IRAQ'S GENESIS AND CURRENT STATUS IN DOCUMENTS

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1.    Sykes-Picot Agreement,16 May 1916

2.    Treaty of Peace with Turkey, Lausanne, July 24, 1923

3.    Question of the Frontier between Turkey and Iraq
       a) League of Nations Report, C.400. M.147, 1925. VII, Geneva, August 20, 1925
       b) Interpretation of Article 3‚ Paragraph 2‚ of the Treaty of Lausanne - Frontier between Turkey and Iraq,
         International Court of Justice Advisory Opinion No.12, File F.c.XIV. Docket IX. I, The Hague, 21 Nov. 1925,
         Annex to ICJ Advisory Opinion No.12

4.    Request of the Kingdom of Iraq for Admission to the League of Nations
       a) MEMORANDUM FROM THE IRAQI GOVERNMENT, Baghdad, July 12th, 1932
         A.17.1932.VII (VII.Political.1932.VII.9)     16 August 1932
       b) DECLARATION OF THE KINGDOM OF IRAQ, made at Baghdad on May 30th, 1932,
              on the occasion of the termination of the Mandatory Regime in Iraq, and containing
              the Guarantees given to the Council by the Iraqi Government
           A.17.1932.VII (VII.Political.1932.VII.9)     16 August 1932 (annex)
           (part. reprod. in: Protection of Minorities, Written Statement by International Fellowship of Reconciliation
              to the COMMISSION ON HUMAN RIGHTS, 3 Sep 1992, E/CN.4/Sub.2/1992/NGO/27 )
              (version française: www.solami.com/1932f.pdf ¦ Arab version: .../1932a.pdf ¦ .../1932a.tif ¦ .../1932a.jpg)

5.    United Nations General Assembly Resolution 24 (I), section I, 12 February 1946:

"The General Assembly declares that the United Nations is willing, in principle, and subject to the provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain functions and powers previously entrusted to the League of Nations."
6.    STUDY OF THE LEGAL VALIDITY OF THE UNDERTAKINGS CONCERNING MINORITIES, 7 April 1950, E/CN.4/367, United Nations New York

7.    STUDY OF THE LEGAL VALIDITY OF THE UNDERTAKINGS CONCERNING MINORITIES, 27 March 1951, Memorandum by the UN Secretary-General, E/CN.4/367/Add.1, United Nations New York

8.    LEAGUE OF NATIONS DOCUMENTS QUESTION IRAQ'S CLAIMS AND OWNERSHIP OF PETROLEUM RESOURCES IN KURDISH AREA, April 1992, internal memorandum, United Nations Geneva

9.    PROTECTION OF MINORITIES, 3 September 1992, Written Statement by the International Fellowship of Reconciliation to the COMMISSION ON HUMAN RIGHTS, Sub-Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/Sub.2/1992/NGO/27

10.    Pro Memoria, 2 January 2003

11.    Iraq's Past/Future: Sources & Pointers - From Minority Rights to Human Rights in Iraq, 14 Febryary 2003, an introductory documentation with legal, ethnic & other potentially useful elements of Iraq's past as sources of inspiration for meeting the legitimate aspirations of Iraq’s constitutive communities with regionally stabilizing solutions which promise to effectively address the challenges of the presence and the future

12.    AMSTERDAM RESOLUTION, adopted by representatives of 26 Assyrian associations of the diaspora at the Assyrian Amsterdam Conference of 25-27 April 2003

13.    U.S. Congress H.RES.272 "Expressing concern for the status of the Assyrian people in post-war Iraq"
Sponsor: Rep Cardoza, Dennis A. [CA-18] (introduced 6/12/2003, no action taken in Committee):

SUMMARY: "Expresses the sense of the House of Representatives that: (1) Assyrians should be entitled to freely practice their religion and customs, speak their language, celebrate their culture, and be consulted and included in discussions regarding the composition of the future government of Iraq; and (2) the President should call for the future government of Iraq to uphold the rights of Assyrians and instruct the U.S. Ambassador to the United Nations (UN) to work with the UN to ensure that the rights and concerns of Assyrians in Iraq are considered as debate over post-war Iraq continues."
14.    Reconciliation Resolution (draft 2), 21 Nov 2004, "We, the Iraqi People of the Mosul Vilayet"

15.    U.S. Congress, Joint Resolution (draft 10), 19 Jan 2011:

"to commend and support the Assyrian people in their efforts to bring about safety, reconciliation and well-being in their Iraqi homeland for themselves and for their Yezidi, Jewish, Shia and Sunni Arab, Kurdish and Turkoman brethren in One God, by way of equitable power-sharing, cooperation and fruit-sharing institutions and services, a follow-up to the 1923 Lausanne Conference, and an Advisory Opinion by the International Court of Justice on Iraq's international minority and private property protection garantees and obligations."
16.    European Parliament, Mosul Vilayet Resolution (draft11), 6 Feb 2011
"to commend and support the Assyrian people in their efforts to bring about safety, reconciliation and well-being in their Iraqi homeland for themselves and for their Yezidi, Jewish, Shia and Sunni Arab, Kurdish and Turkoman brethren in One God, by way of equitable power-sharing, cooperation and fruit-sharing institutions and services, a follow-up to the 1923 Lausanne Conference & an Advisory Opinion by the International Court of Justice on Iraq's international minority and private property protection garantees and obligations."
17.    Dokan Declaration on the Mosul Vilayet Senate (draft 5), 5 May 2011

*          *          *

LEAGUE OF NATIONS
     Distr.  Assembly, Council, Members
     A.17.1932.VII (VII.Political.1932.VII.9)     16 August 1932

REQUEST OF THE KINGDOM OF IRAQ
FOR ADMISSION TO THE LEAGUE OF NATIONS
...
MEMORANDUM FROM THE IRAQI GOVERNMENT
Baghdad, July 12th, 1932

      1.     Iraq was one of the territories described in Article 22 of the Covenant as having reached a stage of development where their existence as independent nations could be provisionally recognised subject to the rendering of administrative advice and assistance by a mandatory until such time as they were able to stand alone.

     The mandate for Iraq was entrusted to His Britannic Majesty by the principal Allied Powers in April, 1920; but the normal conception of a mandate proved to be inappropriate in the case of Iraq as implying a form of tutelage inconsistent with the large measure of independence which the Iraqi State had even then acquired. The relations between the United Kingdom and Iraq were accordingly placed upon a treaty basis in 1922, and that basis was approved by the Council of the League of Nations by their decision of September 27th, 1924, as giving effect to the provisions of Article 22 of the Covenant.

     2.     Subject only to the limitations imposed by the Anglo-Iraq Treaty of 1922, Iraq was organised as a fully self-governing kingdom, with the powers and attributes of an independent sovereign State. The guiding principle which inspired the Treaty of 1922 and subsequent treaties between the United Kingdom and Iraq, and the aim which the two Governments have from the first set before themselves, have been the establishment at the earliest possible date of a fully independent State, animated by the spirit of the Covenant and fit to assume not only the privileges but also the responsibilities involved in admission to the League of Nations.

     3.     With this end in view external mandatory control was progressively reduced and the Iraqi Government assumed year by year an increasing measure of responsibility, until the position was reached that Iraq was virtually governing itself, and the Government of the United Kingdom were satisfied that the country had no further need for the advice and assistance of a mandatory and, in the words of Article 22 of the Covenant, was "able to stand alone".

     4.     Their view that Iraq was fit for emancipation was duly communicated by the Government of the United Kingdom to the Council of the League of Nations. At their meeting in September, 1931, the Council, however, decided that before the mandatory regime in Iraq could be terminated that country must be shown to satisfy certain de factoconditions, of which the first three were:

(a)     It must have a settled Government and an administration capable of maintaining the regular operation of essential Government services;
(b)     It must be capable of maintaining its territorial integrity and political independence;
(c)     It must be able to maintain the public peace throughout the whole territory.

     5.      The question whether these conditions, among others stipulated by the Council, were fulfilled in the case of Iraq, was subsequently made the subject of a searching examination by the Permanent Mandatory Commission, and in the light of the favourable report submitted by that body, the Council, on January 28th, 1932, declared itself prepared in principle to pronounce the termination of the mandatory regime upon the admission of Iraq to the League of Nations, provided that Iraq should in the meantime have entered into undertakings before the Council, the nature of which were specified in the Council's decision.

     6.     These undertakings have been assumed by Iraq in a Declaration the text of which was approved by the Council in its Resolution of May 19th, 1932, and which has been signed and ratified by Iraq and deposited with the Secretary-General. The text of this Declaration is annexed to the present memorandum.

     7.     Upon admission of Iraq to membership of the League of Nations, the Treaty of Alliance between Iraq and the United Kingdom dated June 30th, 1930, will enter into operation. At the request of the League Council, the Permanent Mandates Commission also examined this Instrument, and reported that the obligations entered into thereunder by Iraq towards the United Kingdom would not infringe the independence of the new State. The Council duly took note of this opinion at its meeting on January 28th, 1932.

     8.     It follows from the foregoing information that, upon the admission of Iraq to membership of the League, Article 22 of the Covenant will automatically cease to apply, all external control will be withdrawn and Iraq will be fully self-governing.

     9.     The kingdom of Iraq has already been formally recognised by the following Governments, who have either diplomatic or consular representatives in Iraq:
     Belgium, the United Kingdom, Czechoslovakia, Denmark, Egypt, France, Germany, Greece, Hedjaz-Nejd, Italy, the Netherlands, Norway, Persia, Poland, Sweden, Turkey, and the United States of America.
     The kingdom of Iraq has since concluded on its own behalf several treaties of settlemnent and friendship with foreign States, and acceded to the Pact of Paris for the Renunciation of War.

     10.     The form of government established in Iraq is a Constitutional Monarchy with Ministers responsible to a bi-cameral Parliament. Parliamentary government, in its present form, has been in existence in Iraq since November, 1925.

     11.     Iraq possesses well-defined frontiers with all limitrophe States. Certain doubts having arisen, however, regarding the precise definition and application of the frontier between Iraq and Syria, it was agreed to refer the matters in dispute to the Council of the League of Nations, and to accept the decision of that body as final.

     12.     The Declaration referred to in paragraph 6 above ensures the full observance of all international engagements assumed by the Iraqi Government or by the Government of the United Kingdom on behalf of Iraq.

     13.     The kingdom of Iraq possesses no naval forces. Its army (including a small air force) has a total strength of approximately 10,500 men. Its strength is not in excess of that required to maintain internal order and the necessary minimum defences. The army does not possess any of the more powerful modern weapons of attack.
     The kingdom of Iraq is pledged by its adherence to the Pact of Paris never to resort to war as an instrument of national policy.
     It is the intention of the Iraqi Government to accede as soon as possible to the Convention relating to the supervision of the international trade in arms and ammunition and in implements of war signed at Geneva on June 17th, 1925, and at the same time to assume in respect of Iraqi territory the same undertakings as those set forth in the first paragraph of Article 28 of that Convention.

(version française: www.solami.com/1932f.htm ¦ Arab version: .../1932a.tif ¦ .../1932a.jpg)
LEAGUE OF NATIONS
     Distr.  Assembly, Council, Members
     A.17.1932.VII (VII.Political.1932.VII.9)     16 August 1932
[annex]
DECLARATION OF THE KINGDOM OF IRAQ,
made at Baghdad on May 30th, 1932,
on the occasion of the termination of the Mandatory Regime in Iraq,
and containing the Guarantees given to the Council by the Iraqi Government

Chapter 1
Article 1          Protection of Minorities

     The stipulations in the present chapter are recognised as fundamental laws of Iraq, and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action now or in the future prevail over them.

Article 2

     1.     Full and complete protection of life and liberty will be assured to all inhabitants of Iraq without distinction of birth, nationality, language, race or religion.
     2.     All inhabitants of Iraq will be entitled to the free exercise, whether public or private, of any creed, religion or belief, whose practices are not inconsistent with public order or public morals.

 Article 3

     Ottoman subjects habitually resident in the territory of Iraq on August 6th, 1924, shall be deemed to have acquired on that date Iraqi nationality to the exclusion of Ottoman nationality in accordance with Article 30 of the Lausanne Peace Treaty and under the conditions laid down in the Iraqi Nationality Law of October 9th, 1924.

Article 4

     1. All Iraqi nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or religion.
     2.     The electoral system shall guarantee equitable representation to racial, religious and linguistic minorities in Iraq.
     3.     Differences of race, language or religion shall not prejudice any Iraqi national in matters relating to the enjoyment of civil or political rights, as, for instance, admission to public employment, functions and honours, or the exercise of professions or industries.
     4.     No restriction will be imposed on the free use by any Iraqi national of any language, in private intercourse, in commerce, in religion, in the Press or in publications of any kind, or at public meetings.
     5.     Notwithstanding the establishment by the Iraqi Government of Arabic as the official language, and notwithstanding the special arrangements to be made by the Iraqi Government, under Article 9 of the present Declaration, regarding the use of the Kurdish and Turkish languages, adequate facilities will be given to all Iraqi nationals whose mother tongue is not the official language, for the use of their language, either orally or in writing, before the courts.

Article 5

     Iraqi nationals who belong to racial, religious or linguistic minorities will enjoy the same treatment and security in law and in fact as other Iraqi nationals. In particular, they shall have an equal right to maintain, manage and control at their own expense, or to establish in the future, charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.

Article 6

     The Iraqi Government undertakes to take, as regards non-Moslem minorities, in so far as concerns their family law and personal status, measures permitting the settlement of these questions in accordance with the customs and usage of the communities to which those minorities belong.
     The Iraqi Government will communicate to the Council of the League of Nations information regarding the manner in which these measures have been executed.

Article 7

     1.     The Iraqi Government undertakes to grant full protection, facilities and authorisation to the churches, synagogues, cemeteries and other religious establishments, charitable works and pious foundations of minority religious communities existing in Iraq.
     2.     Each of these communities shall have the right of establishing councils, in important administrative districts, competent to administer pious foundations and charitable bequests. These councils shall be competent to deal with the collection of income derived therefrom, and the expenditure thereof in accordance with the wishes of the donor or with the custom in use among the community. These communities shall also undertake the supervision of the property of orphans, in accordance with law. The councils referred to above shall be under the supervision of the Government.
     3.     The Iraqi Government will not refuse, for the formation of new religious or charitable institutions, any of the necessary facilities which may be guaranteed to existing institutions of that nature.

Article 8

     1.     In the public educational system in towns and districts in which are resident a considerable proportion of Iraqi nationals whose mother tongue is not the official language, the Iraqi Government will make provision for adequate facilities for ensuring that in the primary schools instruction shall be given to the children of such nationals through the medium of their own language; it being understood that this provision does not prevent the Iraqi Government from making the teaching of Arabic obligatory in the said schools.
     2.     In towns and districts where there is a considerable proportion of Iraqi nationals belonging to racial, religious or linguistic minorities, these minorities will be assured an equitable share in the enjoyment and application of sums which may be provided out of public funds under the State, municipal or other budgets for educational, religious or charitable purposes.

Article 9

     1.     Iraq undertakes that in the liwas of Mosul, Arbil, Kirkuk and Sulaimaniya, the official language, side by side with Arabic, shall be Kurdish in the qadhas in which the population is predominantly of Kurdish race.
     In the qadhas of Kifri and Kirkuk, however, in the liwa of Kirkuk, where a considerable part of the population is of Turcoman race, the official language, side by side with Arabic, shall be either Kurdish or Turkish.
     2.     Iraq undertakes that in the said qadhas the officials shall, subject to justifiable exceptions, have a competent knowledge of Kurdish or Turkish as the case may be.
     3.     Although in these qadhas the criterion for the choice of officials will be, as in the rest of Iraq, efficiency and knowledge of the language, rather than race, Iraq undertakes that the officials shall, as hitherto, be selected, so far as possible, from among Iraqis from one or other of these qadhas.

Article 10
     The stipulations of the foregoing articles of this Declaration, so far as they affect persons belonging to racial, religious or linguistic minorities, are declared to constitute obligations of international concern and will be placed under the guarantee of the League of Nations. No modification will be made in them without the assent of a majority of the Council of the League of Nations.
     Any Member of the League represented on the Council shall have the right to bring to the attention of the Council any infraction or danger of infraction of any of these stipulations, and the Council may thereupon take such measures and give such directions as it may deem proper and effective in the circumstances.
     Any difference of opinion as to questions of law or fact arising out of these articles between Iraq and any Member of the League represented on the Council shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. Any such dispute shall, if the other party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant.

Chapter II
Article 11          Most-favoured-nation clause

     1.     Subject to reciprocity, Iraq undertakes to grant to Members of the League most-favoured-nation treatment for a period of ten years from the date of its admission to membership of the League of Nations.
     Nevertheless, should measures taken by any Member of the League of Nations, whether such measures are in force at the above-mentioned date or are taken during the period contemplated in the preceding paragraph, be of such a nature as to disturb to the detriment of Iraq the balance of trade between Iraq and the Member of the League of Nations in question, by seriously affecting the chief exports of Iraq, the latter, in view of its special situation, reserves to itself the right to request the Member of the League of Nations concerned to open negotiations immediately for the purpose of restoring the balance.
     Should an agreement not be reached by negotiations within three months from its request, Iraq declares that it will consider itself freed, vis-à-vis of the Member of the League in question, from the obligation laid down in the first sub-paragraph above.
     2.     The undertaking contained in paragraph 1 above shall not apply to any advantages which are, or may in the future be, accorded by Iraq to any adjacent country in order to facilitate frontier traffic, or to those resulting from a Customs union concluded by Iraq. Nor shall the undertaking apply to any special advantages in Customs matters which Iraq may grant to goods the produce or manufacture of Turkey or of any country whose territory was in 1914 wholly included in the Ottoman Empire in Asia.

Article 12          Judicial Organisation

      A uniform system of justice shall be applicable to all, Iraqis and foreigners alike. It shall be such as effectively to ensure the protection and full exercise of their rights both to foreigners and to nationals.
     The judicial system at present in force, and based on Articles 2, 3 and 4 of the Agreement between the Mandatory Power and Iraq, signed on March 4th, 1931, shall be maintained for a period of 10 years from the date of the admission of Iraq to membership of the League of Nations.
     Appointments to the posts reserved for foreign jurists by Article 2 of the said Agreement shall be made by the Iraqi Government. Their holders shall be foreigners, but selected without distinction of nationality; they must be fully qualified.

Article 13          International Conventions

     Iraq considers itself bound by all the international agreements and conventions, both general and special, to which it has become a party, whether by its own action or by that of the Mandatory Power acting on its behalf. Subject to any right of denunciation provided for therein, such agreements and conventions shall be respected by Iraq throughout the period for which they were concluded.

Article 14          Aquired Rights and Financial Obligations

     Iraq, taking note of the resolution of the Council of the League of Nations of September 15th 1925:
     1.     Declares that all rights of whatever nature acquired before the termination of the mandatory regime by individuals, associations or juridical persons shall be respected.
     2.     Undertakes to respect and fulfil all financial obligations of whatever nature assumed on Iraq's behalf by the Mandatory Power during the period of the Mandate.

Article 15          Freedom of Conscience

     Subject to such measures as may be essential for the maintenance of public order and morality, Iraq undertakes to ensure and guarantee throughout its territory freedom of conscience and worship and the free exercise of the religious, educational and medical activities of religious missions of all denominations, whatever the nationality of those missions or of their members.

Article 16          Final Clause

     The provisions of the present chapter constitute obligations of international concern. Any Member of the League of Nations may call the attention of the Council to any infraction of these provisions. They may not be modified except by agreement between Iraq and the Council of the League of Nations acting by a majority vote.
     Any difference of opinion which may arise between Iraq and any Member of the League of Nations represented on the Council, with regard to the interpretation or the execution of the said provisions, shall, by an application by such Member, be submitted for decision to the Permanent Court of International Justice.
     The undersigned, duly authorised, accepts on behalf of Iraq, subject to ratification, the above provisions, being the declaration provided for by the resolution of the Council of the League of Nations of May 19th, 1932.

DONE at Baghdad on this thirtieth day of May 1932
in a single copy which shall be deposited in the archives of the Secretariat of the League of Nations.

(Signed) NOURY SA'ID, Prime Minister of Iraq


UN General Assembly Resolution 24 (I), section I, of 12 February 1946:

         "Under various treaties and international conventions, agreements and other instruments, the League of Nations and its organs exercise, or may be requested to exercise, numerous functions or powers for the continuance of which, after the dissolution of the League, it is, or may be, desirable that the United Nations should provide. ...   Therefore:
          1.     The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations or which specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed.
          2.     The General Assembly records that those Members of the United Nations which are parties to the instruments referred to above assent by this resolution to the steps contemplated below and express their resolve to use their good offices to secure the co-operation of the other parties to the instruments so far as this may be necessary.
          3.     The General Assembly declares that the United Nations is willing, in principle, and subject to the provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain functions and powers previously entrusted to the League of Nations, and adopts the following decisions, as set forth in A, B and C below.

[A. Functions pertaining to a Secretariat ...
B. Functions and Powers of a technical and non-political character ...]
C.  Functions and Powers under Treaties, International Conventions,
Agreements and other Instruments having a political character

          The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character."

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UNITED NATIONS
Economic and Social Council

         GENERAL
         E/CN.4/367
         7 April 1950
         Original:    ENGLISH-FRENCH
____________________________________________________________________________________

COMMISSION ON HUMAN RIGHTS
Sixth session
 
 

STUDY OF THE LEGAL VALIDITY OF THE
UNDERTAKINGS CONCERNING MINORITIES

Table of Contents

 Introduction

A.   The question raised by the Economic and Social Council .   .  .  .  .  .  .  .  .  .  .  1

B.   List of the relevant undertakings concerning the protection of minorities                1

C.   Method adopted in this study   .  .  .   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  3

D.   The present legal validity of the undertakings concerning the protection of minorities
       and the political aspects of the question of protection of minorities .  .  .  .  .  . 4

Part I

 Consideration of the circumstances which may have caused the extinction
of the obligations concerning minorities  .  .  .  .  .  .  .  .  .                           5

 Title 1 - Circumstances which may have constituted ordinary causes of
extinction of the obligations concerning minorities .  .  .  .  .                             6

  Chapter I  - Effects of the war on obligations relating to the protection of minorities .   7

  Chapter II - The dissolution of the League of Nations   .  .  .  .                         10

   A.  The effect of the dissolution of the League of Nations on the
      Declarations made before the Council of the League of Nations                          10

    1.  The theory that the Declarations should be deemed to have lapsed  .  .  .  .  .      11
     (a) The obligation was incurred towards the League of Nations                           11
     (b) The dissolution of the League of Nations involved the extinction of the obligation  11

   2.  The theory that the Declarations remain valid  .  .  .  .  .                          12
       First argument: The Declarations were in the nature of unilateral undertakings        12
       Second argument: The States contracted obligations towards
       all the individual Members of the League of Nations .  .                              13
       Third argument: The States contracted obligations towards the international community 14
       Conclusion    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                          15

  B.  Consequences of the disappearance of the guarantee by the League
      of Nations of the obligations in respect of minorities   .  .                          16

Chapter III - The United Nations Charter and the treaties concluded after the war  .  .      18
  A. The United Nations Charter    .  .  .  .  .  .  .  .  .  .  .                           18
    1.  Absence of any reference in the Charter to the protection of minorities    .  .  .   18
    2.  The concept of human rights embodied in the United Nations Charter    .  .  .  .  .  19

   B.  Treaties of peace following the Second World War   .  .  .  .                         21
    1.  Did the authors of the new peace treaties have the power to abrogate the
         provisions regarding the protection of minorities contained in previous treaties?   24
    2.  Did the authors of the new peace treaties intend to abrogate the provisions
         of the treaties relating to the protection of minorities or did they consider
         these provisions to be already devoid of validity?  .  .  .  .  .  .  .  .  .  .    27

Chapter IV - Territorial transfers & population movements undertaken as a result of the war  33
  A.  Effects of territorial changes   .  .  .  .  .  .  .  .  .  .                          33
  B.  Effects of population movements     .  .  .  .  .  .  .  .  .                          34
    1.  Case of minority elements which, by reason of an exception made in their favour,
         have escaped compulsory transfer  .  .                                              34
    2.  Case of other minorities not subject to compulsory transfer                          35

 Title 2 - Change of circumstances (Rebus sic stantibus clause)    .                         36

  General considerations    .  .  .  .  .  .  .  .  .  .  .  .  .  .                         36

Chapter V - The dissolution of the League of Nations    .  .  .  .                           39
   A. Dissolution of the League of Nations guarantee     .  .  .  .                          39
   B.  The possibility of a modification of obligations by the Council
          of the League of Nations no longer exists     .  .  .                              39

Chapter VI - The recognition of human rights and of the principle of non-discrimination
             by the United Nations Charter                                                   40

Chapter VII - Operation of the minorities protection regime in the inter-war period    .     42
  A.  National minorities     .  .  .  .  .  .  .  .  .  .  .  .  .                          42
  B.  Religious minorities    .  .  .  .  .  .  .  .  .  .  .  .  .                          42

Chapter VIII - The position of States either bound by or having a particular interest
             in obligations concerning the protection of minorities has undergone
             considerable changes   .  .  .  .  .  .  .  .  .  .                             43

Chapter IX - The non-application of the minorities protection regime in other countries      45

 Part II

 Examination of each of the undertakings concerned  .  .  .  .  .  .                         46

Chapter X - Undertakings arising out of Declarations made before the Council
                       of the League of Nations     .  .  .  .  .                            47
  A. Albania     .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                           47
  B.  Lithuania   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                          48
  C.  Latvia      .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                          48
  D.  Estonia     .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                          48
  E.  Iraq        .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                          50

Chapter XI - Treaties of Peace concluded after the First World War imposing
             obligations with regard to minorities upon the defeated States                  52

   A.  Countries which took part in the Second World War on the side of the Axis Powers      52
    1.  Bulgaria   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                         52
    2.  Hungary    .  .  .  .  .  . .  .  .  .  .  .  .  .  .  .  .                         53
    3.  Austria    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                         55

   B.  Countries which did not participate in the Second World War
         on the side of the Axis Powers   .  .  .  .  .  .  .  .  .  .                       56
    1.  Turkey     .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                         56

Chapter XII - Minorities treaties concluded between the principal Allied and Associated
             Powers and certain States created or enlarged as a result of the 1st World War  58
   A.  State which took part in the Second World War on the side of the Axis Powers    .  .  58
    1. Romania    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       58

   B.  States which participated in the war as members of the United Nations    .  .  .  .   59
    1. Poland    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       59
    2. Czechoslovakia   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       62
    3. Yugoslavia    .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       64
    4. Greece     .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       65

Chapter XIII - Conventions and agreements establishing a regime for
              the protection of minorities in certain territories                            67
   A. Free City of Danzig  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       67
   B. Memel Territory   .  .  .  .  .  .  .  .  .  .  .  .  .  .  .                       68
   C. Aaland Island (Finland)    .  .  .  .  .  .  .  .  .  .  .  .                       69

Chapter XIV - Final Observations      .  .  .  .  .  .  .  .  .  .                           70
 
 

INTRODUCTION
A.  The question raised by the Economic and Social Council

      The Economic and Social Council requested the Secretary-General to initiate a study of the present legal validity of the undertakings relating to the protection of minorities placed under the guarantee of the League of Nations.

     The Economic and Social Council's resolution (116 C (VI)) reads as follows:

      "The Economic and Social Council,

     "Taking note of chapter VIII, paragraph 37, of the report of the Commission on Human Rights,*

     "Requests the Secretary-General to study the question whether and to what extent the treaties and declarations relating to international obligations undertaken to combat discrimination and to protect minorities, the texts of which are contained in League of Nations document C.L. 110.1927.I Annex, should be regarded as being still in force, at least in so far as they would entail between contracting States rights and obligations the existence of which would be independent of their guarantee by the League of Nations; and to report on the results of this study to a later session of the Commission on Human Rights the recommendations, if required, for any further action to elucidate this question."1/

[FN 1/  "See Resolutions adopted by the Economic and Social Council during its sixth session: resolutions of 1 and 2 March 1948, page 18."]

*see Official Records of the Economic and Social Council, Third Year: Sixth Session, supplement No. 1, pages 10 and 11.
 
 

B.  List of the relevant undertakings concerning the protection of minorities

     It will be noted that the resolution refers to obligations "the texts of which are contained in League of Nations document C.L. 110. 1927. I Annex".

     However, a later League of Nations document, the "List of Conventions with indication of the Relevant Articles conferring Powers on the Organs of the League of Nations" (C.100.M.100.1945.V) gives a list of undertakings concerning the protection of minorities as of September 1945. This list differs to some extent from the 1927 document, as follows:

     It includes an undertaking of a later date than 1927, namely, the resolution of the Council of the League of Nations of 11 May 1932 concerning the protection of minorities in Iraq.

     It omits one undertaking dated before 1927, relating to Upper Silosia. The German-Polish Convention relating to Upper Silosia of 15 May 1932 established a regime of protection of minorities in the German part of Upper Silosia for a duration of fifteen years. This regime ended with the expiry of the Convention.

     It would therefore appear that the 1945 list, which is merely the 1927 list brought up to date, should be accepted. It reads as follows:

  1. Minorities in Poland:

     Treaty between the Principal Allied and Associated Powers and Poland,
     Versailles, 28 June 1919.

2. Minorities in Austria:

     Treaty of Peace between the Allied and Associated Powers and Austria,
    Saint-Germain-en-Laye, 10 September 1919.

3. Minorities in the Serb-Croat-Slovene State:

     Treaty between the Principal Allied and Associated Powers and the
     Serb-Croat-Slovene State, Saint-Germain-en-Laye, 10 September 1919.

  4.Minorities in Czechoslovakia:

     Treaty between the Principal Allied and Associated Powers and
     Czechoslovakia, Saint-Germain-en-Laye, 10 September 1919.

  5. Minorities in Bulgaria:

     Treaty between the Allied and Associated Powers and Bulgaria,
     Neuilly-sur-Seine, 27 November 1919.

  6. Minorities in Romania:

     Treaty between the Principal Allied and Associated Powers and Romania,
     Paris, 9 December 1919.

  7. Minorities in Hungary:

     Treaty of Peace between the Allied and Associated Powers and Hungary,
     Trianon, 4 June 1920.

  8. Minorities in Greece:

     Treaty concerning the Protection of Minorities in Greece,
     Sèvres, 10 August 1920.

  9. Minorities in the Free City of Danzig:

     Convention between Poland and the Free City of Danzig,
     Paris, 9 December 1920.

 10. Preservation of the Language, Culture and Local Swedish Traditions
     of the Populations of the Aaland Islands:

     Resolution of the Council of the League of Nations dated 27 June 1921,
     approving an Agreement between the Representatives of Finland and Sweden.

 11. Minorities in Albania:

     Declaration made before the Council of the League of Nations by the
     Representative of Albania, 2 October 1921.

 12. Minorities in Lithuania:

     Declaration concerning the Protection of Minorities in Lithuania,
     Geneva, 12 May 1922.

 13. Minorities in Latvia:

     Declaration made by the Representative of Latvia regarding the
     Protection of Minorities in Latvia, and Resolution of the Council,
     Geneva, 7 July 1923.

 14. Minorities in Turkey and in Greece:

     Treaty of Peace, Lausanne, 24 July 1923.

 15. Minorities in Estonia:

     Resolution of the Council of the League of Nations and Declaration
     by the Representative of Estonia, 17 September 1923.

 16. Minorities in the Territory of Memel:

     Convention concerning the Territory of Memel, Paris, 8 May 1934.

 17. Minorities in Iraq:

     Resolution of the Council of the League of Nations of 11 May 1932,
     approving the Text of a Declaration to be signed by Iraq.
 
 

C.  Method adopted in this study

      An international obligation remains valid so long as there is no cause for its extinction. It follows that the extinction of the obligation cannot be presumed; it is essential to establish the fact which caused its extinction, such as the expiry of its period of validity or the disappearance of the object of the obligation.

     This study is divided into two parts. Part I will inquire what facts may have caused the extinction of the obligation concerning the protection of minorities. In part II the principles which have emerged from the part I will be applied to each of the relevant undertakings concerning the protection of minorities, and an endeavour will be made to decide how far the resulting obligations remain valid.
 
 

D.  The present legal validity of the undertakings concerning
the protection of minorities and the political aspects
of the question of protection of minorities

      In accordance with the request of the Council, this study is limited to the strictly legal question whether the obligations concerning the protection of minorities are still in force or not.

     The question of the past and present political value of the system of international protection of minorities is outside the scope of this study.

     But in order to determine whether the obligations concerning the protection of minorities are still in force or not, it is occasionally necessary to take various political factors into consideration as factual elements. Nevertheless, these factors are considered solely in regard to their possible legal consequences.
 
 

PART   I
CONSIDERATION OF THE CIRCUMSTANCES WHICH MAY HAVE CAUSED
THE EXTINCTION OF THE OBLIGATIONS CONCERNING MINORITIES

      This problem has two aspects.

     It is necessary in the first place to ascertain whether certain events do not constitute normal causes of the extinction of international obligations, and whether the undertakings relating to minorities have not thereby been terminated. The normal causes of extinction of a contractual international obligation include the expiration of the time-limit, the disappearance of the beneficiary of the obligation, the disappearance of the object of the obligation, an agreement between the parties to end the obligation, etc.

     Secondly, one should consider whether, on the basis of the clause rebus sic stantibus, those who undertook the obligation may not justifyably claim to be discharged therefrom on the ground of a radical change of circumstances.

     In Title 1 we shall consider whether or not the obligations relating to minorities have been affected by a normal cause of exstinction of an international obligation.

     In Title 2 we shall consider whether there has been any general change of circumstances of such a kind as to bring into operation the clause rebus sic stantibus.

     It may be noted that certain facts may be considered in turn from several different points of view. This applies, for example, to the dissolution of the League of Nations. It may be asked whether the dissolution of the League of Nations, which involved the removal of the guarantee constituted by the League of Nations control over the fulfilment of the obligations, does not constitute a normal cause of extinction of the obligations. Whether this question is answered in the affirmative or the negative, it may next be asked whether the disappearance of the League of Nations guarantee does not constitute, either alone or in conjunction with other facts, a change of circumstances of such a kind as to bring into operation the clause rebus sic stantibus.
 
 

Title 1
CIRCUMSTANCES WHICH MAY HAVE CONSTITUTED ORDINARY CAUSES
OF EXTINCTION OF THE OBLIGATIONS CONCERNING MINORITIES

     The only circumstances likely to raise the question of the extinction of the obligations concerning the protection of minorities are the following:

   1.  The effects of the war.
   2.  The dissolution of the League of Nations.
   3.  The United Nations Charter and the treaties concluded after the war.
   4.  The territorial transfers and population movements which took place after the war.
 
 

CHAPTER I
EFFECTS OF THE WAR ON OBLIGATIONS RELATING TO THE
PROTECTION OF MINORITIES

      This chapter deals solely with the possible effects of the war on these obligations, disregarding the effects of the international agreements and treaties concluded after the war (see chapter III below).

      With the exception of Iraq and Turkey, all the countries or territories in respect of which undertakings concerning the protection of minorities were concluded were in various ways involved in the Second World War.

 ...

 CHAPTER II
 THE DISSOLUTION OF THE LEAGUE OF NATIONS

      The dissolution of the League of Nations may have affected the undertakings concerning the protection of minorities in two ways.

     In the first place, a certain number of the undertakings took the form of Declarations made before the Council of the League of Nations. Should these obligations be considered as having been undertaken towards the League of Nations and as having therefore been terminated by the dissolution of that body?

     In the second place, the League of Nations guaranteed all the undertakings concerning the protection of minorities, whether these were assumed by treaty or by Declaration. Has the dissolution of the League of Nations since it involved the disappearance of the guarantee, resulted in the extinction of the obligation?

     We shall not deal for the time being with the question whether the disappearance of the guarantee of the League of Nations and, more generally, the dissolution of the League of Nations, constitutes a change of circumstances capable of bringing into play the rebus sic stantibus clause (this question will be dealt with in Title 2).

     A.  The effect of the dissolution of the League of Nations on the Declarations
      made before the Council of the League of Nations

      In five cases out of seventeen, the undertakings regarding the protection of minorities were the result of a Declaration made before the Council of the League of Nations, which adopted a resolution taking note of the said Declarations.1/

[FN 1/  These five cases are as follows:
1.  Minorities of Albania - Declaration of 2 October 1921;
2.  Minorities of Lithuania - Declaration of 12 May 1922;
3.  Minorities of Latvia - Declaration of 7 July 1923;
4.  Minorities of Estonia - Declaration of 17 September 1923;
5.  Minorities of Iraq - Declaration of 30 May 1932.]

 ...

 PART II
 EXAMINATION OF EACH OF THE UNDERTAKINGS CONCERNED
 ...
E. Iraq

      On 28 January 1932, the Council of the League of Nations adopted a resolution under which Iraq was to make before the Council a Declaration concerning the protection of minorities, this Declaration being considered as a condition for the termination of the British mandate over that country. On 19 May 1932, the Council approved the text of that Declaration and at the same time recommended the various countries to renounce the benefit of the capitulations which they enjoyed in that country.1/

[FN 1/ League of Nations, Official Journal, July 1932, 67th Session of the Council, p.1212, ff]

     The Declaration of the Kingdom of Iraq is dated 30 May 1932; on 29 June of the following [?] year, Iraq deposited with the Secretariat of the League of Nations its ratification of the Declaration. Iraq was admitted to membership of the League of Nations on 3 August 1932 [recte: 3 October 1932]. It is one of the original Members of the United Nations.

1.  Ordinary causes of extinction of obligations

(a) Dissolution of the League of Nations

     What has been said above with respect to Albania and the three Baltic States - Lithuania, Latvia and Estonia - applies in this case.

     The obligation is suspended because of the dissolution of the League of Nations, to which it was owed. It would return into force if the United Nations decided to take the place of the League of Nations in that connexion.

(b) Iraq has not undergone any territorial change

    No treaty has been concluded making a fresh settlement of the position of minorities in Iraq.

 2.  Change of circumstances

(a) General circumstances
  (i) Dissolution of the League of Nations.
 (ii) Recognition of human rights and of the principle   of non-discrimination by the United Nations Charter.

(b) Circumstances more or less exclusively affecting the particular undertaking concerned
  (i) The operation of the minorities protection regime in Iraq does not call for any special observations.
 (ii) During the Second World War, Iraq severed diplomatic relations with Italy on 8 June 1941,
      and on 16 June 1943 declared that it considered itself in a state of war with Germany, Italy and Japan.

 Conclusion

1.  As regards ordinary causes of extinction of obligations, since Iraq was bound by a Declaration made before the Council of the League of Nations, the dissolution of the latter suspends the obligation, which would return into force only if the United Nations decided to take the place of the League of Nations.

2.  As regards change of circumstances, there seems to be no special circumstance affecting the position of Iraq.




UNITED NATIONS
Economic and Social Council

         GENERAL
         E/CN.4/367/Add.1
         27 March 1951
         Original:    ENGLISH
____________________________________________________________________________________

COMMISSION ON HUMAN RIGHTS
Seventh session
 
 

STUDY OF THE LEGAL VALIDITY OF THE
UNDERTAKINGS CONCERNING MINORITIES

Memorandum by the Secretary-General

...

7.     The Secretariat wishes to draw attention to the Advisory Opinion of 11 July 1950 rendered by the International Court of Justice on the international status of South West Africa because this opinion is based on certain considerations which may also be relevant to the question of the continuing validity of the obligations arising under minorities undertakings. The contention of the Union of South Africa that the mandate for South West Africa had lapsed because of the extinction of the League of Nations was rejected by the Court on two main grounds related to two kinds of obligations. The first kind related to the administration of the territory and corresponded to the "sacred trust of civilization" which the Court had declared to be the essence of the mandate. The second kind of obligation "related to the machinery for implementation" and was "closely linked to the supervision and control of the League".

     With respect to the former, the Court found:

     With respect to the latter kind of obligation the Court was of the opinion that effective performance of the "sacred trust of civilization" required that the administration should be subject to international supervision and that this necessity for supervision "continues to exist despite the disappearance of the supervisory organ under the mandate system. It cannot be admitted that the obligation to submit to supervision has disappeared merely because the supervisory organ has ceased to exist ...".2/

[FN 2/ ibid., page 136]


UNITED NATIONS
Department of Humanitarian Affairs

[internal memorandum]
April 1992

LEAGUE OF NATIONS DOCUMENTS
QUESTION IRAQ'S CLAIMS AND OWNERSHIP
OF PETROLEUM RESOURCES IN KURDISH AREA

          Following the fall of the Ottoman Empire, the area which is now Iraq was under British mandate until 1932 when it became an independent state with its present, but potentially contested, borders. The issue of the Iraq/Turkey border occupied the League of Nations Council for years.

          The attached League of Nations documents reflect Turkey's concerted efforts to obtain international recognition for its legal claims to the Mosul Vilayet, northern (Kurdish) Iraq, which the League of Nations Council conditionally attached to Iraq in 1926. The principal document in the annexed collection is Iraq's Declaration of 30 May 1932. The conditional attachment and the declaration illustrate the meticulous efforts made by the League to protect the inhabitants of the contested area in religious, language and property matters. These inhabitants were mostly of non-Arabic origin, Assyrians, Kurds, Turkomans, etc. The 1932 Declaration appears to have fixed the limits of Iraqi sovereignty in that the detailed minority rights thus prescribed [of particular interest to Mr. M. van der Stoel, Special Rapporteur of the Commission on Human Rights] take precedence over subsequent Iraq "laws, regulations or official actions" (art.1) and are even "placed under the guarantee of the League of Nations." (art.10)  Moreover, "all rights of whatever nature acquired before the termination of the mandatory regime by individuals, associations or juridical persons shall be respected." (art.14)

          In 1945, Iraq joined the United Nations while it was still a member of the League of Nations, i.e., without altering the "obligations of international concern" (art.10) which Iraq incurred as a condition of its independence. The articles mentioned above, some of which have a direct bearing on the question of oil ownership, could not have been unilaterally abrogated by Iraq and consequently, remain fully in force.

          Since the Iraqi invasion of Kuwait, Iraq has been repeatedly condemned for grave breaches of international norms. Yet the Security Council has throughout affirmed the commitment of all Member States to the "independence, sovereignty and territorial integrity of Iraq." (Resolutions 686 and 688). Given the implications of the League of Nations documents, Iraq's "sovereignty and territorial integrity" under international law are conditioned; use of these terms in official UN documents does not convey rights Iraq has not acquired in due course.

         With regard to the oil ownership question, these documents provide a prima facie ownership case in favor of some Turkish citizens and Kurdish tribes in whose ancestral lands the largest oil field, in Kirkuk, is situated. Accordingly, the seizure protection wording of Resolution 712, paragraph 5, may not stand in a tribunal. It is thus advisable to execute Resolutions 706 and 712 either exclusively on the basis of oil pumped from uncontested Iraqi fields not in the Mosul Vilayet area or on the basis of corresponding agreements with the Turkish Government and the involved Kurdish tribes.
 
 

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