THE SECOND YEAR OF THE LEAGUE MAP ILLUSTRATING UPPER SILESIAN AWARD. Last French proposals Aug I H92l_iMinini - British _~. League Award Oct 12 1921 _ ---. Territory assigned to Germany K\\N I. .j.1 . i - Poland rffftl International boundaries boundary _____ THE SECOND YEAR OF THE LEAGUE A Study of the Second Assembly of the League of Nations BY HAROLD W. V. TEMPERLEY READER IN MODERN HISTORT, CAMBRIDGE UNIVERSITY LONDON: HUTCHINSON 6- CO. PATERNOSTER ROW " The scene entirely changed and I saw a large and magnificent Hall, resembling the Great Divan or Council of the Nation[s]. At the Upper end of it, under a Canopy, I beheld the Sacred Covenant, shining as the Sun. . . . They prostrated themselves before it and they sung an Hymn . . . ' May the Light of the Covenant be a Lanthorn to the Feet of the Judges, for by this shall they separate Truth from Falsehood ! Innocence rejoyce for by this Light shalt thou walk in Sajety ; nor shall the Oppressor take hold on Thee ! Justice be exceeding glad for by this Light all thy Judgments shall be decreed with Wisdom! Nor shall any man say thou hast erred ! Let the Hearts of all the People[s] be glad !' . . . Then all the Rulers took a solemn oath to preserve it inviolate and unchanged, and to sacrifice their Lives and Fortunes, rather than suffer themselves and their children to be deprived of so in- valuable a Blessing." BOLINGBROKE, The Craftsman. No. 16. PREFACE THE League is an international organism, which is incessantly developing and changing its colour and shape. It is no longer the same conception as that which saw the light at Paris in 1919 ; it is no longer the same body as that which sat at Geneva in 1920. In 1922 it will exhibit some characteristics different from those which it pos- sessed in 1921. The difficulty of obtaining information about the League and its works is that accounts of it are usually too general or too particular. Its records are enormous, and they comprise speeches, discussions and reports by some of the acutest law- yers, the most eloquent orators and profoundest statesmen in Europe. This book is written to call attention to this goldmine of political, economic and legal information and, if possible, to reveal some of its brightest treasures to the public. A personal view of the activities of the Second Assembly of the League is necessarily a limited one, but it at least gives an intelligible principle of selection. There is little here about the organisa- tion of intellectual work, of international statistics, of motions of sympathy with Armenia or East Galicia, of disarmament and of blockade, even of vi PREFACE Russian relief and humanitarian work. It did not seem to me that it was by these activities, though important, that the Second Assembly would be remembered. There is much, however, about the admission of new states, about mandates and minorities, about governing territories, Courts of Justice and constitution-making, about settling disputes in Albania and Upper Silesia. For it is by these things that the League lives and will be judged. HAROLD TEMPERLEY. January, 1922. A SHORT BIBLIOGRAPHICAL NOTE A STUDY of the League must begin with that of the German Treaty. For a very short course the following may be recommended : The German Treaty, edited, with brief commentary, by Harold Temperley (Hodder & Stoughton, 5s.). Handbook to the League of Nations, Sir Geoffrey Butler (Longmans, 5s.). Two small but excellent books are What They Did at Geneva (1920) and Geneva (1921), by H. Wilson Harris, published by the Daily News, 6d. each. For a fuller course : History of the Peace Conference of Paris, ed. H. W. V. Temperley, in 6 vols. (5 vols. published) (Hodder & Stoughton). The Truth about the Treaty. A. Tardieu (Hodder & Stoughton). The Peace Negotiations : A Personal Narrative. R. Lansing (Constable & Co.). The League of Nations. L. Oppenheim (Longmans, 6s.). The League of Nations Starts : An Outline by its Organisers (Macmillan, 10s. 6d.). The First Assembly of the League, ed. O. S. Brett (Macmillan & Co., 3s. 6d.). vU ANALYTICAL TABLE OF CONTENTS CHAPTER PAGI PREFACE ....-- v. A SHORT BIBLIOGRAPHICAL NOTE - - vii. I. THE ASSEMBLY ORATORY - - - 13 II. THE COUNCIL'S REPORT EXECUTION - - 24 (a) The Saar Valley ; (6) The Free City of Danzig ; (c) The Aaland Islands ; (d) Repatriation of Prisoners of War; (e) The Campaign against Typhus; (/) Other Activities ; (g) Technical Organisation Con- stituted by the Resolutions of the First Assembly ; (i.) Transit Conference at Barcelona, (ii.) Austria; (h) Conclusions. HI. THE ADMISSION OF NEW STATES - - 34 (a) General ; (b) Unsuccessful Claimants : Caucasian States, Montenegro ; (c) Successful Claimants : the Baltic States ; (d) Other Applicants for Admission : Hungary and Germany ; (e) General Conclusions, IV. THE COURT OF PERMANENT INTERNATIONAL JUSTICE 47 I. THE COURT OF JUSTICE (a) The Project of the Court and its Acceptance by the First Assembly, December 13, 1920 : (b) The Estab- lishment of the Court and the Election of the Judges by the Second Assembly ; (c) The Compulsory Jurisdiction Clause. II. AMENDING THE CONSTITUTION (a) General ; (b) Article 20 and the Power of Amend- ment ; (c) Other Amendments ; (d) The Proposed Amendment to Article 21. IX x CONTENTS CHAPTTR PAO1 V. MINORITIES AND MANDATES - 69 I. MINORITIES (a) Previous Precedents ; (b) Minorities' Treaties Agreed upon by the Peace Conference ; (c) Procedure as Regards Protection of Minorities ; (d) Agreements for the Protection of Minorities Negotiated by the League : Finland and Albania ; (e) Germany and the Polish Minorities' Treaty ; (/) Execution of the Minorities' Treaties. II. MANDATES (a) General ; (b) Powers of the Council of the League and of the Permanent Mandates Commission ; (c) The Letter from the United States, end of August ; (d) Action in the Assembly. VI. THE DISPUTE BETWEEN LITHUANIA AND POLAND - 92 (a) Ancient History ; (b) History since the Armistice (c) Effect of Zeligowski's Coup. VII. THE UPPER SILESIAN AWARD - - 105 (a) Historical and Economic ; (b) The Plebiscite, March 20, 1921 ; (c) Korfanty and Lloyd George ; (d) The French Attitude ; (e) The Supreme Council (July-August 12) ; (/) The League's Proceedings ; (g) The Decision of the Council of the League ; (ft) Acceptance of the League's Decision (October 20). VIII. THE SETTLEMENT OF THE ALBANIAN QUESTION 129 (a) Albania's Admission to the League (December 17, 1920) ; (b) Albania's Claim to the Frontiers of 1913 ; (c) The Contention of the Principal Powers with Respect to Albania ; (d) Albania Between the First and Second Assembly; (e) The Council (June. 25, 1921) ; (/) The Albanian Frontiers Commission at Paris (June- July, 1921) ; (g) Albania before the Council and the Second Assembly (September- October, 1921); (h) The Denouement (October- November) ; (j) Reflections on the Albanian Ques- tion, (i.) The Frontiers Decision, (ii.) The Concession to Italy, (iii.) The League. CONTENTS xi CHAPTIR PAGE IX. THE LEAGUE IN RELATION TO THE BRITISH DOMINIONS, TO LATIN AMERICA AND TO THE UNITED STATES - - - - 164 I. THE BRITISH DOMINIONS (a) Canada ; (6) Australia ; (c) New Zealand ; (d) South Africa ; (e) India. II. LATIN AMERICA (a) General ; (6) Dispute between Chile and Bolivia. III. THE UNITED STATES AND THE LEAGUE (a) Views of Mr. Harding ; (6) American Journalists at Geneva ; (c) The Monroe Doctrine. X. A FEW REFLECTIONS - - - - 179 APPENDIX I. (a) TEXT OF THE COVENANT - - 187 (6) NOTE ON ORGANISATION OF LEAGUE BY SECOND ASSEMBLY - - - - - 199 APPENDIX II. PROTOCOL OF COURT OF INTER- NATIONAL JUSTICE - - - 203 APPENDIX III. NOTE ON ALBANIAN FRONTIERS 221 The Second Year of the League A Study of the Second Assembly I THE ASSEMBLY ORATORY " The millions of the world are turning to us, and we must not disappoint them." M. KAHNEBEEK, on taking office, Sept. 5, 1921. THE Second Assembly of the League met under conditions calculated to frighten enthusiasts and to encourage cynics. There was none of the first glow of ardour which had distinguished the First Assembly. Everyone felt that the League was on its trial. Hence an atmosphere of nervous- ness, of tentative discussion, of hesitation, was at first felt everywhere. It was soon dissipated in the manly, bracing atmosphere of the Assembly. The first event was the election of a President. The Assembly met on September 5 under the acting presidency of Dr. Wellington Koo, the Chairman of the Council, and the fact that a Chinaman could preside over an assembly con- sisting of over forty nations was an impressive 13 14 THE SECOND YEAR OF THE LEAGUE testimony to the way in which the League has been superior to colour and race in the Assembly, and his address on this, one of the rare occasions on which he spoke, was admirably phrased. In three or four sentences he defined the work before the Assembly. " To-day we are past the stage of experiment, to-day we are on the threshold of achievement. Every day that passes demon- strates- and the whole of my experience as a member of the Council only serves to convince me that the League as established under the Covenant is not in any sense of the word a superstate. It is a union of nations for the avoidance of the appalling catastrophes of war. It is a practical means of facilitating the conduct of international business and promoting the general welfare of mankind. It does not seek to bind the members of the League against their will ; it does not seek to force progress for which its members are not willing." The proceedings began with an unfortunate incident. It was well known that many delega- tions favoured the election of Dr. Gustav Ador, the indefatigable chairman par excellence of humani- tarian associations, the Chairman of the Brussels Conference, and an ex-President of the Swiss Republic. Unfortunately the Swiss Government favoured Dr. Ador less than the Assembly, and intimated at the last moment that they did not desire the election of one of their own citizens. The Assembly could hardly disregard this hint, but THE ASSEMBLY ORATORY 15 ultimately they elected Ador Honorary President of the Assembly, paying a special compliment to a man whose elevation had been opposed by some, at least, of his own countrymen. It was a painful incident, but it shewed incidentally that the League could bring considerable moral pressure to bear even though " it did not seek to force progress " on Switzerland in the matter of permitting one of its citizens to accept the highest honour the Assembly could give. Mr. Balfour rose and proposed M. Karnebeek, the Foreign Minister of Holland, as President, M. Jonnesco proposed M. Da Cunha, of Brazil. Ultimately voting by secret ballot took place, resulting, after a second ballot, in M. Karnebeek being elected by 21 votes. The result was a victory for the British Empire supported, apparently, by a miscellaneous following as against Latin America possibly 1 supported by Latin Europe. On the whole it was a good move, for Holland is one of the states most interested in international co-opera- tion and international jurisprudence, and has greatly appreciated the compliment to her dis- tinguished son. M. Karnebeek showed great sur- prise at being elected and some nervousness in the initial stages of his chairmanship. But ultimately, as he gained and imparted confidence, he showed great dexterity in managing business and imparted a high tone to the character of the debates. Every- 1 Le Temps of Sept. 6 indicated French support of Da Cunha. 16 THE SECOND YEAR OF THE LEAGUE one felt at the end that the honour had been worthily bestowed and that he had redeemed the pledge uttered on taking office, " I will endeavour to be your best and most devoted servant." Of orators the Assembly had no lack, and of both sexes. France had with her the greatest orator in Europe, but unfortunately M. Viviani fell ill. MM. Bourgeois, Hanotaux and Reynald were always weighty and impressive, and M. Nobelmaire ultimately developed remarkable talents. Of the Scandinavian representatives, Dr. Nansen, who fought a hard battle for Russian relief, was always attractive from his transparent sincerity, as was the massive integrity of Branting, the Swedish Socialist, who made a fine picture with his brooding eyes, silver hair and yellow moustache and slow, impressive speech. Of the Latin Ameri- can group three stood out pre-eminent, though for different reasons : Restrepo from Colombia, a vast, grey-haired man, skilful at taking a point in procedure and with a large fund of humour ; Don Edwards of Chile, fluent and graceful ; and the Bolivian, Aramayo, who spoke English like a native and remained dignified and calm under painful circumstances. Gimeno the chief Spanish delegate spoke once, and in Spanish, "the language of ninety millions " with great power and with curious stabbing gestures. Among the other states of Europe, M. Hymans, with his grey hair and black eyebrows and fine graceful gestures, never failed to attract in his THE ASSEMBLY ORATORY 17 speeches. Frangulis, the Greek, was a finished orator, but with too much art to please an assembly that cared little for eloquence alone. The Serb, Spalaikovic, and his opponent the black- bearded Albanian, Bishop Noll indulged in a series of oratorical duels which never failed to excite attention. Count Mensdorff of Austria spoke only once, but with great dignity, while Osusky, the Czecho-Slovak, greatly amused the Assembly by addressing them in English with a pronounced American accent. Scialoja of Italy and Motta of Switzerland spoke admirably, though both reserved their greatest oratorical efforts for a non-political commemoration of Dante. A curious and pathetic contrast between old and new in the Orient was afforded by the two Persian delegates. The second delegate, a young man, spoke admirably, often, and closely to the point in approved modern fashion. The first delegate, a prince and a poet, spoke once only, and told how he had met W. T. Stead many years ago at the Peace Conference of the Hague, dreamed with him of an Assembly of the Nations, and composed " by himself ' ' an ode, of which he recited part, which demonstrated that all people had one origin and that the earth nourished every one of us. Finally he expressed the wish that the olive-branch planted at the Hague should become, " by the assiduous care of this lofty Assembly, the tree of fraternity, extending its branches, magnificent with eternal peace, over all humanity." Loud applause came B 18 THE SECOND YEAR OF THE LEAGUE from the delegates- always generous towards sincerity, even when it was poetic. It is worth noting that one of the greatest oratorical triumphs was scored by Mademoiselle Helene Vacaresco, the famous Rumanian poetess a woman who only began speaking in public a few years ago. Like her, Dr. Wellington Koo, M. Osusky, Dr. Nansen, Don Edwards and Sastri, though speaking in languages not their own, con- trived to win great technical successes. One more point to note is that two famous statesmen, Dr. Benesh the Czecho-Slovak and Stambulivski- the Bulgarian peasant Prime Minister- and two great orators, Take Jonescu the " Golden Mouth " of Rumania and Viviani of France, never uttered a word at the Assembly. It is clear that all of them sought by their presence to contribute rather to the solid work of the League, and refused to regard it as a scene for mere oratorical display. Their silence was golden, for it marked their respect for the League. The British Empire Delegation took a very active part in most debates. Captain Bruce, the Aus- tralian, spoke seldom, but always with weight and force ; Mr. Doherty, the Canadian Chief Justice, astonished everybody by speaking French more fluently than he spoke English, while Sir James Allen of New Zealand brought a ripple of laughter by relating his personal difficulties in explaining mandates to the ingenuous natives of Samoa. Among the delegates of Great (as distinguished THE ASSEMBLY ORATORY 19 from Greater) Britain, Sir Rennell Rodd scored two signal successes, first in criticising and even- tually forcing the withdrawal of an absurd report in which Swiss hotel proprietors endeavoured to explain that the cost of living in Geneva was moderate, and second in persuading the Assembly to adopt a revised scale of contributions from each state. In each case clarity of exposition and tact of handling were displayed to a marked degree. Mr. Fisher spoke always with a dignified sincerity and greatly impressed the Assembly, but his happiest efforts were on Committees, very notably in one speech on Albania and in another on the admission of Lithuania to the League. Mr. Balfour, by common consent, was the weightiest voice in the whole Assembly, and carried more influence even than Lord Robert Cecil. The latter was indefatigable in debate, in proposing motions and amendments, and in raising to a higher level every debate in which he took part. Probably on Committees his influence was still greater and, indeed, all-pervading. Yet his influence was, and remained, personal. Mr. Balfour seemed to carry weight beyond any other voice raised in the Assem- bly, because his personal opinion expressed the policy, not only of a long-experienced statesman, but of a great empire. Few will forget some of his sage and pithy utterances. There was his admoni- tion to M. Branting, who had criticised the Council over its decision in the Aaland Islands dispute as " being the organ of a particular group of Powers." 20 THE SECOND YEAR OF THE LEAGUE " Mr. President," answered Mr. Balfour, " that such a charge should be made by any member of the League, is, I think, most unfortunate ; but that it should be made by a man of the high charac- ter and the great ability and the world-wide reputa- tion of my friend M. Branting I confess gave me great pain, and made me feel that sometimes, in the heat of debate and argument, we say things which afterwards we may have some reason to regret." As a Swiss journalist wrote, " Et voila pour le delegue de la suede ! " l Again, when a Greek deputy wished to add a Serb, a Greek and an Albanian to a Commission of Observation in Albania, he reminded him that " there is no greater strain on human friendship than long periods of travel together." Not less telling was his question to the Poles about Zeligowski, the Polish D'Annun- zio in Vilna : "Is he a rebel deserving military sentence ? Is he a patriot deserving the patriot's crown ? We know not. Whenever the exigencies of debate required one answer, that answer is given, when they require the other answer, the other answer is given." Again, what could be more complete than his reply to Lord Robert Cecil about disarmament ? " General disarmament can only be effectual if it is a general disarmament, and a general disarmament is an all-inclusive 1 It is characteristic of the fine temper of M. Brantinp that he is well known to have been subsequently greatly distressed by a Swedish paper's attack on Mr. Balfour in connection with this utterance. He also asserted that his criticisms only showed his belief in the league and his desire for its perfection. THE ASSEMBLY ORATORY 21 disarmament." There was a neat finality about this which even idealists appreciated. In sheer oratorical distinction the palm was borne away by the second delegate from India. Everything about Mr. astri was remarkable. On all occasions he stoutly upheld the use of the British language as against French, yet he was a Brahmin of the Brahmins. He claimed a descent of five thousand years, but he conjured the Council " not to wrap itself up in oligarchic mystery.'* Though possessed of great natural eloquence, he often sat silent in Committees, only speaking to urge practical conclusions or to demand the taking of a vote. On September 12 he stood up in the Assembly, a figure in a plain black collarless cassock and white turban, and spoke. There were no gestures though the expression of his face changed continually, and the sustained melody of his voice held everyone entranced. " Brother and Sister Delegates," (his very opening word was original), " hard and cold indeed must be the heart that fails to be touched, and touched to noble issues, by such a spectacle as this." He spoke of the critics and pessimists with scorn, but he reminded the League that it was wiser to limit its scope and not to attempt the impossible. Then he brought a thrill of shame to everyone by re- minding the nations how India, " almost alone amongst the Great Powers," had not only ratified the International Labour Conventions of Washing- ton, but had passed laws to give effect to them. 22 THE SECOND YEAR OF THE LEAGUE Yet there was but one Indian on the League Secretariat, while there were 138 British, 73 French, and 13 Americans. As regards Mandates, he reminded us that in German West Africa " the Germans did not make a colour-bar or introduce invidious distinctions." If the Mandates did introduce them, then one day a delegate from India might have to " come on this platform and tell the Assembly that we are worse off under the trustees of the League than we were under the Germans. Either rectify these matters or put us back where we were. It would be a matter of profoundest regret for any of us to come and speak in that fashion in the Assembly. ' y And after a solemn pause he slowly quitted the tribunal. There were few present whom his oration did not cause to rate India higher because she could pro- duce such a man. In reflections for the future debates in the Assembly one serious consideration arises. Owing to a motion carried by Lord Robert Cecil, the sessions of the various Commissions were thrown open to the public. The decision was hailed with delight, but the results were unexpected. After the general debate on the Council's report, the Assembly settled down to discuss particular prob- lems in detail, according to reports presented to them by the various Commissions. But the publicity of the proceedings induced the orators to make their fine speeches on the Commissions them- selves. Consequently, when the subjects came up THE ASSEMBLY ORATORY 23 before the Assembly, the speakers subjected the public to a repetition of remarks they had already heard. Not unnaturally a decline of interest in the Assembly debates became noticeable at once, for the speakers lacked both novelty and force. The effect was equally bad upon the Commissions. So long as they met in private, arguments were directed to the reason and not to the emotions, but the presence of the public irresistibly tempted the emotional orator towards rhetoric. Hence the Commissions became less businesslike and the Assembly more dull as a result of publicity. In the end some remedy will doubtless be found, but, until it is, the public interest in the Assembly will be confined to the General Debate on the Council's Report. II THE COUNCIL'S REPORT EXECUTION THE Council's report of the measures taken to execute the decisions of the first Assembly formed matter for a general preliminary debate. The report, as Mr. Balfour complained, was not suitable for enlivening the breakfast -table, yet the table of contents was extremely impressive. There were several sides to the work : administrative, political, humanitaran, technical, and general, and of these the first was not the least important. (a) The Saar Valley The administration of this area is placed under an International Commission of five members responsible to the League. The Commission con- sidered that Germany was no longer able to exercise her sovereign rights over the Saar and that the Commission itself exercised the rights of sovereignty. This is not altogether a happy arrangement when a Frenchman is Chairman of the Commission, when the mines are for 15 years the property of France, when French currency circulates in the when French troops are present in the district, M THE COUNCIL'S REPORT EXECUTION 25 when French military tribunals have recently been erected there, and some hundred notorious pro-Germans have been expelled. Even a heavy surplus does not compensate the Saar Valley for all this. In response to various complaints the League Council took the view that there was nothing in the treaty to prevent the use of French currency, that the presence of French troops was permissible, though it was not to be permanent. The Council mildly censured the establishment of courts -martial by the Commission, which they proposed to supersede by the setting up of the Supreme Court of the Saar Basin. They further recommended the Commission to examine into all cases of expulsion, to reduce them to a minimum, and to forward reports on the same to the Council. This was slight comfort, but it proved at least that some supervision was being exercised. (b) The Free City of Danzig If the Saar Valley scheme was pre-eminently the creation of President Wilson, the Danzig solution was certainly that of Lloyd George. The scheme, though carried by Mr. Lloyd George in defiance of the experts, appears to have worked admirably. Its essential point is that Danzig is not governed by an international Board but by an international individual, the High Com- missioner, who mediates between the German element predominant within the free city, and 26 THE SECOND YEAR OF THE LEAGUE the Government of Poland, charged with the external relations of Danzig and having rights of free commercial access to the port. The Council of the League had devoted much care to the whole question and had already instituted many improvements. On July 30, 1921, the Rifle factory in Danzig was definitely closed down and all manufacture of arms forbidden. As regards the enforcement of the demobilisation of Danzig, large powers were given to the High Commissioner, as, e.g., to decide what was and what was not war material, 1 and to sequestrate all such material pending investigation into its nature. The very delicate question of the defence of the free city also attracted much attention, and it was finally arranged as follows : Local economic distur- bances or military revolt within the free city would be dealt with, in the first instance, by the local government. Only if the High Commissioner notified to the Polish Government that these were insufficient is the latter authorised to send troops. The case of danger from the aggression of an ex- ternal Power (e.g., Germany) could be met in a similar way, the decision of the High Commissioner being always necessary to initiate any action by the Polish Government. A number of other technical problems of trans- port, finance and harbour accommodation were 1 It is well known that international lawyers cannot define war material, but what is not possible foran international lawyer appears to be possible for a Danzig High Commissioner ! THE COUNCIL'S REPORT EXECUTION 27 also settled, chiefly by leaving the final decision to the High Commissioner. The finances of the free city were examined and reported on by an expert financial committee of the League. Various improvements were made in the constitution by the League Council with the view of ensuring popular control over the Government and of pro- tecting the Polish minority in the city. Finally it was decided that all outstanding differences between Poland and Danzig, under the Convention of November 9, 1920, which were not settled by July 31, 1921, should be submitted to the High Commissioner's decision. Two railway disputes occasioned by decisions of the Commissioner were settled " out of court " on September 23, under the mediation of the Secretariat of the League. One important decision, notably contrasted with that in the Saar Valley, is that the official currency is the German mark, though Polish currency can be used if payer and payee agree (which they are never likely to do). 1 The net result seems to be that everything depends on the High Commissioner, Lieutenant-General Sir R. C. Haking. According to all accounts he is a bluff, cheery soldier, quite prepared to take decisions on his own responsibility. That he is 1 The Polish-Danzig Treaty was finally signed in Warsaw on October 24, 1921, the Danzigers employing the historic seal of the city, which dates back to 1340. Equal rights are given to Polish ships within Danzig's territorial waters, Polish tariffs and customs will apply to the trade of Danzig, and Poland will take over the railwavs. 28 THE SECOND YEAR OF THE LEAGUE ready to enforce his authority the following story will illustrate. On his return from leave he found the Assembly in occupation of the house which he deemed most suitable for the High Commissioner. In due course he installed himself there, and the Assembly found quarters elsewhere. This story is in itself a striking example of his power of moral suasion. This benevolent despotism is tempered by the fact that the Commissioner is ultimately responsible to the Council. But, so far as the experiment has gone, it seems highly successful, and the moral seems to be that the authority of the League is much more easily enforced by an international individual at Danzig than by an international Commission in the Saar Valley. (c) The Aaland Islands On June 27, 1921, this age-long dispute between Sweden and Finland was finally settled by the Council. The basis was that the Aaland Islands were to remain to Finland, but that the Council of the League was to guarantee to their inhabitants " the preservation of their (Swedish) language, of their culture, and of their local Swedish tradi- tions." The Islands were to be disarmed and neutralised. This decision was bitter to the Swedes, and their disappointment found vent in angry remarks against the Council like those of M. Branting, which have been already quoted. It THE COUNCIL'S REPORT EXECUTION 29 is, however, to the eternal honour of Sweden that, as in the still more painful case of Norway's separa- tion, her statesmen accepted a decision, in which they were not allowed to take part, without re- sorting to force. No other country has accepted two such painful decisions with such remarkable self-restraint. Angry as was the utterance of M. Branting, no words can praise too highly the practical wisdom with which he forbade all forcible attempts to reverse the decision. In an age which has seen D'Annunzio at Fiume. Zeligowski in Vilna, Kor- fanty in Upper Silesia, Friedrich in West Hungary, Sweden's statesmen stand in a high and honour- able position. Despite the temporary bitterness engendered, there can be no doubt that the League, and the League alone, could have solved this difficulty, and it is to M. Hymans, the unwearied conciliator of differences, that the chief credit of the result is due. The Aaland Islands Conven- tion was finally signed at Geneva on October 20, 1921. (d) Repatriation of Prisoners of War This is another great and beneficent work with which another great Scandinavian and an un- wearied Swiss are associated as statesmen. This work had been carried forward by Dr. Nansen and Dr. Ador with large contributions from Govern- ments and Red Cross Societies. Dr. Nansen was able to report before the Assembly dissolved that 30 THE SECOND YEAR OF THE LEAGUE about 380,000 prisoners had been returned to their families at a total cost of 400,000. " This," said Dr. Nansen (September 21), " is indeed international work ... a true work of reconcilia- tion," and Dr. Karnebeek, in congratulating him, said, " The quite remarkable results . . . have been the outcome of his (Nansen's) devotion to duty and perseverance . . . and reflects extra honour and glory on the League of Nations." One feels entitled to ask whether so great an amount of human suffering was ever relieved at so small a material cost ? x (e) The Campaign Against Typhus This was conducted with great energy by Dr. Ador, and had much success in Poland, but the funds subscribed (under 100,000) precluded the full benefits that might have been obtained. (/) Other Activities The activities of the League as regards the Permanent Court of International Justice, Minori- ties and Mandates are more completely related elsewhere. (Chapters IV.-V.) 1 That it was a work by which most nations benefited is seen from the list of the following persons who were on the last transport leaving the Black Sea : 500 women and children of various nationalities, 452 Czecho -Slovaks, 282 Hungarians, 215 Germans, 183 Rumanians, 142 Poles, 123 Austrians, 116 Yugo-Slavs, 30 Italians, 11 Belgians, 3 English, 2 Bulgars, 1 Swiss. THE COUNCIL'S REPORT EXECUTION 31 (g) Technical Organisation Constituted by the Resolutions of the First Assembly (i.) Transit Conference at Barcelona. The Transit Conference at Barcelona sat from March 10 to April 20, 1921, and worked out a series of general codes on the subject of Transit, International Freedom of Regime of Railways, Ports, Navigable Waterways of International Concern, etc. These principles were approved by the League Council as in accordance with the Covenant, and a technical Advisory Committee was established to deal with such problems in the future. (ii.) Austria. The Provisional Economic and Financial Committee met under the chairmanship of Dr. Ador. It has chiefly been occupied with forwarding the Termeulen scheme for international credits. Its chief and most beneficent activity was to consider the application of the scheme to Austria, at the request of the Supreme Council of the Allies (March 17, 1921). The Committee reported in favour of suspending liens on Austria for not less than 20 years. By June 3 they were of opinion that the scheme could be practically applied if the Governments concerned would sus- pend their liens. Ten Governments have con- sented to do so , but the work of benefiting Austria is still suspended by the refusal of the United States to co-operate in the scheme, owing to the extraordinary complications of her Consti- tution. In the second week of December she announced, however, that she might be able to do so. (h) Conclusions These are only a few of the activities of the League during the nine months January-September, 1921. Many others were undertaken, ranging from such matters as relief work and health organisa- tion to inquiry into economic conditions and the collection of international statistics. Some of these are necessarily more productive than others, but enough has been said to show the vast range of activities. No summary could be briefer and better than that made by Mr. Balfour on Sep- tember 10. " Let him consider that we are actually governing two important regions of the earth, and may have yet to govern more. Let him remember that we have established, or are in process of establishing, a Court of International Justice. Let him remember that we have set up machinery for protecting minorities, and that we mean that that machinery shall work. Let him remember that we are dealing with the question of disease all over the world, and let him also remember that we have played no unimportant part in the efforts that all men of good-will are making, wherever they may be, to re-establish upon some solid basis the economic prosperity, without which all the efforts of the League in the direction of peace, contentment and good-will among men must THE COUNCIL'S REPORT EXECUTION 33 necessarily fail. Any man who reads this index should then ask himself this one simple question : Were the League of Nations abolished to-morrow, what body either exists or could be found which could do these things ? If he asks himself that one question, I will answer for him that he will get up from the perusal of this table of contents a convinced and life-long supporter of our work." Ill THE ADMISSION OF NEW STATES (a) General OF all the functions of the League the power to admit new states into its company is the most important, and for two reasons. First because the Assembly can do it by a two-thirds majority, and next because that fact infringes, or may in- fringe, upon the sovereign rights of one-third of the members of the League. The interesting fact is that the states, whose view may thus be over- borne, may in fact be the Great Powers. The desires of England, France and Italy may be overborne by a coalition between, say, Latin America and the smaller states of Europe. The cause is fought out in the Assembly and the Assembly's decision is final. The admission of Albania to the League was an interesting incident in the First Assembly. Her admission was opposed by Mr. Fisher, the British representative in Committee, and the Com- mittee presented a report adverse to her claims. Lord Robert Cecil, however, mobilised the small states in the Assembly against his own country, and Great Britain eventually gave way and 34 THE ADMISSION OF NEW STATES 35 admitted Albania. Fan Noli, the Albanian Bishop, said that this incident proved that the " age of chivalry " was not yet dead. Here then we can put our finger on an act by which the majority in the Assembly can definitely influence history and perform executive acts, involving important diplomatic consequences, if necessary in the very teeth of the Great Powers. It is curious to note some phases of this subtle conflict between the Supreme Council and the Assembly. The League admitted Albania in December, 1920, but none of the Great Powers had afforded her diplomatic recognition by October, 1921. The League refused to admit Latvia in December, 1920, but the Supreme Council accorded her de jure recognition in January, 1921. 1 (b) Unsuccessful Claimants : Caucasian States, Montenegro The claimants for admission this year involved, of course, some inevitably tragic and comic appli- cants. The unfortunate Ukraine Democratic Re- public was refused admission in 1920 and did not apply again, though its Minister Plenipotentiary addressed a pathetic tentative appeal to the 1 Recognition of a state is still an individual act of the state which gives the recognition. Admission to the League by a two-third majority of the Assembly is a collective act by all states concerned, even by those who abstain from voting and who oppose it. Both admission and recognition seem to imply that the state admitted or recognised is acknowledged as a member of the general international family. 86 THE SECOND YEAR OF THE LEAGUE Secretary-General. The Foreign Minister of Georgia complained even more pathetically that ** recent events, resulting in the withdrawal of the Georgian Government from their country, do not permit my Government to renew at present the application for admission." So also the four states of Armenia, Azerbaijan, North Caucasus and Georgia announced their complete economic and political union, though " almost all the territory ... is in the occupation of the Soviet and Turkish troops." For these Ministers inpartibus, represent- ing poor shadows of states, there could be nothing except pity. The kingdom of Montenegro and its represen- tatives excited other emotions. Since France discontinued her diplomatic representation at the end of 1920, and Great Britain had cancelled the exequaturs of Montenegrin Consuls throughout the British Empire (March 17, 1921), and the Montenegrin Consulate at Rome was raided by Italian police, Montenegro was thought to be diplomatically dead. There were four Montenegrin Ministers, headed by Jovan Plamenatz, who did not think so. On King Nicholas' death in March, 1921, they proclaimed his son Danilo King. They were not deterred by the fact that Danilo abdicated in a week, and promptly awarded the crown to Michael, the son of Prince Mirko, a small boy in an English school, appointing Miltitza, the widow of King Nicholas, as Regent. M. Plamenatz, as the chief of the " Big-Four," now instructed his Foreign Minister, Dr. Chotch, to visit Geneva to protest against the inclusion of Montenegro in the Serb-Croat-Slovene state. Dr. Chotch next ap- plied for the admission of Montenegro to the League. The Secretary-General, in publishing the demand, made the following diplomatic an- nouncement in the Journal of the Assembly (September 24, 1921): "This has been placed in the Library of the Secretariat and is at the disposal of those members of the Assembly who may desire to examine it." Dr. Chotch returned to M. Plamenatz and to Rome only to find that further trials awaited him, for it was announced in the Press on October 14 that the Regent Queen Miltitza had dissolved the " Big-Four," and determined to break up the Ministry. With this coup d'etat not Montenegro, but at least these representatives of her, disappear from history. Like Frankenstein, they suffer from their own creations. Though not lacking in the sense either of " self " or of " determination," the " Big-Four " had proved unable to forge the requisite link between the two words. (c) Successful Claimants : the Baltic States The successful claimants for admission were all drawn from that group of maritime states bordering on the Baltic. About the Esths and Letts there was little question. Both Esthonia 38 THE SECOND YEAR OF THE LEAGUE and Latvia (Lettonia) under great difficulties have organised their Governments. Both races are interesting as highly gifted and intelligent, and as having waged a most resolute and successful war against both German and Russian domination. They were able to give satisfactory answers to all the five inquisitorial questions. These were : (1) Is the application in order ? (2) Is the Government recognised de jure or de facto and by which states ? (3) Does the country possess a stable Govern- ment and fixed frontiers ? (4) Is the country freely governed ? (5) What have been the acts and declarations of the Government concerned with regard to: (a) The fulfilment of her international obligations ? (b) The regulations of the League as regards armaments ? A sixth question was also put to the Baltic States (as also to Albania, the Balkan and Caucasian States) : Were they willing to enforce the principles of the Minorities Treaties and to take the necessary measures to carry them into effect ? As all answers were satisfactory, it was decided to admit them. The case of Lithuania demanded further treat- ment. The Sixth Commission reported that she had received a certain amount of de jure and de THE ADMISSION OF NEW STATES 39 facto recognition, that her Government was stable and free. But her frontiers were uncertain and she had recently mobilised troops, yet the Com- mittee held that her actions did not violate Articles 1 and 8 of the Covenant. 1 The final decision was really taken in Plenary Session of the Committee on September 20. Mr. Fisher, who had opposed Lithuania's admission in 1920, now advocated it strongly. He spoke in moving words of the heroism of her struggle and, referring to all possible objection, said : "If her frontiers are uncertain, so also are those of Poland " a thrust which evidently went home on the Polish representative. Motta the Swiss repre- sentative in a speech of moving eloquence, called upon Poland not to deny rights and privi- leges to a small neighbour : " It is a little state, a young state. Can you refuse ? You, a nation now raised from the dead, noble and chivalrous, the knight among nations. Can you refuse ? " Professor Askendzy, the Polish representative (who did not particularly conform to one's idea of a knight errant), said that it was not because he hated Lithuania, but because he loved the quarter of a million Poles she might oppress and was oppressing, that he feared to vote for her admission. Mr. Fisher retorted with much effect that, outside the League, Lithuania was under no obligation to respect minorities, while once 1 Vide Appendix I. 40 THE SECOND YEAR OF THE LEAGUE within the League she could be called to account for it. M. Restrepo, the Colombian representative, relieved the situation by a humorous speech. Last year he had voted for Lithuania, and " though I was supported by Achilles " (indicating Lord Robert Cecil), " I had against me the wisdom and power of the British Empire " (indicating Mr. Fisher). " Now that I have both on my side I am assured of victory. I do not know the religion of Lithuania the Greek, I suppose. Ah, ' the Catholic ! ' one says ; also a good religion. But I feel sure that she will prove an important part of the barrier against Bolshevism so vital to Poland." And so, he concluded, " I leave the Professor (Askenazy) to his reflections." Everyone thought that the question was now decided, and that Professor Askenazy was isolated. Not so. M. Spalaikovic 1 , the Serb-Croat-Slovene delegate, intervened with one of his strangely fascinating speeches. With a wild look in his eye he said he thought those who sat round the table had forgotten the great Slav nation not repre- sented at Geneva. Serbia could never forget her, for Russia had drawn the sword in her defence at the moment the torrent of war burst upon the world. The Russian ogre was not dead, but only asleep (a phrase which seemed to alarm Professor Askenazy), and one day the Russians would be seen on the shores of the Adriatic (which seemed to alarm the Italian representative). Therefore out of respect to that great nation he could not THE ADMISSION OF NEW STATES 41 vote in favour of dismembering her when she was helpless. He had indeed no enmity to any of these small states, but he must abstain from voting in their favour. Thus ended a remarkable speech, more remarkable still since M. Spalaikovifc is a well-known anti-Bolshevik, who once, after calling on Lenin in a diplomatic capacity, termin- ated the interview in an undiplomatic manner with the words, " Assez, menteur, traitre ! " (" Enough, liar and traitor 1 ") On September 22, on the motion of M. Reynald (France), the three states were formally admitted into the League by vote of the Assembly. But, significantly enough, though none voted against them, there were 12 members absent or abstaining in the case of Esthonia and Lithuania, 1 and 10 in the case of Latvia. Thus the family of the League was increased from 48 to 51 members. (d) Other Applicants for Admission : Hungary and Germany In a sense both Hungary and Germany were applicants for admission. But the latter expected the door to be opened without asking, and the former may be said to have knocked at the door and then run away. Germany did not formally apply for admis- sion, though the question of her doing so was hotly discussed in her Press. But the Argentine 1 France was one of these. 42 THE SECOND YEAR OF THE LEAGUE Republic, before retiring from the League in 1920, had put down a seemingly innocent amendment of the Constitution, which would have had the effect of admitting her. It ran as follows : " That all sovereign states recognised by the Community of Nations be admitted to join the League of Nations in such a manner that, if they do not become members of the League, this can only be the result of a voluntary decision on their part." The Committee which examined these proposals found that they were lacking in precision. A state, imperfect from the point of view of sove- reignty, might procure admission to the League, while recognition by the Community of Nations could not be expressed in precise terms. More- over, the proposal if carried would necessitate amendments to Articles 1, 8, 9, 16 and 17. Though the Committee politely credited the Argentine Republic with " the highest motives " in making the suggestion, 1 they refused to adopt it, and Germany was therefore prevented from being able to creep into the League beneath the shadow of a vague phrase. It was noteworthy that France, in the person of M. Noblemaire, led the rejection of this amendment, that 28 other states voted with him, and Bolivia, Chile, Colombia and Venezuela against him. On the eve of departure from the Assembly Lord Robert Cecil opened a new prospect for Germany. He said that, if 1 The Press was less urbane and suggested she was serving the interests of Germany, e.g., Telegraph, September 7. THE ADMISSION OF NEW STATES 43 Germany applied next year in propria persona, he thought she would be admitted, and he would support her admission. The case of Hungary was different. She had applied to the League for admission in due form, and the Hungarian Peace Treaty had come into force on July 26, 1921. But the difficulty re- mained that the provision regarding the cession of West Hungary (the Biirgen-land) to Austria remained unexecuted. The official attitude of the Hungarian Government was not encouraging, and armed Hungarian irregular bands under a Hungarian ex-premier filled the " Biirgen-land." The " Little Entente " were uncompromising in their opposition; the Rumanian, Take Jonescu, said bluntly (September 23) : " When a state is a defaulter on the Treaty to which it has affixed its signature it is natural that this state should stay awhile in the ante-chamber." There was a difficulty also with the great as with the small powers. The former had publicly declared over and over again that they would never permit a Habsburg to return to the Hungarian throne, but had inserted no such provision in the Treaty. Count Apponyi took the line " that Hungary does not recognise any conditions but those of the Covenant and would not give any special assurance. Hungary would prefer remaining outside the League to lacking in national dignity." From the point of view of the League he was probably right, and if the Great Powers had voted against the admission of Hungary on these grounds, they would have assumed an indefensible attitude. This is a striking testimony to the way in which the Covenant serves to assuage the harshness of treatment meted out to enemies. None the less, the majority of delegates did not seem happy about the question, and the second Persian delegate, Zoka-Ed-Dovleh, was felt to have brought the wisdom of the East to bear on the West, when he remarked that to leave Hungary outside the League rendered very difficult the settlement of questions like disarmament, transit or frontier disputes, and even risked the establishment of another League. Everyone felt this, yet everyone was relieved when two days after (September 24) Count Apponyi finally an- nounced the postponement of the demand for Hungary's admission to the League. 1 (e) General Conclusions It is not easy to exaggerate the importance of the power placed in the hands of the Assembly by its ability to refuse or to accept claimants for ad- mission. Acceptance confirms or increases the independence and stability of a new state ; refusal correspondingly discredits it. The conditions of admission impose on the applicant state the necessity of limiting its armaments, of executing 1 The recent second attempt of the ill-advised Karl to return to Hungary has served only to injure his country, to embitter her external relations, and to delay her entry into the League. THE ADMISSION OF NEW STATES 45 its international engagements, of liberalising its Government, and in most cases also of protecting its racial minorities. Thus admission to the League is not only a welcoming of the state into the family of nations, but a certificate of good conduct as well. All previous recognising authorities have never disclosed their reasons for recognition. The League, by disclosing its reasons, at once deters states from applying until they have reached the required standards, and encourages them to apply when they have. The bracing moral atmosphere of the tests applied to claimants for admission would indeed not be without advantage if applied to certain original members of the League. If some of these were now to ask for admission, it would be interesting to know if Persia would pass the test of a free government, if Rumania would be approved for her attitude towards racial minorities, if Poland would be considered as having fulfilled her inter- national obligations, and if the Serb-Croat-Slovene kingdom would be declared to be limiting its armaments. Some of the original members are very happy in that they can apply tests to others to which they might not always themselves be willing to submit. A final word may be said on the question of small states. The Committee dealing with Con- stitutional Amendments at the Second Assembly debated long as to whether certain small states which were not admitted as members, like Monaco, 46 THE SECOND YEAR OF THE LEAGUE San Marino and Liechtenstein, could be associated in some way with the League. On the whole, though with regret and hesitation, they decided against this view, or, as they sagely phrased it, " decided to await the results of experience." It is, however, of interest that they confirmed the resolution of the First Assembly (December 17, 1920), that certain " sovereign states, by reason of their small size, could not be admitted as ordinary members." It is important that the League has therefore taken size as a test, not of statehood primarily indeed, but of League membership. Such a test may have far-reaching results in decid- ing what communities have a right to " self- determination." l 1 I find this prophetic note in an unpublished fragment by Lord Acton in the Cambridge University Library : " The [French] Revolution established the right to make one's own government " (i.e,, to self-determination). " Who has the right ? Not every part of a country. Not [La] Vendee, for instance [in France] but Ireland" The passages in brackets and the italics are my own. IV THE COURT OF PERMANENT INTER- NATIONAL JUSTICE; AMENDING THE COVENANT ! I. THE COURT or JUSTICE (a) The Project of the Court and its Acceptance by the First Assembly, December 13, 1920 THE creation of a Permanent Court of Inter- national Justice is the most ambitious attempt of the League. It is on different lines from the Permanent Court of Arbitration at the Hague. In an arbitration the parties are free to have recourse to judges of their own choice. More- over, the Hague Court is in one sense not really permanent. The new Court was to be always available, with a limited number of judges holding regular sessions, giving their decisions not on rules laid down by the parties, but generally according to principles of law and international law. Such a Court can ultimately, if successful, not only develop, but create, a permanent inter- national jurisprudence. 1 I owe much here to an explanatory paper prepared by M. Hammarskjold of the League Secretariat and published by the League. 47 48 THE SECOND YEAR OF THE LEAGUE The Hague Conference in 1907 created a Court of Permanent Arbitration, but failed to create a Court of Justice. The League was bound to attempt to do so by Article 14 of the Covenant : " The Council shall formulate and submit to the Members of the League for adoption plans for the establish- ment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly." 1 The new Court was intended fundamentally to be judicial and not arbitral. The great objection to such a court is that it does not permit all sovereign states to be represented on the judicial bench, and therefore might tend to favour the Great Powers. On the other hand, under Article 13 of the Covenant, the Court is only competent to determine disputes which parties thereto sub- mit to it. The framers of the Covenant seem to have meant the Court to be one of Justice, not Arbitration, 2 but intended it to act as an 1 The original draft of this article was : " The Executive Council shall formulate plans for the establishment of a per- manent court of international justice, and this court shall, when established, be competent to hear and determine any matter which the parties recognise as suitable for submission to it for arbitration under the foregoing Article." * This is now confirmed by proposed drafting amendments to Arts. 12, 13, 14, and 15 of the Covenant, which add the words, " or judicial settlement " to the word " arbitration " wherevei it occurs. THE COURT OF JUSTICE 49 arbitrator at the request of the parties. They intended it to be permanent and accessible, and to be provided with judges chosen for personal distinction, not for nationality, and meant the Court to judge according to law. Eventually, on June 16, 1920, a Committee of Jurists was appointed to draw up a scheme. That eventually adopted was really drawn up by Lord Phillimore and Elihu Root (U.S.A.). This report was ultimately much revised under the influence of M. Bourgeois (France) and of M. Caclamanos (Greece), who reported on the scheme to the Council at Brussels, October, 1920. Much further revision was undertaken in committee, and finally the protocol establishing the Court was unanimously approved by the First Assembly at Geneva, December 13, 1920. x The features of the scheme can only be generally indicated here. The Court is to frame its own rules of procedure, but to be guided generally by the rules by which tribunals of arbitration function under the Hague Conventions. French and English are to be the official languages a very important point for an Englishman to note, as French was originally proposed as the sole language. Publicity is strongly recommended, but not made absolute. In respect to judgment, this Court, for the first time as regards international jurisdiction, can pronounce judgment by default. Probably this 1 Vide Appendix II. D 50 THE SECOND YEAR OF THE LEAGUE will only occur in the case of one of the parties not appearing. The Court has also the unusual power of making public the divergent views of the judges, with their reasons. This enables each judge to state the standpoint of the legal system which he represents, if he deems it necessary. The decision of the Court has no binding force except between the parties and in the special case. Previous judgments will only have a value, therefore, as indicating, and not as deciding, the new judgment. Where the interpretation of an international convention is concerned and when, in such case, a third party intervenes, the in- terpretation will bind all parties concerned. The judgments of the Court can be revised in the case of the discovery of new facts, and in any case are final after ten and a half years. The system or rules of law to be applied are, of course, of great importance. One thing is certain, the system is not arbitrational. The general position is well stated by Hammarskjold : " The Statute of the Permanent Court once and for all lays down that the Court shall apply inter- national conventions in so far as they can be considered as establishing rules expressly recog- nised by the litigant states. Side by side with such conventional law, international custom and the general principles of law recognised by civilised nations will be made use of that is to say, general international law in force. It is for the Court itself to make out what is international law, and THE COURT OF JUSTICE 51 it is in this domain that the jurisprudence of the Court will have its greatest importance as a means of codifying the law of nations. It is expressly stipulated that judicial decisions and the teachings of the most highly qualified publicists of the various nations may be taken into account, but, as has already been said, in the case of precedents, only as indicative and not as decisive factors. " Attention should be drawn to the fact, already mentioned, that the Advisory Committee of Jurists that sat at The Hague recommended the convocation of Conferences of International Law mainly because it was considered that it would be extremely useful, not to say necessary, for the Court to be able to avail itself of a body of written rules. The Assembly's decision to discard this recommendation largely increases the importance of the role of the Court in creating International Law by its jurisprudence. " To the Article concerning the material rules to be applied, the Assembly added the right for the Court to decide a case ex aequo et bono, if the parties thereto agreed. Of course, this stipula- tion will have to be interpreted according to its wording, and this wording certainly gives the Court the power to act as an arbitrator, should the parties so decide. The stipulation is therefore the con- firmation of the prima facie opinion on the character of the new Court which, as has been explained in an introductory way, was conveyed to any student of Article 14 of the Covenant 52 THE SECOND YEAR OF THE LEAGUE and of its precedents namely, the opinion that the Court should be a judicial institution with the right to act as an arbitrator. " However, if one may look behind the actual wording and to the intentions of the framers of the stipulations, it should be noted that those intentions certainly were to enable the Court to render what, in French law, is called ' jugements d' accord,' that is to say, to confirm by a judgment an agreement reached between the parties." J The Court includes within its jurisdiction the disputes submitted to it by parties. Secondly, the Court has jurisdiction in all matters provided for in treaties and conventions. These are already considerable. In the case of difference between a principal allied power and a power who has signed a Minority Treaty or Minority Clauses (vide Chapter V. passim), over the meaning of such articles either in law or fact, appeal lies to the Permanent Court of Justice, whose decision shall be final. 2 A large number of appeals are provided for under the clauses relating to Inter- national Labour, which appear in all the Peace Treaties, and under those relating to Ports 1 As regards the personal competence of the Court, it appears that advisory opinions can only be given to Council and to Assembly. Only states and members of the League (i.e., states, dominions and self-governing colonies) can be parties to dis- putes. States, not members, may have special conditions imposed on them by the Council, but these are purely financial. * Vide Austrian Treaty, Art. 69, Hungarian, Art. 60, Bulgarian, Art. 57, and the Rumanian, Polish, Czecho- Slovak, Serb-Croat- Slovene, and Greek Minorities Treaties: THE COURT OF JUSTICE 53 Waterways and Railways. Similar appeals are sure to multiply in the future. (b) The " Compulsory Jurisdiction " Clause The question of compulsory jurisdiction awakened lively discussion in committee. The Committee of Jurists had proposed to apply this originally to practically all questions of a legal nature. They found wide support in the Assembly, but the proposal was eventually quashed by the Council, i.e., by the influence of the Great Powers. Ul- timately an optional clause was introduced en- abling such states as wished to bind themselves to the principle of " compulsory jurisdiction " on condition of reciprocity, for such time as they deem fit, and with regard to the same kind of disputes described under Article 13 of the Covenant as being generally suitable for arbitration. 1 The enumeration given in the note deals with the whole field of international disputes except these which are really political. Moreover, a power which signs the optional clause, in effect signs a convention between itself and all others who have signed this clause, creating a binding obligation to accept the compulsory jurisdiction of the Court subject to the limits specified of 1 E.g., legal disputes over the interpretation of a treaty, concerning any question of international law, concerning the existence of any part which, if established, would constitute a breach of international obligation, and concerning the nature and extent of reparation for such a breach. 54 THE SECOND YEAR OF THE LEAGUE validity and reciprocity. Such states do not, therefore, need the special clauses of a treaty or convention to arraign one another before the Permanent Court. Herein clearly is the germ of a very great development. The number of states who had accepted this clause was seven in June ; it had risen in October to thirteen, including Denmark, Norway, Sweden and Switzerland. Sig- nificantly enough, no Great Powers have yet signed. The three Scandinavian Governments also pro- posed amendments to Articles 12-13 and 15 of the Covenant, which would have had the effect of making reference to the Court of Justice or to Commissions of Arbitration or to arbitration generally a more imperative duty for members of the League, and would have withdrawn the process of settlement by arbitration or conciliation from the Council and Assembly on the ground that the Council is too political and the Assembly too large to deal effectively with these matters. These proposals were politely rejected by the First Committee. There is no fear but that the Court will have plenty of work to do ; the fear is as to what its decisions will be and how far they are likely to be accepted. Untrammelled by inconvenient precedents these judges have the grand possi- bility before them of creating, for the first time in history, a proper standard of international justice. THE COURT OF JUSTICE 55 (c) The Establishment of the Court and the Election of the Judges by the Second Assembly So far we have dealt solely with the construction of the project and its acceptance by the First Assembly. The even more difficult work remained of getting the machinery into working order. This was considerable, for it was one thing to get the League Assembly to accept the protocol of the Court of International Justice and quite another to get the individual states to sign and ratify it. To her eternal honour Sweden led the way in ratification (December 21, 1920). It was not a lead that was followed rapidly, and little attention seems to have been paid to the matter in Great Britain until Lord Robert Cecil raised the question in Parliament. On June 21 the Secretary-General reported that 38 States had signed but that only four had ratified it, and that 24 ratifications were necessary before the next session of the Assembly to enable the Court to come into existence. These were ultimately secured, and shortly after the opening of the Assembly the number of ratifications rose to 30. It was therefore possible to proceed to the election of judges. The judges were to be 11 in number, with four deputy- judges. Nominations had already been made. Election was to be by a curious joint system, the Council and the Assembly each elect- ing, the former in private, the latter in public, 56 THE SECOND YEAR OF THE LEAGUE and arriving at agreement by comparing results. On September 14 results showed that both the Council and the Assembly agreed on nine judges, who were accordingly declared elected. The Council had refused to accept Alvarez (Chile) and Huber (Switzerland). After a further vote of the Assembly Huber (Switzerland) and Nyholm (Denmark) were chosen and elected by the Council. A vigorous attempt was then made by the Assembly to choose Alvarez (Chile) as a deputy-judge. This was opposed by the Council, whose candidate was Descamps, of Belgium. Finally, after many ballots and much heat, Beichmann of Norway was elected. The total list therefore ran as follows : Deputies. NEGULESCU YOVANOVICH BEICHMANN WANG In Lord Finlay and Bassett Moore jurists of the first rank were certainly chosen, and Altamira, Brazil Judges. BARBOZA Cuba BUSTAMANTE Latin group (6). France Italy Rumania A. WEISS ANZILOTCT , Spain ALTAMIRA Slav group (1 ) Serb- Croat- Slovene ( Denmark Germanic and 1 Holland Scandinavian 1 Norway ( 4 ) ( Switzerland NYHOLM LODER HUBER Common Law group United States Great Britain MOORE VISCT. FINLAY Asia (2) 1 Japan China ODA THE COURT OF JUSTICE 57 though not a jurist, is one of the first of historians. The responsibility lies on other nations for not nominating more eminent jurists. The Latin races, whose system of law is relatively uniform, have obtained an over-representation, whilst the common law, which controls hundreds of millions of men, is represented only by two. Sir Robert Borden and Ameer Ali (India) were not elected, so that neither our self-governing dominions nor the whole system of Mohammedan law have any direct representative. A Yugo-slav represents all Slavonia, a Switzer all Germanic law ; Magyar law is not represented at all. " Because thou dost not dream thou needst not then despair." We may perhaps solace ourselves with Briand's message (September 20) : " There is no doubt that this High Court, so constituted . . . will establish the rule of law (le regne du droit) between the nations. " II. AMENDING THE CONSTITUTION (a) General The Covenant was a brilliant improvisation drawn up at the Peace Conference in a few weeks by a Commission working at red-hot pressure. 1 It was made in the main by statesmen and not by lawyers, whom President Wilson did not love. 1 A good instance of this is the serious divergencies of the French and English texts. In result many of its clauses have a vague or semi- political meaning. This fact has been of a certain advantage, for the conditions under which the Covenant was drawn up were such as to make precision dangerous. It resembles Napoleon's ideal of a constitution, which was that it should be " short and obscure." The Covenant is certainly both. It contains hardly a sentence, certainly no one article, whose meaning is absolutely clear Consequently its body is naturally the place where the legally-minded vultures will be gathered together. This is as it should be ; there is no harm if they pluck off the feathers, but they must not destroy the bird. In a cosmopolitan com- mittee full of men proud of their legal subtlety, there is an uncommon danger of this kind. Most fortunately the Council, on request of the First Assembly, appointed a Committee to study and report on proposed amendments, which selected Mr. Balfour as chairman. To a mind of a subtlety equal to the most clear-seeing lawyer, the British delegate added a far-seeing political vision, and the result was that his whole effort was bent, and as it proved successfully, towards making the Covenant a living force and one capable of amending and renewing its life. A mere lawyer might have stifled it with subtleties. The Committee held its first session on April 6, 1921, but no serious amendments could come up to be voted on until the Second Assembly met. THE COURT OF JUSTICE 59 One amendment to Article 1, concerning the admission of states, was reported on adversely by the Committee (September 30) as has already been told elsewhere (Chapter III., Sect. e). It would have involved a transformation of the nature of the League and would have admitted Germany without satisfying the League that she had passed the tests previously required for admission. In striking contrast to this Amendment to Article 1 (which, if carried, would have transformed both Covenant and League) stood the question of the conditions of voting on and the ratification of amendments to the Covenant. This was ob- viously crucial, for, if the Covenant could not be amended or revised, it would be confined in a strait-waistcoat which would ultimately suffocate it. Certainly, if we may change the metaphor, asphyxiating gas lurked in Article 26. It runs as follows (first par.): "Amendments to the Covenant will take effect when ratified by the members of the League whose representatives com- pose the Council and by a majority of members of the League whose representatives compose the Assembly." This of course refers only to the conditions of ratification needed to bring an amendment into 60 THE SECOND YEAR OF THE LEAGUE force. Does it also refer to voting in the Assembly or not ? If it does, the constitution is flexible and can be amended. If it does not, the vote of the Assembly is governed by Article 5, which provides that its vote must be unanimous unless otherwise expressly provided. The danger of unanimity being necessary to amendment was therefore a very real one. Mr. Balfour at once drew the attention of the Committee to this danger (September 23). He pointed out that it was a possible interpretation of this clause that a single recalcitrant state could prevent amendment. That was a juristical con- clusion which he, though not a jurist, would oppose. In the first place he brought evidence to show that the actual wording was incorrect. President Wilson, in a speech introducing the Covenant in its final form, April 28, 1919, said : " Article 26 permits the amendment of the Covenant by a majority of the states composing the Assembly, instead of three-fourths of the states, though it does not change the requirement in that matter with regard to the vote in the Council." * This utterance was not contradicted, 1 Vide also the British Official Commentary, Cmd. 151 (1919) p. 19 : " The provisions of Article XXVI. facilitate the adoption of amendments to the Covenant, seeing that all ordinary deci- sions of the Assembly have to be unanimous. ... It is the facility of amendment ensured by this article, and the absence of restrictions on the activities of the Assembly, the Council and the Secretariat, which make the constitution of the League flexible and elastic, and go far to compensate for the omissions and defects from which no instrument can be free that represents the fusion of so many and various currents of thought and interest." THE COURT OF JUSTICE 61 and is really decisive as to intention ; and its tenor was confirmed by Mr. Doherty, the Canadian Chief Justice. Mr. Balfour therefore held that the intention of the framers of Article 26 had been to permit amendment of the Covenant either by a simple majority or a three-fourths majority, and not to insist on unanimity. Any process of amendment should be to assist and not to strangle. Every living organism must grow and expand. States can hardly approve a Covenant which is subject to no process of amendment like their own Constitutions. " Even the Coven- ant was not the result of an inspiration." Any defect the Covenant may contain must be- come doubly dangerous when it is evidently irremediable. A lively discussion ensued. France had special reasons for not wishing the Covenant to be changed, and M. Noblemaire insisted on unanimity. He was supported by Struycken, of the Netherlands, from a purely legalistic standpoint. Otherwise the discussion generally favoured Mr. Balfour's view. One point emerged clearly, viz., that the sovereignty of states was in no way infringed by amendment by a bare or a three-fourths majority. For under Paragraph 2 of Article 26 " no such amendment shall bind any member of the League which signifies its dissent therefrom, but in that case it shall cease to be a member of the League." The sovereignty of states was not at stake, but a means of bringing moral pressure to bear on them 62 THE SECOND YEAR OF THE LEAGUE was. A representative of a state would feel the atmosphere of an Assembly, if three-fourths could carry the day against him. But if he alone could veto all proceedings, like a Polish nobleman at the old Polish Parliament, he might be actually encouraged to do so. On the other hand, no state would lightly refuse to accept an amendment if refusal carried with it withdrawal from the League. The discussion was not finished in a day, and countless counter-proposals were drafted. One home-thrust by Mr. Balfour told on his too juristic- ally minded opponents. " If amendments are impossible, why have we spent all this time con. sidering them ? " This brought the Committee to a full sense of its dignity, and eventually a compromise, satisfactory to all, was arrived at. The Committee finally, on September 29, brought forward a recommendation, a resolution, and a decision on procedure. The Committee decided to " recommend to the delegations not to pass during this session any resolution of amendment unless it receives a three-fourths majority (of the Assembly), amongst which must be included the votes of all the members of the Council repre- sented at the meeting." The resolution, the result of an ingenious compromise between the Rumanian Negulescu and the Dutchman, Struycken, was an amendment of Article 26, as follows : " Amendments to the present Covenant, the text of which shall have been voted by the THE COURT OF JUSTICE 63 Assembly by a three-fourths majority in which there shall be included the votes of all the members of the Council represented at the meeting, will take effect when ratified by members of the League whose representatives composed the Council when the vote was taken, and by the majority of those whose representatives formed the Assembly. " If the required number of ratifications shall not have been obtained within eighteen months after the vote of the Assembly, the proposed amendment shall remain without effect. " The Secretary-General shall inform the mem- bers of the taking effect of an amendment. " Any member of the League which has not at that time ratified the Amendment is free to notify the Secretary-General within a year of its refusal to accept it, but in that case it shall cease to be a member of the League." Lastly there was a decision on procedure. " The Committee requested its rapporteur to draw the Assembly's attention to the fact that it is most desirable that the vote on the proposed Amend- ment to Article 26 should be unanimous in order that this vote may have all the authority that could be wished." In other words, the Assembly ought to recognise that, as the legal position was doubtful, the Amend- ment of Article 26 must be carried unanimously. The Assembly rose to the occasion and carried the 64 THE SECOND YEAR OF THE LEAGUE resolution unanimously on October 3, though there were 14 abstentions. Though it was largely an unseen crisis, this was one of the most real ones in the history of the League. The pedantic lawyers and the lovers of juristic technicalities had had a dangerous op- portunity. In all probability the original framers of Article 26 meant that amendments should be carried by a simple, certainly by a three-fourths, majority of the Assembly. This unfortunately was not what they said, or rather, wrote. A careless verbal slip therefore threatened the life of the Covenant. Owing largely to Mr. Balfour's intervention this danger was averted. The Cove- nant still wears a tightish waistcoat and cannot easily expand or grow, but fortunately it is not a strait-waistcoat. (c) Other Amendments These concerned a number of topics. Some of them were purely technical, such as those dealing with drafting amendments to Articles 12, 13, 14 and 15 necessitated by the creation of a Permanent Court of Justice. Others dealt with compulsory jurisdictions j 1 others dealt with such questions as the composition of the Council. On neither of these last two points was any definite decision reached. A lively discussion arose about Article 10, 1 Vide supra, Chap. iv. i, Sect. 6. THE COURT OF JUSTICE 65 which Canada wished to delete. This is the famous Article by which " the members of the League undertake to respect and preserve, as against external aggression, the territorial integrity and existing political independence of all members of the League. In case of any such aggression or danger of such aggression, the Council shall advise upon the means by which this obligation shall be fulfilled." This Article ruined President Wilson, its author, and alienated the United States. France, not feeling as secure as Canada against territorial aggression, vigorously opposed the dele- tion of this article. Ultimately, as great divergence of opinion existed on the meaning of the Article, 1 the Committee reported in favour of taking no action in the matter. Interesting amendments were also proposed on the subject of Article 16 (the Economic Weapon) and on Article 18 (Registration of Treaties). In neither case were satisfactory conclusions reached, as both subjects bristled with difficulties. It seems to be clear, however, that all international agreements could not be registered, that exceptions should be made in the case of technical and certain other conventions, and that, on the whole, this would produce more satisfactory results. As regards the Economic Weapon a long series of proposals was adopted by a Resolution of the Assembly. The Council was to express the opinion 1 It is not clear, for example, that members of the Assembly, apart from the Council, are bound by the letter's advice. E 66 THE SECOND YEAR OF THE LEAGUE as to whether a state had broken the Covenant, and to invite members to apply economic pressure. But *' it is the duty of each member of the League to decide for itself whether a breach of the Covenant has been committed." This seems to nullify the effect and universality of economic pressure. Yet the threat of it brought the Serb-Croat-Slovene state to its knees in November (vide Chapter VIII., Sect. h). (d) The Proposed Amendment to Article 21 Perhaps, however, after Article 26, the most important amendment of all was that to Article 21. The Article runs as follows : " Nothing in this Covenant shall be deemed to affect the validity of international engagements such as treaties of arbitration or regional understandings like the Monroe Doctrine for securing the maintenance of peace." To which the Czecho-Slovak Govern- ment proposed to add : " Agreements between members of the League tending to define or complete the engagements contained in the Covenant for the maintenance of peace or the promotion of international co-opera- tion, may not only be approved by the League, but also promoted and negotiated under its auspices, provided these agreements are not in- consistent with the terms of the Covenant. " Special Conferences of the members of the THE COURT OF JUSTICE 67 League concerned may be summoned for this purpose by the Council or by the Assembly." This project, which was obviously due to Dr. Benesh, was wise and statesmanlike. He had concluded agreements with Rumania and the Serb-Croat-Slovene state for enforcing the Austrian, Hungarian and Bulgarian Treaties. These are known as the " Little Entente." Dr. Benesh thought small leagues or alliances inevitable and preferred them to be negotiated under the auspices, and thus to some extent under the control, of the League. It seems that this was a sound pro- posal. China had formulated, but did not press, an amendment to remove the phrase " regional understandings," or to add a proviso that such understandings were not to be detrimental to the interests and rights of other members of the League not parties to them. Dr. Benesh's amend- ment would have provided for the latter. It was based on the realisation of the unpalatable fact that a general league had, in effect, broken down, and that ententes and alliances were growing up within it. Dr. Benesh proposed to deal with " leagues within the League " by making the Assembly approve of them. This suggestion was eminently wise and practical. It meant that certain groups of states had regional interests and that these should be pursued under the aegis of the League. It is almost a federalist principle, and was emphasised at the Barcelona Conference on Transit in March-April of 1920. It found 68 THE SECOND YEAR OF THE LEAGUE support both among many members of the League and in the Press. On the whole, however, the First Committee decided that the time was not ripe for this interesting proposal to be practically accepted. MINORITIES AND MANDATES Two of the noblest functions of the League are the protection of those placed under alien rule whether they be the backward races of mankind or relatively civilised racial minorities. The task is in each case one of the greatest delicacy and difficulty, and one which the League is particularly qualified to undertake, for it demands permanent supervision by an expert staff and the collection and systemisation of information. Such tasks can best be undertaken by a neutral and inter- national body, and it is, in fact, of considerable interest that the member of the Secretariat dealing with Minorities is M. Colban, a Scandinavian, and the one dealing with Mandates Professor W. E. Rappard, a Switzer, whilst the majority of the Permanent Mandates Commission is composed of representatives of powers not directly interested. I. MINORITIES l (a) Previous Precedents The position as regards protection of racial Minorities is a curious one. Ever since 1830, as 1 Vide an excellent article in History of Peace Conference, vol. v., chap, ii. 70 THE SECOND YEAR OF THE LEAGUE the liberation of the Balkan States proceeded, the Great Powers had pursued the practice of not recognising new states like Greece, Rumania, etc., without exacting from them pledges in the form of international agreements to protect the racial or religious minorities acquired by these new, but not always highly civilised, states. In origin the aim was to protect Mohammedans against the Christian bigotry of the newly-formed states. But, as Greece hated Slavs, and vice versa, and as every Balkan race hated the Jews, pro- visions for protecting other races were gradually inserted. A practically complete protective system, guaranteed by the Great Powers, had been evolved and was endorsed by the Congress of Berlin in 1878 and applied to Greece, Servia, Rumania and Bulgaria. The Sultan was also induced to give a general undertaking to protect his Christian subjects. The Balkan war of 1912-3 added new territory to the Balkan States, but, though they undertook no new obligation for protecting the new racial minorities they acquired, it is clear that the Congress of Berlin arrangements were still regarded as in force. (b) Minorities Treaties Agreed upon by the Peace Conference At the Peace Conference in 1919 all the enlarged states of Central and East Europe, like Rumania, the Serb-Croat-Slovene kingdom, and Greece, and MINORITIES AND MANDATES 71 the new states, like Poland and Czecho-Slovakia, received immense territories and large blocks of alien races and religions. Racial passions were so heated in the war that it was clearly the duty of the principal powers, who had conquered and could dispose of these territories, to exact pledges from these respective countries before handing over to them the alien populations. A series of Minorities Treaties was thereupon prepared. Czecho-Slovakia to her very great honour made no difficulty about signing her Treaty. Greece made very little, and Poland was not in a position to resist, because she was presented with the necessity of signing a pledge to protect her minorities at the same time as she received recognition of her existence by international agree- ment in the Treaty of Versailles. The Polish Minorities Treaty only came into force on January 10, 1920. Rumania and the Serb-Croat-Slovene state made a great resistance, and they did not finally surrender and sign their respective Minorities Treaties until December, 1919. The Czecho- slovak, 1 the Serb-Croat-Slovene and Rumanian Minorities Treaties apparently came into force before the end of 1920. But the Council of the League curiously enough appears to have held 1 By this time the Serb-Croat-Slovenes, the Czecho-Slovaks and Rumanians had all ratified, and two of the four principal powers in each case. As there were no special conditions of ratification inserted in these treaties, these would appear sufficient. 72 THE SECOND YEAR OF THE LEAGUE that the Rumanian Treaty was not in force until the summer of 1921. (c) Procedure as Regards Protection of Minorities It is obvious that an international guarantee for the Protection of Minorities is very difficult to enforce. All the Treaties declare such protection to be "an object of international concern," and no such obligations can be modified without the consent of a majority of the Council of the League. 1 At the same time it is quite clear that, unless the matter is very carefully handled, well-intentioned busybodies or ill-intentioned mischief-makers might make unfounded accusations against a Government with impunity. The provision in these Treaties that a member of the Council of the League has the right to draw the attention of the Council to " any infraction, or danger of infraction, of any of these obligations," does not entirely meet the case. This does not prevent a false or partisan accusation being made against a state, and the original story may get a start of the denial. To avoid these difficulties a procedure, suggested originally at Brussels, October 22, 1920, was adopted and extended to Czecho-Slovakia 1 By an interesting provision in all these Treaties, e.g., Art. 12, Rumanian Treaty, " the United States, the British Empire, France, Italy and Japan agree not to withhold their absent from any of these Articles which is in due form assented to by a majority of the Council of the League of Nations." MINORITIES AND MANDATES 78 and Poland by the Council on June 27, 1921. Petitions concerning protection of religious and racial minorities from petitioners, other than members of the League, are to be communicated to the State concerned. Within three weeks the state concerned must answer the petition or declare that it has no comment to make. It is only then that the petition will be communicated by the Council to the Members of the League generally. If the state concerned wishes to submit comments, a further period of two months is permitted it and the petition with the comments will then be transmitted to the members of the League. Czecho-Slovakia and Poland immediately adopted this procedure. The Serb-Croat-Slovene state refused to adopt it, and preferred the pro- cedure of October 22, 1920, which M. Spalaikovio" expressed to the Assembly as follows on September 9 : " We accept the position that the Secretary- General should inform all the members, who are represented at the Council, of the petition, but we cannot accept the position that such com- munications should be circulated to any member of the League, because it is impossible for us to control the consequences of such widespread publicity." The matter did not end here. Professor Gilbert Murray, third delegate for South Africa, brought forward a motion on September 12, asking for a " Permanent Commission to consider and report upon complaints addressed 74 THE SECOND YEAR OF THE LEAGUE to the League on this matter, and, where necessary, to make enquiries on the spot." This would have represented a considerable advance even on the procedure adopted by Poland and Czecho- slovakia. The proposal was referred to a Com- mittee, which finally asked Professor Murray to withdraw his motion (which he did), and affirmed the procedure of the Resolution of the Council of October 25, 1920. This enables petitions to be considered by the residents and two members of the Council, and enquired into, to see if there is infraction or danger of infraction of the clauses of the Treaties for the protection of Minorities. Professor Murray's action, though withdrawn, had served the useful purpose of enabling the Assembly (and incidentally the public) to take note of the procedure in vogue. (rl) Agreements for the Protection of Minorities Negotiated by the League. Finland and Albania By a resolution of the First Assembly of Decem- ber 15, 1920, it was provided that, " in the event of Albania, the Baltic and Caucasian States being admitted to the League, the Assembly request that they should have the necessary measures to enforce the principles of the Minorities Treaties, and that they should arrange with the Council the details required to carry this object into effect." Albania and Finland were admitted as new states MINORITIES AND MANDATES 75 by the First Assembly, and it became necessary to put this resolution into effect with regard to them. The problem was a new one, for the previous Minorities Treaties had been negotiated between the Principal Powers and the states concerned. It was only when the Minorities Treaties came into force that the League became their guardians. In the case of Albania and Finland, the League negotiated everything from the first. As, however, the League is neither a state nor a super-state, it cannot negotiate a treaty with anyone, and had to be content with extracting a solemn and signed declaration from Albania. Finland escaped very lightly. The Council reported that the Constitutional Law of Finland contained full stipulations covering all that was demanded for the protection of religious, racial or linguistic Minorities in the ordinary treaties. The only exception to this was in regard to the Aaland Islands, whose Swedish population had been specifically placed under the guarantee of the League by a resolution of the Council (June 27, 1921), which also provided in certain circumstances for action to be taken by the League. Generally speaking, the Council held that the position of Finland, as regards Minorities, was quite satisfactory (Resolution, October 2, 1921). As a whole, this was a generous view to take. It appears that only in 1918 were laws passed putting the Jews on an equality with other citizens, and, under the circumstances, a declaration 76 THE SECOND YEAR OF THE LEAGUE might have been more satisfactory than a general assurance of this kind. If a declaration had been made by Finland to the League, it could not have been abrogated in a hurry. But an anti-Semitic wave in Finland might cause a law to be repealed in a hurry. The existence of a declaration would have enabled a tolerant or liberal ministry in Finland to avoid giving way speedily to mob- pressure. Without such an instrument they may be helpless. The question of Albania offered some difficulty, for the Greek Minority in Albania is strong in culture and vehement in national feeling. The Greeks demanded, therefore, that very special protection should be given to their Minority in Albania. They particularly demanded that Greece should have a right to complain direct to the Council in such case, instead of having to get a member of the Council to make her complaint for her. It was not felt possible to accede to this request, but, by putting together all the different devices for the protection of Minorities in any Treaty, reasonable security was given to the Greeks. Albania signed a Declaration on Sep- tember 22, 1921, which was, in effect, a Minorities Treaty. Apart from the general provisions, there were several interesting articles. One provided that " an electoral system giving due consideration to the rights of racial, religious and linguistic Minorities will be applied in Albania." Another provided that " within six months from the date of MINORITIES AND MANDATES 77 the present Declaration detailed information will be presented to the Council of the League of Nations with regard to the legal status of the religious communities, churches, convents, schools, voluntary establishments and associations of racial, religious and linguistic Minorities. The Albanian Government will take into account any advice it might receive from the League of Nations with regard to this question." It was also stated at the same time, though not inserted in the Declara- tion, that Albania would not object to a commission of enquiry or inspection being despatched by the League, if it was deemed necessary. It was, however, provided in the Declaration that any dispute between a member of the Council and Albania should be a dispute of an international character under Article 14 of the Covenant, and should be referred, on the demand of either party, to the Permanent Court of International Justice, whose decision shall be final, and have the same force and effect as an award under Article 13 of the Covenant. A similar article exists under all the Minorities Treaties as such. 1 (c) Germany and the Polish Minorities Treaty Hitherto no Power of the first rank has been asked to sign Minorities Treaties. It is a curious 1 Declarations similar to the Albanian will have, in due course, to be extracted from Esthonia, Latvia and Lithuania. 78 THE SECOND YEAR OF THE LEAGUE fact that, when Italy acquired large new territories in the 'fifties and 'sixties, no such stipulations were demanded by the Great Powers, nor were they in 1919. But the result of the Upper Silesian award has necessitated a change in this policy. In making a political division of this territory, provision was also made for an Economic Union for a period of fifteen years. In the Polish zone of Upper Silesia, Poland was bound by her Minorities Treaty to give all rights and equality of treatment to German nationals, whereas Ger- many was not so bound to respect the rights of Polish nationals in the German zone. Hence the Council of the League recommended, and the Council of Ambassadors subsequently decreed, that the principal parts of the Polish Minorities Treaty should be subscribed to by the German Government " at least for the transitional period of fifteen years ... as regards these parts of Upper Silesia definitely recognised as part of Germany." This was demanded by " the prin- ciples of equity and the maintenance of the economic life of Upper Silesia." This ar- rangement was to be embodied in the Polish- German Convention, which was to be placed under the guarantee of the League of Nations in the same way as the Polish Minorities Treaty. 1 1 Cf. Chapter VII., Sect. g. MINORITIES AND MANDATES 79 (/) Execution of the Minorities Treaties The practical outcome as to how far Minorities Treaties have been rendered effective must now be stated. Czecho-Slovakia has done the most up to date to carry out her Minorities Treaty. She has embodied some of the provisions in a Language-Law, and various embittered complaints made by Germans in Czecho-Slovakia have failed to date to make out any substantial grievance. Further, M. Osusky delighted the Assembly (Sep- tember 15) by explaining in detail the measures taken by his Government in the autonomous province of Ruthenia, to safeguard the interests of the Ruthenes who live there. Under Hungary there were no State officials, and only 15 public functionaries, of Ruthenian race. Now there are 20 out of 54 state functionaries who are Ruthenes, including the Governor. Of other public func- tionaries there are 91 of Ruthenian race. Under Hungary there were 15 schools, now there are 511, teaching the Ruthenian tongue. That seems enough to say about Ruthenia. In Czecho- slovakia as a whole the German and Magyar population numbers just under 29 per cent. Their share of primary and secondary schools, as well as of industrial and technical institutes and univer- sities is, in each case, slightly over 30 per cent. In addition the electors have shown clearly that the system of proportional voting is fairly applied. 80 THE SECOND YEAR OF THE LEAGUE No other country can boast so good a record as this. The data are insufficient at present to ascertain the facts about the treatment of Minorities elsewhere. There have been complaints, of course, in several countries. But there are only two solid points which stand out. Greece has signed her Minorities Treaty but has refused to observe it until the Turkish Treaty is in force. This is sufficiently disagreeable, but there is worse to be recorded. Rumania has dispersed the Magyar university and professors of Koloszvar (Cluj). She has established a German faculty in the University, in addition to the Rumanian, but has at present made no provision for the teaching of Hungarian. It is improbable that this, or any other flagrant breach of the Minorities Treaties, can remain unobserved by the League. Those who denounce the Minorities Treaties as worthless should re- member the resistance to signing them made by Rumania and by the Serb-Croat-Slovene state. If they were merely worthless scraps of paper why should these Powers have objected to signing them ? Again, it is evident from the utterances and actions of their statesmen that these countries thoroughly understand the force of publicity and the importance of making their professions square with their practice. These considerations make it clear that the Council of the League has consider- able powers, if and when it decides to use them. Moreover, if matters are pushed a Voutrance the Permanent Court of International Justice would MINORITIES AND MANDATES 81 have to pronounce judgment, and that is a verdict from which any sinning state might shrink. l II. MANDATES (a) General The whole question of Mandates is still a most serious and very largely an unfinished one. The situation at the meeting of the first Assembly was that, after a considerable time, the Council received and defined the C Mandates. 2 The scope of these is thus indicated : C. " There are territories, such as South- West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical con- tiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral por- tions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population" (Art. 22 of Covenant of League). 1 The four enemy Powers of Austria, Hungary, Bulgaria and Turkey have all had clauses for protecting Minorities insetted in their Treaties. 2 The Powers to which C Mandates over ex-German territory were allotted were as follows : German Pacific possessions south of Equator (Australia), except German Samoa (New 7) The Decision of the Council of the League Viscount Ishii, the Acting President of the Council of the League, answered M. Briand's letter of August 12 on the 19th, and convened the Council for the 29th. In his report on that date Viscount Ishii suggested that the League's advice was asked " without reserve and without restriction." He pointed out that Article 11, par. 2, of the Covenant ran as follows : " It is declared to be the friendly right of each member of the League to bring to the attention of the Assembly or of the Council any circumstances whatever affecting international relations which threaten to disturb international peace or the good under- standing between nations upon which peace depends." The right of the League to make " a recommendation " by request of one or more of its members was clearly implied in the Coven- ant. Clearly also the power to decide on the frontier lay with the Principal Allied and Associated Powers under Articles 87-88 of the Treaty of Versailles, 1 but the League could 1 Art. 87 : " The boundaries of Poland not laid down in the present Treaty will be subsequently determined by the Principal Allied and Associated Powers." Art. 88 : Referring to the plebiscite : " Germany hereby renounces in favour of Poland all rights and titles over the portion of Upper Silesia lying beyond the frontiei>line fixed by the P.A. and A.P. as a result of the plebiscite." 116 THE SECOND YEAR OF THE LEAGUE recommend and its recommendation would be accepted. Entering into questions of principle, Viscount Ishii laid it down as incontestable that the authors of the Treaty had not intended to cede the ple- biscite area en bloc to one party or another, but had desired the "determination of a frontier, no particular line being either prescribed or excluded in advance." Another great guiding principle was that expressed in Annex 5 to Article 88 of the Treaty, instructing the Commissioners to recommend, after the plebiscite, "the line which ought to be adopted as the frontier of Germany in Upper Silesia. In this recommendation regard will be paid to the wishes of the inhabitants as shown by the vote, and to the geographical and economic conditions of the locality." On this sentence and its interpretation depended the whole decision. The Council at once accepted the task and drafted a public communique* to the effect that their task " was not a question of Polono-German conflict or of arbitration between disputants ; it is a question of formulating the recommendation to the Supreme Council at its request regarding the application of one of the clauses of the Treaty of Versailles." It is worth noting that Viscount Ishii continued to preside over the sessions of the Council dealing with Upper Silesia. On September 1 the Council decided that the pre- liminary examination of the question should be UPPER SILESIAN AWARD 117 entrusted to the four members of the Council who had previously taken no part and had had no bias in the question. These were Da Cunha (Brazil), Wellington Koo (China), Quinones de Leon (Spain), and Hymans (Belgium). The last accepted the task on behalf of his colleagues " in a spirit of perfect justice, of perfect freedom, and of perfect independence." All sorts of evidence and all sorts of witnesses came before these in- vestigators. The official representatives of Poland and Germany were not summoned, but delegations of miners, industrial employers and partisans of both nationalities were summoned and heard by the Four. The decision was made known to the President of the Supreme Council on October 12, and to the general public on the 24th. 1 In their in- terpretation the League Council held (and probably rightly) that the solution of the problem, in con- formity with the expressed vote of the inhabitants of the plebiscite area, was the first and most im- portant consideration. The frontier-line recom- mended by the League shewed that nationality was judged superior to coal, to transport, and to geographical convenience. On the whole, it is true to say that the League line sinned less against nationality than either the British or the French lines. In the second place, the League decided to 1 It was unfortunate that, by what appears to have been an accident, the actual details were in substance those given to the Press on the 12th. Vide Times, Oct. 13. 118 THE SECOND YEAR OF THE LEAGUE divide the industrial triangle. They lopped off one big angle consisting of the two almost exclusively German towns of Konigs-huite and Kattowitz and gave it to Poland ; Beuthen and Gleiwitz, the other two angles, remained to Ger- many. The League recognised, however, that these two solutions of the national and economic questions " must inevitably result in leaving relatively large minorities on both sides of the line and in separating important interests." Ac- cording to German figures, Poland will obtain 85 per cent, of the coal-mines, 67 per cent, of iron furnaces, all lead and zinc pits, all zinc works and all zinc-plate rolling works. So far, then, the League had propounded a solution more just in the abstract as to nationality and more difficult in the concrete as to economics than any other yet proposed. The success of their recommendation depended on its being shewn to be really workable. The League are said to have been influenced in their decision to divide the industrial area by the evidence and opinions of Dr. Beuesh, the celebrated Foreign Minister of Czecho-Slovakia, who was present for a few days in Geneva. He pointed out that, in the Teschen area, Czech and Pole had divided a great industrial district under circumstances of peculiar delicacy. This division had not been fatal to the industry of the area ; on the contrary, it had produced a working modus vivendi between the two nationalities. The League appear to UPPER SILESIAN AWARD 119 have taken the hint and attempted to improve upon the model. They hit on an original plan. Upper Silesia was to be divided politically and economically, but, while the political frontier was to be drawn at once, the economic unity of the whole area was to be prolonged for fifteen years. The scheme was evidently suggested by Article 90 of the Treaty, which provides that for a period of fifteen years, dating from the allocation of the frontier, Poland shall permit the export to Germany of the products of the mines in the Polish zone of the plebiscite area. The railways, of which most are German State ones, are to be jointly operated, and those of the Schlesische Klein-Balm Aktien-gesellschaft are to be operated as a single unit, in each case for fifteen years. Railway rates are to be uniform and there is to be a single accounts office for the whole system. Special agreements are to maintain the existing water-supply system for the same period, and special provisions for three years are to be made as to the supply of electric power. For fifteen years the German mark is to be legal currency, and postal, telegraph and telephone charges fixed accordingly. Even the Customs Regimes of the two states are to be seriously modified. 1 They are not to come into force for six months and, 1 In accordance with Art. 268 of the Treaty, natural or manu- factured products coming from the Polish zone shall, on im- portation into the German customs area, be free of all customs duty for three years. 120 THE SECOND YEAR OF THE LEAGUE when they do, for fifteen years very special arrange- ments are made to relieve from duty the national products produced in one zone of the area and destined to be used or consumed in the other. The same freedom from duty applies to raw, halt- manufactured and unfinished products made in one zone and destined to be finished in the other zone, and "intended for importation into the country of origin." Similarly, with regard to export regulations, for fifteen years both parties undertake to facilitate the export from their respective territories of such products as are indispensable for the industry of either zone of the plebiscite area, by supplying the necessary export licences and by authorising the execu- tion of contracts entered into by private individuals. The arrangement as regards coal, according to Article 90 of the Treaty, has already been indicated. There are some highly significant provisions of a more general character indicating that there will be economic unity of the area for half a generation. Thus both national Governments recognise for fifteen years the existing unions of employers and workmen, which are allowed to enter into col- lective contracts throughout the whole area. Again, local benefit societies, whether in the Polish zone or the whole area, will be maintained for fifteen years unless both Governments con- cerned agree to divide them. Free movement as between the zones is guaranteed to any UPPER SILESIAN AWARD 121 inhabitant regularly domiciled in the plebiscite area. Poland renounces powers given her under Articles 92 and 297 as regards no expropriation of in- dustrial undertakings, mines or deposits, save where, in the opinion of the Mixed Commission, such powers are necessary to ensure continued co-operation. If disputes occur between Polish or German Governments as to any legislative measure, passed by either country as affecting the area, either Government may appeal to the Council of the League, whose decision both Govern- ments undertake to accept. Certain other im- portant arrangements for the protection of minorities are discussed elsewhere. 1 But an im- portant provision arranged for two bodies to carry out all these provisions an Arbitral Tri- bunal, entrusted with the duty of settling private disputes arising under the operation of the various arrangements laid down. This was to consist of a Polish and a German arbitrator, with a president appointed by the Council of the League. There was also to be an Upper Silesia mixed commission consisting of two Poles and two Germans from Upper Silesia, and a president of another nationality appointed by the League. This body was to superintend the carrying out of all the above provisions, which were to be embodied in a Polish-German Con- vention. 1 Vide Chapter V. 122 THE SECOND YEAR OF THE LEAGUE (h) Acceptance of the League's Decision (October 20) The Four Allied Powers took a week before they accepted the recommendation, France having raised some objection in the interim. It was presented on the 12th and accepted on the 20th. A decision, verbally embodying that recommendation, was taken by the Council of Ambassadors at Paris and transmitted to Viscount Ishii the same day. With the obvious view of creating a fait accompli, immediate steps were taken by the Powers to bring the award into working practical action. A covering note warned Poland and Germany that the Supreme Council would execute -the award in all its parts. Outside diplomatic circles public feeling was less favourable. British opinion had supported Lloyd George in his professed intention of pre- venting Poland from " breaking the crockery " in Upper Silesia. It had also in the main sup- ported him, though it imperfectly understood him, in his refusal to divide the " industrial tri- angle." The division of the triangle by the League award was thus, on the whole, a defeat for Great Britain. But British opinion had a profounder belief in the justice of the League than in the wisdom of her own statesmen, and, though brilliant and hostile critics shewed themselves in the Press, there was no serious popular feeling in favour of not accepting the award. The attitude of UPPER SILESIAN AWARD 123 France was less satisfactory. Her diplomats had raised some objections, 1 and her Press was not wholly favourable. Polish opinion was profoundly impressed and, on the whole, satisfied. The League frontier-line was far east of the Korfanty line and of the French frontier-line, but on the whole acceptable. The attitude of Germany was, however, a graver matter. The mark began to fall as soon as the division was rumoured. Dr. Wirth resigned, the German Press resounded with wails and complaints. There can be no doubt of the genuine- ness of the feeling. If intensity is to overcome all other considerations the Germans deserve Upper Silesia. The whole of the Treaty negotia- tions prove this, and the venomous hatred of Poles by Germans is part of their earnest love for Upper Silesia. They regard it as a province won from barbarous Poles by the achievements of German business organisation and by the influence of German " Kultur." Upper Silesia is to Germany what Alsace-Lorraine is to France. At the plebiscite few very few men of German speech or race voted for Poland, many very many Poles voted for Germany. It is charac- teristic of the curious artlessness of this race 1 According to Art. 88 of the Treaty (Ann. 5) Allied troops had to withdraw one month after notifying the frontier to the two Governments concerned. This was clearly impracticable, but diplomacy got out of the difficulty by "communicating" the decision. "Notification " was reserved until such time as was convenient. Such is diplomatic resource ! 124 THE SECOND YEAR OF THE LEAGUE that they believed to the last that Germany would receive all Upper Silesia. They did not see that the Treaty obligations, or the plebiscite result, made any difference. Upper Silesia, in German eyes and in German sentiment, was indivisible, therefore it was not to be divided. To divide it was cruelly to injure the susceptibilities of Germany for the sake of a number of Poles who would just as soon co-operate with Germany, and who had been intimidated by Korfanty or by the French. That this was the almost universal German view is shown by the speech of Dr. Wirth in announcing the remarks of his Cabinet, and, in effect, his resolve to accept the award. He showed clearly that he believed the decision to have been due in fact not to the League but to the Supreme Council. His surprise and disappointment were genuine and evident, and this fact is the more significant because even the French admit him to be one of the most moderate and reasonable of men. Others were less restrained than he, and when the President of the Assembly, Herr Locbe, addressed a kind of mournful farewell to the faithful Germans handed over to Poland, the air was heavy with sentiment. Even making large deductions for worked-up feelings, there can be no doubt of the terrible humiliation the average German must feel over the League's decision. The actual difficulties of a practical kind are not really as grave as this sentimental one. Business men are not primarily influenced by sentiment, UPPER SILESIAN AWARD 125 and, once the decision is unavoidable, they will strive to get what they can out of it. The ex- ample of Danzig is encouraging. Few difficulties could be greater, few enmities more bitter, than those which have been faced and settled there. The same is true in the case of Teschen. In both cases two bitterly hostile and alien populations have finally been united by economic bonds. The Danzig case offers an analogy in that the single neutral head the High Commissioner has proved the reconciler of difficulties as we may hope the single neutral President of the Upper Silesia Commission will do. The Teschen analogy carries us even further, for it shows us that, even when two alien nationalities inhabit an industrial area, divided between them politically, they find it on the whole advantageous to co-operate economically, and are beginning to do so. In the Silesian case Poles and Germans must co- operate economically for fifteen years and, after that period, it may be hoped that they will have learnt the habit of doing so. The sentimental and spiritual objection of Germany remains. It may be very serious, for it may prevent her from applying for admission to the League and the longer Germany remains outside the League the worse both for her and for the League. Yet it is well to look on the brighter side. The League was tried by a choice of dangers. To refuse to make an award was cowardly, to make it was perilous. But if the 126 THE SECOND YEAR OF THE LEAGUE League had not chosen the bolder course it would have earned general contempt. What it had actually achieved is already memorable. In a highly interesting article, published in the Round Table, and entitled " Diplomacy by Conference," Sir Maurice Hankey partly lifted the veil from the diplomatic processes by which the Allies were got to co-operate during the war and still more during the peace. He dwelt on diplomatic con- ferences, and the virtues of certain methods for easing rusty wheels and turning dangerous corners. Yet all this masterly process of lubrication broke down before the Upper Silesian difficulty. No secretarial persuasion, no conference methods, no traditions of unity or agreement, no personal appeals, no attachments or friendships availed. The break between British and French policy over Upper Silesia was definite and fundamental on August 12, 1921. The whole machinery of agree- ment, carefully and painfully built up during half a dozen years of comradeship, collapsed. The Supreme Council had failed, and had failed lamentably. Yet where it failed the League Council succeeded. By interposing the elements of time and of impartial investigation the League Council worked out a decision which both France and Great Britain could accept with honour. This was not their only service. They did actually decide a question, whose continuance would have worked like a festering wound in the body politic of Europe. Any decision was better than no UPPER SILESIAN AWARD 127 decision, and this decision seems on the whole to have advantages that no other proposed settle- ment had ; that is what, in this matter then, Europe owes to the League, and it is probably only the first of a series of such obligations. S E (M O N T J^ iHf R 0) iCe ttftnje ^SCUTARI * ^ Durazzot Koritza Itranto Ethnic limit of Albania as claimed by Albanians. . aoas> Frontiers of 1913 Decision of (Revisions in Principal yavourofSerbil. . Potters -ttorAReviiiont in NoTr Serbian demarcation lint in Northfolloied the Drin approximately. - Scale - Miles 50 10 !