|
[p128] THE COURT,
composed as above,
gives the following opinion: [p129]
[1] On September 19th, 1931, the Council of the League of Nations adopted
the following Resolution:
"The Council
Requests the Permanent Court of International Justice to give an advisory
opinion under Article 14 of the Covenant on the following question:
'Do the Treaty of Peace of Versailles, Part III, Section XI, the Danzig-Polish
Treaty concluded at Paris on November 9th, 1920, and the relevant decisions
of the Council of the League of Nations and of the High Commissioner, confer
upon Poland rights or attributions as regards the access to, or anchorage
in, the port and waterways of Danzig of Polish war vessels ? If so, what are
these rights or attributions ?'
Requests the Permanent Court of International Justice to be so good as to
give this opinion in time to enable the Council to take a decision on the
matter at its session of January 1932;
Invites the Governments of Poland and Danzig to hold themselves at the
disposal of the Court for the purpose of furnishing any relevant documents
or explanations.
The Secretary-General is authorized to submit this request to the Court, to
give any assistance necessary for the examination of the question, and, if
necessary, to take steps to be represented before the Court."
[2] In pursuance of this Resolution, the Secretary-General, on September
25th, 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 September 19th, 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 September 19th, 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." [p130]
[3] The request was registered in the records of the Registry of the Court
on September 28th, 1931.
[4] Under cover of a letter dated October 1st, 1931, the Secretary-General
subsequently sent to the Registrar a copy of the minutes of the meeting of
the Council of the League of Nations on September 19th, 1931, when the
Resolution above mentioned was discussed and adopted. The Secretary-General
also sent to the Court a complete set of copies of the appendices to the
annexes to these minutes and also certain relevant documents [FN1].
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[FN1] See list in Annex
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[5] 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
Governments of the Polish Republic and of the Free City of Danzig, 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; the representatives of the interested
Governments had already been consulted as to the length of the time-limits
within which these Governments would be ready to file any written statements
they might desire to submit.
[6] In these circumstances, and having due regard to the suggestions made by
the above-mentioned representatives and likewise to the Council's desire to
receive the Court's opinion in sufficient time before the former's session
in January 1932, the President of the Court, by an Order made on October
3rd, 1931, fixed October 20th, 1931, as the date by which a written
statement was to be filed by each of the two Governments, and November 5th,
1931, as the date by which they were to file a second statement. By the
first of these dates, memorials had been filed on behalf of the Danzig and
Polish Governments, and, by the second, the same Governments [p131] had duly
filed counter-memorials. The relevant documents were appended to the two
memorials of the Free City [FN1].
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[FN1] See list in Annex
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[7] Lastly, on October 5th, 1931, the Registrar addressed to all States
parties to the Treaty of Versailles of June 28th, 1919, a communication
drawing their attention to the rights conferred upon them, in connection
with the question before the Court, by Article 73, paragraph I,
sub-paragraph 3, of the Rules of Court.
[8] After having, by a special decision under Article 28, paragraph 2, of
the Rules of Court, given the case concerning access to and anchorage in the
port of Danzig for Polish war vessels priority over another case which
preceded it in the list and was also ready for hearing, the Court, in the
course of the public sittings held on November 9th, 10th, 11th, X2th, 13th,
and 14th, 1931, heard the oral arguments in the first-named case presented
by Sir John Fischer Williams, Agent, on behalf of the Danzig Government, and
by MM. Moderow, Agent, and Ch. de Visscher, Counsel, on behalf of the Polish
Government.
[9] In addition to the statements and observations of the interested
Governments and the documents transmitted by the Secretary-General of the
League of Nation as mentioned above, the Court has had before it a series of
documents handed in in the course of the hearings by the representatives of
the two Governments [FN1].
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[FN1] See list in Annex
---------------------------------------------------------------------------------------------------------------------
[10] The Court held that the question submitted to it for an advisory
opinion related to an existing dispute between the Free City of Danzig and
Poland within the meaning of Article 71, paragraph 2, of the Rules of Court.
As one only of these States, namely, Poland, had on the Bench a judge of its
nationality, the Senate of the Free City of Danzig availed itself of its
right, under Article 71 of the Rules of Court, to choose a judge ad hoc to
sit in the case.
[11] 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.
[p132]
* * *
[12] The question upon which the Court is asked to advise is closely
connected with the problem of affording Poland free and secure access to the
sea - the reason which led to Danzig being severed from Germany by the
Treaty of Versailles and established as a Free City - and with the action
which was taken after the coming into force of the Treaty of Versailles by
the Conference of Ambassadors and by the Council of the League of Nations in
connection with the defence of Danzig. It will therefore be well to set out
in chronological sequence the facts and documents which must be borne in
mind.
[13] Section XI of Part III of the Treaty of Versailles provides for the
cession of the territory which now constitutes the Free City of Danzig by
Germany to the Principal Allied and Associated Powers, who undertook to
establish that territory as a Free City under the protection of the League.
A Constitution for the Free City was to be drawn up by the duly appointed
representatives of the Free City in agreement with the High Commissioner
appointed by the League, and this Constitution was to be placed under the
guarantee of the League. The Principal Allied and Associated Powers also
undertook to negotiate a treaty between Poland and Danzig which was to come
into force simultaneously with the establishment of the Free City and which
was, as the terms of Article 104 clearly show, to ensure to Poland the
enjoyment of a series of rights for the purpose of safeguarding her position
at Danzig. The negotiation of the treaty referred to in Article 104 was
entrusted to the Conference of Ambassadors in Paris. The work was initiated
by the adoption of a resolution by that body on May 7th, 1920, of which the
first two paragraphs provided that this treaty should be concluded as soon
as possible, but that Poland could not be authorized to establish a military
or naval base at Danzig. The negotiations were brought to a conclusion, and
the treaty was signed at Paris on November 9th, 1920. The treaty is, for
shortness' sake, described as the Convention of Paris. On that same day, the
Act establishing the Free City, which had been signed by the representatives
of the Principal Allied and [p133] Associated Powers on October 27th, 1920,
was accepted by the representatives of the Free City.
[14] The Conference of Ambassadors, while engaged in conducting the
negotiations which led to the conclusion of the Convention of Paris,
received from the Polish delegation two successive drafts containing a
special section devoted to "military and naval affairs", and in this section
figured a clause giving Poland the right to use the port of Danzig and its
equipment for the anchorage, repairing and victualling of her war vessels.
This provision was not inserted in the Convention.
[15] The text of the Convention as settled by the Conference of Ambassadors
was communicated to the delegations of the two Parties concerned and to the
Secretary-General of the League of Nations in letters dated October 20th,
1920, and it may be well to recall some of the statements which were made by
the Conference of Ambassadors in those letters.
[16] In the communication addressed to the Polish delegation, it was said
that the Powers considered that, as then worded, the Convention reconciled
the interests of the two Parties and assured to Poland, as well as to the
Free City, the enjoyment of their rights under the Treaty of Versailles. The
letter went on to say that, in submitting its observations on the draft
convention previously communicated to it, the Polish delegation had insisted
on the convention making pro-vision for the military defence of Danzig. As
regards this point, the Conference did not consider that any provision on
the question could be inserted in the convention under Article 104 of the
Treaty of Versailles, but it had decided to draw the attention of the
Council of the League of Nations to the point.
[17] The letter to the Secretary-General of the League contained the
following passages:
"As is shown by the reply dated June 16th, 1919, of the Al-lied and
Associated Powers to the observations of the German delegation on the terms
of peace, the intention of the Powers in constituting Danzig and the
territory specified in Article 100 of the Treaty as a Free City was to
establish between Poland and the Free City the very closest relations; their
object was indeed to provide Poland with free access to the sea.
���������������������������������.
[p134]
Owing to the close relations thus established between the Free City and
Poland, and also in view of the clearly expressed intention of the Powers
who signed the Treaty of Versailles to give Poland free access to the sea,
the Polish Government would thus seem to be entitled to receive from the
League of Nations the mandate of eventually ensuring the defence of the Free
City."
[18] The question of the protection of the Free City came before the Council
during its session in November 1920, as Article 102 of the Treaty of
Versailles had placed the Free City under the protection of the League. The
result of this Article is that the League, and therefore the Council of the
League acting in its name, has the right and the duty of ensuring the
defence of the Free City of Danzig. Viscount Ishii presented a report, dated
November 17th, dealing not only with the question of the defence of Danzig,
but also with that of placing Danzig under the protection of the League and
of giving the guarantee of the League to the Constitution of the Free City.
In the course of the discussion on this report, the Polish representative
asked the Council to avert all danger for Poland by conferring upon her a
permanent mandate for the defence of the Free City in the general interests
of peace. The Council, however, did not go further than to adopt a
resolution saying that "the Polish Government appears particularly fitted to
be, if the circumstances require it, entrusted by the League of Nations with
the duty of ensuring the defence of the Free City". At the same time the
Council instructed the Permanent Advisory Commission on Military, Naval and
Air Questions "to consider the means which will ensure the most effective
defence of Danzig....".
[19] In its report presented on December 1st, 1920, the Perm-anent Advisory
Commission: submitted a series of detailed suggestions for this purpose and
added a final clause that, "without waiting for the result of the
examination of the defensive organization of the Free City, the Polish
Government should be given sufficient harbourage in the port of Danzig to
ensure the sheltering and repairing of those small naval units which were
given it by the Allies for the policing of its waters".
[20] The report of the Permanent Commission was considered by the Council,
on the basis of a report by Viscount Ishii, [p135] at its session in
December 1920 and evoked strong criticisms. It was decided to communicate
the two reports to the High Commissioner at Danzig whom the Council was
about to appoint, and to direct him to study the question on the spot and to
address a report to the Council on the subject.
[21] The conclusions of the High Commissioner were embodied in a report
dated January 25th, 1921. After a detailed examination of the various
aspects of the problem, the High Commissioner said that, if the League
decided in favour of retaining its guarantee for the Free City of Danzig and
would allow no one nation to be given a mandate for its defence, he, as High
Commissioner, would be able to ensure to Poland the full use of the harbour.
[22] On March 5th, 1921, the Polish delegation to the League addressed to
the President of the Council a letter invoking Article 28 of the Convention
of Paris - according to which Poland had the right to import and export
through Danzig goods of any kind whatever, including war material - and
setting out four demands for the purpose of avoiding all possible accidents
by placing such war material under effective supervision from the moment of
its arrival in the port. The third of these demands related to Poland
obtaining a "point d'attache" in the port of Danzig for the purpose of
assuring the anchorage, victualling and upkeep of the vessels of the Polish
maritime police to which, under the decision of the Allies, certain naval
units had been appropriated.
[23] In its session of June 1921, the Council had once more to concern
itself with the questions of the defence of the Free City and of Poland's
right of free access to the sea at Danzig, as it then had before it both the
High Commissioner's report of January 25th, 1921, and the Polish demands of
March 5th of the same year.
[24] As regards the defence of Danzig, the Council adopted on June 22nd,
1921, a report by Viscount Ishii to the effect that there was no reason to
modify the conclusions which it reached on November 17th, 1920, and also a
Resolution. The first five paragraphs of this Resolution relate to the
defence of Danzig by land. The last two are as follows: [p136]
"(6) The Council does not consider it necessary to decide at the present
moment under what conditions the defence of Danzig by sea should be secured.
(7) The High Commissioner should, however, be asked to examine the means of
providing in the port of Dan-zig, without establishing there a naval base,
for a 'port d'attache' for Polish warships."
[25] The connection between the words "point d'attache" in the Polish letter
of March 5th, 1921, and "port d'attache" in paragraph 7 of the above
Resolution and the right of access and anchorage referred to in the question
upon which the Court is now asked to advise will be referred to later.
[26] The presence of the words "without establishing there a naval base" in
paragraph 7 of the Resolution is due to the Resolution adopted by the
Conference of Ambassadors on May 7th, 1920, which has been referred to
above. The Constitution of Danzig in its final form, as approved by the
Council of the League, contains a provision (Art. 5). under which, without
the previous consent of the League of Nations in each individual case, the
Free City must not be used as a military and naval base.
[27] The Polish demands set out in the letter of March 5th were dealt with
by the Council of the League on the basis of a report submitted by Viscount
Ishii on June 22nd, 1921, with the title of "The protection of Poland's
right of free access to the sea through Danzig." As regards the third Polish
demand, this report proposed that paragraph 7 of the Resolution which had
just been adopted, to the effect that the High Commissioner should be asked
to consider what steps should be taken to establish in the port of Danzig a
"port d'attache" for Polish warships, should apply also to the vessels of
the Polish maritime police. The Council must have agreed to this proposal,
although no resolution to that effect was adopted.
[28] The question of the port d'attache was dealt with in a report by the
High Commissioner dated September 10th, 1921. Its terms show that General
Haking was considerably embarrassed to know how to distinguish a "port
d'attache" from a naval base, and how to reconcile the rights of Danzig as a
Free City with the claims submitted to him by the Polish [p137] authorities.
The High Commissioner concluded his report by saying that he regarded the
question as a matter for naval experts rather than for him, but that he
considered that Poland must be given every facility for mooring her warships
in the port of Danzig under conditions which would preclude the
establishment of a naval base and the violation of the engagements of the
League of Nations and of the Government of Danzig.
[29] The Council adopted the suggestion contained in General Haking's report
that the matter was one for the naval experts of the League and referred his
report to the Perm-anent Advisory Commission, whose Naval Sub-Commission
submitted a report to the Council on September 24th, 1921.
[30] This document is of some interest because it shows the importance which
the naval advisers to the Council attached to the practical aspects of the
situation. They were unanimous in thinking that facilities for sheltering,
taking in stores and effecting repairs should be granted to the Polish war
vessels; but they were not unanimous as to how such facilities could best be
ensured, particularly as to whether or not Poland should be given any
establishment on shore.
[31] Attached to the report is an Opinion, embodying a series of regulations
which the Naval Sub-Commission suggested should be adopted. Their idea would
seem to have been to effect a friendly settlement of a question which they
must have regarded as urgent because, until such time as the port of Gdynia,
then under construction, was completed, the units of the Polish fleet had no
place other than Danzig in which they could safely pass the winter. For this
reason, the proposals made by the Naval Sub-Commission were in their
suggestion only to last until Gdynia was ready.
[32] This report was not taken into consideration by the Council until
January 12th, 1922, and, in the meantime, with the help of the High
Commissioner, acting on the instructions of the President of the Council, a
provisional arrangement between Poland and the Free City had been come to at
[p138] Danzig on October 8th, 1921. Under this arrangement, Poland was to
continue to use the port of Danzig for her warships until the question of a
"port d'attache" was decided by the Council of the League. She was to inform
the President of the Senate of Danzig of the number of ships she wished to
keep in the port, and the President would raise no objection to these ships
remaining in the port. The arrangement was not to commit either side as
regards any future agreement between them or any future decision by the
Council.
[33] On December 7th, 1921, the High Commissioner submitted a further report
to the Council. Its terms show that he was hoping that the question might be
disposed of by a friendly agreement between the two Parties on a somewhat
wider basis than the Provisional Arrangement of October 8th, 1921, but in
case no such agreement should be reached, he submitted a scheme which in his
opinion would meet the requirements of the situation. Under it, sufficient
berths were to be allotted to the Polish warships by the Harbour Board where
these vessels could lie undisturbed and for any period they pleased, subject
to the conditions which he indicated.
[34] This report came before the Council on January 12th, 1922, but the
Council then thought it unnecessary to take any further action. A resolution
was adopted postponing consideration of the question of a "port d'attache"
for Polish war vessels in Danzig to a later session. Until the question was
considered by the Council, the so-called Provisional Arrangement was to
remain in force.
[35] The system laid down in the Provisional Arrangement of October 8th,
1921, still governs, subject to some additions, the use of the port of
Danzig by Polish war vessels, as the result of a Regulation issued by the
High Commissioner on September 19th, 1931, providing that Poland would
continue to use the port of Danzig for her war vessels as during these last
years, until the question of their access to and anchorage in the port of
Danzig was settled definitively by the Council of the League of Nations.
This Regulation was issued by the High Commissioner in pursuance of a
resolution adopted by [p139] the Council with the participation of the two
Governments concerned.
[36] Both in 1925 and in 1927, the Senate of the Free City raised the
question of the continuance in operation of the Provisional Arrangement of
October 8th, 1921, as in their opinion the progress of the works at Gdynia
rendered it possible for the Polish warships to find in that port the
shelter and facilities of which they were in need.
[37] In 1925 it was in connection with another question that the Senate of
the Free City brought the matter before the Council, but it is worth while
to mention it because of what is said in the last paragraph of the report
adopted by the Council on December 9th, 1925, which reads as follows : "La
question du port d'attache, soulev�e par la note dantzikoise .... reste
ouverte."
[38] In 1927 the Danzig authorities, in a note to the Polish Representative
at Danzig (May 20th), again expressed the opinion that the time had come to
put an end to the Provisional Arrangement and invited the Polish Government
to agree that the special privileges accorded to Polish warships at Danzig
should come to an end on July 1st, 1927. Poland, however, was unwilling to
come to any such agreement. The Danzig Senate then applied to the Council of
the League of Nations and asked that the question of a "port d'attache"
should be examined anew, and that the Council should give a definite
decision (August 2nd, 1927). It was subsequently agreed, however, to keep
the arrangements of 1921 in force. Their operation has been prolonged from
time to time, the last of these prolongations being effected by the special
regulation issued by the High Commissioner on September 19th, 1931, which is
referred to above, until the matter was definitively settled by the Council,
the issue of this special regulation being agreed to at the time when the
Council decided to ask the Court for an advisory opinion on the question
which is now before it. [p140]
* * *
[39] The question upon which the Court is asked to advise is whether the
provisions of Section XI of Part III of the Treaty of Versailles or of the
Convention of Paris of November 9th, 1920, or the relevant decisions of the
Council of the League or of the High Commissioner, confer on Poland rights
or attributions as regards the access to or anchorage in the port and
waterways of Danzig of Polish war vessels; and, if so, what are those rights
and attributions ?
[40] The sense in which the word "attributions" is used in the question is
not altogether clear. The Counsel for both the Governments concerned have
assumed that it refers to powers entrusted or delegated by a superior
authority. No question in connection with the meaning to be given to the
word has arisen in the course of the case. For this reason the Court,
without wishing to express any opinion on the meaning of the word
"attributions" in general, is prepared to admit, for the purposes of the
present case, the interpretation placed on the word by the representatives
of the Governments concerned.
[41] The claims of the Polish Government in this case have not been defined
in very precise terms. At the close of his main oral argument, Counsel for
the Polish Government stated his conclusions as follows: On the first part
of the question, he invited the Court to say that it follows from the
principles which are the basis of the international status of Danzig and
from the decision of the Council of the League on June 22nd, 1921, that
Poland has acquired for her warships, under the denomination of a "port
d'attache", rights of access to and anchorage in Danzig; and on the second
part of the question, to say that these rights of access and anchorage and
the privileges resulting from them have not been worked out or settled.
[42] The claim so stated is not very clear, but the general tenour of the
documents and arguments which have been submitted to the Court shows that
Poland is claiming that her warships [p141] are entitled to go into the port
of Danzig and to remain there as of right, without obtaining the consent of
the authorities of the Free City, and that while in the port these war
vessels are at liberty to ship such stores and execute such repairs as they
may need.
[43] The words "port d'attache" reappear in the Polish conclusions though an
understanding had been reached at Danzig in 1927 that the use of the words
"port d'attache" in connection with the claim should be discontinued, and
that the rights claimed should be described as those of "access to and
anchor-age in the port of Danzig". The repetition of the words "port
d'attache" in the Polish conclusion serves, however, to indicate that the
question now discussed is the same as that which occupied the attention of
the authorities of the League of Nations at Geneva when the words "port
d'attache" were habitually used to indicate the rights which Poland was
claiming. It is clear that in these early discussions at Geneva and at
Danzig the words "port d'attache" were never used in their technical meaning
either in the sense' in which they are used in conventions relating to
fishing vessels or merchant ships, such as the North Sea Fisheries
Convention, 1882, or the Brussels Convention on Collisions of 1910, or in
the more special sense in which they are used in the French Naval Service in
connection with French warships. It follows, how-ever, that if the words
"port d'attache" are used only in the sense of rights of access and
anchorage, the limits of the rights claimed are left vague. Neither access
nor anchorage are terms of art, and no indication has been given on behalf
of the Polish Government as to the extent to which the exercise of the
rights claimed is to be subject to the control of the local authorities at
Danzig. It is merely stated that the details of the rights accorded to
Poland have not yet been worked out.
[44] No question arises in this case as to the rights of warships in general
to enter a foreign commercial harbour. What Poland is claiming is a right
which is peculiar to herself at Danzig, a right which results from the
special position which she occupies in relation to the Free City, a right
which she [p142] claims to derive from the principles underlying the various
treaty stipulations in force and which would give her war-ships a special
position different from that enjoyed by the warships of foreign Powers. The
form of the question upon which the Court is asked to advise does not
necessitate any consideration by it of what may be the existing rules of
international law relating to the admission of warships to foreign
commercial ports.
[45] The fact that Poland claims special rights and privileges for her war
vessels in the port of Danzig, renders it necessary to find some juridical
basis for the claim. The port of Danzig is not Polish territory, and
therefore the rights claimed by Poland would be exercised in derogation of
the rights of the Free City. Such rights must therefore be established on a
clear basis.
* * *
[46] The question submitted to the Court relates to the effect of the Treaty
of Versailles, the Convention of Paris, or the relevant decisions of the
Council of the League of Nations and the High Commissioner at Danzig.
[47] Section XI of Part III of the Treaty of Versailles makes no mention of
Polish war vessels in connection with Danzig. It contains no stipulations
specifically conferring any rights upon them. That fact alone, however, is
not sufficient to dispose of the question. It is necessary to examine these
provisions in order to see whether their natural interpretation would cover
such rights as are now claimed by Poland, even, though they make no specific
mention of war vessels
[48] The only article in the section which directly affects Poland. is
Article 104. In this Article the Principal Allied and Associated Powers
charge themselves with the duty of negotiating a treaty between Poland and
Danzig for the purpose of ensuring to Poland the rights enumerated in the
various paragraphs of that Article. All these paragraphs bear some relation
to the free and secure access to the sea which had been promised to Poland
though nothing to that effect is said in [p143] the Article. The most
important paragraph in the Article in connection with this case is No. 2,
which gives as one of the purposes of the treaty to be negotiated that of
"ensuring to Poland without any restriction the free use and service of all
waterways, docks, basins, wharves and other works within the territory of
the Free City necessary for Polish imports and exports".
[49] The natural interpretation of these words is that Poland is only to
enjoy the unfettered use of the port and its equipment for commercial
purposes, and this is what is stated in the Convention of Paris, Article 26
of which provides that "it shall be the duty of the Harbour Board to assure
to Poland the free use and service without any restriction, and in so far as
may be necessary for Polish imports and exports, of the port and the means
of communication referred to in Article 20". This provision cannot be held
to confer on Poland a right of access and anchorage for war vessels.
[50] This conclusion indeed is in accordance with the view taken by the
Counsel for the Polish Government in his oral argument before the Court on
November nth (afternoon) : "Le Gouvernement polonais ne soutient pas du tout
que les stipulations de l'article 104 du Trait� de Versailles forment la
base, le fondement de sa revendication d'un port d'attache.... Nous ne
cherchons donc pas dans l'article 104 la base de notre revendication."
[51] The Polish contention is that it is not the terms of the Treaty of
Versailles which confer the right of access and anchorage upon her war
vessels, but the principles under-lying the establishment of the Free City
in accordance with Section XI of Part III, and it is upon that ground and
not on the specific terms of the articles in the Treaty that she is entitled
to rely on the Treaty of Versailles.
[52] If the Court rightly appreciates the Polish argument, it is that the
known antecedents of the Treaty of Versailles, i.e. the promise that Poland
is to enjoy free and secure access to the sea, entail an interpretation of
the treaty texts relating to the establishment of the Free City which will
give effect to the Polish claims. Three principles are said to be [p144]
inherent in the establishment of Danzig as a Free City, and it is these
three principles which are the basis of the Polish claim: the necessity for
ensuring free access to the sea for Poland, the intimate relations which
were to exist between Danzig and Poland, and the necessity of providing for
the defence of the Free City. The second, i.e. the intimate relations
between Danzig and Poland, has always been treated as closely connected with
that of ensuring free and secure access to the sea for Poland through Danzig,
and it is therefore unnecessary to deal with it separately. The Resolution;
adopted by the Council of the League on June 22nd, 1921, of which mention
has been made above and to which more detailed reference will be made below,
under which the Council recognized that the Polish Government was specially
fitted to be entrusted with the duty of ensuring, if circumstances required
it, the defence of Danzig and asked the High Com-missioner "to examine the
means of making provision in the port of Danzig, without establishing a
naval base, for a port d'attache for Polish warships", is said to indicate
the Council's acceptance and recognition of these principles. It is
maintained by Poland that the combined effect of these principles is such
that they confer upon Poland the right of access to and anchorage in the
port of Danzig for Polish warships.
[53] The Court is unable to accept this reasoning. The promise to Poland at
the time of the peace settlement after the war of 1914-1918 of a free and
secure access to the sea is a matter of history of which the Court is
prepared to take notice, but no materials and no reasons have been submitted
to it for assuming that the contents of Section XI of Part III of the Treaty
of Versailles, as carried into effect by the Convention concluded in
pursuance of Article 104 of that Treaty, do not constitute a complete
fulfilment of the promise. The Court is not prepared to adopt the view that
the text of the Treaty of Versailles can be enlarged by reading into it
stipulations which are said to result from the pro-claimed intentions of the
authors of the Treaty, but for which no provision is made in the text
itself.
[54] Furthermore, the Court is not satisfied that the principles which are
said to be inherent in the establishment of Danzig as a Free City afford any
basis for a claim of right on the [p145] part of Poland for access to and
anchorage for war vessels in the port of Danzig. The Treaty of Versailles
imposed no responsibility upon Poland for ensuring the free access to the
sea which it was the intention of that Treaty that she should enjoy, nor
does it impose upon her any responsibility for the defence of Danzig. It is
upon the League of Nations that the responsibility is imposed in both cases.
The Court is not prepared to accept the view that these principles, relied
upon on the part of Poland, are sufficient to support the claim which she is
now advancing.
[55] The important provisions of the Convention of Paris are Articles 26 and
28. The contents of Article 26 have already been quoted. They give to Poland
the unrestricted use of the port of Danzig for her imports and exports. The
normal use of warships is not to effect imports and exports, and the Polish
representatives have not suggested in their arguments before the Court that
the unrestricted use of the port for imports and exports can cover a general
right of access and anchorage for warships.
[56] Article 28 provides that "at all times and in all circum-stances Poland
shall have the right to import and export via Danzig goods of any kind
whatever not prohibited by Polish law". It is common ground between the
interested Governments that this provision covers the import of munitions
and other war material. But there is nothing in the terms of the Article to
show that its framers . had in view any mode of transport for effecting such
imports and exports otherwise than by the type of vessel which is normally
used for commercial transportation. The Article cannot be held to confer any
general right of access or anchorage on vessels of war.
[57] The result is that neither the Treaty of Versailles nor the Convention
of Paris, either by the terms of the provisions they contain, or by
necessary implication, confer on Poland the right she is now claiming.
[58] The question upon which the Court is asked to advise asks also whether
the relevant decisions of the Council of the [p146] League of Nations and of
the High Commissioner confer upon Poland rights and attributions as regards
access and anchorage for her war vessels.
[59] The words "relevant decisions" cannot be restricted to decisions taken
either by the Council or the High Commissioner in pursuance of the powers
conferred by Article 103, paragraph 2, of the Treaty of Versailles, and by
Article 39 of the Convention of Paris. The Court has assumed that the phrase
was intended to cover all decisions at which the Council might arrive which
would be binding upon the Parties affected by that decision, and it is in
this sense that the Court has interpreted the phrase in the question. No
decisions by the High Commissioner are in fact relied upon to substantiate
the Polish claim. It may therefore be assumed that there are no decisions by
the High Commissioner which confer upon Polish warships the rights now
claimed, and it is therefore only relevant decisions of the Council of the
League which have to be considered.
[60] The Council Resolution which is relied on is paragraph 7 of the
Resolution of June 22nd, 1921, to which reference has been made above. This
Resolution must be read in connection with that adopted by the Council on
November 17th, 1920, on the same subject. This Resolution of 1921 once more
accepted the view that the Polish Government was specially fitted to ensure,
if circumstances required it and in the conditions which were there laid
down, the defence of Danzig by land, and postponed any decision as to the
conditions under which the defence of Danzig by sea should be secured. The
last paragraph of the Resolution was worded as follows: "The High
Commissioner should, however, be asked to examine the means of providing in
the port of Danzig, without establishing there a naval base, for a 'port
d'attache' for Polish warships." .
[61] It is maintained by Poland that, in the light of the Council's
recognition that Poland was the State best qualified, if circumstances
required it, to undertake the defence of Danzig, and in the light of the
action which Viscount Ishii proposed in his report of the same date should
be taken on the Polish demand for a "point d'attache" for the Polish
maritime police vessels, the Resolution must be regarded as more than a mere
[p147] direction to the High Commissioner to study the question, and that it
was intended by the Council to constitute a definite acceptance in principle
of the Polish claim, leaving over for future regulation the details as to
how practical effect was to be given to the rights involved.
[62] It is difficult to see in the text of the Resolution any justification
for this view. It is in terms no more than a direction to the High
Commissioner to examine the question. It does not necessarily imply that the
Polish claim had been accepted in principle, and the reports which were
subsequently made by the High Commissioner and by the Naval Sub-Commission
of the Permanent Advisory Commission show no trace of any realization on
their part that the important question of principle in connection with a
"port d'attache" at Danzig for Polish war vessels had already been settled
by the Council. If the Council had intended its resolution to operate as the
grant in principle of the right to a "port d'attache" at Danzig, it is
strange that it should have taken no steps to correct the misapprehension
into which the High Commissioner and the naval advisers of the League had
fallen. It is equally difficult to understand how in such circumstances the
Council could itself have said in January 1922 that "until the question [of
the "port d'attache"] has been considered by the Council, the preliminary
agreement [the Provisional Arrangement of October 8th, 1921] will remain in
force", and again how it could have said in December 1925 that the question
remains open.
[63] The correct view of this paragraph 7 of the Resolution of June 22nd,
1921, is that it is no more than what its terms imply - a direction to the
High Commissioner to examine' how Poland could be given at Danzig a "port
d'attache" for her war vessels without constituting a naval base. Until that
question had been properly investigated, it would have been difficult' for
the Council to take any decision of principle. The [p148] Resolution
constituted the initiation of a study which was interrupted by the
conclusion of the Provisional Arrangement of October 1921, an interruption
which has resulted in the fact that no final and definitive decision has
ever yet been taken.
[64] The general conclusion which may safely be drawn from the terms of this
Resolution and from the various relevant documents, such as the reports of
Viscount Ishii, and from the reports by the High Commissioner and by the
Permanent Advisory Com-mission and its Naval Sub-Commission, so far as these
documents were the foundation of any action taken by the Council, is that
the Council realized the practical importance of the question of providing
shelter and harbour facilities for the vessels of the Polish fleet, the
exact extent of such facilities and the conditions in which they shall be
accorded, as well as the legal possibility of according them, being matters
as to which further enquiries were necessary. Whether or not there may still
be a need for some such facilities to be accorded to Poland is not a matter
which falls within the jurisdiction of the Court. The task of the Court is
limited to the interpretation and effect of such treaty stipulations as may
be in force and such relevant decisions as may have already been taken.
[65] FOR THESE REASONS,
The Court,
by eleven votes to three,
is of opinion that:
The Treaty of Peace of Versailles, Part III, Section XI, the Danzig-Polish
Treaty concluded at Paris on November 9th, 1920, and the relevant decisions
of the Council of the League of Nations and of the High Commissioner, do not
confer upon Poland rights or attributions as regards the access to, or
anchorage in, the port and water-ways of Danzig of Polish war vessels.
[p149]
[66] Done in French and English, the English text being authoritative, at
the Peace Palace, The Hague, this eleventh day of December, one thousand
nine hundred and thirty-one, in two, copies, one of which is to be placed in
the archives of the Court, and the other to be forwarded to the Council of
the League of Nations.
(Signed) M. Adatci,
President.
(Signed) A. Hammarskj�ld,
Registrar.
[67] Count Rostworowski, Judge, declaring that he is unable to concur in the
Opinion given by the Court and availing him-self of the right conferred on
him by Article 71 of the Rules of Court, has delivered the dissenting
opinion which follows hereafter.
[68] M. Fromageot, Judge, declares that, in his opinion, though it is true
that the text of the Treaty of Peace of Versailles, Part III, Section XI,
and the Convention between Danzig and Poland of November 9th, 1920, when
referring to imports and exports, make no mention of Polish war vessels as
being entitled to have the benefit of free use of the port of Danzig,
nevertheless the recognition, made in the written negotiations preceding the
Treaty of Peace, of a right on the part of Poland to "free and secure access
to the sea", a right inherent in the creation of the State of Poland and of
the Free City of Danzig, cannot be regarded as a mere historical fact
without significance and renders it impossible equitably to exclude from
such free access, for the purposes of their nautical requirements, Polish
war vessels or any other Polish ships other than merchant ships. [p150]
[69] M. Urrutia, Judge, availing himself of the right conferred on him by
Article 71 of the Rules of Court, has attached to the Opinion this statement
of his dissent.
(Initialled) M. A.
(Initialled �. H. [p151]
Dissenting Opinion by Count Rostworowski.
[Translation.]
[70] Being unable to concur in the conclusions of the Advisory Opinion, I
feel obliged to exercise my right under Article 57 of the Statute to append
to the Opinion of the Court a statement of my separate opinion.
[71] The Court has had before it the request of the Council of the League of
Nations at the very moment when the latter is about to undertake the final
settlement of the question of access to and anchorage in the port of Danzig
for Polish war vessels; accordingly, I venture to draw attention to certain
important points which emerge from the actual wording of the question
submitted to the Court.
[72] This question is formulated as follows:
"Do the Treaty of Peace of Versailles, Part III, Section XI, the
Danzig-Polish Treaty concluded at Paris on November 9th, 1920, and the
relevant decisions of the Council of the League of Nations and of the High
Com-missioner, confer upon Poland rights or attributions as regards the
access to, or anchorage in, the port and waterways of Danzig of Polish war
vessels ? If so, what are these rights or attributions ?"
[73] It follows from the way in which the question is formulated that
(1) in so far as concerns the sources of law to be consulted for the
purposes of the Advisory Opinion, two are indicated with some precision,
whereas the two others, and particularly the decisions of the Council and of
the High Commissioner, are merely described as "relevant"; this makes it
incumbent on the Court to decide precisely which are, in its view, relevant,
i.e. which have been taken with the object of regulating the matter in
question;
(2) with regard to the substance or constituent elements of the rights or
attributions, the Council's request only defines them [p152] by the words :
"as regards the access to or anchorage in the port and waterways of Danzig
of Polish war vessels", without specifying more precisely the powers covered
by these ideas;
(3) as regards the actual purpose of the Advisory Opinion which the Court is
asked to give, this is to establish whether the sources of law indicated
under (1), or any one of them, confer on Poland, in the connection described
under (2), any rights or attributions, and, if so, what rights or,
attributions ?
1.
[74] In view of the connection existing between these three elements, which
are in part interdependent, and of the desirability of determining as
precisely as possible what appears to me must constitute the starting point
for the Court's investigations, i.e. the precise meaning of the expression:
"access and anchorage for war vessels", it seems to me necessary to consider
what positive data are afforded by the documents placed on the Court's
record with regard to the substance of the rights or attributions in
question.
[75] In what may be called the official terminology, are employed at the
outset two expressions, used simultaneously, though with reference to
different conceptions, by the Council of the League of Nations : these were
"point d'attache" with special reference to the vessels allocated to the
Polish maritime police, and "port d'attache" - a more general term used with
reference to war vessels. The distinction ceased to have any importance when
the Council of the League of Nations, by its Resolution of June 22nd, 1921,
grouped the two problems together. In November 1927, the more general term -
the only one which is relevant - was by agreement between Poland and the
Free City of Danzig, replaced, for the purposes of subsequent negotiations,
by the expression "access to and anchorage in the port of Danzig for Polish
war vessels". This expression is also used by the Council in its request of
September 19th, 1931, save that it has inserted after the word "port": "and
water-ways".
[76] This change in terminology did not seem to involve any substantial
change in any rights which might exist; the [p153] substance of these rights
cannot therefore be better illustrated and defined than by the practice of
more than ten years originating with the agreement concluded on October 8th,
1921, between Poland and the Free City, under the auspices of the League of
Nations. Now, according to this long followed practice, access and anchorage
for Polish war vessels means shelter, mooring, provisioning, repairs, the
purchase of various material, etc., operations of which the Polish
Government's Agent has given a detailed description in the course of the
hearings before the Court and which are all of an administrative kind and
economic in their nature and justify the description of the use made of the
port of Danzig as an exclusively pacific use, which cannot be confounded
with the establishment of a naval base, which is expressly forbidden.
[77] The attention of the Council of the League of Nations was directed to
these powers, which constitute the precise import - by no means either vague
or indeterminate - of access to and anchorage in the port of Danzig for
Polish war vessels. The Council dealt with these questions by means of two
distinct procedures on different lines: the first aimed at a provisional
modus vivendi and the second at a final settlement. Both in their respective
sphere merit examination from a legal stand-point.
II.
[78] (a) The provisional settlement first finds a place in the Polish-Danzig
agreement suggested by the President of the Council of the League of Nations
on October 1st, 1921, and concluded by the two Parties concerned, before the
High Commissioner, on October 8th, 1921. The Council noted this agreement in
its Resolution of January 12th, 1922, and described it as concluded with the
object of "providing safety and the necessary harbour facilities for Polish
war vessels"; it also fixed the duration of these powers by deciding that
the preliminary agreement should remain in force until the question had been
considered by the Council.
[79] The above-mentioned Resolution may therefore be considered, for the
purposes of the present proceedings, as a [p154] �relevant decision" in so
far as it regulates, by approving the agreement between the Parties, the
question of access to and anchorage in the port of Danzig for Polish war
vessels. By so doing it creates special legal relations taking the form of
attributions and obligations accruing to or devolving upon the respective
Parties. Thus, by the mutual agreement of Poland and the Free City of
Danzig, and by the authority of the Council, a r�gime was established in
1921 which, though doubtless provisional and subordinate in character, was
nevertheless a legal r�gime the lawfulness of which has not been disputed
and which had continued in operation down to the present day.
[80] Under this agreement, Poland is granted "the use of the fort of
Danzig", subject to notifying the President of the Senate of Danzig of the
number of ships she wishes to keep in the port. For his part, the President
of the Senate undertakes to raise no objection to these ships remaining in
the port. Finally, the Harbour Board is to provide the necessary berths.
Then follows a clause of style to the effect that the arrangement does not
commit either side as regards any future agreement on the subject between
the two States, or any decision of the Council.
[81] (b) The provisional settlement was subsequently set out in another
resolution of the Council and in a decision of the High Commissioner - both
dated September 19th, 1931. This second intervention on the part of the
organs of the League of Nations took place in the following circumstances:
[82] When - following upon, firstly, . the denunciation of the agreement in
1927 by the Free City and the successive extensions of the agreement in 1928
and 1931 and, secondly, the failure of the negotiations for a new agreement
- the two Parties were about to find themselves without any agreement to
rely upon, the High Commissioner in a supplementary report, dated August
20th, 1931, drew the Council's attention to the unfortunate consequences
likely to ensue from the fresh difference of opinion and stated that he
believed he would be rightly interpreting his duties by doing "everything in
his power to forestall and prevent such consequences".[p155]
[83] The Council, acting on this report, adopted on September 19th, 1931, a
resolution to the effect that:
"Pending the Council's final decision on this matter, the High Commissioner
is requested to draw up provisional regulations. This arrangement shall in
no wise prejudge the final settlement of the question."
[84] In pursuance of this mandate, the High Commissioner on the same date,
September 19th, 1931, issued a provisional regulation. Formally, the new
regulation - issued by the Council's representative - entirely superseded
the agreement concluded on October 8th, 1921, between the Parties. In
substance, the new r�gime at present in force retains all the features of
the preceding r�gime, except that a clause is added forbidding the sending
ashore of naval patrols, and another providing for arbitration by the High
Commissioner in the event of a difference of opinion. With regard to the
duration of the r�gime thus instituted, Poland is to continue to use the
port of Danzig, as during these last years, for her war vessels until the
question of the access to and anchorage in the port of Danzig has been
settled definitively by a decision of the Council of the League of Nations.
[85] The interest residing in an examination of the provisional r�gime -
apart from the fact that this examination is necessary in law, since it
relates to relevant decisions of the Council and the High Commissioner -
consists in the fact that it makes it possible:
(1) to ascertain with the necessary precision, the nature of the use made of
the port since more than ten years by Polish war vessels;
(2) to estimate at its true value the formal insistence of the intervention
of the organs of the League of Nations in this question;
(3) to observe the direction of the Council's train of thought, which is
invariably directed towards the maintenance and continuance of the r�gime
without the latter at any time being regarded as an abuse of or contrary to
the law in force. [p156]
III.
[86] Before describing the Council's activities in regard to a final
settlement of this matter, it is absolutely necessary to examine firstly the
legal provisions of a higher order governing both the rights and obligations
of the two Parties concerned and the Council's jurisdiction in regard to
Polish-Danzig affairs. That brings us once more to the question put by the
Council in its request, a question which upon closer analysis runs as
follows:
[87] Should the access and anchorage of Polish warships, understood in an
administrative, economic and pacific sense and which represent the necessary
facilities and security granted to Poland by the provisional regulation, be
considered substantially as also forming the subject of rights of a superior
order, rights to be respected by Danzig and the Council of the League of
Nations ? Can they be included among those specially conferred on Poland by
the relevant provisions of the Treaty of Versailles ?
[88] (a) In the absence of an express provision governing the case in
question, and since it is obviously impossible to find a provision dealing
with such a very special position, recourse must be had to the very general
principles of Section XI, Part III, of the Treaty of Versailles, and, most
of all, especially to Article 104, paragraph 2.
[89] This Article confers on Poland without any restriction the free use and
service of all waterways, docks, basins, wharves and other works within the
territory of the Free City, necessary for Polish imports and exports.
[90] Regard being had to the tenour of this clause together with its terms,
a literal interpretation of it seems to me to cover completely the above
defined use of the port.
[91] 1. The benefit is conferred on Poland, on the Polish State as a whole,
including its people, its commercial companies, its [p157] Government, in
short, on Poland as a legal personality. No distinction is drawn between
warships, mercantile vessels, pleasure boats, fishing boats. The words
"without any restriction" which follow the word "Poland" show that there was
no intention to limit the principle ratione persona by excluding from its
application any given category of beneficiaries.
[92] 2. Nor was any restriction laid down in regard to the nature of the
use: "the free use and service" obviously covers the use in question.
[93] 3. As regards the subject matter of this right of use and service, this
is indicated in so many words and includes waterways, docks, basins,
wharves, and other works necessary for Polish imports and exports. It has
been argued that the concluding words rule out warships. I cannot share this
view. In my view there is no ground for extending in this way the meaning of
words which define the subject matter of this use and which are intended to
withdraw from such use installations not necessary for exports and imports,
and to give these words a restrictive effect either in respect of the nature
of the use or the special character of the beneficiaries. Nothing in the
wording of the principle laid down in Article 104, paragraph 2, allows us to
restrict the meaning by adding the words "for commercial purposes" or- even
the words "of an economic character", although incidentally the latter
expression would in this case cover the activities of Polish warships in the
port of Danzig.
[94] If, however, this wording of the text should give rise to any doubt as
to its true meaning, so that recourse must be had to an interpretation
according to its spirit, the principles underlying Articles 100 to 108 of
the Treaty of Versailles would not lead to a different result. Recourse to
these principles would certainly not be justified if the object were to draw
inferences contrary to the terms of the relevant articles. Clearly such a
recourse would be fully justified if, where any doubt exists, these
principles threw a light on the text in which they find concrete legal
expression. That it seems to me is the import in this case of the principle
of free and secure access for Poland along with its corollary, viz. [p158]
the intention of the Powers to establish the closest relations-between
Danzig and Poland. In the light of these principles, Article 104, paragraph
2, can in no circumstances be interpreted restrictively to the detriment of
Polish warships.
[95] (b) Understood in this way, Article 104, paragraph 2, is not the only
provision of which account is to be taken in settling the present case.
Section XI, Part III, of the Treaty of Versailles contains other articles
which may be relevant, particularly Articles 102 and 103 the object of which
is to regulate the territorial integrity and political independence of
Danzig, the autonomy of the Danzig people and the security of the Free City.
Article 102, which places the Free City under the protection of the League
of Nations, appears to me to be specially relevant.
[96] The connection which in my view exists between Poland's right to access
and anchorage for her warships in Danzig -a right based on Article 104,
paragraph 2 - on the one hand, and the exercise of the right of protection
granted to the League of Nations in Article 102, on the other, lies in the
military character of the vessels concerned in this case. The existence of
this character which, in itself, is insufficient to deprive Poland of the
right to obtain the benefit for her warships of the particular advantages
conferred by Article 104, paragraph 2, seems, on the contrary, sufficient to
authorize the League of Nations to make use of its right of protection in so
far as the exercise by Poland of her rights were likely to threaten Danzig's
security. In other words, the League of Nations, without denying or
destroying Poland's rights under Article 104, paragraph 2, has the power to
regulate the exercise of that right and to lay down such necessary
conditions as may be adjudged necessary for the security of the Free City.
[97] The military character of vessels - irrelevant to an accurate
interpretation of Article 104, paragraph 2 - appears, on the contrary,
relevant to call into play Article 102 and to fix on the basis of that
Article the exact conditions for the application of Article 104, paragraph
2. The two provisions cited, one of which confers certain rights on Poland,
and the other [p159] of which, jurisdictional in character, provides the
Council of the League of Nations with a legal basis to limit if necessary
the exercise - constitutes between them, to my mind, the fundamental legal
framework in which the present problem lies.
[98] It is otherwise with the Convention of Paris, which cannot be regarded
as relevant to the present case. The legal position of Polish warships is
outside this Convention in the same way as the question of Danzig's defence
by Poland, a question which was expressly placed outside its scope.
Moreover, the terms of the Convention neither explicitly nor implicitly
weaken the scope of the two relevant articles of the Treaty of Versailles.
It is in the light of both these articles taken together that the Council's
activities can be legally appraised. This applies both to any provisional
action of the Council and to its definitive action. In two different ways
such action assumes the character of pure regulation deriving its legal
origin from Article 102. Whether the Council acts by itself or whether it
has recourse to a friendly settlement between the Parties negotiated under
its auspices - the course adopted cannot in any way modify its essential
legal position, as that position seems to me to result from the Treaty of
Versailles.
IV.
[99] Having examined the Council's work in connection with a provisional
settlement, it merely remains for me to make a few observations on its
activities in connection with definitive
[100] Begun on October 20th, 1920, suspended on January 12th, 1922, the
latter was resumed afresh on September 19th, 1931.
[101] Originally the question of access and anchorage for Polish warships
was connected, under the title of "port d'attache", with that of the defence
of Danzig by Poland. This was due not only to reasons of a formal character
arising from the fact that both matters fall within the jurisdiction of the
League of Nations in its capacity of Danzig's protector, but [p160] also
because both matters were regarded as coming within the scope of the
principle of close relations to be established between both countries. In
fact, however, the two problems were distinct, seeing that, any mandate for
the defence of Danzig contemplated extraordinary circumstances, while the
question of access and anchorage (then port d'attache) arose out of Poland's
permanent needs.
[102] Dealt with jointly at the session of June 1921, the Resolution of June
22nd, 1921, provided different and independent solutions for both questions.
[103] When the Council, after having found it (in paragraph 6 of its
Resolution) unnecessary to take a decision in regard to the defence of
Danzig by sea, nevertheless took a definite stand (in paragraph 7) in regard
to the question of the port d'attache and entrusted the High Commissioner
with the task of examining the means of creating a port d'attache in the
port of Danzig without establishing there a naval base, the decision thus
taken certainly marks a significant step in the gradual development of the
efforts towards a settlement. But from a strictly legal stand-point, it is
in my view difficult to see in clause 7 (as it is for that matter in all the
acts which preceded as well as those which followed it) anything which
departs in one sense or the other from my conception of a settlement
developed above. If this part of the Resolution cannot in my view be
regarded as relevant as an original and basic source of Poland's rights,
equally it cannot be invoked to question or deny those same rights. Its real
significance is that it furnishes evidence of the Council's definite
intention to give satisfaction to Poland's demands short of creating a naval
base. The reexamination of this question after a lapse of ten years has in
my view no other significance.
***
[104] To sum up: If I had to reply to the question put by the Council, I
would draw the conclusion from the above considerations, as follows: [p161]
[105] Rightly interpreted, Article 104, paragraph 2, of the Treaty of
Versailles confers on Poland in principle rights in regard to the access and
anchorage of Polish warships in the port and waterways of Danzig which are
substantially similar to the attributions which were and remain granted to
Poland by the relevant decisions of the Council dated January 12th, 1922,
and September 19th, 1931, together with the relevant decision of the High
Commissioner dated September 19th, 1931.
[106] However, the regulation of the aforementioned rights and attributions,
under Article 102 of the Treaty of Versailles, rests with the League of
Nations in so far as any given use of the port by Polish warships,
authorized in principle by Article 104, paragraph 2, of the Treaty of
Versailles, would be likely to threaten; the security of Danzig, which is
placed under the protection of the League of Nations.
(Signed) M. Rostworowski.
[p162] Annex.
I. - Documents Transmitted by the Secretariat of the League of Nations:
1. - Minutes of the meeting of the Council of the League of Nations of
September 19th, 1931.
2. - Special report of the High Commissioner (August 15th, 1931), and
supplementary report (August 20th, 1931).
Appendix I: Gesetzblatt of Danzig (No. 32, July 2nd, 1931).
Appendix II: Letter from the President of the Danzig Senate to the High
Commissioner (July 3rd, 1931).
Sub-Appendix : Extract from the Danziger Neueste Nachrichten
(July 2nd, 1931)-
Appendix III: Gesetzblatt of Danzig (No. 33, July 3rd, 1931).
Appendix IV: Report of the Free City on the development of the Danzig-Polish
relations (August 14th, 1931).
Sub-Appendix : Gdynia versus Danzig.
Appendix V : Letter from the Danzig Senate to the High Commissioner (July
2nd, 1931).
Appendix VI : Letter from the Polish representative to the High Commissioner
(August 8th, 1931).
3. - Extracts from the Geselzblatt fur die Freie Stadt Danzig:
I. Erm�chtigungsgesetz of June 30th, 1931.
Gesetz zuv Sicherung der �ffentlichen Ordnung of June 30th, 1931.
II. Rechtsverordnung betreffend �nderung des Vereins-Gesetzes (June 30th,
1931)
Rechtsverordnung �ber Waffen (June 30th, 1931).
Rechtsverordnung betreffend Anderung des � 6 Satz 2 des Gesetzes zum Schutz
der personlichen Freiheit vom 12. Februar 1850 (June 30th,)
Rechtsverordnung betreffend Fragen einheitlicher Kleidung durch Mitglieder
ausl�ndischer politischer Organisationen (June 30th, 1931).
4. - Letter from the Polish Government to the High Commissioner (September
1st, 1931).
II. - Relevant Documents Appended to the Two Memorials of the Free City:
5. - Extract from the Reply of the Principal Allied and Associated Powers to
the German Observations on the terms of peace (June 16th, 1919).
6. - Extract from the covering letter to the above Reply, signed by M.
Clemenceau as President of the Peace Conference (June 16th, 1919).
7. - Provisions of the Treaty of Versailles as to the Free City.
8. - Extracts from the drafts of the Convention of Paris, submitted by the
Polish Government to the Ambassadors' Conference.
9. - Convention of Paris (November 9th, 1920).
10. - Report of Viscount Ishii to the Council L. N. (November 17th, 1920).
11. - Minutes of the meeting of the Council L. N. and Resolution of the
Council of November 17th, 1920.
12. - Article 5 of the Constitution of the Free City.
13. - Report of Permanent Military, Naval and Air Advisory Commission
December 1st, 1920). [p163]
14.�Minutes of the meeting of the Council L. N. and Resolution of December
12th, 1920.
15. - Reports of Viscount Ishii on the defence of the Free City and on the
protection of Poland's right of access to the sea through Danzig (June 22nd,
1921), and note of the French delegation (same date).
16. - Minutes of the meeting of the Council L.N. and Resolution of June
22nd, 1921.
17. - Decision of the High Commissioner (August 15th, 1921). 18. - Report of
the High Commissioner (September 10th, 1921). 19. - Report of Viscount Ishii
(September 16th, 1921).
20. - Minutes of the meeting of the Council L. N. and Resolution of
September 16th, 1921.
21. - Report of the Naval Sub-Commission (September 24th, 1921).
22. - Provisional Arrangement concerning berth for Polish warships in Danzig
(October -8th, 1921).
23. - Report of the High Commissioner (December 7th, 1921).
24. - Report of Viscount Ishii (January 12th, 1922) and Resolution of
Council L. N.
25. - Minutes of the meeting of the Council L. N. of January 12th, 1922.
26. - Decision of the High Commissioner (December 6th, 1921).
27. - Minutes of the meeting of the Council L. N. of September 8th, 1927.
28. - Idem, of December 8th, 1927.
29. - Idem, of September 8th, 1928.
30. - Memorandum by the High Commissioner on the defence of the Free City
(January 25th, 1921).
31. - Resolution of the Ambassadors' Conference (May 7th, 1920).
32. - Letter of the President of the Ambassadors' Conference to the
Secretary-General L. N. (October 20th, 1920).
33. - Provisional Regulation for the access to and anchorage in the port of
Danzig of Polish war vessels (September 19th, 1931), with covering letter of
the High Commissioner.
34. - Sketch map of Danzig and the surrounding country
.
III. - Documents Filed by the Parties at the Hearings:
Documents filed by the Agent of the Danzig Government:
35. - Letter from the Danzig Senate to the Polish diplomatic representative
at Danzig (May 20th, 1927).
36. - Letter from the Polish diplomatic representative at Danzig to the
Danzig Senate (July 4th, 1927).
37. - Letter from the Danzig Senate to the Polish diplomatic representative
at Danzig (August 4th, 1928).
38. - Letter from the Polish diplomatic representative at Danzig to the
Danzig Senate (August 4th, 1928).
39. - Letter from the Danzig Senate to the Polish diplomatic representative
at Danzig (March 31st, 1931).
40. - Letter from the Polish diplomatic representative at Danzig to the
Danzig Senate (May 22nd, 1931).
41. - Letter from the Danzig Senate to the Polish diplomatic representative
at Danzig (June 29th, 1931). [p164]
42.�Idem (August 16th, 1931). 43.�Idem (September 16th, 1931).
Documents filed by the Agent of the Polish Government:
44. - Letter from the Danzig Senate to the President of the Council L. N.
(August 2nd, 1927).
45. - Memorial of the President of the Senate of the Free City re the
establishment of a "port d'attache" at Danzig (September 20th, 1921).
46. - Note from the President of the Senate of the Free City to the High
Commissioner L. N. at Danzig (November 10th, 1927).
47. - Letter from the High Commissioner L. N. at Danzig to the
Secretary-General L. N. (November 15th, 1927).
48. - Idem (May 5th, 1921).
49. - Letter from the President of the Conference of Ambassadors to the
President of the Polish delegation (October 20th, 1920).
50. - Letter from the Polish delegation to the L. N. to the President of the
Council L. N. (March 5th, 1921).
51. - Letter from the Danzig Senate to the Polish diplomatic representative
at Danzig (August 14th, 1931).
Annex to No. 51 : Bedingungen fur das Anlaufen und den Aufenthalt von
polnischen Kriegsschiffen im Danziger Hafen (October 8th, 1921).
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