How to Get a Breakthrough in Ukraine
The Case Against Incrementalism
IN THE case of Iraq we now have the full life history of a mandate from birth to death. With the report of the Permanent Mandates Commission to the Council of the League on the termination of the British mandate the formal cycle of the functions of the Commission was rounded out, and a new and striking addition was made to the jurisprudence of the mandates system. Not only were the general conditions for the termination of mandates laid down by the Commission, but in addition the particular case of Iraq was examined and a report rendered both as to Iraq's general fitness and as to the guarantees of good conduct that must be internationally imposed upon her. To the Commission, in its vitally important rôle of adviser to the Council on mandate matters, fell the major share of these labors and of the responsibility attaching to them; but these responsibilities, it is to be feared, the Commission was more eager to evade than to meet squarely.
It is the clear implication of Article 22 of the Covenant, as has been recognized by many commentators, that the mandate was to be regarded as a temporary institution, having as its purpose the bringing to maturity of peoples "not yet able to stand by themselves under the strenuous conditions of the modern world" and ending when that purpose had been attained. There is, however, no precise statement to that effect nor is provision made for any machinery for its realization. In consequence, objections have been raised in certain quarters to the conception that mandates are temporary. These objections, although they seem baseless even for the B and C mandates, could certainly not be held to apply to the A mandates. The Palestine mandate may well, for political reasons, be of relatively long continuance, but the French representative has already informed the Mandates Commission that the termination of the Syrian mandate is under consideration.[i]
The British request for the termination of the mandate for Iraq put squarely before the League the problem of improvising the machinery which Article 22 had failed to supply. The formal structure of this machinery is now complete. But its operation in the case of Iraq exhibits again those fundamental flaws which from the beginning have tended to weaken the mandates system. The ultimate responsibility must, of course, rest with the Council, since it is the Council which is specified in the Covenant as the agency of the League in mandate matters;[ii] but the Council, not improperly, tends to shift the substance of its decisions to the Mandates Commission. It is here that the difficulty arises. For the Commission, in its turn, has seen fit to shift a large part of its burden back to the mandatory power. The mandatory initiates the procedure, it renders the report upon which the Commission bases its advice to the Council, and it bears some considerable share, at least, of the "moral responsibility" for termination.
That the machinery for the termination of a mandate should normally be set in motion by the mandatory itself appears clearly to be the assumption of the Mandates Commission. Lord Lugard, indeed, stated that in his view it was more correct to regard the mandate as terminable not only at the mandatory's request, but also whenever a country had reached the required standard; but he added that "for all practical purposes, the Council would never take action except at the request of the mandatory." No contrary opinions have been put forward by members of the Commission, and several members have expressed themselves in similar terms. That the Commission itself should take the initiative is politically most unlikely, considering the cautiousness of most of its present members. Moreover, it probably lies beyond the competence of the Commission, since its function under the Covenant is simply to advise "the Council on all matters relating to the observance of the mandates."
The inhabitants of the mandated areas would also seem to be excluded from the possibility of taking the first step, inasmuch as no machinery is provided for them to make their claim to independence heard. Petitions that oppose the mandate itself or the general structure of the system are declared non-receivable, and no provision has been made for the appearance of petitioners before the Commission or the Council to present their case in person.
There remains, of course, the possibility that the Council itself should set the machinery in motion, but it was precisely this possibility which Lord Lugard scouted. In view of the fact that the essential documents of the mandates system throw no direct light whatsoever on this question, it seems impossible to determine whether or not the Council possesses the formal competence to originate the procedure. From the political standpoint it must be recognized that, whatever the Council's competence, such an action on its part would seem to the mandatory an intolerable criticism of its manner of meeting its obligations. One is presumably justified in accepting the suggestion of Count de Penha Garcia in his report to the Commission that the consent of the mandatory would be necessary.
If the termination of a mandate is seriously in prospect, perhaps it is not of very great consequence who takes the initiative, since it may be assumed that before any formal action results a considerable measure of agreement will already have been reached by the principal parties concerned. Far more serious questions are raised by the fact that it is primarily on the basis of information supplied by the mandatory that the Commission, in reply to the Council's request for an opinion, makes up its mind as to whether the territory concerned is or is not prepared for independence. This relative lack of independent information is, of course, one of the most serious stumbling blocks to the effective operation of the mandates system in general, and gains peculiar importance in connection with the termination of mandates only because of the special weight of responsibility resting on the Commission at that time.
The difficulties of the Commission's position were discussed on a number of occasions in the course of its consideration both of the general conditions for the termination of mandates and of the special case of Iraq. M. Van Rees in particular was gravely doubtful as to whether the Commission's knowledge of a mandated area was adequate to allow it to do more than express a merely negative opinion. The mandatory power alone, he declared, could take a decision with full knowledge of the facts. The Commission, having examined all the information submitted to it, could go no further than to state that "it had found no grounds for advising that the mandate for Iraq should not be withdrawn."
Several sections of the special report of the Commission to the Council on the emancipation of Iraq [iii] indicate strongly the extent to which the Commission was in agreement with M. Van Rees. The whole report is negative in character as far as any expression of opinion by the Commission is concerned, and the Commission's recommendations are prefaced by the statement that "it has had no opportunity of observing at first hand the moral condition and internal policy of Iraq, the degree of efficiency reached by its administrative organization, the spirit in which its laws are applied and in which its institutions function." The Commission, the report continues, can therefore base its conclusions only on information supplied by the mandatory, and on petitions, with the observations of the mandatory upon them.
In the original draft of this section of the report the further statement was made that the Commission "could only give a definite opinion on these various points if it were free to employ methods of direct observation." This suggestion that the powers of the Commission were too limited for the proper performance of its functions was, however, challenged by certain members of the Commission, Count de Penha Garcia and M. Merlin agreeing that if the Commission were to stay in Iraq for three or six months it would be no wiser than on the day of its arrival. As a result of these criticisms the draft was amended to the more innocuous final version cited above. Similar divisions within the Commission as to the desirability of inquiries conducted within the mandated territory have occurred on several previous occasions. It is more than doubtful that authorization of such inquiries could be secured even if the Commission were in complete agreement that it would be wise to make them. The mandatory powers tend strongly to regard themselves as the only proper sources of information for the Commission, and the influence of those mandatories who are also Council members is bound to be considerable. A certain degree of support for the idea of inquiry on the spot was given by M. Grandi in the sixty-fourth session of the Council, but it met with no response. On this occasion, in connection with the discussion of the Commission's report on the general conditions for the termination of mandates, the Italian Foreign Minister put forward the view that there must be a direct study of the country's constitutional and administrative structure. It was not enough, he said, "to note the existence of certain laws; the Council must make sure that they could be applied, and, for this purpose, no means of investigation should be excluded." [iv] Early in the Commission's consideration of the case of Iraq this statement was cited by M. Palacios, with the suggestion that because of the special importance of the present case the Council might be prepared to authorize resort by the Commission to other than the normal means of investigation.
But there was no general acceptance by members of the Commission of the idea that it would be desirable to conduct investigations on the spot. M. Van Rees, perhaps the most cautious member of the Commission, even suggested that "a particularly dangerous aspect" of such an inquiry was that it would change the Commission's position and compel it to assume the responsibility of expressing a positive opinion regarding the degree of maturity reached by the mandated territory. Certain members did, indeed, point out that there were other sources of information concerning the mandated areas than the mandatories themselves, and that these were regularly utilized in questioning the representatives of the mandatories who appeared before the Commission. M. Merlin, for example, cited the petitions, press accounts, and the information given by travelers. The Commission was not, however, to be moved from its cautious position by such suggestions.
There can be no doubt that when the Commission is faced by such a request as that of the Council in connection with Iraq it finds itself in a difficult position. It is called upon to give its opinion on a matter of fundamental importance, yet the major part of the evidence is furnished to it by a party vitally concerned in the result. Its means of access to independent sources of evidence are strictly limited. Conceding all this, we may still doubt whether the Commission has been willing to assume as large a share of the responsibility as must inevitably fall to it. The relative success of the mandates system has been due primarily to the existence and the integrity of the Commission. If it should fall by the wayside the collapse of effective League control over the mandates could scarcely be far distant.
Yet it is difficult to avoid the conclusion that in the case of Iraq the Commission attempted to evade a responsibility legitimately its own. Time and again in the course of the discussion members of the Commission sought to shift the responsibility back to the mandatory power; and, even though there were braver spirits among them, the final report to the Council bears clearly the impress of this evasion.
It seems clear, as will be shown below, that the majority of the members of the Commission did not feel that Iraq had yet reached a degree of maturity at which it could stand alone under the strenuous conditions of the modern world, yet the report to the Council accepts the recommendation of the mandatory for the termination of the mandate. The declaration of Sir Francis Humphrys, High Commissioner for Iraq, as to the continuing responsibility of Great Britain, appears to have been the principal factor influencing the decision. This declaration, cited in part in the report to the Council, states that "His Majesty's Government fully realized its responsibility in recommending that Iraq should be admitted to the League, which was, in its view, the only legal way of terminating the mandate. Should Iraq prove herself unworthy of the confidence which had been placed in her the moral responsibility must rest with His Majesty's Government, which would not attempt to transfer it to the Mandates Commission." [v]
The importance of this declaration in the eyes of the Commission is evidenced by the succeeding paragraph in the report, which states that if it were not for this declaration "the Commission would, for its part, have been unable to contemplate the termination of a régime which appeared some years ago to be necessary in the interests of all sections of the population." From this it seems that it is the agent which is undertaking the action rather than the principal on whose behalf the tutelage is being exercised.
This shirking of responsibility by the Commission was attacked on several occasions by advocates of a bolder attitude. M. Rappard in particular was concerned to point out that those who denied the Commission's responsibilities implicitly acknowledged that its work was vain. To refuse to give a decision which is backed up with full and complete responsibility is, he insisted, tantamount to suicide. The Chairman likewise felt that, although the mandatory should take full responsibility for the facts it had brought forward, the Commission still remained responsible to its own conscience and to the public opinion of the world for a decision which might have serious consequences. M. Orts agreed with the Chairman both in this opinion and in the further suggestion that the Commission could properly meet its responsibilities only after an inquiry on the spot. The extreme opposite of this view is to be found in the comment of M. Van Rees, noted above, that an inquiry on the spot was dangerous precisely because of the responsibility it placed on the Commission.
That the majority of the Commission was highly dubious of the wisdom of terminating the mandate for Iraq is evident throughout the records of the entire discussion. Serious doubts were expressed on a number of different and vitally important points bearing on independence -- such as defense and the alliance with Great Britain, the protection of minorities and of foreigners, economic independence, and general political and administrative ability. Furthermore, only two members of the Commission expressed the positive opinion that the time had come for the termination of the mandate, and both, it should be noted, spoke before the Council had put the problem squarely up to the Commission and before the final examination of the 1930 report and of the High Commissioner.
If there were only two to speak definitely in favor of ending the Iraq mandate, there were a number who expressed the contrary opinion. On several occasions, in fact, members suggested that the whole Commission was unconvinced as to the readiness of Iraq for independence. Thus M. Rappard stated that "none of the members of the Commission, even the most optimistic, would be prepared to affirm their conviction that Iraq could be emancipated without disadvantage," and suggested further that this anxiety should be the substance of the frank report to be made to the Council. At least two other members expressed similar anxieties on behalf of the Commission as a whole, Count de Penha Garcia remarking that it would be idle to deny that the Commission had the impression that the emancipation of Iraq was premature and M. Merlin stating that members of the Commission regretted that the mandatory power should be relinquishing its task after so short a period. Several members also gave voice to personal doubts. M. Orts, who was particularly concerned with the precarious situation of the minorities, intimated strongly that although Iraq now gave the appearance of a modern constitutional monarchy it was highly doubtful whether this impressive façade rested on the solid foundations of adequate political education. In the succeeding session of the Commission he even went so far as to suggest that the termination of a mandate, before the real aims had been achieved, would amount to a failure of the system. Mile. Dannevig, particularly in connection with the interests of women and children, felt obliged to state that she "would not venture to express her conviction that it would be in the best interests of Iraq to remove the advice and support of the mandatory power."
In the final drafting of the report to the Council, Marquis Theodoli, chairman of the Commission, appears also to have associated himself with these doubts. M. Rappard and M. Orts had both submitted draft articles for the report stating in somewhat different language that the Commission's examinations of Iraq's affairs had not led it to believe that the time had come for the termination of the mandate. The Chairman expressed his readiness to adopt the text submitted by M. Orts, which contained the further statement that it was only the British declaration of responsibility which made it possible for the Commission to accept the mandatory's proposal. This text, in considerably modified form, found its way into the report to the Council.
In the light of the specific declarations by members of the Commission, and of the tone of the questions put to the High Commissioner, it seems beyond dispute that most of the Commission was opposed to advising the Council to grant the British request. An examination of the Commission's report (despite the fact that the proposal to terminate the mandate is accepted) strongly bears out this view. On almost every point mentioned in the report a qualification is attached casting doubt on the real ability of Iraq to maintain itself at an acceptable standard. Furthermore, as was made clear in the course of its discussions, the Commission was obviously dubious as to the propriety of the arrangements both in respect to Great Britain's economic hold on the country and her predominant military-political position as expressed in the Anglo-Iraqi Treaty of June 30, 1930.[vi] The report to the Council, however, contains merely the typically equivocal statement that, although the obligations assumed by Iraq towards Great Britain were somewhat unusual in treaties of this kind, they "did not explicitly infringe the independence of the new State."
It is difficult, in view of all the foregoing, to escape the conclusion that the Mandates Commission has evaded the responsibility which legitimately rests upon it and must rest upon it if the mandates system is to be more than the pious fraud which its hostile critics have asserted it to be. If the Commission, in order to avoid damaging the susceptibilities of mandatory powers, is to decline to exercise its full critical powers and rights, then the foundations of the system will have been shattered.
[i] Permanent Mandates Commission, Minutes, XX, pp. 32-38 and 163.
[ii] But the Assembly can by no means be ignored in this connection, because of its jurisdiction over the admission of new members into the League. The termination of a mandate without the entry of the new state into the League is conceivable, but highly improbable. The preamble of the Anglo-Iraqi Treaty of June 30, 1930, speaks of the automatic termination of the mandatory responsibilities of Great Britain "upon the admission of Iraq to the League of Nations." The act of admission was voted by the League on October 3, 1932.
[iii] Permanent Mandates Commission, Minutes, XXI, Annex 22.
[iv]Official Journal, November, 1931, p. 2049.
[v] Permanent Mandates Commission, Minutes, XX, p. 134. The only portion of this declaration which the Commission omits in its report to the Council is the concluding clause.
[vi] The provisions of this treaty were the subject of critical examination in the course of the Commission's discussions. Several members hinted strongly that Great Britain in terminating the mandate had secured for herself a position incompatible with the sovereign independence of Iraq. The Chairman stated that in certain clauses of the treaty "the extreme limit of what could be done without infringing the independence of a state, as conceived by the Covenant, had been reached and perhaps even passed," while M. Palacios remarked that it was difficult not to share the apprehensions of those who saw the mandate being replaced by an ordinary protectorate.