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[p4]
The Permanent Court of International Justice
Composed as above,
After deliberation,
Having regard to Articles 48, 54, and 58 to 60 of the Statute of the Court,
Whereas by a Special Agreement dated October 30th, 1924, ratified on March
21st, 1928, and duly notified to the Registrar of the Court on March 29th,
1928, the President of the French Republic and the Swiss Federal Council,
"whereas France and Switzerland have been unable to agree in regard to the
interpretation to be placed on Article 435, paragraph 2, [p5] of the Treaty
of Versailles, with its Annexes, and as it has proved to be impossible to
effect the agreement provided for therein by direct negotiations, have
decided to resort to arbitration in order to obtain this interpretation and
for the settlement of all the questions involved in the execution of
paragraph 2 of Article 435 of the Treaty of Versailles";
Whereas, under Article 1, paragraph 1, of the aforesaid Special Agreement,
"it shall rest with the Permanent Court of International Justice to decide
whether, as between France and Switzerland, Article 435, paragraph 2, of the
Treaty of Versailles, with its Annexes, has abrogated or has for its object
the abrogation of the provisions of the Protocol of the Conference of Paris
of November 3rd, 1815, of the Treaty of Paris of November 20th, 1815, of the
Treaty of Turin of March 16th, 1816, and of the Manifesto of the Sardinian
Court of Accounts of September 9th, 1829, regarding the customs and economic
régime of the free zones of Upper Savoy and the Pays de Gex, having regard
to all facts anterior to the Treaty of Versailles, such as the establishment
of the Federal customs in 1849, which are considered relevant by the Court";
Whereas, under paragraph 2 of the same article of the Special Agreement,
"the High Contracting Parties agree that the Court, as soon as it has
concluded its deliberation on this question, and before pronouncing any
decision, shall accord to the two Parties a reasonable time to settle
between themselves the new régime to be applied in those districts, under
such conditions as they may consider expedient, as provided in Article 435,
paragraph 2, of the said Treaty";
Whereas, under Article 2, paragraph 1, of the Special Agreement, "failing
the conclusion and ratification of a convention between the two Parties
within the time specified, the Court shall, by means of a single judgment
rendered in accordance with Article 58 of the Court's Statute, pronounce its
decision in regard to the question formulated in Article 1 and settle for a
period to be fixed by it and having regard to present conditions, all the
questions involved in the execution of paragraph 2 of Article 435 of the
Treaty of Versailles"; [p6]
Whereas, according to the terms of the notes interpreting the Special
Agreement exchanged on October 30th, 1924, between the French Minister for
Foreign Affairs and the Swiss Minister in France, "no objection shall be
raised on either side to the communication by the Court to the Agents of the
two Parties, unofficially and in each other's presence, of any indications
which may appear desirable as to the result of the deliberation upon the
question formulated in Article 1 .... of the Arbitration Convention";
Whereas, by the recitals of an Order made on August 19th, 1929, the
Permanent Court of International Justice informed the Parties of the result
of its deliberation upon the question formulated in Article 1, paragraph 1,
of the Special Agreement and granted them a period expiring on May 1st,
1930, to settle between themselves the new règime to be applied in the
districts referred to in Article 435, paragraph 2, of the Treaty of
Versailles;
Whereas the Court, having been notified by a letter from the Swiss Federal
Council, dated March 20th, 1930, that it did not seem possible to arrive at
a settlement of the case within the time thus granted, and the French
Government, for its part, having announced on April 29th, 1930, that it had
proved impossible to conclude an agreement between the two Governments, the
procedure provided for in Articles 2 and 4 of the Special Agreement has had
to take its course;
Whereas, by an Order made on May 3rd, 1930, the President of the Permanent
Court of International Justice decided to grant the Government of the French
Republic and the Government of the Swiss Confederation a period of time
expiring on Thursday, July 31st, 1930, for the production by the Parties of
all documents, proposals and observations which they might see fit to submit
to the Court for the purposes of the settlement by it of all the questions
involved by the execution of paragraph 2 of Article 435 of the Treaty of
Versailles, and a further period of time expiring on Tuesday, September
30th, 1930, to enable each Party to reply in writing to the documents,
proposals and observations submitted by the other Party;
Whereas the Government of the French Republic has not filed any submissions
in this phase of the proceedings; [p7]
As on the other hand, in the "Documents, Proposal and Observations submitted
on behalf of the Swiss Government", the Court is asked:
"By a single judgment rendered in conformity with Article 58 of the Court's
Statute:
1. To pronounce its decision on the question formulated in Article 1,
paragraph 1, of the Special Agreement of October 30th, 1924, and to adjudge
(a) that, as between Switzerland and France, Article 435, paragraph 2, of
the Treaty of Versailles, with its annexes, has not abrogated the provisions
of the Protocol of the Conference of Paris of November 3rd, 1815, of the
Treaty of Paris of November 20th, 1815, of the Treaty of Turin of March
16th, 1816, and of the Manifesto of the Sardinian Court of Accounts of
September 9th, 1829, regarding the customs and economic régime of the free
zones of Upper Savoy and the District of Gex;
(b) that furthermore, as between Switzerland and France, Article 435,
paragraph 2, of the Treaty of Versailles, with its annexes, is not intended
necessarily to lead to the abrogation of the aforesaid provisions, in the
sense that it does not compel Switzerland to accept, as the only possible
basis for the future settlement, the abolition of the free zones.
2. To settle in accordance with the proposal submitted by the Swiss
Government and having regard to the terms of the second paragraph of Article
2 of the Special Agreement of October 30th, 1924, all the questions involved
by the execution of paragraph 2 of Article 435 of the Treaty of Versailles";
Whereas, by a letter dated October 11th, 1930, addressed to the Registrar of
the Court and duly communicated to the Agent of the French Government, the
Agent of the Swiss Government has filed "alternative submissions" to the
following effect:
"May it please the Court, if the Court does not deem it possible to render
de plano the judgment contemplated by Article 2 of the Special Agreement:
I.
To declare the French proposal incompatible with the rights of Switzerland
and to disregard it; [p8]
II.
To order an expert enquiry.
(1) To organize this enquiry on lines similar to those laid down in the
Order made by the Court on September 13th, 1928, in the case of the Chorzów
Factory.
(2) To put the following question to the experts:
'Taking it for granted that the French customs cordon will be placed on the
line indicated in the Swiss proposal, does that proposal regulate the
relations between Switzerland and the French regions concerned in a manner
calculated to satisfy the legitimate interests of the inhabitants as those
interests were before 1923 ?"
Whereas, at the sitting on October 23rd, 1930, after a statement by the
President that, owing to the inability of three members to attend, the Court
could not sit as composed in 1929 when it dealt with the first phase of the
case, the Agents of the two Parties made the following declarations, which
were duly placed on record:
The Agent of the Government of the French Republic:
"On behalf of the French Government, I declare that this Government agrees
to the continuation of the proceedings in view of the fact that, according
to its view, the solution of the question now to be argued is independent of
the solution to be given to the question argued in the first phase of the
proceedings";
The Agent of the Swiss Federal Government:
"The Swiss Government agrees to the proceedings being continued purely and
simply as though the composition of the Court had not altered since the
summer of 1929.
The Swiss Government for the rest maintains the view set forth in its
Observations and in its Reply, more especially as regards the
interdependence existing between the first judicial phase of the case and
the present phase. It holds, moreover, that the question argued in the first
phase of the proceedings has been decided";
Having regard to the "Observations and Proposal submitted on behalf of the
French Government", the "Documents, Proposal and Observations submitted on
behalf of the Swiss Government", the "Reply submitted on behalf of the
Government of [p9] the French Republic to the Documents, Proposal and
Observations submitted on behalf of the Swiss Government" and the "Reply of
the Swiss Government to the Observations, Proposal and Documents submitted
on behalf of the Government of the French Republic", as also to the
documents annexed to the foregoing, duly filed by the Parties on July 31st
and September 30th, 1930;
Having regard also to the documents filed by the Parties in the course of
the oral proceedings;
Having duly heard the oral arguments presented by Me Paul-Boncour and M.
Logoz, and the replies made by Me Paul-Boncour, M. Basdevant and M. Logoz on
October 23rd, 24th, 25th, 27th, 28th, 29th and 31st, and November 1st, 3rd
and 4th, 1930; having also heard the statements of M. Basdevant and M. Logoz
concerning the interpretation to be placed on Article 2, paragraph 2, of the
Special Agreement, made by them at the request of the Court on November
24th, 1930,
Makes the following Order:
[1] Whereas under Article 2, paragraph 1, of the Special Agreement, it rests
with the Court, by means of a single judgment delivered in conformity with
Article 58 of the Statute, to pronounce its decision on the question
formulated in Article 1 of the aforesaid Special Agreement and to settle,
for a period to be fixed by it and having regard to present conditions, all
the questions involved by the execution of paragraph 2 of Article 435 of the
Treaty of Versailles;
[2] Whereas in its deliberation on the questions formulated in Article 1,
paragraph 1, of the Special Agreement, the Court came to the conclusion
that, as between France and Switzerland, Article 435, paragraph 2, of the
Treaty of Versailles, with its annexes, had not abrogated the provisions of
the Protocol of the Conference of Paris of November 3rd, 1815, of the Treaty
of Paris of November 20th, 1815, of the Treaty of Turin of March 16th, 1816,
and of the Manifesto of the Sardinian Court of Accounts of September 9th,
1829, regarding the customs and economic régime of the free zones of Upper
Savoy and the District of Gex, and also that it was лot intended necessarily
to lead to the abrogation of these [p10] provisions; whereas the conclusions
of this deliberation, based on the interpretation of Article 435, paragraph
2, of the Treaty of Versailles, with its annexes, and on the existence of a
right on the part of Switzerland to the free zones in virtue of the
aforesaid provisions, have been confirmed by the Court as at present
composed and must be regarded as established for the purposes of the
continuation of the proceedings; as, in the course of the present phase of
the case, the French Government has not argued that the old provisions have
lapsed as a result of the change in conditions;
[3] Whereas, accordingly, the conclusions of the Court's deliberation must
serve as a basis for the settlement contemplated by paragraph 1 of Article 2
of the Special Agreement; as, moreover, even assuming that it were not
incompatible with the Court's Statute for the Parties to give the Court
power to prescribe a settlement disregarding rights recognized by it and
taking into account considerations of pure expediency only, such power,
which would be of an absolutely exceptional character, could only be derived
from a clear and explicit provision to that effect, which is not to be found
in the Special Agreement; as, on the other hand, it is hardly conceivable
that a single judgment should contain, in the first place the interpretation
of Article 435, paragraph 2, of the Treaty of Versailles, with its annexes,
as between France and Switzerland, and then a settlement of the questions
involved by the execution of that same clause, in so far as the same States
are concerned, which settlement, nevertheless, would disregard or conflict
with the interpretation given by the Court; as it is likewise impossible to
suppose that the Parties would have desired to be informed, before the
negotiations referred to in Article 1, paragraph 2, of the Special
Agreement, in regard to the points of law indicated in the first paragraph
of that article, if, in the event of the failure of the negotiations, the
Court was free to give its judgment on a basis other than that communicated
to the Parties at the conclusion of its deliberation; and as, furthermore,
the whole of the procedure contemplated by Article 1 of the Special
Agreement and the interpretative notes annexed thereto would cease to have
any object if, for the purposes of the settlement of all the questions
involved by the execution of Article 435, [p11] paragraph 2, of the Treaty
of Versailles, the interpretation given by the Court of this clause in the
recitals of its Order of 1929 might be disregarded;
[4] Whereas, as the Court has already stated in the recitals of its Order of
August 19th, 1929, it follows from the indications afforded by the Preamble
to the Special Agreement and by the history of the negotiations which have
taken place between the Parties with a view to concluding the agreement
provided for by Article 435, paragraph 2, of the Treaty of Versailles -
which negotiations were adduced before the Court in the first phase of the
proceedings - that the real difference of opinion which had prevented an
agreement between the Parties related to the question whether the régime of
the zones might be abolished without the consent of Switzerland, i.e.
whether Switzerland has a right to the free zones; as it was precisely this
difference of opinion which was submitted to the Court, and as it is from
this standpoint that the Special Agreement must be construed;
[5] Whereas, though it is certain that the Parties, being free to dispose of
their rights, might have embodied, in the negotiations contemplated in
Article 1, paragraph 2, of the Special Agreement, and might also in any
future negotiations embody in their agreement any provisions they might
desire and, accordingly, even abolish the regime of the free zones, it in no
way follows that the Court enjoys the same freedom; as this freedom, being
contrary to the proper function of the Court, could in any case only be
enjoyed by it if such freedom resulted from a clear and explicit provision,
which is not to be found in the Special Agreement; as the argument according
to which the settlement to be prescribed by the Court would take the place
of the negotiations between the two States and, consequently, the Court
would enjoy the same freedom as those States in effecting the settlement,
amounts in reality to assuming as demonstrated the very thing which has to
be demonstrated;
[6] Whereas, though the settlement to be prescribed by the Court with regard
to all the questions involved by the execution of paragraph 2 of Article 435
of the Treaty of Versailles, must respect the rights which Switzerland
derives from the provisions of the treaties of 1815 and other supplementary
[p12] instruments relating to the free zones, this settlement must also
respect the sovereignty of France over the territories in question; as this
sovereignty is complete and unimpaired in so far as it is not limited by the
aforesaid treaties; as no obligation going beyond these treaties can be
imposed on France without her consent;
[7] Whereas it is in the light of the foregoing considerations that the
question of the so-called "control cordon" (cordon de surveillance) must be
envisaged; as France's right to have a police cordon at the political
frontier of the zones has hardly been questioned by the Swiss Government;
as, on the other hand, the latter disputes the right of France to collect
duties and taxes at this frontier, even if these charges are not duties on
the importation or exportation of goods, but are duties and taxes which are
also levied on the same articles produced or manufactured in France; as such
a restriction does not necessarily follow from the obligation contracted by
France under the provisions of the treaties of 1815 and the other
supplementary instruments relating to the free zones, and as, in case of
doubt, a limitation of sovereignty must be construed restrictively; as,
though it is certain that France cannot rely on her own legislation to limit
the scope of her international obligations, it is equally certain that
French fiscal legislation applies in the territory of the free zones as in
any other part of French territory; as a reservation must be made as regards
the case of abuses of a right, an abuse which however cannot be presumed by
the Court;
[8] Whereas it follows from this principle that the Court cannot envisage
the adoption in its judgment of provisions modifying the territorial
delimitation of the zones, unless the French Government consents thereto; as
the same applies to Article 3 of the Swiss draft, in so far as it would
limit to a greater degree than is done in the treaties the powers of French
administration in the free zones, or impose on France the establishment of
customs offices at the Geneva-Cornavin station, or provide that imports from
Switzerland into the free zones would be exempt, not only from all customs
duties but also from any taxes whatsoever; as, in so far as concerns the
last observation, the same is true with regard to Articles 4, 5 and 10 of
the said draft; as similar observations hold good also [p13] with regard to
Articles 11, 12 and 13, the provisions of which, wholly or in part, go
beyond the law in force and cannot therefore become binding between the two
States except in virtue of an agreement concluded between them.
* * *
[9] Whereas, by acquiescing in Article 435 of the Treaty of Versailles, by
means of its note of May 5th, 1919, the Swiss Federal Council, whilst
declaring that it did not agree to the suppression of the free zones, showed
itself ready to regulate in a manner more appropriate to present economic
conditions the terms of the exchange of goods between the regions concerned;
as it is in this connection that the Swiss Government, in Articles 4 to 8 of
its draft and in the annex, proposes, subject to certain limitations and
reservations, to grant to the natural and manufactured products of the free
zones freedom from import duty into Switzerland; as, practically speaking,
it is therefore in this domain that a settlement may be sought which,
without disregarding the rights of the two Parties, would bring the zones
régime more into harmony with present conditions;
[10] Whereas Article 2, paragraph 2, of the Special Agreement contains the
following:
"Should the judgment contemplate the import of goods free or at reduced
rates through the Federal Customs barrier or through the French Customs
barrier, regulations for such importation shall only be made with the
consent of the two Parties";
[11] Whereas this clause clearly contemplated the consent of both Parties
and not only the consent of the Party across whose customs line importation
free of duty or at reduced rates is to take place; as in the presence of a
provision perfectly clear in this respect, the Court can only apply such
provision as it stands, even if the results following therefrom may in some
particular hypothesis seem unsatisfactory;
[12] Whereas, on the other hand, the clause above quoted does not clearly
show whether the consent of the Parties is to be [p14] previous or
subsequent to the judgment; for though the words "should the judgment
contemplate the import...." would seem to envisage a consent subsequent to
the judgment, the words: cette importation ne pourra être réglée qu'avec
l'assentiment des deux Parties, would seem to envisage regulations to be
prescribed by the Court in its judgment, and, therefore, after having
obtained the consent of the two Parties, the verb régler in the second
paragraph of this article having probably the same meaning as is to be
attributed to it in the first paragraph;
[13] Whereas it is hardly possible to suppose that the Parties intended to
adopt a clause which would be incompatible with the Court's function; as,
accordingly, if it is possible to construe paragraph 2 of Article 2 of the
Special Agreement in such a way as to enable the Court to fulfil its task,
whilst respecting the fundamental conception on which that paragraph is
based, such a construction is the one which must be preferred;
[14] Whereas it is certainly incompatible with the character of the
judgments rendered by the Court and with the binding force attached to them
by Articles 59 and 63, paragraph 2, of its Statute, for the Court to render
a judgment which either of the Parties may render inoperative; as on the
other hand there seems nothing to prevent the Court from embodying in its
judgment an agreement previously concluded between the Parties; as a
"judgment by consent", though not expressly provided for by the Statute, is
in accordance with the spirit of that instrument;
[15] Whereas, at the present time, no agreement between the Parties exists
with regard to importation free of duty or at reduced rates across the
Federal customs line; as the Agent for the Swiss Government declared at the
hearing on November 24th, 1930, that he consented to any provision which the
Court might adopt in this respect, but as the same does not hold good as
regards the Agent for the French Government;
[16] Whereas, in these conditions, if the Court were now to render its
judgment in accordance with the terms of Article 2, paragraph 1, of the
Special Agreement, it would have to confine itself to answering the legal
questions relating to the [p15] execution of Article 435, paragraph 2, of
the Treaty of Versailles; as such a solution would not seem desirable having
regard to the important position occupied by exemptions from import duty in
the Swiss draft; and as, accordingly, it appears that the Parties should be
invited to endeavour to come to an agreement, within a specified time,
regarding importations free of duty or at reduced rates across the Federal
customs line; as this seems all the more expedient since the negotiations
provided for by Article 1, paragraph 2, of the Special Agreement never dealt
with this matter, owing, in all probability, to a fundamental difference of
opinion regarding the actual basis on which the Court was to effect the
settlement contemplated by Article 2, paragraph 1, of the Special Agreement,
a difference in regard to which the Court now makes known its opinion in the
recitals of the present Order;
[17] Whereas fresh negotiations between the Parties seem to the Court highly
desirable from other points of view also, since, as has already been stated,
only an agreement between the Parties would make it possible to settle the
various points referred to in the Swiss Government's proposal, the
settlement of which points would, in the opinion of that Government, be
calculated to bring the zones régime more in harmony with present
conditions; as, moreover, practical considerations and considerations of
expediency might suggest to the Parties a settlement covering the whole
problem even though departing from strict law; and although the Court, being
a Court of justice, cannot disregard rights recognized by it, and base its
decision on considerations of pure expediency, nevertheless there is nothing
to prevent it, having regard to the advantages which a solution of this kind
might present, to offer the Parties, who alone can bring it about, a further
opportunity for achieving this end;
[18] Whereas, although it is therefore desirable that the Parties should be
granted further time for negotiations, the Court should not thereby be
prevented from fulfilling its task and giving judgment on the points of law,
should the negotiations fail; as, in fact, if such a meaning were attributed
to paragraph 2 of Article 2 of the Special Agreement and the dispute were
left unsettled, through the failure to agree in regard to importations free
of duty or at reduced rates, this would be [p16] contrary to the intention
of the Parties, which doubtless was to have the dispute settled; as, in
fact, paragraph 2 of Article 2 of the Special Agreement only envisages
importations free of duty or at reduced rates as a possibility in connection
with the settlement contemplated by the first paragraph of that article.
* * *
[19] Whereas the Parties do not seem to be in agreement with regard to the
"present conditions" of which they should take account in their
negotiations; as it will be well to eliminate this difference of opinion and
to let them know the result of the deliberation of the Court on this point;
[20] Whereas, as between France and Switzerland, both Article 435, paragraph
2, of the Treaty of Versailles and the note of the Swiss Government of May
5th, 1919, envisage a future agreement intended to adapt the régime in force
to the new conditions; as it is only natural to assume that this adaptation
must take account of conditions existing at the time of the conclusion of
such agreement; as an agreement only taking account of conditions existing
at a previous period would not be in accordance with the real intention of
the Parties; as however it is to be observed that France cannot adduce as
against Switzerland changes which may be found to have occurred in the
economic conditions of the zones following upon, and as a result of, the
transfer of the customs cordon to the political frontier in November 1923 -
which transfer, as appears from the recitals of the Order of August 19th,
1929, was not in accordance with law; as therefore the "present conditions"
are the conditions which exist, or will exist at the time of the
negotiations to be undertaken between the Parties, with the exception that
changes which may have occurred since November 1923 and which may be the
consequence of the transfer of the French customs barrier to the political
frontier, cannot be adduced.
* * *
[21] Whereas the two Parties do not seem to be in agreement as to the
so-called zone of Saint-Gingolph, of which the boundaries [p17] were fixed
by the Manifesto of the Sardinian Court of Accounts of September 9th, 1829;
as, in the recitals of its Order of August 19th, 1929, the Court, while
declaring that the said Manifesto has not been abrogated, reserved the
question as to the legal nature of this instrument; as it seems desirable,
in order to facilitate the above negotiations, that the Court should also
indicate its opinion on this question;
[22] Whereas, by the terms of Article 3 of the Treaty of Turin of March
16th, 1816, the line of the Sardinian customs was to pass ".... along the
lake to Meillerie, to join up with and continue along the existing frontier
at the post nearest to Saint-Gingolph"; as these expressions employed in the
Treaty, being wanting in precision, gave rise to claims on the part of the
Canton of Valais; as this Canton, invoking the provisions of Article 3 of
the said Treaty, demanded that the customs post established in the village
of Saint-Gingolph should be suppressed, and that the customs line should be
withdrawn from this part of the frontier so as to constitute on this side a
new zone comprising the territory of the said commune; as it was after this
claim that His Majesty the King of Sardinia, though of opinion that this
claim did not appear to him to be well founded exactly in law, stated that
he was willing to assent to it; as this assent given by His Majesty the King
of Sardinia, without any reservation, terminated an international dispute
relating to the interpretation of the Treaty of Turin; as, accordingly, the
effect of the Manifesto of the Royal Sardinian Court of Accounts, published
in execution of the sovereign's orders, laid down, in a manner binding upon
the Kingdom of Sardinia, what the law was to be between the Parties; as the
agreement thus interpreted by the Manifesto confers on the creation of the
zone of Saint-Gingolph the character of a treaty stipulation which France is
bound to respect, as she has succeeded Sardinia in the sovereignty over that
territory.
* * *
[23] Whereas, with regard to the time to be granted, a period of about eight
months does not seem excessive; as this time [p18] may moreover be extended
by the President at the request of the two Parties,
[24] THE COURT
(1) Accords to the Government of the French Republic and to the Government
of the Swiss Confederation a period expiring on July 31st, 1931, which may
be extended at the request of both Parties, to settle between themselves the
matter of importations free of duty or at reduced rates across the Federal
customs line and also any other point concerning the régime of the
territories referred to in Article 435, paragraph 2, of the Treaty of
Versailles with which they may see fit to deal;
(2) Declares that at the expiration of the period granted or of any
prolongation thereof, the Court will deliver judgment at the request of
either Party, the President being empowered to grant the two Governments the
necessary periods of time for the presentation beforehand of any written or
oral observations.
[25] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this sixth day of December, nineteen hundred and
thirty, in three copies, one of which shall be placed in the archives of the
Court and the others delivered to the Agents of the Government of the French
Republic and of the Swiss Federal Government respectively.
(Signed) D. Anzilotti,
President.
(Signed) J. López Oliván,
Deputy-Registrar.
[26] MM. Nyholm, Altamira and Sir Cecil Hurst, Judges, MM. Yovanovitch and
Negulesco, Deputy-Judges, and M. Eugène Dreyfus, Judge ad hoc, whilst
concurring in the operative [p19] part of the present Order and in the
recitals which relate thereto, declare themselves unable to concur in the
other recitals of the Order in so far as they have indicated their dissent
therefrom in the following joint dissenting opinion.
[27] Mr. Kellogg, Judge, while agreeing with the present Order, desires to
add on certain points the observations which follow hereafter.
(Initialled) D. A.
(Initialled) J. L. O.
[p20] Dissenting Opinion.
[28] The Court, by the preceding Order, has decided to afford the Parties a
further period of time in which to come to an amicable agreement on the
subject of the questions on which they are at issue, it being understood
that if no agreement is reached, the Court will deliver judgment on all
questions of law but not on those covered by Article 2, paragraph 2, of the
Special Agreement.
[29] While supporting the proposal that the Parties should be given a
further opportunity of reaching an amicable settlement of the dispute
relating to the free zones, the undersigned are unable to concur in the
statement of the legal situation of the present position of the Court
embodied in the recitals of the Order.
[30] The Order which the Court issued on August 19th, 1929, concluded the
first stage of the proceedings in the dispute between France and Switzerland
as to the zones of Upper Savoy and the District of Gex, which was submitted
to it by the Special Agreement of October 30th, 1924.
[31] Since the issue of that Order, the composition of the Court has
undergone a change. Of the six judges who are parties to the present
opinion, three were among those who dissented from the recitals of the Order
of August 19th, 1929, and two did not take part in the proceedings during
the first stage. It is therefore necessary to state that the parties to the
present opinion, while maintaining any previous opinion they may have
expressed, do not desire to reopen or to contest the views which were
expressed by the Court in the recitals of that Order. The Order embodies the
conclusion reached by the Court in 1929, and is regarded by the parties to
this opinion as a fait acquis at any rate for the present.
[32] When the moment comes for the Court to deliver judgment, it will be
called upon, in addition to answering the question formulated in Article 1
of the Special Agreement, to settle all the questions involved by the
execution of Article 435, [p21] paragraph 2, of the Treaty of Versailles.
The point upon which the parties to the present opinion feel unable to agree
with the majority of the Court is whether, in carrying out this task, the
Court is bound under the Special Agreement and irrespective of the merits of
the question, to maintain the free zones in being. In the opinion of the
majority, the Court, after recognizing the rights of Switzerland in the
recitals of the Order of August 19th, 1929, is bound to do so, unless and
until Switzerland agrees to their suppression. In the opinion of the
undersigned, no such limitation is imposed upon the Court.
[33] The first paragraph of Article 2 of the Special Agreement is worded as
follows:
"Failing the conclusion and ratification of a convention between the two
Parties within the time specified, the Court shall, by means of a single
judgment rendered in accordance with Article 58 of the Court's Statute,
pronounce its decision in regard to the question formulated in Article 1 and
settle for a period to be fixed by it and having regard to present
conditions, all the questions involved by the execution of paragraph 2 of
Article 435 of the Treaty of Versailles. "
[34] Paragraph 2 of Article 435 of the Treaty of Versailles was as follows:
"The High Contracting Parties also agree that the stipulations of the
treaties of 1815 and of the other supplementary acts concerning the free
zones of Upper Savoy and the Gex District are no longer consistent with
present conditions, and that it is for France and Switzerland to come to an
agreement together with a view to settling between themselves the status of
these territories under such conditions as shall be considered suitable by
both countries. "
[35] This is the provision which has to be executed; the task of the Court
is to settle all the details involved in such execution.
[36] It will be seen that this paragraph of Article 435 consists of two
parts. The first embodies an opinion on the part of the signatories of the
Treaty of Versailles. It is that the stipulations of the treaties of 1815
and of the other [p22] supplementary acts concerning the free zones of Upper
Savoy and the Gex District are no longer consistent with present conditions.
The second part of the paragraph embodies a charge to France and Switzerland
to take certain action, viz. to come to an agreement to settle between them
the status of these territories.
[37] The natural meaning of the word "execute" is to "carry out", to
"fulfil". An opinion expressed by the signatories of the Treaty of
Versailles is not a matter which can be executed. A mere expression of
opinion does not of itself involve any further action. On the other hand,
the conclusion of an agreement to settle the status of territory is a matter
which can be executed, and the execution of which may give rise to many
questions, between the two States who are to be Parties to it.
[38] By reference, therefore, to the terms of paragraph 2 of Article 435,
the task of the Court under Article 2, paragraph 1, of the Special Agreement
begins to be clear. The Court is to settle every question which France and
Switzerland would have had to settle in concluding an agreement on the
subject of the status of the territories constituting the free zones.
[39] The reason why France and Switzerland were charged with the duty of
coming to this agreement is disclosed exactly in the opinion expressed by
the signatories of the Treaty of Versailles in the first part of paragraph 2
of Article 435. It is that the stipulations of the old treaties, so far as
they relate to the free zones, are no longer consistent with present
conditions.
[40] Assuming that the four instruments enumerated in Article 1 of the
Special Agreement constitute the "treaties of 1815 and other supplementary
acts", an examination of their terms shows that the only provisions in them
which in essence relate to the free zones are those providing for the
withdrawal from the political frontier of the French and Sardinian customs
lines and fixing the place where the customs lines are to be established.
[41] It is this withdrawal of the customs line which in fact created the
free zones. If the signatories of the Treaty of Versailles stated that in
their opinion the provisions in the [p23] old treaties were no longer
consistent with present conditions, they must have meant that what was no
longer consistent with present conditions was the withdrawal of the customs
line from the political frontier.
[42] It is now necessary to determine Switzerland's position and the measure
of her rights vis-à-vis France and the other signatories of the Treaty of
Versailles.
[43] That position is defined in the recitals of the Court's Order of August
19th, 1929. Switzerland possessed a right or interest in the zones which
could not be taken away without her consent. Article 435 of the Treaty of
Versailles had not abrogated the old treaties and consequently did not
affect the right which Switzerland enjoyed under them. Nor was she a party
to that Treaty and bound by its provisions as such. She had been consulted
as to the wording of Article 435, but only acquiesced therein to the extent
indicated in the note of the Federal Council dated May 5th, 1919, annexed to
the article. That note made it clear that Switzerland was not then disposed
to acquiesce in the suppression of the zones. So long as she refused to be a
party to any new agreement settling the status of these territories,
paragraph 2 of Article 435 of the Treaty of Versailles could not be executed
and the zones would remain in existence.
[44] The Swiss attitude subsequently underwent a modification. The
negotiations between her and France, of which the notes annexed to Article
435 formed part, culminated in 1921 in the conclusion of a convention, and
by this convention the Swiss Government agreed to the suppression of the
zones.
[45] As this convention was rejected by the Swiss people and therefore never
went into effect, it has no bearing on the legal situation, but it is
important to observe that the third paragraph of the Preamble of the
convention shows that the Parties regarded themselves, when concluding the
convention which suppressed the zones, as concluding the agreement provided
for in Article 435, paragraph 2, of the Treaty of Versailles.
[46] It was after the failure of this convention that France proceeded to
act upon the view which she held of the legal situation. Believing that the
effect of Article 435 was to [p24] abrogate the treaties of 1815 and the
other acts establishing the zones, she moved her customs line to the
political frontier, thereby suppressing the zones by a unilateral act. The
conclusion reached by the Court in the recitals of the Order of August 19th,
1929, shows that this act of the French Government was without legal
justification and that, in dealing with the dispute, the Court must leave
out of account any consequences which have resulted from it.
[47] The ensuing tension between the two Governments produced a situation
from which arbitration afforded the only means of escape, and it was by
virtue of the Special Agreement which was in due course concluded that the
Court became seized of the dispute, and it is the terms of that Special
Agreement which determine the extent to which the Parties have placed
themselves in the hands of the Court.
[48] The task which the Special Agreement lays upon the Court is that of
deciding the legal point formulated in Article 1, and then (in certain
events which have since come to pass) of settling all the questions involved
in the execution of paragraph 2 of Article 435 of the Treaty of Versailles.
[49] It is worth noting that the word "settle" (in French: régler), used in
Article 2 of the Special Agreement, is the same word as is used in paragraph
2 of Article 435, which says that France and Switzerland are to settle the
status of the territories (i. e. the zones) because the old treaties were
out of date, and in paragraph 2 of Article 1, which provides that, after
obtaining the Court's opinion on the legal point formulated in the first
paragraph, the Parties are to have a reasonable time to settle the new
regime in those districts. As pointed out above, the Parties themselves, in
their draft convention of August 7th, 1921, have interpreted Article 435,
paragraph 2, as comprehending an agreement which would, if it had come into
force, have suppressed the zones, and it has not been suggested that the
Parties might not have come to a similar agreement in the negotiations
provided for in Article 1, paragraph 2, of the Special Agreement. It would
seem natural to conclude that the powers of the Court, when settling every
question involved by the execution of this provision in the Treaty of
Versailles, must be equally wide. At any rate it would be necessary to find
some good reason [p25] for excluding the natural conclusion to be drawn from
the use of the same word in these three provisions.
[50] It is contended that the powers of the Court cannot be so wide as those
of the Parties, because it would have been useless for the Parties to have
asked for a determination by the Court, under Article i of the Special
Agreement, of the question whether the old treaties and other acts which are
the basis of the Swiss rights have been abrogated, if the Court is to be at
liberty, in deciding the questions involved in the execution of Article 435,
to set those rights aside. It is admitted that Switzerland herself, in
making the new agreement foreshadowed in Article 435, could agree to the
suppression, but it is urged that the powers of the Court under Article 2,
paragraph 1, of the Special Agreement, cannot be equally wide, because the
Court must respect the rights which it has itself recognized.
[51] This argument misunderstands both the economy of the Special Agreement
and the position between France and Switzerland at the time of its
conclusion.
[52] At the time when the agreement to bring the dispute before the Court
was concluded, France had taken action suppressing the zones by unilateral
action. She was upholding the view that Article 435 of the Treaty of
Versailles, with its annexes, had abrogated the old treaties, which were the
foundation of the Swiss right to the maintenance of the zones, that this
right had ceased to exist, and that she was therefore justified in
transferring her customs line to the political frontier, whether an
agreement was concluded with Switzerland or not.
[53] It was to decide whether or not this view was correct that the question
formulated in Article 1 of the Special Agreement was put to the Court.
[54] What was contemplated in Article 435 of the Treaty of Versailles was an
agreement between France and Switzerland, action in common by the two
Parties, not singlehanded action by one of them. It is the settlement of the
questions arising in the execution of what should have been an action of the
two Parties together, viz. the making of an agreement, that is now entrusted
to the Court by the two Powers through the Special Agreement. The fact that
the recitals of the Order of [p26] 1929 recognized the right of Switzerland
to the maintenance of the zones as against single-handed action by France
affords no reason why the same rule must obtain when the Court is fulfilling
the task laid upon it on behalf of the Powers jointly.
[55] It has also been contended that, in settling the questions involved in
the execution of Article 435, paragraph 2, i. e. the making of an agreement
between France and Switzerland as to the future of these territories, the
Court cannot go beyond the limits which Switzerland herself laid down, when
in her note of May 5th, 1919, annexed to Article 435, she made it clear that
she did not intend to agree to the suppression of the zones, but only to
regulate in a manner more appropriate to the economic conditions of the
present day the terms of the exchange of goods between the regions
concerned. This was the only undertaking which was binding on Switzerland,
and constitutes therefore the only agreement which the Court can execute.
[56] The answer to this contention is that what Switzerland, by Article 2 of
the Special Agreement, gave the Court power to do, was to settle every
question involved in the execution of Article 435, paragraph 2. The Swiss
intimation of willingness to agree to a more appropriate regulation of the
exchange of goods between the territories concerned without suppressing the
zones is not found in Article 435, paragraph 2, but in one of the annexes to
that article. The Special Agreement specifically mentions the annexes to
Article 435 when it intends them to be included. When it makes no mention of
them, it must therefore be inferred that they are not to be included.
Article 1 calls upon the Court to decide whether Article 435, paragraph 2,
of the Treaty of Versailles, with its annexes, has abrogated the treaties
there enumerated. It was necessary to refer to them because the Parties were
called upon subsequently to negotiate, but this necessity disappeared as
soon as Article 2 of the Special Agreement came into play, that is to say,
as soon as the Court was called to settle the details of the regime. Hence
Article 2 makes no mention of the annexes, and no sound principle of
judicial interpretation justifies the Court in reading the words "with its
annexes" into Article 2 when they are not there. [p27]
[57] An additional objection to the contention that what Article 435,
paragraph 2, had in view was an agreement between France and Switzerland
with regard to the exchange of goods between Switzerland and the zones, is
that such a stipulation in the Treaty of Versailles was quite unnecessary.
France and Switzerland had always before 1919 regulated the exchange of
goods between Switzerland and the zones in bilateral agreements, and these.
they were at liberty to abrogate, revise or renew as they pleased. No
authorization from other Powers was necessary to enable them to do so.
[58] The reason why paragraph 2 of Article 435 of the Treaty of Versailles
declared that it was for France and Switzerland, to come to an agreement
about the "status of the territories" was that this status was established
by instruments which formed part of the great European settlement after the
Napoleonic wars. In that settlement all the great Powers of Europe had been
concerned, and it was not for France alone, or for France and Switzerland
alone, to vary the settlement so far as regards the existence of the zones.
[59] Confirmation of this view is to be found in the fact that, after the
conclusion of the Treaty of Versailles, Spain and Sweden, who were parties
to the settlement of 1815 but not parties to the Treaty of Versailles, were
asked to agree to the stipulations of Article 435. Their adhesion is
recorded in the Preamble to the Convention of August 7th, 1921. Nothing
could show more clearly that what this paragraph in the Treaty of Versailles
had in mind was some agreement which might involve a modification in the
settlement of 1815, and nothing in that settlement related to the zones
except the provisions which brought them into being, viz. the withdrawal of
the customs line from the political frontier.
[60] The parties to the present opinion can see no sound reason why the
liberty enjoyed by the Court in settling every question involved in the
execution of Article 435, paragraph 2, is more restricted than that which
the Parties themselves would have enjoyed in determining the effect of
"present conditions" upon the stipulations of the treaties of 1815 and 1816.
If that proposition is correct, it follows that the Court is not [p28]
prevented, in carrying out its task under Article 2, paragraph 1, of the
Special Agreement, from placing the French customs line at the political
frontier, if satisfied that this would be the regime most in conformity with
present day requirements.
[61] It is a mistake to suppose that the advantages which Switzerland has
enjoyed under the regime of the zones would not be safeguarded if the Court
should ultimately be led to the conclusion that the wisest solution of the
problem would be to place the French customs line at the political frontier.
[62] What Article 435, paragraph 2, provided for was an agreement between
France and Switzerland, "under such conditions as shall be considered
suitable by both countries". Manifestly it would therefore be the duty of
the Court under Article 2 of the Special Agreement to see that the
arrangement was so framed as not to prejudice the interests of Switzerland.
[63] So many diverse elements, however, would have to be taken into account
in settling the regime of the territories, that it is most desirable that
the Parties should come to an agreement upon the question, after
negotiations directed to the satisfaction of the real interests of every
kind concerned, and not merely to the perpetuation of rights without
reference to the question whether they are in harmony with present
conditions.
(Signed) D. G. Nyholm.
( „ ) Rafael Altamira.
( „ ) C. J. B. Hurst.
( „ ) Mich. P. Yovanovitch.
( „ ) Demetre Negulesco.
( ,, ) Eugène Dreyfus.
[p29] Observations by Mr. Kellogg.
[64] While I agree with the action taken by the Court and consider that, in
view of the unsatisfactory and contradictory provisions of the Special
Agreement by which the Parties have submitted this case to the Court, it is
perhaps the only course by which the Court could, under its Statute, aid the
Parties in arriving' at a wholly satisfactory solution of their dispute,
nevertheless, in view of certain language used in the Order, which might be
the source of doubt as to the limits of the jurisdiction of this Court and
might serve as a basis of argument that it is within the competence of this
Court, with the consent of the Parties, to take jurisdiction of-and decide
purely political questions upon considerations of expediency without regard
to the legal rights of the Parties, I feel it incumbent upon me to make the
following observations:
[65] In my opinion the question of the competence of this Court which has
been raised by the present case and a direct decision of which the Court has
avoided, for the moment at least, by the making of the present Order, is,
from the point of view of the future of this Court and the development of
the judicial settlement of international disputes, by far the most important
question which has ever been brought before the Permanent Court of
International Justice. I feel, therefore, that I would be derelict in my
duty if I allowed the question to be passed over in silence or left any
doubt as to my opinion in regard thereto.
[66] Aside from the question of the meaning and legal effect of paragraph 2
of Article 435 of the Treaty of Versailles upon the legal rights and
obligations of the Parties under the treaties of 1815 and 1816, which
question was decided by the Court's Order of August 19th, 1929 (which the
Court has reaffirmed in its present Order), the principal point of
divergence between the positions maintained by the two Parties in the
present phase of the case was as to the [p30] interpretation which should be
given to the first paragraph of Article 2 of their Special Agreement, and,
in particular, in regard to the relation to, and the effect upon the present
proceedings, of the finding of the Court in regard to the legal rights of
the Parties as expressed in its Order which followed the first phase of the
proceedings.
[67] Briefly stated, the position taken by the French Government on this
point is that, as the Parties in their negotiations for the settlement of
the questions involved in the execution of paragraph 2 of Article 435 - in
other words in establishing the régime of the territories in question - were
entirely free to enter into whatever stipulations they might agree upon,
regardless of the former legal rights and obligations of the Parties, the
Court now has an equal freedom in establishing the new regime of the
territories, regardless of what it may find the legal rights and obligations
of the Parties to be. Stated even more briefly, the French Government's
position would seem to be that, as, in agreeing upon the future regime of
the zones, Switzerland might have given up any or all of her legal rights to
the maintenance of the zones, the Court may, in virtue of the second clause
of the sentence forming the first paragraph of Article 2 of the Special
Agreement, disregard the legal rights of Switzerland, if in its opinion such
is necessary in order to bring the regime of the zones into line with
present conditions.
[68] The position taken by the Swiss Government is, on the other hand,
briefly as follows:
The Court having indicated by its Order of August 19th, 1929, that in its
opinion paragraph 2 of Article 435, together with its annexes, of the Treaty
of Versailles had not abrogated and did not have as its object necessarily
to cause the abrogation of the provisions of the treaties of 1815 and 1816,
these provisions, therefore, remain in full force and effect as between
France and Switzerland and the future regime of the territories must be
established by the Court in strict respect for the legal rights of
Switzerland to the maintenance of the free zones. The Swiss Government
admits, however, that certain changes in the modalities of the [p31]
exchange of goods between Switzerland and the free zones may be necessary in
order to bring the regime set up in 1815 into conformity with existing
circumstances, and it is obvious from an examination of the proposal for
judgment submitted by the Swiss Government that, even though the Court
adopted the view that it was bound to respect the legal rights of
Switzerland to the maintenance of the zones, it would nevertheless be called
upon to lay down extensive customs and other regulations governing the
exchange of goods and commodities between Switzerland and the territories in
question.
[69] But little could be usefully added to the language used in the Order of
the Court upon this point. Although it cannot, perhaps, be stated that, upon
its face, the meaning of the language used in the first paragraph of Article
2 of the Special Agreement is clear beyond dispute, it cannot in my opinion
be seriously contended that a proper interpretation of this language would
require the Court, in one and the same judgment, to determine the legal
rights of the Parties and then establish a new customs and economic regime
for the territories in question in disregard of such legal rights.
[70] If the Court had found that the effect of Article 435 was to abrogate
the treaties of 1815 and 1816, and the Parties had been unable to agree on
the arrangement it should have been necessary to make to replace the regime
created by these treaties, the sphere of the Court's action in settling all
the questions involved in the execution of paragraph 2 of Article 435 of the
Treaty of Versailles would have been greatly extended. However, the Court
has not found such to be the effect of Article 435 of the Treaty of
Versailles, and the holding of the Court as to the effect of the first
clause of the sentence forming the first paragraph of this article
inevitably restricts and limits the mission of the Court under the second
clause of the sentence composing the first paragraph of Article 2 of the
Special Agreement. Therefore, if Article 1 and the first paragraph of
Article 2 of the Special Agreement be construed together with the second
paragraph of Article 435 of the Treaty of Versailles and in the light of the
holding of the Court upon the legal effect of this [p32] paragraph, it is
clear in my opinion that the Court would settle all the questions involved
in the execution of the second paragraph of Article 435, if it determined
and gave effect to the legal rights and obligations of the Parties under
this paragraph.
[71] However, neither of the Parties has taken this position, and if the
Court were to adopt either the French or the Swiss contention, as to the
proper construction of the first paragraph of Article 2 of the Special
Agreement, it is obvious that the Court would, under this paragraph, be
required to pass upon questions essentially economic and political in their
nature, the decision of which is not to be found in an interpretation and
application of treaties between the two countries nor in the application of
rules and principles of law. The effect of paragraph 2 of Article 2 is to
cause the Court's decision of these questions to be dependent upon the will
of the Parties, and the Court has deemed the rendering of judgment under
such conditions incompatible with the dignity of this Court.
[72] It is primarily to avoid the necessity of asking the Parties whether or
not they would accept the judgment rendered by it that the Court has made
its present Order, providing, in substance, that the Parties shall be
allowed a period of some eight months, expiring July 31st, 1931, in which to
reach an agreement upon the questions referred to in paragraph 2 of Article
2 of the Special Agreement and any other points concerning the regime of the
territories contemplated by Article 435, paragraph 2, of the Treaty of
Versailles with which they may see fit to deal.
[73] I am of the opinion, however, that even had there been no such
limitation upon the power of the Court as that contained in paragraph 2 of
Article 2 of the Special Agreement, the Court would not, under its Statute,
which forms the fundamental law governing its jurisdiction, be competent to
decide such questions as those presented by the task of setting up a special
and complicated customs regime between two sovereign States; and, as
indicated above, it is my desire that there should be no misunderstanding as
to my opinion upon this most important question of the competence of the
Court that has led me to make these observations. [p33]
[74] The French Government cited the Hague Tribunal, the Behring Sea
Arbitration and the North Coast Fisheries Arbitration as authorities for the
proposition that it is within the competence of the Court to frame an
entirely new regime. As to the authority of these precedents, it is
sufficient to say that they were arbitrations pure and simple, and that the
competence of an Arbitral Tribunal specially set up to settle a specific
difference or series of differences between two or more States has as the
sole limit of its jurisdiction and competence the provisions of the
arbitration agreement to which it owes its existence. This Court - a
permanent Court of international justice - has, in its Statute, a
fundamental law defining the limits of the jurisdiction it may exercise. As
aptly remarked, in the argument, by the Agent of the French Government (in
connection with another point, it is true), there are certain articles of
the Court's Statute against which the provisions of the Special Agreement of
the Parties cannot avail. Every Special Agreement submitting a case to this
Court must be considered to have, as tacitly appended clauses thereto, all
the pertinent articles of the Court's Statute and must, in case of doubt as
to its meaning, be interpreted in the light of such provisions of the
Statute of the Court. The Agent of the French Government also cited the case
of the Serbian Loans (Judgment No. 14) where the Special Agreement provided
that, after the decision of the Court upon the legal question as to the
manner in which the bonds should be repaid, negotiations were to follow to
determine whether or not considerations of equity did not require that
certain concessions be made by the Party in whose favour the Court gave its
decision on the legal questions; and in the event of failure of the
negotiations, this question was to be decided, not by the Court, but by a
special arbitral tribunal set up by the Parties.
[75] It is evident from a consideration of the circumstances which called
for the creation of this Court and the history of its organization, as well
as from a careful examination of the Court's Statute, framed by a special
committee of jurists appointed by the Council of the League of Nations, that
this tribunal is a Court of justice as that term is known and understood in
the jurisprudence of civilized nations. The judges should be learned in the
law, should be selected [p34] without regard to their nationality and
should, in their administration of justice, be governed solely by the
special or general rules or principles of law applicable to the case in
hand. At the time this Court was created, it was felt that the setting up of
a special arbitral tribunal for the solution of disputes of a juridical
nature was an unnecessarily cumbersome and on the whole unsatisfactory
manner of deciding such questions; and it was desired that there should be
an international court whose jurisdiction or competence should correspond to
the common understanding of a Court of justice. It was desired that this
Court should be permanent, and ready, at any moment, to hear and decide the
legal differences of the nations. In view of the need this Court was created
to fulfil, and of the circumstances surrounding its organization, it is
scarcely possible that it was intended that, even with the consent of the
Parties, the Court should take jurisdiction of political questions, should
exercise the function of drafting treaties between nations or decide
questions upon grounds of political and economic expediency.
[76] At the time the Committee of Jurists met at The Hague for the purpose
of drawing up a draft of the Court's Statute pursuant to instructions from
the Council of the League, and to aid this body in the execution of Article
14 of the League Covenant, the idea of a Court of International Justice, as
opposed to a Court of Arbitration, was by no means a novel conception. The
jurists had before them schemes for such a Court drawn up by various
conventions and conferences, by representatives of various nations and
bodies for the study and advancement of legal science, as well as the
writings of numerous jurists and publicists, which schemes and writings made
a clear distinction between a Court of arbitration and a Court of justice.
[77] As stated by Mr. James Brown Scott, Director of the Division of
International Law of the Carnegie Endowment and Legal Assistant to Mr. Root
during the work of the Jurists Committee at The Hague in 1920, in his book
entitled: The Status of the International Court of Justice, [p35] published
by this Endowment in 1916 (p. 24): "The object of international arbitration
is declared to be 'the settlement of differences between States by judges of
their own choice, and on the basis of respect for law'. The object of
judicial decision, on the contrary, is the decision of differences by
judges, not necessarily chosen by the Parties in controversy, by an
application of principles of law, not on the basis of respect for law."
Again (pp. 25-26) the same author stated: "It is very difficult for one man
to have two functions, and to draw a clean-cut line of distinction between
their exercise. The executive, the legislative and the judicial powers are
separated in constitutional countries, and it is believed that the
experience of nations should not be lost upon arbitrators. It should be
clearly known that they act either as diplomats and reach a compromise, as
is proper in the case of diplomatic adjustment, or that they are judges and
reach a judicial decision, as becomes judges. Until this is done,
uncertainty exists; and uncertainty, it is submitted, either will or should
prevent a resort to that form of procedure from which it is not excluded."
As stated by the same authority in an address delivered August 1st, 1907
(Actes et Documents de la Deuxième Conférence Internationale de la Paix,
vol. II, pp. 313-321): "To decide as a judge, and according to law, it is
evident that a Court should be constituted, and it is also evident that the
Court should sit as a judicial, not as a diplomatic or political,
tribunal.... The Court is not a branch of the Foreign Office, nor is it a
chancellery. Questions of a political nature should .... be excluded, for a
Court is neither a deliberative nor a legislative assembly. It neither makes
laws nor determines a policy. Its supreme function is to interpret and apply
the law to a concrete case."
[78] Chief among the previous schemes for the establishment of an
international Court of justice, which the Jurists Committee had before it
and upon which it relied for inspiration, was that elaborated by the Hague
Conference of 1907, which failed in the establishment of such a Court only
because of its inability to reach an agreement as to the method of [p36]
election of judges. Mr. Elihu Root, who was one of the leading spirits in
the work of the Jurists Committee, was at that time Secretary of State of
the United States of America, and his instructions to the American delegates
to the Hague Conference are of the greatest importance as throwing light
upon the question of what was expected to be the nature of the Court which
it was hoped this Conference would establish. The material part of these
instructions reads as follows:
"The method in which arbitration can be made more effective, so that nations
may be more ready to have recourse to it voluntarily and to enter into
treaties by which they bind themselves to submit to it, is indicated by
observation of the weakness of the system now apparent. There can be no
doubt that the principal objection to arbitration rests not upon the
unwillingness of nations to submit their controversies to impartial
arbitration, but upon an apprehension that the arbitrations to which they
submit may not be impartial; it has been a very general practice for
arbitrators to act, not as judges deciding questions of fact and law upon
the record before them under a sense of judicial responsibility, but as
negotiators effecting settlements of the questions brought before them in
accordance with the traditions and usages and subject to all the
considerations and influences which affect diplomatic agents. The two
methods are radically different, proceed upon different standards of
honorable obligation, and frequently lead to widely differing results. It
very frequently happens that a nation which would be very willing to submit
its differences to an impartial judicial determination is unwilling to
subject them to this kind of diplomatic process. If there could be a
tribunal which would pass upon questions between nations with the same
impartial and impersonal judgment that the Supreme Court of the United
States gives to questions arising between citizens of the different States,
or between foreign citizens and the citizens of the United States, there can
be no doubt that nations would be much more ready to submit their
controversies to its decision than they are now to take the chances of
arbitration. It should be your effort to bring about in the Second
Conference a development of the Hague tribunal into a permanent tribunal
composed of judges who are judicial officers and nothing else, who are paid
adequate salaries, who have no other occupation, and who will devote their
entire time to the trial and decision of international causes by judicial
methods and under a sense of judicial responsibility. These [p37] judges
should be so selected from the different countries that the different
systems of law and procedure and the principal languages shall be fairly
represented. The Court should be made of such dignity, consideration and
rank that the best and ablest jurists will accept appointment to it, and
that the whole world will have absolute confidence in its judgments."
[79] The distinction between the function and object of a Court of justice
and a Court of arbitration, as understood by the American delegates to the
Hague Conference, is clearly put in the report made by the American
delegation to the Secretary of State in connection with the Hague Conference
of 1907 in the following language:
"It is obvious that such a court, acting under a sense of judicial
responsibility, would decide, as a court, according to international law and
equity, a question submitted to it, and that the idea of compromise hitherto
so inseparable from arbitration should be a stranger to this institution."
[80] It was most certainly a Court of this nature, and not a branch of a
foreign office nor a chancellery, of which the Jurists Committee drafted the
Statute when they met at The Hague.
[81] At the time of the framing of the Statute of the Court there already
existed special arbitral tribunals, as well as a general Court of
Arbitration, organized by the Conventions of the Hague of 1899 and 1907, to
which the nations were, always at liberty to submit their political disputes
for settlement. It was provided, in the first article of its Statute, that
this Court was to be in addition to these Courts of Arbitration.
[82] It may be contended that the language used in Article 36 of the Court's
Statute opens the Court to any and all disputes voluntarily submitted to it
by the Parties, regardless of the nature of the questions involved. Read
alone, the provisions of this article might be deemed sufficiently broad to
extend the jurisdiction of the Court to political as well as legal
questions; but when these provisions are viewed in the proper perspective of
the frame of the Court's Statute and are [p38] construed in conjunction with
the provisions of Article 38, it is deemed impossible to avoid the
conclusion that this Court is competent to decide only such questions as are
susceptible of solution by the application of rules and principles of law.
[83] Article 38 of the Court's Statute provides that, in the decision of
disputes:
"The Court shall apply:
1. International conventions, whether general or particular, establishing
rules expressly recognized by the contesting States;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations;
4. Subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.
This provision shall not prejudice the power of the Court to decide a case
ex œquo et bono, if the Parties agree thereto."
[84] In other words, the Court is competent to construe and apply treaties
between the nations and decide questions susceptible of solution by the
application of well recognized rules and principles of international law or
domestic law where such law is applicable to the question in hand. These are
the same principles as those which, within the domain of domestic law, form
the basis of the jurisdiction of Courts generally throughout the civilized
world and are recognized by the jurisprudence of all civilized countries. A
suit based upon a contract or upon a right recognized by the general
principles of the law of a country may be brought in a domestic Court, but
it is not the function of Courts to create contract rights between the
Parties, except in so far as the rendering of a judgment may transform an
unliquidated claim into a judicial contract. While Courts may well be called
upon at times to lay down rules and regulations in accordance with which the
legal rights of the Parties are to be enforced and enjoyed, their exercise
of this function is [p39] based upon the existence of rights recognized by
the law and determined by the Court; and such regulations as the Court may
make are merely for the enforcement and enjoyment of the existing legal
rights and obligations of the Parties. The mission which the French
Government's thesis, as to the interpretation of the Special Agreement,
would have the Court fulfil is not that of laying down regulations for the
enforcement of legal rights; for France has no such right to the creation of
a new regime, if the provisions of the treaties of 1815 and 1816 continue to
remain in force. The Court is, rather, called upon to create new rights and
obligations for the Parties, and not to draw up regulations for the
enforcement and enjoyment of their existing legal rights and obligations.
[85] It is scarcely possible that the rules found in Article 38 of the
Statute would have been laid down, had it been understood that this Court,
would be at liberty, not only to disregard the legal rights and obligations
of the Parties, but to engage in exercising a power which is exclusively
within the competence of the treaty-making authority of a sovereign State,
the exercise of which must result in an alteration of the legal rights and
obligations of the Parties.
[86] The Agent of the French Government points to the second paragraph of
Article 38 of the Court's Statute as empowering the Court to substitute
itself for the Parties and, in effect, draw up a new agreement between them,
if the French interpretation of the Special Agreement is adopted. This
paragraph provides that the foregoing "provision shall not prejudice the
power of the Court to decide a case ex œquo el bono, if the Parties agree
thereto". While this Court has never expressly passed upon the meaning of
this provision, it is significant that, in all the cases decided by it, the
Court has never attempted to exercise a jurisdiction extending beyond that
of deciding legal questions between nations, or the giving of advisory
opinions on such questions to the Council of the League. [p40]
[87] The authority given to the Court to decide a case ex œquo et bono
merely empowers it to apply the principles of equity and justice in the
broader signification of this latter word. In drafting Article 38 the
framers of the Court's Statute were laying down rules for the decision of
questions coming before the Court. International conventions must, of
course, be construed; international customs taken as evidence of general
practice accepted as law form another means of determining "what constitutes
international law; general principles of law recognized by civilized nations
might include, not only international law, but such rules of domestic law as
would be applicable to the decision of the case in hand. The article further
provides that, in the determination of the rules of law, the Court may
consider "judicial decisions and the teachings of the most highly qualified
publicists of the various nations". It is then provided that the Court may
apply, in the decision of a case, the principles of equity and justice. For
the purpose of the present case, it might be sufficient to point out that
the Parties have not agreed that the Court should decide the questions
involved ex œquo et bono. But had the Assembly of the League, which added,
practically without discussion, this provision to the draft of the Statute,
which had been prepared and debated at length by the Committee of Jurists,
intended that this addition to the Statute should throw open the doors of
the Court to questions involving the making of agreements between nations
and the decision of disputes of a purely political nature, in accordance
with considerations of political and economic expediency, it is most
improbable that this language would have been deemed sufficient or have been
used. This provision was not in the Statute of the World Court submitted by
the Committee of Jurists appointed by the League of Nations. It was added by
a Committee of the Assembly and finally adopted by the League and submitted
to the various governments. Neither in the records of the proceedings of
this Committee nor in its report to the League, is there a suggestion that
this provision of the Statute was intended to give the Court jurisdiction of
political and economic questions which the Court might settle without regard
to treaty rights or principles of law and equity. In fact, quite the
contrary. [p41]
[88] The provision was suggested by M. Fromageot of France, who simply
desired to add to Article 38 (Article 35 of the Jurists' Draft) that the
Court might decide on principles of "law and justice", which would have
resulted in simply adding the word "justice" to sub-division 3. To express
this view the clause was adopted authorizing the Court to decide matters ex
œquo et bono. But M. Fromageot stated that this "clause" did not imply that
the Court might disregard existing rules, and the existing rules were those
laid down in Article 38, whereby the Court was to base its decision of
questions upon treaties and conventions between nations and upon principles
of law.
[89] What is a political question? It is a question which is exclusively
within the competence of a sovereign State. The making of tariff
regulations, the regulation of immigration, the imposition of taxes and, in
short, the exercise of all governmental power necessarily inherent in a
sovereign State, involve questions of this nature. In passing upon a
political question there is no rule or principle of law, no norm of equity,
justice or even good conscience, which the Court can apply; for, unless
limited by treaties, the power of a State in this domain is unlimited.
[90] In view of these considerations, it is not, in my opinion, possible to
hold that the provision contained in Article 36 of the Statute of the Court
to the effect that the Court's jurisdiction "comprises all cases which the
Parties refer to it" authorizes this Court to take jurisdiction of purely
political questions and decide them upon considerations of political and
economic expediency as an amiable compositeur or conciliator.
[91] It must, therefore, be taken that the words "all cases" and "all
matters" used in Article 36 mean all cases and all matters susceptible of
solution by the application of the rules and principles set forth in Article
38. This might, in a given case, include questions which, in the absence of
treaty [p42] provisions forming conventional law between the Parties, would
otherwise be "political questions" or questions exclusively within the
competence of the States themselves. It certainly does not, however, include
cases for the solution of which there exist absolutely no rules or
principles of law, and which the Court must decide solely upon the basis of
its conception of political or economic expediency.
[92] While the importance of the settlement, by pacific means, of all
disputes between nations should in no way be minimized, it is of the
greatest importance that the prestige and influence of this Tribunal and the
confidence which it should inspire among the nations as an impartial
judicial body, wholly detached from political influence, should not be
decreased or jeopardized, as would be the inevitable result of its
assumption of jurisdiction over matters exclusively within the domain of the
political power of a State. It seems to me incontestable that nothing could
be more fatal to the prestige and high character of a great International
Court of Justice than for it to become involved in the political disputes
pending between nations, questions which may arise because of economic
rivalry or racial, social or religious prejudices. No principle of law can
be invoked for the settlement of such questions. That these political
questions often lead to conflict and that the nations are pledged by the
Pact of Paris to settle all differences by pacific means is undoubtedly
true; but there is ample machinery for the adjustment of these questions;
diplomacy, conciliation commissions and general arbitration are available
for this purpose, whenever nations are willing to submit their sovereign
rights to arbitration. But these questions of political or economic policy
are within the sovereign jurisdiction of every independent State and should
not and cannot be submitted to the International Court of Justice. There is
also the League of Nations, which is a political conciliation body to which
all the Members may appeal. There is no need to impose upon the Court any
such political questions destructive of its influence as a Court of justice.
[p43]
[93] The Parties to this case are at liberty to submit the political
questions involved therein to arbitration before arbitrators specifically
chosen for the purpose, if other means of settlement fail.
[94] The question of jurisdiction can always be raised at any stage of the
proceeding. It is not even necessary that it be raised by one of the
litigant Parties. It may and should be raised by the Court on its own
initiative, as was done in the Eastern Carelia case.
[95] It is my opinion, therefore, that the competence of the Court in this
case extends only to the determination of the legal rights of the Parties,
and that it could not, even with their consent and at their request, settle
such political questions as may be involved in the execution of paragraph 2
of Article 435 of the Treaty of Versailles.
(Signed) Frank B. Kellogg.
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