COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE A/IB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 46

AFFAIRE DES ZONES FRANCHES
DE LA HAUTE-SAVOIE
ET DU PAYS DE GEX

ARRÊT DU 7 JUIN 1932
XXVme SESSION

1932

XXVth SESSION
JUDGMENT OF JUNE 7th, 1932

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 46

CASE OF THE FREE ZONES
OF UPPER SAVOY
AND THE DISTRICT OF GEX

LEYDE LEYDEN
SOCIETE D’EDITIONS A. W. SIJTHOFF’S
A. W. SIJTHOFF PUBLISHING COMPANY
96

PERMANENT COURT OF INTERNATIONAL JUSTICE

1932.

TWENTY-FIFTH SESSION. June 7th.
; | General list:
June 7th, 1932. No. 32.

CASE OF THE FREE ZONES OF
UPPER SAVOY AND THE DISTRICT OF GEX

Interpretation of Article 435, paragraph 2, of the Treaty of
Versailles with its Annexes (Swiss note of May 5th, 1919; French
note of May r8th, 1919): has this provision abrogated, or is itt -
intended to lead to the abrogation of, the ‘‘old stipulations” regarding
the following free zones : the zone of the Pays de Gex; the ‘‘Sar-
dinian” zone; the zone of Saint-Gingolph and the “Lake” zone?
(Treaties of Paris of May 30th, 1814, and November 20th, 1815 ; Act
of the Congress of Vienna of June 9th, 1815; declarations of the
Powers of March 20th and 29th and November 2oth, 1815;
‘Protocol of. November 3rd, 1815; Acts of accession of the Helvetic
Diet of May 27th and August reth, 18175; Treaty of Turin of
March 16th, 1816; Manifesto, eic., of September oth, 1829.)

Settlement of the “‘new régime’ for the free zones: New pleas
submitted in the last phase of the proceedings (the rebus sic stan-
tibus clause) : admissibility of these pleas.—Importations free of duty :
power of the Court to regulate this matïter.—Power of the Court,
having declared that it has no jurisdiction to undertake a part of
the task entrusted to it, to deliver a judgment.—Limitations upon
the Court's jurisdiction. vesulting from the sovereignty of the States
concerned in the case.— Customs cordon and control cordon.

JUDGMENT.

Before: MM. ANZILOTTI, acting as President ; LODER, ALTAMIRA,
Opa, Huser, Sir Ceci. Hurst, MM. KErrocc,
YOVANOVITCH, BEICHMANN, NEGULESCO, Judges;
M. Drevrus, Judge ad hoc.
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX _ 97

In the case concerning the free zones of Upper Savoy and
the District of Gex,

Between

the Government of the French Republic, represented by ~
M. J. Basdevant, Legal Adviser to the French Ministry for
Foreign Affairs, Professor of the Faculty of Law at the
University of Paris,

and

the Government of the Swiss Confederation, represented by
H.E. M. A. de Pury, Swiss Minister to the Netherlands, and
by M. P. Logoz, Member of the Swiss National Council, and
Professor at the University of Geneva,

The Court,
composed as above,
delivers the following judgment :

By a Special Agreement, which was signed at Paris on
October 30th, 1924—the ratifications being exchanged on
March 21st, 1928—and which was filed with the Registry
of the Court under cover of letters dated March 2oth, 1928,
from the Ministers of France and Switzerland at The Hague, the
Governments of the French Republic and of the Swiss Con-
federation, having been unable to agree in regard to the inter-
pretation to be placed upon Article 435, paragraph 2, of the
Treaty of Versailles, with its Annexes, and not having been
able to effect the agreement provided for therein by direct nego-
tiations, have asked the Court to determine the said interpret-
ation, and to settle all the questions involved by the execution
of paragraph 2 of Article 435 of the said Treaty.

The relevant clauses of the Special Agreement of October 30th,
1924, are worded as follows:

“Article x.

It shall rest with the Permanent. Court of International.
Justice to decide whether, as between Switzerland and France,

5
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 98

Article 435, paragraph 2, of the Treaty of Versailles, with its
Annexes, has abrogated or is intended to lead to the abroga-
tion of the provisions of the Protocol of the Conference of
Paris of November 3rd, 1815, of the Treaty of Paris of
November 20th, 1815, of the Treaty of Turin of March r6th,
1816, and of the Manifesto of the Sardinian Court of Accounts
of September oth, 1829, regarding the customs and economic
régime of the free zones of Upper Savoy and the Pays de
Gex, having regard to all facts anterior to the Treaty of
Versailles, such as the establishment of the Federal Customs
in 1849, which are considered relevant by the Court.

The High Contracting Parties agree that the Court, as soon
as it has concluded its deliberation on this question, and
before pronouncing any decision, shall accord to the two Parties
a reasonable time to’settle between themselves the new régime
to be applied in those districts, under such conditions as they
_may consider expedient, as provided in Article 435, paragraph 2,
of the said Treaty. This time may be extended at the request of
the two Parties. | |

Article 2.

Failing the conclusion and ratification of a convention be-
tween the two Parties within the time specified, the Court
shall, by means of a single judgment rendered in accordance
with Article 58 of the Court’s Statute, pronounce ‘its decision
in regard to the question formulated in Article 1 and settle
for a period to be fixed by it and having regard to present
conditions, all the questions involved by the execution of
paragraph 2 of Article 435 of the Treaty of Versailles.

Should the judgment contemplate the import of goods free
or at reduced rates through the Federal Customs barrier or
through the French Customs barrier, regulations of such
importation shall only be made with the consent of the two
Parties.

Article 3.

Each of the High Contracting Parties shall file with the
Registry of the Court, in the number of copies laid down by
Article 34 of the Rules of Court:

(1) within six months after the ratification of the present
Special Agreement, its Case upon the question set out in
Article 1, paragraph 1, with a certified true copy of all docu-
ments and evidence in support thereof ;

(2) within five months from the expiration of the above-
mentioned time, its Counter-Case with a certified true copy
of all documents and evidence in support ;

6
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 99

(3) within five months from the expiration of the preceding
time, its Reply with a certified true copy of all documents and
evidence in support and its final conclusions.

Article 4.

‘Should the Court, in accordance with Article 2, be called
upon itself to settle all the questions involved by the execu-
tion of Article 435, paragraph 2, of the Treaty of Versailles,
it shall grant the Parties reasonable times for the production
of all documents, proposals and observations which they may’
see fit to submit to the Court for the purposes of this settle-
ment and in reply to those submitted by the other Party.

Furthermore, in order to facilitate this settlement, the Court
‘may be requested by either Party to delegate one or three
of its members for the purposes of conducting investigations
on the spot and of hearing the evidence of any interested
persons.”

On the occasion of the signature of the Special Agreement,
on October 3oth, 1924, the French Minister for Foreign
Affairs and the Swiss Minister at Paris exchanged certain
‘interpretative notes”, to the following effect :

“In signing the Arbitration Convention of this date, I have
the honour to confirm that it is clearly understood between
the Swiss Federal Council and the Government of the Republic
that :

(x) until the Court’s definitive decision shall have been given,
neither Party shall take any steps calculated to modify the
de facto situation now prevailing at the frontier between
Switzerland and the French territories mentioned in Article 435,
paragraph 2, of the Treaty of Versailles ;

(2) no objection shall be raised on either side to the com-
munication by the Court to the Agents of the two Parties,
unofficially and in each other’s presence, of any indications
which may appear desirable as to the result of the deliberation
upon the question formulated in Article x, paragraph I, of the
Arbitration Convention ;

(3) the words ‘present conditions’ in Article 2, paragraph I,
of the Arbitration Convention refer to the ‘present conditions’
contemplated in Article 435, paragraph 2, with its Annexes,
of the Treaty of Versailles.”

The Special Agreement was communicated on or before
April 5th, 1928, to all concerned, as provided in Article 40

7
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX ‘100

of the Statute and in Article 36 of the Rules of Court;
similarly, it was communicated to all States, Members of the
League of Nations, and to all other States entitled to appear
before the Court.

On the other hand, States Parties to the Treaty of
Versailles were not specially notified under Article 63 of the
Statute, which was considered as inapplicable in this case;
but their attention was drawn to the right which they no doubt
possessed to inform the Court, should they wish to intervene
in accordance with the said Article, in which case it would
rest with the Court to decide.

In an Order, dated May 5th, 1928, the President of the
Court—the Court itself not being then in session—fixed the
“dates for the completion of the various acts of the written

procedure in the case”, as provided for in Article 3 of the
_ Special Agreement; the time-limits assigned were in conform-
ity with the proposals on that subject in the said Article.

The Parties filed their Cases, Counter-Cases and Replies
within the periods thus appointed. .

By the terms of Article 3 of the Special Agreement, the
Replies were to set forth the ‘final conclusions” of the Parties;
consequently, the Court did not avail itself. of its right (under
Art. 48 of its Statute) to decide the form and time in which
the Parties should conclude their arguments. The submissions
of the French Reply were formulated. as follows:

“May it please the Court:

In accordance with the letters attached to the Special
Agreement, communicate to the Agents for the two Parties,
unofficially and in each other’s presence, any indications which
may appear desirable as to the result of its deliberation upon
the question formulated in Article I, paragraph 2, of the
Special Agreement ; |

Determine the import of its deliberation and, in the circum-
stances contemplated by Article 2 of the Special Agreement,
so formulate the operative part of its judgment that its effect
shall be to decide that, as between France and Switzerland,
Article 435, paragraph 2, of the Treaty of Versailles, with its
Annexes, has abrogated the provisions of the Protocol of the
Conferences of Paris of November 3rd, 1815, of the Treaty
of Paris of November 2oth, 1815, of the Treaty of Turin of

8
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX IOT

March 16th, 1816, and of the Manifesto of the Sardinian Court
of Accounts of September oth, 1829, regarding the customs
and economic régime of the free zones of Upper Savoy and
the District of Gex ;

As soon as it has concluded its deliberation on this question
and before pronouncing any decision, accord to the two Parties
a reasonable time to settle between themselves the new régime
to be applied in those districts under such conditions as they
‘may consider expedient, as provided by Article 435, paragraph 2,
of the Treaty of Versailles, this time being capable of extension
at the request of the two Parties.”

The submissions. of the Swiss Reply, on the other hand,.
were formulated as follows :

“It is submitted that:

1. As between Switzerland and France, Article 435, para-
graph 2, of the Treaty of Versailles, with its Annexes, has not
abrogated the provisions of the Protocol of the Conferences
of Paris of November 3rd, 1815, of the Treaty of Paris of
November 2oth, 1815, of the Treaty of Turin of March 16th,
1816, and of the Manifesto of the Sardinian Court of Accounts
of September goth, 1829, regarding the customs and economic
régime of the zones of. Upper Savoy and the District of Gex.

2. As between Switzerland and France, Article 435, para-
graph 2, of the Treaty of Versailles, with its Annexes, has
not for its object the abrogation of the provisions of the’
Protocol of the Conferences of Paris of November 3rd, 1815,
of the Treaty of Paris of November 2oth, 1815, of the Treaty
of Turin of March r6th, 1816, or of the Manifesto of the
. Sardinian Court of Accounts of September gth, 1829, regard-
ing the customs and economic régime of the free zones of
Upper Savoy and the District of Gex, that is to say, as between
Switzerland and France, Article 435, paragraph 2, of the
Treaty of Versailles, with its Annexes, is not intended neces-
sarily to lead to the abrogation of the aforesaid provisions,
but simply means that Switzerland and France may abrogate
them by mutual consent.”

During public hearings held on July oth, xroth, 11th,
12th, 13th, 15th, 16th, 18th, rgth, 22nd and 23rd, 1920, the
Court heard arguments, replies and rejoinders, by Me Paul-
Boncour, Counsel of the French Government, and Professor
Logoz, Agent of the Swiss Government; it also heard a state-
ment by Professor Basdevant, Agent of the French Government.
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 102

The submissions formulated in the written Replies were not
modified during the oral proceedings.

During this phase of the procedure, the Parties communi-
cated to the Court, in support of their respective submissions,
the documents which—so far as they have been accepted
by the Court—are given in the list in the annex; these
were communicated partly (as laid down in Article 3 of the
Special Agreement) as annexes to the written documents, and
partly during the oral proceedings.

On August rgth, 1929, in order to conform to paragraph 2 of
Article 1 of the Special Agreement, the Court made an Order
in which it allowed the Government of the French Republic
and the Government of the Swiss Confederation a period,
expiring on May Ist, 1930, to settle between themselves the
‘new régime” to be applied in the territories referred to in
Article 435, paragraph 2, of the Treaty of Versailles, under
such conditions as they might consider expedient.

In the recitals of the said Order, the Court gave the Parties
“any indications which may appear desirable as the result of
the deliberation upon the question formulated in Article 1,
paragraph 1,” of the Special Agreement, that is, the question
‘whether, as between France and Switzerland, Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes, has
abrogated or is intended to lead to the abrogation of the
provisions” of 1815, 1816 and 1820, ‘‘regarding the customs and
- economic régime of the free zones of Upper Savoy and the
District of Gex”.

The Court took this step, in the first place, because of
the suggestion contained in the interpretative notes attached
to the Special Agreement of October 3oth, 1024, providing
that the indications referred to above might be communicated :
unofficially by the Court to the Agents of the two Parties;
and secondly, because it held that it was not possible for it,
according to the terms and the spirit of its Statute, unofficially
to communicate to the Parties in a case the result of the
deliberation upon a question submitted to it for decision.

Before the expiration of the period fixed by the Order of
August roth, 1920, the Court received a letter from the Head of
the Swiss Federal Political Department, dated March 28th, 1930,
and a letter from the French Agent, dated April 2gth, 1930, the

IO
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 103

first informing it that it did not seem possible for a convention
to be concluded and: ratified by the Parties before May Ist, and
the latter notifying it that it had proved impossible to conclude
an agreement between the Government of the French Republic
and the Swiss Federal Council concerning the settlement of
the question of the free zones prior to the said date.

In these circumstances, on May 3rd, 1930, the President of
the Court—the Court itself not being then in session—after
hearing the. Agents of the Parties, made an Order by which,
in accordance with Articles 2, paragraph 1, and 4, paragraph 1,
of the Special Agreement, he allowed the Government of the
French Republic and the Government of the Swiss Confederation
a, period of time “for the production by the Parties of all
documents, proposals and observations which they might see
fit to submit to the Court for the purposes of the settlement
by it of all the questions involved by the execution of para-
graph 2 of Article 435 of the Treaty of Versailles”, and also
a further period “‘to enable each Party to reply in writing
to the documents, proposals and observations submitted by
the other Party’. . ,

Within the first of these periods, the French Government
transmitted to the Court a document entitled ‘Observations
and Proposal’, containing, inter alia, a ‘Draft Decision” in
. seventeen articles; no fresh submissions were, however, set
forth in the said document. Similarly, the Swiss. Government
submitted a document entitled ‘Documents, Proposal and
Observations”, containing, in addition to a ‘Draft Settlement
of the régime of the territories referred to in Article 435,
paragraph 2, of the Treaty of Versailles’, in thirteen articles
and an annex, some new submissions worded as follows :

“May it please the Court,

By a single judgment rendered in conformity with Article 58
of the Court’s Statute;

I. To pronounce its decision on the question formulated in
Article I, paragraph 1, of the Special Agreement of Octo-
ber 30th, 1924, and to adjudge:

{a) that, as between Switzerland and France, Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes,
has not abrogated the provisions of the Protocol of the

2 , II
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 104

Conference of Paris of November 3rd, 1815, of the Treaty of
Paris of November 20th, 1815, of the Treaty of Turin of
March 16th, 1816, and of the Manifesto of the Sardinian Court
of Accounts of September oth, 1829, regarding the customs
and economic régime of the free zones of Upper Savoy and
the District of Gex ;

(0) that furthermore, as between Switzerland and France,
Article 435, paragraph 2, of the Treaty of Versailles, with its
Annexes, is not intended necessarily to lead to the abrogation
of the aforesaid provisions, in the sense that it does not compel
Switzerland to accept, as the only possible basis for the future
settlement, the abolition of the free zones.

2. To settle in accordance with the proposal submitted by
the Swiss Government and having regard to the terms of the
second paragraph of Article 2 of the Special Agreement of
October 30th, 1924, all the questions involved by the execu-
“ion of paragraph 2 of Article 435 of the Treaty of Versailles.”

Within the second period fixed by the Order of May 3rd,
1930, and expiring on September 30th, 1930, each of the
Governments concerned filed a written Reply. These Replies
contained no fresh submissions, but the Swiss Government
reserved its right, if necessary, to file further submissions
relating to an expert enquiry and to the despatch of a
delegation of the Court to the spot, in accordance with
paragraph 2 of Article 4 of the Special Agreement. In a letter
dated October 11th, 1930, the Agent of the Swiss Government
transmitted to the Court the following further submissions :

“May it please the Court, if the Court does not deem it
possible to render de plano the judgment contemplated by
Article 2 of the Special Agreement: .

I. To declare the French Proposal incompatible with the
rights of Switzerland and to disregard it.

II. To order an expert enquiry.
(1) To organize this enquiry on lines similar to those laid

down in the Order made by the Court on September 13th,
1928, in the case of the Chorzéw Factory.

(2) To put the following question to the experts:

IZ
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX . IO5

“Taking it for granted that the--French customs ‘cordon
will be placed on the line indicated in the Swiss Proposal,
does that Proposal regulate the relations between Switzer-
land and the French regions concerned in a manner
calculated to satisfy the legitimate interests of the inhabit-
ants as those interests were before 1023 ?”

To the Observations and Replies of the two Governments
were appended the documents enumerated in the list reproduced
in the appendix.

The written proceedings provided for by Article 4, paragraph 1,
of the Special Agreement having thus been concluded, the
President fixed October 23rd, 1930, as the date for the open-
ing of a new series of public hearings. At the same time he
caused the Parties to be notified that, not having been able
to secure the attendance at The Hague for these hearings of
at least nine of the judges who had taken part in the exa-
mination of the zones’ case in 1929, he had been compelled to
reconstitute the Court in accordance with the principles of
Article 25 of the Statute.

The impossibility of securing the said quorum ‘had been
apparent as early as August 1930; it exercised an effect in
two different directions.

In the first place, the Swiss Government, by a letter from
its Agent dated July 24th, 1930, had emphasized that, in its
opinion, most useful information would be afforded the Court,
for the purposes of the judgment which it had to give, if it
were to delegate some of its members to conduct investigations
on the spot, in accordance with Article 4, paragraph 2, of the
Special Agreement, and if it ordered an expert enquiry regarding
the solutions proposed by the Parties for the settlement of the
zones’ régime ; the Swiss Government held that this investiga-
tion by a delegation on the spot and this expert enquiry should
be carried out immediately after the filing of the ‘documents,
proposals and observations’ mentioned in the first paragraph
of the same Article; in this connection, it suggested that
it would be useful to give the Agents an opportunity of present-
ing to the Court their Governments’ observations in regard to
these proceedings. On being informed, on August rith, that
in order to hold the suggested hearing, the Court would in all
probability have to be reconstituted for the whole of the

13
FREE.ZONES OF UPPER SAVOY AND DISTRICT OF GEX 106

remainder of the case of the free zones, the Swiss Government
informed the Court, by a letter from its Agent dated August 15th,
1930, that the Federal Council, in view of this new circum-
stance, felt that it should not maintain its request of July 24th,
1930, as it considered it inexpedient to raise the serious question
‘of a possible reconstitution of the Court in connection with
a mere detail of procedure. |

In the second place, at the outset of the hearings fixed
for October 23rd, 1930, the President had explained that, to
comply with the provisions of Article 13, paragraph 3, of the
Statute, the composition of the Court should have been the
same as in 1929; circumstances, however, had rendered this
impossible, the number of judges available of those who had
taken part in the session of 1929 having fallen below the quo-
rum required by Article 25 of the Statute in order to render
the proceedings of the Court valid. Accordingly, it had become
necessary to reconstitute the Court, in conformity with the
principles of that Article, by summoning all the regular judges
available and also—in the order laid down in the list kept for
the purpose—the number of deputy-judges whose presence was
necessary to make up the number of eleven laid down by the
Statute. The President having asked’ the Agents whether they
had any observations or statements to make in regard to this
point, MM. Basdevant and Logoz made the following declara-
tions which the President placed on record:

(M. Basdevant.)

“On behalf of the French Government, I declare that this
Government agrees to the continuation of the proceedings in
view of the fact that, according to its view, the solution of
the question now to be argued is independent of the solution
to be given to the question argued in the first phase of the
proceedings.”

(M. Logoz.)

“The Swiss Government agrees to the proceedings being
continued purely and simply as though the composition of the
Court had not altered since the summer of 1929.

The Swiss Government for the rest maintains the view set
forth in its Observations and in its Reply, more especially-as
regards the interdependence existing between the first judicial
phase of the case and the present phase. It holds, moreover,

14
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 107

that the question argued in the first phase of the proceedings
has been decided.”

Accordingly, since the representatives of the Parties did
not avail themselves of their right, in view of the reconsti-
tution of the Court, to demand to reargue the whole case,
the Court heard the observations presented by Me Paul-
Boncour, Counsel, and M. Basdevant, Agent for the French
Government, and by M. Logoz, Agent for the Swiss Govern-
ment, on October 23rd, 24th, 25th, 27th, 28th, 2oth and
31st, and November 1st, 3rd and 4th, 1930. - Finally, on
November 24th, 1930, it heard the observations made at its
request by MM. Basdevant and Logoz concerning the inter-
pretation of Article 2, paragraph 2, of the Special Agreement,
the consequences ensuing therefrom with regard to the further
proceedings and the question whether, and if so under what
conditions, the consent referred to in that clause ‘could be
regarded as finally given, having been expressed in the proposals
submitted by the French Government and by the Swiss
Government”.

The statements made on this subject by the French Govern-
ments Agent may be summed up in the two following
passages :

. it follows from the fact that the consent of the Parties
is expressly reserved in respect of the customs questions refer-
red to in paragraph 2 of Article 2 of the Special Agreement,
that the Court in this matter does not possess the powers of
an ‘amiable compositeur’ and that it is only in the position
‘of a mediator. The question under what conditions the consent
contemplated by this Article will be given by the French
Government is one of French domestic policy and since, in
customs matters, the Government can do nothing without the
approval of the Chambers, it will rest with the Government,
before giving its approval, to obtain authority to do so in
accordance with the Constitution.”

“The Government, in submitting the proposal in question
[the proposal made in the French ‘Observations’], has, in so
far as it |ie. the French Government] is concerned, given its
consent once and for all; it will not go back upon it and it
will strongly urge Parliament to give its approval. But the
Government has not been able to commit Parliament; the
Constitution does not allow it to do so.”

15
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 108

On the other hand, according to the statements made by
the Agent of the Swiss Government, the ‘draft decision”
submitted to the Court by Switzerland

“implies the consent of Switzerland, within the meaning
of Article 2, paragraph 2, of the Special Agreement—a consent
henceforward and unconditionally binding upon her—to all
the provisions contained therein, more especially as regards
the importation of French goods free of duty or at reduced
rates across the line of the Federal Customs’’.

Similarly,
“... should the Court see fit to insert in its judgment pro-
visions regarding the importation of French goods free of duty
or at reduced rates across the line of the Federal customs,
other than the provisions proposed in the Swiss plan, Switzer-
land, in her capacity as a Party to the present proceedings,
here and now gives her consent, i.e. she will accept this deci-
sion of the Court as binding upon her. This declaration also
is henceforward and unconditionally binding on Switzerland.

And Switzerland’s consent, in so far as concerns all the
provisions of her proposal relating to the importation of goods
free of duty across the line of the Federal Customs, and any
other provisions on this subject which the Court may see fit
to insert in its judgment, holds good even if the judgment does
not uphold the Swiss contention with regard to the main-
tenance of the zones.’

In the course of the oral proceedings, the closure of which was
announced to the Parties by a communication from the Registry
dated December ist, 1930, the Parties’ Agents produced the
documents, a list of which is given in the appendix.

On December 6th, 1930, the Court made a new Order,
whereby it

“(z) Accords to the Government of the French Republic
and to the Government of the Swiss Confederation a
period expiring on July 31st, 1931, which may be extended
at the request of both Parties, to settle between them-
selves the matter of importations free of duty or at
reduced rates across the Federal customs line and also any
other point concerning the régime of the territories
referred to in Article 435, paragraph 2, of the Treaty of
- Versailles with which they may see fit to deal;

16
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 109

(2) Declares that at the expiration of the period granted
or of any prolongation thereof, the Court will deliver
judgment at the request of either Party, the President
being empowered to grant the two Governments the neces-
sary periods of time for the presentation beforehand of
any written or oral observations.”

In the recitals of this Order the Court made known its
opinion on certain points of law other than those dealt with in
the Order of August Igth, 1920.

In a letter of July 29th, 1931, the Swiss Minister at The
Hague, his Government’s Agent, with reference to this Order,
informed the Court that the negotiations provided for therein
had proved fruitless; accordingly the Swiss Government sub-
mitted that the conditions requisite for the continuation of the
proceedings were fulfilled and held that it was for the Court
to deliver judgment as provided in the Order. The Agent of
the French Government, for his part, by a letter of July 30th,
1931, confirmed that the French Ambassador at Berne had
_ received from the Federal Political Department a note whereby
the latter terminated the negotiations which had been begun
between the two Governments in pursuance of the Order of
December 6th, 1930.

After hearing—in each other’s presence and in that of the
judge who had presided over the Court in December 1930—the
submissions of the Parties’ Agents with regard to the subsequent
proceedings and the observations of each upon the submissions
of the other, the President of the Court, on August 6th,
1931, made an Order whereby, in virtue of the powers
conferred upon him by the operative clauses of the Order of
December 6th, 1930, he allowed the Government of the
Swiss Confederation and the Government of the French
Republic a period expiring on September 30th, 1931, for the
submission to the Court in writing of any further observations
in regard to the case set out in the Special Agreement con-
cluded between the two Governments on October 30th, 1924,
and fixed for the month of October, the actual date to be
decided later, a public hearing at which the representatives of |
each of the said Governments might reply to any written

17
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX IIO

observations filed as above stated on behalf of the other
Government.

The following passage from the recitals of this Order should
be noted:

ce

. according to decisions taken on November 22nd and
December 4th, 1930, the Court, after deliberation, has
recognized that the Court as then constituted must con-
tinue to deal with the case of the free zones and held
that the judge who was then acting as President must
continue to exercise his functions for the purpose of the
said case’.

The President eventually fixed October r4th, 1931, as the date
for the beginning of the hearings to be devoted to the oral
replies made by each Agent to the written observations filed
by the other within the period of time allowed by the Order ;
before the expiration of this time the French Government
filed a volume entitled “Fresh Observations”, accompanied by
a volume of annexes containing ‘‘Documents relating to the
negotiations prescribed by the Order of Court of December 6th,
1930”. The Swiss Government, for its part, submitted a
volume in which a short outline of the course of the said
negotiations was given, by way of an introduction to docu-
ments of a similar kind. Neither the French “Fresh Observa-
tions” nor the Swiss Observations contain submissions, prop-
erly so-called. The Federal Council, in the document filed
in its name, restricts itself to observing that the Court is
called on to deliver judgment in accordance with its Order of
December 6th, 1930; this judgment should, in the view of
the Federal Council, be “executory’’; ie. it should be capable}
of being put into force at once as regards the fixing of the
French customs line. As regards the document filed on behalf
of the French Government, it contains “Draft Regulations” in
eleven articles which the Government of the Republic submits
to the Court ;. and it recapitulates, under the heading “Conclu-
sion”, the arguments which it has developed, and which may
be summarized as follows:

Should the Court consider that it is unable to fulfil a part
of its task, it should decline the whole of it. Should the Court
consider that it can fulfil the whole of its task, the new
régime to be introduced must be determined having regard to

I8
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX pecs

present conditions. Should the Court hold that it must deter-
mine the new régime on the basis of existing law, it must decide
whether the old treaties on which : Switzerland claims to rely
have created legal obligations between France and Switzerland
and if so whether these legal obligations have not been abolished
either by tacit abrogation or as the result of the change in
conditions. Should the Court find it possible to fulfil the task
conferred on it by the Special Agreement, the French Govern-
ment requests it, in accordance with Article 4, paragraph 2,
of the Special Agreement, “‘to delegate one or three of its
members for the purposes of conducting investigations on the
spot and of hearing the evidence of any interested persons”.
Finally, in the latter contingency, the French Government
requests the Court to give the Parties an opportunity of stating
their views on the desirability of an expert enquiry (this
having been proposed by the Swiss Government in its altern-
ative submissions of October rith, 1930) and on the methods
of conducting such an enquiry, whenever the Swiss Agent has
informed the Court whether these submissions are maintained,
withdrawn or modified.

The hearings, which had been provided for in the Order of
August 6th, 1931, and had at first been fixed for October 14th,
1931, were subsequently, after the Agents had been duly heard,
adjourned till April 1932, owing to the absence of a quorum
—but without their character being in any way changed
by this postponement. On April roth, 2oth, 21st, 22nd, 23rd,
26th, 27th, 28th and 29th, MM. Basdevant and Logoz made
oral statements, replies and rejoinders before the Court and
gave answers to certain questions which had been put to them.
In opening the hearings the President pointed out that the
oral proceedings which were about to begin were to possess
the same character as the written Observations, as defined by
the Order of August 6th, 1931. In the course of the hearings,
or after their conclusion, the documents given in the list in
the appendix were filed by one or other of the Agents,

These documents include, in particular, the following sub-
missions which were put in by the Agent of the French Govern-
ment at the end of his statement:
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 112
“May it please the Court:

I.—Should the Court decide that, by reason of its
Statute, it is unable to fulfil the. whole task entrusted to
it by the Special Agreement in a manner corresponding
to the intention of the Parties:

To declare that it cannot give the judgment contemplated
by Article 2, paragraph. I, of the Special Arbitration Agree-
‘ment, and that it is therefore for the Parties to take such
steps as this decision may involve.

II—Should the Court decide that it can, consistently
with its Statute, fulfil the whole task entrusted to it
by the Special Agreement in a manner corresponding to
the intention of the Parties:

To decide by means of a single judgment the question set
out in Article x of the Special Arbitration Agreement, and to
settle for a period which it will fix all the questions involved
by the execution of paragraph 2 of. Article 435 of the
Treaty of Versailles;

And, for this purpose, to declare :

AAs to point I:

(x) That Article 435, paragraph 2, of the Treaty of Ver-
sailles, with its Annexes, has, as between France and Switzer-
land, abrogated the instruments enumerated in Article 1,
paragraph 1, of the Special Agreement ;

(2) Alternatively that, in so far as Article 435, paragraph 2,
of the Treaty of Versailles, with its Annexes, has not abrog--
ated the said instruments, as between France and Switzer-
land, the Article was intended to lead to their abrogation,
it being understood that abrogation as between France and
Switzerland can be effected only by an instrument legally
binding as between those two countries ;

—As to point IT:

That the régime henceforth to govern the customs relations
of the territories referred to in Article 435, paragraph 2,. of
the Treaty of Versailles, shall be that set forth in the draft
settlement contained on pages 79 to 82 of the New French
” Observations ;

Alternatively, any régime based upon the juxtaposition and
permeability of the two customs cordons that the Court may
see fit to establish.

20
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 113

IIT.—Aiternatively and in case the Court is of opinion
that the status of the territories referred to in Arti-
cle 435, paragraph 2, of the Treaty of Versailles should
be established on the basis of the existing legal position:

To elucidate fully this legal position,

And to declare that the instruments mentioned in Article 1,
paragraph 1, of the Special Agreement are not now legally
binding as between France and Switzerland,

Either because Article 435, paragraph 2, of the Treaty of
Versailles, with its Annexes, has abrogated the said instru-
ments ;

Or, as regards the Gex zone, because Switzerland was not a
Party, either as a signatory or by accession, to the international
instruments which established that zone, it being particularly
noted that Switzerland formally refused to accede thereto ;

Or, as regards the Saint-Gingolph zone, because that zone
was created by the unilateral Manifesto of September oth, 1820,
and not by the Treaty of March 16th, 1816;

Or, as regards the Sardinian zone, because Article 3 of the
Treaty of March 16th, 1816, whereby that zone was created,
was implicitly abrogated by subsequent instruments, notably -
the Treaty of June 8th, 1851; |

Or, as regards all the zones, and to the extent Switzerland has
hitherto been entitled to rely on the instruments whereby the
zones were established, because, owing to changed conditions,
resulting more particularly from the establishment of the Federal
customs line at the Swiss frontier, the Court being entitled,
for the purposes of this case, to judge of the effect of these
changed conditions ;

Or for any other reason which the Court may see fit to
adopt ;

Alternatively, that Article 435, paragraph 2, of the Treaty
of Versailles, with its Annexes, was intended to lead to the
abrogation of the instruments mentioned therein ;

And that, consequently, the Court may disregard the said
instruments as a basis for the régime which it is required
to establish.

IV.— Alternatively :

By withdrawing the Swiss customs cordon so as to place it
where it was in 1815, 1816 and 1829, to restore, not only the
situation resulting for France and Sardinia from the withdrawal
of the customs cordon of those two countries, but also the
situation existing on the Swiss side at the time when each of
the free zones was created.”

27
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX Ir4

In formulating these submissions, the Agent of the French
Government reserved his right to present, if necessary, at the
proper time, submissions as to the. method of conducting
the investigation on the spot which had been asked for by the
French Government, and also submissions as to the question of
an expert enquiry, when the Agent of the Swiss Government
had explained the similar request presented by him.

The Agent of the Swiss Government, for his part, confined
himself, in his oral statement, to requesting the Court to rule
that the submissions presented by the French Government’s
Agent during the hearings were inadmissible ; and alternatively,
to reject the said submissions on their merits. For the rest, he
declared that he maintained the submissions formerly pre-
sented on behalf of the Swiss Government, except that the
further submissions of October 11th, 1930, should be regarded
as having ceased to have any object ‘‘unless the Court were to
decide that it could give judgment on the questions referred to
in the second paragraph of Article 2 of the Special Agreement”.

In his oral reply, the Agent of the French Government
said that, although the Swiss Government had held that the
delegation of members of the Court for the purpose of con-
_ ducting an investigation on the spot had no longer any object,
he maintained his request for the Court to conduct such an
investigation in conformity with Article 4, paragraph 2, of the
Special Agreement.

The Agent of the Swiss Government, for his part, declared
in his oral rejoinder that he maintained ‘in every particular’
the declarations which he had made before the Court on
November 24th, 1930. He further declared that the only Swiss
submissions were those presented on July 1oth, 1930—which
“still held good’”—the sole addition being the submissions
asking the Court to declare inadmissible or, alternatively, to
reject the new French submissions presented during the course
of the hearings.

During the suécessive phases of the procedure, both Parties
have, independently of their submissions properly so-called,
requested the Court to decide, in one sense or another, on a
number of incidental points. In so far as these points fall
within the ambit of the Special Agreement, the Court will
take them up and deal with them below.

22
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX II5

The proceedings having reached this stage, the Court

now delivers judgment as follows.
* * *

The era of the Napoleonic wars preceding the Hundred Days
was brought to an end by the treaties concluded at Paris on
May 30th, 1814, between France, on the one hand, and
Austria, Great Britain, Prussia and Russia respectively, on the
other. Article 6 of these treaties, which all correspond, con-
tains inter alia the following provision :

“Switzerland, independent, shall continue to govern
herself 1,”

Article 4 lays down that

“To secure the communications of the Town of Geneva
with other parts of the Swiss Territory situated on the
Lake, France consents that the road by Versoy shall be
common to the two countries 1”

The treaties in question also provided in Article 32 that,
. within two months, all the Powers which had been engaged
on one side or the other in the war which had just been
brought to an end, should send plenipotentiaries to Vienna
“for the purpose of regulating, in General Congress, the arrange-
ments which are to complete the provisions of the present
Treaty ?’.

Articles 74 to 84 of the Act of the Congress of Vienna of
June gth, 18r5, deal with the affairs of Switzerland. Under
Article 75, the territory of Geneva is united to Switzerland
and is to constitute a new canton. Under Article 79, France

t

“consents so to place the line of customs houses that
the road which leads from Geneva into Switzerland by
Versoy, shall at all times be free, and that neither the
post nor travellers nor the transport of merchandize shall
be interrupted by any examination of the officers of the
customs nor subjected to any duty. It is equally under-
stood that the passage of Swiss troops on this road shall
not, in any manner, be obstructed ?”’.

1 Translation taken from British and Foreign State Papers, 1812-1814.
2 Translation taken from The Map of Europe by Treaty, 1814-1875, Hertslet.

23
\
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 116
Finally, according to Article 84 of the Act of Vienna,

“the Declaration of March 2oth, addressed by the Powers
who signed the Treaty of Paris, to the Diet of the
Swiss Confederation and accepted by the Diet, through
the Act of Adhesion of May 27th, is confirmed in the
whole of its tenor, and the principles established, as also
the arrangements agreed upon, in the said Declaration,
shall be invariably maintained ?”.

In the preamble to the above-mentioned. Declaration of
March zoth, 1815, special reference is made to the Powers’
desire to provide Switzerland, by restitutions and cessions of
territory, with the means of preserving her independence and
maintaining her neutrality; it is also stated therein that the
Powers have obtained all information relative to the interests
of the various cantons. The Declaration itself states that:

“As soon as the Helvetic Diet shall have duly and
-formally acceded to the stipulations contained in the
present Instrument, an Act shall be prepared containing
the acknowledgment and the guarantee, on the part of
all the Powers, of the perpetual neutrality of Switzerland
in her new frontiers; which Act shall form part of that
which, in the execution of Article 32 of the Treaty of
Paris of May 30th, was to complete the arrangements
contained in that Treaty.1.”

Article 5 of the “Instrument” (Transaction) referred to in
the Declaration of March 2oth, 1815, states that,

“in order to ensure the commercial and military com-

munications of the Town of Geneva with the Canton of
Vaud and the rest of Switzerland; and with a view to
fulfil in that respect Article 4 of the Treaty of Paris,
His Most Christian Majesty consents. so to place the line
of customs houses that the road which leads from Geneva
into Switzerland by Versoy shall at all times be free and
that neither the post, nor travellers, nor the transport
of merchandize shall be interrupted by any examination
of the officers of the customs, nor subjected to any duty ?”.

The accession of the Diet of the Swiss Confederation, on
behalf of the Confederation, to the “Declaration made on
March 2oth, 1815, by the Congress of Vienna”, was effected by

4 Translation taken from The Map of Europe by Treaty, 1814-1875,
Hertslet.

24
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX II7

an act of May 27th, 1815; in this act, the Diet expressed the
hope that full effect would be given to the terms of the Declar-
ation of March zoth and that the fulfilment of the engage-
ments therein contained would be ensured.

This hope met with fulfilment when the Powers concluded
the second series of treaties of Paris on November 2oth, 1815,
after the Hundred Days; for on the same day they made a
Declaration, the relevant passage of which is as follows:

“The Accession of Switzerland to the Declaration pub-
lished at Vienna on the 2oth March, 1815, by the Powers
who signed the Treaty of Paris, having been duly notified
to the Ministers of the Imperial and Royal Courts, by
the Act of the Helvetic Diet on the 27th of the month
of May following, there remained nothing to prevent the
Act of Acknowledgment and Guarantee of the perpetual
Neutrality of Switzerland from being made conformably
to the above-mentioned Declaration. But the Powers
deemed it expedient to suspend till this day the signature
of that Act, in consequence of the changes which the
events of the war, and the arrangements which might
result from it might possibly occasion in the limits of
Switzerland, and in respect also to the modifications
resulting therefrom, in the arrangements relative to the
federated territory, for the benefit of the Helvetic Body.

These changes being fixed by the stipulations of the
Treaty of Paris signed this day, the Powers who signed
the Declaration of Vienna of the 2oth March declare, by
this present Act, their formal and authentic’ Acknowledg-
ment of the perpetual Neutrality of Switzerland; and they
Guarantee to that country the Integrity and Inviolability
of its Territory in its new limits, such as they. are fixed,
as well by the Act of the Congress of Vienna as by the
Treaty of Paris of this day, and such as they will be
hereafter ; conformably to the Arrangement of the Proto-
col of the 3rd November, extract of which is hereto
annexed, which stipulates in favour of the Helvetic Body
a new increase of Territory, to be taken from Savoy,
in order to disengage from Enclaves, and complete the
circle of the Canton of Geneva !”

The extract from the Protocol of November 3rd, I815—
referred to in the Declaration of November 2oth—which Pro-
tocol was relative to the territorial cessions to be made by
France, contains inter alia the following :

1 Translation taken from The Map of Europe by Treaty, 1814-1875,
Hertslet.

25
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 118

“The French Government having consented to with-
draw its lines of custom and excise from the frontiers of
Switzerland, on the side of the Jura, the Cabinets of the
Allied Powers will employ their good offices for inducing
His Sardinian Majesty to withdraw in like manner, his
lines of custom and excise, on the side of Savoy, at least
upwards of a league from the Swiss frontiers, and on
the outside of the great road of Saleve, and of the moun-
tains of Sion and Vuache !”

An extract from the said Protocol, containing the passage
quoted above, was officially communicated on November 7th
to the Swiss plenipotentiary by the plenipotentiaries of the
Cabinets of the Courts of Austria, Russia, Great Britain and
Prussia.

According to Article 1 of the treaties concluded on Novem-
ber zoth, 1815, between France, on the one hand, and Austria,
Great Britain, Prussia and Russia, respectively, on the other :

“The Frontiers of France shall be the same as they
were in the year 1790, save and except the modifications
on one side and on the other, which are detailed in the
present Article.

3. In order to establish a direct communication between
the Canton of Geneva and Switzerland, that part of
the pays de Gex, bounded on the east by the Lake
Leman; on the south, by the territory of the Canton
of Geneva; on the north, by that of the Canton of
Vaud; on the west, by the course of the Versoix,
and by a line which comprehends the Communes of
Collex-Bossy, and Meyrin, leaving the Commune of Ferney
to France, shall be ceded to the Helvetic Confeder-
acy, in order to be united to the Canton of Geneva.
The line of the French Customs-houses shall be placed
to the west of the Jura, so that the whole of the
Pays de Gex shall be without that line!.”’

' The territory comprised between the Franco-Swiss political
frontier and the line of the French customs withdrawn from
that frontier—as provided in the diplomatic instruments quot-
ed above—constitutes the free zone of the District of Gex

i Translation taken from The Map of Europe by Treaty, 1814-1875,
Hertslet. .

26
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I19

mentioned in Article 1 of the Special Agreement and in
Article 435, paragraph 2, of the Treaty of Versailles.

*

The free zone of Upper Savoy, known as the “Sardinian
zone”, also, in the last analysis, derives its origin from the
arrangements relative to Geneva made following upon the
Napoleonic wars.

The above quoted Article 5 of the “Transaction” appended
to the Declaration of the Powers concerning Switzerland of
March 2oth, 1815, contains the following clause:

“The Contracting Powers shall, moreover, interpose
their good offices for the purpose of obtaining for the
Town of Geneva a suitable accession of territory on the
side of Savoy 1.”

With reference to this clause, the Sardinian. Government, in
a letter of March 26th, 1815, addressed to the Powers, stated
that it consented to the cessions of territory contemplated,
subject to certain conditions which were specified and which
the Powers approved by a Declaration on March zoth, 1815.
Accordingly, provisions confirming these cessions and condi-
tions were inserted in Articles 91 and 92 of the Act of the
Congress of Vienna of June goth, 1815. The Diet of the Swiss
Confederation, for its part, by an “act of adhesion to the
acts of the Congress of March zgth, 1815”, dated August 12th
of the same year, accepted the said conditions. The above-
mentioned Protocol of November 3rd, 1815, confirmed, in its
fifth Article, the position resulting. from the various instru-
ments referred to, save that it envisaged certain territorial
exchanges between Sardinia and the Canton of Geneva and
declared that the Cabinets of the Allied Courts would use
their good offices to induce His Sardinian Majesty to withdraw
his customs line on the side of Savoy at least one league from
the Swiss frontier. By their Declaration of November zoth,
1815, the Powers which had signed the Declaration of
March 2oth formally guaranteed to Switzerland the integrity
and inviolability of her territory within her new boundaries,

1 Translation taken [from The Map of Europe by Treaty, 1814-1875,
Hertslet.

4 : 27
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 120

including those subsequently to be fixed, in accordance with
the clause in the Protocol of November 3rd, “which stipulates in
favour of the Helvetic Body a new increase of Territory to
be taken from Savoy, in order to disengage from Enclaves,
and complete the circle of the Canton of Geneva?’.

The determination of the frontier between Switzerland and
Sardinia was left to a direct agreement betwéen those two
States.

The latter, on March 16th, 1816, at Turin, concluded a “treaty
respecting territorial cession and. boundaries” in which they
expressly referred to the various instruments above mentioned.
Article I of this treaty fixes the political frontier between the
two neighbouring countries, and Article 3 fixes the line of
the Sardinian customs in Sardinian territory. The latter
Article runs as follows: |

“According to the purport of the Protocol of the
3rd of November, respecting Custom-Houses (reconciling
at the same time its dispositions, as much as possible,
with the interests of His Majesty) the Line of Custom-
Houses in the neighbourhood of Geneva and the Lake,
shall proceed from the Rhone by Cologny, Valeiry,
Cheney, Luiset, Chable, Sapey, Vieson, Etrembiéres,
Annemasse, Ville-la-Grand, along the course of the
Foron to Machilly, thence by Douvaine and Colongette
as far as the Lake, and along the Lake to Meillerie,
afterwards resuming and continuing the present frontier
at the post nearest to Saint-Gingolph; it being under-
stood that His Majesty shall be at liberty to make such
alterations and dispositions relative to the numbers and
situations of his Custom-Houses within the said line as
he may deem most convenient. No Custom-House duty
can be performed either on the Lake or within the space
(zone) which separates the territory of the Canton of
Geneva from the line above described; it shall, neverthe-
less, be at all times lawful for His Majesty’s administra-
tive authorities, to take such measures as they may deem
necessary to prevent any illegal traffic, resulting from
depôts or the stationing of merchandise, within the said
space (zone). The Government of Geneva desiring, on its
part, to second the views of His Majesty in this respect,
will take the necessary precautions to prevent smuggling
from being encouraged by the inhabitants of the Canton 1.”

1 Translation taken from The Map of Europe by Treaty, 1814-1875,
Hertslet. :

28
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I2I

The ‘“Sardinian zone” is that comprised between the section
of the line described in this Article, from the Rhone to the
Lake, and the -political frontier.

#

As appears from Article 1 of the Treaty of Turin of
March 16th, 1816 (“it being understood that the property of one
half the breadth of the lake from Hermance to Vézenaz
is acquired by the Canton of Geneva”), the political frontier
between Switzerland and Sardinia followed the middle of the
lake. On the other hand, under Article 3 of the same Treaty,
the line of the Sardinian customs went “along the Lake”
between Colongette and Meillerie. The zone comprised between
the part of the shore between these two places and the middle
line of the lake constitutes the so-called ‘Lake zone”.

*

The same Article 3 of the Treaty of Turin states that the
line of the Sardinian customs shall proceed ‘‘along the Lake
to Meillerie, afterwards resuming and continuing the present
frontier at the post nearest to St. Gingolph?’.

On this subject, a ‘‘Manifesto” was issued on September gth,
1829, by the Royal Sardinian Court of Accounts. The first
two paragraphs of the preamble and Article 1 and the first
paragraph of Article 2 run as follows:

“The Canton of Valais, invoking the terms of Article 3
of the Treaty concluded with the Swiss Confederation
and the Canton of Geneva on March 16th, 1816, has
requested the abolition of the customs office at present
established in the village of St. Gingolph and the with-
drawal of the customs line from this frontier, so that a
new zone shall be formed in this locality comprising
the territory of the said commune.

Although this request, according to the report made
to His Majesty, has appeared not to be altogether well-
founded in law and only to be based on an ambiguous

1 Translation taken from The Map of Europe by Treaty, 1814-1875,
Hertslet.

29
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 122

expression, nevertheless, in order to give satisfaction to
the Canton of Valais, as a token of his good will, His
Majesty has been good enough to consent to its being
granted.

Article I.—The Customs office in the village of St.
Gingolph shall be and remain abolished and shall be
established in the village of Locum.

Article 2.—Henceforward, the line of the customs
towards the above-mentioned part of the frontier of
Valais shall start from the Lake, at the point where
the main Evian road is intersected by the ‘red bridge’
beside the village of Locum; it shall proceed up the
bed of the same stream of Locum and shall follow it
via the peak of La Frasse and the mountain of Mémise
as far as its source at the foot of the chain of rocks
which serve as boundaries between the communes of
Novel, Bernes, and Tolon; from this point it shall follow
the mountain chain passing near Trépertuet, and rejoin
the foot of the Dent d’Oche; thence it shall continue
along the crest of the mountains which join the Dent de
Villand beside the summit of La Cornette.”

Thus is defined the zone known as the ‘‘zone of Saint-
Gingolph”.

On March 24th, 1860, France and Sardinia signed at Turin
the Treaty “‘concerning the annexation of Savoy and the arron-
dissement of Nice to France’’.. According to the terms of
this instrument, Sardinia consents to this annexation on the
understanding that it is to be effected without any constraint
of the wishes of the populations and that Sardinia cannot
transfer the neutralized parts of Savoy—which included the
zones defined above, apart from the zone of Gex—except on
the conditions upon which she herself possesses them. Accord-
ingly, a plebiscite was organized in the territories concerned ;
it was taken on April 22nd and 23rd, 1860, and its result was
the proclamation of the annexation to France of Savoy and
Nice by the Senatus-Consultum of June 12th, 1860. In view
of the special conditions in which the plebiscite was taken—

30
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 123

in one part of the territory, the inhabitants were permitted
to vote yes, yes and zone, or no, and the very great majority
voted yes and zone—the French customs were withdrawn, by
an imperial decree of the same day, to a new line within
French territory : thus, by a sovereign and unilateral decision on
the part of France, was created the ‘‘Great zone” or ‘‘Annexation
zone’, which included the small Sardinian zone and the zone
of Saint-Gingolph. The zone was abolished by the French law of
February 16th, 1923, which came into force on November roth
of the same year. However that may be, the present dispute
does not concern the ‘Great zone” of 1860.

1K

Ever since their creation, those free zones, which the Court
has to deal with, possessed a unilateral character, that is to
say that the withdrawal of the French and Sardinian Customs
lines to a position in rear of the political frontier was pre-
scribed, without any similar or countervailing obligation being
imposed upon Switzerland. This legal situation was not, how-
ever, productive of a de facto inequality, owing to the Customs
system in force for Geneva. This system, as instituted by the
Federal and Cantonal laws of 1815 and 1816, was extremely
simple in its application and only provided for very low tariffs;
both the Cantonal and Federal duties were levied by the can-
tonal offices.

This system was, however, altered as a result of the conso-
lidation of the Federal Customs and of the abolition of the
Cantonal Customs, which were effected in 1849 and developed
during the succeeding years (Federal Law on Tolls of June 30th,
1849; Federal Law of August 27th, 1851); these changes
affected both the method of collecting the duties (which were
henceforward to be levied solely at the frontier of thé ‘Con-
federation and not at the cantonal frontiers) and the rates of
the duties.

Though the alteration in the Federal Customs system was
not, at the time, regarded on either hand as seriously affect-
ing the value of the régime of the free zones—this is evi-
denced by the creation of the Great zone (of Annexation) in

3r
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 124

virtue of a unilateral decision by the French Government in
1860—it nevertheless made it necessary or desirable to effect
certain adjustments by way of treaty.

Accordingly, in the Commercial Treaty concluded on June 8th,
1851, between Sardinia and Switzerland, the latter under-
takes (Art. 4) to allow the importation free of duty from the
Sardinian States of a certain number of specified articles, and
to concede certain other benefits “in consideration of the
. exemption from export duties of foodstuffs and consumable
goods intended to supply the City and Canton of Geneva”.
Again, in particular, by the Regulation concerning the Dis-
trict of Gex, which was annexed to the Treaty of Commerce
concluded on June 30th, 1864, between France and Switzer-
land, the Government of the Confederation undertook .to grant
certain facilities to the products of the District of Gex in
addition to the customs concessions specified in the tariff
annexed to the Treaty. This Regulation was followed by
various agreements concerning questions of detail, and in
particular by a Convention, dated June r4th, 1881, concerning
a customs régime between the Canton of Geneva and the free
zone of Upper Savoy (ie., the Great zone of Annexation) and
a Treaty of Commerce, dated the following day, to which was
attached a Regulation concerning the District of Gex. Even
after the expiry of the latter Treaty, on January Ist, 1893
(and except for a period of customs difficulties between France
and Switzerland, which lasted into the year 1805), the said
Regulation was in fact applied until it was replaced by
another regulation of the same kind annexed to the Com-
mercial Convention of October 2oth, 1906.

It should be observed that the contractual régime for the
Sardinian zone (which régime was instituted by the Agreement
of June r4th, 1887, for a period of thirty years, renewable
.by tacit consent) was distinct from that which governed the
relations between Switzerland and the Gex zone; the latter
régime shared the fate of the successive commercial treaties,
to which the relevant regulations were attached. In 1973,
however, the Convention of 188x became subject to denun-
ciation, in the same way as the commercial treaties, at one
year’s notice.

32
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I25

Availing itself of this possibility, and having regard in par-
ticular to the change effected in the situation of the free zones
owing to the establishment of a French police and fiscal cor-
don at the political frontier during the war, the French Govern-
ment, on September 2oth, 1918, denounced the Commercial
Convention of October zoth, 1906 (including the Regulation
concerning the Gex zone), and on December r8th, 1918, it
further denounced. the Convention of June 14th, 1881, concern-
ing the customs régime between the Canton of Geneva and
the free zone of Upper Savoy.

The denunciation of the agreements concerning the free
zones was to become effective as from January Ist, 1920.

As early as January 14th, 1910, the Swiss Government,
in its reply to the French note of December 18th, 1018,
denouncing the Convention of 1881, had stated that it was ready
to examine “any proposals which the French Government
might see fit to submit to it concerning the economic rela-
tions between Switzerland and Upper Savoy’’.

This suggestion was followed, first, by an informal discus-
sion, and subsequently, by an exchange of notes with a view
to the inauguration of official negotiations. The opening of the
latter was delayed owing to an examination of the question
having been undertaken in France, where it was regarded as
connected with the substitution, “for the régime of the free
zones, of a régime consistent with modern ideas and require-
ments, adapted to the respective geographical situations of the
regions concerned, and based on conditions of fairness and
reciprocity’. On April 26th, 1919, the French Embassy at
Berne communicated to the Federal Political Department

“a draft convention for good neighbourly relations, designed
to serve as a basis for the discussions about to take place
between the French and Swiss representatives appointed to
draw up a special contractual régime which .shall be applicable
to the French districts in the Departments of Ain and Upper
Savoy at present outside the French customs-line, and to
the adjacent Swiss cantons”.

33
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 126

The covering note, forwarding this draft, contained nier
alia the following passages :

“The Government of the Republic is convinced that the
régime thus established on a basis of fairness and reciprocity,
and adapted to the special geographical conditions which
exist, will replace with advantage the obsolete régime of the
free zones, and will materially conduce to develop friendly
relations between the two countries, more particularly as
regards relations between the districts specially concerned.

In this connection, the French Government desires to
inform the Federal Government that it is essential, in its
view, to take advantage of the assembly of the delegates
of the Powers at Paris to place on record in the Treaty of
Peace with Germany that the servitudes imposed on France
in 1815, as regards the neutralized zone and also as regards
the free zones of: Savoy and the District of Gex, have now
lapsed.

The French Government is very desirous of receiving an
assurance at the earliest possible moment that the Swiss
Government appreciates the entirely friendly character of this
communication, and is at one with the French Government in
recognizing that the historic relations, whose cordial character
has been formally reaffirmed during the late war, between the
neighbouring countries, will not fail to gain by the disappear-
ance of obsolete clauses, which will be advantageously re-
placed by a contractual régime, freely negotiated, more
elastic, and better sujted to modern requirements.”

The French note of April 26th, 1019, was followed on the
28th of the same. month by a second note which elabor-
ated the ideas put forward in the first. Thus, this note observes
that :

“It will be desirable to insert in the Treaty of Peace with
Germany, as successor of Prussia who signed the treaties of
1815, the abrogation of the clauses relating .... to the free
zones, and the French Government is specially anxious to
obtain the assent of Switzerland in advance”,

and that:

“The French Government is convinced that its future
relations with the Federal Government will greatly benefit
by the fact that Switzerland will have spontaneously borne
witness to the lapse of provisions which had become an
impediment to the normal development of political and
economic relations between the two countries.”

34
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 127

On the next day, April 29th, 1919, the French Minister for
Foreign Affairs communicated to the President of the Swiss
Confederation, who was then at Paris, ‘‘the text of the draft
article which the French Government proposes to insert in
the Peace Treaty”. In the covering letter, forwarding this
text, M. Pichon wrote as follows:

“Tt goes without saying that, although the Government of
the Republic wishes to avail itself of the opportunity which
now offers itself to put an and to the character given in
1815 to an economic system little suited to control by Powers
not directly involved in that system, the French Government
nevertheless does not intend to avail itself, as against Switzer-
land, of the abrogation in question, until the negotiations for
the convention which is to replace the said régime have
resulted in an agreement between France and the Confed-
eration.”

The Swiss reply to the three above-mentioned communications
took the form of a note which was sent on May 2nd, 1910,
by the Federal Political Department to the French Embassy ~
at Berne. On the question of the free zones, it observes:

“2. The Federal Council will not fail to examine in the
most friendly spirit the above-mentioned request of France
concerning the free zones of Upper Savoy and the District
of Gex, but it is indispensable that, before pronouncing an
opinion, it should have the necessary time for making a
study of the proposals of the French Commission and for
consulting the Swiss districts more specially concerned.

For these reasons the Federal Council thinks it highly
desirable that the French Government should refrain from
referring to the free zones in the Treaty of Peace.”

On May 4th, following, the Government ot the French
Republic communicated to the Swiss authorities a new draft
of the article to be inserted in the Treaty of Peace, reading
as follows:

“The High Contracting Parties, while they recognize the
guarantees stipulated by the treaties of 1815, and especially
by the Act of November 2oth, 1815, in favour of Switzerland,
the said guarantees constituting international obligations for
the maintenance of peace, declare nevertheless that: the
provisions of these treaties, conventions, declarations and
_other supplementary acts concerning the neutralized zone of

5 oo 35
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 128

Savoy, as laid down in paragraph 1 of Article 92 of the
Final Act of. the Congress of Vienna and in paragraph 2 of
Article 3 of the Treaty of Paris of November 2oth, 1815, are
no longer consistent with present conditions.

For this reason, the High Contracting Parties take note of
the agreement reached between the French Government and the
Swiss Government for the abrogation of the stipulations relating
to this zone which are and remain abrogated.

The High Contracting Parties also agree that the stipulations
- of the treaties of 1815 and of the other supplementary acts
concerning the free zones of Upper .Savoy and the Gex
District are no longer consistent with present conditions, and
that it is for France and Switzerland to come to an. agree-
ment together with a view to settling between themselves
the status of these territories under such conditions as shall
be considered suitable by both countries.”

In a note, dated May 5th, 1919, which was delivered simul-
taneously by the Swiss Legation at Paris to the French Ministry
‘for Foreign Affairs and by the Political Department to the
French Embassy at Berne, the Federal Council stated that,
after examining the new French proposal, ie. the new draft
article, it “has happily reached the conclusion that it was-
possible to acquiesce in it, under the following conditions and
reservations” as regards the free zone of Upper Savoy and the
District of Gex:

The Federal Council makes the most express reservations
to the interpretation to be given to the. statement mentioned
in the last paragraph of the above Article for insertion in
the Treaty of Peace, which provides that the ‘stipulations of
the treaties of 1815 and other supplementary acts concern-
ing the free zones of Haute-Savoie and the Gex District are no.
longer consistent with present. conditions’.

The Federal Council would not wish that its acceptance
of the above wording should. lead to the conclusion that it
would agree to the suppression of a system intended to give
neighbouring territory the benefit of a special régime which.
is appropriate to the geographical and economical situation
and which has been weil tested.

In the opinion. of the Federal Council, the question is not
the modification of the customs system of the zones as set
up by the treaties mentioned above, but only the regulation
in a manner more appropriate to the economic conditions of
the present day of the terms of the exchange of _goods
between the regions in question.

36
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 129

The Federal Council has been led to make the preceding
observations by the perusal of the draft Convention concern-
ing the future constitution of the zones which was annexed
to the note of April 26th from the French Government.

While making the above reservations, the Federal Council
declares its readiness. to examine in the most friendly spirit
any proposals which the French Government may deem it
convenient to make on the subject.

b. It is conceded that the stipulations of the treaties of 1815
_and other supplementary acts relative to the free zones will
remain in force until a new arrangement is come to between
France and Switzerland to regulate matters in this territory.”

The text of the aforementioned Article. was inserted without
modification—but with the text of the Swiss note of May 5th,
1919, annexed to it—in the Peace Conditions of the Allied
and Associated Powers transmitted on May 7th to the German
delegation at Versailles.

On May 18th, 1919, the French Ministry for Foreign Affairs
communicated to the Swiss Legation in Paris a note in the
following terms:

“In a note dated May 5th, the Swiss Legation in Paris
was good enough to inform the Government of the French
Republic that the Federal Government adhered to the pro-
posed article to be inserted in the Treaty of Peace between
the Allied and Associated Governments and Germany.

The French Government have taken note with much pleas-
ure of the agreement thus reached, and, at their request,
the proposed article, which had been accepted by the Allied
and Associated Governments, has been inserted under No. 435
in the Peace Conditions presented to the German plenipoten-
tiaries. .

The Swiss Government, in their note of May 5th on this
subject, have expressed various views and reservations.

Concerning the observations relating to the free zones of
Haute-Savoie and the Gex District, the French Government
-have the honour to observe that the provisions of the last
paragraph of Article 435 are so clear that their purport can-
not be misapprehended, especially where it implies that no
other Power but France and Switzerland will in future be
interested in that question.

37
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 130

The French Government, on their part, are anxious to
protect the interests of: the French territories concerned, and,
with that object, having their special'situation in. view, they
bear .in mind the desirability of assuring them a suitable
customs régime, and determining, in a manner better suited
to present conditions, the methods of exthanges between these
territories and the adjacent Swiss territories, while taking into
account the. reciprocal interests of both regions.

It is understood that this must in no way prejudice: the
right of France to adjust her customs line in this region’ in
conformity with: her political frontier, as is done on the other
portions ‘of her territorial boundaries, and as was done by
Switzerland - long ago .on -her’ own: boundaries. in this region.

~The French Government are ; pleased to note on this subject
in what a friendly disposition the Swiss Government take this
opportunity of declaring their willingness to consider any
French proposal: dealing with the system to be substituted
for the present régime of the said free zones; which the French
Government intend to formulate in the same friendly spirit.

Moreover, the. ‘French. Government have no doubt ‘that the
provisional maintenance of the régime of 1815 as to the free
zones referred to in the above-mentioned paragraph of the note
from the Swiss Legation. of May 5th, whose object is to
provide for the passage from the present régime to the -con-
ventional régime, will cause no delay. whatsoever in the
establishment of the new situation which has been found neces-
sary by the two Governments. This remark. applies also to
the ratification by the Federal Chambers, dealt. with in para-
graph 1 (a) of the Swiss note of May 5th, under the heading
‘Neutralized zone of Haute-Savoie’.”

This note was subsequently. inserted im’ the Treaty of Peace
signed at Versailles on June 28th, 1919, immediately after the
text of the Swiss note of May 5th, 1919; and like the latter,
as an annex to Article 435 of the: Treaty. ;

On May 2oth, the Swiss Government replied to the French
note of May 18th, 1919. This reply stated, inter aha:

“Since there was in fact no time for an exchange of views
on the interprétation to be given to the article ‘proposed -by
the French Government, the Federal Council, out of deference
to the latter and in a desire to meet its wishes, by. its sub-
sequent note of May 5th, acquiesced, subject to the. most
express reservations, in the text proposed by the French
Government.

38
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I3r

The Federal Council adheres in full to its reservations which
have furthermore been inserted in the Acts of the Conference.
This viewpoint is all the more well-founded since the text
proposed by the French Government was inserted in the Peace
Treaty solely with a view to securing the disinterestedness of
the Signatory Powers. This text cannot therefore prejudice
the basic question, viz., the contents of the convention to be
negotiated between the Swiss and French Governments.

The Federal Council. feels that it should specifically state
that the article inserted. in the Peace Treaty in no way
invests the stipulations of the treaties of 1815 and other
supplementary acts concerning the free zones with a provi-
sional character; these stipulations remain in force as they
stand and can neither be modified nor replaced except by a
joint agreement between Switzerland and France.”

In the same note, the Swiss Government alluded to the
negotiations concerning the settlement of the future régime of
the zones which had been envisaged since the beginning of
the year and. intimated that it was continuing the necessary
investigations for this purpose, and notably its examination of
the French draft of April rgr9.

In its reply sent by the French Ambassador at Berne on
June 14th, 1919, the French Government expressed a wish
that Swiss negotiators should be appointed as early as possible
“with a view to the conclusion of an agreement meeting the
wish of both countries to consolidate their friendly relations
and taking account of the respective interests of their peoples’’.
- By a note dated July ist, 1919, the Federal Political Depart-
ment drew the attention of the French Embassy “‘to the fact
that the Federal Council found it difficult to reconcile the
draft convention submitted to it on April 29th, 1919, with the
reservations, which it expressly formulated in its note of
May 5th, concerning any modification of the existing régime
which involved the establishment of the French customs at the
political frontier of the two countries’.

The note added that the Federal Council was still “anim-
ated with the strongest desire to conclude, as soon as pos-
sible, an arrangement acceptable to both countries and of
such a nature as to facilitate trade relations between the free
zones and Switzerland”.

39
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 132

The matter rested there until October rst, I919, when the
Swiss Government communicated to the French Embassy
the names of the Swiss delegates who, with the French repre-
sentatives, were to negotiate the future régime of the free
zones of Upper Savoy and the District of Gex, and announced
that the Embassy would shortly receive a draft convention
for good neighbourly relations prepared by the Swiss authorities.

This communication was in fact the starting point of long
and difficult’ negotiations, pursued both through ordinary diplo-
matic channels and through conversations between delegations
appointed for .the purpose, and culminating on August. 7th,
1921, in the signature of a Convention ‘for. the settlement of
commercial and neighbourly relations between the former free
zones of Upper Savoy and the District of Gex and the adja-
cent Swiss cantons’. As its title suggests, this Convention
was based on the abolition, with adequate compensation; of
the said zones, ie., on the transfer of the French customs
cordon to the political frontier.

The Convention was approved by the Parliaments of both
countries. In consequence, however, of a demand to that
effect, made in accordance with the Constitution of the Swiss
Confederation, the Convention had to be submitted to a popu-
lar vote; this vote, which took place on February 18th, 1923,
having proved adverse, the Swiss Legation at Paris, on March roth,
1923, informed the French Government that the Federal Gov-
ernment was unable to ratify the Convention. |

During the negotiations which preceded the conclusion ‘of
the Convention of August 7th, 1921 (note from the French
Ministry for Foreign Affairs dated December 25th, 1919), it
had been arranged that the agreements concerning the régime
of the free zones which were due to expire on January 1st,
1920, should remain provisionally in force, and that this tem-
porary régime could not be terminated without at least a
month’s notice.

On the other hand, during the same. negotiations, the French
Government had. informed the Swiss Government, in a note

40
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 133

dated March 26th, 1921, from the French Embassy at Berne
that it felt bound henceforward to envisage the establishment
of the French customs cordon at the frontier and to introduce
a bill authorizing it to take this step; the law in question
would, however, not be enforced until the expiration of the
required time for notice mentioned above.

This law was passed on February 16th, 1923; Article I
reads :

“Along the entire frontier, between France and Switzer-
land, the national customs line shall be established at the
limit of the territory of the Republic.

Consequently, and subject to the provisions of the
articles hereafter, the so-called ‘free zones’ regions shall,
in all respects and especially in respect of indirect taxes,
henceforth be placed under the same régime as the whole
of French territory.”

Certain attempts to re-open negotiations had been made on
either hand, in view of the results of the Swiss referendum of
February 18th, 1923 ; as they had led to no result, the French
Ministry for Foreign Affairs forwarded a note, dated October roth
of that year, to the Swiss Minister at Paris denouncing
the provisional régime in force for the free zones as from
November 1oth following, in accordance with the note of
December 25th, 1919, and notifying Switzerland that the law
of February 16th, 1923, introducing the new customs status
of the free zones of the District of Gex and Upper Savoy,
would also become applicable on November roth, 1923.

The Swiss Government replied on October 17th, 1923, pro-
testing against the French Government’s decision. The note
which the Swiss Minister at Paris wrote on this subject to
the French Government contained inter alia the following state-
ment:

“The Federal Government is compelled, to its great regret,
to consider that all possibility of direct negotiations is exclud-
ed, for the time being. Such negotiations would only again
become possible if the French Government should declare that
the application of the law of February r6th, 1923, will remain
definitely suspended throughout the negotiations. As it is,
the Swiss Government sees no other regular way out of the
dispute except by arbitration. It considers that the disputed

41
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 134

points should be submitted to the Permanent Court of Inter-
national Justice at The Hague, and it requests the Govern-
ment of the Republic to be good enough to agree to that
procedure. Should the last-named Government prefer some
other arbitral tribunal, it. would be easy to agree on that
point. The substantial points at issue might be formulated
as. follows :

1°. Are the rights which the Swiss Confederation has hitherto
detived from the treaties of 1815 and r8r6 still in force ?

2° Can Article 435, last paragraph, of the Treaty of
Versailles be invoked against the Confederation, except within
the meaning and the limits laid down by the Federal Council
in its note of May 5th, 1919 ?” .

A diplomatic correspondence ensued, in the course of which,
inter alia, the Swiss proposal that the application of the
French law of February 16th, 1923, should be suspended »
throughout the further negotiations, was rejected. On the
other hand, on January 22nd, 1924, the French Minister for
Foreign. Affairs sent the Swiss. Minister at Paris a draft
Special Arbitral Agreement imparting the following duties to
a tribunal of three arbitrators, which would have power’ to
act as amiable compositeur : |

“To determine whether. the Convention concluded between
the Government of the Republic and the Federal Government
on August 7th, 1921, gave the latter the advantages it was
entitled to expect ;

To determine whether the aforesaid Convention provides the
districts concerned in France and Switzerland. with a customs
régime regulating the conduct of trade between the said dis-
tricts in a manner consistent with present economic condi-
tions.”

In his reply, dated February 14th, 1924, the Swiss Minister
referred to the suggestion for international judicial proceedings
which he had put forward in his note of October 17th, 1923,
and indicated the difference between that suggestion and the
French draft Special Agreement in the following terms:

the draft Special Agreement of the French Government
is “based, not on the idea of a legal arbitration bearing on
the difference of interpretation which constitutes the crux of
the dispute, but on the totally distinct idea of appointing three
persons, whose chief task would be to determine, as composi-
leurs amiables, whether the Convention of August 7th, 1927,

42
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 135

which the Swiss people have rejected, gave the Confederation
the advantages which it was entitled to expect”.

Not being able to entertain the ideas advanced by the
French Government, the Federal Council sent the French
Government an alternative draft Special Agreement, providing
for a “legal arbitration’? to be undertaken by the Permanent
Court of International Justice. By the terms of this altern-
ative draft, the Court would have had to pronounce on the
following questions :

“Are the provisions of the Treaty of Paris of November 2oth,
1815, of the Protocol of the Conference of Paris of Novem-
ber 3rd, 1815, and of the Treaty of Turin of March 16th,
1816, regarding the customs régime of the free zones of
Upper Savoy and the District of Gex still in force, or has
Article 435 of the Treaty of Versailles, in the conditions under
which the Swiss Federal Council acquiesced therein, had the
effect of abrogating the said provisions?

If it is held that the said provisions are still in force, the
Permanent Court of International Justice will be requested
to pronounce on the second question, as follows:

Can France, by a unilateral act, abolish the régime of the
free zones of Upper Savoy and the District of Gex on the
ground that, in the case in point, the act is one which falls
exclusively within its domestic jurisdiction ?”

Following on this exchange of proposals, it was agreed in
March 1924, on the proposal of the French Government, to
instruct two jurists, French and Swiss, to prepare a draft
Special Agreement, which would then be submitted by them
for approval to their respective Governments.

The jurists appointed by the two Parties, in pursuance of
this agreement, drew up the Special Arbitration Agreement
which was signed at Paris on October 30th, 1024, by the
French Minister for Foreign Affairs and the Swiss Minister
at Paris, and which came into force on March 21st, 1928, as
stated above.

According to Article 2, paragraph 1, of the Special Agree-
ment, the Court shall, ‘‘by means of a single judgment
rendered in accordance with Article 58 of the Court’s Statute,

6 43
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 136

pronounce its decision in regard to the question formulated
in Article 1 and settle for a period to be -fixed by it and
' having regard to present conditions, all the questions involved
by the execution of paragraph 2 of Article 435 of the
Treaty of Versailles’’.

The question which the Court must first pass upon is,
according to Article 1, paragraph x, of the Special. Agreement,
“whether, as between France and Switzerland, Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes,
has abrogated or is intended to lead to the abrogation of the
provisions of the Protocol of the Conference of Paris of
November 3rd, 1815, of the Treaty of Paris of November 2oth,
1815, ‘of the Treaty of Turin of March r6th, 1816, and of
the Manifesto of the Sardinian Court of Accounts of Sep-
tember gth, 1829, regarding the customs and economic régime
of the free zones of Upper Savoy and the Pays de Gex,
having regard to all facts anterior to the Treaty of
Versailles, such as the establishment of the Federal Customs
in 1849, which are considered relevant by the Court”.

The expression ‘as between France and Switzerland” has
the effect of limiting the function of the Court to that of
determining the reciprocal rights and obligations arising, in
connection with the régime of the free zones, for these two
countries, under Article 435, paragraph 2, of the Treaty of
Versailles, with its Annexes, apart from the legal relations
created as between the signatories of the said Treaty resulting
from this Article. That does not, however, prevent the Court
from expressing its opinion on the import of Article 435,
paragraph 2, as it stand, with a view to determining the
effect of that clause, as between France and Switzerland.

This is not disputed between the Parties. On the other
hand, the latter are unable to agree as to the exact meaning —
and import of the question referred to the Court. The
French Government contends that Article 1 of the Special
Agreement, in asking the Court to say whether Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes,
“has abrogated or is intended to lead to the abrogation” of
the provisions concerning the free zones, put forward two
propositions, between which the Court must make its choice.
The Swiss Government contests this view, and maintains that

44
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 137

the Court’s duty, under the terms of the said question, is to
reply in the negative to both propositions, if it finds this
result necessary for a correct interpretation of Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes.

In order to settle this divergence, it is first of all necessary
to be clear as to the meaning of the words “intended to lead
to the abrogation”.

Neither of the Parties disputes that, if France and Switzer-
land succeeded in reaching the agreement provided for in
Article 435, paragraph 2, of the Treaty of Versailles, and in
Article 2, paragraph 1, of the Special Agreement, that agree-
ment, whatever its contents might be, would have the effect
of abrogating the former provisions as such. Both Parties
appear to agree that, in the passage “is intended to lead to
the abrogation’, abrogation is regarded as necessary, and not
‘merely as a possible result of the common agreement: in
other words, that Switzerland would then be obliged to accept,
as a basis for the future negotiations contemplated by Arti-
cle 435, paragraph 2, of the Treaty of Versailles, and by
Article I, paragraph 2, of the Special Agreement, the abolition
of these zones, including in particular the transfer of the
French Customs line in these territories to the political frontier.

It is from this standpoint that the French Government
maintains that the Court must limit itself to finding, either
that the abolition has already been effected, or else that it
must necessarily be effected. It is also from this standpoint
that the Swiss Government contends that Article 435, para-
graph 2, of the Treaty of Versailles, with its Annexes, has
neither abrogated nor has obliged Switzerland to consent to the
abrogation of the old provisions, and that the Court must
give judgment to that effect.

It follows that, if the Court, in seeking to answer the ques-
tion put to it by the Special Agreement, were not to construe
the expression ‘‘is intended to lead to the abrogation’ as
meaning “is intended necessarily to lead to the abrogation’,
its reply would fail to remove the whole of the divergence
which exists between France and Switzerland, and which. has
led them to have recourse to the Court. .

45
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 138

Having thus made clear the import of the question, it is
necessary to add the following observations :

From a general point of view, it cannot lightly be admitted

that the Court, whose function it is to declare the law, can
be called upon to choose between two or more constructions
determined beforehand by the Parties, none of which may
correspond to the opinion at which it may arrive. Unless
otherwise expressly provided, it must.be presumed that the
Court enjoys the freedom which normally appertains to it,
and that it is able, if such is its opinion, not only to accept
one or other of the two propositions, but also to reject them
both.
This conclusion is confirmed by the words in the Preamble
of the Special Agreement, which states that the Parties have
been unable to agree in regard to the interpretation to be
placed upon Article 435, paragraph 2, of the Treaty of Ver-
sailles, with its Annexes, and have decided to resort to arbi-
tration in order to obtain this interpretation. It is, accordingly,
the correct interpretation of Article 435, paragraph 2, of the
Treaty of Versailles, with its Annexes, which the Parties ask
the Court to give them, in order to remove the divergence
existing between them.

It is common ground that the real divergence, which has
made it impossible for France and Switzerland to agree, has
turned on the question whether the free zones could be abol-
ished without the consent of Switzerland. Now, the possibil-
ity of answering both propositions either in the affirmative or
in the negative could in no way prejudice the position of
France ; whereas the exclusion of a negative answer to both
propositions would amount to deciding the merits of the ques-
tion in advance against Switzerland. It is scarcely reasonable
to suppose—indeed, such a supposition would be irreconcilable
with the documents before the Court—that, at the moment
when the dispute was about to be submitted to a judicial
organ, Switzerland abandoned the legal position which she
has constantly maintained in. regard to the very point on
which, the two Parties are now divided.

The Court does not dispute the rule invoked by the French
Government, that every Special Agreement, like every clause

46
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 139

conferring jurisdiction upon the Court, must be interpreted
strictly ; but that rule could not be applied in such a way as
to give the Special Agreement, under the guise of strict inter-
pretation, a construction according to which it would not only
fail entirely to enunciate the question really in dispute, but
would, by its very terms, have prejudged the answer to that
question.

It follows that, if the Court arrives at the conclusion that
Article 435, paragraph 2, of the Treaty of Versailles, with its
Annexes, has not, as between France and Switzerland, abrog-
ated the old provisions concerning the free zones, it is not
obliged to say that the clause in question has for its object
their abolition, but, on the contrary, may equally say that
this is not the intention of the Article, with its Annexes.

The first point which the Court has to examine is whether,
as between France and Switzerland, Article 435, paragraph 2,
of the Treaty of Versailles, with its Annexes, has abrogated the
provisions concerning the free zones.

Although the question put to the Court has in view the
effects of Article 435, paragraph 2, with its Annexes, it may
be of advantage to consider first what is the import of this
provision, disregarding the Annexes.

Article 435, paragraph 2, begins by a declaration: ‘The
High Contracting Parties also agree that the stipulations of
the treaties of 1815 and of the other supplementary acts
concerning the free zones of Upper Savoy and the Gex
District are no longer consistent with present conditions.”
This declaration is linked by the actual text of Article 435,
paragraph 2, to the conclusion ‘that it is for France and Swit-
zerland to come to an agreement together with a view to
settling between themselves the status of these territories
under such conditions as shall be considered suitable by both
countries’. The declaration thus made by the High Contract-
ing Parties and the conclusion which they draw from it are
explained by a series of facts which had arisen between the
time of the creation of the free zones and the date of the
Treaty of Versailles. It is for that reason that Article 1,

47
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX ‘I40

paragraph 1, of the Special Agreement invites the Court to
discharge the duty entrusted to it, having regard to all facts
anterior to the Treaty of Versailles, such as the establishment
of the Federal Customs in 1849, which are considered relevant
by the Court. From this standpoint, the’ facts referred to
above, taken together, are clearly relevant to the question
submitted to the Court. | |

The text itself of Article 435, paragraph 2, of the Treaty
of Versailles draws from the statement that the former provi-
sions are not consistent with present conditions no other con-
clusion but that France and Switzerland are to settle between
themselves the status of the free zones—a conclusion which is
tantamount to a declaration of disinterestedness in regard to
their status on the part of the High Contracting Parties. other
than France. In particular, this text does not set forth the |
conclusion that abrogation of the old stipulations relating | *
to the free zones is a necessary consequence | of this inconsist-
ency.

In. arriving at this conclusion, the Court has not failed,
in accordance with Article 1 of the Special Agreement, to
have regard to all facts anterior to the Treaty of Versailles,
such as the establishment of the Federal Customs in 1849,
which it considers relevant; but no fact which has been
brought to its knowledge seems to it calculated to weaken its
conclusion. The question whether France can adduce these
facts to support a claim that the old stipulations have lapsed
as a result of the change in conditions will be considered below.

Moreover, it must not be overlooked that Article 435, both
by reason of its position in the Treaty of Versailles and of

( Its origin, forms a complete whole: it would therefore be

impossible to interpret the second paragraph without regard
to the first paragraph. But, in the first paragraph, the High
Contracting Parties, after noting that the provisions of these
“treaties, conventions, declarations and other supplementary
acts concerning the neutralized zone of Savoy. .... are no longer
consistent with present conditions’, go on to declare ‘that
“for this reason” they “take note of the agreement reached
between the French Government and the Swiss Government
for the abrogation of the stipulations relating to this. zone”,
and add that these provisions “are and remain abrogated”.

48
FREE ZONES OF UPPER SAVOY: AND DISTRICT OF GEX TAT

It follows that the expression “no longer consistent with
present conditions”, when used in the first paragraph of the
Article, constitutes the ground.on which the High Contracting
Parties acquiesce in an agreement already concluded between
France and Switzerland for the abolition of the neutral zone.
When used in the second paragraph, these same words “are
no longer consistent with present conditions’ constitute the
ground on which the High Contracting Parties declare that
they acquiesce in a future agreement between France and
Switzerland. Hence, no matter what its significance might be
in other contexts, it is scarcely possible to regard the expres-
sion “are no longer consistent with present conditions’ as
ipso facto involving in the second paragraph of the Article the
abolition of the free zones, since in the first paragraph its
meaning is not such as automatically to involve the abolition
of the neutralized zone.

It follows from. the foregoing that Article 435, paragraph 2,
as such, does not involve the abolition of the free zones. But, °*
even were it otherwise, it is certain that, in any case, Article 435 :
of the Treaty of Versailles is not binding upon Switzer-
land, who is not a Party to that Treaty, except to the extent
to which that country accepted it. That extent is determined
by the note of the Federal Council of May 5th, 1919, an
extract from which constitutes Annex I of the said Article.
It is by that instrument, and by it. alone, that Switzerland
has acquiesced in the provision of Article 435; and she did
so under certain conditions and reservations, set out in the
said note, which states, inter alia: “The Federal Council would
not wish that its acceptance of the above wording [scil.
Article 435, paragraph 2, of the Treaty of Versailles] should
lead to the conclusion that it would agree to the suppression
of a system intended ‘to give neighbouring territory the benefit
of a special régime which is appropriate to the geographical
and economical situation and Which has been well tested.”
And again: “In the opinion of the Federal Council, the
question is not the. modification of the customs system of the
zones as set up by the treaties mentioned above, but only
the regulation in a manner more appropriate to the economic
conditions of the present day of the terms of the exchange
of goods between the regions in question.”

49
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 142

No reservation could be more explicit. It is true that the
Federal Council’s note also contains the following passage:
“It is conceded that the stipulations of the treaties of 1815
and other supplementary acts relative to the free zones will
remain in force until a new arrangement is come to between
France and Switzerland to regulate matters in this territory.”
Certainly, if a mew arrangement were concluded between
France and Switzerland, that arrangem nt, whatever its con-
tents might be, would, as observed above, abrogate the former
provisions as such. But it does not appear how this admission
could imply the consent of Switzerland to the abrogation of
the zones, thus making the declarations and reservations in
her note of no effect.

As regards the French note of May 18th, 1919, which
constitutes Annex II of Article 435 of the Treaty of Versailles,
the following observations are called for: Although the Court’s
task is to interpret the said Article ‘‘with its Annexes”, the
Court nevertheless remains’ free to estimate the weight to be
attached from this point of view to each of the Annexes. What-
ever value may attach to the French note of May 18th, it
cannot, in any circumstances, affect the conditions of the
Federal Council’s acquiescence in the Article in question, that
acquiescence being a unilateral act on the part of Switzerland.
Moreover, even if it were thought possible to attribute the
same legal weight to each of the notes, they would mutually
cancel each other, and the text of Article 435, paragraph 2,
would again become decisive, and that text, a$ has been seen,
does not imply the abrogation of the free zones.

The Court, therefore, reaches the conclusion that Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes,
has not abrogated the régime of the free zones as between
France and Switzerland.

The second point which the Court has to consider is whether
Article 435, paragraph 2, of the Treaty of Versailles, with its
Annexes, is intended to lead to the abrogation, as between
France and Switzerland, of the provisions relating to the

50
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 143

free zones. It has already been explained why the Court
regards the expression ‘‘is intended to lead to the abrog-
ation”, as meaning ‘‘is intended necessarily to lead to the
abrogation”, i.e. to create for Switzerland an obligation to
proceed, in conjunction with France, to abrogate provisions
acknowledged to be no longer consistent with present condi-
tions. Such an obl gation would only be conceivable in one
or other of the following eventualities :

A) If by acquiescing in Article 435 of the Treaty of Ver-
sailles, subject to the considerations and reservations set out
‘, in the note of May 5th, 1919, Switzerland had bound herself to
enter into negotiations for an agreement involving the abrog-
ation of the free zones’ régime.

B) If Switzerland’s consent to such abrogation were not
necessary, because she had no actual right to the free zones.

As regards A: As has already been observed, Article 435,
paragraph 2, of the Treaty of Versailles does not draw from
the statement as to the inconsistency of the former stipu-
lations concerning the free zones with present conditions any
consequence other than that it is for France and Switzerland
to come to an agreement together with a view to settling be-
tween themselves the status of those territories, under such
conditions as shall be considered suitable by both countries,
without in any way prejudging the question of the contents
of this agreement which therefore may or may not, according
to the common will of the Parties, lead to the abrogation
of the régime of the free zones.

But, even supposing that the words “it is for France and
Switzerland to come to an agreement together with a view to
settling between themselves the status of these territories
under such conditions as shall be considered suitable by
both countries’ were interpreted as a mandate involving an
obligation for France and Switzerland to proceed to abrogate
provisions acknowledged to be no longer consistent with
present conditions—rather than as an authorization resulting
from the disinterested attitude assumed by the Powers which
had signed the old treaties—this mandate would not be
enforceable as against Switzerland, which has not accepted it.

7 . 51
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 144

For, in her note of May 5th, T9T9, Switzerland has declared
her readiness to co-operate in “the regulation in a manner
more appropriate to the economic conditions of the present
day of the terms of the exchange of goods between the
| regions in question”, but she explicitly rejects the idea of a
“modification of the customs system of the zones as set up
by the treaties mentioned above”. In these circumstances,
it is impossible to interpret the above-mentioned note as an
acceptance by Switzerland of a mandate to abrogate the free
zones; for the régime of the free zones—that is to say the
withdrawal of the French customs cordon—lies at the very
root of the “customs system” which Switzerland refused to
modify. ) |

As regards B: It remains then to consider whether it is
possible for France to abrogate the free zones régime without
Switzerland’s consent.

Generally speaking, the very terms of Article 435, para-
graph 2, appear to presuppose the existence of a right on
the part of Switzerland derived from the old stipulations. It
is hard to understand why the Powers which signed the
Treaty of Versailles, if they considered that Switzerland’s
consent was not necessary, did not declare the free zones
abrogated on their own authority.

Again, it is certain that Article 435 is a provision which
formed the subject of negotiations entered into at the request
of France between that Power and Switzerland; that Switzer-
land’s consent was actually asked and that various proposals
were submitted to her before it was obtained; finally, that
the High Contracting Parties inserted, immediately after
Article 435, the Swiss note of May 5th, 1910, which note is,
in the Court’s opinion, like the successive proposals made by
France in order to obtain it, entirely based on the existence
of a right on the part of Switzerland to the free zones.

With particular regard to the Sardinian zone, it is to be
observed that Switzerland, in her capacity as a Party to the
Treaty signed at Turin on March r6th, 1816, has acquired
a contractual right to the withdrawal of the French customs
cordon in this region. It is true that following upon the
Protocol of November 3rd, 1815, Sardinia, by a note of

52
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I45

November rith, gave an undertaking to the Powers to create
the Sardinian zone; and to do so by means of a convention
with Switzerland. But this circumstance does not deprive the
Treaty of Turin of its independent value as a convention
between Sardinia and Switzerland.

With particular regard to the zone of Saint-Gingolph, the
Court, being of opinion that the Treaty of Turin of March r6th,
1816, has not been abrogated by Article 435, paragraph 2, of
the Treaty of Versailles, with its Annexes, the same is true
as regards the Manifesto of the Royal Sardinian Court of
Accounts of September gth, 1829. This Manifesto, moreover,
which was issued in pursuance of royal orders, following upon
the favourable reception by H.M. the King of Sardinia of the
request of the Canton of Valais based on Article 3 of
the said Treaty of Turin, terminated an international dispute
and settled, with binding effect as regards the Kingdom of
Sardinia, what was henceforward to be the law between the
Parties. The concord of wills thus represented by the Mani-
festo confers on the delimitation of the zone of Saint-
Gingolph the character of a treaty stipulation which France

must respect as Sardinia’s successor in the sovereignty over ,
a

the territory in question.

With particular regard to the zone of Gex, the following
is to be noted:

Pursuant to Article 6 of the Treaty of Paris of May 3oth,
1814, the Powers assembled at the Congress of Vienna
addressed to Switzerland, on March 2oth, 1815, a ‘“Declar-
ation” to the effect that “‘as soon as the Helvetic Diet shall
have duly and formally acceded to the stipulations in the
present instrument, an act shall be prepared containing
the acknowledgment and the guarantee, on the part of all the
Powers, of the perpetual neutrality of Switzerland, in her
new frontiers!”. The “instrument” which forms part of this
Declaration, amongst other territorial clauses, provides that
the line of the French customs is to be so placed ‘that the
road which leads from Geneva into Switzerland by Versoy,
shall at all times be free?’.

The proposal thus made to Switzerland by the Powers
was accepted by the Federal Diet by means of the “act of

1 Translation taken from The Map of Europe by Treaty, 1814-1875, Hertslet.
53
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 146

acceptance” of May 27th, 1815; according to this act, “the
Diet accedes, in the name of the Swiss Confederation, to
the Declaration of the Powers assembled at the Congress of
Vienna under date of the zoth March, 1815, and promises
that the stipulations contained in the Transaction inserted in
this Act shall be faithfully and religiously observed 1”.

On receipt of Switzerland’s formal declaration of acceptance,
the Powers drew up the instrument promised in their Declar-
ation of March 2oth: this instrument is the Declaration of
November 2oth, r815.

By this Declaration, signed inter alios by France, ‘the
Powers who signed the Declaration of the 2oth of March
declare .... their formal and authentic acknowledgment of
the perpetual neutrality of Switzerland; and they guarantee
to that country the integrity and inviolability of its territory
in its new limits, such as they are fixed, as well by the ‘Act
of the Congress. of Vienna as by the Treaty of Paris of this
day, and such as they will be hereafter; conformably to the
arrangement of the Protocol of November. 3rd, extract of
which is hereto annexed, which stipulates in favour of the
Helvetic Body a new increase of territory, to be taken from
Savoy, in order to disengage from enclaves, and complete
the circle of the Canton of Geneva’.

The “new limits” of Switzerland “fixed .... by the Treaty
of Paris of this day’ are indicated in the first article of
that Treaty, the preamble and paragraph 3 of which are as
follows : :

“The frontiers of France shall be the same as they v were
in the year 1790, save and except the modifications on
one side and on the other, which are detailed in the
present Article. |

3. In order to establish a direct communication between
‘the Canton of Geneva and Switzerland, that part of
the Pays de Gex, ‘bounded on the east. by Lake
Leman; on the south, by the territory of the Canton
“of Geneva ; on the north, by that of the Canton of
Vaud; on the west, by the course of.the Versoix,
and by a line which comprehends .the communes. of

1 Translation taken from The Map of Europe by Treaty, 1814-1875, Hertslet.
54
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 147

Collex-Bussy, and Meyrin, leaving the commune of

Ferney to France, shall be ceded to the Helvetic Con-

federacy, in order to be united to the Canton of Geneva.

The line of the French Customs-houses shall be placed

to the west of the Jura, so that the whole of the
’ Pays de Gex shall be without that line 1.”

The extract from the Protocol of November 3rd which, is

attached to the Declaration, contains the following provision :
“The French Government having consented to withdraw
its lines of custom and excise from the frontiers of Swit-
zerland, on the side of the Jura, the Cabinets of the :
Allied Powers will employ their good offices for inducing
His Sardinian Majesty to withdraw in like manner, his
lines of custom and excise, on the side of Savoy, at least
upwards of a league from the Swiss frontiers, and on the
outside of the great road of Saleve, and of the moun-
tains of Sion and Vuache !”

It follows from all the foregoing that the creation of the

Gex zone forms part of a territorial arrangement in favour
of Switzerland, made as a result of an agreement between
that country and the Powers, including France, which agree-
ment confers on this zone the character of a contract to
which Switzerland is a Party.
_ It also follows that no accession by Switzerland to the Declar-
ation of November zoth was necessary and, in fact, no such
accession was sought: it has never been contended that this
Declaration is not binding owing to the absence of any acces-
-‘sion by Switzerland.

The Court, having reached this conclusion simply on the
basis of an examination of the situation of fact in regard to
this case, need not consider the legal nature of the Gex zone
from the point of view of whether it constitutes a stipulation
in favour of a third Party.

But were the matter also to be envisaged trom this aspect,
the following observations should be made:

It cannot be lightly presumed that stipulations favourable
to a third State have been adopted with the cbject of creating
an actual right in its favour. There is however nothing to pre-
vent the will of sovereign States from having this object and
this effect. The question of the existence of a right acquired

1 Translation taken from The Map of Europe by Treaty, 1814-1875, Hertslet.

55
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 148

under an instrument drawn between other States is there-
fore one to be decided in each particular case: it must be
ascertained whether the States which have stipulated in favour
of a third State meant to create for that State an actual )
right which the latter has accepted as such.

Al the instruments above mentioned and the circumstances
in which they were drawn up establish, in the Court’s opinion,
that the intention :of the Powers was, beside ‘‘rounding out”
the territory of Geneva and ensuring direct communication
between the Canton of Geneva and the rest of Switzerland,
to create in favour of Switzerland a right, on which that |
country could rely, to the withdrawal of the French customs |
barrier behind the political frontier of the District of Gex, that mt)
is to say, of the Gex free zone.

In this connection, it should be recalled that the free zone
of Gex which was asked for by Switzerland as an alternative
to the cession of that territory, constitutes one of the terri-
torial stipulations contemplated by the first Treaty of Paris
of 1814, and which were made effective by stages by means of
the decisions of the Congress of Vienna and the second Treaty
of Paris, and are referred to in the Declaration addressed by
the Powers to Switzerland on November 2oth, 1815.

It should also be recalled that the establishment of the
Sardinian zone is the counter-part of the establishment of thé
Gex zone, that the Powers, including France, undertook to
obtain this counter-part from the King of Sardinia and that,
according to the Powers’ note to Sardinia of November 2oth,
1815, this was to be effected by means of ‘a convention
between Sardinia and Switzerland. It is difficult to see why
Sardinia should have been called upon to concede a right to
Switzerland by way of a counter-part, if the Gex zone had
been regarded, so far as Switzerland was concerned, as a mere
benevolent concession devoid of any solid legal basis. In actual
fact, throughout the long period during which the rights
claimed by Switzerland have been acknowledged, no distinction
would appear to have been drawn between the two Zones ;
nor does Article 435, paragraph 2, of the Treaty of Versailles
make any distinction between them. ;

56
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I49

In the Court’s opinion, the French Government’s submission
that, as Switzerland has no right to the free zones, the latter
can be suppressed without her consent, is not tenable.

Accordingly, with regard to the question put by Article 1,
paragraph 1, of the Special Agreement, the Court arrives at
the conclusion that, as between France and Switzerland, Arti-
cle 435, paragraph 2, of the Treaty of Versailles with its An-
nexes neither has abrogated nor has for its object the abrog-
ation of the provisions of the Protocol of the Conference of.
Paris of November 3rd, 1815, of the Treaty of Paris of Novem-
ber 2oth, 1815, of the Treaty of Turin of March 16th, 1816, or
of the Manifesto of the Sardinian Court of Accounts of Sep-
tember oth, 1820, regarding the customs and economic régime
of the free zones of Upper Savoy and the Pays de Gex.

*
% *

Having thus shown what reply must, in its view, be given
to the question enunciated in Article 1 of the Special Agree- .
ment, and the Parties having been unable, within the time-
limit granted pursuant to paragraph 2 of that Article, ‘‘to
settle between themselves the new régime” of the territories
in question “under such conditions as they may consider
expedient, as provided in Article 435, paragraph 2” of the
Versailles Treaty, the Court passes on to an examination of
the questions ensuing from the task entrusted to it under
Article 2 of the Special Agreement, the first paragraph of
which is as follows: :

“Failing the conclusion and ratification of a convention
between the two Parties within the time specified, the Court
shall, by means of a single judgment rendered in accordance
with Article 58 of the Court’s Statute, pronounce its decision
in regard to the question formulated in Article xr and settle
for a period to be fixed by it and having regard to present
conditions, all the questions involved by the execution of
paragraph 2 of Article 435 of the Treaty of Versailles.”

57
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I50

As regards this task, the Court is confronted by a funda-
mental difference in the standpoints of the Parties. According
to the French Government, the Court is required to effect, on
behalf and instead of France and Switzerland, the settlement
contemplated by Article 435, paragraph 2, of the Treaty of
Versailles. The Court, therefore, would have the same powers
and the same freedom of judgment and decision as France and
Switzerland themselves have in negotiating the agreement
contemplated by this Article of the Treaty. Just as France
and Switzerland themselves would not have been bound by
the conclusions of the Court’s deliberation upon the question
formulated in Article 1 of the Special Agreement, so the Court
would not be bound by those conclusions. In deciding what
régime shail be instituted, the Court would not be bound even
in part by the stipulations of the treaties of 1815 and 1816
and the supplementary acts referred to in paragraph 2 of
Article 435 of the Treaty of Versailles. The Court, on the
contrary, would have to establish the régime which appeared
to it to be most expedient having regard to present condi-
tions, and it would be free, according to its view of the con-
ditions, either to abolish the zones or to maintain them.

This is the assumption upon which the French Government
submitted to the Court ‘draft regulations”, based on the
abolition of the free zones, the juxtaposition of the customs
cordons at the political frontier and the institution of a spe-
cial frontier régime involving the permeability of the two
customs cordons.

The Swiss Government, on the other hand, urges inter alia
that the Court must, “by a single judgment”, first of all
decide the question enunciated in Article 1 of the Special
Agreement touching the interpretation of Article 435, para-
graph 2, with its Annexes, and then settle all the questions
involved by the execution of that paragraph; Switzerland
therefore considers that the Court has not merely to make
this settlement on grounds of expediency, but that the settle- ;
“ ment to be established must be founded on respect for Swit- |
zerland’s rights as recognized by the Court in its answer to
the question enunciated in Article 1 of the Special Agreement.

58
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX ISI

Since the Court has recognized that the stipulations which
created the free zones conferred on Switzerland a right to
these zones, and that, as between France and Switzerland,
Article 435, paragraph 2, of the Treaty of Versailles with its
Annexes has not abrogated the stipulations in question and
is not intended necessarily to lead to their abrogation, it
follows, according to the Swiss Government, that the Court
cannot execute that Article except in accordance with the
interpretation thus given, and that, consequently, as long as
Switzerland does not renounce her right, it cannot decide that.”
the free zones are to be abolished. The Court might well / \
adapt the zones’ régime to present conditions, since Switzer-
land consents thereto, but beyond that it could not go. |

Accordingly, the draft decision submitted by the Swiss
Government in 1930 with the request that the Court should
adopt it consisted of just such an adaptation.

In view of these contentions, it must be noted, firstly, that
the provision whereby the Court must fulfil the task entrusted
to it under Article 2 of the Special Agreement “by a single
judgment”, seems to indicate a connection between both parts
of this task, and that the conclusion reached by the Court
in answering the question in Article x, paragraph 1, of the
Special Agreement cannot be irrelevant to the fulfilment of
that part of its task which consists in settling all the ques-
tions involved by Article 435, paragraph 2, of the Treaty of
Versailles.

In fact, it is hardly conceivable that a single judgment
should contain in the first place the interpretation of Article 435,
paragraph 2, of the Treaty of Versailles with its Annexes
on the point whether, as between France and Switzerland,
that Article, with its Annexes, abrogated or was intended to
lead to the abrogation of the stipulations enumerated in
Article 1 of the Special Agreement, and then go on to lay
down in connection with the settlement of the question involv-
ed or the execution of the same Article, provisions which
disregarded or conflicted with the interpretation given by the
Court.
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 152

© Similarly, it seems impossible to suppose.that the Parties
could. have desired to obtain definite indications; before the
negotiations referred to in Article 1, paragraph 2, of the
Special Agreement, in regard to the points indicated in the first
paragraph of that Article, if, in the event of the failure of the
negotiations, the Court had been free to settle the régime on
a basis other than that indicated to the Parties at the close
of its deliberation. The whole of the procedure contemplated
by Article x of the Special Agreement and the interpretative
notes annexed thereto would, in fact, cease to have any
object if the Court, in making the settlement contemplated
by Article 2 of the Special Agreement, could disregard its
own interpretation of Article 435 of the Treaty of Versailles.

This procedure is only explicable on the assumption that
the Parties were mainly concerned to reach a friendly agree-
ment, and thought such an agreement could not be attained
as long as the questions raised in Article x of the Special
Agreement remained unsolved, but that once that question
was solved, the solution reached would serve as a basis, not
only for the future agreement but also for the settlement
which, in the event of the negotiations failing, the Court
would have to effect.

It appears from the information given about the negotia-
tions which took place between the Parties prior to the conclu-
sion of the Special Agreement and which were adduced before
the Court during the first phase of the proceedings, that the
cause of the failure of the negotiations was the difference
between the Parties as to whether the zones’ régime could be
abolished without Switzerland’s consent, and more especially,
as to whether that was the effect of Article 435 of the Treaty
of Versailles with its Annexes. This fact seems to be confirm-
ed by the preamble of the Special Agreement, which reads:

“Whereas France and Switzerland have been unable to agree
in regard to the interpretation to be placed upon Article 435,
paragraph 2, of the Treaty of Versailles, with its Annexes,
and as it has proved impossible to effect the agreement pro-
vided for therein by direct negotiations,

Have decided to resort to arbitration in order to obtain
this interpretation and for the settlement of all the questions
involved by the execution of paragraph 2 of Article 435 of
the Treaty of Versailles.”

60
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 153

The close connection between this interpretation and the
settlement which is to follow is clearly marked in this pre-
amble and supplies a strong argument in favour of the view
that the settlement entrusted to the Court is to be made
on the basis of its answer to the question in Article x of
the Special Agreement. |

The French argument, according to which the Court, in
settling all the questions involved by the execution of Arti-
cle 435 of the Treaty of Versailles, enjoys the same powers
and the same freedom of judgment and decision as France and
Switzerland would themselves enjoy in negotiating an agree-
ment, cannot be upheld.

-While it is certain that the Parties, being free to dispose
of their rights,, might have embodied, in the negotiations
contemplated in Article 1, paragraph 2, of the Special
Agreement, and might also in any future negotiations embody
in their agreement any provisions they might desire, and,
accordingly, even abolish the free zones or settle matters
lying outside the framework of the régime with which
Article 2 of the Special Agreement deals, it in no way follows
that the Court enjoys the same freedom. Such freedom, being ;
contrary to the proper function of the Court, could, in any
case, only be enjoyed by it if such freedom resulted from
a clear and explicit provision which is not to be found in
the Special Agreement.

In fact, Article 2 of the Special Agreement does not say
that the Court shall be substituted for the Parties with a
view to establishing the régime of the territories in question.
It says that it is for the Court to settle all the questions
involved by the execution of Article 435, paragraph 2, of the
Treaty of: Versailles. Accordingly, the French Government
itself recognized that the Court, unlike the Parties, must
confine itself to settling the customs questions and that it
can only deal, as indeed is clear from the reference in the
Special Agreement to Article 435 of the Treaty of Versailles,
with the territories referred to in that Article. The Court
will return later to the questions which arise in connection
with these limitations. .

However, other objections have been raised, based on the
actual text of Article 2 of the Special Agreement. Thus it

61
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 154

has been argued that it is “for a period to be fixed by it
and having regard to present conditions” that the Court must
fulfil its task of settling all the questions involved by the
execution of Article 435, paragraph 2, of the Treaty of
Versailles. |

On this point, it may be observed that “having regard to
present conditions” does not mean “having regard solely. to
present conditions’, and that these words do not imply that
all the questions which have to be settled are capable of
‘settlement on the basis of present conditions. |

Similarly, the words “for a period to be fixed by it” (the
Court) do not mean that all the features of the settlement
are to be temporary and limited. Therefore, it would not
be contrary to this clause to decide, for example, that the
position of the French customs line and other features of the
settlement which, like the latter, are derived from the
respective rights of either Party, should remain in force as long
as the right from which they flow has not been abolished or
modified by agreement between the Parties. All that may
be inferred from the words in question is that the Parties
thought that among ‘all the questions” referred to, there
might be some which ought only to be settled for a limited
period and having regard to present conditions. ~

Another argument was put forward, based on'the fact that
Article 2 of the Special Agreement, unlike Article 1, refers to
Article 435, paragraph 2, of the Treaty of Versailles without
' mentioning the Annexes. From this it was infèrred that,
since the provisions which the Court was to éxecute were not
the same as those which it was to interpret, it was not
bound, in proceeding to execute the Article, by the inter-
pretation which it had placed upon the Article with its
Annexes.

The Court is unable to attach to this fact the force thus
attributed: to it, which would run counter to the foregoing
considerations. In the Court’s view, a more correct construc-
tion would be to regard the reference to Article 435, para-
graph 2, of the Treaty of Versailles as relating to that
paragraph, such as it is interpreted by the Court in its

62
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I55

answer to the question set out in Article x of the Special
Agreement, because that answer must determine the effect,
as between France and Switzerland, of Article 435. .

*

For the reasons given, the Court will therefore deal with
the questions involved in the execution of paragraph 2 of
Article 435 of the Treaty of Versailles upon the footing that
it must recognize and give effect to the rights which Switzer-
land derived from the treaties of 1815 and the other supple-
mentary acts relating to the free zones.

In the course of the oral observations provided for by the
Orders of December 6th, 1930, and August 6th, 1931, the
representative of the French Government made a series of
submissions based on the opposite contention; to this extent,
therefore, these submissions cannot be entertained.

But in the same submissions it was argued on behalf of
the French Government that, irrespective of the abrogatory
effect of Article 435 of the Treaty of Versailles, the old
stipulations establishing the zones were no longer in force.
It was submitted, as regards all the zones, that the change
of circumstances has been so great as to justify the Court
in holding that the treaties have lapsed, and also, as regards
the Sardinian zone, that Article 3 of the Treaty of Turin
of 1816 was impliedly abrogated by the conclusion between
the Parties of subsequent treaties relating to Savoy which
are incompatible with the continued existence of the zone.

The Agent for the Swiss Government has contested the
right of the French Government to put forward these argu-
ments at the present stage, and has asked the Court to
reject them as inadmissible. —

On the other hand, both Parties have repeatedly insisted
on the essential importance of all points at issue between
them on the present submission being, as far as possible,
settled by the Court. For this reason, and also because the
decision of an international dispute of the present order
should not mainly depend on a point of procedure, the
Court thinks it preferable not to entertain the plea of

63
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 156

inadmissibility and to deal on their merits with such of the
new French arguments as may fall within its jurisdiction in
so far at least as they may raise questions incidental to
the main issue.

The argument in favour of the view that the stipulations
establishing the zones have lapsed is that these zones were
created in view of and because of the existence of a parti-
cular state of facts, that this state of facts has now disap-
peared owing to Switzerland’s own action, and that in conse-
quence the Court, which is charged with the mission of
settling the dispute between the Parties, is entitled as between
them to declare that the stipulations have lapsed.

The fact on which the Agent for the French Government ©
has chiefly relied in support of his argument is that in 1815
the Canton of Geneva was to all intents and purposes a free
trade area, that the withdrawal of the French and Sardinian
customs lines at that time made the area of Geneva and that
of the zones an economic unit, and that the institution of the
Swiss Federal Customs in 1849 destroyed this economic unit
and put an end to the conditions in view of which the zones
had been created.

To establish this position it is necessary, first of all, to
prove that it was in consideration of the absence of customs
duties at Geneva that the Powers decided, in 1815, in favour
of the creation of the zones. There is nothing in the text
of the treaties to support this, and the only occasion on which
the Swiss representative at the Allied gatherings in 1815 is
shown to have relied on the absence of customs at Geneva
was when he endeavoured to secure the withdrawal of the
French customs along the whole frontier from Basle to Geneva
—an effort in which he was not successful.

It is true that in 18r5 the duties levied on imported goods
by the Canton of Geneva were trifling in amount and consti-
tuted no hindrance to commerce, but such duties existed, and
therefore it cannot have been because there were no customs
duties at all that the zones were created.

Nor can the Court assume that what the Powers had in
view in 1815 was a condition of things under which modest
customs duties might be. imposed, | but: not substantial duties,
with the result that a serious increase would justify a claim

64
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 157

that the relevant stipulations had lapsed. The resulting situa,
tion would have been much too precarious to constitute the’
basis of a part of the European settlement after the Napo-

leonic wars.

The French argument that the institution of the Swiss
Federal Customs in 1849 justifies a claim that, by reason of
the change in the circumstances in view of which the zones
were set up, the old stipulations by virtue of which the zones
were created, have lapsed, therefore fails from lack of proof
that the zones were in fact established in view of the exist- f
ence of circumstances which ceased to exist when the Federal
Customs were instituted in 1840.

This view is fully confirmed by the fact that, eleven years
after the change in the Swiss Customs legislation which took
place in 1849, France, by her own act, created a free zone
which was far more extensive than the zones instituted in
1815-1816, and included the Sardinian zone, and that she
maintained this new zone in existence for more than sixty
years. Accordingly, in the negotiations for the conventions by
which Switzerland bound herself to admit goods imported
from the zones free of duty for a fixed period, the granting
of such a privilege was never treated as a. condition on which
the provisions establishing the free zones must depend for the
continuance of their validity. This attitude on the part of
France would be incomprehensible if the Powers, including
France herself, who signed the Treaty of November 2oth, 1875,
and the Declaration of the same day, had thought, when con-
cluding that Treaty and drawing up the Declaration addressed
to Switzerland, that the maintenance of the customs régime
existing at that time in the Canton of Geneva was a condi-
tion precedent to the withdrawal of.the French and Sardinian
customs lines.

As regards the zone of Saint-Gingolph, the French Agent
relied on the fact that no customs post at Saint-Gingolph-
Valais existed between 1816 and 1850, except for a few
months in one year, This was due to the introduction of
an ‘“abonnement’, or commutation of the customs duties, in
return for an annual sum paid by the inhabitants of the Swiss

65
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 158

commune of Saint-Gingolph-Valais to the Federal authorities
at Berne. Here again, though it appears to be true that by
reason of the “abonnement there were in fact no customs
duties levied at Saint-Gingolph-Valais at the time that the
Saint-Gingolph zone was created, there is no sufficient proof
that the Saint-Gingolph zone was created in view of this
circumstance. It seems to be a part of the general arrangements
for the withdrawal of the Sardinian customs line.

Tt has been observed above that the establishment of the
Federal Customs in 1849 was the circumstance upon which. the
French Government mainly relied in arguing that the old
stipulations had lapsed. No doubt there have been other
changes, for instance, in connection with the food supply
réquirements of Geneva, with the development of communi-
cations and with technical progress which have no bearing on
the whole body of circumstances—circumstances essentially
governed by the geographical configuration of the Canton of
Geneva and of the surrounding region—which the High Con-
tracting Parties had in mind at the time that the free zones were
created ; accordingly they cannot be taken into consideration.

‘As the French argument fails on the facts, it becomes unne-
cessary for the Court to consider any of the questions of
principle which arise in connection with the theory of the
lapse of treaties by reason of change of circumstances, such as
the extent to which the theory can be regarded as constitut- °
ing a rule of international law, the occasions on which and
the method by which effect can be given to the theory if
recognized, and the question whether it would apply to trea-
ties establishing rights such as that which Switzerland derived
from the treaties of 1815 and 1816.

As regards Article 3 of the Treaty of Turin establishing
the Sardinian zone, the French argument is that this Article
was impliedly abrogated by the subsequent conclusion between
the Parties of treaties which were incompatible with the con-
tinued existence of the Sardinian zone.

The treaties relied on are: the Swiss-Sardinian Treaty of
Commerce of 1851 and the Franco-Swiss Treaty of 188r.
Neither Treaty makes any reference to the Sardinian zone.

66
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 159

The earlier treaty contained a provision—Article 4—under
which, in consideration of the free exit of foodstuffs intended
for consumption in Geneva through the customs posts of the
Duchy of Savoy and the provinces of Chablais, Genevois and
Faucigny, Switzerland agreed to admit certain Sardinian pro-
ducts into Switzerland free of duty. Despite the absence
of all mention of the Sardinian zone in this provision, there
is nothing in it incompatible with the existence of that zone,
and so far as the Court is aware the Sardinian zone continued
to exist throughout the period from the ratification of the
Treaty to the creation of the Annexation zone in 1860.

The Franco-Swiss Treaty of 1881 was concluded for the
purpose of regulating the exchange of goods between the
Canton of Geneva and the Annexation zone of 1860 (then
called the free zone of Upper Savoy), of which the Sardinian
zone formed a part. The zone of 1860 was liable to suppres-
sion by unilateral action on the part of France, and Article 11
of the Treaty made provision as to what was to happen in
that event without saying anything as to the resuscitation of
the Sardinian zone. The French argument is that it must
therefore be assumed that the Parties intended to abolish the
Sardinian zone. The Court is not prepared to draw any such
deduction from the absence of all mention of the Sardinian
zone in Article 11. The natural interpretation of the Article
is that in the event of the abolition of the zone of 1860 the
Swiss obligation to admit the produce from that area into
Switzerland should come to an end altogether. No claim
could be advanced against her that she was bound to admit
produce from the smaller or Sardinian zone.

The French argument as to the suppression of the Sardinian
zone by the implied abrogation of Article 3 of the Treaty of
Turin is also inconsistent with the argument which has been
put forward by the French Agent that the instrument which
created the Sardinian zone was the Protocol of November 3rd,
1815, and not the Treaty of Turin of x8r6. |

For these reasons the Court cannot accept the French
contention. that the treaties of 1815 and the other supple-
mentary acts relating to the free zones, if not abrogated by

9 67
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 160

the Treaty of Versailles, have nevertheless now ceased to
be in force. |

The conclusion at which the Court has thus arrived is
supported by statements made, both before and after the
great war, on behalf of the. French Government. The Court
deems it sufficient to recall in this connection the note
addressed on April 28th, 1910, by the French Embassy at
Berne to the Swiss Political Department, in which it said that:

“There is no international agreement binding the French Gov-
ernment as regards this new zone [Annexation zone], except for
a convention, purely administrative in scope, with Switzerland,
which convention could be denounced upon giving one year’s
notice and was denounced by France some months ago.

France is therefore no longer under an obligation to any
Power to respect the great free zone, but only the Gex zone
and the small Sardinian zone.”

*

Under Article 2 of the Special Agreement, the Court, after
pronouncing its decision on the question whether the old
stipulations have been, or were intended to be, abrogated by
Article 435, paragraph 2, offlthe Treaty of Versailles, is
to settle all the questions involved by the execution of
paragraph 2 of Article 435 of the Treaty of Versailles—the pro-
vision which stated that it was for France and Switzerland to
settle the status of the territories constituting the free zones.
The question which must next be considered is whether, and
if so to what extent, it is within the power of the Court
to fulfil this mission.

Paragraph 2 of Article 2 of the Special Agreement provides

that, if the judgment of the Court contemplated the import :

of goods free or at reduced rates through the Swiss or French
customs barrier, the regulation of such importation should only
be madé with the consent of the two Parties. By this pro-
‘vision, the two Parties subordinated to their joint concurrence
a part of the Court’s judgment.

An examination of the written and oral pleadings which
have been submitted to the Court shows that both France and
Switzerland [have regarded the ‘‘permeability” of the customs

68
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I6I

line, ie. the admission of goods free or at reduced rates, as
an essential part of any settlement of the dispute as to the
free zones. It has been stated in argument that no settle-
ment would be complete unless this question of customs
franchises was included. The Swiss note of May 5th, 1910,
annexed to Article 435, even treats the regulation of the
exchange of goods as the only thing which is required to be
done. It follows that that part of the Court’s judgment which
would most intimately affect the everyday life of the people
concerned is made dependent on the approval of the two
Parties.

Such a condition, if the consent is to be subsequent to the \.
judgment, cannot be reconciled with Articles 59 and 60 of the © |
Statute of the Court, which provide that the judgment is
binding and final. ,

It is true that one Party—-Switzerland—-has given its appro-
val in advance to any provisions which the Court may lay
down, but the other has explained that, for constitutional
reasons, it would be precluded from doing so. By the terms
of its Constitution, any engagements which affect the State
finances must be approved by the Chambers, and it would
therefore be impossible for the French Government, without
the concurrence of the Chambers, to give in advance its
approval to any provisions relating to, customs franchises
which the Court might insert in the judgment.

The Court, in its Order of December 6th, 1930, drew atten-
tion to the difficulties which, in the absence of previous
consent by both Parties, were created by this provision in
the Special Agreement, and at that time adjourned the fur-
ther consideration of the case in the hope that the Parties
would come to an agreement on this subject. The Court then
said that, failing agreement between the Parties, it would
give its judgment on the points of law involved in the case.
Unfortunately, the hope of an agreement has not been realized.

After mature consideration, the Court maintains its opinion
that it would be incompatible with the Statute, and with its
position as a Court of Justice, to give a judgment which |]
would be dependent for its validity on the subsequent i
approval of the Parties. |

69
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 162

The contents of paragraph 2 of Article 2 of the Special
Agreement and the attitude of the Parties throughout the
dispute, together with the explanations which have been
submitted to the Court on their behalf during the oral
arguments, show how unsuitable to the rôle of a Court of
Justice is the task which is entrusted to the Court by the
first paragraph of Article 2. It is a task with which
the Court would have felt hesitation in complying, even if
the second paragraph of Article 2 had not been inserted in the
Special Agreement.

The fact that it was felt to be necessary for the Parties
in this case to approve so much of the judgment as might
relate to tariff exemptions is because the settlement of such
matters is not a question of law, but is a matter depending
on the interplay of economic interests on which no Govern-
ment can afford to be controlled by an outside organ. Such
questions are outside the sphere in which a Court of Justice,
concerned with the application of rules of law, can help in
the solution of disputes between two States.

For these reasons, the Court adheres to the opinion which
it expressed in the Order of December 6th, 1930, that, if
the Parties failed to come to an agreement which involved
their assent to matters covered by Article 2, paragraph 2,
of the Special Agreement, judgment must be limited to
questions of law, ie. to questions not covered by that
provision.

The request of the French Government that the Court
should order an expert enquiry to be undertaken and that it
should arrange for an investigation on the spot by a dele-
gation of its members,. corresponds with a similar request
which was made in 1930 on behalf of the Swiss Government
and which has not been withdrawn. The Swiss Government
however contended, in its recent observations, that, if the
Court’s judgment must be limited to questions not covered
by Article 2, paragraph 2, of the Special Agreement, this
request would cease to have any object. The Court, sharing |
this view, cannot, in the present circumstances, give effect !
to the French request. It cannot interpret the relevant |
provision of Article 4, paragraph 2, of the Special Agreement, '

70
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 163

as meaning that it would be bound in any event to comply
with such a request.

It has been argued on behalf of the French Government
that if the Court finds itself unable for any reason to carry
out the whole of the mission entrusted to it by the Special
Agreement, it should declare itself incompetent as to the
whole and give no judgment whatever. It was argued that
the jurisdiction of the Court emanated from the Special
Agreement and was circumscribed by it, and that the words
in Article 2, “by a single judgment’, showed that no
distinction could be drawn between the question of inter-
pretation dealt with in Article 1 of the Special Agreement
and that covered by Article 2. For the Court to limit its
judgment to part of the mission entrusted to it by the
Special Agreement, was to run counter to the will of the
Parties, and therefore to destroy the basis of its jurisdiction.

It was also urged that the conclusion of the Special
_ Agreement represented a compromise between the opposing
views of the Parties—one of the two States being particularly
interested in the legal question submitted to the Court in
Article 1, and the other in the subjects dealt with in
Article 2—and that to give judgment only on the question
of law submitted by Article I was unjust, as it destroyed
the balance between the two Parties.

The Court is not satisfied that these arguments should
prevail. It is the Special Agreement which represents, so far
as the Court is concerned, the joint will of the Parties. If
the obstacle to fulfilling part of the mission which the Parties
intended to submit to the Court results from the terms of
the Special Agreement itself, it results directly from the will
of the Parties and, therefore, cannot destroy the basis of the
Court’s jurisdiction: for the reason that it was counter to the
will of the Parties, |

As regards the second argument, it must not be forgotten
that one of the Governments concerned has agreed in advance
to whatever measures of permeability the Court might impose |
as to goods passing through the customs barriers. For the :
Government which finds itself unable for constitutional reasons
to make a similar declaration to claim that the Court should,

7x
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 164

because of the consequences which the Court is bound to
attribute to this provision in the Special Agreement, declare
itself incompetent as to the whole dispute, would not be just
to the other Government.

The extent to which the Court has power to fulfil the
task entrusted to it by paragraph 2 off Article 435 of
the Treaty of Versailles is also limited in a further respect.

If the Court, in settling the questions involved by the
execution of Article 435, paragraph 2, of the Treaty of
Versailles, must respect Switzerland’s right to the fzones,
it must} also respect the sovereignty of France over the zones ;
this sovereignty is complete in so far as it has not been
limited by the provisions of the treaties of 1815 and 1816
-and by the instruments supplementary to these treaties. With
regards to the Pays de Gex, the old stipulations relate exclu-
sively to the line along which the French [customs offices are
to be placed; and, with regard to the Sardinian zone, the
situation is, under Article 3 of the Treaty of Turin, very
much the same; it is a question merely of the withdrawal of
the {former Sardinian, now French, customs line behind the
political frontier. |

In proceeding to state the terms of the settlement in question,
the Court will be guided by the foregoing principles.

*

Switzerland’s right to the maintenance of the zones having
been recognized by the Court, but France having, in 1923,
without Switzerland’s consent, placed her customs line at
the political frontier, France must, following the present
judgment, withdraw that line in accordance with the old
provisions.

As regards the manner in which this obligation is to be
discharged, certain differences of opinion have, however, arisen,
more particularly with regard to the exact position of the inner
boundaries fixed by the old provisions. Thus, while Switzer-
land considers that, according to a correct interpretation of
Article x of the second Treaty of Paris, the inner limit of
the Gex zone should follow the left bank of the Valserine from
its source to its confluence with the Rhone and along the

72
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 165

right bank of the latter as far as Collogny ‘“‘so that the whole
of the Pays de Gex, in the Ain Department, shall be outside
this line’, the French Government argues that that would
extend this zone beyond the boundary fixed in the Treaty of
Paris and disputes the Court’s jurisdiction to decide this
question. The task of the Court, according to this Government,
is to pass upon the régime of the territories dealt with in that
Treaty, but not to delimit their boundaries.

The Court considers that, in the absence of France’s consent,
this is a question outside the jurisdiction conferred on it by
the Special Agreement. No question regarding the delimitation
of the zones was submitted in that agreement, nor does it
seem necessary to pass upon the demarcation of these bound-
aries as an incidental and preliminary question.

The situation is somewhat different as regards the provision
in the proposal submitted in 1930 by the Swiss Government
and which contemplates a modification of the inner boundary
of the Sardinian zone in order to avoid certain difficulties
which would ensue from the maintenance of the line fixed by
the Treaty of Turin. These modifications consist, inter alia,
in the exclusion from the zone of that part of the Annemasse
district which is included in the zone by the line of the Treaty
of Turin, and in the adoption of a line which would also leave
outside the zone the Annemasse-Evian railway which, according
’ to the 1816 delimitation, enters and leaves the zone in several
places. Accordingly, here there is no question of an inter-
pretation of the provisions of the Treaty of Turin, but of
improving the delimitation of the line therein laid down. On
behalf of France, however, it has been contended that the line
proposed takes in portions of French territories which, under
the Treaty of Turin, were not included in the free zone, and
that, consequently, the Court has no jurisdiction to accept it.
This fact has not been disputed by Switzerland, which merely
observes that the delimitation proposed is dictated by the
configuration of the ground and that it would only slightly -
depart from the line of the Treaty at a few points.

In these circumstances, the Court is of opinion that, in the
absence of France’s consent, it has no jurisdiction to entertain
the amendments of the line proposed by Switzerland.

73
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 166

Similarly, the Court is unable to regard itself as competent,
without France’s consent, to entertain the Swiss Government’s
proposal concerning the establishment of a French customs
office on Swiss territory at the Geneva-Cornavin station.

Finally, Article 12 of that proposal, concerning horse and
other animal transport and vehicles of all kinds, also goes
beyond the Court’s jurisdiction in the absence of France’s
consent ; this likewise applies to Article 13 of the Swiss pro-
posal providing for an appeal to the Court in the event of
disputes as to the interpretation or execution of the settle-
ment established by the Court.

A question of far greater importance which arises in this
connection is the following. . .

In the course of his argument, the Swiss Agent drew atten-
tion to the control cordon (cordon de surveillance) instituted
at the political frontier by the French Government during
the war 1914-1918, and to the claim of the French Govern-
ment to levy fiscal taxes at the frontier on imported goods.
As to the latter he asked that, since the legitimacy of the
control cordon had been recognized, the judgment of the
Court should state what taxes may legitimately be imposed
at the frontier and claimed that the importation tax (axe
à l'importation) was a customs tax in disguise.

On this point, the Court makes the following observation :
It follows from the principle that the sovereignty of France
is to be respected in so far as it is not limited by her inter-
national obligations, and, in this case, by her obligations under
the treaties of 1815 together with supplementary acts, that
no restriction exceeding those ensuing from these instruments
can be imposed on France without her consent. Thus, there
is no doubt that the Court is unable to restrain France from
establishing at her political frontier a police cordon for the
control of traffic, and this moreover does not appear to be
74
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 167

disputed by Switzerland. On the other hand, Switzerland
disputes the right of France to collect duties and taxes at
her political frontier even though these charges are not duties
and taxes on the importation or exportation of goods but are
duties and taxes also levied on the same articles produced
or manufactured in France. Switzerland, in fact, has in her
draft decision (Art. 3, para. 2) proposed that imports. from
Switzerland to the free zones shall be free of any duties and
taxes whatsoever, a suggestion which has met with lively
opposition on the part of France.

In this connection, the Court observes that no such limi-. .

tation necessarily ensues from the old provisions relating to
the free zones; that in case of doubt a limitation of sover-
eignty must be construed restrictively ; and that while it is
certain that France cannot rely on her own legislation. to
limit the scope of her international obligations, it is equally

certain that French fiscal legislation applies in the territory

of the free zones as in any other part of French territory.

The legitimacy of the imposition of fiscal taxes within the
zones as apart from customs duties at the frontier, is shown
by Article 4 of the Manifesto of the Royal Sardinian Court of
Accounts of September oth, 1829, relating to the zone of
Saint-Gingolph :

“The laws at present in force in the said communes
included in the new zone relating to excise and other
duties (gabelles)—with the sole exception of the laws
concerning the customs—shall continue to be observed as
heretofore.”’

A reservation must be made as regards the case of abuses |

of a right, since it is certain that France must not evade the:

obligation to maintain the zones by erecting a customs barrier
under the guise of a control cordon. But an abuse cannot
be presumed by the Court. .

The tax to which the Swiss Agent had drawn the partic-
ular attention of the Court is the tax on importation, a form
of the turnover tax which is levied at the frontier on goods
imported as the result of a contract. It is impossible at
present to say whether this tax, which was instituted by
the French law of June 25th, 1920, is now levied at the

10 75
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 168

frontier as a customs duty or as a fiscal tax, or whether the
French Government would claim to continue to levy it at
the frontier if the customs line were withdrawn. However
that may be, the Court neither desires nor is able to consider
whether the collection at the political frontier of any particu-
lar French tax is or is not contrary to France’s obligations.
It feels it must confine itself to stating that, in principle,
a tax levied solely by reason of importation or exportation
across the frontier must be regarded as a tax in the nature
of a customs duty and consequently as subject to the regu-
lations relating thereto.

*

If, therefore, considerations connected with its own juris-
diction and with the respect due to the sovereignty of France
over the free zones prevent the Court from entertaining certain
requests made on behalf of the Swiss Government, similar
considerations compel the Court to refrain from entertaining
the suggestion which has been made on behalf of the French ;
Government that, in order to get over the difficulty created |
by Article 2, paragraph 2, of the Special Agreement, the |
Court should include in its judgment a provision for the with-
drawal of the Swiss customs line from the frontier to the
further side of the Canton of Geneva and of the commune of
Saint-Gingolph. Any such decision, even if it commended
itself to the Court, on its merits, would be beyond the Court’s
jurisdiction. The agreement which was to be concluded be-
tween France and Switzerland under Article 435, paragraph 2,
of the Treaty of Versailles was for the purpose of settling the
status of “these territories’, ie. the free zones, and though it
may well have been intended that the Agreement should include
‘such matters as the permeability of the Swiss customs line,
it cannot be construed as covering the withdrawal of that
customs line from the frontier.

*

The withdrawal of the French customs line from the poli-
tical frontier in the areas constituting the free zones of the
Gex District and Upper Savoy, coupled with the inability of
the Court to include in its judgment any provisions as to the

76
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 169

import of goods free or at reduced rates through the Federal

Customs barrier, will leave exports from the zones to Geneva
/ without any right to exemptions from duty other than those
which the Federal Government may grant spontaneously. The
Swiss Government, however, throughout the present contro-
versy and ever since its note of May 5th, 1919, has recognized
the need for safeguarding the interest of the zonians and has

declared that it is prepared to agree to the setting up of a :

more stable and more liberal régime for the admission of the

zones produce into Switzerland.

The Court does not hesitate to express its opinion that if,
by the maintenance in force of the old treaties, Switzerland
obtains the economic advantages derived from the free zones,

. She ought in return to grant compensatory economic advan-
tages to the people of the zones.

In the course of the oral arguments before the Court, the
Swiss Agent declared, on behalf of his Government, that if the
zones were maintained, the Federal Government would, if
France so desired, agree to the terms of the exchange of

goods between the zones and Switzerland being settled by

experts, failing agreement with regard to them by the Par-|

ties. The decision of the experts should be binding on the |

È

two States and, so far as Switzerland was concerned, would }

not require ratification.
The terms of this declaration are as follows :

(elo

1° By the note of May 5th, 1019 (Annex I to Article 435
of the Treaty of Versailles), Switzerland undertook—on the
understanding that the free zones of Upper Savoy and the
District of Gex were maintained—‘to regulate in a manner
more appropriate to the economic conditions of the present
day the terms of the exchange of goods between the regions
in question’.

_ 2° Should the judgment of the Court, in conformity with
the principles laid down by the Order of December 6th, 1930,
compel France to establish her customs barrier on the line
fixed by the provisions of the treaties of 1815 and other
supplementary instruments concerning the free zones of Upper
Savoy and the District of Gex, Switzerland, without making
any reservation for subsequent ratification, accepts the fol-
lowing :

77

—+
s
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 170

(a) The Franco-Swiss negotiations designed to secure the
execution of the undertaking stated in No. x above shall take
place, should France so request within twelve months from
the date of the Court’s judgment, with the assistance and
subject to the mediation of three experts.

(6) Failing an agreement between the Parties and upon
the request of either Party, the said experts shall be appoint-
ed from amongst the nationals of countries other than
France and Switzerland, by the judge at present acting as
President of the Permanent Court of International Justice for
the purposes of the case of the free zones, or, should he be
unable to do so, by the President of the Permanent Court
of International Justice, provided these persons consent to
' undertake this duty.

(c) It shall rest with the experts to fix—with binding
effect for the -Parties—in so far as may be necessary by
reason of the absence of agreement between them, the terms
of the settlement to be enacted in virtue of the undertaking
given by Switzerland (No. I above). The principles of law
laid down by the judgment of the Court shall be binding on
the experts, save in so far as the Parties may by mutual
consent authorize them to depart therefrom.”

If the French Government chooses to avail itself of this
offer, it will be able to obtain in favour of the inhabitants of
the zones an arrangement for the admission of their produce
into Switzerland, which will not depend exclusively on the
will of the Swiss Government.

It is true that, in the course of the recent hearings, the
French Agent declared the Swiss proposal to be inacceptable ;
but it is also true that he regarded it as an offer to conclude
a Special Agreement, an offer which, in this form, he had no

\

4
iy

power to entertain. It is also true that the French Agent \

expressed certain doubts as to the binding character, from a
constitutional point of view, of the Swiss declaration; having

the Court must however regard it as binding on Switzerland.

regard to the circumstances in which this declaration was sand. /

*
* *

The organization of the customs line in rear of the political |
frontier is a matter which necessarily must take time. It is

78
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX I7I

not a question merely of returning to the customs line in use
before 1923, because after 1860, the Sardinian and the Saint-
Gingolph zones were merged in the Annexation zone of 1860.

The Court, therefore, considers it appropriate that a reason-
able period should be accorded to the French Government
in which to comply with the terms of the present judgment.
For this purpose, it fixes January Ist, 1934, as the date by
which the French Government must have withdrawn the cus-
toms line so as to re-establish the free zones in accordance
- with the stipulations of the treaties of 1815 and 1816 and of
the other acts supplementary thereto.

The period thus granted for the organization of the customs
line will afford time for determining the exemptions and facil-
ities to be given to goods imported into Switzerland from the
zones in case the French Government should decide to avail
itself of the Swiss Government’s offer referred to above.

FOR THESE REASONS,
The Court,

by six votes to five,
decides :

In vegard to the question formulated in Article x, paragraph x,
of the Special Agreement :

That, as between France and Switzerland, Article 435, para-
graph 2, of the Treaty of Versailles, with its Annexes, neither
has abrogated nor is intended to lead to the abrogation of the
provisions of the Protocol of the Conference of Paris of Novem-
ber 3rd, 1815, of the Treaty of Paris of November 2oth, 1815,
of the Treaty of Turin of March 16th, 1816, or of the Mani-
festo of the Sardinian Court of Accounts of September oth,
1829, regarding the customs and economic régime of the free
zones of Upper Savoy and the Pays de Gex.

79
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 172

In regard to the questions referred to in Article 2, paragraph x,
of the Special Agreement :

That the French Government must withdraw its customs
line in accordance with the provisions of the said treaties and
instruments; and that this régime must continue in force so
long as it has not been modified by agreement between the
Parties ;

That the withdrawal of the customs line does not affect the
right of the French Government to collect at the political
frontier fiscal duties not possessing the character of customs
duties ;

That, as the free zones are maintained, some provision for
the importation of goods free of duty or at reduced rates

across the line of the Federal customs, in favour of the pro-

ducts of the zones, must be contemplated; ._.-—-—----~"~
That the declaration made in regard to this question by the
Agent of the Swiss Government before the Court at the hear-
ing on April 22nd, 1932, shall be placed on record ;
That January ist, 1934, shall be appointed as the date by
which the withdrawal of the French customs line shall have
been effected.

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this seventh day of
June, nineteen hundred and thirty-two, in three copies, one of
which shall be placed in the Archives of the Court and the
others delivered to the Government of the French Republic
and the Government of the Swiss Confederation respectively.

Seen. (Signed) D. ANZILOTTI,
The President of the Court: Judge acting
(Signed) M. Apatct. as President.
(Signed) À. HAMMARSKJOLD,
Registrar.

80
FREE ZONES OF UPPER SAVOY AND DISTRICT OF GEX 173

M. Altamira’ and Sir Cecil Hurst declare that. they are
unable to concur in the present judgment in so far as, avail-
ing themselves of the right conferred on them by Article 57
of the Statute, they have indicated their dissent therefrom
in the following dissenting opinion. |

M. Yovanovitch -declares that he is unable to concur in
the judgment given by the Court and, availing himself of
the right conferred on him by Article 62 of the Rules, appends
to the judgment this statement of his dissent.

M. Negulesco declares that he is unable to concur in the
judgment given by the Court and, availing himself of the
right conferred on him by Article 57 of the Statute, has ap-
pended to the judgment the dissenting opinion which follows
hereafter.

M. Eugène Dreyfus declares that he is} unable to concur in
the judgment given by the Court and, availing himself of
the right conferred on him by Article 57 of the Statute, has
appended to the judgment the dissenting opinion which fol-
lows hereafter.

(Initialled) M. A. (Initialled) D. A.
(Initialled) A. H.

8x