The Commission to Negotiate Peace to the Secretary of State
[Received August 28—7:30 p.m.]
3921. For the President and the Secretary of State:
It appears that the American Commission, particularly as represented by Dulles on the Committee on the Execution of the Treaty [Page 5] with Germany, is proceeding on an assumption different from that [adopted by] the provisional secretariat of the League of Nations in London, relative to the probable date of the constitution of the Council [of the] League of Nations.
The Committee on the Execution of the Treaty has felt that doubt existed whether the Council of the League of Nations would be legally constituted to exercise the powers conferred by the treaty prior to having the membership specifically stipulated for by article 4. This doubt arises from the belief that in the [case of] the League Council and other [treaty] bodies, the express provisions of the treaty as to membership are of the essence and that the parties to the treaty only [consented to] vest broad powers upon such bodies in reliance upon their having the membership stipulated for. In any case it was thought that there would be practical difficulties and objections to having the Council meet and act with only three members. [Accordingly] the Committee on the Execution of the Treaty has assumed that there would probably be an appreciable interval of time between the coming into force of the treaty and [the] Council of the League of Nations acting in such matters as the Saar and Dantzig. The Committee on the Execution of the Treaty has accordingly called the attention of the Supreme Council to the possibility of such an interval arising either through legal or practical difficulties in the way of immediate action by the Council and has considered provisional methods for tiding over this interval.
[On the other hand,] we are informally advised that the provisional secretariat of the League in London believe the following theory of procedure to be the sound one; that as soon as the treaty with Germany comes into force the President of the United States will at once convoke the Council as provided for by article 5 of the Covenant in order that the Council may perform those duties which the treaty [requires] it to perform within 15 days after it comes into force. As soon as the intimation that this has been done reaches the Secretary General of the League he will immediately send out invitations to the nine powers who are represented on the Council informing them of the place and date of the meeting. It will then be for each of the nine governments to decide whether they will send representatives to attend the meeting of the Council and if so whether these representatives will be present in an effective or purely advisory capacity. Their lawyers hold the view that, these steps having been taken, the Council when it meets will be effectively and legally constituted even though the nine powers do not all send representatives, and upon this theory the Council at its first or second meeting can at once proceed to select the three members of the Saar Basin [Delimitation] Commission. They argue that failure to accept this view would lead to the conclusion that the Council could [Page 6] not be legally constituted until all the powers specifically designated for representation on the Council have deposited their ratifications. Thus the failure of Belgium, for example, to ratify might prevent the Council from ever coming into existence or at least until Belgium’s place had been filled by vote of the Assembly. They further feel that unless the Council functions as laid down in the treaty in the performance of the duties assigned to it the charge so frequently made by neutral states that it is purely an instrument of the Allied Powers will gain added strength.
The Mission on the other hand feels that though the legal position of the Secretariat of the League may perhaps be sound, yet practical and political circumstances might make it impossible for the President even to call the first meeting of the Council in advance of ratification by the United States without seriously jeopardizing the treaty and the League with the Senate. The Mission does not feel qualified to balance and decide as between these conflicting considerations. Therefore it seems desirable that the Mission have an authoritative expression of the views of the Government of the United States on this subject in order that there may not be such a divergence of views between the Peace Conference and the League of Nations group as may lead to confusion. In this connection the Mission notes the statement of the President reported in Department’s 2466 August 21, 9 p.m.:4 “It is questionable whether it can be said that the League of Nations is in any true sense created by the association of only three of the Allied and Associated Governments.” It is not, however, clear whether this constitutes more than an expression that from a broad moral aspect the Council [would fail] to serve the aims contemplated unless the membership be complete as contemplated by the treaty. Polk.
- Not printed.↩