The case of the S.S. Wimbledon is all about sovereignty. reservations or to contest any provision contained therein.
or to contest any provision contained therein. The provision most directly at issue in
The Facts
In 1923, the situation in international law (particularly as regards international treaty making) was
struggling to come to terms with the concept of state sovereignty. How could a state be
completely sovereign, yet remain bound to some higher “authority” in the form of a treaty
signed with another sovereign state?
The situation in this case regards the Treaty of Versailles (1919) and German sovereignty. The
British ship, the S.S. Wimbledon (owned by a French company) attempted to carry munitions
and supplies to Poland as they fought a war with Russia. Germany refused the boat access
through the Kiel Canal. The canal is in German territory. Germany was a neutral party in the
war and it did not wish to support either side. The application was made to the Permanent
Court of International Justice (PCIJ) to gain damages for lost time and money in the transport of
the goods.
The Applicants
How can one possibly argue against Article 380? The applicants submitted the request
before the PCIJ on the grounds of wrongfulness by German authorities when they refused
access to the ship. The Neutrality Orders issued by Germany, were defined as inconsistant with
Article 380 of the Treaty of Versailles. “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.” This article has an uncomprimising tone, The boat was
surely allowed to pass on this basis?
The respondents
Surely the sovereignty of Germany would allow her to protect her neutrality? The agent
for Germany argued that Germany was sovereign over her own lands. The Article should not
compromise her sovereignty or her sovereign right to neutrality. Boats could be refused access
on many grounds, neutrality should be one.
Jurisprudence
As we can see, sovereignty is at the heart of the case. The judgement in the “Wimbledon” case
was made in 1923 and has been used as precedent ever since.
Howcan we apply the principle of sovereignty to our modern world (with international
organisations etc)?
Is the case out of date?
Should a state only be bound by a treaty only while the treaty provides fruitful results (or
until circumstances fundamentally change)?
We wish to prompt questions in this summary.
The judgement – the court ruled in favour of the applicants. Treaty making is an attribute of
sovereignty, Germany (and all states), although sovereign are without doubt bound to the
treaties they sign.
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.1 The Treaty was punitive in nature and did not allow Germany to add any

Fact summary adapted from, Sheila Weinberger, The Wimbledon Paradox and the
World Court: Confronting Inevitable Conflicts Between Conventional and
Customary International Law, 10 EMORY INTL L. REV. 397 (1996).
the Wimbledon case was Article 380, which provided that
"[t]he 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.”http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0
[11]
During the summer of 1920, Germany's neighbor Poland was at war with Russia, and Germany
declared herself a neutral in the
conflict.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0 A French
company chartered an English vessel, the S.S. Wimbledon, which the Polish government hired
to carry war materiel to the Polish Naval Base at Danzig (Gdansk today). The most direct route
from France to Danzig involved traveling through the English Channel into the North Sea and
then through the Kiel Canal. The canal connects the North Sea to 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 orders issued 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 - fn0 The 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 that Article 380 of the Treaty of Versailles required Germany to do
so.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0 Germany, 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 ultimately re-routed the Wimbledon. The ship
reached its destination thirteen days behind schedule, her charterers having suffered a
substantial economic loss in the process.
Negotiations between the Conference of Ambassadors and the German government, following
the Wimbledon incident, failed to resolve the
problem.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0 The
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 the Treaty of Versailles provisions which dealt with the Kiel
Canal.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 permissible infringement upon German sovereignty. Germany contended that the Treaty
only applied insofar as it did not conflict 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 court issued two separate dissents
Following a purely textualist approach, the court interpreted Article 380 with respect for
its plain terms.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0
According to the majority, the article clearly obligated Germany to allow free passage to all
vessels, without distinction as to the nature of their cargo or their destination, with an exception
only for vessels belonging to nations at war with Germany. The court continued:
[T]he 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 states other than the riparian state is left entirely
to the discretion of that state, and that it has become an international waterway. 2
From the inclusion of an exception for ships of belligerents with whom Germany may be at war,
the court inferred that the drafters of the Treaty had "clearly contemplated the possibility of a
future war in which Germany is
1
Treaty of Peace at Versailles, June 28, 1919, Ger.-Allies, 225 Consol. T. S. 188.
2
Wimbledon, 1923 P.C.I.J. (ser. A) No. 1, at 22.
involved."http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0 Therefore,
the court concluded that if free access to the Kiel Canal could be modified in the event of
German neutrality, "the Treaty would not have failed to say so. It has not said so and this
omission was no doubt intentional."
In the process of construing the text, the court recognized that
"[w]hile 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 clearly been granted.”3
"[T]he Treaty has taken care not to assimilate [the Kiel Canal] to the other internal
navigable waterways of the German Empire."4
The majority summarily dismissed Germany's argument that Article 380 deprived
Germany of rights essential in the notion of sovereignty and thus required a restrictive
interpretation.http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0
"[T]he fact remains that Germany has to submit to an important limitation of the
exercise of the sovereignty rights which no one disputes that she possesses
over the Kiel
Canal."5http://www.law.emory.edu/EILR/volumes/spring96/weinberg_fn.html - fn0
"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 places a restriction upon the exercise of the sovereign rights of the State, in
the sense that it requires them to be exercised in a certain way. But the right to enter
into international engagements is an attribute of State sovereignty."6
The majority concluded the German neutrality orders could not preempt the provisions
of the Treaty of Versailles. Because Article 380 explicitly authorized passage of
the Wimbledon, allowing the ship to 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.

Edits to this document

©
Bartram S. Brown
2004

3
Id. at 25.
4
Id. at 23.
5
Id. at 24-25.
6
Id. at 25.
7
Id. at 30.