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.
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
case was Article 380, which provided that
"[t]he Kiel Canal and its approaches shall be maintained free and open to the vessels of commerceand of war of all nations at peace with Germany on terms of entireequality.”
During the summer of 1920, Germany's neighbor Poland was at war with Russia, and Germany declared herself aneutral in the conflict.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0A French
company chartered an English vessel, the S.S. Wimbledon, which the Polish government hired to carry war materielto the Polish Naval Base at Danzig (Gdansk today). The most direct route from France to Danzig involved travelingthrough the English Channel into the North Sea and then through the Kiel Canal. The canal connects the North Seato 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 ordersissued in the summer of 1920 prohibited the transport through German territory of war materiel destined for either belligerent.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0The 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 thatArticle 380 of the Treaty of Versailles required Germany to doso.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0Germany, 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 ultimatelyre-routed the Wimbledon. The ship reached its destination thirteen days behind schedule, her charterers havingsuffered a substantial economic loss in the process. Negotiations between the Conference of Ambassadors and the German government, following the Wimbledonincident, failed to resolve the problem.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0The 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 theTreaty of Versailles provisions which dealt with the KielCanal.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0 France claimed that Germany's obligations under the Treaty were supreme and that Article 380 was a permissibleinfringement upon German sovereignty. Germany contended that the Treaty only applied insofar as it did notconflict 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 courtissued two separate dissents
Following a purely textualist approach, the court interpreted Article 380 with respect for its plainterms
[T]he terms of article 380 are categorical and give rise to no doubt. It follows that the canal hasceased to be an internal and national navigable waterway, the use of which by the vessels of statesother than the riparian state is left entirely to the discretion of that state, and that it has become aninternational waterway.
Fact summary adapted from, Sheila Weinberger,
The Wimbledon Paradox and the World Court: Confronting Inevitable Conflicts Between Conventional and Customary International Law
. 397 (1996).
Treaty of Peace at Versailles, June 28, 1919, Ger.-Allies, 225 Consol. T. S. 188.
Wimbledon, 1923 P.C.I.J. (ser. A) No. 1, at 22.