THE TREATY.

The government of the Saar Basin is provided for in Chapter II of an annex referred to in article 46. It will be intrusted to a governing commission of five members, chosen by the council of the league of nations, to include a citizen of France, a native of the Saar Basin who is not a citizen of France, and three members belonging to three countries other than France or Germany, appointed annually. One of the five will be designated as chairman, and he will act as the executive.

The commission shall have all the powers hitherto belonging to the German Empire, Prussia, and Bavaria in such region and shall be charged with the protection abroad of the interests of the inhabitants. Nevertheless, it is declared the existing nationality of the inhabitants remains unaffected, unless they choose to acquire a different nationality.

The inhabitants may elect local assemblies, every inhabitant over the age of 20 years having the right to vote, without distinction of sex. Such inhabitants as may desire to leave the territory may do so without restriction as to property.

The governing commission is supreme in interpreting the scheme under which it is instituted, the decisions to be taken by majority.

Article 47. The ultimate fate of the Saar Basin is here dealt with by reference to Chapter III of an annex. In this chapter it is set out that at the termination of a period of 15 years the population of the Saar Basin may have a plebiscite, the vote to be taken by communes or districts on the three following propositions: (a) Maintenance of the régime of the governing commission; (b) union with France; (c) union with Germany.

All persons, without distinction of sex, more than 20 years of age resident in the territory at the date of the signature of the present treaty will have the right to vote. Other conditions may be made by the league of nations. The league shall decide on the ultimate Sovereignty, taking into account the wishes of the inhabitants thus expressed. If the league decides in favor of Germany in whole or in part, the rights of France shall be repurchased in gold, the price to be fixed by a commission of three, one of whom shall be nominated by France, the second by Germany, and the third by the league of nations, who shall be neither a Frenchman nor a German. The league of nations will take all decisions by majority.

Article 48. This deals with the fixing of boundaries of the Saar Basin.

Article 49. Germany renounces in favor of the league of nations, in the capacity of trustee, the government of the territory defined above.

THE LAW.

What, it may be asked, is the political status of German nationals under the governing commission? Their nationality is said to be unaffected, yet nationality implies allegiance, and allegiance involves the right and duty of protection. (Hershey, Essentials of Pub. Int. Law, p. 236.) The protection of German nationals is given over to the governing commission. Germany may not exert herself anywhere in their behalf. No hindrance is placed in their way against departing from the country or acquiring a new nationality; in fact, these clauses, including ample safeguards with respect to their private property, are of customary liberality.

The inhabitants may elect local assemblies, but it is nowhere set out what the degree of influence such assemblies will have in the ordering of the domestic

concerns.

It is not quite plain why the "repurchase" of the Saar Basin by Germany should have been made contingent upon a plebiscite. The population is overwhelmingly German, and since the qualified voters are those only over 20 years of age who were "resident in the territory at the date of the signature of the present treaty," that is, June 28, 1919, no amount of colonization by France can overcome that fact.

The question arises, however, may those who have meantime removed from the Saar Basin back to Germany enjoy the privileges of taking part in the plebiscite? They would seem to be qualified if more than 20 years of age, since the provision designates "all persons," etc., yet it is not clear.

The league shall decide, "taking into account the wishes of the inhabitants as expressed by the voting," with respect to the final disposition of the territory. There is no obligation to respect the results of the plebiscite; it is merely to be taken into account along with other things.

Nothing is said of the rights of German labor. France, as the one big employer in the territory, dominating practically every business and enterprise, is free wholly to substitute French for German labor, through which the entire German population might be compelled to emigrate. In such a contingency it might then become important to settle whether absentees, who were resident in the Saar Basin in 1919, had the right to take part in the plebiscite.

A unique question of sovereignty arises from this article. It is stated that Germany renounces in favor of the league of nations as trustee only the government of the Saar Basin, and it is contemplated that German sovereignty subsists, since provision is made for "renunciation of sovereignty or cession" by Germany ultimately, in the event the league of nations decides to award the whole or a part of the territory to France. Yet the political or governmental authority over a territory is the very essence of sovereignty, and by the provisions of Chapters II and III this authority, inter

nal as well as external, is vested in the governing commission. It is even charged with the protection abroad of German nationals, inhabitants of the territories. It may thus be contended that Germany has parted with sovereignty over the Saar Basin. If such a condition as the suspension of sovereignty is a legal possibility it may be that such occurs in the Saar Basin. (1 Moore, pp. 252-254.)

In whatever terms the treaty seeks to describe the transaction, however, it appears to be a simple case of disguised cession, or all fours with the so-called leased territory of the European powers and Japan in China, the restoration of such territories depending upon certain and uncertain contingencies. The Saar Basin case differs, of course, in the fact that a third state, and not the cessionary is given exclusive rights of exploitation. (1 Westlake, 133-139; Hershey, pp. 184, 185.)

The high contracting parties recognizing the moral obligation to redress the wrong done by Germany in 1871 both to the rights of France and to the wishes of the population of Alsace-Lorraine, which were separated from their country in spite of the solemn protest of their representatives at the assembly of Bordeaux agree upon the following articles:

Article 51. The territories of Alsace and Lorraine are retroceded to France.

Article 53. The political status of the inhabitants of Alsace-Lorraine is fixed in this article by reference to an annex which makes the following decisions:

As from November 11, 1918, the following persons are ipso facto reinstated in French nationality:

(1) Persons who lost French nationality under the treaty of 1871 and acquired German nationality.

(2) The legitimate descendants of those referred to above, except those whose ascendants in the paternal line include a German who emigrated into AlsaceLorraine after July 15, 1870.

(3) All persons born in Alsace-Lorraine of unknown parents or whose nationality is unknown.

As set out in the preamble the taking of AlsaceLorraine by Germany in 1871, constituted a moral not a legal wrong; that is to say, title to the territory of another State founded in conquest is quite as legal and unimpeachable as if founded upon voluntary cession. It is a principle that violates our modern sense of justice but it is nevertheless a settled one.

It is to the credit of the high contracting parties that they recognized the moral obligation to redress this wrong both to the rights of France as sovereign over the territory and to the wishes of the people. If this measure were applied universally the moral principle would thereby attain the position of a legal one, since the basis of all law is universal acquiescence or assent. The high contracting parties have not only failed to seize the opportunity to legalize the principle against conquest and the rights of peoples to choose their own way of obedience by the universal application of these principles, but they have destroyed and nullified the force of this instance of its application in settlements which repudiate these principles (see Part IV, sec. 8, art. 156-158); nor is any intimation given in the treaty that existing instances of the subjection of peoples to alien governments against the will of such peoples constitutes a moral wrong. (See sec. 6, art. 147.)

It will be observed that the treaty here attempts to determine the French nationality of the inhabitants without in any way consulting their wishes. It institutes three broad classes of persons whose nationality is changed arbitrarily. Those in the classes have nothing to say in the matter.

The first class "reinstated" in French nationality includes all those who, upon the cession of AlsaceLorraine to Germany in 1871, declined to avail themselves of the right to opt for French nationality under Article II of the treaty of Frankfort, but chose to remain and acquire German nationality.

It is conceivable that many of this class are satisfied with their acquired German nationality and are thus involuntarily transferred to a new allegiance.

And so in the second class, the descendants of the first class, it is probable that many will not willingly renounce their German allegiance.

THE TREATY.

THE LAW.

The annex also sets out the following classes as eligible to opt for French nationality:

(1) All persons whose ascendants include a Frenchman or a French woman who failed to opt for French nationality in 1871.

(2) All foreigners, not German nationals, who became citizens of Alsace-Lorraine prior to August 3,

1914.

(3) All Germans domiciled in Alsace-Lorraine since July 15, 1870, or who had an ascendant so domiciled. (4) All Germans, domiciled or born in AlsaceLorraine, who served in the allied or associated armies. (5) All persons born in Alsace-Lorraine before May 10, 1870, of foreign parents and the descendants of such persons.

(6) The husband or wife of any person whose French nationality may have been restored in the three classes referred to above, or who may have claimed and obtained French nationality in accordance with the preceding provisions.

Subject to the above exceptions no Germans born or domiciled in Alsace-Lorraine shall acquire French nationality, even though they are citizens of AlsaceLorraine, except by the normal process of naturalization, on condition of having been domiciled from a date previous to August 3, 1914, and of submitting proof of three years unbroken residence.

France will be solely responsible for their diplomatic and consular protection from the date of application for naturalization.

These persons are denied the right to opt for German nationality.

The rule that the nationality of the wife and chil dren follow that of the husband and father is apparently ignored. The anomalous situation is thus made. possible that a French national, residing in French territory, may have a wife who is an alien to him and to her own children.

The treaty, while arbitrarily restricting the right of option to limited classes and to a particular nationality (French) does not attempt to set aside the principle of naturalization.

The practice of enlightened states, which may be said to conform to the law in respect of protection abroad of declarant aliens, is that such protection is asserted to the full extent in countries other than those of origin. As against their native countries no such rights are claimed in view of the continuing allegiance of such declarants up to the moment of complete acquirement of a new nationality. The rule rests upon a sound and logical foundation. (3 Moore, pp. 893, 895.)

However, France proposes to override it as against Germany, in behalf of German nationals who have declared their intention to become French citizens. It is safe to say that the position can only be maintained by a stronger as against a weaker state.

Considering the nationality provisions generally with respect to Alsace-Lorraine, it will be seen that a plebiscite has not been considered, although Germans may predominate in the territories; nor is option freely granted. Large classes of persons are made French citizens by the fiat of the treaty and other restricted classes are declared eligible to claim French citizenship. None is declared capable of choosing any other nationality. Those in whom German nationality continues are marked out by the treaty with equal definiteness.

The utter absence of observance of the doctrines of plebiscite and option, and of uniformity in dealing with like situations, may be seen by comparison with articles 36-37, whereby German nationals resident in the territories ceded to Belgium acquire Belgian nationality ipso facto and lose their German nationality; however, within two years German nationals there may opt for German nationality.

THE TREATY.

Article 55. This deals with the public debt of Alsace-Lorraine by reference to article 255, Part IX, of the treaty, which sets out that since Germany refused to assume any of the public debt of AlsaceLorraine in 1871 France shall receive the territories free and quit of all public debts, nor shall any credit be given for same on the reparation account.

Article 56. In conformity with the provisions of article 256, Part IX, France shall enter into possession of all property and estate in the territories belonging to the German Empire, the German States, as well as the Crown property and the private property of the former German Emperor and other German sovereigns, without any payment or credit on account of

same.

Article 58. Provision is made for "repayment in marks of the exceptional war expenditure advanced during the course of the war by Alsace-Lorraine, or by public bodies in Alsace-Lorraine on account of the Empire in accordance with German law, such as payment to the families of persons mobilized, requisitions, billeting of troops, and assistance to persons who have been evacuated."

Article 59. France will collect on its own account Imperial taxes of every kind leviable and not collected at the time of the armistice, November 11, 1918.

Article 60. Germany shall restore without delay to Alsace-Lorrainers all property, rights, and interests belonging to them on November 11, 1918, situated in German territory.

Article 62. Germany undertakes to bear the expense of all military and civil pensions earned in Alsace-Lorraine on November 11, 1918, and to pay annually the sums to which persons resident in AlsaceLorraine would have been entitled under German rule.

Article 63. Germany's liability for injury and damage is declared by reference to Part VIII (reparation) as follows:

The allied and associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the allied and associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.

The allied and associated Governments require and Germany undertakes to make compensation for all damage done to the civilian population of the allied and associated Governments and to their property during the period of the belligerency of each by such aggression by land, by sea, and from the air, and, in general, all damage as defined in Annex I, hereto.

THE LAW.

In principle, therefore, there is no difference between the conquest and the reconquest, so far as the conduct of the victors is concerned. Each takes all it can get over and above the reparation account.

See comment, article 39.

Thus France not only does not assume any portion of the German debt in connection with Alsace-Lorraine, but there is to be repaid the sums AlsaceLorraine, in common with all parts of the Empire, was called on to expend as indicated.

Damages have been calculated on the premise that, since Germany was the aggressor, she precipitated and carried on an unlawful war, and should therefore be responsible for all damage of whatsoever kind, whether resulting from the operations of herself and her allies or from the measures of the allied and associated Governments. While it is within the power of a successful belligerent to impose any terms he wishes, the law of nations nowhere makes any distinction between a just and an unjust war, nor between a lawful and an unlawful war. In view of the law, since each sovereign nation may alone determine the demands of its welfare and interest, it is the right of each to determine when its exigencies require a resort to war. Since 1899 (The Hague, convention No. 4) a distinction has been made between a war lawfully declared and one not thus declared.

From a moral standpoint a war may be unjust and unrighteous, as that precipitated by Germany unquestionably was, but it can not be unlawful, since it is the supreme and final appeal of all States in the protection of their well-being.

It has been argued, and not without force, that by reason of the obligations assumed by Germany toward Belgium under the treaty of neutralization of April 19, 1839, it became legally impossible for Germany to

THE LAW.

carry on war against Belgium; and that Germany may not therefore claim the benefits of the laws of war ordinarily obtaining; that is to say, in the case of Belgium, Germany is not entitled to deny responsibility for such destruction, fines, contributions, requisitions, and other warlike acts as are within the compass of the lawful rights of belligerents.

Taking into consideration this exception, there is no principle of public international law that enlarges the legal responsibility of one of the belligerents because it was the aggressor. In fact, it is generally impossible to determine with accuracy whether or not a particular State was or was not the aggressor. It is clear in the Franco-Prussian War of 1870-71, in the Anglo-Boer War of 1900, and in the Turco-Italian War of 1912, but no one has yet determined whether Russia or Japan was the aggressor in 1904. (See the Peace Problem (1916) John Bassett Moore.)

In order to avoid as far as possible the evils of society, it is agreed, says Vattel, to regard every lawfully declared war as just on both sides. (Halleck, International Law, 4th ed., vol. 1, p. 571.)

This statement of the law has undergone no change up to the present. Out of this view has necessarily sprung the law of neutrality.

War brings into operation a great variety of laws defining rights and duties of belligerents and neutrals, and among its rights accruing to a belligerent is that to inflict any damage upon his enemy, which has a military object. There are certain specific limitations upon a belligerent's means of injuring his enemy, both at sea and on land, designed to prohibit needless and wanton injury and damage. However, it may be asserted as a general principle of the laws of war that all damage and injury inflicted in pursuit of military object are lawful. (Lawrence, 4th ed., sec. 206, p. 549; Spaight, 112.)

Civilians are under the protection of the laws of war, but their immunity from direct and intentional injury is dependent upon peaceable and nonhostile conduct. It is one of the marked moral achievements of the last century that the great divisions of populations of belligerent States into combatants and noncombatants, with definite law regulating their rights and duties, have been made.

Whence, civilians, taking no part in hostilities, may not lawfully be made the object of direct injury. Nevertheless, their injury or killing, as a mere incident to the carrying out of a lawful military operation involves no responsibility. For example, enemy munition plants are lawful objects of attack. If in such attacks death should ensue to all of the employees, men, women, and children, no liability whatever would rest upon the government of the attacking force. So, too, the incidental deaths of civilians in cases of bombardment of defended towns, villages, buildings, and places involve no liability. (Holland, p. 30; Spaight, pp. 174-180.)

It has never been settled what constitutes a "defended" place, but it has been contended by eminent authority (Westlake, Collected Papers) that the presence of a single soldier or company of soldiers might