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Published online by Cambridge University Press: 04 May 2017
Regardless of what we may think of the Treaty of Versailles, we must admit that it contains indications of farsightedness and broad vision. Among these I include the Covenant of the League of Nations and the clauses relating to international rivers and international labor laws. But even apart from these groups of laws and regulations, the provisions of the treaty which aim to submit disputes arising out of an especially important part of the treaty to international arbitration constitute, from the point of view of international law and considered in an abstract way—that is, only with reference to their creation and their significance for the development of international law and international arbitration—a real accomplishment, the fulfilment of wishes expressed even before the war by such scholars as von Bar, Meurer, Wehberg and Ludwig Wertheimer. At the same time the creation of the arbitral courts in the sense of Part X, Section VI, confirms the fact that the tendency toward arbitral settlement of such disputes even as arise from treaties of peace, to which I already called attention before the war, has not been abandoned on account of the war. This was proved by the German treaties with the Eastern countries and is now again indicated by the Treaty of Versailles.
Translated from the German by Mr. Edwin H. Zeydel, Washington, D. C. For a more detailed explanation, see Strupp, Die Zuständigkeit der Gemischten Schiedsgerichte des Versailler Friedensvertrages, Mannheim, Bensheimer, 1923.
1 Translated from the German by Mr. Edwin H. Zeydel, Washington, D. C. For a more detailed explanation, see Strupp, , Die Zuständigkeit der Gemischten Schiedsgerichte des Ver-sailler Friedensvertrages, Mannheim, Bensheimer, 1923 Google Scholar.
2 This is also recognized, in a manner restricted to the Allied and Associated Powers, by the Manuel Pratique of Cauwes and Chaudun, 1921, p. 23. Publications of the Permanent Court of International Justice at The Hague, C, No. 1,1922, p. 174. France, through Professor de Lapradelle, pronounced the important thesis before the Permanent Court that, whereas the labor laws of the Treaty of Versailles contain a restriction of sovereignty, these regulations must be interpreted in a narrow sense.
* Translator’s Note: The English text of the treaty, however, as published by the U. S. Senate (66th Congress, 1st Session, Doc. No. 51, Washington, 1919) has “all” in both paragraphs.
3 We shall revert to this later.
What are the rules with regard to the interpretation of the Treaty of Versailles in general?
The text-books and manuals of international law contain more or less full rules of interpretation. A monograph on the subject is still lacking. Cf. also Fiore, , Diritto internazionale codificato, 5th ed., 1915, p. 363 Google Scholar; Moore, , Digest of International Law, V, 1906, p. 251 Google Scholar. There we find the important rule on interpretation of the American Secretary of State Livingston (1831) : “ In doubtful cases that construction is to be adopted which will work the least injustice which will put the contract on the foundation of justice and equity rather than of inequality.” Crandall, , Treaties, their making and enforcement, 2nd ed., 1916, p. 371 ff.Google Scholar, is also important.
The well-known rules laid down, usually with only verbal differences, in most of the important works on international law also apply to the provisions of the Treaty of Versailles. To be sure, this treaty has a peculiar position in the list of international treaties. Not because it is drawn up in two authentic languages, a fact that makes interpretation more difficult (this practise was dropped in the subsequent treaties of St. Germain, Trianon and Neuilly), or because the discrepancies between the two texts are frequent, but because, although the treaty is not contestable from the formal juridical point of view, it is in fact the work of one of the parties, namely the Allied and Associated Powers. That is, it is a dictated peace. Nevertheless, stress must be laid upon the contractual nature of the instrument in so far as in its interpretation the history of its genesis at the hands of the Allied and Associated Powers, which was never made known to Germany and is now first beginning to be revealed by such works as Baruch’s Making of the Reparation and Economic Sections of the Treaty, 1921, and Temperley’s History of the Peace Conference of Paris, 1920-1921, cannot have the same importance as the genesis of genuine negotiated treaties. Rather does the comparison of the texts, with regard to the important general rules of interpretation in international law, as given above, acquire a special significance, without, however, affecting the admitted importance of the genesis; for instance, the drafting of the economic provisions on the basis of the Paris Economic Conference held during the war, in 1916, and the predominance of the Anglo-American representatives at the Peace Conference in such questions, in contrast to the predominance of the French in matters pertaining to Alsace-Lorraine. Cf. esp. Fleischmann, l’Obligation imposée à l’Allemagne de réparer les conséquences des mesures prises par elle en territoire ennemi, 1922, p. 5 ff., esp. p. 8.
The intention of the parties, in so far as changes were not made in the draft of the treaty at the suggestion of the Germans, cannot play the same part as in the case of other treaties in international law (Fleischmann, loc. cit., p. 5, seems to me to be incorrect here). The intention of the Allied and Associated Powers cannot play this part because it alone cannot be decisive; the intention of Germany cannot do so because (with some exceptions) it cannot juridically be construed as an intention with respect to the individual norm, but only as a supplementary intention with respect to the treaty as a whole. An interpretation answering these peculiar conditions must, wherever this last statement does not apply, use the treaty texts as its basis, and the genesis of the treaty can be utilized in a supplementary way only in so far as it does not prejudice Germany’s legal status with regard to the text. Cf. Temperley, op. cit., Vol. II, p. 65 : “ When the terms of peace are carried out in action, it will be the letter of the Treaty and the circumstances of the time that will be the controlling factors, not the letter of the Treaty interpreted according to the spirit in which it was written. ‘ What the makers meant—an obscure and inexhaustible subject—will be forgotten, and what the words mean will be the criterion by which the limits of action will be fixed.”
4 It will be sufficient to mention Art. 297 (e) which provides for compensation for measures of reprisal (as e.g., the reprisals of Germany against the measures of France —not England: see Strupp, , Grundmge des positiven Völkerrechts, 2nd ed., 1922, p. 183)Google Scholar, that is, measures which are not contrary to international law. Cf. my work just cited, p. 140, sub. f.
5 The absence of the competence of the mixed arbitral tribunal may, in accordance with the provisions of municipal law, which is only repressed in certain cases by the Treaty of Versailles, serve to motivate the competence of municipal courts or that of the Reparation Commission. For claims for compensation arising from Part VIII of the Treaty of Versailles, especially Art. 232 and Annex, cease as far as property, rights and interests referred to in Sections III and IV (only these two) of Part X are concerned (Art. 242). This conception has been expressly confirmed by a communication of the Reparation Commission to the German War Burdens Commission in the Huret case. Cf. Partach, Le dogme de la responsabilité générale et incontestée de l’Allemagne, 1922, p. 3. The decision in the McLeod Rüssel case (Anglo-German Arbitral Court, Recueil, 1, 549) is correct: “The Tribunal holds that Section I of Part VIII deals only with such damages as are not covered by Section IV of Part X.” Cf. also Seaham Harbour, ibid., p. 552.
6 The alien enemy problem, which acquired special importance in the war because of the unbounded extension of enemy character on the part of the Entente, cannot be discussed here. For, whereas, only German measures are concerned, whereas Germany, following continental conceptions, interpreted the word enemy in a narrower sense than Anglo-American practise, “enemy” can here be understood only in the sense of a national of an enemy state. Cf. Oppenheim, International Law, 3rd ed., 1920, II, 116 ff.; Garner, International Law and the World War, II, 1920, p. 61-ff.; also Rolin, , Droit moderne de la guerre, 1, 1920, p. 244 ff.Google Scholar; Fauchille, , Traité de droit international public, II, 1921, p. 62 ffGoogle Scholar.
7 This conception is by no means incontestable. Cf. Despagnet, , Coure de droit international public, 4th ed., 1910, p. 826 Google Scholar; Hershey, Essentials of International PublicLaw, 1912, p. 360; Triepel, Virtuelle Staatsangehörigkeit, 1921, esp. appendix.
8 Cf. Triepel’s valuable pamphlet Virtuelle Staatsangehörigkeit, 1921.
9 See Fleischmann, op. cit., 1922, p. 12 ff. Cf. the remark of the English plaintiffs in the Weiss Biheiler case (Recueil, I, 852) : “ that Part X must (!!) apply to their claims, because (I) the claim is not provided for in Part VIII of the Treaty or in any other part of the Treaty, unless it is covered by Part X.”
10 The thought upon which this regulation is based is that the determination of the war damages among individual states is to be made by the Reparation Commission (in accordance with Part VIII), while the mixed arbitral courts decide upon damages of private persons.
11 Cf. my Grundzüge des positiven Völkerrechts, 2nd ed., 1922, pp. 4, 5, 9, 10.
12 Cf. Schuster, , Effect of War and Moratorium on Commercial Transactions, 2nd ed., 1914, p. 3 ff.Google Scholar; Campbell, Law of War and Contract, 1918, p. 3 ff.; Trotter, , Law of Contract during and after War, 1919, p. 8 ffGoogle Scholar.
13 Incidentally, Société anonyme du Charbonnage Frédéric Henri, Recueil, I, 429: “Evi dently the word ‘interesses’ should have been followed by a comma, which is found in the English text of the corresponding paragraph between the words ‘interested’ and ‘in German territory.’”
14 To utilize other leges speciales, as e.g., Art. 297 (h) or Annex, par. 4, as arguments against Germany is inadmissible. Every lex specialis must be considered by itself and must be in terpreted by itself and by any references therein. Precisely the formulation “occupied territory” or “invaded or occupied territory” (Art. 302, IV) favors the theory that where such a version is not used, such a conception was not intended.
15 Further arguments, which, however, seem to be superfluous on account of the lex specialis nature of Art. 297 (e), are given by Fleischmann, op. cit., p. 19 ff. See also the decision of the Anglo-German arbitral court in the Weiss Biheller case, Recueil, I, 853, especially the next to last paragraph. Cf. also Gidel and Barrault, Le traité de paix avec l’Allemagne, 1921, pp. 33, 35.
16 The importance of the English text is correctly emphasized not only in the aforementioned Franco-German decision in the case of Friedrich Heinrich, but also in the two decisions of the Anglo-German arbitral court in the Weiss Biheller and McLeod Rüssel cases. Recueil I, 549 and 853.
17 Namely the words: “in German territory as it existed August 1, 1914”, printed in Italics in the decision.
18 Recueil, I, 90.
19 Only the most important arguments in the case are presented here.
20 Recueil, I, 90.
21 See also Wielemans case (Belgo-German arbitral court), Recueil, I, 736; Leirens case (Belgo-German court); ibid., II, 82, and others in the Recueil.
22 Recueil, I, 878.
23 In his article “Das deutsch-Belgische Gemischte Schiedsgericht und die ausserordent-lichen Massnahmen im Versailler Vertrag. (Der Fall Rymenans)”, Zeitschrift für Völkerrecht, Vol. XII, 1922 (quoted according to the reprint).
24 Loc. cit., pp. 4 and 5.
25 Isay, loc. cit., 20.
26 Cf. also Schuster, in British Year Book of International Law, I, 1920-21, I, 181 Google Scholar; the pamphlet of Isay, Der Begriff der ausserordentlichen Massnahmen im Friedensvertrage von Versailles, 1922 (published prior to the Rymenans decision), where the Huret and Dutreil cases are discussed; also Partsch, in Mitteilungen der Deutschen Gesellschaft für Völkerrecht, 1922 (good); Gidel-Barrault, Le traité de Paix avec l’Allemagne, 1921, pp. 24 ff., is incorrect.
27 For the important question, whether Yugoslavia is a new state, see my book (cited in the beginning of this article) Zuständigkeit, etc., pp. 38-48.
28 Recueil, II, 203.
29 Recueil, I, 43.
30 Cf. Meurer, Das Friedensrecht der Haager Konferenz, I, 350 ff., 363, 366; Holls, The Peace Conference at the Hague, 1914, p. 286 ff.; Nippold, Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten, 1907, p. 347 ff.
31 Meurer, op. cit. Holls was correct in saying: “Nothing is settled until it is settled right.” Meurer, p. 371, also speaks about the indispensability of the institutions.
32 De Martens had made a motion for its deletion in 1907. Cf. Lémonon, La seconde Con férence de la Paix, 1912, p. 181; Higgins, The Hague Peace Conferences, 1909, p. 177.
33 It is really natural, in view of the dispositive nature of international law, be it unwritten or written law, that the parties should have the right to agree formally, prior to the sentence or after it, on a revision thereof.
34 Barbosa in the Second Peace Conference. Actes et Documents, II, 367.
35 Cf. Recueil, I, 376-77 (Chamant); 387 (Heim).
36 Recueil, I, 769.
37 Weiss, , Revue générale de droit international public, XVII, 1910, pp. 122–123 Google Scholar, is excellent. Can an arbitral judge who considers a decision to be rendered by his colleagues as void, refuse his cooperation and thereby prevent the decision from going into effect? I should say yes. Cf. the Betsey case, Politis-Lapradelle, , Recueil des arbitrages internationaux, I, 1905, pp. 64, 65.Google Scholar
38 Das europäische Völkerrecht der Gegenwart, 8th ed., 1888.
39 Cases such as invalidity of the compromis, absolute incompetence or dishonesty of the arbitrator, etc., which are no longer of any interest, precede.
40 Droit international théorique et pratique, III, 5e éd., 1896, p. 485; Pierantoni, “La nullité d’un arbitrage international,” Revue de droit international et de législation comparée, 1898, p. 445 ff.
41 See also Nys, , “La révision de la sentence arbitrale,” in Revue de Droit international et de Législation comparée, 2• série, XII, 1910, p. 600 ff.Google Scholar; Fiore, , Revue générale de droit international public, XVII, 1910, pp. 240 Google Scholar, 248.
42 Art. 26: “The arbitral award is void in case the compromis is void, or in case of excessive exercise of power, or of corruption proved with regard to one of the judges.” On the deliberations see especially Nys, loc. cit., pp. 607 ff.
43 Mérignhac, , Traité de droit public international, I, 1905, p. 539 Google Scholar, rightly says: “We find that with regard to cases of nullity of the arbitral award, the Peace Conference left things entirely as they were before. Consequently jurists will continue to teach that in certain cases, which must be determined, an arbitral award is evidently null, and the states will continue to refuse to accept this award or create a manner of exceptional recourse to pass judgment on nullity, as in the case of the United States and Mexico in 1897.”
44 Weiss, , “L’arbitrage de 1909 entre la Bolivie et le Pérou.” Revue générale de droit international public, XVII, 1910, p. 118 Google Scholar.
45 Moore,, International Arbitrations, I, 1898, p. 137 Google Scholar.
46 Moore, loc. cit., 138. On the further negotiations which ended in 1842 with a treaty, see Moore, 139 ff.; Lapradelle-Politis, , Recueil des Arbitrages internationaux, I, 1905, 388 Google Scholar ff.
47 P. 391.
48 P. 398.
49 Cf. Weiss, in the Revue générale de droit international public, XVII (1910), p. 105 Google Scholar ff.
50 Cf. Moore, , Arbitrations, II, 1749 ff.Google Scholar, especially p. 1800.
51 Cf. Lammasch, Die Rechtskraft internationaler Schiedssprüche, 1913, p. 192 ff.; Scelle, , in Revue générale de droit international public, XVIII, 1911, p. 164 ff.Google Scholar; Nys, loc. cit.; Nippold, in Das Werk vom Haag, II. Serie, I. Band, III. Teil, 1914, p. 5 ffGoogle Scholar. Lammasch, 170.
52 Lammasch, p. 171 ff.
53 Cf. the following passage from the agreement for arbitration between the United States of America and Venezuela, which was made as the result of the rejection by the United States of an award of the Umpire Barge, partly because of excessive exercise of jurisdiction and essential error: “. ... in conséquence of this situation, William I. Buchanan and Doctor Francisco Gonzales Guinan, in the spirit that has marked their conferences, have agreed to submit this case to the elevated criterion of the arbitral tribunal created by this protocol, in the following form: The arbitral tribunal shall first decide whether the decision of Umpire Barge, in this case, in view of all the circumstances and under the principles of international law, is not void, and whether it must be considered so conclusive as to preclude a reëxamination of the case on its merits. If the arbitral tribunal decides that said decision must be considered final, the case will be considered by the United States of America as closed; but on the other hand, if the arbitral tribunal decides that said decision of Umpire Barge should not be considered as final, said arbitral tribunal shall then hear, examine and determine the case and render its decision on the merits.”
