|
[Majority Opinion]
[p16] The Court composed as above, having heard the observations and
conclusions of the parties, delivers the following judgment:
I. [Procedural History]
[1] The Governments of His Britannic Majesty, of the French Republic, of His
Majesty the King of Italy and of His Majesty the Emperor of Japan, by means
of an application instituting proceedings filed with the Registry of the
Court on January 16th, 1923, in accordance with Article 40 of the Statute
and Article 35 of the Rules of Court, brought before the Court the dispute
which had arisen between these Governments and the Government of the German
Empire by reason of the fact that on March 21st, 1921, the steamship
"Wimbledon" was refused permission to pass through the Kiel Canal.
[2] By this application it was submitted that:
1. The German authorities, on March 21st, 1921, were wrong in refusing free
access to the Kiel Canal to the steamship "Wimbledon";
2. The German Government is under an obligation to make good the prejudice
sustained as a result of this action by the said vessel and which is
estimated at the sum of 174.082 Frs. 86 centimes, with interest at six per
cent 'per annum from March 20th, 1921.
[3] The conclusions contained in the application were developed in the Case
submitted by the Applicants to the Court on March 17th, 1923; it is therein
specified that the amount of the compensation shall be remitted to the
Government of the [p17] French Republic within one month from the date on
which judgment is given and that, should the German Government fail to make
payment within this time, it shall pay interest at ten per cent, upon the
sum due, both as principal and as interest, from the expiration of this
time.
[4] On the other hand, the German Government, the respondent in this suit,
requested the Court, in the conclusions contained in the Counter-case
submitted by it on April 20th, 1923:
1. To declare that the German authorities were within their rights in
refusing on March 21st, 1921, to allow the steamship "Wimbledon" to pass
through the Kiel Canal.
2. To reject the claim for compensation.
[5] In the course of the written proceedings the respective conclusions of
the Parties were to some extent modified or supplemented. They appear in
their final form in the Reply of the Applicant States, filed on May 18th,
1923, and in the German Rejoinder, filed on June 15th following.
[6] In the reply it is submitted:
That the German authorities on March 21st, 1921, were wrong in refusing
access to the Kiel Canal to the steamship "Wimbledon";
That consequently the German Government is under an obligation to make good
the prejudice sustained as a result of this action by the said vessel and
her charterers; that this loss may be estimated at 174.082 Frs. 68 centimes,
together with interest at 6 per cent per annum from March 20th, 1921, unless
the Court should consider that it would be more equitable to calculate that
part of the indemnity destined to cover demurrage and deviation in pounds
sterling in accordance with the principle enunciated . in the Reply;
That the Government of the German Empire shall remit the amount of the said
compensation to the Government of the French Republic within one month from
the date on which judgment is given;
And that, should the German Government fail to effect payment within this
time, it shall pay interest at 10 % on the sum due, both as principal and as
interest, from the expiration of the time limit of one month
above-mentioned. [p18]
[7] During the oral proceedings, the Government of the Polish Republic,
intervening under Article 63 of the Statute, declared itself in agreement
with the submissions of the applicants.
[8] On the other hand, the Rejoinder submitted by the German Government
supplements and further defines the submissions presented in the
Counter-case in the following manner; it is submitted:
1. (a) that Article 380 of the Treaty of Peace of Versailles could not
prevent Germany from applying to the Kiel Canal, during the Russo-Polish War
of 1920-1921, a neutrality regulation, admissible in itself, like the order
of July 25th, 1920;
(b) that the application of this Order of July 25th, 1920, was not rendered
impossible by the coming into force of the preliminary Treaty of Peace dated
November 2nd, 1920, but only by the coming into force of the final Treaty of
Peace dated April 30th, 1921; and
2. that in consequence the claim for compensation should be rejected.
[9] In support of their conclusions, a number of documents have been
submitted to the Court by the Parties, either as annexes to the Case,
Counter-Case, Reply and Rejoinder, or during the hearing.
[10] The Court has further heard, in the course of public sittings held on
the 5th, 6th, 7th, 9th and 10th July, 1923, the statements of the Agents of
the six Powers concerned.
II. The Facts
[11] The facts, as stated in the course of the proceedings and in regard to
which there appears to be no disagreement between the Parties, may be
summarised as follows:
[12] An English steamship, the "Wimbledon", had been time chartered by the
French Company, "Les Affréteurs réunis", whose offices are at Paris.
[13] According to the terms of the charter party signed on January 28th,
1919, this vessel had been demised to the [p19] Company for a period of 18
months, commencing on May 3rd, 1919, the date of its delivery; but a rider
dated July 15th, 1920, had extended this period by six months as from
November 3rd following. The freight agreed upon was I7sh. 6d. per ton per
month.
[14] The vessel, having been chartered in the manner indicated, had taken on
board at Salonica 4,200 tons of munitions and artillery stores consigned to
the Polish Naval Base at Danzig. On the morning of March 21st, 1921, it
presented itself at the entrance to the Kiel Canal, but the Director of
Canal Traffic refused to allow it to pass, basing his refusal upon the
neutrality Orders issued by Germany in connection with the Russo-Polish war,
and upon instructions which he had received.
[15] On the next day but one, March 23rd, the French Ambassador at Berlin
requested the German Government to with-draw this prohibition and to allow
the S.S. "Wimbledon" to pass through the Kiel Canal in conformity with
Article 380 of the Treaty of Versailles. Some days later, on March 26th, a
reply was given to the effect that the German Government was unable to allow
a vessel which had on board a cargo of munitions and artillery stores
consigned to the Polish Military Mission at Danzig, to pass through the
Canal, because the German Neutrality Orders of July 25th and 30th, 1920,
prohibited the transit of cargoes of this kind destined for Poland or
Russia, and Article 380 of the Treaty of Versailles was not an obstacle to
the application of these Orders to the Kiel Canal.
[16] On the evening of March 30th, the "Sociéte des Affréteurs réunis"
telegraphed to the captain of the S.S. "Wimbledon" ordering him to continue
his voyage by the Danish Straits. The vessel weighed anchor on April 1st
and, proceeding by Skagen, reached Danzig, its port of destination, on April
6th; it had been detained for eleven days, to which must be added two days
for deviation.
[17] In the meantime the "Wimbledon" incident had not failed to give rise to
active negotiations between the Conference of Ambassadors and the Berlin
Government; but these negotiations, in the course of which the contrast
between the [p20] opposing standpoints had become apparent and the Allied
Powers' protest had been met by a statement of Germany's alleged rights and
obligations as a neutral in the war between Russia and Poland, led to no
result, whereupon the Governments of His Britannic Majesty, the French
Republic, His Majesty the King of Italy and His Majesty the Emperor of Japan
decided to bring the matter which had given rise to the negotiations -
thereby adopting a course suggested by the German Government itself in a
letter from its Minister of Foreign Affairs, dated January 28th, 1922 -
before the jurisdiction instituted by the League of Nations to deal with,
amongst other matters, any violation of Articles 380 to 386 of the Treaty of
Versailles or any dispute as to their interpretation. This jurisdiction is
the Permanent Court of International Justice which entered upon its duties
at The Hague on February 15th, 1922.
III. The Suit
[18] The first question to be considered is whether proceedings could be
instituted by the four Governments above mentioned in the terms of the
Application filed. The Respondent has left this point to the appreciation of
the Court.
[19] The Court has no doubt that it can take cognizance of the application
instituting proceedings in the form in which it has been submitted. It will
suffice to observe for the purposes of this case that each of the four
Applicant Powers has a clear interest in the execution of the provisions
relating to the Kiel Canal, since they all possess fleets and merchant
vessels flying their respective flags. They are therefore, even though they
may be unable to adduce a prejudice to any pecuniary interest, covered by
the terms of Article 386, Paragraph 1 of which is as follows :
"In the event of violation of any of the conditions of Articles 380 to 386,
or of disputes as to the interpretation of these articles, any interested
Power can appeal to the jurisdiction instituted for the purpose by the
League of Nations." [p21]
IV. The Law
A.
[20] The question upon which the whole case depends is whether the German
authorities were entitled to refuse access to and passage through the Kiel
Canal to the S.S. "Wimbledon" on March 21st, 1921, under the conditions and
circum-stances in which they did so.
[21] The reply to this question must be sought in the provisions devoted by
the Peace Treaty of Versailles to the Kiel Canal, in Part XII, entitled
"Ports, Waterways and Railways", Section VI. This Section commences with a
provision of a. general and peremptory character, contained in Article 380,
which is as follows:
"The Kiel Canal and its approaches shall be maintained free and open to the
vessels of commerce and of war of all nations at peace with Germany on terms
of entire equality".
[22] Then follow various provisions intended to facilitate and regulate the
exercise of this right of free passage.
[23] Article 381, after mentioning that "the nationals, property and vessels
of all Powers, shall, in respect of charges, facilities, and in all other
respects, be treated on a footing of perfect equality in the use of the
canal....", adds that "no impediment shall be placed on the movement of
persons or vessels other than those arising out of police, customs,
sanitary, emigration or immigration regulations, and those relating to the
import and export of prohibited goods, and that such regulations must be
reasonable and uniform and must not unnecessarily impede traffic."
[24] Again, Article 382 forbids the levying of charges upon vessels using
the canal or its approaches other than those intended to cover, in an
equitable manner, the cost of maintaining in a navigable condition, or of
improving, the canal or its approaches, or to meet expenses incurred in the
interests of navigation; furthermore, Article 383 provides for the [p22]
placing of goods in transit under seal or in the custody of customs' agents,
and Article 385 places Germany under the obligation to take all suitable
measures to remove any obstacle or danger to navigation and to ensure the
maintenance of good conditions of navigation, whilst, at the same time,
forbidding Germany to undertake any works of a nature to impede navigation
on the canal or its approaches.
[25] The claim advanced by the Applicants, that the S.S. "Wimbledon" should
have enjoyed the right of free passage through the Kiel Canal, is based on
the general rule embodied in Article 380 of the Treaty of Versailles.
[26] This clause, they say, could not be more clear as regards the provision
to the effect that the canal shall be maintained free and open to the
vessels of commerce and of war of all nations at peace with Germany; it
follows therefore, that the S.S. "Wimbledon", belonging to a nation at that
moment at peace with Germany, was entitled to free passage through the
Canal.
[27] The Applicants have also maintained that this interpretation of Article
380 is confirmed by the terms of paragraph 2 of the following Article,
providing for certain restrictions or impediments which may be placed by the
German Government upon free movement in the canal, since none of these
restrictions or impediments, which are enumerated exclusively, can be
applied to the S.S. "Wimbledon" by reason of the nature of her cargo.
[28] The Court considers that the terms of article 380 are categorical and
give rise to no doubt. It follows that the canal has ceased to be an
internal and national navigable waterway, the use of which by the vessels of
states other than the riparian state is left entirely to the discretion of
that state, and that it has become an international waterway intended to
provide under treaty guarantee easier access to the Baltic for the benefit
of all nations of the world. Under its new regime, the Kiel Canal must be
open, on a footing of equality, to all vessels, without making any
distinction between war vessels and vessels of commerce, but on one express
condition, namely, that these vessels must belong to nations at peace with
Germany. [p23]
[29] The right of the Empire to defend herself against her enemies by
refusing to allow their vessels to pass through the canal is therefore
proclaimed and recognised. In making this reservation in the event of
Germany not being at peace with the nation whose vessels of war or of
commerce claim access to the canal, the Peace Treaty clearly contemplated
the possibility of a future war in which Germany was involved. If the
conditions of access to the canal were also to be modified in the event of a
conflict between two Powers remaining at peace with the German Empire, the
Treaty would not have failed to say so. It has not said so and this omission
was no doubt intentional.
[30] The intention of the authors of the Treaty of Versailles to facilitate
access to the Baltic by establishing an international regime, and
consequently to keep the canal open at all times to foreign vessels of every
kind, appears with still greater force from a comparison of the wording of
Article 380 with that of the other provisions to be found in Part XII.
[31] Although the Kiel Canal, having been constructed by Ger-many in German
territory, was, until 1919, an internal waterway of the state holding both
banks, the Treaty has taken care not to assimilate it to the other internal
navigable waterways of the German Empire. A special section has been created
at the end of Part XII, dealing with ports, water-ways and railways, and in
this special section rules exclusively designed for the Kiel Canal have been
inserted ; these rules differ on more than one point from those to which
other internal navigable waterways of the Empire are subjected by Articles
321 to 327. This difference appears more especially from the fact that the
Kiel Canal is open to the war vessels and transit traffic of all nations at
peace with Germany, whereas free access to the other German navigable
waterways referred to above is limited to the Allied and Associated Powers
alone. This comparison furnishes a further argument with regard to the
construction of Article 380, over and above those already deduced from its
letter and spirit.
[32] The provisions relating to the Kiel Canal in the Treaty of [p24]
Versailles are therefore self-contained; if they had to be supplemented and
interpreted by the aid of those referring to the inland navigable waterways
of Germany in the previous Sections of Part XII, they would lose their
"raison d'être", such repetitions as are found in them would be superfluous
and there would be every justification for surprise at the fact that, in
certain cases, when the provisions of Articles 321 to 327 might be
applicable to the canal, the authors of the Treaty should have taken the
trouble to repeat their terms or re-produce their substance.
[33] The idea which underlies Article 380 and the following articles of the
Treaty is not to be sought by drawing an analogy from these provisions but
rather by arguing a contrario, a method of argument which excludes them.
[34] In order to dispute, in this case, the right of the S.S. "Wimbledon" to
free passage through the Kiel Canal under the terms of Article 380, the
argument has been urged upon the Court that this right really amounts to a
servitude by inter-national law resting upon Germany and that, like all
restrictions or limitations upon the exercise of sovereignty, this servitude
must be construed as restrictively as possible and confined within its
narrowest limits, more especially in the sense that it should not be allowed
to affect the rights consequent upon neutrality in an armed conflict. The
Court is not called upon to take a definite attitude with regard to the
question, which is moreover of a very controversial nature, whether in the
domain of international law, there really exist servitudes analogous to the
servitudes of private law. Whether the German, Government is bound by virtue
of a servitude or by virtue of a contractual obligation undertaken towards
the Powers entitled to benefit by the terms of the Treaty of Versailles, to
allow free access to the Kiel Canal in time of war as in time of peace to
the vessels of all nations, the fact remains that Germany has to submit to
an important limitation of the exercise of the sovereign rights which no one
disputes that she possesses over the Kiel Canal. This fact constitutes a
sufficient reason for the restrictive interpretation, in case of doubt, of
the clause which produces such a limitation. But the Court feels obliged to
stop at the point where the so-called [p25] restrictive interpretation would
be contrary to the plain terms of the article and would destroy what has
been clearly granted.
[35] The argument has also been advanced that the general grant of a right
of passage to vessels of all nationalities through the Kiel Canal cannot
deprive Germany of the exercise of her rights as a neutral power in time of
war, and place her under an obligation to allow the passage through the
canal of contraband destined for one of the belligerents; for, in this wide
sense, this grant would imply the abandonment by Germany of a personal and
imprescriptible right, which forms an essential part of her sovereignty and
which she neither could nor intended to renounce by anticipation. This
contention has not convinced the Court; it conflicts with general
considerations of the highest order. It is also gainsaid by consistent
international practice and is at the same time contrary to the wording of
Article 380 which clearly contemplates time of war as well as time of peace.
The Court declines to see in the conclusion of any Treaty by which a State
undertakes to perform or refrain from performing a particular act an
abandonment of its sovereignty. No doubt any convention creating an
obligation of this kind places a restriction upon the exercise of the
sovereign rights of the State, in the sense that it requires them to be
exercised in a certain way. But the right of entering into international
engagements is an attribute of State sovereignty.
[36] As examples of international agreements placing upon the exercise of
the sovereignty of certain states restrictions which though partial are
intended to be perpetual, the rules established with regard to the Suez and
Panama Canals were cited before the Court. These rules are not the same in
both cases; but they are of equal importance in that they demonstrate that
the use of the great international waterways, whether by belligerent
men-of-war, or by belligerent or neutral merchant ships carrying contraband,
is not regarded as incompatible with the neutrality of the riparian
sovereign.
[37] By the Convention of Constantinople of October 29th, [p26] 1888 the
Governments of Austria-Hungary, France, Germany, Great Britain, Italy,
Holland, Russia, Spain and Turkey, declared, on the one hand, that the Suez
Maritime Canal should "always be free and open, in time of war as in time of
peace, to every vessel of commerce or of war without distinction of flag"
including even the vessels of countries at war with Turkey, the territorial
sovereign, and on the other hand, that they would not in any way "interfere
with the free use of the canal, in time of war as in time of peace", the
right of self-defence on the part of the territorial sovereign being
nevertheless reserved up to a certain point; no fortifications commanding
the canal may be erected. In fact under this regime belligerent men-of-war
and ships carrying contraband have been permitted in many different
circumstances to pass freely through the Canal; and such passage has never
been regarded by anyone as violating the neutrality of the Ottoman Empire.
[38] For the régime established at Panama, it is necessary to consult the
Treaty between Great Britain and the United States of November 18th, 1901,
commonly called the Hay-Pauncefote Treaty, and the Treaty between the United
States and the Republic of Panama of November 18th, 1903. In the former,
while there are various stipulations relating to the "neutralisation" of the
Canal, these stipulations being to a great extent declaratory of the rules
which a neutral State is bound to observe, there is no clause guaranteeing
the free passage of the canal in time of war as in time of peace without
distinction of flag and without reference to the possible belligerency of
the United States, nor is there any clause forbidding the United States to
erect fortifications commanding the Canal. On the other hand, by the Treaty
of November 18th, 1903, the Republic of Panama granted to the United States
"in perpetuity the use, occupation and control" of a zone of territory for
the purposes of the canal, together with the use, occupation and control in
perpetuity of any lands and waters outside the zone which might be necessary
and convenient for the same purposes; and further granted to the United
States in such zone and in the auxiliary lands and waters "all the rights,
power and authority … which the United [p27] States would possess and
exercise if it were the sovereign of the territory... to the entire
exclusion of the exercise by the Republic of Panama of any such sovereign
rights, power or authority". The Treaty further conceded to the United
States the right to police the specified lands and waters with its land and
naval forces "and to establish fortifications for these purposes". In view
of these facts, it will be instructive to consider the view which the United
States and the nations, of the world have taken of the rights and the
liabilities of the United States as the builder and owner of the Panama
Canal exercising, subject always to the stipulations of existing treaties,
sovereign powers and exclusive jurisdiction over the Canal and the auxiliary
territory and waters.
[39] By the Proclamation issued by the President of the United States on
November 13th, 1914, for the regulation of the use of the Panama Canal and
its approaches in the world war, express provision was made for the passage
of men-of-war of belligerents as well as of prizes of war, and no
restriction whatever was placed upon the passage of merchant ships of any
nationality carrying contraband of war. But, by the Proclamation of May
23rd, 1917, issued after the entrance of the United States into the war, the
use of the canal by ships, whether public or private, of an enemy or the
allies of an enemy, was forbidden, just as, by Article 380 of the Treaty of
Versailles, the Kiel Canal is closed to the vessels of war and of commerce
of nations not at peace with Germany.
[40] In the Proclamation of May 23rd, 1917, the carriage of contraband is
not mentioned; but, by the Proclamation of December 3rd, 1917, issued under
the Act of Congress of June 15th, 1917, the Secretary of the Treasury was
authorised to make regulations governing the movement of vessels in
territorial waters of the United States ; and by a subsequent Executive
Order, issued under the same law, the Governor of the Panama Canal was
authorised to exercise within the territory and waters of the canal the same
powers as were conferred by the law upon the Secretary of the Treasury. By
[p28] a Proclamation of August 27th, 1917, it was made unlawful to take
munitions of war out of the United States or its territorial possessions to
its enemies without licence.
[41] It has never been alleged that the neutrality of the United States,
before their entry into the war, was in any way compromised by the fact that
the Panama Canal was used by belligerent men-of-war or by belligerent or
neutral merchant vessels carrying contraband of war.
[42] The precedents therefore afforded by the Suez and Panama Canals
invalidate in advance the argument that Germany's neutrality would have
necessarily been imperilled if her authorities had allowed the passage of
the "Wimbledon" through the Kiel Canal, because that vessel was carrying
contraband of war consigned to a state then engaged in an armed conflict.
Moreover they are merely illustrations of the general opinion according to
which when an artificial waterway connecting two open seas has been
permanently dedicated to the use of the whole world, such waterway is
assimilated to natural straits in the sense that even the passage of a
belligerent man-of-war does not compromise the neutrality of the sovereign
State under whose jurisdiction the waters in question lie.
[43] The next question to be considered is whether Germany was entitled to
invoke her rights and duties as a neutral power and the provisions of her
Neutrality Orders issued in connection with the Russo-Polish war as a ground
for her refusal to allow the "Wimbledon" to enter the Kiel Canal, in spite
of the categorical terms of Article 380 of the Treaty of Versailles.
[44] The first of the Orders above mentioned dated July 25th, 1920, contains
the following:
"In consequence of Germany's neutrality in the war which has arisen between
the Republic of Poland and the, Federal Socialist Republic of the Russian
Soviets ... the Government enacts as follows:
"Article 1 : The export and transit of arms, munitions, [p29] powder and
explosives and other articles of war material is prohibited in so far as
these articles are consigned to the territories of the Polish Republic or of
the Federal Socialist Republic of the Russian Soviets".
[45] A detailed list of the substances and articles, the export and transit
of which are forbidden, was given some days later in a further Order, dated
July 30th, 1920.
[46] The export prohibition contained in the German Neutrality Orders
clearly could not apply to the passage through the Canal of the articles
enumerated when such articles were despatched from one foreign country and
consigned to another foreign country. Nor does the word "transit" appear to
refer to the Kiel Canal; it no doubt only refers to the German territory to
which the stipulations of Article 380 are not applicable. In any case a
neutrality order, issued by an individual State, could not prevail over the
provisions of the Treaty of Peace.
[47] Since Article 380 of the Treaty of Versailles lays down that the Kiel
Canal shall be maintained free and open to the vessels of commerce and war
of all nations at peace with Germany, it is impossible to allege that the
terms of this article preclude, in the interests of the protection of
Germany's neutrality, the transport of contraband of war. The German
Government had not at the time when the "Wimbledon" incident took place
claimed any right to close the Canal to ships of war of belligerent nations
at peace with Germany. On the contrary, in the note of the President of the
German Delegation to the President of the Conference of Ambassadors of April
20th, 1921, it is expressly stated that the German Government claimed to
apply its neutrality orders only to vessels of commerce and; not to vessels
of war. The Court is not called upon to give an opinion in regard to the
legal effect of such statement; but if, as seems certain, it contains, in
regard to the passage of belligerent war vessels through the Kiel Canal, an
accurate interpretation of the Treaty of Versailles, it follows a fortiori
that the passage of neutral vessels carrying contraband of war is authorised
by Article 380, and cannot be [p30] imputed to Germany as a failure to
fulfil its duties as a neutral. If, therefore, the "Wimbledon", making use
of the permission granted it by Article 380, had passed through the Kiel
Canal, Germany's neutrality would have remained intact and irreproachable.
[48] From the foregoing, therefore, it appears clearly established that
Germany not only did not, in consequence of her neutrality, incur the
obligation to prohibit the passage of the "Wimbledon" through the Kiel
Canal, but, on the contrary, was entitled to permit it. Moreover under
Article 380 of the Treaty of Versailles, it was her definite duty to allow
it. She could not advance her neutrality orders against the obligations
which she had accepted under this Article. Germany was perfectly free to
declare and regulate her neutrality in the Russo-Polish war, but subject to
the condition that she respected and maintained intact the contractual
obligations which she entered into at Versailles on June 28th, 1919.
[49] In these circumstances it will readily be seen that it would be useless
to consider in this case whether the state of war between Russia and Poland,
and with it Germany's neutrality, had or had not terminated at the date on
which the "Wimbledon" incident occurred. In war time as in peace time the
Kiel Canal should have been open to the "Wimbledon" just as to every vessel
of every nation at peace with Germany.
B.
[50] The Court having arrived at the conclusion that the respondent,
Germany, wrongfully refused passage through the Canal to the vessel
"Wimbledon", that country is responsible for the loss occasioned by this
refusal, and must compensate the French Government, acting on behalf of the
Company known as "Les Affréteurs réunis", which sustained the loss.
[51] The claim for compensation formulated is tabulated as follows in the
Case filed by the Applicants: [p31]
1. Demurrage: 11 days freight from March21st to April 1st inclusive. The
rate at which the vessel was chartered being 17/6 per ton per month and the
vessel being of 6,200 tons dead-weight, the monthly freight is £ 5,425; on
the basis of the mean rate of exchange from March20th to April 1st, 1921,
that is to say, 56 francs 284
the
amount equivalent to 11 days freight is: |
111.956.20 |
2. Deviation: 2 days
estimated in the same manner : |
20.355.65 |
3. Fuel |
8.437.50 |
4. Contribution of the
vessel to the general expenses of the Company and compensation for
loss of profit : |
33.333.33
------------- |
Total: |
174.082.68 |
with interest at 6 % per
annum from March 21st, 1921. |
|
After the statements by
Counsel the claim under heading (4) was reduced to Frs. 25.000, and
was finally composed as follows: |
4a. Contribution of the
vessel to the general expenses |
13.508.35 |
4b. Stamp duty, etc |
9.491.65 |
Other costs of recovery |
2.000.00
------------ |
Total: francs |
25,000.00 |
[52] And the total claim is
thus reduced to 165.749.35.
[53] As regards the first three items of the claim, which refer to the sums
payable for freight during eleven days demurrage and two days deviation and
the cost of fuel, the Court approves the estimates submitted. The respondent
has not questioned their correctness; moreover these estimates are for the
most part borne out by the evidence produced during the proceedings. As
regards the number of days it appears to be clear that the vessel, in order
to obtain recognition of its right, was justified in awaiting for a
reasonable time the result of the diplomatic negotiations entered into on
the subject, before continuing its voyage. [p32]
[54] The fourth item, which relates to the claim for repayment of the share
of the vessel in the general expenses of the Company, has been contested by
the respondent; the Court considers that he is justified in doing so. The
expenses in question are not connected with the refusal of passage.
[55] The Court has arrived at the same conclusion with regard to the claim
for Government stamp duty and other costs of recovery included under the
same heading.
[56] As regards the rate of interest, the Court considers that in the
present financial situation of the world and having regard to the conditions
prevailing for public loans, the 6 % claimed is fair; this interest,
however, should run, not from the day of the arrival of the "Wimbledon" at
the entrance to the Kiel Canal, as claimed by the applicants, but from the
date of the present judgment, that is to say from the moment when the amount
of the sum due has been fixed and the obligation to pay has been
established.
[57] The Court does not award interim interest at a higher rate in the event
of the judgment not being complied with at the expiration of the time fixed
for compliance. The Court neither can nor should contemplate such a
contingency.
[58] With regard to the limit of time for compliance, the Court is of
opinion that the exigencies of the organisation of government services and
financial and administrative regulations necessitate a longer time than that
suggested by the applicants for the payment of the sum for which Germany is
liable. For this reason the Court has fixed the time at three months.
[59] Payment shall be effected in French francs. This is the currency of the
applicant in which his financial operations and accounts are conducted, and
it may therefore be said that this currency gives the exact measure of the
loss to be made good.
[60] Article 64 of the Statute lays down that each party shall bear its own
costs unless otherwise decided by the Court. The Court sees no reason for
departing from this general rule. [p33]
V. [Disposition]
[61] For these reasons the Court, having heard both parties, declares that
the suit brought before it by the Governments of His Britannic Majesty, of
the French Republic, of His Majesty the King of Italy and of His Majesty the
Emperor of Japan, and in which the Government of the Polish Republic has
intervened, has been validly submitted by all the parties; and passes
judgment to the following effect:
1. that the German authorities on March. 21st, 1921, were wrong in refusing
access to the Kiel Canal to the S.S. "Wimbledon" ; .
2. that Article 380 of the Treaty signed at Versailles on June 28th, 1919
between the Allied and Associated Powers and Germany, should have prevented
Germany from applying to the Kiel Canal the Neutrality Order promulgated by
heron July 25th, 1920 ;
3. that the German Government is bound to make good the prejudice sustained
by the vessel and her charterers as the result of this action;
4. that the prejudice sustained may be estimated at the sum of 140, 749 frs.
35 centimes, together with interest at 6 % per annum from the date of the
present judgment;
5. that the German Government shall therefore pay to the Government of the
French Republic, at Paris, in French francs, the sum of 140, 749 frs. 35
centimes with interest at 6 % per annum from the date of this judgment;
payment to be effected within three months from this day;
6. and that each party shall bear its own costs.
[62] Done in French and English, the French text being authoritative. [p34]
[63] At the Peace Palace, The Hague, this seventeenth day of August one
thousand nine hundred and twenty three, in seven copies, one of which is to
be placed in the archives of the Court and the others to be forwarded to the
Agents of the Governments of the Applicant, Intervening and Respondent
Powers, respectively.
(Signed) Loder,
President.
(Signed) Å. Hammarskjöld,
Registrar.
[64] MM. Anzilotti and Huber, Judges, and M. Schücking, German National
Judge, declaring that they are unable to concur in the judgment delivered by
the Court, and availing themselves of the right conferred on them by Article
57 of the Court Statute, have delivered the separate opinions which follow
hereafter.
(Initialled) L.
(Initialled) A. H. [p35]
Dissenting Opinion by Mm. Anzilotti And Huber
[65] 1. We, the undersigned, are unable to concur in the judgment delivered
by the Court on August 17th, 1923, in the case of the "Wimbledon", for
reasons the most important of which are hereinafter set forth. As the
essential difference between our standpoint and that of the majority
concerns a point which affects the interpretation of international
conventions in general, we feel it to be our duty to avail ourselves of the
right conferred upon us by the Statute to deliver a separate opinion.
[66] In our opinion, the question to be decided is not whether Germany was
in a position to advance, in justification of her refusal to allow the
passage through the Kiel Canal of the steamship "Wimbledon", a neutral duty
taking precedence over the contractual obligation in favour of the shipping
of States at peace with Germany, arising out of Article 380 and the
following articles. The question is rather as follows : Do the clauses of
the Treaty of Versailles relating to the Kiel Canal also apply in the event,
of Germany's neutrality, or do they only contemplate normal circumstances,
that is to say, a state of peace, without affecting the rights and duties of
neutrality ? The question thus stated appears to be in harmony with the
submissions of the Respondent.
[67] 2. Before proceeding to present our argument, one fact which is of no
importance from the standpoint adopted in the judgment, must be noted. At
the time when the steamship "Wimbledon" was refused the right of passage, a
state of war still prevailed between Poland and Russia, and Germany was
therefore still in the position of a neutral. That this was the case is
shown, apart from any considerations with regard to the external and
internal situation of Germany, by the actual terms of the peace
preliminaries and of article 1 of the final Peace Treaty between Poland and
Russia, and more especially by the fact that an armistice forming an
integral part of the Peace preliminaries under Article 13 of those
preliminaries, was in force until the ratification of the final Treaty; this
ratification, however, had not yet taken place at the time in question.
[p36]
[68] 3. It must in the first place be observed that, for the purposes of the
interpretation of contracts which take the form of international
conventions, account must be taken of the complexity of interstate relations
and of the fact that the contracting parties are independent political
entities. Though it is true that when the wording of a treaty is clear its
literal meaning must be accepted as it stands, without limitation or
extension, it is equally true that the words have no value except in so far
as they express an idea ; but it must not be presumed that the intention was
to express an idea which leads to contradictory or impossible consequences
or which, in the circumstances, must be regarded as going beyond the
intention of the parties. The purely grammatical interpretation of every
contract, and more especially of international treaties, must stop at this
point.
[69] In this respect, it must be remembered that international conventions
and more particularly those relating to commerce and communications are
generally concluded having regard to normal peace conditions. If, as the
result of a war, a neutral or belligerent State is faced with the necessity
of taking extraordinary measures temporarily affecting the application of
such conventions in order to protect its neutrality or for the purposes of
national defence, it is entitled to do so even if no express reservations
are made in the convention. This right possessed by all nations, which is
based on generally accepted usage, cannot lose its raison d'être simply
because it may in some cases have been abused; it has more-over been
recognised by a clause inserted in the Barcelona conventions concluded for
the purpose of giving effect to the principle of freedom of communications
which was enunciated in Article 23 of the Covenant of the League of Nations.
[70] This clause runs as follows:
"This Statute does not prescribe the rights and duties of belligerents and
neutrals in time of war. The Statute shall, however, continue in force in
time of war, so far as such rights and duties permit."
[71] The absence of a similar clause in a particular convention cannot be
construed in the sense that the convention must [p37] be applied without
regard to the special requirements of a state of war or neutrality. On the
contrary, the object of the clause is rather to afford a certain guarantee
against possible abuses designed to restrict the application of the
convention to an extent not justified by the special conditions attaching to
a state of neutrality or of war.
[72] At this point, it must be stated that a State may enter into
engagements affecting its freedom of action as regards wars between third
States. But engagements of this kind, having regard to the gravity of the
consequences which may ensue, can never be assumed ; they must always result
from provisions expressly contemplating the situations arising out of a war.
The right of a State to adopt the course which it considers best suited to
the exigencies of its security and to the maintenance of its integrity, is
so essential a right that, in case of doubt, treaty stipulations cannot be
interpreted as limiting it, even though these stipulations do not conflict
with such an interpretation.
[73] This consideration applies with particular force in the case of
perpetual provisions without reciprocity which affect the interests of third
States.
[74] 4. The foregoing considerations could not be effective against a
definite provision expressly referring to the circumstances arising out of a
war. But no such provision is to be found in Part XII, Section VI of the
Treaty of Versailles; on the contrary, this section taken by itself and
compared with the other sections of the same part of this Treaty, or with
other treaties, rather suggests an interpretation in accordance with the
general principles enunciated above.
[75] The main argument of the Applicants upon which the judgment is based,
is taken from the final sentence of Article 380, according to which the Kiel
Canal shall be maintained free and open to the vessels of commerce and war
"of all nations at peace with Germany". It has been deduced from this that
the obligation entered into by Germany is only capable of one limitation,
that is to say, that Germany may refuse access to the canal to the vessels
of nations with which she is at war. In all other circumstances the canal
must be maintained free and open, for a state of war is expressly [p38]
referred to as well as a state of peace, since the article contemplates the
possibility of Germany being herself a belligerent.
[76] Nevertheless, the words "nations at peace with Germany" by no means
necessarily mean that States which are not at war with her are entitled to
avail themselves in all possible circumstances of the provisions of Article
380 and the following Articles ; they rather mean that a state of peace is
the condition upon which the application of these provisions is dependent.
This condition, which is almost self-evident and is of no material
importance, is very naturally inserted in a treaty, the provisions of which
are connected with the reestablishment of a state of peace. It seems
difficult to deduce from it any very far reaching consequences.
[77] Moreover, Article 380 must not be considered alone but in connection
with the other provisions of the same section. It will then be seen that
this Article, the first of the section, lays down the general rule which is
supplemented and limited in the following articles. But it is clear that
these Articles only lay down rules for passage through the canal in so far
as ordinary peace time traffic is concerned. This applies more particularly
with regard to paragraph 2 of Article 381, according to which Germany may
place certain impediments upon the movement of vessels. None of these
impediments relate to the measures which Germany might take in the capacity
of a belligerent or neutral power, so that the alter-native has to be faced
of acknowledging either that Germany is not entitled in this capacity to
take any special measures, or that in this respect her freedom of action has
not been limited by the Treaty. It appears to us, however, difficult to
believe that there was an intention to prohibit Germany from taking the
measures necessary to protect the paramount interests which may be at stake
for her in the event of war or neutrality, whilst her right to take the
necessary measures to ensure respect for her police, customs and sanitary
regulations etc. that is to say, to protect relatively unimportant interests
was formally recognised.
[78] 5. A comparison between article 380 to 386 an Section II of the same
part of the Treaty, relating to navigation on the internal waterways of
Germany, clearly shows that these [p39] articles, though they occupy a place
apart in the Treaty and possess characteristics of their own, much resemble
the provisions of that section. And whereas the differences relate mainly to
the duration of the obligations undertaken by Germany and to the
beneficiaries of these obligations, the general rule laid down in para. 2 of
Article 381 is simply a word for word reproduction of the rule laid down in
paragraph 4 of Article 327; moreover, Section II like Section VI, contains
no provision expressly dealing with a state of war or neutrality. It seems,
however, hardly possible to suppose that, because Germany has undertaken to
allow to the Allied and Associated Powers freedom of transit by her
navigable waterways, without imposing any restrictions other than those
exclusively enumerated in para. 4 of Article 327, she has lost the right of
taking such measures as may be indicated by circumstances in time of war.
Indeed the contrary has been explicitly recognised in the Act for the
regulation of navigation on the Elbe drawn up in execution of the provisions
of the Treaty of Versailles.
[79] 6. Again, if Article 380 should be taken in its strictly literal sense,
it would follow that Germany as a belligerent, would have to allow the canal
to be free and open to the vessels of neutral nations, since such vessels
would belong to nations at peace with Germany. But an obligation of this
kind is hardly conceivable without a corresponding obligation on the part of
the States with which Germany was at war to respect the right of free
passage through the Canal. An obligation imposed upon a State to leave open
a waterway in time of war is only comprehensible in so far as such waterway
is protected from the action of belligerents. This is the case as regards
the Conventions relating to the Suez and Panama Canals. Moreover, whatever
may be the points of semblance and of difference between these two
Conventions, the fact remains that they have taken care to ensure respect
for these maritime waterways in time of war, as being a matter of supreme
importance. The blockade of the canal and enemy acts, either in the canal or
in the adjacent waters, are expressly forbidden; the conditions and
regulations for the transit of belligerent war vessels are precisely laid
down, etc. On [p40] the other hand, no provision of this kind is to be found
in the section of the Treaty of Versailles dealing with the Kiel Canal, and
it is difficult to understand why it has been omitted, if it is true that
the Treaty was intended to institute a régime similar to that established by
the conventions relating to the Suez and Panama Canals. A comparison,
therefore, between these three international agreements strikingly confirms
the conclusion which we have felt obliged to draw from the interpretation of
the various provisions of Section VI and from the relation between that
Section and Section II of Part XII of the Treaty of Versailles. The fact
that certain States which are peculiarly interested in the régime obtaining
in the Baltic are not parties to the Treaty of Versailles furnishes a
further argument tending in the same direction.
[80] 7. The conclusion, therefore, which appears to follow from the
foregoing considerations is that the obligations under-taken by Germany to
maintain the Kiel Canal free and open to vessels of nations at peace with
her does not exclude her right to take the measures necessary to protect her
interests as a belligerent or neutral power. This does not mean that the
Canal is not also free in time of war, but this freedom will then
necessarily be limited either by the exigencies of national defence, if
Germany is a belligerent, or, if she is neutral, by the measures - differing
according to circumstances -which she may take. This principle corresponds
exactly to the rule already mentioned which was adopted in the Barcelona
Conventions. The legal status of the Kiel Canal, therefore, resembles that
of the internal navigable waterways of international concern. Such indeed
would appear to have been the intention of the authors of the Treaty of
Versailles in so far as it can be discerned from the correspondence
exchanged on the subject between the two contracting parties. An indication
in the same direction might also be seen in the fact that whilst Germany
was, under Clause 25 of the Armistice Conditions of November 11th, 1918,
debarred from pleading neutrality, this provision does not reappear either
in the text of the Treaty or in the notes exchanged.
[81] For these reasons, we are of opinion that the only question [p41] to be
decided is whether the application to the Kiel Canal of the neutrality
regulations adopted by Germany was an arbitrary act calculated unnecessarily
to impede traffic. Such a contention appears impossible, having regard to
the statements made during the hearing by the German Agent, which show the
gravity of the international and internal political situation at that time.
[82] 8. The basis of the arguments developed above would be essentially
modified if we were to take as a starting point the fact that Germany
herself has admitted an obligation to allow the men-of-war of belligerents
to pass through the Canal, in spite of her neutrality, and consequently to
fail to comply with an essential obligation of every neutral State, namely
the duty of prohibiting the passage of belligerent forces through her
territory. Such an admission might perhaps be deduced from a passage in the
Note of the German Delegation to the Conference of Ambassadors dated April
20th, 1921, from explanations given in the speech of the German Agent before
the Court, and, above all, from an argument on page 8 of the Rejoinder.
These passages are, however, far from being very clear. At all events, this
admission, which is based incorrectly on the exterritoriality of war vessels
and on the material impossibility of preventing their passage, is in
complete contradiction with the conclusions of the Respondent and with his
essential argument based on the alleged personal and imprescriptible rights
of neutrality. It is even doubtful whether such an admission would not be
contrary to Article 380itself, since the presence of the war vessels of
belligerents might seriously compromise the essential object of this
provision, that is to say, the right of peaceful shipping to pass freely
through the Canal.
[83] Even if the German statements above-mentioned were more conclusive with
regard to the admission in question, it would hardly be possible to consider
them as having the value of an authoritative statement which it would be
possible to adduce.
[84] 9. If the view be adopted that the passage through the [p42] Kiel Canal
of any ship - even if it were a "convoy" within the meaning of Article 2 of
the Fifth Hague Convention of 1907 - could not infringe the neutrality of
Germany, the undersigned feel called upon to make a reservation with regard
to the recognition of a right to international protection for the transport
of contraband. It is not disputed that present international law allows
neutrals the option of suppressing or tolerating in their territory commerce
in and transport of contraband, and more especially of arms and munitions.
Again the transport of such commodities, even under a neutral flag, is not
protected against a belligerent, and the latter is entitled, in certain
conditions, to confiscate as a penalty even the neutral vessel and that part
of its cargo which is not contraband. This is explained by the fact that
commerce in and transport of contraband, although not necessarily affecting
the neutrality of States, is regarded under the law of nations as unlawful
because it assumes the guise of peaceful commerce for warlike purposes. This
idea seems to acquire still greater force when considered in the light of
the Covenant of the League of Nations, and more especially of its Articles 8
and 23 paragraph (d).
[85] For this reason it seems difficult to admit a right, as between neutral
States, enforceable at law to trade in and to transport contraband, whereas
the same interests are unprotected as against a belligerent.
(Signed) Anzilotti.
(Signed) Huber. [p43]
Dissenting Opinion by M. Schücking.
[86] I, the undersigned, am also unable to concur in the judgment of the
Court, for the following reasons:
[87] I. The right to free passage through the Kiel Canal, in my opinion,
undoubtedly assumes the form of a servitus juris publici voluntuaria This
conception, which for centuries has proved extremely useful in international
law, is, it is true, at the present time the subject of controversy amongst
writers on international law, but its importance has in fact been increased
by the peace treaties following the World War. For in these treaties many
legal situations have been created which can be placed in no other category
than that of servitudes of international law.
[88] If the right in question is regarded as a servitude, important
consequences ensue with respect to the present case.
[89] a) According to the teaching of writers on international law, all
treaties concerning servitudes must be interpreted restrictively in the
sense that the servitude, being an exceptional right resting upon the
territory of a foreign State, should limit as little as possible the
sovereignty of that State. According to a purely literal construction of
Article 380, the servitude is excluded from application only in cases where
ships are concerned which belong to nations themselves at war with Germany.
Serious doubts, however, arise as to whether Germany, in order to safeguard
her interests, when placed in the position of a belligerent or neutral,
should in fact, under Article 380, lose the right to take special measures
as regards the canal, not provided for under Article 381, para. 2, also as
against ships belonging to States other than her enemies. The canal is under
the jurisdiction of Germany and it has not been neutralised as the Suez
Canal had been, nor even in a still less complete form like the Panama
Canal. Its use has rather been internationalised, like that of the great
inland waterways. The right to take special measures in times of war or
neutrality has not been expressly renounced ; nor can such renunciation be
inferred from the fact that the Canal [p44] is to be "maintained free and
open." The fact that the right is granted in perpetuity does not in itself
exclude the possibility of regulating or even of temporarily suspending its
exercise, and the essential words which were used to provide for the
neutralisation of the Suez Canal and which were reproduced in the treaty
relating to the Panama Canal namely "in time of war as in time of peace", do
not appear in Article 380. It is possible that a restrictive interpretation
of the treaty establishing the servitude may infringe the purely literal
meaning of Article 380, an interpretation, that is to say, according to
which in time of war and neutrality the Reich, as possessing sovereignty
over the canal zone, is entitled to take such measures against shipping as
in normal times may not be taken by her under Article 380 and the following
Articles. This interpretation, how-ever, is imposed by two further
considerations : In the first place there is the fact that Article 381, para.
2 proves the willingness of the victorious States to guarantee in normal
times the interests of the administration of the riparian State even as
against the right of free passage, a fact which makes it possible to argue
that when provision is made for these less important interests, it is to be
inferred that the more important interests are also covered. In the second
place there is the circumstance that during the peace negotiations Ger-many,
with regard to the clearly inadequate provisions of Article 380, made the
express proposal "a conclure des arrangements précis", though, it is true,
on condition of reciprocity. Seeing that the victorious States did not
accept this suggestion, they must allow the principle of Roman law "obscuritas
pacti nocet ei qui apertius loqui potuit" to prevail against them.
[90] b) Again, according to the teaching of writers on international law the
States benefiting by the servitude are under the obligation civiliter uti as
regards the State under servitude. The vital interests of the State under
servitude must in all circumstances be respected. From this standpoint the
benefiting State must allow its rights at times to be temporarily impaired.
The vital interests of Germany at the moment made it necessary for her to
observe a strict and absolute [p45] neutrality with regard to the war which
was being waged in the immediate vicinity of her frontiers. In this respect
the internal political situation of Germany at the time plays no unimportant
part. Already on several occasions the transit of eastward bound trains
loaded with munitions had given rise in Germany, for instance at Giessen,
Marburg and Untertürkheim, to local disturbances which it had not always
been possible for the police and Reichswehr to master. In several localities
the workers' organisations had decided to use force in order to stop the
transit of war material. Similar occurrences might also have taken place in
the Kiel Canal where, owing to the existence of locks and gates, a ship
could only pass with the assistance of German labour. It is certain that the
principle of respect for treaties requires that the State which has accepted
an obligation should not lightly invoke internal difficulties as an excuse
for disregarding external engagements. But the German Government at that
time was faced with quite exceptional difficulties arising out of Germany's
internal political situation. If it is possible to apply the doctrine of
civiliter uti to a servitude of international law, then the German
Government, in applying also to the Kiel Canal the prohibition against
transit of contraband, did so in order to safeguard its vital interests. In
doing this Germany did not allow a special right of necessity to prevail
over her contractual obligations ; she merely made use of the natural
limitations to which every servitude is subjected.
[91] II. Considerations of another kind also justified Germany in
prohibiting, in spite of Article 380, the passage of the "Wimbledon" through
the Kiel Canal. One of the two belligerent States - Russia - did not
participate in the Versailles Treaty; in my opinion, Germany therefore
remained under an obligation to fulfil her duties as a neutral towards her.
In refutation of this contention, it has been asserted that there is a
general consensus of legal opinion to the effect that when an artificial
waterway connecting two open seas has been permanently dedicated to the use
of the whole world, such waterway is assimilated to natural straits, in the
sense that the neutral riparian State can no longer be held [p46]
responsible either for the passage of ships belonging to belli-gerents or,
probably, for the passage of ships carrying munitions, and this even when
such dedication has taken place only by means of a special agreement. The
existence of such a consensus of opinion, however, does not seem to me to be
sufficiently proved. The practice as regards the Suez and Panama Canals is
adduced as a basis for the opinion in question. In refutation of this
argument, it must once more be stated that the legal situation of the Suez
and Panama Canals is entirely different from that of the Kiel Canal, in
that, as regards the former Canals, neutralisation has taken place in the
sense of a general "Befriedung" (negative neutralisation) of the Canal Zone,
whereas such a neutralisation is not established by Article 380 as regards
the Kiel Canal. Even admitting that the Panama Canal is placed under the
exclusive control of the United States, it is nevertheless true that the
Hay-Pauncefote Treaty of November 18th, 1901, mentions this general
neutralisation and contains a number of provisions in the same sense. In
these circumstances it would appear open to objection to apply de plano to
the Kiel Canal conceptions of international law which have been developed in
connection with the Suez and Panama Canals, when, as has already been
stated, the use only of this Canal has been internationalised, a fact which
undoubtedly tends rather to create a resemblance between it and
international inland waterways.
[92] In these circumstances it is in my opinion at all events necessary to
answer the question whether the passage of the "Wimbledon" was compatible
with Germany's duties as a neutral towards Russia. The answer to this
question must for the following reasons be in the negative.
[93] A close examination of the origin of Articles 2 and 7 of the fifth
Hague Convention of 1907 concerning the rights and duties of Neutral Powers
and persons in land warfare, and of the application of these articles,
during the World War, in particular by Holland in her capacity as a neutral,
shows that the despatch of war material, even when not under military
control or escort, is to be considered as a convoy in the sense of Article 2
of the Convention when it does not [p47] take place as the result of a
commercial transaction, but when the belligerent himself assumes the double
capacity of consignor and consignee, no matter whether the transport is such
a convoy. It follows that the German Reich had not the right to grant the
"Wimbledon" passage through the Kiel Canal seeing that the munitions in
question were despatched by a effected by means of private ships. No neutral
may tolerate the transit through its territory of Polish Mission in Salonika,
were consigned to the Naval Base of the Polish State in Danzig and were the
property of that country; moreover, at that date a state of peace had not
yet been reestablished. As Holland, in the capacity of a neutral, rightly
emphasised in connection with the sand and gravel transport on the Rhine,
and having regard to the fact that one belligerent had in that matter
invoked the Rhine Navigation Act, neutral duties must take precedence over
any contractual obligations. Such is also the doctrine of the writers on
international law (see Richard Kleen: Lois et usages de la neutralité. Paris
1898. Vol I: pp. 223, 224). The violation of the duties of a neutral no
doubt constitutes an offence under international law even when treaty
obligations assumed towards third States can be put forward in support of
such an act. It cannot have been the intention of the victorious States to
bind the Reich, by means of the Versailles Treaty, to commit such offences
as against third States. It would, moreover, have been impossible to give
effect to such an intention, because a legally binding contractual
obligation cannot be undertaken to perform acts which would violate the
rights of third parties.
(Signed) Walther Schücking.
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