COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

SAHARA OCCIDENTAL

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 22 MAT 1975

1975

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

WESTERN SAHARA

(REQUEST FOR ADVISORY OPINION)

ORDER OF 22 MAY 1975
Mode officiel de citation:

Sahara occidental, ordonnance
du 22 mai 1975, C.1.J. Recueil 1975, p. 6.

Official citation:

Western Sahara, Order
of 22 May 1975, I.C.J. Reports 1975, p. 6.

Sales number 410
N° de vente:

INTERNATIONAL COURT OF JUSTICE

YEAR 1975
1975
22 May
22 May 1975 General List
No. 61

WESTERN SAHARA
(REQUEST FOR ADVISORY OPINION)

ORDER

Present: President Lacus; Vice-President AMMOUN; Judges FORSTER,
Gros, BENGZON, PETREN, ONYEAMA, DILLARD, IGNACIO-PINTO,
DE CASTRO, Morozov, JIMENEZ DE ARECHAGA, Sir Humphrey
WALDOCK, NAGENDRA SINGH, RUDA; Registrar AQUARONE.

THE COURT,

Composed as above,
After deliberation,

Having regard to Articles 31 and 68 of the Statute of the Court, and to
Articles 3, 87 and 89 of the Rules of Court,

Having regard to resolution 3292 (XXIX) of the General Assembly of
the United Nations dated 13 December 1974 requesting the International
Court of Justice to give an advisory opinion on the following questions:

“J, Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the
time of colonization by Spain a territory belonging to no one
(terra nullius }?

If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom
of Morocco and the Mauritanian entity?”

4
WESTERN SAHARA (ORDER 22 V 75) 7

Makes the following Order:

Whereas by a letter from the Permanent Representative of Morocco to
the United Nations dated 25 March 1975, the Government of the King-
dom of Morocco alleged that there is “a legal question actually pending”
between the administering Power of Western Sahara, namely Spain, and
the Kingdom of Morocco, as well as other States which are directly
interested; and, basing its request on Article 89 of the Rules of Court,
requested the appointment of a person to sit in the present proceedings as
judge ad hoc under Article 31 of the Statute;

Whereas, by a letter from the Chargé d’affaires ad interim of the
Mauritanian Embassy to the Netherlands dated 26 March 1975, the
Government of the Islamic Republic of Mauritania, relying upon Ar-
ticle 31 of the Statute of the Court and Articles 87 and 89 of the Rules of
Court, referred to the recognition of its interest in the question of the
Sahara under Spanish administration by the General Assembly in resolu-
tion 3292 (XXIX), and informed the Court of its intention to choose a
person to sit as judge ad hoc in the present proceedings;

Whereas the Court includes upon the Bench a judge of the nationality
of Spain, the administering Power of Western Sahara;

Whereas, by a letter from the Ambassador of Spain to the Netherlands
dated 9 April 1975, the Government of the Spanish State informed the
Court that it was convinced that the circumstances which would render
applicable Article 89 of the Rules of Court, in relation to Article 31 of
the Statute, had not arisen in the present case;

Whereas, by a letter from the Ambassador of Algeria to France dated
21 April 1975, the Government of the Democratic and Popular Republic
of Algeria reserved its rights to take part in the oral proceedings; and
with reference to the letters referred to in the foregoing recitals, stated
that Algeria reserved its rights on a basis of equality;

Having regard to the communications or written statements under
Article 66, paragraph 2, of the Statute of the Court, filed by the Govern-
ments of Chile, Costa Rica, Dominican Republic, Ecuador, France,
Guatemala, Mauritania, Morocco, Nicaragua, Panama and Spain;

Having regard to the dossier of documents transmitted to the Court, in
two instalments, by the Secretary-General of the United Nations, pursu-
ant to Article 65, paragraph 2, of the Statute, as likely to throw light
upon the questions;

Having heard the respective observations of Morocco, Mauritania,
Algeria and Spain at public hearings held between 12 and 16 May
1975;

Whereas, for the purpose of the present preliminary issue of the compo-
sition of the Court in the proceedings, the material submitted to the
Court indicates that, when resolution 3292 (XXIX) was adopted, there
appeared to be a legal dispute between Morocco and Spain regarding the
Territory of Western Sahara; that the questions contained in the request
for an opinion may be considered to be connected with that dispute; and

5
WESTERN SAHARA (ORDER 22 V 75) 8

that, in consequence, for purposes of application of Article 89 of the
Rules of Court, the advisory opinion requested in that resolution appears
to be one “upon a legal question actually pending between two or more
States”:

Whereas the material submitted to the Court shows that when resolu-
tion 3292 (XXIX) was adopted, Mauritania had previously adduced a
series of considerations in support of its particular interest in the territory
of Western Sahara; whereas however, for the purpose of the present
preliminary issue of the composition of the Court in the proceedings,
that material indicates that, when resolution 3292 (XXIX) was adopted,
there appeared to be no legal dispute between Mauritania and Spain
regarding the Territory of Western Sahara; and that, in consequence, for
purposes of application of Article 89 of the Rules of Court, the advisory
opinion requested in that resolution appears not to be one “‘upon a legal
question actually pending” between those States;

Whereas the conclusions stated above in no way prejudge the Jocus
standi of any interested State in regard to matters raised in the present
case, nor do they prejudge the views of the Court with regard to the
questions referred to it in the above-mentioned resolution 3292 (XXIX),
or any other question which may fall to be decided in the further proceed-
ings on the present request for an advisory opinion, including the ques-
tion of the Court’s competence and the propriety of its exercise;

THE CourT,

by 10 votes to 5,

(1) finds that the Kingdom of Morocco is entitled under Articles 31 and
68 of the Statute of the Court and Article 89 of the Rules of Court to
choose a person to sit as judge ad hoc in the present proceedings;

by 8 votes to 7,

(2) finds that, in the case of the Islamic Republic of Mauritania, the
conditions for the application of Articles 3! and 68 of the Statute of
the Court and Article 89 of the Rules of Court are not satisfied in the
present proceedings.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-second day of May, one
thousand nine hundred and seventy-five, in six copies, of which one will
be placed in the archives of the Court, one will be transmitted to the
Secretary-General of the United Nations, and the others will be trans-
mitted to the Governments of the following States: Algeria, Mauritania,
Morocco and Spain.

(Signed) Manfred LACEHS,

President.

(Signed) S. AQUARONE,
Registrar.
WESTERN SAHARA (ORDER 22 V 75) 9

President LACHS makes the following declaration:
[Traduction]

Il se peut que la Cour veuille commenter de façon plus approfondie la
question de la désignation de juges ad hoc en la présente affaire quand elle
se prononcera sur la demande d’avis consultatif. Il va de soi que les
membres de la Cour pourront également exprimer leurs vues sur la
question à ce moment-là, dans l’exercice du droit que leur confère Par-
ticle 57 du Statut. :

Judge Morozov appends a dissenting opinion to the Order of the
Court.

(Initialled) M.L.
(Initialled) S.A.


PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

- SÉRIE B — N° 12
Le 21 novembre 1925

RECUEIL DES AVIS CONSULTATIFS

ARTICLE 3, PARAGRAPHE 2, DU
TRAITÉ DE LAUSANNE

(FRONTIÈRE ENTRE LA TURQUIE ET L’IRAK)

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B. — No. 12
November 21st, 1925

COLLECTION OF ADVISORY OPINIONS

ARTICLE 3, PARAGRAPH 2, OF THE
TREATY OF LAUSANNE

(FRONTIER BETWEEN TURKEY AND IRAQ).

A. W. Sijthoff’s
Publishing Company

Société d’Editions
A. W. Sijthoft
Leyde

Leyden
PERMANENT COURT OF INTERNATIONAL JUSTICE.

NINTH (EXTRAORDINARY) SESSION 1925.

\ November 21st.
P . File F, c. XIV.
vesent : . Docket IX. 1.

MM. Huser, President,

LopER, Former President,

Weiss! Vice-President,
Lord FINLAY, ;
MM. NYHOLM,-

ALTAMIRA, ~ | Judges.
ANZILOTTI,

| YOVANOVIICE,
BEICHMANN, Deputy-Judges.
NEGULESCO.

ARTICLE 3, PARAGRAPH 2, OF THE
TREATY OF LAUSANNE
(FRONTIER BETWEEN TURKEY AND IRAQ).

On September roth, 1925, the Council of the League of Nations
adopted the following Resolution :

“The Council of the League of Nations, having been seized

of the question of the frontier between Turkey and Iraq
_ by application of Article 3, paragraph 2, of the Treaty of
Lausanne, decides, for the purpose of elucidating certain
points of law, to request the Permanent Court of International
Justice to give an advisory opinion on the following questions :

“t) What is the character of the decision to be taken
by the Council in virtue of Article 3, paragraph 2, of the
Treaty of Lausanne — is it an arbitral award, a recom-
mendation or a simple mediation ?
ADVISORY OPINION No, 12 7

‘“2) Must the decision be unanimous or may it be taken
by a majority ?

“May the representatives of the interested Parties take
part in the vote ?

‘The Permanent Court is requested to examine these
questions, if possible, in a extraordinary session.

“The Council requests the Governments of Great Britain
and Turkey to be at the disposal of the Court for the purpose
of furnishing it with all relevant documents or information.
it has the honour to transmit to the Court the Minutes of
the meetings of the Council at which the question of the
frontier between Turkey and Iraq has been examined.

“The Secretary-General is authorized to submit the present

‘request to the Court, together with all the relevant documents,
to explain to the Court the action taken by the Council in
‘the matter, to give all assistance necessary in the examination
“of the question, and, if necessary, to take steps to be repre-
sented before the Court.”

- In -pursuance of this Resolution the Secretary-General of the
League of Nations submitted to the Court, on September 23rd, 1925,
a Request for an advisory opinion in the following terms :

“The Secretary-General of the League of Nations,
“Gn pursuance of the Council Resolution of September roth,
1925, and in virtue of the authorization given by the Council,
“ “has the honour to submit to the Permanent Court of
‘International Justice an application requesting the Court,
in accordance with Article 14 of the Covenant, to give an advis-
ory opinion to the Council on the questions which are referred
to the Court by the,Resolution of September rgth, 1925.
“The Secretary-General will be prepared to furnish any
’ assistance which the Court may require in the examination
of this matter, and will, if necessary, arrange to be represented
before the Court.” .

In conformity with Article 73 of the Rules of Court, the Request
was communicated to the Members of the League of Nations, to
the States mentioned in the Annex to the Covenant and to Turkey.
At, the same time, Members of the League were informed that,
having regard to the nature of the questions put, and their possible
ADVISORY OPINION No. I2 8

bearing .on the interpretation of the Covenant, the Court would
no doubt be prepared favourably to receive an application by any
Member to be allowed to furnish information calculated to throw
light on the questions at issue. The notifications to Great Britain
and Turkey were further based on the principle laid down in the
Rules of the Court, in accordance with which a question referred
to the Court for advisory opinion is communicated to governments
likely to be able to supply information in regard to it.

The Council of the League of Nations having requested the Court
to examine the questions set out above, if possible, in an extraordi-
nary session, and having informed the Court that it would be glad
to receive the opinion asked for by a date which would enable it
to proceed with the examination of the affair at its own next ses-
sion commencing on December 7th, 1925, the President of the Court
decided, by virtue of the powers conferred upon him by Article 23
of the Court’s Statute, to summon an extraordinary session of
the Court beginning on October 22nd, 1925.

Following upon the notification above mentioned, the Turkish
Minister for Foreign Affairs sent to the Registrar of the Court the
following telegram dated October 8th:

[ Translation. ]

“I have the honour to, acknowledge receipt of your telegram
September 26th stop Turkish Government, whilst having greatest
esteem and respect for the International Court of Justice as it has
stated on many occasions, is convinced that the questions mentioned
in Council of League of Nations’ Request dated September roth
and in regard to which Court’s advisory opinion is asked are of
a distinctly political character and, in the Turkish Government’s
opinion, cannot form the subject of a legal interpretation stop
Powers entrusted to Council in Mosul dispute under final Text of
Article 3 Lausanne Treaty and previous declarations of the late
Lord Curzon which led to adoption by Turkey of that article
exclude all possibility of an arbitration stop Further the fact that
Council has itself felt necessity of asking Court for advisory opi-
nion as to nature of powers possessed by it under Article 3 above-
mentioned, demonstrates correctness my Government’s views stop
British representative having for his part declared before Council
that previous undertakings given by-his Government in regard
to this point no longer hold good, the intention thus officially
ADVISORY OPINION No. I2 9

manifested resolves the question in regard to which moreover
no doubt could subsist stop Feel my duty call Court’s attention
to the fact that my Government has also clearly and adequately
explained its views regarding Request submitted by Council and
latter’s competence stop My Government also considers there is

no need for it to be represented at extraordinary session of Court :

for consideration of above-mentioned Request having already made
known its opinion on the subject stop Request you to inform Court
of foregoing. — TEWFIK ROUCHDY Minister Foreign Affairs
Turkey.”

His Britannic Majesty’s Government, for its part, filed with the
Registry on October 21st, a “Memorial” on “The question of the
frontier between Turkey and Iraq”. The Court also heard the
information furnished orally by the representative of the British
Government, the Attorney-General, Sir Douglas Hogg, in the course
of the hearings held on October 26th and 27th.

The two Governments directly concerned had furthermore sent -

to the Court complete collections of the Acts and Documents relat-
ing to the Conferences of Lausanne and Constantinople, and also
collections of documents relating to the so-called Mosul question.
Lastly, the Turkish Government was good enough, subject to the
reservations made in the telegram set out above, to reply to
certain questions which the Court had already seen fit to put to
it before the hearings.

_ In addition to the evidence produced by the interested Parties,

the Court has had before it the dossier sent by the Secretary-

General of the League of Nations together with the Council’s

Request, and also certain additional documents and information
which the Secretary-General was good enough to furnish at the
request of the Court!.

I.

The Court must, in the first place, indicate the circumstances

which induced the Council of the League of Nations to ask for an
advisory opinion on the questions set out in the Request.

During or as a result of the war of 1014-1018, the British Forces

occupied the Turkish vilayets of Bagdad and Basra, and at least

1 See list in Annex.
ADVISORY OPINION No. I2 10

a large part of the vilayet of Mosul; Great Britain subsequentiy
set up a civil administration there. When, in 1920, the Supreme
Council allotted the mandates contemplated in Article 22 of the
Covenant of the League of Nations, Great Britain received,
amongst others, the mandate for “Mesopotamia, including Mosul”.
(Declaration by Mr. Lloyd George in the House of Commons,
April 29th, 1920; see Hansard Parliamentary Debates, 1920,
Vol. 128, pp. 1469-1470.)

In the Peace Treaty, signed at Sévres on August roth, 1920,
the frontiers of Turkey ‘‘with Mesopotamia’ are laid down
as follows :

(3) With Mesopotamia :

“Thence in a general easterly direction to a point to be
chosen on the northern boundary of the vilayet of Mosul,

‘a line to be fixed on the ground ;

“thence eastwards to the point where it meets the frontier
between Turkey and Persia,

“the northern boundary of the vilayet of Mosul, modified,
however, so as to pass south of Amadia.”

This Treaty, however, was never ratified.

In consequence of the events which took place in Turkey in 1922,
the Powers entered into fresh negotiations with that country
which were opened at Lausanne on November 2oth, 1922, and
resulted in the signature on July 24th, 1923, of the Peace Treaty ©
which came into effect on August 6th, 1924. During these negotia-
tions, the question, amongst others, of the frontier between Tur-
key and Iraq (which name had been substituted for ‘‘Mesopota-
mia’’) was reopened.

Thus, on January 23rd, 1923, Lord Curzon said, at a plenary
meeting of the Territorial and Military Commission, that “among
the matters requiring to be laid down in the form of articles in the
Treaty of Peace.... was the determination of the southern
frontier of the Turkish Dominions in Asia’’, i. e. between these
Dominions and Syria and Iraq. The question was brought before
the Commission because private ‘exchange of views and notes”
had “‘led to no result”.

A discussion followed in the course of which H.E. Ismet Pasha,
and afterwards Lord Curzon, set out the views of their respective
ADVISORY OPINION No. I2 IT

Governments. As these views appeared irreconcilable, Lord
Curzon eventually proposed, on behalf of the British Government,
to refer the question of the frontier between Turkey and Iraq
“to independent enquiry and decision’”—by the League of Na-
tions—and declared that his Government would abide by the
result. Lord Curzon concluded by formally “inviting the Turkish
Delegation to accept this proposal’.

At the following meeting, however, Ismet Pasha stated that he

could not accept the proposal in question, adding that “the Dele-
‘gation of the Government of the Grand National Assembly could
not allow the fate of a great region like the vilayet of Mosul...
to be made depéndent upon any arbitration’’.
_ Lord Curzon at once replied explaining what, in his view, if
Turkey had accepted his proposal, would have been the procedure
adopted by the Council of the League of Nations, a procedure to
which Turkey had just refused to submit. In this speech, upon
which the two Governments directly concerned place different
‘constructions, Lord Curzon was at pains to demonstrate, amongst
other things, the perfectly equal treatment which Turkey would
have received before the Council. He added that if Turkey per-
sisted in her refusal he would be obliged on behalf of his Govern-
ment “‘to act independently” under Article rz of the Covenant of
the League of Nations. |

Ismet Pasha, having repeated that he could not “concur in
the proposal to submit the solution of the Mosul question to arbi-
tration””, Lord Curzon stated that he would “take without delay’’
the action which he had previously indicated. .

‘Accordingly, on January 25th, 1923, he addressed to the Secre-
tary-General of the League of Nations a letter in which he requested
the latter to be good enough to place upon the agenda of the Coun-
cil session which was about to open in Paris “‘the case of the dis-
puted frontier between the Turkish Dominions in Asia Minor and
the mandated territory of Iraq”.

The Secretary-General complied with this request and the Council
considered the matter at a sitting held on January 30th, 1923. On
that occasion, Lord Balfour made a statement on behalfof the Bri-
tish Government to the effect that the proposal unsuccessfully made
by Lord Curzon at Lausanne, according to which “‘the League
of Nations should be asked to use its good offices to determine
the frontier’, would be renewed, and that only in the event of the
ADVISORY OPINION No. I2 . 12

failure of this further step, and in order to avert “the dangers which
failure might bring in its train”, would the British Government
desire to “invoke Article 11 of the Covenant’’ in order that the
League might ‘take any action that might be deemed wise and
effectual to safeguard the peace of nations”

' Lord Balfour took this opportunity to explain that “if the con-
tingency of which he had spoken arose”’, Article 17 of the Covenant
“‘would certainly be one of the articles invoked’’, but that under
the very terms of that article Turkey would be received “‘as a
Member of the League on complete and absolute equality with all
other Members”.

The Council contented itself with noting Lord Balfour's state-
ment.

On the following day, January 31st, the Commission on Terri-
torial and Military Questions of the Conference of Lausanne held
another plenary meeting. Lord Curzon merely stated on that
occasion that “‘the decision of this dispute” regarding Iraq had been
“‘veferred.... to the enquiry and decision of the Council of the
League of Nations’.

Some days later, on February 4th, 1923, a private meeting
between the principal delegates at the Conference took place in
Lord Curzon’s room. The Allied Powers had, at this time, drawn
up and communicated on January 29th to the Turkish Delegation
a draft peace treaty, dated January 3Ist; then, on February 3rd,
they had sent to the same Delegation a document setting out
what further concessions they were prepared to make. At the
meeting of January 31st, the Turkish Delegation had asked for
eight days in which to reply. The time allowed was, however,
fixed to expire on February 4th.

The draft treaty contained an article (No. 3) regarding the fron-
tiers with Syria and Iraq according to which the latter frontier was
to consist of ‘‘a line to be fixed in accordance with the decision
to be given thereon by the Council of the League of Nations”.

in its written reply to these proposals, which was made on the
day agreed upon, the Turkish Delegation expressed the opinion
that, for the sole purpose of preventing the Mosul question
from constituting an obstacle to the conclusion of peace, this
question should be excluded from the programme of the

od

Conference in order that it might, within the period of one |

2
ADVISORY OPINION No. I2 13

year, be settled by common agreement between Great Britain
and Turkey. . |

At the private meeting held on February 4th, Lord Curzon stated,
in regard to this reply, that he wasno longer able to consent to any
alteration of the wording of the Treaty in regard to Mosul, since
the matter had already been referred to the League of Nations and
was now in the hands of that Body. He was, however, prepared
to suspend the result of his appeal to the League for a period of
one year. This would enable the two Governments to examine
the matter by direct and friendly discussion. Should, however,
the two Governments fail to reach a direct understanding, the
intervention of the League would be resorted to in the manner
originally proposed.

According to notes taken by the British Secretary, but which
do not constitute an authoritative record, except in so far as the
views expressed on the British side are concerned, Ismet Pasha
then stated that he “accepted Lord Curzon’s proposals regarding
Mosul” ; these proposals were embodied in a draft declaration, the
first paragraph of which was as follows :

“In regard to Article 3, paragraph 2, of the Treaty of Peace,
His Majesty’s Government declare their intention not to invite the
Council of the League of Nations to proceed to the determination of
the frontier between Turkey and Iraq until the expiration of a period
of twelve months from the date of ratification of the present Treaty.”

On the other hand, according to information supplied to the
Court by the Turkish Government, Ismet Pasha’s acceptance of
Lord Curzon’s proposals only related to the maintenance of the
status quo during the period allowed for attempts to arrive at a
friendly settlement.

However that may be, as no agreement in regard to the Allies’
proposals as a whole could be reached at the private meeting of
February 4th, the meeting came to an end in face of this difficulty
and the Conference of Lausanne was interrupted for more than
two months.

When the Conference resumed its labours on April 23rd, 1923,
it had before it a letter from Ismet Pasha, dated March 8th, 1923,
forwarding the modifications proposed by the Turkish Government
in the draft treaty handed on January 29th by the Allied Delega-
tions to the Turkish Delegation. This letter mentioned, with

+

|
ADVISORY OPINION No. I2 I4

reference to Mosul, the written Turkish reply of February 4th ;
it also contained the following passages : “As regards Part I (poli-
tical clauses) . . .. there is no substantial modification. Territorial
questions are settled in accordance with the proposals of the Allied
Powers.” The counter-proposals annexed to the letter of March 8th
contained the following provisions for the determination of
the frontier between Turkey and Iraq:

‘The frontier between Turkey and Iraq shall be laid down in friendly
arrangement to be concluded between Turkey and Great Britain with-
in twelve months from the coming into force of the present Treaty.

“In the event of no agreement being reached, the dispute shall
be referred to the Council of the League of Nations.”

On April 24th, the British Delegate, Sir Horace Rumbold, at a
plenary meeting, alluded to this proposal and to the declaration
“of this kind” which the British Government had been prepared to
make at the time of the suspension of negotiations on February 4th ;
he added, however, that that declaration was dependent upon
a reciprocal undertaking that the status guo would be preserved
during the contemplated period of twelve months, and that,
provided a clause to that effect was inserted in the Turkish
amendment, the British Delegation would be prepared to accept
that amendment, subject to discussion with Ismet Pasha in regard
‘to the exact duration of the time allowed for the Turco-British
negotiations.

It was not, however, until the following June 26th that Sir
Horace Rumbold was able, with the assent of Ismet Pasha, to
announce that the British and Turkish Delegations had agreed—
Ÿn the course of private meetings and negotiations—to propose
for adoption by the Conference the following clause in regard to
the frontier of Iraq:

“The frontier between Turkey and Iraq shall be laid down in
friendly arrangement to be concluded between Turkey and Great
Britain within nine months from the coming into force of the
present Treaty.

“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 the decision to be reached on the subject of the fron-
ADVISORY OPINION No. 12 15

tier, 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.”

On July xrth, it was agreed that the period of nine months
provided for should begin to run not on the date of the coming
into force of the Treaty, but at the expiration of the time allowed
for the evacuation of the territories occupied by the Allies ; and,
on July 24th, the Treaty was signed, its third article substantially
embodying the clause set out above.

The negotiations designed to fix by friendly arrangement the
frontier between Turkey and Iraq, began at Constantinople on
May roth, 1924, and continued until June gth of that year. They
were unsuccessful, and Sir Percy Cox, the British Delegate, when
their failure was apparent, invited the Turkish Delegate to agree
upon the terms of a ‘joint declaration referring the question to
the League of Nations” under Article 3 of the Treaty of Lausanne.
H.E. Fethy Bey, the Turkish Delegate, did not, however, feel able
to comply with this invitation, “as the instructions of his Govern-
ment did not authorize him to discuss the terms of the proposed
declaration”. Whereupon, Sir Percy Cox stated that, “failing
a joint reference, His Majesty’s Government would itself refer the
matter to the League of Nations”, though it hoped “that the Turkish
Government would associate itself with it in taking this step”.

lt was in these circumstances that the British Government, on
August 6th, 1924, sent to the Secretary-General of the League of
Nations a letter asking that the following question should be
placed on the agenda of the next Council Meeting :

“Frontier of Iraq. — Article 3 (2) of the Treaty signed
at Lausanne on July 24th, 1923.’

The Secretary-General complied with this request and informed
the Turkish Government of his action by a letter dated August gth.
In the same letter, he reminded that Government ot the communica-
tion addressed to the League of Nations by the British Government
on January 25th, 1923, and he attached to his letter a copy of that
communication, of the Minutes of the Council Meeting of Jan-
uary 30th, 1923, and of Article r7 of the Covenant.

- In its reply, dated August 25th, the Turkish Government stated
that it agreed in principle to the inscription of the question on the
agenda of the Council.

The latter decided on August 30th to send a telegram “inviting
ADVISORY OPINION No. I2 7 16

the Turkish Government to be represented on a footing of equality

at its discussions” and informing that Government that considera-
tion of the question would be postponed until “the arrival of the
Turkish representatives.”’

In these circumstances it was not until September 2oth that the
Council was able to begin the examination of the question, Fethy
Bey, the Turkish representative, taking his seat at the Council table.

As early as this meeting, the Parties used different expressions
when describing the rôle which the Council would have to
play in the matter. Whilst, according to Lord Parmoor, the
British representative, the Council was to “act as arbitrator”’,
Fethy Bey merely referred to the submission of the question
to an “impartial examination” by the Council. At a subsequent
sitting on September 25th, the representatives of the Parties,
at the request of M. Branting, the. Rapporteur, explained
how they understood the reference to the Council provided for in
Article 3 of the Treaty of Lausanne. Lord Parmoor stated that
the British Government “regarded the Treaty as placing the Coun-
cil in the position of an arbitrator, whose ultimate award must be
accepted in advance by both Parties’. Fethy Bey, on the other
hand, stated that the Turkish Government ‘recognized the full
powers of the Council as conferred upon it by Article 15 of the
Covenant.’’ Whereupon the Rapporteur stated that the replies
would seem ‘‘to show that the Parties were both willing to recognize
the Council’s decision, one of them through arbitration and the
other under Article 15 of the Covenant”. Since, however, there was
a difference of opinion as to the subject of the dispute to be settled,
he proposed that the discussion should be adjourned in order to
enable him “‘to consider, in consultation with the two Parties, the
preliminary question of the precise duties of the Council.”

The discussion was resumed on September 30th. M. Branting
then read a report in which he gave an account of conversations
which he had had with Lord Parmoor and Fethy Bey. The former
had reminded him that “his Government accepted in advance the
Council’s decision regarding the frontier between Turkey and Iraq’’.
The latter, in reply to the question whether “‘he could, on behalf
ot his Government, now give an undertaking to accept the Council’s
recommendation”, had replied “that on this point there was no
disagreement between his Government and the British Government”
On the basis of these statements, the Rapporteur felt able to
ADVISORY OPINION No. I2 17

announce that “the doubts which might have arisen in regard to the
. tôle of the Council” had been ‘‘removed”’ and suggested, in
order that proceedings might be commenced, the appointment
of a Commission of Enquiry.
The Council adopted this suggestion. In the Resolution passed
to this effect, the following passage appears :

“Having heard the statements of the representatives of .

the British and Turkish Governments, who undertook on

behalf of their respective Governments, to accept in advance :

the decision of the Council on the question referred to it”

Lord Parmoor and Fethy Bey stated that they accepted this
Resolution.

The Members of the Commission of Enquiry were appointed
on October 31st, 1924, and the Commission filed its report with
the Secretariat of the League of Nations on July 16th, 1925. The
Council, therefore, had to consider the conclusions of this report
at the session held by it in September 1925.

In an introductory report, M. Undén, the Rapporteur, laid
stress, firstly, on the footing of equality on which the Parties were
placed before the Council, and, secondly, on the agreement as to the
Council’s rôle recorded in the Resolution of September 30th, 1924.
A discussion then ensued, at the meetings of September 3rd
and 4th, 1925, between the British and Turkish representatives,
Mr. Amery and H.E. Tewfik Rouchdy Bey, upon the merits of the
question of the frontier line between Turkey and Iraq. At the
conclusion of this discussion, the Rapporteur proposed, at a private
meeting at wnich the delegates of the Parties were present, that
the Council ‘should appoint a sub-committee to examine the ques-
tion and make a report”. The Council decided accordingly and the
President “reminded the Parties that they had before the Council
placed their cause solemnly in the ‘hands of the League of Nations,
of which the Council formed part, and that they were awaiting
from the Council that justice which it would endeavour to grant
them”.

It was by the report of the Sub-Committee thus appointed, of the
proceedings of which no record, if any were kept, has been communi-
cated to the Court —, that the proposal to refer to the Court the ques-
tions to which this advisory opinion is intended to reply, was, on
ADVISORY OPINION No. I2 18

September 19th, 1925, laid before the Council. The adoption of the
Resolution by which the Council decided in accordance with this
proposal. was preceded by an exchange of views between the British
and Turkish representatives, in the course of which Mr. Amery
maintained that what was intended by Article 3, paragraph 2,
of the Treaty of Lausanne “was an arbitral decision given on the
broad merits of the case’, whereas, according to Tewfik Rouchdy
Bey, “the only possible procedure’ was “to reach a solution with
the consent of the Parties througn the good offices of the Council”,
and not to resort “to a decision given by the Council without their
consent.”

IT.

Before proceeding to examine the questions put to it by the Coun-
cit, the Court wishes to observe that it intends strictly to confine
itself to consideration of these questions, without in any way
prejudging the merits of the problem before the Council ; nothing
in the present opinion, therefore, is to be interpreted as anticipating
the solution of that problem.

*
* %

The first question put to the Court regards the nature of the
.““decision to be reached”’ by the Council under Article 3, paragraph 2,
of the Treaty of Lausanne. In order to be able to reply to it,
that article must be analyzed, with a view to discovering any
. factors which may determine the nature of the decision. The
explanatory phrase following the question indicates that the nature
of the functions to be undertaken by the Council must be defined,
having particular regard to the effect that its decision is intended
to produce in relation to the Parties, that is to say, whether it is
designed to be binding upon them, or whether, on the contrary,
this is not the case.
The mission which the Court has to fulfil is to interpret a treaty
provision—namely Article 3, paragraph 2, of the Treaty of Lau-
sanne—which runs as follows :

‘From the Mediterranean to the frontier of Persia, the fron-
tier of Turkey is laid down as follows:
ADVISORY OPINION No. I2 Ig
(x) With, Syria :

. The frontier described in Article 8 of the Franco-Turkish
Agreement of October 2oth, 1921;

(2) With Iraq :

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 under-
take that, pending the 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.”

The Court must, therefore, in the first place, endeavour to ascer- ~
tain from the wording of this clause what the intention of the con-
tracting Parties was; subsequently, it may consider whether—
and if so, to what extent—factors other than the wording of the
Treaty must be taken into account for this purpose.

The Court is of opinion that in signing Article 3, paragraph 2,
of the Treaty of Lausanne, the intention of the Parties was, by
means of recourse to the Council, to insure a definitive and binding
solution of the dispute which might arise between them, namely,
the final determination of the frontier. The Court feels bound
to adopt this interpretation for the following reasons :

Article 3, which forms part of the section of the Treaty devoted
to “Territorial Clauses”, is intended to Jay down the frontier of
Turkey from the Mediterranean to Persia. It draws a distinction
between two different sections of this frontier: (1) that separating
Turkey from Syria, a frontier already described in the Franco-
Turkish Agreement of October 2oth, 1921, the line of which is
maintained ; (2) that which is to separate Turkey from Iraq, a
frontier to be laid down in friendly arrangement between Turkey
and Great Britain within nine months, failing which the dispute
is to be referred to the Council of the League of Nations. Although
ADVISORY OPINION No. 12 20

one of the sections of the frontier still remains to be determined,
whilst the other is already defined, it is clear that the object of this
article is to establish a continuous and definitive frontier. Not
only are the tertiis used (“lay down”, fixer, déterminer), only to be
explained by an intention to establish a situation which would be
definitive, but, furthertiiore, the very nature of a frontier and of any
convention desigtied to establish frontiers bétween two countries
throughout its length.

It often happens that, at the time of signature of a treaty estab-
lishing new frontiers, certain portions of these frontiers are not
yet determiried and that the treaty provides certain measures for
their determination. In this way, Article 2 of the Treaty of Lau-
sanne, which is intended to lay down the frontier of Turkey from
the Black Sea to the Aegean, and which, as regards the greater
part of the frontier line, gives topographical indications, leaves the
determination of a portion of the Greco-Furkish frontiér to the
decision of the Boundary Commission set up under Article 5.
It is, however, natural that any article designed to fix a frontier
should, if possible, be so interpreted that the result of the applica-
tion of its provisions in their etitirety should be the establishment
of a precise, complete and definitive frontier.

These coriclusiotis, which may be deduced front an examination.
of the first sub-paragraph of paragraph 2 of Article 3 alone, are
confirmed by an analysis of sub-paragraphs2 and 3. Sub-paragraph 2
provides that in the event of no agreement being reached
between the two States concerñéd withiti the time mentioned, the
dispute shall be referred to the Council. Although these ternis,
taken by themselves, do not expressly indicate the nature of the
action to be undertaken by the Cousicil, thére does not seen to be
any doubt that for the settlernent of a dispute, only two altern-
atives present themselves : agreement betweeti the Parties, arrived
at either directly or through a third Party, or élse décision by the
intervention of a third Party. Now, the successive application
of these two methods is precisely what is provided for under
Article 3 and, for the reasons already set out atid. drawn from the
very nature of frontiers, it must bé conclwdéd that the Parties, when
signing that article, contemplated intervention by a third Party
the Council—as a result of which a definitive solution would be
reached. |
ADVISORY OPINION No. 12 © ar

Even if there were any possible doubt in regard to the meaning
of the first two sub-paragraphs of paragraph 2 of the article, this
would be dissipated by the terms of the third sub-paragraph. By
this clause, the British and Turkish Governments undertake that;
pending the 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. This, therefore, is a temporary
settlement, pending a definitive settlement. The latter will be
effected by the “decision to be reached”’, or, according to the Proto-
col of July 24th, 1923, relating to the evacuation of the Turkish
territory occupied by the British, French ‘and Italian forces,
by the “determination of the frontier”. Again this decision may be
either an agreement between the Parties or, failing such agreement,
the solution given by the Council. Now a decision on which the
final fate of the territories in question depends can only be a
decision laying down in a definitive manner the frontier between
Turkey and Iraq binding upon the two States. This interpretation
of the third sub-paragraph, which is indicated by the terms therein
employed, is entirely in accordance with the conclusions drawn
from the preceding sub-paragraphs and from Article 3 as a whole.

In the last place, it must be ascertained whether any other.
articles of the Treaty of Lausanne are calculated to throw any
light upon the scope of Article 3. In this connection, special
regard must be had to Article 16 which has been cited both by
Turkey and by Great Britain in support of their respective conten-
tions. In the eyes of the Court, this article, under which Turkey
“renounces all rights and title whatsoever over or respecting the
territories situated outside the frontiers laid down (prévues) in the
present Treaty”, seems rather to furnish an argument in favour of
the definitive character of the decision to be reached. The frontier
of Iraq, though still remaining to be determined in accordance
with Article 3, is, notwithstanding, a frontier laid down (prévue)
by the Treaty, since there is no doubt that the expression “laid
down”. (prévue) can include both frontiers already defined and
. frontiers which have yet to be determined by the application of
methods prescribed in the Treaty. The fact that, in a treaty,
certain territories are indicated as ceded, or that rights and title
to these territories are renounced even though the frontiers of
them are not yet determined, has nothing exceptional about it.
ADVISORY OPINION No. 12 ; 22

For instance, all treaties of cession, in which provision is made for
plebiscites, offer examples of the same kind. The same also
applies to treaties which entrust the determination of certain
frontiers to an international commission or to the decision ofa
third Party. In such cases the renunciation of rights and title
is suspended until the frontier has been determined, but it will
become effective, in the absence of some other solution, in virtue
of the binding decision.

The other articles in the Treaty of Lausanne which bestow powers
‘ on the Council of the League of Nations, though they have been
cited by the two Governments concerned, can hardly have any
bearing on the interpretation of Article 3, from the point of view
now under consideration, for they relate to situations very different
from that under contemplation in that article.

Since the Court is of opinion that Article 3 is in itself sufficiently
clear to enable the nature of the “decision to be reached’”’ by the
Council under the terms of that article to be determined, the
question does not arise whether consideration of the work done in
preparation of the Treaty of Lausanne (les travaux préparatoires)
would also lead to the conclusions set out above. Nevertheless,
it may be well also to consider Article 3 and the construction which
the Court has placed upon it, in the light of the negotiations at
Lausanne, for the Turkish Government has cited certain facts
connected with those negotiations in support of its adverse opinion.

In the discussion which took place before the Council on Septem-
ber roth, 1925, Tewfik Rouchdy Bey drew attention to a passage in
the speech made by Lord Curzon at the meeting of January 23rd,
1923, in the course of which he had said :

“I do not know what it (the Council) will do; but my point
is that the Turkish Delegation will be there just like ourselves,
and when the two cases have been stated you will get the most
impartial examination which it is possible to secure. Further,
Article 5 of the Covenant provides that the decision of the Coun-
cil upon which the Turkish Government will be represented,
will have to be unanimous, so that no decision can be arrived
at without their consent.”

This passage, however, even if it is held that the preparatory
work (travaux préparatoires) can be taken into account, in the
ADVISORY OPINION No. I2 . 23

Court’s opinion cannot be used to interpret Article 3. It should
in the first place be observed that this passage forms part of a
speech formulating a proposal which was rejected by the Turkish
Delegation ; but if the passage had at that time been understood
in the sense in which Tewfik Rouchdy Bey now wishes to read it,
this rejection is difficult to understand. And moreover, at the
time when Lord Curzon made his first proposal to the effect that,
failing agreement, the disputed question should be settled by the
League of Nations, Article 3 did not yet exist, even in draft form.
Turkey at that time had not accepted any obligation in regard to
reference of the question to the League of Nations, nor had she
accepted any invitation under the terms of Article 17 of the Cov-
enant. By the adoption of Article 3 during the second phase of the
Lausanne Conference and five months after Lord Curzon’s speech,
the legal position was fundamentally modified, and it is not there-
fore possible to interpret this article by reference to statements
relating to the situation previously existing : more especially since,
neither in the drafts for Article 3, submitted on either side, nor in
correspondence or records of proceedings belonging to that period
which have been brought to the knowledge of the Court, was
mention made—notwithstanding its importance—of the question
of the consent of the Parties to the solution to be recommended
by the Council. But assuming that a study of the preparatory
work (travaux préparatoires) led to the conclusion that Article 3
should be interpreted as though it had been adopted subject to
the condition that the Council could not arrive at any solution
without the consent of the Parties, the action of the Council would,
in effect, be reduced to simple mediation. Now this conclusion,
which would eliminate the possibility of a definite decision capable,
if necessary, of replacing agreement between the Parties, would be
incompatible with the terms of Article 3, the interpretation of
which—as indicated, both from a grammatical and logical point
of view as well as from that of the rôle assigned to that article in
the Peace Treaty—has been set out above.

Nor is it possible to argue against the interpretation adopted
by the Court on the ground that the first draft for Article 3, para-
graph 2, prepared by the Allies, expressly stated that the frontier
line should be ‘‘fixed in accordance with the decision to be given
thereon by the Council of the League of Nations”, whereas the
Turkish counter-proposal employed in its second paragraph a
ADVISORY OPINION No. 12 24

less precise wording : “the dispute shall be referred to the Council
of the League of Nations”, a wording that corresponds to the
second sub-paragraph of paragraph 2 of the article as finally adopted,
the terms of which had necessarily to be altered in consequence
of the insertion of the clause providing for an amicable settlement.
It should be pointed out that the Turkish counter-proposal in no
way excluded a definitive decision by the Council, and that in his
letter of March 8th, 1923, Ismet Pasha described the Turkish counter-
proposals regarding territorial questions as in conformity with the
proposal of the Allied Powers. It should also be observed that
sub-paragraph 3 of the final draft of Article 3, paragraph 2, in which
reference is made to a ‘‘decision to be reached”’, a ‘‘decision” on which
will “depend” the ‘‘final fate’ of certain territories, appears in
neither of the two drafts referred to. This clause, the scope of
which has already been considered when analyzing Article 3,
hardly admits of an interpretation which would deprive the
“decision to be reached” by the Council of its definitive character.
For the same reasons, it renders it impossible to deduce from the
divergence between the two drafts any arguments against the
binding force of this decision:

The facts subsequent to the conclusion of the Treaty of Lausanne
can only concern the Court in so far as they are calculated to throw
light on the intention of the Parties at the time of the conclusion
of that Treaty. The question put to the Council seems to refer
solely to the interpretation of Article 3 of the Treaty ; obligations
which may have been assumed after the conclusion of the Treaty,
or facts which may have had some influence in regard to the exist-
ence or nature of engagements entered into under the Treaty,
would therefore seem to be outside the scope of the question sub-
mitted by the Council. Moreover, the Council, by keeping the
questions put to the Court exclusively within the domain of Article 3,
appears itself to adopt the standpoint that Article 3 is still at the
present time applicable in its entirety.

In the Court’s opinion, this view is well-founded ; it considers
that the attitude adopted by the British and Turkish Governments
after the signature of the Treaty of Lausanne is only valuable
in the present respect as an indication of their views regarding the
clauses in question. In this connection the exchange of views
which took place betweén the Parties at the meetings held by the
Council between September 2oth and 30th, 1924 (inclusive), is of
ADVISORY. OPINION No. I2 25

especial importance. But the statements made by the Rappor-
teur, M. Branting, which were confirmed by the unanimous
vote of all members of the Council, including the British and
Turkish representatives, show that there was no disagreement
between the Parties as regards their obligation to accept as defin-
itive and binding the decision or recommendation to be made by
the Council, with a view to ‘fixing the frontiers.

For, it cannot be assumed that the representatives of the Parties
would have declared that they accepted the solutions to be given
by the Council as definitive, if, in their view, this constituted a
new undertaking going beyond the scope of the obligations entered
into under Article 3 of the Treaty. The fact that they have accepted
beforehand the Council’s decision upon the question now before
it may therefore be regarded as confirming the interpretation
which, in the Court’s opinion, flows from the actual wording of.
the article. ,

In its telegram to the Court of October 8th, the Turkish Govern-
ment adduced as an argument in favour of the correctness of its
contentions, the fact that the Council itself had felt constrained
to ask the Court for an advisory opinion as to the nature of the
powers derived by it from Article 3 of the Treaty of Lausanne.
This argument appears to rest on the following principle : if the
wording of a treaty provision is not clear, in choosing between
several admissible interpretations, the one which involves the
minimum of obligations for the Parties should be adopted. This
principle may be admitted to be sound.} In the present case,
however, the argument is valueless, because, in the Court’s opinion,
the wording of Article 3 is clear. Moreover, the attitude of the
Council in the matter is sufficiently explained by a natural desire
not to set aside the views of one of the Parties as to the réle of the
Council, without previously obtaining the Court’s opinion upon this
legal question. :

The same telegram states that “the British representative
having for his part declared before the Council that the previous
undertakings given by his Government in regard to this point
no longer hoid good, the intention thus officially manifested resolves
the question, in regard to which moreover no doubt could subsist”.
The Court, however, cannot admit that the declaration made by
Mr. Amery at the Council meeting of September rgth, 1925—which
is no doubt the declaration referred to in the passage quoted—

\
ADVISORY OPINION No. I2 26

bore the meaning which the Turkish Government endeavours to
read into it. For this declaration does not affect the rights and
obligations following from Article 3 of the Treaty of Lausanne ;
it only refers to the undertakings which Lord Parmoor and
Mr. Amery himself had given during the previous deliberations of
the Council, and only contemplates the event that Turkey—after
the Court’s opinion had been given—would persist in her refusal to
recognize any obligation to accept in advance the Council’s decision :
it was only in this contingency that Mr. Amery reserved for Great
Britain the same liberty of action as was claimed by the Turkish

Government.

*
* *

The Court, by an examination of the scope of Article 3, para-
graph 2, of the Treaty of Lausanne, has thus arrived at the conclusion
that that clause is designed to provide for a definitive settlement
of the frontier. It will now proceed more closely to consider,
with reference to the explanatory phrase appended to the first
of the questions put, what the nature of this decision may be.

‘If the word “arbitration” is taken in a wide sense, characterized
simply by the binding force of the pronouncement made by a
third Party to whom the interested Parties have had recourse, it
may well be said that the decision in question.is an “arbitral
award”.

This term, on the other hand, would hardly be the right one, if
the intention were to convey a common and more limited concep-
tion of arbitration, namely, that which has for its object the settle-"
ment of differences between States by judges of their own choice —
and on the basis of respect for law (Hague Convention for the
pacific settlement of international disputes, dated October 18th,
1907, Article 37). It appears, in fact, that according to the argu-
ments put forward on both sides before the Council, the settlement
of the dispute in question depends, at all events for the most part,
on considerations not of a legal character; moreover, it is impossible,
properly speaking, to regard the Council, acting in its capacity of
an organ of the League of Nations, as will be hereinafter described,
as a tribunal of arbitrators.

For this reason, the Court feels that it should not attach any
importance either to certain consequences which legal doctrine
endeavours to deduce from the idea of arbitration, or to certain
4

ADVISORY OPINION No. I2 27
rules of procedure adopted by courts or arbitration themselves,
though both have been cited by the British Government. It will
rather seek the answer to the question before it in considerations.
which seem peculiarly appropriate to the present case.

The Covenant of the League of Nations, while it in no way
restricts the liberty of the Parties to entrust any dispute whatever
that may arise between them to arbitration, refers in Artielé 13
to the more limited conception of arbitration ; and gfe Council,
whose first duty is to dissipate or settle political disputes, is never
considered in the Covenant as exercising the functions of arbi-
trator within the meaning of that article.

Nevertheless, the Court holds that this fact does not prevent
the Council from being called upon, by the mutual consent of the
Parties, to give a definitive and binding decision in a particular
dispute. |

Though it is true that the powers of the Council, in regard to the
settlement of disputes, are dealt with in Article 15 of the Covenant,
and that, under that article, the Council can only make recommend-
ations, which, even when made unanimously, do not of necessity
settle the dispute, that article only sets out the minimum obliga-
tions which are imposed upon States and the minimum correspond-
ing powers of the Council. There is nothing to prevent the Parties
from accepting obligations and from conferring on the Council
powers wider than those resulting from the strict terms of
Article 15, and in particular from substituting, by an agreement
entered into in advance, for the Council’s power to make a mere
recommendation, the power to give a decision which, by virtue
of their previous consent, compulsorily settles the dispute.

Nor are precedents lacking of cases in which the Parties have
undertaken beforehand to accept a recommendation by the Coun-.
cil, and this, in effect, is tantamount to entrusting it with the power.
of decision.

Thus, in the Upper Silesian question, which, moreover, was
alluded to by the British representative at the Council meeting of .
September rgth, 1925, the Powers represented on the Supreme
Council invited “‘the recommendation”’ of the Council of the League
of Nations “‘as to the line”’ to be laid down (decision of August 12th,
1021, Official Journal of the League of Nations, 2nd year, No. 9,
page 982) and “solemnly” undertook ‘to accept the. solution
ADVISORY OPINION No. I2 28

recommended by the Council of the League of Nations” (Note
from M. Briand dated August 24th, 1921, op. cit., Nos. 10-12,
p. 1221); the latter in its turn adopted (on October rath, ibid.)
“a recommendation’ which it transmitted to the President of
the Supreme Council. |

Similarly, in the Protocol of Venice of October 13th, 1927,
concerning the delimitation of the frontier between Hungary and
_ Austria, the latter Power undertook to accept “the decision
recommended by the Council of the League of Nations” (Treaty
Series of the League of Nations, Vol. IX, p. 204).

Since the object of Article 3, paragraph 2, of the Treaty of Lau-
sanne is, as has been shown above, to bring about a definitive and
binding settlement of the frontier, it follows that the decision which
the Council has to take under that article cannot be regarded as a
mere recommendation within the meaning of Article 15 of the
Covenant. Such recommendation, in fact, would not settle the dis-
pute ; moreover, it might result in placing in a position of inferior-
ity a State which was not in possession of.the territory which
would be allotted to it by the frontier recommended ; for, in the
event of the Council’s recommendation being in its favour, this
State would not have an actual right to insist upon the cession of
the territory in question.

But the fact that the ‘‘decision to be reached” by the Council
under Article 3 of the Treaty of Lausanne cannot be described as
a recommendation within the meaning of Article 15 of the Covenant,
does not imply that the applicability of the latter article in the
present case is excluded. For the various and more extensive powers
conferred by the Parties in this case on the Council merely complete
the functions which it normally possesses under Article 15. In
agreeing to refer the dispute to the Council of the League of Nations,
the Parties certainly did not lose sight of the fact that the powers
of mediation and conciliation of the Council form an essential part
of the functions of that body. If such procedure fails, the Council
will make use of its power of decision. And, in actual fact, it would
appear that the Council’s efforts to settle the dispute in question
have hitherto been made on these lines. |

I.

The second question put to the Court is whether the decision:
of the Council of the League of Nations, to which the matter was

4
ADVISORY OPINION No. 12 29

referred, under Article 3, paragraph 2, of the Treaty of Lausanne,
must be unanimous or may be taken by a majority, and whether
the representatives of the interested Parties may take part in the

vote.
*

* *

In order to reply to this question it should be observed in the
first place that Article 3, paragraph 2, of the Treaty of Lausanne
refers to the Council of the League of Nations, that is to say, to the
Council with the organization and functions conferred upon it by
the Covenant. The dispute has not been referred to one or more
persons as such, but to the Council.

Now the Council, in accordance with Article 4 of the Covenant
and the Resolution adopted by the Council on September 21st, 1922,
which was approved by the Assembly on the 25th of the same month,
consists of representatives appointed by four Great Powers, who
are entitled to permanent seats upon it, and by six other Members
selected by the Assembly. It may also include representatives of
States invited to sit at the Council table by reason of the interest
which they may have in some question upon its agenda ; it is under
this provision that in the present case the Council itself has invited
a representative of Turkey to sit with it. |

It is, therefore, composed of representatives of Members, that is
to say, of persons delegated by their respective Governments, from’
whom they receive instructions and whose responsibility they engage

In a body constituted in this way, whose mission is to deal with
any matter ‘‘within the sphere of action of the League or affecting
the peace of the world”, observance of the rule of unanimity is
naturally and even necessarily indicated. . Only if the decisions of
the Council have the support of the unanimous consent of the Powers
composing it, will they possess the degree of authority which they
must have: the very prestige of the League might be imperilled
if it were admitted, in the absence of an express provision to that
effect, that decisions on important questions could be taken by a
majority. Moreover, it is hardly conceivable that resolutions on
questions affecting the peace of the world could be adopted against
the will of those amongst the Members of the Council who, although
in a minority, would, by reason of their political position, have
to bear the larger share of the responsibilities and consequences
ensuing therefrom.
ADVISORY OPINION No. I2 30

Again, the rule of unanimity, which is also in accordance with

the unvarying tradition of all diplomatic meetings or conferences,

is explicitly laid down by Article 5, paragraph 1, of the Covenant in
the following terms : |

“Except where otherwise expressly provided in this Covenant
or by the terms of the present Treaty, decisions at any meeting
of the Assembly or of the Council shall require the agreement
of all the Members of the League represented at the meeting.”

No exceptions to this principle are made other than those pro-
vided for in the Covenant itself and in the Peace Treaties of which
it constitutes the first part. The Treaty of Lausanne is not one
of these Treaties. As regards the exceptions contained in the
Covenant, it is clear that the present case does not fall within
the scope of the second paragraph of Article 5 (questions of
procedure). In the absence therefore of an express provision
to the contrary in Article 3, paragraph 2, of the Treaty of
Lausanne, the rule of unanimity applies in regard to the question
before the Council.

The representative of the British Government has contended
that the clause in Article 5 of the Covenant only contemplates the
exercise of the powers granted in the Covenant itself. The Court
cannot accept this view. Article 5 states a general principle which
only admits of exceptions which are expressly provided for, and this
principle, as has already been stated, may be regarded as the rule
natural to a body such as the Council of the League of Nations.
The fact that the present case concerns the exercise of a power
outside the normal province of the Council, clearly cannot be used
as an argument for the diminution of the safeguards with which,
in the Covenant, it was felt necessary to surround the Council’s
decisions.

On the other hand, no one denies that the Council can undertake
to give decisions by a majority in specific cases, if express provision
is made for this power by treaty stipulations. That this is the case
is confirmed by, amongst other things, Articles 44 and 107 of the
Treaty of Lausanne, which have been cited on one side and the other
in support of their respective contentions. The Court therefore
regards these articles as tending rather to confirm the view which
it has taken.

In support of the contention that the decision may be taken by a
ADVISORY OPINION No. 12 31

majority, the principle generally accepted in the case of arbitral
tribunals, in accordance with which such tribunals, as a rule,
decide by a majority, has also been invoked ; and it has been argued
that the main reason for the application of this principle is that it
would often prove impossible to obtain any decision if unanimity
were required. The Court has already explained why it cannot
admit arguments and principles drawn from the theory and pract-
ice of arbitration in the limited sense of the term. In particular,
it should be observed that though certain arguments used by the
representative of the British Government might be regarded as
well-founded in the case of arbitrators appointed ad hoe and not
forming a permanent body, they do not, on the other hand, apply
in a case where the Parties have had recourse to a body already
constituted and having its own rules of organization and procedure.
Unless a contrary intention has been expressed, the interested
Parties are in such cases held to have accepted such rules.

*
* *

Unanimity, therefore, is required for the decision to be taken
by the Council of the League of Nations, in virtue of Article 3,
paragraph 2, of the Treaty of Lausanne, with a view to the determin-
ation of the frontier between Turkey and Iraq. The question
has now to be considered whether the representatives of the inter-
ested Parties may take part in the vote.

In this connection, it should be observed that the very general
rule laid down in Article 5 of the Covenant does not specially
contemplate the case of an actual dispute which has been laid
before the Council. On the other hand, this contingency is dealt
with in Article 15, paragraphs 6 and 7, which, whilst making the
limited binding effect of recommendations dependent on unanimity,
explicitly state that the Council’s unanimous report need only be
agreed to by the Members thereof other than the representatives
of the Parties. The same principle is applied in the cases con-
templated in paragraph 4 of Article 16 of the Covenant and in the
first of the three paragraphs which, in accordance with a Resolution
of the Second Assembly, are to be inserted between the first and
second paragraphs of that article.

It follows from the foregoing that, according to the Covenant
itself, in certain cases and more particularly in the case of the
settlement of a dispute, the rule of unanimity is applicable, subject
ADVISORY OPINION No. I2 ot 32

to the limitation that the votes cast by representatives of the inter-
ested Parties do not affect the required unanimity.

The Court is of opinion that it is this conception of the rule of
unanimity which must be applied in the dispute before the Council.

It is hardly open to doubt that in no circumstances is it possible
to be satisfied with less than this conception of. unanimity, for,
if such unanimity is necessary in order to endow a recommendation
with the limited effects contemplated in paragraph 6 of Article 15
of the Covenant, it must a fortiori be so when a binding decision
has to be taken. .

The question which arises, therefore, is solely whether such
unanimity is sufficient or whether the representatives of the
Parties must also accept the decision. The principle laid down
by the Covenant in paragraphs 6 and 7 of Article 15, seems to
meet the requirements of a case such as that now before the
Council, just as well as the circumstances contemplated in that
article. The well-known rule that no one can be judge in his
own suit holds good. |

From a practical standpoint, to require that the representatives
of the Parties should accept the Council’s decision would be tant-
amount to giving them a right of veto enabling them to prevent
. any decision being reached ; this would hardly be in conformity
with the intention manifested in Article 3, paragraph 2, of the
Treaty of Lausanne. |

Lastly, it may perhaps be well to observe that since the Council
consists of representatives of States or Members, the legal position
of the representatives of the Parties upon the Council is not com- _
parable to that of national arbitrators upon courts of arbitration.

The votes of the representatives of the Parties are not, therefore,
to be taken into account in ascertaining whether there is unanim-
ity. But the representatives will take part in the vote, for they
form part of the Council and, like the other representatives, they
are entitled and are in duty bound to take part in the deliberations
of that body. The terms of paragraphs 6 and 7 of Article 15 of the
Covenant and of the new clause to be inserted in Article 16, clearly
show that in the cases therein contemplated, the representatives
of the Parties may take part in the voting, and that it is only for
the purpose of determining whether unanimous agreement has
been reached that their votes are not counted. There is nothing
to justify a further derogation from the essential principles of
unanimity and of the equal rights of Members.
ADVISORY OPINION No. 12 | 33

FOR THESE REASONS, |
The Court is of opinion,

(x) that the “decision to be taken” by the Council of the League
of Nations in virtue of Article 3, paragraph 2, of the Treaty of
Lausanne, will be binding on the Parties and will constitute a
definitive determination of the frontier between Turkey and Iraq ;

(2) that the “decision to be taken” must be taken by a unanimous
vote, the representatives of the Parties taking part in the voting, but
their votes not being counted in ascertaining whether. there is

unanimity.
D

DoxE in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-first day of Novem-
ber, one thousand nine hundred and twenty-five, in two copies, one
of which is to be placed in the archives of the Court and the other
to be forwarded to the Council of the League of Nations.

(Signed) Max HUBER,
President.

(Signed) A, HAMMARSKJOLD,
Registrar.