cle 7 of the liquor convention, the parties must publish and send to the Central International Office and to the Secretary General of the League an annual report giving statistics on the liquor trade.

A noteworthy feature of these revised treaties was their extension to a wider area than before. The preamble of the arms traffic convention states that changed conditions "require more elaborate provisions [than in 1890] applicable to a wider area in Africa and the establishment of a corresponding régime in certain territories in Asia." The wider area in Africa included "the whole of the Continent of Africa with the exception of Algeria, Libya and the Union of South Africa." The convention extended expressly to mandated areas which were referred to in several articles. The liquor traffic convention applies to "the whole of the continent of Africa with the exception of Algiers, Tunis, Morocco, Libya, Egypt, and the Union of South Africa." 17 It covered the mandated as well as other territories; but, as we shall see below, it provided for prohibition whereas the "B" mandates provided for "control." 18

The attempts to get these conventions into force and the results. achieved are dealt with in Chapter XV, below.

The St. Germain treaties, as multilateral conventions, were not regarded as abrogated by the Second World War. All the signatories of the St. Germain convention revising the Berlin and Brussels Acts became parties and remained so after the war. The United States ratified the convention (with reservations) on April 11, 1930. The parties at that date were the British Empire, Belgium, France, Japan, and Portugal. Italy ratified on April 14, 1931. The peacemaking following the Second World War offered a fresh possibility of revision of the African (Congo Basin) conventions. Since the United Nations Charter preceded the peace treaties, and was detached from them, revision could not be simultaneous with the drawing-up of the Charter. That revision to bring the Congo treaties into line with the Charter may be contemplated is shown by Article 42 of the Peace Treaty with Italy of February 10, 1947, which reads: "Italy shall accept and recognise any arrangements which may be made by the Allied and Associated Powers concerned for the modification of the Congo Basin Treaties with a view to bringing them into accord with the Charter of the United Nations."

17 All the signatories became parties: Britain (including the Dominions and India) and Belgium ratified in 1920; France in 1921; Portugal and Japan in 1922; the United States in 1929; Italy in 1930. Egypt adhered in 1924.

18 "C" mandates (e.g., South-West Africa) provided, however, for prohibition.

4. THE ANOMALY OF ARTICLE 23(b), Germ of CHAPTER XI OF THE CHARTER OF THE UNITED NATIONS

The application through the League of Nations in the 1920's of the regional system of African treaties was rendered difficult because of the failure of the United States to join the League and her belated ratification of two of the treaties (the liquor convention in 1929, and the convention revising the Berlin and Brussels Acts in 1930). But the same explanation could hardly be advanced for the failure to put life into Article 23(b) of the Covenant. It reads:

Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League: ... (b) undertake to secure just treatment of the native inhabitants of territories under their control.

These few lines of the Covenant had no history. An explanation of this statement is important from two points of view: first, because it throws light on the nature and development of the mandate system, and, secondly, because Article 23(b), while it remained dormant in the Covenant, grew into a whole important chapter in the Charter of the United Nations—namely, Chapter XI: Declaration regarding Non-Self-Governing Territories.

Article 23(b) was the outcome of the same general trend that produced the mandate system-the trend since the late eighteenth century towards concerted international action regarding dependent peoples. This had manifested itself, as we have seen, in international action on such matters as the slave trade, slavery, liquor, and arms traffic. National action by individual states had been followed by attempts at concerted international action, which culminated in international legislation in the form of multilateral conventions such as the Berlin and Brussels Acts. When the powers, faced with the problem of the disposal of German and Turkish territories, decided to adopt the method of the mandate, it was natural that they should incorporate in the new mandates the general principles and safeguards of these well-known international acts. But they could not have taken this step without asking themselves—and prompting the world to ask: Why not make the Covenant cover in some way all these fundamental human rights and safeguards for all dependencies? The answer was Article 23(b) of the Covenant.

There were also other parts of Article 23 that affected conditions in dependencies. Under paragraph (a), concerning labor, the "endeavor"

of League members to secure fair and humane conditions of labor had to go beyond their own frontiers to "all countries to which their commercial and industrial relations extend." Further, under paragraph (d), the League was given a "general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest." And, of course, the general clauses of the article relating to dangerous drugs, health, transit, etc., had a universal application which included dependencies. But all these clauses were concerned quite incidentally with dependencies as part of their field of world-wide application. Article 23(b) on the other hand applied only to "native inhabitants." 19

Article 23(b) is one of the mysteries of the Covenant. It remained dead wood. It never became, as Dr. Moresco pointed out in 1939, “living law." 20 Each of the other six clauses of Article 23 budded and grew into one or more League "technical" organs. But from 23(b) nothing ever grew. It was not made the field of any League committee. nor taken as a basis of action by Assembly or Council.

21

This is all the more surprising since Article 23(b) was a very late and deliberate addition to the Covenant. It appeared as Article 19(b) in the text of the Hurst-Miller draft of the Covenant as submitted on March 31, 1919, to the Drafting Committee of the League of Nations Commission. The addition, together with the references to dangerous drugs and to traffic in women, was due to Lord Robert Cecil. These belated new clauses were evidence of a desire to strengthen the humanitarian side of the Covenant. The addition of 23(b) could hardly have had any meaning unless the intention had been to give the League a general competence which without these words it might not have been deemed to possess, and which it certainly could not possess merely by virtue of Article 22 since that article had a strict territorial limitation.

International conferences draft clauses like this after the manner of their kind. They are not an international legislature able to keep a continuous oversight of legislation, and to coordinate and amend. Their

19 It might be argued that the phrase "native inhabitants of territories under their control" could cover not merely inhabitants in territories detached from the metropolitan state, but also indigenous inhabitants within the continental area of that state which had been overrun by migrants from outside, e.g., in Australia, South Africa, the U.S.S.R., etc.

20 Emanuel Moresco, op. cit., p. 204.

21 David Hunter Miller, op. cit., Vol. II, pp. 658, 665. This article had been presented, as a British amendment, to the League Commission at its thirteenth meeting, March 26, 1919. Ibid., pp. 355-56.

different commissions work under pressure, in separate compartments, and on the assumption that the loose ends one commission may leave will somehow be tied up by another. There was in fact a considerable amount of overlapping between the general clauses of Article 23 of the Covenant and the ground to be covered in the subsequent discussion on the revision of the general African treaties.

It may well be that the raison d'être of the clause was the knowledge of the delegates that another commission of the Peace Conference was about to begin on the revision of the Berlin and Brussels Acts, that the revised treaties were intended to cover virtually the whole of Africa and even extend in some cases into Asia, and that it was planned to link them organically at a number of points with the permanent machinery of the League. Just what agreements the African Commission would reach, in the matter of placing the African treaties under League supervision, could not be exactly foreseen. But obviously a clause in the Covenant other than the mandates article would be useful, if not indispensable, in giving the League a foothold for action under these international African conventions "hereafter to be agreed upon." These words from the preamble of Article 23 may well have been written with precisely these African treaties in mind, since they were known to be pending treaties of the kind envisaged by the preamble.

In the discussion at the Peace Conference as to the powers of supervision the League would have under the wide general wording of Article 23, Lord Robert Cecil made the point that "the supervision was to depend upon subsequent international agreements." 22 Thus the minutes. of the Peace Conference support the narrower interpretation of Article 23 which most of the commentators on the Covenant accepted. The article, it has been argued, gave no general competence apart from the powers conferred on the League by "international conventions existing or hereafter to be agreed upon." This was the view taken in a memorandum by the British Government on September 18, 1926, on the interpretation of the preamble and Articles 3 and 4 of the Covenant, which dealt with the competence of the Council and the Assembly. For the League to act on matters referred to in Article 23 (which are matters mainly of national competence), the memorandum held, there must be a treaty empowering it to act, or an international bureau of the kind mentioned in Article 24.

22 Quoted by J. M. Yepes and Pereira da Silva, Commentaire théorique et pratique du Pacte de la Société des Nations et des Statuts de l'Union Panaméricaine (Paris: Editions A. Pedone, 1934-39), Tome III (1939), p. 247.

Article 23(b) was thus by general consent put on the shelf as a sort of functionless appendix. J. Ray, in his commentary on the Covenant, described it as not part of the "domaine véritable" of Article 23.23 This was compatible with the common but loose assumption at Geneva that Article 23(b) was in fact more or less a duplication of Article 22, and that no League committee or Assembly or Council action was needed to implement it, since the Mandates Commission was looking after the matter. Hence also the common view that the words "just treatment," though they had never been defined by any League body, were in fact clearly enough defined by the general principles and safeguards of Article 22. This view was never accepted by the governments most directly concerned. For on any common-sense interpretation of "just treatment" it could hardly be held that non-fortification and the open dooropening freely inwards to permit economic penetration of the native territories by all countries-were in fact in the interests of the native inhabitants.24

This narrow interpretation of Article 23(b) was, however, open to challenge. The most recent commentary on the Covenant by J. M. Yepes and Pereira da Silva took the view that on a proper construction of the article the League had a general competence unless this had been modified or negated by some international convention.25

The First Assembly of the League, in the report of its First Committee adopted on December 7, 1920, did not regard the clause as preventing the League from acting in this field. The Assembly held that the League had no direct competence as regards paragraphs (a), (b), (e), and (f), which concerned labor, native inhabitants, trade and communications, and health, respectively. These paragraphs of Article 23 stipulated that the governments would "endeavour" or "undertake" to do certain things; while, according to paragraphs (c) and (d), relating to dangerous drugs and arms traffic, the governments would "entrust the League" to do certain things. For (a), (b), (e) and (f), the Assembly agreed, the responsibility of the governments represented at the Assembly, being external to the Assembly, cannot be engaged. The action of the Assembly should accordingly take the form of a recom

23 Jean Ray, Commentaire du Pacte de la Société des Nations selon la politique et la jurisprudence des organes de la Société (Paris: Librairie du Recueil Sirey (Société anonyme), 1930), p. 650.

24 Hence the qualification introduced into the United Nations Charter that the open door must be "without prejudice" to native interests (Article 76(d)); and the abandonment in Article 84 of the non-fortification provision of the Covenant.

25 Ob. cit., p. 247.