Fate Of The Pacific Mandates

Legalistic Claim That They Must be Absorbed in Existing Empires—And its Refutation

suggestion, frequently put forward 1 in the “PIM,” that the Pacific Mandated Territories must go into the melting-pot at the end of the war, so that their status and constitution may he re-defined, is opposed vigorously by Mr. P. W. Glover, BSc., ERAS, of Apia, Western Samoa, who has devoted much study and research to the subject, and writes with considerable authority.

Mr. GlovePs letter is lengthy; but it has been printed with little reduction, because it will have value when the war is over, and these matters come forward for serious discussion.

But, as it makes claims which we be lieve to be unsound and dangerous, we have taken the liberty of presenting

another viewpoint.

A MANDATE is a moral obligation assumed by a sovereign State to govern, according to certain defined principles, the territory which it acquired by conquest, treaty, capitulation, grant, or other lawful means at the termination of the war with Germany in 1918. That is all.

It is commonly believed that the man dates constitute a limitation on sove reignty, but this is not so. This belief is strange, for the position has been made clear and put beyond all doubt by the Rt. Hon. Mr. L. S. Amery, in “The Ger man Colonial Claim”; and surely there is no one more qualified than he to explain this. I quote from pages 105 to 107.

“The League had nothing to do with the actual allocation of the territories. It did not even frame the mandates themselves, which were drawn up by the individual Allies, after consultation and agreement among themselves as to their general terms, and were then accepted by the League. A mandate constituted, on the one hand, a solemn undertaking on the part of the Mandatory Power to govern on certain lines, and, on the other, the blessing or moral authority of the League in favour of the retention of the territory already decided be tween the Allies. It differed only in detail and degree, and not in kind from any other obli gation registered with the League, such, for instance, as the Treaty of St. Germain. ...

The mandates have thus nothing to do with the sovereignty of the territories in question. The idea vaguely entertained in many quarters that these territories belong in some sense to the League and are only held on a kind of tenancy, subject to good behaviour, and transferable on the authority of the League, has no foundation whatever in fact. . . . What is certain is that, on the one hand, the division among the Allies was intended to be outright and permanent, and that, on the other hand, the United States, though not joining the League or ratifying the Treaty of Versailles, have insisted on a series of conventions with the Mandatory Powers that the terms of the mandates cannot be varied without American consent. . . . The Anglo- American mutual obligation in respect of these territories is, in fact, both antecedent and superior to any British obligation to the League. ...”

For Germany, the operative clause of the Treaty of Versailles was Article 119: “Germany renounces in favour of the principal Allied and Associated Powers all her rights and titles over her overseas possessions.” It was an absolute and unconditional surrender.

THE fact that Germany called all her overseas possessions Protectorates (Schutzgebiete) has led many people into the fallacy that the Allied and Asso ciated Powers were not in a position to pass on the complete sovereignty of those territories to those to whom they were distributed at the Peace Conference,

This thesis has been advanced with a good deal of pertinacity in regard to Samoa, but is without foundation in fact.

The position was explained long before the last war in Hall “On International Law,” at page 134 (footnote) wherein it was explained that German law provided for the so-called Protectorates an elabor ate organisation based on the unrestricted sovereignty of the Emperor, and pointed out that German Protectorates were only intended to be Protectorates in name.

As the second article of the (Imperial) German Constitution enumerated the territories of the German Empire, a legis lative enactment amending the Consti tution would have been necessary every time a Colony was added; that would have been not only inconvenient but constitutionally undesirable, so the expe dient was adopted of calling all the pos sessions Protectorates, despite their true colonial status. Undoubtedly, it was the intention ultimately to rectify the posi tion by one amendment, when Germany regarded her colonial expansion as rea sonably complete.

In the particular case of Samoa, I would quote the speech of Dr. Solf at the hoisting of the German flag on March 1, 1900 (translated from the German ver sion reported in the Samoa “Weekly Herald” of March 3, 1900): “Now, by command of His Majesty the Emperor, I declare these islands to be German territory; and as a sign of Ger man sovereignty there must henceforth wave over these islands the German flag which I have received from the appointed representative of the Reich and, assisted by the Commander of SMS ‘Cormoran,’ solemnly hoist.”

Ten years later, on March 1, 1910. Gov ernor Solf, in an address to the Samoans, said (I quote the version printed in “The NZ Samoa Guardian” of January 19, 1933 —Vol. V, No. 116, at page 4) ; “Samoans, do not listen to the wild talk in the streets, and the misleading remarks of some people: such as the idea that the authority of the Kaiser in Samoa is only for 10 years. That is a wrong idea; the Kaiser’s authority over Samoa shall remain for ever.”

The point of all this is that Germany acquired and exercised complete sove reignty, both internal and external; and that sovereignty must, in common-sense, be presumed to have passed to the Brit ish Crown, along with the territory itself.

The same type of argument applies to all the other former German overseas possessions.

In any case, the above argument, based on the alleged protectorate status of Samoa, is of no more than academic interest, for in practice a Protectorate is only a reservation for future annexation, or more rarely, to keep someone else out.

As Hall puts it (“On International Law,” at page 133): “Indeed, protection must be looked upon merely as a transitional form of relation between civilized and uncivi lized states, destined, in course of time, to develop and harden into effective sovereignty.”

Doubts have been raised in some quar ters about the right of Germany to assume the complete sovereignty of Samoa, and in support of that thesis, argument has been advanced based on the fact that the assent of Samoa was sought and obtained in the Final Act of the Berlin Conference on Samoan Affairs of 1889. But if we examine that Act, we

find that Article VIII gave the three Powers the exclusive right of amending the Act —and amending includes, of course, cancelling—without reference to Samoa: “The provisions of this Act shall continue in force until changed by the three Powers.’’ And Samoa assented to that: so the three Powers were perfectly within their rights when, by Article I of the Samoa Tripartite Convention of December, 1899, they annulled the Gen eral Act of the Berlin Conference and all previous treaties, conventions, and agreements, rE authority of New Zealand to gov ern Samoa does not derive from the League of Nations, nor yet from the Mandate: but from the Western Samoa Order in Council (Imperial) of March 11, 1920 (see the New Zealand “Gazette” of 1920, at page 1,819 for the text); and that Order was made, not bn the authority of the League, but under an Imperial Act of Parliament—the Foreign Jurisdiction Act, 1890.

It will be noted that the Order in Council which gave to New Zealand the full power to legislate for the peace, order, and good government of the Ter ritory of Western Samoa, antedated the Mandate by nine months, for the latter document was not registered with the League until December 17, 1920.

The only restriction on New Zealand’s jurisdiction in Samoa appears to be that contained in the Order in Council which reserves to His Majesty the right to revoke, alter, add to, or amend the Order; but it is unlikely that the Im perial Government would ever interfere, except for the most urgent and serious reasons of State, and then only in full consultation with and by consent of the New Zealand legislature.

Undoubtedly, like considerations apply in respect of all other territories man dated to the British Crown; so there does not appear to be much relevant objec tion to speaking of “Australian New Guinea”: and, for that matter, “British Samoa” would be a preferable and more accurate designation for “Western Samoa.” This would leave no doubt as to the true status of the territory involved.

Apart from these things, Samoa was to New Zealand for half a century a terra irredenta with much justification; and, in the same way, New Guinea stood in an identical relation to Australia. The territories were legitimately acquired, complete with full sovereignty, during the last war, and have, in fact, been con firmed to the Dominions in question.

The time has come when those facts should be given greater publicity by amending the names of the territories in conformity with their actual status.

SUCH action would have the effect of removing all doubts, and of putting an end to much confused thinking and fallacious and unprofitable argu ments which react to the detriment of the material and spiritual progress of those recently-acquired portions of our Empire. For they are British territory, and no foreign power has any right whatsoever in international law to claim jurisdiction in them.

As for the Japanese possessions in the Pacific, such as the Carolines and Mar shalls, they will fall as the fruits of con quest to one or more of the present Allied Powers —and internationally it does not matter very much which.

Apart from the Japanese possessions, the status quo ante, as it existed in the Pacific before the outbreak of this war. must be restored and maintained —unless, of course, the rules of international law are to be flagrantly disregarded: but are

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we not fighting for the preservation of those rules? Moreover, the Allied Pow ers are not waging war against their common enemies for the purpose of annexing one another’s Pacific terri

tories: that would be nonsense.

I am, etc.,

P. W. Glover, Bsc, Fras.

Apia, Samoa, Nov. 27, 1943.