4

supposed understanding that such Council membership would be accorded. When a special session of the Assembly was convened to admit Germany, three candidates for permanent seats in the Council appeared. Poland's candidacy seemed to be based on a claim of its importance and a desire to match Germany politically. Spain's was based on historical grounds, and Brazil's upon a claim for more appropriate American representation. Germany was unwilling to accept admission to the League if the membership of the Council were simultaneously increased beyond itself. In the end the declination of Brazil to vote Germany a permanent seat without receiving one itself resulted in the Assembly adjourning without taking action on German admission and the Council appointing a Committee on the Composition of the Council.

Such are the salient facts of the "crisis." They draw attention to the whole scheme of representation in the Council, and invite setting down a record of the essential elements of the questions raised. The origin of the Council as an organ of the League, the position of its permanent and its nonpermanent members, and the problem of electing nonpermanent members will be considered. All post-armistice official projects for the construction of peace machinery contemplated some sort of an executive body less numerous than the whole number of states in the organization. The problem of arranging the representation in such organ in a manner satisfactory to all obviously touches closely the susceptibilities of states. On that rock the attempt to organize a Court of Arbitral Justice broke in 1907. But in the stress of the World War, the old negations were thrown to the winds and a practical international establishment was built up in the Supreme War Council, under which, after great effort, coördination of warlike activities was realized by the victorious belligerents. It was "composed of the prime minister and a member of the Government of each of the great powers whose armies are fighting on the [western] front." Back of it, however, was organized an interallied conference in which all belligerents, or at least 17 of them, were represented. Thus the war left a coördination in which the most responsible states assumed executive functions and the lesser ones participated in the general deliberations, as well as in any decisions that concerned them." The Paris Peace Conference met with the Supreme War Council and many of its subsidiaries still functioning.

The Brazilian note of December 1, 1924 (Records of the Special Session of the Assembly, Third Plenary Meeting, p. 25) was interpreted by Germany as agreeing to its exclusive election as a permanent member. The original note stated the eventual Brazilian claim, but was revised by the Brazilian representative at Geneva after consultation with his colleagues on the Council (William E. Rappard, "Germany at Geneva," Foreign Affairs, IV, p. 544). The Brazilian Government evidently did not abide by the action taken in its name by its representative.

The Chinese claim was not exclusively for a permanent seat.

•No adequate account of the institution has been given. My brochure of October, 1918, seems to remain the only general summary, "The Supreme War Council" (League of Nations, I, No. 7, World Peace Foundation).

PLANS BEFORE THE PEACE CONFERENCE

Throughout the duration of the World War numerous plans were developed for creating a league of nations. The schemes of individuals or organizations are too numerous for review in any case and, besides, invariably overlooked the problem of representation in an organ of limited membership. Another group of plans, sponsored by neutral or defeated states, was much more serious and detailed in content, but did not contribute in the first instance to the solution of the problem of representation. A third group, originating with members or committees of victor governments, touched the problem in a very definite form and threw light on its intricacies.

9

President Wilson drafted a plan on the trip across the Atlantic, using as bases the report of the British committee which had been sitting under Lord Phillimore, a plan developed among the members of the House Inquiry, the Smuts suggestions and others. The Wilson draft seems to have been discussed with Clemenceau, Lloyd George and Cecil on January 10, 1919. It provided that "the action of the signatory powers . . . shall be effected through the instrumentality of a body of delegates which shall consist of the ambassadors and ministers of the contracting powers accredited to H. and the minister for foreign affairs of H." The body of delegates was to have the right to discuss any matter within the jurisdiction of the league or affecting the peace of the world upon its own initiative. Art. II continues:10

but all actions of the body of delegates taken in the exercise of the functions and powers granted to them under this covenant shall be first formulated and agreed upon by an executive council, which shall act either by reference or on its own initiative and which shall consist of representatives of the great powers together with representatives drawn in annual rotation from two panels, one of which shall be made up of the representatives of the states ranking next after the great powers and the other of the representatives of the minor states (a classification

7 Schemes for Maintaining General Peace, by Lord Phillimore (Foreign Office, Historical Section, Peace Handbooks No. 160) is a sufficient reference. The paper is by the chairman of an official British Committee on the League of Nations, whose confidential reports of March 20 and July 3, 1918, played a preliminary part in the responsible negotiations, but did not, however, definitely touch the question here considered.

Among those readily available are; Swiss: Message from the Federal Council of Switzerland... concerning the Question of the Accession of Switzerland to the League of Nations (Cambridge, England, 1919), p. 218 (French edition, Message 1119, Annexes, p. 101); German: Sen. Doc. No. 149, 66th Cong., 1st sess., p. 14.

Of these only the Smuts plan was separately published, The League of Nations; a Practical Suggestion. Lord Robert Cecil's plan provided for regular conferences, which "would constitute the pivot of the league." There would be an annual meeting of prime ministers and foreign secretaries of British Empire, United States, France, Italy, Japan and any other states recognized by them as great powers." There was to be a quadrennial meeting of representatives of all states included in the league, which "will be determined at the peace conference."

10 Treaty of Peace with Germany. Hearings . . . (Sen. Doc. No. 106, 66th Cong., 1st sess.), pp. 1165-66.

which the body of delegates shall itself establish and may from time to time alter), such a number being drawn from these panels as will be but one less than the representatives of the great powers; and three or more negative votes in the council shall operate as a veto upon any action or resolution proposed.

This "American draft" was printed for use without alteration of the provisions quoted, though President Wilson did make some changes elsewhere. The draft was submitted to David Hunter Miller and Gordon Auchincloss for expert criticism. They made comments and suggested alternative text. The comment on the above passage was in part as folOws: 11

The states are to be divided into three classes: (a) the great powers; (b) the states ranking next after the great powers; (c) the minor states. This classification is to be established in the first instance by the Body of Delegates. Here is one exception, presumably, to the requirement that the Body of Delegates can act only after its action is formulated and agreed upon by the Executive Council. . . .

All would agree that there are now five great powers, but nothing can be imagined as much more likely to cause discord than an attempt to have some thirty or forty states classify themselves into "powers ranking next after the great powers" and "minor states."

At the outset there would be nine members of the Executive Council and presumably, though not specifically stated, two members would be drawn from each of the two panels yearly.

Of course the control of the League must in reality be with the great powers. It is submitted that it would be simpler and cause less friction to provide directly for an Executive Council of nine powers, including the five great powers, the other four to be elected annually by the Body of Delegates without being eligible for reëlection until representatives of all the other member powers have served on the Council.

As to the negative vote, it was suggested that a quorum be required in which unanimity should prevail, in order to prevent action when "only six members were present, even if it were unanimous." The suggested draft read:12

The Executive Council shall be composed of the representatives of nine powers, including always Great Britain, France, United States of America, Italy and Japan.

At the first meeting of the Body of Delegates and annually thereafter, the Body of Delegates shall, by majority vote, choose four other contracting powers, whose representatives shall constitute the remaining members of the Executive Council for the ensuing year. But no power shall be chosen for a second or subsequent time as one of such four powers unless all other contracting powers (other than the five powers heretofore specifically named) have been so chosen since the previous choice of that power.

" Ibid., pp. 1181-2, col. 2. The discussion of the German-American-British plan for allocating judges of a court at the Second Hague Conference might be cited as a precedent for the comments. 12 Ibid., pp. 1181-2, col. 3.

Any decision, vote, action or recommendation of the Executive Council may be made only by seven or more votes.

For some time previous to the Peace Conference a French Ministerial Commission on the League of Nations had been whipping ideas into shape. In fact, its conclusions are dated June 8, 1918, six months before the conference was opened. The French plan substantially reversed the American, both in names and functions, as can be seen from a few quotations: 13

V. The International Council representing all the nations adhering to the Covenant for the reign of peace through organized law is established as follows:

1. Each associated state is represented either by the head of its Government or by a representative of this Government furnished with the necessary powers to engage the responsibility of his state by his vote. 2. The International Council in plenary session alone has the power to decide upon all matters within its competence.

4. The members of the International Council appoint by agreement among themselves the members of the Permanent Delegation which, between its sessions, receives communications intended for the Council, prepares its work, preserves its archives and, in cases of urgency, notifies the members of the Council and proposes the convening of an extraordinary session.

5. The members of the Permanent Delegation are 15 in number; they are appointed for years; their appointments may be renewed.

The Italian delegation to the Peace Conference also had a plan, according to which the "big five" were to invite other states to a conference and all participants were to agree to several fundamental principles, of which the first was:14

All states are equal in law; inequalities in fact shall not be adduced in defense of any act, omission or pretension irreconcilable with respect for the rights of others and with the fulfilment of the international duties of each.

The large body in this scheme was a periodic conference, in which a twothirds vote was to control. Art. 5 of the main document says:15

A Council composed of one representative each from the powers which have taken the initiative in respect to this act and which are named in the preamble [United States, France, British Empire, Italy and Japan] and of four representatives of the other contracting powers, chosen by each conference, . . shall in general meet annually and at any time when circumstances may require, in order to deal with general affairs of common interest which call for or require more speedy decisions. "Conférence des préliminaires de paix, Commission de la Société des nations. Procès-verbal No. 1, p. 16. These minutes are printed but not published. The copy used here was received by the writer from a government without restrictions, but as it is in French, the excerpts here given may not always correspond to the English edition which exists.

14 Ibid., p. 17.

15 Ibid., p. 19.

This Italian proposal in other details suggests the present Council of the League of Nations, especially with regard to duties of inquiry or conciliation.

DISCUSSIONS IN PEACE CONFERENCE COMMISSION

On January 25, 1919, the Preliminary Peace Conference in plenary session appointed a commission to study the constitution of the League of Nations. In the interval Mr. Miller, the American expert, and Sir Cecil Hurst, jurisconsult of the British Foreign Office, had been designated by their Governments to study the projects in evidence and to seek agreement. Their joint draft was submitted by President Wilson, chairman of the commission, to its first meeting on February 3, when the French and Italian proposals were also introduced. The American-British draft was accepted as the basis of the commission's work. Art. III of that draft read in part:16

The representatives of the states members of the League directly affected by matters within the sphere of action of the League will meet as an Executive Council from time to time as occasion may require. The United States of America, Great Britain, France, Italy and Japan shall be deemed to be directly affected by all matters within the sphere of action of the League. Invitations will be sent to any power whose interests are directly affected, and no decision taken at any meeting will be binding on a state which was not invited to be represented at the meeting.

This proposal was strongly reminiscent of the rules of procedure of the Preliminary Peace Conference. The principle behind the rules was the recognition of "powers with general interests" (United States, British Empire, France, Italy and Japan, all belligerents); "belligerent powers with special interests," and others with the same. Those with "general interests" attended "all sessions and commissions"; belligerents with "special interests" attended "sessions at which questions concerning them are discussed." States otherwise defined were recognized as having "special interests" for the purposes in hand. Those which had "broken off diplomatic relations with the enemy powers" were entitled to "attend sessions at which questions interesting them will be discussed." Neutrals and states in process of formation, on being summoned by the general interest group, were heard "at sessions devoted especially to the examination of questions in which they are directly concerned, and only in so far as those questions are concerned."17

16 Ibid., p. 4; English text in Sen. Doc. No. 106, p. 1227.

17 The rules, with their precise distinctions may be quoted:

"I. The Conference summoned with a view to lay down the conditions of peace, in the first place by peace preliminaries and later by a definitive Treaty of Peace, shall include the representatives of the Allied or Associated belligerent Powers.

"The belligerent Powers with general interests (the United States of America, the British Empire, France, Italy and Japan) shall attend all sessions and commissions.

"The belligerent Powers with special interests (Belgium, Brazil, the British Dominions and India, China, Cuba, Greece, Guatemala, Haiti, the Hejaz, Honduras, Liberia, Nicaragua,