|
|
I.
[1] On June 17th, 1924, the Council of the League of Nations adopted the
following Resolution:
The Council of the League of Nations, having been seized by the Conference
of Ambassadors, acting on behalf of the Governments of the British Empire,
France, Italy and Japan, of the question of the delimitation of the frontier
between Albania and the Kingdom of the Serbs, Croats and Slovenes [p7] at
the Monastery of Saint-Naoum; and having undertaken to give the Conference
its opinion with a view to the solution of the problem;
Whereas the decision of the Conference of December 6th, 1922, has been
contested by arguments which, together with the arguments on the other side,
are contained in the papers forwarded to the Council;
Has the honour to request the Permanent Court of International Justice to
give an advisory opinion on the following question:
"Have the Principal Allied Powers, by the decision of the Conference of
Ambassadors of December 6th, 1922, exhausted, in regard to the frontier
between Albania and the Kingdom of the Serbs, Croats and Slovenes at the
Monastery of Saint-Naoum, the mission, such as it has been recognized by the
interested Parties, which is contemplated by a unanimous Resolution of the
Assembly of the League of Nations of October 2nd, 1921?"
The Council requests the Governments concerned to supply the Permanent Court
with all relevant documents or information. It has the honour to forward to
the Court the dossier which has been communicated to it by the Conference of
Ambassadors and which may, if necessary, be supplemented later.
The Secretary-General is authorized to submit this request to the Court,
together with all the relevant documents, to explain to the Court the action
taken by the Council in the matter, to give all assistance necessary in the
examination of the question and, if required, to take steps to be
represented before the Court.
[2] In conformity with this Resolution, the Secretary-General of the League
of Nations on the same day transmitted to the Court the following request
for an advisory opinion:
"To the Permanent Court of International Justice.
The Secretary-General of the League of Nations, in pursuance of the Council
Resolution of June 17th, 1924, and in virtue of the authorization given by
the Council, [p8]
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
has been referred to the Court by the Resolution of June 17th, 1924.
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of the question, and will, if
necessary, arrange to be represented before the Court."
[3] In accordance with Article 73 of the Rules of Court, the Request was
communicated by the Registry to Members of the League through the
Secretary-General, and to the States mentioned in the Annex to the Covenant.
[4] To the Request were attached the dossier [FN1] concerning the question
of Saint-Naoum which the Conference of Ambassadors had sent to the Council
of the League of Nations and to which the Council referred in the Resolution
quoted above. Furthermore the Secretary-General of the League of Nations had
requested the Conference to send direct to the Court all maps likely to be
of use to it which the Conference had at its disposal, as also the text of
the "Protocols of London and Florence of 1913".
---------------------------------------------------------------------------------------------------------------------
[FN1] See Annex1, page 24.
---------------------------------------------------------------------------------------------------------------------
[5] The Conference duly complied with this demand.[FN2]
---------------------------------------------------------------------------------------------------------------------
[FN2] See Annex2, page 25.
---------------------------------------------------------------------------------------------------------------------
[6] At the direct request of the Court, the Conference has also furnished it
with a number of supplementary documents. [FN3]
---------------------------------------------------------------------------------------------------------------------
[FN3] See Annex 3, page 26.
---------------------------------------------------------------------------------------------------------------------
[7] Moreover, some members of the Court having expressed a wish to obtain
more complete information on certain points, the Registrar was instructed to
send a list of these points to the Secretary-General of the League of
Nations. The Secretary-General transmitted this list to the Conference of
Ambassadors and the latter sent to the Court either information or documents
concerning these points.[FN4]
---------------------------------------------------------------------------------------------------------------------
[FN4] See Annex 4, page 26.
---------------------------------------------------------------------------------------------------------------------
[8] The Court has also had before it all documents of the League of Nations
regarding the Saint-Naoum question itself, the admission of Albania to the
League of Nations and the settlement of the frontiers of that country. [p9]
[9] The Albanian and Serb-Croat-Slovene Governments have submitted to the
Court memoranda concerning "the Albanian frontier in the region of Saint-Naoum"
and "the question of the Monastery of Saint-Naoum" respectively.
[10] At the request of the Royal Government of the Serbs, Croats and
Slovenes and of the Government of Albania respectively, the Court heard, in
the course of a public sitting held on July 23rd, 1924, oral statements
made, on behalf of the Serb-Croat-Slovene Government, by H.E. M.
Spalaikovitch, its Minister at Paris, and, on behalf of the Albanian
Government, by M. Gilbert Gidel, Professor at the Faculty of Law of the
University of Paris.
[11] The Greek Government, considering that it was in a position to furnish
information likely to be of use in the preparation of the opinion, expressed
a desire to be allowed to state its views on the Saint-Naoum question. The
Court acceded to this request and, at the sitting above referred to, heard
H.E. M. Kapsambelis, Greek Minister at The Hague.
[12] The representatives of the Governments concerned have supplied the
Court, either on their own initiative or at the Court's request, "with a
number of additional documents.[FN1]
---------------------------------------------------------------------------------------------------------------------
[FN1] See Annex 5, page 27.
---------------------------------------------------------------------------------------------------------------------
***
II.
[13] Before entering upon an examination of the question in regard to which
the Court has been asked for an advisory opinion, the circumstances leading
up to the request for this advisory opinion should be shortly indicated.
[14] At the termination of the second Balkan War, in 1912, the Great Powers
agreed in principle that an independent State of Albania should be created,
which should be neutralised and placed under the administrative and
financial control of the Powers. The Treaty of London of May 17/30th, 1913
(Article 3) reserved to them "the task of settling the frontiers of Albania
and any other questions regarding Albania". Accordingly the question of the
fixing of the frontiers of the new State was submitted to the Conference of
Ambassadors which sat at London in 1913. The Conference adopted certain
[p10] decisions in this connection which are known as the "Protocol of
London". Under one of these decisions a Delimitation Commission was created
which was at work in 1913, and concluded its work by the final Protocol
signed at Florence on December 17th of that year,
[15] Albania, which had in the first place been established as a
principality under the sovereignty of the Prince of Wied, became a Republic
in 1914; but the Great War prevented the complete fixing of the frontiers of
the new State, which was also invaded by the belligerent armies.
[16] When the Peace Conference met at Paris in 1919, it considered that it
was competent to deal with the Albanian question amongst others.
[17] From 1920 onwards, Albania entered into relations with the League of
Nations, to which it asked to be admitted. This request was granted by a
decision taken by the Assembly of the League of Nations in December 1920.
The Resolution regarding its admittance expressly reserved the question of
the settlement of the frontiers of the new Member State.
[18] Having been admitted to the League of Nations, Albania brought before
the Council the question of the evacuation of its territory � as fixed by
the Conference of London of 1913 � by the Serbian and Greek troops. This
question made urgent that of the settlement of the frontiers; for Serbia and
Greece maintained that the Principal Powers were alone competent to deal
with the latter, whereas Albania contended that the League of Nations, as
successor to the European concert of nations, should possess this
competence. The Assembly of the League of Nations, however, by its unanimous
vote of October 2nd, 1921, left the task of settling the Albanian frontiers
to the Principal Powers, recommending Albania to accept then and there the
forthcoming decision of the Powers on this subject.
[19] At this point the Conference of Ambassadors took its decision of
November 9th, 1921, with which the Court will deal in detail at a later
stage. A Commission of Enquiry, however, sent by the League of Nations to
Albania, drew attention to difficulties which had arisen with regard to the
line of the Albanian frontier in the region of the Monastery of Saint-Naoum
amongst others; and subsequently the Delimitation Commission established by
the decision above mentioned was faced with difficulties in the same region.
[p11] The British Government drew the attention of the Conference of
Ambassadors to these difficulties.
[20] The Conference, having in this way been made cognizant of the matter,
requested the Delimitation Commission to transmit to it, in accordance with
the instructions given to the Commission, the reasoned opinions of each of
the Allied Commissioners and of the Commissioners of the interested States.
The opinions of all the Commissioners were sent separately to the Conference
on November 5th, 1922. Further the Albanian and Serb-Croat-Slovene
Governments each submitted a series of special notes dealing with the
history of the Monastery of Saint-Naoum and with its importance from other
points of view. These steps subsequently led to the decision taken by the
Conference on December 6th, 1922, whereby the Monastery was allotted to
Albania. This is the decision which forms the subject of the present request
for an advisory opinion.
[21] Five months later, the Yougoslav Government asked for the revision of
this decision. An exchange of notes with the Albanian and Yougoslav
delegations followed, after which the Conference considered it necessary to
submit the question to further examination, and to this end instructed a
small Committee to prepare a report. Since no agreement could be arrived at
in the Committee, the Conference asked its juridical committee, the
so-called drafting committee, for an opinion. As, nevertheless, divergent
opinions with regard to the allocation of the Monastery of Saint-Naoum
continued to prevail, the Conference then took a decision which was
communicated to the Secretary-General of the League of Nations by a letter
of June 5th, 1924, signed by M. Poincare and running as follows:
[Translation]
On behalf of the Conference of Ambassadors, and in accordance with its
resolution of June 4th, 1924, I have the honour to request you to be so good
as to place before the Council of the League of Nations at its next session
the following communication:
The decision of the Conference of Ambassadors with regard to the Serbo-Albanian
frontier at the Monastery of Saint-Naoum has given rise to certain protests
calculated to endanger the maintenance of peace. The Conference therefore,
before [p12] pronouncing a decision, has the honour to submit to the Council
of the League of Nations, in accordance with precedent, the following
question for an opinion:
"Have the Principal Allied Powers, by the decision of the Conference of
Ambassadors of December 6th, 1922, exhausted, in regard to the Serbo-Albanian
frontier at the Monastery of Saint-Naoum, the mission which was recognized
as belonging to them by the Assembly of the League of Nations on October
2nd, 1921?
"Should the League of Nations consider that the Conference has not exhausted
its mission, what solution should be adopted in regard to the question of
the Serbo-Albanian frontier at Saint-Naoum?"
The Conference will send you as soon as possible, in support of this request
for an opinion, a memorandum of the facts to which the documents relating to
the question asked will be annexed.
[22] This is the letter which led to the Council's above-mentioned
Resolution of June 17th, 1924.
* **
III.
[23] The question put to the Court, by the Resolution of the Council of June
17th, 1924, is whether the Principal Allied Powers have, by the decision of
the Conference of Ambassadors of December 6th, 1922, exhausted (�puis�) in
regard to the boundary at the Monastery of Saint-Naoum, "the mission, such
as it has been recognized by the interested Parties", which was
"contemplated (vis�e) by the unanimous Resolution of the Assembly of the
League of Nations of October 2nd, 1921".
[24] This enquiry does not raise any question as to whether the Conference
of Ambassadors, in rendering its decision of December 6th, 1922, was
authorized to act as the agent of the Principal Allied and Associated Powers
for that purpose. It was obviously necessary for the Principal Allied
Powers, in settling the boundaries of Albania, to act through some agency,
and the Conference of Ambassadors was the agency authorized to discharge
that function. [p13]
[25] The Resolution of the Assembly of October 2nd, 1921, states the fact
that the Serb-Croat-Slovene State and Greece had recognized the Principal
Allied and Associated Powers "as the appropriate body to settle the
frontiers of Albania", and these States and Albania voted with the other
Members of the League of Nations in favour of the Resolution of October 2nd,
1921, which was unanimously adopted, and their representatives have also on
several occasions acquiesced in the competence of that body.
[26] The Conference of Ambassadors, in its Resolution: of June 4th, 1924,
itself characterises its mission as the mission "recognized as belonging to
the Principal Allied Powers by the Assembly of the League of Nations on
October 2nd, 1921."
[27] Subsequent to this Resolution of the Assembly, the Conference of
Ambassadors adopted its decision of November 9th, 1921. This decision was
signed by the representatives of the British Empire, France, Italy and Japan
in the Conference, and is in its title described as a decision taken by the
governments of these countries for the purpose of fixing the frontiers of
Albania. It commences with a preamble in which it is stated that the tracing
of the frontiers of Albania, as it was established in 1913 by the Conference
of Ambassadors of London, is confirmed, and that, moreover, the southern
frontiers of Albania have been delimited on the spot by the Delimitation
Commission, which drew up the final Protocol of its work at Florence on
December 17th, 1913. Subsequently the Conference's decisions are enumerated
under five headings, of which those of interest to the Court in the present
question are as follows:
(1) The recognition by the signatory Governments of the Government of
Albania, constituted as a sovereign and independent State.
(2) The constitution of a Delimitation Commission composed of four members
appointed by the said Governments, to trace on the spot the northern and
north-eastern frontier line of Albania under the conditions laid down in the
decision.
(3) Instructions given to this Commission to the effect that, amongst other
things, the Commission should rectify the line fixed in 1913 by the
Conference of Ambassadors of London in particular in four different
localities, one of which is the district of Lim, where the line is to be
drawn "in such a way as to allot to Albania the town [p14] of Lim and thus
to assure, on the borders of Lake Ochrida, the economic communications
between Elbasan and Koritza".
(4) Powers for the Commission to take into consideration the requests
formulated on behalf of the governments of the States situated on either
side of the frontier line to be traced, ensuring, however, that any
rectifications which may be made shall not involve the transfer of more than
a minimum of the population.
(5) The preparation by the Commission, at the end of its work, of a Protocol
which shall be submitted for approval to the governments signatory to the
present decision.
[28] The character of the decision of November 9th, 1921, has been discussed
before the Court. Its legal foundation is to be found in the fact that the
Principal Powers, acting through the Conference of Ambassadors, had the
power to render a decision.
[29] The Serb-Croat-Slovene Kingdom has declared that it bowed to this
decision, as appears from the note addressed to the Conference on November
14th, 1921, by H.E. M. Pachitch, President of the Council of Ministers and
Minister of Foreign Affairs of the Serb-Croat-Slovene Kingdom. In that note,
M. Pachitch says:
"Placed in this situation, the Royal Government states, with the greatest
regret, and under protest, that it bows to the decision of the Conference of
Ambassadors, in order to avoid the dangerous consequences of non-acceptance,
while remaining firmly convinced that subsequent events connected with order
and peace in the Balkans will vindicate the anticipations of the Royal
Government, and the work of fixing the frontier on the ground will supply
proof of the justice of its point of view."
[30] Albania, for its part, declared in a Note dated November 16th, 1921,
that it would accept the decision, whilst likewise expressing its regret and
protesting against the alteration of the frontiers to its detriment.
[31] The decision of November 9th, 1921, which was taken in execution of the
mission which the Supreme Council and subsequently the Assembly of the
League of Nations, as also the States concerned, had recognized as belonging
to the Conference of Ambassadors, [p15] and which the latter States had
accepted, is definitive as far as it goes. In Advisory Opinion No. 8
concerning the affair of Jaworzina, the Court, in a question closely
resembling that of Saint-Naoum, stated the general legal considerations
determining the nature and effects of a decision of this kind. The Court now
refers to this opinion.
[32] The Conference of Ambassadors continued its labours and on January
17th, 1922, it approved detailed instructions for the Delimitation
Commission.
[33] In the year 1922, when this Commission was at work, Great Britain, on
September 27th, sent a note to the Conference of Ambassadors, pointing out
that a difference of opinion had arisen in the Serbo-Albanian Delimitation
Commission regarding the Monastery of Saint-Naoum, in consequence of the
fact that the text of the Protocol of London of 1913, as modified by the
Conference of Ambassadors on November 9th, 1921, was capable of different
inter-pretations.
[34] It was at this stage that the Conference of Ambassadors, after
considering all the data submitted to it, took the following decision on
December 6th, 1922:
"It was decided to inform the Serbo-Albanian Boundary Commission and the
Albanian and Yugo-Slav Governments that the Conference has agreed to
allocate the Saint-Naoum Monastery to Albania."
[35] The reasons for this decision are specified in the letter sent by the
Conference to the Serb-Croat-Slovene Minister at Paris on December 23rd,
1922. These reasons were firstly that the Protocol of London of 1913
specified that the western and southern shore of Lake Ochrida from the
village of Lim to the Monastery of Saint-Naoum should form part of Albania;
and secondly, that as this clause did not state explicitly to which of the
two States � Yougoslavia or Albania � this Monastery should be attributed,
the Conference found itself compelled to pronounce on the question.
[36] The decision of December 6th, 1922, which, in the view of the
Conference, constituted an act necessary for the fulfilment of the mission
entrusted to it, is based on the same powers as that of November 9th, 1921;
it therefore has the same definitive character and the same legal effect as
that decision. [p16]
[37] The Serb-Croat-Slovene State has protested against the decision of
December 6th, 1922, on the ground that the mission of the Conference of
Ambassadors was not merely to settle the frontiers of Albania, but to settle
these frontiers in conformity with the decisions of the Protocol of London
of 1913.
[38] The Serb-Croat-Slovene State maintains that the decision of November
9th, 1921, conferred a vested right upon it, by establishing the principle
that the frontier was to be that fixed in 1913, except as otherwise
expressly provided; and that since no special provision was made as regards
the Monastery of Saint-Naoum, the terms of the Protocol of 1913, which
attributed it to Serbia, remained in force.
[39] It is clear that this contention, is indissolubly connected with the
question whether the Albanian frontier at the Monastery of Saint-Naoum was
actually fixed in 1913 or not. If this was not the case, it is also clear
that no vested right in favour of the Serb-Croat-Slovene State as regards
the delimitation of this frontier can result from the Protocol of London.
The Commission of Enquiry of the League of Nations and the Albanian
Delimitation Commission were of opinion that the frontier line at this spot
had been left unsettled.
[40] This opinion was shared by the Conference of Ambassadors, who for this
reason, and in order to complete the task entrusted to them, regarded it as
logically their duty to decide the point left in doubt. All the subsequent
acts of the Conference, and in particular the decision of 1922, were the
outcome of this conviction.
[41] The Court is of opinion that the documents placed before it and the
arguments adduced on this point do not suffice to prove that the Conference
of Ambassadors was mistaken in holding that the Albanian frontier at
Saint-Naoum had not been definitely fixed in 1913.
[42] It also considers that the Conference, whose mission it was to "settle
the frontiers of Albania", had, in the fulfilment of its task, a certain
amount of latitude as regards this point amongst others.
[43] The reasons on which the Court bases its opinion in this respect are as
follows.
[44] On March 19th, 1913, a proposal was made on behalf of the Italian
Government in the following terms: [p17]
[Translation.]
"The frontier will leave the southern shore of Lake Ochrida between the
Monastery of Saint-Naoum which will remain outside Albania and the village
of Starova."
[45] An annex to a dispatch sent on April 22nd, 1913, by the
Austro-Hungarian representative in London to the Ministry of Foreign Affairs
at Vienna, is expressed in similar terms:
[Translation.]
"The frontier will leave the western shore of Lake Ochrida near the village
of Lin and, crossing the lake, will proceed towards the southern shore to a
point situated between the Monastery of Saint-Naoum which will remain
outside Albania and thevillage of Starova."
[46] On the other hand a certified document transmitted to the Court by the
Conference of Ambassadors, on June 21th, 1924, and called: Protocole �tabli
par la Conf�rence de Londres de 1913, pour la d�limitation de la fronti�re
m�ridionale de l'Albanie, contains the following paragraph:
[Translation.]
"The limits of the territories where it is to operate will be, on the west,
the mountains separating the coastal region attributed to Albania, as far as
Phthelia, from the valley of Argyrocastro. On the north-east, the boundary
of the former Ottoman Casa of Koritza. Between these two regions, the line
indicated in M. Venizelos'memorandum will form the northern limit of the
Commission's work. To the south and south-east, the work will extend as far
as the line proposed by Austria and Italy.
"The coastal region as far as Phthelia, including the Isle of Sasseno, the
region to the north of the Greek line, as also the former Casa of Koritza,
with the western and southern shore of Lake Ochrida, from the village of Lim
as far as the Monastery of Saint-Naoum will form part of Albania."
[47] The decision of August 11th, 1913, runs as follows: [p18]
[Translation.]
"(1) The territories over which the Commission's work will extend cannot be
left undetermined. Their limits will be, on the west, the mountains
separating the coastal region attributed to Albania as far as Phthelia, from
the valley of Argyrocastro. On the north-east, the boundary of the former
Ottoman Casa of Koritza; between these two regions, the line indicated in
the memorandum submitted by M. Venizelos to the meeting will form the
northern limit of the Commission's work; while to the south and south-east
it will extend as far as the line proposed by Austria-Hungary.
"(2) It is hereby decided that the whole of (int�gralement) the coastal
region as far as Phthelia, including the island of Sasseno, the region to
the north of the Greek line and the former Ottoman Casa of Koritza, together
with the western and southern shore of Lake Ochrida from the village of Lin
as far as the Monastery of Sveti-Naoum shall form part of Albania."
[48] This decision, of which the Court possesses a certified true copy,
reproduces textually the communication made by Count Mensdorff on August 8th
and which was supported by the Marquis Imperiali, Prince Lichnowsky and Sir
Edward Grey, while the Ambassadors of France and Russia desiring to consult
their Governments, reserved their opinion.
[49] It is to be observed that the word int�gralement (the whole of) is not
found in the document transmitted to the Court on June 21st, 1924. In the
opinion of the Court, however, this word is of no importance.
[50] The contention of the Serb-Croat-Slovene State is that the Italian
proposal cited above serves to show that the decisions of 1913, and
consequently also the decision of 1921, should be interpreted as meaning
that the Monastery of Saint-Naoum has been allocated to Serbia, because that
proposal, to which the documents of the London Conference quoted above
allude when speaking of the "line proposed by Austria and Italy", or "by
Austria-Hungary", contains the words ". . . . the Monastery of Saint-Naoum
which will remain outside Albania".
[51] On this subject the following observations should however be made:
[p19]
[52] The whole of the proposal of March 19th constitutes a complete frontier
line for Southern Albania, running from Lake Ochrida to the Ionian Sea. The
same may be said of the Austrian line of April 22nd.
[53] If, however, the object of the proposals in question was to settle the
Serbo-Albanian frontier, this was not the case as regards the "Protocol" or
the decision of August 11th. The latter, in its first paragraph, has for its
object the determination "of the district over which the work of the
Delimitation Commission shall extend" and, in its second paragraph, the
decision as to the territories "to be allotted to Albania". The Court quotes
the text of the decision of August 11th as being the final decision; it
points out, however, that the terms of the "Protocol, etc." are not in
contradiction with this text but confirm it.
[54] According to the first paragraph, the limit of the district in which
the Commission is to work to the south of Lake Ochrida is the Austro-Italian
line which passes to the west of Saint-Naoum. The district in question is,
however, defined � and this is important to note � reckoning from the side
formerly Ottoman. This is to be seen from the expressions, which otherwise
would be unintelligible, stipulating that the limit of the area worked over
should be (reckoning from Greece) on the west "the mountains which separate
the coastal region allotted to Albania, as far as Phthelia, from the valley
of Argyrocastro", and "on the north-east the frontier of the former Ottoman
Casa of Koritza", whilst between the districts of Koritza and Argyrocastro
the Venizelos line would form "the northern limit of the area" and "on the
south and south-east (reckoning from Serbia), the area would extend as far
as the line proposed by Austria-Hungary.
[55] In the district to the south of Lake Ochrida the Austro-Italiari line
therefore constituted the extreme western limit of the work of the
Commission.
[56] This interpretation serves to explain certain facts of a military
nature brought forward by Serbia, namely that in 1913, owing to an ultimatum
from Austria, the former country withdrew its troops beyond that line; that
in 1915 the occupation of the Central Powers stopped short at the same line;
and that at the Armistice this line further formed the line of demarcation
between the Serbian and the Italian occupation.
[57] The above conclusion is further strikingly confirmed by the letter
[p20] sent on April 4th, 1922, by the Conference of Ambassadors to the
Albanian Delegation in Paris, with regard to the establishment of a neutral
zone between Mount Gramos and Lake Ochrida. The object of this zone was " to
allow the Commission (of Delimitation) full freedom of action for carrying
out its work�; its western frontier was a line which in the neighbourhood of
Saint-Naoum almost coincides with the Austro-Italian line of 1913 ("a line
starting, from Lake Ochrida on a level with Stratowa and following the
Fogradec � Kortza road from Stratowa�. (22/IV/22)" � �. . . . Starowa, from
there it would follow the high ground east of the Stratowa � Koritcha road
(22/IV/13)." The difference is naturally to be explained by the
considerations of a military nature which were bound to influence the fixing
of one of these limits.
[58] As regards the frontier which the Commission had to settle in this
district, the London decision of August 11th, 1913, in its second paragraph
fixes it when it determines which districts shall "henceforth" form an
integral part of Albania and gives their limits. It follows that the
reference, contained in the first paragraph of the decision of August 11th,
to the Austro-Hungarian line has not necessarily the meaning which Serbia
desires to give it. The frontier at Saint-Naoum, far from having been fixed
in favour of the latter country, had indeed remained undetermined, as the
Ambassadors'Conference thought. In fact, as regards determining it, the
second paragraph of the decision of August 11th seems to give no further
guidance than the single expression: jusqu'�. As regards that expression the
following is to be observed:
[59] One possible interpretation of the expression jusqu'� is that
Saint-Naoum is included in Albania; another that it is excluded from that
country. The Court considers it impossible to affirm which of these
interpretations should be accepted. Numerous instances have been cited of
the use of this expression (jusqu'�) both in an inclusive and in an
exclusive sense. The Court does not think it possible to affirm that the
meaning of this word in connection with a place like the Monastery of
Saint-Naoum necessarily implies either its inclusion or exclusion. It
should, however, be observed that in the same paragraph, side by side with
the expression jusqu'� Saint-Naoum, is to be found the expression: jusqu'�
Phtelia which is shown by the facts of the case to mean: Phthelia
inclusive". [p21]
[60] A map which has been submitted to the Court and which is described as
that sent by Yougoslavia to the Conference of Ambassadors with the note of
protest dated June 19th, 1923, that is to say the map annexed to the
instructions given to the Austro-Hungarian Commissioners on the Albanian
Frontier Delimitation Commission, contains a frontier line leaving
Saint-Naoum outside Albania. It is alleged that the map represents the
decision of London. Even admitting, however, that the line marked on this
map is that referred to at the end of the first paragraph of the decision of
August 11th, 1913, it must be observed that this line, according to what has
been said above, did not necessarily represent the Albanian frontier.
Moreover the map in question is unsigned and its authentic character is not
established.
[61] The Serb-Croat-Slovene State has further relied on a principle which,
it alleges, was adopted at the Conference of London, namely that all
disputed areas on the borders of Albania and Serbia containing Christian
orthodox sanctuaries of national or historical importance, which during the
Balkan wars had been redeemed from Mussulman domination, should be allocated
to Serbia. There is, however, no official document relating to the adoption
of this principle, nor anything justifying the conclusion that this
principle was applied to Saint-Naoum.
[62] In short, an analysis of the texts emanating from the London Conference
leads to no definite conclusion.
[63] It appears from the foregoing that there are forcible arguments in
favour of the possible alternative interpretations of the terms of these
texts as regards the Monastery of Saint-Naoum. In these circumstances it is
impossible to say that their terms are sufficiently precise to indicate how
the frontier at Saint-Naoum should be run. In fact, the frontier line at the
Monastery has only been fixed by the decision of December 6th, 1922.
[64] This decision has also been criticised on the ground that it was based
on erroneous information or adopted without regard to certain essential
facts. The Court refers to what it has already said regarding the definitive
character of the decisions in question, and does not feel called upon to
give an opinion on the question whether such decisions can � except when an
express reservation to that effect has been made � be revised in the event
of the [p22] existence of an essential error being proved, or of new facts
being relied on. But even if revision tinder such conditions were
admissible, these conditions are not present in the case before the Court.
[65] These arguments make it necessary for the Court to ascertain whether,
over and above the group of circumstances which led to that decision, there
exist new facts or facts unknown at the time when the decision was taken; in
ether words, whether, as alleged by the Serb-Croat-Slovene State and Greece,
the Conference of Ambassadors allocated the Monastery to Albania simply
because it was unacquainted with new facts, or unaware of facts already in
existence, which, if taken into consideration, would have led to a contrary
decision.
[66] As concerns new facts, there are none in the present case. It is true
that, according to a communication received by the Court from the Conference
of Ambassadors, the Conference was unacquainted with the documents sent by
the Serb-Croat-Slovene State in support of its claim for revision until June
1923. But in the opinion of the Court fresh documents do not in themselves
amount to fresh facts. No new fact � properly so-called � has been alleged.
[67] As regards facts not known, Yougoslavia has mainly relied on the
proposals made in 1913 at the Conference of Ambassadors, which, in its
contention, are of peculiar importance for the purposes of the
interpretation of the decision made at London.
[68] It is however difficult to believe that the members of the Conference
of Ambassadors were unacquainted with these documents, which are in no sense
secret. The application of the London Protocol to determine the
Serbo-Albanian frontier was proposed by the Conference of Ambassadors
itself, and the Conference obviously did so with full knowledge of the
facts, that is to say after acquainting itself with the documents relative
to the London Conference of 1913.
[69] It is moreover to be noted that the documents relied on by the
Serb-Croat-Slovene State do not in the least � as has already been
demonstrated � prove that the Protocol of London attributed the Monastery of
Saint-Naoum to Serbia.
[70] In these circumstances there is also no ground for the application for
a revision of the decision of December 6th, 1922. [p23]
[71] For These Reasons
The Court is of opinion
that the Principal Allied Powers, by the decision of the Conference of
Ambassadors of December 6th, 1922, have exhausted, in regard to the frontier
between Albania and the Kingdom of the Serbs, Croats and Slovenes at the
Monastery of Saint-Naoum, the mission, such as it has been recognized by the
interested Parties, which is contemplated by a unanimous Resolution of the
Assembly of the League of Nations of October 2nd, 1921.
[72] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this fourth day of September, nineteen hundred and
twenty-four, in two copies, one of which is to be deposited in the archives
of the Court, and the other to be forwarded to the Council of the League of
Nations.
(Signed) Loder,President.
(Signed) �. Hammarskj�ld,Registrar.
|
|
