§ LORD NEWTON rose to ask whether it is considered by the Council of the League of Nations that it has discharged its functions under the Treaty of Trianon by making ineffectual efforts to bring Hungary and Rumania to an agreement in reference to the claims of Hungarians whose property in the territories ceded to Rumania under the Treaty has been taken away from them under the provisions of an Agrarian Reform Law; whether it has decided not to comply with the articles of the Treaty which provide for the replacement of the Rumanian arbitrator who has been withdrawn from the Mixed Arbitral Tribunal; and whether the President was correct in stating that by the resolution of the Council, passed on June 8, the question of the Hungarian optants is now closed as far as the Council is concerned.
§ The noble Lord said: My Lords, this is a question which long ago lost the charm of novelty. There are very few persons in this country who are interested in it, and nearly everybody is sick of the whole thing, more especially, I should say, Sir Austen Chamberlain himself. The question is surrounded by technicalities and irrelevancies, concerned mainly with the provisions of the Trianon Treaty, with which I do not propose to deal this afternoon. But fundamentally the matter is simple enough. The simple question is whether a Government—in this case the Rumanian Government—is to be allowed openly to defy Treaty obligations, and whether the Council of the League of Nations is justified in counselling, if not abetting, this action on the part of the Rumanian Government. The original question, as the House is well aware, concerns the, grievances of certain Hungarian landowners in Transylvania, known as the Hungarian optants, and their case was specially provided for in the Trianon Treaty. It was laid down in that Treaty that Arbitral Tribunals were to be set up for the express purpose of dealing with these questions, and under Article 239, which is the important Article in question, it was specially stipulated that, if a Government were dissatisfied with the Tribunal and withdrew its members, then substitutes should be found by the Council of the League of Nations.635
§ To do the Rumanians justice—and I am quite ready to do justice even to the Rumanians—they have made it perfectly plain from the very start that they never had the smallest intention of complying with the terms of the Treaty. In the first instance they asserted that these Tribunals were not competent to try these cases; and, when that question had been decided against them, they announced quite openly in Parliament by, I think, the mouth of their Foreign Secretary, that they still had not the smallest intention of carrying out the articles of the Treaty. Then they proceeded to argue that, as they had passed an Agrarian Reform Law, that law superseded all Treaty obligations. They further refused to allow the question of the competence of the Tribunal to be referred to the International Court of Justice at the Hague, and they invoked Article 11 of the Covenant, which really had no bearing upon the question at all, being the Article which concerns the danger of creating a state of war. Any Government which felt itself aggrieved by the stipulations of any Treaty would be equally jutified in invoking this particular Article in order not to carry out their duty. Finally they withdrew their representative from the Tribunal.
§ In March of last year the matter came before the Council, and the Hungarians naturally asked, as they were clearly entitled to do, that the Council should appoint substitute arbitrators. The Council, instead of complying with this request and doing their obvious duty, proceeded to appoint a Committee, of which Sir Austen Chamberlain became the Chairman or, in League language, the rapporteur, and this Committee presented a report in September, 1927, in which it was recommended that the Hungarians should be given the judge for whom they asked, but only on condition that they accepted the Rumanian contention that their domestic law overrode the provisions of the Treaty. In other words, to put it quite plainly, Sir Austen Chamberlain gave them their judge on the condition that judgment went against them. That being so, it was not surprising that this offer was rejected by the Hungarian Government. In December of last year the matter came up again and it was adjourned in the hope that both parties would agree. In 636 March of this year, no agreement having been reached, the Council urged unanimously that the Tribunal should be increased from three members to five. This proposal was immediately rejected by the Rumanians. Accordingly we have arrived at the position that the Committee of which Sir Austen Chamberlain was the head has made two proposals, one on each side, and that both have been rejected. He met with refusals on both sides.
§ When the question came up again this month, on June 8, the President of the Council actually had the face to declare that the incident was closed so far as the Council was concerned and that the League washed its hands of the whole question. It ought to be apparent to everybody that this really creates a very serious situation with regard to the League itself, and I am very much astonished to find that the chief protagonists of the League in this country—for instance, the noble Viscount, Lord Grey of Fallodon, and the noble Viscount, Lord Cecil of Chelwood—have not been moved to intervene in consequence of the situation in which the League finds itself. I take it for granted that every person in this country who has any sense in his head wishes well to the League of Nations. We may criticise it, we may find fault with it and we may even ridicule it, but everybody ought to be able to see that machinery of this kind, ineffective and clumsy though it may be, is better than another European war. But in this case the League has not only lost prestige and authority; it has made itself look supremely ridiculous.
§ Consider the position. Here are these Ministers, the Foreign Ministers of the great Powers of Europe, who proceed periodically to Geneva in all the pomp and circumstances of peace, attended by their secretaries and their acolytes, their jurists and their experts, and they make long and eloquent speeches to each other, which I will not characterise as pompous and which are glorified in the Press, in which they tell the world in so many words that the new era is at hand and that everything is for the best in the best of worlds. And yet, when these illustrious people are called upon to decide what ought to be a mere trumpery dispute between two small nations, they openly admit that they cannot do it and 637 say that the parties must settle it somehow between themselves. What would be thought of a Court of Justice in this country if the Judge were to say that he was quite incapable of giving a decision and were to leave it to the parties to fight it out themselves? I do not see my noble friend Lord Birkenhead, who is going to answer this Question, adopting such an attitude. What would be thought even of a Committee of this House if, after hearing the contending parties, they were to say: "We are not clever enough to decide this. You must fight it out and decide it yourselves"?
§ What, however, is more serious than bringing ridicule upon themselves, is that several vicious principles have, so to speak, been established. One is the principle—and a very dangerous principle—that arbitration has received a rude shock, and it is a shock which will be felt in ever widening circles. If I am not mistaken the Rumanians are being paid out in their own coin, because they are engaged in a dispute with the Turkish Government over some trumpery question and the Turkish Government, following the Rumanian example, have withdrawn their representative. It remains to be seen how the League of Nations will deal with that question. The Council have tamely accepted the principle that arbitration is to go by the board, and they have also tamely accepted the principle that domestic legislation is to be permitted to override international Treaties, but what is the most serious point of all is that by the action of the Council they have undoubtedly caused doubts to be felt throughout Europe as to the complete impartiality of the League itself.
§ I can very well understand that the Hungarians may, in the eyes of the League Council, be very obnoxious people. When people who are poor and friendless do not get on with their neighbours and persist in standing up for their rights, they are universally unpopular, but is it surprising that the Hungarian nation felt that it was being badly treated? Here is the case. No doubt a Treaty of almost unparalleled severity was forced upon a defeated nation. The terms of that Treaty have been inexorably carried out, but there happens to be one article, amongst others, which may to some extent mitigate the hardships 638 to which that country is exposed. When they come to the League of Nations and ask that this particular article shall be interpreted as they think it should be, they only meet with resistance and find that the League is to all appearances inclined to side with their adversaries. I cannot help feeling that this will have a most sinister influence upon all smaller States who are likely to invoke the assistance of the League. Nothing is more calculated to destroy their confidence than action of this character. I also think that one of the inevitable results of the procedure of the League in this case is that the Council will sooner or later be itself split up. Already it is fairly easy for anybody to prophesy on what side nations will be found in connection with questions of this kind. The result will be that you will split the Council and the League into two or three camps like the blocs or alliances which existed before the War and we shall return to the position which existed before 1914.
§ I do not wish to appear in this connection merely as a destructive critic and I desire with all modesty to offer two alternatives. The first suggestion which I have to make is that Sir Austen Chamberlain should admit that for once in a way he has committed an error of judgment. It is very rare for a Minister to admit that he has made a mistake, but after all it has been done in the case of a bigger man than Sir Austen. The late Lord Salisbury, I remember, admitted that we had "backed the wrong horse" on his own advice and responsibility. I suppose it is too much to hope that Sir Austen Chamberlain will openly avow that he has made a mistake and I do not entertain much hopes that he will adopt this alternative. But I have another to suggest, which is more in the nature of a compromise, and which I think he might consider favourably. It is that when the matter comes up again he should recommend that the question of the competence of the Tribunal should be referred to the International Court of Justice at The Hague. That has already been asked for and refused, and I presume that the answer to my suggestion will be that we cannot do that because Rumania objects. It is little short of a scandal, and in fact it is a scandal, that a country like Rumania should be in a 639 position to block the way. I am perfectly certain that there are means within the powers of the Council by which Rumania can be brought into line and this course adopted.
§ On the two previous occasions when I brought forward this question, I was met with the usual reply that it was not opportune, and I was further told that it was sub judice. This argument will not avail now. There is nothing in the Notice Paper which justifies a reply of that kind. The Notice Paper merely contains questions as to the facts, which can perfectly well be answered, and I hope that when my noble friend Lord Birkenhead replies he will be able to make out a better case for the League than appears from an impartial examination of its recent action with regard to this particular question.
§ LORD THOMSON
My Lords, I am only intervening in this debate because I happen to have a certain amount of local knowledge and, I hope, no bias. The noble Lord has presented the facts of the case, and certainly in the first part of his speech, with his accustomed accuracy and humour. The facts I do not dispute, but the deductions which he makes from those facts seem to me to be very much more disputable. He denounced the League of Nations in general, and the Committee appointed by the League in particular, for certain decisions it has reached in regard to this dispute between Hungary and Rumania. He did not tell you what those decisions were. With the permission of the House I would like to read what is their effect. This Committee, consisting of three very eminent and experienced men, the Foreign Secretary of Great Britain and the Ambassadors of Chile and Japan, who had at their disposal expert legal opinion, with all the facts before them and considerable experience of such matters, reported that the provisions of the peace settlement effected after the War, 1914–1918, do not exclude the application to Hungarian nationals, including those who have opted for Hungarian nationality, of a general scheme of agrarian reform, and that the question of compensation does not here come under consideration.
If your Lordships will bear with me I would like to put to you some points with regard to agrarian reform in 640 Rumania. Great play was made by some speakers in past debates, and by some writers—I except Lord Newton—with the fact that this Agrarian Reform Law was promulgated after the signature of the Treaty of Trianon. That is perfectly true. It was signed some three days later. The circumstances in which agrarian reform was introduced into Rumania were wholly different. When I first went to that country in 1912 it was recovering from an appalling jacquerie and terrible punishment had been meted out to the peasants. The late Prime Minister came into office pledged to introduce agrarian reform into Rumania. The War came and postponed it. During the War, in order to get the Rumanian peasants to fight, they were again promised this agrarian reform; that is to say, they were to become landowners if they fought on the side of the Allies. That was the second renewal of the promise. Then again, at the end of the War came the Russian Revolution, and in fear that the Rumanian peasants might be infected with Bolshevism they were again assured that this agrarian reform measure would be introduced in order to keep them satisfied. Therefore Rumania was pledged to the hilt to introduce agrarian reform, and early steps were taken to put that into practice.
The obstruction, I need hardly say, was considerable. Every big landowner in Rumania fought tooth and nail against this reform. Eventually it was carried but so late that it could only be promulgated three days after the signature of the Treaty of Trianon. Now I submit that for a Rumanian—and the noble Lord said he wished to do justice even to Rumanians—this is a major question, and the only question which now arises is whether Rumania was justified in applying that agrarian reform measure to Transylvania, part of her conquered territory. On that, Article 250 of the Treaty was invoked, but on that also this same Committee, consisting of Sir Austen Chamberlain and two Ambassadors of great experience, said as follows:There must be no inequality between the Rumanians and the Hungarians, either in the terms of the Agrarian Law or in the way in which it is enforced.We are dealing here with two questions, the competence of the Mixed Arbitral 641 Tribunal, and the interpretation of Article 250 of the Treaty of Trianon.
Eminent legal opinion has been given on both sides. I am aware that there is a great combination of noble and learned Lords in this House against the interpretation given by Sir Austen Chamberlain and his colleagues, but I am sure that none of them will deny that against them there is a considerable body of legal opinion, and I submit that it is not so much here a question of abstract law, but a question of applying the spirit rather than the letter of the law, and also—I am not ashamed to say so—of expediency. Expediency must count in these matters. In the name of abstract law to do what is inexpedient is often to commit a great injustice. I will say this also, I do not believe that any victorious belligerent State after the War would have signed a Treaty like the Treaty of Trianon if the interpretation of Article 250 now given to it had existed in their minds as a possibility. No State would have accepted it because every Rumanian Delegate at the Peace Conference, including the Prime Minister, knew exactly what was going on in his own country and knew what a burning question it was for most of the peasants.
I have talked about expediency. I will put this case to you. Supposing this law were reversed. Supposing Article 250 were given the interpretation suggested by the noble Lord, Lord Newton. That would mean that inequality of treatment would be meted out to Hungarians and to Rumanians, that Hungarian landlords would receive far better treatment than any Rumanian landlord, far better treatment than the late King of Rumania received, who himself was one of the principal sufferers under this law. Then again, you have to consider the attitude of the peasants. The Rumanian peasants have been settled on these lands. No-one denies that a very big proportion of the peasants in Transylvania are Rumanian. What would their feelings be if they were once more put under Hungarian landlords, to escape the service of whom they had fought in the War, or at any rate their sympathies were enlisted in the War. If these estates were to be returned to the Hungarian landlords there would be every prospect of serious trouble in Rumania. That is why I mentioned 642 expediency, and it applies not only in Rumania but in many other countries, where agrarian laws have also been put in force.
The Committee of which Sir Austen Chamberlain was Chairman said that they were not concerned with the question of compensation in money. I dare say they were right, but as it seems to me to be a practical impossibility to restore these lands, the question of compensation must some time or other arise, and I gather that the compensation demanded by these Hungarian optants would, if paid in full, amount to two-and-a-half times the total Budget of Rumania for a year. I believe that they are asking to be paid in gold. The Rumanian landlords are not being paid in gold. The effect of that decision would be that a Hungarian, because he was a Hungarian, because he had opted not to be a Rumanian citizen after the signature of the Treaty of Trianon, would receive twenty-six times the compensation for his land that any Rumanian landlord had received. Is that the way to create peaceful contented conditions in a country? I certainly had never read these decisions until I came to study the question, and I reached the same conclusion as Sir Austen Chamberlain and his colleagues in entire ignorance of the conclusions which they had themselves reached. I will read out the effect of the third decision of this Committee, which runs as follows:The words 'retention and liquidation' mentioned in Article 250, which relates only to the territories ceded by Hungary, apply solely to the measures taken against the property of a Hungarian in the said territories and in so far as such owner is a Hungarian national.Now, as I understand that, phraseology, it means that Article 250 does not apply in the case of these lands except in so far as action is concerned which discriminates in their territory against a. Hungarian because he is a Hungarian.
I am delighted to be able to agree with the noble Lord, Lord Newton, on at least one important subject. He suggested two alternatives. He said that he hoped—he did not expect—that Sir Austen Chamberlain would admit that for once he had been in the wrong. Personally, as I have tried to explain, I do not think Sir Austen Chamberlain was in the wrong, and that alternative 643 does not arise for me. But I cordially endorse his suggestion that this question of the competence of the Mixed Arbitral Tribunal should be referred, whether Rumania likes it or not, to the Permanent Court at The Hague. I say that because I think that Rumania has an uncommonly good case. I never agreed with the later recommendation of this Committee, that two further neutral members should be appointed to the Tribunal, and I think I am correct in saying that Rumania rejected that, and I am not at all sure that Hungary also did not reject it.
§ LORD THOMSON
But I am satisfied that Rumania has a very strong case for the reasons I have tried to explain. It seems to me that Rumania made a very grave mistake by refusing that reference. But it must be apparent, I think, to all your Lordships that the only body that has yet declared the competence of the Mixed Arbitral Tribunal to deal with this very big question so far as Rumania is concerned—a question affecting Rumania's national sovereignty and interfering in a very grave internal matter—is that Tribunal itself. If they are not satisfied of their competence, who would be? It would be surprising if they were not satisfied of their competence. I should very much like to have heard the other day, and I hope to hear to-day from eminent legal authorities in this country, some remarks on the competence of the Mixed Arbitral Tribunal. I wonder what this country would say if a Mixed Arbitral Tribunal asserted its competence to deal with some of our affairs—affairs nothing like so important to us as a nation in these islands as the question of agrarian reform is to every single Rumanian wherever he may be.
In conclusion, I should like to say that I always have an uneasy feeling when these questions arise that there is some sort of indirect action in the direction of a revision of the Treaty. I certainly do not accuse the noble Lord, Lord Newton, of that; but the coincidence is somewhat sinister. The question of the revision of Treaties always coincides with propaganda on the subject of Rumania and Hungary. We may be interested in the question of abstract justice. If we are, 644 and if we throw our eyes over the map of Europe we can find many cases of far greater injustice in other parts of Europe than we will find in the case of the Hungarian optants. To talk of revision at this moment is, as far as I can see, to play with fire.
§ LORD PHILLIMORE
My Lords, when I came down to your Lordships' House I was regretting that we had not, as in times past, the Foreign Secretary as a member of your Lordships' House, for I felt that if I could get him face to face and put before him the case as I understand it he would either be able to tell me something that has happened that I do not know, or he would be bound to admit that the case made by the noble Lord, Lord Newton, was right. I am extremely glad that as we are not to have the Foreign Secretary here we are to have the noble Earl the Secretary of State for India, for I could not have a better person to whom to apply in the matter. In particular, I shall ask him if he will be good enough in the course of his speech to decide between the noble Lord who has just spoken and myself with regard to a great part of the noble Lord's speech. There is one conclusion in his speech with which I entirely agree—namely, that this matter should be sent to the Permanent Court of International Justice. But with regard to the rest of the speech I hope to show your Lordships, with all respect to him, that he has misunderstood the point in question and has asked you to construe Article 250 when it is a question of construing Article 239, and that he has substituted a decision upon the merits for a decision upon the question of jurisdiction.
This matter has been before your Lordships' House on two previous occasions. On May 25 of last year the noble Lord, Lord Newton, asked a Question and was requested to postpone it because it was premature. In the debate on November 19 he was again told that it was sub judice and we were not to be allowed to express our opinion for fear that Sir Austen Chamberlain should be considered to be prejudiced. The result is, of course, that now the matter has gone very nearly past praying for before your Lordships have been able to express your opinion. What is the point? It is quite simple. Part of the Treaty of Trianon provided that if the Hungarian optants thought 645 they had claims they should be able to bring them before the Mixed Arbitral Tribunal consisting of one Hungarian, one Rumanian and one independent neutral. There was a provision made that if in any event some member of the Tribunal failed two people should be nominated by the Council of the League, one of whom should be chosen to take the place of the failing man. The Hungarians brought their case before the Tribunal. The Rumanians said that the Tribunal had no jurisdiction. The Tribunal did not hear the case; but they heard the arguments on jurisdiction. Having heard the arguments on jurisdiction the neutral and the Hungarian, by a majority, decided that they had jurisdiction. They did not decide anything more. They decided no question under Article 250. They did not purport to decide the point; they had not got to it, and they have never been allowed to get to it and to decide the real point which was to come before them.
Thereupon the Rumanians withdrew their arbitrator, and as the Tribunal could not go on unless there were three, application was made to the Council of the League in the terms of the Treaty of Trianon to appoint two people of whom one could be chosen. I agree that the Council of the League, as such, was not bound by the Treaty of Trianon; the League was not a party. If the noble Lord [Lord Thomson] and I agree that a third noble Lord shall appoint an umpire between us in case of difference, that third noble Lord may say: "I do not want to be troubled with anything of the kind. I have not agreed to do it." But if there is a bargain made between three people, who are all parties to it, by which it is agreed that if A and B disagree C, the third party, shall appoint an umpire, then C has agreed to do so and must carry out what he has promised. I admit that the Council of the League did not agree. The League had hardly begun at that time. But France, Great Britain, Japan, Italy and many other nations all signed the Treaty of Trianon and agreed that if there was such a dispute the Council of the League should decide it, and everyone of those States who are on the Council of the League ought to vote that the Council of the League should so decide.
646 It may be—I am not sure; I have looked and I cannot, make up my mind—that it may be said that this is a case in which the Council must be unanimous. If so, and any one country stands out, Cuba or Czecho-Slovakia or any other, the Council cannot act. I do not know whether that is so or not, but at, any rate Great Britain, Italy, Japan and France—especially Great Britain—ought to come forward and say: "That is what you, the Council, should do," because as Members they have signed the Treaty of Trianon and have agreed that the Council shall do it. When it is referred specially to a Committee of which Sir Austen Chamberlain is rapporteur, it is, I respectfully say, the duty of Sir Austen Chamberlain to say to the Council: "You ought to carry out that which as individuals the greater number of you have promised you would do—namely, to appoint judges in case of a vacancy."
The noble Lord who speaks from the Front Opposition Bench talks about their referring something to a Committee and the Committee advising. The Committee, as the noble Lord expresses it, decided the question. The application being made to the Council of the League to appoint a judge, according to the noble Lord, instead of appointing a judge they sent it to a tribunal of their own and that tribunal decided that the Hungarian optants had no case. They had no more business to send it to a tribunal of their own than they had to send it to your Lordships' House. Their duty was a perfectly plain one—to nominate two people from whom an arbitrator could be chosen. Then they suggested terms. If you promise a man to do a thing and then say: "I will only do it if you do something else," you have broken your promise; you have imposed a condition you had no business to impose. They had no business to impose any of those conditions. However, the Hungarians accepted some of them; but the Rumanians would not accept them and so the matter has been brought to this impasse. It has nothing to do, with all respect to the noble Lord who spoke before me, with the question of whether the Agrarian Law is good or bad, or whether Hungarian landlords will get good compensation or not. We have not reached that stage. The Rumanians have not allowed the Court to be created 647 which is provided for in the Treaty and which has to reach that stage before it can function.
The noble Lord has had dust thrown in his eyes by those advocates of Rumania who told him about Article 250. This is not a question of Article 250, but it is a question of Article 239 which says how the Court is to be supplemented in case of failure. I cannot conceive anything more detrimental to the strength of the League than the line which unfortunately has been hitherto taken—I hope not irretrievably taken—by the leading members of the Council, under, I am afraid, the guidance of the member for Great Britain. Really that is the case. Every sort of attempt has been made, as I pointed out on a previous occasion, to mix it up with other matters. The plain simple question is this. A Tribunal was created by the Treaty to which Rumania was a party. That Tribunal has purported to say what is its jurisdiction and the Rumanians have destroyed the Tribunal by taking away their member and they will not allow that member's position to be filled. The people to decide the question are the members of the Mixed Arbitral Tribunal appointed for that purpose. Mixed Arbitral Tribunals have been appointed all over Europe since the war. We have had our own most respected Mixed Arbitral Tribunal, who have not hesitated to decide against the British Government when there has been a case against them, and Great Britain has never objected or complained that it is not the Tribunal to decide. But if you think it doubtful whether the Tribunal has competence to decide, then send the matter to the Permanent Court of International Justice and for heaven's sake do not send it to a body which, instead of deciding that, purports to decide the case for itself.
§ LORD CHARNWOOD
My Lords, what we say in this debate is going to receive the closest attention not only here but in some other places in Europe, and I therefore should like to be allowed to begin with two or three remarks which otherwise your Lordships might think were unnecessary. My noble friend Lord Newton has on this and several other occasions claimed the attention of your Lordships' House and the country upon this matter not in the least because he 648 is in any sense a partisan of Hungary, any more than he is of any other small country, but simply because he is a pertinacious and humorous champion of fair play in many fields. He has raised this question affecting Hungary not in the least from any sympathy, such as I think was suggested by the noble Lord who spoke before me, with the agitation for a revision of the Treaty of Trianon. On the contrary, he has simply demanded that effect should be given to the Treaty of Trianon, that the nations who get the benefit of that Treaty when it is in their favour should also submit to it when it is not in their favour.
I say that because the noble Lord below me [Lord Thomson] has remarked that there has been something in the newspapers of this country about a general upsetting of the Treaty of Trianon and that the fact that attention has been drawn to that subject here has had great effect on the minds of some people. If the people of Hungary imagine that the people of this country are likely to stir themselves in upsetting the Treaty of Trianon they are preparing themselves for a great disappointment. The great hardships which undoubtedly were inflicted by the settlement of the frontiers of Hungary are hardships for which the only remedy, it seems to me, is an agreement between Hungary and her immediate neighbours and it is not, in spite of what the noble Lord, Lord Thomson, says, in any spirit of desiring to advocate the revision of the Treaty of Trianon that Lord Newton or anybody else in this House raises the claim that the right of Hungary should be faithfully respected. Your Lordships are aware that the noble Viscount, Lord Rothermere, a member of this House, who may or may not be present, has been identified with the agitation to which the noble Lord, Lord Thomson, referred. When that noble Viscount comes into this House and from his place here advocates the opinions which he holds, then and then only will there be some chance that public interest will be aroused. I am sorry to make these personal references, but the reason is that I think it is desirable that those of us here who have friends in Hungary should plainly dissociate the question which we are raising from that agitation of which I have spoken and to which the noble Lord, Lord Thomson, I think some-what unfairly, referred.
649 There are two points which have to be kept in mind by those who are not legally trained people, like myself, both in this country and also, unfortunately, in a good many other countries, and those two points are these. Certain Hungarians who have got into Transylvania have a right under the Treaty of Trianon that a certain claim of theirs shall be heard by a Court appointed for that purpose. The second point is that through the action, or inaction, of the Council of the League of Nations, that Treaty right of theirs has been frustrated. If we are wrong in this impression it is an impression which has been widely produced in the minds of men who have watched this matter with close interest. In regard to the first point let me say only this. There is, I understand, some question raised as to the competence of the Arbitral Tribunal itself, and it has been suggested to me, though I have not heard it said in this House, that in some way or other the original rights of those Hungarians under the Treaty may have been forfeited or compromised. Those are legal points and they present themselves to lay people everywhere as points on which we want the decision of the Court which exists to decide such questions, The Hague Tribunal, and as points upon which the opinion of a body like the Council of the League of Nations, even with eminent jurists advising them, is of no account whatsoever.
As to the second point, that this alleged Treaty right of certain Hungarians is being frustrated by the inaction of the League, I am perfectly aware that the Council of the League have made them a certain offer and that Rumania has accepted it. That offer is that they shall be allowed to have their case heard by the Court at The Hague if they will previously subscribe to certain principles in accordance with which the question is to be judged. Now in regard to those principles this, I think, is plain: either they are involved in the actual provisions of the Treaty of Trianon, in which case it is utterly superfluous to set them out, or they vary and depart from the conditions of the Treaty, in which case the putting before the Hungarian people of this offer, which has been put before them by the Council of the League, is equivalent to saying quite plainly and quite cynically: "Your rights under the 650 Treaty are what we are not going to allow you to get." I sincerely hope that there may be some very convincing answer to what has been said by myself and by noble Lords who have preceded me upon that point. I listened with great interest to what Lord Thomson has said about the original merits of the dispute from which this whole affair arises. I may be right or I may be wrong, but I note chiefly about the speech this, that he, too, with the sympathetic view which he has taken of the Rumanian side of this question, concludes by demanding that the legal question which has arisen should go before a Tribunal competent to decide it.
I want to say in conclusion, if I may detain your Lordships for a further moment, that whether the 300 or so Hungarian landowners, most of whom I suppose have been out of the enjoyment of their property for ten years now, are objects for wide and deep sympathy, I do not know at all. What is likely to come out of these proceedings as an object for a considerable amount of pity is the League of Nations itself. Nothing can induce me to believe that the noble and learned Earl who is going to reply for the Government has read the recent pronouncements of the League of Nations upon this subject with any sort of admiration at all. I can with difficulty believe that they are satisfactory to the British Government or to the British representative on the Council, Sir Austen Chamberlain. I do not know what the explanation may be, whether it is simply that the Council here is bound to act unanimously, if at all, and that unanimity cannot be secured. If that is the explanation, if the Council is powerless unless unanimous and there is divergence upon the Council, would it not be much better, much more helpful to the League that that fact should be plainly stated? Nothing, it seems to me, can be more injurious to the reputation of the League than to put forward at this stage a suggested compromise which bears futility written upon the very face of it. How can Hungary be asked to go before the Court upon condition that it has previously accepted certain principles adverse to the contention which, at the outset, it wished to put before that Court?
651 I believe that the British Foreign Office is the best friend that the League of Nations has had in the world. The Foreign Secretary and the Government have often told us that the League of Nations, though a very promising infant, is still an infant, and have begged that unduly heavy burdens shall not at this stage of its growth be put upon its back. My interest in this question is simply this: no more grievious burden could be put upon the back of that otherwise promising infant than the sort of reputation for political immorality which is all that it stands to get out of the intensely unpopular decision to which it lately seems to have come.
§ THE SECRETARY OF STATE FOR INDIA (THE EARL OF BIRKENHEAD)
My Lords, I shall be very willing to hear the views of any other noble Lord in order that I may have the advantage of replying on behalf of the Government upon the whole debate. If any noble Lord has anything to say I shall be pleased to hear it.
§ LORD PARMOOR
My Lords, I have certain views which in those circumstances I should like to put before the noble and learned Earl. It seems to me that this question is one of the greatest importance to the reputation of the League of Nations itself, and also, so far as justice is concerned, it must be of the first moment to the Hungarian optants. When I was at Geneva in 1924 we had an almost similar question which was raised between the German optants on the one side and the Polish Government on the other. On that occasion the suggestion which Lord Newton has made and which was so ably supported by Lord Thomson, was at once followed. The legal question involved was submitted to the International Court at The Hague, and, as I think Lord Phillimore stated on a subsequent occasion when he represented us on the Council of the League—I was not able to go again—the whole matter was finally settled, as I believe, to the satisfaction of both parties. I have never heard from that day any complaint on either side and I think that the noble Lord, Lord Phillimore, will agree with me that the settlement was complete, decisive and final, and satisfactory to the parties.
§ LORD PARMOOR
I am bound to say that my own view of the present position is that we are not here in any way concerned with the question of merits. It would be very unfortunate to suppose that this House could by any possibility deal with the question of merits on an occasion of this sort. All we are engaged upon here is the question of jurisdiction, and I should have thought that it was a very simple matter. There is no doubt that this question was to be submitted, under the Treaty of Trianon, to what was called a Mixed Arbitral Tribunal. That Tribunal had a question raised before it as to its own jurisdiction, and it decided by a majority—this had nothing to do with the merits of the case—that it had jurisdiction to entertain the matter.
I do not want to cross-examine the noble and learned Earl, but I will put one question to him. I have never heard any one suggest that it was the duty, in the first instance, of any Arbitral Tribunal to decide whether it had jurisdiction or not. When that decision was made, the Rumanians withdrew their arbitrator from the Tribunal, as they were entitled to do. That has been done in many cases. It was done notably in the course of the discussions on the Ruhr between France and Germany. The matter came before a Mixed Arbitral Tribunal, the Germans withdrew their arbitrator, application was made to the Council and two neutral arbitrators were appointed in their place. This is merely a method of making a Tribunal effective. If at any time in arbitration proceedings you could make them nugatory by the withdrawal of your own arbitrator, then the constitution of a Tribunal for the decision of a matter in dispute would become a mere fiction. In this case the matter in dispute—I mention it only in relation to the question of jurisdiction—is not a very complicated one. The persons involved number about 350. I think the noble Lord, Lord Charnwood, spoke of 300, but I believe that the number I have stated is correct. When territory that was formerly Hungarian was transferred to Transylvania a condition was inserted, to which Rumania assented, that the Hungarians within the added area might, if they liked, opt to remain Hungarian citizens, and the question of their rights or compensation for loss of 653 rights was to come before the Mixed Arbitral Tribunal. Why not? I should have thought that this was really the only possible way of proceeding in a matter of this sort.
I do not think any noble Lord has yet brought to the attention of the noble and learned Earl what actually passed at the last meeting of the Council of the League. We know that up to that point no progress had been made. At one time the Council appealed to Hungary and Rumania to make concessions with a view to a direct settlement, and, they not accepting, this was really tantamount to an abandonment of the dispute so far as the Council were concerned. They had refused to reconstitute the Tribunal so as to be a Tribunal that would have adequate jurisdiction. I should like the noble and learned Earl to bear in mind that this was not the last offer made. M. Titulescu, who, as we know, is the very able representative of Rumania, proposed to Hungary that an Arbitral Commission, consisting of Sir Austen Chamberlain and two neutral members, should consider the claims of the optants, any compensation awarded being paid by the Hungarian Government out of the Reparations due to Rumania. Count Apponyi, representing Hungary, said that his Government would consider the proposal. So far as I know, that proposal is still under consideration. In a matter of this kind I would desire to see a settlement brought about by the most favourable means with due regard to the wishes and interests of both parties. One is bound to remember that the optant is an individual whose interests have been safeguarded in a particular way under the Treaty of Trianon. This is not so much a question between Hungary and Rumania as between individuals who might have been harshly treated under the Treaty and of provision for their security, or for compensation or whatever it may be. I think that these Mixed Arbitral Tribunals are included in almost every Treaty. In fact there is no other way of settling these difficulties.
The only further question that I should like to put to the noble and learned Earl—I think it right to put it now and not afterwards—is whether there is really involved here any question except that of jurisdiction. As the noble and learned Lord, Lord Phillimore, said, if it is a 654 question of jurisdiction, surely, both in the interests of the League and in the cause of justice, those individuals (I do not want to call them Hungarians particularly) whose rights were protected on conditions accepted when Transylvania was transferred from one country to the other, are entitled to ask that they shall have the benefit of the provisions so made. I should have thought that it was the duty of the Council of the League to carry out in a totally impartial spirit what appears to me to be the obligation imposed upon them of reconstituting the Tribunal so as to make it effective, even though one of the parties has withdrawn its representative. I do not think that this is an occasion for discussing the rival claims. It is a question of seeing that these optants can be heard before the competent Tribunal set up under the Treaty of Trianon itself.
§ LORD DANESFORT
My Lords, we are faced to-day with a position of great gravity which goes far beyond the immediate question that has been raised between Hungary and Rumania. We all desire the League of Nations to grow in power and efficiency for the purpose of carrying out the two main objects for which I conceive it to have been established—namely, the avoidance and prevention of war as a means of settling disputes, and the encouragement of arbitration for the purpose of settling the differences that arise between nations. The situation to-day arouses in many minds grave doubts as to the value and efficiency of the League of Nations for the purpose of settling disputes between nations. If the Council does not take the steps which have been suggested to enable this Arbitral Tribunal to operate and thereby settle the dispute between Rumania and Hungary, then I fear that undoubtedly the Council of the League and the League itself will greatly suffer, both in prestige and their power for good. The question before us to-day is not the question of the merits of this dispute at all. Lord Thomson devoted a certain amount of his otherwise valuable speech to a discussion of the merits, and of the reasons which had led the Rumanians to pass an Agrarian Law, which, if effective, would largely over-ride the provisions of some of the articles of the Treaty.
655 He went on to urge the argument that in this matter we should be guided not so much by the justice of the case as by what he called considerations of expediency. I think that would be a very disastrous position for the League of Nations, or indeed anyone else, to take up. Here is a Treaty which provides that certain disputes shall be settled by arbitration, and which enables the Council of the League to fill up a vacancy on the Tribunal, and I venture to suggest to the noble Lord that it would be a really lamentable thing for the Council of the League, in deciding whether to assist in the creation of that Arbitral Tribunal, to be led astray by some ideas of their own as to the expediency of the proposal. I put aside the question of merits, and I hope that on further consideration Lord Thomson will not ask us to substitute expediency for justice. The sole question for us to-day is what is the best means of getting the Arbitral Tribunal to work. If it cannot be constituted owing to the withdrawal of the Rumanian arbitrator, without the help of the Council of the League—and up to now the Council have withheld that help—we trust the noble Earl will be able to reassure us and will be able to tell us that the Council will reconsider the matter. Perhaps I should put it this way: that we, through our representative at Geneva, will do our very best to get the Council to reconsider its decision.
Let us bear in mind that Hungary has made, I venture to think, every effort in its power to secure a fair settlement by negotiation and by agreement. Those efforts have failed, and the only possible mode now of settling this question is by means of arbitration. I do not wish to go over the ground which has already been gone over, but I may remind your Lordships of what is the real kernel of this matter—namely, that as long ago as March, 1927, after all efforts at negotiation had failed, Hungary appealed to the Council of the League to take steps to replace the Rumanian arbitrator and to make the Arbitral Tribunal effective. In the opinion of the most eminent jurists in this country—I may mention the names of Sir John Simon, Sir Leslie Scott, Sir Alfred Hopkinson, and many others—the Council was hound as an administrative act to take those steps and re-establish the Tribunal. Had they done so a decision 656 would have been given and all further discussion would have been spared. That view, taken by eminent jurists of this country, has been reasserted by two noble Lords in this House, Lord Phillimore and Lord Parmoor. Unfortunately, the Council did not take that administrative step, and did not fill up the vacancy on the Tribunal. I see in some of the papers that in refusing to appoint two members, and to name a further arbitrator, the Council say that they had certain high legal advice. We have never been told who their advisers were, but perhaps the noble Earl will be able to tell us this afternoon why they acted in opposition to the views of all the great legal authorities in this country.
That is not all. As one noble Lord said, the real question for the moment is whether this Arbitral Tribunal, if constituted, is competent to decide this question. Hungary said it was, Rumania said it was not, and thereupon the Hungarian Government made a proposal which I think the Council should at once have accepted—namely, that the matter should be referred to the International Court at The Hague to say, aye or no, is the Tribunal competent to decide the question. If it is not, there is an end of the matter. If, on the other hand, the Court at The Hague say that it is competent, then I take it that the Council would inevitably have to reconstitute the Tribunal, and I hope they will do so. That is what they have been urged to do by every speaker to-day—by Lord Thomson, who spoke as a, friend of Rumania, by Lord Phillimore and, I think, by Lord Charnwood. It has been urged upon the Government to do their utmost to see that the Council carries out the suggestion of the Hungarian Government, and sends the matter to the Court at The Hague, to say, aye or no, is the Tribunal when constituted fit to deal with this question. I have no reason to suppose that the Council will refuse that most reasonable suggestion. It is true the Rumanian Government might object, but if they have confidence in their case, why should they object? If they have no confidence in their case I can understand why they object to taking any step at all, either by going to The Hague or otherwise. This, however, is a matter in which the 657 Rumanian Government ought not to dictate to the Council or to the League of Nations, or to anyone else, as to what should be done.
I want in a very few words to call attention to what the Council have done up to now. In September, 1927, they offered to fill this vacancy, but upon what condition?—upon a condition which meant in point of fact a decision in favour of the Rumanian Government; in other words, to use their functions in a way in which they were in no wise entitled by any international instrument to use them—namely, as judges in this case—functions which properly belong, as we conceive, to a properly constituted Arbitral Tribunal. Having done that, they seek to impose upon the Hungarian Government this condition: "You must accept conditions which practically put you out of court, or else we will not fill up the vacancy on the Tribunal." Is that a fair proposition? It seems to me that the Hungarian Government had no alternative in such circumstances but to reject it. The Rumanian Government, of course, jumped at it, because it was practically getting the Council to decide in its favour. I cannot believe that the Council, on mature consideration, can be proud of that decision, and I hope that the noble Earl to-day will not justify them in the offer they made.
Then came March, 1928, and upon that occasion the Council made, as I think, a proposal which was not unreasonable. They said that if the Rumanian Government would appoint its arbitrator they, the Council, would add two neutral members to the Tribunal, and then the Tribunal could operate and decide the question. The Hungarian Government accepted that, showing, as I think, their readiness to accept any reasonable proposal by which a decision could be reached. Again the Rumanian Government rejected that proposal. Why? Were they afraid of these two neutrals being added to the Tribunal? Were they afraid of the Tribunal coming to a decision at all? It seems to me to look like it. However, the Council accepted the refusal of the Rumanian Government, and did nothing further. Finally, we come to the meeting of June 8, 1928. I have read the shorthand notes of all that took place on that occasion, and it appears to me that it 658 was a lamentable confession of weakness on the part of the Council of the League, a confession of paralysis, of incapacity to deal with the situation. They wound up by saying: "Let these two Governments"—which have been negotiating for I know not how many years, and have been unable, in spite of the willingness to settle on the part of the Hungarian Government, to come to a decision—"let them go on negotiating." They very nearly added that if these negotiations came to nothing they, the Council of the League, would do absolutely nothing further.
I do hope that the Council of the League, under the inspiration of our Government, and of those who are anxious to relieve the Council from a most invidious and difficult position, will adopt the suggestion made by Lord Newton, and enforced by almost every other speaker to-night—namely, that the competence of this Tribunal should be submitted to the International Court of Justice at The Hague, and, if that Court says that the Tribunal is a competent one, that then the Council will fill up the vacancy in the Tribunal and enable it to settle this long-standing question.
§ THE EARL OF BIRKENHEAD
My Lords, I hope it will not be supposed that the present moment should be regarded as a convenient one for examining the whole merits of the Treaty of Peace to which so much reference has been made. I do not stand here to say that that Treaty is permanently sacrosanct. I do not say that the moment when victory has been won is the moment at which a perfectly conceived peace is most likely to emerge. Nor do I suppose that such a peace would have emerged for us had the fortune of arms in the Great War gone differently. No observation, therefore, which I make must be interpreted as in any way examining the large question to which allusion has been made, as to whether or not some modification in these Treaty conditions at some period or other may or may not become desirable.
The noble Lord, Lord Danesfort, said this was a most grave matter. Evidently your Lordships so regarded it, for at that period of his speech I counted the numbers of your Lordships who were present. At that moment, after Notice duly circulated on the 659 Paper, eighteen of your Lordships were taking part in the exposure of this grievance. Nor can I conceive it to be probable that all the eighteen shared the views of the noble Lord. To my certain knowledge at least four or five of them were present inspired by a tepid willingness to support His Majesty's Government. But I would venture to make this observation, that I have listened with great pain to some of the observations which have been made to-day, by three or four of your Lordships, upon the subject of the Council of the League of Nations. I was never so great an enthusiast for the League of Nations as others have been, but I confess that it is with great anxiety that I listened to noble and learned Lords like Lord Phillimore and Lord Parmoor who, if not indeed the parents of the League, have always been its firm friends. I did not quite follow the infancy metaphor which the noble Lord (Lord Charnwood) who sits behind Lord Beauchamp developed, but there appeared to be an infant in the case, and I suppose of all the noble Lords in this House who have been enthusiastic supporters of the League of Nations none have been more conspicuous, none more consistent, than Lord Phillimore and Lord Parmoor.
When I hear them with almost parricidal tendencies criticising, scolding and admonishing the Council of the League I confess I think the attack both unnatural and unfair. The Council of the League is faced with very great responsibilities. It is all very well for noble Lords to ask, why does not the British Government inspire them? I never find it very easy to inspire any one and I would like to hear Lord Danesfort going over and inspiring the Council of the League of Nations. What is Sir Austen Chamberlain to say to them? Is he to say: "You cannot take this decision; Lord Danesfort disapproves of it." They would reply at once: "But there are other nations involved. The League is not a kind of English preserve, a receiving station for the inspiration of Lord Danesfort. On the contrary, it consists of a large number of nations, each of whom has a right that its opinions should be separately considered." The less that we attempt to dictate to the Council of the League the more likely are we to retain our influence with them. Indeed, what right have we to dictate? 660 We have the right as one Member of the Council, together with other equally responsible nations, of making our views known. Other right we have none, and, having set in motion the League of Nations, having created it, having staked so much upon its usefulness, we must give it our support and not in an empty House by idle, if I may say so, by largely unfounded and rather petulant criticisms perhaps defeat the very object which the Council has in view.
The particular case that is made to-day, if it is to be answered, as I must answer it on behalf of the Government with such sense of responsibility as I can, involves considerable examination of all the events which have led to this discussion. I am unable to agree with the noble Lord, Lord Newton, that the efforts of the Council to bring Hungary and Rumania to a settlement have been ineffectual. I agree, if I may draw a very slight shade of distinction, that up to the present moment they have not been successful. But I certainly am not without hope that your Lordships will come to the conclusion, when the facts are made plain, that the lack of success on the part of the Council is not due to the incompetence of the League but, as I say quite plainly, is due to the difficulty of dealing with both the parties to this dispute. In considering the action which could be taken and the recommendations which could be made, the Council had not only to consider Article 239 which has been referred to—
§ THE EARL OF BIRKENHEAD
I have in mind Article 239 of the Treaty of Trianon, which provides for the appointment by the Council of two deputy judges for the Rumanian-Hungarian Mixed Arbitral Tribunal. It also had to consider Article 11 of the same Treaty which, as the noble and learned Lord, Lord Phillimore, will remember, is at the same time Article 11 of the Covenant of the League. The Rumanian Government submitted the dispute to the Council under Article 11 of the Covenant, thus basing their request on the wider political issues involved. Thereupon the Hungarian Government submitted the dispute to the Council under Article 239 of the Treaty of Trianon and based their request upon the legal issues which they assumed and alleged to be involved.
661 It may be of interest to your Lordships if I recapitulate the history of this dispute, and you will thus be in a position to see the complicated issues involved which have frustrated all attempts at a settlement during the past six years. On August 16, 1922, the Hungarian Government applied to the Conference of Ambassadors in Paris in regard to the expropriation, undertaken by Rumania in ostensible connection with a scheme of agrarian reform, of the immovable property of persons who, while possessing rights of citizenship in the territories transferred to the kingdom of Rumania by the Treaty of Trianon, had opted for Hungarian nationality under Article 63 or 64 of that Treaty and also under Article 3 of the Rumanian Minorities Treaty. The Conference of Ambassadors informed the Hungarian Government on August 31, 1922, that its claims related entirely to the stipulations of the Treaty between Rumania and the Principal Allied and Associated Powers concerning minorities and should under the Treaty be referred to the League of Nations. When the Hungarian Government made a further request the Conference of Ambassadors informed that Government on February 27, 1923, that either Hungary or another Member of the League must, according to its constitution, take the initiative in bringing the matter before the Council. The Hungarian Government, therefore, submitted the dispute to the Council of the League stating that a satisfactory solution had not been obtained by direct negotiation and formulating certain demands of which your Lordships' House ought to be informed.
They are as follows—(1) That the Council should deal with the substance of the question, in view of the urgency of the matter, at its next session.(2) That it should give a ruling on the substance of the question by declaring that the Rumanian legislative and administrative enactments in question were contrary to the Treaties; by ensuring, as regards the future, that Rumania should act in conformity with the provisions of the Treaties; by ordering that the immovable property of Hungarian optants should be restored to them and that it should in future be free from all charges contrary to the provisions of the Treaties; and, finally, that full compensation for damage should be given to the injured parties.662 On those requisitions the Japanese representative, in his capacty as rapporteur, was requested in April, 1923, to prepare the ground for a further discussion before the session of the Council in July of that year, and the Council expressed the hope that before this session the two Governments would succeed in reaching an agreement. From some of the observations which your Lordships have heard to-day one would almost think that the Council was exceeding its functions in expressing a very reasonable hope that some friendly discussions might meet with a fruitful arrangement. With this object, the representatives of Hungary and Rumania proceeded, on the invitation of the Japanese representative, to Brussels on May 6, 1923, where negotiations took place which at one period seemed extremely promising and on which it was hoped that an agreement had been attained. On July 5, 1923, these negotiations which had taken place in Brussels were the subject of protracted discussion by the Council of the League. The Rumanian representative apparently regarded an agreement as having been finally concluded at that City whilst the Hungarian representative contended that no such agreement had been reached.
It is important to notice exactly what resolution was passed by the Council on this occasion. I read from the official record—The Council, after examining the report by M. Adatci dated June 5, 1923, and the documents annexed thereto, approves the report, takes note of the various declarations contained in the Minutes attached to the report of the Japanese representative, and hopes that both Governments will do their utmost to prevent the question of Hungarian optants from becoming a disturbing influence the relations between the neighbouring two countries.The Council is convinced that the Hungarian Government, after the efforts made by both parties to avoid any misunderstanding on the question of optants, will do its best to reassure its nationals; and that the Rumanian Government will remain faithful to the Treaty, and to the principle of justice upon which it declares that its agrarian legislation is founded, by giving proof of its good will to the interests of the Hungarian optants.It is all very well to say that expressions of hope and desires that reasonableness shall prevail are not very useful contributions to a situation of this kind; but it must be remembered that prematurely 663 and sharply to take a side may be a very much greater mischief.
It must be remembered that a body like the Council of the League of Nations can only function in circumstances of constant difficulty and can only reach a conclusion by a balancing of different competitive interests. I for one most warmly approve it, after negotiation which had so nearly reached a successful conclusion, for making a further attempt, by friendly admonition to both parties, to attain a settlement, and indeed this resolution was adopted by all the members of the Council, with the exception of the Hungarian Delegate. Surely one may draw some inference from that. As I have said the Council of the League have, I think both unwisely and unfairly, been criticised to-day. Are we not to observe that at this critical moment in this controversy the resolution for which they made themselves responsible was adopted by every member of the Council with the sole exception of the Hungarian Delegate?
§ THE EARL OF BIRKENHEAD
Then they were unanimous. As the noble Lord reminds me, the Hungarian Delegate not being himself a member, the Council was unanimous.
§ THE EARL OF BIRKENHEAD
It was July 5, 1923. I think there must be some confusion about the Hungarian Delegate. My information from the Foreign Office is that he refrained from voting and stated that in his opinion the whole problem remained open.
§ VISCOUNT CECIL OF CHELWOOD
May I suggest a possible explanation? Under the Article—I forget which—where the interests of a country which is a Member of the League are directly concerned, that Member is summoned to the Council and has all the rights of a member of the Council for that purpose.
§ THE EARL OF BIRKENHEAD
That justifies the original statement which I made when I was corrected by the noble Lord. I was almost prepared to withdraw my statement but the explanation of the noble Viscount makes plain what actually happened. The Hungarian representative had been directly concerned and was invited to attend and, as 664 my noble friend Lord Cecil reminded me, attended with all the rights of any other member. Therefore what I said was completely accurate. All the members of the Council, with the exception of the Hungarian Delegate, who had been specially summoned, were unanimous, but he refrained from voting and stated that in his opinion the whole problem remained open. He added amongst other observations that his Government reserved the right to take any further step which the Treaties and the Covenant of the League of Nations might allow in order to obtain justice for those whom he had the right and the duty to represent. I am in no way criticising either the attitude which he adopted or the observations by which he justified that attitude.
From December, 1923, onwards a number of applications from Hungarian nationals, all optants, as the phrase goes, owning lands in the territories transferred to Rumania were submitted to the Secretariat of the Rumano-Hungarian Mixed Arbitral Tribunal provided for in Article 239 of the Treaty of Trianon asking, amongst other matters, that the Tribunal should declare that the measures restricting their right of ownership, which had been applied to the movable and immovable property by the Rumanian State, were contrary to the provision of Article 230 of the Treaty of Trianon, and that it should order the Rumanian State to make restitution. In 1923, the Rumanian Government submitted applications objecting to the jurisdiction of the Tribunal, but after hearing the counsel of the two parties between December 15 and December 23, 1926, the Tribunal, on January 10, 1927, declared itself competent, in virtue of Article 250, paragraph 3, of the Treaty of Trianon, and called upon the defendant State, Rumania, to forward her reply within a period of two months. On February 24, 1927, Rumania informed the Tribunal that she would refrain from submitting her reply regarding the substance of the question and that, consequently, her arbitrator would no longer sit in connection with any of the agrarian matters brought forward by Hungarian nationals.
I think I have said enough to convince your Lordships that these two particular nationalities have not been very easy for the Council of the League of Nations to deal with. At the same time 665 Rumania submitted to the Council, in virtue of Article 11, paragraph 2, of the Covenant, a request to allow her to acquaint the Council with the reason on which her attitude was based. This question came before the Council on March 7, 1927. The Rumanian representative explained the reasons which had led the Rumanian Government to withdraw its arbitrator from the Tribunal. The Hungarian representative asked the Council to appoint, in accordance with the Treaty of Peace, two deputy members to enable the Tribunal to continue its work. The Council, on the proposal of the President, requested the British representative to report on this question at its next session. My colleague, Sir Austen Chamberlain, expressed his desire that two of his colleagues should be appointed to act with him for the purpose of examining the question. Accordingly the Council requested the representative of Japan and the representative of Chile to assist Sir Austen in preparing a report for the next session. The two parties to the dispute accepted this proposal, which was adopted by the Council. There again there would have appeared some hope that an accommodation might result.
On May 31, Sir Austen, on behalf of the Committee of Three, convened the Rumanian and Hungarian representatives in London. The Delegates of both countries stated at the outset that they could not definitely bind their Governments. The Committee first of all heard the additional statements of the two parties and certain particulars which they furnished. The Committee took the view—and I must say I think reasonably took the view—that it was their duty to try all possible means of reaching a solution by conciliation. In doing so they were satisfied that they were fulfilling the wishes of the Council and conforming to the established practice of that body. They therefore asked the Delegates to obtain from their respective Governments all possible concessions with a view to harmonious accommodation. On the proposal of the Committee the Delegates of the two Governments agreed to inform the Committee of the point of view of their respective Governments at the June session of the Council. When the Council assembled in June, 1927, the Committee of Three met on several occasions at 666 Geneva and maintained the closest contact with the representatives of the two Governments.
Looking at the problem as a whole, the Committee desired to find a solution which would, if possible, allay discontent. It could not forget that the matter had originally been submitted to the Council not under Article 239 of the Treaty of Trianon but under Article 11 of the Covenant, and that its intervention had been originally asked for—which I think some of the speakers to-day have forgotten—on that occasion first of all by Rumania and then by Hungary. Both nations were, at any rate in the origin of this controversy, submissive to the jurisdiction—
§ LORD PHILLIMORE
Does the noble and learned Earl say that Hungary asked for intervention under Article 11?
§ THE EARL OF BIRKENHEAD
I certainly understand so. I am so informed by those who are responsible for these matters in the Foreign Office.
§ THE EARL OF BIRKENHEAD
I think the noble and learned Lord will find I am right. He can easily verify it and I shall be pleased to give him the authority on which I make the statement. In these circumstances and holding this view, the Council could not evade the duty imposed upon it and confine itself simply to the appointment of a substitute for the Rumanian member on the Mixed Arbitral Tribunal. The noble and learned Lord is quite right to take note of the significance of that because I agree with him that a good deal depends on it. If the statement on which I am instructed, and I believe competently instructed, is well founded, it becomes an element of very great importance in these discussions and one which I think has been very considerably ignored. If the Council had taken the view that it could so confine itself it would have failed to discharge its political duties as a mediator and conciliator in a dispute which extended far beyond the actual terms in which it had been originally submitted by the two 667 parties. Moreover, the Committee could not take a purely and strictly legal view of the Council's duties, especially as it realised that the appointment of a substitute for the Rumanian judge would not have finally ended a difference which had been successively submitted to three international authorities. What useful purpose indeed could have been served by the appointment of a substitute for the Rumanian judge?
But there are other reasons not less weighty which influenced the Council in not playing a purely mechanical part. In 1923 the two parties had stated their points of view at great length and dealt with all aspects of the dispute both as regards substance and form. The Council had recommended them to do everything possible to prevent the question of the optants from becoming a disturbing influence in the relations between the two neighbouring countries. It recommended Hungary, as I have told your Lordships, to reassure her nationals, and Rumania to give evidence of good will. Would the question with which the Council have been dealing since their session in March, 1927, have arisen if the two parties had ever attempted to follow these recommendations? The Committee of the Council during the session in June, 1927, submitted certain formulœ to the two parties, always with a view to conciliation and in the hope that the two Governments would agree. The two parties rejected the compromise proposed by the Committee of Three, and the latter accordingly convened them again on September 2 with a view to a final attempt at conciliation.
During these fresh conversations the representatives of the two countries communicated further proposals to the Committee. The Hungarian representative renewed the offer made in March that the question of jurisdiction of the Mixed Arbitral Tribunal should be referred to the Permanent Court of International Justice but declared that he was unable to make any new concession. This offer was not accepted by the Rumanian representative, who in his turn submitted certain formulœ based on the proposals made by the Committee of Three with a view to compromise. These formulœ were rejected by the Hungarian representative. In these circumstances 668 the Committee of Three were compelled to abandon the hope of reaching a settlement by direct conciliation. I will undertake to say that no one who over that long period carefully studies the energy and the industry with which the Committee addressed themselves to that most difficult task will withdraw from a tribute of admiration for the qualities and patience they showed. Finding themselves against a blank wall they thereupon felt themselves obliged to seek a solution by other methods.
A minute examination of the question of the Mixed Arbitral Tribunal's jurisdiction became obviously of primary importance and accordingly the Committee asked the following questions:—1. Is the Rumano-Hungarian Mixed Arbitral Tribunal entitled to entertain claims arising out of the application of the Rumanian Agrarian Law to Hungarian optants and nationals?2. If the answer to that question be in the affirmative, to what extent and in what circumstances is it entitled to do so?The Committee, after examining these questions and having them examined by eminent legal authorities, arrived at their conclusions. When I am asked, as I understand I am asked, to give the names of the eminent legal authorities I profess myself entirely unable to do so, and if I knew their names I do not know that I should feel myself called upon to do so. If I am told by a Committee constituted as this is, with direct authority from the Council of the League, that it consulted eminent legal authorities, I feel myself quite at liberty to believe that it has consulted such eminent legal authorities.
§ LORD PHILLIMORE
Will the noble and learned Earl say why they did not, instead of consulting eminent legal authorities, consult the Permanent Court?
§ THE EARL OF BIRKENHEAD
The noble and learned Lord knows just as well as I do that the circumstances in which you consult the Permanent Court are not the same as these. It might as well be asked why the Government of the day, instead of taking the advice of the Law Officers under the Statute which is appropriate, did not take the opinion of the Judicial Committee of the Privy Council. There are different ways of dealing with these matters. There are hundreds of matters in which a Committee 669 of the Council are entitled and bound to take legal opinion which would be entirely inappropriate for the formality and delay of the Permanent Court.
If I may resume, the Committee after examining these questions and having them examined by eminent legal authorities, arrived at these conclusions:—The Mixed Rumano-Hungarian Arbitral Tribunal owes its establishment to the Treaty of Trianon. It is an international Tribunal and its jurisdiction is therefore fixed by the terms of the Treaty which created it. It has no jurisdiction beyond that which the agreement of the contracting parties has conferred upon it. The limits of its jurisdiction are defined by Articles 239 and 250 of the Treaty of Trianon.The question submitted to the Council for examination relates to the claims addressed under Article 250 to the Mixed Arbitral Tribunal by Hungarian nationals. The provisions of this Article prohibit the retention and liquidation, dealt with in Article 232 and in the Annex to Section IV of Part X of the Treaty, of the property of Hungarian nationals situated in the territory of the former Austro-Hungarian Monarchy. They also provide for the restitution to their owners of goods freed from any measure of this kind and from any other measure of disposal, of administration or of sequestration takes in the period which elapsed between the Armistice and the entry into force of the Treaty. They authorise the submission of claims, by claimants who are Hungarian nationals, to the Mixed Rumano-Hungarian Arbitral Tribunal provided for in Article 239.If it could be established in any particular case that the property of a Hungarian national suffered retention or liquidation or any other measure of disposal under the terms of Articles 232 and 250 as a result of the application to the said property of the Rumanian Agrarian Law and if a claim were submitted with a view to obtaining restitution, it would be within the jurisdiction of the Mixed Arbitral Tribunal to give relief.The Mixed Arbitral Tribunal is not competent to give decisions on claims arising out of the application of an agrarian law as such unless the case mentioned in the preceding paragraph arises. In this latter case, the jurisdiction of the Mixed Arbitral Tribunal would not be ousted on the ground that the application of an agrarian law was involved.Since these considerations showed that the claim of a Hungarian national for restitution of property in accordance with Article 250 of the Treaty of Trianon might come within the jurisdiction of the Mixed Arbitral Tribunal, even if the claim arose out of the application of the Rumanian Agrarian Law, the Committee 670 of Three proceeded to define the principles that acceptance of the Treaty of Trianon had made equally obligatory for Rumania and for Hungary.
As these principles are of very great importance in the consideration of this question, I will quote verbatim—though I am sorry to appear tedious—the relevant portions of the Report submitted by the Committee of Three to the Council. No noble Lord ought to join in any reflection upon the Council who has not followed most carefully all the stages of this dispute and has not with equal care considered the representations made by the Committee, constituted as I have described, to the Council, upon which, as the only available material, the Council had to pronounce. The Report runs as follows:—(1) The provisions of the peace settlement effected after the War of 1914–18 do not exclude the application to Hungarian nationals (including those who have opted for Hungarian nationality) of a general scheme of agrarian reform.Article 250 forbids the application of Article 232 to the property of Hungarian nationals in the transferred territory. Under the terms of Article 250, the prohibition to retain and liquidate cannot restrict Rumania's freedom of action beyond what it would have been if Articles 232 and 250 had not existed. Even if none of these provisions appeared in the Treaty, Rumania would none the less be entitled to enact any agrarian law she might consider suitable for the requirements of her people, subject to the obligations resulting from the rules of International Law. There is, however, no rule of International Law exempting Hungarian nationals from a general scheme of agrarian reform. The question of compensation, whatever its importance from other points of view, does not here come under consideration.(2) There must be no inequality between Rumanians and Hungarians, either in the terms of the Agrarian Law or in the way in which it is enforced.Any provision in a general scheme of agrarian reform which either expressly or by necessary implication singled out Hungarians for more onerous treatment than that accorded to Rumanians, or to the nationals of other States generally, would create a presumption that it was intended to disguise a retention or liquidation of the property of Hungarian nationals as such in violation of Article 250 and would entitle the Mixed Arbitral Tribunal to give relief. The same would apply in the case of discriminatory application of the Agrarian Law. The prohibition against time holding of immovable properly by a Hungarian in the territories transferred to Rumania, even if applied to all foreigners, would not be in accordance with the obligation which 671 Rumania has contracted by the Treaty to permit Hungarian optants to keep their immovable property, but this is a question which does not come within Article 250.(3) The words 'retention and liquidation' mentioned in Article 250, which relates only to the territories ceded by Hungary, apply solely to the measures taken against the property of a Hungarian in the said territories and in so far as such owner is a Hungarian national.The right which the Allied Powers reserved to themselves under Article 232 to retain and liquidate Hungarian property within their territory at the time of the entry into force of the Treaty applies to the property of a Hungarian inasmuch as he is a national of an ex-enemy country. It is not sufficient that these measures entail the retention of Hungarian property by the Government and that the owner of this property is a Hungarian. The measure must be one which would not have been enacted or which would not have been applied as it was if the owner of the property were not a Hungarian.The Committee of the Council therefore ventures to suggest that the Council should make the following recommendations:—More reasonable recommendations than those I am utterly unable to conceive. They hold the balance equally between the parties, and I am well satisfied that the British representative should have played a conspicuous part in reaching such a sensible conclusion.
- '(a) To request the two parties to conform to the three principles enumerated above;
- (b) To request Rumania to reinstate her judge on the Mixed Arbitral Tribunal.'"
In submitting this report to the Council, my right hon. colleague, Sir Austen Chamberlain, acting as rapporteur, explained that he would have been glad if the report of the Committee of Three could have ended with these recommendations, inasmuch as, in the opinion of himself and his colleagues, the solution proposed was honourable to both parties alike and secured justice for all concerned. Whilst the Committee of Three attached great importance to the normal functioning of the Mixed Arbitral Tribunal, yet they were forced to admit that normal functioning would only occur with the consent and good will of both parties. In the event, therefore, of their proposals not being accepted by either of the parties or by both, the Committee made certain recommendations. Here again I think the Committee deserve commendation and not censure in the difficult position in which they were placed. 672 Their recommendations were to this effect: (1), In the event of a refusal by Hungary, the Committee considered that the Council would not be justified in appointing two deputy members in accordance with Article 239 of the Treaty of Trianon; (2), in the event of a refusal by Rumania the Committee considered that the Council would be justified in taking appropriate measures to ensure the satisfactory working of the Mixed Arbitral Tribunal; and (3), in the event of a refusal by both parties, the Committee considered that the Council would have discharged the duty laid upon it by Article 11 of the Covenant.
Let us observe the sequel in this tangled and long drawn-out story. The Hungarian representative refused to accept the principles outlined by the Committee of Three. The Rumanian representative, on the other hand, intimated that his Government would accept those principles if they were accepted by Hungary and on the understanding that the acceptance of the conditions laid down for the working of the Tribunal would have the binding force of law on the Tribunal itself. Discussion of this report by the Council showed that there were grave differences of opinion amongst the members of the Council, and it is of no use censuring people for having differences of opinion. They either accept or they do not accept. A wise man diagnoses such political or Parliamentary ailment. It is of no use scolding people because they honestly differ. It soon became apparent that honest differences did exist among the members of the Council. These differences centred mainly on the sanctions appended at the end of the Committee's report, and the President of the Council finally proposed that the report should be adopted, but without the sanctions at the end, and that so far as the two disputants were concerned they should be given time to examine the report carefully and that they should not give their definite replies until the Council met in December, 1927.
At the next session of the Council the Rumanian representative was disabled from attending by illness, and with the full consent, as I understand, of the Hungarian representative, the matter was postponed by the Council. When the Council met again in March of this year the Rumanian representative affirmed the unconditional acceptance by 673 his Government of the report presented by the Committee of Three to the Council in September, 1927. The Hungarian representative said that his Government had taken into consideration the desire of the Council that a direct settlement should be reached between the two parties, and they had accordingly made certain suggestions in the hope that a practical solution might be reached. However, these tentative negotiations had proved, so they said, unsuccessful. After both the Hungarian and Rumanian representatives had again stated their respective cases at very adequate length, Sir Austen Chamberlain summed up the discussion by saying that the attempt to find a solution by direct negotiation between the parties had up to that time failed because Hungary refused to accept the principles enunciated in the report of the Committee of Three, and Rumania made their acceptance by Hungary a condition of her agreement to any direct settlement. Moreover, no effort had been made by the parties to reconcile their different views in regard to the amount of compensation to be allotted or the sources from which the requisite funds should be provided. The Council was not entitled (so he advised) to impose a decision upon the parties; it could only make a recommendation, and without the goodwill of the parties concerned no solution could be found.
Sir Austen Chamberlain then enquired whether his colleagues on the Council would think fit to recommend a certain proposal to both parties. This was that they should agree to the nomination by the Council of two members belonging to States neutral during the War, who should be added to the Mixed Arbitral Tribunal as stated under the Treaty of Trianon; that is to say, that the claims of the Hungarian subjects in question could be referred to this Tribunal of five members. This very reasonable proposal was warmly supported by all the other members of the Council. It was accepted by the Rumanian representative, but only on condition that the two new judges to be added to the Tribunal should be bound by the three principles enunciated in the report presented by the Committee of Three to the Council in September, 1927, with the terms of which I have already acquainted your Lordships. This condition obviously stultified the whole proposal. The Hungarian 674 representative, on the other hand, accepted this new proposal without reserve, but refused to agree to the condition attached thereto by the Rumanian representative. The Rumanian and Hungarian representatives were requested to submit this proposal to their respective Governments.
When the Council met again at the beginning of this month, the Hungarian representative reiterated the acceptance of Sir Austen Chamberlain's last proposal by his Government, and the Rumanian representative again regretted that his Government could not accept it. Thus it will be seen by your Lordships that the Hungarian Government had refused the solution suggested by the Council in March, 1927; the Rumanian Government that proposed in March, 1928. As each of these proposals required the consent of both parties, neither could be imposed on either of them against its will. The Council had declined to enforce what was described as a sanction on the refusal of Hungary to accept the proposal made in September, 1927, and did not think it proper to proceed to sanctions against the Rumanian Government for their refusal of the proposal made in March, 1928.
As the Council had considered the matter in all its aspects for a considerable period of time and had failed to find a solution acceptable to both parties, it adopted a resolution as recently as the 8th of the present month, expressing the opinion that the dispute should be settled by the parties on the basis of the solutions recommended by the Council, declaring its adherence to its previous resolutions, and urging both Governments to bring this long-standing dispute to a close by reciprocal concessions. After this resolution had been adopted by the Council the Rumanian representative read out a proposal which his Government intended to make to the Hungarian Government, and I am not in a position to express an opinion upon the probability of that proposal leading to a harmonious conclusion. I am not particularly encouraged by the long history with which I have regaled your Lordships this afternoon.
In the various meetings of the Council and the Assembly of the League the words "conciliatory spirit" and "good will" are very frequently heard; so 675 frequently indeed that casual visitors have been both astonished and gratified by their frequent reiteration. The reasons for this phenomenon may be that those who participate in the work of the League sensibly realise that the Covenant is not yet, whatever it may become, a universal panacea for all the evils of political and international life, and that all disputes cannot be settled by the Council of the League unless good will and a conciliatory spirit are shown by those concerned. I hope that in any further discussion which may take place this lack of good will, which I am bound to say has been shown by the two Governments concerned, and which has led to the stultification of the efforts of the Council, will not be overlooked by those who may be inclined to adopt the rôle of critic.
When I am asked why the Committee which advised the Council has not recommended that this matter should be sent to the International Court at The Hague, I am bound to say with the utmost respect to the noble Lords who have made this suggestion, that I am disposed to think that a Committee consisting of the chosen representatives of three Powers, which had held more than twenty sessions, in which they devoted their exclusive attention to this matter, and the Council of the League reinforced by the wisdom of so many constituent nations acting through sophisticated individuals who, by this time, I should imagine, are beginning to know their own business, were probably better judges as to whether this was a desirable procedure than any one of your Lordship, however well disposed to the League, however zealous in this particular matter, can possibly hope to be. The League of Nations has great difficulties to face. It will not be assisted, it will on the other hand be greatly embarrassed, if in all departments of all the work noble Lords are to rise and say: "Why does not the Council of the League do this? Why does not the Council of the League do that"? Let us on the contrary, in a more statesmanlike spirit, attempt to appreciate the gravity of their task, the earnestness of the effort which they are making to discharge it, and let us not yield too lightly to the great human temptation to become critics of the supposed shortcomings of others.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I hope you will allow me, even at this late hour, to say a few words in reference to this very important and interesting subject. Let me at the outset say how heartily I agree with what my noble friend said at the beginning of his observations, that no question of revision arises at all in this matter, and that I am quite satisfied that, whatever may happen in the far distant future with regard to the revision of the Treaty of Trianon, any attempt to promote its revision at the present time will certainly lead to failure and dispute, and not improbably to ever more serious consequences.
My noble friend more than once deprecated criticism of the actions of the League. I agree with him that any criticism of that kind should be of the most moderate and considerate character. The difficulty of the work of the League is very great. At the same time, I think he will agree with me that a certain amount of criticism is not bad for any body, even for a League of Nations. Indeed I would go much further than that. I would say that the League of Nations rests upon public opinion. Without public opinion it can do nothing, and public opinion can only express itself by sometimes criticising what has been done, at other times suggesting what ought to be done. And therefore personally, with the greatest respect to him. I do not deprecate in any way criticism being made of the decisions of the League. I think it has far too great an authority and a prestige already behind it, and will gain far greater authority and prestige in the future, as I hope, for it to be afraid of any criticism—provided, of course, it is fair and moderate.
With reference to this particular question, we must admit that the position is not a satisfactory one. I think the House is very greatly indebted to my noble friend for the elaborate care with which he has recounted all the relevant facts connected with the matter, but the broad result remains that in 1921 or 1922 this subject first became a subject of controversy between Hungary and Rumania, that a great number of different authorities have apparently made an effort to arrive at a settlement, and that it still remains unsettled. My noble friend said 677 with great truth that the great weight of blame for that want of settlement must be borne by the parties, and in that observation—I think I have put it rather more crudely than he, with his skill of phrase—I most heartily agree with him. The net result of a review of this controversy always shows that whenever a proposal was made which Hungary was prepared to accept, Rumania refused it, and whenever a proposal was made which Rumania was prepared to accept, Hungary refused it. That undoubtedly did cause a very grave difficulty.
But, at the same time, we have now to consider what can be done, and it is not so much for this House, I agree, to give directions to the League of Nations. That, of course, it cannot do. What it can do is to make suggestions as to the attitude which the Government of this country ought to take in the Council of the League. It is only on that aspect of the thing that I venture to make these few observations. I am not going to follow my noble friend, even if I were competent to do so, in the history of this question. I have no doubt he is perfectly accurate when he said that at, one time Hungary suggested that the League of Nations should deal with the merits of the dispute, and later on, after they had submitted the matter to an Arbitral Tribunal, desired that the Arbitral Tribunal should deal with the merits. I do not think that matters at all. We have to deal with the situation as it is presented to the Council of the League at the present time.
Now, as I understand, the actual position is this. The matter was before the Arbitral Tribunal. Rumania withdrew her representative. Hungary thereupon made a definite application to the League to exercise its rights to appoint a member in place of the Rumanian member. That is one issue. Then I think my noble friend does make out quite clearly that there has been a kind of cross appeal by Rumania under Article 11 of the Covenant, that the Council should consider the merits of the question under their general powers to deal with any question that affects the good relations between any countries. So that there were two different subjects presented to the Council for their consideration. One went to the jurisdiction of the Tribunal— 678 the question as to who ought to decide the merits of the dispute—the other concerned the merits of the dispute.
I should have thought that the logical and convenient way of dealing with it would have been first to settle the question of what was the Tribunal which ought to deal with the merits of the dispute before taking up the consideration of the merits of the dispute itself, and I confess that on that point the suggestion which was made originally, I think, by my noble friend Lord Newton, and warmly supported by my noble friend Lord Thomson, and I think by every speaker that succeeded them, seems to me to be a just one. There is a dispute as to whether the Arbitral Tribunal has jurisdiction in dealing with the merits of this controversy. The Rumanians say the Arbitral Tribunal has not jurisdiction. The Hungarians say that it has. The Council, perhaps a little unwisely, expressed a rather hesitating opinion on the jurisdiction, at least so I understand following what my noble friend has said. Here is an issue between the parties, an issue on a pure point of the construction of a Statute. Is not that just the question to go to the Permanent Court? My noble friend suggested that after all the Council is a very able body. I agree. He said the Committee of the Council is well chosen. I have no doubt it is. The fact that it is presided over by my right hon. friend Sir Austen Chamberlain would naturally recommend it to our confidence. My noble friend says it has an opportunity of consulting unnamed legal experts. No doubt it has.
"Why," he asks, "should not the Council decide this question just as well as a Court?" I think the answer is twofold. In the first place, the Council is not really a very good body to decide a legal question, as I am sure my noble friend would agree when he has the opportunity of studying the work of the Council. It is an admirable body for deciding general questions of expediency. I do not think it is a very good body for deciding purely legal questions. That is not its function. I do not attach much importance to the advice obtained from unnamed legal experts. You cannot tell how the question is presented to the legal experts. You do not know how it is considered by them. They are probably 679 officials of the various Governments, admirable people, I have no doubt, and it is very unlikely that they would give a pure, absolutely legal mind to the consideration of the question. Moreover, they have none of the guarantees of a Court. They have not the matter argued before them. They have not the publicity of the whole matter. They have not to pledge their personal reputations to the justice of their decision. I have not the slightest doubt that you have a much better chance of obtaining an absolutely fair and competent decision from the Permanent Court than you have from a Committee of the Council aided by unknown legal experts. For that reason I should have thought that this difficult question which has arisen between these two countries, as to whether under the construction of a Treaty a particular Arbitral Tribunal has or has not jurisdiction, is exactly the kind of matter which ought usefully to go to the Permanent Court of International Justice. I cannot conceive any doubt about it by any one who has studied the documents, and I should be very much surprised to hear from my noble friend that, put in that way, he had any serious doubt on the point.
I know there are some people who think that the Council can only send such a matter for an advisory opinion, as it is called, on a unanimous decision of the Council. I would venture to remind my noble friend that it is part of the ordinary function of the Court. It has been much more frequently employed than such a jurisdiction as the jurisdiction of the Privy Council. I think they have given more advisory opinions than definite judgments; at any rate they have given a very large proportion of advisory opinions. It is a regular procedure that when the Council or Assembly are in doubt they can ask for an advisory opinion from the Court. Then if there are parties involved they argue the question just as is done when an actual decision is sought. That seems to me to be an ideal procedure, and, even admitting that these two States have not distinguished themselves by their reasonableness, I cannot help believing that they would accept the decision of the Court given in that way when it had been fairly argued by both sides; at any rate it is worth trying.
680 I was saying that there are some people who think that you cannot send a question to the Permanent Court for an advisory opinion unless you can get a unanimous decision of the Council. I do not know, and I do not pretend to express an opinion upon that, beyond saying that it has always seemed to me an extremely difficult question. But I should have thought you could, on balance, get an advisory opinion by a reference by the majority of the Council. At all events that is a matter to be considered, if you find that you cannot get a unanimous decision. If the whole weight of the leading members of the Council were employed in order to suggest that this was so emphatically a question for the Court as it appears to me it obviously is, I do not believe there would be any difficulty in getting a unanimous decision—perhaps without the assent of Rumania or Hungary as the case might be, who are, no doubt for the purpose members of the Council; but then I think you might have recourse to the powers under Article 15 and say that for that purpose their votes would not be counted.
I venture very respectfully to recommend to my noble friend and the Government that this aspect of the matter should be further considered. If we are left with the present apparent absolute non possumus on the part of the League, if after the matter has been discussed for years and years the League can do nothing more than simply wash its hands of the dispute altogether, I think that will be a very unfortunate thing, not so much for the reputation of the League, for I have confidence that the reputation of the League is strong enough to stand even an incident of that kind, but for the good understanding between the nations of Europe. The result will be a constant sore between these two countries from the question remaining undecided and undetermined; and who knows how bitter the feeling may become at any given moment? Therefore we ought to strain every nerve and to try every possible plan to reach a decision, and I think there is at any rate a possibility of reaching that decision by pressing very strongly indeed that the legal question should be submitted for the decision of the Court. I trust my noble friend will consider that.
§ LORD LAMINGTON
My Lords, after the exhaustive criticisms that have been 681 offered by the noble Viscount on the legal side of the matter I wish to make only one point with reference to the remark of the noble Earl that he objected to criticisms being made of the Council of the League. It is because noble Lords value the work of the League of Nations and are anxious that nothing should be done to bring the League into discredit that they have spoken as they have this afternoon. It is our fear that the apparent remissness in not appointing a substitute for the Rumanian member of the Mixed Arbitral Tribunal will lead in the future to mistrust of the League. We believe in the League of Nations. We trust it and we do not want anything to be done which will impair its value. I understand the noble Earl to ask what would be 682 the use if the Council of the League appointed a substitute. If the Council had done their duty in the eyes of the world, and had carried out the Covenant any one could have seen what use such action would have been. Therefore, I associate myself with the criticisms made by the noble Viscount, Lord Cecil. I think those criticisms are very valuable in further elucidating what the noble Earl described as a very mysterious tangle.