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The method adopted at the end of the World War for dealing with the colonies and territories of Germany and Turkey which it was decided to detach from them is known as the mandate system, and is embodied in Article 22 of the Covenant of the League of Nations, which is an integral part of the treaties of peace with Germany, Austria, Bulgaria and Hungary. Under this system these detached territories are not in the owner-ship of any State, but are entrusted to certain States called ‘Mandatory States’ to administer on behalf of the League upon the conditions laid down in written agreements called mandates between the League and each mandatory. The system, which was proposed by General Smuts, is a novelty in International Law, and although the term ‘mandate’ suggests certain analogies in private law, it is doubtful whether much practical help in the understanding and application of the system can be derived from these sources.
page 149 note 2 The German case against the taking away of her overseas possessions and the mandate system will be found in Schnee, , German Colonization, Past and Future (1926)Google Scholar.
page 149 note 3 As regards Turkey, see Article 16 of the Treaty of Lausanne, 1923.
page 149 note 4 But not the word: see Keith, in Journal of Comparative Legislation, 3rd ser. vol. iii (1921), pp. 327—329Google Scholar, and Wright in A.J. xvii (1923), at p. 694.
page 150 note 5 See Winfield in Lawrence, § 43; Lauterpacht, Private Law Sources and Analogies of International Law (1927), § § 84—86; Lee, , The Mandate for Mesopotamia and the Principle of Trusteeship in English Law (1921)Google Scholar; Goudy, in Journal of Comparative Legislation, 3rd ser. vol. i (1919), pp. 175–182Google Scholar; Potter, in American Political Science Review, 11, 1922Google Scholar; Evans, , Some Legal and Historical Antecedents of the Mandatory System (Texas) (1924)Google Scholar.
page 150 note 6 See also the following articles (amongst others), 120 to 127, 257.
page 150 note 7 Of both (c) and (d) it may be said, without importing ‘the refinements of the courts in (to) the rough jurisprudence of nations’ (Hall, p. 395 n.) that their interpretation and their working demand the application of the rule of ultra vires. This is substantially recognized as to the Palestinian Mandate by the British Privy Council in Jerusalem-Jaffa District Governor v. Suleiman Murra, [1926] A. C. 321.
page 151 note 8 Japan claims that the same principle should apply to the ‘C’ Mandates: see Baty in B.Y. 1921—1922, pp. 109—121, and see A.J. xvii (1923), Supplement, p. 163.
page 151 note 9 As to the rights of non-members of the League and their nationals, see below, p. 157.
page 151 note 1 See below, p. 158. Note on Sovereignty in Relation to the Mandates.
page 151 note 2 See, for instance, the transfer from the British mandate to the Belgian mandate of a portion of Ruanda in East Africa at the instance of the Council of the League: L.N. Off. Jo. November, 1923, p. 1273.
page 151 note 3 Note that Article 3 of the French mandates for the Cameroons and for Togoland contains the following addition which does not appear in the corresponding British mandates for the Cameroons and for Togoland: ‘It is understood, however, that the troops thus raised may, in the event of general war, be utilized to repel an attack or for defence of the territory outside that subject to the mandate.’
page 151 note 4 The difficult question whether a mandated area automatically falls within the region of war when its mandatory is at war must probably be answered not in general terms but with reference to the actual degree of control exercised over the mandated area in each case. It is arguable that to involve a mandated area in its mandatory's wars is so contrary to the whole intention of Article 22 of the Covenant that no belligerent who is bound by that article could insist upon treating the mandated area as within the region of war; but such a course would carry with it an undertaking on the part of the mandatory not to make use of his mandated area for warlike purposes, which some of the mandates permit him to do, for instance, Article 17 of the Palestinian and Article 2 of the Syrian mandate, and Article 3 of the French Cameroons and Togoland mandates: see Lewis, in Law Quarterly Review, xxxix (1923), pp. 458—475Google Scholar.
page 151 note 5 See below, p. 155, as to Nationality.
page 152 note 6 See Van Rees, , Les mandals internationaux (1927), pp. 56–141Google Scholar; M. Van Rees is the Vice-President of the Commission.
page 152 note 7 A German subject was appointed a member in September, 1927.
page 152 note 8 There is no provision for the reference of a petition to the Permanent Court, but it has been suggested that this could occur if some other member of the League were prepared to take up the question, which might then become a dispute between that member and the mandatory.
page 152 note 9 All the mandates contain a clause which provides that the mandate cannot be modified without the consent of the Council of the League. Whether or not a mandate can be revoked by the Council on the ground of a substantial breach of its terms is controversial; regarded as an agreement, principle would seem to demand that it could be terminated by one party (for instance, the Council of the League) on the ground of substantial breach by the other, but it is something more than an agreement because it accompanies and conditions a transfer of certain rights in regard to the mandated territory itself. The Council has already assented to a rectification of a frontier (the Ruanda frontier in East Africa) which involved the transfer of a portion of a mandated area from one mandatory to another, and there would appear to be no reason in principle why a mandatory should not with the consent of the Council be able to transfer its mandate to another State.
page 153 note 1 Which, as Baty in B.Y. 1921—1922, at p. 119, remarks, ‘was drafted with a high regard for Mr. Wilson's supposed announcement that “he did not want a lawyer's treaty.”’
page 153 note 2 The different words employed in each case are not without significance: ‘communities,’ ‘communautés’ (‘A’ mandates); ‘peoples,’ ‘peuples’ (‘B’ mandates); ‘territories,’ ‘territoires’ (‘C’ mandates).
page 153 note 3 The distribution of the mandates (‘A,’ ‘B,’ and ‘C’) was effected by decisions of the Principal Allied Powers which were communicated to the Council of the League and are recorded in the preambles of the mandates.
page 153 note 4 The position of Iraq (Mesopotamia) is peculiar and may be summarized as fellows: By Article 16 of the Treaty of Lausanne, Turkey renounced ‘all rights and title whatsoever’ over it, and agreed that its future should be settled by ‘the parties concerned.’ Great Britain had already agreed in 1920 to accept a mandate for it, and a draft mandate was prepared. In 1922 Great Britain and Iraq entered into a treaty of alliance which was to last, as modified by a Protocol of 1923, for four years. In 1924 Great Britain represented to the League that Iraq had already ‘advanced too far along the path laid down in Article 22 of the Covenant for a mandate to be appropriate,’ and the Council accordingly approved the treaty of alliance, and certain further undertakings by Great Britain as giving effect to Article 22 of the Covenant, thus virtually substituting the treaty for the draft mandate which never came into force (Cmd. 2317 of 1925). In 1926, as a condition of the Council of the League's award (Cmd. 2562 of 1925) on the Turco-Iraq frontier question, Great Britain was invited by the Council to submit a new treaty with Iraq, ensuring the continuance for twenty-five years of the mandatory régime defined by the treaty of alliance (Cmd. 2370 of 1925) and of the British Government's undertaking approved by the Council (Cmd. 2317 of 1925), unless Iraq should be admitted as a member of the League before the expiration of this period. This treaty of alliance was made on January 13, 1926 (Cmd. 2587 of 1926), and approved by the Council of the League on March 11, 1926 (L.N. Off. Jo. 1926, p. 503). Finally, on December 14, 1927, a new treaty of alliance (Cmd. 2998) was made between Great Britain and Iraq ‘on terms of equality,’ replacing the two above-mentioned treaties; by this treaty Iraq is recognized ‘as an independent sovercign State,’ and undertakes to accede to a large number of international agreements; the contracting parties will ‘consult in all matters of foreign policy which may affect their common interests’; and ‘provided the present rate of progress in Iraq is maintained and all goes well in the interval,’ Great Britain ‘will support the candidature of Iraq for admission to the League of Nations in 1932’; upon its admission to the League the treaty will be reviewed. Thus Iraq is something more than a ‘mandated area’; its status is more akin to that of a Protected State, with this difference from other Protected States, that the relationship of protection follows ‘the principles of Article 22 of the Covenant’ and is subject to the supervision of the League to which the protector makes reports for examination by the Permanent Mandates Commission. There is a distinct Iraqui nationality; Iraqui nationals are protected by Great Britain in countries in which the King of Iraq is not diplomatically represented, and Great Britain is represented in Iraq by a High Commissioner. See Davidson, , The Constitution of Iraq, in Journal of Comparative Legislation, 3rd ser. vol. vii (1925), pp. 41–52Google Scholar.
page 154 note 5 A mandate in respect of Armenia was offered to the United States of America, but was not accepted. Armenia is now a Socialist Soviet Republic, forming part of the Transcaucasian Socialist Federal Republic, which is a member of the Union of Socialist Soviet Republics. Brown, in A.J. xiv (1920), pp. 396–398Google Scholar; International Conciliation Pamphlet, No. 151 (June, 1920). A mandate for Cilicia was offered to France and refused. Cilicia after being for a time in French occupation remains a part of Turkey.
page 155 note 6 See Hall, §§ 205, 206.
page 155 note 7 See R. v. Jacobus Christian in the Appellate Division of the Supreme Court of South Africa in 1923, summarized by Mackenzie, in B.Y. 1925, pp. 211—219Google Scholar, Matthews, in Journal of Comparative Legislation, 3rd ser. vol. vi (1924), pp. 245–254Google Scholar, and Emmett, ibid. vol. ix (1927), p. 117. As to the bearing of this decision on the question of sovereignty, see below, p. 158, Note on Sovereignty.
page 155 note 8 Article 122 of the Treaty of Versailles appears to assume the continuance of the German nationality of German subjects of European origin in mandated areas—a view which is strengthened by the minutes of the Permanent Mandates Commission, Second Session (cited by Wright in A.J. xviii (1924), at p. 313), and was assumed to be correct in the negotiations between the Governments of the Union of South Africa and of Germany preceding the automatic and collective naturalization Act of 1924 (see Emmett, supra, pp. 111–122, and B.Y. (1925), pp. 188–191).
page 155 note 9 L.N. Off. Jo. (1923), p. 604. (i) The status of the native inhabitants of a mandated territory is distinct from that of the nationals of the mandatory Power and cannot be identified therewith by any process having general application.
(ii) The native inhabitants of a mandated territory are not invested with the nationality of the mandatory Power by means of the protection extended to them.
(iii) It is not inconsistent with (i) and (ii) above that individual inhabitants of the mandated territory should voluntarily obtain naturalization from the mandatory Power in accordance with arrangements which it is open to such Power to make with this object under its own law.
(iv) It is desirable that native inhabitants who receive the protection of ihe mandatory Power should in each case be designated by some form of descriptive title which will specify their status under the mandate.
page 156 note 1 Act 30 of 1924, see Emmett, , op. cit and B.Y. (1925), pp. 188–191.Google Scholar
page 156 note 2 Which is equivalent to nationality, see Bentwich, , B.Y. (1926), at p. 102Google Scholar.
page 156 note 3 But as to Transjordania, see Bentwich, op. cit. at p. 106.
page 156 note 41 For details in all three cases, see Bentwich, op. cit. at p. 106.
page 156 note 5 For instance, as Lewis, op. cit. at p. 471, points out, the inhabitants of Samoa under the mandate of New Zealand have been described in legislation affecting them as ‘natives of Samoa entitled to British protection.’
page 156 note 6 See below, p. 153, n. 4, as to Iraq, Great Britain only affords diplomatic protection to nationals of Iraq in those countries in which the King of Iraq has no diplomatic representative.
page 157 note 7 There are a number of instances of one State granting diplomatic protection to the nationals of another, see Borchard, , Diplomatic Protection of Citizens Abroad, pp. 463–478, 068–574, cited by Wright in A.J. xviii (1924), p. 311Google Scholar. As in the native inhabitants of the former German overseas possessions, see Article 127 of the Treaty of Versailles.
page 157 note 8 All the mandates contain a clause which provides that any dispute between a mandatory and a member of tho League which cannot be settled by negotiation shall be referred to the Permanent Court of International Justice: see the Mavrommatis Palestine Concessions Case, Publications of the Court, Series A, No. 2. Is this right of bringing a dispute with a mandatory before the Court only available when the interests of the other party or its nationals are affected, or can it be used altruistically by a member of the League having no such interests to protect, but merely seeking the faithful observance of the terms of a mandate?
page 157 note 9 See Wright, in A.J. (1924), pp. 786Google Scholar, 787, and in Michigan Law Review (1025), pp. 717–747.
page 157 note 1 For instance, with Great Britain: Palestine, , A.J. xx (1926), Supplement, pp. 65–72Google Scholar; East Africa, Cameroons, Togoland, Treaty Series, Nos. 22, 23, 24 (1026); A.J. xx (1926), Supplement, pp. 166–177; with France, Cameroons and Togoland, A.J. xviii (1921), pp. 786–787, and Supplement, pp. 189–196; Syria and Lebanon, A.J. xix (1925), Supplement, pp. 1–5; with Japan, Gregory, in A.J. xv (1921), pp. 419–427Google Scholar, and ibid, xvi (1922), pp. 248–251. As regards the German possessions the United States of America could perhaps claim that, although she took no interest by cession or otherwise under Article 119 of the Treaty of Versailles, she had as a participant in the war a certain interest in the disposition of those possessions, see Cmd. 1226 of 1921. See International Conciliation Pamphlets, Nos. 166 (1921) and 213 (1925); and see Declaration of December 13, 1914, accompanying the Washington Four Power Treaty relating to the Pacific: Cmd. 1627 of 1922.