Territorial Jurisdiction of the International Commission of the River Oder, United Kingdom v Poland, Order, PCIJ Series A no 23, ICGJ 263 (PCIJ 1929), 10th September 1929, League of Nations (historical) [LoN]; Permanent Court of International Justice (historical) [PCIJ]

1  The Governments of His Britannic Majesty in the United Kingdom of Great Britain and Northern Ireland, of the Czechoslovak Republic, of His Majesty the King of Denmark, of the French Republic, of the German Reich, and of His Majesty the King of Sweden, hereinafter referred to as the “Six Governments”, of the one part, and the Government of the Polish Republic, of the other part, have submitted to the Permanent Court of International Justice, by means of a Special Agreement concluded in London on October 30th, 1928, between the aforesaid Governments, and filed with the Registry of the Court, in accordance with Article 40 of the Statute and Article 35 of the Rules of Court, under cover of a letter from the British Legation at The Hague dated November 29th, 1928, the question, with regard to which they were in disagreement, as to the territorial limits of the jurisdiction of the International Commission of the Oder to be laid down in the Act of Navigation of the Oder.

2  According to the terms of the Special Agreement, the Court is asked to decide the following questions :

“Does the jurisdiction of the International Commission of the Oder extend, under the provisions of the Treaty of Versailles, to the sections of the tributaries of the Oder, Warthe (Warta) and Netze (Noteć) which are situated in Polish territory, and, if so, what is the principle laid down which must be adopted for the purpose of determining the upstream limits of the Commission's jurisdiction ?”

3  Article 3 of the Special Agreement providing that the Agreement “shall be communicated to the Court by one of the Parties”, the Court was duly made cognizant of the case on November 29th, 1928, the date on which the British Legation's letter was received. The Agreement was duly communicated on or after that date to all concerned, as provided in Article 40 of the Statute ; further, in accordance with the terms of Article 63 of the Statute, notification of the deposit was sent to the Parties to the Versailles Treaty, other than those concerned in the case.

4  The President of the Court, by an Order of December 29th, 1928, fixed the dates for the filing of the documents of the written procedure, subject to the Court's right to modify the times so fixed in the event of the Parties submitting proposals to that effect. Such proposals having been received, the President, by an Order of February 25th, 1929, extended the times for the filing of Cases and Counter-Cases and decided to dispense with the submission of written Replies by the Parties. A further extension was granted by an Order of March 26th, 1929, which fixed their expiration at April 15th and June 10th, 1929, respectively.

5  The Cases and Counter-Cases were duly filed within the times thus finally fixed and were communicated to those concerned as provided in Article 43 of the Statute.

6  In the course of public sittings held on August 20th, 21st, 22nd, 23rd and 24th, 1929, the Court heard the arguments of Sir Cecil Hurst, K.C., G.C.M.G., K.C.B., Counsel for H.B.M.'s Government in Great Britain, and of the above-mentioned Agents for the French and German Governments; it also heard declarations made by the Agents for the Czechoslovak, Danish and Swedish Governments mentioned above. Further, it heard the arguments of the above-mentioned Agent for the Polish Government, as well as of Counsel for that Government, M. Charles de Visscher, Dean of the Faculty of Law of the University of Ghent. It finally heard the replies of Sir Cecil Hurst, M. Basdevant and Dr. Seeliger on behalf of the Six Governments, and the rejoinders of M. Winiarski and M. de Visscher on behalf of the Polish Government.

7  In support of their respective contentions, the Parties have cited the documents a list of which is given in the first annex to this judgment¹ ; some of these documents were submitted either as annexes to the documents of the written proceedings or during the hearings; the remainder have been collected by the Registry with the assistance of the General Secretariat of the League of Nations.

8  The Polish Government having, in its Case, cited and relied on inter alia certain passages taken, directly or indirectly, from the Minutes of the Commission on Ports, Waterways and Railways of the Conference held in Paris in 1919 which drew up the Versailles Treaty, the Six Governments in their Counter-Case raised an objection to the admission in evidence of such references. The Court, having ,regard to this objection, made on August 15th, 1929, an Order the full text of which is reproduced in the second annex to this judgment²; the operative portion was as follows:

“The Court …. invites the Agents of the Parties to submit at the hearing fixed for Tuesday, August 20th, at 10.30 a.m., and before any argument upon the merits, their observations and final submissions upon the said question, it being understood that the Court will pass upon this question immediately after receiving such observations and submissions, and that the argument on the merits shall follow forthwith, unless the Court shall otherwise decide.”

9  In execution of this Order, Sir Cecil Hurst, M. Basdevant and Dr. Seeliger on behalf of the Six Governments and M. Winiarski on behalf of the Polish Government, argued this preliminary point before the Court on August 20th, prior to any arguments on the merits, and the Court, by an Order of the same day, reproduced in full in the third annex to this judgment ³, ruled that:

“the Minutes of the Commission on Ports, Waterways and Railways of the Conference which prepared the Treaty of Versailles shall be excluded as evidence from the proceedings in the present case”.

10  The Six Governments in their Counter-Case contended that :

“the answers of the Court to the questions submitted for decision should be those submitted in their Memorial”.

11  These answers were as follows:

12  Upon the first question: that,

“under the provisions of the Treaty of Versailles, the jurisdiction of the International Commission does extend to sections, situated in Polish territory, of the Rivers Warthe and Netze, tributaries of the Oder, if there are in Polish territory sections of these rivers which come within the definition of ‘navigable waterways of international concern’ contained in Article 1 of the Statute on the ‘Régime of Navigable Waterways of International Concern, signed at Barcelona on the 20th April, 1921’ ” ;

or, in the alternative, that

“Under the provisions of the Treaty of Versailles, the jurisdiction of the International Commission of the Oder does extend to the sections situated in Polish territory of the Rivers Warthe (Warta) and Netze (Noted), tributaries of the Oder, if there are in Polish territory sections of these rivers which fulfil the conditions of navigability laid down in Article 331 of the Treaty”;

and, upon the second question submitted :

“By virtue of the provisions of Parts (1) and (2) of Chapter III of Section II of Part XII of the Treaty of Versailles, and in particular of Article 338, and by virtue of the provisions of Article 1 (2) of the Barcelona Statute, the principle which must be adopted for the purpose of determining the upstream limits of the Commission's jurisdiction is that these limits should include all sections of the Rivers Warthe (Warta) and Netze (Noteć) which are covered either by the provisions of Article 331 of the Treaty of Versailles or by the provisions of the general definition contained in paragraph 1 of Article 1 of the Barcelona Statute”;

or, in the alternative:

“By virtue of the provisions of Parts (I) and (2) of Chapter III of Section II of Part XII of the Treaty of Versailles, and in particular of Article 338 of the Treaty of Versailles, the principle which must be adopted for the purpose of determining the upstream limits of the Committee's jurisdiction is that these limits should be fixed in accordance with the provisions of paragraph (1) of Article 1 of the Barcelona Statute” ;

or, thirdly, that :

“Under the provisions of Parts (I) and (2) of Chapter III of Section II of Part XII of the Treaty of Versailles, the principle ' which must be adopted for the purpose of determining the upstream limits of the Committee's jurisdiction is that these limits should be fixed in accordance with the provisions of Article 331 of the Treaty of Versailles at those points where these rivers respectively cease to be either naturally navigable or navigable by reason of lateral canals or channels constructed in their original river beds, either duplicating or improving naturally navigable sections or connecting two naturally navigable sections.”

13  The above. are, therefore, the submissions of the Six Governments.

14  The Polish Government submitted in its Case that the Court will be pleased

[Translation.] “to give judgment that in accordance with the Treaty of Versailles the jurisdiction of the International Commission of the Oder does not extend to those parts of the Warta (Warthe) and the Noteć (Netze), tributaries of the Oder, which are situated in Polish territory, and therefore extends to those sections of the Warta (Warthe) and Noteć (Netze) which provide more than one State with access to the sea, that is to say, the German section of the Warta (Warthe) and the German and common sections of the Noteć (Netze)”.

15  To this the Six Governments opposed in their Counter-Case a submission to the effect that “the contention of the Polish …. Memorial, namely that on the rivers Warthe (Warta) and Netze (Noteć), tributaries forming part of the system of the Oder, while the limits of the régime of navigation must be determined by the application of the Barcelona Statute, the limits of the jurisdiction of the Oder Commission must be determined exclusively by the application of the definition contained in Article 331 of the Treaty of Versailles, should be rejected” and that “the contention of the Polish …. Memorial, with regard to the interpretation of the definition in Article 331 of the Treaty of Versailles, should” also “be rejected”.

16  In its Counter-Case, the Polish Government summarized its contentions in the following three points:

[Translation.]

1. “(1)  Article 331 of the Treaty of Versailles only states that those parts of the Oder system which provide more than one State with access to the sea are international, and consequently, it excludes from this definition those parts of the tributaries of this river above the Polish frontier;

2. (2)  The geographical definition of the internationalized system laid down in Article 331 cannot be modified by the general definition provided for in Article 338 except in so far as concerns the navigation régime, but in no case as concerns the international administration;

3. (3)  In consequence, the jurisdiction of the Oder Commission does not extend to the purely Polish parts of the Warta (Warthe) and the Noteć (Netze).”

17  It will thus be seen that the submissions of the Polish Government dealt only with the first of the two questions put to the Court, leaving out of consideration the second question; in this respect, it made the following statement in its Counter-Case:

[Translation.] “The question as to what is the law which should govern the fixing of the upstream limits of the jurisdiction of the International Commission of the Oder can only arise in the event of an affirmative answer being given to the first question. The Polish Government, being of the opinion that the jurisdiction of the Commission does not extend to the purely Polish parts of the Warta (Warthe) and Noted (Netze), was not obliged to consider the answer to this second question. It makes every reservation as to the submissions made in the Memorial of the Six Governments and as to the grounds for those submissions, and reserves the right to state its case in regard to the three solutions proposed by the Six Governments in the course of the pleadings before the International Court of Justice.”

18  The Court, however, by an Order dated August 15th, 1929, invited

“the Agent for the Polish Government to file with the Registry by midday on Saturday, August 17th, at latest, any alternative submissions as to the second of the two questions submitted to the Court under Article 1 of the Special Agreement of October 30th, 1928”.

19  The full text of the Order is reproduced in the fourth annex to this judgment¹.

20  Accordingly, and within the time fixed, the Agent for the Polish Government filed a document, a copy of which was immediately communicated to the other Parties; it contained the following passage :

[Translation.] “ …. if, contrary to what Poland regards as the law, the Court should answer the first question in the affirmative, the Polish Government could not admit that the definitions contained in Article 1 (1) of the Barcelona Statute and Article 331 of the Versailles Treaty should, as the Six Governments demand, be applied simultaneously…. Article 1 (2) of the Barcelona Statute refers to waterways expressly declared, that is to say those enumerated in the first part of Article 331, paragraph 1. That part alone is unchangeable ; as regards the definition, that contained in Article 331 is purely and simply to be superseded by Article 1 (1) of the Barcelona Statute.”

21  In the arguments and declarations made on behalf of the Six Governments, their submissions as formulated in the written pleadings filed by them were maintained. On the other hand, the Agent for the Polish Government, in his arguments, submitted at least two contentions which had not been expressly stated or at any rate elaborated in the written documents filed on behalf of this Government. Having regard to this fact, the Six Governments, through the intermediary of Counsel for His Britannic Majesty's Government in Great Britain, formally asked the Court to rule that these contentions should be disregarded, whereas the Agent for the Polish Government requested the Court to overrule this demand of the Six Governments; the Court will deal at a later stage of the present judgment with the situation thus created.

22  The Agent for the Polish Government in his oral arguments maintained the conclusions set forth by him in the written pleadings, as regards the first question before the Court, except for the arguments already referred to, and subject to a declaration made by him in his rejoinder to the effect that the conclusion in the Polish Case was badly worded; this conclusion should have stated “only the exact reply to the question submitted by the Special Agreement”. With regard to the second question, he reserved his right briefly to state in his rejoinder the reasons for the submissions which he had presented on August 17th, 1929. Counsel for His Britannic Majesty's Government having objected to this course, on the ground that it would preclude the Six Governments from discussing these reasons, M. Winiarski made a short statement concerning the second question also; this statement did not amend or add to the submissions filed on August 17th, 1929, as stated above.

23  According to the arguments and to the documents before the Court, the origin of the present case is as follows:

24  Under Article 341 of the Treaty of Versailles, “the Oder shall be placed under the administration of an International Commission which shall comprise” representatives of Poland, Prussia, the Czechoslovak State, Great Britain, France, Denmark, and Sweden. This Commission shall, under Article 343 of the Treaty, “proceed immediately to prepare a project for the revision of the existing international agreements and regulations“. Such project “shall, inter alia”, under Article 344 of the Treaty, “define the sections of the river or its tributaries to which the international régime shall be applied”. The régime in question is the one referred to in Article 338 of the Treaty, i.e. the régime set forth in Articles 332 to 337, inclusive, or laid down in the General Convention mentioned by Article 338 as intended to be “drawn up by the Allied and Associated Powers and approved by the League of Nations”.

25  The International Commission set up in order to assume the administration of “the Oder” held its First Session at Baden-Baden in March, 1920. It at once undertook the work of preparing the draft Act of Navigation contemplated by Article 343 of the Versailles Treaty; difficulties, however, arose when it came to the definition of the sections to which the international régime was to apply, and at the Fourth Session of the Commission, held at Swinemünde in July, 1922, the Polish delegate maintained that “the Warta should be internationalized from its confluence with the Oder up to the Polish frontier“, adding that the situation was the same as concerned the Noteć in so far as it was navigable; the delegate for Prussia, on the contrary, submitted that if the principle of the internationalization of tributaries was to be adopted, it must be integrally maintained, and the navigable portions of tributaries situated in Polish territory should not be excluded from the international river system. The other delegates, except the Polish delegate, more or less completely took the same view.

26  At its Sixth Session, the Commission adopted, on January 29th, 1924, a resolution stating that the efforts made with a view to reconciling the opposing views had failed; that the Commission would not proceed with the preparation of the Act of Navigation; that, however, Article 376 of the Versailles Treaty afforded a solution; and that therefore the delegates should approach their respective Governments on the matter.

27  Following upon this resolution, the British Government, by a letter to the Secretary-General of the League of Nations dated August 23rd, 1924, asked that the question set forth hereafter should be submitted to the Advisory and Technical Committee for Communications and Transit of the League of Nations:

“ …. whether the International Commission provided for in Article 341 of the Treaty of Versailles, in the project to be prepared under Articles 343 and 344 for the revision of the existing International Agreements and Regulations relating to the Oder, is debarred, having regard especially to the provisions of Articles 331 and 338 of the same Treaty, in defining under Article 344 (c) the sections of the river or its tributaries to which the international regime shall be applied, from including tributaries or parts of tributaries of the Oder which are in Polish territory and are navigable”.

28  The French Government, by a letter dated October 21st, 1924, made a similar request, formulating as follows the question at issue:

“ …. whether, in application of the relevant stipulations of the Versailles Treaty, including Article 338, the International Oder Commission should fix the limits of the international river system of the tributaries of the Oder at the frontier between Germany and Poland, or at the point above that frontier at which the said tributaries become naturally navigable”.

29  The British Government, in its request, relied on Article 376 of the Treaty of Versailles, on the Resolution of the Assembly of the League of Nations of December 9th, 1920, and on Article 7 of the Rules for the organization of the Advisory and Technical Committee; under these Rules, this Committee may, if necessary, proceed to nominate a Committee of Enquiry with instructions to investigate the question and submit a report.

30  The reference of the matter to the conciliation procedure laid down by the above provisions led to the adoption on November 27th, 1924, by a majority of the Advisory and Technical Committee, of a “suggestion for conciliation”, which was communicated to the International Oder Commission and to the Governments represented thereon. The “suggestion” was rejected by Poland, while Germany reserved its opinion. The International Oder Commission therefore in June 1925 agreed that the work on the Act of Navigation could not be usefully continued, and adopted a resolution inviting the delegates to inform their Governments of the situation, “in order that they [the Governments] might take such measures as they considered necessary”.

31  The Advisory and Technical Committee, for its part, having meanwhile been informed of the attitude of the Governments concerned with regard to its “suggestion” of November 27th, 1924, adopted at its Eighth Session on July 30th, 1925, a resolution under the terms of which the Committee “considers that it should declare that the procedure of conciliation which has been undertaken is now closed and that it should duly inform the Governments concerned of this fact”.

32  The Governments thereupon authorized their respective delegates on the Oder Commission to meet for the purpose of drafting a Special Agreement to bring the matter before the Permanent Court of International Justice for decision and defining the questions on which the ultimate decision of the Court was required. The result was the formal signature, on October 30th, 1928, of the Special Agreement referred to at the outset of this judgment.

33  In accordance with Article 1 of the Special Agreement reproduced above, the Court has to deal with two questions which may be formulated as follows:

1. (1)  Does the jurisdiction of the International Commission of the Oder extend to those portions of the Warthe (Warta) and the Netze (Noteć), tributaries of the Oder, which are situated in Polish territory ?

2. (2)  If so, what is the law which should govern the determination of the upstream limits of this jurisdiction ?

34  The second question, however, arises only if it is decided that the jurisdiction of the Commission extends to the portions of those rivers which are situated in Polish territory; for, if the first question were answered in the negative, the upstream limit of the Commission's jurisdiction would be the Polish frontier.

35  There does not appear to be any dispute between the Parties with regard to the meaning of the word jurisdiction (juridiction) in the present case. The Court considers that this word relates to powers possessed by the Commission under treaties in force; the questions referred to the Court relate to the territorial limits of these powers.

∗ ∗ ∗

36  Before considering these questions, the Court must deal with two points which were raised, or reverted to, by the Agent for the Polish Government during the hearings and which the Representatives of the Six Governments claim should be excluded from consideration.

37  The first relates to the meaning of the word “Oder” in Article 341 of the Treaty of Versailles, the relevant part of which runs as follows:

38  The Polish Agent pointed out that Article 341 does not say “the Oder and its system referred to in Article 331” but simply “the Oder”, and that therefore, if reliance be placed on this provision, the jurisdiction of the Commission extends to the Oder alone, even if in virtue of Article 331 the régime of internationalization also extends to the tributaries of the Oder.

39  Whatever value this argument might have in relation to the provisions of the Treaty of Versailles, and the significance of these provisions will be considered later, it is certain that it cannot be admitted to change the terms of the question put to the Court under the Special Agreement. This question as formulated proceeds on the assumption that the Commission's jurisdiction extends over those portions of the Warthe (Warta) and the Netze (Noteć) which are not situated in Polish territory, and that the only point in dispute is whether the said jurisdiction ceases at the Polish frontier or whether it also extends into the territory of Poland. It may also be remarked that it was solely on this point that the dispute between the Six Governments and Poland arose in the Oder Commission and was dealt with first during the conciliation procedure and afterwards before the Court; the jurisdiction of the Commission over the German section of the Warthe (Warta) and the German and common sections of the Netze (Noteć) is, moreover, conformably to the terms of the submission, admitted in the conclusions of the Polish Case and is implicit in those of the Polish Counter-Case.

40  It is therefore quite clear that the questions on which the Court is asked to give judgment presuppose that the jurisdiction of the Commission is not limited to the principal river but also extends to the tributaries. These questions cannot be changed or amplified by one of the Parties.

41  The second point relates to the applicability of the Statute annexed to the Barcelona Convention of April 20th, 1921, relating to the régime of navigable waterways of international concern.

42  The Special Agreement asks the Court to settle the question “according to the provisions of the Treaty of Versailles”. But Article 338 of that Treaty, of which the text will be reproduced hereafter, is to the effect that certain provisions relating to the matter at issue will be superseded, or possibly completed or modified, by the provisions of a “General Convention drawn up by the Allied and Associated Powers, and approved by the League of Nations, relating to the waterways recognized in such Convention as having an international character”. The Parties agree that the Convention referred to is the above-mentioned Convention of Barcelona. The Six Governments base their principal argument on this latter Convention, or more precisely on the Statute annexed thereto, and made an integral part thereof, the articles of the Treaty of Versailles (aside from Article 338) being only subsidiarily relied upon by them.

43  Before the Committee of Enquiry of the Advisory and Technical Committee of the League of Nations, the Polish Government had contended that the Barcelona Convention, which that Government had not ratified, could not be invoked against it. This argument had been dealt with and contested by the Six Governments in their Case; but, as it did not appear either in the Case or in the Counter-Case of the Polish Government, the other side considered themselves entitled to regard it as abandoned. The Agent for the Polish Government having, however, in his oral argument, relied on the fact that Poland had not ratified the Barcelona Convention, the Six Governments asked the Court to reject the Polish contention in limine, on the ground that it would be contrary to the letter and spirit of the Rules of Court and to the practice of arbitral tribunals on which those Rules are based, to admit new contentions at an advanced stage of the proceedings and after the opposing Parties had been led to believe that such arguments would not be put forward.

44  The Court considers that the objection of the Six Governments is untenable.

45  The fact that Poland has not ratified the Barcelona Convention not being contested, it is evident that the matter is purely one of law such as the Court could and should examine ex officio. It may further be observed that neither the Polish Case nor the Counter-Case contains anything from which it may definitely be concluded that they intended to abandon the argument based on non-ratification. The Court will therefore pass upon this point and will do so at the outset; for it is on the solution to be given by it to this question that its decision depends as to what Treaty provisions must serve as a basis for its consideration of the dispute.

∗

46  The question whether the Barcelona Convention may be invoked against Poland which has not ratified it, arises out of Article 338 of the Treaty of Versailles which runs as follows:

47  In virtue of this article the contracting Parties to the Treaty of Versailles have agreed that certain provisions of that Treaty shall be superseded by those of the future General Convention; the question is therefore whether this supersession depends on ratification of the said Convention by the States concerned—in this particular case on ratification by Poland.

48  It follows that the question does not relate to the Barcelona Convention in general as such, but only to the effects which that Convention may have under Article 338 of the Treaty of Versailles. It also follows that the question is important only in so far as the Barcelona Convention would, by extending them, modify the territorial limits of the jurisdiction of the Oder Commission as laid down in the Treaty of Versailles.

49  The question therefore is whether the obligation undertaken by Poland in virtue of Article 338 of the Treaty of Versailles is sufficient to render the Barcelona Convention applicable to the extent contemplated by that article.

50  With respect to this, it must be pointed out that Article 338 expressly refers to a “Convention” ; unless the contrary be clearly shown by the terms of that article, it must be considered that reference was made to a Convention made effective in accordance with the ordinary rules of international law amongst which is the rule that conventions, save in certain exceptional cases, are binding only by virtue of their ratification.

51  It remains to be seen whether Article 338 intended to derogate from that rule. The contemplated Convention is one “drawn up by the Allied and Associated Powers and approved by the League of Nations”. As regards the first point, it may be admitted that the expression to draw up (établir) a convention is perhaps not entirely without ambiguity; but it would be hardly justifiable to deduce from a somewhat ill-chosen expression an intention to derogate from a rule of international law so important as that relating to the ratification of conventions. As regards the approval of the League of Nations, this is probably explained by Article 23 (e) of the Covenant, under which the Members of the League are bound to “make provision to secure and maintain freedom of communications and transit”. There is nothing to support the view that this approval, the purpose of which is quite different from that of ratification, should replace the latter rather than supplement it.

52  The Court, therefore, concludes that, even having regard to Article 338 of the Treaty of Versailles, it cannot be admitted that the ratification of the Barcelona Convention is superfluous, and that the said Convention should produce the effects referred to in that article independently of ratification.

53  But if any doubt still remained as to the interpretation of Article 338, it would be dispelled by the provisions of the Convention itself. The Convention may be regarded as “drawn up” by the Allied and Associated Powers acting under Article 338 of the Treaty of Versailles. Now, far from dispensing with ratification in general or declaring that ratification would not be necessary in order to bring about the effects which the Convention was intended to have under the Peace Treaties, the Powers assembled at Barcelona adopted provisions differing in no way from the clauses generally inserted in international conventions of this nature; such provisions clearly make the coming into force of the Convention as regards each of the Parties depend upon ratification. The provisions in question are as follows:

54  The Court, therefore, considers that, as the Barcelona Convention cannot be relied on as against Poland, the questions submitted must be solved solely on the basis of the Treaty of Versailles and without regard to the reference made in Article 338 of the latter Treaty to the Convention in question.

∗ ∗ ∗

55  Coming now to the first question, it may be recalled that the Six Governments ask for an answer in the affirmative, having regard (1) principally to Article 1 of the Statute annexed to the Convention of Barcelona, which is made applicable by Article 338 of the Treaty of Versailles; (2) subsidiarily, to certain articles of the Treaty of Versailles.

56  The Court, having, for the reasons given above, set aside the reference to the Barcelona Convention, will consider the question on the basis of the relevant articles of the Treaty of Versailles; it is on these articles alone that Poland relies in asking for a negative reply.

57  At the outset the Court should draw special attention to the general arrangement of Chapter III of the 2nd Section of Part XII of the Treaty of Versailles (Ports, Waterways and Railways); in this chapter are found all the articles that can have a bearing on this dispute.

58  This chapter contains three groups of articles. In the first, headed “(1) General Clauses”, are comprised the rules common to the four rivers, the Elbe, the Oder, the Niemen (Russsirom-Memel-Niemen) and the Danube, which form the subject of the chapter. The second group contains “Special Clauses relating to the Elbe, the Oder and the Niemen (Russstrom-Memel-Niemen)” ; whilst the third group is devoted to “Special Clauses relating to the Danube”. This arrangement clearly shows that the special clauses must not merely be read and interpreted in the light of the general clauses, but also that they find in the latter a natural complement.

59  It follows that, since Article 341, which places the Oder under the administration of an international commission, does not define the territorial limits of that administration, reference must be made to Article 331, which is the first in the chapter and which indicates the limits within which the river system of the Oder is internationalized.

60  It is true—and on this point the Polish representatives have insisted repeatedly and from different points of view that what is called the “régime of internationalization” of rivers, which as regards the Oder arises out of Articles 332 to 337 of the Treaty of Versailles, is not necessarily bound up with the administration by an international commission. But it is none the less true that, when a Commission is set up, it is natural to suppose that the territorial limits of the “régime” and of the “administration” by the Commission whose function is to make practical application of the principles of the régime, are coincident. Failing any contrary indication drawn from the context, it must therefore be understood that the competence of a river commission with such a function extends to all the internationalized portions of the river and river system.

61  Now Chapter III of Part XII of the Treaty of Versailles— except for Article 338 which does not apply in the present case—contains no indication which could justify any differentiation between the territorial limits of the régime defined in the first group of provisions (Articles 332 to 337) and those of the administration set up or provided for in the second group (Articles 340 to 345). On the other hand, a precise indication that the régime and administration are coincident is found in Article 344 (b) which defines the matters confided to the Commissions' powers in a manner exactly corresponding to the régime set out in Articles 332 to 337 (which under Article 345 are to govern pending the ratification of the new project) whilst Article 332 in its turn expressly refers to Article 331.

62  For all the reasons above given, the contention of Poland that the powers of the Commission should be limited to the river designated by the name of Oder must be discarded, even if such contention were not excluded for the reason relating to procedure already mentioned.

63  If the territorial limits of the régime of internationalization and those of the Commission's administration are the same as regards the Oder, it follows that the question before the Court must be determined according to the terms of Article 331, the text of which is as follows:

64  As regards the interpretation of this article, the only point at present in dispute is the meaning of the words “all navigable parts of these river systems which naturally provide more than one State with access to the sea”.

65  It is not disputed that the Warthe (Warta) and the Netze (Noteć) rise in Poland and that after flowing for a long way through Polish territory, they form the German-Polish frontier for a certain distance, and that then they pass into German territory, where the Netze (Noteć) flows into the Warthe (Warta) before that river joins the Oder.

66  The actual wording of Article 331 shows that internationalization is subject to two conditions: the waterway must be navigable and must naturally provide more than one State with access to the sea. These are the two characteristics—and this observation, as will be seen, is not without importance in relation to the question to be answered— by which a distinction has for a long while been made between the so-called international rivers and national rivers.

67  The navigability of the Warthe (Warta) and the Netze (Noted) in Polish territory being assumed, the Court has to deal only with the second condition, namely, whether that part of the two tributaries which is above the German frontier may be regarded as providing more than one State with access to the sea, in the sense of Article 331 of the Treaty of Versailles. The Polish Government contends that that part of the Warthe (Warta) and of the Netze (Noteć) respectively, which is in Polish territory provides only Poland with access to the sea and that therefore it does not fall within the definition of Article 331. On the other hand, the Six Governments maintain that the condition prescribed by that article is fulfilled; for the fact of providing more than one State with access to the sea concerns the waterway as such and not a particular part of its course.

68  It remains therefore to be considered whether the words “all navigable parts of these river systems which naturally provide more than one State with access to the sea” refer to tributaries and sub-tributaries as such, in such a way that if a tributary or sub-tributary in its naturally navigable course traverses or separates different States, it falls as a whole within the above definition; or whether they refer rather to that part of such tributary or sub-tributary which provides more than one State with access to the sea, in such a way that the upstream portion of the tributary or sub-tributary is not internationalized above the last frontier crossing its naturally navigable course.

69  In support of their argument, the Six Governments have submitted that the word part in Article 331 refers to river systems, and that a part of a river system, in the natural meaning of the terms, is one of the units composing the said system, namely, a tributary or sub-tributary. And they have endeavoured to support this interpretation by observing that, when in Article 331 it was intended to refer to a part of a waterway, the word section was used.

70  The Court fully appreciates the value of this argument, but considers that it is not alone sufficient to show that the intention of the contracting Parties was to internationalize tributaries and sub-tributaries as such.

71  Nor can the Court, on the other hand, accept the Polish Government's contention that, the text being doubtful, the solution should be adopted which imposes the least restriction on the freedom of States. This argument, though sound in itself, must be employed only with the greatest caution. To rely upon it, it is not sufficient that the purely grammatical analysis of a text should not lead to definite results; there are many other methods of interpretation, in particular, reference is properly had to the principles underlying the matter to which the text refers; it will be only when, in spite of all pertinent considerations, the intention of the Parties still remains doubtful, that that interpretation should be adopted which is most favourable to the freedom of States.

72  The Court must therefore go back to the principles governing international fluvial law in general and consider what position was adopted by the Treaty of Versailles in regard to these principles.

73  It may well be admitted, as the Polish Government contend, that the desire to provide the upstream States with the possibility of free access to the sea played a considerable part in the formation of the principle of freedom of navigation on so-called international rivers.

74  But when consideration is given to the manner in which States have regarded the concrete situations arising out of the fact that a single waterway traverses or separates the territory of more than one State, and the possibility of fulfilling the requirements of justice and the considerations of utility which this fact places in relief, it is at once seen that a solution of the problem has been sought not in the idea of a right of passage in favour of upstream States, but in that of a community of interest of riparian States. This community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian States in the user of the whole course of the river and the exclusion of any preferential privilege of any one riparian State in relation to the others.

75  It is on this conception that international river law, as laid down by the Act of the Congress of Vienna of June 9th, 1815, and applied or developed by subsequent conventions, is undoubtedly based. The relevant provisions of this Act are as follows:

76  If the common legal right is based on the existence of a navigable waterway separating or traversing several States, it is evident that this common right extends to the whole navigable course of the river and does not stop short at the last frontier; no instance of a treaty in which the upstream limit of internationalization of a river is determined by such frontier rather than by certain conditions of navigability has been brought to the attention of the Court.

77  It therefore remains to consider what is the position adopted in this matter by the Treaty of Versailles. In contradistinction to most previous treaties which limit the common legal right to riparian States, the Treaty of Versailles and the other Peace Treaties which almost textually reproduce the essential provisions of the former Treaty, adopted the position of complete internationalization, that is to say, the free use of the river for all States,. riparian or not. Article 332 grants freedom of navigation on waterways declared international in the previous article to all Powers on a footing of perfect equality. This provision would be inappropriate, if not arbitrary, if the freedom stopped short at the last political frontier.

78  The introduction of representatives of non-riparian Powers on the river commissions is not exclusively or mainly due to the desire to afford a greater measure of protection to the interests of landlocked States; it is rather to be explained by the interest that non-riparian States may have in navigation on the waterways in question. It would be difficult to understand why that interest should not be recognized where the question of reaching the ports of the last upstream State is involved. The interest of all States is in liberty of navigation in both directions.

79  In the same way, it must be noted that Article 331 mentions geographical points in fixing the limit from which rivers are internationalized, without taking any account of the last political frontier. Thus, the Elbe (Labe) is declared international from its confluence with the Vltava (Moldau) and the Vltava (Moldau) from Prague; the Oder (Odra) from its confluence with the Oppa; the Niemen (Russstrom-Memel-Niemen) from Grodno; the Danube from Ulm. It is not necessary for the Court to enquire what criteria served as a basis for this determination. It is sufficient to observe that points within the territory of the last upstream riparian State were everywhere chosen; this fact, which entirely corresponds with the principles of international fluvial law summed up above, seems hardly in accordance with the Polish contention which, if it were well-founded, should apply to the principal river as much as to the tributaries.

80  Finally, mention must also be made of Article 344 (c) which provides that the projects for revision of the existing international agreements and regulations to be prepared by the international commissions in accordance with Article 343 shall “define the sections of the river or its tributaries to which the international régime shall be applied”. This provision—which places the river and the tributaries on the same footing—is easily understood if, in the case of the tributaries as in the case of the river, the delimitation depends on certain material circumstances, the application of which involves a more or less discretionary element; but it would have no meaning if the limit of internationalization of the tributaries was determined by the last political frontier.

81  From all that precedes, the conclusion may be drawn that the Treaty of Versailles adopts the same standpoint as the Act of Vienna and the treaty law which applied and developed the principles of that Act. That is, moreover, what the Allied and Associated Powers expressly declared in their Reply to Germany on June l0th, 1919: “the provisions regarding internal navigation routes apply only to river systems which are, all international as defined by the Congress of Vienna and by later conventions”.

82  Article 331 must therefore be interpreted in the light of these principles, which leave no doubt that the internationalization of a waterway traversing or separating different States does not stop short at the last political frontier, but extends to the whole navigable river. The Court, having already observed that the territorial limits of the administration of the Oder Commission coincide with the territorial limits of internationalization referred to in Article 331, therefore reaches the conclusion that the jurisdiction of that Commission extends to those portions of the Warthe (Warta) and Netze (Noteć) which are situated in Polish territory.

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83  Besides the arguments already considered, the Parties submitted several others during the written and oral proceedings drawn from certain provisions of the Peace Treaties concerning other rivers, in particular the Moselle and the Danube, and from the proceedings for the establishment of the definitive Statute of the latter river. The Court, being of opinion that these arguments, drawn from independent provisions and diplomatic negotiations, cannot modify the conclusion which it has reached by means of a direct interpretation of the provisions applicable in the particular case, does not think it necessary to deal with these arguments.

84  One exception, however, must be made as regards the argument which the Polish Government endeavoured to draw from the Reply of the Allied and Associated Powers to the Austrian Delegation, in which the following passage is to be found:

“The Allied and Associated Powers have considered whether the international régime should be extended, as the Austrian Delegation proposes, to the whole navigable course of the tributaries of the Danube, of the Drave, of the Save, of the Theiss. It has not appeared to them desirable for the moment to push internationalization further than the definition of Article 291 (286) provides for, and to internationalize a navigable part of a river system which does not naturally provide more than one State with access to the sea.”

85  Taken in itself, and literally, this passage might seem to express the idea underlying the Polish interpretation of Article 331 of the Treaty of Versailles. But if Austria's demand be read attentively and if the territorial conditions of the course of these tributaries be considered, it appears that what Austria asked for and the Powers refused to admit was the internationalization of even purely national tributaries or of tributaries the national status of which was not yet finally established. If this is so, the refusal “to internationalize a navigable part of a river system which does not naturally provide more than one State with access to the sea” would simply mean a refusal to go beyond the interpretation which the Court has just given to Article 331 of the Treaty of Versailles. The Court is unable to find in the reply given to the Austrian Delegation any sufficient ground for a different interpretation.

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86  The Court having given an affirmative reply to the first question, must also answer the second.

87  The Special Agreement does not ask the Court to fix the upstream limits of the jurisdiction of the Oder Commission, but only to say what is the law which should govern their determination. It follows from what has been said that this law is to be found in Article 331 of the Treaty of Versailles.

88  According to this article, the régime of internationalization and therefore the jurisdiction of the Commission includes “all navigable parts of these river systems which naturally provide more than one State with access to the sea, with or without transhipment from one vessel to another; together with lateral canals and channels constructed either to duplicate or to improve naturally navigable sections of the specified river systems, or to connect two naturally navigable sections of the same river”. It follows that the jurisdiction of the Commission extends up to the points at which the Warthe (Warta) and the Netze (Noteć) cease to be either naturally navigable or navigable by means of lateral channels or canals which duplicate or improve naturally navigable sections or connect two naturally navigable sections of the same river.

89  FOR THESE REASONS,

The Court,

having heard both Parties,

by nine votes to three,

gives judgment to the following effect:

1. (1)  Under the provisions of the Treaty of Versailles, the jurisdiction of the International Commission of the Oder extends to the sections of the Warthe (Warta) and Netze (Noteć) which are situated in Polish territory.

2. (2)  The principle laid down, which must be adopted for the purpose of determining the upstream limits of the Commission's jurisdiction, is the principle laid down in Article 331 of the Treaty of Versailles.

Done in English and French, the English text being authoritative, at the Peace Palace, The Hague, this tenth day of September, nineteen hundred and twenty-nine, in eight copies, one of which is to be placed in the archives of the Court and the others to be forwarded to the Agents of the Governments of His Britannic Majesty in Great Britain, of Czechoslovakia, Denmark, France, Germany, and Sweden, as also to the Agent of the Government of Poland.

(Signed) D. Anzilotti,

President.

(Signed) J. Lopez Oliván,

Deputy-Registrar.

MM. de Bustamante and Pessôa, judges, and Count Rostworowski, judge ad hoc, declaring that they were unable to concur in the judgment delivered by the Court, and availing themselves of the right conferred on them by Article 62 of the Rules of Court, attached to the judgment this statement of their dissent.

M. Huber, Vice-President, while agreeing with the judgment, felt it necessary to express certain reservations concerning the reasons which led the Court to exclude all application of the Statute annexed to the so-called Convention of Barcelona. On this subject, he presented the following observations.

(Initialled) D. A.

(Initialled) J. L. O.