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The controversy which has arisen between France and Switzerland regarding the free zones of Haute Savoie and the Gex district may appear secondary in comparison with others which are attracting the world's attention. And yet for Switzerland, and especially for the city of Geneva, it has a very great importance.
Connected with Switzerland by a narrow strip of land which is hardly four kilometers wide, the Swiss city of Geneva, with 140,000 inhabitants, finds itself shut in by the French regions of Haute Savoie and the district of Gex, of which it is the natural center and the commercial metropolis. In order to live and prosper, Geneva must be in a position to entertain free and easy economic relations with those essentially agricultural regions. It needs them for its food supply, and it is in those regions that the trade of Geneva finds its nearest market.
From immemorial times a special régime facilitated the economic relations of the little Republic of Geneva and its neighbors. In 1603 the Treaty of St. Julien established the principle of free trade between Geneva and Savoy, the Genevans being exempt from tolls and custom duties, while in 1602 the same right of exemption had been recognized by France with respect to the district of Gex. This régime was of economic advantage to both parties. Then came the French Revolution. And in 1798 Geneva, after having been an independent republic for several centuries, was annexed to France. In 1813 it recovered its independence, and having expressed its determination to become Swiss was received as a member of the Swiss confederation (1815).
Taking into account the exceptional position of Geneva, the European Powers who in 1814 and 1815 were entrusted with the task of remaking the map of Europe sanctioned under a new form a situation which had existed since the beginning of the seventeenth century. The economic relations between Geneva and the bordering regions, the so-called "free zones," remained exempt from all customs barriers. The Treaty of Paris (November 20, 1815) reëstablished the free zone of Gex, the whole region being placed outside of the French customs; the Treaty of Turin (March 16, 1816) created a similar free zone on the left bank of the Rhone, the small "Zone Sarde."
In 1860 Savoy was united to France. In a plebescite held April 22, 1860, the population of Haute Savoie declared in favor of the annexation, provided the region they inhabited was constituted a free zone. Thus a new free zone came into being, variously known as the "Grande Zone de Savoie" or the "Zone of Annexation." Between those zones, be it noticed, there is the important difference that while Switzerland has definite and mutually covenanted rights in the Gex district and the "Zone Sarde," she has no such rights with respect to the "Grande Zone de Savoie." In the latter the customs immunities which the Swiss enjoyed had been granted only through the free will of the French Government. These immunities were withdrawn by France at the termination of a thirty-year agreement entered into in 1881.
On the other hand, the governments which have succeeded one another in France since 1815 have always recognized that the régime of the smaller zones, being established by international treaties, could not be modified by the action of only one of the parties concerned.
In the spring of 1919 the French Government, whose intention it was to obtain through the Treaty of Versailles the abolition of the whole system of free zones, entered into negotiations with Switzerland. The negotiations were conducted rapidly and resulted in a text which was to become Article 435 of the Treaty of Versailles. This Article declares that "the free zones of Upper Savoy and the Gex district are no longer consistent with present conditions, and that it is for France and Switzerland to come to an agreement together with a view to settling between themselves ("de régler entre elles d'un commun accord") the status of these territories under such conditions as shall be considered suitable by both countries."
Adhering to this disposition, the Swiss Government in its note of May 5, 1919, indicated clearly that it would not agree to the unconditional suppression of the system of free zones, and "that in its opinion the question was not the modification of the customs system of the zones as set up by the treaties, but only the regulation, in a manner more appropriate to the economic conditions of the present day, of the terms of the exchange of goods between the regions in question."
The negotiations with a view to establishing a new régime were prolonged and complicated. It would be idle to describe them here. France refused to consider further any solution which would not allow the French customs line to be advanced up to the political frontier--that is, to the very outskirts of Geneva. Switzerland, being anxious to assure the maintenance of the ancient and close relations of trade and friendship which have existed between the population of the zones and the adjacent Swiss territories, finally, consented to enter into conversations looking toward a convention which foresaw the transference of the French customs barrier to the political boundary of the two countries. At the same time she emphasized that the reservations made regarding this change in the customs line would be maintained as long as no definite agreement had been reached. The conversations resulted in the convention of August 7, 1921, which contained various provisions designed to facilitate an adjustment to new conditions and which thus appeared to compensate the Swiss for the transference of the French customs line up to the political boundary. The régime of friendly intercourse established by this convention extended not only to the "petites zones" (Zone Sarde and Zone Gex) which are based on international treaties, but also to the "Grande Zone de Savoie" to which Switzerland has no title.
Evidently, the convention could not come into effect before it had been approved by the two states, each according to its own constitutional processes. In Switzerland international treaties which are to last more than fifteen years have to be submitted to popular ratification if 30,000 citizens demand it. Such a referendum having been demanded in this case, the Swiss people on February 18, 1923, rejected by a large majority the proposed customs agreement, thus manifesting its will not to accept a settlement of the question of the zones which would advance the customs line to the political frontier.
Legally and internationally the vote of the Swiss people reëstablished the status quo, inasmuch as the régime established by the international treaties could only be modified through mutual agreement between the two countries. The Swiss Government was in a position to resume the negotiations only on a basis of propositions which did not aim to move the customs line up to the political boundary. It could not fall in with new French suggestions which were little else than an adaptation of the convention already rejected by the Swiss people.
While Switzerland was endeavoring to find a basis on which the negotiations might usefully be resumed, the French Government announced in its note of October 10, 1923, that it was about to put into force a bill which had been passed on February 16, 1923, and which directed that the customs statutes of the free zones be reformed and that the customs line be moved up to the political frontier. Switzerland protested against this decision, affirming that if it were enforced it would violate her covenanted rights and the principles of international law. She added that if no agreement were possible regarding the legal question raised by the interpretation of Art. 435, Par. 2 of the Versailles Treaty (Switzerland holding that according to the wording of the article the free zones are to continue and that only a revision of the statutes is to take place, while France holds that the article abolished the free zones and provided only for an agreement to be concluded between the parties regarding the new régime), the question would have to be decided by a judicial or arbitral organ.
But the French Government held to its course, and though it declared that if agreement were impossible it would not refuse to refer the solution of the question of the zones to arbitration, it nevertheless proceeded on November 10, 1923, without reaching any previous accord with Switzerland, to transfer the French customs posts to the political boundary. From this moment it was impossible for the Swiss Federal Council to pursue the negotiations further, France having set about solving the question in her own way and by her own authority. In renewing its protest the Swiss Government declared that the only amicable solution of the conflict was to have recourse to a judicial or arbitral procedure.
Two jurisconsults, one Swiss and the other French, have now prepared a procedure of arbitration which is acceptable to both parties. It was signed in Paris October 30, 1924. According to this agreement the controversy is referred to the Permanent Court of International Justice at the Hague. Three phases are laid down in the procedure. In the first place, the Court shall consider the question whether Article 435 of the Treaty of Versailles has directly abolished the stipulations of the Treaties of Paris and of Turin and of the other supplementary acts concerning the free zones, or whether its object was to have those conventional statutes abolished by a new régime to be agreed upon by the two States concerned. This constitutes the first phase of the proceedings. Having concluded its deliberations about this legal question, and before pronouncing a sentence, the Court shall then set a period within which the two parties may endeavor to settle between themselves the status of the territories in question. During this second phase the Court shall give a semi-official intimation of its opinion, so that the negotiators may act in full knowledge of the situation. If an agreement can be reached within the given time the whole matter is settled and the Court does not need to occupy itself with it further. But if an agreement cannot be reached and ratified, the Court shall--this is the third phase--pronounce its decision regarding the legal question outlined above, and at the same time regulate for a period (the duration of which it is itself competent to fix) the whole complex of questions involved in the execution of Article 435.
The question naturally arises whether this arbitration agreement would have to be submitted to a popular referendum, in accordance with the provisions of the Swiss constitution. Undoubtedly it would. In the same way, a settlement between the parties as provided for in the second phase of the proceedings would be subject to popular ratification. On the other hand, the regulation of the free zones by the International Court, in case a settlement between the parties cannot be reached, would have the character of a sentence and as such, of course, could not be submitted to a referendum.
There are some other provisions which we cannot discuss here in detail but which show even more clearly that the arbitration agreement as it now stands is a compromise, and that both parties have had to make concessions. These concessions were made on both sides in an earnest endeavor to find an amicable way out of a dispute which for five years had beclouded Franco-Swiss relations. The reference of the controversy to the Hague (for which the Swiss Government strove from the beginning) was made possible chiefly owing to the new spirit which has taken hold of public and official opinion in France since last spring, and of which M. Edouard Herriot is the principal exponent. It is also in this spirit that the two Governments have now come to an agreement for the conclusion of a treaty of obligatory arbitration which, from a general point of view, is of even more importance than the settlement of the particular dispute about the free zones. This action accords with the principles so eloquently professed by M. Herriot in his speech at the Assembly of the League of Nations on September 5, 1924, when he said that henceforth the principle of arbitration must more and more be made the cornerstone of international law.