Unfortunately, it is practically impossible to carry out the regulations except " in spirit." Barrage fire from the ground prevents hostile aircraft from descending near enough to the spot bombarded to distinguish the particular object it is intended to damage or destroy. The same difficulty applies to long-range guns. Thus, a whole town becomes de facto exposed to t^he con- sequences of there being in its midst, or alongside it, any military store, a garrison, an army staff, or legitimate object of attack. 1 8. Private Properly. It is an unchallenged principle of inter- national law that enemy private property should be respected. This principle was corroborated in the Hague Regulations respecting the Laws and Customs of War on Land of 1899 and 1907, even as regards occupied territory. " Private property," says Article 46 of these regulations, " cannot be confiscated." This principle was violated by all the belligerents, not only during the war but also in the Peace Treaty.
A few months after the outbreak of the war (see Trading with the Enemy Amendment Act of Nov. 27 1914) the Public Trustee in Great Britain was appointed custodian of enemy property. His duty was to hold all property placed in his cus- tody until the end of the war for the benefit of its owner, sub- ject to similar treatment of British property in enemy countries. An Act of Jan. 27 1916 extended these powers to those of " prohibition " and " liquidation." The Public Trustee there- fore proceeded to wind up German companies and sell German property by auction, with lavish profusion. In France the first measures taken were also purely for the purpose of preservation. Sequestrators were appointed under the supervision of the judi- cial authorities. The German treatment of enemy property was at first the most liberal of all, but after the adoption of the British Act of Jan. 27 1916, a German decree of Aug. 29 1916 directed the winding-up of British concerns in Belgium, and, apparently by way of administrative reprisal, the same pro- cedure was extended to enemy property throughout Germany, including Alsace-Lorraine, where forced sales were made with particular hardship, even of the property of German subjects, on the ground of family connexions with France; a violation of principle transcending all the others. The United States fol- lowed, more or less, the example of Great Britain.
On the conclusion of the war the Allies were confronted with a sort of dilemma. England and the United States had gone beyond France and had pocketed proceeds of liquidation. France had merely sequestrated the property. The simplest way out was post hoc to confiscate all enemy property. Hence provision in the treaties of peace (Article 297 of the Treaty of Versailles) which empowers the Allied and Associated Powers to liquidate all property, rights and interests belonging at the date of their coming into force to German and other enemy nationals or companies controlled by them within their ter- ritories, colonies, possessions and protectorates, including ter- ritories ceded to them by the Treaty.
Thus, one of the most glaring violations of international law received the consecration of a treaty of peace.
9. Peace Methods: Mediation. Tenders of mediation during the war by the United States (when a neutral), and by the Pope, were declined by the Allies at its outbreak. However, Sir Edward Grey records in a dispatch to Berlin 2 that the German ambassador had said to him it was very desirable that Russia should act as a mediator with regard to Serbia. Four days later, Sir Edward suggested at Berlin that simultaneous and joint action by Germany, Italy, France, and Great Britain at Vienna and St. Petersburg might have a " mediating or mod- erating influence." 3 Then, on July 28, Austria-Hungary declared war against Serbia. Even in spite of this precipita- tion, efforts to arrive at an effective mediation were continued by Sir Edward Grey on behalf of Great Britain, and by Herr von Bethmann HoLLweg, through the German ambassador in
1 See respecting aircraft in time of peace, a subject which is still inchoate, Barclay, International Law and Practice (London 1917, p. sgetseq.).
- July 20 1914.
8 Sir Edward Grey to Berlin, July 24 1914.
London, on behalf of Germany. It is certain that Great Britain, France and Italy were prepared to offer mediation in conjunc- tion with Germany down to as late as July 29. Germany objected, we then learn from Italy, to the mediation of the four Powers, 4 and on the same date (July 29) the German ambas- sador assured Sir Edward Grey that the German Chancellor was working in the interest of mediation at Vienna and St. Petersburg. 5 Sir Edward then authorized Sir Edward Goschen to make the following statement at Berlin:
"If the peace of Europe can be preserved and the present crisis safely passed, my own endeavour will be to promote some arrange- ment to which Germany could be a party, by which she could be assured that no aggressive or hostile policy would be pursued against her or her allies by France, Russia and ourselves, jointly or separ- ately. I have desired this and worked for it, as far as I could, through the last Balkan crisis, and Germany having a correspond- ing object our relations sensibly improved. The idea has hitherto been too Utopian to form the subject of definite proposals, but if this present crisis, so much more acute than any that Europe has gone through for generations, be safely passed, I am hopeful that the relief and reaction which will follow may make possible some more definite rapprochement between the Powers than has been possible hitherto."
This was practically a further promise of mediation on the part of Great Britain for assuring the peace of Europe.
That these efforts at mediation broke down seems to have been due to the precipitation of Austria-Hungary in declaring war against Serbia, and her declining to suspend the outbreak of hostilities. The rest follows as a consequence of this pre- cipitation: Russia's precipitation in decreeing a general mobili- zation, Germany's precipitate espousal of the quarrel of Austria- Hungary, etc., till the bulk of the world found itself at war, and only the United States and Spain, among greater Powers, remained free to offer any mediation at all. 6
Arbitration received a considerable impetus under the treaties of peace; under Article 13 of the " Covenant of the League of Nations," the provisions of the Hague Peace Conference relating to arbitrable matters are placed within the scope of the League's activities. " In the event of any failure," says the article, " to carry out ... an award, the Council shall propose what steps should be taken to give effect thereto." The establishment, under Article 14 of the covenant, of a Permanent Court of International Justice, though it will not afford in principle a substitute for arbitration, will, however, probably in practice largely supersede it. Nevertheless, Article 12 of the covenant provides that, if any dispute arises between members of the League, they will submit the matter to arbitration or to enquiry by the Council and they " agree in no case to resort to war," until three months after the award by the arbitrators or the report by the Council. The treaties of peace furthermore pro- vide for the establishment of mixed Arbitral Tribunals to deal with a number of matters specified in the Treaty (see Article 304 of the Treaty of Versailles). These mixed Arbitral Tribunals are composed of three members, one nominated by the late ally and another by the late enemy in question, the third to be chosen by agreement between the two Governments concerned. A number of cases under sections III., IV., V., and VI. of the Treaty of Versailles and corresponding sections of the other treaties were referred to these Tribunals. Article 305 appoints them practically as a final court of appeal from the national courts in cases within their prescribed jurisdiction.
10. Self-determination and Plebiscite. " The settlement of every question, whether of territory or sovereignty, of economic arrangement or of political relationship, upon the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for the sake of its own exterior influence or mastery." This was one of the four principles laid down by President Wilson in his address of July 4 1918, and accepted by
4 Sir Edward Grey to Rome, July 29 1914. 6 Sir Edward Grey to Berlin, July 29 1914.
6 See Barclay, New Methods of Adjusting International Disputes and the Future, p. 7 et seq.
