Case Relating to the Jurisdiction of the European Commission of the Danube Between Galatz and Braila
(Series B No 14 - Series C Nos 19IV(I), (II), (III), (IV))
Advisory Opinion of December 8th, 1927
Request for Advisory Opinion
made by the Council of the League of Nations on December 9th, 1926.
Tstates Taking Part in the Proceedings
France, Great Britain, Italy, Roumania.
Representatives
Sir Douglas Hogg (Great Britain), MM. Basdevant (France), Rossetti (Italy), Contzesco, De Visscher, Politis, Millerand (Roumania).
Composition of the Court
MM. Huber, President; Loder, Former President; Lord Finlay, MM. Nyholm, Moore, Altamira, Oda, Anzilotti, Judges; Beichmann , Negulesco, Deputy-Judges.
The advisory opinion was given by nine votes to one.
POINTS OF LAW
River law (international rivers; river commissions; freedom of navigation; equality of flags) - Interpretation of treaties (clear text; preparatory work; authentic interpretation; ordinary meaning) - International organs - Treaties (existence of a treaty link; effects with regard to third States; treaties and sovereignty) - Customary law ("tolerance" as distinct from a customary rule; formation of a customary rule).
FACTS
The Treaty of Paris of 1856 subjected the Danube to an international régime by applying the principles of river law embodied in the Final Act of the Congress of Vienna in 1815. At the same time, the Treaty established two commissions: a riparian Commission which was to be permanent but the Statute of which never entered into force, and a European Commission, intended as a temporary technical body but the mandate of which was extended and widened by later treaties. The latter Commission was originally composed of representatives of Austria, France, Great Britain, Prussia, Russia, Sardinia and Turkey, the last mentioned being the territorial sovereign of the mouths and lower reaches of the river. The Treaty of Berlin of 1878 granted a seat on the Commission to Roumania, now independent, and at the same time extended to Galatz, in Roumanian territory, the powers of the Commission, which it had to exercise "in complete independence of the territorial authority." (1) The Treaty of London of 1883 extended this jurisdiction to Braila, also in Roumanian territory. Roumania had neither signed nor ratified this Treaty, the Powers having refused to admit the Roumanian delegates to the drafting conference other than in a consultative capacity. It was then that an uncertain situation with respect to the powers of the Commission arose, a situation which lasted until the war of 1914-1918 and which finally led to the request for the present opinion.
The Treaty of Versailles declared the Danube an international river from Ulm to the sea and confirmed the European Commission in the powers which it had possessed before the war. However, as a "provisional measure," only the representatives of Great Britain, France, Italy and Roumania were to constitute the Commission. In accordance with Article 349 of the Treaty, an international conference met at Paris to draw up the Definitive Statute of the Danube which was signed on July 23rd, 1921. The relevant articles of this Statute ran as follows:
Article 5. The European Commission retains the powers which it possessed before the war. No alteration is made in the rights, prerogatives and privileges which it possesses in virtue of the treaties, conventions, international acts and agreements relative to the Danube and its mouths.
Article 6. The authority of the European Commission extends, under the same conditions as before, and without any modification of its existing limits, over the maritime Danube, that is to say, from the mouths of the river to the point where the authority of the International Commission commences. (2)
By the terms of Article 9 of the Statute, the jurisdiction of the International Commission, a new body, extended from Ulm to Braila.
From the time of the Paris Conference, however, differences began to appear between, on the one hand, the Roumanian delegate on the European Commission and, on the other hand, the British, French and Italian delegates, concerning the powers of the Commission in the sector Galatz-Braila. After fruitless discussions, France, Great Britain and Italy set in motion the conciliation procedure laid down in the international agreements in force, namely to submit the matter to the Advisory and Technical Committee for Communications and Transit of the League of Nations. This Commission nominated a special Committee of three members who carried out a detailed enquiry. Both the report presented by this Committee as well as the resolutions adopted by the Commission on the basis of it were opposed by Roumania. The Special Committee thereupon held further consultations with the members of the European Commission of the Danube and obtained their agreement to submit to the Court for an advisory opinion the question at issue, a proposal to bring the matter before the Court for judgment having been rejected by the Roumanian delegate.
REQUEST FOR THE ADVISORY OPINION
(1) Under the law at present in force, has the European Commission of the Danube the same powers on the maritime sector of the Danube from Galatz to Braila as on the sector below Galatz? If it has not the same powers, does it possess powers of any kind? If so, what are these powers? How far upstream do they extend?
(2) Should the European Commission of the Danube possess either the same powers on the Galatz-Braila sector as on the sector below Galatz, or certain powers, do these powers extend over one or more zones, territorially defined and corresponding to all or part of the navigable channel to the exclusion of other zones territorially defined, and corresponding to harbour zones subject to the exclusive competence of the Roumanian authorities? If so, according to what criteria shall the line of demarcation be fixed as between territorial zones placed under the competence of the European Commission and zones placed under the competence of the Roumanian authorities? If the contrary is the case, on what non-territorial basis is the exact dividing line between the respective competence of the European Commission of the Danube and of the Roumanian authorities to be fixed?
(3) Should the reply given in (I)be to the effect that the European Commission either has no powers in the Galatz-Braila sector, or has not in that sector the same powers as in the sector below Galatz, at what exact point shall the line of demarcation between the two régimes be fixed?" (3)
SUMMARY OF THE ADVISORY OPINION
The Court should answer the first question "according to the law at present in force." This law is basically the Definitive Statute of 1921 to which all the members of the European Commission are parties. During the oral proceedings, it was claimed that the Conference which drew up the Statute exceeded the powers conferred on it by the Treaty of Versailles. "But in the opinion of the Court, as all the Governments concerned in the present dispute have signed and ratified both the Treaty of Versailles and the Definitive Statute, they cannot, as between themselves, contend that some of its provisions are void as being outside the mandate given to the Danube Conference under Article 349 of the Treaty of Versailles." (4)
The Definitive Statute recites that the entire Danube between Ulm and the sea is placed under an international régime, that the jurisdiction of the International Commission extends from Ulm to Braila (Article 9) and that the jurisdiction of the European Commission extends from the mouths of the river to the point where that of the International Commission begins (Article 6). Unless a restriction on the jurisdiction of the European Commission can be deduced from the terms of Article 5 of the Statute, it must follow from the above that its jurisdiction extends as far as Braila. To claim that these terms exclude the European Commission from exercising any jurisdiction between Galatz and Braila would amount moreover, to a conflict with the provisions of the Statute which by placing the entire navigable Danube under an international régime, thereby exclude the possibility of any part of the navigable section falling outside the jurisdiction of one or the other Commission.
However, Article 5 of the Statute does not define directly the powers of the Commission; it only preserves the situation existing before the war and retains all the rights which the Commission enjoys under earlier instruments. Article 6, for its part, provides for the exercise of the Commission 's jurisdiction "under the same conditions as before, and without any modification of its existing limits." Thus it might be asserted that this jurisdiction, while extending from the sea to Braila, was not exercised in the same manner in all places.
It is not possible to accept the argument, however, that by this reference the Definitive Statute was designed to perpetuate the divergence of views which had arisen in the past. Such an argument would amount to the maintenance over the Danube of an uncertain and precarious situation. It is quite reasonable, on the other hand, to suppose that the Statute was intended to settle the question of the limits of the jurisdiction of the Commission on the basis of the status quo as established in the practice during the pre-war period. Although Roumania has claimed that the Treaty of London does not bind it, it is a fact that during this period the Commission exercised some powers on the sector in question. The Court thus concludes on this point that the relevant texts refer to the conditions which in fact prevailed in this sector before the war, and that their effect is to maintain and confirm these conditions.
The Court emphasizes that the point of view which it has adopted is entirely based on the terms of the Statute and on the historical facts on which this Statute rests, without any reference to preliminary discussions or drafts. It reaffirms its constant principle to the effect that there is no occasion to have recourse to the preparatory work in order to construe a text sufficiently clear in itself. Furthermore, in the present case, the preparatory work fully confirms the conclusion of the court.
The Court then analyses the arguments in the case which may be summed up as follows: France, Great Britain and Italy contend that all the powers of the Commission are exercised in the sector Galatz-Braila in the same way as they are in the sector below Galatz. According to the Roumanian contention on the other hand, the Commission possesses all the rights conferred on it by international agreements between the sea and Galatz but in the disputed sector it possesses only strictly technical powers (power of keeping the river in a state suitable for navigation, pilotage service) and no juridical powers, especially not the power of enforcing regulations.
This contention is based on the following arguments: 1) the genesis of Article 6 of the Statute, 2) the "Protocole interprétif" (Interpretative Protocol) and the draft modus vivendi of 1922, 3) the principle of sovereignty.
With respect to 1), Roumania claims that Article 6 is only a new form of an earlier draft which conferred only technical powers on the Commission in the sector in dispute. The Court, however, does not find in the preparatory work anything which might weaken the interpretation of the text of Article 6. The Court recalls that "preparatory work should not be used for the purpose of changing the plain meaning of a text." (5) With reference to the history of the relevant articles of the Treaty of Versailles, also relied upon by Roumania, the "record of the work preparatory to the adoption of these articles being confidential and not having been placed before the Court by, or with the consent of, the competent authority, the Court is not called upon to consider to what extent it might have been possible for it to take this preparatory work into account." (6)
With respect to 2), the Interpretative Protocol was drawn up during the Conference of Paris by the delegates to the European Commission alone. There was from the beginning disagreement on its true meaning and scope among these delegates as well as among the four interested Powers. The Roumanian interpretation of this document cannot bind the Parties to the Statute unless, as Roumania contends, the Protocol is to be considered as an authoritative interpretation of the Statute. This, however, is not the case: the Protocol is not an international agreement between the Parties to the Statute, it is not annexed thereto or even mentioned therein, it is thus not part of it; at best it can be considered as a part of the preparatory work, and, as such, it cannot prevail against the Definitive Statute. It does not even represent a decision of the Commission itself, which in any case had no power to abandon the functions entrusted to it by international treaties.
As for the so-called modus vivendi of 1922 between the Roumanian delegate on the one hand and the French, Italian and British delegates on the other, this never passed beyond the stage of a mere draft agreement.
With respect to 3), Roumania claims that the extension of the powers of the Commission as far as Braila can be based only on the Treaty of London of 1883 which does not bind it; in these circumstances, any such extension would constitute a violation of its sovereign rights. The Court is unable to share this opinion. According to its construction, Article 6 only confirms the pre-war situation of fact in the contested sector, whatever this situation might have been. By signing and ratifying the Statute, Roumania has accepted the continuation of the powers of the Commission within such limits. The Court reiterates the principle which it has declared in earlier cases, namely that "restrictions on the exercise of sovereign rights accepted by treaty by the State concerned cannot be considered as an infringement of sovereignty." (7)
Roumania also argues that the exercise in the past of certain powers by the European Commission in the contested sector was based on mere tolerance by the territorial State rather than on a legal title. Since Article 6 of the Statute has converted this practice into a legal right, the Court has no need to examine whether a continuous practice could transform into a legal right a situation based on mere tolerance. Having thus answered the Roumanian arguments, the Court examines whether the European Commission has effectively exercised, before the war, the same powers between Galatz and Braila as below Galatz. Before making this enquiry, it considers the history of river law and, in particular, the law relating to the Danube. All the international instruments concerning the Danube destroy the Roumanian argument of a distinction between the technical and the juridical powers of the Commission. The two categories have been considered to form a necessary unity, the jurisdictional powers being corollary to the technical powers, which were to be protected by sanctions.
A detailed study of the powers conferred on the Commission by the treaties then in force and a comparison of these with the powers which the Commission has effectively exercised in the disputed sector during the period in question leads the Court to the conclusion that before the war the Commission had the same powers with respect to this sector as it had in the sector below Galatz. It follows - in the light of the interpretation given by the Court to Article 6 of the Statute - that, according to the law presently in force, the Commission has the same powers in these two sectors.
With regard to the upstream limit of the powers of the European Commission the Court remarks that this lies at the downstream limit of the powers of the International Commission, in words of the Statute - "at Braila." Thus the possibility that the two Commissions may exercise concurrent powers over any one sector must be excluded. Since Braila is a seaport it is reasonable to assume that this port is part of the sector entrusted to the European Commission and that the dividing line between the powers of the two Commissions, by virtue of Article 6 of the Statute, is situated immediately upstream of Braila.
Since the Court has given an affirmative answer to the first question, it must also answer the second and define the basis, territorial or other wise, on which the dividing line between the respect authority of the European Commission and Roumania is to be fixed in the sector Galatz-Braila.
The Court rejects the Roumanian argument whereby this limit is of a territorial nature and is formed by transverse lines drawn across the river upstream and downstream of each port, thus creating sectors wholly subject to the Roumanian authorities. There is no basis for such a system in the texts nor in the régime of other international rivers. Furthermore, it would be inconceivable that the territorial jurisdiction of the Commission should be interrupted by port sectors exclusively subject to the territorial authorities.
In a situation in which an in international organ, bestowed with a large measure of independence but not with exclusive territorial sovereignty faces the territorial sovereign, the Court chooses the functional criterion to limit their respective powers. Basing itself on the two principles laid down in the treaties, namely the principles of freedom of navigation and equality of flags, the Court establishes the following two criteria: 1) in the ports Galatz and Braila, "the European Commission alone has jurisdiction over navigation, that conception being taken mean any movement of vessels or forming part of their voyage"; (8) 2) "with regard to vessels moored or otherwise at rest in these ports, and with regard to the use by vessels of the installations and services of these ports . . . the powers of regulation and jurisdiction belong to the territorial authorities; the right of supervision, with a view to ensuring freedom of navigation and equal treatment of all treat flags, belongs to the European Commission." (9) The Court, however, admits that it is not possible to make a more precise delimitation of powers except on the basis of special regulations.
Its affirmative reply to the first question makes it unnecessary for the Court to examine the third question put to it.
OBSERVATIONS OF M. NYHOLM
Although agreeing with the conclusions reached by the Court, M. Nyholm disagrees with it over the interpretation of the relevant instruments. The intention of both the Treaty of Versailles and the Definitive Statute was to perpetuate the system which had worked satisfactorily before the war; it was not to fix a definite limit to the powers of the European Commission. Article 9 in particular does not fix any such limit, either at Braila or at Galatz. Thus the only way to obtain a positive answer to the question of the extent of the powers of the Commission as far as Braila, both territorially and materially, is to carry out an investigation into the factual situation as this existed in the past. Since Roumania has voluntarily become a Party to the Treaty of Versailles, it cannot consider such a result to be in any way a diminution of its sovereignty.
OBSERVATIONS OF MR. MOORE
Mr. Moore considers that the Definitive Statute provides a clear answer to all the questions put to the Court. In stating that the powers of the European Commission extend to the same sector of the Danube as pre-war, that those powers terminate at the place where the powers of the International Commission commence and that these latter powers extend from Ulm to Braila, the Statute clearly states that before the war the powers of the European Commission extended as far as Braila. Furthermore, since the Statute makes no distinction between the powers which the European Commission exercises between Galatz and Braila and those which it exercises below Braila, there is no need to investigate the facts with a view to finding reasons for rejecting the argument to the contrary advanced by Roumania.
DISSENTING OPINION OF M. NEGULESCO
While disagreeing with the conclusions of the Court, M. Negulesco admits that the correct interpretation of the Statute requires knowledge of the factual situation before the war, as well as of the international instruments relating to the Danube.
The European Commission of the Danube was established in 1856 as a purely temporary and technical organ, powers of a jurisdictional character being left to the territorial authorities. The Treaty of Berlin in 1878 extended the powers of the Commission, to which Roumania was admitted, as far as Galatz. But this Treaty certainly did not authorize its signatories later to extend the powers of the Commission to other sectors of the Danube. This could be done only with the agreement of Roumania which was then a sovereign State. Thus Roumania ought to have been invited to take part in the Conference of London, which was charged with the task of drawing up a new treaty, on a basis of equality with the other participating Powers. For reasons which M. Negulesco expounds at length, Roumania did not take part in that Conference and has neither signed nor ratified the Treaty of London of 1883 which extended the powers of the Commission as far as Braila. Roumania has always considered that for this reason the Treaty, and more particularly the provision relating to the extension of the powers of the Commission, was not binding on it; at the same time, it did not deny that the contracting Parties were bound with respect to each other. Even though Roumania has not subsequently opposed the exercise by the Commission of certain technical powers in the disputed sector, its representative has on the other hand always objected to any exercise of a jurisdictional power in this sector.
Thus it cannot be claimed that a customary rule could have been formed, since the necessary conditions for such a formation were lacking, namely "immemorial usage consisting both of an uninterrupted recurrence of accomplished facts in the sphere of international relations and of ideas of justice common to the participating States and based upon the mutual conviction that the recurrence of these facts is the result of a compulsory rule." (10) A customary rule cannot be based on isolated facts or an act of tolerance.
If this is the case, is it possible to admit that the Definitive Statute has not taken account of this pre-war situation? M. Negulesco denies such an argument by relying at length upon the preparatory work, the Interpretative Protocol, the modus vivendi of 1922 and the sovereignty of Roumania.
M. Negulesco then proceeds to show to what degree the Statute differs from the Treaty of Versailles, itself the basic instrument applicable in the case. While Article 9 of the Statute designates Braila as the terminal point of the authority of the new International Commission, the Treaty of Versailles has no counterpart, merely stating that the Danube shall be placed under the authority of the International Commission "from the point where the competence of the European Commission ceases." Since, according to the terms of the Treaty of Berlin, this point is situated at Galatz, it follows that the authority of the International Commission must extend from Ulm to Galatz, thus leaving to the authority of the European Commission the sector from Galatz to the sea. The Conference of Paris, which drew up the Definitive Statute, did not have the right to modify the Treaty of Versailles.
M. Negulesco therefore concludes that, according to the law in force, the European Commission does not possess any powers over the Galatz-Braila sector, its powers being limited to the lower Danube downstream of Galatz excluding that port, and that the Galatz-Braila sector falls under the jurisdiction of the International Commission.
DIETRICH KAPPELER
FOOTNOTES
(1) Article 53 of the Treaty of Berlin.
(2) P. 24.
(3) P. 7.
(4) P. 23.
(5) P. 31.
(6) P. 32.
(7) P. 36.
(8) P. 65.
(9) P. 67.
(10) P. 105.