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cooperation of a universal character would develop in the Assembly rather than the Council; that the spirit of the League rather than rules must be depended on to insure equity in distribution; that shifting requirements would create varying and unforeseen necessities of representation not predictable. 81 The discussion of the report in the nineteenth plenary meeting rapidly reached the question of ability to lay down definite rules, a doubt resolved in 1921 by amending Art. 4. Mr. Balfour, chairman of the committee, suggested that the decisions of the report be adopted as recommendations only so as to avoid the question of competence. The item relating to geographical distribution was accordingly adopted as a recommendation, by a vote of 27 to 4 on roll call, in the following language: 82

The Assembly is recommended to vote for the nonpermanent members of the Council to be selected by the Assembly in 1920, so that three shall be selected from among the members of the League in Europe and the two American continents, and one selected from among the members in Asia and the remaining parts of the world.

The recommendation was reiterated in the Third Assembly. On the initiative of the Chinese at the Fourth Assembly the same resolution was introduced and at that time it was decided to be unnecessary to refer it to a committee. The Fourth, Fifth and Sixth Assemblies reiterated the same text, which may be regarded as expressing an accepted principle. It reads: 83

It is desirable that the Assembly, in electing the six nonpermanent members of the Council should make its choice with due consideration for the main geographical divisions of the world, the great ethnical groups, the different religious traditions, the various types of civilization and the chief sources of wealth.

In 1920 there was a tendency to fix the term of nonpermanent members of the Council at four years, but the committee decided, 14 to 13 with 15 absent or not voting, to fix the term at two years. 84 However, the Assembly did not decide the matter and voted in 1920 for members for one year only. The committee was fully in favor of a system of partial renewals so as to avoid too great an overturn in Council membership; but the question was not decided by the Assembly, which elected the nonpermanent incumbents, thus following the principle without adopting it. A final point was the degree to which nonpermanent members should be reëligible, the committee feeling in its majority that, after four years' service, a member should be ineligible for

8 Report, ibid., Meetings of Committees, I, p. 105; Plenary Meetings, p. 417. Ibid., Plenary Meetings, p. 435, with debate ante.

"Records of the Fourth Assembly, Plenary Meetings, p. 115; Records of the Fifth Assembly, Plenary Meetings, pp. 113, 131, 160; Records of the Sixth Assembly, pp. 71, 110. 84 Records of the First Assembly, Plenary Meetings, p. 416.

55 Ibid., p. 434, with debate ante, p. 426 ff.

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four years. But the Assembly did not pass on this either. It simply gathered all these problems up and transmitted them to the future:87

The various proposals considered by the First Committee of the Assembly on this subject shall be sent to the committee to be constituted by the Council for studying amendments to the Covenant, which shall report on them to the next Assembly.

The committee thus contemplated met in April, June and September, 1921, and its deliberations 88 came before the First Committee of the Second Assembly. The First Committee's report is dated October 4, 1921,89 and was acted on at the thirty-third plenary meeting the following day. The conclusions were adopted unanimously: 90

1. That the nonpermanent members of the Council should, in future, be elected according to a system of rotation for a fixed period, and that the Assembly should this year renew for the year 1922 the appointment of the present members.

2. That, in the absence of any decision with regard to the number of the nonpermanent members of the Council, it is inexpedient to lay down precise rulings, in consideration of the fact that, at the election held next year, account will be taken, both as regards the determination of the entire period of office for each member, and as regards the conditions of reëligibility, of the period already spent in office as the result of previous elections.

In the Third Assembly, China, on September 9, 1922, introduced a motion requesting the Committee on Amendments to the Covenant to draw up draft rules of procedure for the election of nonpermanent members." This and other angles of the problem were considered by the First Committee, which after an extensive debate adopted a report which was further debated at length in a plenary meeting on September 29. The result was the passage of two resolutions and the geographical recommendation.

Resolution I dealt with the rules of procedure for the election of the nonpermanent members of the Council. In 1923 a resolution was unanimously adopted by which "the Assembly resolves to insert in its rules of procedure between rules 22 and 23 a text giving effect to the 1922 resolution. "92 These rules provided for secret ballot, voting on a list of state

86 The two points last mentioned were under constant reference throughout the debate of the 19th plenary meeting, ibid., p. 414 ff.

87 The proposal was made as a compromise by Mr. Balfour, rapporteur of the committee, following a suggestion of the Czechoslovak and Chinese representatives, in order to secure progress toward a decision, ibid., p. 433, vote at 435.

88 The committee reports are in only one edition, published as A. 24 and 24(1), 1921. Art. 4 is discussed in A. 24, pp. 10-11.

"Records of the Second Assembly, Plenary Meetings, pp. 688 and 903.

"Ibid., pp. 893-4.

" Records of the Third Assembly, Plenary Meetings, pp. 103, 110.

Ibid., p. 349; Records of the Fourth Assembly, Plenary Meetings, p. 115.

names, selection by an absolute majority, provision for second ballots and for resolving a tie.

Resolution II was adopted pending the ratification by the states of the amendment to Art. 4 of the Covenant, and was repeated by the Fourth Assembly in 1923 with reference to the Fifth Assembly in 1924. The rules thus adopted read: 93

The nonpermanent Members of the Council are elected for a period of three years, commencing on the first day of January following the date of their election.

Retiring Members are not eligible for reëlection until the expiration of a period of three years.

One-third of the nonpermanent part of the Council shall be renewed each year.

If one or two of the Members now on the Council are reëlected, their mandates shall terminate at the end of the first year.

If more than two Members now on the Council are reëlected, lots shall be drawn to determine which one or which two of them shall not retire until the end of the second year.

If necessary, lots will be drawn to determine the order of retirement as between newly elected Members, so as to bring up to two the number of Members retiring.

If, for any reason, a seat on the Council filled by any State should become vacant during the first period of three years, the State shall be considered as having retired, with the result that, if such vacancy occurs during the first year, lots shall only be drawn for one seat, and if the vacancy occurs during the second year, lots shall again only be drawn for one seat.

If such a vacancy occurs after the expiration of the first period of three years, the Assembly shall fill it at the session following its occurrence, but the Member so elected shall only complete the current mandate.

The Fifth Assembly did not consider these rules as recommended by its predecessor, perhaps due to the preoccupation of its First Committee in 1924 with the elaboration of the Protocol for Pacific Settlement of International Disputes. The rules, therefore, were acceptable to two Assemblies, which, however, in their actual election of nonpermanent members acted independently of them.

The rules were not mentioned in the Sixth Assembly; but, following the reëlection of the nonpermanent members on that occasion, a recommendation was adopted to the following effect: 94

The Assembly,

Noting that the nonpermanent Members of the Council at present in office have been reëlected for a year,

Considers the meaning of this reëlection to be that it is subject to the nonpermanent part of the Council being renewed as from the election of 1926 by application of the principle of rotation.

93 Records of the Third Assembly, Plenary Meetings, p. 349.
94 Records of the Sixth Assembly, Plenary Meetings, p. 160.

The Committee on the Composition of the Council drafted in May, 1926, a scheme of regulations for nonpermanent elections for a term of three years, one-third to be elected annually, office to be taken on election. The number would be increased from six to nine, thus making the number superior to that of the permanent members. A nonpermanent member would not be reëligible for three years after expiration of a term, unless it were decided otherwise by a two-thirds majority. However, the Assembly could, by two-thirds majority, proceed to a new election of all nonpermanent members, determining the rules for that purpose. The draft is admirably adapted not to prejudge the Assembly's right to free decision under Art. 4. These rules "will permit the Assembly to take account in a more comprehensive and equitable measure, of the principle of geographical distribution of seats."

It can be seen from the record that the Council is constructed on certain principles which were consciously accepted by the makers of the Covenant, big and little, and which have been accepted since by all other states members of the League. The principles are:

1. Big states having interests wide enough to be regarded as general are permanent members.

2. Other states not having such wide interests are members of the Council by election of the whole membership of the League, serving in a sort of representative capacity on behalf of the group of states of "limited interests."

3. In every case, "any member of the League not represented on the Council shall be invited to send a representative to sit as a member at any meeting of the Council during the consideration of matters specially affecting the interests of that member of the League" (Art. 4, par. 5 of the Covenant). 4. The Council is, therefore, a body designed to render decisions in the presence of the interests involved, on a basis of representation calculated to insure a large degree of world responsibility.

5. Since the Council's jurisdiction is confined to the agreements states have entered into by acceptance of the Covenant, the objective tests of its structural representation are

a. Ability to act as an executive body, and

b. Normal inclusion in its membership of the interests concerned, permanently, temporarily or casually.

THE ELIGIBILITY OF BRITISH SUBJECTS AS JUDGES OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE

BY WALTER POLLAK

The object of the present article is to attempt an interpretation of paragraph two of Article 10 of the Statute of the Permanent Court of International Justice in order to discover, if possible, the position of the British Empire and of the British Dominions in regard to the election of judges of the Permanent Court.

Article 14 of the Covenant of the League of Nations provided that: "The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice...." The Council was not slow to carry out this provision, and already at its meeting of the 13th of February, 1920, it took the first step towards the creation of a Permanent Court of International Justice by passing a resolution inviting certain distinguished jurists to form a committee to prepare plans for such a court and to report to the Council. The Advisory Committee of Jurists met for the first time at The Hague on the 16th of June, 1920, and within six weeks the committee succeeded in drawing up and unanimously adopting a draft scheme for the establishment of the Permanent Court of International Justice. The second paragraph of Article 10 of this draft scheme was as follows: "In the event of more than one candidate of the same nationality being elected by the votes of both the Assembly and the Council, the eldest of these only shall be considered as elected." "

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The draft scheme was transmitted to the Secretary General of the League, and was submitted to the Council on the 5th of August, 1920. On the 15th of November, 1920, the First Assembly of the League of Nations met at Geneva and immediately proceeded to appoint a committee to deal with the draft Statute of the Permanent Court of International Justice which the Council had referred to it. This committee, designated the Third Committee, met for the first time on the 17th of November, 1920. It had before it the draft scheme drawn up by the Advisory Committee of Jurists and also the Council's amendments thereto. As these amendments did not, however, concern the topic now under discussion, there is no need to refer to them here. 1 League of Nations Official Journal, 1920, p. 37.

2 Ibid., p. 226.

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* League of Nations, Records of First Assembly, Meetings of the Committees, Vol. I, p. 413.

'League of Nations Official Journal, 1920, p. 319.

'League of Nations, Records of First Assembly, p. 24 (Plenary Meetings).

• Ibid., pp. 48, 52.

"League of Nations Official Journal, November-December, 1920, p. 18.

* Records of First Assembly, Meetings of the Committees, Vol. I, pp. 277, 278, 411, et seq..

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