PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SERIE A — N° 23
RECUEIL DES ARRETS
| N° 16
AFFAIRE RELATIVE A LA

JURIDICTION TERRITORIALE DE LA
COMMISSION INTERNATIONALE DE L’ODER

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES A.— No 23

COLLECTION OF JUDGMENTS

No. 16

CASE RELATING TO THE TERRITORIAL
JURISDICTION OF THE INTERNATIONAL
COMMISSION OF THE RIVER ODER

LEYDEN
A.W. SIJTHOFF’S
PUBLISHING COMPANY
1929

LEYDE
SOCIETE D’EDITIONS
A. W. SIJTHOFF
1929

PERMANENT COURT OF INTERNATIONAL JUSTICE.

SEVENTEENTH (ORDINARY) SESSION.
Before :

MM. ANZILOTTI, President,
HUBER, Vice-President,
LoDER, |
NYHOLM,
DE BUSTAMANTE,
ALTAMIRA, Judges,
ODA,
Prsséa,
HUGHES,

NEGULESCO,
WANG,

Count RostTworowski, / udge ad hoc.

Deputy- Judges,

JUDGMENT No. 16.

CASE RELATING TO THE TERRITORIAL JURISDICTION
OF THE INTERNATIONAL COMMISSION OF THE RIVER ODER.

Between

The Governments of His Britannic Majesty in the United
Kingdom of Great Britain and Northern Ireland, represented
by Mr. O. St. C. O’Malley, C.M.G., First Secretary in H.B.M.’s
_ Diplomatic Service ; of the Czechoslovak Republic, represented
by H.E. M. Miroslav Plesinger-Bozinov, Envoy Extraordinary
and Minister Plenipotentiary; of His Majesty the King of
Denmark, represented by H.E. M. Harald Scavenius, Envoy
Extraordinary and Minister Plenipotentiary, replaced by
M. Hugo Hergel, Chargé d’affaires ad interim; of the French
Republic, represented by M. Basdevant, Legal Adviser to the
Ministry for Foreign Affairs, Professor at the Faculty of
Law of Paris; of the German Reich, represented by H.E.
Dr. Seeliger, Envoy Extraordinary and Minister Plenipoten-
tiary; of His Majesty the King of Sweden, represented by

1929.
September roth.
File E. b. XX.
Docket XVII: 2.
JUDGMENT No. 16.—THE ODER COMMISSION 6

H.E. M. Adlercreutz, Envoy Extraordinary and Minister
Plenipotentiary ;

and

The Government of the Polish Republic,. represented by
M. Bohdan Winiarski, Professor at the University of Poznan ;

THE Court,

composed as above,

having heard the observations and conclusions of the Parties,
delivers the following judgment : .

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

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

“Does the jurisdiction of the International Commission of
the Oder extend, under the provisions of the Treaty of Ver-
sailles, to the sections of the tributaries of the Oder, Warthe
(Warta) and Nétze (Note¢) which are situated in Polish territory,
and, if so, what is the principle laid down which must be
adopted for the purpose of determining the upstream limits
of the Commission’s jurisdiction ?”’
JUDGMENT No. I6.—THE ODER COMMISSION 7

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

The President of the Court, by an Order of December 2oth,
1928, fixed the dates for the filing of the documents of the
written procedure, subject to the Court’s right to modify
the times so fixed in the event of the Parties submitting
proposals to that effect. Such proposals having been received,
the President, by an Order of February 25th, 1929, extended
the times for the filing of Cases and Counter-Cases and decided
to dispense with the submission of written Replies by the
Parties. A further extension was granted by an Order of
March 26th, 1929, which fixed their expiration at April 15th
and. June roth, 1929, respectively.

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

In the course of public sittings held on August 2oth, 21st,
22nd, 23rd and 24th, 1920, the Court heard the arguments of
Sir Cecil Hurst, K.C., G.C.M.G., K.C.B., Counsel for H.B.M.’s
Government in Great Britain, and of the above-mentioned
Agents for the French and German Governments; it also
heard declarations made by the Agents for the Czechoslovak,
Danish and Swedish Governments mentioned above. Further,
it heard the arguments of the above-mentioned Agent for the
Polish Government, as well as of Counsel for that Govern-
ment, M. Charles de Visscher, Dean of the Faculty of Law of
the University of Ghent. It finally heard the replies of
Sir Cecil Hurst, M. Basdevant and Dr. Seeliger on behalf of
the Six Governments, and the rejoinders of M. Winiarski
and M. de Visscher on behalf of the Polish Government.
JUDGMENT No. I16.—THE ODER COMMISSION 8

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

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

“The Court .... invites the Agents of the Parties to
submit at the hearing fixed for Tuesday, August 2oth,
at 10.30 a.m., and before any argument upon the merits,
their observations and final submissions upon the said
question, it being understood that the Court will pass
upon this question immediately after receiving such
observations and submissions, and that the argument on
the merits shall follow forthwith, unless the Court shall
otherwise decide.”

In execution of this Order, Sir Cecil Hurst, M. Basdevant
and Dr. Seeliger on behalf of the Six Governments and
M. Winiarski on behalf of the Polish Government, argued this
preliminary point before the Court on August 2oth, prior to
any arguments on the merits, and the Court, by an Order
of the same day, reproduced in full in the third annex to
this judgment 5%, ruled that:

“the Minutes of the Commission on Ports, Waterways
and Railways of the Conference which prepared the
1 See page 34.
2 » 38.

re Ss
JUDGMENT No. 1I6.—THE ODER COMMISSION 9

Treaty of Vérsailles shall be excluded as evidence from
the proceedings in the present case”.

The Six Governments in their Counter-Case contended that :

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

These answers were as follows:
Upon the first question: that,

“under the provisions of the Treaty of Versailles, the jurisdic-
tion of the International Commission does extend to sections,
situated in Polish territory, of the Rivers Warthe and Netze,
tributaries of the Oder, if there are in Polish territory sections
of these rivers which come within the definition of ‘navigable
waterways of international concern’ contained in Article I
of the Statute on the ‘Régime of Navigable Waterways of
International Concern, signed at Barcelona on the 2oth April,

REZ)

1921”;
or, .in the alternative, that |

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

and, upon the second question submitted:

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

or, in the alternative:
JUDGMENT No. 16.—THE ODER COMMISSION 10

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

or, thirdly, that:

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

The above are, therefore, the submissions of the Six Gov-
ernments.

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

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

To this the Six Governments opposed in their Counter-Case
a submission to the effect that “the contention of the Polish
…. Memorial, namely that on the rivers Warthe (Warta) and ©
Netze (Note¢), tributaries forming part of the system of the Oder,
while the limits of the régime of navigation must be determ-
ined by the application of the Barcelona Statute, the limits
of the jurisdiction of the Oder Commission must be determined
exclusively by the application of the definition contained in
JUDGMENT No. 16.—THE ODER COMMISSION II

Article 331 of the Treaty of Versailles, should be rejected”
and that “the contention of the Polish ..... Memorial, with
regard to the interpretation of the definition in Article 331 of
the Treaty of Versailles, should” also “be rejected”’.

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

[Tvanslation.]

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

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

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

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

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

The. Court, however, by an Order dated August ‘sth,
1920, invited
JUDGMENT No. I6.—-THE ODER COMMISSION 12

“the Agent for the Polish Government to file with the Registry

by midday on Saturday, August r7th, at latest, any alternative

submissions as to the second of the two questions submitted

to the Court under Article I of the Special Agreement of
October 30th, 1928”.

The full text of the Order is reproduced in the fourth
annex to this judgment 1.

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

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

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

1 See page 44.
JUDGMENT No. I6.—THE ODER COMMISSION. _ 13

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

THE FACTS,

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

Under Article 341 of the Treaty of Versailles, ‘the Oder
shall be placed under the administration of an International
Commission which shall comprise” representatives of Poland,
Prussia, the Czechoslovak State, Great Britain, France, Den-
mark, and Sweden. This Commission shall, under Article 343
of the Treaty, ‘‘proceed immediately to prepare a project
for the revision of the existing international agreements and
regulations”. Such project “shall, inter alia’, under Article 344
of the Treaty, “define the sections of the river or its tribu-
taries to which the international régime shall be applied’.
The régime in question is the one referred to in Article 338
of the Treaty, i.e. the régime set forth in Articles 332 to 337,
inclusive, or laid down in the General Convention mentioned
by Article 338 as intended to be “drawn up by the
Allied and Associated Powers and approved by the League of
Nations’,
JUDGMENT No. 16.—-THE ODER COMMISSION 14

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

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

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

ce

.... whether the International Commission provided for in
Article 341 of the Treaty of Versailles, in the project to be
prepared under Articles 343 and 344 for the revision of the
existing International Agreements and Regulations relating to
the Oder, is debatred, having regard especially to the pro-
visions of Articles 331 and 338 of the same Treaty, in defining
under Article 344 (c) the sections of the river or its tributaries
JUDGMENT No. 16.—THE ODER COMMISSION 15

to which the international régime shall be applied, from
including tributaries or parts of tributaries of the Oder which
are in Polish territory and are navigable”.

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

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

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

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

The Advisory and Technical Committee, for its part, having
meanwhile been informed of the attitude of the Governments
concerned with regard to its ‘‘suggestion” of November 27th,
1924, adopted at its Eighth Session on July 30th, 1925, a
resolution under the terms of which the Committee ‘considers
JUDGMENT No. 16.—-THE ODER COMMISSION 16

that it should declare that the procedure of conciliation
which has been undertaken is now closed and that it should
duly inform the Governments concerned of this fact”.

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

THE LAW.

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

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

(2) If so, what is the law which should govern the determ-
ination of the upstream limits of this jurisdiction ?

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

There does not appear to be any dispute between the
Parties with regard to the meaning of the word jurisdiction
(juridiction) in the present case. The Court considers that
this word relates to powers possessed by the Commission
under treaties in force; the questions referred to the Court
relate to the territorial limits of these powers.
JUDGMENT No. 16..-THE ODER COMMISSION 17

%
* %

5

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

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

“The Oder (Odra) shall be placed under the adminis-
tration of an International Commission....”

The Polish Agent pointed out that Article 341 does not
say “the Oder and its system referred to in Article 331”
but simply “the Oder’, and that therefore, if reliance be
placed on this provision, the jurisdiction of the Commission
extends to the Oder alone, even if in virtue of Article 337
the régime of internationalization also extends to the tribut-
aries of the Oder.

Whatever value this argument might have in relation to
the provisions of the Treaty of Versailles, and the signific-
.ance of these provisions will be considered later, it is cer-
tain that it cannot be admitted to change the terms of the
question put to the Court under the Special Agreement.
This question as formulated proceeds on the assumption that
the Commission’s jurisdiction extends over those portions of
the Warthe (Warta) and the Netze (Noteé) which are not
situated in Polish territory, and that the only point in dis-
pute is whether the said jurisdiction ceases at the Polish
frontier or whether it also extends into the territory of
Poland. It may also be remarked that it was solely on this
point that the dispute between the Six Governments and
Poland arose in the Oder Commission and was dealt with first
- during the conciliation procedure and afterwards before the
Court ; the jurisdiction of the Commission over the German
section of the Warthe (Warta) and the German and common
sections of the Netze (Noteé) is, moreover, conformably to
the terms of the submission, admitted in the conclusions
JUDGMENT No. 16.—-THE ODER COMMISSION 18

of the Polish Case and is implicit in those of the Polish

- Counter-Case.

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

The second point relates to the applicability of the Statute
annexed to the Barcelona Convention of April 2oth, 1g2z,
relating to the régime of navigable waterways of international
concern.

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

Before the Committee of Enquiry of the Advisory and Tech-
nical Committee of the League of Nations, the Polish Govern-
ment had contended that the Barcelona Convention, which
that Government had not ratified, could not be invoked
against it. This argument had been dealt with and contested
by the Six Governments in their Case; but, as it did not
appear either in the Case or in the Counter-Case of the Polish
Government, the other side considered themselves entitled
to regard it as abandoned. The Agent for the Polish Govern-
ment having, however, in his oral argument, relied on the
fact that Poland had not ratified the Barcelona Convention,
the Six Governments asked the Court to reject the Polish
contention im limine, on the ground that it would be contrary
JUDGMENT No. I6.--THE ODER COMMISSION 19

to the letter and spirit of the Rules of Court and to the
practice of arbitral tribunals on which those Rules are based,
to admit new contentions at an advanced stage of the pro-
ceedings and after the opposing Parties had been led to believe
that such arguments would not be put forward.

The Court considers that the objection of the Six Govern-
ments is untenable.

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

ak

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

“The régime set out in Articles 332 to 337 above shall
be superseded by one to be laid down in a General Con-
vention drawn up by the Allied and Associated Powers,
and approved by the League of Nations, relating to the
waterways recognized in such Convention as having an
international character. This Convention shall apply
in particular to the whole or part of the above-mentioned
river system of the Elbe (Lave), the Oder (Odra), the
Niemen (Russstvom-Memel- Niemen), and the Danube, and
such other parts of these river systems as may be covered
by a general definition.

Germany undertakes, in accordance with the provisions
of Article 379, to adhere to the said General Convention
as well as to all projects prepared in accordance with
Article 343 below for the revision of existing inter-
national agreements and regulations.”

3
JUDGMENT No. 16.—THE ODER COMMISSION 20

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

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

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

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

It remains to be seen whether Article 338 intended to
derogate from that rule. The contemplated Convention is one
“drawn up by the Allied and Associated Powers and approv-
ed by the League of Nations”. As regards the first point, it
. may be admitted that the expression to draw up (établir) a.
convention. is perhaps not entirely without ambiguity; but it
would be hardly justifiable to deduce from a somewhat ill-
chosen expression an intention to derogate from a rule of
international law so important as that relating to the ratifica-
tion of conventions. As regards the approval of the League
of Nations, this is probably explained by Article 23 (e) of
the Covenant, under which the Members of the League are
bound to “make provision to secure and maintain freedom of
JUDGMENT No. I6,—THE ODER COMMISSION 21

communications and transit”. There is nothing to support
the view that this approval, the purpose of which is quite
different from that of ratification, should replace the latter
rather than supplement it.

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

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

“ Article 4.

The present Convention is subject to ratification. The
instruments of ratification shall be transmitted to the
Secretary-General of the League of Nations, who will
notify the receipt of them to the other Members of the
League and to States admitted to sign the Convention.
The instruments of ratification shall be deposited in the
archives of the Secretariat.

In order to comply with the provisions of Article 18 of
the Covenant of the League of Nations, the Secretary-
General will register the present Convention upon the
deposit of the first ratification.

Article 5.

Members of the League of Nations which have not
signed the present Convention before December ist, 1921,
may accede to it.
JUDGMENT No. I6.—THE ODER COMMISSION 22

The same applies to States not Members of the League
to which the Council of the League may decide officially
to communicate the present Convention.

Accession will be notified to the Secretary-General of
the League, who will inform all Powers concerned of the
accession and of the date on which it was notified.

Article 6.

The present Convention will not come into force until
it has been ratified by five Powers. The date of its
coming into force shall be the ninetieth day after the
receipt by the Secretary-General of the League of Nations
of the fifth ratification. Thereafter the present Convention
will take effect in the case of each Party ninety days
after the receipt of its ratification or of the notification
of its accession.

Upon the coming into force of the present Convention,
the Secretary-General will address a certified copy of it to
the Powers not Members of the League which are bound
under the Treaties of Peace to accede to it.”

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

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

The Court, having, for the reasons given above, set aside
the reference to the Barcelona Convention, will consider the
question on the basis of the relevant articles of the Treaty
of Versailles; it is on these articles alone that Poland relies
in asking for a negative reply.
JUDGMENT No. 16.—-THE ODER COMMISSION 23

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

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

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

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

Now Chapter ITI of Part XII of the Treaty of. Versailles—
except for Article 338 which does not apply in the present
JUDGMENT No. 16.—THE ODER COMMISSION 24

case—contains no indication which could justify any differen-
tiation between the territorial limits of the régime defined
in the first group of provisions (Articles 332 to 337) and those
of the administration set up or provided for in the second
group (Articles 340 to 345). On the other hand, a precise
indication that the régime and administration are coincident
is found in Article 344 (b) which defines the matters confided
to the Commissions’ powers in a manner exactly corresponding
to the régime set out in Articles 332 to 337 (which under
Article 345 are to govern pending the ratification of the new
project) whilst Article 332 in its turn expressly refers to
Article 331.

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

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

“The following rivers are declared international:

- the Elbe (Labe) from its confluence with the Vitava (Mol-
dau), and the Vitava (Moldau) from Prague;
the Oder (Odra) from its confluence with the -Oppa;
the Niemen (Russstvom-Memel- Niemen) from Grodno;
the Danube from Ulm;

and all navigable parts of these river systems which
naturally provide more than one State with access to
the sea, with or without transhipment from one vessel
to another; together with lateral canals and channels
constructed either to duplicate or to improve naturally
navigable sections of the specified river systems, or to
connect two naturally navigable sections of the same
river.

The same shall apply to the Rhine-Danube navigable
waterway, should such a waterway be constructed under
the conditions laid down in Article 353.”

As regards the interpretation of this article, the only
point at present in dispute is the meaning of the words “all
JUDGMENT No. 16.—THE ODER COMMISSION 25

navigable parts of these river systems which naturally provide
more than one State with access to the sea”.

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

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

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

It remains therefore to be considered whether the words
“all navigable parts of these river systems which naturally
provide more than one State with access to the sea” refer
to tributaries and sub-tributaries as such, in such a way that
if a tributary or sub-tributary in its naturally navigable course
traverses or separates different States, it falls as a whole
within the above definition; or whether they refer rather
to that part of such tributary or sub-tributary which provides
)

i

JUDGMENT No. I6.—THE ODER COMMISSION : 26

more than one State with access to the sea, in such a way
that the upstream portion of the tributary or sub-tributary is
not internationalized above the last frontier crossing its natur-
ally navigable course. |

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

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

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

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

‘It may well be admitted, as the Polish Government contend,
that the desire to provide the upstream States with the possi-
bility of free access to the sea played a considerable part in
the formation of the principle of freedom of navigation on
so-called international rivers.
JUDGMENT No. I6.—THE ODER COMMISSION 27

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

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

[Translation.] “Article 108.

. The Powers whose territories are separated or traversed
by the same navigable river undertake to settle by com-
mon agreement all questions affecting navigation thereon.
They shall appoint for this purpose commissioners, who
shail meet, at the latest, six months after the end of this
Congress, and take for the basis of their work the prin-
ciples laid down in the following articles.

Article 100.

Navigation throughout the whole course of the rivers
referred to in the preceding article, from the point where
they respectively become navigable to their mouths, shall
be entirely free, and shall not in the matter of commerce
be prohibited to anybody, provided that they conform to
the regulations regarding the police of this navigation,
which shall be drawn up in a manner uniform for all
and as favourable as possible to the commerce of all

nations.”
If the common legal right is based on the existence of a
navigable waterway separating or traversing several States, it
| 4
JUDGMENT No. 16.—THE ODER COMMISSION 28

is evident that this common right extends to the whole navig-
able course of the river and does not stop short at the last
frontier ; no instance of a treaty in which the upstream limit of |
internationalization of a river is determined by such frontier
rather than by certain conditions of navigability has been
brought to the attention of the Court.

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

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

In the same way, it must be noted that Article 331 men-
tions geographical points in fixing the limit from which
rivers are internationalized, without taking any account
of the last political frontier. Thus, the Elbe (Labe) is declared
international from its confluence with the Vltava (Moldau)
and the Vitava (Moldau) from Prague; the Oder (Odra)
from its confluence with the Oppa; the Niemen (Russstrom-
Memel-Niemen) from Grodno; the Danube from Ulm. It is
not necessary for the Court to enquire what criteria served
as a basis for this determination. It is sufficient to observe
that points within the territory of the last upstream riparian
JUDGMENT No. I6.—THE ODER COMMISSION 29

State were everywhere chosen; this fact, which entirely
corresponds with the principles of international fluvial law
summed up above, seems hardly in accordance with the
Polish contention which, if it were well-founded, should
apply to the principal river as much as to the tributaries.

Finally, mention must also be made of Article 344 (¢)
which provides that the projects for revision of the exist-
ing international agreements and regulations to be pre-
pared by the international commissions in accordance with
Article 343 shall ‘‘define the sections of the river or its
tributaries to which the international régime shall be applied”.
This provision— which. places the river and the tributaries
on the same footing—is easily understood if, in the case of
the tributaries as in the case of the river, the delimita-
tion depends on certain material circumstances, the applica-
tion of which. involves a more or less discretionary element ;
but it would have no meaning if the limit of internation-
alization of the tributaries was determined by the last poli-
tical frontier. .

From all that precedes, the conclusion may be drawn
that the Treaty of Versailles adopts the same standpoint
as the Act of Vienna and the treaty law which applied and
developed the principles of that Act. That is, moreover,
what the Allied and Associated Powers expressly declared
in their Reply to Germany on June r6th, 1919: ‘‘the pro-.
visions regarding internal navigation routes apply only to
river systems which are. all international as defined by the
Congress of Vienna and by later conventions”.

Article 331 must therefore be interpreted in the light of
these principles, which leave no doubt that the internation-
alization of a waterway traversing or separating different
States does not stop short at the last political frontier, but
extends to the whole navigable river. The Court, having
already observed that the territorial limits of the adminis-
tration of the Oder Commission . coincide with the terri-
torial limits of internationalization referred to in Article 331,
therefore reaches the conclusion that the jurisdiction of that
Commission extends to those portions of the Warthe (Warta)
and Netze (Note¢) which are situated in Polish territory.
JUDGMENT No. I6.—THE ODER COMMISSION 30

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

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

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

Taken in itself, and literally, this passage might seem to
express the idea underlying the Polish interpretation of Art-
icle 331 of the Treaty of Versailles. But if Austria’s demand be
read attentively and if the territorial conditions of the course
of these tributaries be considered, it appears that what Austria
asked for and the Powers refused to admit was the internation-
alization of even purely national tributaries or of tributaries
the national status of which was not yet finally established.
If this is so, the refusal “to internationalize a navigable
part of a river system which does not naturally provide more
than one State with access to the sea” would simply mean
a refusal to go beyond the interpretation which the Court
JUDGMENT No. 16.—-THE ODER COMMISSION 31

has just given to Article 331 of the Treaty of Versailles. The
Court is unable to find in the reply given to the Austrian
Delegation any sufficient ground for a different interpretation.

« * +

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

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

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

FOR THESE REASONS,
The Court,

having heard both Parties,

by nine votes to three, |
gives judgment to the following effect :

(1) Under the provisions of the Treaty of Versailles, the
jurisdiction of the International Commission of the Oder
JUDGMENT No. 16.—THE ODER COMMISSION 32

extends to the sections of the Warthe (Warta) and Netze
(Noteé) which are situated in Polish territory.

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

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

(Signed) D. ANZILOTTI,
' President.

(Signed) J. Lopez OLIvAN, —
Deputy-Registrar.

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

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

(Initialled) D. A.
(Initialled) J. L. ©.


                            INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                   LEGAL CONSEQUENCES OF THE SEPARATION
                        OF THE CHAGOS ARCHIPELAGO
                           FROM MAURITIUS IN 1965
                          (REQUEST FOR ADVISORY OPINION)

                              ORDER OF 17 JANUARY 2018

                                   2018
                            COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                    EFFETS JURIDIQUES DE LA SÉPARATION
                         DE L’ARCHIPEL DES CHAGOS
                             DE MAURICE EN 1965
                          (REQUÊTE POUR AVIS CONSULTATIF)

                           ORDONNANCE DU 17 JANVIER 2018

3 CIJ1131.indb 1                                             7/05/18 12:35

                                               Official citation :
                                     Legal Consequences of the Separation
                              of the Chagos Archipelago from Mauritius in 1965,
                              Order of 17 January 2018, I.C.J. Reports 2018, p. 7

                                            Mode officiel de citation :
                                        Effets juridiques de la séparation
                                 de l’archipel des Chagos de Maurice en 1965,
                            ordonnance du 17 janvier 2018, C.I.J. Recueil 2018, p. 7

                                                                                1131
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157329-9

3 CIJ1131.indb 2                                                                       7/05/18 12:35

                                                 17 JANUARY 2018

                                                        ORDER

                   LEGAL CONSEQUENCES OF THE SEPARATION
                        OF THE CHAGOS ARCHIPELAGO
                           FROM MAURITIUS IN 1965
                      (REQUEST FOR ADVISORY OPINION)

                    EFFETS JURIDIQUES DE LA SÉPARATION
                         DE L’ARCHIPEL DES CHAGOS
                             DE MAURICE EN 1965
                      (REQUÊTE POUR AVIS CONSULTATIF)

                                                 17 JANVIER 2018

                                                 ORDONNANCE

3 CIJ1131.indb 3                                                   7/05/18 12:35

                    7

                                   INTERNATIONAL COURT OF JUSTICE

                                                     YEAR 2018
        2018
     17 January
     General List                                 17 January 2018
      No. 169

                   LEGAL CONSEQUENCES OF THE SEPARATION
                        OF THE CHAGOS ARCHIPELAGO
                           FROM MAURITIUS IN 1965
                                    (REQUEST FOR ADVISORY OPINION)

                                                      ORDER

                    Present: President Abraham; Vice‑President Yusuf; Judges Owada,
                             Tomka, Bennouna, Cançado Trindade, Xue, Donoghue,
                             Gaja, Sebutinde, Bhandari, Robinson, Gevorgian;
                             Registrar Couvreur.

                        The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 66 of the Statute of the Court and to Arti-
                    cles 44, 102 and 105 of the Rules of Court,
                        Makes the following Order:
                      Whereas on 22 June 2017 the United Nations General Assembly adop-
                    ted, at the 88th meeting of its Seventy-First Session, resolution 71/292, by
                    which it decided, pursuant to Article 65 of the Statute of the Court, to
                    request the International Court of Justice to render an advisory opinion
                    on the following questions:
                          (a) “Was the process of decolonization of Mauritius lawfully com-
                              pleted when Mauritius was granted independence in 1968, follow-
                              ing the separation of the Chagos Archipelago from Mauritius and
                              having regard to international law, including obligations reflected

                    4

3 CIJ1131.indb 6                                                                                7/05/18 12:35

                   8 	             separation of the chagos (order 17 I 18)

                             in General Assembly resolutions 1514 (XV) of 14 December 1960,
                             2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December
                             1966 and 2357 (XXII) of 19 December 1967?”;
                         (b) “What are the consequences under international law, including
                             obligations reflected in the above-mentioned resolutions, arising
                             from the continued administration by the United Kingdom of
                             Great Britain and Northern Ireland of the Chagos Archipelago,
                             including with respect to the inability of Mauritius to implement
                             a programme for the resettlement on the Chagos Archipelago of
                             its nationals, in particular those of Chagossian origin?”;
                      Whereas certified true copies of the English and French texts of that
                   resolution were transmitted to the Court under cover of a letter from the
                   Secretary‑General of the United Nations dated 23 June 2017 and received
                   on 28 June 2017;
                      Whereas, by letters dated 28 June 2017, the Registrar gave notice of the
                   request for an advisory opinion to all States entitled to appear before the
                   Court, pursuant to Article 66, paragraph 1, of the Statute;
                      Whereas, by an Order dated 14 July 2017, the Court decided, in accor-
                   dance with Article 66, paragraph 2, of its Statute, that the United Nations
                   and its Member States are likely to be able to furnish information on the
                   question, and fixed 30 January 2018 as the time‑limit within which writ-
                   ten statements on the question may be presented to it, and 16 April 2018
                   as the time‑limit within which States and organizations having presented
                   written statements may submit written comments on the other written
                   statements;

                     Whereas, pursuant to Article 65, paragraph 2, of the Statute, under
                   cover of a letter dated 30 November 2017 from the Legal Counsel, the
                   United Nations Secretariat communicated to the Court a dossier of docu-
                   ments likely to throw light upon the question, which was received in the
                   Registry on 4 December 2017;

                      Whereas, by a letter dated 10 January 2018 and received in the Registry
                   on the same day, the Legal Counsel of the African Union requested that
                   this organization (i) be permitted to furnish information, in writing and
                   orally, on the question submitted to the Court for its advisory opinion
                   and (ii) be granted an extension of one month for the filing of its written
                   statement,
                      Decides that the African Union, which is likely to be able to furnish
                   information on the question submitted to the Court for an advisory opin-
                   ion, may do so within the time-limits fixed by the Court;
                     Extends to 1 March 2018 the time-limit within which all written state-
                   ments on the question may be presented to the Court, in accordance with
                   Article 66, paragraph 2, of the Statute;

                   5

3 CIJ1131.indb 8                                                                                7/05/18 12:35

                    9 	             separation of the chagos (order 17 I 18)

                      Extends to 15 May 2018 the time-limit within which States and organi-
                    zations having presented written statements may submit written com-
                    ments on the other written statements, in accordance with Article 66,
                    paragraph 4, of the Statute; and
                        Reserves the subsequent procedure for further decision.
                      Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this seventeenth day of January, two thou-
                    sand and eighteen.

                                                               (Signed) Ronny Abraham,
                                                                           President.
                                                              (Signed) Philippe Couvreur,
                                                                            Registrar.

                    6

3 CIJ1131.indb 10                                                                               7/05/18 12:35


                                                                           279

   DÉCLARATION DE M. LE JUGE ABRAHAM, PRÉSIDENT

[Texte original en français]

   1. J’ai voté en faveur du présent arrêt, par lequel la Cour décide qu’elle
ne peut examiner au fond la requête des Iles Marshall contre l’Inde, car je
considère qu’une telle décision est en pleine conformité avec la jurispru-
dence de la Cour relative à l’exigence qu’un « diﬀérend » existe entre les
parties, telle que cette jurisprudence a été établie par une série d’arrêts
rendus au cours de la période récente, particulièrement l’arrêt du
1er avril 2011 rendu en l’aﬀaire relative à l’Application de la convention
internationale sur l’élimination de toutes les formes de discrimination raciale
(Géorgie c. Fédération de Russie), l’arrêt du 20 juillet 2012 rendu en l’af-
faire relative à des Questions concernant l’obligation de poursuivre ou d’ex-
trader (Belgique c. Sénégal) et l’arrêt du 17 mars 2016 rendu en l’aﬀaire
relative à des Violations alléguées de droits souverains et d’espaces mari-
times dans la mer des Caraïbes (Nicaragua c. Colombie).
   2. Cette jurisprudence est selon moi clairement et correctement expo-
sée aux paragraphes 33 à 40 de l’arrêt.
   3. On pourrait la résumer dans les trois propositions suivantes.
   En premier lieu, l’existence d’un diﬀérend entre les parties à une ins-
tance n’est pas seulement une condition de l’exercice par la Cour de sa
compétence, mais, plus fondamentalement, une condition de l’existence
même de cette compétence.
   En deuxième lieu, et cette proposition découle en grande partie de la
précédente, il convient, pour apprécier la réalisation de cette condition, de
se placer non point à la date à laquelle la Cour rend sa décision, mais à la
date d’introduction de l’instance, les éléments postérieurs à cette dernière
date pouvant permettre de conﬁrmer, le cas échéant, l’existence du diﬀé-
rend, mais non de l’établir.
   Enﬁn, pour que la Cour constate l’existence d’un diﬀérend entre les
parties à la date pertinente, il est nécessaire que ce diﬀérend se soit mani-
festé par des échanges entre les parties — quelle qu’en soit la forme —
antérieurement à cette date, dans des conditions telles que chaque partie
ait été consciente — ou ait dû l’être — de ce que les vues de l’autre partie
étaient opposées aux siennes. En particulier, le défendeur ne doit pas
découvrir l’existence d’une prétention du demandeur à son égard en pre-
nant connaissance de l’acte introductif d’instance ; il doit en avoir été
informé avant.
   4. Dans le passé, il ne me semble pas que la Cour ait toujours fait
preuve d’une pareille rigueur en ce qui concerne la condition tenant à
l’existence d’un diﬀérend.
   A vrai dire, avant 2011, la jurisprudence de la Cour n’était pas parfai-
tement univoque et on pourrait sans doute trouver des décisions allant

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          armes nucléaires et désarmement (décl. abraham)                280

dans des sens assez variés. Néanmoins, plusieurs précédents pourraient
être cités dans le sens d’une approche plus souple et pragmatique : je
les ai moi-même mentionnés dans mon opinion individuelle en l’aﬀaire
Géorgie c. Fédération de Russie (exceptions préliminaires, arrêt, C.I.J.
Recueil 2011 (I), opinion individuelle de M. le juge Abraham, p. 224).
   5. Cette approche plus souple pouvait être comprise comme reposant
sur l’idée que l’existence d’un diﬀérend n’était pas, à proprement parler,
une condition de la compétence même de la Cour, mais plutôt une condi-
tion de l’exercice par la Cour de sa compétence ; sur la conclusion qui en
découlait que cette condition devait être appréciée à la date de la décision
de la Cour, et que la date d’introduction de l’instance ne revêtait à cet
égard aucune pertinence particulière ; et qu’en conséquence, puisqu’il fal-
lait et suﬃsait que le diﬀérend existât à la date de la décision de la Cour,
il y avait lieu de tenir compte des positions exprimées par les parties dans
le cours même de l’instance tout autant que des échanges qui avaient eu
lieu entre elles — le cas échéant — avant le début de la procédure.
   6. Selon moi, la Cour a commencé à se départir de cette approche dans
son arrêt en l’aﬀaire Géorgie c. Fédération de Russie, qui marque un inﬂé-
chissement, certes encore ambigu, en ce qui concerne les conditions néces-
saires pour constater l’existence du diﬀérend.
   Je m’en suis inquiété, car je n’étais pas favorable à un tel inﬂéchisse-
ment, dans mon opinion individuelle jointe à cet arrêt (précitée).
   7. C’est avec son arrêt en l’aﬀaire Belgique c. Sénégal (précité) que la
Cour a clairement ﬁxé le nouveau cours de sa jurisprudence, en se décla-
rant incompétente sur l’une des demandes de la Belgique (celle relative à
une prétendue obligation du Sénégal de poursuivre ou d’extrader His-
sène Habré pour des « crimes internationaux » autres que les actes de tor-
ture, en vertu du droit international coutumier). La raison donnée par la
Cour pour justiﬁer son incompétence était que la Belgique n’avait pas,
dans les protestations qu’elle avait adressées au Sénégal avant l’introduc-
tion de l’instance, mentionné une telle prétention juridique. Pourtant, les
positions adoptées par les parties sur le fond devant la Cour rendaient
manifeste l’existence d’un diﬀérend entre elles sur la question en cause ;
mais la Cour a refusé d’en tenir compte.
   8. J’ai voté contre le point du dispositif de l’arrêt Belgique c. Sénégal
par lequel la Cour s’est déclarée incompétente pour connaître de la
demande susmentionnée, motif pris de l’absence de diﬀérend entre les
parties sur l’objet de cette demande à la date d’introduction de l’instance.
Dans une opinion individuelle jointe à l’arrêt (C.I.J. Recueil 2012 (II),
opinion individuelle de M. le juge Abraham, p. 471), j’ai expliqué les rai-
sons de ce vote, en regrettant que la Cour ne se soit pas placée à la date
de sa propre décision pour apprécier la réalisation de la condition, ce qui
l’aurait conduite à une conclusion opposée.

   9. J’estime cependant que, même si un juge a exprimé les réserves que
lui inspire une solution jurisprudentielle, voire son désaccord avec elle, au
moment où la Cour a ﬁxé sa jurisprudence, il doit se considérer par la

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          armes nucléaires et désarmement (décl. abraham)                281

suite comme lié par cette jurisprudence (non pas juridiquement, certes,
mais moralement), tout autant que s’il l’avait approuvée.
   10. Il est en eﬀet un impératif judiciaire que la Cour a toujours reconnu,
et qui s’impose selon moi à chacun de ses membres, à savoir qu’elle doit
faire preuve d’une grande continuité dans sa jurisprudence, à la fois dans
l’intérêt de la sécurité juridique et pour éviter de prêter le ﬂanc au soup-
çon d’arbitraire.
   11. Il est vrai que la jurisprudence n’est pas intangible, et que la Cour
a toujours le pouvoir de l’inﬂéchir ou de la renverser si elle estime, excep-
tionnellement, qu’il existe pour cela des raisons impérieuses, tenant par
exemple à l’évolution d’un contexte général dans lequel s’insère telle ou
telle solution particulière.
   12. Je ne suis pas sûr que la Cour ait eu raison, avec les arrêts Géorgie
c. Fédération de Russie et surtout Belgique c. Sénégal, d’inﬂéchir notable-
ment son approche antérieure de la condition relative à l’existence du dif-
férend. Mais dès lors qu’elle l’a fait en adoptant une solution claire en
connaissance de cause, je considère que rien ne justiﬁerait à présent qu’elle
s’écartât de cette dernière.
   13. C’est pourquoi, dans l’aﬀaire Nicaragua c. Colombie (précitée), je
me suis joint à la majorité (à cet égard l’unanimité) en votant en faveur du
point 1) c) du dispositif, qui faisait application des mêmes critères que
dans l’arrêt Belgique c. Sénégal.
   Et, dans la présente aﬀaire, j’approuve également l’arrêt en ce qu’il s’en
tient à l’application de ces critères.
   14. Quant à l’application au cas d’espèce de la jurisprudence — désor-
mais ﬁxée — concernant l’existence du diﬀérend à la date d’introduction
de l’instance, je considère que, pour les raisons exposées aux para-
graphes 42 à 53 de l’arrêt, il n’a pas été démontré qu’un diﬀérend s’était
clairement manifesté entre les Parties, à la date pertinente, sur la question
faisant l’objet de la requête soumise à la Cour par les Iles Marshall.

                                            (Signé) Ronny Abraham.

                                                                          30