. PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SÉRIE B — N° 11
Le 16 mai 1925

RECUEIL DES AVIS CONSULTATIFS

SERVICE POSTAL POLONAIS
A DANTZIG

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE.

SERIES B — No. 11
May 16th, 1925

COLLECTION OF ADVISORY OPINIONS

POLISH POSTAL SERVICE
IN DANZIG ©

A. W. Sijthofi’s
Publishing Company

Société d’Editions
A. W. Sijthoff

Leyde Leyden

PERMANENT COURT OF INTERNATIONAL JUSTICE.

SEVENTH (EXTRAORDINARY) SESSION so9s.
May 16th.

Present: File F, c. XIL

Docket VIL. 1.
MM. Huser, President,
Lover, Former President,
Weiss, Vice-President,
Lord FINLAY,
MM. ALTAMIRA, ‘
Opa, , »  Judges.
ANZILOTTI, |
YOVANOVITCH,
BEICHMANN,
NEGULESCO,
WANG.

Deputy-] udges.

ADVISORY OPINION No. 11.
POLISH POSTAL SERVICE IN DANZIG.

I.

On March 13th, 1925, the Council of the League of Nations
adopted the following Resolution :

“The Council of the League of Nations has received, in
accordance with the terms of Article 39 of the Treaty of Paris
between Poland and the Free City of Danzig, signed November
gth, 1920, an appeal by Poland against a decision given under
the said article by the High Commissioner of the League of
Nations on February 2nd, 1925.

“The said decision, the terms of which are communicated
to the Court, deals with the following dispute between Poland
and the Free City of Danzig.
ADVISORY OPINION No. IT 7

“Under the terms of Article 104, paragraph 4, of the Treaty
of Versailles, signed June 28th, 1919, Articles 29 to 32 (inclus-
ive) of the Treaty of Paris between Poland and the Free City
of Danzig, signed November gth, 1920, and Articles 149 to
168 (inclusive) and Article 240 of the Agreement of Warsaw
between Poland and the Free City of Danzig, signed October
24th, 1921, Poland is entitled “to establish in the Port of
Danzig a post, telegraph and telephone service communicating
directly with Poland” (Article 29 of the Treaty of Paris).

“For the purpose of the above service Poland possesses
postal premises in the Heveliusplatz at Danzig.

“On January 5th, 1925, in exercise of rights which she claims
to derive from the above-mentioned international agreements,
Poland set up letter-boxes at various points outside the Heve-
liusplatz premises. These boxes were intended to receive postal
matter to be sent to Poland via the Polish postal service.
The matter thus posted was to be collected and brought to the
Heveliusplatz premises by postmen belonging to that service.
Poland also claimed. to be entitled to deliver outside the
Heveliusplatz premises postal matter brought from Poland
by the Polish postal service. The Free City of Danzig thereupon |
asked the High Commissioner to give a decision, in virtue of |
Article 39 of the Treaty of Paris, to the effect that the rights |
thus claimed by Poland were excluded by a decision or deci-
sions given by the High Commissioner’s predecessor in office, \
General Haking, which the Free City considered to preclude
the Polish service from collecting or delivering postal matter
outside the Heveliusplatz premises and to confine the use
of the service to Polish authorities and officials and exclude
its use by the public.

“The present High Commissioner’s decision of February
and, 1925, declares (paragraph 6) that the dispute, “‘stripped
of all its technicalities, is whether the working area of the
Polish postal service extends beyond the buildings allotted
to that service”.
ADVISORY OPINION No. II 8

“The High Commissioner has examined this question in the
light of certain decisions, or pronouncements, of his predeces-
sor, General Haking.

“The High Commissioner considers that the questions now
at issue between Poland and the Free City of Danzig are
decided finally by a decision given by General Haking on May
25th, 1922, which in his opinion should be regarded as having
been authoritatively interpreted and shown to be applicable
by a decision given by General Haking on December 23rd,
1922, and a letter addressed by General Haking on January
6th, 1923, to the Commissioner-General of the Polish Republic
at Danzig. He has accordingly (paragraph 18 of the decision
of February 2nd, 1925) re-affirmed, in language intended to
make explicit its application to the present dispute, the deci-
sion which he considers General Haking to have given.

“The Council has the honour to request the Permanent Court
of International Justice, in conformity with Article 14 of the
Covenant, to give an advisory opinion upon the following
questions :

“(x) Is there in force a decision of General Haking
which decides in the manner stated in paragraph 18 of the
present High Commissioner’s decision of February 2nd,
1925, or otherwise the points at issue regarding the Polish
postal service, and, if so, does such decision prevent recon-
sideration by the High Commissioner or the Council of
all or any of the points in question ?

“(2) If the questions set out at (4) and (0) below have
not been finally decided by General Haking :

“(a) Is the Polish postal service at the Port of Danzig
restricted to operations which can be performed entirely
within its premises in the Heveliusplatz, or is it entitled
to set up letter-boxes and collect and deliver postal

- matter outside those premises ?

‘“(b) Is the use of the said service confined to Polish
authorities and officials, or can it be used by the public ?
ADVISORY OPINION No. II 9

“The Secretary-General is authorized to submit this applica-
tion to the Court, together with all the documents relating
to the question ; to explain to the Court the action the Council
has taken in the matter ; to give all the necessary assistance
for the examination of the case, and, if necessary, to take steps

_to be represeñted before the Court.” |

In pursuance of this Resolution, the Secretary-General of the
League of Nations, on March 14th, 1925, submitted 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 March 13th,
1925, and in virtue of the authorization given by the Council,

“has the honour to submit to the Permanent Court of Inter-
national Justice an Application requesting the Court, in accord-
ance with Article 14 of the Covenant, to give an advisory
opinion to the Council on the questions which are referred to
the Court by the Resolution of March 13th, 1925 (see attached
text). |

“The Secretary-General will be prepared to furnish any assist-
ance which the Court may require in the examination of
this matter, and will, if necessary, arrange to be represented
before the Court.”

In conformity with Article 73 of the Rules of Court, the Request
was communicated by the Registry to the Members of the League
of Nations, through the Secretary-General of the League, and to
the States mentioned in the Annex to the Covenant. It was also
communicated to the Senate of the Free City of Danzig as being
likely to be able to furnish information on the questions before the
Court.

The Council of the League of Nations having requested the Court
to deal with these questions at an extraordinary session, in order
to enable the Council to consider the Court’s opinion at its own ses-
sion in June, the President of the Court decided, by virtue of the
‘ powers conferred upon him by Article 23 of the Court’s Statute,
to summon an extraordinary session of the Court beginning on
April r4th, 1925.

The Court asked the Parties immediately concerned, namely the
Polish Government and the Senate of the Free City of Danzig, to
ADVISORY OPINION No. II IO.

inform it whether they desired to furnish information either verb-
ally or in writing, whereupon the representatives of these Parties
each filed with the Registry on April roth—the date prescribed—a
Memorandum with annexes.

On the other hand, the Court, not having on April 15th, the time-
limit fixed, received any request to the effect that it should hold
a public hearing for the submission of oral statements by the inter-
ested Parties in regard to the whole question before it, decided that
there should be no hearing for this purpose. Permission was, however,
given for each of the interested Parties to file a second written docu-
ment. Availing themselves of this permission, they each filed
with the Registry on April 17th, the date fixed, a note with annexed
documents. Subsequently, replies to these notes were submitted
with the consent of the Court ; on May 4th the Court was thus in
possession of all the documents in the case.

In addition to the documents submitted by theinterested Parties,
the Court has had before it a dossier, with additional documents 1
sent by the Secretary-General of the League of Nations and also
certain further documents and information which the Secretary-
General was good enough to furnish at the request of the Court.

Before giving the opinion for which it has been asked on the
questions formulated by the Council, the Court must in the first
place trace the origin of the divergence of views which has led to this
request for an opinion.

The Peace Treaty signed at Versailles on June 28th, 1919 (Arti-
cles 100 to 108) constituted the City of Danzig with its territory
as a Free City under the protection of the League of Nations, and
placed its constitution under the League’s guarantee. A High Com-
missioner of the League of Nations, residing at Danzig, wasentrusted
with the duty of dealing in the first instance with all differences
arising between Poland and the Free City, in regard to the Treaty
of Versailles itself or any arrangements or agreements made there-
under.

1 See list in the Annex, page 42,
ADVISORY OPINION No. II ‘ II

General Sir R. Haking was appointed High Commissioner by a
Resolution of the Council dated December 17th, 1920. His appoint-
ment, which was renewed in the meantime, finally expired on
February 3rd, 1923. On February rst, 1923, the Council appointed
Mr. M. S. MacDonnell to succeed him.

Amongst the supplementary “arrangements and agreements”
above referred to, the Treaty of Versailles provides that a conven-
tion should be concluded between the Polish Government and the
Free City with the object, amongst others, of ensuring to Poland
“the control and administration of postal, telegraphic and tele-
phonic communication between Poland and the Port of Danzig’’.

According to the reply dated June 16th, 1919, made by the
Allied and Associated Powers to the observations of the German
delegation on the conditions of peace (which reply was moreover
cited in the report made by the Japanese representative on Novem-
ber 17th, 1920, to the Council of the League of Nations), this pro-
vision was one of those designed to assure to Poland free access
to the sea at the port of Danzig, its only outlet on the Baltic.

The Convention in question was signed at Paris on November oth,
1920. Chapter IV of the Convention, containing Articles 29-32,
deals with the rights accruing to Poland in the port of Danzig
as regards postal arrangements.

Furthermore, Article 39 of the Convention lays down the pro-
cedure for the settlement of possible differences between Poland
and the Free City outlined by the Treaty of Versailles.

By an agreement concluded between the Parties on June 20th,
1921, and confirmed by the Council on the following day, the time
allowed for appeal was fixed at forty days from the notification
of the decision. |

——

The Convention provided for the subsequent conclusion between

the contracting Parties of a further agreement. This agreement,
which was designed to complete the said Convention and to settle
the details of its execution, was signed at Warsaw on October 24th,
1921 ; it contains a Section III devoted to postal matters and com-
prising twenty articles (149-168).

Articles 168, 1), and 240 d-j of the Agreement show that a number
of outstanding questions regarding postal matters were expressly
reserved for future settlement either by mutual arrangement or by
means of decisions given in accordance with the terms of Article 39
of the Convention of Paris.
ADVISORY OPINION No. II I2

The Polish Government has stated without contradiction that
the Agreement came into force on January xith, 1922, in virtue
of an exchange of Notes dated December 3rst, 1921. Similarly,
in his report to the Council of the League of Nations dated
January 12th, 1922, the Japanese representative states that he
understands “that the Agreement was ratified on that date’.

Pending the conclusion of the Convention and Agreement
referred to above, postal relations between Poland and the Free
City had been regulated by certain articles of a provisional arrange-
ment dated April 22nd, 1920.

As regards Section III of the Warsaw Agreement, this was -

prepared by means of negotiations between the Polish and Danzig
postal Administrations which appear to have extended from April
to August rg2r. |

On the 15th of the latter month the High Commissioner gave
his decision in a dispute between Poland and the Free City
regarding the ownership, etc., of the railways situated in the
territory of the latter. For the purposes of his. decision the
High Commissioner accepted a red line traced by the Harbour
Board on a map of the City of Danzig for the purpose of indicating
that amongst the railways, sites and establisments marked within
this line were to be found those “especially serving the port”. By
their Agreement of September 23rd, 1921, the representatives
of the Parties expressly renounced their right to appeal against
this decision, which has been a subject of discussion between the
interested Parties ; for Poland regards it as furnishing a geographical
definition—the only one in existence—of the area of the “‘port
of Danzig”.

As has already been stated, Article 240 of the Warsaw Agreement
reserved a certain number of outstanding questions for decision
by the High Commissioner. In February 1922, Poland approached
the High Commissioner with a view to obtaining his decision upon
some of the points left outstanding with regard to the postal régime.
The Polish request, refers to paragraphs (d) and (}) of Article 240
of the Warsaw Agreement for the purpose of defining the questions,
a settlement of which was desired. In its reply to this request,
the Free City alludes to paragraph (e) of this article in addition to
the paragraphs above mentioned. The three following questions
were therefore submitted to the High Commissioner and were argued
before him :

2
ADVISORY OPINION No. II 13

(x) the meaning of the expression “direct communications” ;
(2) the extension of the Polish service beyond the port of Danzig ;

(3) whether Poland had a right to obtain land and buildings
outside the port.

As regards the last point, Poland had, in a letter dated Decem-
ber r9th, 1921, asked the International Allocation Commission to
allot to her for her postal service certain buildings amongst which.
was the military hospital in the Heveliusplatz. By a:decree dated
March gth, 1922, the Commission allocated to Poland, amongst.
others, the building in the Heveliusplatz.

On March 8th the High Commissioner wrote to the two Parties
suggesting that they should come to an agreement regarding the
points submitted to him for decision. In his letter he stated that,
in his opinion, Poland was entitled to obtain such buildings through-
out the whole territory of the Free City as she could show to be
necessary for the conduct of the postal service granted her.

As no agreement was reached, the High Commissioner on May
25th, 1922, gave a decision in regard to the points submitted to him.
The operative portion of this decision runs as follows :

(1) That Danzig must provide Poland with the means of
establishing a postal, telegraph and telephone service in the
vicinity of the Port of Danzig, if possible in one building,
but in any case in one or more adjacent buildings.

(2) That Poland has the right of purchasing or hiring from
the Government of Danzig, on equitable terms and anywhere
on the territory of the Free.City, the necessary land or build-
ings for the establishment of this service, and for its efficient
and convenient communication across Danzig territory to
any place in Poland selected by her, or to any placés agreed
upon between the two Governments of Poland and Danzig,
but that when making demands under this right Poland is
required to show that the purchase or hire of such land or
buildings is ‘‘necessary” in accordance with Article 30 of the
Convention of November gth, 1920.
ADVISORY OPINION No. II T4

(3) That communication by this postal, telegraphic and
_telephonic service must go direct by any route selected by
Poland or any routes agreed upon between the two Govern-
ments of Poland and Danzig under Article 150 of the Con-
vention of October 24th, 1021, from the one place selected in
Danzig territory to the one place or places selected in Polish
territory, and that no postal, telegraphic or telephonic material
or messages can be received or delivered on this route, or these
routes, except in the establishment described in (x) above.

(4) That Poland can establish this communication under
the conditions mentioned in (3), in any manner she chooses,
rail, air, road or water, and can change the route selected
provided she does not use two or more alternative routes at
the same time, except by agreement as in sub-paragraph (3)
above.

(5) Any further disagreement between the two Governments
arising out of sub-paragraph (2) above as regards the word
“necessary” can be dealt with by either Government under
Article 39 of the Convention of November gth, 1920.

Poland appealed against this decision on August 11th, 1922. The
appeal, however, was withdrawn following an agreement between
the Parties as to the interpretation given on August 3oth, 1922, by
the High Commissioner of his decision of May 25th. This interpreta-
tion was as follows:

“The High Commissioner, having been invited by the repre-
sentatives of Danzig and Poland to explain certain points of
his decision of May 25th, 1922, concerning the establishment of
a Polish post, telegraph and telephone service at Danzig, states
that paragraph 1 of this decision deals with the installation of
the postal service, which is to occupy a single site (Hevelius-
platz). If Poland considers this site too small, it shall be incumb-
ent upon Danzig to supply additional premises in the imme-
diate neighbourhood, that is to say on the opposite side of the
street or by adding on to the existing building.

«Paragraph 2 deals with the development of the postal service
and gives Poland the right to negotiate the purchase or hire of
ADVISORY OPINION No. II 15

any other site within the territory of the Free City. The
question of a second building therefore falls under paragraph 2.
Danzig rejects the idea of a second building ; consequently the
question falls under paragraph 5. Poland can adduce very
cogent arguments in favour of the necessity for the two
buildings, which have already been allotted to her for the
postal service by the Allocation Commission of the Principal
Allied Powers. This fact will certainly influence the High Com-
missioner’s decision, should the question be referred to him.”

While the request which ultimately gave rise to the decision of
May 25th, 1922, was stiil under consideration by the High Com-
missioner, a discussion began between the Parties regarding the
scope of Article 168 of the Warsaw Agreement. The discussion,
which was at first conducted verbally, was carried on by corre-
spondence after May 23rd, the date on which the Polish postal
Administration sent to the Danzig Administration a memorandum
on the points in dispute (this memorandum, however, has not been
communicated to the Court). . From Danzig’s reply, dated June 2nd,
1922, it appears that the rights which Poland claimed under the
article in question were in a large measure disputed by the Free
City.

On October 6th, the Polish Administration requested the Danzig
“Administration to reconsider its opinion of June 2nd, in the light
of the decision of May 25th as interpreted on August 30th. On
--November 21st, Danzig replied that the decision in question had

not affected the situation and that negotiations might profitably
be continued on the basis of the notes of May 23rd and June 2nd.

This view was not accepted by Poland. The Polish Administra-
tion, in a note dated December gth, 1922, argued that, in its opinion,
it was to be deduced from the decision of May 25th as interpreted
on August 30th that the sphere of activity of the Polish service

—_

should be not merely the “port”’ in the sense in which the term is :

used in the decision, but the whole city of Danzig regarded as an
administrative unit,

Such was the situation when the High Commissioner, on Decem-
ber 23rd, 1922, delivered a decision denying Poland the right to
have a letter-sorting office at the main railway station in Danzig,
ADVISORY OPINION No. II 16

With reference to this decision, the Danzig Administration replied
on December 29th, 1922, that they were perfectly prepared to
continue negotiations on the subject of Article 168, but that, for
the purposes of these negotiations, regard must also be had to
the decision of December 23rd. The Polish Administration on
January roth, 1923, expressed the contrary opinion.

The Senate of the Free City had already on January 4th, 1923,
made application to the High Commissioner for a decision upon
Poland’s claims concerning the sphere of activity of the Polish postal
service, as set forth in the note of December oth, 1922, claims which
the Senate regarded as unjustified.

The High Commissioner, on January 6th, 1923, transmitted to the
Polish Commissioner-General in Danzig the Senate’s application of :
January 4th under cover of a letter in which he said that, in his view,
“no decision was necessary, since the decision already given made it |
quite clear that Poland had no right to establish a postal service :
extending in any respect outside the premises allotted to it.

In reply to this letter the High Commissioner was informed on
January 20th, 1923, by Poland that she considered Danzig’s
application to be premature, since negotiations between the Parties
had hardly been begun. And ina letter dated March 2nd, 1923, the
Polish postal Administration proposed to the postal Administration
of Danzig that they should in the first place settle the limits of the
area of operation @ the office at Heveliusplatz, a proposition which,
however, the latter Administration, in a letter of March 2oth,
declined to accept, not considering itself competent to deal with
it under Article 168 of the Warsaw Agreement. No further
steps seem to have been taken to settle the question before
December Ist, 1924. |

The High Commissioner’s decision of December 23rd, 1922, above
referred to, followed an exchange of views between Poland and
Danzig which took place concurrently with the discussion above
described regarding Article 168 of the Warsaw Agreement.

The exchange of views above mentioned related to the question
whether Poland was entitled to establish at the Danzig main railway
station not only a transshipment office but also a sorting office. As
direct discussion of the matter between the Parties led to no result,
the High Commissioner appears to have invited them to hold a con-
ference under his auspices. Following this conference, which took
ADVISORY OPINION No. II 17

place on October 23rd, 1922, the Senate of Danzig received on

November 20th a statement of the Polish standpoint which was
alleged to be compatible with the High Commissioner’s decision of
May 25th, 1922. Danzig in her reply—dated December rath,
1922—t0 this note regards the Polish claim for a sorting office as
indicative of a desire to make it possible for the public to despatch
letters from the Polish office at the station; that is to say, to
extend the sphere of operation of the Polish postal service.
This aspect of the debates leading up to the decision of Decem-
ber 23nd, 1922, connects them with the discussion regarding
Article 168 of the Warsaw Agreement.

” The Court is not in possession of any documents by which the Par-
ties may have expressly sought the High Commissioner’s decision
on the point at issue, that is to say, the decision of December 23rd,
1922.

In the statement of reasons for the decision are included certain
considerations to the effect that the installation of a sorting office
would constitute an extension of the Polish postal service and that
such an extension is not admissible because “it might cause serious
loss to the postal service of Danzig and thence to the State” ; it is
also said that the office granted to the Polish service, namely that
at Heveliusplatz, was intended for the despatch of mails by the
Polish authorities in Danzig and oversea mails in transit.

Poland appealed against this decision on March 2oth, 1923. No
decision was however taken in regard to this appeal as an agreement
was concluded between the Parties on April 18th, 1923, and confirmed |
on the following day by the Council of the League of Nations. |

This agreement sanctions the establishment of a Polish sorting
office at the main railway station, subject to certain restrictions,
one of which is that the office should remain closed to the public.
This agreement states in terms that it replaces the decision of Decem- .
ber 23rd, 1922, but expressly lays down that “‘this practical settle-
ment of the question shall in no way affect the position in law”. |
Many documents have been placed before the Court to assist it in
forming an opinion as to the meaning to be attached to this passage :
the Parties to the agreement maintain different views on the point.

For reasons which are interpreted differently by the two Parties,
the Heveliusplatz building, which was allotted to Poland. on
ADVISORY OPINION No. II 18

March oth, 1922, had not yet been occupied by the Polish postal
service two years later. On April ist, 1924, however, an agreement
regarding its evacuation was concluded, and it appears that it had
actually been evacuated by July rst, 1924. The Court does not
possess full information as to the manner in which the Polish post
.at Danzig was organized in the meantime and after the substitution,
on January 11th, 1922, of the Warsaw Agreement of October 24th,
1921, for the provisional Agreement of April 22nd, 1920.

On December Ist, 1924, the President of the Senate of the Free
City sent to the Polish Commissioner-General in Danzig a fresh
note dealing ‘with, 1. a., Article 168 of the Warsaw Agreement.

This note stated that the Free City was informed that Poland
intended to set its postal service in operation and to extend the
activities of that service beyond the sphere to which, according to
the opinion of Danzig, it was to be restricted. The Free City there-
fore asked to be informed whether Poland’s intention was to estab-
lish a fait accompli, without previously having recourse to the
arbitration procedure provided for in the treaties. Danzig claimed
that its point of view regarding the restriction of the Polish service

was supported amongst other things by a certain passage taken :
from the statement of reasons given by the High Commissioner in |

his decision of December 23rd, 1922, and by the High Commissioner’s
letter of January 6th, 1923. Lastly, in his note of December Ist,
1924, the President of the Senate stated the opinion of the Free
City regarding the nature of Article 168 of the Warsaw Agreement ;
Danzig took the view that it was not a question of a series of agree-
ments already, in principle, concluded and only the precise terms of
which remained to be drafted, but rather of a list of points not falling
within the framework of reciprocal rights recognized by the treaties,
and in regard to which the Parties were free to contract obligations
or not, at their discretion. Danzig for her part was prepared either
to open negotiations in regard to the general principle underlying
the article or to accept an arbitral decision on that question.
The Polish Commissioner General’s reply was dated January 3rd,
1925. It was to the effect that Poland, having now been enabled
to occupy the building at Heveliusplatz, intended to put its
postal service in operation and that this service would include letter-
boxes and postmen. The sphere of action of this service would be
the “port of Danzig”’ in the territorial sense of that expression, which
would be regarded for the present purpose as bounded by the

5
ADVISORY OPINION No. II 19

red line mentioned by the High Commissioner in his decision of
August 15th, 1921. As regards the decision of December 23rd, 1922,
Poland considered it as non-existent, having been replaced by the
Agreement of April 18th, 1923. Lastly, in Poland’s view, Article 168
of the Warsaw Agreement contained solutions which were binding
on the Parties. .

On January sth the Polish postal service proceeded to set up
in the streets of Danzig a number of letter-boxes bearing Polish
inscriptions. The various diplomatic and other incidents which
may have followed this step are outside the scope of the Court’s
jurisdiction.

On the following day, January 6th (sometimes the date January
7th is given), the Senate of the Free City submitted to the High
Commissioner a reasoned application for a decision to the following
effect : (1) that, by decisions having the force of res judicata, the
Polish postal. service was strictly confined to the one office at
Heveliusplatz and, in particular, did not extend to the employ-
ment of letter-boxes and postmen outside this office ; (2) that this
service was restricted to the transport of the mails of the Polish.
authorities in the territory of Danzig to or from this office ; (3) that
the status quo ante January 5th, 1925, should be restored.

In his reasoned opinion on the application made by Danzig on
January 6th/7th, 1925, the Polish Commissioner-General requested
the High Commissioner to give a decision to the following effect :
(x) that Poland was entitled to inaugurate at Heveliusplatz
a complete postal service including the use of letterboxes and
postmen within the territorial sphere of action of that service;
(2) that the extent of this sphere of action was as indicated
on the plan annexed to the High Commissioner’s decision of
August 15th, 1921.

It should be observed that the High Commissioner thus found
himself confronted with the question of the definition of the port
of Danzig, and, should he adopt a territorial definition, also with
that of the limits of the port from the standpoint of the postal
service. It should also he noted that, for the first time, he was
asked to give a decision regarding: the interpretation of Articles
149-151 of the Warsaw Agreement.

The High Commissioner, on February 2nd, 1925, gave a decision
which was in the main favourable to the contentions of Danzig.

The operative portion of the decision is as follows :
ADVISORY OPINION No. II 20

(a) The post, telegraph and telephone service which the
Polish Government has the right to establish under Articles
29 and 30 of the Treaty of Paris means one office in the Port
of Danzig. This office is that allotted to the Polish Postal
Administration in the Heveliusplatz.

(b) Communications by this service from the territory of
the Free City to Poland and vice versa must go from the build-
ings mentioned in (a) to the one place or places selected in
Polish territory, and no postal, telegraphic or telephonic messa-
ges or communications or matter can be received or delivered
on this route except in the establishment mentioned in (a).
By the words ‘received’ and ‘delivered’ is meant reception
or delivery by whatever. means employed and does not
distinguish between German technical postal terms.

(c) The use of letter-boxes outside the limits of the building
or buildings. mentioned in (4) and of a collection and delivery
service by means of postmen in any part of the territory of
the Free City is inadmissible and contrary to the decision of
May 25th, 1922.

(d) The office mentioned in (a) is not intended to deal with
all letters posted anywhere in Danzig territory for Poland or
abroad whether by Polish nationals or other inhabitants of the
Free City, but is intended to enable the Polish authorities
legally established in Danzig territory to make up mails and
despatch them direct to Poland or abroad from that Post Office
and nowhere else, and also to deal with through mails from
Poland, via the Port of Danzig to countries beyond the sea
and vice versa. |

(e) Paragraphs (1) and (2) of the Agreement of April 18th,

1923, regarding the sorting office and the Agreement of

August 29th, 1924, regarding the sorting office for overseas

mails in the harbour remain undisturbed by these decisions.

The Polish Government appealed against this decision, asking
for its annulment.

3
ADVISORY OPINION No. II al

This appeal, dated February 2oth, 1925, is based, amongst other:
things, on the allegation that the decision in question proceeded on}
an erroneous construction of the decision of May 25th, 1922, and
was inconsistent with the provisions of the Warsaw Agreement.
It is also based on the fact that the decision of February 2nd did ©
not fix the bounds of the port, as desired by the Polish Government,
and on the assertion that it was impossible to carry out that deci-
sion in practice.

The opinion of the Senate of the Free City on this appeal i is dated
March 2nd, 1925. It was to the effect that the appeal should purely
and simply be rejected. |

À Polish Reply to this opinion, dated March oth, 1925, was fol-
lowed by a Rejoinder from Danzig dated March rath.

On the following day, March 13th, 1925, the Council of the League
of Nations, having before it the documents enumerated above con-
cerning the appeal and a report by the Spanish representative, was
called upon to give its decision upon the question referred to it
by Poland’s appeal. After hearing the statement of the Parties
the Council, as a preliminary measure, adopted the Resolution
reproduced in the introduction to this opinion.

IT.

The Council’s Request for an advisory opinion contains two
questions.

The first is whether there is in force a decision of General Haking
which decides, in the manner stated in paragraph 18 of the present
High Commissioner’s decision of February 2nd, 1925, or otherwise,
the points at issue regarding the Polish postal service, and, if so,
whether such decision precludes reconsideration by the High Com-
missioner or the Council of all or any of the points in question.
This is a preliminary question which relates to what is generally
known as the doctrine of res judicata, and the second question arises
only if the answer of the Court to the first is in the negative.

The second question is one on the merits. It contains two points :
ADVISORY OPINION No. II 22

“{a) Is the Polish postal service at the port of Danzig -
restricted to operations which can be performed entirely
within its premises in the Heveliusplatz, or is it entitled
to set up letter-boxes and collect and deliver postal matter
outside those premises ?

«(b) Is the use of the said service confined to Polish
authorities and officials, or can it be used by the public ?”

The Court has to consider, at the outset, the scope of the first
question. It should be observed that this question is couched in
general terms, without any specific reference to points (a) and (8)
of the second question.

In a letter to the High Commissioner, dated January 21st, 1925,
Poland maintained that the Polish postal service extended over the
territory delimited by the red line on the plan annexed to the deci-
sion of the High Commissioner of August 15th, 1921, and asked
the High Commissioner to decide accordingly. The decision of
February 2nd, 1925, was to the effect that the Polish postal
operations were limited to the one building at Heveliusplatz
assigned to her for the purpose, thus rendering a decision on the
delimitation of the port unnecessary. One of the grounds of Poland’s
appeal (February 20th, 1925) against this decision was that the
High Commissioner had failed to give a definition of the port, as
requested by Poland. Danzig, in her reply to the Polish appeal,
under date of March 2nd, 1925, contested Poland’s claim in regard
to the definition of the port from the point of view of the Polish
postal service. |

As regards the limits of the port, no question of ves judicata
arises. Though Poland contends that the port of Danzig should be
delimited for postal purposes in accordance with the red line men-
tioned in the High Commissioner’s decision of August 15th, 1921,
she does not argue that the said decision, the definitive character
of which is not disputed by either Government, has defined the
limits of the port from the point of view of the Polish postal service
as established under the Paris Convention. The fact that Poland
envisages the possibility of an extension of the limits of the port
for postal purposes beyond the red line is another proof that, in her
opinion, that line has not been fixed by a definitive decision as
to the boundary of the port. The Senate of Danzig on their side
ADVISORY OPINION No. If 23

categorically deny that the decision of August 15th, 1927, has any
bearing on the postal service.

The Court entirely shares this view. That decision neither in its
statement of reasons, nor in its operative portion, has any bearing
on postal relations, and this is quite natural because the clauses of
Article 104 of the Versailles Treaty have been carried out according
to very different systems as regards railways on the one hand, and
postal, telegraph and telephone communications on the other.
It is further to be observed that the red line has been drawn by the
Harbour Board—and later on accepted by the High Commissioner—
not for the purpose of delimiting an area within which the Board
has general powers, but for the purpose of indicating the area within
which the railway lines with certain exceptions are to be considered
principally to serve the port. The fact that a railway principally
serves the port does not imply that it is situated in an area which,
as a whole, is to be considered as belonging to the port. The decision
of August 15th, 1927, leaves therefore the question as to the terri- |
torial limits of the port of Danzig for postal purposes entirely open.

The Court must now proceed to consider whether there is in force
any decision by General Haking which disposes of the points (a)
and (6) in question 2 in the manner stated in paragraph 18 of the
present High Commissioner’s decision of February 2nd, 1925, or in
some other manner, and, if so, whether such decision prevents recon-
sideration by the High Commissioner or.the Council of the League
of Nations of all or any of the points at issue. The second part of
this question need only be considered if the first part is answered
in the affirmative.

Article 103, paragraph 2, of the Treaty of Versailles provides that
“the High Commissioner will also be entrusted with the duty
of dealing in the first instance with all differences arising
ADVISORY OPINION No. II 24

between Poland and the Free City of Danzig in regard to this
Treaty or any arrangements or agreements made thereunder.”

This provision was evidently intended to lay down a general
principle to be developed and completed by subsequent rules.
These rules are to be found in Article 39 of the Paris Convention
of November gth, 1920, which runs as follows:

«Any differences arising between Poland and the Free City
of Danzig in regard to the present Treaty or to any other sub-
sequent agreements, arrangements or conventions, or to any
matter affecting the relations between Poland and the Free
City, shall be submitted by one or the other Party to the deci-
sion of the High Commissioner, who shall, if he deem it neces-
sary, refer the matter to the Council of the League of Nations,

“The two Parties retain the right of appeal to the Council of
the League of Nations.”

The Court has no doubt that the principles laid down in its
Opinions Nos. 8 and 9 as to the final character of decisions under
international law, apply to any final decision under the aforesaid |
provisions.

This point is not contested by the Parties, although Poland
maintains that there may be exceptional cases in which even a final
decision can be reconsidered by the High Commissioner or the
Council of the League of Nations.

The point now at issue is only whether there is in force a decision

to the effect that the Polish postal service at the port of Danzig is

“restricted to operations within its premises at Heveliusplatz

and that the use of such service is confined to Polish authorities
and offices.

It appears from the documents submitted to the Court that both
Parties mainly rely in their arguments upon three documents,
viz., the decision of May 25th, 1922, the decision of December 23rd,
1922, and the High Commissioner’s letter of January 6th, 1923.

e* «

An appeal was brought by Poland before the Council of the League
of Nations against the decision of General Haking of May 25th,
1922. On August 30th of the same year, in consequence of the inter-
pretation given by the High Commissioner of certain points of
his decision, the appeal was withdrawn. The decision so inter-~

=
ADVISORY OPINION No. II 25

preted became therefore final and binding and is actually in force. |
It remains to be seen whether it covers the points now in dispute.

The decision was given in consequence of submissions made by the
Parties under Article 240 of the Warsaw Agreement of October 24th,
1921, which reserved for the decision of the High Commissioner,
inter alia, the following points relating to the Polish postal
service :

{ Translation. +]

“(d) The interpretation of the expression ‘directly’ (direc-
tement — unmittelbar) in Article 29 of the Convention.

“‘(e) The question of the extent to which the Polish postal

service may operate outside the port of Danzig (Article 29 of
the Convention).
_ “(f) The question whether Danzig’s obligation to provide
land and buildings extends only to the port, or whether Poland
may also claim to obtain such land and buildings outside the
port (Article 30 of the Convention).”’

In February 1922, Poland submitted to the High Commissioner
for his decision points (d) and (f), involving an interpretation of
part of Articles 29 and 30 of the Paris Convention ; in her reply of
February 28th, Danzig added point (e), contending that the Polish
installations outside the port should be confined to assuring the
working of the postal, telegraph and telephone communications
between Poland and the port of Danzig. It is obvious that none
of the questions thus submitted to the High Commissioner refer
to the points now in dispute ; and it is not to be assumed that’
the decision went beyond those questions. Itis true, as Danzig con-
tends in her observations submitted to the Court on May 4th, 1925,
that the High Commissioner in paragraph 2 of his decision stated
that the point in dispute was the interpretation of the first part of
Articles 29 and 30 of the Paris Convention, and, as also contended
by Danzig, that the interpretation given by him in his decision
is binding as between the Parties. This interpretation, however,

1 Translation prepared by the Registry. The original German text is repro-
duced hereafter :

d) über die Auslegung des Begriffs ,unmittelbar‘‘, — ,,directement*‘ — ,,direct-
ly‘ — in Artikel 29 der Konvention ;

e) über die Frage, welchen Umfang die polnische Posteinrichtung ausserhalb
des Hafens von Danzig annehmen darf (Artikel 29 der Konvention) ;

f) über die Frage, ob sich die Verpflichtung Danzigs zur Hergabe von
Gebäuden und Gelände nur auf den Hafen erstreckt, oder ob Polen solches
ausserhalb des Hafens verlangen kann (Artikel 30 der Konvention).
ADVISORY OPINION No. II 26

was given only in regard to certain questions submitted by the
Parties and therefore is binding only in so far as the said questions
are-concerned. |

But it is Danzig’s further contention that it is both the right and
the duty of the High Commissioner, as an official of the League of
Nations, under the protection of which the Free City is placed,
to examine, on his own initiative and independently of the Parties,
the situation both in point of fact and of law, and to decide any
dispute, either patent or latent, which may have come to his notice. :
The true meaning of his decisions should therefore be determined :
having regard to these functions of the High Commissioner.

The Court cannot regard this contention as wellfounded. It
has already been stated that the general principle laid down in
Article 103, paragraph 2, of the Treaty of Versailles—on which
Danzig mainly relies—must be taken in connection with Article 39
of the Paris Convention. From these provisions it is quite _
clear that the functions of the High Commissioner are of a judicial
character and are limited to deciding questions submitted by one
or other of the Parties. The High Commissioner, therefore, had no
authority to decide questions which the Parties had not submitted
to him ; and his decision should, if possible, be construed as being
in conformity with the powers conferred upon him.

In the present case, however, it is not necessary to apply this
principle. The decision of May 25th, 1922, by its very terms, was
confined to the questions submitted by the Parties. No reference
was made to the Polish postal service being confined within its
premises or its use being limited to Polish authorities and offices ;
letter-boxes and postmen are not mentioned in any part of the deci-
sion. The Court does not, however, attach particular importance
to this fact ; for the exclusion of letter-boxes and postmen might
possibly follow from the general exclusion of postal activities out-
side the building. But the Court is of opinion that a general ques-
tion concerning the activities of the Polish postal service outside its
premises was neither submitted to the High Commissioner nor
decided by him.

Of the operative portion of the decision (dispositif), which is to be
found in paragraph 15, only clauses x and 3 call for notice in this
connection.

- Clause 1 is to the effect that Danzig must provide Poland with
the means of establishing a postal service in the vicinity of the port

oe,
ADVISORY OPINION No. II 27

of Danzig, if possible in one building, but in any case in one or
‘more adjacent buildings. This obviously has nothing to do with
the question whether the activities of the postal service are to be
confined to the interior of the said building or buildings. The
Senate of Danzig itself has in a letter to the High Commissioner,
dated October 19th, 1922, expressed the opinion that by this part
of the decision only the question of the building (die Gebäude-
frage) had been settled.
Clause 3 runs as follows :

“That communication by this postal, telegraphic and tele-
phonic service must go direct by any route selected by Poland
or any routes agreed upon between the two Governments of
Poland and Danzig under Article 150 of the Convention of
October 24th, 1921, from the one place selected in Danzig terri-
tory to the one place or places selected in Polish territory, and
that no postal, telegraphic or telephonic material or messages
can be received or delivered on this route, or these routes,
except in the establishment described in 1 above.”

In the opinion of the Court this statement clearly refers to point (4)
of Article 240 of the Warsaw Agreement, that is, to the meaning
of the word “directly” (directement) in Article 29 of the Paris
Convention. It only concerns the question of transit and forbids
the acceptance and delivery of postal, telegraphic or telephonic
material or messages on the route or routes through the territory
of the Free City, except in the postal establishment referred to in
clause I. |

It follows from these two clauses that Poland may have only
one Post Office and that no postal matter can be accepted or
delivered during the transit through the territory of Danzig or
the transport to or from the port. Thisis not contested by Poland.
The question whether the Polish Post Office may extend its activ-
ities outside the building and set up letter-boxes and collect or
deliver postal matter, as well as the question whether this postal
service can be used by the public, are of course quite different
questions. It is however to be observed that clause 3 referred to
above, although dealing with another point than that which is
now before the Court, has an indirect bearing on the latter when
ADVISORY OPINION No. II | 28

excluding direct reception in the Polish mail coaches of postal
matter deposited in letter-boxes placed either on the station
premises or on the trains.

So much for the decision taken as it stands. Danzig, however,
contends that the real intention of the High Commissioner in
giving his decision was that Poland could have no postal activities
outside the building assigned for the purpose. In Danzig’s
opinion this is clearly shown by the letter of the High-Commissioner
dated January 6th, 1023, and also by a projet d'accord which
he submitted to the Parties on April 27th, 1922, before giving his
decision. The possible legal effects of the letter of January 6th
will be considered further on. For the present it is sufficient to say
that any personal opinion which General Haking may have express-
ed or any proposal he may have made as a mediator cannot alter
the meaning and the scope of the decision. Once a decision has
been duly given, it is only its contents that are authoritative,
whatever may have been the views of its author.

*
* *

The decision of December 23rd, 1922, refers to a dispute con-
cerning the right of Poland to establish a letter sorting office (bureau
de triage) at the main Railway Station of Danzig, and was to the
effect that Poland had no such right.

It is conceded on both sides that there is nothing in the operative
portion of the decision which deals with the points now in dispute
‘between Poland and Danzig. But in paragraph 6 of the state-
ment of reasons (motifs) the High Commissioner says that Article 29
of the Paris Convention gives Poland the right to establish one
postal service, which, according to his decision of May 25th, 1922,
and the subsequent Agreement between the two Governments,
means one Post Office in the port of Danzig; then he goes on to
say that in his opinion “this Post Office is not intended to deal with
all letters posted in Poland to Polish nationals residing in Danzig,
and with all letters sent by these Polish nationals either to Poland
or abroad, but that it is intended to enable the Polish authorities,
legally established in Danzig territory, to make up mails and des-
patch them direct to Poland or abroad from that Post Office, and
from nowhere else, and also to deal with through mails sent from

4
ADVISORY OPINION No. II 29

Poland via the Port of Danzig to countries beyond the sea and
vice versa.” On this paragraph Danzig bases her contention that
there is a decision to the effect that the use of the Polish postal
service is confined to Polish authorities and offices.

An appeal was brought by the Polish Government against the
decision of December 23rd, 1922. On April 18th, 1923, an arrange-
Ment was made between the Parties on the question decided by
the High Commissioner : it is said in the preamble that the repre-
sentatives of the Parties have agreed “that the decision of the
High Commissioner of December 23rd, 1922, is replaced by the —-
following provisions”; clause 3 of the Agreement, however, says
that ‘‘this practical settlement of the question does not in any way
alter the legal position”. It does not appear from the documents
that the Polish appeal has been expressly withdrawn.

There has been a great deal of discussion between the Parties,
and statements have been made as to the meaning and effect of
this arrangement. Poland contends that the decision of December
23rd, 1922, has been entirely replaced by the arrangement and is of
no effect. On the other hand, it is Danzig’s contention that, by
virtue of clause 3, only the operative part of the decision has been |
replaced.

The Court deems it unnecessary to express an opinion on this
point, In the very terms of clause 3 of the Agreement, the
reservation made by the Parties refers to the «legal situation”
(situation de droit). The maximum concession which could be
made to Danzig’s contention in this respect is that the decision
itself ought to be considered as being in force, except as concerns
Poland’s right to have a letter-sorting office at the main Danzig
Railway Station, a right which it acquired by the Agreement. __
If this be so, the decision should be taken as it stands; it is
clearly impossible to construe clause 3 of the Agreement as
referring to a special part of the decision or as incorporating
any particular opinion expressed therein. The Court therefore,
whilst abstaining from expressing a definite opinion on the meaning
of the clause in question, assumes, for the purpose of argument,
that Danzig might invoke, in the present case, the decision of
December 23rd, 1922. Now, it is certain that the reasons contained

Nina decision, at least in so far as they go beyond the scope of the |
ADVISORY OPINION N°. II 30

operative part, have no binding force as between the Parties |
concerned.

It is perfectly true that all the parts of a judgment concerning the
points in dispute explain and complete each other and are to be
taken into account in order to determine the precise meaning and
scope of the operative portion. This is clearly stated in the award
of the Permanent Court of Arbitration of October 14th, 1902, con-
cerning the Pious Funds of the Californias, which has been repeatedly
invoked by Danzig. The Court agrees with this statement. But
it by no means follows that every reason given in a decision con-
stitutes a decision ; and it must be remembered that the Court of
Arbitration applied the doctrine of.ves judicata because not only
the Parties but also the matter in dispute was the same (il y a non
seulement identité des Parties en litige, mais également identité de la
matière).

Now, although it is not quite clear why the High Commissioner,
in paragraph 6 of his decision, expressed his opinion on the scope
of the utilization of the Polish postal service, there can be no
doubt that the said opinion is irrelevant to the point actually
decided by him and therefore has no binding force.

epee

This conclusion, which is drawn from the very nature of judicial
decisions, is not affected by Danzig’s contention that the decision
of the High Commissioner may be considered to be in the nature
of a declaratory judgment (Feststellungsurteil). In the decision of
December 23rd,.1922, as well as in every other decision of the
High Commissioner, the operative portion is clearly distinguished
from the statement of reasons; the Court is unable to see any
ground for extending the binding force attaching to the declara-
tory judgment on the point decided to reasons which were only
intended to explain the declaration contained in the operative
portion of this judgment and all the more so if these reasons :
relate to points of law on which the High Commissioner was
not asked to give a decision.

The opinion expressed by General Haking in paragraph 6 of the
decision of December 23rd, 1922, is relied upon by Danzig also as
an interpretation of the true scope and meaning of the previous
decision of May 25th, 1922. In the observations last submitted
by Danzig and signed by Professor Verzijl, stress is laid on the fact
that General Haking’s decisions are logically connected one with the
ADVISORY OPINION No. II 31

other and are clearly based upon a restrictive conception of the
Polish postal service.

This may beso. If General Haking had felt himself constrained
to give a decision upon the points now at issue, he very possibly
would have settled them in conformity with Danzig’s contention.
This, however, does not import that these points can be considered
as having been decided.

*
* *

On January 4th, 1923, the President of the Senate of the Free
City made an application to the High Commissioner for a decision
upon Poland’s claim that her postal service extended over the whole
of the town of Danzig, a claim which the Senate regarded as unjust-
ified. The High Commissioner, on January 6th, transmitted a
copy of the application to the Commissioner-General of Poland at
Danzig with a covering letter in which he said that, in his opinion,
no decision was necessary, as it clearly appeared from the decision
already given that Poland had no right to establish a postal
service extending outside the building assigned for the purpose.

There is a difference of opinion between the Parties as to whether
the decision referred to in the High Commissioner’s letter was the
decision of May 25th, 1922, as Danzig contends, or the decision
of December 23rd, 1922, as contended by Poland.

The Court is of opinion that this point is not material for the pre-
sent purpose, because the letter in question cannot be regarded as,
and by its very terms was not intended to be, a decision. From
what has already been said with regard to the judicial functions
of the High Commissioner, it follows that he cannot give a decision,
within the meaning of Article 39 of the Paris Convention, unless the
essentials of a judicial procedure have been complied with. Now,
a so-called authentic interpretation of a judicial decision is in effect
a new decision ; therefore, the Court is unable to recognize that the
letter of the High Commissioner of January 6th, 1923, constituted
an interpretation of this kind, as understood by Danzig. It merely
expressed the personal opinion of General Haking, an opinion which,
as the Court has already stated, cannot alter the proper meaning
of a decision.

Nor is it possible to agree with Danzig’s contention that the
Polish Government have accepted the view expressed in the High
ADVISORY OPINION No. II 32

Commissioner’s letter, seeing that they did not object to it. On
January zoth, the Commissioner-General of Poland, answering the
letter of January 6th, informed the High Commissioner that he
considered Danzig’s application to be “hasty” (prématurée) since
the question ‘‘had only just begun to be discussed between the
postal Administrations of Poland and of Danzig under Article 168
of the Poland-Danzig Agreement of October 24th, 1021”. Instead
of admitting that the question as to the territorial extent of the
Polish postal service had been settled by a previous decision of the
High Commissioner, Poland very clearly stated that the question
had still to be settled and this, in the first place, by means of
negotiations under Article 168 of the Warsaw Agreement.

Danzig contends that the jurisdiction conferred on the High
Commissioner by Article 240 of the Warsaw Agreement, does not
concern any of the points reserved for negotiation under Article 168.
If Danzig’s contention was correct, the reply of the Polish Com-
missioner-General of January 2oth, 1923, would perhaps not
have met the real point at issue. However this may be, the two
postal Administrations exchanged in the following months letters
dealing with the legal basis of the negotiations to be carried on
under Article 168 and the Senate of the Free City seems to have
taken no steps before December 1924, in order to obtain a decision
on the points raised in their letter of January 4th, 1923, nor to have
made a statement to the effect that it considered these points as
already settled by the letter of the High Commissioner.

For these reasons the Court reaches the conclusion that there is :
no decision of General Haking in force dealing either with the ques-
tion whether the Polish postal service is restricted to operations
which can be performed within its premises, or with the question
whether its use is confined to Polish authorities and offices. It is
therefore unnecessary for the Court to consider whether the exist-
ence of a final decision could, and if so, under what circumstances,
leave room for reconsideration of these points by the High Commis-
sioner or by the Council of the League of Nations.

HT.

The Court, having arrived at the conclusion that the points at
issue regarding the Polish postal service in the Port of Danzig have
ADVISORY OPINION No. II 33

not been settled by any decision in force, has now to deal with
the two questions formulated by the Council under No. 2 (a)
and (0) of their Request.

In order to answer these questions, it is necessary to state briefly
what is the nature and scope of the Polish postal service in the Port
of Danzig.

The Treaty of Versailles (Article 104) made provision for a
Convention between the Free City of Danzig and Poland which,’
with a view to giving Poland free access to the sea, was designed
to secure to that State, amongst other things, the control and admin-
istration of the postal, telegraph and telephone communication
between Poland and the Port of Danzig. These rights of Poland
were defined by Chapter IV of the Paris Convention in four articles
which run as follows :

Article 29.

“Poland shall have the right to establish in the port of
Danzig a post, telegraph and telephone service communicating
directly with Poland. Postal and telegraphic communications :
via the port of Danzig between Poland and foreign countries,
as also communications between Poland and the port of
Danzig, shall be dealt with by this service.”

Article 30.

‘‘The Free City of Danzig undertakes to lease or to sell to
Poland on equitable terms the necessary land or buildings for
the establishment and working of the services provided for
in Article 29 as well as in Article 2x. The Free City undertakes
to accord to Poland all the facilities necessary for the instal-
lation of the telegraph and telephone lines required for the
application of the said article.”’

Article 3x.

_ “AU other postal, telegraphic and telephonic communica-
tions within the territory of the Free City, as also communica-
ADVISORY OPINION No. II 34

tions between the Free City and foreign countries, shall be
the concern of the Free City.”

Article 32.

‘*Poland and the Free City of Danzig undertake to conclude,
within a period of six months from the coming into force of the
present Treaty, a special convention for the purpose of estab-
lishing uniform postal, telegraphic and telephonic tariffs
for communication between the two States ; this convention
shall at the same time lay down the necessary details for the
application of this chapter.”

These articles, in conformity with Article 32, were executed and
completed by the Warsaw Agreement.

It is convenient at this point to insert a translation of
Articles 149, 150 and 151 (No. 1) of this Agreement :
[Translation 1.]

Article 140.

“The postal, telegraphic and telephonic service to be estab-
lished by the Polish Republic in accordance with Article 29
of the Convention of November oth, 1920, shall be independent
of the Postal Administration of the Free City of Danzig.”

1 Translation prepared by the Registry. The original German text is
reproduced hereafter :

Artikel 149.

Der von der Republik Polen gemäss Artikel 29. der Konvention vom
9. November 1920 einzurichtende Post-, Telegraphen- und Fernsprechdienst ist
von der Postverwaltung der Freien Stadt Danzig unabhangig.

Artikel 150.
Er erstreckt sich:

a) im Hafen von Danzig auf alle Zweige und Arten des Betriebs-, des tech-
nischen und des Verwaltungsdienstes, sowie auf die dazu notwendigen
Einrichtungen ;

b) zwischen dem Hafen von Danzig und Polen und tber den Hafen zwischen
Polen und dem Auslande auf alle Post-, Telegraphen- und Fernsprech-
verbindungen ohne Beschränkungen . auf bestimmte Verkehrslinien und
unter Benutzung aller gebräuchlichen Verkehrsmittel.

Artikel 154.

(4) Die polnische Verwaltung ist berechtigt, den Umfang und die technische
Ausführung der Einrichtungen selbständig zu bestimmen.
ADVISORY OPINION No. II 35
Article 150.

“Tt extends :

(a) In the port of Danzig, to all classes and branches of the
traffic services and of the technical and administrative services
and the installations necessary for such services.

(b) Between the port of Danzig and Poland and between
Poland and other countries vid the port, to all postal, telegra-
phic and telephonic communications without any restriction to
certain traffic routes and with the use of all the usual means
of communication.”

Article 151. ‘

“‘(z) The Polish Administration shall be entitled independ-
ently to decide as to the extent and technical arrangement
of such installations.”

The remaining articles which deal with postal matters concern
in the main the relations between the two postal Administrations,
certain privileges and immunities of the Polish service in the Danzig
territory, the purchase or lease of sites and buildings necessary for
the postal service, the construction or the use in common of tele-
graph and telephone lines, the tariffs for communications between
Danzig and Poland.

The last article of the chapter dealing with this matter (Article
168) runs as follows :

[Translation *]
“(x) Special arrangements shall be made between the two
postal Administrations as soon as > possible in regard to the
following points : :

1 Translation prepared by the Registry. The original German text is
reproduced hereafter :

Artikel 168.

(1) Über folgende Angelegenheiten sollen zwischen den beiderseitigen Postver-
waltungen sobald wie méglich besondere Abmachungen getroffen werden :

a) Benutzung der polnischen Post- und Telegrapheneinrichtungen im Hafen
für den Ortsverkehr polnischer Behôrden und Amter ;

b) Abholung von Postsendungen und Telégrammen, die in Polen aufgegeben
sind, bei den polnischen Post- und Telegraphendienststellen im Hafen durch
ausserhalb des Hafens wohnende Empfanger ;

c) Bestellung von Postsendungen und 'Pelegrammen, die in Polen aufgegeben
sind, an polnische Behérden und Amter ausserhalb des Hafens ;
ADVISORY OPINION No. II 36

(a) The use of Polish postal and telegraphic installations
in the port for the local communications of Polish officials and
offices ;

(6) The fetching away ( Abholung) from the Polish post and
telegraph offices in the port, by addressees dwelling outside
the port, of postal matter and telegrams despatched from
Poland ;

(c) The distribution (Bestellung) to Polish authorities or
offices outside the port, of postal matter and telegrams des-
patched from Poland ;

(d) The connection with the Polish telephone exchange, to be
established in the port for communication with Poland, of
Polish authorities and offices situated in Danzig but outside
the port ; ‘ |

(e) Direct service communications between Polish post and
telegraph offices in the port and foreign post and telegraph
offices ;

(f) Permission to establish an unrestricted postal, telegraph
and telephone service between the port of Danzig and foreign
countries ;

(g) Permission to establish a private local postal and tele-
graph service in the port of Danzig;

(h) Through communication for Poland, via the territory
of Danzig, with Poland or other countries;

(c) Through communication with other countries for Danzig
via Polish territory; .

(k) Reciprocal communication between Poland and Danzig.

(2) Any subsequent arrangements regarding points (a),
(c) and (d) shall not affect the decision as to the situation from

d) Anschluss polnischer Behôrden und Aemter, die sich in Danzig ausser-
halb des Hafens befinden, an die im Hafen einzurichtenden polnischen
Fernsprechzentralen fur den Verkehr mit Polen ;

e) unmittelbarer Dienstverkehr der polnischen Post- und Telegraphendienststel-
len im Hafen mit den Post- und Telegraphendienststellen im Auslande ;

f) Zulassung des unbeschränkten polnischen Post-, Telegraphen- und Fern-
sprechverkehrs zwischen dem Hafen von Danzig und dem Auslande ;

g) Zulassung eines privaten Post- und Telegraphen-Ortsverkehrs im Hafen von
Danzig ;

h) Durchgangsverkehr Polens durch Danziger Gebiet nach Polen oder dem
Auslande ;

i) Durchgangsverkehr Danzigs durch Polen nach dem Auslande ;

k) wechselseitiger Verkehr zwischen Polen und Danzig.

(2) Durch etwaige spatere Abmachungen zu Punkt a, © und d wird der

Entscheidung über die staatsrechtliche Steilung der polnischen Behôrden und

Aemter aud dem Gebiete der Freien Stadt Danzig nicht vorgegrifien.

5
ADVISORY OPINION No. II 37

the standpoint of municipal law, of Polish authorities and offices
in the territory of the Free City of Danzig.”

It will be seen that there is no trace of any provision confining
the operation of the Polish postal authorities to the inside of its
postal building. The postal service which Poland is entitled
to establish in the port of Danzig must be interpreted in its ordinary
sense so as to include the normal functions of a postal service as
regards the collection and distribution of postal matter outside the
post-office. Indeed, any limitations or restrictions in this respect
would be of so exceptional a character that they cannot, in the
absence of express reservations, be read into the text of treaty
stipulations.

Both sides have put forward arguments as to the exact meaning
of the phrase ‘‘all classes ( Avten) and branches ( Zweige) of the traffic
serviceand of the technical and administrative services and the instal-
lations (Einrichtwngen) necessary for such services” (Article 150 (a)
of the Warsaw Agreement). Danzig contends, while Poland
denies, that the word “installations” refers to the interior service
(innerhalb des internen Dienstes). The Court is of the opinion that
this point cannot affect the conclusion which it has arrived at. The
article in question begins with these words: “It (i.e. the service)
extends... to”, etc. (Ey erstreckt sich). This article read in
connection with the preceding and subsequent articles should be
interpreted in the sense of including the things enumerated
therein, and not in the sense of excluding the postal service from
exercising its normal functions in collecting and delivering postal
matter outside the postal building.

By the terms of Article 29 of the Paris Convention, Poland is
entitled to establish in the port of Danzig postal, telegraph and tele-
phone communications between Poland and other countries via the
port of Danzig, and between Poland and the port of Danzig. There
is nothing in the texts of the international agreements which suggests
any limitation of the use of the postal service to Polish authorities
and offices. As will be explained hereafter, the expression “port
of Danzig’”’ was understood by the contracting Parties to be a terri-
torial conception. Itis perfectly clear that the right which Poland
has under the terms of the international agreements is a right to
communications with the port of Danzig, in its territorial sense.
What are the exact limits of the port is a question with which the
ADVISORY OPINION No. II 38

Court is not concerned. But is does not in the least follow that
because it may perhaps be difficult to determine the exact territorial
limits of the port, Poland’s right in this respect should be limited
to communications with the Polish authorities and offices in Danzig
territory.

In the absence of special provision to the contrary, the post,
telegraph and telephone communication must be taken to be
intended for the use of the public in the ordinary way.

Article 168, No. 1, of the Warsaw Agreement contains certain
stipulations from which it may be inferred that distribution of postal
matter outside the post office and especially the use of the service
by the public are not excluded. This article prescribes that the postal
administrations of the two Parties are to conclude, as soon as pos-
sible, special arrangements concerning certain matters enumerated
therein. Among these are :

““(b) The fetching away ( Abholung) from the Polish post and
telegraph offices in the port, by addressees dwelling outside the
port, of postal matter and telegrams despatched from Poland ;

“(c) The distribution (Bestellung) to Polish authorities or
offices outside the port of postal matter and telegrams des-
patched from Poland.”

The provision under (c) shows that it is within the com-
petence of the Polish postal service to establish a distribution ser-
vice within the limits of the port. Ifin the said provision the distri-
bution to Polish authorities outside the port has been contemplated,
whilst nothing is said as regards distribution to such authorities
within the port, it seems quite clear that in the view of the Parties
the right to establish a distribution service within the limits of
the port is within the competence of the Polish postal service.

The difference in the wording of (0) and (c) further shows that
the word “‘addressees”’ in (b) refers to the public in general, and not
merely to Polish authorities and offices, asin (c). It was evidently
contemplated that a special privilege should be extended to Polish
authorities and offices, outside the port, in that letters and tele-
grams addressed to them could be delivered at their addresses, while
private addressees living outside the port had to call at the post
office for their letters and telegrams.
ADVISORY OPINION No. II 39

The legal effect of Article 168 has been disputed by the Parties.
Poland claims that the article constitutes a pactum de contrahendo,
which lays down certain principles already agreed uponby the Parties
and which imposes upon Danzig an obligation to complete the neces-
sary arrangements for carrying these principles into effect. Danzig,
on the other hand, denies that there is any such obligation, and con-
tends that the list contained in the article is only a programme for
negotiations which either Party is free to enter into or not as she
pleases. The Court is not called upon to express an opinion on this
question. The important point in this connection is that a com-
parison of (b) and (c) of the article shows that the utilization :
by the public of the service to and from the port was contemplated |
by the Parties.

It should be remarked that the postal rights granted to Poland
are, by the terms of the agreements, limited to the port of Danzig,
and that she is not entitled, in the absence of special arrangements,
to perform any postal operation outside the limits of the port. The
mere fact that under Article 168, No. 1 (b), the Parties had in view
the conclusion of special arrangements for private persons as well
as for Polish authorities and offices outside the limits of the port
shows that, failing such arrangements, the field of activity of the
service is confined to the limits of the port, and that the service
is only intended for the use of the public in the port. In actual
practice it is, of course, hardly possible to prevent the public out-
side the port from making use of the service, but in the matter of
distribution outside the post office and delivery within it, an effect-
ive control can be exercised.

It has been urged on behalf of Danzig that Poland’s postal rights
in Danzig constitute a grant in derogation of the postal monopoly
of Danzig, and that the grant must be strictly construed in favour
of Danzig. In the opinion of the Court, the rules as to a strict or
liberal construction of treaty stipulations can be applied only in
cases where ordinary methods of interpretation have failed. It is
a cardinal principle of interpretation that words must be interpreted
. in the sense which they would normally have in their context,
unless such interpretation would lead to something unreasonable or
absurd. In the present case, the construction which the Court
has placed on the various treaty stipulations is not only
reasonable, but is also supported by reference to the various
ADVISORY OPINION No. II 40

articles taken by themselves and in their relation one to another.

It has also been urged that recognition of Poland’s claims would
result in a serious loss to the revenue of the Free City of Danzig.
It cannot be doubted that the institution of a Polish postal service in
the port of Danzig would mean a loss to the Danzig postal monopoly,
but this consideration cannot affect the treaty rights to which, in
the opinion of the Court, Poland is entitled.

The Court wishes to point out that nothing in the present opinion
can be construed as prejudging the way in which, from the point
of view of private rights and municipal administration, Poland’s
postal rights in Danzig may be exercised.

Since the Court is of opinion that the port in the postal sense is
not a personal entity comprising certain authorities and offices or
categories of persons, as contended by Danzig, and that the Polish
postal service is not limited to operations inside the building in
the Heveliusplatz, it is essential to indicate why the Court
considers the port of Danzig as a territorial area.

. Besides the fact that the expression “the port of Danzig’’ con-
veys, as ordinarily used, the notion of a territorial and topogra-
phical entity, both the Paris Convention and the Warsaw Agreement
use in several instances the expression : dans le Port (im Hafen von
Danzig), and particularly in Article 168 of the above-mentioned
Agreement there is a specific mention of arrangements to be
concluded concerning the relations between Polish post, telegraph or
telephone offices in the port with addressees or Polish authorities
and offices outside the port ([b] and [c]) or with ‘‘ Polish authorities
and offices which are in Danzig outside the Port” (168 [d]).

These distinctions prove, whatever interpretation may be put
upon Article 168 as a whole, that in the opinion held by the contract-
ing Parties in 1921 the port of Danzig is regarded as a territorial
area lying within the territory of the Free City. This conclusion is
confirmed by the wording of certain other provisions of the
Warsaw Agreement, e. g. its Article 240.

The correspondence emanating from Poland and subsequent to
1921 shows that she has never abandoned this point of view.
ADVISORY OPINION No. II 41

As concerns the attitude of Danzig, the fact that, at a given
moment, the Free City did not, like Poland, insist on the delimitation
of the area of the port, finds its explanation in the interpretation
given by General Haking limiting the Polish postal service to oper-
ations in the interior of the building attributed to it and its use to
Polish authorities and officials. The Court, however, has discarded
this interpretation.

The limits of the port, considered as the area of the Polish postal
service, have not been fixed, as has been explained above.

The Court is not asked to define and delimit the port of Danzig ;
but it considers it necessary to point out that, in its opinion, the
practical application of its answers depends on the question of the
limits of the port of Danzig within the meaning of the Treaty
stipulations.

FOR THESE REASONS,
. The Court is of opinion :

(x) that there is not in force any decision of General Haking which
decides in the manner stated in paragraph 18 of thé present High
Commissioner’s decision of February 2nd, 1925, or otherwise, the
points at issue regarding the Polish postal service ;

(2) that, within the port of Danzig :

{a) the Polish postal service is entitled to set up letter-boxes
and collect and deliver postal matter outside its premises in the
Heveliusplatz, and is not restricted to operations which can be
performed entirely within those premises ;

(b) the use of the said service is open to the public and is 5 not
confined to Polish authorities and officials. A

DONE in French and English, the English text being author-
itative, at the Peace Palace, The Hague, this sixteenth day of May,
nineteen hundred and twenty-five, in two copies, one of which
is to be deposited in the archives of the Court, and the other to be
forwarded to the Council of the League of Nations.

(Signed) Max HUBER,
President.

(Signed) À. HAMMARSKJOLD,
Registrar.