THE QUESTION AS TO THE LEGALITY OF THE

RUHR OCCUPATION

By ERNEST J. SCHUSTER, LL. D., K. C.

Of Lincoln's Inn, London

The question as to the legality of the Ruhr occupation is partly a question of fact and partly a question of law. It is common ground that the measures taken by the French and Belgian troops in the Ruhr valley could not have been authorized by the Treaty of Versailles if the Reparation Commission had not found as a fact that there had been "voluntary default" (manquement volontaire) on the part of Germany. The question as to whether or not such voluntary default had in fact taken place is not one of those which under Sec. 13 of Annex II to Part VIII of the treaty requires a decision to be taken by a unanimous vote, and as the decision on that point was actually taken by a majority of three to one, the discussion as to the legality of the measures taken in consequence of such decision must proceed on the footing that "voluntary default" on the part of Germany had been established to the satisfaction of the Reparation Commission. The fact that Sir John Bradbury, the British representative on the Commission, gave an adverse vote cannot, however, be left out of consideration, as it proves that at least one eminent expert who, as the representative of his country, was bound to do his best to secure the payment of reparations from Germany, was of opinion that no voluntary default on Germany's part had been proved. The doubt thus thrown on the fact on which the application of sanctions depended ought to have been an additional reason for the utmost care in the endeavor to apply only such sanctions as were clearly provided for by the Treaty of Peace. I propose to show in the following pages that if that care had been applied the occupation of the Ruhr valley would not have taken place.

The frequently discussed Sec. 18 of Annex II, by which the French and Belgian Governments,1 support their case runs as follows:

1 The fact that the Italian Government sent a few engineers who only remained a short time hardly justifies an allusion to the measures taken in the Ruhr as measures taken by France, Belgium and Italy. The Italian Government seems to have been under the impression that the occupation of the Ruhr would be nothing more than an "economic measure"; as soon as they became aware of the real nature of the occupation they withdrew. (See the letter of the Marquis de la Torretta to Lord Curzon, dated August 2, 1923, p. 47, Correspondence with Allied Governments respecting Reparation Payments, where it is stated that the Italian Government have repeatedly and publicly asserted their views "against any further occupation of the Ruhr.")

The measures which the Allied and Associated Powers shall have the right to take, in case of voluntary default by Germany, and which Germany agrees not to regard as acts of war, may include economic and financial prohibitions and reprisals and in general such other measures as the respective Governments may determine to be necessary in the circumstances.

The main controversy turns upon two questions, namely: (1) Must the measures to be taken in case of voluntary default be determined on by the aggrieved Powers jointly, or may any aggrieved Power act independently of the others? (2) Must the measures to be taken be similar in their nature to economic and financial prohibition and reprisals?

Before, however, dealing with these questions, it is necessary to consider the effect of the section which immediately precedes Sec. 18 and which makes it necessary for the Reparation Commission to inform the interested Powers of Germany's default, adding its proposals as to the measures which ought to be taken by reason of such default. This is not quite clearly expressed by the English version which declares that the Commission "may make such recommendations as to the action to be taken in case of default as it may think necessary," but the French version declares that the Reparation Commission must immediately communicate the default to each of the interested Powers "en y joignant toutes propositions qui lui paraîtront opportunes au sujet des mesures à prendre en raison de cette inexécution."

The fact that no proposals as regards the measures to be taken in consequence of the default in question were made by the Reparation Commission may appear to be of no importance, as the measures which were actually taken were in fact decided on by the Powers whose representatives formed the majority of the Reparation Commission, but-even apart from the consideration that the attitude of Italy in regard to military action makes such a claim untenable this view of the matter disregards an important fact. If the measures to be taken had been discussed by the Reparation Commission and the British view which disputed the legality of the Ruhr invasion had on that occasion been put forward, a question would have arisen as to the interpretation of the Treaty of Peace, which question, according to Sec. 13 (f) of the said annex, could only have been decided by the unanimous vote of the delegates.

I am aware of the fact that Sir John Bradbury expressed the opinion that the Commission had only a power to make recommendations and was not obliged to make them, but I do not see how any meaning can be given to the French version other than that proposals as to the measures to be taken must accompany the notification. In any case, Sir John Bradbury, while * The words "economic and financial" qualify the word "reprisals" no less than the word "prohibitions." The French text: "actes de prohibitions et de représailles économiques et financières" makes this quite clear.

* See Report of the work of the Reparation Commission from 1920 to 1922, p. 257.

referring to this subject, emphasizes the fact that the question as to the measures to be taken depended on the interpretation of Sec. 18 and states this is "a question of vital importance for the peace of Europe which could only be decided by the unanimous vote of the Commission." 4

It follows accordingly that, if the question of making recommendations had been discussed, the Commission would have had either to be unanimous as to the interpretation of paragraph 18, or there would have been a difference of opinion as to whether a recommendation (which would of necessity have implied an interpretation of that paragraph) could have been carried by a majority. In the latter case it would have been necessary to refer the matter to "immediate arbitration" before resorting to the measures in question, and in respect of this point alone the independent action of France and Belgium appears to be a violation of the Treaty of Peace; but quite apart from this, paragraph 18 does not, in my opinion, justify separate action on the part of one or more of the interested Powers.

According to the ordinary grammatical rules, a power given to several persons collectively without any further indication must be construed as exercisable by these persons and cannot be construed as exercisable by one or more of them alone. The section defines the measures "which the Allied and Associated Powers have the right to take." If these words stood alone there could be no doubt in the matter; the right of separate action is contended for on the mere ground that (within the limits laid down by the paragraph the extension of which will be discussed below), it is left to the "respective governments" to decide on these measures, but the use of the word "respective" is justified by the fact that the words quoted above refer to certain Powers while the words at the end of the paragraph refer to governments, that is to say, to the governments of the Powers which are referred to. The governments, like the Powers, are referred to in the plural without any distributive qualification, and their action, according to the literal meaning of the sentence, must therefore be collective action.

I do not, however, attach much importance to this interpretation of the section according to the strict rules of grammar. The treaty must be construed so as not to defeat any of the objects which it was intended to carry out, and if the literal interpretation of the paragraph made its application unworkable I should willingly admit that the construction contended for by supporters of the legality of the French-Belgian action ought to be applied; but I think that, on the contrary, the paragraph, not only according to its words, but also according to its clear implication, contemplates joint action. The "circumstances" necessitating action in the event of "voluntary default" on the part of Germany are circumstances affecting all the Powers entitled to reparations, and it is upon these circumstances that the choice of the measures of execution is to depend. If it were left to each of the Powers to select such measures of execution as would suit its Loc. cit., p. 257.

own purposes, these measures of execution might conflict with one another, or neutralize one another. Even if one or two of the Powers act alone, the interests of the other Powers may be seriously injured by the fact that the measures actually taken disturb to such an extent the working of German industry and commerce that the possibility of obtaining adequate reparations is seriously diminished instead of being increased. If the governments concerned in the matter have to decide collectively on the measures of execution required in the case of "voluntary default" on the part of Germany, care will be taken that the interests of all the Powers and more particularly their rights as to reparations are safeguarded.

The objections to isolated action against an enemy Power on the part of one of the Allied and Associated Powers are very clearly put forward in the note of the Supreme Council dated 23 August, 1919, having reference to the seizure of Hungarian property on the part of Roumania. The following passage is specially significant:

Le Gouvernement roumain en raison de sa participation dans les travaux de la Conférence de la Paix et comme un des signataires du traité de paix avec l'Allemagne, ne devrait cependant pas ignorer le soin qu'ont apporté les Puissances alliées et associées à établir un plan rationnel de réparations. Si le principe que le dédommagement pour les pertes subies avait dû dépendre seulement de facteurs tels que la proximité des biens ennemis ou du résultat d'une concurrence entre les Etats alliées pour se rendre maîtres de ces biens, des injustices flagrantes et des désaccords sérieux en auraient été le résultat inévitable."

One of the arguments used by the politicians and the jurists who argue in favor of the power of isolated action on the part of one or several of the Allied and Associated Powers relies on the fact that the obstructive opposition of one of the Powers might prevent measures of enforcement which are called for in the circumstances of the case. This argument may be met by the obvious retort that in the case of such obstructive opposition the Reparation Commission as such could clearly step in and dispose of the matter by a majority vote unless a difference of opinion as to the interpretation of the Treaty is disclosed, in which case speedy arbitration would, as mentioned above, have to be resorted to.

It is argued that the British Government is "estopped" from supporting the contention denying the right of one or more of the Powers to independent action on the ground that Great Britain "was the first of the Allies to claim and exercise the right of separate action under Sec. 18." The action of the British Government thus referred to is also mentioned very prominently in an article which appeared in the Temps on the 10th March, 1923. The claim to act independently was no doubt made by Mr. Austen Chamberlain in the British House of Commons on the 28th October, 1920, in reply to some objection against the renunciation of the right to seize property

5 The italics are the writer's.