The Treaty of Versailles: The Erosion of the Right of Self-Determination?

The territorial arrangements pursued under the Treaty of Versailles concluded between the Allied and Associated Powers and Germany in 1919 were often the subject of a prior plebiscite organised under the auspices of the League of Nations. Accordingly, due to the pressures of the American and British delegation at the Paris Peace Conference, the Wilsonian imperative of self-determination transferred the final decision on the future destiny of peoples from the negotiating parties at diplomatic conferences into the hands of the peoples directly concerned. (Whelan Reference Whelan1994, 100-101). The wishes of the inhabitants of border regions in particular would have to be honoured in order to legitimize territorial rapprochement from one place to another. While self-determination was a tool for national unification processes, such as in Germany or Italy, within the post-conflict context, the choice for consulting the peoples’ will in those border regions was not evident. Grievances amongst the mixed ethnic, religious and/or national communities could run deep and be aroused by extremist nationalist feelings pulling inhabitants into different territories rendering the outcome of a plebiscite inconclusive – not only for present but also for future generations (Visuvanathan 1989, 35). For those reasons, plebiscites have not been universally applied, such as in the case of the districts of Eupen and Malmedy.

In this regard, Article 34 of the Treaty of Versailles stipulated that Germany would renounce its sovereignty over the districts of Eupen and Malmedy.Footnote ⁸ The transfer of sovereignty would be final after the League of Nations endorsed the outcome of a popular consultation of its inhabitants as organised by the transitional Belgian authorities.Footnote ⁹ The latter consultation differs from a traditional plebiscite where voting is secret. In the present case, the transitional Belgian authorities in these districts had to open within a six month’s period after the entry into force of the Treaty registers which openly recorded the express wish of those eligible inhabitants (A.R.H. 1921, 51). Furthermore, unlike a traditional plebiscite, no choice was offered regarding the question of the transfer of sovereignty. Only an expression of disapproval against the transfer of sovereignty from Germany to Belgium could be recorded: only the wishes of those who preferred to stay in whole or in part under German rule mattered; not the wish to voluntarily join Belgium.Footnote ¹⁰ As opposed to the other plebiscites which were normally organised by the League of Nations, it were the Belgian authorities that would do this in those districts and communicate the “results of this public expression of opinion” to the League of Nations who would take a final decision on the matter of the transfer of sovereignty.Footnote ¹¹

Historically too, the inhabitants of this particular border region never had the chance either to freely decide upon their national destiny. Following the Napoleonic wars, the Vienna Congress which redrew the map of Europe awarded these territories to the Prussian Empire as a compensation for the renunciation of its claims over Saxony – in its eastern neighbourhood (George Reference George1927, 332). They were annexed by the Prussian Empire without consulting the peoples of its new western border region (Langohr Reference Langohr1920, 5). More than a century later, after the final transfer of sovereignty over those territories from Germany to Belgium, secret negotiations conducted by Belgium and Germany about the latter’s offer to purchase these districts back were undermined by France who objected to any change to such territorial arrangement under the Treaty of Versailles (Grathwol Reference Grathwol1975, 222). It was clear that, in 1815 as well as in 1919 and afterwards, territorial arrangements between sovereigns would prevail and sustain despite the emergence of the Wilsonian right of self-determination of peoples which sought to change such Grosse Politik (George Reference George1927, 335; Wilson Reference Wilson1917).

Belgium was well aware about the risk of misappropriating the right of self-determination for aggressive purposes especially on behalf of Germany in the past, then and for the future. If irredentist peoples of German descent outside of Germany would contest their foreign rulers, Germany would have an excuse to come to their rescue. The reasons for the absence of a traditional plebiscite for the inhabitants of the districts of Eupen and Malmedy under the Treaty of Versailles, however, must also be seen in light of Belgium’s own territorial ambitions and anxieties during and after the First World War (Palo Reference Palo1980, 596). By 1916, for security reasons, Belgium wanted to expand its territories eastwards to the districts of Eupen and Malmedy. Indeed, in the district of Malmedy, a German military encampment was located in Elsenborn and a security buffer would have to be set up accordingly. Internally too, Belgium was fearful that self-determination at its borders and beyond would incite Flemish nationalists to claim separation from the unitary Belgian state (Palo Reference Palo1980, 596). Such expansionist ambitions (Majerus Reference Majerus, Tollebeek and Beulens2008, 349-359) – not limited to the European context (Reeves Reference Reeves1909, 100) – would consolidate Belgium’s territorial unity and tame nationalistic threats within.

Territorial concessions would be the right way for Belgium to frame its territorial ambitions rather than openly put them so on the bargaining table. In this regard, the martyr nation deserved to be compensated for the tremendous losses suffered during the war and be able to restore its broken nation after it (Brüll Reference Brüll and Stangherlin2005, 25). As a victim of its neighbouring aggressor state, this would be the least thing that could be done.Footnote ¹² Historical reunion of these territories with Belgium would also be restored because they were once separated since the Vienna Congress. One could presume that the peoples of those territories wanted to return to Belgium – especially the irredentist French-speaking minority in the communes of Malmedy and Waimes – unless, of course, they desired to stay under German rule.Footnote ¹³ Others contested these historical and cultural arguments for reunification. In this respect, those territories could not have been separated from Belgium since it only existed since 1830. Historically, the different districts of the border region belonged to different political and religious entities. Furthermore, Prussian Walloons were culturally and linguistically different from the Belgian Walloons and had little in common (Dawson Reference Dawson1933, 329-330; Warny Reference Warny2012, 10).

Irrespective of the reasons and arguments for transferring sovereignty over these districts from Germany to Belgium, Article 34 of the Treaty of Versailles was crystal-clear about the conditionalities of such transfer: since Germany renounced “in favour of Belgium all rights and title over the territory comprising the whole of the Kreise of Eupen and of Malmedy”, Belgium had full sovereignty over these territories from the moment that the Treaty of Versailles entered into force, i.e. from 10 January 1920. The final transfer of sovereignty was subject to one condition, namely the endorsement of the results by the League of Nations following the popular consultation of its inhabitants as organised by the transitional Belgian authorities. Yet, this condition was restrictive in the sense that the exercise of sovereignty on behalf of Belgium over those territories from 10 January 1920 onwards until the decision of the League of Nations on 10 July 1920 could only be revoked if the outcome of the popular consultation would prove to voice a majority opinion to stay under German rule. In the present case, this condition was not fulfilled since only 271 votes against the transfer have been recorded (O’Connell Reference O’Connell2011, 169). The decision of 10 July 1920 adopted by the Council of the League of Nations retroactively endorsed the final transfer of sovereignty over those territories.

The use of such resolutory condition to the transfer of sovereignty was quite unique and probably without any precedent under international law. A resolutory condition had its origins in domestic civil law where contracting parties could create legal obligations from the beginning, but which could be revoked or lead to their annulment when a particular event occurred as described in the contract. By analogy, such event could materialise in the context of treaty obligations. Indeed, under the doctrine of the sources of international law, general principles of law recognized within domestic jurisdictions can constitute an independent source of international law that can govern the relationship between states (Costelloe Reference Costelloe, Andenas, Fitzmaurice, Tanzi and Wouters2019, 177). To extend such resolutory condition to the relationship governing states and their own and other peoples was rather innovative. Yet, since it was included in a treaty, it became less relevant to consider this condition as a general principle of law.

As Germany fully renounced its rights and title over the said districts in favour of Belgium, a majority of its inhabitants calling for the return of sovereignty to Germany could alter this transfer and thus annul the transfer of sovereign rights of Belgium over those territories. Absent the realisation of this event, the resolutory condition under the Treaty of Versailles was not satisfied and, thus, could not alter the transfer which then became definitive when the Council of the League of Nations endorsed the results and communicated its decision to the parties concerned by this transfer (Jousten Reference Jousten2021, 168). In effect, such resolutory condition limited the right of self-determination of the inhabitants which was not the supreme law in governing the transfer of this particular territory under the Treaty of Versailles (Nisot Reference Nisot1921, 834).

Germany, on the other hand, had contested such reading of Article 34 of the Treaty of Versailles before and during the organisation of the popular consultation at the Peace Conference and to the Council of Ambassadors. It argued that Article 34 violated the principle of self-determination and that the popular consultation had to be organised by a disinterested party, such as the League of Nations itself. Though it assured that such revision would not undermine the principal clause of Article 34, i.e. the transfer of sovereignty, its execution, however, had to be carried out in light of the interest of the peoples of those territories concerned (van Werveke Reference van Werveke1920, 242).Footnote ¹⁴ In other words, for Germany, the transfer of sovereignty was conditioned on the exercise of the right of self-determination of those inhabitants. As a result, the transfer of sovereignty could not have been the object of a negotiated territorial arrangement between two nations through a treaty but be suspended until the majority of the inhabitants made clear that they opposed Belgian rule. From the German perspective, a suspensive rather than a resolutory condition was the modality to execute the Treaty of Versailles in light of the prevailing Wilsonian principles. According to Belgium, however, such an interpretation only raised further suspicion on the potential risk for future aggressionist policies on behalf of Germany to protect German irredentist people under foreign rule, in particular the German-speaking persons in the districts of Eupen and Malmedy.

Within the context of the conclusion of international treaties, the right of self-determination conditions the object and purpose of such treaties. In accordance with the law on treaties, a treaty cannot undermine the people’s right of self-determination – a so-called peremptory or jus cogens norm.Footnote ¹⁵ Treaties that violate such a jus cogens norm would be null and void and not resort their legal consequences, including the transfer of sovereignty in accordance with such a resolutory condition. Conversely, a suspensory condition to such transfer of sovereignty would uphold the right of self-determination. It is questionable whether such rule on the law of treaties was a customary rule at the conclusion of the Treaty of Versailles. The Vienna Convention on the Law of Treaties adopted in 1969 itself did not elaborate on the examples of jus cogens norms that limit the freedom of negotiating parties to conclude a treaty. Nonetheless, according to Zemanek, territorial changes in the aftermath of the First World War showed proof that the object of international treaties would have to take into account the wishes of the inhabitants of the territories concerned. Their consent to the transfer of sovereignty over territory was already present in secret agreements concluded between allies of the US prior to the adoption of the Treaty of Versailles (Zemanek Reference Zemanek and Cannizzaro2011, 381).

Yet, not all territorial changes under the Treaty of Versailles were conditioned on the organisation of plebiscite whereby the final transfer of sovereignty was decided by the affected populations (Mattern Reference Mattern1920). This questions the legal character of the right of self-determination as a jus cogens norm when the Treaty of Versailles was negotiated and concluded as opposed to when the Vienna Convention on the Law of Treaties was adopted (International Law Commission 1963, 199 and 2001, 85). Was the elucidation of the Wilsonian principle of self-determination a rule of customary international law at that time or merely an emerging norm? Its divergent application within the European context and in the colonial territories rather shows proof of the latter progressive development of international law.Footnote ¹⁶ In spite of the absence of a uniform practice at the global level, within the regional context of Europe, too, the modalities of all territorial changes would have to be conditioned on plebiscites if one were to acknowledge the existence of a customary right of self-determination at least of the peoples of Europe – which was probably not the case.

Furthermore, absent such uniform practice on the consent of the affected population to territorial changes governed under the Treaty of Versailles, this also challenges the existence of the rule rendering a treaty that violates the right of self-determination null and void. Although no uniform practice as such may be needed to establish the existence of such rule, within the same diplomatic context of the negotiation on the object of the Treaty of Versailles, such uniformity would be required if one considers the legal consequences of nullity and voidness which apply to the entire treaty (Schmalenbach Reference Schmalenbach, Dörr and Schmalenbach2018, 991). As a result, the invalidity of the Treaty of Versailles would be absolute. Pursuant to the principle of the integrity of a treaty to invalidate the latter,Footnote ¹⁷ none of the provisions of the Treaty of Versailles – even those which respect the right of self-determination (at least of European peoples if one assumes the regional customary nature of this right) – would not resort their legal effect; thus, opening Pandora’s box where all territorial changes could be challenged even in those lands that have been the object of a plebiscite.

Although state parties of the Treaty of Versailles decided to govern all matters of territorial changes under the same Part III on Political Clauses for Europe, an exception to the integrity of this Part III could be invoked if provisions could have been regulated separately; meaning that not all provisions would have been null and void, yet only those which would conflict with a jus cogens norm.Footnote ¹⁸ In this regard, territorial changes that were effectuated by a plebiscite could survive the challenges of other treaty provisions conflicting with the right of self-determination. It would be unjust to the inhabitants of the territories where plebiscites were properly organised if the entire Treaty of Versailles would be invalidated.Footnote ¹⁹ Moreover, not all state parties to the Treaty of Versailles would want to challenge its validity entirely.Footnote ²⁰ The separation of Article 34 of the Treaty of Versailles under this reading may not prejudice the existence of the customary right of self-determination of European peoples as such nor question the existence of the rule and its modalities invalidating a treaty (provision) which violates such right of self-determination. It may, according to Oppenheim, simply point out that international law did not impose an obligation to condition every territorial change to a plebiscite (Lauterpacht Reference Lauterpacht1955, 551-552).

Fraudulent Popular Consultation: La Petit Farce Belge?

The divergent interpretations regarding the conditionality of the transfer of sovereignty from Germany to Belgium over the districts of Eupen and Malmedy attribute different purposes to the popular consultation of its inhabitants. On the one hand, a liberal reading of Article 34 of the Treaty of Versailles would condition the transfer of sovereignty to a suspensive condition that would take the form of a plebiscite – leaving the inhabitants the actual choice to stay with Germany or join Belgium. On the other hand, a conservative reading – also the one initially adopted by Germany since it accepted to renounce its sovereignty over the said territories from the beginning – conditions the transfer to a resolutory condition taking the form of a simple popular consultation. This only left inhabitants the option to protest against the transfer of sovereignty which has already been effective yet not definitive when the Treaty of Versailles entered into force.

The option chosen under the Treaty of Versailles did not include a plebiscite but a popular consultation excluding a choice for or against the transfer. The consultation through open registers was not secret nor carried out under the auspices of a third party such as the League of Nations (O’Connell Reference O’Connell2018, 132). Strictly speaking, the absence of choice itself does not affect the satisfaction of a resolutory condition on the transfer of sovereignty. In accordance with the Treaty of Versailles, sovereignty over those territories was already exercised on behalf of Belgium. As a result, there would be only one choice left for the inhabitants faced with this fait accompli. That is to say, they could express their disapproval against the transfer rather than endorse the transfer that had already taken place in order to potentially reverse it. The popular consultation would record their opposition rather than their approval of the present transfer of sovereignty already fixed by the negotiating parties to the Treaty of Versailles. Surely, from the point of view of the right of self-determination this could potentially be contested. Yet, Germany protested on the modalities of this conditionality hoping that a plebiscite instead of popular consultation would be the right instrument to determine the final transfer of sovereignty.

In this regard, Germany, on several occasions – prior and after the entry into force of the Treaty of Versailles – questioned the impartiality of Belgium as an interested party to organise the popular consultation under its auspices. It wanted to revisit the role which Belgium had been assigned in accordance with Article 34 of the Treaty of Versailles. Therefore, the execution of this article on the matter of the organisation of the popular consultation should become the object of additional negotiations in order to give full effect to the interests of the inhabitants and their respective right of self-determination (van Werveke Reference van Werveke1920, 241). Nonetheless, in accordance with the Treaty of Versailles, the Belgian authorities had already assumed full sovereignty over those territories prior to the start of the popular consultation due to start from the moment when the Treaty of Versailles had entered into force, i.e. on 10 January 1920.Footnote ²¹ On the basis of those sovereign rights, Belgium fixed the modalities of the popular consultation which was carried under its auspices rather than under those of a third – disinterested – party such as the League of Nations.Footnote ²² Belgian authorities were believed to be entitled and capable to independently open registers for the inhabitants to express their disapproval of the transfer of sovereignty (Poulain Reference Poulain1977, 394). They were also the only authorities who de facto exercised control over those territories where the popular consultation would take place. In this regard, since the adoption of the Belgian law of 15 September 1919, the transitional government was established in these annexed territories and would be in charge of the modalities and organisation of the popular consultation (O’Connell Reference O’Connell2013, 26).

During and after the popular consultation, Germany voiced its concerns at the Peace Conference in Paris regarding the arbitrary way by which the registration of disapproval by the inhabitants of the districts of Eupen and Malmedy was carried out by the transitional Belgian authorities. It challenged the decree of 26 January 1920 adopted by the latter authorities – 3 days after the public registers were opened – on various counts.Footnote ²³ Firstly, the decree did not specify the required identification documents in order to express one’s disapproval. On the ground too, uncertainty worsened given the absence of clear or even presence of contradictory information causing confusion amongst the population and delays to register one’s disapproval. Secondly, the eligibility criteria established by Article 1 of the decree were said to be arbitrary in terms of age (21 years) and the date of a registered domicile (1 August 1914, i.e. around the beginning of the First World War). For Germany, anyone aged 20 years at the moment when the Treaty of Versailles had entered into force or before the conclusion of the consultation should be eligible to register.Footnote ²⁴ The required domicile should be fixed from 11 November 1918 onwards (Armistice Day) in order to allow residents to return after the war. Thirdly, according to Article 2 of the decree, registration was only made available in the two major cities of the districts, namely Eupen and Malmedy making it “technically impossible” to travel for hours to register. Therefore, Germany argued that registers should (have) be(en) opened in every townhall. Fourthly, since the disapproval of the transfer of sovereignty concerned the whole or parts of the territory, the eligible voters should have been able to register in both districts – thus, permitting several voting possibilities.

Upon the closure of the public registers on 23 July 1920, 271 protest votes out of 33726 eligible voters have been recorded. 202 of them were coming from former German officials of the districts. Only 62 persons registered in the greater district of Malmedy and 209 in the smaller one of Eupen (George Reference George1927, 334). Such small outcome challenged the neutrality of the transitional Belgian authorities and the conditions under which such popular consultation could freely take place (Brüll Reference Brüll2022). International and national press reports as well as domestic protests of the local population and Belgian political representatives denounced the deceit by which such transfer of sovereignty has been effectuated, namely through intimidation and terrorism of the peoples of these annexed districts (Bartz Reference Bartz1928, 95).Footnote ²⁵ Dissuasion to register one’s disapproval was inherently present in the open registration process where one’s name on the record eventually marked one’s enmity vis-à-vis Belgium. Threats to lose one’s job, food tickets, and import-export licences were commonly uttered by the transitional Belgian authorities which added up to the dissuasive effect of the popular consultation (Dawson Reference Dawson1933, 335-336). Intimidation on the spot of those who made it at the two registration offices were also reported (O’Connell Reference O’Connell2013, 26). The public debate was equally stifled: public demonstrations against the voting conditions were prohibited with penalties of imprisonment and large fines as well as German newspapers were censored and repressed (Dawson Reference Dawson1933, 335-336).

Frightening the population in general and the eligible voters in particular into silence was characteristic of the modus operandi of the Royal High Commissioner of the transitional Belgian authorities, Lieutenant-General Herman Baltia, who “enjoyed the most potent form of autocratic power in Europe” (O’Connell Reference O’Connell2011, 169) even at a time when democratic rights in Belgium were in their infancy. From 1919, universal suffrage only applied to male citizens over 21 years.Footnote ²⁶ Despite those progressive reforms, national sovereignty was yet to be coupled with a representative regime (Maes, Deseure and Van Crombrugge Reference Maes and Deseure2020, 200).Footnote ²⁷ According to Article 25 of the Belgian constitution at that moment “all the powers emanate from the nation” rather than its peoples. From such point of view, any form of voting – general elections, popular consultation, plebiscite or referendum alike – would not give the nation state its legitimacy to exercise its powers.

Unsurprisingly, the language in the decree of 26 January 1920 adopted by Baltia made the modalities of the popular vote superfluous to the transfer of sovereignty: “The Royal High Commissioner, Governor of the Territories reunited with Belgium decrees that…” As a result, the reunification of Belgium was, from the Belgian constitutional perspective, an undisputed fact.Footnote ²⁸ The decree’s retroactive application – from the moment of the entry into force of the Treaty of Versailles on 20 January 1920 – further stressed the redundancy of the popular consultation in the districts. Moreover, the powers of Baltia within the new Belgian territories could be exercised if the Belgian Parliament fixed the new border between Belgium and Germany as defined in the Treaty of Versailles in the first place.Footnote ²⁹ In accordance with the Belgian constitution,Footnote ³⁰ any changes to the territory of Belgium – even through annexation – requires prior legislative action on behalf of the Parliament. Accordingly, on 15 September 1919, the Parliament adopted the law that approved the Treaty of Versailles. Once officially published in the Moniteur Belge on 17 October 1919, the law resorted its binding effect and Belgium’s territory had expanded prior to the popular consultation and the decision of the Council of the League of Nations scheduled for the following year. The discussions on the ratification process of the Treaty of Versailles before the Parliament showed proof of hastiness as well as revisionist views of the members of Parliament when respectively welcoming their new citizens and the more favourable new border compared to the old one.Footnote ³¹

The reunification of Belgium with the districts of Eupen and Malmedy, however, was a historical distortion since Belgium did not exist at the moment when these territories were awarded to the Prussian Empire following the Vienna Congress – 15 years before the creation of Belgium (Dawson Reference Dawson1933, 329-330). Although the peoples of those territories did not have a say either over the transfer of sovereignty in 1815, their right of self-determination from the Wilsonian point of view became undisputed when enshrined in Article 34 of the Treaty of Versailles – more than 100 years later. The exercise of such right of self-determination, however, was not specified in this Treaty. Contrary to the creation of referendum commissions that would carry out their mandate “in an unbiased manner” to ensure the freedom and secrecy of the vote as well as the fairness and neutrality of the process,Footnote ³² the Treaty of Versailles deliberately left the organisation and the execution of the popular consultation entirely into the hands of the transitional Belgian authorities. No additional rights or obligations could thus be derived from the Treaty of Versailles in order to give effect to the right of self-determination of the peoples of these territories and to hold the transitional Belgian authorities accountable accordingly.

In spite of this legal vacuum regarding the organisation of the popular consultation in the districts of Eupen and Malmedy under the Treaty of Versailles, the conditions of the freedom of vote remained a cause of official concern before and after its ratification. In his cover letter attached to the reply of the Allied and Associated Powers of 16 June 1919 to the German delegate’s earlier reservations on the draft treaty text, French Prime Minister George Clemenceau reassured that the transfer of these territories from Germany to Belgium “will only take place as the result of a decision of the inhabitants themselves taken under conditions which will ensure complete freedom of vote” (Wambaugh Reference Wambaugh1933, 523). In respect of the final text, namely Article 34, Clemenceau contended that, despite the difference of popular consultation in other places such as Upper Silesia and Schleswig, the freedom of expression of the inhabitants of these districts was the real intention of the Allied and Associated Powers.Footnote ³³

During the ratification process of the Treaty of Versailles before the Belgian Parliament the Socialist Party urged on 8 August 1919 for ensuring those essential guarantees throughout the organisation of the popular consultation. Louis de Brouckère, chef de cabinet of the socialist Minister of Justice Emile Vandervelde, cast doubts about the political and technical possibilities to ensure the complete freedom to vote since inhabitants had to register their opposition under the very eyes of the transitional authorities which could become their definitive government (Le Peuple 1919). Conversely, towards the end of the popular consultation, the catholic Prime Minister Léon Delacroix, stressed before the Belgian Parliament that: “We in Belgium have given enough evidence of our commitment to freedom so that we are expected to respect the freedom of the peoples of Eupen and Malmédy. This freedom will not be an empty word, but a reality that all of us, without distinction of party, will recognize and will always be ready to uphold and defend.”Footnote ³⁴ After the full annexation of these districts, however, Paul-Henri Spaak, the then adjunct chef de cabinet of the socialist Minister of Work Joseph Wauters, denounced it as a “vaste comédie” making a mockery of the right of self-determination (La Bataille Socialiste 1927).

Despite its absence of an explicit freedom of vote under the Treaty of Versailles as well as its actual disregard during this particular popular consultation, these very acknowledgments of the freedom of vote show proof that the application of this particular human right had its source within existing customary international law.Footnote ³⁵ Other rights associated with this freedom are the freedom of expression and informationFootnote ³⁶ which had equally suffered under the auspices of the transitional Belgian authorities during the period of popular consultation as well as during the period leading up to it. Regarding this earlier period, not only international human rights law would be violated. Norms of international humanitarian law and the law of belligerent occupation in particular could equally have been breached. Belgium took over the occupation of respectively French troops in the district of Eupen from 29 May 1919 onwards and British troops in the district of Malmedy on 12 August 1919. The belligerent occupation lasted until the peace treaty – the Treaty of Versailles – entered into force on 10 January 1920. Propaganda attempts on behalf of the Belgian occupier in those districts (O’Connell Reference O’Connell2018, 41) could constitute a violation of Article 45 of the Regulations Respecting the Laws and Customs of War on Land annexed to the 1907 Hague Conventions which both Belgium and Germany had signed and ratified, namely the prohibition to force inhabitants of occupied land to declare allegiance to the occupying power.

The Responsibility of the League of Nations: Ex Injuria Jus Non Oritur?

Although the contestations regarding the impartiality of the transitional Belgian authorities and the freedom of vote of the inhabitants of the districts of Eupen and Malmedy were numerous, the League of Nations, in accordance with the Treaty of Versailles, was not entitled to intervene in the actual organisation of the popular consultation and could only take note of them. The examination of the conditions of the popular consultation could only take place after the communication of the results of the popular consultation by the transitional Belgian authorities.Footnote ³⁷ In this regard, on 19 August 1920, the Belgian government transferred the two registers of Eupen and Malmedy (closed on 23 July 1920) to the League of Nations together with the report documenting the outcome of the popular consultation. The report also addressed the German charges seeking, from its point of view, to influence the public opinion within the districts of Eupen and Malmedy and beyond, to favour German sovereignty and to discredit Belgian’s sovereign title over the territories. It also called upon the Council of the League of Nations, pursuant to Article 34 para. 3 of the Treaty of Versailles, to endorse the definitive nature of the transfer of sovereignty from Germany to Belgium over those ceded districts of Eupen and Malmedy which was already effective when the Treaty of Versailles had entered into force (Wambaugh Reference Wambaugh1933, 532.).

According to the memorandum of Sir James Eric Drummond – Secretary-General of the League of Nations – to the Council, this ex post facto evaluation of the conditions of the popular consultation did not aim at reopening the interpretation of Article 34 para. 1 of the Treaty of Versailles, i.e. the economic, military and political reasons that justified the transfer of sovereignty in the minds of the negotiating parties of the Treaty of Versailles. Nonetheless, according to the Secretary-General, the mandate bestowed upon the League of Nations the obligation to consider the result of the popular consultation in light of those reasons drawing from all the evidence submitted and to decide if the cession of the districts of Eupen and Malmedy to Belgium could be overruled by its peoples. If necessary, if could decide that a Committee of Inquiry should be set up to ascertain if the charges against the Belgian government were founded or not.Footnote ³⁸ After the examination of the report on the organisation of the popular consultation, its results and controversies,Footnote ³⁹ the Council recognized the final transfer of sovereignty of Belgium over the former districts of Eupen and Malmedy. To that effect, the resolution of 20 September 1920 adopted by the Council of the League of Nations stipulated that the cession of the districts of Eupen and Malmedy remained “effective and valid” and that “no other decision can be taken unless it was demonstrated by definite and concordant proofs that the result of the public expression of opinion had been determined by means of intimidation and pressure, by abuse of authority and threat of reprisals which had prevented the free expression of the will of the inhabitants”.Footnote ⁴⁰

The final report of Brazilian representative to the Council of the League of Nations, Gastao da Cunha, however, stirred controversy. The fact that he did not understand German – as spoken in those districts – and did not visit those districts after the popular consultation (Dawson Reference Dawson1933, 336) cast doubts about the evaluation of German accusations against the organisation of the popular consultation which were considered to be “vague and indeterminate” due to their anonymity; as opposed to the well-recorded accusations of the Belgian government on the German propaganda machine against the annexation.Footnote ⁴¹ Yet, the international and domestic condemnation during and after the popular consultation regarding the iron-fist rule by the Royal High-Commissioner, Lieutenant-General Baltia, cast additional doubts about the impartiality of the transitional authorities and the respect for the freedom of vote of the inhabitants of these districts. Conversely, the notable opposition of Germany before, during and after the popular consultation raised further concerns about its undue influence over these inhabitants who might have boycotted the popular consultation under its pressure. Despite those growing uncertainties about the right of self-determination of the inhabitants and its attributes to freely express their opinion on where their present loyalties lay, the Council of the League of Nations left this stone unturned and created definitive legal consequences out of facts which remained disputed when the resolution to that effect was adopted.

Therefore, the Council’s resolution of 20 September 1920, in accordance with the principle of ex injuria jus non oritur, could not create any permanent sovereign title for Belgium or Germany out of those disputed facts where the right of self-determination of the peoples of the districts of Eupen and Malmedy was violated. Given its customary nature at that time, a violation of the right of self-determination of the peoples of the districts of Eupen and Malmedy would prevent the acquisition of a permanent Belgian sovereign title over their territories. In this regard, the resolution of the Council of the League would be invalidated and no longer resort its legal consequences regarding the permanent acquisition of Belgian sovereignty over those territories (Lagerwall Reference Lagerwall2016, 37).Footnote ⁴² Such invalidation of the resolution sidesteps the legal uncertainty arising from the non-recognition of a permanent sovereign title derived from a violation of the right of self-determination. It appears that before the Second World War, the principle of ex injuria jus non oritur imposed a corollary obligation of non-recognition of acquisition of territory by a war of aggression;Footnote ⁴³ yet, not in respect of another violation of international law, namely the right of self-determination of peoples which could trigger an obligation (erga omnes) not to recognize the acquired rights over such territory as being lawful (International Law Commission 2001, 115). Instead, the Council could have opted for taking other necessary measures such as the establishment of a Committee of Inquiry to investigate the disputed facts in the first place (Wambaugh Reference Wambaugh1933, 538).