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[p4] On May 15th, 1930, the
Council of the League of Nations adopted the following Resolution:
"The Council of the League of Nations has the honour to request the
Permanent Court of International Justice, in accordance with Article 14 of
the Covenant, to give an advisory opinion upon the following question:
'Is the special legal status of the Free City of Danzig such as to enable
the Free City to become a Member of the International Labour Organization?'
The Council authorizes the Secretary-General to submit the present request
to the Court, to give all assistance necessary in the examination of the
question and, if necessary, to take steps to be represented before the
Court. [p5]
The International Labour Office is requested to afford the Court all the
assistance which it may require in the consideration of the question hereby
submitted."
[1] In pursuance of this Resolution, the Secretary-General submitted to the
Court, also on May 15th, a Request for an advisory opinion in the following
terms:
"The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of May 15th, 1930, and in virtue of
the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an
application requesting the Court, in accordance with Article 14 of the
Covenant, to give an advisory opinion to the Council on the question which
is referred to the Court by the Resolution of May 15th, 1930 (see attached
text).
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of this matter, and will, if necessary,
arrange to be represented before the Court."
[2] The Request was accompanied by the text of the report upon which the
Council adopted its Resolution above mentioned.
[3] Subsequently, the Secretary-General also sent the minutes of the meeting
at which this Resolution was adopted, and further at the request of the
Director of the International Labour Office the text of the documents in
the possession of that Office concerning the desire of the Free City to
become a Member of the International Labour Organization, namely: two
memorials emanating from the Danzig Senate, two letters from the Polish
member of the Governing Body of the International Labour Office to the
Director of the Office, and extracts from the minutes of two meetings of the
Governing Body.
[4] In conformity with Article 73, No. 1, paragraph 1, of the Rules of
Court, the Request was communicated to the Members of the League of Nations
and to States entitled to appear before the Court. The Registrar further
sent to the Senate of Danzig, to the Polish Government and to the Director
of the International Labour Office, which were regarded by the [p6]
President of the Court the latter not being in session as likely, in
accordance with the terms of Article 73, No. 1, paragraph 2, of the Rules,
to be able to furnish information on the question in regard to which the
Court's opinion was sought, a special and direct communication informing
them that the Court was prepared to receive from them written statements
and, if desired, to hear oral statements made on their behalf at a public
hearing to be held for this purpose. The Registrar also addressed, on May
28th, 1930, to all States or Members of the League stated by the Director of
the International Labour Office to be, at that date, Members of the
International Labour Organization, a communication drawing their attention
to their rights under Article 73, No. 1, paragraph 3, of the Rules of Court
[FN1].
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[FN1] Should any State or Member referred to in the first paragraph have
failed to receive the communication specified above, such State or Member
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[5] By an order made on May 19th, 1930, the President of the Court fixed
Monday, June 30th, 1930, as the date by which written statements, if any,
were to be filed with the Registry of the Court; at the request of the Free
City of Danzig, this time was extended, by means of an order dated June
28th, 1930, until Thursday, July 10th, 1930. By that date, written
statements had been deposited with the Registry on behalf of the Senate of
the Free City, of the Polish Government and of the International Labour
Office.
[6] The Court, in the course of public sittings held on August 4th, 5th, 6th
and 7th, heard the oral arguments of M. Kaufmann on behalf of the Danzig
Senate, M. Rundstein on behalf of the Polish Government, and MM. Albert
Thomas and Morellet on behalf of the International Labour Office.
[7] In addition to the statements and observations of the Governments and
Organization concerned, and to the documents transmitted by the
Secretary-General of the League of Nations, as mentioned above, the Court
has had before it the collection of documents relating to the preparation of
the Convention concluded between the Free City and Poland [p7] on November
9th, 1920, the collection of international agreements concluded by or on
behalf of the Free City, and lastly the collection of decisions rendered by
the High Commissioner of the League of Nations at Danzig.
I.
[8] The above-mentioned Request for an advisory opinion was submitted to the
Court in the following circumstances:
[9] As early as the first half of 1929, the Senate of the Free City of
Danzig would seem to have taken steps with a view to the admission of the
Free City as a Member of the International Labour Organization.
[10] In fact, the documents submitted to the Court include a memorial dated
May 11th, 1929, emanating from the Danzig Senate and purporting to set forth
the considerations which actuated the Senate in taking certain steps to
which reference is made with a view to obtaining membership of the
International Labour Organization. These considerations were, in the first
place, its wish to adhere to certain agreements prepared by International
Labour Conferences, and in the second place its conviction that unless the
Free City were a Member of the Organization, if it did so adhere, the effect
of such adhesion would be merely that of a Danzig local legislative measure.
[11] However that may be, by a letter dated January 20th, 1930, the Polish
member of the Governing Body of the International Labour Office requested
the Director of the Office to place on the agenda for the forty-seventh
Session of the Governing Body an item concerning the "request of the Free
City of Danzig to be allowed to adhere to the International Labour
Organization"; to this letter the Danzig memorandum of May 11th, 1929, was
attached.
[12] By a further letter, dated March 27th, 1930, the Polish member sent the
Director a further memorial by the Senate of the Free City, dated March
15th, 1930, setting forth the legal grounds on which the Free City based its
request for admission. [p8]
[13] In his two letters, the Polish member reserved the right to submit to
the Governing Body a detailed statement of the question at issue, or to give
his opinion on the contentions set forth in the memorials filed on behalf of
the Free City.
[14] The request of Danzig was duly placed on the agenda for the
forty-seventh Session of the Governing Body, and the matter came up for
discussion there on February 3rd, 1930. On that occasion it was understood
that a legal memorandum on the question of the admission of the Free City of
Danzig would be submitted by the Office to the Governing Body at its
forty-eighth Session.
[15] This memorandum has been communicated to the Court by the Polish
Government; subsequently, the Director of the International Labour Office,
being apprised of this fact, filed with the Court an extract from a letter
which he had received from the German member of the Governing Body and in
which certain reservations and observations were made in respect of the
contents and conclusions of the memorandum emanating from the International
Labour Office.
[16] The Labour Office memorandum submitted that the question whether, from
the legal point of view, the Free City possessed the capacity to become a
Member of the Labour Organization should be referred to the Court, which
alone was capable of solving the difficult legal problem involved. It was
also submitted that this course could be adopted in view of the wide terms
of Article 423 of the Versailles Treaty, and that the precise terms of the
question to be placed before the Court might be as follows:
"Is the special legal status of the Free City of Danzig such as to enable
the Free City to become a Member of the International Labour Organization?"
[17] The matter again came before the Governing Body of the International
Labour Office at its forty-eighth Session, and, on April 26th, 1930, it
decided, after a discussion no member voting against the motion to cause
the question set forth in the Labour Office memorandum to be submitted to
the Court for an advisory opinion.
[18] Accordingly, the Director of the International Labour Office sent to
the Secretary-General of the League of Nations the [p9] same day a letter in
which, after stating that the Governing Body "had unanimously decided, in
conformity with Article 423 of the Treaty of Versailles", to submit to the
Court the question reproduced above, the Director requested the
Secretary-General to bring the decision of the Governing Body before the
Council of the League of Nations with a view to obtaining from the Court an
advisory opinion on the question above quoted.
[19] The Council of the League of Nations dealt with the matter during its
fifty-ninth Session and adopted, on May 15th, 1930 the President of the
Danzig Senate, the High Commissioner of the League at Danzig and the
Director of the International Labour Office having been invited to take
their places at the Council table the Resolution reproduced at the outset
of this Opinion.
II.
[20] Attention must first be drawn to two points in connection with the
wording of the question upon which the Court is asked to give an advisory
opinion.
[21] Firstly, it is the special legal status of the Free City of Danzig upon
which the stress is laid. It is the effect which that special legal status
may have upon the admissibility of the Free City to the Labour Organization
which is the subject of the question. The Court has therefore concluded that
it is only difficulties arising from circumstances which are peculiar to the
status of the Free City that it is asked to take into consideration.
[22] Secondly, the question is so worded as to ask only whether the Free
City can become a Member of the Labour Organization. The Court has assumed
that it is not intended thereby to limit the question to that of the
admissibility of the Free City to the Organization, but to include the
question whether the Free City, if admitted, could participate in the
activities of the Labour Organization and fulfil the duties incumbent upon
its Members.
[23] The International Labour Organization was established by Part XIII of
the Treaty of Versailles of June 28th, 1919. It [p10] is in that part of the
Treaty that one would, therefore, expect to find the rules regulating the
admission of Members to the Organization and prescribing the qualification
for membership. The only provision however connected with the admission and
qualification of Members is the second paragraph of Article 387, which reads
as follows:
"The original Members of the League of Nations shall be the original Members
of this Organization, and hereafter membership of the League of Nations
shall carry with it membership of the said Organization."
[24] It is not impossible that the intention of the Parties to the Treaty of
Versailles was that membership of the League of Nations and membership of
the Labour Organization should coincide, and that no State or community
should be a Member of the Labour Organization unless it was also a Member of
the League. This question, however, is not one which is connected with the
special legal status of Danzig. It has not been dealt with in the written
statements nor in the oral arguments addressed to the Court, and therefore
the Court has not taken it into consideration for the reasons given above.
The case has been considered solely from the point of view of whether the
special legal status of the Free City is compatible with membership of the
Labour Organization. But the fact that the Court has given its answer to the
question upon this basis must not be taken as prejudging in any way its
opinion upon the larger question, if at any time that question should be put
to it.
[25] The Free City of Danzig came into being as a result of the peace
settlement effected by the Treaty of Versailles.
[26] By Article 102, the Principal Allied and Associated Powers agreed to
establish the territory there defined as a Free City, and declared that it
was to be placed under the protection of the League of Nations.
[27] By Article 103, provision was made for the elaboration of a
constitution for the Free City in agreement with a High Commissioner to be
appointed by the League. This constitution was to be placed under the
guarantee of the League.
[28] By Article 104, the Principal Allied and Associated Powers pledged
themselves to negotiate a treaty, to which Poland [p11] and the Free City
were to be the Parties, and which was to come into force simultaneously with
the establishment of the Free City, for the purpose of securing to Poland
certain rights, mainly of an economic character, within the territory of the
Free City. Paragraph (6) of this article stated that the treaty was to
provide that the Government of Poland should undertake the conduct of the
foreign relations of the Free City.
[29] The Treaty referred to in Article 104 was in fact concluded between
Poland and Danzig and is dated November 9th, 1920. It is known as the Treaty
or Convention of Paris. Its provisions repeat and amplify in some respects
the stipulations of Article 104 of the Treaty of Versailles; but, so far as
concerns provisions which are to be found in both Treaties, their repetition
in the Treaty of Paris does not vary the fact that the Treaty of Versailles
is the source of the rights conferred on Poland in accordance with Article
104, nor does it alter the fact that, so far as these rights involve a
limitation on the independence of the Free City, they constitute organic
limitations which are an essential feature of its political structure.
[30] The special juridical status of the Free City is seen from the above to
comprise two elements: the special relation to the League of Nations, by
reason of its being placed under the protection of the League and by reason
of the guarantee of the constitution, and the special relation to Poland, by
reason of the conduct of the foreign relations of the Free City being
entrusted to the Polish Government.
[31] The Principal Allied and Associated Powers carried out their mandate
under Article 102 of the Treaty of Versailles and constituted the Free City
of Danzig, "on the terms and conditions laid down in the said Treaty", by a
decision which was dated October 27th and was to come into force on November
15th, 1920; it was accepted by the representatives of Danzig on November
9th.
[32] The constitution of the Free City had meanwhile been elaborated by a
Constituent Assembly in agreement with the High Commissioner of the League,
and on November 17th of the same year a decision was taken by the Council of
the League placing the Free City under the protection of the [p12] League
and giving the guarantee of the League to its constitution, as provided in
Articles 102 and 103 of the Treaty of Versailles. At the same time, the
Council directed certain amendments to be introduced into the constitution,
in order to make it plain that the provisions of the constitution did not
override the right of Poland, under Article 104 (6) of the Treaty of
Versailles, to conduct the foreign relations of the Free City.
[33] The precise scope of the protection of the Free City by the League and
of the guarantee of its constitution have not been exhaustively denned.
[34] The general effect of the reports and resolutions adopted by the
Council of the League, such as those of November 17th, 1920, and March 2nd,
1921, is to show that the duty of the League is to ensure the continued
existence of the Free City on the footing on which it was established in
accordance with the Treaty of Versailles, and that it was in order to enable
the League to achieve this purpose that the Free City was placed under its
protection and the constitution placed under its guarantee. Accordingly, the
Council has declared that it is bound to ensure orderly, peaceful and stable
government at Danzig, to protect it from outside aggression and to see that
without the consent of the League no fundamental change is made in the
Treaty of Paris, nor any change in the constitution of the Free City. The
protection of the Free City and the guarantee of its constitution would
justify such claims. They would not prevent the Free City from becoming a
Member of the Labour Organization.
[35] No detailed stipulations were inserted in the Treaty of Paris
regulating the conduct by the Polish Government of the foreign relations of
the Free City. The principle laid down in Article 104 (6) of the Treaty of
Versailles was repeated. In consequence, many differences of opinion as to
foreign affairs arose between Poland and the Free City, but a practice,
which seems now to be well understood by both Parties, has gradually emerged
from the decisions of the High Commissioner and from the subsequent
understandings [p13] and agreements arrived at between the Parties under the
auspices of the League.
[36] It is now common ground between Poland and the Free City that the
rights of Poland as regards the conduct of the foreign relations of the Free
City are not absolute. The Polish Government is not entitled to impose a
policy on the Free City nor to take any step in connection with the foreign
relations of the Free City, against its will.
[37] On the other hand, the Free City cannot call upon Poland to take any
step in connection with the foreign relations of the Free City which are
opposed to her own policy. As the High Commissioner said in his decision of
December 17th, 1921, if Poland were obliged to do so, she would come under
the domination of the Free City, and this was certainly not contemplated by
the Treaty of Versailles.
[38] The result is that, as regards the foreign relations of the Free City,
neither Poland nor the Free City are completely masters of the situation.
The Free City is entitled to care for, her own interests and to see that
nothing is done which is prejudicial to them. Poland is entitled to care for
her own interests arid to refuse to take any action which would be
prejudicial to them.
[39] Other decisions of the High Commissioner and agreements between Poland
and the Free City have regulated the representation of the Free City at
international conferences and the manner in which correspondence between the
Free City and foreign States is to be conducted. It has also been agreed
that where, with the concurrence of the Polish Government, the Free City has
become a Party to a convention which provides for direct correspondence or
intercourse between the technical organizations of the contracting States,
the Polish concurrence in the Free City becoming a Party to the convention
implies Polish consent to direct communication between the technical
organizations of the Free City and those of other States.
[40] The way in which the International Labour Organization carries on its
work has been explained to the Court in broad [p14] outline in the written
Statement filed by the International Labour Office and in the oral argument
of the Director. It is clear that the activities of the Labour Organization
cover a wide field, and that the lines on which they are carried on are
novel in character.
[41] The nomination of delegates to a Labour Conference, the way in which
such delegates vote at a Conference, the method by which majority decisions
of a Conference are embodied in recommendations or draft conventions, the
duty imposed on Members to submit such draft conventions to the "competent
authorities" of their country and to ratify the draft conventions if they
are approved by these "competent authorities", the method by which failure
to observe the provisions of a convention can be made the subject of
representations or complaints, of enquiry by a commission, of legal
proceedings and of sanctions, all present features which differ from the
proceedings of the ordinary diplomatic conference, from the way in which
conventions drawn up at such conferences are brought into force and from the
method by which a contracting Party to any such convention can secure
redress if his interests are prejudiced by a violation of its terms by
another Party.
[42] The arrangements now in force as to the representation of the Free City
at international conferences, as to the conduct of correspondence and as to
direct contact between technical organizations in the Free City and in other
States, show that at the time when these decisions of the High Commissioner
were given, or when the subsequent agreements were concluded, neither Party
had in view the participation of the Free City in the work of the Labour
Organization. These arrangements could not as they stand be made applicable
to any such participation, and they cannot be regarded as applying to the
circumstances which would arise if the Free City were admitted to the Labour
Organization.
[43] The question whether the special juridical status of the Free City is
compatible with membership of the Labour Organization [p15] must, therefore,
be considered without reference to the above arrangements, and must be dealt
with on the footing that, as the result of the Treaty of Versailles, the
conduct of the foreign relations of the Free City is entrusted to the
Government of Poland, and that in consequence the Free City is not in a
position to oblige the Polish Government to take any action in the conduct
of those foreign relations which is contrary to the interests of Poland
herself.
[44] It is unnecessary for the Court, even if it were in a position to do
so, to make an exhaustive analysis of the various activities of the Labour
Organization in order to determine which of them fall within the category of
foreign relations. A proportion may be assumed to fall wholly within the
domestic sphere, but it is impossible to avoid the conclusion that some of
the steps which a Member of the Labour Organization would take some even
which it might be bound to take in pursuing the normal activities of
membership would fall within the sphere of foreign relations. Such acts as
the ratification of a draft convention or the filing of a complaint against
another Member State for failure to observe the provisions of a convention
must clearly belong to the field of foreign relations. The Free City as a
Member of the Labour Organization could not take any such steps itself. It
would be obliged to use the Polish Government as its intermediary, and
therefore in all such cases Polish consent would be necessary, because the
Polish Government would be entitled to refuse to take these steps on behalf
of the Free City if they were prejudicial to important interests of the
Polish State.
[45] The Court has not found any provision in Part XIII which absolves a
Member of the Labour Organization from complying with the obligations of
membership or excuses it from participating in the normal activities of the
Organization if it cannot first obtain the consent of some other Member of
the Organization. Apart therefore from any such possible difficulties as
those referred to at the beginning of this Opinion, [p16] the Court
considers that the Free City of Danzig could not participate in the work of
the Labour Organization until some arrangement had been made ensuring in
advance that no objection could be made by the Polish Government to any
action which the Free City might desire to take as a Member of that
Organization.
[46] If such an agreement were concluded between Poland and the Free City of
Danzig, the fact that the conduct of the foreign relations of the Free City
is entrusted to the Polish Government would not constitute an obstacle to
the Free City becoming a Member of the Labour Organization.
[47] It is not for the Court to indicate the provisions which should be
inserted in any such agreement, but it is necessary to point out that, if
the agreement involved any modification of the special legal status of the
Free City, it might be subject to a veto under Article 6 (2) of the Treaty
of Paris, and therefore it might be desirable that it should not be
concluded without the concurrence of the Council of the League.
[48] No such agreement exists at the present moment, and the Court feels
bound to answer the question upon which it is asked to give an advisory
opinion on the basis of the existing situation.
[49] For these reasons,
The Court,
by six votes to four,
is of opinion
that the special legal status of the Free City of Danzig is not such as to
enable it to become a Member of the International Labour Organization.
[50] Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-sixth day of August, nineteen
hundred and thirty, in two copies, one of which is to be deposited in the
archives of the [p17] Court, and the other to be forwarded to the Council of
the League of Nations.
(Signed) D. Anzilotti,
President.
(Signed) A. Hammarskjold,
Registrar.
[51] MM. Anzilotti, President, and Huber, Vice-President, declaring
themselves unable to concur in the Court's opinion, and availing themselves
of the right conferred by Article 71 of the Rules of Court, have delivered
the separate opinions which follow.
[52] M. Loder, former President, availing himself of the right conferred by
Article 71 of the Rules of Court, has attached to the opinion this statement
of his dissent.
(Initialled) D. A.
(Initialled) A. H. [p18]
Individual Opinion by M. Anzilotti.
[Translation.]
[53] Very much to my regret I do not concur in the opinion of the Court and
it is my duty to say so. Since, in my view, a dissenting opinion should not
be a criticism of that which the Court has seen fit to say, but rather an
exposition of the views of the writer, I shall confine myself to indicating
as briefly as possible what my point of view is and the grounds on which it
is based.
[54] 1. If the actual terms of the question put are taken and if regard is
had to the fact that it has its origin in an application by the Free City of
Danzig for admission to the International Labour Organization, the natural
inference is that this question relates in the first place to the admission
of the Free City into that Organization.
[55] Since the International Labour Organization is governed by Part XIII of
the Treaty of Versailles, it is in this Part that the provisions dealing
with the admission of Members to the Organization and prescribing the
qualifications required in order to become, a Member of it, must be sought.
The only provision relating to the admission of Members and the
qualifications required for such admission is paragraph 2 of Article 387,
according to which "the original Members of the League of Nations shall be
the original Members of this Organization, and hereafter membership of the
League of Nations shall carry with it membership of the said Organization".
As there is no other article of Part XIII of the Treaty of Versailles
relating directly or indirectly to the membership of the International
Labour Organization, it is permissible, prima facie, to conclude that
membership of the Organization is merely the corollary of that of Member of
the League of Nations.
[56] 2. It should however be observed that the request seems to proceed
from a different hypothesis, namely, that it would be possible for the Free
City to become a Member of the International Labour Organization
independently of its admission [p19] to the League of Nations. This is
pointed to by the fact that the application of the Free City is addressed to
the Labour Organization; the discussions which took place in the Governing
Body of the International Labour Office and the written and oral statements
submitted to the Court would also seem to confirm it.
[57] As the hypothesis assumed by the request relates to a point of law, the
Court cannot accept it without first ascertaining whether it is sound or
not. It is clear that the Court cannot give an opinion based on a hypothesis
which is contrary to treaties in force.
[58] The first question to be decided therefore is: Does Part XIII of the
Treaty of Versailles allow membership of the International Labour
Organization to be acquired by other means than admission to the League of
Nations?
[59] 3. My answer is definitely in the negative. To my mind there is no
doubt that the intention of the Parties to the Treaty of Versailles was that
membership of the League of Nations and that of Member of the International
Labour Organization should coincide, and to prevent a State or political
community from becoming a Member of the International Labour Organization
without at the same time being a Member of the League of Nations.
[60] I am prepared to admit that Article 387, paragraph 2, taken literally,
confines itself to indicating two categories of Members of the Organization
and does not explicitly exclude the possibility of there being others. But
since this clause is the only one in the whole of Part XIII which deals with
membership of the International Labour Organization, and since it is
impossible to adhere to a treaty except in the circumstances and under the
conditions laid down for such adherence, the only possible conclusion is
that there is no way of entering the International Labour Organization other
than that indicated by Article 387, paragraph 2.
[61] Moreover, it is hardly conceivable that the authors of the Treaty of
Versailles would have preserved absolute silence in regard to the numerous
and difficult questions to which the admission of new Members to the
International Labour Organization would give rise, if such admission were
possible otherwise than in the case contemplated by Article 387, paragraph
2, [p20] which case is governed by Article 1 of the Covenant of the League
of Nations. On the other hand, the Treaty of Versailles contains many
indications in favour of the interpretation of Article 387, paragraph 2, set
out above. Mention may be made of Article 23, letter a, of the Covenant of
the League of Nations; paragraph 1 of the Preamble to Part XIII; Article
392; Article 422, etc.; from all these provisions it clearly appears that
the International Labour Organization was conceived as an association
between the Members of the League of Nations for the fulfilment of a mission
indissolubly bound up with the mission of the League itself.
[62] 4. In this way I reach the conclusion that the hypothesis upon which
the request proceeds cannot be accepted by the Court, because it is in
contradiction with the Treaty of Versailles.
[63] Having stated this, the Court should, in my opinion, have declared that
it could not give the opinion for which it was asked. To my mind, it is
equally inadmissible for the Court to comply with a request based on a
hypothesis which is legally unsound or for the Court to modify the request
in order to bring it into harmony with what the Court holds to be the law in
force. It would have been for the Council to alter the request in accordance
with the Court's indications, if it thought fit to ask for an opinion on the
basis of such indications.
[64] This conclusion also seems indicated by considerations of another
order. If it be granted that the only way of becoming a Member of the
International Labour Organization is by admission to the League of Nations,
the question which arises is whether the special legal status of the Free
City of Danzig is such as to enable the Free City to become a Member of the
League of Nations. Membership of the International Labour Organization being
merely a necessary consequence of admission to the League of Nations, the
question put by the request would be a preliminary or incidental question in
the procedure for the admission of the Free City to the League of Nations.
But the admission of Members is a matter falling within the exclusive
jurisdiction of the Assembly; it would therefore seem that the Assembly
alone could ask the Court for an advisory opinion on the question thus
envisaged. [p21]
[65] 5. The foregoing are the conclusions which follow if the request be
construed in accordance with its natural meaning and the circumstances which
led to the adoption of its wording.
[66] It is however a matter for consideration whether the question put to
the Court cannot be interpreted as though, leaving aside the matter of the
admission of the Free City into the International Labour Organization, it
only related to the compatibility of the features peculiar to the legal
status of the Free City with the exercise by the Free City of the rights and
the fulfilment by it of the obligations of Members of the International
Labour Organization.
[67] Although, as has been said above, the request seems to proceed from a
different point of view, it is not perhaps altogether impossible to limit in
this way the question submitted to the Court. At all events, only by
adopting this standpoint could the Court deal with it.
[68] 6. The question whether the special legal status of the Free City is
compatible with membership of the International Labour Organization is in
substance the question whether the fact that the Free City is placed under
the protection of the League of Nations and that the conduct of its foreign
affairs is in the hands of Poland is calculated to prevent the Free City
from exercising the rights and performing the obligations attaching to
membership of the Organization.
[69] Nevertheless, the question must first be considered whether a State or
political community the foreign relations of which are conducted by another
State and which, therefore, does not enjoy absolute freedom in the field of
international relations, is not, on this ground alone, unable to be a Member
of the International Labour Organization.
[70] There seems little room for doubt that the answer to this question is
in the negative. Whatever interpretation be placed on paragraph 2 of Article
387 of the Treaty of Versailles, it is certain that, by the combined action
of this clause and of the second paragraph of Article 1 of the Covenant of
the League of Nations, not only States but also Dominions and Colonies which
are fully self-governing are already and may become Members of the
International Labour Organization. [p22]
[71] This also follows from paragraph 1 of Article 421 of the Treaty of
Versailles, which obliges Members of the International Labour Organization
to apply conventions to which they have adhered "to their colonies,
protectorates and possessions which are not fully self-governing". This
restriction, which is unaccompanied by any other clause designed to ensure
the application of conventions in the territories in question, is only
reconcilable with the principle of the potential universality of the
Organization formulated in paragraph 3 of the Preamble of Part XIII, because
colonies, possessions or protectorates which are fully self-governing are
able to become Members of the Organization.
[72] Now what distinguishes Dominions and Colonies which are fully
self-governing from States is, above all, the fact that such Dominions and
Colonies, though enjoying a very wide measure of self-government, do not or
do not necessarily possess the right themselves to conduct their foreign
relations. The right of self-government which Article 1 of the Covenant
considers as a condition necessary for admission to the League of Nations
and on which Article 421, paragraph 1, of the Treaty of Versailles is based,
can therefore only be a right relating to internal affairs, for otherwise
the interpretation of this article would lead to absurd or contradictory
results.
[73] In the face of provisions so clear and definite, the only possible
conclusion is that the fact that the Free City only enjoys a limited freedom
in the field of international relations is not in itself incompatible with
membership of the International Labour Organization.
[74] 7. On the other hand, there is hardly room for doubt that the Free
City can only be a Member of the International Labour Organization if Poland
were to consent to its admission and if the competent organs of the League
of Nations were not to make use of their right of veto. Whatever the
juridical nature of the act whereby the Free City might enter the
International Labour Organization, it is certain that this act would create
international obligations for the Free City; accordingly, the provisions of
Chapter I of the Convention of November 9th, 1920, are applicable. [p23]
[75] It follows that any discussion as to the compatibility of any
particular provision appertaining to the status of the Free City with Part
XIII of the Treaty of Versailles must set out from the assumption that the
Free City were a Member of the International Labour Organization with the
consent of Poland and without opposition on the part of the competent organs
of the League.
[76] 8. It seems possible to understand this consent in two different
ways.
[77] In the first place, it may be thought that the question simply relates
to the consent to be given by Poland to the admission of the Free City to
the International Labour Organization, subject to all stipulations at
present in force. In that case the question to be decided would be the
following: Would such consent have the effect of placing the Free City in a
position to take part in the activities of the International Labour
Organization and to fulfil the obligations incumbent on its Members? This
amounts to asking whether all the provisions which at present govern the
relations between the Free City and Poland, more especially as regards the
conduct of foreign relations, are compatible with the provisions of Part
XIII of the Treaty of Versailles. It is easy to see that there are cases in
which this compatibility is at least doubtful.
[78] But this does not seem to be the question put. For it must be
remembered that this question refers to the special legal status of the Free
City as a whole; that is to say, also to the question whether that status
permits or does not permit of modifications. This standpoint seems also to
be in accordance with the views and wishes of the Parties concerned. It is
certain that the representatives of Poland and of the Free City and the
Director of the International Labour Office emphasized that there was no
question of deciding a dispute, but of throwing light upon an obscure legal
situation and of finding some way of enabling the Free City to benefit by
the advantages of the International Labour Organization. For this reason I
think that Poland's consent if given to the admission of the Free City
to that Organization should be considered from a more general standpoint.
[p24]
[79] Two questions thus arise: (a) Has Poland the right to consent to the
admission of the Free City to the International Labour Organization, even if
such consent must involve a modification of the special legal status of the
Free City as at present in force? (b) If so, what would, generally speaking,
be the effects of such consent in regard to the special legal status of the
Free City?
[80] 9. Ad (a) The representatives of the Polish Government contended
before the Court that the Convention of Paris rested on Article 104 of the
Treaty of Versailles, and that consequently Poland and the Free City could
not modify the Convention in such a way as to overstep the limits fixed by
that article.
[81] This contention seems to me to be unjustified. Article 104 of the
Treaty of Versailles entrusts to the Principal Allied and Associated Powers
the negotiation of the terms of a convention between the Polish Government
and the Free City, and indicates the points with which the convention should
deal or the objects which it should be designed to attain. Now this
Convention which is the Convention of Paris of November 9th, 1920
expressly provides, in Article 40, paragraph 1, for the possibility of
modifications by agreement between Poland and the Free City. There is
therefore nothing to prevent Poland from exercising the rights conferred
upon her by this Convention; these rights, moreover, have been conferred
upon her in her own interests, the interests of the Free City being
sufficiently safeguarded by the protection of the League of Nations.
[82] 10. Ad (b) This point having been established, and since the Free
City would be a Member of the International Labour Organization with the
consent of Poland which consent, it is assumed, would not have been
opposed by the League of Nations the question which arises is no longer
whether the present legal status of the Free City is compatible with
membership of the International Labour Organization, but rather what
modifications such membership would involve in the Free City's status as it
is at present.
[83] In regard to this, the following observations are called for.
[84] There is no doubt that membership of the International Labour
Organization involves the fulfilment of all the obligations [p25] laid by
Part XIII of the Treaty of Versailles upon Members of that Organization.
Poland's consent, therefore, could not be given subject to limitations or
reservations which would make it impossible for the Free City to fulfil any
particular obligation. Rather may it be said that consent validly given
would have the effect of authorizing the Free City to do all that is
necessary to fulfil its duties, even if that implied a limitation of the
rights at present belonging to Poland with regard to the conduct of Danzig's
foreign relations. A consent which did not have this effect would not amount
to consent.
[85] On the other hand, when the fulfilment of obligations is not in
question, but when it is a question of the exercise of rights which each
Member is free to exercise or not, there is nothing to prevent Poland from
retaining in relation to the Free City the powers and prerogatives conferred
upon her by the stipulations in force. When a Member is free to do or to
refrain from doing something, he must abstain from doing it if obligations
validly entered into require it. Moreover, there is no reason why Poland's
consent should be construed as going beyond an authorization to fulfil the
duties of a Member; only an unequivocal expression of an intention of Poland
could have effects going beyond such an authorization.
[86] Of course, all this in no way prevents the question from being settled
subject to the League of Nations right of veto by previous agreements
between Poland and the Free City. I have simply intended to indicate what
might be the general lines of such agreements and what would be the
principles applicable if such agreements did not exist or did not deal with
some particular point. On these lines the Court might have given the
interested Parties the indications for which they asked and which alone
would perhaps have enabled practical results to be reached.
[87] 11. A general study of the question must necessarily stop at this
point. I will merely refer by way of example or as an instance of
application to some of the questions which have been discussed by the
interested Parties. [p26]
[88] It is, for instance, clear that from the standpoint which I have
adopted, it is useless to consider whether participation in the General
Conference of Members does or does not fall within the sphere of "foreign
relations" within the meaning of Article 104 of the Treaty of Versailles and
the Convention of Paris. One thing is certain, namely that the Members of
the International Labour Organization must be able to take part in the
General Conference and, should occasion arise, in the Governing Body of the
International Labour Office. It is also certain that such participation must
be in accordance with the rules laid down in Articles 389 and 393. Supposing
that Danzig were to become a Member of the Organization with the consent of
Poland, the latter could certainly not invoke against Danzig the rules at
present in force regarding the representation of the Free City at
international conferences in order to prevent it from appointing its own
delegates and this holds good even if it be admitted that the General
Conference of Members falls within the category of international
conferences. On the other hand, there is nothing to prevent the Free City
from undertaking to submit the appointment of its own delegates for previous
approval by the Polish Government.
[89] Similarly, as regards the judicial settlement of disputes, if it be
held that the jurisdiction established by Article 423 of the Treaty of
Versailles takes precedence of any other jurisdiction provided for by
particular agreements between Members, it must be admitted that Poland, by
giving her consent to the admission of the Free City to the International
Labour Organization, would in so doing consent to the substitution of the
jurisdiction of the Court for that provided for in Article 103 of the Treaty
of Versailles and Article 39 of the Convention of Paris, of course only as
regards the disputes to which Article 423 relates. And the League of
Nations, by not exercising its right of veto, would also renounce its right
to raise any objection based on Article 103 of the Treaty of Versailles.
[90] On the other hand, no modification seems necessary in so far as
concerns the ratification of draft conventions prepared by the General
Conference of representatives of Members and the filing of complaints under
Article 411. It is certain that [p27] each Member is free to ratify or not;
it is also certain that the reason why a convention is not ratified has no
juridical importance. The Senate of the Free City, to which the right of
ratification belongs, could therefore always ascertain whether Poland
consented and should refuse to approve a draft convention if Poland's
consent were not given. Similarly, there is nothing to prevent the Free City
from abstaining from filing a complaint with the International Labour Office
against another Member, if this cannot be done with the consent and through
the intermediary of the Polish Government.
[91] 12. Subject to the reservations and with the restrictions resulting
from the foregoing, the conclusion at which I have arrived therefore is that
the special legal status of the Free City of Danzig is such as to enable the
Free City to be a Member of the International Labour Organization.
(Signed) D. Anzilotti.
[p28] Individual Opinion by M. Huber.
[Translation.]
[92] The reply to be given to the question submitted to the Court depends on
the manner in which that question is interpreted, and in particular on the
meaning to be given to the words "enable" and "special legal status". The
answer will be in the affirmative if it is a question whether the special
legal status of the Free City of Danzig, as arising out of the Treaty of
Versailles, makes it possible for the Free City to become a Member of the
International Labour Organization; on the other hand, it would be in the
negative if the question related to a right for Danzig, without Poland's
consent, to obtain admission to, and thereby to take part in the work of,
the Organization.
[93] Both the International Labour Office and the two Governments concerned
emphasized the fact, especially at the outset of the arguments in Court,
that there is in reality no dispute, but only a doubtful legal situation
which they are desirous of helping to clear up. The Court would therefore
hardly be responding to the intention which prompted the Governing Body and
the Council of the League of Nations to consult it, if, starting from a
particular hypothesis, it confined itself merely to a reply in the negative
or the affirmative. It is rather for the Court to consider the different
situations which may arise within the legal framework established by the
Treaty of Versailles. For it is certain that the provisions of this Treaty,
on the one hand, and those of subsequent agreements and decisions, on the
other, are not all binding to the same extent for those directly concerned;
there will thus be absolute incompatibilities and relative
incompatibilities, according to the legal situations envisaged.
[94] In the present affair, the Court is all the more justified in
considering different possible situations in that its reply will in any case
be hypothetical, for it has not to decide the preliminary and general
question whether the Free City, apart from its special status, fulfils the
conditions necessary for [p29] admission as a Member of the International
Labour Organization.
[95] Being, by the terms of the request, obliged to deal with only one
aspect of the problem, the Court must, while keeping within the request,
throw light on all that side of the problem, without being held up by an
incompatibility between the special status and Part XIII of the Treaty of
Versailles if, without affecting the special status itself, this
incompatibility might be overcome, either by an agreement between the
Parties concerned, or by a unilateral concession. And thus while remaining
true to its traditional conception of advisory opinions the Court, by
means of purely juridical considerations, will best assist the Parties in
finding a solution.
***
[96] This having been said, there are above all three points of a general
nature to be considered.
[97] 1. The special legal status of the Free City is based on the clauses of
the Treaty of Versailles which, on the one hand, provide for the protection
of the Free City by the League of Nations (Art. 102 and 103), and which, on
the other hand, lay down the rights of Poland in relation to Danzig,
especially as regards the conduct by the Polish Republic of the foreign
relations of the Free City (Art. 104 and Convention of November 9th, 1920).
The three Parties directly concerned in this system are the Free City, the
League of Nations and Poland. The Treaty of Versailles, and therefore the
system established by that Treaty, is final and independent of the will of
the Parties. But, in so far as any one of them is to be considered as holder
of a right, he must be regarded as entitled to waive that right in any
particular case or series of cases, unless such waiver should affect the
system itself with a view to which the right was created. In
contradistinction to a statutory right, a contractual right cannot be
presumed to be binding on its holder.
[98] 2. Part XIII does not lay down that only States possessed of complete
sovereignty both in foreign relations and as regards [p30] domestic
legislation can be Members of the Organization. By the reference which it
contains to the Covenant of the League of Nations, Article 387 of the Treaty
of Versailles admits self-governing colonies or dominions, besides States
properly so-called. The International Labour Organization includes, or has
included, communities whose mutual relations are essentially different from
their relations with third Powers. Articles 405, paragraph 9, and 421,
paragraph 2, contain important exceptions to their main provisions in favour
of States which, although entirely independent in their foreign relations,
may, owing to their internal political structure, be unable to apply
throughout their territory conventions ratified by them. If therefore Part
XIII takes account of very different situations arising from the internal
structure of States or other communities Members of the Organization, as
well as from their relations of external dependence, it is not possible
prima facie to exclude the Free City from the International Labour
Organization owing to its special legal status. The compatibility of that
status with Part XIII is a question which must be examined having regard to
the special circumstances of the case, and the answer to which cannot be
prejudged by the fact that, as regards foreign relations, the Free City is
not in a position to take independent action.
[99] 3. The relations of a Member of the International Labour Organization
with that Organization cannot be placed on the same footing as relations
arising from a treaty or multilateral convention. By Article 387, every
Member of the League of Nations is and must be a Member of the International
Labour Organization; the Preamble to Part XIII gives the reason for this
connection. The Covenant of the League of Nations and Part XIII do not
merely belong to the same Treaty, but are also organically connected. The
adhesion of the largest possible number of Members of the League of Nations
to conventions adopted by the Labour Conference is beyond doubt one of the
purposes of Part XIII, the realization of which is the object of Articles
405, paragraphs 5 and 7, and 416. The Free City is not a Member of the
League of Nations, but is protected by the League; it is further
incorporated in the customs territory of Poland, a Member of the [p31]
League of Nations, which conducts the foreign relations of Danzig. As,
therefore, the Free City lies entirely within the framework of the League of
Nations, its admission to the International Labour Organization and its
adhesion to conventions emanating therefrom cannot, in principle, be
contrary either to the interests of the League of Nations or to those of a
State Member of the League.
***
[100] These general considerations, which dominate the whole problem
submitted to the Court, must be taken into account when the special legal
status of the Free City and the provisions of Part XIII are being compared
for the purpose of determining their absolute or relative compatibility or
incopatibility.
[101] The author of a separate opinion cannot make this detailed comparison
in a case in which he cannot refer to corresponding statements and
considerations in the Opinion of the Court to which his separate opinion is
attached. I therefore limit myself to indicating the principal points on
which in my view the Court should have given a decision.
[102] The admission of the Free City to the International Labour
Organization that is to say, the creation of conventional relations
between the Free City and the other Members of the Organization seems to
be governed by the same rules as the adhesion of the Free City to any
convention, collective or otherwise. The fact that the adhesion of the Free
City necessarily depends on the intervention of Poland, and that that State
may possibly oppose it, does not exclude the possibility of the Free City's
being a Member of the International Labour Organization, any more than it
excludes its adhesion to the numerous international conventions to which it
has in fact become a Party through the intermediary of Poland. This seems to
decide indirectly in the affirmative another question connected with the
special status, namely whether Danzig possesses the character of a State
necessary for being a Member of the Organization. [p32]
[103] The veto of the League of Nations, which may be interposed under
Article 6, paragraph 2, of the Convention of Paris, is only hypothetical, as
is the refusal of Poland, and does not in itself prevent the Free City from
becoming a Member of the International Labour Organization; leaving aside
the question whether this right of veto may really be applied in any
eventuality, it is only a condition belonging to this special status. The
same is true as regards any other possible intervention by the League of
Nations in virtue of its right of protection.
[104] The difficulty of the problem submitted to the Court lies in the
incompatibility which there may be between the special legal status of the
Free City and the rights and obligations which would arise for it from its
position as Member of the Organization. As it would be absurd to admit a
community which could not take part in the work, the question of admission
is bound up with that of participation.
[105] The fact that Poland might consent, in the name and on behalf of the
Free City, to ask those concerned for the admission of the latter may be
understood in various ways and must therefore be elucidated. If the consent
resulted from a decision given in virtue of the procedure laid down by
Article 39 of the Convention of Paris, it would leave intact the right of
Poland itself to proceed, on behalf of the Free City, to any acts belonging
to the conduct of foreign relations which the latter might wish or be bound
to perform in its capacity as Member of the International Labour
Organization. If the right of Poland to refuse to act on behalf of the Free
City depends on the nature of the action requested namely, whether it is
contrary or not to essential interests of the Polish State (High
Commissioner's decision of December 17th, 1921; decision of the Council of
the League of Nations of May 17th, 1922), Poland cannot in any case be
obliged to waive her rights to conduct the foreign relations of the Free
City. It is important therefore to ascertain (1) if and to what extent
participation in the International Labour Organization comes within the
field of foreign relations and therefore of the rights of Poland; and (2) if
and to what extent the intervention of Poland, by virtue of this right,
[p33] in the relations between the Free City and the Labour Organization
would be contrary to the provisions of Part XIII. In so far as there would
be incompatibility, the admission of the Free City would depend on Poland's
consent. But if this consent is not contrary to the special status and for
the reasons given above it is not so contrary , that status cannot be
regarded as being such as not to enable the Free City to become a Member of
the International Labour Organization. The possibility still exists,
although subject to certain conditions.
[106] All these questions would not arise if the consent of Poland meant the
abandonment by her, as regards possible relations between the Free City and
the International Labour Organization, of her rights under Article 104 (6)
of the Treaty of Versailles. In that case having been admitted through the
intervention and with the consent of Poland the Free City would be in the
same position as Members who conduct their foreign relations in entire
independence.
***
[107] Coming now to the principal points in regard to which an
incompatibility might exist, the following must be noted:
[108] 1. Discussion in the Conference does not partake of the nature of
foreign relations which characterizes the negotiations at a diplomatic
conference; for, in view of the individual vote of each delegate (Article
390, paragraph 1), it is not the will of the States as persons in
international law which is in law at any rate thereby expressed. The
legal conception of foreign relations is connected with that of the
individual or collective will of States in their relations one with another.
The Conference would not therefore include a Danzig delegation under the
leadership of the head of the Polish delegation, and the abnormal situation,
incompatible with the structure of the Conference, which would be brought
about if the [p34] delegation of one Member was lead by that of another,
could therefore not occur.
[109] As however the purpose of discussion at the Conference is in
particular the conclusion of international conventions, it is conceivable
although this extension of the notion may be criticized to consider the
appointment of delegates as an act of foreign policy. On this assumption,
the appointment of the Danzig delegates might be submitted for approval to
the Polish Government and would be forwarded by it; but once it had been so
forwarded, the independent situation of the delegates, under Article 390,
would be entirely in conformity with the system of the International Labour
Organization.
[110] 2. Conventions drawn up by the Conference and ratified by a Member
create for the latter obligations - going beyond those which he undertakes
by the simple fact of his admission. The act of ratification therefore
involves an act of foreign policy and consequently belongs to the domain in
which Poland has the right to act for and on behalf of the Free City. Here
however the intervention of Poland is no more an obstacle than it would be
for the admission itself, or than it was in the past when any other
convention was concluded of which the ratification is left entirely to the
discretion of Members. The Organization has not to concern itself with the
conditions in which its Members exercise or do not exercise their own
rights. However, according to the interpretation given, in the statements
submitted to the Court on behalf of the International Labour Office, to
Article 405, paragraphs 5 and 7, the Member is bound to ratify if the
competent authority which is generally the legislative organ and which
must have the draft conventions submitted to it within a specified time
has accepted a draft. In any case, whether it be a procedure peculiar to
Part XIII or the normal procedure for the ratification of the convention, it
is always an organ of the Member which expresses the will involving
ratification. As this organ, whatever it be, is quite untrammelled in its
decision, it in any case lies with the Free City not to approve a draft save
under conditions which exclude any conflict between its obligations towards
Poland, on the one [p35] hand, and the International Labour Organization, on
the other. This is therefore a point which can be settled between Poland and
the Free City.
[111] In the oral arguments submitted on behalf of the International Labour
Office, it was mentioned that certain States Members had agreed to come to
an understanding before ratifying a draft convention, in order to follow a
uniform line of conduct in this domain. It therefore seems possible that the
attitude of Members towards draft conventions may be determined by
international undertakings other than those arising from Part XIII.
[112] 3. As regards the procedure by enquiry and judicial procedure
mentioned in Articles 411 and following, a distinction must be made between
disputes which might arise between Poland and the Free City, on the one
hand, and between the Free City and other Members of the Organization, on
the other.
[113] As regards the first category, the conflict between the jurisdiction
referred to in Article 103 and that provided for by Part XIII of the Treaty
of Versailles must and can be given a legal solution based on the relative
values of the conflicting clauses of this same Treaty. As regards the second
category of disputes, it is to be noted that the filing of a complaint or
the institution of proceedings against a State falls within the sphere of
foreign relations. But it is equally true that Members have here a right
belonging to them, and nothing prevents the Free City from coming to an
agreement with Poland as to the conditions in which it would make use of
that right; this would permit Poland not to refuse her consent to the
admission, on that ground.
[114] 4. The question of the economic measures (which cannot be taken on
the initiative of one Member of the Organization) does not seem capable of
giving rise to difficulties, unless it be on account of the customs union
between Poland and the Free City. It would however hardly be possible for
any obstacle to exist on this ground as far as the Labour Organization is
concerned; for it is already recognized that a State connected with another
State by a customs union may nevertheless be a Member of the Organization.
[p36]
[115] The points I have dealt with in no way claim to exhaust the subject.
But I think that guidance should be given at least on these points, if the
question put to the Court is to receive an answer of such usefulness as
those concerned may well have expected.
(Signed) Max Huber.
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