NATIONAL LAW UNIVERSITY ODISHA, CUTTACK.

Case Commentary in
PUBLIC INTERNATIONAL LAW

Topic – S.S. “Wimbledon” (Permanent Court of International Justice)

SUBMITTED TO:

Dr. ANANYA CHAKRABORTY

Ms. PALLABI SENGUPTA

SUBMITTED BY:

SAURAV SATTAWAN (2019/B.A.LL.B./096)

ALAN JOHN ABRAHAM (2019/B.A.LL.B./016)

1|Page
 TABLE OF CONTENTS
Introduction..............................................................................................................................3

Permanent court of International Justice..........................................................................3

CASE CONTENTS..................................................................................................................4

Facts.......................................................................................................................................4

Issue.......................................................................................................................................5

Majority opinion...................................................................................................................5

Minority Opinion.................................................................................................................6

The Dissenting Opinion of Judge ad hoc Schaicking........................................................8

Held:......................................................................................................................................9

CASE ANALYSIS..................................................................................................................10

CONCLUSION.......................................................................................................................12

2|Page
 Introduction
The decision of the International Court of Justice in the case of the S.S. Wimbledon, Britain
et al. v. Germany (1923) PCIJ Series A01, is dated August 17, 1923. It is mainly a question
of treaty obligations such as sovereignty, national law, and case law from the international
channel.

The Treaty of Versailles was concluded by Germany and its allies at the end of World War I.
This arrangement is punitive, and Germany was not allowed to challenge or contest its terms.
Article 380, which stipulated this, was addressed explicitly in the case of Wimbledon.

“The Kiel Canal and its approaches shall be maintained free and open to the vessels of
commerce and war of all nations at peace with Germany on terms of entire equality.”

Germany declared neutrality in the summer of 1920, when neighboring Poland was at war
with Russia. The Polish government is responsible for the French company British ship S.S.
Wimbledon carried military equipment to a naval base in Danzig (now Gdansk), Poland.
Crossing the English Channel through the North Sea and through the Kiel Canal was the most
direct route from France to Dan Kiro. The canal connects the North Sea with the Baltic Sea
and is located north of Hamburg, Germany. It was developed by German labor and paid for
by the German capital.
Permanent Court of International Justice

Between 1922 and 1946, the permanent International Court of Justice, also known as the
World Court, was in operation. It was the League of Nations' International Court of Justice.
Despite the fact that it was founded in 1920 (though the concept of an international court
dates back hundreds of years), the courts were well received by states and academia, with
several cases from the first decade being cited.

The court heard 29 cases and published 27 advisory opinions between 1922 and 1940. In the
1930s, as international tensions grew, courts became less common. Courts and federations
were abolished by the International Federation on April 18, 1946, and were replaced by the
International Court of Justice and the United Nations.

Courts' compulsory jurisdiction comes from three sources:

Optional articles, general international agreements, and special bilateral international treaties
are all part of the National Federation. The state may also submit cases in person, but you do
not need to submit materials if you do not fall into one of these three categories. The court

3|Page
may issue a decision or an advisory opinion. The decision is unique in that it is binding rather
than advisory. The League's member states, on the other hand, listened to their advisors and
undermined the courts' and Federation's moral and legal authority.

CASE CONTENTS
Facts
The governments of Britain, France, Italy, and Japan filed an application against the German
government on January 16, 1923, to deny the rights of steam carriers to the registry (PCIJ),
but the PMPP investigated the case and made a ruling on August 17, 1923.

On March 21, 1921, the German government refused the British steamship Wimbledon
(approved by the French company Les AffreteursReunis) to cross the Kiel Canal, but the ship
collected 4,200 tons of ammunition in Thessaloniki, Greece, and delivered it to the Polish. I
did. Although there is a naval base in Danzig, entry was denied due to German neutrality
when the ship approached the entrance to the Kiel Canal. It coincides with the Russian-Polish
war. The French ambassador to Berlin asked the Germans to pass the SS Wimbledon, and a
few days later the German government replied that the ship could not allow it to pass because
of the military cargo it was carrying. After that, the French company ordered a ship to
Danzihiro through the Danish Strait, as a result of which the cargo arrived late on the 13th.
The additional time required to steer the alternative route was 11 days and 2 days for German
detention. Since diplomatic relations between the provinces did not end with a solution, the
matter was referred to the International Federation and thus to the International Judiciary.

In this case, the complainant alleges that the governments of England, France, Japan, and
Italy have violated Articles 380 to 386 of the Treaty of Versailles, while others in a particular
state that the Kiel Canal is in a'free state'. It is open to merchant ships of Germany and all
peaceful countries under conditions of absolute equality. "The complainant insists that the
cargo on board the ship was the country that chartered the ship, but it is not at war with
Germany, so travel should be allowed.

The respondent to this case is the German government, claiming that it is not obligated to
approve the passage of the SS Wimbledon because it issued a neutral order in the Russian-
Polish war despite the provisions of the Treaty of Versailles. ,. If the weapon had been sent to
Poland, it would have been broken1

1
“The SS 'Wimbledon', United Kingdom and Ors v Germany, Judgment, (1923) PCIJ Series A No 1,
ICGJ 235(PCIJ 1923), 17th August 1923, League of Nations (Historical) [LoN]; Permanent Court of

4|Page
Issue
As long as the treaty bears fruit (or until the situation changes dramatically), the state must be
bound by the agreement.
Majority opinion
Nine senators joined the Declaration of Majority on August 17, 1923. The court issued two
differences of opinion.
With a purely textual approach, the court interpreted Section 380 in the light of simpler
terms. In the opinion of the majority, this article forced Germany to allow free travel on all
ships, without discrimination on cargo or destination, except for ships belonging to states that
war against Germany. The court went on to say:
The conditions of Article 380 are clear and undoubtedly. Canals became navigable inland and
national waterways because ships from other provinces except the coast were completely
abandoned in the state and became international waterways.2

With the introduction of exceptions to long-distance vessels that Germany could compete
with, the court decided that the founder of the treatyhad “clearly contemplated the possibility
of a future war in whichGermany is involved.”Thus, the court concluded that if Germany
remains neutral, the free access of the Germans to the Kiel Canal could be changed, “the
Treaty would not have failed to say so. It has not said soand this omission was no doubt
intentional.”

Interpreting the text, the courtrecognized that

"while 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 been granted”3
"The Treaty has taken care not to assimilate [the Kiel Canal] to the other internal navigable
waterways of the German Empire."4

International Justice (Historical) [PCIJ]” (Oxford Public International

Law)<https://opil.ouplaw.com/view/10.1093/law:icgj/235pcij23.case.1/law-icgj-235pcij23> accessed
May 2, 2021

2
Wimbledon, 1923 P.C.I.J. (ser. A) No. 1, at 22
3
Id. at 25.
4
Id. at 23.
5|Page
In general, the majority rejected the German argument that Article 380 deprives the German
concept of sovereignty and therefore requires a restrictive interpretation.
"The fact remains that Germany has to submit to an important limitation of the exerciseof 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 restricts the exercise of the
sovereign rights of the State, in the sense that itrequires them to be exercised in a certain way.
Butthe right to enter into internationalengagements is an attribute of State sovereignty."6
The majority concluded that the German neutrality order could not violate the provisions of
the Treaty of Versailles. Since section 380 explicitly allowed Wimbledon cruises, so that the
ship could 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

Minority Opinion
Judges Anzilotti and Judge Huber asked different questions than many. They asked whether
"the clauses of the Treaty of Versailles relating to the Kiel Canal also apply in the event of
Germany's neutrality or do they only contemplate normal circumstances, that is to say, a state
of peace, without affecting the rights and duties of neutrality?" These judges had to keep in
mind the complex nature of intergovernmental relations and the peculiarities of the state
as"independent political entities."8

When a treaty's text appears to be plain on its face, “Its literal sense must be recognized in its
current form.” The court, however, was not free to assume that the drafters wanted “to
convey an idea that leads to conflicting or unlikely consequences or that, in the
circumstances, must be regarded as going beyond the parties purpose,” as Judges Anzilotti
and Huber insisted.The judge said that the textual interpretation of the contract would no
longer exist at this time.
5
Id. at 24-25.
6
Id at 25.
7
Id at 30.

8
Spiermann O, “Judge Max Huber at the Permanent Court of International Justice”
(2007) 18The European Journal of International Law
6|Page
Even if there was no express provision allowing it, Judges Anzilotti and Huber found that if
Germany believes that it is necessary to take exceptional measures affecting the application
of the Treaty of Versailles, it may do so to remain neutral or self-defense under international
law.

One of the most fundamental rights of sovereignty, according to these critics, is a state's right
to take whatever measures it deems appropriate for defense or territorial integrity. As a result,
a treaty cannot be read in a way that restricts this right.

This disagreement concluded that instead of rejecting the interpretation that the word
"Germany and a peaceful nation" was a limited exemption from free passage through the Kiel
Canal, it "made world conditions a condition to which this provision applies". "As a result, it
was appropriate to look at Article 380 with respect to other provisions of the Kiel Canal.
Judges Anzilotti and Judge Huber reviewed the provisions of Article 381, paragraphs 2 and 2
of the Treaty of Versailles, and that Article 380 was "the dominant article or It concludes that
it does not limit Germany's freedom of action that is acceptable as a neutral state. The final
part of the report is for Germany's other inland waterways.

When analyzing the consensus as a whole, it seems that Judges Anzilotti and Judge Huber
took multiple interpretations of their logical conclusions. Since the liberal movement could
be overcome, we had to face a choice in which Germany would not have the right to take any
special action on this capacity or that the Treasury had limited freedom to act in this regard.
The Kiel Canal referred to in Article 381(2) does not apply to any action Germany could have
taken to maintain its neutrality.

7|Page
The majority of decisions led to absurd conclusions, according to critics Anzilotti and Huber.
"The intent was to prohibit Germany from taking the necessary steps to protect the higher
interests at risk in war or neutral events." His right to action necessary "to protect relatively
small interests" was officially recognized in Article 381.
Under international law, neutral states have the right to prohibit or allow "trading and
transport of military equipment on their territory". Judges Anzilotti and Judge Huber
concluded that the terms of Article 380 existed only in peacetime, and that the Treaty of
Versailles was not intended to deprive Germany of the opportunity to take the necessary steps
to protect its underlying interests if Germany condemns war or neutrality.
Depending on the difference of opinion, the opinion of the majority can lead to a second silly
conclusion. "Even during the war, the German war enemies could not adopt an unlimited
freedom of opinion without an obligation to respect this freedom."

They pointed out that the Suez and Panama Canal Treaty included such a requirement in
provisions to neutralize canals to protect waterways from hostilities. "The absence of similar
provisions in the Treaty of Versailles section that applies the Kiel Canal to judges Anzilotti
and Huber showed that the authors of the treaty had no intention to establish a regime similar
to that defined in the Suez and Panama Canal Conventions.

8|Page
The Dissenting Opinion of Judge ad hoc Schaicking
One executive judge ruled that the provisions of Article 380 are German and should be
interpreted strictly "to protect the essential interests of the state's services". These benefits
deserved protection, and the “benefit country” had to agree on temporary restrictions on
rights. In this regard, the internal political situation in Germany at the time played an
important role.
Despite many claims that the Panama and Suez Canal Treaties codified customary laws on
channel neutrality, Shiking did not believe that "the existence of too many opinions was
adequately proven."
Shiking referred to the Suez and Panama Canals because, unlike the Kiel Canal, the regimes
that manage the Panama and Suez Canals contain certain provisions to neutralize them. The
Kiel Canal was under German control and had no reserves of less than 380 trillion. It was not
possible to terminate such provisions at 380 because steps were taken to remain neutral.
The fact that the right of free passage through the Kiel Canal has been granted indefinitely
does not preclude its control or cancellation. The "major war terms" used to achieve the
neutralization of the Suez Canal in the era of peace and repeated in the Panama Canal Treaty
of Article 380 are exempted. As a result, the Treaty of Versailles is Germany's rejection of
Wimbledon. ... Instead, Germany used only the "weaknesses of the slave system".
Held:
The court ruled in favor of the applicants. The conclusion of the treaty is an attribute of the
sovereignty of Germany (and all countries), even if there are no sovereigns bound by the
treaty they signed. The court interpreted section 380 in simple terms. In the opinion of the
majority, this article forced Germany to allow free travel on all ships, without discrimination
on cargo or destination, except for ships belonging to states that war against Germany.The
court continued:
“The 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 statesother than the riparian state is left entirely to the discretion of that state, and that it
has become an international waterway.”
With the introduction of exceptions to long-distance vessels that Germany could compete
with, the court decided that the founder of the treaty had "clearly contemplated the possibility
of a future war in which Germany is involved."Thus, the court concluded that if Germany
remains neutral, the free access of the Germans to the Kiel Canal could be changed, "the

9|Page
Treaty would not have failed to say so. It has not said so and this omission was no doubt
intentional."
The courts would not accept a contract in which the state agrees to execute such actions or
denies sovereignty by refusing to do so. Any convention that unmistakably imposes such a
duty restricts the state's exercise of sovereignty by requiring it to be exercised in a specific
manner. State supremacy, on the other hand, includes the right to fulfil international
obligations.

The majority came to the conclusion that the German neutrality orders could not circumvent
the terms of the Treaty of Versailles. Since Article 380 specifically permitted the Wimbledon
to pass, it "cannot be imputed to Germany as a failure to fulfil its duties as a neutral." As a
result, if the "Wimbledon" had used Article 380's permission to pass through the Kiel Canal,
Germany's neutrality would have remained unblemished.

The German S.S. was found guilty by the judge. Wimbledon on behalf of the freight he was
transporting was found to have no right to deny entry. Furthermore, the court stated that,
based on the state in which the Kiel Canal is situated, it no longer qualifies as an inland
waterway and should instead be classified as an international waterway. The Treaty of
Versailles was signed in 1919. As a result, the Kiel Canal is intended to improve access to the
Baltic Sea, and it should be available to all ships, regardless of state, as long as the state
maintains peace with Germany.

Since the Treaty of Versailles expressly specified that the canal could refuse entry to the state
if Germany was neutral in the other two wars, it was not a mistake to not stipulate the canal's
closure if Germany was neutral in the other two wars. a note The Treaty of Versailles also
sought to turn the canal into an international waterway in the Baltic Sea. The court also used
the precedents of Suez and the Panama Canal to show that the German charges were false.
Finally, the court dismissed Germany's argument that the neutral order superseded the Treaty
of Versailles' provisions.

CASEANALYSIS
According to the majority, the effect of Article 380 was the design of the Kiel Canal, not an
inland waterway under the sovereign control of coastal powers, but an international waterway
providing public access to the Baltic Sea.

10 | P a g e
The only condition that has affected this situation is that the country you want to travel to is
peaceful with Germany. They said: "At the time of peace with Germany, they belonged to the
state and were entitled to free will, and the requirements of neutrality or sovereignty could
not neglect international obligations under the relevant provisions of the treaty. The majority
Ruled that Germany had to bear all the costs of the delay. Disagreeing judges AnzilLotti and
Hoover first thought that the idea would allow the state to withdraw its treaty obligations.
Inconsistency is that the license for this takes precedence in Article 380 and Germany is a
neutral country As an advocate.

In the case of Wimbledon S.S., the discrepancy between Anzilotti and Huber. Developing the
doctrine of necessity in accordance with customary international law in two important ways.
First, the state announced that it could surely liberate it from its treaty obligations. I do not
agree with the case of S.S. Wimbledon introduced the idea that protecting the fundamental
interests of the state is the main reason for calling for the abolition of international
obligations. In this case, Germany's interest in maintaining security and integrity was
considered large enough to be protected. Until the end of the 20th century, national security
was considered the only public good of sufficient importance to justify the protection of
necessities. However, the doctrine of necessity took much less time to shift from opposition
to the majority, at least in terms of existential interests and expressed contractual obligations.

In general, countries do not want to engage in direct war with each other. This is because this
usually has serious diplomatic and political consequences. Instead, they often prefer hostile,
non-war measures such as revenge, containment, and interference. This lack of determination
in the right to war often requires rhetoric of self-defense, necessity, and self-preservation.
Historically, self-preservation has been called a basic right of existence that takes precedence
over other rights and has traditionally been a justification for priority between two subjective
rights. The right to self-preservation was considered a subjective right by the calling state and
made it possible to use almost unlimited force in situations where national security was
threatened. However, this doctrine has since been rejected by most authors. Traditionally it
has been inextricably linked to concepts related to the doctrine of self-preservation.

Another example showing the initial fleet deployment of concepts of self-preservation, self-
defense, and necessity in the case of Caroline in 1837, when Caroline's ship was attacked in
the United States and destroyed by British troops. Owned by American citizens, the ship
carried Canadian rebel recruits and military equipment. In response to the US protests,

11 | P a g e
Britain declared its need, citing the "need for self-defense and self-preservation." There are
few examples of government practice where the need has been successfully applied, but one
thing that seems to incorporate this situation is that the law has received significant
international political support.9

Over the years, the doctrine of necessity has gone beyond urban areas and is now playing an
integrated role in national legislation. Whether the defense of need is an explicit exception to
the law of war or the subsequent justification for a violation of international obligations, the
important public interest lies at the heart of the appeal and application of the doctrine. By the
end of the 20th century, the "significant interests" of the state were limited to those necessary
to maintain the state's existence in the face of foreign or domestic violence of a military
nature. This article explores the expansion of basic public interest concepts in the second half
of the 20th century, beginning to include environmental and economic interests. Surprisingly,
this nominal expansion did not expand the applicability of the doctrine of necessity as a
whole.

CONCLUSION
In many respects, no disputes arose between the understood agreement and the stated
common law. Eventually, the court ruled that Germany had no normal obligation to halt
exploration in Wimbledon to remain neutral, but it had a "specific treaty obligation" to allow
it. As a result, Germany can fulfill its obligations under Article 380 to ensure the free passage
of the canals while fulfilling its obligations under customary international law.

The legal question, both theoretical and practical, was whether the provisions of the Treaty of
Versailles on the internationalization of the Kiel Canal made it legally impossible for
Germany to ban travel given Germany's general neutrality obligations or important neutral
interests. Such overseas delivery .

World Court case law on the conflict between treaties and practices prevents the state from
predicting the consequences of many actions. International lawyers and international courts
must recognize the problem and work to address it for intellectual integrity and legal action.
If the state knows what laws apply their actions before the state takes action, the international
court can avoid many cases.

9
Hyde CC, “The Interpretation of Treaties by The Permanent Court of International Justice” (1930) 24 American
Journal of International Law 1

12 | P a g e