Contemporary Documents Supplement to the “jewish Daily Bulletin”

Editor’s Note:–The “Jewish Daily Bulletin” will publish from time to time the full text of important documents marking decisions by governments, courts or influential institution on vital questions affecting the life of the Jew. The institution of this department in the “Jewish Daily Bulletin” has been found necessary in view of the fact that many of its readers desire to have for reference the complete text of such documents in addition to the current news reports. The “Jewish Daily Bulletin” will take particular care, in addition to the short news item, which is received by cable or telegram to secure the ‘complete text of important documents for the convenience of its readers.

While the Jews of the United States can do much to improve the economic status of their brethren overseas, our work would not be of much avail unless the political and economic conditions of the various countries became secure, declares the annual report of the Executive Committee of the American Jewish Committee, presented at the Nineteenth Annual Meeting of that body on Nov. 8. 1925, and just published in book form. The treaties and agreements arrived at recently at Locarno between the principal European powers are a happy augury for a period of continued peace on that continent, and a potent factor in removing political insecurity and economic instability, two forces which are among the most active causes of racial strife and religious intolerance. The opening of a new era of international tranquility should also tend to the more speedy and amicable solution of those problems, which the so-called minority clauses in the various peace treaties aimed to settle. Such problems are arising continually and are brought to the attention of the League of Nations in accordance with a clause in the treaties that “the stipulations (of the treaties) so far as they affect persons be-longing to racial, religions, or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations.”

The President of the Committee spent a month in Geneva during the past summer, and there made a full and intensive study of the operation of the several minority treaties, of the various complaints relating to alleged infractions of their provisions, which have been referred to the Council of the League and its committees, the action taken thereon by the Council and in such cases as have been brought to the attention of the Permanent Court of International Justice, and the procedure followed by the League and by the Permanent Court in relation to these questions.

Before leaving Geneva, Mr. Marshall submitted to the Secretariat the following memorandum:

“After devoting a month’s careful study to the working of the Minority Treaties and their application by the Council of the League of Nations and by the Permanent Court of International Justice, as one largely concerned in framing and advocating the adoption of these Treaties, it is for me a pleasant duty to express my appreciation of what has been done and the belief that the Treaties are receiving that sympathetic consideration which is destined to make of them the medium for securing a better understanding among the peoples of the various nations to which they relate.

“The Treaties are not looked upon as more paper promises. They have become living organisms. It is doubtless true that while much remains to be done to raise them to the highest level of efficiency, they mark a great forward stride. What has been accomplished is an earnest of what will eventually be achieved.

“I am conscious of all the difficulties to be overcome. They will vanish in the face of a firm determination to obviate the abuses which the Treaties were designed to cure.

“In the administration of the sacred trust reposed by their terms upon the Council of the League of Nations much depends upon procedure. It is gratifying to note that that which has thus far been evolved is well calculated to simplify the effectuation of the Treaties in accordance with their real essence.

“It is, of course, evident that this procedure is in a sense tentative. Experience seems to show that in the interests of justice it may be improved in some respects. I am confident that it will not be taken amiss if I venture to suggest at least one particular in which the present regulations adopted by the Council and acted on by the Assembly may be extended and made more searching. It has necessarily been provided in order to carry out the spirit of the Treaties, that any of the minorities affected may lodge with the Secretariat of the League a petition setting forth an actual or threatened breach of a right conferred upon or guaranteed to the members of such minorities. The Secretariat communicates the petition to the Government affected, and the latter may within a time fixed submit its answer to the complaint made. The petition and answer are then council, which determines whether or not these documents are to be dealt with by the Council itself. At the hearings before the Committee and the Council the Government against which complaint is made is permitted to appear by its representatives and to supplement its written answer by oral arguments and additional statements as to the charge made.

“As a lawyer, it seems to me that in accordance with the fundamental rule applicable to all juridical or quasi juridical proceedings, and especially such as are determinative of rights secured by an instrument like a constitution or a treaty, no one of those concerned in the ultimate decision of a controversy which is the subject-matter of a proceeding shall be placed at a disadvantage in the presentation of the case. Hence an opportunity to be heard in respect to the merits of the controversy is equally essential to the petitioner and to the Government against which complaint has been made. That is the necessary implication derivable from the terms of the Minority Treaties. Under the existing procedure no opportunity is given to the petitioners on reply to the answer of the Government, or to submit their contentions to the Committee of Three or to the Council in the sense that the Government is enabled to do so.

“The Government may either (1) deny the allegations of the petitioners, or (2) plead by confession and avoidance, that is, admit the truth of the allegations but contend that in law and in fact the petitioners are not entitled to relief because of other facts that may be pleaded, or (3) set forth an entirely independent state of facts, or (4) contend that the Council does not possess jurisdiction to consider the petition.

“Whatever the nature of the Government’s answer may be and it may partake of all of these elements, there is no provision that the petitioners shall (a) be informed of the terms of the answer, or (b) be permitted to reply to it and indicate wherein they agree or disagree with the Government’s contentions as to the law or the facts advanced by it, or (c) as to the conclusion reached by the Committee or the Council.

“It may be that the allegations of the Government are inaccurate or that they are made under a mistaken conception of the actual facts. It may be that the petitioners are able to explain satisfactorily the allegations of the Government’s answer or to present the issues of law or of fact in such form as to elucidate fully their position. Yet the present procedure entirely eliminates the petitioners as soon as their petition has been filed in the Secretariat. Where the welfare of millions of human beings and the peace of nations may be at stake, it would appear not only desirable, but in the interest of complete justice, that the petitioners, who presumably are better acquainted with the facts than any third party can possibly be in what has become a controversy which may affect their most precious interests, should at least be kept informed of that fate of their petition and be enabled to communicate freely to the Committee and the Council such facts and arguments as are germane to the answer submitted by the Government. Otherwise it is easy to conceive that in many instances serious abuses sought to be remedied may be perpetuated and the spirit of the Treaties entirely evaded or disregarded.

“I fully recognize the fact that these complaints are made against Sovereign States, and that nothing should be done to impair their dignity or to wound their sensibilities. But it must be remembered that it is the object of these Treaties to protect minorities against an invasion of the rights guaranteed to them by the sovereign states of which they are citizens. The several States executing the Minority Treaties or making declarations in acceptance of their provisions entered into covenants unchangeable by their own law or acts, which inure to the benefit of the individuals constituting the racial, linguistic or religious minorities sought to be protected. That is demonstrated by the opinions of the Permanent Court of International Justice in the German Settlers and the Polish Citizenship Cases.

“It must have been contemplated by the nations entering into these treaties, when they made their observance a matter of international concern and placed them under the guarantee of the League of Nations, that by doing so they waived pro tanto the sovereign power of disregarding complaints of those of their nationals who come within the purview of the Minority Treaties, as to the non-observance of their provisions. On the contrary, these nations consented that cognizance might be taken of such complaints. They surely did not give with one hand and take away with the other when the executed these solemn instruments. It was not within their competence to do so.

“It will not be claimed that it was contemplated that the statements contained in the answers submitted by any of these Governments to a document presented on behalf of petitioners complaining of a breach of a treaty guaranteed by the League, were to be conclusive and might not be controverted. If so, these Treaties would merely be words of promise to the ear to be broken in their fulfillment.

“It is likewise to be considered that when the Treaties were placed under the guarantee of the League, the guarantor’s obligation involved the ascertainment by it of all facts bearing upon an alleged breach of their provisions, not merely those set forth in the complaints of the minorities and the answer of the Government, but any facts which the minorities might in an orderly manner bring for-ward by way of reply to the answers.

“When a State appears before a tribunal such as the Council of the League or the Permanent Court of International Justice, it is subject to the same rules as is a private person under like circumstances. In the Federal and State jurisprudence of the United States, the Government proceeded against, once it has consented that complaints against it may be prosecuted by its citizens before designated tribunals, is treated like any other litigant, and its answer may be controverted like that of an individual defendant. A petitioner enjoys exactly the same opportunities as does the Government in the presentation of the case. The reason is obvious. That same reason applies where complaint is made of a breach, actual or threatened, of any of the Minority Treaties.

“Without now seeking to elaborate these comments, it is my opinion that the extension of the procedure to complaints arising under the Treaties in the direction indicated would give such effect to their true meaning and intent as will carry out their beneficent purposes,” the memorandum declared.

Few complaints of denial of the so-called “Minority rights” have been registered by or on behalf of Jews. A number of cases involving other minorities have, however, been acted upon by the Council of the League of Nations, or by the Secretariat with satisfactory results. In two instances the Council submitted the records to the Permanent Court of International Justice for advisory opinions. That great tribunal was called upon in the course of the opinions rendered to interpret the minority treaties. No judicial tribunal in history has surpassed these utterances in elevation of thought and true statesmanship, the report of the Executive Committee states.