500.C001/1109
The Consul at Geneva ( Gilbert ) to the Secretary of State
[Received May 10.]
Sir: I have the honor to enclose copies of two documents33 drawn up by the Legal Section of the Secretariat to serve as a guide to the Secretary-General in matters having a relation to the definitive withdrawal of Japan from the League of Nations which became effective on March 27. These documents being intended solely for the internal use [Page 145] of the Secretariat were handed to me in confidence. The first, which is undated, deals with the position of Japan in relation to the Pacific islands under her mandate, and the second, dated March 8, contains a discussion of the representation of non-member states and their nationals on League committees.
1. The document relating to the Japanese mandate can in no sense be considered a legal expose. It is merely an enumeration couched in the briefest possible terms of the chief facts underlying the legal status of the mandate. All discussion of controversial points of law, except by implication, is omitted. The question of whether League membership is a necessary qualification for the position of mandatory is disposed of by stating that the organs of the League have not examined this question. The only statement in the document which draws a legal conclusion is contained in the final sentence, that “the rights and obligations involved in the position of mandatory are defined in the charter of the mandate, which cannot be modified unilaterally”. This conclusion is not defended. It is merely stated. As pointed out in the Consulate’s despatch No. 668 Political of September 8, 1933,34 the principle asserted in this sentence constitutes the chief argument of those who consider that the withdrawal of Japan from the League does not in itself affect in any way the right of Japan to continue to exercise the mandate.
In this connection, I may add that the question of the relationship of Japan’s withdrawal from the League to her position as mandatory has not been raised in the Council nor in the Mandates Commission and, according to present indications, there appears to be no likelihood that it will be raised as long as Japan continues to cooperate with the Mandates Commission and in the absence of conclusive evidence that Japan is not fulfilling the terms of the mandate charter. There is another important question relative to the mandate which likewise has not been raised, namely, the manner of conducting the relationships of Japan with the League Council should any controversial issue in regard to the mandate be brought before the Council, which would require that explanations be given to the latter by the mandatory power.
As explained in the Consulate’s despatch No. 1084 Political of November 15, 1934,34 some members of the Mandates Section of the Secretariat, although fully aware that the League would be powerless to deprive Japan of the mandate regardless of the possible validity of legal considerations adverse to her retention of it, felt that the Council should take official cognizance of a change in the legal situation [Page 146] of the mandate consequent on Japan’s withdrawal and, though confirming the retention of the mandate, should take some action to safeguard the mandate principle. It was contemplated that this might be done through a sort of novation which would confirm Japan’s rights and obligations as mandatory and at the same time re-assert the authority of the Council. This course was for some time given serious consideration in the Secretariat, but was eventually abandoned, presumably because it did not meet the approval of the great powers. In more recent conversations with a member of the Mandates Section who formerly advocated that procedure, he expressed the opinion that after all it was perhaps better that this was not done. Such a procedure would have constituted a direct confirmation of the legal theory that a state on withdrawing from the League has the right to retain a mandate and might also by implication cause the Council to commit itself in regard to other legal questions relating to mandates which are now in abeyance. A precedent would thus have been created which might hamper the action of the League in some future case when in different circumstances the League might desire and might be in a position to enforce the relinquishment of a mandate by a withdrawing state. In allowing the matter of the Japanese mandate to continue as if nothing had happened, it is true that there is the implication that Japan has the right to retain the mandate, but not necessarily an unqualified right. The ultimate authority of the Council to deprive a state of a mandate as well as other important controversial legal issues are thus left entirely open for the future.
2. The second memorandum discusses in particular the question of the participation in League committees of nationals of states which have withdrawn from the League. For the objects of this discussion committees are divided into two classes: (1) those composed of representatives of states; and (2) those composed of members personally appointed.
The second category seems to require no comment. In regard to the first category, it will be noted that the conclusion is drawn that for a state which has withdrawn from the League to continue to be represented on such committees, a renewal of the appointment of the state to the committee must be made by the competent League organ. In respect of Japan, the first application of this principle arose on April 25 at the first meeting of the current session of the Advisory Commission for the Protection and Welfare of Children and Young People. During the course of the meeting the chairman expressed the regret that the withdrawal of Japan from the League would deprive the Commission of the valuable collaboration of the Japanese member. On the proposal of one of the representatives the Commission gave [Page 147] unanimous expression to the desire that the League Council invite the Japanese Government to continue its collaboration in the future. The Commission then decided to invite Mr. Yokoyama, the Japanese Consul General at Geneva, to be present at the current session in an advisory capacity.
Presumably a similar procedure will be followed by the Opium Advisory Committee at its meeting in May,36 since this committee falls within the same category as the one discussed above. Incidentally, this memorandum makes no mention of the reservation to which the Japanese Government has stated it would make subject its ratification of the 1931 Narcotics Limitation Convention,37 a matter which I have discussed in several communications to the Department, notably in Despatch No. 947 Political of June 21, 1934.38 It would appear that legally the Japanese reservation will not affect the principles laid down in this document, but probably in practice the application of those principles will be affected thereby.
Respectfully yours,
- Neither printed.↩
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- See vol. i, pp. 447 ff.↩
- For text of convention, see Foreign Relations, 1931, vol. i, p. 675.↩
- Not printed.↩