The Case of the S

THE CASE OF THE S. S. WIMBLEDON 1923 Permanent Court of International Justice (P.C.I.J.) (ser. A) No. 1 (Brief Summary and Excerpt∗) At the end of World War I, Germany and the Allied Powers signed the Peace Treaty of Versailles.1 The Treaty was punitive in nature and did not allow Germany to add any reservations or to contest any provision contained therein. The provision most directly at issue in the Wimbledon case was Article 380, which provided that "[t]he Kiel Canal and its approaches shall be maintained free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality.” [11] During the summer of 1920, Germany's neighbor Poland was at war with Russia, and Germany declared herself a neutral in the conflict. A French company chartered an English vessel, the S.S. Wimbledon, which the Polish government hired to carry war materiel to the Polish Naval Base at Danzig (Gdansk today). The most direct route from France to Danzig involved traveling through the English Channel into the North Sea and then through the Kiel Canal. The canal connects the North Sea to the Baltic Sea and lies just north of Hamburg with both of its banks in German territory. German money paid for its construction and German labor built it.. On the morning of March 21, 1921, the S.S. Wimbledon arrived at the entrance to the Kiel Canal. Neutrality orders issued in the summer of 1920 prohibited the transport through German territory of war materiel destined for either belligerent. The Canal Director, relying upon these orders, refused to permit the S.S. Wimbledon entry into the canal. The French Ambassador urged the German government to allow passage to the S.S. Wimbledon, claiming that Article 380 of the Treaty of Versailles required Germany to do so. Germany, in response, asserted that Article 380 posed no obstacle to application in the Kiel Canal of the neutrality orders, which unambiguously prohibited the Wimbledon's passage. The German and French governments failed to agree and France ultimately re-routed the Wimbledon. The ship reached its destination thirteen days behind schedule, her charterers having suffered a substantial economic loss in the process. Negotiations between the Conference of Ambassadors and the German government, following the Wimbledon incident, failed to resolve the problem. The governments of France, Britain, Italy and Japan, with the agreement of the German government, brought their dispute to the Permanent Court of International Justice in accordance with the compromissory clause included in the Treaty of Versailles provisions which dealt with the Kiel Canal. France claimed that Germany's obligations under the Treaty were supreme and that Article 380 was a permissible infringement upon German sovereignty. Germany contended that the Treaty only applied insofar as it did not conflict with customary international law and that Article 380 violated her rights as a sovereign nation. Nine members of the Permanent Court joined in the majority opinion handed down August 17, 1923; the court issued two separate dissents Following a purely textualist approach, the court interpreted Article 380 with respect for its plain terms. According to the majority, the article clearly obligated Germany to allow free passage to all vessels, without distinction as to the nature of their cargo or their destination, with an exception only for vessels belonging to nations at war with Germany. The court continued: ∗ Fact summary adapted from, Sheila Weinberger, The Wimbledon Paradox and the World Court: Confronting Inevitable Conflicts Between Conventional and Customary International Law, 10 EMORY INTL L. REV. 397 (1996). 1 Treaty of Peace at Versailles, June 28, 1919, Ger.-Allies, 225 Consol. T. S. 188. [T]he terms of article 380 are categorical and give rise to no doubt. It follows that the canal has ceased to be an internal and national navigable waterway, the use of which by the vessels of states other than the riparian state is left entirely to the discretion of that state, and that it has become an international waterway.2 From the inclusion of an exception for ships of belligerents with whom Germany may be at war, the court inferred that the drafters of the Treaty had "clearly contemplated the possibility of a future war in which Germany is involved." Therefore, the court concluded that if free access to the Kiel Canal could be modified in the event of German neutrality, "the Treaty would not have failed to say so. It has not said so and this omission was no doubt intentional." In the process of construing the text, the court recognized that "[w]hile disposed to give the limitation on Germany's sovereign power a restrictive interpretation . [the court was] obliged to stop at the point where the so-called restrictive interpretation would be contrary to the plain terms of the article and would destroy what has clearly been granted.”3 "[T]he Treaty has taken care not to assimilate [the Kiel Canal] to the other internal navigable waterways of the German Empire."4 The majority summarily dismissed Germany's argument that Article 380 deprived Germany of rights essential in the notion of sovereignty and thus required a restrictive interpretation. "[T]he fact remains that Germany has to submit to an important limitation of the exercise of the sovereignty rights which no one disputes that she possesses over the Kiel Canal."5 "The Court declines to see in the conclusion of any treaty by which a State undertakes to perform or refrain from performing a particular act an abandonment of its sovereignty. No doubt any Convention creating an obligation of this kind places a restriction upon the exercise of the sovereign rights of the State, in the sense that it requires them to be exercised in a certain way. But the right to enter into international engagements is an attribute of State sovereignty."6 The majority concluded the German neutrality orders could not preempt the provisions of the Treaty of Versailles. Because Article 380 explicitly authorized passage of the Wimbledon, allowing the ship to pass "cannot be imputed to Germany as a failure to fulfill its duties as a neutral. If, therefore, the `Wimbledon', making use of the permission granted it by Article 380, had passed through the Kiel Canal, Germany's neutrality would have remained intact and irreproachable.”7. Edits to this document © Bartram S. Brown 2004 2 Wimbledon, 1923 P.C.I.J. (ser. A) No. 1, at 22. 3 Id. at 25. 4 Id. at 23. 5 Id. at 24-25. 6 Id. at 25. 7 Id. at 30. 2.

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