|
|
[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
Landwar�w-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 Landwar�w-Kaisiadorys railway
sector?"
[12] According to the information furnished by the Agents for the Lithuanian
and Polish Governments, the Landwar�w-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
Landwar�w-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 K�nigsberg.
[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
Landwar�w-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, K�nigsberg 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 Landwar�w-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 Landwar�w-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
Landwar�w-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 Landwar�w-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
Landwar�w-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 K�nigsberg 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
Landwar�w-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 K�nigsberg, 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 Landwar�w-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 Landwar�w-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 r�gime 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 Landwar�w-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 Landwar�w-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
Landwar�w-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 R�gime".
[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 Landwar�w-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
Landwar�w-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 Landwar�w-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) �. Hammarskj�ld,
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 Landwar�w-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.
|
|
