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The Mosul Dispute

Published online by Cambridge University Press:  04 May 2017

Quincy Wright
Quincy Wright*
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Of the Board of Editors
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Extract

The Mosul dispute involved the disposition of some 35,000 square miles of territory with a population of about 800,000. Iraq’s claim to the territory had been substantially supported by the unratified Treaty of Sèvres, but no agreement being reached at Lausanne in 1923, the treaty there negotiated and later ratified provided for maintenance of the military status quo and submission to the League of Nations Council, if nine months further negotiation proved fruitless.

Type
Research Article
Information
American Journal of International Law , Volume 20 , Issue 3 , July 1926 , pp. 453 - 464
Copyright
Copyright © American Society of International Law 1926

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References

1 “The frontier between Turkey and Iraq shall be laid down in friendly arrangement to be concluded between Turkey and Great Britain within nine months.

“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.“ Treaty of Lausanne, Art. 3, par. 2.

2 League of Nations Monthly Summary, Dec. 1925, Vol. 5, pp. 325-326. The new treaty was promptly negotiated, was approved by the British Parliament on Feb. 18, 1926, and the disputed territory was finally awarded to Great Britain by the Council on March 11, 1926. Great Britain then began negotiations with Turkey which resulted in the signature of an agreement on June 5, 1926, whereby Turkey recognized the boundary with slight rectifications in return for 10% of Iraq oil royalties and neutralization of the frontier. The Iraq minister of war signed the agreement as well as plenipotentiaries from Great Britain and Turkey.

3 League of Nations Oflicial Journal, Oct. 1924, pp. 1291,1360,1463; Nov. 1924, pp. 1659,1670.

4 Ibid., Oct. 1925, pp. 1310, 1377, 1383, 1434.

5 League of Nations Monthly Summary, Dec. 1925, Vol. 5, p. 325.

6 This opinion is based on personal conversations in Iraq and Turkey during the fall of 1925, as well as upon the Wirsen commission's report and statements of the British and Turkish representatives at Geneva.

7 Printed in Current History, Nov. 1922, p. 280.

8 League of Nations, Question of the Frontier between Turkey and Iraq, 1925 (cited Wirsen Commission report), pp. 24-29, 58-60, 84-85.

9 Ibid., p. 88.

10 Supra, note 1. By Art. 16 of the Lausanne Treaty, “Turkey hereby renounces all rights and titles whatsoever over or respecting the territories situated outside the frontiers laid down in the present treaty.” See statement by Amery, British representative, League of Nations Official Journal, Oct. 1925, p. 1311, and by Tevfic Rouschdy Bey, Turkish representative, Ibid., p. 1381.

11 Wirsen Commission Report, pp. 31-53, 75-78.

12 IUd., pp. 86-89.

13 Ibid., pp. 79-83. See statement of Amery, British representative, foe. cit., p. 1315.

14 League of Nations Monthly Summary, Dec. 1925, Vol. 5, p. 325.

15 League of Nations Official Journal, Oct. 1924, pp. 1337-1338, 1358-1359.

16 Ibid., Oct. 1925, p. 1381.

17 Wright, Control of American Foreign Relations, pp. 44, 235. Where the agent's commitment recognizes a responsibility, it is of a more binding character than where it makes an agreement. IUd., pp. 58-65.

18 Permanent Court of International Justice Publications, Series B, No. 12, Nov. 21,1925. See Hudson, this JOURNAL, Vol. 20, pp. 19-24; League of Nations Monthly Summary, Vol. 5, p. 278, Nov. 1925.

19 See British Pari. Pap., Turkey No. 1 (1923), Lausanne Conference, p. 401, where Lord Curzon, British representative says: “Article 5 of the Covenant provides that the decisions 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.” See also, League of Nations Official Journal, Oct. 1925, p. 1380.

20 Wright, “Conflicts between International Law and Treaties,” this JOTJBNAL, Vol. 11, p. 579, July, 1917.

21 Great Britain had urged that as the decision had the character of an arbitral award, the majority rule, usually applied in arbitrations, should prevail. See also, infra, notes 33 and 34.

21a Commercial arbitration agreements are not an exception because such agreements do not modify the powers or procedure of courts; they merely waive certain rights of the contractants. (Hood v. Hartshorn, 100 Mass. 117; Hamlyn & Co. v. Tahsker Distillery, L. R. (1894) A. C. 202.) Some early common law decisions held such agreements invalid, because they ousted the courts of jurisdiction (Vymor's Case, 8 Coke 81 (1609); Riley v. Jarvis, 43 W. Va. 43) but these have been reversed by British courts, and while the old rule prevails at common law in the United States, statutes have set it aside in many states. (Mich. L. R., Vol. 23, p. 882.)

22 The eompromis in the Dogger Bank inquiry extended the commission's functions to location of responsibility and degree of blame (Art. 2) in spite of the limitation of the functions of such commissions to “a statement of facts” by the convention (1899, Art. 14,1907, Art. 35). In the Grisbadarna Case two of the three arbitrators were not members of the Permanent Court, though the convention (1899, Art. 24,1907, Art. 45), said they “must be chosen from the general list of Members of the Court.” See Scott, Hague Court Reports, pp. 121, 411.

23 Bustamente, De,The World Court, pp.207-218;Google Scholar Fachiri, ,Permanent Court of International Justice, pp. 71-89.Google Scholar

24 Infra, note 28.

25 This differs from a binding decision in that the members of the League are not obliged to apply the sanctions of Art. 16 to enforce it, as they are in the case of arbitral or judicial decision under Art. 13 of the Covenant. However, if any party to the dispute fails to comply with the recommendation, the other has the right of self-help after expiration of the period contemplated in Art. 12, and the recalcitrant state is bound not to resist by going to war. If it does resist and a war results, the sanctions of Art. 16 forthwith become applicable against it. As a non-member accepting the League procedure under Art. 17 becomes a member for that case, the same rules apply to it, “with such modifications as may be deemed necessary by the Council.”

26 The request in this case came from the Supreme Council, authorized by Arts. 87 and 88 of the Treaty of Versailles to fix the frontier, and referred to Art. 11, par. 2, of the Covenant. That article gives less authority to the Council than Arts. 15 and 17. See Minutes of Extraordinary Session of the Council on the Question of Upper Silesia, Aug. 29 to Oct. 12,1921, p. 8.

27 See also Arts. 10, 53, 82, 83.

28 Judge Moore, Publications of the Court, Series D, No. 2, pp. 385, 512; Fachiri, op. cit., p. 67. Hudson seems to base this jurisdiction upon the historical connection of the Court Statute with Art. 14, evidenced by Art. 1 of the Statute. “The Advisory Opinions of the Permanent Court of International Justice,” International Conciliation, Nov. 1925, No. 214, p. 328; The Permanent Court of International Justice, p. 153. See also De Bustamente, The World Court, pp. 253-254. This opinion gains support from the express limitation of the advisory procedure to requests from the League Assembly and Council by Art. 72 of the Rules of Court and by the rejection by the League, when considering the Statute, of suggestions that single states, the Labor Office and International Labor Conferences be entitled to ask advisory opinions. (League of Nations, Documents concerning the action taken by the Council of the League of Nations under Art. 14 of the Covenant and the adoption by the Assembly of the Statute of the Court, 1921, pp. 68, 79.) This evidence, however is not conclusive. The fact that the Court is based on an independent statute, ratified as such by states wholly apart from their connection with the League, makes it necessary to discover its jurisdiction within that Statute. The statement in Art. 1 that “The Permanent Court of International Justice is hereby established in accordance with Article 14 of the Covenant of the League of Nations” is not a grant of jurisdiction, but a description of the origin and character of the institution. Doubtless it empowers the Court to refuse jurisdiction where its exercise would be incompatible with this character (infra, note 31), and since advisory opinions are not a normal judicial function (Moore, supra, De Bustamente, op. cit., pp. 265-266), perhaps requests from bodies other than those mentioned in Art. 14 should not be entertained. Apart from this general discretion to protect its judicial character, the writer sees no reason why future treaties might not authorize requests for advisory opinions by international bodies other than the League Assembly and Council.

29 Supra, note 23.

30 “The right of the Council of the League of Nations to make a recommendation when requested by one or several of its members is not explicitly laid down in Article 11 of the Covenant, but is implied, I may say, by the whole Covenant.” Viscount Ishii's report on the Upper Silesian question, Minutes, cited supra, note 26, p. 7.

31 Infra, notes 36, 37. Fachiri (op. cit., p. 69) says in respect to litigations referred by the parties “ the court cannot refuse to entertain and decide the case provided it has jurisdiction. But upon a matter refer red by the Council or Assembly for advisory opinion the court is free to decline to give an opinion.” The latter conclusion he draws from the words of Art. 14 of the Covenant. But Art. 36, par. 1, of the Statute (quoted supra, note 28) upon which both jurisdictions ultimately rest, makes no such distinction; consequently, with Fachiri's interpretation, the League might destroy the Court's discretion by amending Art. 14 of the Covenant. In the present writer's opinion, the Court's discretion in the matter rests on its inherent power to protect its character, described in Article 1 of the Statute, which is dependent on Article 14 as it stood at the time the Statute went into effect, and can never be limited except by amendment to the Statute. For analogous interpretation of inherent powers of United States courts, see Gordon v. U. S., 2 Wall. 561; Chicago and Grand Trunk Ry. Co. v. Wellman (1892), 143 U. S. 339; Willoughby, Constitutional Law of the United States, pp. 13,1275; Wright, Control of American Foreign Relations, pp. 98,117.

32 A Council resolution of September 26,1924, after reciting the minority provisions in the Lausanne Treaty, reads: “This clause renders it necessary for the Council of the League of Nations to decide whether the League should undertake to give the guarantees in question.” Official Journal, Oct. 1924, Vol. 5, p. 1344. See also, World Peace Foundation, Year Book of the League of Nations, 1925, Vol. 8, p. 569. Referring to the request of the Supreme Council for a recommendation on the Upper Silesian question, Viscount Ishii reported on August 29, 1921: ” I consider that under the circumstances it is not only the right but also the duty of the Council to accept the r61e which, in the spirit of the Covenant, it has been asked to assume,” but he was probably thinking of a moral rather than a legal duty. Minutes, cited supra, note 26, p. 458.

33 Turkey opposed this submission, which was nevertheless decided upon (Official Journal, Oct. 1925, Vol. 6, pp. 1381-1382; Hudson, this JOURNAL, Jan. 1926, Vol 20, p. 22). Fachiri (op. tit., p. 163) thinks that decisions to submit must be unanimous under Art. 5, par. 1. of the Covenant. The opinion in the Eastern Carelia case referred to the matter, but did not decide it. (Publications of the Court, Ser. B, No. 5, p. 27.) In a dispute between Hungary and Roumania in 1923, Roumania objected to a proposal for an advisory opinion and none was requested, though Lord Robert Cecil of Great Britain had no doubt that concurrence of parties to the dispute was not necessary for the purpose. (Official Journal, June 1923, p. 608.) In a dispute between Poland and Germany in connection with treaty minority provisions in 1923, Poland opposed the request for an advisory opinion, but it was nevertheless made by the Council, and Poland acquiesced and argued the case before the Court. (Ibid., Aug. 1923, pp. 881-883, 935.) See also Hudson, International Conciliation, No. 214, pp. 349-351; Sir John Fischer Williams, “The League of Nations and Unanimity,” this JOURNAL, Vol. 19, p. 484; and Lord Coke, in Dr. Bonham's case (8 Rep.), holding that for a party to be judge in his own case is so contrary to natural justice that an act of Parliament to that effect is void, approved in City of London v. Wood, 12 Mod. 687; Day v. Savadge, Hob. 87, and many other cases cited in Thayer, Cases on Constitutional Law, Vol. 1, pp. 50-51. This question is of peculiar interest to Americans because the Senate's fifth reservation to the Court Statute gives the United States a veto in “any request for an advisory opinion touching any dispute or question in which the United States has or claims an interest,” thus going beyond the power in this respect of any other state, even members of the Council.

34 On this question there was some debate. Munir Bey of Turkey insisted that under the Covenant (Art. 5, par. 1) the vote must be unanimous, including the litigants. Unden of Sweden, rapporteur, disagreed holding that “the question should be dealt with in the same way as the main dispute.” Munir Bey responded that this would assume the validity of the Court's opinion on the main question before it was adopted. Scialoja of Italy, the chairman, thought this was a question of procedure to be settled by majority vote under Art. 5, par. 2 of the Covenant. Munir Bey denied this and read a declaration that if the Council adopted the Court's decision excluding the Turkish vote, his powers would end. The Council then adjourned for an hour, after which the chairman reiterated his opinion that it was a question of procedure, adding that the Council might even follow the stricter rule of Art. 15 requiring unanimity, but not counting the litigants' votes. The Court's opinion was then adopted unanimously, with the exception of Turkey, whose delegate withdrew from further participation in the dispute. (Provisional report of meeting of Council, Dec. 8, 1925.)

35 Supra, note 34.

36 De Bustamente, op. tit., p. 254.

37 Moore, op. tit., note 28. Judge Weiss thought the Rules of Court recognized this opinion.Publications of the Court, Series D, No. 2, p. 161.

38 Supra, note 31.

39 This is evidenced by the fact that Art. 31 of the Statute, providing that parties will be entitled to judges of their own nationality on the Court, has not been applied to them. Hudson, International Conciliation, No. 214, p. 351; Bustamente, op. tit., p. 259. The fifth American reservation requiring due notice to all adherents to the Statute and interested states and public hearing or opportunity for hearing to any state concerned, seems not to modify this interpretation and accords with the actual practice.

40 Rhode Island v. Mass., 12 Pet. 657, 736 (1838); Scott, Judicial Settlement of Controversies between States of the American Union, 143, 542.

41 See Wright, Proc. Am. Soc. Int. Law, 1924, p. 58; Field, “The Doctrine of Political Questions in Federal Courts, Minn. Law Rev., Vol. 8, p. 512.”

42 Wright, he. at., p. 60.

43 See Opinion of Court in Tunisian Nationality Decrees case, Series B, No. 4, p. 24, and Brierly, “Matters of Domestic Jurisdiction,” British Year Book of Int. Law, 1925, pp. 10-11.

44 Art. 13 of the Covenant and Art. 36 of the Statute contain the most important efforts in this direction.

45 , Dennis,“Compromise—the Great Defect of Arbitration,” Columbia Law Rev., Vol. 11, p. 493 et seq. Google Scholar Hudson, , The Permanent Court of International Justice, pp. 12-14, tends to minimize this tendency. See also, Humble, Mich. L. R., Vol. 19, pp. 684-685.Google Scholar

46 Supra, note 44.

47 See this JOURNAL, Vol. 19, p. 393 et seq.; and Wright, “The Tacna-Arica Dispute,” Rev. de droit Int. et de Lig. Corny., 1925, pp. 295-309, and Minn. Law Rev., Vol. 10, pp. 28-40.

48 Opinion and Award of the Arbitrator, p. 36, this JOURNAL, Vol. 19, p. 415.

49 See Wright, Minn. Law Rev., Vol. 10, p. 35, and Turkish statement on Mosul opinion,in League of Nations Council, Dec. 8, 1925.