PART XII.

PORTS, WATERWAYS AND RAILWAYS.

Notes to Part XII, Articles 321 to 386

The treaty restoring friendly relations between the United States and Germany signed at Berlin, August 25, 1921 and in force on November 11, 1921 with retroactive effect to July 2, 1921, stipulates that "Germany undertakes to accord to the United States and the United States shall have and enjoy. . . all the rights and advantages" stipulated for its benefit by this part of this treaty, "notwithstanding the fact that such treaty has not been ratified by the United States". The rights and advantages of nationals of the United States specified in the joint resolution of Congress, approved July 2, 1921 (p. 18) were specifically mentioned in an understanding included in the Senate's resolution of advice and consent to ratification of October 18, 1921. The Senate in that resolution made a further condition "that the United States shall not be represented or participate in any body, agency or commission, nor shall any person represent the United States as a member of any body, agency or commission in which the United States is authorized to participate by this Treaty, unless and until an Act of the Congress of the United States shall provide for such representation or participation."

This part is, ipsissimis verbis, an annex, technically a schedule, of the treaty restoring friendly relations as printed by the Department of State in Treaty Series 658, but not as printed in 42 Stat. 1939.

SECTION I.-General Provisions.

ARTICLE 321.

Germany undertakes to grant freedom of transit through her territories on the routes most convenient for international transit, either by rail, navigable waterway, or canal, to persons, goods, vessels, carriages, wagons and mails coming from or going to the territories of any of the Allied and Associated Powers (whether contiguous or not); for this purpose the crossing of territorial waters shall be allowed. Such persons, goods, vessels, carriages, wagons and mails shall not be subjected to any transit duty or to any undue delays or restrictions, and shall be entitled in Germany

to national treatment as regards charges, facilities, and all other |

matters.

Goods in transit shall be exempt from all Customs or other similar duties.

All charges imposed on transport in transit shall be reasonable, having regard to the conditions of the traffic. No charge, facility or restriction shall depend directly or indirectly on the ownership or on the nationality of the ship or other means of transport on which any part of the through journey has been, or is to be, accomplished.

ARTICLE 322.

Germany undertakes neither to impose nor to maintain any control over transmigration traffic through her territories beyond measures necessary to ensure that passengers are bonâ fide in transit; nor to allow any shipping company or any other private body, corporation or person interested in the traffic to take any part whatever in, or to exercise any direct or indirect influence over, any administrative service that may be necessary for this purpose.

Note to XII, 321-322

The note of the Supreme Council dated May 5, 1921 found Germany in default as regarded fulfilment of articles 321-22, and the German Government on May 11 stated its resolve to execute the unfulfilled portions of the treaty.

ARTICLE 323.

Germany undertakes to make no discrimination or preference, direct or indirect, in the duties, charges and prohibitions relating to importations into or exportations from her territories, or, subject to the special engagements contained in the present Treaty, in the charges and conditions of transport of goods or persons entering or leaving her territories, based on the frontier crossed; or on the kind, ownership or flag of the means of transport (including aircraft) employed; or on the original or immediate place of departure of the vessel, wagon or aircraft or other means of transport employed, or its ultimate or intermediate destination; or on the route of or places of trans-shipment on the journey; or on whether any port through which the goods are imported or exported is a German port or a port belonging to any foreign country or on whether the goods are imported or exported by sea, by land or by air.

1

Germany particularly undertakes not to establish against the ports and vessels of any of the Allied and Associated Powers any surtax or any direct or indirect bounty for export or import by German ports or vessels, or by those of another Power, for example by means of combined tariffs. She further undertakes that persons or goods passing through a port or using a vessel of any of the Allied and Associated Powers shall not be subjected to any formality or delay whatever to which such persons or goods would not be subjected if they passed through a German port or a port of any other Power, or used a German vessel or a vessel of any other Power.

Note to XII, 323

For the inapplication of articles 325-26 to Siam, see note under article 137.

In virtue of this article and article 267 the Conference of Ambassadors on August 12, 1921 called on Germany to modify its law of August 8, 1917.

See also article 268.

ARTICLE 324.

All necessary administrative and technical measures shall be taken o shorten, as much as possible, the transmission of goods across the German frontiers and to ensure their forwarding and transport from such frontiers, irrespective of whether such goods are coming from or going to the territories of the Allied and Associated Powers or are in transit from or to those territories, under the same material conditions in such matters as rapidity of carriage and care en route as are enjoyed by other goods of the same kind carried on German territory under similar conditions of transport.

In particular, the transport of perishable goods shall be promptly and regularly carried out, and the customs formalities shall be effected in such a way as to allow the goods to be carried straight through by trains which make connection.

ARTICLE 325.

The seaports of the Allied and Associated Powers are entitled to all favours and to all reduced tariffs granted on German railways or navigable waterways for the benefit of German ports or of any port of another Power.

Text of May 7:

Germany undertakes not to take any measures the effect of which would be to divert traffic of any kind from its normal itinerary for the benefit of her own transport routes.

ARTICLE 326.

Germany may not refuse to participate in the tariffs or combinations of tariffs intended to secure for ports of any of the Allied and Associated Powers advantages similar to those granted by Germany to her own ports or the ports of any other Power.

Text of May 7:

The seaports of the Allied and Associated Powers are entitled to all favours and to all reduced tariffs granted on German railways or navigable waterways for the benefit of German ports or of any port of another Power.

Germany may not refuse to participate in the tariffs or combinations of tariffs intended to secure for ports of any of the Allied and Associated Powers advantages similar to those granted by Germany to her own ports or the ports of any other Power.

Note to XII, sec. II

SECTION II.-Navigation.

The German delegation complained that "the German rivers, together with all streams and canals connected therewith, are to be administered by International Commissions on which Germany never has the majority" and the scope of the powers of which were not defined. The commissions would in fact exercise unlimited economic power over German rivers, canals, and, indirectly, over German railways. This would have a decisive influence on the internal regulation of Germany's whole economic life incompatible with its sovereignty (e.g. Germany would have to build canals against its wishes), and was unacceptable. Germany was willing, however, to revise existing conventions to meet new needs and to open up German rivers to the utmost extent to the traffic of all nations, subject to the principle that only the riparian states should participate in the administration.

As to the Elbe, Germany was ready to consider the requirements of Czechoslovakia; as regards the Rhine, the existing Central Commission was adequate but Germany was willing to accept suggestions for improvement; in the case of the Danube, Germany demanded immediate representation on the commission; for the Oder, a purely German river, no commission was necessary; as regards the Vistula and the Niemen, negotiations would be accepted with Poland and the

Note to XII, sec. II—Continued

riparian states respectively. Germany was not willing, however, without more detailed negotiations, to agree to place the port of Kehl under French administration located at Strasbourg, or to accept the stipulations concerning the Rhine bridges and waterworks. Germany was prepared to negotiate a treaty with Czechoslovakia for the use of Hamburg and Stettin. The division of river tonnage between the interested states could also be arranged by negotiations. The Kiel Canal could be opened to the traffic of all nations, under conditions of reciprocity, although the international commission could be accepted only if other straits were similarly treated (Foreign Relations, The Paris Peace Conference, vi, 869).

The reply of the Allies noted that Germany admitted the proposed measures to be practicable but opposed them on principle-infringement of sovereignty and lack of reciprocity. The Allies pointed out that article 23 (e) of the Covenant of the League of Nations provided for "freedom of communications and of transit, and equitable treatment for the commerce of all members of the League" (ibid., p. 992), and part XII of the treaty was intended to secure these on the territory of Germany. Reciprocity was not possible immediately, lest Germany "profit indirectly from the material devastation and the economic ruin" for which the German armies were responsible. The Allies had not attempted to prevent the "legitimate" but only the "abusive" use of German economic independence; but above all they had aimed at securing freedom of communications and transit to or from young land-locked states, which would otherwise "fall once again under the economic tutelage of Germany". The various provisions for the benefit of Czechoslovakia were justified in detail, as well as those concerning the Rhine-Meuse canal, the Rhine-Danube waterway to be constructed, and the Kiel Canal. As regards French control of water power on the Rhine, France was prepared to pay Germany one half the value of the power produced, less the cost of the works. Five small concessions were made to Germany.

The provisions of this section of the treaty were applied according to their terms, with implementation, until the German Government in 1936 unilaterally withdrew from existing arrangements affecting international river systems.

On November 14, 1936, the German Government transmitted to the Governments of Belgium, Bulgaria, Denmark, France, Greece, the United Kingdom, Italy, Yugoslavia, the Netherlands, Austria, Poland, Rumania, Sweden, Switzerland, Czechoslovakia, and Hungary a notification (file 862.811/63) "that it no longer recognizes