Briefing Book Paper
Special Regime With Respect to Entrances to the Baltic
The Baltic Sea possesses three sea entrances, namely, the White Sea route, the Kiel Canal and the Skagerrak–Kattegat route.
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b. kiel canal
The Kiel Canal, which was completed in 1895, was constructed with two objectives in mind; (1) to permit the German fleet to move rapidly from the North Sea to the Baltic or vice versa to meet threats arising to the security of the Reich, and (2) to provide a shorter and safer route than via the Skagerrak for commercial traffic between the Baltic and North Seas.
Prior to 1920, the Canal was open to navigation by foreign vessels without treaty arrangements or guarantees. Foreign vessels using the Canal were subject to such navigation customs and police regulations as the German Government saw fit to enforce. By ordinance, foreign warships were admitted toll free, but all merchant vessels were required to pay tolls designed to cover the costs of administration, upkeep, improvements and amortization of the original investment. Regulations and tolls were changeable at will by the German Government, without advance notice. No assurance was given to foreign powers that the Canal would be open in time of war as in time of peace. No promise was requested of others that belligerents refrain from acts of war against or within the Canal. No “neutralization” rules were promulgated. Hence, the Canal was neither internationalized nor neutralized. It was administered by the German Government and protected by the German Government [sic] and protected by the German Army and Navy without restriction as to militarization or fortification.
The Versailles Treaty introduced a fundamental change in the status of the Canal.1 Although administration was left in German hands, the freedom of German control was limited in various ways.
Germany was required to maintain the Canal and its approaches “free and open to the vessels of commerce and of war of all nations at peace with Germany on terms of entire equality”. She was obligated [Page 324] to accord equality of treatment to the nationals, property and vessels of all nations. Germany was constrained to place no impediment on the movement of persons and vessels other than those arising out of police, customs, sanitary and immigration regulations. The Treaty stipulated that all regulations must be “reasonable and uniform and must not unnecessarily impede traffic”. Charges over and above those intended to cover “in an equitable manner” the cost of maintaining the Canal in a navigable condition or of improving it or “to meet expenses incurred in the interests of navigation”, were prohibited. Germany was bound to maintain the Canal in good condition of navigation and to remove all dangers to navigation. At the same time, she was required to refrain from any “works” which might impede navigation.
In addition to these provisions, the Versailles Treaty specified that all fortifications should be abolished in an area extending north from the 54th parallel of latitude to the German-Danish border and east from the 9th degree of East Longitude to the Baltic.2 Although it had originally been proposed to prohibit all fortifications within 30 miles of the Elbe River and of the Kiel Canal, the lines were drawn in such a manner that the western approach to the Canal and the port of Brunsbüttelkoog were actually left out of the demilitarized zone, thereby leaving Germany free to fortify this approach and the Brunsbüttel locks. Although the Kiel Canal was thus “internationalized”, it was not “neutralized”. No rules of “neutrality” comparable to those found in the Convention of Constantinople3 for the Suez Canal and the Hay–Pauncefote Treaty4 for the Panama Canal were incorporated in the Versailles Treaty for the Kiel Canal. Germany was thus left full right to close the Canal to her enemies and to defend it against attack.
During the Russo-Polish War in 1921, the German Government, which was neutral, forbade the passage of two foreign vessels loaded with contraband of war destined for Poland on the grounds that as the Treaty left German sovereignty intact regarding the operation of the Canal, the German Government was within her rights in applying such neutrality regulations as were deemed necessary to protect the Reich. This decision was protested at the Conference of Ambassadors and was referred to the Permanent Court of International Justice under the name of the Wimbledon case. The court ruled [Page 325] that the German Government did not possess authority to refuse passage to vessels of commerce at peace with Germany irrespective of the nature of their cargoes.5
On November 14, 1936, the German Government denounced Part XII of the Treaty of Versailles.6 As a result, the Kiel Canal in so far as Germany was concerned again became what it had been prior to 1919, namely, a national waterway completely subject to the jurisdiction of the Reich.
Although the Kiel Canal has undoubtedly been of greater value to Germany than to any other state, the number of foreign vessels which have made use of this route prove that the Canal has international usefulness as well and that other nations have a very real interest in freedom of transit through it.
There are three possible solutions to the question of the future status of the Kiel Canal (the restoration of full German sovereignty over the Canal on the same basis as that existing prior to 1920 and subsequent to 1936, is obviously out of the question).
The first solution would involve an internationalization but not neutralization of the Canal thereby reverting to the status existent from 1920 to 1936. Should this be done, it would be advisable to modify the provisions contained in the Versailles Treaty so as to restrict still further the construction of fortifications.
The second possible solution would involve the extension southward of the Danish frontier to include the Kiel Canal. This could be partially justified on historic grounds, would deprive Germany of an important strategic waterway and would give the northern European States a continuing interest in preventing the military resurgence of Germany. If the solution were supplemented by international agreements with Denmark regarding the use and protection of the Kiel Canal, it would constitute an important link in a chain of possible provisions aimed at depriving Germany of the opportunity for future military aggression. This solution, however, might be opposed by Denmark as constituting an invitation to Germany to repeat the aggression of 1864, and as being a threat to the internal social and political stability of the Danish state.
The third and preferred solution relates to the establishment of an international zone extending for say ten miles to the north and south of the Canal. The Canal would be open to navigation by vessels of all maritime states upon the payment of tolls sufficient to cover [Page 326] administrative costs and upkeep. It would be administered by an international body appointed by and subject to the Security Council of the United Nations. This solution would have the effect of guaranteeing the status of the Kiel Canal as an international waterway.
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- See articles 380–386 of the Treaty of Versailles, signed June 28, 1919, Foreign Relations The Paris Peace Conference, 1919, vol. xiii, pp. 689–691.↩
- See article 195 of the Treaty of Versailles, Foreign Relations, The Paris Peace Conference, 1919, vol. xiii, p. 350.↩
- Signed October 29, 1888. Text in The Suez Canal Problem, July 26–September 22, 1956 (Washington, Government Printing Office, 1956; Department of State publication No. 6392), p. 16. Text of the substantive provisions also in John Bassett Moore, A Digest of International Law (Washington, Government Printing Office, 1906), vol. iii, p. 264.↩
- Signed at Washington, November 18, 1901 (Treaty Series No. 401; 32 Stat. (2) 1903).↩
- For further details of the case of The Wimbledon, see Green H. Hackworth, Digest of International Law (Washington, Government Printing Office, 1940–1944), vol. i, pp. 52–53; vol. ii, pp. 15, 770, 780–781, 823–824, 827–829; vol. v, pp. 167, 226–228; vol. vii, pp. 436–437.↩
- See Foreign Relations, The Paris Peace Conference, 1919, vol. xiii, pp. 651–652; Foreign Relations, 1936, vol. i, pp. 372–374, 379.↩