III.

Before commencing this part of our discussion it is necessary to note one point. At the Peace Conference the position of Germany was comparable to that of a condemned criminal awaiting sentence. The disabilities imposed on Germany by the terms of the Treaty of Versailles must therefore not be considered as infringing the doctrine of equality, for they pertain closely to the nature of penalties for the crimes of Germany during the war. Accordingly, these disabilities are mentioned only so far as they throw light on the relative status of the other nations as defined by the treaty.

Our four divisions of the doctrine of equality may be characterized roughly as legislative, judicial, economic, and administrative. We may pass over the first of these, the legislative, with the observation that the Treaty of Versailles does not alter the processes of making international law. And the second, the judicial, may be dismissed almost as briefly. As an international judiciary, the Permanent Court of Arbitration furnishes an important example of observance of the doctrine of equality in that the nations have equal representation on the court. But the doctrine is entirely disregarded in the only article of the treaty suggesting an international judiciary, namely, that relating to the proposed trial of William II. This article provides that the tribunal to try the former German Emperor shall "be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan." (Article 227.)

Although our third division, that which may be termed the economic implication of the doctrine of equality, received little if any explicit definition before the war, it is recognized and sanctioned by so many provisions of the treaty that it must henceforth be regarded as firmly established. The most important articles of the treaty which justify this assertion may be enumerated as follows:

A. Mandates and Territory of Members of the League of Nations.

(1) Article 22. "Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will . . . secure equal opportunities for the trade and commerce of other members of the League."

(2) Article 23. "Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League . . . will make provisions to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League."

B. International Waterways and the Rhine.

(1) Article 332. "On the waterways declared to be international in the preceding article, the nationals, property and flags of all Powers shall be treated on a footing of perfect equality, no distinction being made to the detriment of the nationals, property or flag of any Power between them and the nationals, property or flag of the riparian state itself or of the most favored nation."

(2) Article 356. "Vessels of all nations, and their cargoes, shall have the same rights and privileges (on the Rhine and Moselle) as those which are granted to vessels belonging to the Rhine navigation, and to their cargoes."

C. Nationals and Property of the Allied and Associated Powers in Germany.

(1) Articles 264-267. These articles provide: (a) that goods, the produce or manufacture of any one of the Allied or Associated States, shall, if imported into, or transported through, Germany, receive from Germany equal treatment with those of any other such State or any other foreign country; (b) that goods exported from Germany to any of the Allied or Associated States shall receive from Germany equal treatment with those exported to any other such State or any other foreign country.

Article 268 provides exceptions from the three preceding articles in favor of Alsace-Lorraine, Poland and Luxemburg. These exceptions must be regarded in the nature of compensation for losses incurred during the war, and therefore do not infringe the doctrine of equality.

(2) Articles 271, 313-321, 323, 326, 327, 365 and 370. These articles provide in general that Germany shall not discriminate against the nationals, property, vessels, rolling stock or aircraft of any of the Allied or Associated Powers in German ports, territorial waters. or inland navigation routes, or in transit across Germany.

(3) Article 276. "Germany undertakes: (a) not to subject the nationals of the Allied and Associated Powers to any prohibition in regard to the exercise of occupations, professions, trade and industry, which shall not be equally applicable to all aliens without exception;

(c) not to subject the nationals of the Allied and Associated Powers, their property, rights or interests, including companies and associations in which they are interested, to any charge, tax, or impost, direct or indirect, other or higher than those which are or may be imposed on her own nationals or their property, rights or interests;

(4) Articles 291 and 294 provide that Germany shall give the Allied and Associated Powers and their nationals all the rights and privileges which she may have granted to Austria, Hungary, Bulgaria or Turkey, or to their nationals by treaties, conventions, or agreements before August 1, 1914, or which she may have granted to nonbelligerent states or their nationals by treaties, conventions or agreements since August 1, 1914, so long as those treaties, conventions or agreements remain in force.

D. Free Ports, Free Zones in Ports and the Kiel Canal.

(1) Article 329. Having regard to the facilities for the erection of warehouses or for the packing and unpacking of goods, and to duties on goods to be consumed, in the free zones in German territory, this article provides that "There shall be no discrimination in regard to any of the provisions of the present article between persons belonging to different nationalities or between goods of different origin or destination.'

(2) Article 65. "Equality of treatment as respects traffic shall be assured in both ports (Kehl and Strasburg) to the nationals, vessels and goods of every country.”

(3) Article 380. "The Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of perfect equality."

Article 381. "The nationals, property and vessels of all Powers shall, in respect of charges, facilities and in all other respects, be treated on a footing of perfect equality in the use of the Canal, no distinction being made to the detriment of nationals, property and vessels of any Power between them and the nationals, property and vessels of Germany or of the most favored nation."

We have now reached the final phase of our discussion, the application in the Treaty of Versailles of the doctrine of equality, in so far as the doctrine relates to the relative status of nations in the administration of international affairs. Our conclusion as to this phase of the doctrine was that in international administration, the doctrine of equality must give way to the primacy of the great Powers, the reality of which is sanctioned by a century of custom, although not yet defined by law. This conclusion is modified by the treaty only to the extent that the primacy of the great nations is rendered explicit, is crystallized and defined, not only by the power given them, but by the very words of the treaty. The treaty opens by drawing a distinction between the United States, the British Empire, France, Italy and Japan, which are designated as the Principal Allied and Associated Powers, and Belgium, Bolivia, Brazil, China, Cuba, Ecuador, etc., which are designated as constituting, with the Powers mentioned above, the Allied and Associated Powers. This distinction is retained throughout the treaty. Predominant influence is given to the United States, the British Empire, France, Italy and Japan as permanent members of the Council of the League of Nations, as the Principal Allied and Associated Powers, or as members of the Reparation Commission. Let us consider the power given these nations in the respective capacities.

A. THE COUNCIL OF THE LEAGUE OF NATIONS

The Council consists of representatives of the Principal Allied and Associated Powers, together with representatives of four other members of the League, who are to be selected by the Assembly from time to time at its discretion. With the approval of the majority of the Assembly, the Council either may name additional members of the League whose members shall always be members of the Council, or may increase the number of members of the League to be selected by the Assembly for representation on the Council.26

Under the Covenant of the League of Nations, the powers of the Assembly, in which the representation is far more liberal, are insignificant in comparison with those of the Council. Contrast is first presented in that while "The Assembly shall meet at stated intervals

26 Conditions of Peace, Art. 4, Extract from Congressional Record, 66th Cong., 1st sess., June 9, 1919.

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and from time to time as occasion may require, 27 The Council shall meet from time to time as occasion may require, and at least once a year. Again, international disputes are first to be submitted to the Council, which may refer them to the Assembly at the request of either party to the dispute, with the proviso that "a report made by the Assembly, if concurred in by the representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the representatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by all the members thereof other than the representatives of one or more of the parties to the dispute." 29 In this connection it is important to note that while Article 4 provides that "Any Member of the League not represented on the Council shall be invited to send a representative to sit as a member at any meeting of the Council during the consideration of matters especially affecting the interests of that Member of the League," the effect of this is practically nullified by the exclusion of the votes of the representatives of parties to a dispute which is before the Council. Finally, it is significant that the Council has the power to decide whether a dispute between two parties arises "out of a matter which by international law is solely within the domestic jurisdiction" of either party, in which case "the Council shall so report, and shall make no recommendation as to its settlement.

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The additional articles relating to the powers of the Council may be enumerated as follows:

(1) Article 8. The Council shall formulate plans for the reduction of national armaments for the consideration and action of the several governments. "After these plans shall have been adopted by the several governments, the limits of armaments therein fixed shall not be exceeded without the concurrence of the Council."

(2) Article 16. "Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, . . . it shall be the duty of the Council . . . to recommend to the several governments concerned what effective military or naval force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League.

(3) Article 26. "Amendments to this Covenant (the Covenant 27 Conditions of Peace, Art. 3. 29 Ibid., Art. 15. 28 Ibid., Art. 4.

30 Ibid., Art. 15.