File F. c. XX.

 

Docket XVIII. 2.

 

Advisory Opinion No. 18

 26 August 1930

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Eighteenth (Ordinary) Session

 

Free City of Danzig and International Labour Organization

 

Advisory Opinion

 
BEFORE: President: Anzilotti
Vice-President: Huber
Judges: Loder, Nyholm, de Bustamante, Altamira, Oda, Fromageot, Sir Cecil Hurst
Deputy Judge(s): Yovanovitch
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1930.08.26_danzig.htm
  
Citation: Free City of Danzig and International Labour Organization, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 18 (Aug. 26)
Publication: Publications of the Permanent Court of International Justice Series B – No. 18; Collection of Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1930.
  
 

  

[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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