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had not begun actual work of construction, he had submitted plans and designs within time limits set by his contract, he had obtained credits, and he had availed himself of clauses in his contracts to request extensions of time; if all that he had done had been for the purpose of rendering his concessions unassailable, it was also in fulfilment of the contract. The court concluded therefore that M. Mavrommatis' concessions fell under Article 4 of the protocol and "that they should be brought into conformity with the new economic conditions by means of readaptation." Determination of the method of reädaptation did not fall within the court's competence. In reaching its conclusion, the court referred to the fact that during the negotiations at the Conference of Lausanne,26 the term "commencement d'application" had been substituted for a previously used expression "commencement d'execution," and "application" was thought to be a "more elastic and less rigid term" than "execution."

In sum, therefore, the court held that the concessions were valid; that in granting the Rutenberg contract, the British Government had not conformed to its international obligations mentioned in Article 11 of the mandate and contracted in Protocol XII of Lausanne; that M. Mavrommatis had suffered no loss from this action; that the Greek claim for indemnity was dismissed; and that M. Mavrommatis was entitled to a reädaptation of his concessions under Article 4 of the Protocol XII of Lausanne. In the first, second and fifth of these conclusions, the court was unanimous; only Judge Altamira dissented from the third and fourth conclusions. In view of the last holding, it is difficult to share Professor Borchard's view that the result is "not far different from that to which the court would have come by adopting the view of the minority judges at the first hearing," 27 for presumably negotiations have since proceeded for reädaptation.

POLISH POSTAL SERVICE IN DANZIG

By the Treaty of Versailles of June 28, 1919, the Principal Allied and Associated Powers undertook to establish the Free City of Danzig to "be placed under the protection of the League of Nations" (Article 102), and to negotiate a treaty between the Polish Government and the Free City of Danzig with the object (among others) of ensuring to Poland the control and administration of postal communication between Poland and the Port of Danzig (Article 104). Such a treaty, called a convention, was signed at Paris on November 9, 1920.28 Meanwhile a provisional agreement had been "In a previous instance, the court has studied negotiations antedating the signature of a treaty. See Advisory Opinion No. 3, in Publications of the Court, Series B, No. 3, p. 41. However, Sir Douglas Hogg (British Empire) opposed this practice very vigorously in his statement before the court on October 26, 1925, with reference to the request for an advisory opinion concerning Article 3 of the Treaty of Lausanne.

"Edwin M. Borchard, "The Mavrommatis Concessions Cases," this JOURNAL, Vol. 19, pp. 728, 735.

25 6 League of Nations Treaty Series, p. 189.

signed by Poland and Danzig on April 22, 1920. The Convention of Paris (Articles 29-32) dealt with the Polish postal service in Danzig, and provided (Article 32) for a special convention dealing with postal tariffs and the necessary detailed arrangements. Such a convention was signed at Warsaw on October 24, 1921, generally called the Warsaw Agreement. This agreement, more particularly Articles 149 and 150, envisages an independent Polish postal service in the port of Danzig, extending "to all classes and branches of the traffic services and of the technical and administrative services and the installations necessary for such services," reserving various questions for special arrangements to be later made (Article 168), as well as certain outstanding questions for decision by the High Commissioner (Article 240). Under the provisions of the Paris Convention, Poland acquired premises in the Heveliusplatz in Danzig, on March 9, 1922. By Article 103 of the Treaty of Versailles all differences between Poland and the Free City, arising under the Treaty of Versailles "or any arrangements or agreements made thereunder," were to be dealt with "in the first instance" by the High Commissioner appointed by the League of Nations; and by Article 39 of the Paris Convention the two parties retained a right of appeal to the Council of the League of Nations.29

The practical problems of the postal situation were the subject of extensive negotiations, in the course of which divergences in the views of the two governments were not removed. On January 5, 1925, after previous notice given to the President of the Senate of the Free City, Poland proceeded to set up a number of letter-boxes bearing Polish inscriptions in certain streets of Danzig.30 This led to a protest by the Senate of the Free City, and the ensuing difference was submitted to the High Commissioner, Mr. M. S. MacDonnell, who, on February 2, 1925, rendered an opinion to the effect that the Polish service should be confined to the one office in the Heveliusplatz; that the use of letter-boxes or postmen elsewhere was inadmissible and contrary to a decision of the High Commissioner, then General Haking, of May 25, 1922; 31 and that the one office was limited to use by the Polish authorities and to use for through overseas mails. Poland then appealed to the Council of the League of Nations, which on March 13, 1925, adopted a resolution requesting the court to give an advisory opinion on the following questions: 32

31

29 A new procedure for handling disputes between Poland and the Free City of Danzig has recently been elaborated. League of Nations Official Journal, July, 1925, pp. 880 ff.

30 The painting of these boxes in black, white and red colors, as formerly used by Germany, was reported by the High Commissioner as having taken place on January 7, and created an unfortunate incident. The High Commissioner's report to the Secretary General of the League of Nations was dated January 17, 1925.

31 The text of the decision of May 25, 1922, is published in the Decisions of the High Commissioner, 1922, p. 15. These decisions are published in annual volumes, in German and English.

32 League of Nations Official Journal, April, 1925, p. 472.

(1) Is there in force a decision of General Haking which decides. the points at issue regarding the Polish postal service, and, if so, does such decision prevent reconsideration by the High Commissioner or the Council of all or any of the points in question?

(2) If the questions set out at (a) and (b) below have not been 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?

The request was communicated to the court on March 14, and the Council requested that on account of the urgency of the question, the matter be considered in an extraordinary session in the hope that the Council might have the opinion at its session in June. The President of the court thereupon summoned an extraordinary session for April 14, 1925, and on that date seven judges were present and for the first time all four of the deputyjudges, the latter replacing Judges de Bustamante, Moore, Nyholm and Pessoa.

Notice of the request had been sent to all members of the League of Nations, to the states mentioned in the Annex to the Covenant, to other states on the court's list, and to the Senate of the Free City of Danzig "as being likely to be able to furnish information." The Polish Government and the Senate of the Free City each submitted a memorandum to the court, and later a supplementary note and later a reply, but neither requested an oral hearing. The opinion, therefore, refers to the Polish Government and the Senate of the Free City as "Parties," though in a strict sense there can be no parties when an advisory opinion is requested. Many additional documents were submitted by the Secretary-General of the League of Nations as directed by the Council. The opinion was handed down on May 16, 1925.34 The court addressed itself to the first question put by the Council as a preliminary question relating to the doctrine of res judicata. The court found that a decision of the High Commissioner of August 15, 1921,35 drawing a red line to indicate an area within which railway lines were to be considered to serve the port, had not defined the territorial limits of the port of Danzig for postal purposes. Reliance was placed in argument on two other decisions of the High Commissioner, on May 25, 1922 and December 23, 1922,86 and on a letter written by the High Commissioner on January 6, 1923. The decision of May 25, 1922, had been rendered with respect to questions which did not cover points now in dispute. Since the High Commissioner was exercising a judicial function, he could not go beyond the questions subExcept possibly the Hedjaz. See Publications of the Court, Series E, No. 1, p. 261. * Publications of the Court, Series B, No. 11.

25 Decisions of the High Commissioner, 1921, p. 15.

*Ibid., 1922, p. 56.

mitted; nor could any personal opinion which he later expressed vary the operative effect of what he had decided. Similarly, the decision of December 23, 1922, did not cover the subject-matter of the present dispute; but in the statement of reasons for his decision, General Haking had gone beyond the dispute before him and had expressed an opinion on which Danzig placed great reliance. Poland had appealed against this decision, but the appeal was not pressed after an agreement which purported to replace the decision but which provided that "this practical settlement of the question does not in any way alter the legal position." The court did not pronounce upon the legal effect of such a "replacement," for it found that the reasons given by General Haking had not added to the operative effect of his decision of the dispute before him. While all parts of a judgment should be considered in determining the scope of its operative portion, as decided by the Permanent Court of Arbitration in the Pious Fund Case, it does not follow that every reason given constitutes a decision. Nor is Danzig's case helped by the insistence that General Haking's decision be treated as a declaratory judgment; even so, the explanation of the declaration would not be part of the declaration itself. In General Haking's letter of January 6, 1923, he had expressed an opinion as to the effect of his previous decision. While he was competent to give a decision interpreting a previous decision, the essentials of judicial procedure would have to be followed in doing so. But the letter in question did not comply with this necessity, and expressed only a personal opinion. The court concluded, therefore, that there was no decision of General Haking in force dealing with the extent of the Polish postal service outside the Heveliusplatz, or with its use by the public as distinguished from Polish authorities and offices.

To answer questions 2 (a) and 2 (b), the court reviewed the applicable treaty texts and found no trace of any provision confining the operations of the Polish postal authorities to the inside of its postal building. The texts had used the expression "port of Danzig" which must be a territorial conception; they failed to draw the territorial limits, but this was a phase of the question which was not before the court. No restriction had been placed on the use of the postal service by the public in the ordinary way, while the Warsaw Agreement (Article 168) had envisaged such use. Within the port, the postal service may clearly be open to public use. Danzig's insistence on a strict construction in her favor could not be accepted by the court, for "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." Hence the court concluded that within a territorial area, which the court could not delimit but which was known as the port of Danzig, 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; and that the use of such service may be open to the public.

The opinion, of which the English text is authoritative," was at once forwarded to the Council of the League of Nations. On June 11, 1925, the Council "adopted" the opinion," and decided "that the boundaries of the port of Danzig shall be traced for the purposes of the Polish postal service with due regard to the considerations put forward in the opinion of the court," and asked a committee of four experts to submit proposals regarding the delimitation of the port of Danzig. This committee was eventually composed of M. Hostie, a member of the legal subcommittee of the Advisory and Technical Committee for Communications and Transit, M. Montarroyos, technical adviser to the Brazilian Delegation in Geneva, Colonel de Reynier, formerly President of the Danzig Harbor Board, and M. Schreuder, Head of the Post Office at Amsterdam. The committee reported to the Council on August 19, 1925; it reached the conclusion that the port in this postal sense should include not merely the area occupied by its technical installations but also the area in which its economic constituents are concentrated. The lines proposed for bounding the latter should be subject to revision every five years. The proposed boundary was also drawn in contemplation of a settlement of details as to deliveries to certain official and unofficial establishments outside the area included, and failing such a settlement, the boundary should be reconsidered. The committee's conclusions, except the last, were approved by the High Commissioner. Both the Polish Government and the Senate of the Free City submitted observations to the Council. At the meeting of the Council on September 19, 1925, M. Sahm, representing Danzig, asked the Council "to entrust the duty of defining and delimiting the Port of Danzig to the Hague Court, either for decision or advisory opinion," preferably a decision. The Council did not accede to this request, but adopted the delimitation proposed by the committee of experts,39 subject to possible revision at the end of five years, and invited the parties to enter into further negotiations for carrying out Article 168 of the Warsaw Agreement.40

EXPULSION OF THE ŒCUMENICAL PATRIARCH

On February 11, 1925, the Prime Minister of Greece appealed to the Council of the League of Nations under paragraph 2 of Article 11 of the Covenant, with reference to a dispute between Greece and Turkey arising out of the alleged expulsion from Constantinople of His Holiness Monseigneur Constantin, Ecumenical Patriarch and Archbishop of Constantinople. The Greek Government considered this expulsion to constitute a serious in

"The English text is authoritative only for Advisory Opinions Nos. 2, 3, 5, 6, and 11. The French text is authoritative for all the judgments to date, and for all other advisory opinions.

* See League of Nations Official Journal, July, 1925, pp. 882-887.
"For the actual line, see League of Nations Document, C/430. 1925. I.
40 League of Nations Document, C/35th Session P. V. 13 (1), p. 40.

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