Case Relating to the Territorial Jurisdiction of the
International Commission of the River Oder
(Series A No 23 -Series C No 17-11)
Judgment of September 10th, 1929
Germany, Denmark, France, Great Britain, Sweden, Czechoslovakia, & Poland.
Document Instituting Proceedings
Special Agreement dated October 30th, 1928, filed with the Registry on November 29th, 1928.
Agents and Councel
Sir Cecil Hurst, Mr. O'Malley (Great Britain), MM. Seeliger (Germany), Basdevant (France), Scavenius, Hergel (Denmark), Adlercreutz (Sweden), Plesinger-Bozinov (Czechoslovakia), De Visscher, Winiarski (Poland).
Composition of the Court
MM. Anzilotti, President; Huber, Vice-President; Loder, Nyholm, de Bustamante, Altamira, Oda, Pessôa, Hughes, Judges; Negulesco, Wang, Deputy-Judges; Count Rostworowski, Jzrdge ad hoc.
The judgment was given by nine votes to three.
POINTS OF LAW
Special Agreement (impossibility for one Party to modify the terms of the Special Agreement) - Evidence (impossibility to invoke preparatory work against Parties which have not taken part in the conference) - River law (national and international rivers; river commissions) - Treaties (ratification; use of a provision in an earlier treaty to invoke against a State a treaty which it has not ratified) - Interpretation of treaties (text; treaty as a whole; intention of the Parties; preparatory work: interpretation favourable to the freedom of States) - Jurisdiction of the Court (right to examine certain questions ex officio).
By virtue of the first paragraph of Article 331 of the Treaty of Versailles, the Oder, from its confluence with the Oppa, was, together with the Elbe, the Niemen and the Danube, declared an international river. By the second paragraph of the same Article, were also declared international "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." (1) Article 341 of the Treaty of Versailles provides that "[t]he Oder shall be placed under the administration of an International Commission," (2) composed of representatives of Poland, Prussia, Czechoslovakia, Great Britain, France, Denmark and Sweden. Article 343 provides that the Commission shall proceed immediately to prepare "a project for the revision of the existing international agreements and regulations" (3) and Article 344 states that this project shall in particular "define the sections of the river or its tributaries to which the international régime shall be applied." (4)
The International Commission of the Oder, from its inauguration, concerned itself with the intended project. In the course of its discussions, differences of opinion arose between the Polish delegate on the one hand and the other members of the Commission on the other hand over the question at what point should the jurisdiction of the Commission end in respect of two tributaries of the Oder, the Netze (Noteć) and the Warthe (Warta). In the view of Poland, the limit of jurisdiction should be situated at the point where each river crossed the Polish frontier, while the other members of the Commission considered that the limit should be determined by the point where each river ceased to be navigable, even if that was situated within Polish territory.
With a view to resolving the dispute, the conciliation procedure laid down in Article 376 of the Treaty of Versailles was put into operation, by which the opinion of the Advisory and Technical Committee for Communications and Transit of the League of Nations could be requested. The opinion given by the Committee was, however, rejected by Poland while Germany reserved its position. Faced with a deadlock,the Governments represented on the International Commission of the Oder decided to draw up a Special Agreement which is the origin of the present case.
The Special Agreement asked the Court to reply to 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?" (5)
SUBMISSIONS OF THE PARTIES
In brief, the six Governments ask the Court to declare that the jurisdiction of the International Commission extends to the sections of the Warthe and the Netze situated in Polish territory, if these sections come within the definition of navigable waterways of international concern contained in the Barcelona Statute of 1921, or, in the alternative, if these sections fulfill the conditions of navigability laid down in Article 331 of the Treaty of Versailles. With regard to second question, they ask the Court to declare that the upstream limits of this jurisdiction should include all sections of the above two tributaries which are covered either by Article 331 of the Treaty of Versailles or by the provisions of the general definition given in the Barcelona Statute. Certain alternative submissions are also made with regard to this second question.
For its part, the Polish Government asks the Court to declare that the jurisdiction of the International Commission does not extend to those sections situated in Polish territory. It does not, therefore, make a submission on the second question. Asked to file such submission, by an Order of the Court of August 29th, 1929, (6) the Polish Government expresses its opposition to the simultaneous application to this question of the definitions contained in the Barcelona Statute and the Treaty of Versailles; it states its preference for the definition given in the former instrument.
SUMMARY OF THE JUDGMENT
Before presenting any argument on the merits of the case, the Parties, in fulfillment of an Order of the Court dated August 18th, 1929, (7) argued a preliminary question relating to the evidence to be presented. The six Governments contested the right of Poland to rely on the preparatory work of the Treaty of Versailles. By its Order of August moth, 1929, the Court decides to exclude these documents as evidence, since three of the Parties to the present case had not taken part in the Conference of Paris and that, consequently, the preparatory work of that Conference could not be used to determine, so far as they are concerned, the import of the Treaty of Versailles. The Court stated that "in any particular case, no account can be taken of evidence which is not admissible in respect of certain of the Parties to that case." (8) Before answering the questions put to it by the Special Agreement, the Court must deal with two points raised by the Polish Agent in the course of the oral proceedings.
The Agent has first of all noted that Article 341 of the Treaty of Versailles states simply: "The Oder shall be placed under the administration of an International Commission." From the fact that no mention is made therein of the tributaries of the river, the Polish Agent deduces that they are not put under the authority of the Commission. The Court points out for its part that the Special Agreement under which the case has been brought before it expressly mentions the Warthe and the Netze in asking the Court over which sections of these rivers the jurisdiction of the Commission extends. "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." (9)
The second point concerns the applicability to the present dispute of the Statute annexed to the Barcelona Convention of April 20th, 1921, relating to the régime of navigable waterways of international concern; it is on this instrument that the six Governments base their main argument, relying only subsidiarily on the Treaty of Versailles. It is true that Article 338 of this Treaty provides that certain of its provisions relating to rivers shall be replaced by a "General Convention drawn up by the Allied and Associated Powers," (10) it is also true that, in the unanimous opinion of the Parties to the case, the Convention thus envisaged is indeed the Barcelona Convention. But the Polish Agent has recalled in his address to the Court that his country has ratified neither the Convention nor the Statute of Barcelona which cannot therefore be invoked against Poland. The six Governments asked the Court to reject this objection in limine, since it had not been raised in the written pleadings. The Court, however, is of opinion that "[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." (11)
The question thus is whether the undertaking assumed by Poland under Article 338 of the Treaty of Versailles to participate in the preparation of a new Convention is sufficient to render the Barcelona Convention applicable to the extent envisaged by that Article, even though Poland has not ratified it. The Court finds 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." (12) There is no reason to believe that Article 338 intended to derogate from such an important rule of international law. This conclusion is confirmed by the Articles of the Barcelona Convention itself, dealing with ratification. The Court thus concludes on this point that the Barcelona Convention cannot be invoked against Poland and that the questions put to the Court must be resolved exclusively on the basis of the Treaty of Versailles.
Turning to the examination of the first question of the Special Agreement, the Court rejects at the outset the Polish argument according to which the area of jurisdiction of the International Commission of the Oder is not necessarily identical with the area of application of the international régime in respect of this river. On the contrary, it is natural to suppose, taking account especially of the relevant chapter of the Treaty as a whole, that the territorial limits of the "régime" are coincident with those of the "administration" of this régime by the Commission.
In order to answer the first question -does the jurisdiction of the Commission extend to the sections of the tributaries of the Oder situated in Polish territory? - the Court has to interpret Article 331 of the Treaty of Versailles and, more particularly, its second paragraph, the only disputed point being the meaning of the expression "all navigable parts of these river systems which naturally provide more than one State with access to the sea." According to this Article, (13) two conditions have to be fulfilled for any part of the Warthe or the Netze to have an international character: the part must be navigable and it must naturally provide more than one State with access to the sea. These are the two characteristics which distinguish international from national rivers. As the navigability of the sections in question is not disputed, it remains only to determine whether they naturally provide more than one State with access to the sea. Poland considers that the sections of the Warthe and the Netze which are in Polish territory provide only Poland with access to the sea, whereas the six Governments maintain that it is enough that the river as a whole provides access to the sea for more than one State for this quality to apply to the sections situated above the last political frontier.
Poland claims, furthermore, that, in case of doubt, a provision must be interpreted in a manner which imposes the least restriction on the freedom of States. In the Court 's view, "[t]his 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." (14) It will be only when, after the exhaustion of all other means of interpretation, the intention of the Parties still remains doubtful, that the interpretation should be adopted which is most favourable to the freedom of States.
In the present case, it is enough to go back to the general principles of international river law to find that, if the right of upstream States to free access to the sea has, as Poland maintains, played a considerable part in the formation of river law, the basic concept which dominates this area of law is that of a community of interests of riparian States which in itself leads to a common legal right. This concept is found already in the Act of the Congress of Vienna of June 9th, 1815 and it has inspired subsequent instruments. Such a community of interests, however, extends to the whole navigable course of the river and does not stop at the last political frontier. As for the Treaty of Versailles, it has only enlarged the community of riparian States to cover all users of a river, riparians or not, thus making it completely international. The presence of representatives of non-riparian States in the international commissions charged with administering an international waterway is not exclusively due to the desire to protect the interests of landlocked States; it is rather the demonstration of the interest which these States have in the navigation on the river in general. There is no reason why this interest should stop at the last political frontier if the river remains navigable above this. It must be noted that Article 331 itself fixes, for other rivers, limits of application of the international régime which are situated well inside the last political frontier.
The Court refrains from examining a certain number of additional arguments advanced by the Parties with regard to the first question, "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 . . . " (15 ) It confines itself to refuting an argument drawn by Poland from the Reply given by the Allied and Associated Powers to the Austrian Delegation in which they opposed, the internationalization of a river system "which does not naturally provide more than one State with access to the sea," (16) since that case concerned the tributaries of an international river situated entirely within the territory of a single State.
Having replied affirmatively to the first question put to it, the Court must also answer the second. It is a question of the legal factors involved in the determination of the points upstream of the Polish frontier to which the jurisdiction of the International Commission of the Oder extends. The Court finds these factors in Article 331 of the Treaty of Versailles which determines the limits of the international régime. It follows from this 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." (17)
The Court gives judgment that
"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) 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." (18)
DECLARATION OF MM . DE BUSTAMANTE, PESSÔA AND COUNT ROSTWOROWSKI
These judges, who are unable to concur in the judgment, attach to it a statement of their dissent.
OBSERVATIONS OF M. HUBER
M. Huber does not subscribe to the reasons which lead the Court to exclude all application of the Barcelona Convention and of the Statute annexed to it. He finds it difficult to admit that the carrying out of the imperative provision of Article 338 of the Treaty of Versailles, namely, the replacement of the régime provided for in Articles 332 to 337 by a general convention, "can depend on the ratification of that convention as such by States which have already ratified the Treaty of Versailles, and therefore on an act left to the free will of each of the Parties." (19) However, the replacement of Article 331 is not provided for by Article 338 and it seems difficult to admit it by implication.
The Court has thus correctly stated that the limits of the territorial jurisdiction of the International Commission of the Oder are determined exclusively by Article 331 of the Treaty of Versailles.
(1) P. 24.
(2) P. 17.
(3) P. 13.
(4) P. 29.
(5) P. 6.
(6) Pp. 44-46.
(7) Pp. 38-40.
(8) P. 42.
(9) P. 18.
(10) P. 19.
(12) P. 20.
(13) See above, p. 538.
(14) P. 26.
(15) P. 30.
(17) P. 31.
(18) Pp. 31-32.
(19) P. 33.