File E. c. XVI.

 

Docket XIX. I.

 

 6 December 1930

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Nineteenth (Extraordinary) Session

 

Case of the Free Zones of Upper Savoy and the District Of Gex

 

France v. Switzerland

Order

 
BEFORE: President: Anzilotti
Judges: Loder, Nyholm, Altamira, Oda, Huber, Sir Cecil Hurst, Kellogg
Deputy Judge(s): Yovanovitch, Beichmann, Negulrsco
 Judge ad hoc: Dreyfus
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1930.12.06_savoy_gex.htm
  
Citation: Free Zones of Upper Savoy and District of Gex (Fr. v. Switz.), 1930 P.C.I.J. (ser. A) No. 24 (Order of Dec. 6)
Publication: Publications of the Permanent Court of International Justice Series A - No. 24; Collection of Judgments A.W. Sijthoff’s Publishing Company, Leyden, 1930.
  
 

  

[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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