opinion as to the extent of the sphere of application of Articles 6-22. He cited the court's judgment relating to the Mavrommatis Concessions in Palestine, and concluded that the court's power to deal with the latter differences was derived from its own Statute, and not from Article 23 of the Geneva Convention. Count Rostworowski stood out for a strict application of Article 23 of the Geneva Convention. He thought that the jurisdiction of the Permanent Court of International Justice could not overlap that of the Mixed Arbitral Tribunal in Paris. With regard to the agricultural estates, he found no previously existing dispute between the two governments.

Following the rendition of the court's judgment, on August 25, 1925, the German Government filed a second application in conformity with Article 40 of the court's Statute, stating that since its earlier application, the German Government had received new information on which it reached the opinion that twelve and not ten of the cases of expropriation of large agricultural estates fell within the prohibition of Articles 6-22 of the Geneva Convention. The German Government therefore asked that its second application be joined with its first, and that the court declare that the liquidation of the rural estates in the two additional cases would constitute a violation of Article 6 and other articles of the Geneva Convention. The case now remains to be heard on its merits, and the court is scheduled to meet in February, 1926, for that purpose.

ARTICLE 3, PARAGRAPH 2, oF THE TREATY OF LAUSANNE (FRONTIER

BETWEEN TURKEY AND IRAQ)

While the Conference of Lausanne was in session, on January 23, 1923, Lord Curzon (British Empire) stated his intention to refer to the Council of the League of Nations the case of the disputed frontier between the Turkish domains in Asia Minor and the mandated territory of Iraq.53 Such reference was actually made on January 25, 1923.54 On January 30, 1923, Lord Balfour (British Empire) made a declaration to the Council of which the Council took note.55 A treaty of peace between the British Empire, France, Italy, Japan, Greece, Roumania, and the Serb-Croat-Slovene State, of the one part, and Turkey, of the other part, was signed at Lausanne on July 24, 1923, and was ratified on August 6, 1924.56 This treaty provides, with respect to the frontiers of Turkey with Iraq (Article 3, paragraph 2):

(2) With Iraq. The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months.

Publications of the Court, Series A, No. 2.

"British Parliamentary Papers, Turkey No. 1 (1923), Cmd. 1814, pp. 400-404.

54 League of Nations Official Journal, March, 1923, p. 249.

55 Ibid., p. 201.

58 28 League of Nations Treaty Series, p. 11.

In the event of no agreement being reached between the two governments within the time mentioned, the dispute shall be referred to the Council of the League of Nations.

The Turkish and British Governments reciprocally undertake that, pending a decision to be reached on the subject of the frontier, no military or other movement shall take place which might modify in any way the present state of the territories of which the final fate will depend upon that decision.

In Protocol XIV, also signed at the Lausanne Conference,57 the British and Turkish Governments agreed that negotiations with a view to this arrangement should follow an evacuation agreed upon and that the period of nine months should begin to run with the opening of the negotiations. The evacuation was completed on October 4, 1923, and the negotiations began on the following day. The period of nine months therefore expired on July 5, 1924, by which time no agreement had been reached.

On August 6, 1924, the British Government requested that the following item be placed on the agenda of the Council of the League of Nations:58 "Iraq Frontier: Article 3 (2) of the Treaty signed at Lausanne on July 24, 1923." The British Government filed a memorandum with the Council on August 14, 1924, and the Turkish Government filed a memorandum on September 5, 1924. On August 30, 1924, the Council invited the Turkish Government to be represented on a footing of equality at its discussions of this question;59 this invitation was accepted and on September 20, 1924, Fethi Bey took a seat on the Council for a discussion of the matter. On September 25, M. Branting (Sweden), acting as rapporteur, asked the question, "How do the British and Turkish delegations understand the reference to the Council provided for in Article 3 of the Treaty of Lausanne? . . . It is obviously important that the Council should know exactly the part that it has to play." To this Lord Parmoor (British Empire) replied: "The British Government does regard the treaty as placing the Council in the position of an arbitrator, whose ultimate award must be accepted by both parties. Therefore, in the most explicit terms, I desire to say that the British Government would consider itself bound by the decision of the Council." Fethi Bey replied: "The Turkish Government recognizes the full powers of the Council as conferred upon it by Article 15 of the Covenant, which is applicable to such disputes brought before the Council." M. Branting took it that both parties "were willing to recognize the Council's decision."60 On September 30, M. Branting reported that he had asked Fethi Bey for an undertaking to accept the Council's recommendation, and

57 Entitled "Protocol Relating to the Evacuation of the Turkish Territory occupied by the British, French and Italian Forces." See British Treaty Series, No. 16 (1923), Cmd. 1929, p. 215. 58 League of Nations Official Journal, October, 1924, p. 1465.

59 Ibid., p. 1292.

"League of Nations Official Journal, October, 1924, pp. 1337-9.

that Fethi Bey had replied "that on this point there was no disagreement between his government and the British Government and that he would be prepared to make a declaration in the sense referred to." M. Branting thought that this removed the doubts as to the rôle of the Council. Thereupon the Council decided to set up a commission of investigation.

A question later arose as to the maintenance of the status quo, which necessitated the drawing of the so-called "Brussels Line" by the Council on October 29, 1924.62 The commission of investigation reported to the Council on July 16, 1925.63 The discussion of the matter was resumed by the Council on September 3, 1925, Mr. Amery, Secretary of State for the Colonies, representing the British Empire, and Tewfik Rouchdy Bey representing Turkey. On September 4, the Council decided to set up a subcommittee to study the situation, consisting of M. Unden (Sweden), M. Quiñones de León (Spain), and M. Guani (Uruguay). On September 19, 1925, this subcommittee reported that two preliminary questions of a purely juridical character would have to be disposed of, and the Council accepted the recommendation that these be referred to the court for an advisory opinion. The questions submitted were:

64

(1) What is the character of the decision to be taken by the Council in virtue of Article 3, paragraph 2 of the Treaty of Lausanne - is it an arbitral award, a recommendation, or a simple mediation?

(2) Must the decision be unanimous, or may it be taken by a majority? May the representatives of the interested parties take part in the vote?

With reference to these questions, Tewfik Rouchdy Bey expressed the view that an earlier draft of the second paragraph of Article 3 threw light on the meaning of the paragraph,65 and in that light he was clearly of opinion that the second paragraph referred to the exercise of "the good offices of the Council" and not to a decision given by the Council "without the parties' consent." He placed special reliance on a statement made by Lord Curzon at the Lausanne Conference on January 23, 1923.66 The Turkish Government saw no necessity for referring to the court, and was of opinion that an advisory opinion of the court could not in any way affect the rights of Turkey under the acts of Lausanne, or modify the rôle of the Council laid down by those acts. In spite of this attitude, the Council

1 Ibid., pp. 1358-1359.

#League of Nations Official Journal, November, 1924, pp. 1659-1662.

"League of Nations Document, C. 400. M. 147. 1925. VII.

"League of Nations Official Journal, October, 1925, p. 1382.

"For the earlier draft, see British Parliamentary Papers, Turkey No. 1 (1923), Cmd. 1814, p. 688.

Especially: "Article 5 of the Covenant provides that the decision of the Council upon which the Turkish Government will be represented will have to be unanimous so that no decision can be arrived at without their consent." British Parliamentary Papers, Turkey No. 1 (1923), Cmd. 1814, p. 401.

decided to make the request, and while the record is not quite clear it would seem to have set a precedent as to the Council's power to request an advisory opinion relating to its competence in handling a dispute without the concurrence of the representative of one party to the dispute.67

On September 24, 1925, the Council decided to send to Mosul a representative to keep the Council informed of the situation in the locality of the Brussels Line, "in order better to ensure the maintenance of the status quo which the two governments have agreed to accept." On September 28, General Laidoner (Esthonia) was appointed as such representative.

The Council's request for the advisory opinion was communicated by the court to the members of the League of Nations, to the states mentioned in the Annex to the Covenant,68 to the other states on the court's list, and to Turkey. The Council having intimated a desire to receive the court's opinion at a date which would permit it to resume consideration of the matter in December, 1925, the President of the court convoked an extraordinary session for October 22, 1925. On that date Judges de Bustamante, Moore, Oda and Pessoa were absent, and Deputy-Judges Beichmann, Negulesco and Yovanovitch sat. The British Government had submitted a memorial, and was represented by Sir Douglas Hogg, Attorney General, Sir Cecil Hurst, legal advisor to the Secretary of State for Foreign Affairs, and Mr. Alexander Fachiri. The Turkish Government was not represented by counsel, but the Turkish Government had transmitted officially certain documents. The Turkish Minister of Foreign Affairs, Tewfik Rouchdy Bey, sent a telegram to the Registrar, expressing the view that the questions asked by the Council were of a distinctly political character and could not form the subject of a legal interpretation, and stating that Turkey did not desire to be represented before the court while the questions were being considered. The Turkish Government did, however, subject to the reservations in its telegram, "reply to certain questions which the court had already seen fit to put to it before the hearings," and did furnish the court with copies of certain documents. The court heard oral argument by Sir Douglas Hogg on October 26 and 27.

The court's advisory opinion was handed down on November 21, 1925.69 The court traced the text of the treaty through the proceedings of the Lausanne Conference, and reviewed the various proposals which had preceded it, as well as the negotiations which had followed the signing of the treaty and the positions taken before the Council of the League of Nations. The first question to be answered related to the nature of the "decision to be reached" by the Council. This depended first of all on the intention of the contracting

7 See Hudson, "The Advisory Opinions of the Permanent Court of International Justice," International Conciliation, No. 214 (November, 1925), pp. 349–351.

68 Except possibly the Hedjaz. See Publications of the Court, Series E, No. 1, p. 261. 69 Publications of the Court, Series B, No. 12.

parties. That the parties clearly intended a final determination of the frontier, "the establishment of a precise, complete and definitive frontier," is indicated by the actual words used, not only in Article 3 but also in Article 16 of the treaty. Indeed the court found Article 3 so clear that it was not necessary to consider the work done in preparation of the Treaty of Lausanne; but as the Turkish Government had cited certain facts connected with the Lausanne negotiations, the court was apparently willing to look to them for light on the construction of Article 3. It examined the statements of Lord Curzon upon which great reliance had been placed, but found that he was not addressing himself to Article 3 for the article did not then exist and was adopted only five months later during the second phase of the Lausanne Conference. Facts subsequent to the signing of the treaty were to be considered only in so far as they were calculated to throw light on the intention of the parties when signing. The Turkish Government had appeared to contend that where several interpretations are admissible, that involving the least obligation should be adopted, and the fact of the Council's request was relied upon as indicating that several interpretations were admissible. The principle was admitted by the court, but found to be inapplicable in this case because the wording of Article 3 is clear.

The definitive settlement of the frontier to be made by the Council might be called an "arbitral award," using that term in a wide sense. But the dispute seems to be governed by considerations not of a legal character, and arbitration in the ordinary sense does not apply. Hence the court refused to be limited by a use of that term. The Council had been entrusted with a power of decision. While the "decision" is not to be a "recommendation" as that term is used in Article 15 of the Covenant, this does not exclude the applicability of that article. Indeed, the "more extensive powers conferred by the parties in this case on the Council merely complete the functions which it normally possesses under Article 15."

Replying to the second question before it, the court expressed the opinion that in a body constituted as is the Council, with a mission to deal with any matter "within the sphere of action of the League or affecting the peace of the world," "observance of the rule of unanimity is naturally and even necessarily indicated." Express provision for such unanimity is to be found in the Covenant, and the British contention that it did not apply in this case was disapproved. The general rule that arbitration tribunals are governed by majority votes 70 does not apply to a body "already constituted and having its own rules of organization and procedure." While unanimity is required for the decision of the Council, it is "subject to the limitation that the votes cast by representatives of the interested parties do not affect the required unanimity." Such representatives may take part in the vote, for

"See the advisory opinion of the Judicial Committee of the Privy Council in England, with reference to the Irish Boundary Commission, published by the Colonial Office on August 1, 1924. (Cmd. 2214.)