General List No. 39

Advisory Opinion No.   

15 October 1931

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty Second Session

 

Railway Traffic between Lithuania and Poland (Railway Sector Landwarów-Kaisiadorys)

 

Advisory Opinion

 
BEFORE: President: Adatci
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Sir Cecil Hurst, Schücking, Negulesco, Wang
Judge(s) ad hoc: Stašinskas
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1931.10.15_railway_traffic.htm
  
Citation: Railway Traffic between Lithuania and Poland, Advisory Opinion, 1931 P.C.I.J. (ser. A/B) No. 42 (Oct. 15)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 42; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1931
  
 

  

[p108]
[1] THE COURT, composed as above, gives the following opinion: [p109]

On January 24th, 1931, the Council of the League of Nations adopted the following Resolution:

"The Council of the League of Nations requests the Permanent Court of International Justice to give an advisory opinion under Article 14 of the Covenant on the following question:

'Do the international engagements in force oblige Lithuania in the present circumstances, and if so in what manner, to take the necessary measures to open for traffic or for certain categories of traffic the Landwarów-Kaisiadorys railway sector ?'

The Secretary-General is authorized to submit this request to the Court, to give all necessary assistance in the examination of the question and if necessary to make arrangements to be represented before the Court.
The Advisory and Technical Committee for Communications and Transit is requested to provide the Court with any assistance it may need for the examination of the question submitted to it."

[2] In pursuance of this Resolution, the Secretary-General, on January 28th, 1931, transmitted to the Court a request for an advisory opinion in the following terms:

"The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of January 24th, 1931, and in virtue of the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an application requesting the Court, in accordance with Article 14 of the Covenant, to give an advisory opinion to the Council on the question which is referred to the Court by the Resolution of January 24th, 1931.
The Secretary-General will be prepared to furnish any assistance which the Court may require in the examination of this matter, and will, if necessary, arrange to be represented before the Court."

[3] The request was accompanied by the report on which the Council adopted the above-mentioned Resolution, a previous report to the Council upon the matter and a report of the Advisory and Technical Committee for Communications and Transit, prepared at the request of the Council. The minutes [p110] of the meetings leading up to the adoption of the Council's Resolution of January 24th, 1931, were sent to the Court subsequently. The Secretary-General also forwarded to the Court a certified copy of the Convention and Statute on Freedom of Transit, signed at Barcelona on April 20th, 1921, and also of the Convention and transitory provision, with annexes, concerning Memel, signed at Paris on May 8th, 1924.

[4] In conformity with Article 73, paragraph 1, sub-paragraph 1, of the Rules of Court, the request was communicated to Members of the League of Nations and to States entitled to appear before the Court. Furthermore, the Registrar, by means of a special and direct communication, informed the Lithuanian and Polish Governments, which were regarded by the Court as likely, in accordance with Article 73, paragraph 1, sub-paragraph 2, of the Rules, to be able to furnish information on the question submitted to the Court for an advisory opinion, that the Court was prepared to receive from them written statements and, if they so desired, to hear oral arguments made on their behalf at a public hearing to be held for the purpose. At the same time, the interested Governments were requested to indicate the time-limits within which they would be ready to file any written statements they might desire to submit.

[5] On receipt of this information, the President of the Court, by an Order made on March 3rd, 1931, fixed June 1st, 1931, as the date by which the written statements, the presentation of which had been announced by the two Governments, were to be filed, and July 15th, 1931, as the date by which the Court would be prepared to receive a second statement. By the first of these dates, statements had been filed on behalf of the Lithuanian and Polish Governments; by the second, a "Reply" had been submitted on behalf of the Lithuanian Government; the Polish Government filed a second written statement on July 20th, 1931, the filing of which the Court decided, under Article 33 of the Rules, to regard as valid, notwithstanding the fact that it had taken place after the expiration of the time-limit fixed.

[6] In pursuance of a decision taken by the Court on July 17th, 1931, the Registrar sent to the Advisory and Technical Committee [p111] for Communications and Transit of the League of Nations, through the Secretary-General, the communication provided for in Article 73, paragraph 1, sub-paragraph 2, of the Rules.

[7] Lastly, on February 27th, 1931, the Registrar addressed to all States Parties to the Covenant of the League of Nations, to the above-mentioned Conventions of Barcelona and Paris, and to the Germano-Lithuanian Treaty of Commerce and Navigation of October 30th, 1928, a communication drawing their attention to the rights conferred on them under Article 73, paragraph 1, sub-paragraph 3, of the Rules of Court.

[8] In the course of public sittings held on September 16th, 17th, 18th, 19th, 21st and 22nd, 1931, the Court heard a statement by the President of the Advisory and Technical Committee for Communications and Transit, M. Silvain Dreyfus, and also the oral arguments of MM. Sidzikauskas and Mandelstam, on behalf of the Lithuanian Government, and of M. Mrozowski, on behalf of the Polish Government.

[9] In the opinion of the Court, the question submitted to it for an advisory opinion related to an existing dispute between Lithuania and Poland within the meaning of Article 71, paragraph 2, of the Rules of Court. As one only of these countries, namely, Poland, had on the Bench a judge of its nationality, the attention of Lithuania was drawn to her right, under Article 31 of the Statute, to choose a national judge to sit in the case. The Lithuanian Government availed itself of this right.

[10] The submission of the case being in all respects regular, it is in these circumstances that the Court is now called upon to give its opinion.

***

[11] The question put to the Court is, substantially, as follows: "Do the international engagements in force oblige Lithuania, in the present circumstances, to open for traffic the Landwarów-Kaisiadorys railway sector?"

[12] According to the information furnished by the Agents for the Lithuanian and Polish Governments, the Landwarów-Kaisiadorys railway sector formed part of the railway from Vilna to Libau. It appears that this sector was destroyed in the war [p112] of 1914-1918, a period at which neither the State of Lithuania nor that of Poland existed. With various alternations, due to the vicissitudes of the war, this state of things continued, after the formation of the two States and during the hostile operations of Russia against Poland. During this period, it appears that the line was temporarily repaired at times for the purposes of local traffic; then again these repairs seem to have been destroyed after the Polish General Zeligowski's occupation of Vilna on October 9th, 1920. Since that time, i.e. for more than ten years, there has been no change in the situation;

[13] Before the war, at the time when all these regions formed part of the Russian Empire, the railway from Vilna to Libau, including the Landwarów-Kaisiadorys sector, was of great importance for traffic with the Russian naval port of Libau, for that with the Russian commercial port of Riga and with the German commercial port of Königsberg.

[14] After the war, the whole of this part of Europe was thrown into confusion by political events: the disappearance as a Russian naval port of Libau, which became a Latvian commercial port; the establishment of frontiers between new and old States, Latvia, Lithuania, Poland and Germany, where formerly German and Russian territory had been contiguous; events in Russia with their political and economic consequences. Trade exchanges were, accordingly, profoundly modified, both as regards their importance and the routes which they formerly followed.

[15] Such was the situation when, on October 15th, 1927, Lithuania, under Article 11 of the Covenant, brought before the Council of the League of Nations, which had already often had to consider relations between Lithuania and Poland, a new dispute between the two Governments regarding events which had occurred in the Vilna territory. As a result, a Resolution was adopted by the Council on December 10th, 1927, with the concurrence of the two Parties concerned.

[16] After this Resolution and because of it, negotiations between the two Governments took place at Konigsberg in the spring and autumn of 1928; these negotiations related inter alia to [p113] the question of railway communications; but in regard to this particular point the negotiations proved fruitless. On being informed of the result of the negotiations, the Council, on December 14th, 1928, adopted a Resolution noting that the two Governments had signed a provisional arrangement for according certain facilities for local traffic, and that they were agreed on the advisability of continuing the negotiations between Governments with a view to the conclusion of an agreement regulating the commercial exchanges between the two countries; and also instructing the Secretary-General of the League of Nations to refer to the Advisory and Technical Committee for Communications and Transit the question of the obstacles in the way of freedom of communications and transit, mentioned in the documents before the Council.

[17] Accordingly, the Committee, on September 4th, 1930, submitted to the Council a report, recommending, amongst other things, measures for the re-establishment on the railway between Vilna and Kovno, via Landwarów-Kaisiadorys, of a through service satisfying the requirements of international transit traffic.

[18] In its report, the Committee expressed the opinion that the re-establishment of international traffic on this line would enable the ports of Libau, Königsberg and Memel to recover a part of their old traffic.

[19] This report was not accepted by the two Governments concerned - though their reasons for not accepting it differed - a fact of which the Council was informed at its meeting on January 23rd, 1931. On the following day, the Council decided to refer the present question to the Court.

***

[20] The representatives of the Lithuanian Government have declared in Court that Lithuania, on the ground of her present relations with Poland, does not intend to restore to use the Landwarów-Kaisiadorys railway sector, so far as it lies in her territory; she adopts this attitude as a form of pacific reprisals and believes herself to be entitled to persist in it "until the question of the allocation of Vilna and the adjoining [p114] territory has been settled by arbitration or by a decision given by the Court at the request of the two Governments concerned". It is however to be observed that the question whether Lithuania is or is not entitled to exercise reprisals, inter alia, by keeping the Landwarów-Kaisiadorys railway sector out of use, only arises if it is shown that the international engagements in force oblige Lithuania to open this sector for traffic. Should the Court arrive at the conclusion that no international engagements of this nature exist for Lithuania, the argument based on the alleged right of that country to engage in pacific reprisals ceases to be of any importance.

***

[21] Having regard to the conditions set out above, it is for the Court to consider whether there are any international engagements obliging Lithuania "to take the necessary measures to open for traffic the Landwarów-Kaisiadorys railway sector".

[22] The question put to the Court makes no mention of any particular international engagement; it refers not to the application of rules resulting from general international law, but to any contractual engagements in force which may create for Lithuania the obligation in question.

[23] According to the Advisory and Technical Committee, this obligation ensues from Article 23 (e) of the Covenant of the League of Nations and from the Convention of Paris of May 8th, 1924, concerning Memel.

[24] To these instruments, the Polish Government adds the Resolution of the Council of the League of Nations of December 10th, 1927.

[25] The Court will first of all consider this Resolution and then take Article 23 (e) of the Covenant, and the Convention concerning Memel, in that order. [p115]

1. - Council's Resolution of December 10th, 1927.

[26] The Council's Resolution of December 10th, 1927, is as follows

"The Council of the League of Nations
Declares that a state of war between two Members of the League is incompatible with the spirit and the letter of the Covenant, by which Lithuania and Poland are bound;
Takes note of the solemn declarations made by the Lithuanian representative that Lithuania does not consider herself in a state of war with Poland and that in consequence peace exists between their respective countries;
Takes note of the solemn declarations of the Polish representative that the Polish Republic fully recognizes and respects the political independence and territorial integrity of the Lithuanian Republic;
Recommends the two Governments to enter into direct negotiations as soon as possible in order to establish such relations between the two neighbouring States as will ensure 'the good understanding between nations upon which peace depends';
Places at the disposal of the two Parties the good offices of the League and of its technical organs should their assistance be desired in the negotiations which it recommends;
Decides that the Lithuanian Government's complaints regarding the treatment of persons of Lithuanian race or speech, referred to in its appeal, shall be examined by a Committee, consisting of the Acting President of the Council and two other members of the Council appointed by him. This Committee will report to the Council in due course.
Decides that, in the event of a frontier incident or threat of an incident, the Secretary-General of the League of Nations may, at the request of one of the Parties, consult the Acting President of the Council and the Rapporteur, who shall then advise any steps they consider necessary to bring about a better state of feeling. The Council notes that both Parties have agreed to facilitate any enquiry by the League of Nations.
Notes with satisfaction the Polish representative's declarations to the effect that the Polish nationals referred to in the Lithuanian Government's appeal will be authorized to return to Poland without hindrance. In case of unforeseen difficulties, the Rapporteur would place his good offices at the disposal of the Parties with a view to removing those difficulties. [p116]
The Council declares that the present Resolution in no way affects questions on which the two Governments have differences of opinion."

[27] The representatives of Lithuania and of Poland participated in the adoption of this Resolution of the Council.

[28] The two Governments concerned being bound by their acceptance of the Council's Resolution, the Court must examine the scope of this engagement.

[29] The Council's Resolution recommends the two Governments "to enter into direct negotiations as soon as possible in order to establish such relations between the two neighbouring States as will ensure 'the good understanding between nations upon which peace depends'."

[30] According to the view maintained before the Court on behalf of the Polish Government, Poland and Lithuania, in accepting this recommendation, undertook not only to negotiate but also to come to an agreement, with the result - it is alleged - that Lithuania has incurred an obligation to open the Landwarów-Kaisiadorys railway sector to traffic - a conclusion which would decide the question on which the Court is asked for an opinion.

[31] The Court is indeed justified in considering that the engagement incumbent on the two Governments in conformity with the Council's Resolution is not only to enter into negotiations, but also to pursue them as far as possible, with a view to concluding agreements. This point of view appears, moreover, to have been that adopted by the Council at its subsequent meetings. But an obligation to negotiate does not imply an obligation to reach an agreement, nor in particular does it imply that Lithuania, by undertaking to negotiate, has assumed an engagement, and is in consequence obliged to conclude the administrative and technical agreements indispensable for the re-establishment of traffic on the Landwarów-Kaisia-dorys railway sector.

[32] There is therefore no justification for maintaining that the acceptance by the two Governments concerned of the Council's Resolution of December 10th, 1927, implies that Lithuania has incurred an obligation to restore to use and to open to traffic the railway sector in question.

[33] The Court, having arrived at this conclusion, is not called upon to express an opinion with regard to the interpretation [p117] of the last paragraph of the Resolution to the effect that the Resolution "in no way affects questions on which the two Governments have differences of opinion". Indeed, only if the Court considered that the Resolution created, otherwise, for Lithuania fan obligation to restore the line in question to use would the arguments based on the clause in question be relevant.

***

2.- Article 23 (e) of the Covenant of the League of Nations.

[34] During the year 1928, the Council of the League noted the meagre results produced by the negotiations which had been entered into and carried on at Königsberg between Lithuania and Poland, in pursuance of the Council Resolution of December 10th, 1927. The Council accordingly accepted the conclusions of its Rapporteur, M. Beelaerts van Blokland, and basing itself on the provisions of Article 23 (e) of the Covenant and on the Resolution of the Assembly of the League of Nations of December 9th, 1920 - by which the Advisory and Technical Committee was instructed "to consider and propose measures calculated to ensure freedom of communications and transit at all times" - decided to request that Committee to present a report on the practical steps which might be adopted, account being taken of the international agreements in force.

[35] It was in pursuance of that invitation of the Council that the Advisory Committee drew up its report dated September 4th, 1930, in which it expressed the opinion, inter alia, that the railway sector Landwarów-Kaisiadorys should be restored, in order to serve for the international transit of goods coming from or going to the districts of Grodno and Vilna, or going to and coming from Königsberg, Memel, Libau and Riga.

[36] The Committee, whilst therefore holding that the interruption of goods transit has the effect of completely stopping certain forms of transport which cannot use these latter ports owing to the heavy cost of sending the goods by a roundabout route, considers that goods traffic between Poland and Lithuania other than transit traffic can continue to be carried on indirectly [p118] without any serious difficulty, and that it is not advisable at the present moment to resume passenger traffic.

[37] Accordingly, the Committee's report sets forth the following conclusions:

"1. They should remove these obstacles to freedom of transit ... in order to put an end to a situation which seems contrary to the objects of Article 23 (e) of the Covenant of the League of Nations and incompatible with the international engagements to which they have subscribed.
2. They should with this object proceed more especially:
(a) to draw up regulations on timber-floating on the Niemen, in conformity with the provisions of Articles 332 to 337 of the Treaty of Versailles;
(b) to conclude administrative and technical agreements essential for re-establishing, on the railway through Landwarów-Kaisiadorys, a continuous service which shall meet the requirements of international transit."

[38] As M. Silvain Dreyfus, President of the Advisory and Technical Committee, reaffirmed in his statement in Court at the hearing on September 16th, 1931, the Committee considers that Lithuania is bound to open this railway sector to inter-national traffic under Article 23 (e) of the Covenant. It considers that if it were once admitted that certain countries would be at liberty, on the ground of political disagreements, to suppress international railway connections during long periods, the interests of third States, Members of the League, might suffer, since they would no longer enjoy the benefits of freedom of transit and communications to which they are, in principle, entitled under Article 23 (e) of the Covenant.

[39] Nevertheless, no third State has considered it necessary or expedient to intervene and to claim that Article 23 (e) has been violated by Lithuania.

[40] The Polish Government, however, basing itself on the opinion of the Advisory and Technical Committee, contends that Article 23 (e) of the Covenant constitutes an international engagement, obliging the Lithuanian State to open this line.

[41] But it should be observed that Article 23 (e) of the Covenant - whatever may be the obligations which do arise from it for States Members of the League of Nations - does not imply any [p119] specific obligations for these States to open any particular lines of communication.

[42] The actual wording of this article of the Covenant is as follows:

"Article 23. - Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League:
……………………………………………………………………………………………………..
(e) will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League...."

[43] Specific obligations can therefore only arise, as this text clearly states, from "international conventions existing or hereafter to be agreed upon", for instance from "general conventions to which other Powers may accede at a later date", as is stated in the Preamble to the Barcelona Convention on freedom of transit. If this interpretation is correct, it is impossible to deduce from the general rule contained in Article 23 (e) of the Covenant an obligation for Lithuania to open the Landwarów-Kaisiadorys railway sector for inter-national traffic, or for part of such traffic; such obligation could only result from a special agreement.

[44] In these circumstances, it is unnecessary for the Court to consider whether a State refusing to establish any communication with one or more other States, also Members of the League, would not be contravening Article 23 (e) of the Covenant, even if it had not signed any convention prescribing freedom of communications and transit. In this connection, the Court desires to emphasize that the present Opinion is not to be construed as giving any view in regard to the opinion expressed on behalf of the Advisory and Technical Committee, to the effect that, by the terms of Article 23 (e), "the Members of the League have certainly the right to request any Members at least to refrain from acting in opposition to the objects of this article".[p120]

3. - Application of the Convention of Paris of May 8th, 1924, concerning Memel.

[45] Thirdly and lastly, certain provisions of the so-called Memel Convention, signed at Paris on May 8th, 1924, between the British Empire, France, Italy and Japan of the one part, and Lithuania of the other part, for the establishment of the régime of the territory and port of Memel, have been relied on to prove the existence of an obligation incumbent upon Lithuania.

[46] Article 3 of Annex III of the Memel Convention lays down that "the Lithuanian Government shall ensure the freedom of transit by sea, by water or by rail, of traffic coming from or destined for the Memel territory or in transit through the said territory, and shall conform in this respect with the rules laid down by the Statute and Convention on the Freedom of Transit adopted by the Barcelona Conference....".

[47] The Statute of Barcelona to which reference is thus made in the Memel Convention, and which is to this extent applicable to Lithuania, lays down, in Article 2, that contracting States "shall facilitate free transit, by rail or waterway, on routes in use convenient for international transit".

[48] The question therefore arises whether the Landwarów-Kaisiadorys railway sector is in use. On this point the very terms of the question submitted to the Court clearly establish that the line is not in use, for if it were in use, there would be no reason for discussing the possibility of reopening it for traffic. But can it be said that the railway of which it forms part is in use as a whole, though the sector in question is not ? That is a distinction which appears too subtle and which it is therefore impossible to draw, especially seeing that the question referred to the Court solely concerns the Landwarów-Kaisiadorys railway sector taken by itself.

[49] Again, it is clear that this railway or railway sector is scarcely convenient for international transit to or from Memel, which alone is in question, since it only affords communication [p121] with Memel by means of a detour or by means of reloading on to barges at Kovno.

[50] It follows therefore from the above that neither the Memel Convention nor the Statute of Barcelona to which the former refers can be adduced to prove that the Lithuanian Government is under an obligation to restore the Landwarów-Kaisia-dorys railway sector to use and to open it for international traffic.

[51] Furthermore, it must be remembered that, under the last paragraph of Article 3 of Annex III to the Memel Convention, to which reference has been made above, the Lithuanian Government undertakes "to permit and to grant all facilities for the traffic on the river to or from or in the port of Memel, and not to apply, in respect of such traffic, on the ground of the present political relations between Lithuania and Poland, the stipulations of Articles 7 and 8 of the Barcelona Statute on the Freedom of Transit and Article 13 of the Barcelona Recommendations relative to Ports placed under an International Régime".

[52] These are obviously circumstances calculated to promote freedom of transit via the port of Memel, for the provisions which Lithuania abandons her right to apply are designed to place certain restrictions on this freedom. But it is to be observed that this clause in the Memel Convention applies solely to waterways and not to railways.

[53] As regards railways, on the contrary, which might be in use and of importance to the port of Memel, regard is had to the present political relations between Lithuania and Poland, and it is clearly for this reason that Lithuania did not wish to abandon - as she had done with regard to waterways - her right to apply to them certain measures restricting freedom of traffic.

[54] Seeing that the Memel Convention expressly forbids Lithuania to invoke Article 7 of the Barcelona Statute, with reference to freedom of transit by waterway, it is clear, on the other hand, that she might avail herself of it with regard to rail-ways of importance to the Memel territory. And, accordingly, [p122] even if the Landwarów-Kaisiadorys railway sector were in use and could serve Memel traffic, Lithuania would be entitled to invoke Article 7, as a ground for refusing to open this sector for traffic or for certain categories of traffic, in case of an emergency affecting her safety or vital interests.

[55] From this point of view also, Lithuania is therefore not at present under the Memel Convention under any obligation to restore to use and open for traffic the railway sector in question.

***

[56] As appears from the foregoing considerations, the Court, after examining the engagements which have been invoked with regard to the re-opening for traffic, or for certain categories of traffic, of the Landwarów-Kaisiadorys railway sector, has reached the conclusion that, in the present circumstances, the obligation, which is alleged to be incumbent on Lithuania, does not exist.

[57] FOR THESE REASONS,
The Court,
unanimously,
is of opinion
that the international engagements in force do not oblige Lithuania in the present circumstances to take the necessary steps to open for traffic or for certain categories of traffic the Landwarów-Kaisiadorys railway sector.

[58] Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of October, one thousand nine hundred and thirty-one, in two copies, one of which is to be placed in the archives [p123] of the Court and the other to be forwarded to the Council of the League of Nations.

(Signed) M. Adatci,
President.
(Signed) Ĺ. Hammarskjöld,
Registrar.

[59] M. Altamira, whilst concurring, for reasons other than those set forth in the Opinion of the Court, in the conclusion of the present Opinion, declares himself unable to agree with the arguments concerning the interpretation and application in the present case of the Memel Convention and of Articles 2 and 7 of the Convention of Barcelona.

[60] M. Anzilotti, whilst concurring in the conclusion of the Court, is of opinion that the reasons adopted, particularly those relating to Article 23 (e) of the Covenant, do not adequately support that conclusion. In his opinion, the real question before the Court is not whether Lithuania is bound to open for traffic a given railway line; it is rather whether Lithuania can refuse to have railway communications with Poland. It is certain that all the railway communications directly connecting Lithuania with Poland are broken, and that the sole reason why the Council's question is confined to the Landwarów-Kaisiadorys line is that this line is the only one of considerable economic importance. That being so, M. Anzilotti is of opinion that nothing but the "present circum-stances" which are mentioned in the question and which, quite obviously, refer to existing political relations between the two countries, can justify an attitude on the part of Lithuania which in itself would be scarcely compatible with the duties of Members of the League of Nations and particularly with certain obligations which, in normal circumstances, would seem to result from Article 23 (e) of the Covenant.

(Initialled) M. A.
(Initialled) A. H.



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