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Wimbledon, the Clemens Feinäugle

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Wimbledon, the Clemens Feinäugle Wimbledon, The Clemens Feinäugle Content type: Encyclopedia entries Product: Max Planck Encyclopedias of International Law [MPIL] Module: Max Planck Encyclopedia of Public International Law [MPEPIL] Article last updated: July 2013 Subject(s): Innocent passage — Jurisdiction of states, territoriality principle Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Universidade de Lisboa; date: 29 September 2019 A. Introduction 1 In this case brought before the → Permanent Court of International Justice (PCIJ) by France and others against Germany on 16 January 1923, the applicants claimed Germany’s refusal to permit the steamship ‘Wimbledon’ to pass through the → Kiel Canal on its way to Danzig to be in violation of the → Versailles Peace Treaty (1919). The Court found in favour of the applicants, at the same time commenting amongst other things on → sovereignty, damages, and → interpretation in international law. B. Factual Background 2 On 21 March 1921, the English steamship ‘Wimbledon’—which at that time was chartered by a French company—was refused permission by the German authorities to pass through the Kiel Canal on its way to the Polish Naval Base at Danzig (see also → Danzig, Free City of). With regard to the 4,200 tons of munitions and artillery stores on board the ‘Wimbledon’, the refusal was based upon German neutrality orders of 25 and 30 July 1920 issued in connection with the Russo-Polish war which prohibited the transit of such cargoes (→ Neutrality, Concept and General Rules; → War Materials). The relevant neutrality order of Germany stated: Art. 1: The export and transit of arms, munitions, powder and explosives and other articles of war material is prohibited in so far as these articles are consigned to the territories of the Polish Republic or of the Federal Socialist Republic of the Russian Soviets. (Case of the SS ‘Wimbledon’ [Judgment] 28–29; see also → Arms, Traffic in; → Transit of Goods over Foreign Territory) The French ambassador’s request to the German government to withdraw the prohibition and his reference to Art. 380 Versailles Peace Treaty was to no avail. The German government argued that Art. 380 Versailles Peace Treaty did not prevent it from applying the neutrality orders to the Kiel Canal. The SS ‘Wimbledon’ then continued its voyage by way of the Danish Straits after a detention of 11 days and an additional two days of deviation (see also → Detention, Arbitrary). After negotiations between Germany and the Allied Powers had led to no result, the United Kingdom, France, Italy, and Japan—following a respective suggestion by the German government—brought the case against the German Empire before the PCIJ (→ International Courts and Tribunals; → Judicial Settlement of International Disputes; → Peaceful Settlement of International Disputes). C. History of Proceedings 3 The application was filed on 16 January 1923 in accordance with Art. 40 PCIJ Statute and Art. 35 Rules of Court containing the submission that: 1. The German authorities, on March 21st, 1921, were wrong in refusing free access to the Kiel Canal to the steamship ‘Wimbledon’; 2. The German Government is under an obligation to make good the prejudice sustained as a result of this action by the said vessel and which is estimated at the sum of 174.082 Frs. 86 centimes, with interest at six per cent per annum from March 20th, 1921. (Case of the SS ‘Wimbledon’ [Judgment] 16) 4 The → compensation payment should be remitted to France and an interest of 10% should apply if the German Empire did not pay within one month from the date on which the judgment was given. The German government requested the Court to declare that Art. 380 Versailles Peace Treaty could not prevent Germany from applying a neutrality order to the Kiel Canal during the Russo–Polish war, that the application of this neutrality order was not rendered impossible by the preliminary Treaty of Peace between Poland and Russia of 2 From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Universidade de Lisboa; date: 29 September 2019 November 1920, but only by the final peace treaty of 30 April 1921, and that the claim for compensation had to be rejected. 5 An application to intervene filed by the Polish government on 22 May 1923 was accepted in accordance with Art. 63 PCIJ Statute since Poland was a party to the Versailles Peace Treaty (→ International Courts and Tribunals, Jurisdiction and Admissibility of Inter-State Applications). D. Findings and Reasoning of the Court 6 The Court delivered its judgment on the merits on 17 August 1923 and held by eight votes to three that the German authorities were wrong in refusing access to the Kiel Canal to the SS ‘Wimbledon’, that Art. 380 Versailles Peace Treaty should have prevented Germany from applying the neutrality order of 25 July 1920 to the Kiel Canal, and that the German government should pay the sum of 140,749 French francs with interest at 6% per annum, from the date of the judgment and within three months from that day, as compensation for the prejudice sustained by the vessel and its charterers (Case of the SS ‘Wimbledon’ [Judgment] 33; see also → Merchant Ships). 7 First, the Court briefly approved the right of the four applicants to institute proceedings with the argument that all of them possessed fleets and were therefore ‘interested’ powers in the sense of Art. 386 Versailles Peace Treaty (Case of the SS ‘Wimbledon’ [Judgment] 20). 8 The Court then turned to the focus of the decision, ie Art. 380 Versailles Peace Treaty, which says: ‘The 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’ (Case of the SS ‘Wimbledon’ [Judgment] 21; see also → States, Sovereign Equality; → Warships). The Court considered the terms of this article as being categorical and not giving rise to any doubt. Rather, it followed that the canal had ceased to be an internal and national navigable waterway (→ Internal Waters), the use of which was entirely at the discretion of the riparian States (Case of the SS ‘Wimbledon’ [Judgment] 22). Instead, it had become an international waterway intended to provide easier access to the Baltic on the basis of equality without making a distinction between war vessels and vessels of commerce (see also → Baltic Sea; → Baltic States). There was only the condition that the nations to which the vessels belonged were at peace with Germany. The Court set this special regulatory regime for the Kiel Canal in Part XII Versailles Peace Treaty in contrast to the treaty’s provisions on other internal navigable waterways of Germany to which free access was limited to the Allied and Associated Powers (Case of the SS ‘Wimbledon’ [Judgment] 23). The Court thereby tried to demonstrate the treaty authors’ intention to facilitate access to the Baltic by establishing an international regime (→ Treaties, Object and Purpose). The restriction of access to vessels of nations at peace with Germany gave Germany the right to defend itself against enemies but was not meant to apply in cases of conflict between two other nations (→ Self-Defence). Rather, the omission of this case was intentional. The court designated the Versailles Treaty’s provisions on the Kiel Canal as self-contained since if they had to be interpreted by the aid of the treaty’s provisions on the inland navigable waterways they would be superfluous (Case of the SS ‘Wimbledon’ [Judgment] 24; see also → Self-Contained Regime). 9 The Court left open whether the right to free passage through the Kiel Canal amounted to a servitude, arguing that even if it were considered an ordinary contractual obligation this obligation would have to be interpreted narrowly since it would limit Germany’s sovereign rights (→ Servitudes). But the Court stood by the wording of Art. 380 Versailles Peace Treaty because otherwise, in its view, the obligation undertaken by Germany would have been rendered completely meaningless (Case of the SS ‘Wimbledon’ [Judgment] 25). Germany’s argument that to grant a right to passage could not deprive it of its sovereign From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: Universidade de Lisboa; date: 29 September 2019 rights as a neutral power was rejected by the Court stating that any treaty obligation incurred restricted the exercise of sovereign rights and that the wording of Art. 380 Versailles Peace Treaty militated against Germany’s contention (Case of the SS ‘Wimbledon’ [Judgment] 25; see also → Treaties, Declarations of Interpretation). Furthermore, international practice with regard to the → Suez Canal and the → Panama Canal demonstrated that the use of great international waterways was not regarded as incompatible with the neutrality of the riparian sovereign (→ State Practice). The rules that governed these → canals showed that when an artificial waterway connecting two open seas had been permanently dedicated to the use of the whole world, such waterway was assimilated to natural straits so that even the passage of a belligerent man-of-war did not compromise the neutrality of the sovereign State having jurisdiction over the respective waters (Case of the SS ‘Wimbledon’ [Judgment] 25; see also → Jurisdiction of States; → Maritime Jurisdiction; → Straits, International). 10 With regard to the neutrality order of Germany the Court held that the order would not apply to the present case by its wording since ‘export’ did not mean the passage of articles from one foreign country to another foreign country and ‘transit’ would only refer to the German territory to which Art.
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