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The Proposed Termination of the Iraq Mandate

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
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Extract

The announcement on November 4, 1929, that Great Britain intended to recommend Iraq for admission to membership in the League of Nations in 1932 has presented some interesting constitutional questions to the Permanent Mandates Commission, as well as the unusual spectacle of a great Power seeking to convince a skeptical outside body that its dependency is ripe for independence. Heretofore, dependencies that wanted independence have usually had to fight for it, as did the United States, the Latin American States, Belgium, and the various successors to the Ottoman, Romanoff and Hapsburg Empires. It is true, Colombia and Panama, Sweden and Norway, Denmark and Iceland have separated without war but with some heartburnings. British statesmen experienced in the loss of colonies by violence, talked freely in the mid-nineteenth century of the natural destiny of colonies to drop from the mother tree when ripe, and in the twentieth century they have acquiesced in a status of virtual independence for the dominions, soon to include India. They have rationalized this “ climbing process” as one “ common to all the communities which form part of the Empire. Each of them, whether the population is predominantly white or predominantly colored, is gradually, as it develops in strength and capacity, passing upward from the stage in which the community is wholly subject to control exercised from London to that in which the measure of control diminishes, and so on to that in which the control has ceased entirely.”But this was after the event. Before it, history records military episodes in Ireland, India, South Africa, and even Canada.

Type
Research Article
Information
American Journal of International Law , Volume 25 , Issue 3 , July 1931 , pp. 436 - 446
Copyright
Copyright © American Society of International Law 1931

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References

1 League of Nations, Permanent Mandates Commission, Minutes (hereafter cited P. M. C.), XVI, 183, 203.

1a SeeErich, R., “La Naissance et la Reconnaissance des États”, Académie de Droit International, 1926, XIII, p. 442 et seq.Google Scholar

2 SirHurst, Cecil, Great Britain and the Dominions, Chicago, 1928, p. 12.Google Scholar

3 Most of the texts containing the terms of these conditions can be conveniently consulted in Holland, The European Concert in the Eastern Question, Oxford, 1885; Dickinson, The Equality of States in International Law, Cambridge, 1920, Chap. 7; League of Nations, Protection of linguistic, Racial, and Religious Minorities by the League of Nations, Provisions contained in the various International Instruments at Present in Force (C. L. 110, 1927,1. B. 2).

4 P. M. C., XVI, 18, 19. See also statement by Kastl, M., the German member of the commission, ibid., p. 18, and report of Procopé, M., accepted by the League of Nations Council, Jan. 13,1930: “The council will, of course, be most gratifiedwhen circumstances permit of the recognition of thefull independence of a territory under mandate,which would mark the final stage in the process of evolution contemplated by Article 22 of the Covenant” (League of Nations Official Journal XI, 58th Sess. of Council, item 2553), and Erich, op. cit., p. 449.Google Scholar

5 These texts are brought together in Wright, Mandates under the League of Nations, Chicago, 1930, pp. 593-599, and in the U. S. Treaty Series, No. 835.

6 P. M. C., XVI, 203.

7 P. M. C., XVIII, 11, 170-174, 200; XIX, 153-156, 173-17, 205.

8 M. Rappard, ibid., XVI, 20. M. Procopé's report, accepted by the Council on Jan. 13, 1930, stated: “In view of its responsibility in the matter, the Council will doubtless have at the proper moment to ascertain whether the provisions of Article 22 of the Covenant should cease to be applicable to Iraq. On the other hand, theadmission of Iraq to the League of Nationsisa questionfor which the Assembly is competent. From the pointof view of the mandate's régime, only the first of these two aspects calls for the considerationof the Council and consequently of the Permanent Mandates Commission which acts as its expert in the matter” (O. J. XI, 58th Sess. of Council, item 2553).

9 M. Rappard, P. M. C., XVI, 20; M. Van Rees stated: “It is, I think, in the final resort, the League Assembly which, with the Council's advice, should decide the question (when Iraq is able to stand alone) in agreement with the Mandatory Power.” Ibid., XVIII, 171.See also his statement, ibid., XVI, 17.

10 M. Penha Garcia, ibid., XIX, 175.

11 See Wright, op. cit., pp. 504-506, 519-522. The Council, however, resolved on Sept. 15,1925, in connection with the question of loans to mandated territories: “The cessation or transfer of a mandate cannot take place unless the Council has been assured in advance that theobligations regularly assumed by the former Mandatory Power will be carried out, and that all rights regularly acquired under the administration of the former Mandatory Power shall be respected. When this change has been effected, the Council will continue to use all its influence to ensure the fulfilment of these obligations.” O. J., VI, 510; P. M. C., XIX, 176; Wright, op.cit., p. 449. See also Procopé report accepted by the Council in 1930, supra, note 8, and report of M. Penha Garcia to the Mandates Commission, infra, note 13.

11a Admission to the League does not imply de jure recognition of the new member by all members of the League (though it might be evidence of such recognition by the states which voted favorably for admission), but it does seem sufficient evidence of de facto recognition by all members, since they are obliged to deal with the new member in all relations considered by League organs. (See Erich, op. cit., pp. 486, 497)

11b On the assumption that “the birth of a new state presupposes a national will as an indispensable factor” (p. 450), and that “in international law sovereign states are, in the present organization of the world, persons as a result of their very nature” (p. 463), Erich ascribes to “recognition only a declaratory effect” (p. 461), and argues that “the Assembly (in admitting a member to the League) does not pronounce on the question whether an ethnic entity is worthy or capable of self-government, but only on the existence or nonexistence of that quality which the Covenant designates by the words ‘fully self-governing.’” For the presentdiscussion it is immaterial whether or not we regard the status of “full selfgovernment” as equivalent to statehood, though the words “dominion or colony” in Article 1, and the practice inregardto the British Dominions, suggest that it is not. In any case it seems incompatible with the status ofmandated territory. (See, however, Woolf, International Law Association, 29th Conference, 1920, p. 136.) It is also immaterial whether we regard the Assembly's vote as creative of the status or as merely evidence of it. In either case it is conclusive so far as the League is concerned. Evidential facts become equivalent in effect to operative facts as they become conclusive; thus, while recognition by a few is merely evidence of status, general recognition, in effect, creates status. (See Wright, op. cit., pp. 288, 304; Erich, op. cit., p. 451)

12 P. M. C.,XVIII, 170-171. The United States accorded recognitionin the treaty between the United States, Iraq, and Great Britain, signed Jan. 9, 1930, U. S. Dept, of State,Treaty Information Bulletin, No. 4, p. 5; Treaty Series, No. 835, p. 2.

13 M. Penha Garcia, however, thought that, according to Article 1 of the Covenant “the cessation of the mandate should be pronounced first of all {i.e., before the newstate is admitted to the League), and that the obligations or guarantees which will ensure a régime of complete independence must be recognized by the responsibleauthorities of the territory at the time when such fullsovereignty is about to be established.” P. M.C., XIX, 176. See also Council resolutions, supra, notes 8, 11.

14 Statementof British accredited representative (P. M. C., XVI, 33) who said “his government believed that Iraq was already on an equal footing in this regard with somestates which were already members of the League.”

15 P. M. C., XVI, 204; XIX, 207.

16 Ibid., XIX, 76.

17 Ibid., 81, 82.

18 Ibid., 86.

19 Ibid., 87.

20 P. M. C., XIX, 93-94.

21 Ibid., XVIII, 17

22 Ibid., XIX, 192-193; Wright, The Mosul Dispute, this Journal, XX, 453-156.

23 P. M. C., XIX, 169-173, 206.

24 Ibid., 182-184, 212.

25 Ibid., XVIII, 171-174.

26 O. J., XI, 58th Sess. of Council, item 2553.

27 M. Penha Garcia thought consideration must be given to the following 13 points in deciding the conditions governing emancipation, though he recognized that some of them involved political aspects outside the competence of thecommission:

The conditions of internal and external security, including frontier questions;

The social and moral condition of the population;

The political and administrative organization and the ability shown by the governing authorities;

The spirit of existing legislation;

Economic and financial conditions;

Obligations resulting from particular and general conventions;

Obligations arising out of agreements between the Mandatory Power and the mandated territory;

Obligations assumed towards members of the League of Nations;

Guaranteesfor freedom of conscience and religious institutions;

Guarantees for the protection of minorities of race, language and religion, if any such exist in the territory;

Guarantees for an adequate judicial system;

Guarantees for safeguarding under the new régime the moral and material interests developed in the territory during the mandates régime;

The way in which the principle of economic equality, which is at the basis of the mandates régime, can be adapted to the new situation created by the termination of the mandate. (P. M. C., XIX, 176).

28 Ibid., 175. See also M. Orts, ibid., XVI, 146.

29 P. M. C., XVIII, 174. See also Iibid., XVI, 147.

30 Ibid., VI, 172. This was approved in principle by the Council on Sept. 15, 1925, but the phraseology made less specific reference to the responsibility of the new government; supra, note 11. See Wright, Mandates under the League of Nations, pp. 449, 513-514.

31 P. M. C.,XIX, 176.

32 Supra, note 11. Commenting on this, M. Penha Garcia observed: “The way in which it has been laid down that theCouncil will continue to take an interest in the obligations contracted under the mandates régime proves that it still reserves a certain right of action after the cessation of the actual mandate.” P. M. C., XIX, 176.

33 Ibid.