Lot 60–D 224, Box 51: ISO 27c

Memorandum by Mr. Henry Reiff, Legal Specialist on International Organization

Transition From the League of Nations to the New International Organization

I. The Problem

Establishment of a new general international organization in place of the League of Nations will raise three important problems respecting the League of Nations: (1) how the League of Nations may be legally terminated in favor of the new organization; (2) how its properties and any of its functions, aside from those vested in the League by separate agreements, may be transferred to the new organization; [Page 916]and (3) how the functions vested in the League by separate agreements may also be transferred. It is desirable that these problems be clarified and, if possible, steps be taken to avoid uncertainty and confusion when the new organization is established.

The problem arises because the Covenant of the League of Nations still constitutes a binding obligation upon the states members of the League, and unless the League is terminated concurrently with the establishment of the new organization these states may be faced with conflicting legal obligations to two general international organizations. Moreover, there would exist some possibility that a few states might endeavor to maintain the League of Nations, in which event there would be two organizations endeavoring to operate in the same field. Furthermore, there might be confusion with regard to the legal status of several hundred treaties which vest certain powers and functions in the League.

II. Relation of the United States to Problem

The termination of the League of Nations is not a matter of primary concern to the United States in view of the fact that the United States is not a member. It is, however, a matter of concern to the extent that the United States has an interest in or is a party to treaties vesting functions in the League of Nations. It also becomes of concern insofar as the continued existence of the League may complicate the establishment of the new general international organization and to the extent that other governments might consult the United States to ascertain any views which it may hold with regard to the best procedure for the transition to the new organization.

It may also be to the interest of the United States that ways and means be found whereby the new international organization may avail itself of the property and assets of the League of Nations.

The present discussion is in response to the suggestions made in the conversations at Dumbarton Oaks that research papers examining possible solutions of the problem of transition and possible procedures to achieve such solutions be prepared and exchanged. To these ends, two sets of solutions are explored below, the first dealing with the substantive problem of dissolution of the League and transfer of its functions to the new international organization and the second dealing with the problem of discovering ways and means which could lead to the adoption of an appropriate mode of dissolution and transfer.

III. Status of League Membership

The status of membership of the League of Nations in relation to prospective membership of the new international organization is as follows:

1. Twenty-eight of the forty-five present members of the League are United Nations or associated with the United Nations.

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United Nations: The United Kingdom of Great Britain and Northern Ireland, Australia, Canada, India, Union of South Africa, New Zealand, China, Belgium, Bolivia, Colombia, Cuba, Czechoslovakia, the Dominican Republic, Ethiopia, Greece, Iran, Iraq, Liberia, Luxembourg, Mexico, the Netherlands, Norway, Panama, Poland, and Yugoslavia.

Associated Nations: Ecuador, Egypt and Uruguay.

2. Seventeen of the members of the League of Nations are neither United nor Associated Nations: Afghanistan, Albania, Argentina, Austria, Bulgaria, Denmark, Eire, Estonia, Finland, France, Latvia, Lithuania, Portugal, Sweden, Switzerland, Thailand, and Turkey.

3. Fifteen of the United Nations and of the Associated Nations are not members of the League:

United Nations: Brazil, Costa Rica, El Salvador, Guatemala, Haiti, Honduras, Nicaragua, the Philippines, Soviet Union, and the United States.

Associated Nations: Chile, Iceland, Paraguay, Peru, and Venezuela.

IV. Possible Solutions of the Problem of Transition

A. Protocols

(1) Protocol of Dissolution and Transfer

(2) Protocol of Transfer

(1) A protocol of dissolution and of transfer of properties and of functions of the League, aside from those functions vested in it by separate treaties, could be opened for signature by states members of the League, at the time of signing of the basic instrument of the new organization. Such a protocol could provide, as among the signatory states, for the following:

1. The Covenant of the League of Nations should be terminated as of the date the protocol becomes effective.

2. The continuing functions of the League, with the exception of those related to the Permanent Court of International Justice, should be transferred to the new organization, subject to the provisions of the charter of the new international organization.

3. All archives and records of the League should be transferred to the new organization.

4. All the rights, titles, and interests of the League in property of any kind should be transferred to the new international organization, subject to the fulfillment of existing obligations and commitments.

5. The protocol should be open for signature by all members of the League.

6. The protocol, after ratification by at least all those states members of the League who would become initial members of the new organization, should become effective as between the parties at the moment of entry into force of the basic instrument of the new organization. These parties should thereupon proceed with the liquidation of the League.

The suggestion of such a protocol assumes that in the absence of any provision in the Covenant providing for its own termination, common [Page 918]consent or a general consensus, and not unanimous consent, is adequate to the purpose.

It would be desirable, nevertheless, to secure unanimous consent if possible. Every effort to that end should be made. Among the states members of the League but which would not at the outset become members of the Organization are three enemy states, Bulgaria, Finland, and Thailand, and two states not now represented by recognized governments, Albania and Austria, which would be required to consent to the dissolution as part of the terms of the peace settlement. It can be assumed that now, since recognition of the provisional government, France is in a position and would be disposed to consent to dissolution. The status of Estonia, Latvia, and Lithuania is doubtful, and it seems likely that they will not be in a position to assert any interest which they may have in this problem.

This leaves only the following “neutral” states: Afghanistan, Argentina, Denmark, Eire, Portugal, Sweden, Switzerland, and Turkey. The possibility that one or more of these states might adopt an intransigent attitude cannot entirely be ignored. If this should occur the principal practical effect would be a possible delay of the transfer of property rights. The possible number of recalcitrant states is too small and their position acting separately too weak seriously to impede the proposed procedure. Presumably, virtually all of them when given an opportunity will join the new organization, and acquiesce in the liquidation of the League.

If it were planned to proceed by means of such a protocol, it would appear that appropriate provision might have to be made in the basic instrument of the new organization authorizing the acceptance of the properties, powers and functions so tendered, and arranging for proper transitory measures, subject to subsequent assignment by the Organization to its appropriate organs.

(2) Protocol of Transfer

Simultaneously with the opening for signature of the protocol of dissolution and transfer, there might be opened for signature by all states with the appropriate interest a protocol to the following effect:

1.
In all treaties or other engagements, excepting the Statute of the Permanent Court of International Justice, to which the signatories are parties or in which they have or claim an interest, vesting any rights, powers, authority, or functions in the League of Nations, the new Organization should be substituted for the League, subject to the provisions of the Charter of the new Organization.
2.
This protocol, after ratification by at least all those States members of the League who would become initial members of the new Organization, should become effective as between the parties at the moment of entry into force of the basic instrument of the new Organization.

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B. Amendment of the Covenant

Article 26 provides a procedure for amendment of the Covenant through favorable action by all members of the League represented on the Council, and a majority of those represented in the Assembly. This procedure could conceivably be used either to substitute the provisions of the Charter of the new Organization for the provisions of the Covenant or to terminate the League and transfer its functions to the new Organization. This use of the amending process could be regarded as the action of the constituent authority of the League. States dissenting from such an amendment would in accordance with the Covenant cease to be members of the League, but it is to be presumed that any member willing to join the new Organization would be willing to support such an amendment. One advantage of this method is that it perhaps constitutes as near an approach to an unimpeachable legal process as could be found, and that it offers a dignified procedure by which the League could terminate its own existence.

It may be argued against this procedure that it would call for meetings of organs of the League whose status is now uncertain. While it may also be argued that there is little precedent for using the amending process for such a purpose, it may be less open to objections on the ground of illegality than some other method. It may further be argued that this method, by preserving formal continuity between the League and the new Organization and making the latter the legal successor of the former, would arouse opposition from some who have regarded the League with disfavor. This objection would have less force if the new Organization were created independently, as it is proposed that it should be, and thereafter accepted by the League through its process of amendment. Aside from any validity which this objection may have in fact, the same objection could be raised against procedure by separate protocol. In either case the validity of the objection would depend upon the effect of the protocol or the amendment.

C. Revision of the Peace Treaties of 1919

Since the Covenant of the League of Nations is a part of each of four treaties of peace of 1919 which became effective, the League might be dissolved and its properties transferred to the new international organization through termination of the appropriate parts of those treaties.

This procedure would be open to the objections: (1) that, under the view that the Covenant is separate or severable from the various peace treaties in which it is found, the consent of the parties to those treaties, respectively, would not be necessary; (2) that, if the Covenant is not separate or severable despite the amendment now ratified by 18 states, [Page 920]the consent of all signatories to those treaties would be ineffective, since the states parties to the four treaties of peace and the states members of the League were not and never have been identical; (3) that this procedure could not dispose of the interests of at least 13 states members of the League but not signatories of the peace treaties.

Since the states parties to the several treaties of peace of 1919 and the States members of the League are not now identical in most cases, the view may be adopted that the Covenant of the League can be terminated only by consent of both the parties to the treaties of peace of 1919 and the present members of the League. If so, an appropriate procedure might be to adopt a protocol of dissolution and transfer signed by both groups of states.

D. Establishment of New Organization Without Reference to Treaties or Covenant

A practical approach which would disregard legal continuity as such, but which might conform to the practice at times resorted to by States, would be for the states desiring to establish the new general international organization to agree to the basic instrument for the new organization without reference to the peace treaties of 1919 or to the Covenant of the League of Nations, and to proceed to act henceforth under the obligations of this instrument. This procedure might more nearly satisfy the requirements of international law, and might further be justified on the ground that the Covenant had lost its force by desuetude, thus leaving states free to set up a new international organization by agreement.

V. Possible Means To Initiate Solution of Transition

With respect to the question of possible ways and means of achieving the adoption of an appropriate solution of the problem of transition, the following possible means are submitted. They could be utilized with respect to the achievement of any of the Possible Solutions explored above except D. Establishment of New Organization Without Reference to Treaties or Covenant.

A.
States members of the United Nations, who are also members of the League of Nations, could before or at the time of the forthcoming conference of the United Nations initiate intergovernmental discussions on the formulation of plans looking toward the assumption of the initiative by the League itself with respect to its dissolution.
B.
Alternatively, the United Nations, while in conference or preparatory thereto, could initiate the transfer by indicating what functions and responsibilities now exercised and possessed by the League of Nations, they would be willing to assume under the new Charter.
C.
A further possibility lies in the setting up of a Committee representing the United Nations and a committee representing the League [Page 921]of Nations, either before or during the forthcoming conference of the United Nations, to confer together with a view to proposing to their respective bodies an appropriate solution to the problem of transition.