Edward Chaszar : The Czechoslovak-Hungarian Border Dispute of 1938

The Treaty of Trianon reduced Hungary proper to less than one-third of her former territory and about two-fifths of her population. Large numbers of Magyars were attached to the newly created neighboring States without plebiscites for the territories in dispute.

Although accepting the Treaty of\s+Trianon as the law of the country by signing and ratifying it, Hungary maintained from the beginning the position that she would seek to change the terms of the Treaty by all available peaceful means as it was not a negotiated treaty freely agreed upon, but a "diktat," and as such, it was unjust.

Peaceful revision of the treaty was advocated by Hungary without success.

The action of seeking revision was warranted by the words of the Covenant and by faith in the future function of the League of Nations. For we may say by comparison that while the chief architects of the Congress of Vienna in 1815 prepared a permanent settlement, the statesmen of 1919 had labored under the assumption that their settlements would be but the ground on which a new kind of international relations was to develop, namely one conducted within the framework of the League. The organization was thought to be capable of dealing with all questions affecting peace and correcting all mistakes that may have been committed by the peacemakers.

As it turned out later, the League proved to be merely an instrument of the victorious powers to preserve the status quo.

This fact accounted for the failure of Hungary to achieve peaceful revision. Her initiatives in the League and her attempts at direct negotiations with the "Successor States" failed. Consequently, Hungary began to orient her foreign policy toward the anti-status-quo Powers; first towards Italy who was openly sponsoring the Hungarian revisionist case, and after the Anschluss of Austria towards her new neighbor, Germany.

It was at this time, in 1938, that Hungary had definitely abandoned the idea of seeking a solution through the procedure envisaged by Article XIX of the Covenant and joined the policies of Germany and Poland by bringing pressure upon Czechoslovakia. The aim of each of the three States was similar: the attainment of a favorable settlement of their minorities' question with Czechoslovakia.

As a result of the shifting balance of power the Munich Agreement was signed on September 29, 1938, by the four European Powers, arranging for the cession of the Sudeten areas to Germany.

The Agreement also stipulated for the settlement of the Polish and Hungarian minority questions with Czechoslovakia by direct negotiations. It declared that "the problem of the Polish and Hungarian minorities in Czechoslovakia, if not settled within three months by agreement between the respective Governments, shall form the subject of another meeting of the Heads of the Governments of the four Powers here present."'

While Poland achieved her aim within days by presenting an ultimatum to Prague, Hungary entered into direct negotiations. These however failed ultimately because the Czechoslovak Government "regarded as quite unacceptable the Hungarian demand for plebiscites in the disputed districts on the basis of the 1910 census."²

Meanwhile the British Government expressed willingness to take part in a Four Power arbitration and informed the Italian Minister for Foreign Affairs that "His Majesty's Government are, in principle, in favour of the return to Hungary of those districts in which the population is predominately Hungarian."³

At the well calculated wish of the Czechoslovak Government the matter was finally referred to Italo-German arbitration. Foreign Ministers Ciano and Ribbentrop arbitrated the dispute, the latter supporting the Slovak, the former the Hungarian case. The Award was based almost exclusively on ethnographic factors and restored to Hungary 12,103 square kilometres (approximately 4,630 square miles) of territory with slightly over one million population, eighty per cent Magyars.

These are, in brief, the facts of the Vienna Arbitration. Looking at the case forty years later, a number of problems arise.

The main problem is to determine whether the Vienna Arbitration was an instance of peaceful change or, by the use of pressures and veiled threats of force as instruments of national policy, a subversion of the existing legal order.

It is a difficult task to differentiate between peaceful and nonpeaceful change.

On the one hand there seems to be a line beyond which the use or threat of force, and violations of international law will render, even if war does not occur, a given transaction non-peaceful.

On the other hand it appears that peace is not broken by all violence but only violence which defeats justice, in other words, by crime.⁴

Based on the concept that peace is more than the absence of war, that it is the absence of injustice, Quincy Wright defines peaceful change in the following terms:

"Change in law or rights through procedures other than war which are in accord with the international obligations of the parties concerned, or which the law recognizes as competent in emergencies to override normal rights and obligations in the interest of a higher justice or of the welfare of the community of nations as a whole."⁵

The above definition of peaceful change, if accepted, suggests several questions, both procedural and substantive. Let us attempt to formulate these questions.

Procedural questions. What were the legal obligations of the parties to the dispute, or of others responsible for and involved in the settlement?

Were any of these obligations violated?

If so, were these violations justified by emergency, namely by the necessity of a speedy settlement?

To put it in other words: did the parties to the dispute exhaust the procedures available for peaceful settlement? Did the circumstances justify recourse to extraordinary procedure? Finally, was such a procedure admissible under international law?

Substantive questions. - Did the arbitral decision conform to general principles of international law, or to rules expressly recognized by the parties?
Was the decision substantially just? (Test of higher justice.)
Ultimately the above questions amount to the basic one:

Could the Vienna Award be sustained by international law?

The answer to this basic question will depend, in turn, upon the importance attributed to procedure on the one hand, and to substance on the other.

With too much stress put on procedures to the neglect of substancein a society of nations which thus far had proven to lack either an effective machinery or the needed psychological support for peaceful changeall talk about peaceful settlement would be illusory.

Yet, to disregard entirely certain procedures which are by experience considered as most likely to yield justice would render it impossible to speak of international law.

In the mutual relationship of law and politics the legal order of a given time may have to give way to some extent to political pressures, for after all law derives its ultimate authority from politics. Nevertheless, political processes and emerging new political orders cannot, without impunity, destroy entirely everything that was built before in the legal sphere. To do so would be to destroy their own support.

With these warnings in mind let us now turn to yet another problem concerning the Vienna Arbitration. This problem is the following:

Nearly forty years after its conception, and with the status of the Award clearly defined by the Paris Peace Settlement of 1947, is there a basis to admit the case for a re-examiruztion.⁶

Avid critics of the case contend that the Vienna Award was invalid from the very beginning as it derived from the Munich Agreement, itself a violation of international law.⁷

The problem, then, can be considered in different ways. The first way is that of examining the nature of the Munich Agreement at the time of its conclusion.

Responsible statesmen accepted it as a peaceful change since threats were superseded by settlement. Czechoslovakia accepted it, although under protest that it was achieved "without her and against her." The settlement was sustained as valid until Hitlerviolated its terms by establishing a "protectorate" over Bohemia and Moravia, promoting at the same time an independent Slovakia.

From there on the attitude toward "Munich" became equivocal. Czechoslovak politicians and scholars in exile had begun to point out that they considered the settlement invalid under international law as of its conception. Their arguments are respectable, but far from convincing.

The view of some of the Western writers had been best expressed by Quincy Wright in his work cited. Therein he cautiously holds that the placing of the substance of the settlement ahead of the procedure by which it was achieved rendered the Munich Agreement subject to legal criticism.

The official U.S. view was expressed only after the Second World War. Discussing the preparations for the territorial settlements of the Paris Peace Conference of 1947, John C. Campbell summarized the American position as follows:

"There was no thought of extensive changes or of an entirely new settlement. After all, the war was being fought against those who had violated the legal boundaries and had presumed to redraw the map of Europe to suit their own purposes. As a matter of principle, in the American view, the territorial changes made by Hitlerand his allies must be nullified. On the other hand, the prewar frontiers were not regarded as sacred. Demands for their revision would be considered, as far as possible, on their merits."⁸

This position is in conformity with the customary legalistic-moralistic approach of the United States to international relations.

Naturally in a world where, in the words of Julius Stone the "crucial importance of the validity of treaties imposed under duress is insufficiently observed," the several views exposed above should not be surprising. Neither should they be necessarily the correct ones.⁹ Indeed, the opposite view is held by those who consider cession, be it voluntary or forcible, one of the main legal claims to territory.

"Involuntary cessions," wrote Professor Hill during the Second World War, "are often provided in treaties of peace, or they come as a result of a threat to use force." Pointing out several examples, including the transfers of territory after the First World War, he states:

"After a threat to use force, the Sudetenland was ceded by Czechoslovakia to Germany in 1938. In spite of the forcible nature of these contractual arrangements, they are regarded in international law as valid."¹⁰

It was certainly remarkable, and from the Czechoslovak point of view lamentable, that while during the visit of Benes to Russia in December 1943, both Stalin and Molotovhad promised to

support the Czechoslovak claims to the pre-Munich frontiers, the British were still reluctant to give any promise of that kind.¹¹

From all the foregoing it should be rather clear that, even if its status is now beyond doubt, the legal nature of the Munich Agreement is still subject to controversy.

Recognizing that the validity of the Munich settlement in international law was at its inception, the least to say, undefined, it would be incorrect to draw conclusions about the Vienna Award on this basis. That basis must be sought elsewhere.

Indeed, it can be detected by following closely the argumentation of Taborsky, learned critic of "Munich" and of the Vienna Award. After making his case against the Munich Agreement, Taborsky states:

"Now I submit that if we consider the Munich Agreement as being invalid from the beginning, the Vienna Arbitration also cannot naturally be valid, and binding upon Czechoslovakia. The basis for the execution of the Vienna Arbitration was Point 3 of Annex 1 of the Munich Agreement cited above, and the German-Italian arbitration in respect to this was accepted only ln consideration of this provision of the Munich Agreement, and in view of the promise of guarantee contained in the Annex. If, however, the basis of a given legal action is, or becomes, void, that action be comes ipso facto invalid, together with everything that is legally based upon it."¹²

It is a fundamental error to designate Point 3 of Annex 1 as the basis for the Vienna Arbitration.

Taborsky's error leads to the second approach concerning the possibility to admit the Vienna Arbitration case to re-examination. According to this approach the basis of that arbitration was none other than the mutual agreement of Czechoslovakia and Hungary to submit the dispute to arbitratiom

This agreement was arrived at after renewed negotiations. Point 3 of Annex 1 served merely as a basis to initiate them.

The right to negotiate, that is, to enter into the political act of negotiating, either directly or through diplomatic exchanges, is not impaired by the nature of any previous action, be it a legal or a political one. To claim that the negotiations, leading to the agreement to seek arbitration, were invalid because of the alleged invalidity of their basis would be too big a legal tour de force to be taken seriously.

Taborsky compounds his error when he asserts that the invalidity of the Award is "not in the least affected by the circumstance that the Vienna Arbitration appears at a first glance to be in form an independent pronouncement and that it was made in the absence of two of the signatories of Munich."¹³

Regarding the first point he holds that the arbitral decision was "a direct consequence of the Munich settlement" and that a formal distinction between them "could not in the least alter their material and substantial interdependence."¹⁴

As for the second question, namely the non-participation of France and Great Britain, Taborsky construes it as a "further evidence of the illegal procedure of Germany and Italy."¹⁵

Furthermore he argues:

"Czechoslovakia accepted the offer of German-Italian arbitration under irresistible pressure and in a state of extreme distress through observing the indifference of the Western Powers, and knowing that to insist upon the participation of France and Great Britain would only exacerbate her situation, which was in any case desperate."¹⁶

Of these arguments the "material and substantial interdependence" is an important one. Unfortunately there is no proof offered to support its validity.

A close scrutiny will reveal, to the contrary, that the Vienna Award was not only in appearance, but in fact an independent pronouncement.

Long before the Sudeten problem arose Hungary had begun to pursue the question of a frontier revision. Aside from the initiatives taken inside and outside the League, Hungary had made several attempts to negotiate for the amelioration of the political and cultural life of Magyar nationals in Czechoslovakia.

Viewed in this light the problem had a substance of its own.

The Munich Agreement and the Vienna Arbitration were two separate transactions. Their bases, as it was seen, were different. So was their nature.

The Munich Agreement was an instrumentality produced in conference by four European Great Powers to settle the German-Czechoslovak problem. The procedure had been a choice of the Four Powers. The rights of Czechoslovakia to participate in the determination of the case were impaired in order to preserve what was thought to bethe greater interest of the community as a whole.

In contrast, the Vienna Award was the result of a procedure chosen, certainly not free of pressures, by the parties as one most likely to result in a mutually acceptable settlement.

It will be the purpose of this essay to examine, among others, the circumstances under which this procedure had been selected and put to use, as well as the character of the pressures exercised upon, or by, the parties.

The non-participation of France and Great Britain, and other arguments against the legality of the Vienna Award, such as the absence of Czechoslovak parliamentary consent, or the effects of Hungary's annexation of Carpatho-Ruthenia in 1939 on the Award, will be dealt with in due course.

Suffice to say in conclusion that the foregoing does provide an adequate basis for a re-examination of the Vienna Arbitration.

In order to evaluate the case on its own merits and to study the settlement of the Czechoslovak-Hungarian dispute in a more objective light let us consider its antecedent to be not the Munich Agreement, but the development of the dispute itself.

Before examining in detail the developments of the Hungarian-Czechoslovak dispute in the summer of 1938, leading to the Vienna Arbitration, it is pertinent to comment briefly upon the general European situation within which the relations of the two states were set.

The decade after the First World War was a period of false stability. The peace settlement was too political. Geographic and political questions took precedence over economic and social problems. The political League of Nations was not implemented with an economic League of Nations.

The fact that the 19th century economic progress was interrupted by the war, creating economic and social dislocations, was not sufficiently appreciated. Neither was the fact that a return to the normalcy of the pre-war situation instead of keeping pace with the march of times was a step backward.

It was mistakenly assumed that peace had been achieved once and for all. Because of this attitude conditions became frozen. No effective steps were taken to provide for peaceful change as stipulated by the Covenant. The maintenance of the status quo developed into a guiding policy.

To implement this policy France had built up a system of alliances. One of the pillars of this system was the Little Entente. It opposed the revisionist tendencies of Hungary.

The distrust of nations for each other during this decade was demonstrated by a search for security, resulting in the Locarno Treaties of 1925, the Kellog-Briand Pact of 1928, the Naval Conferences of 1922 1927, and 1930. In Eastern Europe the Soviet Union likewise had signed a series of pacts with her neighbors.

Of the above mentioned milestones there are two that bear particular significance for our subject. The first is Locarno. When Germany, France, Belgium, Great Britain, and Italy had mutually guaranteed German-French and German-Belgian frontiers as fixed by the Treaty of Versailles and pledged to settle disputes by pacific means France wanted, in addition, to guarantee the existing conditions in East-Central Europe.

Germany was opposed to this proposal. Britain, upon the attitude of whom much depended, appeared somewhat uneasy about the French hegemony in Europe and withheld her support, apparently because of the belief that no vital British interests were at stake in East-Central Europe.

The second fact of significance was the Kellog-Briand Pact and the imprint it left upon international relations between the wars. The Pact called for the peaceful settlement of disputes. Furthermore, as it was widely held, it "outlawed war." At the time of its signature by sixty-two nations, and for a decade to come, the world believed in its value. Consequently, at the time of these happenings the events of 1938 were judged by many in the light of the moral pronouncements of this document.

The mid-nineteen-thirties signaled a turning point in European and world history. The postwar era of reconstruction and recovery, dominated by the Paris Peace Settlement, was coming to an end. The immediate background of this period had been a world-wide economic depression that had made peoples all over the world susceptible to new ideas. The new era was marked by great conflicts of ideology, by a realignment of historical forces, and consequently, by the increasing of international tensions. The dominating event on the international scene was the emergence of Hitlers Germany as a great industrial and military power. Germany gradually overtook French leadership in Europe

and imposed her will on the smaller countries in Central and South-Eastern Europe. At the same time Italy began to ascend as a Mediterranean Power.

Both in Germany and in Italy the new ideologies capitalized on the deep-rooted human emotion of patriotism and subsequently developed a militant, aggressive, and intolerant nationalism. National spirit intensified to an extent that appears in other nations only in times of wars or of grave crises. Indeed, Hitlerand Mussolini conceived of the present as a time of such crisis.

By 1935 Hitlerand Mussolini, quite separately from each other, had consolidated the power of their parties, coordinated political and economic activities within their countries, and their systems came to represent a thorough management and disciplining of the life of the nation, sorts of permanent mobilization to attain national goals.

Italy, at first suspicious of a rising Germany, established in Stresa a united front with France and Britain. The same year, 1934, also had seen the signing of the Rome Protocols between Italy, Austria, and Hungary. To prevent German expansion to the south and southeast, Mussolini supported Austrian independence, and Hungarian revisionist claims as well.

The moment came when both Germany and Italy still quite separately from each other decided to change the terms of coexistence. Had Britain and France been able to present a firm and united front, Hitlercould have been stopped. Instead, the two had alienated Italy and helped indirectly in the creation of the Berlin-Rome Axis.

The continuing shift in the balance of power had resulted in a gradual disintegration of the order created by the League of Nations. Japan's attack on Manchuria and the establishment of Manchukuo had proved that the basic assumptions of the League order concerning collective security were false. The example served as a green light to Italy and Germany.

In 1935 Italy had attacked Ethiopia. As had been true in the Manchurian episode, this case again demonstrated that the League could neither prevent, nor stop, aggression. In the same year Germany had acquired the Saar territory in a plebiscite, introduced universal military training and launched a great rearmament program.

The only action the League had taken was that of condemning the German action. At the same time, half-hearted sanctions against Italy were not sufficient to stop Mussolini, yet were sufficient to make him abandon the League altogether. Then, France and Britain being preoccupied with Ethiopia, Hitlerhad found the time opportune to militarize the Rhineland, using the FrancoSoviet_Pact_of_mutual_assistance1">FrancoSoviet Pact of mutual assistance of 1936 as a pretext.

Soon after, the Berlin-Rome Axis became a reality. It assisted Francoin the Civil War that had erupted in Spain in July 1936. Mussolini, concentrating his efforts on the Spanish affair, made it clear in April 1937 to Schuschnigg Austrian Chancellor, that Italy would not give concrete assistance to maintain Austrian independence.

Thereafter, the National Socialist Party in Austria had been given a greater latitude. Within a year their leader, Seyss-Inquart, succeeded with Hitlers help in taking over Schuschniggs post and from that position was able to invite Germany to "protect" Austria. In April 1938 a plebiscite had voted for union with Germany.

A few weeks later Hitlerhad threatened to march into Czechoslovakia in order to protect the German minority, numbering about three million and now asking for autonomy. Russia had encouraged Prague to resist. In May, Czechoslovakia mobilized. This was, indeed, a full-scale international crisis.

As a result of, and within the frame of this crisis, there had suddenly reappeared the controversy between Hungary and Czechoslovakia over the Magyar-inhabited parts of the latter, ceded in 1919. The final outcome of the controvesy depended primarily on whether France and Britain, especially the latter, would act to maintain the status quo in East-Central Europe, or would bow to the argument that the unrest of Europe was fundamentally caused by the injustices of the Peace of Paris.

These were, in short, the developments on the political scene of Europe. The evolution of the Czechoslovak-Hungarian_dispute2">Czechoslovak-Hungarian dispute took place against this background.

The account that will follow here examines the Hungarian-Czechoslovak dispute, first from March 1938 to the end of September, that is to the Munich Agreement; second, in a more detailed way, the relations of the two States during the month of October, from negotiations through mediation up to the Arbitration in Vienna.

1. Manley O. Hudson (ed.), International Legislation. A Collection of the Texts of Multipartite International Instruments of General Interest (Washington: Carnegie Endowment for International Peace, 1949), VIII, 134.

2. E.L. Woodward and R. Butler (eds.), Documents on British Foreign Policy 1919-1939. 3rd Series (London: H.M. Stationery Office, 1950), III, 202. Hereafter cited as British Documents.

3. British Documents, III, 202.

4. To this we have to add "violence the justice or injustice of which is in doubt because of the comparative equality of the support given to each side," namely war. Quincy Wright, "The Munich Settlement in International Law," American Journal of International Law, XXXIII (Jan. 1939), 14.

5. Ibid

6. Article 1, paragraph 4 of the Treaty of Peace concluded with Hungary on February 17, 1947, declared the decisions of the Vienna Award "null and void."

7. See especially Eduard Benes, Memoirs: From Munich to New War and Victory (Boston: Houghton Mifflin, 1954), pp. 200-221, and Edward Taborsky, The Czechoslovak Cause; An Account of the Problems of International Law in Relation to Czechoslovakia (London: Witherby, 1944), pp. 1-21. Cf. also Hubert Ripka, Munich: Before and After. A Fully Documented Czechoslovak Account of the Crises of September 1938 and March 1939 (London: Victor Gollancz Ltd., 1939).

8. John C. Campbell, "The European Territorial Settlement," Foreign Affairs, XXVI (October 1947), 197.

9. Julius Stone Legal Controls of International Conflicts (Rinehart & Co.: New York, 1954), p. xxxii.

10. Norman Hill, Claims to Territory in International Law and Relations (London: Oxford University Press, 1945), p. 159.

11. Eduard Taborsky, "Benes and the Soviets", Foreign Affairs, XXVII (January 1949), 310.

12. Taborsky, The Czechoslovak Cause, p. 22.

13. Taborsky, The Czechoslovak Cause, p. 22.

14. Taborsky, The Czechoslovak Cause, p. 23.

15. Ibid. This view was shared by others. Wheeler-Bennett held the German-Italian arbitration "flagrant disregard" of the Munich terms. John W. Wheeler-Bennett, Munich: Prologue to Tragedy (New York: Duell, Sloan & Pearce, 1948), p. 297.

16 Taborsky, The Czechoslovak Cause, p. 23.

Edward Chaszar : The Czechoslovak-Hungarian Border Dispute of 1938