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[p5] The permanent Court of
International Justice,
Composed as above,
After deliberation,
Having regard to Articles 48, 54, and 58 to 60 of the Court's Statute,
Whereas, by a Special Agreement dated October 30th, 1924, ratified on March
21st, 1928, and duly notified to the Registrar of the Court on March 29th,
1928, the President of the French Republic and the Swiss Federal Council, in
view of the fact that France and Switzerland, having been "unable to agree
in regard to the interpretation to be placed on Article 435, [p6] paragraph
2, of the Treaty of Versailles, with its annexes, and as it has proved to be
impossible to effect the agreement provided for therein by direct
negotiations,
"Have decided to resort to arbitration in order to obtain this
interpretation and for the settlement of all the questions involved in the
execution of paragraph 2 of Article 435 of the Treaty of Versailles",
Whereas the two Parties have respectively appointed as their Agents,
the French Government, M. Jules Basdevant, Professor in the Faculty of Law
of Paris and Assistant Legal Adviser to the Ministry of Foreign Affairs;
the Swiss Government, H. E. M. A. de Ригу, Swiss Minister to the
Netherlands, and M. Paul Logoz, member of the Swiss National Council and
Professor at the University of Geneva;
and as Counsel,
the French Government, Me Paul-Boncour, Deputy, former Minister and Counsel
before the Court of Appeal of Paris;
the Swiss Government, M. Walter Burckhardt, Professor at the University of
Berne, and M. Paul-Edmond Martin, Professor at the University of Geneva and
Director of the Geneva State Archives;
Having regard to the Cases, Counter-Cases and Replies duly submitted by the
Parties on September 5th, 1928, January 23rd, and June 12th, 1929, and the
documents annexed thereto;
Having duly heard the oral pleadings presented by Me Paul-Boncour and M.
Logoz and the replies made by Me Paul-Boncour, M. Basdevant and M. Logoz on
July 9th, 10th, 11th, 12th, 13th, 15th, 16th, 18th, 19th, 22nd and 23rd,
1929;
Whereas, according to Article 1, paragraph 1, of the said Special Agreement,
"it shall rest with the Permanent Court of International Justice to decide
whether, as between Switzerland and France, Article 435, paragraph 2, of the
Treaty of Versailles, with its annexes, has abrogated or has for its object
the abrogation of the provisions of the Protocol of the Conference of Paris
of November 3rd, 1815, of the Treaty of Paris of November 20th, 1815, of the
Treaty of Turin of March 16th, 1816, and of the Manifesto of the Sardinian
Court of Accounts of September 9th, 1829, regarding the customs [p7] and
economic r�gime of the free zones of Upper Savoy and the Pays de Gex, having
regard to all facts anterior to the Treaty of Versailles, such as the
establishment of the Federal customs in 1849, which are considered relevant
by the Court";
Whereas, under paragraph 2 of the same article of the Special Agreement,
"the High Contracting Parties agree that the Court, as soon as it has
concluded its deliberation on this question, and before rendering any
judgment, shall accord to the two Parties a reasonable time to settle
between themselves the new r�gime to be applied in those districts, under
such conditions as they may consider expedient, as provided in Article 435,
paragraph 2, of the said Treaty. This time may be extended at the request of
the two Parties";
Whereas under Article 2, paragraph 1, of the Special Agreement: "failing the
conclusion and ratification of a convention between the two Parties within
the time specified, the Court shall, by means of a single judgment rendered
in accordance with Article 58 of the Court's Statute, pronounce its decision
in regard to the question formulated in Article 1 and settle for a period to
be fixed by it and having regard to present conditions, all the questions
involved in the execution of paragraph 2 of Article 435 of the Treaty of
Versailles";
Whereas, according to the notes exchanged on October 30th, 1924, between the
French Minister for Foreign Affairs and the Swiss Minister at Paris, it is
understood between the Parties, amongst other things, "that no objection
shall be raised on either side to the communication by the Court to the
Agents of the two Parties, unofficially and in each other's presence, of any
indications which may appear desirable as to the result of the deliberation
upon the question formulated in Article 1, paragraph 1, of the Arbitration
Convention";
Whereas, under Article 3, paragraph 3, of the Special Agreement of October
30th, 1924, the written Reply to be filed by each Party shall formulate "its
final conclusions";
Whereas the Reply filed on behalf of the French Government submits that the
Court should: [p8]
[Translation.]
"In accordance with the letters attached to the Special Agreement,
communicate to the Agents of the two Parties, unofficially and in each
other's presence, any indications which may appear desirable as to the
result of its deliberation upon the question formulated in Article 1,
paragraph 2, of the Special Agreement;
Determine the import of its deliberation and, in the circumstances
contemplated by Article 2 of the Special Agreement, so formulate the
operative part of its judgment that its effect shall be to decide that, as
between France and Switzerland, Article 435, paragraph 2, of the Treaty of
Versailles, with its annexes, has abrogated the provisions of the Protocol
of the Conferences of Paris of November 3rd, 1815, of the Treaty of Paris of
November 20th, 1815, of the Treaty of Turin of March 16th, 1816, and of the
Manifesto of the Sardinian Court of Accounts of September 9th, 1829,
regarding the customs and economic r�gime of the free zones of Upper Savoy
and. the District of Gex;
As soon as it has concluded its deliberation on this question and before
pronouncing any decision, accord to the two Parties a reasonable time to
settle between themselves the new r�gime to be applied in those districts
under such conditions as they may consider expedient, as provided by Article
435, paragraph 2, of the Treaty of Versailles, this time being capable of
extension at the request of the two Parties";
Whereas the Reply filed on behalf of the Swiss Government submits that:
[Translation.]
"1. As between France and Switzerland, Article 435, paragraph 2, of the
Treaty of Versailles, with its annexes, has not abrogated the provisions of
the Protocol of the Conferences of Paris of November 3rd, 1815, of the
Treaty of Paris of November 20th, 1815, of the Treaty of Turin of March
16th, 1816, or of the Manifesto of the Sardinian Court of Accounts of
September 9th, 1829, regarding the customs and economic r�gime of the zones
of Upper Savoy and the District of Gex.
2. As between Switzerland and France, Article 435, paragraph 2, of the
Treaty of Versailles, with its annexes, has not for its object the
abrogation of the provisions of the Protocol of the Conferences of Paris of
November 3rd, 1815, of the Treaty of Paris of November 20th, 1815, of the
Treaty of Turin of March 16th, 1816, or of the Manifesto of the Sardinian
Court of Accounts of September 9th, 1829, regarding the customs and economic
regime of the free zones of Upper Savoy and the District of Gex, that is to
say, that as between Switzerland and France, Article 435, paragraph 2, of
the Treaty of Versailles, [p9] with its annexes, is not intended necessarily
to lead to the abrogation of the aforesaid provisions, but simply means that
Switzerland and France may abrogate them by mutual consent";
Whereas, in the same document, with reference to the fixing of the time
provided for in Article 1, paragraph 2, of the Special Agreement, it is said
that
"The Federal Government reserves the right to make such submissions as may
be indicated in regard to this point when the Court has given the Parties
the necessary indications as to the result of its deliberation upon the
question of interpretation (Article 1, paragraph 1, of the Special
Agreement) on the solution of which are dependent the direct negotiations
here referred to";
Whereas Article 435 of the Treaty of Versailles is as follows:
"The High Contracting Parties, while they recognize the guarantees
stipulated by the treaties of 1815, and especially by the Act of November
20th, 1815, in favour of Switzerland, the said guarantees constituting
international obligations for the maintenance of peace, declare nevertheless
that the provisions of these treaties, conventions, declarations and other
supplementary acts concerning the neutralized zone of Savoy, as laid down in
paragraph 1 of Article 92 of the Final Act of the Congress of Vienna and in
paragraph 2 of Article 3 of the Treaty of Paris of November 20th, 1815, are
no longer consistent with present conditions. For this reason the High
Contracting Parties take note of the agreement reached between the French
Government and the Swiss Government for the abrogation of the stipulations
relating to this zone which are and remain abrogated.
The High Contracting Parties also agree that the stipulations of the
treaties of 1815 and of the other supplementary acts concerning the free
zones of Upper Savoy and the Gex District are no longer consistent with
present conditions, and that it is for France and Switzerland to come to an
agreement together with a view to settling between themselves the status of
these territories under such conditions as shall be considered suitable by
both countries";
Whereas the relevant passages in the annexes to this article are as follows:
[p10]
"I.
The Swiss Federal Council has informed the French Government on May 5th,
1919, that after examining the provisions of Article 435 in a like spirit of
sincere friendship, it has happily reached the conclusion that it was
possible to acquiesce in it under the following conditions and reservations:
1. The neutralized zone of Haute-Savoie:
. . . . . .
2. Free zone of Haute-Savoie and the District of Gex.
(a) The Federal Council makes the most express reservations to the
interpretation to be given to the statement mentioned in the last paragraph
of the above article for insertion in the Treaty of Peace, which provides
that 'the stipulations of the treaties of 1815 and other supplementary acts
concerning the free zones of Haute-Savoie and the Gex District are no longer
consistent with present conditions'. The Federal Council would not wish that
its acceptance of the above wording should lead to the conclusion that it
would agree to the suppression of a system intended to give neighbouring
territory the benefit of a special r�gime which is appropriate to the
geographical and economical situation and which has been well tested.
In the opinion of the Federal Council, the question is not the modification
of the customs system of the zones as set up by the treaties mentioned
above, but only the regulation in a manner more appropriate to the economic
conditions of the present day of the terms of the exchange of goods between
the regions in question. The Federal Council has been led to make the
preceding observations by the perusal of the draft convention concerning the
future constitution of the zones which was annexed to the note of April 26th
from the French Government. While making the above reservations, the Federal
Council declares its readiness to examine in the most friendly spirit any
proposals which the French Government may deem it convenient to make on the
subject.
(b) It is conceded that the stipulations of the treaties of 1815 and other
supplementary acts relative to the free zones will remain in force until a
new arrangement is come to between France and Switzerland to regulate
matters in this territory.
II.
The French Government have addressed to the Swiss Government, on May 18th,
1919, the following note in reply to the communication set out in the
preceding paragraph: [p11]
In a note dated May 5th, the Swiss Legation in Paris was good enough to
inform the Government of the French Republic that the Federal Government
adhered to the proposed article to be inserted in the Treaty of Peace
between the Allied and Associated Governments and Germany.
The French Government have taken note with much pleasure of the agreement
thus reached, and, at their request, the proposed article, which had been
accepted by the Allied and Associated Governments, has been inserted under
No. 435 in the Peace conditions presented to the German plenipotentiaries.
The Swiss Government, in their note of May 5th on this subject, have
expressed various views and reservations.
Concerning the observations relating to the free zones of Haute-Savoie and
the Gex District, the French Government have the honour to observe that the
provisions of the last paragraph of Article 435 are so clear that their
purport cannot be misapprehended, especially where it implies that no other
Power but France and Switzerland will in future be interested in that
question.
The French Government, on their part, are anxious to protect the interests
of the French territories concerned, and, with that object, having their
special situation in view, they bear in mind the desirability of assuring
them a suitable customs r�gime, and determining, in a manner better suited
to present conditions, the methods of exchanges between these territories
and the adjacent Swiss territories, while taking into account the reciprocal
interests of both regions.
It is understood that this must in no way prejudice the right of France to
adjust her customs line in this region in conformity with her political
frontier, as is done on the other portions of her territorial boundaries,
and as was done by Switzerland long ago on her own boundaries in this
region.
The French Government are pleased to note on this subject in what a friendly
disposition the Swiss Government take this opportunity of declaring their
willingness to consider any French proposal dealing with the system to be
substituted for the present r�gime of the said free zones, which the French
Government intend to formulate in the same friendly spirit.
Moreover, the French Government have no doubt that the provisional
maintenance of the r�gime of 1815 as to the free zones referred to in the
above-mentioned [p12] paragraph of the note from the Swiss Legation of May
5th, whose object is to provide for the passage from the present r�gime to
the conventional r�gime, will cause no delay whatsoever in the establishment
of the new situation which has been found necessary by the two Governments.
This remark applies also to the ratification by the Federal Chambers, dealt
with in paragraph 1 (a) of the Swiss note of May 5th, under the heading
'Neutralized zone of Haute-Savoie' ";
Whereas, at the present stage of the proceedings, the Court, is simply asked
to accord to the two Parties a reasonable time to settle between themselves
a "new r�gime" for the free zones of Upper Savoy and the District of Gex; as
this time is to be accorded "as soon as" the Court's "deliberation" on the
question set out in Article 1, paragraph 1, of the Special Agreement is
concluded, and before "rendering any judgment"; as it will rest with the
Court only in certain circumstances and at a later stage to "pronounce its
decision" upon the said question by means of a "judgment rendered in
accordance with Article 58 of the Statute"; but seeing that "no objection
shall be raised" by the Parties to the "communication by the Court
unofficially" to their Agents "of any indications which may appear desirable
as to the result of the deliberation" upon the said question;
Whereas the spirit and letter of its Statute, in particular Articles 54,
paragraph 3, and 58, do not allow the Court "unofficially" to communicate to
the representatives of two Parties to a case "the result of the
deliberation" upon a question submitted to it for decision; as, in
contradistinction to that which is permitted by the Rules (Article 32), the
Court cannot, on the proposal of the Parties, depart from the terms of the
Statute;
Whereas, on the other hand, according to the preamble of the Special
Agreement of October 30th, 1924, there is reason to believe that the
agreement between the Parties contemplated by Article 435, paragraph 2, of
the Treaty of Versailles, has hitherto proved to be impossible because they
have "been unable to agree in regard to the interpretation to be placed
upon" the said article and its annexes; as consequently it would be useless
to grant the Parties time within which to conclude this agreement, without
informing them at the same [p13] time or previously, what, in the Court's
opinion is the correct interpretation of the said texts as between France
and Switzerland;
Whereas the judicial settlement of international disputes, with a view to
which the Court has been established, is simply an alternative to the direct
and friendly settlement of such disputes between the Parties; as
consequently it is for the Court to facilitate, so far as is compatible with
its Statute, such direct and friendly settlement;
Whereas the Court must, in any event, fix by order, in accordance with
Article 48 of the Statute, the time contemplated by Article 1, paragraph 2,
of the Special Agreement; and whereas, in contradistinction to judgments
contemplated by Article 58 of the Statute, to which reference is made in
Article 2, paragraph 1, of the Special Agreement, orders made by the Court,
although as a general rule read in open Court, due notice having been given
to the Agents, have no "binding" force (Article 59 of the Statute) or
"final" effect (Article 60 of the Statute) in deciding the dispute brought
by the Parties before the Court;
Whereas, in case of doubt, the clauses of a special agreement by which a
dispute is referred to the Court must, if it does not involve doing violence
to their terms, be construed in a manner enabling the clauses themselves to
have appropriate effects;
Whereas it is possible, without infringing the provisions of the Statute, to
give effect in all essential respects to the common will of the Parties as
expressed in the Special Agreement, by indicating, in the grounds of the
order according to the Parties the time referred to in Article 1, paragraph
2, of the Special Agreement, the result of the Court's deliberations upon
the question formulated in Article 1, paragraph 1, of that instrument;
As, nevertheless, it is important to set forth clearly that special
agreements whereby international disputes are submitted to the Court should
henceforth be formulated with due regard to the forms in which the Court is
to express its opinion according to the precise terms of the constitutional
provisions governing its activity, in order that the Court may be able to
deal with such disputes in the ordinary course and without resorting, as in
the present case, to a construction which must be regarded as strictly
exceptional, [p14]
Makes the following Order:
As to the evidence:
[1] Whereas, in the course of his argument on July 13th, the Agent for the
Swiss Government filed a volume entitled: Publications des Comit�s suisses
en faveur du maintien des zones franches de 1815 et 1816, and as, in his
reply of July 19th, the Agent for the French Government submitted, as a
preliminary objection, that this publication should not be received in
evidence;
[2] As, in his reply on July 22nd, the Agent for the Swiss Government stated
that he left the decision on this point to the Court;
[3] Whereas, according to Article 52 of its Statute, "after the Court has
received the proofs and evidence within the time specified for the purpose,
it may refuse to accept any further oral or written evidence that one Party
may desire to present unless the other side consents";
[4] Whereas the extracts from the said volume read by the Agent for the
Swiss Government during the hearing are not necessary at the present stage
of the proceedings to enable the Court to form its opinion upon the question
submitted to it by Article 1, paragraph 1, of the Special Agreement;
As to the Court's function:
[5] Whereas, according to Article 1, paragraph 1, of the Special Agreement,
it rests with the Court to decide whether, as between France and
Switzerland, Article 435, paragraph 2, of the Treaty of Versailles, with its
annexes, has abrogated or has for its object the abrogation of the
provisions of the Protocol of the Conferences of Paris of November 3rd,
1815, of the Treaty of Paris of November 20th, 1815, of the Treaty of Turin
of March 16th, 1816, and of the Manifesto of the Sardinian Court of Accounts
of September 9th, 1829, regarding the customs and economic r�gime of the
free zones of Upper Savoy and the District of Gex, having regard to all
facts anterior to the Treaty of Versailles;
[6] Whereas the expression "as between France and Switzerland" has the
effect of limiting the function of the Court solely to that of determining
the reciprocal rights and [p15] obligations arising in connection with the
r�gime of the free zones for the two countries, under Article 435, paragraph
2, of the Treaty of Versailles, with its annexes, apart from the legal
relations as between signatories of the said Treaty resulting from this
article;
[7] Whereas, having regard more particularly to the aim of the Special
Agreement, as this aim appears from its preamble when it states that the
Parties have been unable to agree in regard to the interpretation to be
placed upon Article 435, paragraph 2, of the Treaty of Versailles, with its
annexes; having regard to the fact that the real divergence which was the
cause of the failure of the Parties to reach an agreement, related to the
question whether the r�gime of the zones could be abolished without
Switzerland's consent; and having regard to the fact that the Court cannot
as a general rule be compelled to choose between constructions determined
beforehand none of which may correspond to the opinion at which it may
arrive, the Court is entirely free to interpret Article 435, paragraph 2,
with its annexes, of the Treaty of Versailles upon both points without
restriction, that is, whether it has abrogated the former provisions in
question, and whether it has for its object their abrogation; as, therefore,
if it arrives at the conclusion that the article, with its annexes, has not
abrogated the former provisions relating to the free zones, it is not
obliged to say that it has for its object their abrogation, but, on the
contrary, may equally say that this is not the intention of the article,
with its annexes;
[8] Whereas, in view of the indications afforded by the preamble of the
Special Agreement and by the history of the negotiations which have taken
place between the Parties with a view to reaching the agreement contemplated
by Article 435, paragraph 2, and which have been cited before the Court, the
task of the latter, in replying to the question whether the said article,
with its annexes, has for its object the abrogation of the former provisions
relating to the free zones, is to decide whether or not Switzerland is
obliged to accept, as a basis for the future negotiations contemplated by
Article 1, paragraph 2, of the Special Agreement, the abolition of the
r�gime of the free zones, that is to say, in particular the transfer of the
French customs barrier in these territories to the [p16] political frontier;
and whereas it is, in fact, evident that if France and Switzerland succeed
in reaching the agreement provided for in the said article and in Article 2,
paragraph 1, of the Special Agreement, that agreement, whatever its contents
may be, will have the formal effect of abrogating the former provisions; and
therefore if, in replying to the question put, the Court were not to regard
the expression "has for its object the abrogation of" as meaning "is
intended necessarily to lead to the abrogation of", its reply would not
eliminate the fundamental difficulties which have hitherto impeded the
negotiations between France and Switzerland and which have induced them to
have recourse to the Court;
As to the questions submitted:
[9] Whereas the Court, in performing its function in the light of the
foregoing considerations, must have regard to all facts antecedent to the
Treaty of Versailles, and particularly the establishment of the Federal
customs in 1849, which are considered relevant by it;
[10] Whereas these facts, taken together, are clearly relevant to the
question submitted to the Court in that they explain the conclusion drawn by
the High Contracting Parties to the Versailles Treaty in their declaration
to the effect that "the stipulations of the treaties of 1815 and of the
other supplementary acts concerning the free zones of Upper Savoy and the
Gex District are no longer consistent with present conditions", namely "that
it is for France and Switzerland to come to an agreement together with a
view to settling between themselves the status of these territories under
such conditions as shall be considered suitable by both countries"; and as
the subsequent examination of the question by the Court has been entirely
conducted in the light of this consideration;
[11] Whereas the text itself of Article 435, paragraph 2, of the Treaty of
Versailles draws from the statement that the former stipulations are not
consistent with present conditions, no other conclusion but that France and
Switzerland are to settle between themselves the status of the free zones, a
conclusion which is tantamount to a declaration of disinterestedness as
regards that status, on the part of the High Contracting Parties other than
France; as, in particular, this text does [p17] not set forth the conclusion
that as a necessary consequence of this inconsistency the former
stipulations relating to the free zones are abrogated;
[12] Whereas, furthermore, in Article 435, paragraph 1, of the Treaty of
Versailles, the High Contracting Parties, after stating that the "provisions
of these treaties [of 1815], conventions, declarations and other
supplementary acts concerning the neutralized zone of Savoy.... are no
longer consistent with present conditions", take "note of the agreement
reached between the French Government and the Swiss Government for the
abrogation of the stipulations relating to this zone", adding that these
stipulations "are and remain abrogated";
[13] Whereas the expression "are no longer consistent with present
conditions", when used in the first paragraph of the article, constitutes
the ground on which the High Contracting Parties acquiesce in an agreement
already concluded between France and Switzerland abolishing the neutral
zone; as, when it is used in the second paragraph of the same article, it
also constitutes the ground on which the High Contracting Parties declare
that they acquiesce in an agreement - in this case a future agreement -
between France and Switzerland;
[14] As, consequently - no matter what its significance might be in other
contexts -, there is no reason for regarding the expression "are no longer
consistent with present conditions" as ipso facto involving, in the second
paragraph of the article, the abolition of the free zones, since in the
first paragraph its meaning is not such as automatically to involve the
abolition of the neutral zone;
[15] Whereas, in any event, Article 435 of the Treaty of Versailles is not
binding on Switzerland, which is not a Party to this Treaty, except to the
extent to which that country has itself accepted it; as this extent is
determined by the note of the Swiss Federal Council of May 5th, 1919, an
extract from which constitutes Annex I to this article; as it is by this
action and by this action alone that the Swiss Government has "acquiesced"
in the "provisions of Article 435", namely "under the conditions and
reservations" which are set out in the said note; [p18]
[16] Whereas, amongst the aforesaid conditions and reservations, it is
stated inter alia that "the Federal Council would not wish that its
acceptance of the above wording [i. e. Article 435, paragraph 1, of the
Treaty of Versailles] should lead to the conclusion that it would agree to
the suppression of a system.... which has been well tested", namely the
r�gime of the free zones;
[17] As, accordingly, the said article, assuming that it were possible to
interpret it as involving the abolition of the said r�gime, could not be
operative as between France and Switzerland, unless Switzerland's consent
were not necessary for such abolition;
[18] Whereas the Court is unable to regard as decisive the arguments to the
contrary which it has been sought to deduce from other passages of the said
note of the Federal Council and from the whole of the French note of May
18th, 1919, which forms Annex II to Article 435 of the Treaty of Versailles;
[19] As, with regard to this latter note, the Court - which, though its task
is to interpret the said article with its annexes, nevertheless remains free
to estimate the weight to be attached from this point of view to each of the
annexes - is unable to regard it as possessing any weight for the purposes
of interpretation, having regard especially to the fact that it cannot in
any circumstances affect the conditions of the Federal Council's
acquiescence in the article in question, that acquiescence being a
unilateral act on the part of Switzerland;
[20] Whereas, in regard to the possibility of abolishing the r�gime of the
free zones without Switzerland's consent, the actual terms of Article 435,
paragraph 2, generally speaking, would seem to presuppose the existence of a
right on the part of Switzerland derived from the former stipulations; as,
in the same connection, Switzerland's consent has in fact been sought; and
lastly, as the High Contracting Parties have inserted, after Article 435,
the Swiss note of May 5th, 1919, which, in the Court's opinion, is entirely
based on the existence of such a right on the part of Switzerland;
[21] Whereas, with particular regard to the Sardinian zone, Switzerland, in
her capacity as Party to the Treaty of Turin [p19] of March 16th, 1816, has
acquired a contractual right to the withdrawal of the customs barrier in
that district;
[22] Whereas, with particular regard to the zone of Saint-Gingolph, the
Court, being of opinion that the Treaty of Turin of March 16th, 1816, has
not been abrogated, the same is true as regards the Manifesto of the Royal
Chamber of Accounts of Sardinia dated September 9th, 1829, the question of
the legal nature of that instrument remaining however reserved;
[23] Whereas, with particular regard to the zone of Gex, both Article 435,
paragraph 2, of the Treaty of Versailles and the Special Agreement treat
this zone in exactly the same way as the zone of Upper Savoy; and as this
zone forms part of a territorial arrangement in favour of Switzerland, an
arrangement which, being contemplated in the "Declaration of the Powers
assembled at the Congress of Vienna in regard to Switzerland" of March 20th,
1815, to which Switzerland acceded by act of the Diet of the Helvetian
Confederation dated May 27th. 1815, was restated in the Protocol signed on
November 3rd, 1815, at Paris (this Protocol being referred to in the Special
Agreement and expressly mentioning the withdrawal of the French customs
barriers "from the Swiss frontiers facing the Jura"), and received final
form in Article 1 of the Treaty of Peace signed at Paris on November 20th,
1815, the preamble and third paragraph of this article being as follows:
[Translation.]
"The frontiers of France shall be as they were in 1790, save for the
modifications in one direction or the other which are indicated in this
article.
���������������������������������������
3. In order to establish direct communication between the Canton of Geneva
and Switzerland, that part of the District of Gex bordered on the east by
the Lake of Geneva, on the south by the territory of the Canton of Geneva,
on the north by that of the Canton of Vaud, on the west by the course of the
river Versoix and by a line including the communes of Collex-Bussy and
Meyrin, leaving the commune of Fernex to France, shall be ceded to the
Helvetian Confederation to be united to the Canton of Geneva. The line of
the French customs shall be placed to the west of the Jura, so that the
whole District of Gex shall be outside this line"; [p20]
[24] Whereas the aforesaid Protocol of November 3rd, 1815, was formally
transmitted to Switzerland by the Powers signatory to the Declaration of
Vienna of March 20th, 1815, together with a Declaration of November 20th,
1815, following upon the act of accession of May 27th, 1815, of the
Helvetian Diet to the said Declaration of March 20th, 1815;
[25] Whereas all these instruments, taken together, as also the
circumstances in which they were executed, establish, in the Court's
opinion, that the intention of the Powers was, besides "rounding out" the
territory of Geneva and assuring direct communication between the Canton of
Geneva and the rest of Switzerland, to create in favour of Switzerland a
right, on which she could rely, to the withdrawal of the French customs
barrier from the political frontier of the District of Gex, that is to say,
a right to the free zone of Gex;
[26] Whereas the Court, having reached this conclusion simply on the basis
of an examination of the situation of fact in regard to this case, need not
decide as to the extent to which international law takes cognizance of the
principle of "stipulations in favour of third Parties";
[27] Whereas, if Article 435, paragraph 2, with its annexes, of the Treaty
of Versailles has not, as between France and Switzerland, abrogated the
former provisions relating to the free zones, neither has it for its object
the abrogation thereof; as, in fact, since the High Contracting Parties in
Article 435, paragraph 2, of the Treaty of Versailles, have not drawn from
their statement as to the inconsistency of the former stipulations
concerning the free zones with present conditions any consequence other than
that it is for France and Switzerland to come to an agreement together with
a view to settling between themselves the status of these territories under
such conditions as shall be considered suitable by both countries, without
in any way prejudging the question of the contents of this agreement which,
therefore, may or may not, according to the common will of the Parties, lead
to the abrogation of the r�gime of the free zones; and since Switzerland, in
her note of May 5th, 1919, annexed to the said article, made an express
reservation regarding abolition in the future ("would agree") of the r�gime
of the free zones resulting from the former stipulations concerning them, it
[p21] is impossible to conclude that as between France and Switzerland, the
aforesaid article and its annexes is intended necessarily to lead to the
abrogation of the said provisions, thus compelling Switzerland to accept the
abrogation of the r�gime of the free zones as the only possible basis of the
future agreement between herself and France;
[28] Whereas this view is in no way weakened by the facts antecedent to the
Treaty of Versailles; as, on the contrary, it is corroborated by the facts
relating to the drafting of Article 435 of the Treaty of Versailles which
have been cited before the Court;
As to the time to be granted:
[29] Whereas, having regard to the circumstances of the present case, a
period of approximately nine months seems to be sufficient to allow the
Parties to establish the basis of an agreement which they have themselves,
on many occasions, recognized as highly desirable;
[30] THE COURT
(1) excludes as evidence at the present stage of the case the Publications
des LComit�s suisses en faveur du maintien des zones franches de 1815 ei
1816 filed at the hearing of July 13th, 1929, by the Agent for the Swiss
Government;
(2) accords to the Government of the French Republic and to the Government
of the Swiss Confederation a period expiring on May 1st, 1930, to settle
between themselves, under such conditions as they may consider expedient,
the "new r�gime" to be applied in the districts contemplated by Article 435,
paragraph 2, of the Treaty of Versailles.
[31] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this nineteenth day of August, nineteen hundred and
twenty-nine, in three copies, one of which shall be placed in the archives
of the [p22] Court and the others delivered to the Agents of the Government
of the French Republic and of the Swiss Federal Government respectively.
(Signed) D. Anzilotti,
President.
(Signed) �. Hammarskj�ld,
Registrar.
[32] MM. Nyholm, Judge, Negulesco, Deputy-Judge, and Dreyfus, Judge ad hoc,
whilst concurring in the operative portion of the present order, declare
that they are unable to agree with the reasons to the extent which they have
themselves indicated in the separate opinions set forth hereafter.
[33] M. Pess�a, Judge, while agreeing with the present order, desires to add
thereto the observations which follow hereafter.
(Initialled) D. A.
(Initialled) A. H.
[p23] Opinion by M. Nyholm.
[Translation.]
[34] It will be noted that the order of Court, which is rather an
interlocutory judgment, arrives at the conclusion that the provisions of
1815 involving the withdrawal of the French customs line in the District of
Gex are not abrogated and cannot be abrogated without Switzerland's consent.
This conclusion does not appear justified by the text of Article 435,
paragraph 2, of the Treaty of Versailles.
[35] In this article, the Conference of Versailles, whose authority is
recognized by the Parties, declared that the stipulations of 1815 are no
longer consistent with present conditions, and that it is for France and
Switzerland to come to an agreement together with a view to settling the
status of these territories.
[36] The clause, as it stands, contains a sufficiently clear indication that
an existing state of affairs is abolished and a new state of affairs
established.
[37] No doubt the article would have been still clearer if the first
sentence had been followed by an express declaration of abrogation of the
provisions, and if the second sentence further contained rules for the
establishment of the new state of affairs, and an indication of what would
follow in case of disagreement. But, even without these additions, the idea
of a change in the situation seems sufficiently clear.
[38] In the Court's decision, there is a special argument drawn from a
comparison of the first and second paragraphs of Article 435 to the effect
that the words "are no longer consistent with present conditions" do not, in
the first paragraph, imply automatic abrogation, and that the same must be
the case in the second paragraph. But this argument runs counter to the fact
that in the first paragraph an agreement existed, of which it was sufficient
to take note. The Court then argues that the words "stipulations .... are no
longer consistent with present conditions" are merely a declaration that the
Powers cease to interest themselves in the matter, and that the terms of the
article do not involve an abrogation. But how can it be imagined that a
legislator should [p24] intend to maintain in force rules which he himself
declares to be out of date ? The words, therefore, express the intention
that these rules shall disappear. That such was the intention, and further
that this intention was carried into effect is shown from the fact that the
former situation - withdrawal of the customs line - was replaced by a quite
different situation, namely, that the relations between France and
Switzerland in the districts in question have become free and are made
subject to an agreement to be entered into by the two countries. It is clear
that the former state of things and the new freedom cannot exist at the same
time; they are not two mutually supporting rules; on the contrary, the one
excludes the other. It follows that, from a textual interpretation of
Article 435, the provisions of 1815 are abrogated.
* * *
[39] Against such a result, Switzerland protested. It is important to note
that, at the last moment, Switzerland took certain steps ; but she applied
solely to France in her capacity as a neighbour and not as one of the Powers
which created the Treaty of Versailles. The record indeed shows that
Switzerland never applied to the Powers. All that could be drawn from the
Swiss observations and the French replies is strictly without legal value,
since France, a neighbour and a future opponent in the dispute, had no right
to reply in the name of the Powers.
[40] Switzerland, in her note of May 5th, protested against the abrogation,
and made reservations. But any protest in the note, which emanates from
Switzerland herself, must be based on the existence of a right; it goes
without saying that in view of the wording of the 1815 provisions, in which
Switzerland was not even mentioned, it is for the latter to prove the
existence of the right claimed by her.
[41] To prove her right, Switzerland cannot rely on the mere existence of
the note, which, as has been said, emanates from Switzerland herself. It is
only the insertion of this note as an annex which might in itself constitute
an important element of proof in Switzerland's favour. The publication of an
[p25] annex containing the Swiss contentions is in fact equivalent to an
authoritative interpretation of Article 435.
[42] But, as has been said, the terms of the Swiss note with its
"reservations" imply the prior existence of a right. It is not therefore
possible to place importance, as the Court does, on the fact that, 'in the
note of May 5th, Switzerland states that "she acquiesces .... under
reservations". To make such a declaration it is necessary first to have a
right on which to base oneself.
[43] The Court's decision stops short at the proof which might be drawn from
the insertion of the annex. This proof would be conclusive if the note of
May 5th were the only annex. But this annex loses its effect as proof from
the fact that by the insertion of Annex II, the French note of May 18th,
there are two notes directly opposed to one another. It is no longer
possible to consider one of the notes only, for they are an indivisible
whole and incapable of separation.
[44] The consequence is that the Powers, instead of appending to Article 435
an authoritative interpretation, have set out two arguments which might be
put forward in regard to interpretation. The purpose of this twofold
insertion may be uncertain; but the fact remains that, from the note of May
5th, no- conclusion can be drawn as to the creation of a right for
Switzerland.
[45] In order to revive the importance of the note of May 5th, the only
method is to set aside the French note of May 18th, and this is what the
Court's decision has done. But this result seems to be all the less
admissible, as the reasons do not appear to justify the decision.
[46] As the principal ground for setting aside the note of May 18th, it is
not sufficient to say, as the Court does, that it "is unable to regard as
decisive the arguments to the contrary which it has been sought to
deduce.... from the whole of the French note of May 18th, 1919". Nor does
the second ground for the Court's decision seem any sounder, namely, that
"the Court - which, though its task is to interpret the said article with
its annexes, nevertheless remains free to estimate the weight to be attached
from this point of view to each of the annexes�is unable to regard it [the
French [p26] note] as possessing any weight for the purposes of
interpretation, having regard especially to the fact that it [the note]
cannot in any circumstances affect the conditions of the Federal Council's
acquiescence in the article in question, that acquiescence being a
unilateral act on the part of Switzerland". The above grounds seem to be
simple assertions rather than arguments. The French note of May 18th forms
with the Swiss note of May 5th a single whole explaining the two sides of
the question. If, as the decision says, the French note of May 18th
"cannot.... affect the conditions of [Swiss] acquiescence" which is "a
unilateral act on the part of Switzerland", no more is it possible to say
that the Swiss note could affect the conditions of the French note. The two
notes must be placed on an equal footing without it being possible, apart
from sound reasons to the contrary, to give the preponderance to one of
them. Having set aside the argument based on the insertion of the note of
May 5th, it remains to be considered whether Switzerland has any rights. The
declarations in the note of May 5th lead to suppose that these rights exist,
and this is what the Court's decision seems to recognize. Without discussing
these pretended rights, referred to in Counsel's arguments, the Court merely
says that in its opinion the note of May 5th "is entirely based on the
existence of such a right".
[47] A consideration of the Swiss arguments on this point seems however to
lead to the conclusion that such rights do not exist.
[48] In the first place, Switzerland asserts that the 1815 provisions
created for France a servitude in Switzerland's favour. If these provisions
can involve, as regards the signatory Powers, an obligation imposed on
France, they none the less have nothing in common with the idea of a
servitude, and they are certainly not a servitude as regards Switzerland.
The withdrawal of the customs line is a domestic affair of France. It may de
facto be of importance as regards customs matters for the neighbouring
State, but no de jure relation is thereby set up between the two countries.
[49] Secondly, Switzerland's argument that the provisions are for her
stipulations in favorem tertii is without foundation. Such provisions are
not admissible in inter-states relations. The principle of sovereignty is
opposed thereto. The "stipulation [p27] in favorem tertii" is, by its
nature, a civil obligation which can hardly apply between nations with their
constitutional systems. Amongst other reasons, the unilateral character is
ill suited to relations between States which must be placed on a footing
defined by their reciprocal rights, and further, the execution of such a
provision could not fail to give rise to difficult problems. As a matter of
fact, the stipulation in favorem tertii does not appear to be valid in
international law, for it does not create a right in favour of the third
State, save of course when a new agreement is added to the original one.
This theory is largely accepted by legal doctrine and the opinion of the
most highly qualified authors on international law.
[50] Thirdly, Switzerland maintains that the new r�gime set up by Article
435 (agreement) presupposes that, failing an agreement, recourse must always
be had to the former system. But this interpretation is grammatically
impossible. In such a case it would have been necessary to add words to the
end of the article to make this clear.
[51] Fourthly, it is known that one draft of Article 435, paragraph 2,
contained the clause that the 1815 provisions were abrogated. Evidently, the
removal of these words might constitute an argument in Switzerland's favour.
But information as to the reasons for this removal and the circumstances
connected therewith is entirely lacking. Even with the removal, the text of
Article 435, however, remains clear.
[52] Moreover, there is in the whole matter no information as to the facts
to form the basis for a decision in law. Nothing is known of what took place
at Paris. There are no minutes nor even the slightest indication as to
details. Moreover, it appears from a declaration of M. Ador, published some
years afterwards, that his principal object was the question of Swiss
neutrality, and that, as regards the free zones, he secured that the
question, which was moreover regarded as secondary, "should be dealt with
separately".
[53] It therefore appears that no fact and no argument can justify the Swiss
contention that the provisions of 1815 are maintained in force.
(Signed) D. G. Nyholm. [p28]
Opinion by M. Negulesco.
[Translation.]
[54] The undersigned differs from the majority of the Court for the
following reasons:
[55] On March 29th, 1928, the Government of the French Republic and the
Swiss Federal Council notified the Court of the Special Agreement concluded
between them on October 30th, 1924, concerning the free zones of Upper Savoy
and. the District of Gex.
[56] Article 1 of the Special Agreement states the question put to the
Court.
[57] Under this article, the Court has to decide what is the correct
interpretation of Article 435, paragraph 2, with its annexes, of the Treaty
of Versailles, and to say whether "as between France and Switzerland" that
article and its annexes "has abrogated or is intended to lead to the
abrogation of" the provisions of the treaties of 1815 which established the
free zones of the District of Gex and Upper Savoy.
[58] The request made to the Court that it shall say whether Article 435,
paragraph 2, with its annexes, "has abrogated or is intended to lead to the
abrogation of" the provisions of the treaties of 1815, must be construed as
meaning that, if the Court arrives at the conclusion that the provisions in
question are not abrogated, it must consider whether Article 435, paragraph
2, "is intended to lead to the abrogation of" these provisions. This
expression refers to two different situations, one implying that Switzerland
is under an obligation to abrogate the provisions relating to the free zones
by means of an agreement to be concluded with France, the other, on the
contrary, leaving Switzerland entirely free as to the basis and conclusions
of this agreement.
[59] According to the first of these interpretations, Switzerland's
obligation would be to accept as the basis of the future negotiations the
disappearance of the obsolete regime which compelled France to withdraw her
customs barrier behind her [p29] political frontier; according to the second
interpretation, on the contrary, Switzerland, not being bound in this way,
would be free to conclude or not to conclude the agreement under such
conditions as she considered suitable.
[60] The expression "as between France and Switzerland" seems prima facie,
to be without meaning, for an article of a treaty must be read in the same
way whether it concerns signatories of the treaty or non-signatories.
[61] The expression "as between France and Switzerland" can only be
understood in one way, namely, that it is for the Court to ascertain the
meaning of Article 435, paragraph 2, taken by itself, and then to see, after
examining the annexes and the treaties of 1815, how far the terms of this
article can be enforced as against Switzerland which took no part in the
signature of the Treaty of Versailles.
* * *
[62] The treaties of 1815, concluded for an indefinite period, were imposed
on France in consequence of the situation of fact which made the economic
life of Geneva very difficult owing to the proximity of the French customs
barrier which coincided with the political frontier. It was this which led
the Powers to compel France to withdraw her customs barrier so as to make
possible the creation of the free zones of the District of Gex and Upper
Savoy.
[63] The situation of fact changed during the XIXth century. Switzerland,
having achieved political unity, established her customs barriers on her
frontiers in 1849. The zones which, before 1849, had only received the
produce of the Canton of Geneva, now received produce from the whole of
Switzerland.
[64] France could not, in consequence of this changed situation,
unilaterally denounce the treaties of 1815. When Russia, in 1870, during the
war between France and Germany, declared that she would no longer be bound
by the stipulations of the Treaty of Paris of 1856 concerning the
neutralization of the Black Sea, the Powers assembled at London proclaimed
the principles set forth in the Protocol of January 17th, 1871. The Powers
recognized the right to invoke the clause rebus sic [p30] stantibus as a
ground for the extinction of treaties, but at the same time rejected
Russia's claim to be able unilaterally to denounce a treaty.
[65] Article 19 of the Treaty of Versailles permits changes in or the
abrogation of a treaty which has become inapplicable owing to a new
situation having arisen; but only as a result of a unanimous vote of the
Assembly of the League of Nations and not by means of a unilateral
declaration. Article 19 of the Treaty of Versailles therefore confirms the
validity of the clause rebus sic stantibus and at the same time rejects any
claim to apply it unilaterally.
[66] Article 435 of the Treaty of Versailles is simply the application of
this principle. When the Powers signatory to the treaties of 1815 were
reassembled at Versailles, they were in a position to decide by agreement
whether the claim of France was well founded.
[67] France, in fact, had submitted two claims for the abrogation of former
stipulations: one in regard to the zones of Upper Savoy neutralized from a
military standpoint, and the other in regard to the free zones of Upper
Savoy and the District of Gex.
[68] The Powers signatory to the Treaty of Versailles recognized in both
cases that the French claim was well founded and that the treaties of 1815,
concluded by reason of the situation of fact, were "no longer consistent
with present conditions". The Powers stated' this in the terms of Article
435.
[69] This article is in fact composed of two paragraphs which relate to two
different matters: the first deals with the zone of Upper Savoy neutralized
from a military standpoint and mentions the agreement between France and
Switzerland, the second deals with the free zones of Upper Savoy and the
District of Gex and does not mention this agreement. This is explained by
the fact that, France having recognized at the Conference that Switzerland
had adhered to the Treaty of November 20th, 1815, concerning the zone
neutralized from a military standpoint, Switzerland's consent was required;
on the other hand, as France maintained that Switzerland had taken no part
in the Treaty of 1815 concerning the free zones, the latter country's
consent was not necessary. [p31]
[70] When. the Powers recognized in paragraph 1 of Article 435, as regards
the zone, of Upper Savoy neutralized from a military standpoint, that the
provisions of the treaties of 1815 and other supplementary acts were "no
longer consistent with present conditions", they stated that these
provisions were and remained abrogated; this is expressly set forth in the
last part of the first paragraph, as a consequence of their recognition of
the fact above mentioned: "for this reason the High Contracting Parties take
note of the agreement reached between the French Government and the Swiss
Government for the abrogation of the stipulations relating to this zone
which are and remain abrogated".
[71] The second paragraph begins as follows:
"The High Contracting Parties also agree that the stipulations of the
treaties of 1815 and of the other supplementary acts concerning the free
zones of Upper Savoy and the Gex District are no longer consistent with
present conditions.... "
[72] The expression "also" connects the two paragraphs and shows the
needlessness of a declaration of abrogation which, in the first paragraph,
is the consequence of the establishment of the fact that the stipulations of
the treaties of 1815 are no longer consistent with present conditions. When
the Powers add, in the second paragraph: "and that it is for France and
Switzerland to come to an agreement together with a view to settling between
themselves the status of these territories under such conditions as shall be
considered suitable by both countries", they indicate that the two States
are placed on an equal footing by the abolition of the regime of the free
zones, and consequently that it is for France and Switzerland to settle
between themselves the regime of these territories.
[73] It is in fact generally recognized that the signatories of a great
political treaty, which has changed the map of the world, may abrogate even
tacitly the provisions of previous treaties which are not consistent with
present conditions.
[74] The Treaty of Versailles, in several cases of the abrogation of.
previous stipulations, sometimes proceeds by way of express abrogation, but
at other times abrogation follows implicitly from a declaration to the
effect that conditions have changed. [p32]
[75] Thus Article 31 of the Treaty of Versailles says that the stipulations
of the treaties of April 19th, 1839, which established the status of
Belgium, "no longer conform to the requirements of the situation". It is to
be noted that though abrogation has not been decreed by all the Powers
signatory to the Treaty of Versailles, but only consented to by Germany,
this phrase is to be regarded as the statement of a fact from which
abrogation follows as a consequence. Thus, the Preamble of the Treaty of
Locarno, signed on October 16th, 1925, between Germany, Belgium, France,
Great Britain and Italy, notes the abrogation of the treaties of 1839
concerning the neutrality of Belgium. The same interpretation has been
adopted by the Dutch Government in its negotiations with Belgium, with a
view to the settlement of the situation resulting from Article 31 of the
Treaty of Versailles.
* * *
[76] The preparatory work further demonstrates France's unchanging intention
to abrogate the provisions of the 1815 treaties concerning the free zones
and the attitude adopted by Switzerland, which did not oppose the abrogation
by asserting her right to the free zones.
[77] On December 18th, 1918, the French Ambassador informed the Federal
Council that the French Government "had made up its mind to abolish the
survivals of another epoch which were no longer consistent with present
requirements".
[78] In the French note of February 24th, 1919, sent to the Swiss Minister
at Paris, the question of "substituting for the free zones regime a regime
which would conform to modern ideas and requirements.... and which would be
based on an equitable system of reciprocity" was raised.
[79] But no. reciprocity can be said to exist without the abolition of the
free zones and the establishment of a line of customs at the political
frontier. On April 29th, 1919, in M. Pichon's letter to M. Ador, France's
intentions are clearly specified: firstly, the abolition by the Powers of
the 1815 treaty stipulations and, secondly, the conclusion of an agreement
with Switzerland on an equal footing. [p33]
[80] In the telegram of May 3rd to the French Charge d'affaires, M. Pichon
reaffirms France's wish to abolish the provisions of the 1815 treaties.
[81] Furthermore, Switzerland does not assert either by her note of January
14th, or by her notes of May 2nd and May 5th, that her assent was legally
requisite for the abrogation of the 1815 treaties by which the zones regime
is imposed upon France; it was only on May 29th, 1919, after the insertion
of Article 435 in the Treaty of Versailles, by a decision taken by the
signatory Powers, that Switzerland declares that she has a richt, since the
stipulations of "the 1815 treaties "cannot be modified or replaced otherwise
than by common agreement between Switzerland and France".
[82] The foregoing proves that the signatory Powers to the Treaty of
Versailles, at the time when Article 435 was adopted, did not encounter any
opposition on the part of Switzerland, by way of the assertion of her right.
It is consequently difficult to accept the contention that the Powers,
including France, had proclaimed that a diminution of sovereignty, imposed
upon France, was to continue its existence in the future.
* * *
[83] The two annexes attached to Article 435 of the Treaty of Versailles are
two notes: one dated May 5th, 1919, is addressed to the French Government by
the Swiss Federal Council; the other, dated May 18th, is the French
Government's reply to the note of May 5th.
[84] The two notes were not addressed to the signatory Powers to the Treaty
of Versailles, but were mutually exchanged between the two Governments. They
must be looked upon as unilateral declarations possessing equal legal
weight, since they were inserted in the Treaty before June 28th, 1919, the
date upon which the Treaty was signed.
[85] France brought about the insertion of these notes because it was in her
interest to do so. Article 435 had abrogated the treaty stipulations of 1815
without Switzerland's assent. France, whilst contesting Switzerland's right
to oppose abrogation - since in France's view Switzerland had not
participated [p34] in the 1815 treaties which had created the free zones -,
nevertheless wished on political grounds to obtain her assent for the
purpose of maintaining good neighbourly relations. France claims that the
note of May 5th embodies Switzerland's consent to the abrogation;
Switzerland maintains the opposite.
[86] The Swiss note of May 5th must be considered as a declaration by which
Switzerland recognizes an article of the Treaty subject to the reservations
contained in the declaration. This unilateral action can only have one
effect: to bind Switzerland within, the limits of her own declaration.
[87] By its note of May 5th, the Swiss Government informs the French
Government that after examining the provisions of Article 435, it is happy
to acquiesce therein, under the following reservations. The first
reservation concerning the free zones of Upper Savoy and the District of Gex
is that the Swiss Government does not desire to accede to the declaration by
the Powers "that the stipulations of the treaties of 1815 are no longer
consistent with present conditions", since "its acceptance of the above
wording" might "lead to the conclusion that it would agree to the
suppression of a system.... which has been well tested".
[88] This refusal by Switzerland to accede gives us the interpretation which
the Swiss Government itself attributed to the stipulations of Article 435,
paragraph 2; it recognizes that the words "are no longer consistent with
present conditions" mean the abrogation of the 1815 treaties.
[89] Article 435, paragraph 2, after abrogating the 1815 treaties, provides
for the possibility of France and Switzerland settling in common agreement
between themselves the regime of these territories. The Swiss note of May
5th, by its second reservation, accepts the abrogation on condition that the
zones regime remains in force until a new arrangement is made between
Switzerland and France.
[90] Then, moreover, there follows sub-section (b) of the Swiss note which,
being inserted at the end of the note, is a provision of a transitory
nature:
"(b) It is conceded that the stipulations of the treaties of 1815 and other
supplementary acts relative to the free zones will remain in force until a
new arrangement is [p35] come to between France and Switzerland to regulate
matters in this territory. "
[91] Switzerland agrees that upon the day the new agreement comes into force
the former stipulations will cease to exist. But it is impossible to see by
what legal processus these stipulations will cease to exist unless it is by
the abrogation of the stipulations by the provisions of Article 435,
paragraph 2, of the Treaty of Versailles.
[92] By its note of May 18th, 1919, the French Government in the first place
takes note of the adherence of the Federal Government to the draft article
to be inserted in the Treaty of Versailles, and, as regards the Swiss
reservations relating to the free zones, the French Government agrees with
the Swiss Government to a "provisional" maintenance of the 1815 regime until
the "conventional regime" between the two Powers comes into force. Moreover,
the French Government "have no doubt that the provisional maintenance of the
r�gime of 1815 as to the free zones referred to in the above-mentioned
paragraph of the note from the Swiss Legation of May 5th, whose object is to
provide for the passage from the present regime to the conventional regime,
will cause no delay whatsoever in the establishment of the new situation
which has been found necessary by the two Governments".
[93] Since the two notes are of equal weight legally, we must consider
whether they are in agreement or whether they are contradictory. The
agreement between France and Switzerland, to which the second reservation
relates, not having been so far concluded, it is the first reservation,
consisting in Switzerland's refusal to give her consent to the abrogation of
the 1815 treaties, which must be taken into consideration. And since this is
in contradiction with the note of the French Government of May 18th, the
inference is that the two notes mutually nullify each other and we are
brought back to Article 435, paragraph 2, of the Treaty of Versailles.
[94] It should be observed that at the time when the Treaty of Versailles
was signed, France, who had never abandoned her claim to the abrogation of
the 1815 treaties as regards the free zones, had previously brought about
the insertion, as an annex, of her note of May 18th, 1919, and this further
confirms her intention to abrogate the provisions in question. And [p36]
since France and all the other Powers unanimously adopted Article 435, it is
not easy to say that the Powers meant, contrary to the intention of France,
to continue in the future, for the benefit of Switzerland, the regime of the
free zones which constitutes, as regards France, a diminution of her
sovereignty.
* * *
[95] What the Powers wished to effect by Article 435, paragraph 2, was the
abrogation of the 1815 treaty stipulations. The question is whether they
were entitled to do so without Switzerland's assent. This leads to a
consideration of the question whether Switzerland took part in the 1815
treaties or whether these treaties created a right in favour of Switzerland.
[96] As regards the free zone of Upper Savoy, known as the Sardinian zone,
Switzerland had a right by virtue of the Treaty of Turin of March 16th,
1816, which could not be abrogated by virtue of Article 435, paragraph 2,
without Switzerland's assent.
[97] The facts antecedent to the Treaty of Versailles, in particular the
establishment of the Federal customs in 1849, which are considered relevant
by the Court and which led to the drafting of Article 435, paragraph 2, may,
in so far as concerns the Sardinian zone, justify abrogation by application
of the clause rebus sic stantibus in virtue of an agreement freely concluded
between France and Switzerland.
[98] As regards the Gex zone, it was created by the Treaty of November 20th,
1815, signed and ratified by France with Austria, Great Britain, Prussia and
Russia. Switzerland did not participate in this Treaty either as a signatory
or by her adherence thereto.
[99] Since Switzerland had no contractual right by virtue of the Treaty of
November 20th, 1815, we must consider whether the Powers stipulated a right
in her favour by virtue of that Treaty.
[100] It is possible, in an international convention, to stipulate a right
in favour of a third State. But whereas, according to such municipal laws as
allow of such a stipulation, the third Party has a right by virtue of the
stipulation itself, in international law the States having made such a
stipulation [p37] mutually undertake to conclude - together with the third
State - a supplementary agreement which will be appended to the agreement
originally made. With this object, the treaty may provide for the right of
adherence by third Powers interested therein, and failing a stipulation of
this nature, an agreement between the signatory States and the third State
must be concluded.
[101] The adherence of a third State to a treaty already concluded can only
take place where such a right has been provided for therein. But the Treaty
of November 20th, 1815, does not provide in favour of any other State for
any right of adherence.
[102] The Court, by its Judgment No. 7, laid down that Poland, who was not a
signatory of the Armistice Convention or of the Spa Protocol, cannot avail
herself of these instruments, since, as the Court laid down: "The
instruments in question make no provision for a right on the part of other
States to adhere to them. "
[103] Switzerland, being unable to assert adherence, must prove that an
agreement was concluded between her and the Powers signatory to the Treaty
of 1815 establishing that France had accepted an obligation towards
Switzerland to withdraw her customs barrier and that consequently the
provisions in question cannot be abrogated without Switzerland's consent. If
Switzerland cannot prove that an agreement was made between herself and the
Powers under the conditions above mentioned, it must be concluded that
France can be under no obligation in virtue of the Treaty of November 20th,
1815, except towards the signatory Powers.
[104] Again, in order that a State may make use of a stipulation in its
favour, the name of that State must be mentioned in the treaty in question.
The Treaty of November 20th, 1815, imposes on France the obligation to
withdraw her customs barrier behind her political frontier and does not
indicate that there is any question of a right in favour of Switzerland. The
terms of the Treaty are as follows:
[Translation.]
"The line of the French customs shall be placed to the west of the Jura so
that the whole of the District of Gex shall be outside this line�. [p38]
[105] Switzerland's name does not even appear in the provisions relating to
the creation of the zone. There is nothing but the obligation of France to
withdraw her customs barrier behind the political frontier. As the Treaty
says nothing, it is to be concluded that the Great Powers signatory of the
Treaty of 1815 are the holders of the rights to be exercised against France.
It is impossible, by reason of the silence of a treaty, to create rights in
favour of third States. It is clear that Switzerland has a great interest in
the existence of this zone, but this interest does not justify the exercise
of a right.
[106] Even if it be held that several States may, under a treaty, create
rights in favour of a third State without its name being even mentioned, it
is difficult to say that this treaty cannot be abrogated without such third
State's consent. Thus it cannot be maintained that third Powers at peace
with Germany, which are entitled to free passage through the Kiel Canal,
under Article 380 of the Treaty of Versailles, can by their veto prevent the
abrogation of that provision, notwithstanding the fact that they took no
part in this Treaty.
[107] Even if Switzerland had a right under a stipulation in her favour, she
could only exercise it as long as the Treaty of 1815 has not been abrogated
by the Signatory Powers.
[108] The foregoing conclusions are supported by international precedent in
the case of the Aaland Islands. The position of Sweden with regard to the
Convention signed on March 30th, 1856, between France, Great Britain and
Russia regarding the demilitarization of the Aaland Islands is the same as
that of Switzerland with regard to the Treaty of November 20th, 1815.
[109] The report of the Committee of Jurists (Official Journal of the League
of Nations, October 1920, p. 18) defines the legal position of Sweden in
regard to the Treaty of March 30th, 1856, and formulates the principles
applying to the case:
"As concerns Sweden, no doubt she has no contractual right under the
provisions of 1856, as she was not a signatory Power. Neither can she make
use of these provisions as a third Party in whose favour the contracting
Parties had created a right under the Treaty, since - though it may,
generally speaking, be possible to create a right in favour of [p39] a third
Party in an international convention - it is clear that this possibility is
hardly admissible in the case in point, seeing that the Convention of 1856
does not mention Sweden, either as having any direct rights under its
provisions, or even as being intended to profit indirectly by the
provisions. Nevertheless, by reason of the objective nature of the
settlement of the Aaland Islands question by the Treaty of 1856, Sweden may,
as a Power directly interested, insist upon compliance with the provisions
of this Treaty in so far as the contracting Parties have not cancelled it.
This is all the more true owing to the fact that Sweden has always made use
of it and it has never been called in question by the signatory Powers. "
[110] For the foregoing reasons, the conclusion of the undersigned is that
Article 435, paragraph 2, of the Treaty of Versailles, with its annexes, has
abrogated the provisions of the Treaty of November 20th, 1815, regarding the
free zone of the District of Gex, and has not abrogated the provisions of
the Treaty of Turin of March 16th, 1816, regarding the free zone of Upper
Savoy.
[111] The facts antecedent to the Treaty of Versailles which are considered
relevant by the Court and which led to the drafting of Article 435,
paragraph 2, containing the declaration of the High Contracting Parties to
the effect that the old provisions "are no longer consistent with present
conditions", may, by application of the clause rebus sic stantibus, lead to
the abrogation of the Treaty of March 16th, 1816, concerning the free zone
of Upper Savoy, in virtue of an agreement freely concluded between France
and Switzerland.
(Signed) Demetre Negulesco. [p40]
Opinion by M. Eug�ne Dreyfus.
[Translation.]
[112] However strange be the form in which the Court has felt bound to
express a purely provisional opinion on the interpretation, as between
Switzerland and France, of Article 435, paragraph 2, and its annexes, of the
Treaty of Versailles, its interpretation is clear: these provisions have not
abrogated the old stipulations which created the free zones; they had not
even for their object such abrogation, and that in spite of all the facts
prior to the Treaty of Versailles which the Court declares to be relevant,
but without any influence on its present interpretation under the Special
Agreement.
[113] I very much regret my inability to agree with the reasons in the order
which establish that interpretation, in the first place because they involve
an addition to the terms of the Special Agreement, and secondly because
Article 435, paragraph 2, and annexes, becomes, as between Switzerland and
France, a provision void of meaning, a dead letter.
[114] In Judgment No. 9 (page 12), the Court had laid down a very true
principle the application of which by all tribunals is to be recommended,
namely, that when the terms of a special agreement have a clear meaning
permitting the judge to understand exactly the mission with which he has
been entrusted by the Parties, it is by the terms of that Special Agreement
that he should be guided in his decision, and not by the conclusions which
may have been put forward by the Parties. The Special Agreement which
brought the present suit before the Court is expressed in terms that leave
no room for doubt: as between France and Switzerland, has Article 435,
paragraph 2, of the Treaty of Versailles, with its annexes, abrogated here
and now the provisions establishing the free zones ? or, if it has not
immediately abrogated, has it for its object their abrogation ? These last
words in themselves imply no idea of obligation or compulsion; they
contemplate simply a future abrogation such as France and Switzerland might
decide on in time to come. When the framers of the Treaty of Versailles
provided in Article 435, paragraph 2, that [p41] the stipulations concerning
the free zones were no longer consistent with present conditions and that a
status established by agreement between the two countries should be
substituted therefor in these territories, had they for their object the
abrogation of these stipulations, i. e. to bring about their abrogation in
the future by the Parties concerned ?. That is the only and quite limited
question put by the Special Agreement; its purpose is not in any way to
secure a decision whether possibly abrogation might be realized by agreement
between the two countries, nor yet whether Switzerland would possibly be
bound to consent thereto; neither the words "by agreement" nor the word
"necessarily" are found in the Special Agreement, and the very simple
literal and grammatical interpretation which I adopt seems in every respect
preferable to that which the Court has admitted, and which the Swiss
Government had set forth in its conclusions with a prolixity which shows
that the meaning if the Special Agreement (nevertheless perfectly clear) has
been thereby strangely transformed.
[115] The question which in my opinion should predominate in the whole
discussion was whether Switzerland had a right to the maintenance of the
free zones, and what was the nature of that right as regards each zone; this
question was, however, only examined as a secondary consideration by the
Court. It is beyond dispute that Switzerland was not a Party to the Treaty
of Versailles, and that if it be admitted that she had in the past a
contractual right, that diplomatic instrument could not deprive her of such
right without her consent. As regards the Sardinian zone, Switzerland
certainly draws her right from Article 3 of the Treaty of Turin of March
16th, 1816, signed by her with Sardinia, whose obligations must now be
assumed by France; Switzerland must therefore, in principle, continue to
enjoy that right in spite of Article 435, paragraph 2, of the Treaty of
Versailles, but subject to any possible application of the clause rebus sic
stantibus. The order of Court has justly recognized the relevance in the
matter of such facts prior to the Treaty of Versailles as the establishment
of the Federal customs in 1849, and it may therefore be regretted that the
Court has not at the present moment expressly had before it the question
whether these new facts are such that the change in conditions unilaterally
proclaimed [p42] by Article 435, paragraph 2, of the Treaty of Versailles,
must necessarily involve, as between France and Switzerland, the nullity of
the provisions which more than a century ago set up the Sardinian and Saint-Gingolph
zones. But this point is wholly reserved, and I merely note that at the
moment it is admitted even in the Court's opinion that the facts put forward
by France are in this respect relevant.
[116] As regards the zone of the District of Gex, Switzerland cannot rely on
any right under a treaty. The fact "that the French Government has consented
to withdraw its customs line from the frontiers of Switzerland in the
direction of the Jura" is mentioned for the first time, but purely
incidentally, in the Protocol of November 3rd, 1815, signed by the
plenipotentiaries of Austria, Great Britain, Prussia and Russia and annexed
to the Declaration signed at Paris on November 20th, 1815. Article 3 of the
Treaties of Paris signed on November 20th, 1815, by France with Austria,
Great Britain, Prussia and Russia, afterwards determined the exact limits
within which the customs line should be withdrawn.... This forms the birth
certificate of the Gex zone; it runs as follows: "The French customs line
shall be placed west of the Jura in such a way that the whole of the
District of Gex shall lie outside this line. "
[117] It is important to note that neither in the Protocol of November 3rd,
nor, above all, in Article 3 of the Treaties of November 20th, 1815, is
Switzerland mentioned; although she did adhere by a formal act to the
Declaration of Vienna of March 20th, 1815, by which the Powers signatory of
the Treaty of Paris recognized and guaranteed her perpetual neutrality,
Switzerland adhered neither to the Protocol of November 3rd nor the
Declaration of November 20th, 1815, to which the Protocol was annexed. These
instruments are quite distinct from the Declaration of March 20th, 1815,
which had a quite different purpose, and accession to the latter cannot
involve accession to the former. Nor did Switzerland sign the Treaties of
November 20th, 1815, which fixed the limit of withdrawal of the customs, nor
did she adhere or accede to their previsions it was Pictet-de Rochemont, her
envoy, who obtained for her the privilege of a withdrawal of the customs
line by France, but Switzerland [p43] took part neither in the Protocol of
November 3rd, 1815, which lays down the principle, nor in the treaties which
carry it out: she therefore acquired from France no contractual right. The
advantage of a free zone was granted to her by Austria, Great Britain,
Russia, Prussia and later Portugal (identical treaty with France dated
August 28th, 1817) by a stipulation in her favour; now these same Powers in
Article 435, paragraph 2, of the Treaty of Versailles declare that the
stipulations of the treaties of 1815 and of the other supplementary acts
concerning the free zone of the District of Gex are no longer consistent
with present conditions and that a regime to be established by agreement
between France and Switzerland shall be put in their place. They therefore
undid in 1919 what they had done in 1815, and they consequently authorized
France to re-establish her customs line at her political frontier.
[118] Switzerland disputes this and, in the absence of a direct contractual
right such as she has never claimed in regard to the Gex zone, she claims
that the Powers signatory to the Treaties of Paris at least made a
stipulation on her behalf and thus gave her a veritable right which they
cannot deprive her of without her consent.
[119] The theory of the stipulation in favorem tertii, which the Court
declared to be effective in the present case, without, however, expressing
an opinion as to its admissibility in international public law, is well
known in private law; but its forms vary infinitely in different municipal
legislations, and whereas for instance Article 112 of the Swiss Federal Code
on Contracts proclaims the entire validity of stipulations on behalf of a
third Party, Article 1121 of the French Civil Code only admits these in two
cases: when they form a condition of a stipulation made on one's own behalf
or of a gift made to another.
[120] In view of this diversity in the nature and legal effects 01 the
stipulation in favorem tertii in municipal law, there can be no question of
transferring it as such into international public law, nor in particular of
giving it such an unlimited field of application as in the present case. It
therefore seems certain that it cannot be laid down as a general rule that a
State which stipulates on behalf of another State, guarantees [p44] the
latter, not being a Party to the treaty in which the stipulation appears, an
individual and irrevocable right, the execution of which it might personally
demand, even if the State stipulating declared that it freed the debtor
State from the obligation imposed upon it in favour of the third State. Such
is the predominant view of authorities at the present date, and it is summed
up as follows by Professor Anzilotti, President of the Permanent Court of
International Justice, in his Course of International Law, French edition,
1929, vol. I, page 424:
"Whereas the law of a State may lay down that where a stipulation has been
made in favorem in the absence of a special rule in derogation of general
principles, a right of the third State to tertii, that third Party
immediately acquires the right to demand its fulfilment or acquires that
right by a simple act of its own will, the very structure of the
international legal system shows that demand the execution of stipulations
favourable to it can only arise in virtue of an agreement between the
contracting Parties on the one side and the third State on the other. "
[121] Thus, the stipulation in favorem tertii is contrary to the usual
structure of the international legal system. How then can it be given legal
effect ?
[122] The same ideas have prevailed in international practice; it is enough
for me to quote Article 380 of the Treaty of Versailles, which certainly did
not intend to confer any irrevocable right on the States for which it opened
access to the Kiel canal. It is admitted that as regards the withdrawal of
the French customs line, Switzerland signed no agreement either with the
Allied Powers or with France in 1815; whereas the Declaration of November
20th, 1815, in its last paragraph, invited all the Powers of Europe to
accede to its provisions, and in fact numerous States did so accede,
Switzerland alone neither adhered nor acceded in any form whatever to it,
without doubt because she considered that she could not draw any right from
that treaty. She merely profited by it and cannot now, a century later,
claim that these diplomatic instruments in which her name is not even
mentioned conferred upon her any right. The Treaty of November 20th, 1815,
imposed on France a duty to do something: to place her customs line west of
the Jura in such a way that the whole [p45] District of Gex lies outside
that line. From that obligation to do something, which was carried out by
the French State, there may have resulted for Switzerland certain
advantages; but the only obligation entered into by France in 1815 was
towards the Allied Powers. From the moment that those Powers, in 1919,
having again met together, declared that they freed France from her
obligation, the latter cannot exist in �ter-num merely because some
advantages accrued to Switzerland, a third State, from its execution. Still
less can this be the case when, in freeing France from her obligation, the
Allied Powers took account of the special interests of Switzerland or rather
of Geneva, since they recommended the two countries to give to the zones
territories a special status, which France, moreover, has declared herself
ready to grant.
[123] In these circumstances and as regards the Gex zone, Article 435,
paragraph 2, of the Treaty of Versailles certainly put an end to the former
situation, which was based on no right in favour of Switzerland. Nor must it
be said that, in the terms in which it is expressed, this clause was devoid
of all abrogatory effect. When the French Government in 1919, without in any
way being obliged to do so, spontaneously communicated to M. Gustave Ador
the draft which became paragraph 2 of Article 435 of the Treaty of
Versailles, the Federal Council itself replied, in its note of May 5th,
1919, that it made express reservations precisely because it did not wish
that "its acceptance of the above wording should lead to the conclusion that
it would agree to the suppression of a system intended to give neighbouring
territory the benefit of a special regime which is appropriate to the
geographical and economic situation, and which has been well tested". From
this declaration by the Federal Government it follows that the intention of
the provision which has textually become Article 435, paragraph 2, certainly
had for effect the suppression, here and now, of the free zones. It may be
submitted that this interpretation was supported by oral conversations at
the moment, and it seems really impossible ten years afterwards to maintain
that this clause had no abrogatory significance, even if this contention
were based on the different wording of the two paragraphs of Article 435. It
must not be [p46] forgotten that if the first paragraph expressly abrogates
the provisions relating to the neutral zone, this is solely because it
merely constitutes a recognition of an agreement already arrived at; the
word "also" in paragraph 2 further shows that the declaration of changed
conditions should have the same meaning in the two paragraphs and should
equally involve the abrogation of the provisions distinctly referred to
therein.
[124] It is for these reasons that I am led to conclude that, as between
France and Switzerland, Article 435, paragraph 2, and its annexes, have
abrogated the provisions of the Protocol of the Conferences of Paris of
November 3rd, 1815, and of the Treaties of Paris of November 20th, 1815,
which created the Gex zone. As regards the zones of Upper Savoy and Saint-Gingolph,
subject to a subsequent decision by the Court to the effect that the facts
declared relevant by it in the affair permit the application here of the
rule rebus sic stantibus, I consider that the same clause had for its object
their abrogation. If it had not at least had this object, the clause would
mean nothing, for it is not sufficient to say that, in signing it, the
Allied Powers, who had formerly imposed on France the humiliation of placing
her customs line within her political frontier, could solely have wished to
declare that henceforth they ceased to interest themselves in the matter and
that they now authorized France and Switzerland to settle it as they thought
fit. Sardinia before 1860 and France afterwards had no need of a declaration
of disinterestedness by the Powers signatories to the treaties of 1815 to
modify the regime of the free zones in concluding with Switzerland the
Conventions of June 8th, 1856, June 30th, 1864, June 14th, 1881, and October
20th, 1906. When the signatory Powers, in Article 435, paragraph 2, framed
what is claimed to be a declaration of mere disinterestedness in regard to
the question of the free zones as between France and Switzerland, they did
not intend to make a platonic and theoretical declaration; this declaration
had, in their intention, an object and must produce a practical effect. When
these Powers solemnly declared that the stipulations concerning these free
zones were no longer consistent with present conditions, they did not merely
wish to declare - what was obvious and had [p47] already been done in the
past - that Switzerland and France might henceforth settle the status of
these territories as they thought fit; in so far as their declaration
inscribed in paragraph 2 of Article 435 did not ipso jure abrogate the free
zones because it ran counter to a right which might be put forward as
against France, it at least meant that abrogation in the future appeared
necessary and that it was extremely desirable that the two countries should,
if possible, succeed in bringing it about.
(Signed) Eug�ne Dreyfus.
[p48] Observations by M. Pess�a.
[Translation.]
I.
[125] The object of orders, in the words of Article 48 of the Statute, is
"the conduct of the case", the decision as to "the form and time in which
each Party must conclude its arguments".
[126] In the present case it seems to me that there is no question of this.
France and Switzerland, having "been unable to agree in regard to the
interpretation to be placed on Article 435, paragraph 2, of the Treaty of
Versailles, with its annexes", and having need of this interpretation "to
settle the new regime" contemplated by the said article for the territories
of Upper Savoy and the District of Gex, have requested the Court to say,
"before pronouncing any decision", whether Article 435 "has abrogated or is
intended to lead to the abrogation of" certain provisions of the Treaty of
Paris of November 20th, 1815, and other instruments.
[127] What the two countries therefore seek from the Court is a legal
opinion as to the doubtful interpretation of a treaty. What they seek from
it is therefore its views as to this interpretation. There is no question of
arranging for "the conduct of the case" or deciding the time and form for
the conclusion of the respective arguments, which is the purpose of orders;
it is in reality a question of an advisory opinion sought by the actual
Parties to the dispute, notwithstanding the definite terms of Articles 14 of
the Covenant and 72 of the Rules of Court, according to which only the
Council or Assembly of the League of Nations may ask the Court for advisory
opinions, and the Court may only give such opinions to one of those bodies.
When doubts arose between Turkey and Greece regarding the interpretation of
the Agreement of December 1st, 1926, the two countries did not directly
approach the Court with a request for the correct interpretation of the
instrument; it was the Council of the League [p49] of Nations which did so.
The Franco-Swiss case is entirely similar; there was no reason for pursuing
a different course, especially seeing that that course is contrary to the
very terms of a clause of the Court's constitutional provisions.
[128] If it is desirable to extend the Court's powers, let the Covenant be
amended and the Court be given all the powers considered to be expedient;
but so long as the Covenant remains as it is, the Court cannot, of its own
authority, arrogate to itself a power which the Covenant expressly withholds
from it.
[129] It is contended that in the present case, the purpose of the order is
to fix a period of time - namely, that contemplated by Article 1, paragraph
2, of the Special Agreement.
[130] But in actual fact this is not so, for the fixing of this time follows
the decision given by the Court in the order in regard to the points at
issue between the two Parties and is scarcely an effect or consequence of
this decision. The main object of the order is to establish what is, in the
opinion of the Court, the true construction of Article 435 of the Peace
Treaty and to convey this opinion to the Parties in reply to their request
for the opinion of the Court. The time-limit comes afterwards and cannot
even be fixed unless the decision as to the interpretation has been given;
this clearly shows that the time-limit is merely a secondary and incidental
point in the order.
[131] It is impossible therefore to avoid the logical conclusion: the case
is not one for judgment, since the Special Agreement expressly rules out a
judgment; nor is it one for an advisory opinion, since neither the Council
nor Assembly has asked for one; nor for an order, which is not required for
the purpose of the conduct of the case; and since the Court can only express
a decision by one of these three means, it follows that it should have
refused to entertain the case, on the ground that the clause whereby the
Special Agreement seeks the Court's opinion is not valid, having regard to
the imperative terms of Article 14 of the Covenant and Article 72 of the
Rules of Court. [p50]
II.
[132] I quite agree with the Court when it states that Article 435,
paragraph 2, of the Treaty of Versailles has not abrogated the provisions of
the Treaty of 1815 and other supplementary instruments.
[133] With regard, however, to the other question put by the Special
Agreement, I venture to make the following observations:
[134] According to Article 435, the free zones constitute a regime which is
not consistent with present conditions. It says so in definite terms. It is
easy to understand why: this regime involves a restriction upon the
sovereignty of France, which, in principle and like any other nation, is
entitled to exert its fiscal authority throughout its territory as far as
the line of its political frontier. The intention of the Treaty therefore is
that such a regime should disappear. A regime which is no longer consistent
with present conditions should not remain unaltered. It should be replaced
by another. The intention, the idea - "the object" - of the Treaty is
therefore the abrogation of this r�gime. But the new regime is to be created
by mutual agreement between the two countries. The agreement will thus
relate not to the actual fact of replacement, but solely to the form and
conditions of replacement.
[135] The last part of paragraph 2 of Article 435 expressly contemplates a
new r�gime. How can the Treaty contemplate a new regime if its object is not
the abrogation of the present one ?
[136] The two countries refer continually to a "new arrangement". How can
they contemplate a new arrangement if there is no idea of replacing the
existing one ?
[137] It is pointed out that in Annex I, Switzerland opposes the abolition
of the zones. But the note of May 29th indicates better the ideas of that
country: it recognizes that the former stipulations "may be modified or
replaced by mutual agreement" between the Parties. It therefore acquiesces
in the abrogation contemplated by Article 435, for the replacement of a
r�gime also involves its abrogation. [p51]
[138] Finally, it appears to me that the second question of the Special
Agreement might have been answered by stating that Article 435 has for its
object the abrogation as between France and Switzerland of the provisions of
the Treaty of 1815 and other supplementary instruments, and the replacement
of them, by means of an agreement between the two countries, by others which
are consistent with present circumstances, the former regime remaining in
force until the new one is adopted.
[139] It is perhaps a question of form and not of substance, for the Court
(pages 15-16) recognizes that if the two countries succeed in reaching the
agreement provided for in Article 435, paragraph 2, this agreement will have
the formal effect of abrogating the former provisions; but it appears to me
that the terms of the reply indicated above would be more exactly in
accordance with the intention and wording of the Treaty.
(Signed) Epitacio Pess�a.
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