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JUDICIAL DECISIONS INVOLVING QUESTIONS OF INTERNATIONAL LAW IN THE MATTER OF THE CESSIONS BY GERMANY TO FRANCE UNDER ARTICLE 357 OF THE TREATY OF VERSAILLES Walker D. Hines, Arbitrator Decided, Paris, January 8, 1921 Article 3571 of the Treaty of Versailles provides that Germany shall cede to France certain property pertaining to the navigation on the Rhine, and provides that the amount and specifications of such cessions shall be determined by an arbitrator or arbitrators appointed by the United States of America. The undersigned, Walker D. Hines, has been appointed accordingly as the Arbitrator for the purposes of Article 357, and hereby makes his determination as to the amount and specifications of such cessions. The French Government and the German Government, respectively, have designated delegates to appear before the Arbitrator, and he has received and considered the various notes presented by the respective delegates, and has also had numerous conferences with these delegates in Paris, at various places on the Rhine, and at Rotterdam. 1 The complete text of Article 357 follows: Within a maximum period of three months from the date on which notification shall be given Germany shall cede to France tugs and vessels, from among those remaining registered in German Rhine ports after the deduction of those surrendered by way of restitution or reparation, or shares in German Rhine navigation companies. When vessels and tugs are ceded, such vessels and tugs, together with their fittings and gear, shall be in good state of repair, shall be in condition to carry on commercial traffic on the Rhine, and shall be selected from among those most recently built. The same procedure shall be followed in the matter of the cession by Germany to France of: (1) the installations, berthing and anchorage accommodation, platforms, docks, warehouses, plant, etc., which German subjects or German companies owned on August 1, 1914, in the port of Rotterdam, and (2) the shares or interest which Germany or German nationals possessed in such installations at the same date. The amount and specifications of such cessions shall be determined within one year of the present treaty by an arbitrator or arbitrators appointed by the United States of America, due regard being had to the legitimate needs of the parties concerned. The cessions provided for in the present article shall entail a credit of which the total amount, settled in a lump sum by the arbitrator or arbitrators mentioned above, shall not in any case exceed the value of the capital expended in the initial establishment of the ceded material and installations, and shall be set off against the total sums due from Germany; in consequence, the indemnification of the proprietors shall be a matter for Germany to deal with. TUGS AND VESSELS Article 357 requires, among other things, that Germany shall cede to France tugs and vessels, together with their fittings and gear, in good state of repair, in condition to carry on commercial traffic on the Rhine, and selected from among those most recently built; and that the amount and specifications of such cessions shall be determined with due regard to the legitimate needs of the parties concerned. THE TRAFFIC TO BE CONSIDERED IN ESTIMATING THE LEGITIMATE NEEDS OF THE TWO COUNTRIES Both France and Germany adopt the traffic on the Rhine for the year 1913 as the basis for estimating the legitimate needs of the two countries. France, however, claims that this should be augmented by certain additional French traffic, while Germany claims that the traffic of 1913 should be regarded as the exclusive and final basis, and indeed suggests that even the year 1913 gives an exaggerated idea as to the relative importance of the French traffic. The two parties agree that the Rhine traffic for 1913 is as shown in Appendix I. They also agree that all the classes of that traffic to or from Alsace have relation to the legitimate needs of France, except traffic going to or coming from Switzerland or Italy and transshipped to or from railroad in Alsace, which traffic France claims should be considered, and Germany claims should not be considered. They also agree that certain 1913 traffic transshipped at Mannheim should be considered, to wit: traffic moving on the Rhine between the sea and Mannheim transshipped at that place to or from railroad for movement by rail between that place and Alsace-Lorraine or France. France claims and Germany denies that consideration should be given to the 1913 traffic consisting of coal moving from the Ruhr district down the Rhine to the sea and thence to French seaports, and the 1913 traffic consisting of ore moving from the French colonies by sea to the Rhine and thence to the Ruhr district. The amounts of traffic involved in these agreements and disagreements are shown in Appendix I. The additions to the traffic of 1913 which France claims and which Germany denies are the following: Reparation coal from the Ruhr district via the Rhine to the sea for movement by sea to France. A large additional coal traffic from the Ruhr district to Alsace for distribution in eastern and south-eastern France,—the new hinterland which, it is claimed, the Alsatian ports aoquire by virtue of the reincorporation of Alsace-Lorraine with France. A large additional movement of potash from Alsatian ports via the Rhine to the sea, by reason of the continuing development of the comparatively new potash mining industry in Alsace-Lorraine. An additional movement of oil by the Rhine from the sea to Alsace. The respective amounts of these claims for additions to the traffic of 1913 are also shown in Appendix I. ARBITRATOR'S CONCLUSIONS AS TO THE TRAFFIC TO BE CONSIDERED IN ESTIMATING LEGITIMATE NEEDS OF THE TWO COUNTRIES Germany contends that the 1913 Rhine traffic transshipped in Alsatian ports in going to or coming from Switzerland or Italy should be excluded from the traffic of the Alsatian ports for the reason that it has no relation to the legitimate needs of France. France contends that it is interested in all Rhine traffic to or from its Rhine ports, just as Germany is interested in all Rhine traffic to or from its Rhine ports, and that this principle is not changed by the fact that such traffic, before reaching a Rhine port comes from a foreign country, or after leaving a Rhine port goes to a foreign country. France also contends that the practical result of the exclusion from the Rhine traffic of the Alsatian ports of this traffic in transit to or from Switzerland or Italy would be to leave with Germany all the boats necessary to handle that traffic; or, in other words, such traffic would be thereby treated as a part of the legitimate needs of Germany. The Arbitrator's view is that each country has a legitimate need for boats to enable it to participate in the transportation of all traffic to or from its ports, and he, therefore, decides that the Rhine traffic transshipped in Alsatian ports and going to or coming from Switzerland or Italy should be considered the same as the other traffic to or from Alsatian ports in estimating the legitimate needs of France. Germany contends that the 1913 traffic in coal moving down the Rhine from the Ruhr district to the sea destined to French seaports, and the 1913 traffic in ore coming by the sea from the French colonies and moving from the sea up the Rhine to the Ruhr district should be excluded from the Rhine traffic having a relation to the legitimate needs of France on the Rhine. The Arbitrator can find nothing in Article 357 which excludes this traffic from consideration in determining the legitimate needs of France. Germany further argues that France could have participated in this traffic prior to the war, and that its failure to do so proves that this traffic is not a legitimate need of France. It is reasonable to conclude, however, that without a base on the Rhine (such as was, of course, enjoyed by Germany and Holland, and also for practical purposes by Belgium), it was not to be expected that France would participate in this traffic. The Arbitrator, therefore, decides that this traffic ought not to be excluded. France claims that there should be added to the 1913 Rhine traffic the reparation coal which may move from the Ruhr district by the Rhine to the sea for movement thence to French seaports. Germany denies this claim and insists that by virtue of Annex V of Part VIII of the Treaty of Versailles the obligation to transport this reparation coal to the seaport rests upon Germany, and hence that such transportation is not a legitimate need of France. France, however, insists that it has the right to perform this transportation by the Rhine from the Ruhr district to the sea to whatever extent it sees fit. France has made certain representations to this effect to the Reparation |