The Court’s Opinion

On the Effects of the Council’s Resolution

The Council’s Resolution had recommended that the two Governments “enter into direct negotiations as soon as possible in order to establish such relations between the two neighboring States as will ensure ‘the good understanding between nations upon which peace depends.’” Poland’s position before the Court was that Poland and Lithuania, in accepting this recommendation, undertook not only to negotiate but also to come to an agreement; it alleged that Lithuania had thus incurred an obligation to open the LKS to traffic.

Though the Court agreed that to conform to the Resolution, the two Govern-ments not only had to enter into negotiations but had also to pursue them as far as possible, with a view to concluding agreements, it said that an obligation to negotiate did not imply an obligation to reach an agreement. Nor did it imply that Lithuania, by undertaking to negotiate, has assumed an engagement and was in consequence obliged to conclude the administrative and technical agreements indispensable for re-establishing traffic on the LKS. There was therefore no jus-tification for maintaining that Lithuania had incurred an obligation to restore to use and open to traffic the railway sector in question.

On the Relevance of Article 23(e) of the Covenant

During 1928, relying on Article 23(e) of the Covenant and on the Resolution of the Assembly of the League of Nations of December 9, 1920, by which the Advi-sory and Technical Committee was instructed “to consider and propose meas-ures calculated to ensure freedom of communications and transit at all times,”

the Council of the League decided to ask that Committee to report on practical steps that might be adopted, taking account of the international agreements in force.

The report the Committee submitted on September 4, 1930, expressed the opinion that the LKS should be restored so as to expedite the international transit of goods coming from or going to the districts of Grodno and Vilna and the ports of Königsberg, Memel, Libau, and Riga. Holding that interrupting goods in transit had the effect of completely stopping certain forms of transport, which could not use the ports owing to the heavy cost of sending the goods by a round-about route, the Committee, while making some recommendations,¹⁷⁶stated that goods traffic between Poland and Lithuania other than transit traffic could continue to be carried on indirectly without any serious difficulty and that it is not advisable at the moment to resume passenger traffic.

However, the Committee stated that Lithuania was bound to open the LKS to international traffic under Article 23(e) of the Covenant: If it were once admitted that certain countries would be at liberty, because of political disagreements, to suppress international railway connections for long periods, the interests of third-party States, Members of the League, might suffer because they would no longer enjoy the benefits of freedom of transit and communication to which they are, in principle, entitled under Article 23(e) of the Covenant.

Before the Court the Polish Government contended that Article 23(e) of the Covenant constituted an international engagement, obliging the Lithuanian State to open the line. But the Court observed that Article 23(e) of the Covenant—

whatever obligations arise from it for States Members of the League of Nations—

does not imply any specific obligations for these States to open any particular lines of communication.¹⁷⁷

The Court noted that specific obligations can therefore only arise from

“international conventions existing or hereafter to be agreed upon,” as is stated

176The Committee made the following recommendations:

1. They should remove these obstacles to freedom of transit . . . in order to put an end to a situation, which seems contrary to the objects of Article 23(e) of the Covenant of the League of Nations and incompatible with the international engagements to which they have subscribed.

2. They should with this object proceed more especially: (a) to draw up regulations on timber-floating on the Niemen, in conformity with the provisions of Articles 332 to 337 of the Treaty of Versailles;and (b) to conclude administrative and technical agreements essential for re-establishing, on the railway through LKS, a continuous service which shall meet the requirements of international transit.

177The actual wording is as follows:

Article 23. Subject to and in accordance with the provisions of international conven-tions existing or hereafter to be agreed upon, the Members of the League . . . (e) will make provision to secure and maintain freedom of communications and of tran-sit and equitable treatment for the commerce of all Members of the League. . . .

in the Preamble to the Barcelona Convention on freedom of transit. If this interpretation is correct, it is impossible to deduce from the general rule in Article 23(e) of the Covenant an obligation for Lithuania to open the LKS for international traffic or for part of such traffic. Such an obligation could only result from a special agreement.

On the Applicability of the Memel Convention

Article 3 of Annex III of the Memel Convention provided that the Lithuanian Government ensure the freedom of transit by sea, water, or rail of traffic coming from or destined for the Memel territory or in transit through it, and conform in this respect with the rules laid down by the Barcelona Statute. The Statute pro-vides, in Article 2, that contracting States “shall facilitate free transit, by rail or waterway, on routes in use convenient for international transit.”

On the question whether the LKS was in use, the Court concluded that the very terms of the question clearly established that it was not; if it were, there would be no reason for discussing the possibility of reopening it. Moreover, it is impossi-ble to conclude that the railway of which it forms part is in use as a whole.

The Court further noted that this railway or railway sector was scarcely con-venient for international transit to or from Memel, since it afforded communica-tion with Memel only by means of a detour or by reloading goods on to barges at Kovno. Neither the Memel Convention nor the Barcelona Statute, therefore, could be adduced to prove that the Lithuanian Government had an obligation to restore the LKS to use and to open it for international traffic.

Under the Memel Convention, the Lithuanian Government undertook “to per-mit and to grant all facilities for the traffic on the river to or from or in the port of Memel, and not to apply, in respect of such traffic, on the ground of the pres-ent political relations between Lithuania and Poland, the stipulations of Articles 7 and 8 of the Barcelona Statute and Article 13 of the Barcelona Recommendations relative to Ports placed under an International Regime.” The Court noted that these were obviously circumstances calculated to promote freedom of transit via the port of Memel, but this clause in the Memel Convention applied solely to waterways.

Considering that the Memel Convention expressly forbids Lithuania to invoke Article 7 of the Barcelona Statute with reference to freedom of transit by water-way, the Court also noted that she might still avail herself of it with regard to railways of importance to the Memel territory. Accordingly, even if the LKS were in use and could serve Memel traffic, Lithuania would be entitled to invoke Article 7 as a ground for refusing to open this sector for traffic, in case of an emergency affecting her safety or vital interests. From this point of view also,

Lithuania did not have any obligation under the Memel Convention to restore and open for traffic the railway sector in question.

After examining the engagements invoked with regard to the reopening for traf-fic of the LKS, the Court concluded that the obligation alleged to be incumbent on Lithuania did not exist in the present circumstances. It was unanimously of the opinion that international engagements did not oblige Lithuania to take steps to open the LKS for all or certain categories of traffic.¹⁷⁸

From the position of the Court in this case, it may be concluded that transit is not necessarily considered a right inherent to the geographic position of an LLS, but is only a freedom to be enjoyed upon the benevolence of the transit State, one that needs to be ensured through specific bilateral arrangements.