Interpretation of art 3 para 2 of the treaty of Lausanne (frontier dispute between Iraq and Turkey)

The treaty of Lausanne provided in art 3 that the frontier between Turkey and Iraq should be laid down in friendly arrangement between Turkey and GB, the latter as mandatory for Iraq, within a period of 9 months, if failure the matter would be referred to the council of LN and that the ‘final fate’ (of the boundary) would ‘depend upon its (Council) decision’. The time elapsed and it was not an arrangement. GB put the question in the agenda of the council of the LN, to deal with the matter, but a preliminary question arose in the legal interpretation. The PCIJ was asked: What is the characteristic of the decision to be taken by the council in virtue of art 3 of TL, is it an arbitral award, a recommendation or a simple mediation? May the decision be unanimous or may it be taken by a majority? May the representatives of the interested parties take part in the vote?

[Referring to the nature of the Council’s decision] a common conception of arbitration is that which has for object the settlement of differences between the states by judges of their own choice and on the basis of respect for law (art 37 Hague convention 1907). It appears, in fact, that according to the arguments put forward on both sides before the Council, the settlement of the dispute in question depends, at all events for the most part, on consideration not of a legal character; moreover, it is impossible, properly speaking to regard the Council acting in its capacity of an organ of the LN as a tribunal or arbitrators Conclusions: The decision will be binding on the parties and will constitute a definitive determination of the frontier The ‘decision’ must be taken by a unanimous vote, the representatives of the parties taking part in the voting, but their votes not being counted in ascertaining whether there is unanimity