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Protection of Minorities by the League of Nations

Published online by Cambridge University Press:  04 May 2017

Helmer Rosting
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Extract

Several of the treaties concluded after the World War contain clauses dealing with the protection of minorities. This protection is placed under the guarantee of the League of Nations. By minorities are meant groups of persons who differ in race, religion or language from the majority of the inhabitants of the country. But such persons may be further subdivided into two quite distinct classes: (a) nationals of a foreign Power; (b) nationals of the country concerned. The protection of minorities may also be regarded from two points of view: (1) it may be granted by the laws of the country and therefore be guaranteed by the state; (2) it may be dependent on treaties and be guaranteed by foreign Powers.

Type
Research Article
Information
American Journal of International Law , Volume 17 , Issue 4 , October 1923 , pp. 641 - 660
Copyright
Copyright © American Society of International Law 1923

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References

1 The abrogation of the capitulations was one of the principal items on the Turkish programme at the opening of the Lausanne Conference in November, 1922. The Powers accepted this in principle, and all countries having capitulations with Turkey were represented at the conference. The discussion on the question is being continued at the conference, which reopened in April, 1923. [Art. 28 of the Treaty of Peace signed at Lausanne on July 24, 1923, reads as follows: “Each of the high contracting parties hereby accepts, in so far as it is concerned, the complete abolition of the Capitulations in Turkey in every respect.”—Editor.]

2 See Dumont’s, Recueil de traites, Vol. V, Part 1, p. 214 Google Scholar.

3 Supplement to this Journal for April, 1917, Vol. 11, p. 53.

4 Several Hungarian historians (Szilagyi, A Magyar nemzet törtenete) state that in 1869 England and Holland, guarantors of the Treaty of Westphalia in virtue of Art. 3 of the Treaty of Aix-la-Chapelle (1748), forwarded protests through diplomatic channels to Vienna against Count Thun’s Protestanten patent (a law depriving the Protestants of Hungary and Transylvania of certain privileges). This statement is not, however, historically correct. Neither in the Haus-Hof und Staatsarchiv in Vienna nor at the Foreign Office in London is there any record of notes of this kind.

5 See Art. 17, par. 4, 5 and 6. Urkun den der Friedenschlüsse von Osnabrück und Munster (Zürich, 1848).

6 Treaties of Oliva, Nimêgue, Ryswick, Nystad, Breslau, Versailles, Frederickshamm. See Duparc’s, Jacques Fouques La Protection des Minorités de Race, de Langue et de Religion, Paris, 1922 Google Scholar.

7 See Martens, , Recueil de Traités, 1, I Google Scholar.

8 Treaty of April 30, 1803, with France for the cession of Louisiana; treaty of Feb. 22, 1819, with Spain for the cession of Florida; treaty of Feb. 2, 1848, with Mexico for the cession of New Mexico, California, etc; convention of March 30, 1867, with Russia for the cession of Alaska; treaty of Dec. 10, 1898, with Spain for the cession of the Philippines, Porto Rico, etc. ( Malloy, , Treaties, Conventions, etc., between the United States and other Powers, 1776-1909, 2 vols., Govt. Printing Office, Washington, 1910 Google Scholar).

9 British and Foreign Slate Papers, Vol. 2, 141.

10 State Papers, Vol. 2, p. 11. See Art. 1 of the Final Act of June 9, 1815.

11 (Annex 12 of the Final Act), State Papers, Vol. 2, p. 149.

12 Protocol No. 3, State Papers, Vol. 17, p. 202.

13 Art. 9 of the Treaty of Paris, Stote Papers, Vol. 46, p. 133.

14 State Papers, 48, 77. See also Wolf, Lucien, Diplomatic History of the Jewish Question, London, 1919, p. 23 Google Scholar.

15 State Papers, 69, 959.

16 The convention concluded on April 21, 1879, between Austria-Hungary and Turkey in pursuance of Art. XXV of the Treaty of Berlin relating to the occupation of Bosnia and Herzegovina by Austria-Hungary, guaranteed that the honor, customs, religious freedom and the security of person and property of the Mussulman population should not be interfered with. The Sultan’s name was to continue as before to figure in the public prayers of the Mussulmans, and in so far as it was customary to fly the Ottoman flag from the minarets, the custom was to be respected. (See Holland’s, The European Concert in the Eastern Question, Oxford, 1885, p. 356 Google Scholar.)

17 State Papers, Vol. 72, p. 382.

18 See State Papers, Vol. 107, p. 670.

19 Articles 8, 9, 18 and Annex II concerning the Muftis.

20 Articles 11, 12 and Protocol No. 3.

21 Articles 7, 8, 9.

22 See Revue Générale de Droit International Public, Tome XXI, 1914.

23 Several of these states raised objections, and at the plenary meeting of the conference, on May 31, 1919, their representatives stated that they were prepared to accept obligations relating to the protection of minorities if all the states members of the League undertook similar obligations; otherwise, such obligations might be regarded as a derogation of their sovereign rights as states, and they could not tolerate the intervention of other states in their own internal affairs. M. Clemenceau replied to these objections. The arguments which he advanced will be found in the letter addressed to M. Paderewski (see Supplement to this Journal, October, 1919, Vol. 13, p. 416; see also, Temperley, , History of the Peace Conference, Vol. 5, p. 128 Google Scholar).

In a memorandum submitted to the Peace Conference by the Polish Delegation, it was further pointed out that the Treaty of Versailles did not contain any provisions regarding the protection of minorities in Germany, analogous to those which Poland was required to accept for the protection of German minorities in Poland.

In this connection it may be mentioned that in the German counter-proposals to the peace conditions, Germany, in the chapter concerning the League of Nations, asked for the protection of minorities in general and in particular for the protection of German minorities in the ceded territories. Germany stated that, for her part, she was prepared to apply the same principles to the treatment of minorities within her own territory (“Deutschland ist seinerseits antschlossen fremdstämmige Minderheiten auf seinem Gebiet nach den gleichen Grundsätzen zu behandeln”) In the Allies’ reply, dated June 16, 1919, reference was made to the guarantees which were to be provided, under the minorities treaties, to German minorities in the ceded territories, and the Allied and Associated Powers took note of the declaration of the German Delegation that Germany was prepared to apply the same principles to the treatment of minorities within her own territory.

24 Printed in Supplement to this Journal, October, 1919, Vol. 13, p. 423.

25 Printed, ibid., October, 1920, Vol. 14, p. 311.

26 Printed, ibid., p. 333.

27 Printed, ibid., p. 324.

28 Printed, ibid., April, 1921, Vol. 15, p. 161.

29 Printed, ibid., January, 1920, Vol. 14, p. 1.

30 Printed, ibid., July, 1920, Vol. 14, p. 185.

31 Printed, ibid., January, 1921, Vol. 15, p. 1.

32 Printed, ibid., July, 1921, Vol. 15, p. 179. These articles will be replaced by Articles 37-45 of the new Treaty of Lausanne. It should be noted that while the Turks were willing to accept clauses concerning the protection of minorities similar to those embodied in the other minorities treaties, they were opposed to accepting any special provisions. All the special provisions contained in the Treaty of Sèvres have, therefore, been omitted.

33 The provisions concerning the acquisition of nationality differ in the various treaties. However, the two provisions mentioned above are to be found in all the treaties. There are several exceptions to the first provision; for instance, Article 91, paragraph 2 of the Treaty of Versailles, under which Germans settled in Polish territory after January 1, 1908, can only acquire Polish nationality by a special authorization of the Polish Government. In several treaties reference is made to a third class of persons who are capable of acquiring the nationality of the country, namely, persons who were born within the territory of the country, of parents there domiciled, although they were not themselves there domiciled at the date of the coming into force of the treaty.

34 Collection of treaties registered with the League of Nations, Vol. 3, 1921, No. 3.

35 Verbatim report of the 25th Plenary Meeting of the First Assembly.

36 Minutes of the 13th Session of the Council, p. 52.

37 Minutes of the 14th Plenary Session of the Council, pp. 115-116.

38 Records of the Second Assembly, Plenary Meetings, pp. 335, 337, 340.

39 Official Journal, 3rd Year, No. 2 (February, 1922), p. 123.

40 Official Journal, 3rd Year, No. 6, Part I, p. 479, Part II, pp. 525 and 536, No. 7, p. 733; 4th Year, No. 3, p. 232.

41 See Minutes of 21st Session of the Council, § 749.

42 See Minutes of 21st Session of the Council, § 791.

43 Official Journal, 2nd Year, No. 10-12 (December, 1921), p. 1230.

44 The Mixed Commission is composed of two Germans and two Poles, and a president of some other nationality (see Article 562 of the convention).

45 The fact that the Greek minorities treaty has not yet been ratified is due to a provision in the treaty itself, according to which this treaty was to enter into force simultaneously with the treaty of August 10, 1920, by which the status of Thrace is to be finally settled. This latter treaty has not yet been ratified by the Principle Allied Powers.

46 See Annex 115 to the Minutes of the 10th Session of the Council.

47 See Minutes of the 10th Session of the Council, p. 33. This resolution was the subject of a report to the Second Assembly which was considering a proposal by Professor Murray (South Africa) for the formation of a Permanent Commission to supervise the application of the minorities treaties. When the Council’s resolution of October 25th was brought to Professor Murray’s notice, he withdrew his proposal (see Minutes of the 31st Plenary Session of the 2nd Assembly, October 4, 1921).

48 See Annexes 222 to the Minutes of the 13th Session of the Council.

49 These four conditions are stated in the document conveying the adherence of the Serb-Croat-Slovene Government to the resolution of June 27,1921. (See Official Journal, January, 1922, p. 51.)

50 See Compte-Rendu of the Plenary Session of the Third Assembly of the League of Nations, 21st September, 1922.

51 In its report to the Assembly the 6th Committee mentioned that the representative of South Africa had pointed out that in certain localities of mixed population, where conflicts were frequent and serious, order had frequently been maintained and tranquility restored by the mere presence of consuls or other representatives of foreign governments, who could impartially report on events and bring to bear the influence of a wider public opinion. He had observed that cases might arise in which the presence of resident representatives of the League might have an even more beneficent effect in view of the disinterestedness and the moral prestige possessed by the League, and suggested that the Council might well consider the desirability in suitable cases of employing such representatives, with the consent of the government concerned, to allay public excitement and gradually restore tranquility in disturbed districts. The committee had felt the force of these observations and wished to place them on record, but considering the variety of possible contingencies which may have to be met, and the wide discretion in the hands of the Council for meeting them, thought best not to embody the proposals in a definite resolution.

The representatives of the Baltic States had proposed that a special commission should be appointed to study the minorities question in general, with a view to laying down the main lines for a general protection of minorities in all the states members of the League. This proposal was, however, withdrawn, owing to the consideration that the resolutions already adopted provided for a searching enquiry by the Council and the Secretariat into minorities questions, and also that the establishment of a special committee would involve considerable expense.

52 See Minutes of 18th Session of the Council, para. 679.

53 See Minutes of 21st Session of the Council, para. 794. Of special interest is the Jurists’ report with regard to the interpretation of Art. 4 of the Polish minorities treaty. They express themselves as foliowe:

“By the terms of Article 4 of the Polish minorities treaty (an article which, by the terms of Article 12 of the same treaty is placed under the guarantee of the League of Nations):

“Poland admits and declares to be Polish nationals ipso facto and without the requirement of any formality persons of German, Austrian, Hungarian or Russian nationality who were born in the said territory of parents habitually resident there, even if at the date of the coming into force of the present treaty, they are not themselves habitually resident there.”

“The question arises as to whether this article refers to the domicile of the parents when an individual is born, or when the treaty comes into force.

“On this point, the following observations may be made: The text attributes Polish nationality according to birth and the conditions of that birth, i.e., birth upon the territory, or birth of domiciled parents. The domicile of the parents at the time of the coming into force of the treaty should not constitute a condition of birth and qualify this birth retrospectively.

“If the treaty requires the domicile of the parents, it is in order to ensure that it shall not apply to an individual born by chance upon the territory, but to an individual born of parents who have some connection with the territory.

“Moreover the supposition in a sentence immediately following of a fact as existing at the date of the coming into force of the treaty shows clearly that in the preceding sentence of the text it is not that moment which is referred to.”

54 See Minutes to 23rd Session of Council, Official Journal, 4th Year, No. 3, §§ 862 and 876.

55 See Minutes of 21st Session of the Council, para. 793.

56 See Official Journal, 4th Year, No. 2, p. 161.

57 Printed in Supplement to this Journal for October, 1920, Vol. 14, p. 356.

58 See Annex 107 to the Minutes of the 9th Session of the Council.