly German population. Beside these districts there are enclaves of the same nature. In so far, however, as the province of Posen bears an indisputably Polish character, Germany will fulfil for its part the obligation arising from President Wilson’s principles and acquiesce in the cession of such districts. The proposals of the Allied and Associated Powers as to the boundary are, however, as can be demonstrated at any time, dictated not by considerations of nationality, but by those of a strategic preparation for attack on German territory. Such considerations should, however, play no part, if the future relations of Germany and Poland are to fall under the rules of the League of Nations.
C. West Prussia.
Almost the entire province of West Prussia with the exception of a few districts (Kreise) in the East and West is to be annexed to Poland. Even a portion of Pomerania is to be torn away from Germany without the slightest ethnographical justification. West Prussia is an old German territory; the Order of the Teutonic Knights has stamped it for all time with German character; 300 years of Polish rule have, it is true, strengthened the Polish element, but otherwise have passed over it almost without leaving a trace. Even leaving out of consideration the districts in the East and West which, according to the Peace draft, remain German, the German population in the parts of West Prussia assigned directly or indirectly to Poland is more than equivalent to the Poles plus the Cassutrans [Kashubians] who are in no way identical with the former (about 744,000 Germans against 580,000 Poles and Cassutrans); as regards commercial, social and cultural significance—factors on which the Poles themselves lay stress, on their Eastern boundaries, as regards the Ukrainians and Lithuanians—the German population is far superior to the Polish and Cassutrans.[Page 836]
The cession of the greater part of West Prussia would completely separate East Prussia from the German Empire. This would be as little in harmony with the Wilsonian programme as with the vital necessities of the essentially German population of East Prussia and of the rest of the German people. With the exception of a connecting link with East Prussia, which must unconditionally be maintained for Germany, Germany is ready to cede to Poland the West Prussian territories insofar as they have unquestionably been colonised by Poles.
In particular, the surrender demanded in Articles 100–108 of the purely German Hanseatic city of Danzig and its equally purely German environs stands in the sharpest opposition to all the assurances given in the statements of President Wilson. Danzig, according to the Census of December 1, 1910, showed a dwindling Polish-speaking minority of 3.5%; the District of Danzig-Niederung 1%, the District of Marienburg 3%; while the District of Danzig-Höhe had but 11%. Even the Poles do not seriously contest the fact that Danzig has always had a German character. The attempt to make Danzig into a free city, to hand over its means of intercourse and the representation of its rights abroad to the Polish State would lead to violent resistance and to an enduring state of war in the East. Furthermore, the economic measures are so arranged that Danzig’s intercourse with Germany is made difficult in the extreme—apparently with the purpose of Polonising in the course of time, through economic pressure, this purely German Territory. The German Government must accordingly reject the proposed rape of Danzig and must insist that Danzig and its environs be left to the German Empire.
In accepting Point 13 of the Speech of President Wilson of January 8th, 1918, Germany declared that she agreed that “a free and secure access to the sea” should be assured to the Polish State which was to be created. The German Government did this in the knowledge of President Wilson’s Address to the Senate of January 22, 1917, in which it was stated: “So far as practicable, moreover, every great people now struggling toward a full development of its resources and of its powers should be assured a direct outlet to the great highways of the sea. Where this cannot be done by the cession of territory, it can no doubt be done by the neutralisation of direct rights of way under the general guarantee which will assure the peace itself. With a right comity of arrangement no nation need be shut away from free access to the open paths of the world’s commerce.”
In fulfillment of the pledge undertaken by it, the German Government, in accordance with these principles, is ready to grant Poland a free and secure outlet to the sea; to constitute the harbors of Memel, [Page 837]Königsberg and Danzig free ports, and to grant the Poles far-reaching rights in these harbors. Through an appropriate agreement every facility could be assured the Polish State by contract for the erection and use of the requisite installations (docks, landing-places, storehouses, quays, etc.). The German Government is also ready, through a special agreement with the Polish State relative to the use of the railroads between Poland and other sections of the former Russian Empire on the one hand, and the harbors of Memel, Königsberg and Danzig on the other, to give every requisite assurance against differentiation in the manner of their employment and in the tariffs.
The assumption would nevertheless be that on the Polish railways as well as on those under Polish influence reciprocity and equal advantages for transit through Poland, Lithuania and Lettland would be granted to Germany in these respects. The tariffs which may come into force through the cooperation of the Poles would have to be of an exceptional nature, to the extent that they cannot be made applicable by the Allied and Associated Governments to the German Railway System as a whole.
Moreover, the German Government would be ready to place at the disposal of the Poles the navigable waterways leading from Poland, Lithuania and Lettland through East and West Prussia to the Baltic, for their free use and for through traffic. Reciprocal service in this matter is presupposed on the part of the Poles.
As regards the Vistula, reference is made to the provisions covering inland shipping.
E. East Prussia.
East Prussia, with a German population of about 1½ millions, is to be separated bodily from the German Empire and, economically speaking, is to be delivered completely into the hands of the Poles. It is bound to become impoverished and accrue eventually to Poland. Germany can never allow this.
In Southern East Prussia the presence of a population whose mother tongue is not German is given as a reason for demanding a plebiscite in this region (Articles 94 and 95). This region is nevertheless not inhabited by an incontestably Polish population. The fact that in isolated localities a language other than German is used cannot be taken into consideration, for similar cases are to be observed in the oldest State units: the Bretons, the Welsh and the Basques may be mentioned. The present boundaries of East Prussia have been established for about 500 years; the portions of the province in question have for the far greater part never belonged either to Poland or to Lithuania. As the result of centuries of historical development, of different kinds of civilization, and of another religious confession, [Page 838]their inhabitants are alien to the populations beyond the German frontier. This population has, aside from a group of foreign agitators, never expressed a demand for separation from Germany, and therefore no reason exists for changing the governmental and economic circumstances of this territory.
The same applies in West Prussia to the districts of Stuhm, Marienburg, Marienwerder and Rosenberg. The district of Marienburg has 98% of Germans; Marienwerder, to the right of the Vistula, is likewise practically pure German; Rosenberg has 93.7% Germans. There are districts in Poland in which the percentage of the German population is higher than, for example, the percentage of the Polish population in the district of Rosenberg. The presence of such small minorities is, according to the programme of President Wilson, no reason for doubting the national character of a territory; otherwise this programme would lead to the disintegration of every State organization.
In Article 99 the separation of a strip of territory in the north of the Province of East Prussia embracing the districts of Memel, Heyde-krug and also parts of the districts of Tilsit and Ragnit is demanded. The inhabitants of this territory, including those who speak Lithuanian as a mother tongue, have never desired separation from Germany, they have always considered themselves as a true component part of the German people. As far as the language conditions in those territories are concerned, according to the census of 1910 the district of Heydekrug, with 53% Lithuanian-speaking inhabitants, alone shows a slight majority of non-German speaking persons. In the district of Memel only 44%, in the district of Tilsit only 23%, and in the district of Ragnit only 12% speak Lithuanian as a mother tongue. According to the numbers of the inhabitants the whole district is overwhelmingly German; as against some 68,000 Germans there are only some 54,000 Lithuanian-speaking inhabitants. In particular Memel is a purely German city; it was founded in the year 1252 by Germans, and in its whole history has never belonged to Poland or Lithuania; as in the south, the East Prussian boundary has remained unchanged here since 1422. In this connection it must be observed that even the inhabitants of this territory who speak Lithuanian as a mother tongue are almost entirely thorough masters of German, and even use the latter language regularly among one another. No movement to join the Lithuanian population of the former Russian empire, except on the part of a small and inconsiderable group, has occurred, all the less because the Lithuanian population inhabiting the former Russian empire is Catholic, whereas that of the German territory is Protestant.[Page 839]
The cession of this district must therefore be rejected by the German government.
7 [G?]. German Guarantees in the Territory to be Ceded to the East.
If the Treaty of Peace results in the cession of German territory to Poland, the German Empire is bound to afford protection to its former nationals using the German language. This burden is the more oppressive in that the Poles have not yet proved themselves reliable protectors of the rights of national and religious minorities. It is proper for us to advance this plea, since the members of the present German Government have always fought against the Polish policy of the old regime. In eastern Galicia the dominating Polish classes have always oppressed the Ruthenians. In parts of Polish territory administered by Poles but belonging to Germany, the German inhabitants are treated with severity, even partly [sometimes] with cruelty.
What dangers threaten the national minorities in Poland are shown most clearly by the massacres which have been perpetrated among the Hebrew population since the 11th of November in Poland. Reference is made to the just published letter of a member of the American Food Administration in regard to the wholesale murders in Pinsk, which the local authorities approved and which met with no punishment by the Government.
If the new Poland should be founded according to the provisions of the draft treaty without at the same time determining necessary guarantees for minorities, the boundaries of the pogrom zone would be moved far to the west.
In any case the development which Poland will take and the peculiar conditions which will shape themselves in Poland cannot yet be estimated, and it appears self-evident that Germany must look with especial concern on the destination of its native children in the direction of an especially uncertain future.
The German Government cannot agree in all points with the arrangements for opting which are proposed by Article 91. The German Government reserves its objections and intended modifications.
As a matter of principle, the German Delegation enters a protest against the provisions of Article 90, Paragraph 2, according to which German nationals who have transferred their place of residence to the ceded territory after January 1, 1908, may only acquire Polish nationality by special authorisation of the Polish State. No reason appears why the Germans who have transferred their residence into the territory in dispute after the first of January, 1908, should be treated differently from those who emigrated at an earlier date. Under any circumstances a reason of this kind cannot be derived from the law of expropriation which has only been applied in one case.[Page 840]
The rights and interests of the settlers of every class who have been sent in in accordance with the Prussian colonisation plan, are in need of effective guarantees. The same is the case in regard to the rights of the State officials who have developed activity in the territory to be ceded, in regard to congregations and parishes, in regard to churches and other religious communities, in regard to public officials occupied with the administration of law, and also in regard to teachers.
The damages which have been caused by the Polish uprising of the last months and the struggle against this should be determined by commissions constituted on an equitable basis. The obligation of compensation for damages should be imposed on the state to which the territory in which the uprising occurred has been definitively awarded.
No one must suffer punishment by a court of law or be exposed to other injury on account of participation in the Polish uprising of the last few months or on account of resistance to that uprising.
Although the German Government has declared its willingness to use the circuitous route of peace negotiations for the determination of a new boundary corresponding to the principle of nationalities, it feels obliged to point out that the Schleswig question is not specifically mentioned in the points of President Wilson. If then Germany has declared its agreement with a plebiscite in Schleswig, this is done for the reason that the German Government recognizes the right of self-determination of nationalities.
The German Government is nevertheless not in a position to accept the arrangements proposed by the draft treaty for determination of the districts for the plebiscite nor the modalities and periods of time stated.
The German Government makes the following counter-proposals:
- The limitation of the territory to be covered by the plebiscite to the south is to coincide with the line which represents the boundary line of linguistic majority, so that the communes will vote in which in a territorially intact area more than fifty percent Danes are included. This arrangement will result in a line south of Röm, north of Hoyer, south of Mögeltondern, north of Tondern, southwest of Bohrkarr, south of Ladelund, north of Karlun, south of Branstedt, south of Weesby, north of Medelby, south of Jardelund, north of Wallebüll, north of Ellund, south of Fröslee, west of Harrislee, Pattburg, Niehuus, north of Krusau, south of Hönschnap, reaching up the Fyord of Flensburg at Süderhaff and following the Fyord to the North [Baltic] Sea.
- In this whole district the vote should be taken by communes.
- This plebiscite is to take place for the whole territory on a day which will be the subject of later definite agreement.
- The German municipal and administrative boards shall continue to function during the plebiscite as before, but are to be made subject to a non-partisan commission composed of an equal number of Germans and Danes with a Swede as presiding officer. This commission is to have unlimited powers of supervision.
An opportunity to express an opinion on the questions which are connected with the cession and which are partially discussed in Articles 110 to 113 of the draft is reserved.
Destruction of fortifications is conceded. On the other hand, the measures which are necessary for protection of the coast and of the fishing port must continue in force in the interests of the inhabitants of the Island as well as of peaceful navigation and the fishing industry.
Article 119 of the draft requires Germany’s renunciation of all her rights and claims to her over-seas possessions. This provision is in irreconcilable contradiction to point 5 of the speech in Congress of January 8, 1918, in which President Wilson takes position for an open, frank and absolutely unpartisan solution of all colonial claims. The basis of any impartial solution is that before a decision is reached the parties be heard and their claims examined. Article 119 begins by a rejection of the German claims without permitting Germany any chance of supporting them.
Germany’s claims to her colonies are based primarily on the fact that she has acquired them justifiably and developed them by hard, successful and sacrificing toil. Her ownership has been recognised by all powers. Where conflicts with other powers over individual areas have arisen, they have been overcome by an understanding or by court of arbitration.
The possession of the colonies is for Germany more necessary in the future than in the past, as in view of the unfavorable rate of exchange Germany must have the possibility of obtaining the raw materials necessary for her economic life as far as possible from her own colonies. As a result of her decreased productivity in consequence of the outcome of the war Germany needs the profit of the production that she can derive from her own territory.
In addition Germany needs her colonies as an outlet for exports for her industry in order to be able more easily to pay for raw materials with her own manufactured articles, and also as a field of activity for her commerce. She hopes from this source to receive aid in order to meet the obligations laid down by the peace treaty.[Page 842]
Finally Germany needs her colonies as settlements for at least a part of her surplus population, all the more as through the result of the war the necessity for emigration is increased and the possibility of emigration is decreased.
As one of the great civilised races (Kulturvolk) the German people has the right and duty to co-operate in the scientific exploration of the world and in the education of undeveloped races, this being a common task of civilised humanity. Along these lines Germany has done remarkable service in its colonies. This assertion and the claim which follows from it is not diminished by the fact that in the administration of the German colonies mistakes and errors have been made, such as the colonial history of all peoples has exhibited. Germany has a moral claim to be allowed to continue its successful work.
The retention by Germany of her colonies is, however, equally based on the interests of the colored populations of these territories. The German administration has put an end to the prevailing and incessant wars of pillage of the aborigines, the tyranny of leaders and fanatics, the seizure of slaves and the slave trade, and all the attendant insecurity of life and property. German administration has brought peace and order into the land and created conditions for secure intercourse and trade. An impartial justice, and one that considered the habits and customs of the aborigines, offered protection from oppression or spoliation on the part of the white inhabitants, the construction throughout the land of roads and railways for world intercourse and commerce, and the improving of the local civilisation (Kultur) and the introduction of new culture, has raised the economic life of the natives to a higher plane. The German administration was also engaged in protecting the native population by far-reaching social measures, especially by laws regulating labor and the supervision of the conclusion of agreements between the whites and the natives. The scientific investigation and the campaign of fighting plagues of men and of animals (malaria, smallpox, sleeping sickness, cattle diseases, etc.), in which German specialists, such as Robert Koch, took active part, have had rich results for the life and health of the natives.
The well organised school system, which included schools of industry and of agriculture, served to advance the moral and economic education of the natives. The German colonies belong to the most quickly and most successfully developing fields of activity of the Christian missions of both confessions.
From all these points it results that Germany has protected the interests of its natives. It has especially from the very beginning strictly refrained from any militarisation of her native peoples, and would therefore unreservedly agree to an international prohibition of [Page 843]militarisation. Germany has already heretofore actively participated in all international regulations dealing with important colonial questions, such as abolition of the slave trade, suppression of the traffic in arms and of the abuse of alcohol, and the fight against sleeping-sickness. Furthermore, insofar as no international obligation stood in the way, Germany, unlike some other important colonial powers, has in her colonies always given effect to the principle of the open door coupled with complete equality of treatment to all persons of alien nationality.
Numerous testimonials by influential foreign writers on colonial subjects prior to the war, as well as the loyalty during the war of the natives within the German spheres of control, especially in East Africa, bear witness to the justice and to the great success of German Colonial work.
For the above reasons the demand made by the enemy, in Articles 119 to 125, that Germany shall renounce her Colonies is held to be unjust.
Without waiving or weakening in any way the opposition to the renunciation of our Colonies, the following remarks, which we reserve the right to expand, are offered as to the conditions under which the cession is required to be made:
The demand that all State property, both real and movable, in the Colonies shall pass to the Mandatory Powers without compensation of any kind is unacceptable and is an unjustified exception to the fundamental principle that the value of the State property within the territories ceded by Germany shall be credited to Germany. With respect to the question of debts, the Draft Treaty does not permit either the ceded Colonies or the Mandatory Powers to assume a share of the debts of the Empire and of the Federated States. In lieu of this it should be required that the State taking over a Colony shall make good to Germany all her expenditures, and that the territories to be ceded should themselves be burdened with all liabilities which they have incurred.
German private property is given up to the arbitrary control of the Mandatory States. These may liquidate all property of Germans and all Companies controlled by Germans, they may maintain in force the war measures that have been suspended and enact new measures of the same kind. The Mandatory States may furthermore at their pleasure drive the Germans from house and home even though the latter may have been for years settled or even born there, and may close the country permanently to German activities. This regulation, in defiance of all principles of international and public law, deprives Germans of all rights in respect to private law and personal freedom of movement.[Page 844]
The demand that Germany shall make good to French subjects damages incurred before the war is contrary to the Armistice terms and is also inacceptable on other grounds.
In the highest degree objectionable is also the intention which, with respect to the future settlement of all matters dealt with in the Conventions of Berlin42 and of Brussels,43 would blindly and for all time subject Germany to the will of her foes.
The German Government therefore makes the following points in reference to the German spheres of control:
1) As to the method of treating Colonial questions the following proposal is made:
In the fifth of the 14 Points of President Wilson’s address to Congress of 8 January 1918, an absolutely impartial settlement of all Colonial claims is assured. An impartial settlement presupposes that both sides shall be heard before the decision. Such a hearing has not taken place. In pursuance of that assurance, and particularly of the principle that the settlement of Colonial claims should be made with equal regard for the interests of the Governments and for those of the inhabitants, it is hereby proposed that Colonial questions be referred to a Special Commission.
2) The following proposal relates to the substance of the Settlement. The demand set forth in Articles 119 and following of the Draft Treaty for the renunciation by Germany of her overseas possessions cannot, according to the convictions of the German Peace Delegation, be reconciled with the terms of the Armistice based on the 5th Point of the address to Congress of 8 January 1918. On the contrary the German Government regards the claim of Germany for the return of her Colonial possessions as being thereby justified. When, however, a League of Nations shall come into being, in which Germany is immediately admitted as a member with equal rights, Germany is prepared to carry on the administration of her Colonies according to the principles of the League, and if need be, as its Mandatory.
Germany is prepared to renounce all her rights and privileges in respect to Kiaochow and Shantung.
But Germany must assume that the indemnification for State and private property, which is incurred according to Article 156, paragraph 2, and Article 157 will follow according to the general principles established with regard to such indemnification.[Page 845]
12. russia and the russian states
The German Government claims no territory which belonged to the former Russian Empire on August 1, 1914. The German Government regards the question of the constitutional structure, especially the independence of certain Russian territories, as the internal business of the territories themselves in which it does not intend to mix.
The German Government has already renounced the Treaty of Brest-Litovsk,44 as also the additional Treaties, in Article 15 of the Armistice.
The German Government cannot recognise a right on the part of Russia to demand restoration and recompense from Germany.
The German Government can recognise treaties and agreements between the Allied and Associated Powers and the States which have been and shall be erected on the territory of the former Russian Empire, only if the import of these settlements is known to it, and if it has received assurance that the acceptance of these settlements is not rendered impossible either by its earlier relations with Russia or with separate parts of the former Empire of Russia, or by the desire of the said German Government to live in peace and friendship with all neighbors on the East. The same applies to the recognition of the boundaries of these States.
III. German Rights and Interests Outside of Germany.—Commerce and Navigation
According to Article 118 of the preliminary [draft] peace treaty, Germany shall have no rights of any sort outside of her territories in Europe. She shall at once engage herself to agree to all measures provided for by the Allied and Associated Governments in regard to these rights.
This principle, as well as a great number of separate regulations relating to the handling of German rights outside of the German boundaries, is incompatible with the preliminary agreement with regard to the conclusion of peace.
The execution of the propositions of the project and of the separate clauses is, if Germany is to continue to exist, impossible. The fulfillment of the financial obligations in regard to payments to go to the Allied and Associated Governments would furthermore be imperiled.
Germany needs navigation for its importation of foodstuffs and raw materials, [for] its exportation of products, for the improvement of its system of payment [of balances] through freight receipts, and for the support and maintenance of the population depending upon [Page 846]navigation and commerce. In a way not based on international law, the tonnage which was found in enemy ports at the beginning of the war is taken from it. The delivery of all the over-sea fleet, including the ships in the process of building, is asked for, and furthermore, building obligations are imposed on Germany, these making the renewal of a German commercial fleet impossible for some time to come, all the more so as the difficulty of procuring raw materials necessary for purposes of shipbuilding and technical resources (coal, iron, machines, etc.) is essentially increased by the other delivery obligations imposed upon industries.
This demand for German property is accompanied by the refusal to recognise German prize court decisions against enemy and neutral ships and cargoes, as well as German claims for indemnity arising out of the seizure, destruction, or use of German boats. All claims arising out of the seizure of German ships and other property of the merchant companies in China and Siam are, in accordance with the general clauses relating thereto, considered as non-existent. Just as in the case of ships in China and Siam, no indemnity is to be given for those taken in contravention of international law in Italy, Portugal, Brazil, etc. Germany is robbed of all her over-sea constructions and harbor facilities for commerce. All claims arising out of damages inflicted on German property during the war and also especially during the Armistice (for example in Italy), according to Article 298, Annex, are at once invalidated, while on the other hand, paragraph 9, no termination of further injurious regulations is provided for. The strength of the German coast towns is thus intentionally weakened so that the Allied and Associated Powers secure the right to draw to themselves the exchange of emigrants effected through Germany, to use ports and inland waterways practically free of all German control, and finally, with regard to general matters and with respect to German shipping interests, to make any agreements with Germany’s former allies—agreements which must be accepted although unseen by Germany. This aim is strengthened by the desire to secure [for] a purely inland State special territory in the greatest German open port, although this port has always most obligingly remained at the disposal of the economic necessities of the populations now embraced in the Czecho-Slovak State. How it will be possible under these conditions that in years to come a German merchant fleet upon its re-appearance on the highways of international commerce may find conditions which let the principle of full liberty of commerce appear possible, is not to be seen.
The German cables are to be taken under the heading of Reparations. This means an altogether inequitable and therefore inacceptable limitation of the necessary German foreign news service, both as regards [Page 847]commerce and navigation (wireless signals, weather indications, communications to ships concerning routes to be followed, dangers from mines, etc.), and also the direct diplomatic exchange with the country’s own official establishments in foreign ports.
German foreign commerce is to be excluded from every activity. Germany will be deprived of all privileges and gains as well as of all concessions formerly possessed by her in China; German rights and claims in Siam, Liberia, Morocco, and Egypt are set aside, German private property in these countries is liquidated. According to Article 147, Germany is to engage herself to run counter to the right of self-determination on the part of the Egyptian people, in that this Article recognises, without questioning the said people as to its wish in the matter, the protectorate proclaimed by England.
The concessions, privileges and favors obtained in Russia since August 1, 1914 are, according to Article 293, to be null and void. To the Commission on Reparations is given the authority to deprive German citizens of their rights or interests in all public undertakings or in all concessions in Russia, China, Austria, Hungary, Bulgaria, Turkey, [in] the possessions and adjoining territories of these states, or in any domain which formerly belonged to Germany or its allies (Article 266 [260?]). The loss of these rights would injure Germany many times more than what is presumably assumed as their value in gold. The result will be that Germany is, throughout a great part of Europe, deprived, through heavy attacks on its vested rights, of valuable bases for securing raw materials outside of its boundaries and disposing of its products.
The Allied and Associated Powers maintain in effect the sequestrations and liquidations without the possibility of contest. They impose on German debtors the obligation of paying their debts in marks in foreign currency at the rate of exchange before the war, i. e., in an amount many times exceeding the former debt. On the other hand, they exclude from German creditors with debts owed them abroad, the possibility of claiming in foreign currency the amounts due them and thus using them immediately for reconstruction, since there is provision for the creation of an inequitable “clearing-house” arrangement, which is demanded for the gathering of all claims of the Germans and the adjustment of these claims against the war indemnity.
The Allied and Associated Powers reserve to themselves the right of retaining and liquidating all “property, rights and interests” of German citizens, as far as they exist in hostile countries and in the territories to be alienated from Germany (Alsace-Lorraine), or in the domains of its former allies (Bulgaria, Turkey), without the German owners’ being able to get any other rights therefrom than requisition on the German State for indemnification. Every possibility of the [Page 848]assertion of a legal claim arising from irregular and even illegal measures of liquidation is denied to the German State and the German citizens.
The Allied and Associated Powers reserve to themselves the right of henceforth imposing extraordinary war measures on the property, rights and interests of German citizens in foreign countries—although already the most important assets have been taken in the shape of the foreign outstanding debt, on which as a base German foreign commerce might be able to resume its functions, especially as a purchaser of raw materials. An indemnification by the German Government can in no case replace such losses in materials and in personal relations, since here not the money value but the specific form is of decisive importance. When resident abroad over-seas or even in the German colonies, every German is subjected to an intolerable supervision and uncertainty. Therefore the question whether he may live in the German colonies at all is decided by the Allied and Associated Powers. After such radical injuries this deprives the merchant of his last possibility even here of building up, by arduous labor, a slow reconstruction. In no passage of the agreement is there mention of the German’s being allowed to return to his former activities on the same basis as the citizen of the Allied and Associated Powers. If the merchant, restricted in this way, leaves his own country and tries to build up again German economic life across the seas, even here he is pursued by the Commission on Reparations with its dictatorial requirements. Furthermore, all information transmitted through the real instruments of world trade, the cable and the wireless telegraph, are to be subjected to the censorship of the Allied and Associated Powers.
After a thorough test of the conditions depicted, it is not possible for the German Delegation to see how these designs are to be reconciled with the fundamental principles of an impartial justice which plays no favorites and knows no discriminations. On the contrary, to the citizens of the Allied and Associated Powers are legally ensured, in a one-sided fashion, all the liberties which would actually be granted to them in a free and fair world-competition; but the German merchant is, by the erection of insuperable obstacles, prevented from enjoying them.
The very practice that ought to be ruled out, “selfish economic combination and economic boycott or exclusion”, is, on the contrary, made legal in all forms and to a degree surpassing every historical precedent, when practised against the Germans.
All the measures which have been taken against German rights and interests abroad are unjustifiable from the standpoint of reparation. For they bring great advantages to the foreign merchant competing abroad with the German merchant. They would only be comprehensible [Page 849]upon the assumption that the Allied and Associated Powers intended to suppress German commercial competition. This interpretation is becoming more and more generally accepted by the German people in view of the procedure followed by the Allied and Associated Powers during the Armistice and in view of the Peace negotiations. The German Government hesitates to accede thereto, since the Allied and Associated Governments would thereby admit that they did not carry on the war for the realisation of the lofty aims announced by them, but for the purpose of eliminating an economic rival, and since it would cause the impression that they now had no further scruples against revealing, even before history, their true purpose with regard to an enemy rendered completely powerless through trickery.
The German Delegation must place decisive emphasis upon the fact that this one-sided injury to German foreign trade should cease and that complete reciprocity and freedom of action be assured to it in the framework of the claims set forth by the Allied and Associated Powers for their own commerce.
The demand for the delivery of the whole existing over-sea merchant marine, or that at present under construction, in the general provisions of Annex III, Article 244, is inacceptable. The German Delegation is on the contrary ready to carry out the spirit of Annex III whereby the German Fleet is to fill the gaps which have occurred through the events of the war. This could be accomplished in such a way that Germany would share in the total amount of transportation necessary, that the ships would be placed in a world pool, which will provide for participation in control, uniformly and with the same point of view, by all flags concerned. But beyond this, without in any way recognising the principle of an obligation to replace ton for ton, the readiness exists to take over, in accordance with paragraph 5 of the above annex, building contracts for merchant vessels and even to extend such contracts to a higher tonnage figure and for a longer period of time, in proportion to the capacity of the ship-yards and in accordance with definite arrangements to be made.
The Delegation further suggests that negotiations be undertaken for the purpose of deciding whether or not a mutual participation of Allied and German shipping interests in common navigation enterprises can be brought about.
IV. Compensation [Reparation]
1. legal basis of germany’s obligation to pay indemnity
The general legal basis of the Peace Treaty set forth in the preliminary observations contains, in the opinion of the German Delegation, an already definitely formulated, stipulated agreement with regard [Page 850]to Germany’s obligation to pay indemnity. The contents of this agreement in its characteristic features was set forth in the note of the German Delegation of 24 May, 1919.45 According to this note, the Message of President Wilson of 8 January, 1918, and the note of Secretary of State Lansing of 5 November, 1918, are the criterion for the determination of the extent of Germany’9 obligation to indemnify. The Message of President Wilson demanded the restoration of the occupied territories. The conception “restoration of occupied territories” is then more closely defined as regards Germany in the Note of Secretary of State Lansing, in which Germany is to make compensation for all damage done to the Civil population of the Allies and their property, through aggression on the part of Germany by land, by water and from the air.
It appeared and still appears as a matter of course, under the German interpretation, that the obligation for compensation specified in this exposition cannot apply to other districts than those of which the restoration was demanded in the message of President Wilson. Leading Statesmen of the enemy echoed these sentiments as their war aims. An obligation to restore these—but only these—districts was, therefore, acceptable to Germany, since it had brought upon a foreign country the horrors of war, through an action contrary to international law, namely, through the violation of Belgian Neutrality. It is the attack on Belgium alone for which the German Government took the responsibility at the time of the conclusion of the Armistice. Responsibility extends primarily only to Belgium. It should, however, also be recognised in the same manner for Northern France, since the German Armies reached the districts of Northern France by a way that led across violated Belgian neutrality. On the other hand, an extension of the obligation for compensation to the occupied territories of Italy, Montenegro, Serbia and Roumania, must be opposed, for the reason that there can be no question of an attack by Germany upon these countries contrary to International Law. Italy and Roumania, in spite of their Treaty obligations with Germany at the beginning of the War, have shared in the war against us. No more can any obligation for compensation to the Poles be recognised, since Poland stood in friendly relations with Germany on 5 November, 1918; no restitution to Poland is mentioned in the Message of 8 January, 1918.
The definite Treaty obligation of Germany is, accordingly, to indemnify the Civil population of the Allies in the districts of Belgium and France occupied by German troops, for all damage suffered as a result of the German attack. The obligation is thereby not limited to real [Page 851]property injured; it includes, rather, all damage which that civilian population has suffered to person or property.
The draft of the peace conditions of the Allied and Associated Powers however, goes far beyond what is contained in the solemn announcements and stipulations of the year 1918. Article 231 of the draft demands on the part of Germany the fundamental recognition that she and her allies are responsible, without exception, for all losses and damages which the Allied and Associated Governments, as well as their citizens and subjects, have suffered as a result of the War. Consequently the Allied and Associated Governments demand, according to Article 232, Paragraph 2, that Germany undertake the reparation of all damage suffered by the civil population of the Allied and Associated Powers, and by their property as a result of the attack by land, the water or from the air, and, in addition, the reparation in general of all damage more explicitly outlined in Annex I, Article 232. This provision applies, moreover, even to the most insignificant portion of damage suffered by the civil population in the occupied districts. These are specified:
- Damage to civilians of Allied and Associated Nationality taking place in other districts than those occupied;
- Damage caused to the Allied and Associated States themselves;
- Damage to military persons of these States;
- Damage to their civil and military population caused not by the aggression of Germany but by Germany’s Allies.
The above mentioned demands of the Allied and Associated Governments give rise to the supposition that they now wish, over and above the covenanted agreement, to determine a liability for the reparation for every act perpetrated during the course of the war contrary to International Law. As already explained in the Note of May 24th, Germany has in general recognised the principle of liability for acts in violation of International Law. Naturally, however, the departure from the standpoint of the covenanted agreement must have the consequence that Germany can no longer maintain the renunciation, expressed therein, of the realisation of German demands for reparation, but on her own part would have to present extensive bills for damage done. A practical solution of the great difficulties resulting from such confrontation of acts committed by both sides contrary to International Law would be possible only by means of the installation of an impartial International Court of Arbitration, as already mentioned in the Note of May 24th.
The German Government, however, considers it her duty to confine her counter-propositions to the subject of reparations, as was agreed in the arrangements of the Autumn of 1918. Germany, however, declares herself in these proposals ready to undertake the responsibilities [Page 852]for those loans which the Belgian Government obtained from her Allies for war purposes up to November 11, 1919. This is not to be construed as a renunciation of the principle of law previously expounded, but as a voluntary accommodation.
2. financial requirements
With regard to damages to be made good in detail, the German Government is disposed to accept the principle of the French Reparation proposal of 1916,46 according to which the damage should be determinate, material and immediate (“certains, matériels et directs”). Incidentally, the German Government points out that many sections of the population of the occupied areas, notably in Belgium, have had the opportunity of making considerable profit during the occupation, as is shown by the most unusually large circulation of German Bank Notes in these areas.
In accordance with this point of view the German Government would recognise in principle its liability for reparation for damage comprised under Annex I to Article 232 under paragraphs 1, 2, 3, 8, 9 and 10. In connection with all these points, however, liability for reparation is only admitted in respect of damage caused by Germany to civilians in the occupied districts of France and Belgium.
In regard to paragraph 4, having in view the hardships to which in particular German subjects of foreign States and German Colonials have been subjected, the latter in part actually in contravention of the Congo Acts, the German Government again takes its stand on the principle of reciprocity. As to the demands made in paragraphs 5–7 it cannot recognise that these are based on any legal principle, as it is in this case a question of purely military expenses, not of damage caused to civilians by the attack.
In regard to the expenses of an Army of Occupation, the German Government holds that there is no necessity for purposes of security for any occupation. Owing to the naval and military disarmament to which it agrees, Germany is defenceless in every respect. An Army of Occupation will only diminish the German resources, and lessen the annual payments it can make.
Germany is ready to agree that the total amount of Reparation payable by it up to May 1st, 1921, should definitely be fixed on this basis, payment to be made to France in French francs, to Belgium in Belgian francs.
Since, according to the general principles of law, no one can, at one and the same time, be both party and judge, [but] whereas the [Page 853]States that have suffered damages are themselves represented on the Inter-Allied Commission, the German Government does not consider it admissible that the Reparation Commission (Article 233) should of itself definitively assess the damage. The German Government proposes, on the contrary, that a German Commission should be allowed to co-operate under an arrangement whereby an agreement between the two Commissions should be necessary in regard to the assessment, and that points not settled by agreement between the Commissions should be submitted for definitive settlement to a mixed Court of Arbitration with a neutral Chairman.
A similar method should be adopted in assessing the value of the payments in kind which Germany has already made on account of reparation and will further undertake to make; similarly, in regard to the assessment of the sums payable for the provision of Germany with foodstuffs and raw materials, failing the reaching of an agreement at the time of signing of the Treaty (Articles 235 and 236).
The German Government is keenly desirous of co-operating by means of German labour in the reconstruction of France and Belgium by way of partial liquidation of its liability for reparation. It will make proposals in due time concerning the methods by which this task, which is common to all civilised nations, can be carried out in the quickest possible way, and in conjunction with the Allied and Associated Powers.
The German Government reserves, moreover, the right to bring forward, orally and in writing, detailed proposals in regard to points in the Treaty whose modification is provisionally suggested. The German Government has the intention of expressing at the moment only the general lines which it considers acceptable.
In order to fulfill its obligations in regard to reparation, Germany is determined to do everything that lies in its power. The German Government entertains no doubt that the German people will for generations have to bear heavier burdens than any other in this respect.
Germany declares itself willing to pay a proportion of the total income from taxation and surpluses on State undertakings of both the German Empire and the several German States, in proportion to its capacity to pay, as a regular annuity.
It further recognises the principle expressed in Article 234 and in paragraph 12 (b) of Annex II that the German taxation system should impose in general on the taxpayer at least as great a burden as those prevailing in the most heavily burdened of the States represented on the Reparation Commission. Germany does this, confident in the belief that the development of the taxation system in these States will be determined on the basis of social justice and in conformity with the principle of economic solvency, as in Germany. It is essential for [Page 854]democratic Germany that its national institutions should be inspired with a spirit of social justice. Germany can thus endure its heavy burdens only on condition that it does not find itself split into fragments by the final Treaty of Peace; and that its industrial system and food supply are not destroyed to a greater extent than is implied in the right of self-determination of the inhabitants of Alsace-Lorraine, Slesvig and parts of the province of Posen. Germany further presupposes that the restoration of its over-seas relations, and of its colonies overseas, of its commercial establishments, etc., will not be denied it, and, further, that it will be left with a sufficient commercial fleet, consisting of large ships, and that it will be enabled to impose taxation with the help of international law on property situated outside the boundaries of the Empire.
Germany has taken upon itself the obligations described in the Lansing Note on the basis of its territorial limits of that time. It would have been ridiculous to undertake so heavy a burden regardless of the diminution of its labour resources, raw materials and foodstuffs. It had no intention of doing so. If to such an extent as may arise from the rights of peoples to self-determination a diminution of the Imperial Territory occurs, then the liability for reparation assessed for the 1st May 1921 must be proportionately distributed in view of this principle. What is designated as damage is a consequence of the war for which the National Assembly granted credits. All representatives of all the districts whose cession is required by our Enemies in the Draft Treaty, took part in the granting of these credits, therefore these districts must be held liable for their proportionate share in the debts which result from the War. The Allied Powers should collect these proportionate shares and deduct them from the account for reparation. No other procedure would be just. Reparation can only be forthcoming from the industry and activity of the whole population. Isolated sections of the population cannot be freed from this obligation by being subjected to another Government.
As regards the determination of the annuity, the German Government cannot admit that it should be effected solely by the Assembly of Creditors, namely, the Reparation Commission. It is prepared to submit to this Commission immediately all the material necessary for the determination of Germany’s capacity to pay, in order that the assessment of the percentage of State revenue which is to form the annuity may be made in agreement with a Commission of German experts. Points of disagreement should be settled by a mixed Commission under a neutral Chairman.
In this way an objective and impartial estimate would be formed of the amount of Germany’s capacity for payment, without ruining its social and industrial life. The sternest creditor cannot demand more [Page 855]from a debtor who is willing to pay, but finds his capacity to do so heavily diminished.
It must be recognised that provision must be made for regular payment of the sums due from time to time, but it is disproportionate to the purpose when a Commission is set up for Germany, equipped with dictatorial powers as outlined in Annex II to Article 233. It is impossible for any State, particularly a democratic State, to renounce its rights of sovereignty to the extent demanded. Most of all is Germany unable to yield to the demand that it should issue decrees and regulations such as the Commission may from time to time require. The whole basis of Government, which, for Germany too, must rest on the principle of self-determination, would be shaken, and indeed annulled. The right of granting taxation is in all democratic States the method by which the popular Assembly exercises its control over the Executive. The absolute power claimed by the Commission would, moreover, compel the Commission to subject every individual household in the Empire and in its component States and in the Communes (Kommunen) to an enquiry. Foreigners would never be in a position to conduct such an enquiry; moreover, this system involves serious danger in regard to payment of the Reparation. It need only be observed that not only the joy of work, but also the willingness to pay taxes would suffer throughout the whole population, since no people can be permanently compelled to place the whole results of its efforts at the service of foreign Powers or to give up its right to a voice in their disposal. The consequence would be that direct taxes in Germany would have to be collected for the most part by force.
According to the German proposals, the Inter-allied Commission would operate in the following spheres:
- In determining the amount of reparation.
- In determining the value of payments in kind.
- In reaching agreements in regard to the amount to be deducted from payments in kind on account of the provision of Germany with foodstuffs and raw materials.
- In the enquiry into the German capacity to pay, which is at once to be undertaken with a view to the determination of the proportion of the state revenue to be earmarked for payments.
As to the technical method of payment of the sums due for reparation to be fixed as above for May 1st, 1921, and as to the method of paying sums due annually in proportion to the frontiers established, Germany makes the following suggestions:
Within 4 weeks after ratification of the treaty Germany is prepared to sign an undertaking to pay 20 Milliards in gold marks, on or before May 1st, 1926, in amounts to be determined by the Allied and Associated Powers. Germany is further prepared to sign the necessary bonds covering the remainder of the total amount determined to be due [Page 856]for reparation, and to pay yearly interest on them as from the 1st May, 1927, free from income tax, with the provision that the total debt to be assessed should in no case exceed an amount of 100 milliards of gold marks, including both the payment to Belgium on account of the amounts advanced to that country by the Allied and Associated Powers, and also the already mentioned 20 milliards of gold marks.
Against the first debt of 20 milliards of gold marks are to be set all payments already made and still to be made by Germany on the basis of the Armistice, such as railway material, agricultural machinery and all kinds of material, military and other; also, the value of all payments to be made by Germany after the conclusion of Peace which are to be brought into the Reparation account, as for example value of railways and state property; the definitive taking over of state debts; the obligations of Powers associated with Germany during the war which are to be ceded to the Allies; a proportion to be agreed upon of the receipts earned by bringing German tonnage into the world pool; all such payments in kind as have to be determined by agreement with reference to Annexes III to VI of Part VIII; further, the value of the labour supply by Germany for the reconstruction of Belgium and France and of material provided for this purpose; finally, the restitution to be made to Belgium in the form of a special loan on account of the sums advanced to Belgium by the Allied and Associated Powers. For the amortisation payments which are to be made annually and bear no interest up to an amount not to exceed a further sum of 80 milliards of marks, the limits provided in respect of German capacity to pay will be applicable. These payments shall be not higher than the percentage to be fixed by the German Imperial and State income. Germany undertakes the obligation to assume a liability for the payment of annual sums by way of reparation to the Allied and Associated Powers, which will approximate to the total net peace Budget of the German Empire as hitherto constituted.
In accordance with the above, the annuity to be paid annually shall be determined in fixed proportion to the German Imperial income derived from direct and indirect taxes, from surplus revenue of state undertakings and from customs, with the proviso that payment of customs duties in gold may be prescribed. These payments shall however during the first ten years not exceed the value at any particular moment of 1 milliard of gold marks; 2 years before the expiration of this period of ten years a new agreement shall be made in regard to the determination of this maximum limit.
[The payment of the annuities may be secured by a guarantee fund. The German Reich could pledge itself to pay an annuity into this fund up to the year 1926 from the income of indirect taxes, monopolies, and duties, and after that to keep the amount permanently at the same level. [Page 857]Only in case Germany should be in arrears with an annuity, could control of this fund by the Allied and Associated Government be admitted, and then only until such annuity had been duly paid. It is impossible to admit measures of an arbitrary nature, such as are threatened in Section 18 of Annex II to Article 233 (page 107).
There is reserved the right to submit additional explanations in writing; at the same time the Delegation propose to discuss details verbally.]47
3. economic obligations
As a basis for the proposed further negotiations the following observations are offered regarding the demands contained in Annexes III to VI of Part VIII.
Annex III (Ships).
The essential part of the demands formulated in this Annex is, in the opinion of the German Delegation, in contradiction with the demand put forward in Article 236. If Germany is to cooperate with the whole of her economic forces in the reconstruction of what the war has destroyed, she can enter into such an engagement with a good conscience only within the limits of her already diminished productive power. It would therefore, in the opinion of the German Delegation, be wrong for the Allied and Associated Governments still further to impair this power of production by demanding not only the surrender of goods and monetary values but also the delivery of such important means of production as her Merchant ships whose loss must lead to a collapse and thereby to the complete paralysis of the German industrial organisation as a whole.
Apart from the above considerations the demand for the delivery of sea-fishing vessels raises the further point of the extraordinary importance which attaches to these vessels at this particular moment as regards the problem of feeding the German people in view of the dearth of meat. Up to this moment only 157 German steam trawlers and 53 luggers have been in service. The remaining trawlers will be required for several further months in sweeping for mines. The Peace conditions demand the delivery of 146 fishing vessels, that is to say, nearly the whole German flotilla at present employed in fishing. The demand is therefore one which it is impossible to meet if only for reasons connected with the feeding of the population.
The demand for the delivery of the whole oversea merchant fleet existing and under construction is unacceptable in the complete form in which it is provided in Annex III. The German Delegation is however prepared to act in the spirit of Annex III, according to which [Page 858]the German fleet is to take its part in filling the gaps due to the events of the war. This might take the form of Germany sharing in the total requirements as to Maritime transport by putting her ships into a general pool in which all flags concerned would have a share of control based on principles of uniformity and equality. Whilst the Delegation once again rejects the reparation principle of “ton for ton”, it declares its readiness to undertake, in accordance with clause 5 of Annex III, obligations to build merchant ships and even to extend such building, according to the capacity of the yards and after a more detailed agreement, to a higher amount of tonnage and longer period of time. A reservation would however have to be made that in the first year the required amount of tonnage will be reduced with due regard to the general situation.
The Delegation would further suggest that negotiations might be opened as to whether a mutual participation of Allied and of German shipping interests can be effected in their respective shipping concerns.
As regards the surrender of inland navigation tonnage for the purpose of reparation, the German Delegation points out that the replacement of such losses only can be contemplated as Germany has to effect within the limits of the obligations which she has recognised. So far as the restoration is not already, in accordance with the first sentence of paragraph 6, covered by the return of vessels whose identity is established, Germany is ready to surrender to the Reparation Commission a part of her river fleet up to the amount of this difference, not exceeding however 10 per cent of the whole fleet as it was on November 11th, 1918. This, however, is to be understood with the proviso:
- That the river craft in Belgium, France and Alsace which have fallen into the hands of the Allied and Associated Powers are taken into account;
- That, on returning ships freely acquired by purchase, their value, which will have to be ascertained, is in the first instance repaid to Germany. Germany is ready to agree that these amounts are placed to the credit of the reparation account. For further purposes of valuation both parties will have to be heard, a decision being made by a neutral court of arbitration in case the parties do not agree;
- That for any ships that may have been destroyed others of equal construction and size are delivered. Should it be found in this respect that the delivery of existing ships is not possible without seriously jeopardising German internal navigation, Germany is ready to replace the number of non-delivered ships by new constructions.
Further concessions on the part of Germany in the matter of delivery of inland navigation tonnage in accordance with 339 and 357 of the Conditions of Peace will be treated in connection with other clauses.[Page 859]
Annex IV (Machinery, etc.).
The German Delegation is ready to accept the principle that Germany shall devote her economic resources directly to the purposes of restoration. They are willing, particularly in this matter, to meet the demands made upon her in every practical way as far as possible. They must however see to it that, in the fulfillment of these obligations as well as in the control thereof by the Allied and Associated Governments, the economic sovereignty of the German Government remains intact. In so far as interference with the economic liberty of the German people may be necessary in order to give effect to the obligations incurred, the German Government will act on its own initiative. From this point of view the German Delegation must decline to concede to the Reparation Commission which is to be set up under Article 233 any rights going beyond the above principles.
The German Delegation notes that, in accordance with Clause 11 of Annex II, the Commission shall be guided in its actions by justice, equity and good faith. The German Delegation shares the view that these principles are the necessary and primary condition of the successful solution of the questions connected with Reparation. But the German Government must for the same reason claim rights for themselves and must refuse to recognise the one-sided powers of decision and control conferred on the Commission. For the purposes of a practical’ solution the German Government consider it necessary on their part to set up a Commission to deal with the question of Reparation by means of economic services. Such Commission will be guided by the same principles as are laid down in Clause 11 of Annex II for the guidance of the Commission to be nominated by the Allied and Associated Governments. They propose to leave it to the two Commissions in joint cooperation to give effect to the obligations to be incurred by Germany in regard to economic services. A special agreement would regulate the procedure to be adopted in such cooperation.
In the event of there being no agreement between the two Commissions as to carrying out the obligations incurred or as to the interpretation of any stipulations of the final treaty of Peace regarding restoration, the decision should rest with a Court of Arbitration with a neutral Chairman in which each of the two parties would be represented by a member: the two members on their part electing the third neutral member. Subject to these conditions the German Delegation is ready to agree to the demands in Annex IV but only, as regards the separate paragraphs themselves, in so far as they are not in contradiction with the reservations and proposals made above as to the rights of the Commission. In view, however, of the extraordinarily far-reaching nature of these provisions it seems necessary that they should be the subject [Page 860]of special and detailed negotiation. In particular it must at once be pointed out that there is serious objection to be raised to these provisions, especially to paragraph 4 of Annex IV. By that paragraph the disorganisation of German economic life owing to the removal of materials, etc., is to be avoided only in so far as the ability of Germany to carry out reparation may thereby be adversely affected. This is impossible. The German people cannot support any conditions which amount to its disorganisation. It does not live only in order to perform acts of reparation, but rather to effect its reconstitution while discharging the burdens laid upon it.
Assent cannot be given to the demand in its general form in clause 4 of Annex IV, by which Germany is to be obliged, on the demand of the Reparation Commission, to surrender for the purposes of reparation up to 30 per cent of machinery, equipment, tools and like articles in actual use unless there is no free stock of such articles respectively available. The German Delegation agrees however in principle to proceed on its part to requisitions, within the limits of the counterproposals already made or to be made in the course of further negotiation, with the proviso that these articles are the private property of concerns either unemployed or not fully employed and that such requisition appears appropriate in all the circumstances. In this connection the question must be considered whether, in the absence of free stocks of machinery, etc., the dismantling or the removal from premises which are in a working condition cannot be avoided by restoring similar machines without any appreciable loss of time.
In this connection the German Delegation declares that they are indeed in principle ready to fulfil the demands of Article 238 as they have already undertaken to do in the Armistice Convention and have since then continued to do. So far as this deals with the restoration of machines, premises, tools and other similar articles which are in’ use, the Delegation must demand that the principle of Paragraph 4 of Annex 4 should be applied, in accordance with which restoration of this kind can also be made in the first, place from free stocks of articles of similar character so far as they are available. This principle must be expanded to the extent that if there are available no free stocks of articles of similar character, the restoration of articles of that nature cannot be required, even in those cases in which by the delivery of a similar machine, equipment, or tool, etc., to be supplied there would’ be no deterioration and no essential delay in the restoration.
The restoration required in Paragraph 6 of Annex 4 of stallions can be provided so far as it is possible to identify them in the determined period of time. On the other hand, the agricultural capacity and the food situation of the country do not permit the further demands to be fulfilled within the determined period. In particular this is impossible [Page 861]with regard to the return of milch cows, since by this there would be produced a further intensification of infant mortality which has already been greatly increased by the hunger blockade. As is well known to the Allied and Associated Governments, the present supply of milk in Germany is already insufficient to provide the necessary quantities for invalids and infants. The delivery of cattle, goats, etc., cannot in the case of Germany be considered until the supply of cattle in Germany has been increased both as regards number and quality by an increased import of fodder.
On the other hand, the German Delegation is ready to agree that in order to fulfil the required restoration of cattle, purchases should be made at the cost of the German Government in neutral countries or also in the countries of the Allied and Associated Governments. In these purchases representatives of the German Government would have to take part. The German Delegation will submit further detailed proposals with regard to those yearly deliveries of horses and cattle for which they undertake the obligation from fixed periods of time to the credit of the Reparation account.
Annex V (Coal).
In the event of the settlement of territorial and economic questions, and that of reparation rendering it possible, Germany is prepared to do all she can to render available for export to France for her own use the quantities of coal which correspond to the difference between the pre-war output of the mines which have been destroyed and their output in the next 10 years. Germany recognises that these quantities may amount, at first, to 20 million tons annually, and in five years to 8 million tons annually, and agrees to this maximum.
Germany and France are equally interested in the rapid reconstruction of the French mines. Germany has at her disposal the services of a large number of firms with exceptional experience in the sinking of shafts under difficult mining conditions, as well as in the construction of pit-head equipment of every kind. It is therefore to the interest of both countries that Germany should be afforded the opportunity of co-operating to a large extent in the rapid reconstruction of the mines. She is also ready to undertake either the whole or part of the reconstruction herself.
It is physically impossible to grant the further options on coal required in paragraphs 2 to 5, nor can they be required of Germany on the ground of reparation. Even in 1913, when Germany reached her highest output of coal with 191.5 million tons, only 33.8 million tons (including the coal equivalent of coke) were exported. Since 1913 the output has, however, greatly decreased. In 1918 it was only 161.5 million tons and in the first quarter of 1919 roughly 29 million tons, corresponding to a yearly output of 116 million tons. Even taking [Page 862]into account the fact that the first quarter’s output in 1919 was adversely affected owing to strikes and unrest, the main causes of the reduction of output remain, i. e., the fact that the number of skilled and experienced miners has been reduced owing to the war, the shortening of shifts from 8½ to 7 hours, the diminished efficiency of labour owing to the hunger blockade, and the present bad condition of mining plant. These causes can only gradually be eliminated, if, by the importation of the necessary raw materials, it becomes possible to remove the difficulties of operation; slowly to improve the victualling of the German people; and, after the construction of the necessary housing accommodation, partly to make up for the shorter shifts by increasing the labour in the mines. Nevertheless the German Delegation think it is necessary to count on a decrease of output, during the next few years, of about 30% on that of 1913, i. e., an output of only about 131 million tons. On the other hand, Germany’s own requirements will not amount to those of 1913. They will, however, amount to 80% of that figure, i. e., about 116 million tons. These figures do not include the output and the requirements of Alsace-Lorraine, but do include the output and the requirements of the Saar district and of Upper Silesia. Without the possession of these districts Germany could export no coal whatsoever, but on the contrary would have to import coal.
The Allied and Associated Governments have recognised, in paragraph 10 of Annex V, that it is necessary to take into consideration Germany’s economic requirements. It need hardly be said how difficult it is to state beforehand Germany’s output and her requirements. The above-mentioned figures are the result of careful expert calculation and indicate that the delivery of the quantities mentioned in paragraphs 2 to 5 is absolutely impossible. It appears from these calculations that there will probably be a balance available for export of 15 million tons. The German Government is, however, prepared, by continuing the present system of rationing, to release a further 5 million tons so long as the deficit in the output of the destroyed mines amounts to 20 million tons.
The German Delegation must, however, attach to the above under-taking the condition that the German smelting works shall receive, in exchange for these supplies of coal and coke, their requirements of minette ore from Lorraine and France. The quantities received during 1913 must in this case be taken as the basis, in so far as the exchange of coke and minette is not affected by special agreements between the respective works.
The German Delegation are also prepared to agree to grant the right of pre-emption, during 10 years, for the domestic requirements of France and Belgium, of the excess of Germany’s total output of [Page 863]coal over her own requirements. If this excess is not sufficient to cover the requirements of these three countries, the German Delegation propose that the use of coal in Germany, France, and Belgium should be rationed on an equal basis. A Commission composed of representatives of Germany, France, and Belgium, would be formed to ensure the carrying out of this measure. In this arrangement the interests of Italy and of Luxemburg would have to be taken into account.
As regards prices and conditions of supply, the German Delegation must request that ordinary competitive prices must be charged and paid. The German Delegation are prepared to agree that the price, including freight, shall not exceed the ordinary export price for English coal of similar quality inclusive of freight; on the other hand, the prices must not be lower than the price charged to the German consumer. If Germany were not paid the full value of her exports in foreign countries, or credited therewith under the financial proposals, she would not be in a position to acquire the imports necessary for the maintenance of her economic life, and would consequently not be able to keep up the increasing payments required by her obligations in respect of reparation.
All the details of the above proposals would require to be settled by Sub-Commissions of experts, to be appointed in a similar way to the Commissions mentioned previously.
The German Delegation consider it to be their duty to point out that, of the above mentioned export of 33.8 million tons in 1913, 13.6 million tons went to countries forming part of the former Austro-Hungarian Monarchy alone, and large quantities to other countries which were favourably placed as regards transport from the German coal districts. It would not, therefore, be to the general interest (taking into account the difficulties of transport now existing in Germany and certain of the Allied and Associated States, and the lack of tonnage) to supply the total surplus output of coal in Germany to France alone. The German Delegation do not give expression to this opinion in order to evade their obligations, or to make difficulties; they think, however, that they share with the Allied and Associated Governments the view that owing to the serious effect of the war on the economic life of Europe, it becomes a duty to make the most careful division of all raw materials and the most economical use of means of transport. They therefore urge the formation of an international Commission to examine the question of the allocation of available coal, and on an agreed working basis, effect an economy of many millions of miles of transport. The German Delegation must also call attention to the fact that it will, for an indefinite period, be impossible to supply by German means of transport 15–20 million tons of coal [Page 864]annually to France. A large proportion of this amount will therefore have to be conveyed by French transport equipment. Even then it seems questionable whether the available routes of communication (railways, canals) would be capable of dealing with the transport of such quantities.
As regards the derivatives of coal required under paragraph 8 of Annex V, Germany is not at present in a position to supply 35,000 tons of benzol annually. Certainly the output in 1913 amounted to 10,600 tons per month, but now, owing to various causes, particularly on account of the bad condition of the plant, it is reduced to 4,000 tons monthly at the most, and there are no stocks. The present production does not even suffice for the urgent home needs of Germany. In the hope of being able to improve the condition of affairs in Germany by importing benzine and by increasing the production, the German Delegation are prepared to promise to France for the next three years, the supply of 30% of our Benzol production in excess of 4,000 tons monthly.
Germany is prepared to supply, in each of the next three years, 50,000 tons of coal tar (from coke ovens or gas works), if the larger part is carried by French tank wagons. In consequence of surrenders to the Allied and Associated Governments, and also of other losses, for instance in Hungary, it is physically impossible for Germany to forward these quantities in her own tank wagons.
Further, Germany is prepared to supply in each of the next three years 30,000 tons of sulphate of ammonia to France.
The German Delegation are also ready to promise to supply, in the place of 50,000 tons of coal tar, equivalent quantities of the products of distillation of tar required of her.
The determination of prices should be effected as indicated above for coal.
Annex VI (Chemical Industry).
No relation can be found between the requirements of Annex VI and the objects of Reparation.
Nevertheless the German Government declares itself ready to concede the options demanded in §1 of Annex VI for the supply of the direct requirements of the Allied and Associated Governments. The demand with reference to the determination of the prices for these quantities can, however, not be conceded, since this demand implies indirectly that the Commission should be conceded the right to contest the costs of production of the Dyestuff and Chemical works. To demand such a revelation of business secrets is not, in the opinion of the German Delegation, reconcilable with the principles of justice, equity and good faith enunciated in §11 of Annex II.
The demand of §2 of Annex VI cannot be conceded. The guarantee [Page 865]of the option in question would in no wise signify an increase of Germany’s financial capacity to meet her obligations, but on the contrary the provisions of §3 of Annex VI would be in conflict with the provisions of §4 of Annex IV regarding the assessment of prices, and would encroach to a serious extent on the proceeds to be credited to Germany in the circumstances on account of reparation. The advantages which would accrue to the holder of the options from the resale of the goods thus delivered would imply a kind of indirect compensation which cannot be conceded, since they would not be brought to account in favour of Germany for the purposes of reparation.
Annex VII (Cables).
These demands stand in no relation to Reparation and will be considered in another place.
In consideration of the short time available for the examination of the extraordinarily complicated and far-reaching proposals, these explanations cannot be considered as an exhaustive statement of the German point of view. The German Delegation believe, however, that in later negotiations (which, if they are to come to a successful issue, must be verbal) carried out on the basis of the proposals made, and in spite of the maintenance of reservations on points of detail, it will be possible to come to an arrangement which shall be agreeable to both parties. In the course of discussions means will certainly become clear, leading to the same end, which the Allied and Associated Governments have not yet, in their proposals, taken into consideration.
In this connection the German Delegation would refer to the proposals handed in with the Note of May 16th with regard to assuring the supplies of coal by the cession of shares in German mines. The German Government is prepared to extend the principle applied here to other industries, i. e., to compensate the owners of industrial enterprises in Northern France and in Belgium which have been destroyed, partly by the cession to them of a certain share in similar or allied enterprises in Germany. The manner in which, in individual cases, this cession of shares is effected and decided must be the subject of further negotiations, as also the manner in which the value of compensation so effected shall be fixed and credited to Germany on the Reparations Account. The German Government points out that this procedure might provide important means of financing the reconstruction of Belgium and Northern France. From this point of view she is prepared, in principle, to effect the cession of shares in enterprises in Germany even in excess of the limits above-mentioned.[Page 866]
V. Politico-Commercial Provisions
The Politico-Commercial provisions to be included in the Peace Treaty are based on the declarations relating to this question contained in the points laid down by President Wilson. The points dealing with economic questions are the following:
A. From the 14 points laid down by President Wilson in his speech delivered in Congress on 8th January, 1918.
- There shall be no private international understandings of any kind.
- Absolute freedom of navigation upon seas, outside territorial waters.
- The removal, so far as possible, of all economic barriers and the establishment of an equality of trade conditions among all the nations consenting to the peace and associating themselves for its maintenance.
B. From the 4 points laid down in the Mount Vernon speech delivered 4th July, 1918.
II. The settlement of every question, whether … of economic arrangement … 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 which may desire a different settlement for the sake of its own exterior influence or mastery.
C. From the speech delivered in New York on 27th September, 1918.
- No special or separate interest of any single nation or group of nations can be made the basis of any part of the settlement.
- There can be no leagues or alliances or special covenants and understandings within the general and common family of the League of Nations.
- There can be no special, selfish economic combinations within the League and no employment of any form of economic boycott or exclusion except as the power of economic penalty by exclusion from the markets of the world, may be seated in the League of Nations itself as a means of discipline and control.
- Economic rivalries and hostilities have been the prolific source in the modern world of the plans and passions that produce war. It would be an insincere, as well as an insecure peace, that did not exclude them in definite and binding terms.
According to the provisions of the preliminary understanding as to the contents of the Treaty of Peace, Germany is therefore entitled to demand that the politico-commercial provisions contained in the [Page 867]Treaty of Peace should be established on the principle of the complete equality of Germany with other nations.
It is, moreover, to the interests of the Allied and Associated Governments that this should be so.
During the exchange of Notes which preceded the conclusion of the Armistice, Germany pledged herself to the most far-reaching compensation. Now it is obviously in the interests of all creditors to maintain the solvency of their debtor, that is to say, to permit him to regain his solvency. The power of Germany has been severely crippled by the 4½ years’ blockade of all raw material and foodstuffs, which has been maintained in contravention of the law of nations. More especially has the productive power and will to labour of her working classes been diminished by prolonged mal-nutrition. The health of the rising generation, which is to provide the future manpower of Germany, has moreover been seriously impaired by the hunger blockade. German export trade has ceased to exist.
Germany can shoulder the burdens she has undertaken, and in future attain to a position on an approximate equality with other nations, only on condition of being granted the same freedom in the field of commercial politics as before the war. On the same grounds, Germany must insist on being immediately received into the League of Nations, and being permitted to participate in the economic rights and obligations set forth in the German draft of the League of Nations, and discussed above.
Further, it is proposed that, in place of the one-sided privileges attributed to the Allied and Associated Governments by the Draft Treaty of Peace, a mutual system of unconditional preference in economic relations (with certain necessary exceptions) extending over a shorter term of years, should be substituted.
As regards the treatment with respect to customs accorded to the territories surrendered by Germany, it is recognised that the close connection of these territories justifies special treatment during a transition period. It is, however, necessary that special negotiations should be concluded on the basis of reciprocity, both with regard to quality and quantity of the various products, and also as to procedure. These negotiations should take due account of the conditions of production and demand in the territories concerned.
Germany proposes to abstain from a Customs Tariff Union, it being scarcely probable that this Union would be endorsed by the Allies. Taking into account the uncertainty of prevailing conditions, it would rather appear necessary that all States should preserve their freedom of action with regard to the establishment of customs, more especially with respect to inland revenue. Further, it is also to the interests of the Allied and Associated Governments that Germany should be [Page 868]allowed the possibility, by means of customs, of fulfilling her obligation as to reparation as soon as possible.
Germany can but endorse the principle expressed by the Allied and Associated Governments in Article 273, to the effect that the nationality certificates and documents of ships shall everywhere be recognised. The German Government is prepared to co-operate to the fullest extent, as it did before the war, in obtaining recognition of the validity of the law of the State whose flag is flown as regards navigation.
Germany is further prepared, in her future intercourse with other States, to continue to frame her regulations in such a manner as to prevent all unfair competition.
It is expedient that these questions, and those relating to industrial, literary and artistic property, might profitably be made the object of discussion at an International Conference to be convened immediately.
With reference to the question of communications, Germany would similarly be willing to co-operate in the establishment of an international traffic régime, which would exclude as far as possible all possibility of preference. She further fully endorses the principle of reciprocal and far-reaching equality of treatment of maritime and inland navigation, and its establishment, either in the Covenant of the League of Nations, or by special Conventions. The proposed development of a system of free ports is also approved by Germany.
As regards railway traffic, Germany is quite willing in principle, on condition of reciprocity, to accord all goods of the Allied and Associated Powers, on the same section of line and conveyed in the same direction, identical treatment with other foreign or with German goods, and in so doing not to discriminate between goods imported or exported by German ships or by ships of the Allied or Associated Powers. With a view to putting these principles into application, Germany proposes that negotiations should be begun at the earliest possible date.
Germany agrees to the revival of the Berne Convention regarding railway traffic.48 As a State enjoying equal rights under the Law of Nations, it will take part in the further development of the inter-nationalisation of railways. Before the commencement of the Versailles negotiations, Germany declared to Switzerland her readiness to revise the Gothard Convention.49
In her opinion, all stipulations should also be removed which hinder railway development from the technical point of view. (Article 370.)[Page 869]
As regards the surrender of railway lines and railway material, the same can only proceed under conditions as at present prevailing. The amount of material to be surrendered must also be calculated on its actual value to-day. No obligation can be recognised regarding surrender of railway material to the Poles, since Germany has taken no material from Congress Poland, although a large quantity of German railway material was surrendered on the retreat of the German Army. Moreover, Poland has unjustly retained railway material situated within the line of demarcation.
Germany cannot undertake to construct new lines as prescribed by the Allied and Associated Powers; neither can she consent, without previous agreement in individual cases, to the establishment of works and installation of railroads by foreign States in Germany. Germany must refuse to allow any interference in her internal railway and commercial arrangements.
VI. Inland Navigation
The stipulations of Chapters 3 and 4 of Section II, Part XII, relating to German rivers are especially important. The German rivers, together with all streams and canals connected therewith, are to be administered by International Commissions, on which Germany never has the majority. The scope of these commissions is not defined, and can therefore be understood as widely as is desired. In practice, Commissions would be in a position to exercise economically unlimited power over the whole German system of rivers and canals. In this way they would at the same time indirectly acquire power over the German railway system. In Article 325 Germany is forbidden to take steps to divert traffic in any way from its “normal” course for the benefit of her own transports. Further—and this is constantly repeated in various places—by signing the Peace Treaty, Germany will in anticipation forfeit the right to enforce her own point of view in any future agreements. According to Articles 353 and 361, Germany is obliged to construct canals within her own territory against her own will, but in accordance with the wishes of foreign States. In these various ways, the decisive and final influence on the inner development of the whole of Germany’s economic life would be transferred to the Allied and Associated Governments. The acceptance of the provisions concerning inland navigation is essentially incompatible with the maintenance of German sovereignty, and is therefore impossible. Moreover, a number of separate provisions, of which no further mention is here made, give cause for grave objections.
On the other hand, the German Government is quite prepared to submit the former contractual regime of German waterways to revision [Page 870]in accordance with new conditions, thereby opening up German waterways to the fullest extent to the traffic of ships and goods of all nations. The German Government adheres, however, to the principle that the riparian States alone must share in the administration of such waterways. The extent to which such States would be represented in the administration, would be in proportion to their economic interests, the extent of their territories bordering the stream, and their contribution towards the upkeep thereof.
With regard to the “Regulations for Navigation on the Elbe”, Germany is entirely willing to consider the requirements of the Czecho-Slovak State, since it is greatly to her interest to maintain friendly relations with that State.
As far as navigation on the Rhine is concerned, Germany is of opinion that no change will be necessary as regards the competency and activities of the Central Commission, which has hitherto been the model of what the international administration of a river should be. She will, however, by no means oppose negotiations regarding the introduction and nature of improvements.
As far as the Danube is concerned, it is also in Germany’s interest to co-operate in the codification and revision of the various agreements relating to that river, in consideration of the conditions arising by reason of the altered relations of riparian States. It is necessary for Germany immediately to resume her place in the Danube Estuary Commission and further that she shall henceforth have a voice in all matters concerning the Danube.
The Oder is, throughout its entire navigable length, an exclusively German river, and its development and adaptation for inland navigation must most decidedly be undertaken by Germany. An Oder Commission is therefore out of the question.
As regards the Vistula, which river will continue to constitute an important factor in the river system of Germany, the German Government is prepared to enter into negotiations with Poland concerning the establishment of regulations for the Vistula. The Government reserves the right of submitting any draft regulations for the Vistula.
With regard to the Niemen, the German Government is also prepared to conclude similar agreements with the riparian States concerned.
The suggestions in Article 65, whereby the ports of Strasburg and Kehl are to be placed under French administration for a long period of years for purposes of uniform exploitation by a particular organisation, cannot be accepted in their present form. The German Delegation considers, however, that some régime practicable for both parties might be arrived at by special negotiations. Half of the Railway and [Page 871]other bridges crossing the Rhine from Alsace-Lorraine must, since the Thalweg is to form the frontier, belong to Germany.
Each riparian State must also own one half of the water-power of the Baden-Alsatian reaches of the Rhine. Germany cannot accept in their present form the stipulations regarding constructional works for obtaining hydraulic power. In view of the extensive nature of the questions concerned, it would appear necessary to hold over the details of the Treaty for a special settlement, as to which the German Delegation is of opinion that it will be quite possible to find a solution satisfactory to both parties.
With respect to the use of German ports by the Czecho-Slovak State, the German Delegation points out that in the past the ports of Hamburg and Stettin were employed to a very great extent for transit trade to and from Austro-Hungary. No restrictions were placed on the trade by the authorities of either port in the past, and it is not their intention, neither would it be to their interest to allow any such restrictions in the future.
Germany is quite willing, by means of a special agreement with the Czecho-Slovak State, to show a most conciliatory spirit in granting equal rights in the free port of Hamburg and the free district of Stettin.
With regard to Articles 339 and 357, Germany is prepared, in addition to the surrender of river tonnage mentioned in the chapter on Reparation, to enter into negotiations with the States concerned as to the manner in which they may be provided immediately with a suitable share of river tonnage. This is on the assumption that the principle according to which the legitimate requirements of both parties must be taken into account will be applied in its widest sense, especially with respect to the Rhine.
As regards the provisions relating to the Kiel Canal, Germany is entirely agreed that the Kiel Canal shall in future continue to be open to the traffic of all nations. Subject to reciprocity, she is prepared to conclude detailed agreements with regard to this matter.
The provision in Article 386, by which the Kiel Canal is practically subjected to an International Commission to be appointed by the League of Nations, would only be acceptable if the same treatment were applied in like manner to all other waterways serving to connect seas.
VII. State Treaties
The draft treaty apparently starts from the principle that, as between Germany and the Allied and Associated Powers, merely those multilateral treaties of an economic or technical character shall be revived as are expressly mentioned in the treaty, whereas all the remaining [Page 872]treaties of this character shall lapse. This principle does not seem to be appropriate; it would not supply the secure and reliable legal basis which is indispensable for the resumption of international relations. Moreover, an apparently complete enumeration of the treaties to be revived gives rise to considerable doubt, especially in regard to the fact that the authoritative agreements are not merely laid down in the respective principal treaties, but also in numerous additional treaties, special arrangements and sub-treaties, as well as often limited by reservations made on behalf of particular States. Thus, the examination of the scope of the draft, insofar as it has been possible to undertake it in the short time available, has shown that the list contained in Article 282 does not enumerate a whole number of multilateral conventions which ought especially to be included among the treaties therein mentioned, and, further, that Nos. 7, 17, 19, 20 and 21 give rise to doubts in regard to their contents and meaning. In these circumstances, the German Delegation is unable to assume responsibility for accepting such stipulations, unless it be given an opportunity for close investigation and discussion. In the opinion of the German Delegation, it would therefore be preferable that, on the conclusion of peace, all multilateral treaties which were binding up to the outbreak of the war should in principle again enter into force and that the question as to which of these treaties require modification or annulment should be left over for examination during the period of time immediately following the conclusion of peace.
According to Articles 283 and 284, Germany is required to acquiesce in advance to future conventions between other Powers as regards matters of international postal, telegraphic and radio-telegraphic communication, without being able to exercise any influence over the contents of the stipulations. The acceptance of a blank undertaking of this character is incompatible with the dignity of an independent people.
An emphatic protest must also be made against the proposals as regards the re-entry into force of bi-lateral treaties to which Germany is a party. In accordance with Article 289, the decision is to rest exclusively with the Allied and Associated Governments as to which of the treaties which were in force between Germany and those Powers before the war should be revived. According to paragraph 4 of this Article, the Allied and Associated Powers who are parties are entitled, when making the notification in regard to the treaties which are again to be applied, to indicate unilaterally those of the provisions therein contained which are to be excepted from application, if these, in view of the notifying Power, are not in harmony with the provisions of the Peace Treaty. Under such an arrangement, any hitherto hostile State could require Germany again to assume the obligations provided [Page 873]for in the former treaties, whereas the hostile State would at the same time be in a position to except the engagements which it had taken on its part at the time of concluding the Treaty, in order thus to secure the advantage of Germany’s countervailing concessions. These treaties, however, insofar as they embody the concessions and counter-concessions of the States parties thereto, are a whole, and it is not admissible that they should be split up in such an arbitrary manner that on the one side only the obligations should remain and on the other, only the rights.
The provisions of Article 289 are therefore unacceptable for Germany. The following suggestion is made to replace them: The treaties which were in force before the outbreak of war between the contracting parties enter again, in principle, into force with the ratification of the Peace Treaty; if they are only terminable at the end of a stated period, that period will be prolonged for a time equal to the duration of the war. It must be open to each contracting party thereupon, within a fixed period of time, to communicate to the other State which is a party to the treaty, the treaties, or their individual clauses, which in its opinion are in contradiction to the changes brought about during the war; such treaty stipulations would then have to be replaced by new treaties the elaboration of which would be entrusted to special Commissions and concluded within a fixed limit of time to be agreed on.
It must, moreover, be remarked that, in accordance with the principles of international law, treaties with States which were not at war with Germany, such as Peru, Bolivia, Ecuador and Uruguay, have not in themselves been affected by the rupture of diplomatic relations.
The abrogation which is required by Articles 290 and 292 of Germany’s treaties with her former allies, as well as of her treaties with Russia and Roumania, cannot be consented to in their collectivity, as is stated in these Articles, because resumption and maintenance of regular relations with those States would thereby be most grievously jeopardised. Germany has already renounced the Treaty of Brest-Litovsk; the Treaty of Bucharest has not yet been ratified. These Treaties, therefore, no longer come into consideration.
Articles 291 and 294 require Germany to grant to the Allied and Associated Governments certain advantages formerly accorded by treaty to her allies or to neutral Powers. The German Delegation is unable to define its attitude towards this demand so long as it is not in a position to examine in detail all the conventions which are thereby involved. In dealing generally with the draft Treaty, the operation of these provisions must not be overlooked. The German Delegation, therefore, suggests that it should enter into special negotiations likewise in regard to these questions.[Page 874]
VIII. Prisoners of War and Graves
The German Peace Delegation, with a reservation as regards negotiations on matters of detail, must place the following points in the forefront of all demands regarding the repatriation of prisoners of war and interned civilians:
Prisoners of war and interned civilians who have been condemned for a crime or misdemeanour committed before or during their captivity, in enemy control, must above all be released in the same manner as was required and secured by the Allied and Associated Powers for their subjects at the time of the Armistice.
As regards the treatment of prisoners of war and interned civilians, up to the time of their repatriation, all such alleviations must be guaranteed them by the Treaty itself which were accorded to the prisoners of war and interned civilians of the Allied and Associated Powers in Germany after the conclusion of the Armistice.
Furthermore, the German Delegation considers as completely justified the request that, as regards the further treatment of prisoners of war and interned civilians, as well as questions relating to the care for graves, reciprocity should likewise be stipulated for in the terms of the Treaty. It will, moreover, be noticed that the arrangements contemplated in Article 216 for the return of prisoners of war and interned civilians who were habitually resident in the occupied territories is in contradiction to the idea of freedom to select a domicile. It seems indispensable that in the Convention to be concluded more room for exercise should be given for the free determination of those who are returning home.
As regards the cost of repatriation of the prisoners of war and interned civilians, the German Peace Delegation considers it indispensable that the German Government should only be liable for the expenses incurred after the prisoners of war and interned civilians have left enemy control.
IX. Penal Provisions
In Article 227 the Allied and Associated Powers bring against the former German Emperor a public accusation of the gravest violation of the moral law between nations and the consecrated power of Treaties. A special tribunal to be appointed by the Principal Powers, “guided by the highest motives of international policy”, is to deliver judgment without being bound by any limit as regards the determination of the penalty. In order to carry out this procedure the Netherlands Government is to be asked to surrender the accused.
Though co-operation on the part of Germany is provided for neither [Page 875]in the formation of the Tribunal nor in the procedure nor in the surrender, the German Government, by signing a Treaty of Peace containing Article 227, would recognise the justice of such a prosecution, the competence of the special tribunal and the admissibility of the surrender. That cannot be.
The proposed prosecution is based on no principle of law—the provisions of international law which apply attach no penal sanction to their commands and prohibitions, nor does the law of any of the participating States threaten with punishment the violation of the moral law between nations or the breaking of penal treaties. There is therefore, according to the law which applies, no criminal court competent to try the charge. The draft had on this account to provide for a special tribunal and to frame as an exceptional measure a penal law with retroactive force in order to provide a principle for the judgment.
The German Government cannot admit that a German should be brought before a foreign special tribunal in virtue of a special law enacted by foreign Powers to apply to him alone and framed not on principles of right but on those of politics, and that he should be punished for an act which, when it was committed, was subject to no penalty. Neither can the German Government express agreement with the suggestion that a demand should be addressed to the Netherlands Government for the surrender to a foreign Power of a German in order that he may be the victim of an unjustifiable procedure.
According to Article 228 Germany is further to surrender to the enemy, to be tried by a military court, the persons accused by that enemy of offences against the laws or usages of war, and that even if German courts have already begun proceedings against them. Germany cannot, in accordance with the law which applies, assume such an obligation, because §9 of her code forbids the surrender of Germans to foreign Governments. The Allied and Associated Powers therefore wish to force on the German Empire a change in a legal maxim which is the common property of most peoples and which, wherever it prevails, enjoys the respect due to a constitutionally guaranteed fundamental law. The refusal of this demand is required as a matter of course by German honour.
In the view of the German Delegation, one of the loftiest tasks of the conclusion of peace is to calm the passions excited by mutual accusations of violation of international law by giving satisfaction to outraged sense of right in cases where wrong has really been committed. This object cannot be attained if, as in the draft, the demand for the expiation of wrong committed is coupled for political purposes with branding and proscription, assigns to the victor the part of judge and [Page 876]thus puts violence in the place of right. If breaches of the law are to be expiated the procedure must itself be legal. According to the international law which applies to the case, the State alone, as the bearer of obligations under international law, is responsible for offences against the laws and usages of war. If satisfaction is to be given by the punishment of guilty individuals the injured State itself should not punish, it can only demand punishment from the State responsible for the guilty parties. Germany has never refused, and now too declares herself ready, to take care that violations of international law are visited with the full rigour of the law and also that all charges, from whatever side they may be brought, are impartially examined. Further, she is ready to submit to an international court composed of neutrals the decision of the preliminary question of international law, whether an act committed in the war is to be regarded as a breach of the laws and customs of war.
- That violations of the laws and customs of war committed by nationals of all the parties signatories of the Treaty may be brought before the international tribunal.
- That Germany has an equal part with the Allied and Associated Powers in the formation of the international tribunal.
- That the competence of the international tribunal is confined to the decisions of questions of international law and that the punishment is left to the national courts.
The Peace Conditions contained in Part XIII of the draft assume that the interests of the workers, their welfare and the protection of their work are not dependent on the resolution of the workers but are to be the concern of Governments.
In view of the fact that Germany is not from the beginning to be a member of the League of Nations or of the Labour Organisation, the German people will be excluded from participating in the rights and duties concerning the welfare and health of workers, although the German legislation for the protection of workers and the German insurance of workers has become an example for the whole world. These institutions are indebted in a great measure to the collaboration of the German Labour Organisations which were created after the English model and then attained such a development that the international constitution of all organisations was modelled after them.
Before the war, the Minister Lloyd George caused an enquiry to be instituted in regard to the working of state insurance amongst German employers and caused the result thereof to be laid before Parliament in a special Report. It is therein explained that “almost every one” of the replies “recognises that the demand for the health and [Page 877]welfare of the workers is in no small measure due [has contributed in no small measure] to Germany’s great success in the world markets.” The progress of the German workers will be annihilated by the conditions of peace, that progress which they have gained during years of struggle and sacrifice in the domain of a system of salaries by means of tariff agreements, in the domain of working hours, social hygiene, housing and social insurance in the face of the strongest opposition. The German workers will, although they did not desire the war and although they waged it for the defence of what they had conquered in the domain of labour legislation, no longer be in a position to develop these conquests. The conditions contained in the draft Treaty of the Allied and Associated Governments will cause for the German workers the greatest distress and exhaust their power to work. The result will be that Germany who owes her exalted position in the world’s markets in no small measure to her labour legislation, will be excluded from the comity of nations.
As however labour conditions of various countries are dependent on one another—as also the preface of Part XIII of the Peace Conditions admits—the deterioration in labour conditions in Germany will also cause the standard of living of workers in other countries to decrease. The final result would be that peace would be concluded at the expense of labour in all countries.
German workers, can however, only agree to a peace which will realise the essential aims of international labour movements. The German Delegation know that the German workers are not prepared, while sacrificing their conquests, to work only to hand over the fruits of their work to foreigners who oppress them. A peace which threatens the existence of German workers can be no peace of right, guaranteeing friendship with other peoples. Such a peace is in contradiction to the message which President Wilson addressed to the Russian Government on the 10th June, 1917,50 and in which it is stated: “The saying that all men are brothers must no longer be a fine but empty phrase; a strong and real meaning must be given to it”.
That is not attained by Part XIII of the Conditions of Peace, as has already been pointed out by the Notes of the 10th and 22nd instant.51 Only by recognising labour organisations and their results as well as by continuing the most progressive labour legislation, particularly in regard to the protection and insurance of labour in all countries which are in that respect backward, can the words of Wilson be fulfilled. It was recognised in all Conferences of States and workers that the most progressive legislation belonged to Germany. To exclude her at the outset from the League of Nations and Labour [Page 878]Organisation is an oppression of the German worker and renders vain the intention to ensure the future well-being and happiness of all workers. The German Delegation must therefore enter a solemn protest against the even temporary exclusion of Germany from Labour Organisation.
The German Delegation point out that according to their information the German Labour Organisations are opposed to the proposed surrender of German districts whereby their German brother workers will be brought under the dominion of countries which, like the future Poland, possess no or insufficient qualification for the welfare of workers. The Allied and Associated Governments have in fact no right by arbitrary and irresponsible force to inflict damage on workers who belong to the German people and to make them subject to their own purpose and interests. The Allied and Associated Governments thereby annihilate the foundations of right which President Wilson set up in his New York speech on the 27th September, 1918.
The German Delegation have conveyed to the Allied and Associated Governments the conditions of the rights of labour which they consider essential and for the attainment of which German labour will shirk no sacrifice. It is not necessary to enter upon a discussion as to what demands these are for they were made known to the Allied and Associated Governments at the time of handing over this Note. They are in harmony with the resolutions of the International Labour Conference at Berne in 1919.
Part XIII of the peace conditions is also in opposition to the demands of democracy. The rights which are therein given to Governments are not to be carried out with the consent of the governed. Workers are there treated as mere private property. Although the Allied and Associated Governments lay down the principle that labour shall not be regarded merely as a commodity or article of commerce, they still deny to the workers the most elementary right of equal treatment. They take from the workers the right to decide themselves how they wish to lead their lives, and to protect the welfare of their belongings [families]. They do not recognise workers as citizens who are entitled to equal rights.
A peace which does not ensure such rights would be a thorn of resentment and bitterness in the sides of the workers. Such a peace would not rest on a firm foundation, but only on a quicksand. Only a peace between equals can have continuity, only a peace of which the first principle is the equity of all workers can prove permanent.
The application of the speech of President Wilson of the 4th July, 1918, about labour leads to the following conclusions: The settlement of all labour questions must be based on the free acceptance of that [Page 879]settlement by the workers concerned, and must not be based on the material interests or advantage of any other class of the nation or people, which may desire a different settlement for the sake of its own exterior interest or mastery.
The general principles in Article 427 of the peace proposals do not do justice to the demands of the workers. The primary essentials are lacking for recognition of equality amongst workers of all countries, namely, the right of settlement, the right of association, and the unrestricted participation of workers in a foreign State in all measures for the protection of labour. It is for instance left to the discretion of each State to decide whether labour legislation is to be applied to foreign workmen. According to Article 427, paragraph 8, only workers lawfully resident in a country are ensured equitable economic treatment. What, however, is understood by “lawful residence” may be settled according to the arbitrary interests of capitalists and nationalists. Such a settlement is contrary to the sentiments of workers, who demand equality of workers of all countries. Its effect on the German workers is that of a malicious and exceptional law, and it is, therefore, a blow to the solidarity of the international working classes.
In agreement with the workers of all countries the German Delegation proposes therefore the assembly of a conference of labour organisations which shall consider the peace proposals of the Allied and Associated Governments and the counter-proposals of the German popular Government, as well as the resolutions of the international labour conference at Berne of February last. The result of these deliberations on the material rights of labour, as well as the national organisation of labour, shall be included in the treaty of peace and shall thereby become part of international law. Any other settlement involves an infringement of the rights of humanity by disregarding present-day demands, which must, if the peace of the world is to remain undisturbed, be approved universally.
These are the principles according to which the German Peace Delegation desires, in the interests of prosperity of labour, to give effect to the vigorous words uttered by President Wilson on February 11, 1918, and which can only materialise with the unfettered consent of the working classes of all countries: “What is now at stake is the peace of the world. What we are striving for is a new international order founded upon large-hearted and universal principles of right and justice—not merely a peace of shreds and patches.”
The Draft Conditions of Peace do not moreover renounce the principle of force in the stipulations for their fulfillment. The occupation [Page 880]for a period of years of portions of German territory is demanded as a guarantee for the fulfillment of the terrible conditions incumbent on the German people.
This occupation openly pursues two principal aims: Article 429, last paragraph, provides an assurance against a German attack, and Article 430, a guarantee against any refusal whatever on the part of Germany to fulfil her obligation to make reparation.
As regards the possibility of a German attack, no one could regard Germany, in the present weak state of her military armaments since the war, as a menace to her neighbours. Penetrated by the belief that her former adversaries likewise desire peace and the reconciliation of peoples, Germany has no hesitation in renouncing the defence of her western frontiers by means of fortresses. On the sea likewise Germany is completely defenceless against the overwhelming fleets of the Allied and Associated Powers, which rule the seas. No one can suppose that the weakened German nation could allow itself to be led into the folly of an aggressive war, which must involve its complete destruction.
Likewise, for the fulfillment of Germany’s economic and financial obligations, occupation as a means creates no guarantee which could not be equally well or even better secured in another way, and it is expressly offered by Germany. On the other hand Germany will be very hard pressed by the form of guarantee which is demanded, as it is impossible for her to discharge her heavy obligations in a short time and thereby, in accordance with Article 431, the liberation of the German Rhineland from foreign occupation will be postponed for a period which cannot be foreseen.
The occupation would render the fulfillment of the obligations undertaken in respect of reparation more difficult, if not impossible. Large sums of money would have to be paid by Germany for the maintenance of the Army of Occupation and thereby withheld from their real purpose, which is reparation. The untrammelled course of economic life within Germany would be disturbed, for Germany forms a single economic region and numerous relations knit together the territories on either side of the Rhine. Where on other occasions in history portions of territory in agrarian States have been occupied, a compulsion might reside in that fact towards the discharge of obligations and undertakings. In the case of an industrial State like Germany and of a geographical situation such as Germany’s, all preconceived ideas of occupation as a means of guarantee fall to the ground. The occupation of portions of German territory would, in its operation, be nothing but a severe and cruel additional punishment for the parts of the population which it affected.
The population of portions of Germany which are in an advanced [Page 881]stage of economic and cultural development would be subjected to restraints of all kinds in its political and economic relations with the German Empire, with which it forms a single whole. Nationals of a people which enjoys the freest democratic form of State would be cramped, through foreign domination, and for a long time, in the use of their personal, economic and national liberties and rights, if not actually deprived of them. The maintenance of the Clauses of the Armistice of November 11, 1918, provided for in Article 212 would withdraw the administration, the economic life and the ways of communication, including the Rhine, from the free disposal of the German authorities and would permit the continuance of the right of requisition, which is only justified in time of war. Article 270 would grant authority for the introduction of a single customs régime for the occupied territory. Therewith would arise the possibility of severing this territory economically from the mother-country and of drawing it gradually but completely in the direction of Belgium and France. It would moreover, seeing that Germany is unable to erect any customs frontiers against her own territory, make customs control on the Western frontier of Germany for the most part impossible.
A Peace with conditions such as to destroy the unity of the German people for many years to come, which even after the conclusion of Peace calls in question the national, political and economic inviolability and indivisibility of a people cannot be a basis for mutual confidence and a reconciliation of peoples.
Germany therefore expects that the territories occupied in virtue of the Armistice Convention should be evacuated at the latest within six months of the signature of the Peace Treaty, and the bridge-heads first of all. Likewise over this period of six months at the most it is necessary to conclude agreements in regard to the occupation, as the present conditions cannot in any circumstances continue further.
The occupation should have a purely military character. The commanders of the troops of occupation ought only to possess rights similar to those of German commanders in time of Peace. The free use of personal and civic rights should be guaranteed to the population. All legislative, administrative and judicial authority should be exercised solely through the competent German instruments, representatives, officials and self-governing bodies. The political, legal, administrative and economic connection between the occupied and unoccupied territories should be re-established and assured. Intercourse as regards persons, news and goods between the occupied and unoccupied German territory ought in no way to be hampered. The troops of occupation ought to be lodged merely in the existing barracks, and the accommodation camps which they have constructed. In case this was insufficient, accommodation ought to be secured in buildings [Page 882]to be placed specially at their disposal by the German Government. Provisions for the troops of occupation ought to be furnished from their own stocks in relays [by supplies sent in]. All orders and regulations issued by the occupation authorities during the Armistice which are contrary to existing rules would be immediately cancelled after the signature of the Treaty of Peace. A Commissioner established by the German Government would have to settle all details in immediate intercourse with the commanders of the Troops of Occupation. Any disputes would have to be settled in accordance with the prescriptions of the League of Nations.
If the Allied and Associated Governments need to obtain at the conclusion of peace assurances for the execution of the Treaty and the fulfillment by Germany of the obligations which she has assumed, other and more effective means are available to them than compulsion and force.
The rest of the world has hitherto only been able to realise incompletely the great transformation which has taken place in the life of the German State. By the will of her people Germany has become a democracy and a Republic: a return to constitutional circumstances in which the will of the German people might be disregarded, is out of the question.
In view of the inter-connexion which exists today between conditions throughout the world no people can, however, stand alone in its development, but each one, if it is to be an efficient and trustworthy member of the family of Nations, needs the support of its neighbours given in full confidence. The new Germany is convinced of her ability to earn that confidence and is therefore entitled to ask for admission to the League of Nations. The inclusion of Germany in the League of Nations itself constitutes the most powerful guarantee of the faithfulness to Treaties of every German Government. Both the intrinsic and extrinsic value of this guarantee would be appreciably greater if the victors were prepared to lend Germany active help in the reconstruction of her economic life.
The proposals of the German Government are inspired by the wish to ensure that durable peace which their own and sorely-stricken land so urgently needs. It lies however in the power of the Allied and Associated Governments to bring mankind the peace which alone carries in itself the guarantee of durability. However little the German Government is in a position to exercise any pressure in the bringing about of such a peace, it would fail in its duty if it did not once more warningly point out the consequences of a peace of force.[Page 883]
The fate of Russia teaches a clear lesson. The capacity of mankind for endurance is great, but an excess of suffering brings a nation to despair, which manifests itself in terrible convulsions of all political and social conditions. The German people which has reached the extreme point of exhaustion seeks in a painful endeavour to avert from its country the complete dissolution of all existing conditions. The outcome of this struggle, which has been carried on to the last ounce of strength, will be determined almost exclusively by the framing of the Peace Treaty. Even granting that the terms of the Treaty are to be exceedingly severe in any case, the German people would nevertheless get accustomed once more to work and order if their circumstances were even in some degree endurable; they would thus ensure for themselves an existence worthy of a human being, and for their present enemies the fulfillment of the obligations undertaken by them. Misery and despair, however, will render such fulfillment doubtful; and, what is more, poverty and the brutalisation which it and the moral degradation of the years of war have brought in their train, are bound to reduce Germany to complete chaos. In the long run the economic impoverishment and moral disintegration of a great nation is bound to infect the entire body of the civilised world with poisonous material.
The working people of Germany has always wished and still wishes for peace and justice. In this respect Germany feels herself to be at one with all mankind. The noblest spirits everywhere are yearning for the peace of right after the terrible war; if this hope is disappointed, then the idea of right is destroyed for generations to come, and a world order based on morality, impossible. A durable peace cannot be founded on the oppression and enslavement of a great nation. Only a return to the immutable principles of morality and culture and especially to loyalty towards Treaties concluded and obligations assumed, can render continued existence possible for mankind. The new peace must be a peace of Right and therefore one of free consent. It must therefore in the first place rest on the agreement solemnly entered into by both sides, which were laid down in the notes exchanged between October 3rd and November 5th, 1918.
Justice and the free consent of all parties to the Treaty will furnish the strongest—nay, in the course of time the only—guarantees of the Treaty that is to be concluded. With the object of founding a new common life based on liberty and labour, the German people turn to those hitherto their adversaries; they demand in the interest of all nations and men a peace to which they can give their consent in accordance with the intimate convictions of their conscience.
(Special Legal Questions)
- Resumption of diplomatic and consular relations
- Treatment of private rights
- Particular provisions regarding maritime law
- Questions relating to criminal law
a. resumption of diplomatic and consular relations
The German Delegation considers it a natural consequence of the conclusion of peace that, with the coming into force of the treaty of peace, official relations between the two parties will be resumed. This conception is also expressed in the introductory words of the draft. In this respect, however, the following should be noted:
- The preamble speaks of the resumption of official relations of the Allied and Associated Powers with Germany as well as with one or another of the German states. The question whether and to what degree the individual German states will, in the future, possess the right to diplomatic representation will be resolved in the new German Constitution which is at present being considered by the National Constituent Assembly. The German Delegation stipulates that the peace treaty must not anticipate this decision.
- In Article 279 the right is claimed by the Allied and Associated Powers at their discretion to appoint consular officials in all localities in Germany without consulting the German Government. This demand is a far-reaching innovation in comparison with the rules previously observed in international relations. It is, at all events, unjustified so long as it is unilaterally applied in favor of the Allied and Associated Powers. The German Government might accept the innovation if it were applied equally to both sides.
b. treatment of private rights
(part x, sections iii–vii)
Sections III to VII of Part X treat of the private rights of nationals on each side. These rights have been prejudiced in the first place by the long-continued war itself, but to an even greater degree by the emergency war measures decreed by the belligerent states. It is the task of the treaty of peace to remove the consequences of these encroachments as far as possible and to restore international relations affecting private rights to a normal legal basis. For the accomplishment [Page 885]of such a task, in view of the difference of the war measures decreed in the separate belligerent states, various methods are possible. Whatever course is chosen, however, the basic idea must be applied from the very beginning and without exception that any adjustment in the field of private rights is to be based on reciprocity. Germany is all the more entitled to demand the granting of reciprocity in this respect, as it was not the German Government which favored and initiated the extension of the war into the realm of private rights.
The adjustment of matters of private rights proposed by the Allied and Associated Powers in Sections III-VII do not in important points do justice to the requirements of reciprocity. Numerous provisions show rather that even in this field, not the idea of right, but the idea of might has been the determining factor.
Section III. Debts
There is not, in principle, any fundamental objection on the part of Germany to the proposal for the establishment of a clearing system. The application of such a procedure was indeed often discussed during the war by interested German circles. The proposals which were made at that time, however, differ from those now formulated in that they aimed at no disadvantage for the other side and treated the position of both contracting parties according to completely equal standards. Even today a clearing system is justified only if it is based on the principle of reciprocity and the equal treatment of both parties.
Moreover, the clearing system must not be allowed to affect the principle that the holders of claims and debts remain private persons. Accordingly, freedom of communication between the parties and their right to decide freely in regard to the enforcement, abatement, modification, and extension of the claims which are affected by the clearing system must be guaranteed as far as this can be reconciled with such a system. The justification of the clearing system rests on the effort to remove the obstacles which would, after the conclusion of peace, stand in the way of the individual creditor in the enforcement of his private claim: it rests, furthermore, on the effort to contribute to the reestablishment, with the greatest practicable speed, of the private rights which were suspended during the war and to give them their former validity. The opposite result would be effected if a procedure were instituted which would impede free communication between creditors and debtors and which, through the interference of official agencies, would destroy relations as they existed before the war. Injury would be done, thereby, not only to the economic life of a single [Page 886]state, but to that of the whole world, and there would be erected between the different nations an economic barrier the introduction of which would be irreconcilable with equitable foundations of peace.
It must be asserted that both of these fundamental concepts, viz, the concept of complete reciprocity and the concept of maintaining the parties’ full power of disposition, have been impaired by the following provisions in the proposals of our opponents:
- by the provision that each of the Allied and Associated Powers, but not Germany, shall have the power to decide whether or not the procedure is to be applied (Article 296e);
- by the provision that the conversion and payment shall always be made in the currency of the enemy power concerned (Article 296d);
- by the provision that Germany must pay in cash a debit balance existing against it; that, on the other hand, a credit balance resulting in favor of Germany may be retained to cover the general claims for reparations (paragraph 11 of the annex to Article 296);
- by the prohibition of direct communication between the interested parties and the prohibition of independent enforcement of claims (Article 296a; paragraphs 3, 5 of the annex).
Only if these provisions are omitted can it be recognized that the clearing system corresponds to the concepts on which the treaty of peace should be based.
II. Individual Provisions
Regarding the individual provisions of the Section, the following observations must also be made:
1. In Article 296, paragraph 1, Nos. 3 and 4, the reservation occurs: “provided that the payment … to the nationals of that Power or to neutrals has not been suspended during the war.” It is not evident what the purpose of this limitation is and, more particularly, to what states it refers.
2. The claims arising out of liquidation, mentioned in Article 296, paragraph 2, will be discussed in the comments on Section IV.
3. Article 296, paragraph 3a. The prohibition of payment here provided for is in itself justifiable. The value of the clearing office and its mediation in the complete settlement of claims between the contracting parties would be endangered if direct payments could be effected without the knowledge and approval of the clearing office. On the other hand, the prohibition of “communication” between the interested parties, as here provided for, must be eliminated. Likewise for such communication to go through the clearing office would be obstructive to a settlement the results of which might satisfy both parties if no pressure were applied to them. Rather, the aim should be to have the contracting parties agree freely between themselves, because only by such method can they restore their business relations.
4. Article 296, paragraph 3b. The guarantee of the state for the [Page 887]debts of its nationals, herein provided for, has often been suggested by interested circles in Germany during the war. However, it has been steadily opposed in other quarters and rejected by the Government, although, in the military situation prevailing at that time, it might have been looked upon as advantageous to Germany. In fact, some weighty considerations argue against the assumption of these debts by the state. In particular, the debtor state thereby grants to the nationals of the creditor state whose claims are endangered an extensive advantage over all other creditors whose claims are not guaranteed, as well as over other persons whose legal claims have been prejudiced by the war, an advantage which lacks any sound basis. Nevertheless, agreement on a guarantee of debts would appear tolerable if, as stated at the beginning, reciprocity were fully provided for. To this end it would be necessary in particular that the operation of the guarantee of debts in favor of the German creditor should not be set aside if one of the enemy powers made use of the privilege of not employing the clearing office procedure. It would be necessary, furthermore, that the guarantee should not be made illusory for German creditors by exercise of the right to keep German credit balances.
The exceptions (provided for under b, sentence 1) to the guarantee of debts are recognized as fundamentally justified. In order, however, to be able fully to survey the range of this provision, clarification is requested of the legal terms mentioned therein: “faillite, déconfiture, état d’insolvabilité déclarée” (“bankruptcy, failure, formal indication of insolvency”). No objection is raised, either, to making an exception for the debtors in the formerly occupied territories, although the German Delegation is conscious that the guarantee of debts thereby loses its value to a considerable degree for Germany.
5. Article 296, paragraph 3a. This provision, by which debts must be paid and credited in the currency of the enemy power concerned, is unacceptable, as it signifies an arbitrary alteration of the conditions of the obligation. The debt must be maintained in its original legal form, no matter whether this results to the advantage or disadvantage of the creditor. The French text of the provision rightly designates the desired stipulation for payment in another currency as a “conversion.” But such a conversion of the debt not provided for by the parties to it constitutes, in any circumstances, a breach of the private law agreements. Apart from this, the suggested regulation would cause the demand for bills of exchange in the currency of the Allied and Associated Powers to increase extraordinarily.
This would necessarily lead to a further depreciation of German currency. A further result would be that, even if the conversion took place at the pre-war rate of exchange, bills in the currency of the [Page 888]foreign country would have to be procured, which could be obtained only at several times the amount of the conversion rate.
Hence it must be asked that the payment of money debts be made in the original currency. There is no injustice in this, for every creditor who accepts a promise of payment in foreign currency takes the risk of having this currency depreciate with respect to that of his own country. In this connection reference may be made to the fact that in the additional articles of August 27, 1918, to the treaty of Brest-Litovsk, in spite of the bad state of ruble exchange, no provision was made to protect the German creditor from loss resulting from the rate of exchange, because this would have been contrary to the principle of maintaining the original obligation.
6. Article 296, paragraph 3d, subparagraph 4. In the case of payment to creditors in the newly-created states, the fixing of the rate of exchange by the Reparation Commission does not appear to be justified. If the debt was incurred in the currency of the former state, from whose territory the new state arose, the regulations of the new state as regards the ratio of its currency to the original currency ought surely to serve as a basis; it should be taken for granted that the German parties concerned should not be treated worse than other parties concerned, whether they are citizens of this state or foreigners. Every newly-created state will have to determine a rate for settling debts between its own nationals as soon as it creates a new currency.
7. Article 296, paragraph 3e. According to this provision, a period of six months is granted the Allied and Associated Powers during which they may freely decide whether or not they wish to participate in the clearing office procedure. The provision, as has already been said, denies reciprocity, which must be asked for as a preliminary condition for accepting this. Consequently the procedure would be used only in those cases in which, on the basis of a balancing of claims and debts, there would result advantage for a particular enemy state. At any rate, no other purpose of the provision is apparent. This is doubly significant if the provision in paragraph 11, subparagraph 2, of the annex, is dropped, which must absolutely be done; for otherwise only those Allied and Associated Powers in whose favor a credit balance appeared would accept the procedure, but those against which a debit balance appeared would refuse it.
8. Article 296, paragraph 3f. This provision seems obscure to the German Delegation. A further explanation, in particular an indication of the cases in which it shall apply, is requested.
III. Special Provisions for Alsace-Lorraine
According to Article 72 of the draft, the clearing house procedure is to apply also in the relations between Alsace-Lorrainers and other [Page 889]Germans. In this connection, the definitive date of the beginning of the war, stipulated in Article 296, paragraph 1, No. 1, is replaced by November 11, 1918, the day of the Armistice. Thus the status of enemies of Germany as regards economic warfare would be attributed to Alsace-Lorrainers retroactively to a time when they unquestionably belonged to Germany, an arrangement which has no practical basis. It serves only the purpose of utilizing even the private claims of Germans against German debtors in the occupied territory as security for the charges laid upon Germany.
These objections to the currency and the rate of exchange of the claims to be settled are strengthened by the fact that the contracts which are here arbitrarily altered were concluded between Germans in Germany and that in their case no allowance could have been made for a foreign risk. On this point and even in the case of the separation of Alsace-Lorraine, the principle must be firmly maintained that debts are invariably to be paid in the original currency.
Section IV. Property, Rights and Interests
(Article 297, 298)
The attitude of the German Delegation toward the proposals contained in this Section has already been set forth in detail in the note of May 22, 1919.53 Attention is here called to those statements. Here, however, the fact must be particularly emphasized that some of the Allied and Associated Governments have made efforts in the past months to avail themselves, prematurely and without any legal foundation, of the advantages which they have attempted to stipulate in the draft of the treaty of peace. Whereas Germany, after the conclusion of the Armistice, has considered it a self-evident obligation to apply no further forcible measure against enemy-owned private property and to limit itself, in the execution of the measures previously applied, to necessary acts of conservation in the interest of the proprietors, several enemy states have taken advantage of the long continuance of the Armistice to institute forcible liquidation of German-owned private property which had hitherto been spared, in order thus to continue previous liquidations. This, according to information which has reached the German Government, has occurred in France, Belgium, China, and Guatemala, among other countries. If such a procedure must be characterized as incompatible with the Armistice, then that is true in a still higher degree of the liquidation proceedings which the French occupation authorities have recently applied in Alsace-Lorraine without awaiting the final decision regarding the destiny of this territory. The German Government cannot [Page 890]reconcile with its duty of protecting the Germans concerned any sanctioning of the above-mentioned procedure by accepting the peace conditions relating thereto and thus establishing a precedent for the future.
Furthermore, the following is also to be noted in elaboration of the note of May 22:
- According to Article 297f and g, the nationals of those enemy states which did not apply “general liquidation” until after the conclusion of the Armistice are further granted the special privilege of demanding restitutio in integrum in place of compensation for injury caused them through German emergency legislative measures. The first question which arises is: What is to be understood by “general liquidation” within the meaning of this provision, and which of the enemy states are affected thereby? Furthermore, information is desired as for what reason and by what right a special privilege is demanded for those very states which decided on the liquidation of German property only after the cessation of hostilities, thereby violating the spirit and sense of the Armistice.
- According to Article 297h, the net proceeds of liquidation on both sides can be credited through the clearing office provided for in the preceding Section III. It is not clearly evident whether, and in what manner, it is the intention of the Allied and Associated Governments, in this case, too, that the net proceeds of liquidation resulting in favor of German owners are to be retained as in paragraph 4 of the annex.
- The unilateral reservation contained in the last sentence of subparagraph 1, paragraph 1 of the annex, whereby the title to property heretofore acquired by a national of an enemy state is not to be prejudiced by the confirmation of the validity of war legislation, requires explanation. It is not clear what kind of property rights are to be protected by this reservation.
- Worthy of special note is the completely arbitrary and in nowise justified provision in paragraph 5 of the annex, whereby German subsidiary companies shall in certain circumstances hand over, without any indemnification, to their parent organizations located in enemy states the common trade-mark rights and methods of manufacture for their exclusive utilization.
- A democracy recognizes no difference before the law between its citizens. The private property of the former German princes can, therefore, be subjected to no different legal treatment than that accorded the property of all other Germans. Its identification with state property, which frequently occurs in the draft (cf. Art. 56, par. 3; Art. 144, par. 2; Art. 153, par. 2; Art. 256, par. 2; Art. 257, par. 3), therefore appears entirely unjustified.
- The German Government expects that the Allied and Associated Governments will not only leave the German institutions of research and education in their territories in possession of the landed properties which belong to them or have been assigned to their use, but will assure them the continuation of the rights and privileges which were granted to them in time of peace for the facilitation of their scientific activities.
Section V. Contracts, Prescriptions, Judgments
According to the draft, the question as to how far contracts between nationals or residents of belligerent states are to be maintained or dissolved is not to be regulated in a uniform manner for all the belligerent states. It contains special provisions only for contracts between “enemies”—i. e., for contracts between the nationals of those states of which at least one has prohibited trading with the enemy or has otherwise regarded it as unlawful; the draft also excepts from these provisions contracts which have been made between German nationals on the one hand and nationals of the United States of America, of Brazil, and of Japan on the other. The German Delegation requests further information concerning the grounds which have determined this differential treatment.
Contracts between enemies, according to Article 299a, are to be regarded in principle as dissolved; however, among the contracts fulfilled by one party, from which a payment in cash may be demanded, certain specially enumerated groups of contracts (paragraph 2 of the annex) are to remain in force. This principle is nevertheless limited by Article 299b and by the beginning of paragraph 2 of the annex. Any enemy power concerned can, “in the general interest,” require the execution of contracts which in and of themselves would be dissolved. The contracts continuing in force can be liquidated; the laws made by the Allied and Associated States during the war are still applicable to them, and therefore also the provisions according to which contracts can be dissolved by official decree or through notification. Thus the continuance of the contracts between enemies is made dependent only on the pleasure of the Allied and Associated States or of their nationals. Such a settlement seems unacceptable. It would perpetuate the legal uncertainty produced by war conditions and make German contractual interests even in the future dependent on alien arbitrary jurisdiction. Moreover, the German Delegation is also of [Page 892]the opinion that the problem of the future treatment of pre-war contracts cannot be solved in the same way for all classes of contracts and that, therefore, neither the principle of dissolution nor that of confirmation can be applied without exception. Although there are some serious objections from the German legal point of view to the principle proposed in the draft that pre-war contracts shall be dissolved, these are to be put aside. In any case, the right to discussion of the question as to how far certain categories of contract should be continued in force for special reasons or be regulated in a special manner, in deviation from that principle, must be reserved. This question can only be cleared up by thorough discussion in a Mixed Commission of Experts.
Details, particularly paragraphs II and III of the annex, will therefore not be discussed here. Attention may, however, be drawn now to the arbitrary character of the settlement proposed in paragraph d of Article 299; according to it, contracts between inhabitants of a territory to be ceded, on the one part, and former enemies, on the other part, continue in force only if the party living in the territory to be ceded acquires the nationality of the former enemy state. For this one-sided favor shown to persons who elect the new nationality, no legal basis can be found. No less unjustified is the provision in paragraph 12 of the annex, whereby the Allied and Associated Powers may cancel the contracts of life insurance concluded by their nationals with German companies, and are thus able to destroy the foreign business of these companies for the benefit of non-German companies.
Special treatment has been provided for contracts entered into prior to the proclamation of the French decree of November 30, 1918, between residents of Alsace-Lorraine on the one hand and the German Empire, or a German federal state, or Germans not resident in Alsace-Lorraine, on the other hand. Such contracts are continued in force; which is obviously correct, since these are not cases of contracts between enemies. Nevertheless, paragraph 2 of the provision [Article 299] gives the French Government, in the broadest terms, the right to dissolve contracts “in the general interest.” As a matter of principle a protest must be entered against such interference with private legal relations being involved in any separation of Alsace-Lorraine from Germany.
No objections in principle can be raised against the proposals made in Article 300a and g and in Article 301 as to the periods of prescription, of limitation, and of presentation, as well as for the preservation of negotiable instruments. An explanation is needed, however, as to the reason why Article 300 is not to apply as between German nationals [Page 893]on the one part and nationals of the United States of America, Brazil, and Japan on the other.
Concerning the provisions proposed in Article 300b and d, an explanation is needed relative to their contents and the reasons therefor. It is not clear what measures are to be understood in paragraph b under “mesures d’exécution” (“measures of execution”), particularly whether only measures of compulsory judicial execution and attachment are meant, or also other measures and, if so, which ones. Paragraph d is, according to its wording, not confined to contracts between enemies nor to cases of nonfulfillment in consequence of military measures; the regulation seems incomprehensible, even if the provisions referred to in paragraph c are taken into consideration.
According to Article 302, certain judgments of courts of the Allied and Associated States are to be enforceable in Germany without further provision; certain judgments of German courts are to be subjected to reexamination by the Mixed Arbitral Tribunal. As there is no doubt of the impartiality of the German courts, the denial of reciprocity in these cases can be explained only by the endeavor of our enemies—an endeavor perceptible also in numerous other passages of the draft—to undermine the authority of German courts. With the granting of full reciprocity, there would be no objections to be raised against Article 302.
For the case of the transfer of jurisdiction in Alsace-Lorraine, Article 78 makes a series of provisions to which the following remarks must be made:
The provision in paragraph 1, No. 1, regarding the mutual recognition of the validity of judgments appears acceptable in principle; but, as decisive date, November 11, 1918 would have to be replaced by the day of the transfer of sovereignty. The exception made to the recognition of Alsace-Lorraine courts in litigations between citizens of Alsace-Lorraine and other Germans (paragraph 2) is incompatible with the dignity of German courts. For the same reason, the provision in No. 2 must be rejected in its present form, since it seeks to clothe what is apparently intended, an amnesty for political offenses, in the form of a declaration of nullity of German penal sentences.
In consideration of the fact that the retroactive force proposed in the draft for the transfer of sovereignty does not seem justified, the provision in paragraph 1, sentence 1, of No. 3 regarding the declaration of nullity of certain judgments of the Imperial High Court of Justice ought to be eliminated.[Page 894]
Section VI. Mixed Arbitral Tribunals
(Article 304, 305)
The establishment of Mixed Arbitral Tribunals is dictated by justice and by practical reasons. It must, in principle, be done in such a manner that uniformity of administration of justice is assured for the settlement of all private law cases, and that the execution of the verdicts is carried out uniformly in all contracting states.
The draft of the conditions of peace departs from these principles on the following points:
- Jurisdiction of the national courts is ordered, in part, to the exclusion of the first-instance jurisdiction of the Mixed Arbitral Tribunal, as in paragraph 16, subparagraph 2, of the annex to Article 296, where, at the request of the creditor clearing office the court of the place of domicile of the debtor replaces the Mixed Arbitral Tribunal; in Article 300b where the claim of a national of an Allied or Associated Power for compensation for injury suffered through measures of execution in Germany is withheld from the Arbitral Tribunal in case it falls within the competence of a court of an Allied or Associated Power; in Article 304b where the national courts of the Allied, Associated, and Neutral Powers, in their jurisdiction over litigation concerning contracts between nationals of the enemy powers, take precedence over the Arbitral Tribunal, though with the possibility for a plaintiff belonging to an Allied or Associated Power to bring the matter before the Arbitral Tribunal in case of non-exclusive competence of the national court; and finally in Article 310 where, for litigation regarding the conditions of licenses to be newly issued, the Arbitral Tribunal is declared competent only when the rights arising from the old license had been acquired under German legislation.
- As regards the execution of the decision, a different, apparently more limited formula is employed in Article 304f [in the French text] than in the annex to Article 296, paragraph 24; in addition to finality, the latter provision expressly mentions binding force, whereas the former does not do this.
For the removal of these inequalities, the following is proposed:
- Comprehensive and exclusive jurisdiction shall be given the Mixed Arbitral Tribunal. All reservations in favor of other courts in paragraph 16, subparagraph 2, of the annex to Article 296, in Articles 300b, 304b, and 310 shall therefore be struck out; in Article 302, paragraph 2, reciprocity shall be granted. The concentration of all litigation of a similar nature before one and the same court would assure the continuity and unity of jurisdiction and prevent vexatious disputes about competence—advantages which have long been appreciated by the jurisprudence of all nations. Moreover, the [Page 895]grant of jurisdiction over controversies arising from the treaty of peace would create an awkward task for the national courts, since their verdicts, if rendered against their own nationals, would be exposed to the attacks of the nationalistic press, but if decided against nationals of the former enemy state, would always be construed by the latter as a result of partiality. The Mixed Arbitral Tribunal alone is above suspicions and attacks of this kind. The correct course here is shown by Article 305, sentence 1, which, it is true, is to have no validity in relations between Germany and the United States.
- All decisions of the Mixed Arbitral Tribunals shall be binding and enforceable within the jurisdiction of all contracting states.
The proposed composition of the Arbitral Tribunals seems essentially justified, provided that the League of Nations, the Council of which is to appoint the impartial president, includes Germany.
The language of the court, and the time and place of sessions, according to paragraphs 8 and 9 of the annex, are to be determined by the enemy power concerned. That is not only an injustice toward Germany which is unparalleled in international and national arbitrational agreements; it is also impractical. It would be made almost impossible to obtain prominent judicial personages from neutral countries for the office of president, if, through unilateral determination of the language and the seat of the court on the part of an enemy power, a language difficult to master and unusual in international intercourse or a place difficult to reach were chosen. Unilateral determination of the time by one party would, furthermore, facilitate any delay. Therefore, determination of the language of the court and of the place and time, in conformity with general judicial custom, is better left to the president, since he will enjoy general confidence. His choice will regularly fall upon one of the generally understood languages. The designation of German, English, and French as court languages permissible in every case also seems possible.
By way of the reciprocity which results from the common interest of all states in the uniform and just settlement of these disputes, the courts and authorities of all contracting states should, within their jurisdiction, render directly to the Mixed Arbitral Tribunals assistance of every kind, especially by transmitting notices and collecting evidence.[Page 896]
Section VII. Industrial Property
The provisions concerning the protection of industrial property are based on a principle which, with consistent execution and full maintenance of reciprocity, would comply with the requirements of justice and equity. According to Article 306, paragraph 1, all rights of industrial, literary, and artistic property which are defined in the International Conventions of Paris54 and Berne,55 as well as claims arising from application for such rights or from the publication of a literary or artistic work, are to be restored in all respects and in all contracting states as from the coming into force of the treaty of peace. The circle of persons in whose favor the restoration is to be made is, in this connection, not defined with full clarity. The meaning of the term “legal representatives” in the English text, and of “ayants droit” in the French, requires explanation.
The general concept of the restoration of all rights is, however, most seriously prejudiced in its practical effect through the reservations made in other provisions of the draft. Under those reservations are comprised also the provisions which permit the liquidation of German property rights after the war; cf. Article 297 and paragraph 15 of the annex to Article 298.
The scope of paragraph 15 is certainly not in every respect free from ambiguity and requires explanation. In any case, according to it, the Allied and Associated Powers would have the possibility of again immediately withdrawing the restored property rights, by way of liquidation, from the Germans entitled to them. In addition, however, the principle enunciated is stripped of all practical significance, so far as it concerns German property rights, by a series of exceptions which are provided unilaterally in favor of the Allied and Associated Powers. In itself the principle would result in all legal and official measures applied during the war to the prejudice of nationals of enemy states becoming inactive from the entry into force of the treaty. Germany is to be compelled to acknowledge this consequence as regards German measures. On the other hand, the Allied and. Associated Powers according to Article 306, paragraph 2, intend to maintain in full force the results of their economic warfare against German owners of property rights. The economic significance of this demand is increased by the fact that, according to Article 306, paragraph 3, no utilization of German property rights, so far as it was made by the Government of an Allied or Associated Power, or with its consent, is to be ground for any liability whatever toward the [Page 897]German owner. As a result, therefore, property rights are restored only in favor of nationals of the Allied and Associated Powers. Insofar as the war measures on both sides have led to the granting of indemnities or compensations, they are, as a rule, treated according to the general provisions regarding settlement of debts, the unjust formulation of which, in many cases, has already been pointed out. But the principle of Article 306, paragraph 4, is also violated since each of the enemy powers reserves to itself the right to depart from this settlement by way of its domestic legislation—that is, at will. If the settlement takes place, the “sommes dues ou payées” (“sums due or paid”) are to be credited to Germany, the “sommes produites” (“sums produced”) to our opponents. Whether the difference in text corresponds to a difference in fact requires explanation.
The proposals of the Allied and Associated Powers are not, however, limited to insuring their advantages arising from measures taken during the war; rather, according to Article 306, paragraph 5, the intention is to stipulate for themselves the possibility of seizing German property rights in peace as well. They desire to retain for themselves the right to exploit for their own advantage the rights of Germans to industrial, literary, or artistic property, whether they were acquired before or even after the war, to grant licenses, to supervise any exploitation, as well as to attach conditions to or otherwise limit, in any manner desired, the exercise of their rights by Germans and, besides, to do this whenever they regard it as necessary to insure the complete fulfillment of any obligation whatever undertaken by Germany in the treaty of peace. Under this assumption, the existence of which is determined by the enemy powers to the exclusion of impartial control, the Allied and Associated Powers are to be free to appropriate the fruits of the German inventive spirit without any compensation and for an incalculable time.
This declaration of outlawry of German intellectual property is all the more intolerable as it weakens German economic strength in one of the few fields in which Germany would still be in a position to begin its efforts to build up its economic life and to liquidate the burdens laid upon it by the World War.
The renewal of periods which had lapsed during the war (Article 307) as well as the revival of rights which may have lapsed by reason of failure to act or through neglect of payments seems proper in principle. Insofar as under this provision, subsequent protests and pleas of nullity are to be allowed, the provision goes beyond what is necessary. When, moreover, it is proposed that the rights of third parties acquired before the revival of lapsed rights shall be maintained, this also would appear proper if the proposal were not unilaterally drawn in favor of the Allied and Associated Powers and [Page 898]the mode of protection of the duly acquired rights left to the discretion of these powers. Again, a sharp protest is called for by the last sentence of Article 307, paragraph 2, which, in contradiction to the broadest principles of peace, seeks to establish the permanent validity of war legislation with respect to the patent rights and registered trade-marks and designs which have again come into force. In this way, together with the authorization of liquidation for these property rights, which is likewise reserved, the revival theoretically provided for in Article 306 would become practically devoid of application.
The extension of the period required for working or use of these rights (Article 307, paragraph 3) and the treatment of the periods of priority as well as of the rights of third parties acquired in good faith (Article 308) are not objectionable in principle; but an extension to a year of the period of six months stated in the last provision seems appropriate. The mutual renunciation of prosecution for infringement of industrial, literary, or artistic property rights (Article 309) is also acceptable.
The adjustment of license contracts concluded before the war (Article 310), according to which these contracts are to be regarded as canceled with retroactive force from the beginning of the war, corresponds to the principle set up in general in Article 299 and has already been discussed. If it is accepted there, the consequence must be drawn from it here, so that the original holder of the license is to be granted in addition the right within the territory of the Allied and Associated Powers of demanding a renewal of the expired license with changed conditions. This provision, which has doubtful justification, in principle, moreover, is unduly burdensome on Germany because, in cases not settled by agreement between the parties, when the rights have been acquired under German law, the Mixed Tribunal, rather than the German courts, is entitled to [make] the decision; but, on the other hand, when the rights have been acquired under the law of one of the enemy powers, the decision is entrusted to the national court of that power. Justice demands that the Mixed Tribunal shall always be allowed to decide. The maintenance of war licenses proposed in paragraph 2, which would be endurable on the basis of full reciprocity, becomes unjust through the fact that only those war licenses are to be maintained which are granted in favor of subjects of the Allied or Associated Powers.
Article 311 requires amplification so that such property rights conferred upon Germans living outside the territories separated from Germany may also continue to be exercised without restriction in these territories in the future. A corresponding amplification should also be adopted in Article 76 of the draft, which is intended to assure the [Page 899]exercise of German industrial, literary, and artistic property rights in Germany for inhabitants of Alsace-Lorraine.
The numerous objections and doubts here expressed, which are even increased upon closer examination of the details of the proposed settlement, render it indispensable that before a definitive position is taken, this whole complex of questions shall be discussed in joint consultation between experts of all contracting parties.
c. special provisions of maritime law
(article 440 and paragraphs 7 to 9 of annex [iii] to part viii)
Article 440 of the draft demands from Germany the recognition of all decrees and orders of enemy prize courts concerning German ships and German goods and excludes any assertion of claims in favor of German nationals. On the other hand, Germany is to allow the decisions and orders of its prize courts to be examined in a manner to be determined at will by the Allied and Associated Powers and, in fact, not only insofar as nationals of these powers are affected, but also the nationals of neutral states. Furthermore, Germany is to submit to the results of the examination without itself having even a claim to a hearing.
The one-sidedness of these provisions is therefore the more intolerable because the Allied and Associated Powers without any legal justification claim for themselves the decision concerning the rights of neutrals against Germany. Justice demands either the recognition or the uniform and impartial examination of the decisions and orders of the prize courts of all contracting states. Germany could declare herself in agreement with either of these two solutions. Should such an examination be agreed upon, this can only be undertaken by an international court of justice which is composed on a basis of equality.
Should the treaty provisions of Article 440 become valid, then our opponents would in addition to the full indemnity demanded by them, unjustly and on a large scale, receive sums which rightly belong to Germany. On the basis of the terms of the Armistice, the German Empire had to surrender the former enemy shipping legally awarded to it by prize court decisions. Nothing is said in the draft about the return or the crediting of this tonnage.
On the other hand, no attempt is made to make compensation for this unwarranted injury by the surrender, or at least by crediting the value, of the former German ships or cargoes which were affected by the decisions or orders of enemy prize courts.
In this connection, reference should be made to the provisions of paragraphs 7, 8, and 9 of Annex III to Part VIII.
According to paragraph 7, Germany would have to take all measures which may be required by the Reparation Commission in order to [Page 900]regain possession of German ships transferred to neutrals since the beginning of the war. Germany would thereby be delivered over to the speculation of foreign countries. According to paragraph 8, Germany is to waive all claims in respect of the detention or employment, loss or damage of German ships, with the exception of the payments provided for in the Armistice agreements. Germany would thereby be deprived, among other things, of all claims accruing to her because of such damage according to the principles of international law regarding the treatment of ships under embargo. According to paragraph 9, Germany is to be able to make no claim to vessels and cargoes which were sunk and subsequently salved; this is to apply without regard to the decisions of the prize courts of Germany or of her allies.
The provisions, in this form, seem unjustified; paragraph 9 could be agreed to on the condition that the value of salved ships and goods be credited to Germany on account of reparations after deduction of all costs of salvage.
d. legal questions concerning penalties
The German Delegation, in its comments on the provisions of the draft concerning penalties (Part VII), has expressed the opinion that violations of international law committed during the war by individuals must be punished. In addition to this idea, on the other hand, there must also be accepted the idea that other infractions by the nationals of both parties, conditioned by the circumstances of war, should, if the general sense of justice at all permits it, be consigned to oblivion at the conclusion of peace. This holds good not only in the relation of a belligerent state to its own nationals but also in its relation to the nationals of the other party. Such an amnesty has been agreed upon in many previous treaties of peace and will now, too, contribute to bringing the peoples together. Since the draft of the conditions of peace provides for no amnesty, the German Delegation makes the following proposals.
Apart from the release of prisoners of war and civilian internees guilty of a criminal act, which is discussed elsewhere, it might be desirable first of all that each state grant the nationals of the other party amnesty for all criminal acts which they committed during the war on behalf of their home country or which represent violations of the emergency legislation passed to the detriment of enemy aliens; such acts as are contrary to the laws and usages of war would have to be excluded.
Further, certain acts should be included in the amnesty which were committed before the conclusion of peace by the inhabitants of a territory [Page 901]occupied by the enemy. The exceptional circumstances prevailing during a military occupation, or resulting from a treaty, will often be the cause of a political or military behavior which, as a rule, loses its significance with the return of the former administration and then can go unpunished without offense to the sense of justice.
Article 302 of the draft provides for the reexamination of judgments by default in civil proceedings. In the field of criminal law, too, where higher legal values are involved, the idea which underlies this provision should be recognized. The German Delegation therefore considers it desirable that every state should make it possible for the nationals of the other party to reopen a criminal case determined against them in its courts if the decision was rendered in their absence.
In this connection, reference must be made to the intolerable procedure of the occupation authorities in Alsace-Lorraine and the Palatinate, who have called to account persons of various classes—administrative officials, judges, witnesses, liquidators, receivers, and others—under criminal as well as civil law, although the contested actions were taken in line of duty according to the German laws in force.
- The file translation here printed is one prepared at the Peace Conference, with some minor corrections.↩
- No. 1 of President
Wilson’s Fourteen Points, contained in address to Congress, January
Foreign Relations, 1918, supp 1, vol. i, pp. 12, 15.↩
- For text of the treaty of Brest-Litovsk, signed
March 3, 1918, see
ibid., 1918, Russia, vol. i, p. 442.↩
- For text of the treaty of
Bucharest, signed May 7, 1918, see
ibid,., 1918, supp. 1, vol. i, p. 771.↩
- Filed separately under Paris Peace Conf. 185.1/168; this translation is one prepared at the Peace Conference, with some minor corrections.↩
Foreign Relations, 1918, supp. 1, vol. i, p. 338.↩
Ibid., p. 12.↩
Ibid., p. 316.↩
Ibid., p. 343.↩
- Note of October 12, 1918,
ibid., p. 357.↩
Ibid., p. 381.↩
Ibid., p. 395.↩
Ibid., p. 468.↩
- The words here inserted appear in the note of November 5, but there is no equivalent passage in the file copy of the German text.↩
ii, p. 1.↩
Foreign Relations, 1917, supp. 1, pp. 195, 199, 202.↩
Ibid., 1917, supp. 2, vol. i, pp. 96, 97.↩
- Address to Congress,
ibid., 1917, pp. ix, x.↩
Ibid., 1918, supp. 1, vol. i, p. 200.↩
The literal translation of the German version of President Wilson’s statement is as follows:
“We should dishonour our own cause if we treated Germany otherwise than justly and impartially and with the passionate wish to be just on all sides whatever might be the outcome of the war. For we ask &c.” [Footnote in the file translation.]↩
- Ante, p. 765.↩
- There is no trace of this speech in The Times. [Footnote in the file translation.]↩
- There is no trace of this speech in The Times. [Footnote in the file translation.]↩
- These sentences do not appear in the report of the speech given in The Times. [Footnote in the file translation.]↩
(Note by Translator)
The following sentence is omitted here:
“First, that this undesirable thing of which the masters of Germany have shown us the ugly face, this menace of combined intrigue and force, which we now see so clearly as the German power, that thing without conscience or honour or capacity for covenanting [covenanted] Peace, must be crushed, and, if it be not utterly brought to an end, at least shut out from the friendly intercourse of the nations; secondly, that when this thing and its power are indeed defeated and when the time comes, etc.”
[Footnote in the file translation.]↩
This is an inaccurate attribution. The quotation is from the speech of President Wilson opening the campaign for the Fourth Liberty Loan in New York, September 27, 1918. The quoted passages should read:
“This is what we mean when we speak of a permanent peace, if we speak sincerely, intelligently, and with a real knowledge and comprehension of the matter we deal with.
. . . . . . .
“If it be in deed and in truth the common object of the governments associated against Germany and of the nations whom they govern, as I believe it to be, to achieve by the coming settlements a secure and lasting peace, it will be necessary that all who sit down at the peace table shall come ready and willing to pay the price, the only price, that will procure it; and ready and willing, also, to create in some virile fashion the only instrumentality by which it can be made certain that the agreements of the peace will be honoured and fulfilled.
“That price is impartial justice in every item of the settlement, no matter whose interest is crossed; and not only impartial justice but also the satisfaction of the several peoples whose fortunes are dealt with. …”↩
Ibid., pp. 108, 109.↩
- In the text of the speech as delivered, this portion reads: Have you ever heard what started the present war? … Nothing in particular started it, but everything in general. There had been growing up in Europe a mutual suspicion, an interchange of conjectures about what this Government and that Government was going to do, an interlacing of alliances and understandings, a complex web of intrigue and spying, that presently was sure to entangle the whole of the family of mankind on that side of the water in its meshes.” (New York Times, October 27, 1916, p. 2.) The final clause beginning “that the explanation …” is not to be found in the text cited.↩
Foreign Relations, 1917, supp. 1, pp. 24, 26.↩
Ibid., 1918, supp. 1, vol. i, pp. 316, 318.↩
- Address delivered by President Wilson before the Italian Parliament on the occasion of his being made a citizen of Rome, New York Times, January 4, 1919, p. 1; The Public Papers of Woodrow Wilson, edited by Ray Stannard Baker and William E. Dodd (New York and London, 1927), vol. v, p. 362.↩
- As released at the time of delivery, this portion of the speech reads: “… what I intend to preach from this time on is that America must show that as a member of the family of nations she has the same attitude toward the other nations that she wishes her people to have toward each other: That America is going to take this position, that she will lend her moral influence, not only, but her physical force, if other nations will join her, to see to it that no nation and no group of nations tries to take advantage of another nation or group of nations, and that the only thing ever fought for is the common rights of humanity.” (New York Times, October 27, 1916, p. 2.)↩
- For text of the Pope’s note of August 1 and
President Wilson’s reply of August 27, see
Foreign Relations, 1917, supp. 2, vol. i, pp. 162 and 177.↩
- I am not certain whether “Wiedergutmachung” should be translated “reparation” or “restoration”. [Footnote in the file translation.]↩
Foreign Relations, 1918, supp. 1, vol. i, p. 29.↩
Ibid., pp. 268, 270.↩
This reference is apparently to the second of the four points in President Wilson’s speech of July 4, 1918, at Mount Vernon:
“2. The settlement of every question, whether of territory, or 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 which may desire a different settlement for the sake of its own exterior influence or mastery.”↩
- Ante, p. 765.↩
- See CF–20A, minute 3 and
v, pp. 756, 767.↩
- Ante, p. 774.↩
- Appendices II and III to CF-23,
v, pp. 817, 820.↩
- See CF–22A, minute 1 and
v, pp. 800, 802.↩
- Jean Dumont, Corps Universel Diplomatique du Droit des Gens, etc. (Amsterdam, 1726), vol. i, p. 16.↩
- British and Foreign State Papers, vol. i, pt 1, p. 151.↩
- Ibid., vol. iii, p. 280.↩
- Appendix to
v, p. 915.↩
- Appendix I
v, p. 865.↩
- British and Foreign State Papers, vol. lxxvi, p. 4.↩
- Ibid., vol. lxxxii, p. 55.↩
Foreign Relations, 1918, Russia, vol. i, p. 442.↩
- Ante, p. 38.↩
- Presumably report submitted to the Chamber of Deputies by M. Desplas, July 13, 1916, les documents parlementaires de la session 1916, No. 2345 (Rapport Desplas).↩
- The two paragraphs in brackets are omitted from the file translation. Translation from the German text supplied by the editors.↩
- Convention of October 14, 1890, British and Foreign State Papers, vol. lxxxii, p. 771.↩
- Treaty between Germany, Italy, and Switzerland regarding the St. Gothard Railway, signed at Berne, October 13, 1909, ibid., vol. cv, p. 639.↩
- Message of May 22, 1917, published on June 10,
Foreign Relations, 1917, supp. 2, vol. i, p. 71.↩
- Appendix I to CF–9,
v, p. 571, and appendix II to CF–26, ibid., p. 869.↩
- Filed separately under Paris Peace Conf. 185.1/175; translation from the German supplied by the editors.↩
v, p. 865.↩
- Signed March 20, 1883, Malloy, Treaties, 1776–1909, vol. ii, p. 1935.↩
- Signed September 9, 1886, British and Foreign State Papers, vol. lxxvii, p. 22.↩