members of the League of Nations were permitted, Australia would be faced by the possibility of the influx of a large contingent of Japanese into her Pacific mandate, and Indians might find it possible to settle in South-West Africa. Considerations of this kind suggest that the mandatory system was ill adapted for application in these cases, and that, if it is maintained, it can only be on the understanding that in mandates of type "C" the system is a mere, somewhat unnecessary, cloak for annexation. Mandates of "B" Type. -In Article 22 of the Covenant it is clearly contemplated that the German possessions in East and West Africa should have formed the subject of mandates of a type intermediate between that applicable to the Turkish territories and that applicable to South-West Africa and the islands of the Pacific. In point of fact, however, only one mandate of the true type has been evolved, and this still lacks confirmation, the mandate for British East Africa,1 now administered as the Tanganyika Territory. The terms of this mandate are excellent and breathe the true spirit of the system, for, besides providing suitably similar safeguards to those included in the mandates of class C," the ،، mandatory undertakes to secure to all nationals of States, members of the League of Nations, equal rights with his own nationals as regards entry into and residence in the territory, protection of persons and property, acquisition of property, movable and immovable, and the exercise of professions or trades. Freedom of transit and navigation, and complete economic, commercial and industrial equality are conceded, subject only to the right of the mandatory to organise essential public works and services on such terms as he thinks just, a provision which obviously is aimed against any state trading which cannot be asserted to be essential. Concessions for the development of natural resources must be made without distinction of nationality, but on such conditions as shall maintain the authority of the local government. The privileges granted to nationals of any State are applicable to companies formed under the laws of that State. These provisions, it is clear, are just and proper, and they reveal in its complete theory the mandatory system. Similar provisions are proposed for adoption in the case of the Togoland and Cameroons mandates, but in these cases it is also proposed that the mandatory shall administer the territories 2 1 Parl. Pap. Cmd. 1284 and 1449. 2 On these points compare Keith, The Belgian Congo and the Berlin Act, pp. 286-8; Parl. Pap. Cmd. 1226. on the footing of integral parts of his own territory,1 a distinction which may be of some importance. France, for her part, remains, as in 1919, unwilling to accept the same terms for her African acquisitions, mainly it would seem on two grounds. In the first place, she is not contented with the restriction on the arming of native forces for defence purposes only; and, secondly, she contends that it would be unjust to open these territories to free exploitation for commercial purposes by other nations, including eventually Germany, seeing that the cost of administration must be heavy and can be rendered tolerable only if France can apply her own conceptions of a colonial commercial regime. It must, however, be noted that in this attitude the French Government is clearly running counter to the only possible intention of Article 22 of the Covenant. Mandates of "A" Type. -In the case of the Turkish territories conquered by the Allies, the mandatory system contemplated in the Covenant is one in which the existence of the communities concerned as independent nations can be provisionally recognised, subject to the rendering of administrative advice and assistance by a mandatory until such time as they shall be able to stand alone. The position is rendered more definite by Article 132 of the Treaty of Sèvres, August 10, 1920, under which Turkey renounces in favour of the principal allied Powers her rights over Mesopotamia and Palestine, and by Articles 94 and 95, which contemplate the recognition of Mesopotamia as an independent State, subject to the rendering of administrative advice and assistance by a mandatory, and the entrusting of the administration of Palestine to a mandatory under the obligation of securing the establishment in Palestine of a national home for the Jewish people. The practical disappearance of the Treaty of Sèvres precludes the possibility of the carrying out of the precise procedure contemplated by that Treaty, and in the course of events the mandate for Mesopotamia seems likely to come more nearly to assume the form contemplated in Article 22 than was originally the case. The establishment of an Arab kingdom suggests that the duties of the mandatory as regards internal affairs may gradually be reduced to the modest rôle contemplated in Article 22. But the mandatory must for the present, at any rate, remain entrusted with the conduct of the foreign relations of Mesopotamia, and with the duty of preventing the cession or lease of any portion of the territory to a foreign Power, while the Kurdish area is not yet included in the Arab kingdom, and for 1 Parl. Pap. Cmd. 1350, pp. 12, 15. • See Parl. Pap. Cmd. 1500. 1 1 it the mandatory cannot evade a full measure of responsibility. In Palestine, on the other hand, the mandatory has and must retain sovereign power, and the conflicts of national needs and claims differentiate this from all other mandates. Moreover, it is impossible not to recognise the gravity of the difficulty created for the mandatory by the fact that the adoption of the principle of a Jewish national home runs directly counter to the doctrine of the right of each people to self-determination. The result necessarily is that the mandatory must look forward to an indefinite period of active supervision, as the only possible method of securing the carrying out of the establishment of the Jewish home in the face of the strong and natural objections of the Arab population. In addition, the mandatory is empowered to apply a separate regime to the territory between the eastern boundary of Palestine and the Jordan, and this area is in fact under the control of an Arab chief, responsible only to the mandatory. Both in the case of Mesopotamia and Palestine the mandates as drafted contemplate the absolute extinction in the territories of the immunities and privileges of foreigners, including the benefits of consular jurisdiction and protection, and there is imposed on the mandatory the grave duty of securing that the judicial system established in Mesopotamia and Palestine shall safeguard the interests of foreigners. This provision inevitably must entail a serious responsibility; the Arab kingdom of Iraq, it is obvious, cannot of itself provide a judiciary competent to satisfy this condition; the mandatory will have actively to intervene to secure the requisite creation of a judicial system applicable to all cases which involve a foreign element, and the position in Palestine does not vitally differ. The Control of the League. - Article 22 contains no direct definition of the extent of control over the mandatories which the League may exercise; but it provides that each mandatory must render an annual account of the territory entrusted to his charge, and that a permanent Commission shall be constituted to receive and examine the annual reports of the mandatories, and to advise the Council on all matters relating to the observance of the mandates. As constituted by a resolution of the Council of December 1, 1920, the Commission is to consist of nine members, a majority being 1 See Parl. Pap. Cmd. 1449. 2 Parl. Pap. Cmd. 1500, PP. 3, 4, 8, 9. 3 Assembly Document 161, pp. 34, 35. 3 ? nationals of non-mandatory Powers. The members are selected by the Council on grounds of personal merit and competence, and must not, while members, hold any office which puts them in a position of direct dependence on their Governments. An expert appointed by the International Labour Organisation may attend in an advisory capacity all meetings of the Commission at which questions relating to labour are discussed. Each mandatory is required to send the annual reports to the Commission through duly authorised representatives, prepared to offer any supplementary explanations or information which the Commission may desire. Each report must be examined in the presence of the duly authorised representative of the mandatory Power from which the report comes, and this representative is entitled to take a full part in the discussion. The terms of the report to be made to the Council by the Commission will be decided in his absence, but must be communicated to the representative, who will be entitled to comment upon it, and, when the reports of the mandatories are forwarded to the Council by the Commission, they must be accompanied not only by their own report, but also by the remarks of the representatives. These remarks must also, if desired by the mandatory, be published when the other documents are made public. The Commission, acting in concert with the representatives, of the mandatories, shall hold a plenary meeting to consider the reports as a whole and any general conclusions to be drawn from them, and, apart from consideration of the reports, it may convene such a meeting in order to lay before the representatives of the mandatories any matters which the Commission considers should be submitted by the Council to the mandatories and to the other members of the League. 1 It is obvious that the work of the Commission cannot be confined to the mere ascertainment whether the mandatories have kept strictly within the ambit of their authority, but must survey generally the work done in each territory to see whether the mandate is being fulfilled in spirit as well as in the letter. Apart from any technical argument, this duty follows clearly from the fact that mandatories administer on behalf of the League, which therefore is morally responsible for any violation of the principle of mandates, and which, accordingly, is bound to study the conditions in which they are being carried out. The Commission, of course, has no authority over the mandatories, and the Council and the 1 Assembly Document 161, р. 17. Assembly alike have no means of enforcing their views on the mandatories other than through the general procedure of the League of Nations, which normally implies unanimity of opinion. The true mode of securing the just carrying out of the system lies in bringing to bear on any abuses the public opinion of the League, and especially of the country whose methods are pronounced faulty. Though public opinion works slowly and sometimes is ineffective, in the long run the advantage of the issue of reports by the Commission will be found to be substantial. Moreover, the effect will not be confined to the actual territory administered under mandates; practices there disapproved can hardly survive indefinitely in adjacent areas under direct sovereignty; it is sufficient to remark that the existence of the mandate for East Africa with its principle of equal opportunity for all comers operated as one of the reasons which condemned to failure Lord Milner's effort to apply to Kenya and Uganda the principle of the segregation of the Indian community. As far as the United Kingdom is concerned, it may be taken as certain that any censure by the Commission would, if really well founded, be taken up effectively by British public opinion. 1 Modification or Termination of Mandates. - A more definite and very important function is assigned to the Council of the League by the terms of the mandates themselves as issued or drafted. In the case of the mandates of "C" type, the consent of the Council is required for the modification of the terms of the mandates. In the other mandates the same condition is imposed, with the relaxation that, if the proposed change is brought forward by the mandatory, the consent of the Council may be accorded by a majority. A case which may be held to involve this principle has already arisen, in so far as the question has been raised how far it is proper that the inhabitants of the mandated territories should be permitted or required to accept the nationality of the mandatory. The issue is naturally especially acute in the case of South-West Africa; apart from questions of expediency, is it open to the Union of South Africa to insist on declaring the German and other Europeans who desire to remain in the territory to be British subjects ? Can the Commonwealth extend to the Pacific Islanders formerly under German control the same status as British subjects which is possessed by the Papuans? The issue can hardly be separated from the problem of the meaning in the case of the mandates of 1 Parl. Pap. Cmd. 1311, 1312. |