COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE A/B
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 43

ACCÈS ET STATIONNEMENT
DES NAVIRES DE GUERRE POLONAIS
DANS LE PORT DE DANTZIG

- AVIS CONSULTATIF DU 11 DÉCEMBRE 1931
XXIIIMm SESSION

1931

XXIHrd SESSION
ADVISORY OPINION OF DECEMBER 11th, 193i

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES AÀ.IB.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 43

ACCESS TO, OR ANCHORAGE IN,
THE PORT OF DANZIG,
OF POLISH WAR VESSELS

SOCIÉTÉ D'ÉDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
128

PERMANENT COURT OF INTERNATIONAL JUSTICE

1931.
December rth.

TWENTY-THIRD SESSION. General list:

December 11th, 1931.

ACCESS TO, OR ANCHORAGE IN,
THE PORT OF DANZIG,
OF POLISH WAR VESSELS

Relations between Poland and the Free City of Danzig:
free and secure access to the sea for Foland through the port of
Danzig ; protection of Danzig by the League of Nations (defence
of the Free City).— Treaty of Versailles, Articles 102-104.—
Danzig-Polish Convention of November oth, 1920, Articles
20, 26, 28.—Resolutions of the Council of the League of
Nations of November 17th, 1920, and June 22nd, 1921.

ADVISORY OPINION.

Before: MM. Aparct, President, GUERRERO, Vice-President ;
Baron RoLIN-JAEQUEMYNS, Count  RoSTWOROWSKI,
MM. FROMAGEOT, ALTAMIRA, ANZILOTTI, URRUTIA, Sir
CEciz Hurst, MM. ScHückinc, NEGULEScCo, Jhr. vAN
EvsiNGa, MM. Wane, Judges; Bruns, Judge ad hoc.

THE CourT, composed as above, gives the following opinion :

4
POLISH WAR VESSELS IN THE PORT OF DANZIG 129

On September roth, 1931, the Council of the League of
Nations adopted the following Resolution : |

“The Council

Requests the Permanent Court of International Justice
to give an advisory opinion under Article 14 of the Cov-
enant on the following question :

‘Do the Treaty of Peace of Versailles, Part ‘III,
Section XI, the Danzig-Polish Treaty concluded at.
Paris on November oth, 1920, and the relevant deci-
sions of the Council of the League of Nations and of
the High Commissioner, confer upon Poland rights
or attributions as regards the access to, or anchorage
in, the port and waterways of Danzig of Polish war
vessels ? If so, what are these rights or attributions ?’

Requests the Permanent Court of International Justice
to be so good as to give this opinion in time to enable
the Council to take a decision on the matter at its session
of January 1932;

Invites the Governments of Poland and Danzig to hold
themselves at the disposal of the Court for the purpose
of furnishing any relevant documents or explanations.

The Secretary-General is authorized to submit this
request to the Court, to give any assistance necessary for
the examination of the question, and, if necessary, to take
steps to be represented before the Court.”

In pursuance of this Resolution, the Secretary-General, on
September 25th, 1031, transmitted to the Court a request for
an advisory opinion in the following terms :

“The Secretary-General of the League of Nations,

in pursuance of the Council Resolution of Septem-
ber roth, 1931, and in virtue of the authorization given
by the Council, |

has the honour to submit to the Permanent Court of
International Justice an application requesting the Court,
in accordance with Article 14 of the Covenant, to give an
advisory opinion to the Council on the question which
is referred to the Court by the Resolution of Septem-
ber roth, 1931.

The Secretary-General will be prepared to furnish any
assistance which the Court may require in the examin-
ation of this matter, and will, if necessary, arrange to be
represented before the Court.”
POLISH WAR VESSELS IN THE PORT OF DANZIG 130

The request was registered in the records of the Registry
of the Court on September 28th, 1931. L

Under cover of a letter dated October rst, 1931, the Secre-
tary-General subsequently sent to the Registrar a copy of the
minutes of the meeting of the Council of the League of
Nations on September roth, 1931, when the Resolution above
mentioned was discussed and adopted. The Secretary-General
also sent to the Court a complete set of copies of the appen-
dices to the annexes to these minutes and also certain
relevant documents 1,

In conformity with Article 73, paragraph I, sub-paragraph 1,
of the Rules of Court, the request was communicated to
Members of the League of Nations and to States entitled
to appear before the Court. Furthermore, the Registrar, by
means of a special and direct communication, informed the
Governments of the Polish Republic and of the Free City :
of Danzig, which were regarded by the Court as likely, in
accordance with Article 73, paragraph 1, sub-paragraph 2, of
the Rules, to be able to furnish information on the question
submitted to the Court for an advisory opinion, that the
Court was prepared to receive from them written statements
and, if they,so desired, to hear oral arguments made on their
behalf at a public hearing to be held for the purpose; the
representatives of the interested Governments had already
been consulted as to the length of the time-limits within which
these Governments would be ready to file any written
statements they might desire to submit. —

In these circumstances, and having due regard to the
suggestions made by the above-mentioned representatives and
likewise to the Council’s desire to receive the Court’s opinion
in sufficient time before the former’s session in January 1932,
the President of the Court, by an Order made on October 3rd,
1931, fixed October 2oth, 1931, as the date by which
a written statement was to be filed by each of the two
Governments, and November 5th, 1931, as the date by which
they were to file a second statement. By the first of these
dates, memorials had been filed on behalf of the Danzig and
Polish Governments, and, by the second, the same Governments

1 See list in Annex.
POLISH WAR VESSELS IN THE PORT OF DANZIG 131

had duly filed counter-memorials. The relevant documents
were appended to the two memorials of the Free City !

Lastly, on October 5th, rg3r, the Registrar addressed to
all States parties to the Treaty of Versailles of June 28th,
1919, a communication drawing their attention to the rights
conferred upon them, in connection with the question before
the Court, by Article 73, paragraph 1, sub-paragraph 3, of
the Rules of Court.

After having, by a special decision under Article 28, para-
graph 2, of the Rules of Court, given the case concerning
access to and anchorage in the port of Danzig for Polish
war vessels priority over another case which preceded it in
the list and was also ready for hearing, the Court, in the
course of the public sittings held on November oth, roth, rith,
12th, 13th, and r4th, 1931, heard the oral arguments in the first-
named case presented by Sir John Fischer Williams, Agent,
on behalf of the Danzig Government, and by MM. Moderéw,
Agent, and Ch. de Visscher, Counsel, on behalf of the Polish
Government.

In addition to the statements and observations of the inter-
ested Governments and the documents transmitted by the
Secretary-General of the League of Nation$ as mentioned
above, the Court has had before it a series of documents
handed in in the course of the hearings by the representa-
tives of the two Governments 1.

The Court held that the question submitted to it for an
advisory opinion related to an existing dispute between the
Free City of Danzig and Poland within the meaning of
Article 71, paragraph 2, of the Rules of Court. As one only
of these States, namely, Poland, had on the Bench a judge
of its nationality, the Senate of the Free City of Danzig
availed itself of its right, under Article 71 of the Rules of
Court, to choose a judge ad hoc to sit in the case.

The submission of the case being in all respects regular,
it is in these circumstances that the Court is now called
upon to give its opinion.

1 See list in. Annex.
POLISH WAR VESSELS IN THE PORT OF DANZIG | 132

* * *

The question upon which the Court is asked to advise is
closely connected with the problem of affording Poland free
and secure access to the sea—the reason which led to Danzig
being severed from Germany by the Treaty of Versailles and
established as a Free City—and with the action which was
taken after the coming into force of the Treaty of Versailles
by the Conference of Ambassadors and by the Council of the
League of Nations in connection with the defence of Danzig.
It will therefore be well to set out in chronological sequence
the facts and documents which must be borne in mind.

Section XI of Part III of the Treaty of Versailles provides
for the cession of the territory which now constitutes the
Free City of Danzig by Germany to the. Principal Allied and
Associated Powers, who undertook to establish that territory
as a Free City under the protection of the League. A Con-
stitution for the Free City was to be drawn up by the duly
appointed representatives of the Free City in agreement with
the High Commissioner appointed by the League, and this
Constitution was to be placed under the guarantee of the
League. The Principal Allied and Associated Powers also
undertook to negotiate a treaty between Poland and Danzig
which was to come into force simultaneously with the estab-
lishment of the Free City and which was, as the terms of
Article 104 clearly show, to ensure to Poland the enjoyment
of a series of rights for the purpose of safeguarding her
position at Danzig. The negotiation of the treaty referred to
in Article ro4 was entrusted to the Conference of Ambassa-
dors in Paris. The work was initiated by the adoption of a :
. resolution by that body on May 7th, 1920, of .which the
first two paragraphs provided that this treaty should be .con-
cluded as soon as possible, but that Poland could not be
authorized to establish a military or naval base at Danzig.
The negotiations were brought to a conclusion, and the treaty
was signed at Paris on November goth, 1920. The treaty is,
for shortness’ sake, described as the Convention of Paris. On
that same day, the Act establishing the Free City, which had
been signed by the representatives of the Principal Allied and

8
POLISH WAR VESSELS IN THE PORT OF DANZIG 133

Associated Powers on October 27th, 1920, was accepted by
the representatives of the Free City. |

The Conference of Ambassadors, while engaged in conduct-
ing the negotiations which led to the conclusion of the Con-
vention of Paris, received from the Polish delegation two
successive drafts containing a special section devoted to
“military and naval affairs”, and in this section figured a clause
giving Poland the right to use the port of Danzig. and its
equipment for the anchorage, repairing and victualling of
her war vessels. This provision was not inserted in the Con-
vention.

The text of the Convention as settled by the Conference
of Ambassadors was communicated to the delegations of the
two Parties concerned and to the Secretary-General of the
League of Nations in letters dated October 2oth, 1020, and
it may be well to recall some of the statements which were
made by the Conference of Ambassadors in those letters.

In the communication addressed to the Polish delegation,
it was said that the Powers considered that, as then worded,
the Convention reconciled the interests of the two Parties
- and assured to Poland, as well as to the Free City, the enjoy-
ment of their rights under the Treaty of Versailles. The
letter went on to say that, in submitting its observations
on the draft convention previously communicated to it, the
Polish delegation had insisted on the convention making pro-
vision for the military defence of Danzig. As regards this
point, the Conference did not consider that any provision on
the question could be inserted in the convention under Arti-
cle 104 of the Treaty of Versailles, but it had decided to draw
the attention of the Council of the League of Nations to
the point.

The letter to the Secretary-General of the League contained
the following passages :

‘As is shown by the reply dated ‘June 16th, 1919, of the Al-
lied and Associated Powers to the observations of the German
delegation on the terms of peace, the intention of the Powers
in constituting Danzig and the territory specified in Article 100
of the Treaty as a Free City was to establish between Poland
and the Free City the very closest relations; their object was
indeed to provide Poland with free access to the .sea.
POLISH WAR VESSELS IN THE PORT OF DANZIG 134

Owing to the close relations thus established between the
Free City and Poland, and also in view of the clearly expressed
intention of the Powers who signed the Treaty of Versailles
to give Poland free access to the sea, the Polish -Govern-
ment would thus seem to be entitled to receive from the
League of Nations the mandate of eventually ensuring the
defence of the Free City.”

The question of the protection of the Free City came before
the Council during its session in November 1920, as Article 102
of the Treaty of Versailles had placed the Free City under
the protection of the League. The result of this Article is
that the League, and therefore the Council of the League
acting in its name, has the right and the duty of ensuring
the defence of the Free City of Danzig. Viscount Ishii pre-
sented a report, dated November 17th, dealing not only with the
question of the defence of Danzig, but also with that of plac-
ing Danzig under the protection of the League and of giving
the guarantee of the League to the Constitution of the Free
City. In the course of the discussion on this report, the
Polish representative asked the Council to avert all danger
for Poland by conferring upon her a permanent mandate for
the defence of the Free City in the general interests of peace.
The Council, however, did not go further than to adopt a
resolution saying that ‘the Polish Government appears parti-
cularly fitted to be, if the circumstances require it, entrusted
by the League of Nations with the duty of ensuring. the
defence of the Free City”. At the same time the Council
instructed the Permanent Advisory Commission on Military,
-Naval and Air Questions ‘“‘to consider the means which will
ensure the most effective defence of Danzig....’’.

In its report presented on December 1st, 1920, the Perm-
anent Advisory Commission submitted a series of detailed
suggestions for this purpose and added a final clause that,
“without waiting for the result of the examination of the
defensive organization of the Free City, the Polish Government
should be given sufficient harbourage in the port of Danzig
to ensure the sheltering and repairing of those small naval
units which were given it by the Allies for the policing of
its waters”.

The report of the Permanent Commission was considered
by the Council, on the basis of a report by Viscount Ishii,

to
POLISH WAR VESSELS IN THE PORT OF DANZIG 135

at its session in December 1920 and evoked strong criticisms.
It was decided to communicate the two reports to the High
Commissioner at Danzig whom the Council was about to
appoint, and to direct-him to study the question on the spot
and to address a report to the Council on the subject.

The conclusions of the High Commissioner. were embodied
in a report dated January 25th, 1921. After a detailed exa-
mination of the various aspects of the problem, the High
Commissioner said that, if the League decided in favour of
retaining its guarantee for the Free City of . Danzig and
would allow no one nation to be given a mandate for its
defence, he, as High Commissioner, would be able to ensure
to Poland the full use of the harbour.

On March 5th, 1921, the Polish delegation to the League
addressed to the President of the Council a letter invoking
Article 28 of the Convention of Paris—according to which
Poland had the right to import and export through Danzig
goods of any kind whatever, including. war material—and
setting out four demands for the purpose of avoiding all
possible accidents by placing such war material under effec-
tive supervision from the moment of its arrival in the port.
The third of these demands related to Poland obtaining a
“point d’attache’’ in the port of Danzig for the purpose of
assuring the anchorage, victualling and upkeep of the vessel,
of the Polish maritime police to which, under the decision
of the Allies, certain naval units had been appropriated.

In its session of June rg2z, the Council had once more
to concern itself with the questions of the defence of the
Free City and of Poland’s right of free access to the sea at
Danzig, as it then had before it both the High Commission-
er’s report of January 25th, 1921, and the Polish demands
of March 5th of the same year.

As regards the defence of Danzig, the Council adopted on
June 22nd, 1921, a report by Viscount Ishii to the effect that
there was no reason to modify the conclusions which it
reached on November r7th, 1920, and also a Resolution. The
first five paragraphs of this Resolution relate to the defence
of Danzig by land. The last two are as follows:
POLISH WAR VESSELS IN THE PORT OF DANZIG 136

(6) The Council does not consider it necessary to
decide at the present moment under what conditions the
defence of Danzig by sea should be secured.

(7) The High Commissioner should, however, be asked
to examine the means of providing in the port of Dan-
zig, without establishing there a naval base, for a ‘port
d'attache’ for Polish warships.”

The connection between the words ‘‘point d’attache” in
the Polish letter of March 5th, 1921, and ‘port d’attache”’
in paragraph 7 of the above Resolution and the right of
access and anchorage referred to in the question upon which
the Court is now asked to advise will be referred to later.

The presence of the words ‘without establishing there a
‘naval base” in paragraph 7 of the Resolution is due to the
Resolution adopted by the Conference of Ambassadors on
. May 7th, 1920, which has been referred to above. The
Constitution of Danzig in its final form, as approved by the
Council of the League, contains a provision (Art. 5), under
which, without the previous consent of the League of Nations
in each individual case, the Free City must not be used as a
military and naval base. |
. The Polish demands set out in the letter of March 5th
were dealt with by the Council of the League on the basis of
a report submitted by Viscount Ishii on June 22nd, r921,
with the title of “The protection of Poland’s right of free
access to the sea through Danzig.’ As regards the third
Polish demand, this report proposed that paragraph 7 of the
Resolution which had just been adopted, to the effect that
the High Commissioner should be asked to consider what steps
should be taken to establish in the port of Danzig a “port
d’attache” for Polish warships, should apply also to the vessels
of the Polish maritime police. The Council must have agreed to
this proposal, although no resolution to that effect was adopted.
. The question of the port d’attache was dealt with in a
report by the High Commissioner dated September roth, 1921.
Its terms show that General Haking was considerably embar-
rassed to know how to distinguish a ‘‘port d’attache’’ from
a naval base, and how to reconcile the rights of Danzig as a
Free City with the claims submitted to him by the Polish

12
POLISH WAR VESSELS IN THE PORT OF DANZIG 137

authorities. The High Commissioner concluded his report
by saying that he regarded the question as a matter for
naval experts rather than for him, but that he [considered that
Poland must be given every facility for mooring her warships
in the port of Danzig under conditions which would preclude
the establishment of a naval base and the violation of the
engagements of the League of Nations and. of the Govern-
ment of Danzig.

The Council adopted the suggestion contained in General
Haking’s report that the matter was one for the naval
experts of the League and referred his report to the Perm-
anent Advisory Commission, whose Naval Sub-Commission
submitted a report to the Council on September 24th, 1921.

This document is of some interest because it shows the
importance which the naval advisers to the Council attached
to the practical aspects of the situation. They were unani-
mous in thinking that facilities for sheltering, taking in stores
and effecting repairs should be granted to the Polish war
vessels ; but they were not unanimous as to how such facilé-
ties could best be ensured, particularly as to whether or not
Poland should be given any establishment on shore.

Attached to the report is an Opinion, embodying a series
of regulations which the Naval Sub-Commission suggested
should be adopted. Their idea would seem to have been to
effect a friendly settlement of a question which they must
have regarded as urgent because, until such time as the
port of Gdynia, then under construction, was completed, the
units of the Polish fleet had no place other than Danzig in
which they could safely pass the winter. For this reason, the
proposals made by the Naval Sub-Commission were in their
suggestion only to last until Gdynia was ready.

This report was not taken into consideration by the Coun-
cil until January 12th, 1922, and, in the meantime, with the
help of the High Commissioner, acting on the instructions
of the President of the Council, a provisional arrangement
between Poland and the Free City had been come to at

13
POLISH WAR VESSELS IN THE PORT OF DANZIG 138

Danzig on October 8th, 1921. Under this arrangement, Poland
was to continue to use the port of Danzig for her warships
until the question of a “port d’attache” was decided by the
Council of the League. She was to inform the President of
the Senate of Danzig of the number of ships she wished to
keep in the port, and the President would raise no objection
to these ships remaining in the port. The arrangement was
not to commit either side as regards any future agreement
between them or any future decision by the Council.

On December 7th, 1921, the High Commissioner submitted
a further report to the Council. Its terms show that he was
hoping that the question might be disposed of by a friendly
agreement between the two Parties on a somewhat wider
basis than the Provisional Arrangement of October 8th, 1027,
but in case no such agreement should be reached, he submit-
ted a scheme which in his opinion would meet the require-
ments of the situation. Under it, sufficient berths were to
be allotted to the Polish warships by the Harbour Board
where these vessels could lie undisturbed and for any period
they pleased, subject to the conditions which he indicated.

This report came before the Council on January rath, 1922,
but the Council then thought it unnecessary to take any
further action. A resolution was adopted postponing consid-
eration of the question of a “port d’attache’’ for Polish war
vessels in Danzig to a later session. Until the question was
considered by the Council, the so-called Provisional Arrange-
ment was to remain in force.

The system laid down in the Provisional Arrangement of
October 8th, 19217, still governs, ‘subject to some additions, the
use of the port of Danzig by Polish war vessels, as the result
of a Regulation issued by the High Commissioner on Septem-
ber 19th, 1931, providing that Poland would continue to use
the port of Danzig for her war vessels as during these last
years, until the question of their access to and anchorage in
the port of Danzig was settled definitively by the Council of
the League of Nations. This Regulation was issued by the
High Commissioner in pursuance of a resolution adopted by

14
POLISH WAR VESSELS IN THE PORT OF DANZIG 139

the Council with the participation of the two Governments
concerned.

Both in 1925 and in 1927, the Senate of the Free City
raised the question of the continuance in operation of the
Provisional Arrangement of October 8th, rg21, as in their
opinion the progress of the works at Gdynia rendered it
possible for the Polish warships to find in that port the
shelter and facilities of which they were in need.

In 1925 it was in connection with another question that
the Senate of the Free City brought the matter before the
Council, but it is worth while to mention it because of what
is said in the last paragraph of the report adopted by the
Council on December oth, 1925, which reads as follows: “La
question du port d’attache, soulevée par la note dantzikoise

.. reste ouverte.”

In 1927 the Danzig authorities, in a note to the Polish
Representative at Danzig (May 2oth), again expressed the
opinion that the time had come to put an end to the Provi-
sional Arrangement and invited the Polish Government to agree
that the special privileges accorded to Polish warships at
_ Danzig should come to an end on July ist, 1927. Poland,
however, was unwilling to come to any such agreement. The
Danzig Senate then applied to the Council of the League of
Nations and asked that the question of a “port d’attache”
should be examined anew, and that the Council should give
a definite decision (August 2nd, 1927). It was subsequently
agreed, however, to keep the arrangements of 1921 in force.
Their operation has been prolonged from time to time, the
last of these. prolongations being effected by the special regu-
lation issued by the High Commissioner on September roth,
1031, which is referred to above, until the matter was defi-
nitively settled by the Council, the issue of this special regula-
tion being agreed to at the time when the Council decided
to ask the Court for an advisory opinion on the question
which is now before it.

15
POLISH WAR VESSELS IN THE PORT OF DANZIG 140

The question upon which the Court is asked to advise is
whether the provisions of Section XI of Part III of the
- Treaty of Versailles or of the Convention of Paris of Novem-
ber oth, 1920, or the relevant decisions of the Council of the
League or of the High Commissioner, confer on Poland rights
or attributions as regards the access to or anchorage in the
port and waterways of Danzig of Polish war vessels; and,
if so, what are those rights and. attributions ?

The sense in which the word “attributions” is used in the
question is not altogether clear. The Counsel for both the
Governments concerned have assumed that it refers to powers
entrusted or delegated by a superior authority. No question
in connection with the meaning to be given to the word has
arisen in the course of the case. For this reason the Court,
without wishing to express any opinion on the meaning of
the word “attributions” in general, is prepared to admit,
for the purposes of the present case, the interpretation placed
on the word by the representatives of the Governments
concerned,

The claims of the Polish Government in this case have not
been defined in very precise terms. At the close of his main
oral argument, Counsel for the Polish Government stated his
conclusions. as follows: On the first part of the question, he
invited the Court to say that it follows from the principles
which are the basis of the international status of Danzig and
from the decision of the Council of the League on June 22nd,
1921, that Poland has acquired for her warships, under the
denomination of a “‘port d’attache’, rights of access to and
anchorage in Danzig; and on the second part of the question,
to say that these rights of access and anchorage and the privi-
leges resulting from them have not been worked out or settled.

The claim.so stated is not very clear, but the general tenour
of the documents and arguments which have been submitted
to the Court shows that Poland is claiming that her warships

16
POLISH WAR VESSELS IN THE PORT OF DANZIG I4I

are entitled to go into the port of Danzig and to remain there
as of right, without obtaining the consent of the authorities
of the Free City, and that while in the port these war ves-
sels are at liberty to ship such stores and execute such repairs
as they may need. |

The words “‘port d'attache” reappear in the Polish conclu-
sions though an understanding had been reached at Danzig
in 1927 that the use of the words “‘port d'attache” in connec-
tion with the claim should be discontinued, and that the rights
claimed should be described as those of ‘access to and anchor-
age in the port of Danzig’. The repetition of the words
“port d'attache” in the Polish conclusion serves, however,
to indicate that the question now discussed is the same as
that which occupied the attention of the authorities of the
League of Nations at Geneva when the words “‘port d’attache”
were habitually used to indicate the rights which Poland was
claiming. It is clear that in these early discussions at Geneva
and at Danzig the words ‘‘port d’attache’’ were never used in
their technical meaning either in the sense’ in which they are
used in conventions relating to fishing vessels or merchant
ships, such as the North Sea Fisheries Convention, 1882, or
the Brussels Convention on Collisions of 1910, or in the more
special sense -in which they are used in the French Naval
Service in connection with French warships. It follows, how-
_ ever, that if the words “port d’attache’’ are used only in the
sense of rights of access and anchorage, the limits of the
rights claimed are left vague. Neither access nor anchorage
are terms of art, and no indication has been given on behalf
of the Polish Government as to the extent to which the
exercise of the rights claimed is to be subject to the control
of the local authorities at Danzig. It is merely stated that
the details of the rights accorded to Poland have not yet been
worked out.

No question arises in this case as to the rights of warships
in general to enter a foreign commercial harbour. What
Poland is claiming is a right which is peculiar to herself. at
Danzig,.a right which results from the special position which
she occupies in relation to the Free City, a right which. she

17
POLISH WAR VESSELS IN THE PORT OF. DANZIG 142

claims to derive from the principles underlying the various
“treaty stipulations in force and which would give her war-
ships a special position different from that enjoyed by the
warships of foreign Powers. The form of the question upon
which the Court is asked to advise does not necessitate any
consideration by it of what may be the existing rules of
international law relating to the. admission of warships to
foreign commercial ports.

The fact that Poland claims special rights and privileges
for her war vessels in the port of Danzig, renders it neces-
sary to find some juridical basis for the claim. The port of
Danzig is not Polish territory, and therefore the rights
claimed by Poland would be exercised in derogation of the
rights of the Free City. Such rights must therefore be estab-
lished on a clear basis.

* *

The question submitted to the Court relates to the effect
of the Treaty of Versailles, the Convention of Paris, or the
relevant decisions of the Council of the League of Nations
and the High Commissioner at Danzig.

Section XI of Part III of the Treaty of Versailles makes no
mention of Polish war vessels in connection with Danzig.
It contains no stipulations specifically conferring any rights.
upon them. That fact alone, however, is not sufficient to
dispose of the question. It is necessary to examine these
provisions in order to see whether their natural interpretation
would cover such rights as are now claimed by Poland, even
though they make no specific mention of war vessels.

The'only article in the section which directly affects Poland.
is Article ro4. In this Article the Principal Allied and Asso-
ciated Powers charge themselves with the duty of negotiating
a treaty between Poland and Danzig for the purpose of
ensuring to Poland the rights enumerated in the various para-
graphs of that Article. All these paragraphs bear some rela-
tion to the free and secure access to the sea which had been
promised to Poland though nothing to that effect is said in

18.
POLISH WAR VESSELS IN THE PORT OF DANZIG 143

the Article. The most important paragraph in the Article
in connection with this case is No. 2, which gives as one of
the purposes of the treaty to be negotiated that of “ensuring
to Poland without any restriction the free use and service of
all waterways, docks, basins, wharves and other works within
the territory of the Free City necessary for Polish imports.
and exports”.

The natural interpretation of these words is that Poland
is only to enjoy the unfettered use of the port and its equip-
ment for commercial purposes, and this is what is stated in
the Convention of Paris, Article 26 of which provides that
“it shall be the duty of the Harbour Board to assure to
Poland the free use and service without any restriction, and
in so far as may be necessary for Polish imports and exports,
of the port and the means of communication referred to in
Article 20”. This provision cannot be held to confer on
Poland a right of access and anchorage for war vessels.

This conclusion indeed is in accordance with the view taken
by the Counsel for the Polish Government in his oral argu-
ment before the Court on November rrth (afternoon): “Le
Gouvernement polonais ne soutient pas du tout que les sti-
pulations de l’article 104 du Traité de Versailles forment la
base, le fondement de sa revendication d’un port d’attache....
Nous ne cherchons donc pas dans l’article 104 la base de
notre revendication.”

The Polish contention is that it is not the terms of the
Treaty of Versailles which confer the right of access and
anchorage upon her war vessels, but the principles under-
lying the establishment of the Free City in accordance with
Section XI of Part III, and it is upon that ground and not on
the specific terms of the articles in the Treaty that she is
entitled to rely on the Treaty of Versailles.

If the Court rightly appreciates the Polish argument, it is
that the known antecedents of the Treaty of Versailles, i.e.
the promise that Poland is to enjoy free and secure access
to the sea, entail an interpretation of the treaty texts
relating to the establishment of the Free City which will give .
effect to the Polish claims. Three principles are said to be

3 19
POLISH WAR VESSELS IN THE PORT OF DANZIG 144

inherent in the establishment of Danzig as a Free City, and it
is these three principles which are the basis of the Polish
claim: the necessity for ensuring free access to the sea for
Poland, the intimate relations which were to exist between
Danzig and Poland, and the necessity of providing for the
defence of the Free City. The second, i.e. the intimate relations
between Danzig and Poland, has always been treated as close-
ly connected with that of ensuring free and secure access to
the sea for Poland through Danzig, and it is theréfore unneces-
sary to deal with it separately. The Resolution: adopted by
the Council of the League on June 22nd, 1921, of which
mention has been made above and to which more detailed
reference will be made below, under which the Council
recognized that the Polish Government was specially fitted to
be entrusted with the duty of ensuring, if circumstances
required it, the defence of Danzig and asked the High Com-
missioner ‘“‘to examine the means of making provision in the
port of Danzig, without establishing a naval base, for a port
d’attache for Polish warships’, is said to indicate the Council’s
acceptance and recognition of these principles. It is maintained
by Poland that the combined effect of these principles is
such that they confer upon Poland the right of access to and
anchorage in the port of Danzig for Polish warships.

The Court is unable to accept this reasoning. The promise
to Poland at the time of the peace settlement after the war
of 1014-1918 of a free and secure access to the sea is a
matter of history of which the Court is prepared to take
notice, but no materials and no reasons have been submitted
to it for assuming that the contents of Section XI of Part III
of the Treaty of Versailles, as carried into effect by the
Convention concluded in pursuance of Article 104 of that
Treaty, do not constitute a complete fulfilment of the pro-
mise. The Court is not prepared to adopt the view that the
text of the Treaty of Versailles can be enlarged by reading
into it stipulations which are said to result from the pro-
claimed intentions of the authors of the Treaty, but for which
no provision is made in the text itself.

Furthermore, the Court is not satisfied that the principles
which are said to be inherent in the establishment of Danzig
as a Free City afford any basis for a claim of right on the

20
POLISH WAR VESSELS IN THE PORT OF DANZIG 145

part of Poland for access to and anchorage for war vessels
in the port of Danzig. The Treaty of Versailles imposed no
responsibility upon Poland for ensuring the free access to the
sea which it was the intention of that Treaty that she should
enjoy, nor does it impose upon her any responsibility for the
defence of Danzig. It is upon the League of Nations that
the responsibility is imposed in both cases. The Court is
not prepared to accept the view that these principles, relied
upon on the part of Poland, are sufficient to support the
claim which she is now advancing.

The important provisions of the Convention of Paris are
Articles 26 and 28. The contents of Article 26 have already
been quoted. They give to Poland the unrestricted use of
the port of Danzig for her imports and exports. The normal
use of warships is not to effect imports and exports, and the
Polish representatives have not suggested in their arguments
before the Court that the unrestricted use of the port for
imports and exports can cover a general right of access and
anchorage for warships.

Article 28 provides that ‘‘at all times and in all circum-
stances Poland shall have the right to import and export via
Danzig goods of any kind whatever not prohibited by Polish
law’. It is common ground between the interested Govern-
ments that this provision covers the import of munitions and
other war material. But there is nothing in the terms of the
Article to show that its framers had in view any mode of
transport for effecting such imports and exports otherwise than
by the type of vessel which is normally used for commercial
transportation. The Article cannot be held to confer any

general right of access or anchorage on vessels of war.

The result is that neither the Treaty of Versailles nor the
Convention of Paris, either by the terms of the provisions
they contain, or by necessary implication, confer on Poland
the right she is now claiming.

The question upon which the Court is asked to advise asks
also whether the relevant decisions of the Council of the

2I
POLISH WAR VESSELS IN THE PORT OF DANZIG 146

League of Nations and of the High Commissioner confer upon
Poland rights and attributions as regards access and anchorage
for her war vessels.

The words “relevant decisions’ cannot be restricted to
decisions taken either by the Council or the High Commis-
sioner in pursuance of the powers conferred by Article 103,
paragraph 2, of the Treaty of Versailles, and by Article 39 of
the Convention of Paris. The Court has assumed that the
phrase was intended to cover all decisions at which the
Council might arrive which would be binding upon the Parties
affected by that decision, and it is in this sense that the
Court has interpreted the phrase in the question. No deci-
sions by the High Commissioner are in fact relied upon to
substantiate the Polish claim. It may therefore be assumed
that there are no decisions by the High Commissioner which
confer upon Polish warships the rights now claimed, and it is
therefore only relevant decisions of the Council of the League
which have to be considered.

The Council Resolution which is relied on is paragraph 7
of the Resolution of June 22nd, 1921, to which reference has
been made above. This Resolution must be read in connection
with that adopted by the Council on November 17th, 1920,
on the same subject. This Resolution of 1921 once more
accepted the view that the Polish Government was specially
fitted to ensure, if circumstances required it and in the condi-
tions which were there laid down, the defence of Danzig by
land, and postponed any decision as to the conditions under
which the defence of Danzig by sea should be secured. The
last paragraph of the Resolution was worded as follows:
“The High Commissioner should, however, be asked to examine
the means of providing in the port of Danzig, without estab-
lishing there a naval base, for a ‘port d’attache’ for Polish
warships.” . .

It is maintained by Poland that, in the light of the Coun-
cil’s recognition that Poland was the State best qualified, if
circumstances required it, to undertake the defence of Danzig,
and in the light of the action which Viscount Ishii proposed
in his report of the same date should be taken on the Polish
demand for a “‘point d'attache” for the Polish maritime police
vessels, the Resolution must be regarded as more than a mere

22
POLISH WAR VESSELS IN THE PORT OF DANZIG 147

direction to the High Commissioner to study the question, and
that it was intended by the Council to constitute a definite
acceptance in principle of the Polish claim, leaving over for
future regulation the details as to how practical effect was to
be given to the rights involved.

It is difficult to see in the text of the Resolution any justi-
fication for this view. It is in terms no more than a
direction to the High Commissioner to examine the question.
It does not necessarily imply that the Polish claim had been
accepted in principle, and the reports which were subsequently
made by the High Commissioner and by the Naval Sub-
Commission of the Permanent Advisory Commission show no
trace of any realization on their part that the important
question of principle in connection with a “port d’attache”
at Danzig for Polish war vessels had already been settled by
the Council. If the Council had intended its resolution to
operate as the grant in principle of the right to a ‘‘port
d’attache” at Danzig, it is strange that it should have taken
no steps to correct the misapprehension into which the High
Commissioner and the naval advisers of the League had
fallen. It is equally difficult to understand how in such
circumstances the Council could itself have said in Janu-
ary 1922 that ‘until the question [of the ‘port d’attache’’]
has been considered by the Council, the preliminary agree-
ment [the Provisional Arrangement of October 8th, xr921]
will remain in force’, and again how it could have said in
December 1925 that the question remains open.

The correct view of this paragraph 7 of the Resolution
of June 22nd, 19217, is that it is no more than what its terms
imply—a direction to the High Commissioner to examine how
Poland could be given at Danzig a “port d’attache’’ for her
war vessels without constituting a naval base. Until that
question had been properly investigated, it would have been
difficult’ for the Council to take any decision of principle. The

23
POLISH WAR VESSELS IN THE PORT OF DANZIG 148

Resolution constituted the initiation of a study which was
interrupted by the conclusion of the Provisional Arrangement
of October 1921, an interruption which has resulted in the
fact that no final and definitive decision has ever yet been
taken.

The general conclusion which may safely be drawn from the
terms of this Resolution and from the various relevant documents,
such as the reports of Viscount Ishii, and from the reports by
the High Commissioner and by the Permanent Advisory Com-
mission and its Naval Sub-Commission, so far as these docu-
ments were the foundation of any action taken by the Council, is
that the Council realized the practical importance of the question
of providing shelter and harbour facilities for the vessels
of the Polish fleet, the exact extent of such facilities and the
conditions in which they shall be accorded, as well as the
legal possibility of according them, being matters as to which
further enquiries were necessary. Whether or not there may
still be a need for some such facilities to be accorded to
Poland is not a matter which falls within the jurisdiction of
the Court. The task of the Court is limited to the interpre-
tation and effect of such treaty stipulations as may be in force
and such relevant decisions as may have already been taken.

FoR THESE REASONS,

The Court,

by eleven votes to three,
is of opinion that:

The Treaty of Peace of Versailles, Part III, Section XI,
the Danzig-Polish Treaty concluded at Paris on Novem-
ber gth, 1920, and the relevant decisions of the Council of
the League of Nations and of the High Commissioner,
do not confer upon Poland rights or attributions as
regards the access to, or anchorage in, the port and water-
ways of Danzig of Polish war vessels. |

24
POLISH WAR VESSELS IN THE PORT OF DANZIG 149

Done in French and English, the English text being author-
itative, at the Peace Palace, The Hague, this eleventh day of
December, one thousand nine hundred and thirty-one, in two.
copies, one of which is to be placed in the archives of the
Court, and the other to be forwarded to the Council of
the League of Nations.

(Signed) M. ADATCT,

President.

(Signed) A. HAMMARSKJOLD,
Registrar.

Count Rostworowski, Judge, declaring that he is unable to
concur in the Opinion given by the Court and availing him-
self of the right conferred on him by Article 7x of the Rules
of Court, has delivered the dissenting opinion which follows
hereafter.

M. Fromageot, Judge, declares that, in his opinion, though
it is true that the text of the Treaty of Peace of Versailles,
Part ITI, Section XI, and the Convention between Danzig and
Poland of November gth, 1920, when referring to imports and
exports, make no mention of Polish war vessels as being
entitled to have the benefit of free use of the port of Danzig,
nevertheless the recognition, made in the written negotiations
preceding the Treaty of Peace, of a right on the part of
Poland to “free and secure access to the sea”, a right inherent
in the creation of the State of Poland and of the Free City
of Danzig, cannot be regarded as a mere historical fact without
significance and renders it impossible equitably to exclude
from such free access, for the purposes of their nautical
requirements, Polish war vessels or any other Polish ships
other than merchant ships.

25
* POLISH WAR VESSELS IN THE PORT OF DANZIG I50

M. Urrutia, Judge, availing himself of the right conferred
on him by Article 71 of the Rules of Court, has attached to
the Opinion this statement of his dissent.

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

26


227

SEPARATE OPINION OF JUDGE WALDOCK

1. Ï am in general agreement with both the operative part and the
reasoning of the Judgment of the Court. | have one reservation, however,
regarding subparagraph 5 of the operative part and there are some aspects
of the case which I consider should have received more prominence in
the Judgment, and which [ feel it incumbent on me to mention in this
separate opinion.

* *

2. The Judgment refers to the Exchange of Notes of 19 July 1961 and
draws certain conclusions from it regarding the Federal Republic of
Germany’s recognition of Iceland’s exceptional dependence on coastal
fisheries and regarding Iceland’s recognition of the Federal Republic’s
traditional fisheries in the waters around Iceland. It does not, however,
give the 1961 Exchange of Notes the importance which, in my opinion,
that agreement necessarily has as a treaty establishing a particular legal
régime governing the relations between the Parties with respect to fishing
in those waters. The 1961 Exchange of Notes, which was negotiated and
concluded soon after the United Nations Conference on the Law of the
Sea had failed to solve the problem of fishery limits, had as its express
object the settlement of an existing fishery dispute between Iceland and
the Federal Republic. This it did upon terms which lay down specific
rules to cover the case of a subsequent claim by Iceland to extend her
jurisdiction beyond the 12-mile limit assented to by the Federal Republic
in that agreement. The result, in my view, is that the starting point for
determining the rights and obligations of the Parties in the present case
has to be the 1961 Exchange of Notes which, by its Judgment of 2 Febru-
ary 1973, the Court has held to be valid, in force, and applicable to the
extension of Iceland’s fishery jurisdiction now in question before the
Court.

3. A similar Exchange of Notes was concluded in 1961 between Iceland
and the United Kingdom, and I have set out at length my observations
on the implications of that Exchange of Notes in my separate opinion
in the Fisheries Jurisdiction case between those two countries. The
Exchange of Notes between Iceland and the Federal Republic, it is true,
was concluded some four months after the Exchange of Notes between
Iceland and the United Kingdom and in separate negotiations; and the

56
228 FISHERIES JURISDICTION (SEP. OP. WALDOCK)

Federal Republic did not have any detailed record of its negotiations
as was the case with the United Kingdom. Nevertheless, the Exchange
of Notes of 11 March 1961 between Iceland and the United Kingdom
was used as the model for that between her and the Federal Republic;
and the object and provisions of the two Agreements are, in consequence,
virtually identical. Accordingly, I do not think that it would be useful
for me to repeat here the views which L have expressed on this matter in
paragraphs 2-32 of my opinion in the other case before the Court. It
will be enough for me to state that, mutatis mutandis, [ consider them to
apply equally in the present case.

* *

4. I may, however, recall that the Federal Republic made quite clear its
understanding of the scope of the compromissory clause in the course of
the proceedings on jurisdiction. At the public sitting held on 8 January
1973 its Agent said:

“I would like to add some remarks in «-der to show that the
subject-matter of the dispute submitte: ., che Application of the
Federal Republic of Germany keeps strictly within the scope of the
jurisdiction of the Court, as defined in paragraph 5 of the Exchange
of Notes of 1961. I should recall that according to the terms of that
provision the jurisdiction of the Court covers all disputes relating
to an extension by Iceland of its fisheries jurisdiction over the adjacent
waters above its continental shelf beyond the 12-mile limit. Disputes
relating to such an extension of the fisheries jurisdiction are those
which arise from any measure by which the Government of Iceland
purports to exercise jurisdictional rights or powers over fishing
activities in the waters beyond the 12-mile limit. Scope and intensity
of this jurisdiction, which may give rise to disputes, are of secondary
importance; the jurisdictional claim may vary as to the width of the
zone in which Iceland attempts to exercise jurisdiction, as well as to
the scope of the rights and powers which Iceland attempts to exercise
therein. Iceland’s jurisdictional claim may amount to a claim for
exclusive fishing rights in the extended zone, or may be confined to a
claim for preferential fishing rights only. It may also consist in the
enactment and enforcement of discriminatory or non-discriminatory
conservation measures. Any such measure constitutes an extension of
jurisdiction in the sense of paragraph 5 of the Exchange of Notes and,
whenever such extension or the modalities of such extension give rise
to a dispute between the Federal Republic of Germany and Iceland,
the Court has jurisdiction to deal with this dispute on the application
of either Party.”

That understanding appears to me fully consonant with the Court's
finding in its Judgment on jurisdiction of 2 February 1973 in the case

37
229 FISHERIES JURISDICTION (SEP. OP. WALDOCK)

brought by the United Kingdom, as to the meaning of the compromissory
clause the terms of which are identical with those of the clause in the
present case. The Court there said:

“* . . the real intention of the parties was to give the United Kingdom
Government an effective assurance... : namely, the right to challenge
before the Court the validity of any further extension of Icelandic
fisheries jurisdiction in the waters above its continental shelf”’.
(C.J. Reports 1973, p. 13, para. 23; emphasis added.)

* *

5. In its first submission the Federal Republic asks the Court to declare
that Iceland’s unilateral extension of her zone of exclusive fisheries
jurisdiction to 50 miles “has, as against the Federal Republic of Germany,
no basis in international law and can therefore not be opposed to the
Federal Republic of Germany . . ”’. Whether this submission is intended
to be limited to the question of the ‘‘opposability” of Iceland’s extension
vis-a-vis the Federal Republic or claims that the extension is invalid
erga omnes and, therefore, not opposable to the Federal Republic may
not perhaps be entirely clear. In any event, however, for the reasons
which I have given in paragraphs 33-36 of my separate opinion in the
case between the United Kingdom and Iceland, the true legal issue appears
to me to be whether the extension of Iceland’s fishery jurisdiction beyond
the 12-mile limit agreed to in 1961 is opposable to a State which, like the
Federal Republic, has not accepted or acquiesced in that extension; and
not whether under general international law the extension is objectively
invalid erga omnes. On this point too, it therefore seems enough for me
to state that, mutatis mutandis, the views which 1 have expressed in my
separate opinion in the United Kingdom v. Iceland case apply also in
the present case.

x *

6. The Federal Republic, unlike the United Kingdom in the other
case before the Court, has maintained its claim, set out in its fourth
submission, to compensation for alleged acts of harassment of its vessels
by Icelandic coastal patrol vessels. I concur in the Court’s view, stated in
paragraph 72 of the Judgment, that this submission falls within its
competence in the present proceedings. Although the Court does not
develop its grounds for so holding and I myself entertain no doubt upon
the point, I wish to indicate briefly the reasons which lead me to share the
Court’s view.

58
230 FISHERIES JURISDICTION (SEP. OP. WALDOCK)

7. The claim to compensation raises two points as to the Court’s
competence to entertain it, the first of which is whether the claim falls
within the terms of the compromissory clause: “in case of a dispute in
relation to such extension, the matter shall, at the request of either party,
be referred to the International Court of Justice.” It seems to me too
narrow an interpretation of those words to regard them as confining the
competence conferred on the Court to the question of the extension of
jurisdiction as such. In my view, incidents arising out of Iceland’s
extension of her fishery limit and claims in respect of such incidents
clearly form part of “a dispute in relation to such extension’’—words of
a quite general character. Indeed, every act enforcing Iceland’s juris-
diction outside the 12-mile limit is in a very real sense an extension of her
jurisdiction beyond the agreed limit. Furthermore, as the Court itself
emphasized in paragraphs 21-22 of its Judgment of 2 February 1973 on
its jurisdiction in the case of the United Kingdom r. Iceland, the very
object of the compromissory clause was to provide an assurance that
“if there was a dispute, no measure to apply an extension on fishery limits
would be taken pending reference to the International Court” (CJ.
Reports 1973, at p. 13; emphasis added). It therefore seems entirely
justifiable to consider that the Federal Republic’s claim to compensation
must, in principle, fall within the general competence conferred on the
Court in the case of a dispute in relation to an extension of fishery
jurisdiction,

8. Moreover, as Judge Jiménez de Aréchaga pointed out in the JCAO
Council case (1.C.J. Reports 1972, p. 147) both this Court and the Per-
manent Court of International Justice have held that, if a jurisdictional
clause provides for the reference to an international tribunal of dis-
agreements relating to the interpretation or application of a treaty, the
competence given to the tribunal embraces questions arising out of the
performance or non-performance of the treaty. Thus, in the Advisory
Opinion on /nterpretation of Peace Treaties the Court considered that
disputes relating to the question of the performance or non-performance
of the obligations provided for in treaties ‘‘are clearly disputes concerning
the interpretation or execution” of the treaties in question (/.C.J. Reports
1950, p. 75). Even more specific, for present purposes, is the dictum of
the Permanent Court in the Factory at Chorzow case (P.C.1.J., Series A,
No. 9, p. 21):

“It is a principle of international law that the breach of an engage-
ment involves an obligation to make reparation in an adequate
form. Reparation therefore is the indispensable complement of a
failure to apply a convention and there is no necessity for this to be
stated in the convention itself. Differences relating to reparations,
which may be due by reason of failure to apply a convention, are

59
231 FISHERIES JURISDICTION (SEP. OP. WALDOCK)
consequently differences relating to its application.” (Emphasis added.)

In my view, as I have indicated above, the present dispute in relation to
an extension of Iceland’s fishery jurisdiction is at the same time a dispute
in relation to the application of the 1961 Exchange of Notes. But in any
event, by parity of reasoning, it seems to me clear that a jurisdictional
clause conferring competence on the Court to determine the validity
of an extension of fishery jurisdiction embraces differences relating to
reparations which may be due by reason of the invalidity of an extension.

*

9. The second point concerns the question whether the claim comes
within the scope of the case referred to the Court by the Federal Re-
public’s Application of 5 June 1972. The Application contained only two
submissions: one concerning the alleged unlawfulness of the unilateral
extension of the fishery limit, and the other concerning the need for
agreement in regard to conservation measures. The Application did not
deal with acts of harassment or compensation in respect of them for the
very good reason that it was filed before the new [celandic Regulations
came into force on | September 1972 and before any acts of harassment
had occurred. Indeed, soon after filing the Application, the Federal
Republic sought to obviate any risk of harassment by requesting and
obtaining an Order for provisional measures. True, the Federal Republic’s
Memorial on jurisdiction, which was filed on 5 October 1972 after some
acts of harassment had occurred, also made no mention of them. But the
Court had ordered that the Federal Republic’s first Memorial should be
directed specifically to the question of its jurisdiction to entertain the
Application, and the question of harassment was not germane to that
issue. Consequently, it was in the Memorial on the merits that acts of
harassment were first made a cause of action and a claim to compensation
was first included among the submissions.

10. The question then is whether the Federal Republic’s claim to com-
pensation, formulated in the Memorial on the merits and again in the
final submissions, is a permissible modification of the submissions
formulated in the Application. In other words, is the addition of the
claim to compensation such a modification of the submissions in the
Application as is permissible under Article 40 of the Statute and Article
32 (2) of the Rules? Under the practice of the Permanent Court of
International Justice the parties to proceedings begun by a unilateral
Application were allowed a certain freedom to amend their submissions
so long as the amendments did not have the effect of altering the subject
of the dispute. Thus, the Permanent Court said in the Société commerciale
de Belgique case:

“It is to be observed that the liberty accorded to the parties to
60
232 FISHERIES JURISDICTION (SEP. OP. WALDOCK)

amend their submissions up to the end of the oral proceedings must
be construed reasonably and without infringing the terms of Article 40
of the Statute and Article 32, paragraph 2, of the Rules which provide
that the Application must indicate the subject of the dispute. The
Court has not hitherto had occasion to determine the limits of this
liberty, but it is clear that the Court cannot, in principle, allow a
dispute brought before it by application to be transformed by
amendments in the submissions into another dispute which is different
in character.” (P.C.1.J., Series A/B, No. 78, at p. 173.) (Emphasis
added.)

As to this Court, Judge Read referred in the Certain Norwegian Loans
case to the established practice ‘‘to permit the Parties to modify their
Submissions up to the end of the Oral Proceedings’’, but observed that
“when there is an appreciable change, the other Party must have a fair
opportunity to comment on the amended Submissions”. He added: ‘The
second condition is that the amendment must be an amendment. It must
not consist of an attempt by the Applicant Government to bring a new
and different dispute before the Court” (/.C./. Reports 1957, pp. 80-81).
It is therefore significant that in the Temple of Preah Vihear case the Court
accepted and upheld a claim to the restoration of objects removed from
the Temple by the Thailand authorities since 1954, which had been made
by Cambodia for the first time in its final submissions at the oral hearings
(C.J. Reports 1962, p. 6).

11. Inthe present case, Iceland had the opportunity, by filing a Counter-
Memorial, to reply to the Federal Republic’s claim to compensation
and, if she considered it to be outside the scope of the Application, to
object to its admissibility. But she decided not to appear in the proceed-
ings. As to the claim itself, this seems to me related to the subject of the
Application more directly than was the restoration of the Temple objects
in the Temple of Preah Vihear case: the relief for which it asks is con-
sequential upon and implied in the Federal Republic’s first submission.
True, the facts on which it is based occurred subsequently to the Applica-
tion and the claim therefore introduces a new element into the case. But
it does not seem to me to “transform the dispute” brought before the
Court in the Application into “another dispute which is different in
character”. On the contrary, it arose directly out of the matter which is
the subject of the first submission in the Application and was the direct
result of Iceland’s own actions with respect to that matter when it was
already before the Court. The very fact that the new claim concerns
matters explicitly dealt with in the Court’s Order for provisional measures
seems to me to make it difficult to treat that claim as an impermissible
modification of the submissions in the Application. Consequently, in
my view, the claim to compensation ought not to be ruled out on the
ground that it had no place in the Application.

* *

61
233 FISHERIES JURISDICTION (SEP. OP. WALDOCK)

12. My reservation regarding subparagraph 5 of the operative clause
arises from a doubt as to whether the Court should simply state that it is
unable to accede to the Federal Republic’s fourth submission and thus,
in effect, to dismiss outright the claim to compensation. In so far as this
submission may be considered as asking the Court for a final decision
pronouncing upon Iceland’s obligation to make compensation for
particular specified acts of interference, I agree with the Court that, as
the case now stands, it is not in a position to give such a decision because
the evidence is scarcely sufficient. The Federal Republic appears, more-
over, to be asking for final judgment in the case without requesting
further proceedings to deal with its claim to compensation or requesting
the Court to reserve for the Federal Republic the liberty to apply to the
Court on the question of compensation in the event that no agreement is
arrived at between the Parties on this question. In consequence, it may
be doubtful whether it would be appropriate for the Court, proprio motu,
to reserve the question of compensation to be dealt with in further
proceedings.

13. In so far, however, as the fourth submission may be understood
as merely claiming a declaration of principle that Iceland is under an
obligation to make reparation for any acts of interference established as
unlawful under subparagraphs | and 2 of the operative clause of the
Court’s Judgment, I do not myself see the same difficulty in the Court’s
acceding to the claim. The Court has held that Iceland’s unilateral
extension of her exclusive fishing rights to 50 miles is not opposable to
the Federal Republic and that Iceland is not entitled unilaterally to
exclude the Federal Republic’s fishing vessels from the waters to seaward
of the fishery limits agreed to in the 1961 Exchange of Notes. [t then really
follows automatically that acts enforcing that extension against fishing
vessels of the Federal Republic are unlawful and engage Iceland’s inter-
national responsibility to the Federal Republic with respect to such acts.
Since it is a well-established principle of international law that every
violation of an international obligation entails a duty to make reparation,
the right to reparation also follows without even being stated. Accordingly,
it may be said, as was indeed said in the Corfu Channel case U.C.J.
Reports 1949, pp. 23-24), that to make the claim to reparation is super-
fluous; if the claim to a declaration of the unlawful character of acts is
upheld, the consequence is that as a matter of law, reparation is due.
Nevertheless, an Applicant may think it important to obtain from the
Court, as a form of satisfaction, an express declaration in the operative
part of the Judgment that reparation is due, and I see no obstacle to the
Court’s acceding to such a submission.

(Signed) H. WALDOCK.

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