The eleventh question related to the right of optants for German nationality to remain in Poland. The German Government maintained that those who had opted for German nationality had the right to conserve their domicile in Poland; the Polish Government, on the other hand, contended that they were obliged to leave Poland upon demand of the Polish authorities. The decision of the arbitrator on this point was in favor of the Polish contention. In the course of his opinion, he observed that:

It must be admitted that a cessionary state normally has the right to require the emigration of the inhabitants of the territory ceded, who have opted in favor of the ceding country. This principle, consecrated by international practice and expressly admitted by the best authors, is found at the base even of the stipulations concerning option, in the recent treaties of peace.

He added that the denial of this right in the present case would have a character so exceptional that it could not be presumed. Reasons of humanity and of an economic order, he admitted, might easily be conceived that would make emigration a hardship, but it was not easy to see that Poland had entered into an engagement to allow for an unlimited period the presence in its territory of persons who, having become of full right Polish subjects, had, subsequently, renounced their Polish nationality and renewed their German allegiance, were yet free of their obligations and duties as Polish citizens.

The decisions on all the questions submitted were accepted by both governments, and in accordance with the terms of the protocol adopted at Vienna on May 20, 1924, which provided that the decisions should constitute "the elements of a convention to be drafted by the delegates of both Powers under the presidency of the arbitrator," a convention was signed on August 30, 1924, embodying, in the main, the findings of the arbitrator.1

By Article 12 of the convention it was provided that the persons remaining in Polish territory and who had made a declaration of option for German nationality which the competent authorities considered valid, should be obliged to transfer their domicile from Poland to Germany, unless their declarations were annulled because of non-conformity to the present convention. Such transfer was to take place in the case of certain persons not later than August 1, 1925, in the case of others not later than November 1, and in respect to others not later than July 1, 1926. It was further provided that in case any optants failed to leave Poland before the dates prescribed, they should be conducted to the German frontier and there delivered to the German authorities.

Unfortunately, the conclusion of the convention was followed by a regrettable occurence. Apparently the German optants who by the terms of

1 The texts, in French, of the decisions of the arbitrator, the memoirs of the two governments, the convention of August 30, and various other documents relating to the case are printed in a volume entitled Actes et Documents de la Conférence Germano-Polonaise, Tenue à Vienne du 30 Avril au 30 Aôut 1924 (Manz, Editeur, Vienne).

the convention were required to leave Poland, took no steps to emigrate, and accordingly near the end of July, 1925, as the first date fixed by the convention for removal drew near, some 15,000 Germans, many of them with their wives and children, were forcibly and hurriedly conducted by the Polish authorities to the German frontier. The German authorities thereupon retaliated by expelling in a similar manner some 12,000 Polish families residing in Germany, who had opted for Polish nationality. All accounts agree that the expulsions were attended by grave hardships, especially for the women and children, since no adequate arrangements had been made for the reception and care of the evicted population.

J. W. GARNER.

OTTOMAN PUBLIC DEBT ARBITRATION

The arbitral decision rendered April 18, 1925, concerning the apportionment of the annuities of the Ottoman Public Debt among the various states whose territories, in whole or in part, formerly belonged to Turkey, is of the highest interest. This arbitration was expressly provided for in Article 47, Part Two, of the Treaty of Lausanne of July 24, 1923, which determined in principle the proper apportionment of the external debt of Turkey.1 No protocol of arbitration could be in simpler terms:

Any disputes which may arise between the parties concerned as to the application of the principles laid down in the present article shall be referred, not more than one month after the notification referred to in the first paragraph, to an arbitrator whom the Council of the League of Nations will be asked to appoint; this arbitrator shall give his decision within a period of not more than three months. The remuneration of the arbitrator shall be determined by the Council of the League of Nations, and shall, together with the other expenses of the arbitration, be borne by the parties concerned. The decisions of the arbitrator shall be final. The payment of the annuities shall not be suspended by the reference of any disputes to the above-mentioned arbitrator.

The history of the case is briefly as follows. The Council of the Ottoman Public Debt (Dette Publique Ottomane, an extraordinary institution created in 1881 to meet the exigencies of foreign bondholders), in pursuance of Article 47, notified the various succession states on November 6, 1924, of their respective shares of the Turkish debt. Greece on November 26, 1924, was the first to appeal from this decision to the arbitration provided for. Turkey followed on November 30; France on December 2; Bulgaria on December 2; and Great Britain on December 15.

The Council of the League of Nations sitting in Rome on December 10, 1924, unanimously designated as arbitrator Eugene Borel, Professor of International Law in the University of Geneva, and President of the AngloGerman Mixed Arbitral Tribunal. The latter accepted on December 26,

1 See Supplement to this JOURNAL, January, 1924.

and notified the Secretary-General of the League of Nations that he would formally assume his functions on January 20, 1925. On that date representatives from Great Britain, acting in behalf of the mandated areas of Irak, Palestine, and Transjordania; from France, acting in behalf of the mandated areas of Syria and The Lebanon, together with representatives from Bulgaria, Greece, Italy, Turkey, and the Council of the Ottoman Public Debt, assembled at 2 Cavendish Square, London, in the hall of the Anglo-German Mixed Arbitral Tribunal. The arbitrator then communicated the following instructions:

(a) The place of the arbitration is set at the Secretariat of the League of Nations in Geneva.

(b) The Powers which have presented a complaint to the Council of the League of Nations will furnish a memorandum setting forth the reasons in support of same, and formulating their precise and complete conclusions. This memorandum shall be deposited with the Secretariat of the League of Nations at Geneva on or before February 12, 1925. The memorandum of each party shall be communicated immediately to all the other parties in the case.

(c) Within a second delay expiring March 7, 1925, all the interested parties shall have the privilege to present a further memorandum in reply to the above memorandum, to be deposited by them with the Secretariat of the League of Nations at Geneva.

Within the same period the Council of the Ottoman Public Debt shall deposit with the same Secretariat a report covering all the points raised in the first memoranda. The second memorandum of each party and of the Council of the Ottoman Public Debt shall be communicated immediately to all of the interested parties.

(d) The parties are summoned for a session of debate which shall open at Geneva Monday, March 16, 1925, and which shall be preceded by a preliminary seance held at the Palace of the League of Nations at Geneva on Saturday, March 14, at four o'clock in the afternoon. On March 14, the arbitrator presented to the parties a program of the various questions propounded for settlement in the written memoranda and counter memoranda. This program, or agenda, served as the basis for the oral discussions before the arbitrator in Geneva from March 16 to March 21. The final decision was rendered at Geneva on April 18, 1925, exactly within the limit of three months prescribed by the Treaty of Lausanne. Never was a simpler device contrived for the solution of more intricate, technical problems. Never was an arbitral decision characterized by greater clarity and good sense. The whole proceeding from start to finish was of the finest simplicity. It may well serve as a model for other similar arbitrations where ponderous procedure and needless delays should be avoided.

The task imposed on the arbitrator presented intricate problems which would have probably confused a tribunal composed of several judges. Professor Borel attacked these problems with that good sense and fairmindedness which eminently fitted him for the post of President of the Anglo-German Mixed Arbitral Tribunal. His masterly analysis of the

arguments and of the points at issue immensely simplified the debates that followed. His liberal though exact interpretation of his functions as arbitrator greatly facilitated his task. He thus defined at the outset his powers in terms which might profitably be pondered by other arbitral tribunals:

In the judgment of the arbitrator the task entrusted to him consists in finding and applying the common intention of the Powers signatory to the Treaty (Lausanne).

The resources which law in general, and international law in particular, afford him are only means used by him, so far as may be necessary, for the purpose of understanding the common intention of the parties and to give it the effect it implies.

Asked thus to seek this common intention, the arbitrator should exert the effort necessary to find it, and here, in the fulfillment of his task as an interpreter, lies the freedom of judgment indispensable for the attainment of that end. It is superfluous to add that the common will of the contracting parties is to be sought above all in the very terms they have used; that the interpretation of these terms should be faithful and that under no condition should the arbitrator venture to substitute for what the parties have agreed-with or without reason-either a solution appearing more just and equitable, or the application of rules or of a priori definitions influencing him at the moment when he takes up the stipulations to be interpreted. To study these stipulations without the influence of any preconceived idea, rule, or definition; to seek in them the common intention of the parties, with freedom of judgment and with the aid of what the history of the treaty may reveal in fact as really sure, pertinent indications of a sufficiently conclusive character; such is the line of conduct which the arbitrator has been forced to follow in the present decision.

It is not possible to give a satisfactory complete summary of the many intricate questions settled in detail by the arbitrator or to comment on all of the principles and rules applied. This would require almost as great a familiarity with the problems presented as the arbitrator himself possessed. The following questions would seem of particular interest.

The general problem of state succession was held by the arbitrator to be met, not by rules of international law, but by definite treaty agreement such as was reached in the Treaty of Lausanne, which enunciated the principle that the share in the Turkish Debt apportioned to each state should bear the same proportion to the total amount as the average total revenue of the territory attributed to each state bore, in typical financial years, to the average total revenue of the Ottoman Empire.

Arguments were adduced to demonstrate that the criterium of revenue was unjust in such cases as where a customs port of entry was transferred, or productive land was taken away. An attempt was made to distinguish between the place of payment (lieu de perception) and the place of final deposit (lieu d'encaissement) of taxes.

While the arbitrator was willing to concede the force of certain of these

special arguments, he found the specific provisions of the treaty prevented any departures from its general principles, which were calculated, on the whole, to work a more substantial justice. In estimating the revenues of portions of districts divided by several states, the arbitrator held that the treaty intended to take the superficial area of the territory in question as the basis for apportioning the proper share of revenues and of the corresponding annuities to be borne by the respective states. Any attempt to estimate their economic resources and other factors, no matter how pertinent, he felt was precluded, particularly in view of the fact that only three months were allowed for the arbitration, whereas a proper study of such factors might take months or years.

Dealing with various objections to the exemption by the Council of the Ottoman Public Debt of certain territories from a share in the debt, notably Crete, Cyprus, Egypt, The Lebanon, and Irak, the Arbitrator sustained some of these objections, and directed the Council to revise its apportionment accordingly. So likewise, the arbitrator drew the attention of the Council to certain errors of a geographical nature which required revision. An interesting point raised by Bulgaria concerned the date when she ceased to be liable for the proportionate quota of the debt represented by territory ceded to Greece. The former claimed that the reasonable date should be the time of actual military occupation in 1918, while Greece claimed its responsibility should begin on August 6, 1924, the date of the actual cession of the territory in question by the Treaty of Lausanne. The arbitrator held that the proper date was November 27, 1919, when Bulgaria formally surrendered its rights by the Treaty of Neuilly.

Other questions submitted to the arbitrator dealt with the currency of payment of annuities; the revenues of the Hedjaz Railroad originally built for religious and strategic purposes; the proper disposition of the private funds of Sultan Abdul Hamid which were found in Yildiz Kiosk at the time of his deposition; the correct date of a loan for the irrigation of the Plain of Konia; the compounding of annuities by Italy due from the old Turkish province of Tripoli; the revenues of steamboat concessions on the Tigris and the Euphrates, etc., etc. Such matters, involving in some cases technical considerations of an intricate nature, were settled by the arbitrator with singular ease and good sense.

The decision of the arbitrator is divided into eight main sections as follows: Section I indicates under seven separate paragraphs the various corrections and emendations to be made by the Council of the Ottoman Public Debt. The reasons for these changes are not repeated, but are to be found in the detailed discussion of the arguments as analysed by the arbitrator. Section II prescribes: (1) The Council is directed, with the help of the financial expert designated by the arbitrator, to reapportion the respective quotas of the Turkish Debt in conformity with the arbitral decision; (2) The interested parties are reminded of their right under Article 47 of the Treaty