28 November 1958

 

General List No. 33

 
     

international Court of Justice

     
 

Guardianship of an Infant

 
     

Netherlands

 

v. 

Sweden

     
     
 

Judgment

 
     
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BEFORE: President: Klaestad;
Vice-President: Zafrulla Khan;
Judges: Basdevant, Hackworth, Winiarski, Badawi, Armand-Ugon, Kojevnikov, Sir Hersch Lauterpacht, Moreno Quintana, Cordova, Wellington Koo, Spiropoulos, Sir Percy Spender;
Judges ad hoc: Sterzel, Offerhaus
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/1958.11.28_guardianship.htm
   
Citation: Guardianship of an Infant (Neth. V. Swed.), 1958 I.C.J. 55 (Nov. 28)
   
Represented By: Netherlands: M. W. Riphagen, Legal Adviser to the Ministry for Foreign Affairs, as Agent;
assisted by
M. I. Kisch, Professor of the Faculty of Law of the University of Amsterdam, as Counsel;
M. J. G. Sauveplanne, as Expert;

Sweden: M. Sven Dahlman, Ambassador of Sweden at The Hague, as Agent;
assisted by
M. Sture Petren, Ambassador, Director of Legal Affairs at the Royal Ministry for Foreign Affairs;
M. Henri Rolin, Professor of International Law at the Free University of Brussels, as Counsel.

 
     
 
 
     
 

[p.55]

The Court,

composed as above,

delivers the following Judgment:
In a letter of July 9th, 1957, received in the Registry on July 10th, 1957, the Minister for Foreign Affairs of the Netherlands transmitted an Application dated July 9th, 1957, instituting proceedings in a dispute with the Government of the Kingdom of Sweden concerning the application of the Convention of 1902 governing the guardianship of infants. At the same time, the Minister for Foreign Affairs of the Netherlands notified the Registry of the appointment of M. W. Riphagen as Agent for the Netherlands Government in the case. [p 57]

The Application thus filed in the Registry on July 10th, 1957, expressly refers to Article 36, paragraph 2, of the Statute of the Court and to the acceptance of the compulsory jurisdiction of the International Court of Justice by the Kingdom of Sweden on April 6th, 1957, and by the Kingdom of the Netherlands on August 1st, 1956. It refers to a measure taken and maintained by the Swedish authorities in respect of the infant Marie Elisabeth Boll, a Dutch national, born at Norrkoping on May 7th, 1945, of the marriage of Johannes Boll, of Dutch nationality, and Gerd Elisabeth Lindwall, who died on December 5th, 1953, and who was of Swedish nationality before her marriage. The Application alleges that the Swedish authorities acted contrary to the provisions of the Convention of 1902 governing the guardianship of infants, which provisions are based on the principle that the national law of the infant is applicable and the national authorities are competent.

Pursuant to Article 40, paragraph 2, of the Statute, the Application was communicated to the Government of the Kingdom of Sweden and, pursuant to paragraph 3 of the same Article, other Members of the United Nations as well as non-member States entitled to appear before the Court were notified of it.

Since the Application referred to the provisions of the Convention governing the guardianship of infants, signed at The Hague on June 12th, 1902, the States other than those concerned in the case which are parties to the Convention were notified in accordance with Article 63, paragraph 1, of the Statute.

Time-limits for the filing of the Memorial and Counter-Memorial were fixed by an Order of the President of the International Court of Justice of August 19th, 1957, and time-limits for the filing of the Reply and the Rejoinder were fixed by an Order of the Court of April 17th, 1958.

The pleadings having been filed within the time-limits fixed by these Orders, the case was ready for hearing on the date of the expiry of the last time-limit, namely, August 28th, 1958.

M. Fredrik Julius Christian Sterzel, former Judge of the Supreme Court of Sweden, and M. Johannes Offerhaus, Professor of Private International Law at the University of Amsterdam, were respectively chosen, in accordance with Article 31, paragraph 3, of the Statute, to sit as Judges ad hoc in the present case by the Government of the Kingdom of Sweden and the Government of the Kingdom of the Netherlands.

At the opening of the hearing on September 25th, 1958, the Court heard the solemn declarations made, in accordance with Article 20 of the Statute and Article 5 of the Rules of Court, by MM. Sterzel and Offerhaus, Judges ad hoc.
In the course of hearings held on September 25th, 26th, 29th and 30th, and October 1st, 3rd and 4th, 1958, the Court heard the oral arguments and replies of M. Riphagen and Professor Kisch, on behalf of the Government of the Netherlands, and of M. Dahlman, [p 58] Professor Rolin and M. Petren, on behalf of the Government of Sweden.

During the written and oral proceedings the following Submissions were presented by the Parties:

On behalf of the Government of the Netherlands, in the Application:

"May it please the Court:

To take note that for the purpose of all notifications and communications relating to the present case, the Agent for the Government of the Kingdom of the Netherlands selects as his address for service the Ministry for Foreign Affairs at The Hague;

To notify the present Application, in accordance with Article 40, paragraph 2, of the Statute of the Court to the Government of the Kingdom of Sweden;

To adjudge and declare, whether the Government of the Kingdom of Sweden appears or not, and after such time-limit as, subject to proposals made by agreement between the Parties, it will be for the Court to fix:

That the measure taken and maintained by the Swedish authorities in respect of Marie Elisabeth Boll, namely, the 'skyddsupp-fostran' instituted and maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th, 1954, June 3rd, 1955, and February 21st, 1956, is not in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the 1902 Convention governing the guardianship of infants;

That Sweden is under an obligation to end this measure."

On behalf of the Government of the Netherlands, in the Memorial:

"The Netherlands Government submit that the Court should adjudge and declare:

That the measure taken and maintained by the Swedish authorities in respect of Marie Elisabeth Boll, namely, the 'skyddsupp-fostran' instituted and maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th, 1954, June 3rd, r955, and February 21st, 1956, is not in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the 1902 Convention governing the guardianship of infants;

That Sweden is under an obligation to end this measure."

On behalf of the Government of Sweden, in the Counter-Memorial:

"The Swedish Government respectfully prays the Court to declare that the claim of the Government of the Netherlands is unfounded."

On behalf of the Government of the Netherlands, in the Reply:

"The protective education in respect of Marie Elisabeth Boll is not in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the 1902 Convention governing the guardianship of infants, on the following grounds:

I. that the protective education affects Netherlands guardianship, fully covered by the Convention; [p 59]

II. that ordre public cannot prevail against the Convention, because

A. ordre public generally cannot overrule conventions, and

B. even if ordre public could overrule conventions, the conditions for ordre public have not been complied with, since, in the present case,

1. there is no substantive connection between the situation and Sweden;

2. no facts have been stated that warrant and bear out a departure from the normal application of conflict rules.

Therefore, Sweden is under the obligation to discontinue the protective education.”

On behalf of the Government of Sweden, in the Rejoinder:

"That it may please the Court

To declare that the measure of protective upbringing decreed in respect of Marie Elisabeth Boll has in no way contravened the obligations binding upon Sweden vis-à-vis the Netherlands under the 1902 Convention governing the guardianship of infants

1. because the rights to custody and control, the exercise of which has been temporarily impeded as a result of the said measure, are rights outside the scope of guardianship as understood in the said Convention:

(a) in the case of the right of M. Johannes Boll to custody and control, because that right was his independently of the said guardianship,

(b) in the case of the right of Mme Postema to custody and control, the right having devolved upon her in consequence of a judicial decision in the Netherlands which was con-cerned with the right of M. Johannes Boll to custody and control and which was accordingly not covered by the Convention;
2. because the protective measure decreed in respect of a foreign child on Swedish territory was decreed by virtue of a Swedish rule of public law, the application of which is outside the scope of the rules of conflict of laws contained in the 1902 Convention.

In the premises, to hold that the Submissions of June 18th, 1958, of the Agent for the Government of the Netherlands are inadmissible and ill-founded.

To hold inadmissible the Submission of the Government of the Netherlands seeking a declaration that the Swedish Government has not established the existence of circumstances which would justify the measure complained of.

In the alternative on the last point

If the Court should deem it necessary to take cognizance of the reasons for the Swedish administrative decisions concerned with the measure in dispute, to place on record that the Agent for the Swedish Government should be prepared to produce the administra-[p60]tive file in this case in such manner and subject to such conditions as the Court may prescribe."

On behalf of the Government of Sweden, at the hearing of October 1st, 1958:

"May it please the Court

As to admissibility:

to hold
(1) that the rights pertaining to custody and control, to upbringing and all other rights exercised by Johannes Boll over the person of his daughter until August 5th, 1954, derived from his puissance paternelle and not from guardianship within the meaning of the 1902 Convention; that this was more particularly so in the present case inasmuch as on his application his guardianship was originally instituted in accordance with Swedish law which does not regard as falling within this institution rights relating to the person of the child; that the decision of May 5th, 1954, could accordingly not infringe any rights protected by the Convention;

(2) that when the Dutch authorities had subsequently instituted the guardianship of Johannes Boll in accordance with the law of the Netherlands and later released Johannes Boll from his functions, replacing him by Catherine Postema, the Swedish Courts terminated the guardianship instituted by them;

(3) that notwithstanding, Sweden not being bound by the 1902 Convention to recognize the validity of the Dutch decision putting an end to the puissance paternelle of Johannes Boll, nor consequently of the transfer of these rights to Catherine Postema, any breach of those rights would not constitute a violation of the Convention;

As to the merits:

to hold

that the rules pertaining to conflict of laws which form the subject-matter of the 1902 Convention on the guardianship of infant children do not affect the right of the High Contracting Parties to impose upon the powers of foreign guardians, as indeed of foreign parents, the restrictions called for by their ordre public;

that these rules leave unaffected in particular the competence of the administrative authorities responsible for the public service of the protection of children;

that the measure of protective upbringing taken in respect of Elisabeth Boll cannot accordingly in any way have contravened the 1902 Convention relied upon by the Netherlands;

that it is furthermore not for the Court, in the absence of any allegation of denial of justice, to judge the grounds on which the competent Swedish authorities decided to decree or to maintain the said measure; [p 61]

In the premises,

May it please the Court

to declare that the claim is neither admissible nor well-founded;

in the alternative,

before adjudication, to invite the Respondent to produce the file of the administrative enquiries which led to the disputed decisions."

On behalf of the Government of the Netherlands, at the hearing of October 3rd, 1958:

"May it please the Court to declare".

I. that the 'skyddsuppfostran' (protective education) curtails Netherlands guardianship as protected by the 1902 Convention governing the guardianship of infants;

II. that ordre public cannot prevail against the Convention, because ordre public generally cannot be invoked against conventions;

III. that, even if ordre public could be invoked against the Convention:

A. the Court, in virtue of its powers under the Statute, is fully competent to appreciate, in the light of all the relevant facts and circumstances and the nature of the municipal legal provisions applied thereto, whether or not the conditions for ordre public have been complied with;

B. in the present issue ordre public is not warranted,

i. either by the character of the case,

ii. or by the character of the provision of Swedish law as applied to the case.

Therefore

May it please the Court

to adjudge and declare:

that the measure taken and maintained by the Swedish authorities in respect of Marie Elisabeth Boll, namely the 'skyddsuppfostran' instituted and maintained by the decrees of May 5th, 1954, June 22nd, 1954, October 5th, 1954, June 3rd, 1955, and February 21st, 1956, is not in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the 1902 Convention governing the guardianship of infants;

That Sweden is under an obligation to end this measure."

The Submissions of the Parties, in the form in which they were presented on October 1st and 3rd, 1958, respectively, constitute their final Submissions. [p 62]

***

The dispute upon which the Court is called on to adjudicate has been clearly defined by the Parties in their Pleadings and oral arguments. The Court has before it a concrete case: did the Swedish authorities, by applying the measure of protective upbringing (skyddsuppfostran) to the Dutch infant, Marie Elisabeth Boll, fail to respect obligations resulting from the 1902 Convention on the guardianship of infants? The task of the Court is thus limited. It is not concerned with the correctness of the application of the Swedish Law of June 6th, 1924, on the protection of children and young persons, nor has it to pass upon the proper appreciation of the grounds on which the challenged decisions are based, or on the circumstances to which those grounds are related. These questions are not within the terms of the present dispute and would raise points which are outside the proceedings.

***
The final Submissions of the Government of the Netherlands, before asking the Court to adjudge and declare that Sweden, in taking and maintaining the measure complained of, is in breach of its obligations under the 1902 Convention, ask it to "declare" certain propositions relating to the effect of protective upbringing and to ordre public. These propositions are, in reality, the essential considerations which, in the view of the Government of the Netherlands, must lead the Court to adjudge and declare that Sweden is in breach of its obligations. In a less categorical form, the Submissions of the Government of Sweden are set out in a similar way. The Court has to adjudicate upon the subject of the dispute; it is not called upon, as it pointed out in the Fisheries case, to pronounce upon a statement of this kind (I.C.J. Reports 1951, p. 126). It retains its freedom to select the ground upon which it will base its judgment, and is under no obligation to examine all the considerations advanced by the Parties if other considerations appear to it to be sufficient for its purpose.

***
The essential and undisputed facts underlying the present case are as follows: Gerd Elisabeth Lindwall, the wife of Johannes Boll and mother of Marie Elisabeth Boll, having died on December 5th, 1953, Johannes Boll, the latter's father, thereupon became her guardian by the operation of Article 378 of the Civil Code of the Netherlands. On March 18th, 1954, on the application of the father and without any reference then being made to the Dutch nationality of the infant, the Second Chamber of the Court of First Instance at [p 63] Norrkoping in Sweden registered the guardianship of the father and appointed Emil Lindwall as god man of Marie Elisabeth, pursuant to Swedish law of guardianship.

On May 5th, 1954, the Child Welfare Board at Norrkoping, confirming the decision made on April 26th, 1954, by the President of the Board, decided to place the infant under the regime of pro-tective upbringing under Article 22 (a) of the Swedish Law of June 6th, 1924.

The Amsterdam Cantonal Court, on June 2nd, 1954, appointed Jan Albertus Idema, of Dutch nationality, residing at Dordrecht, deputy-guardian of the infant, Marie Elisabeth Boll, her father being her guardian by operation of law.

The latter, jointly with the deputy-guardian, appealed against the institution of protective upbringing to the Provincial Government of Ostergotland, which, by decision of June 22nd, 1954, confirmed the decision of the Child Welfare Board.

On August 5th, 1954, the Court of First Instance of Dordrecht, upon the application of the Guardianship Council of that town and with the consent of Johannes Boll, discharged the latter from his functions as guardian of Marie Elisabeth Boll and appointed Catharina Postema as guardian. The same judgment ordered that the child should be handed over to the guardian.

The Second Chamber of the Norrkoping Court of First Instance, on September 16th, 1954, cancelled the previous registration of the guardianship of Johannes Boll and ordered that guardianship should no longer be administered according to Swedish law. In the same decision the Court dismissed an application for the removal of Emil Lindwall as god man of the infant Marie Elisabeth. The Court of Appeal of Gota, by decision of January 21st, 1955, maintained the god man, but a judgment of the Supreme Court of July 2nd, 1955, quashed this decision and discharged the god man of his functions.

An appeal having been lodged by Johannes Boll, Jan Albertus Idema and Catharina Postema, against the decision of the Provincial Government of Ostergotland of June 22nd, 1954, the Supreme Administrative Court of Sweden, by a judgment of October 5th, 1954, maintained the measure of protective upbringing.

The Child Welfare Board of Norrkoping, having before them a letter from the father of the infant Marie Elisabeth Boll, and an application by Jan Albertus Idema, decided on June 3rd, 1955, to obtain a further medical report before reviewing the measure of protective upbringing. On October 28th, 1955, the Provincial Government of Ostergotland, on appeal by Catharina Postema and Jan Albertus Idema against this decision, ordered the measure of protective upbringing to be terminated. On appeal by the Child Welfare Board against that decision, the Supreme Administrative Court, by a judgment of February 2ist, 1956, maintained the measure adopted by that Board on June 3rd, 1955. [p 64]

These decisions given in Sweden and in the Netherlands relate to the organization of guardianship and to the application of the Swedish Law on the protection of children. The Court is not concerned with the decisions relating to the organization of guardianship. The dispute relates to the Swedish decisions which instituted and maintained protective upbringing. It is of these decisions that the Government of the Netherlands complains, and it is only upon them that the Court is called upon to adjudicate.

The Government of the Netherlands submits that these decisions are not in conformity with the provisions of the 1902 Convention. The institution of protective upbringing in the case of Marie Elisabeth Boll prevents the infant from being handed over to the guardian for the exercise of her functions. The 1902 Convention provides that the guardianship of an infant shall be governed by his national law, and the Government of the Netherlands draws the conclusion that the Swedish authorities could take no measure once the national authorities had taken decisions organizing guardianship of the infant. The limitation on the principle of the national law contained in Article 7 of the Convention, according to the Government of the Netherlands, is not applicable to the present case because Swedish protective upbringing is not a measure permitted by that Article and because the condition of urgency required by that provision has not been satisfied.

The Government of Sweden does not dispute the fact that protective upbringing temporarily impedes the exercise of custody to which the guardian is entitled by virtue of guardianship under Dutch law; this fact, however, does not constitute a breach of the 1902 Convention or a failure by Sweden to fulfil her obligations thereunder. In support of its contentions the Government of Sweden relies upon the following grounds:

(1) The right to custody, at the time when the infant was placed under the regime of'protective upbringing, belonged to her father, and it was in his case an attribute of the puissance paternelle, which is not governed by the 1902 Convention on guardianship. In the circumstances in which guardianship and the right to custody were conferred on Mme Postema, the 1902 Convention is equally inapplicable to that right which was merely the continuation of the father's right to custody.

(2) The Swedish Law for the protection of children of June 6th, 1924, applies to every infant residing in Sweden, and the jurisdiction which that Law confers upon the Swedish authorities remains outside the Convention, which governs only conflicts of law and of jurisdiction in respect of the guardianship of infants and which does not extend to the settlement of other conflicts of law. The Law for the protection of children being a law within the category of ordre public, the protective upbringing decreed by the Swedish authorities does not constitute a breach of the 1902 Convention, the Conven-[p 65]tion being incapable of affecting the right of the contracting States to make the powers of a foreign guardian, as indeed foreign parents, subject to the restrictions required by ordre public.

With reference to the first ground relied upon by the Swedish Government, the Court observes that in the written and oral proceedings a distinction appears to have been made between the period during which Johannes Boll was invested with the guardianship of his daughter under Dutch law, the law applicable in accordance with Article 1 of the 1902 Convention, and the period after he had been released from guardianship when the latter was entrusted to Mme Postema. That may lead to a distinction being drawn between the original institution of the regime of protective upbringing in respect of the infant and her. maintenance under this regime in face of the guardianship conferred upon Mme Postema. The Court does not consider that it need be concerned with this distinction. The grounds for its decision are applicable to the whole of the dispute.

The Court has before it a measure taken in pursuance of the Swedish Law of June 6th, 1924, on the protection of children and young persons. It has to consider this measure in the light of what it was the intention of the Swedish Law to establish, to compare it with the guardianship governed by the 1902 Convention and to determine whether the application and the maintenance of the measure in respect of an infant whose guardianship falls within that Convention involve a breach of the Convention.

It has been contended that the measure is one "virtually amounting to guardianship", that it constitutes a "rival guardianship" in competition with the Dutch guardianship so that the latter, as a result of the measure, "is completely absorbed, whittled away, overruled and frustrated".

To judge of the correctness of this argument it is necessary to consider the attitude adopted with regard to the Dutch guardianship by the judgments given in Sweden.

So far as the administration of property is concerned, the judgment of the Norrkoping Court of September 16th, 1954, and the judgment of the Supreme Court of July 2nd, 1955, both proceeded on the basis of recognition of the Dutch guardianship. With regard to the capacity of the guardian to concern herself with the person of the infant, that capacity was recognized in the decision of the Supreme Administrative Court of October 5th, 1954, given on an appeal lodged by the guardian; reference was there made to the fact that the decision of the Dordrecht Court, appointing Mme Postema as guardian, extended to the custody of the child and to the claim of the guardian that the regime of protective upbringing should be terminated; this claim was dismissed, not on the ground that it was inadmissible, but after it had been considered on the merits and because it appeared to the Court that to uphold it would, [p 66] at that time, have constituted a serious danger to the mental health of the ward.

The judgment of the Supreme Administrative Court of February 21st, 1956, merits particular attention. This judgment was given on an appeal against a decision of the Provincial Government of Ostergotland which had held that the measure of protective upbringing should be terminated: if matters had ended there, there would have been no subject for dispute. There is a subject for dispute only as a result of the judgment of February 21st, 1956, which decided that the measure should be maintained. That judgment was given, as the decision appealed against had been, in the light of and taking into account the desire expressed by the guardian, Mme Postema, to entrust the infant to M. and Mme Torn-quist, at Norrkoping. The Supreme Administrative Court did not question Mme Postema's capacity to take proceedings before it, and it thereby recognized her capacity as guardian and her right to concern herself with the person of the infant; it did not raise protective upbringing to the status of an institution, the effect of which would be completely to absorb the Dutch guardianship; it confined itself, for reasons outside the scope of the Court's examination, to finding that the desire of the guardian and the satisfactory information which she gave with regard to the household which enjoyed her confidence did not constitute sufficient grounds for terminating the regime of protective upbringing applied to the infant. Finally, under the regime thus maintained, the person to whom the Child Welfare Board has entrusted the infant has not the capacity and rights of a guardian. He receives her, watches over her, provides for the care of her health: the infant is entrusted to his care as she would have been entrusted to the care of the Tornquist family if the guardian's wish had been carried out.

The protective upbringing applied to the infant, as it appears in these decisions, i.e. according to the facts in the present case, cannot be regarded as a rival guardianship to the guardianship established in the Netherlands in accordance with the 1902 Convention.

The Swedish measure of protective upbringing, as instituted and maintained in respect of Marie Elisabeth Boll, placed obstacles in the way of the full exercise by the guardian of her right to custody. Before the Supreme Administrative Court she relied, as has been recalled, upon her intention to entrust the infant to a home of her choice: that intention clearly corresponded to an exercise by the guardian of her right to custody. The guardian was not, however, asking that her intention should simply be acted upon; she relied upon it as a reason for terminating the regime of protective upbringing. The Supreme Administrative Court, by its judgment of February 21st, 1956, dismissed her claim. In dismissing it, the Court limited itself no doubt to adjudicating upon the maintenance of protective upbringing, but, at the same time, it placed an [p 67] obstacle in the way of the full exercise of the right to custody belonging to the guardian. Does this constitute a failure to observe the 1902 Convention, Article 6 of which provides that "the administration of a guardianship extends to the person... of the infant"?

In order to answer this question, it is not necessary, as has already been said, for the Court to ascertain the real or alleged reasons which determined or influenced the decisions complained of. It is called upon to pronounce only on the compatibility of the measure with the obligations binding upon Sweden under the 1902 Convention. It has before it a measure instituted pursuant to a Swedish law which impedes the exercise by the guardian of the right to custody conferred upon her by Dutch law in accordance with the 1902 Convention. Are the imposition and maintenance of such a measure incompatible with the 1902 Convention?

The Court is not confronted by a situation in which it would suffice for it to say that a national law cannot override the obligations assumed by treaty. It is asked to say whether the measure taken and impugned is or is not compatible with the obligations binding upon Sweden by virtue of the 1902 Convention. To do that, it must determine what are the obligations imposed by that Convention, how far they extend and, especially, it must determine whether, by stipulating that the guardianship of an infant is governed by the national law of the infant, the 1902 Convention intended to prohibit the application to a foreign infant of a law such as the Swedish Law on the protection of children.

The 1902 Convention, as indicated by its preamble, was designed to "lay down common provisions to govern the guardianship of infants". It provides for the application of the national law of the infant for the institution and operation of guardianship by expressly extending in Article 6 the administration of a guardianship to the person and to all the property of the infant. It goes no farther than that, and indeed it has been pointed out that it does not make complete provision for guardianship, which should serve as a warning against any construction which would extend it beyond its true scope. In providing that guardianship and, in particular, that the guardian's right to custody should be governed by the national law of the infant, the Convention was intended to determine what law should be applied to settle these points. It was intended, in accordance with the general purpose of the Conferences on Private International Law, that it should put an end to the divergences of view as to whether preference ought to be given in this connection to the national law of the infant, to that of his place of residence, etc., but it was not intended to lay down, in the domain of guardianship, and particularly of the right to custody, any immunity of an infant or of a guardian with respect to the whole body of the local law. The local law with regard to guardianship is in principle excluded, but not all the other provisions of the local law. [p 68]

There may be some points of contact between matters governed by the national law of the infant which is applicable to guardianship and matters falling within the ambit of the local law. It does not follow that in such cases the national law of the infant must always prevail over the application of the local law and that, accordingly, the exercise of the powers of a guardian is always beyond the reach of local laws dealing with subjects other than the assignment of guardianship and the determination of the powers and duties of a guardian. If, for instance, for the purposes of the administration of guardianship in respect of the person or the property of an infant, a guardian finds it necessary to travel to some foreign country, he will, so far as his journey is concerned, be subject to the laws relating to the entry and residence of foreigners. This is something outside the scope of guardianship as regulated by the 1902 Convention.

If, in a country in which a foreign infant, to whom the 1902 Convention applies, is living, laws relating to compulsory education and the sanitary supervision of children, professional training or the participation of young people in certain work, are applicable to foreigners, in circumstances assumed to be in conformity with the requirements of international law and of treaties governing these matters, a guardian's right to custody under the national law of the infant cannot override the application of such laws to a foreign infant. In adopting the national law of the infant as the proper law to govern guardianship, including the guardian's right to custody, the 1902 Convention was not intended to decide upon anything other than guardianship, the true purpose of which is to make provision for the protection of the infant; it was not intended to regulate or to restrict the scope of laws designed to meet preoccupations of a general character.

The same must be true of the Swedish Law on the protection of children and young persons. Considered in its application to children of Swedish nationality, the Law is not a law on guardianship, it does not relate to the legal institution of guardianship. It is applicable whether the infant be within the puissance paternelle of the parents or under guardianship. Protective upbringing which constitutes an application of the Law is superimposed, when that is necessary, on either, without bringing either to an end but paralyzing their effects to the extent that they are in conflict with the requirements of protective upbringing.

Is the 1902 Convention to be construed as meaning—tacitly, for the reason that it provides that the guardianship of an infant shall be governed by his national law—that it was intended to prohibit the application of any legislative enactment on a different subject-matter the indirect effect of which would be to restrict, though not to abolish, the guardian's right to custody? So to interpret the Convention would be to go beyond its purpose. That purpose was to put an end, in questions of guardianship, to diffi-[p 69]culties arising from the conflict of laws. That was its only purpose. It was sought to achieve it by laying down to this end common rules which the contracting States must respect. To understand the Convention as limiting the right of contracting States to apply laws on a different topic would be to go beyond that purpose.

The 1902 Convention determines the domain of application of the laws of each contracting State in the matter of guardianship. It does this by requiring each contracting State to apply the national law of the infant. If the 1902 Convention had intended to regulate the domain of application of laws such as the Swedish Law on the protection of children and young persons, it would follow that that Law should be applied to Swedish infants in a foreign country. But no one has sought to attribute such an extraterritorial effect to that Law. The 1902 Convention is therefore not concerned with the determination of the domain of application of such a law.

A comparison between the purpose of the 1902 Convention and that of the Swedish Law on the protection of children shows that the purpose of the latter places it outside the field of application of the Convention.

The 1902 Convention did not seek to define what it meant by guardianship, but there is no doubt that the legal systems, as between which it sought to establish some harmony by prescribing what was the proper law to govern that situation, understood and understand by guardianship an institution the object of which is the protection of the infant: the protection and guidance of his person, the safeguarding of his pecuniary interests and the fulfilling of the functions rendered necessary by his legal incapacity. Guardianship and protective upbringing have certain common purposes. The special feature of the regime of protective upbringing is that it is put into operation only in respect of children who, for reasons inherent in them or for causes external to them, are in an abnormal situation—a situation which, if allowed to continue, might give rise to danger going beyond the person of the child. Protective upbringing contributes to the protection of the child, but at the same time, and above all, it is designed to protect society against dangers resulting from improper upbringing, inadequate hygiene, or moral corruption of young people. The 1902 Convention recognizes the fact that guardianship, in order to achieve its aim of individual pro-tection, needs to be governed by the national law of the infant; to achieve the aim of the social guarantee which it is the purpose of the Swedish Law on the protection of children and young persons to provide, it is necessary that it should apply to all young people living in Sweden.

Protective upbringing is not, as is guardianship, applied for a pre-ordained period during which it is maintained. The public service of the protection of children is much more flexible, just because the measures taken depend upon the circumstances, and [p 70] can be modified in accordance with alterations in those circumstances. Its functions correspond to preoccupations of a moral and social order. The Swedish Law being designed to provide a social guarantee, it was presented, on behalf of the Government of Sweden, as a law of ordre public which, as such, is binding upon all those upon Swedish territory. The consequences to be drawn from such a characterization were argued at length before the Court. It was contended that a proper interpretation of the 1902 Convention must lead to recognition that this Convention, bringing about the unification as between the contracting States of certain rules for the settlement of conflicts of law, must be understood as containing an implied reservation authorizing, on the ground of ordre public, the overruling of the application of the foreign law recognized as normally the proper law to govern the legal relationship in question. It has been argued that such an exception is recognized in the systems of private international law of those countries which joined in the partial codification of this branch of the law. The Court does not consider it necessary to pronounce upon this contention. It seeks to ascertain in a more direct manner whether, having regard to its purpose, the 1902 Convention lays down any rules which the Swedish authorities have disregarded.

The 1902 Convention had to meet a problem of the conflict of private law rules. It presupposes the hesitation which was felt in the choice of the law applicable to a given legal relationship: the national law of an individual, the law of his place of residence, the lex fori, etc. It gave the preference to the national law of the infant and thereby prescribed to the courts of each contracting State that they should apply a foreign law when the infant involved was a foreigner. It is perfectly conceivable that the courts of a State should in certain cases apply a foreign law.

Very different is the sense of the question if it be asked what is the domain of the applicability of the Swedish Law or of the Dutch law on the protection of children. The measures provided for or prescribed by Swedish law are applied, at least in the first stage as was done in the present case, by an administrative organ. Such an organ can act only in accordance with its own law: it is incon-ceivable that the Swedish Child Welfare Board should apply Dutch law to a Dutch infant living in Sweden and equally inconceivable that the competent Dutch organ should apply Dutch law to such an infant living abroad. What a Swedish or Dutch Court can do in matters of guardianship, pursuant to the 1902 Convention, namely apply a foreign law—Dutch law or Swedish law as the case may be—the authorities of those countries cannot do in the matter of protective upbringing. To extend the 1902 Convention to such a situation would lead to an impossibility. It is not permissible so to construe the Convention as to bring about such a result. [p 71]

The 1902 Convention was designed to put an end to the competing claims of several laws to govern a single legal relationship. There are no such competing claims in the case of laws for the protection of children and young persons. The claim of each of these laws is that it should be applied in the country in which it was enacted: such a law has not and, as has been seen, cannot have any extraterritorial aspiration, for that would exceed its social purpose as well as the means of which it disposes. The problem which was at the basis of the 1902 Convention does not exist in respect of these laws, and the only danger which could threaten them would lie in the negative solution which would be reached if, as a result of an extensive construction which has not heretofore been considered justified, the application of Swedish law was refused to Dutch children living in Sweden; since Dutch law on the same subject could not be applied to them, the protection of children and young persons, desired both by Swedish law and by Dutch law, would be frustrated. The 1902 Convention never intended that a negative solution should be reached in the domain with which it is concerned: this confirms that what is understood by the protection of children and young persons does not fall within the domain of the Convention.

It is scarcely necessary to add that to arrive at a solution which would put an obstacle in the way of the application of the Swedish Law on the protection of children and young persons to a foreign infant living in Sweden would be to misconceive the social purpose of that law, a purpose of which the importance was felt in many countries particularly after the signature of the 1902 Convention. The social problem of delinquent or even of merely misdirected young people, and of children whose health, mental state or moral development is threatened, in short, of those ill-adapted to social life, has often arisen; laws such as the Swedish Law now in question were enacted in several countries to meet the problem. The Court could not readily subscribe to any construction which would make the 1902 Convention an obstacle on this point to social progress.

It thus seems to the Court that, in spite of their points of contact and in spite, indeed, of the encroachments revealed in practice, the 1902 Convention on the guardianship of infants does not include within its scope the matter of the protection of children and of young persons as understood by the Swedish Law of June 6th, 1924. The 1902 Convention cannot therefore have given rise to obligations binding upon the signatory States in a field outside the matter with which it was concerned, and accordingly the Court does not in the present case find any failure to observe that Convention on the part of Sweden.

This finding makes it unnecessary to examine a further submission put forward by the Government of the Netherlands after the main submission which is not upheld by the Court. Furthermore, in view of the reply given to the main submission put forward by [p 72] the Government of Sweden, it is unnecessary to examine its alternative submission.

For these reasons,

The Court,

By twelve votes to four, rejects the claim of the Government of the Netherlands.

Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-eighth day of November one thousand nine hundred and fifty-eight, in three copies, one of which will be placed in the archives of the Court and the others will be transmitted to the Government of the Kingdom of the Netherlands and to the Government of the Kingdom of Sweden, respectively.

(Signed) Helge Klaestad,
President.

(Signed) S. Aquarone,
Acting Registrar.
Judge Kojevnikov states that he is unable to concur either in the reasoning or in the operative clause of the Judgment because, in his opinion, on the basis of the principle pacta sunt servanda, having regard to the fact that the rights and obligations of the Parties under the 1902 Convention governing the guardianship of infants are abundantly clear, having regard to the character of the case and the available facts, as well as the legitimate interests of the infant concerned—who is of Dutch nationality—the Court ought to have held that the measures taken by the Swedish administrative authorities in respect of the said infant, which impede the exercise of the right of guardianship based on the treaty, are not in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the aforementioned 1902 Convention, in particular Articles 1 and 6 of the Convention.

Judge Spiropoulos states that, although he shares the opinion of the Court that Sweden cannot be held to have failed to respect her obligations under the 1902 Covention in this case, he considers that the rejection of the claim of the Government of the Netherlands ought rather to be based upon the character of ordre public [p 73] of the Swedish Law on the protection of children and young persons. In his opinion, this character enables the Law to override the 1902 Convention, since the 1902 Convention must be understood as containing an implied reservation authorizing, on the ground of ordre public, the overruling of the application of the foreign law recognized as the proper law, in accordance with the Convention, to govern the legal relationship in question.

Judges Badawi, Sir Hersch Lauterpacht, Moreno Quintana, Wellington Koo and Sir Percy SPENDER, availing themselves of the right conferred upon them by Article 57 of the Statute, append to the Judgment of the Court statements of their separate opinions.

Vice-President Zafrulla Khan states that he agrees generally with Judge Wellington Koo.

Judges Winiarski, Cordova and M. Offerhaus, Judge ad hoc, availing themselves of the right conferred upon them by Article 57 of the Statute, append to the Judgment of the Court statements of their dissenting opinions.

(Initialled) H. K.
(Initialled) S. A.

[p 74]
SEPARATE OPINION OF JUDGE BADAWI

[Translation]

I am in agreement both with the operative clause of and the grounds for the Court's Judgment. As reasons for its decision, however, the Court did not think it necessary to pronounce upon the interpretation of the law on protective upbringing as a law of ordre public aiming to provide a social guarantee, nor of the Convention of 1902 as containing an implied reservation authorizing, on the ground of ordre public, the overruling of the application of the foreign law recognized as the proper law to govern the legal relationship in question. The Court confined itself to giving a careful and closely reasoned analysis of the differences between the purpose of the Convention and the purpose of the law. In view of these differences, the Court considered that the Convention could not overrule the law, quite apart from the fact that unless the law prevailed, a negative solution would be arrived at, according to which the infant would lose in Sweden, where she lives, both the benefit of the law on protective upbringing and of the corresponding Dutch system of placing under supervision, this system only being applicable in the Netherlands by the Dutch national organs.

For my part, I take the view that this justification alone is not decisive, since, apart from the differences between the Convention and the law, there is the fact that the application of the latter affects the effects of the former. There is thus opposition between the two, and it is necessary to make one prevail over the other.

Now, the law is a national instrument, while the Convention is an international instrument. In favour of the latter there is a presumption of primacy and it has been established by many judicial decisions that a State cannot evade the obligations imposed by an international convention by invoking its own law, or indeed even its own constitution.

It is not enough, therefore, that the subject-matter of the law should be different from the subject-matter of the Convention. One must further take the view, either that this particular law is superior to the Convention, or that the Convention should be interpreted as embodying a tacit reservation which authorizes in certain cases the preference being given to the lex fori—in other words, that the law constituting the lex fori is a law of ordre public.

The first alternative is clearly to be excluded. The second one remains. Now, despite its apparent incongruity in the case of international conventions, the concept of laws of ordre public is a common one in private international law.

It is universally recognized in national systems of conflicts of laws as inseparable from these systems, notwithstanding that this [p 75] general formula of ordre public is considered a vague, indefinite and relative concept and one that varies according to place and time.

Is the situation the same in international conventions relating to the system of the conflict of laws? International conventions on this subject are, in fact, simply designed to achieve the unification of the system, without creating specific obligations. They merely constitute an alignment of States upon a uniform solution, without changing the nature of this solution as it is generally adopted in national legal systems.

Some doubt however appears to have been cast upon the invariability of this conclusion in the case of international conventions. Some take the view that, in the Convention of 1904 on succession, signed by the representatives of a large number of States, Article 6 regarding ordre public, which was redrafted so many times, made the Convention abortive, for it was never ratified, and that in 1913 France denounced the three Conventions of 1902, also for a reason of ordre public.

However that may be, it is somewhat significant to note that recent conventions of private international law expressly provided for the exception of ordre public.

During the drawing up of the Convention of 1902 on guardianship, there were, indeed, lengthy discussions on the adoption of a general formula of ordre public. The trend of opinion opposed to its inclusion in the Convention prevailed by invoking its vagueness and generality, as well as the fear that national tribunals might reduce the Convention to nothing in giving the formula a broad interpretation. According to this view, the Convention adopted a system of special treatment by providing for the only cases which deserved to be regarded as exceptions to the general rule laid down by the first article of the Convention.

Articles 3, 6 and 7 of the Convention have been cited as cases in which, on the grounds of ordre public, the national law is excluded. According to this interpretation, a similar exception would not be justified in any other case.

But, leaving aside paragraph 2 of Article 6, the provisions of Article 3 and 7 are, in fact, concerned with details of application or with hypotheses in which the application of the national law cannot be contemplated, not on grounds of ordre public, but on account of factors inherent in those very hypotheses. Under Article 3, it is as a result of the failure of the national law that the local law will be applied, while Article 7 is concerned only with provisional measures taken pending the institution of guardianship under the national law or measures taken in cases of urgency.

Apart from this argument drawn from the Convention and on the basis of the discussions at the Hague Conferences, must one conclude that in the absence of an exception of ordre public expressly provided for in the Convention, no such exception should be ad-[p 76]mitted? But no special provisions for individual cases could be sufficient or adequate to meet the needs of every legal situation, since the cases of ordre public cannot be fixed and listed in advance. The human contingencies which may give rise to a divergence between a rule determined by the system adopted for conflict of laws and another rule of the lex fori are numerous and often unforeseeable, quite apart from the fact that new laws may give rise to cases in which similar divergencies may be revealed.

The absence of a general formula of ordre public cannot, therefore, be interpreted as a negation of this reservation. In fact, this tacit reservation forms part of the technical structure of private inter-national law which, by settling a conflict between two systems of law by means of the all-inclusive acceptance of one of them, cannot obviate another conflict between a particular rule of the system chosen and a rule of the lex fori. And it is precisely the exception of ordre public, implied in any system of conflict of laws, that constitutes the criterion for the settlement of conflict, which can be foreseen but not determined in advance.

But, if the omission to provide for the exception of ordre public in a convention does not mean that the convention denies its existence, such an omission could, in the mind of its supporters, have served as a means of minimizing the violations of the convention which would result from an abusive use of the exception. Perhaps it was thought that, without an arbitration voluntarily agreed to by the contracting parties to the Hague Conventions, in case of the abusive use of the exception—a cumbersome, costly, and not very appropriate method—the parties would have been unable to obtain justice.

Notwithstanding this probable mental reservation, the fact that the Convention is silent with regard to the exception cannot properly be construed as a denial of its existence. The view that it would, in one form or another, be admissible has always been held, because the exception is inseparable from the system of conflict of laws.

***
In fact, the exclusion of the exception of ordre public in the application of an international convention on the conflict of laws is only conceivable on the assumption that the contracting States impliedly intended to accept the obligation not to reserve for their own sovereign action any right to apply the rules of their own legislation which might directly or indirectly run counter to the effects of the application of the convention.

Such an interpretation is however neither admissible nor in conformity with the facts. It is not admissible because it would reject the implication of the exception of ordre public to substitute for it a more serious implication. [p 77]

It is not in conformity with the facts because even the extremist opponents of the exception cannot deny that certain limitations to the application of the Convention do in fact exist, in particular in penal matters, notwithstanding that these limitations have not been expressly provided for and that they can only be the result of an interpretation by implication. Without attempting a definition of ordre public, which the Conferences were not able to establish, it is not difficult to admit that the limitations which may be justified on grounds similar to or as valid as the limitation mentioned above should benefit by the same treatment. They would involve a comparison between the obligation resulting from the Convention and the local law. If the courts of a contracting State, under the possible ultimate supervision of an international jurisdiction, hold that the law, in view of its importance and its serious nature, should not be applied only to nationals of the country, either as a right or a privilege, or as an obligation or duty, but to all the inhabitants of the country as being a law of ordre public, they cannot be held to be contravening the intentions of the contracting States in making the law prevail over the Convention. It is, in fact, a question to be decided in each case, having regard to the convention and the law involved.

***
With regard to the present case, it is sufficient to recall that the Netherlands, notwithstanding the omission of any allusion in the Convention to the exception, recognize that the Convention cannot be invoked with regard to the custody of a child under guardianship against the carrying out of a penalty or of a measure of reformation pronounced against the child for an offence which it has committed, in the same way as they would recognize that the protective upbringing exercised in cases (b), (c) and (d) referred to in Article 22 of the Swedish Law of June 6th, 1924, would override the application of the Convention, but not case (a)—which is that of Elisabeth Boll—because that case only relates to the private interests of the child and thus constitutes a case of guardianship and hence a rival guardianship to that provided for in the first article of the Convention.

But it is arbitrary, where the law has put the different grounds on a footing of equality, to consider that one of them is connected with the private interests of the child, while the others have in view the interests of society—especially bearing in mind the evolution that has taken place in ideas concerning children and young people.

How, moreover, on what basis, is the respective seriousness of the grounds laid down in Article 22 to be determined, when the law establishes and puts at the disposal of the Board measures which are not determined by the differences in those grounds—a certain measure being applied for a certain ground—but only by the appropriateness of the measure in regard to the specific case? [p 78]

A case (a) may be more serious than a case (c), and may call for a graver measure; and the contrary can also be true.

***
In order to contest the exception of ordre public, the vagueness and generality of the concept have often been invoked, as also the fear that it may be abusively or arbitrarily applied; but, apart from the fact that that is a hypothetical, and exaggerated danger, the objection is not valid to exclude a rule of law of which it postulates the truth in principle. At the most, the only value of the objection would be to call for greater circumspection in its application.

In the present case, the issue does not in reality bear on the principle of the exception of ordre -public, nor on the fact that it constitutes an implied reservation to the first Article of the Con-vention of 1902, nor on the general scope of the law on protective upbringing, but on the application of one of its provisions to the case submitted to the Court, by detaching the first paragraph of Article 22 of the law of June 6th, 1924, from the system as a whole and by contesting its character of ordre public.

The presence of the element of a substantive link considered as a condition of the exception of ordre public has also been disputed, but the uninterrupted residence of the infant in Sweden leaves no doubt, in the present case, of the existence of such an element.

***
From the foregoing considerations it may be concluded that the law on protective upbringing is a law of ordre public and that, as such, it overrides the application of the Convention of 1902.
This reason should therefore be added to the reasons adopted by the Court, of which it is a necessary complement.

The rejection of the Submissions of the Netherlands arrived at on the basis of the arguments of the Parties themselves would then be even more convincing.

(Signed) A. Badawi.

[p 79]
SEPARATE OPINION OF JUDGE SIR HERSCH LAUTERPACHT

While, for reasons which I deem it incumbent upon me to state, I am unable to accept some of the contentions advanced by the defendant Government and upheld by the Court, I arrive on other grounds at the same results as does the Judgment. I do so by reference to considerations of public policy, of ordre public— a question which occupied the main part of the written and oral pleadings, which figures exclusively in the formulation of the legal issue in the final Conclusions of both Parties, and which I feel therefore bound to examine in the present Opinion.

***

The facts underlying the controversy between the Parties are stated in detail in the Judgment of the Court. For the purpose of this Opinion it is sufficient to recapitulate briefly the crucial aspect of the dispute: The Hague Convention of 12th June, 1902, on Guardianship of Infants, to which both Sweden and the Netherlands are Parties, provides in Article 1 that the guardianship of an infant shall be governed by the national law of the infant. It is clear from the various articles of the Convention, and it is not disputed by the Parties, that such guardianship extends normally to the custody of the person of the minor. In accordance with the provisions of the Convention, a Dutch guardian was appointed in 1954 by a Dutch Court over Elisabeth Boll who, although born in Sweden and permanently resident there since her birth, is of Dutch nationality. In the same year, various Swedish authorities, in a series of decisions and in circumstances which appear from the Judgment, applied to Elisabeth Boll the Swedish Law of 1924 concerning the Protection of Children and Young Persons (Child Welfare Act)—which will be referred to in this Opinion as the Law on Protective Upbringing. By one of these decisions the custody of the person of Elisabeth Boll was taken over in 1954 by the Child Welfare Board at Norrkoping, the place of residence of Elisabeth Boll. The Board, in turn, entrusted the custody of Elisabeth to her maternal grandfather—such custody to be exercised on behalf of the Board. That measure was finally confirmed by the Supreme Administrative Court of Sweden. It must be noted that in a series of decisions the Swedish courts and authorities otherwise recognized the guardian appointed by the Dutch court.

The principal justification which the Swedish Government adduced for the action taken by the Swedish authorities was that [p 80] the Law on Protective Upbringing is a measure of ordre public and that the reliance on it, far from being in violation of the Convention, is implied in it. In the course of the written and oral pleadings subsidiary arguments were relied upon by the Swedish Government. One of them was the contention that the Convention of 1902, being a Convention on Guardianship, does not cover the Swedish Law on Protective Upbringing said to pursue a different object and to lie in a different field. It is that line of argument which has acquired prominence in the present case and which must be examined in the first instance.

That manner of approach, as expressed in or as underlying the Swedish argument, may be summarized as follows: There is no incompatibility between the Guardianship Convention and the Law on Protective Upbringing. The Convention, which is concerned with guardianship, does not cover protective upbringing. The latter is outside the Convention. This is so although the effect of the Law on Protective Upbringing is such as to render impossible, for the time being, the exercise by the Dutch guardian of the right of custody of the person of Elisabeth Boll. The object and purpose of the Law on Protective Upbringing is wholly different from that of the Guardianship Convention. The Court is not concerned with the incidental effects of the Law on Protective Upbringing but with its nature and purpose. Guardianship and protective upbringing are wholly different institutions. The former is concerned with the interests of the minor, the latter with the interests of society. Guardianship is in the sphere of private law. Protective upbringing is in the sphere of public law. The Convention, which is one on private international law, can be violated only by legislation in the sphere of private international law. From the point of view of their nature and purposes, the Convention and the Law on Protective Upbringing operate on wholly different planes and there is, therefore, no question of the Law and the measures taken thereunder being incompatible with the Convention.

The reasoning underlying these contentions raises important questions, transcending the issue immediately before the Court, of interpretation and observance of treaties. If a State enacts and applies legislation which, in effect, renders the treaty wholly or partly inoperative, can such legislation be deemed not to constitute a violation of the treaty for the reason that the legislation in question covers a subject-matter different from that covered by the treaty, that it is concerned with a different institution, and that it pursues a different purpose? I have considerable difficulty in answering that question in the affirmative. The difficulty is increased by the fact that the conflict between the treaty and the legislation in question may be concealed, or made to be concealed, by what is no more than a doctrinal or legislative difference of classification. An identical provision which in the law. of one country forms part of a law for the protection of children may, in [p 81] another State, be included within the provisions relating to guardianship. That, as will be shown, is no mere theoretical possibility. It is in fact a conspicuous feature of the present case.

What is the meaning of the expression: "The Convention of 1902 does not cover a system such as that set up in the Swedish Law on Protective Upbringing"? It is admitted that guardianship under the Convention covers the right to decide on the residence and education of the minor—a right claimed and exercised by a Swedish authority and, on its behalf, by the Swedish maternal grandfather acting in pursuance of the Law on Protective Upbringing. If that is so, then the Convention does cover, in one of its essential aspects, the same powers and functions which are now exercised by Swedish authorities in pursuance of the Law on Protective Upbringing. The substance is the same although the purpose of the Convention and of the Law may be different. It may be said that what matters is not the substance of these functions but their object. It is not easy to follow that distinction. When a State concludes a treaty it is entitled to expect that that treaty will not be mutilated or destroyed by legislative or other measures which pursue a different object but which, in effect, render impossible the operation of the treaty or of part thereof.

The treaty covers every law and every provision of a law which impairs, which interferes with, the operation of the treaty. It has been said that the Law in question may have an adverse effect upon subject-matter of the treaty without being covered by the treaty. However, what the Court must be concerned with is exactly the effect of the Law inasmuch as it impairs the operation of the treaty, and not the notional identity or otherwise of the objects pursued by the Law and the treaty. The treaty prohibits interference with its operation unless there is a justification for it, express or implied, in the treaty; that justification cannot be found in the mere fact that the Law pursues an object different from the object pursued by the treaty. It can be found only in the fact that that particular object is expressly permitted by the treaty or implicitly authorized by it by virtue of some principle of public or private international law—a principle such as stems from public policy or from a cognate, although more limited, principle, which is often no more than another formulation of public policy, namely, that certain categories of laws, such as criminal laws, police laws, fiscal laws, administrative laws, and so on, are binding upon all the inhabitants of the territory notwithstanding any general applicability of foreign law.

The following example will illustrate the problem and the consequences involved: States often conclude treaties of commerce and establishment providing for a measure of protection from restrictions with regard to importation or export of goods, admission and residence of aliens, their right to inherit property, functions of consuls, and the like. What is the position of a State which has concluded a treaty of that type and then finds that the other Party [p 82] whittles down, or renders inoperative, one after another, the provisions of that treaty by enacting laws "having a different subject-matter" such as reducing unemployment, social welfare, promotion of native craft and industry, protection of public morals in relation to admission of aliens, racial segregation, reform of civil procedure involving the abolition of customary rights of consular representation, reform of the civil code involving a change of inheritance laws in a way affecting the right of inheritance by aliens, a general law codifying the law relating to the jurisdiction of courts and involving the abolition of immunities, granted by the treaty, of public vessels engaged in commerce, or any other laws "pursuing different objects"? It makes little or no difference to the other Party that the treaty has become a dead letter as the result of laws which have so obviously affected its substance, but which pursue a different object. As stated, some of these laws may be justified as being within the domain of public policy or for some cognate reason. However, the argument here summarized does not proceed on these lines. It is based on the allegation of a difference between the treaty and the Law which impedes its operation.

Another example, directly relating to the Convention of 1902, will illustrate the problem from a different point of view. Article 2 of the Convention lays down that in some cases the diplomatic or consular agents authorized by the law of the State of which the infant is a national may make provision for guardianship in accordance with the law of that State. What is the position if a Contracting Party enacts a general law—a law of public character on a quite different plane—relating to the immunities and functions of foreign diplomatic and consular representatives providing that in the future foreign diplomatic and consular representatives shall not perform any act affecting private rights in the territory of that State? Can that State plead that, as the Convention and the Law pursue a quite different purpose, it does not matter that the effect of the Law is to frustrate one of the provisions of the Convention?

The conspicuous fact in the present case is that the Dutch guardian acceptable to the father of the infant and appointed under Dutch law in accordance with the Convention was replaced, in respect of the exercise of the right of custody, by the Swedish maternal grandfather of Elisabeth Boll acting on behalf of the Children's Bureau. The Dutch authorities and the Dutch guardian may not unnaturally hold the view that the custody exercised by the Swedish grandfather is, in fact and in the circumstances of the case which reveal some dissension between the Dutch and the Swedish branches of the family, to a large extent a rival guardianship. They may find it difficult to appreciate the suggestion that there is no conflict between the Convention and the measures taken [p 83] seeing that they lie on a different plane and pursue different objects. The situation is not affected by the continuing right of the Dutch guardian to administer the property of the child or to institute proceedings for the restoration of her functions of custody. So long as the exercise of the right of custody is vested in the hands of the Swedish authority and the Swedish maternal grandfather of Elisabeth Boll acting on its behalf, there is a nullification of the essential attributes of the guardianship as instituted by the Convention. There may be—and as will be suggested later on, there is—a full justification for that measure in considerations of a different character. That justification cannot be found in the allegation, which is controversial, that the Dutch guardianship and the Swedish protective upbringing are wholly different institutions.

A State is not entitled to cut down its treaty obligations in relation to one institution by enacting in the sphere of another institution provisions whose effect is such as to frustrate the operation of a crucial aspect of the treaty. There is a disadvantage in accepting a principle of interpretation, coined for the purposes of a particular case, which, if acted upon generally, is bound to have serious repercussions on the authority of treaties. As stated, the Convention and the particular provision of the Law on Protective Upbringing cover, in relation to the present dispute, the same ground and the same subject-matter. It has been said that there is a technical difference, inasmuch as they He on different planes, between the Convention and the Law on Protective Upbringing. Assuming that there is a technical difference, it may still be considered undesirable that a dispute between two Governments shall be decided by reference to a controversial technicality in a case relating to significant issues of substance—a technicality which, if acted upon generally, would introduce confusion, or worse, in the law of the operation of treaties. Once we begin to base the interpretation of treaties on conceptual distinctions between actually conflicting legal rules lying on different planes and for that reason not being, somehow, inconsistent, it may be difficult to set a limit to the effects of these operations in the sphere of logic and classification.

The view has been put forward that there can be no conflict between a Convention on Guardianship and the Law on Protective Upbringing for the reason that the Convention of 1902 is a convention of private international law and that guardianship with which it is exclusively concerned is an institution of private law, in particular of family law, while the Law on Protective Upbringing and the various measures authorized therein are in the sphere of public law seeing that they are concerned with safeguarding the interests of society. Even if these reasons were otherwise acceptable, an essentially doctrinal classification and distinction provides a doubtful basis for judging the question of the proper observance of [p 84] treaties. However, there is in the present case a particular difficulty in acknowledging the force of that distinction.

An examination of the main systems of municipal law in the matter of guardianship does not corroborate the view that it is a mere family institution of a purely private law nature. The principal justification for that view is that, by way of traditional classification, guardianship finds a place in codes of private law and that it creates numerous rights and duties in the sphere of private law. However, at the same time guardianship can rightly be described as an institution in which the guardian acts as an organ of the State, as it were, and therefore partakes of the nature of an institution of public law. He acts under the active supervision of the State which may step in at any time—in the interest both of the child and society—and supplant the guardian, wholly or in part. There are very few countries the law of which is based exclusively upon a private law and family conception of guardianship. The law of the majority of States, including Holland and Sweden, on this matter is characterized by an active intervention of the State as an organ of control and supervision at every stage. In some countries, such as Germany, the protection of minors is entrusted mainly to the State which acts through a special tribunal—the Guardianship Court—and it is only by way of exception that these functions are delegated to the family council. It is of interest to note that prior to the Hague Conventions which examined the various drafts of the Convention on Guardianship, the difference between the two systems—"tutelle de famille" (family guardianship) and "tutelle d'autorité" (authority guardianship)—was clearly recognized. That distinction was, for instance, elaborated in 1902 by M. Lehr, Secretary of the Institute of International Law, which had a substantial share in the preparation of the first drafts of the Convention (Lehr, "De la tutelle des mineurs d'après les principales législations de l'Europe", Revue de droit international et de législation comparée, 2nd series, Vol. 4 (1902), pp. 315 et seq.). He classified both the Dutch and Swedish systems of guardianship as belonging to the group of "tutelle d'autorité" (pp. 320, 326, 329).

In view of this, it does not seem to me possible to accept the argument based on the notion of a purely private law and family character of guardianship. How artificial are the distinctions between the supposed private law character of guardianship and the assumed public law7 character of systems of protective supervision or upbringing of children, apart from the normal operation of guardianship, may be gauged from the fact that the matter is entirely a question of legislative technique and drafting. That may be seen, for instance, from the provisions of the Dutch Civil Code relating to guardianship and contained in Part XV of Book I of the Code. Section A i of Part XV covers Paternal Power; Section B 2 covers Paternal Guardianship; while Section B 3, which according to Section B 9 is applicable to guardianship, embodies largely the same [p 85] provisions as are embodied in that part of the Swedish Law on Protective Upbringing which was applied in the case of Elisabeth Boll. That Section, in language almost identical with that of the above-mentioned Swedish Law, provides, in paragraph 365, for the taking of certain steps "if a child grows up in any such a way as to be threatened with moral or physical harm". These steps may be taken at the instance of Guardianship Councils, for which provision is made in the same part of the Law and which, under the authority of courts of law, fulfil functions similar to those of the Children's Bureau under the Swedish Law of 1924 (Sections 461 et sea.). The same Section A 3 makes provisions for children in that situation being placed by the Judge of the Children's Court in an observation centre for mental or physical examination, or, if the child needs special observation, in an institution selected for that purpose (paragraph 372 a and b). The German Civil Code, in the Section on Guardianship, provides in a single Article—Article 1838 —that the Guardianship Court can order the placing of the minor with an appropriate family or in an educational or reformatory institution—a kind of provision which is found in the Swedish Law of 1924. It is a matter of legislative technique and drafting whether the provisions for the protection of children in relation to whom normal guardianship has proved insufficient are, as in Holland, made part of the legislation relating to guardianship or whether, as in the case of Sweden, they are embodied in a separate enactment. In both instances they are intended to protect both the child and the society.

For it is clear that the distinction between the protection of the child and the protection of society is artificial. Both the laws relating to guardianship and those relating to protective upbringing are laws intended primarily for the protection of children and their interests. At the same time, the protection of children—through guardianship or protective upbringing—is pre-eminently in the interests of society. They are part of it—the most vulnerable and most in need of protection. All social laws are, in the last resort, laws for the protection of individuals; all laws for the protection of individuals are, in a true sense, social laws. There is an element of unreality in making these two aspects of the purpose of the State the starting-point for drawing legal consequences of practical import. It is wholly unreal to insist that the measures taken under the Law on Protective Upbringing for the safety, health and happiness of Elisabeth Boll were not measures taken primarily in the interest of that child—and therefore not measures of guardianship of her person—but primarily in the interest of society at large and therefore falling within a quite different category. It is in the light of these considerations that it is necessary to judge the view that as the Guardianship Convention of 1902 is concerned only with a private law institution of family relationship devoid of any public element, there can be no conflict between it and an enactment [p 86] of an exclusively public law character such as the Swedish Law on Protective Upbringing. Even if every link of that proposition could be substantiated by reference to national law as operating in most countries—and that does not appear to be the case—there would still remain the difficulty of assessing the content of the statement that there can be no conflict between a treaty regulating a sphere of private law and national enactment in the realm of public law.

Undoubtedly, the Convention of 1902 was intended to regulate conflicts of law in the sphere of guardianship. But there is no persuasive reason for accepting the suggestion that the relevant provisions of the Swedish Law on Protective Upbringing, under which the custody of Elisabeth Boll was entrusted to the care of her maternal grandfather in his home under the authority of the Children's Board, has nothing to do with guardianship, seeing that they are of a public law nature. Similarly, it is difficult to accept the suggestion that guardianship, instituted in the private interest of the child, is devoid of a substantial public element of social purpose. The rights of the parties, especially in an international dispute, ought not to be determined by reference to the controversial mysteries of the distinction between private and public law. The fact that the purpose of the Convention of 1902 is to establish rules for avoiding conflicts of laws in the sphere of guardianship does not mean that that sphere is confined to laws described as guardianship; it covers all laws, however described or classified, which fulfil an essential function of guardianship. It is part of the firmly established jurisprudence of this Court that with regard to national laws bearing upon treaty obligations what matters is not the letter of the law but its actual effect.

However, it is not necessary to labour this point. The preceding considerations are, in my view, sufficient to show the decisive difficulties inherent in the proposition that a State can properly claim to depart from the obligations of a treaty by enacting laws which, although they impair the operation of the treaty, are said not to conflict with it on the ground that they he on different planes or are concerned with a different subject-matter.

Clearly, the guardian does not enjoy immunity from the operation of local law, such as criminal law, which may deprive him of the custody of the minor placed in a penal or reformatory institution. The guardian is subject to laws relating to education, health, revenue and so on. However, although, in the absence of a more substantial justification than differences of classification, the guardian enjoys no immunity from local law, he is entitled, in principle, to immunity from being deprived permanently or semi-permanently of [p 87] some of the main attributes of guardianship such as custody of the child—especially if such custody is made the subject of what, in the circumstances of the case, is apt to give the impression of a rival guardianship. There may be a justification for such deprivation but that justification cannot properly be based upon factors which are essentially of a technical character. In my view, the more accurate approach to the question is not that the system of protective upbringing is outside the Convention or that it pursues a different object but, rather, that it is not inconsistent with the Convention. In other words, that it is both covered and permitted by the Convention by virtue of public policy—ordre public—or some similar reason based on the right, conceded by international law, of a State to apply a particular law impairing or preventing the operation of the Convention.

In fact, it is in that sense that I understand—and concur in— that part of the Court's Judgment which stresses the beneficent social objects, of an urgent character, of the Swedish Law in question. That is a consideration closely related to those underlying the notion of ordre public. It is this aspect of the question which I deem it incumbent upon me to examine in some detail in the present Opinion.

***
Prior to that, reference must be made to an ancillary submission of Swedish Counsel bearing upon the possible effects of a ruling that the Swedish Law on Protective Upbringing does not apply to children of Dutch nationality. It was pointed out on behalf of the Swedish Government that any such interpretation of the Convention would result in a dangerous legal vacuum. It was urged that as Dutch administrative authorities are responsible for giving effect to the provisions of the Dutch law in the sphere of the protection of children and that as, according to international law, no State can perform administrative acts in the territory of another State, the result would be that Dutch children in Sweden who are in need of care outside guardianship would remain altogether without protection.

It must be conceded that, if only possible having regard to the intention of the Parties, a treaty ought to be interpreted so as to permit rather than to impede desirable measures of social protection. However, it appears to me that the spectre of a legal vacuum, as pictured on behalf of the Swedish Government in this connection, is illusory. Normally, the Dutch guardian would, in such cases, take the necessary steps to remove the child to Holland. In cases when that is not possible, the Dutch guardian would place the child in an appropriate home (as was, in fact, contemplated for a time by the Dutch guardian of Elisabeth Boll) or take other steps required by the physical or mental condition of the child [p 88] such as placing it in an institution for observation or treatment. In exceptional cases in which, for one reason or another, the guardian fails to act or to act satisfactorily, necessary measures would be decreed by the Dutch authorities. However, according to Dutch law these are not administrative authorities. They are judicial authorities applying Dutch law which Sweden, by virtue of the Convention, is bound to recognize and the respect for which she is bound to ensure in good faith without requiring any additional treaty arrangements for that purpose. Thus the above-mentioned Article 365 of the Dutch Civil Code provides that if the child grows up in such a way as to be threatened with moral or physical harm the Judge of the Children's Court may place it under supervision. It is also upon the Judge of the Children's Court that Articles 372 a and 372 b of the Code confer the power to place the child in an observation centre or, if it needs special discipline, in an appropriate institution. Under Article 461 c it is for the Judge, on the initiative of the Guardianship Council, to order the necessary steps when the infant is not under required legal authority or in other cases of urgency. It must be added that such exceptional measures of protection with regard to a child remaining in Sweden would, in practice, be the same as would be taken by Swedish authorities in similar circumstances and that therefore no considerations of Swedish ordre -public would stand in the way of their execution.

Undoubtedly, the task of Dutch judicial authorities in taking the measures in question might be rendered somewhat more difficult than would otherwise be the case seeing that they might have to obtain the necessary information with regard to a situation in a foreign country. But these difficulties—which lie wholly outside any legal problem of the applicability of foreign administrative law—are inherent in a Convention which sanctions and prescribes the operation of the national law of the infant. In days of rapid travel, which makes possible visits by the interested parties or representatives of Guardianship Councils or other institutions, and facilities of postal communication, these difficulties are considerably reduced. In any case, as stated, they refer to a wholly exceptional situation; as such they appear somewhat unreal when adduced as a decisive factor with regard to the interpretation of the Convention. They seem to me an unsubstantial ground for permitting a departure from its language and purpose. For these reasons, 1 cannot accept that particular argument advanced on behalf of the Government of Sweden.

***
As already stated, reliance upon ordre public—public policy—• constitutes the main feature in the written and oral pleadings of the Parties. This is the only submission, in the nature of legal prin-[p 89]ciple, in the final Conclusions of the Parties. The Court is not rigidly bound to give judgment by exclusive reference to the legal propositions as formulated by the Parties in their Conclusions. However, I consider that I ought not to disregard the Conclusions of the Parties formulating exhaustively the legal issue between them. The position is analogous to that in which the Parties have concluded a special agreement defining the legal issue between them and asking the Court to pronounce upon it as part of its operative decision. It is only when it is abundantly clear that the formulation, adopted by the Parties, of the legal issue cannot provide a basis for the decision and that there is another legal solution at hand of unimpeachable cogency, that I would feel myself free to disregard the Conclusions of the Parties. Neither of these conditions seems to me to obtain in the present case. (It may be pointed out in this connection that the position is here different from that in the Fisheries case in which the Court declined to render judgment by reference to general "definitions, principles and rules" formulated by one Party. I.C.J. Reports 1951, p. 126.) Admittedly, the legal issue as thus expressed by the Parties in their pleadings and Conclusions in the present case touches directly upon a difficult and controversial question which has constituted one of the crucial problems in the sphere of private international law and which brings into prominence the relation between private and public international law.

***
Does the Guardianship Convention of 1902, which contains no express exception of ordre public, permit reliance upon it? This seems to be the crucial question. However, before an attempt is made to answer it, there are two preliminary observations which must be made in this connection.

The first is that caution must be exercised with regard to the manner in which the question is put in the present context. It seems incorrect to put the problem in some such form as: "Shall the Court apply the Convention or shall it apply ordre public? Which comes first?" For there is no question here of choosing between the Convention and ordre public. If that were the alternative, clearly the Court would have no option but to apply the Convention. The question is whether the Convention, viewed in its entirety and in the light of relevant principles of interpretation—and not merely by reference to its bare letter—permits the exception of ordre public. For these reasons no assistance can be derived from the various pronouncements of the Permanent Court of International Justice to the effect that national legislation cannot be validly invoked as a reason for non-compliance with an international obligation. The problem now for the Court is, exactly, what is the international obligation at issue. [p 90]

The second preliminary question is whether legislation relating to protective upbringing of children is properly comprised within the sphere of ordre public, that is to say, whether, notwithstanding any apparent treaty provision to the contrary, ordre public covers exceptional measures for the protection of minors in addition to and to the exclusion of guardianship operating in normal circum-stances. That question must clearly be answered in the affirmative. Apart from criminal law, it is difficult to conceive of a more appropriate and more natural object of ordre public, as generally understood, than the protection by the State of infants, especially when they are helpless, ill, an actual or potential danger to themselves or to society, a legitimate object of its compassion and assistance, and an occasion for public resentment whenever the State fails to measure up to its responsibilities in this respect. There are, in that wide and highly controversial province of ordre public, matters which are the object of uncertainty and occasional exaggerations of national prejudice reluctant to apply foreign law. But there is a hard core within that field which is not open to reasonable challenge. The protection of children, in the sense indicated above, is an obvious particle of that hard core. Mention may be made in this connection, as emphasizing this aspect of guardianship (which is exemplified, in its wider sense, in the system of protective upbringing), of the fact that in English law the Crown as the parens patriae—the parent of the country as a whole—is the supreme guardian of infants and, through its Courts, exercises its authority in this respect, at every stage, with total disregard of any artificial formalities of the law. The Guardianship Act of 1925 provides in Section 1 that, when in proceedings before any court custody or upbringing of an infant are in question, the Court in dealing with the matter "shall regard the welfare of the infant as the first and paramount consideration" and shall not decisively take into account any claim, based on any particular rule of law, of the father or the mother to a superior right of custody and control.

The notion of ordre public is generally used in two meanings: It is either applied as referring to specific spheres of the law, such as territorial laws, criminal laws, police laws, laws relating to national welfare, health and security, and the like; from this point of view, protective upbringing clearly comes within the notion of ordre public. Secondly, it is resorted to as embracing, more generally, fundamental national conceptions of law, decency and morality. From this point of view, too, the protection of the interests of the minor through measures such as protective upbringing falls naturally within the notion of ordre public. (It may be stated in the present context that although in this Opinion the French term ordre public is mainly used, it is not used as implying a substantial difference [p 91] between it and the notion of public policy in common law countries such as the United Kingdom or the United States of America— although probably the conception of ordre public is somewhat wider. It is used here for the reason that it is current in the law of two States which are parties to the dispute.)

Admittedly, in answering the question as here put we are confronted with the following dilemma: Is it the Swedish ordre public by reference to which that question must be answered? If that is so, is the Court competent and in the position to examine a matter of Swedish ordre public, of Swedish municipal law? It is clear that that question must be answered in the affirmative. The examination of municipal law, wherever that is necessary, is a proper function of the Court; it has undertaken it on repeated occasions. Neither do the intricacies of ordre public set a limit to that legitimate function of the Court. In the Serbian Loans case the Court examined the French law and the French judicial practice in the sphere of ordre public in relation to currency legislation (P.C.I.J., Series A, Nos. 20/1, pp. 46, 47). However, the question that must be answered in this connection is not only whether protective upbringing of children falls, according to Swedish law, within the Swedish ordre public but also whether it can properly be included as failing within that sphere. That question cannot be answered by reference to Swedish law only. It can be answered in reliance on a notion of ordre public conceived as a general principle of law—an aspect of the question referred to below.

***
If protective education of children falls legitimately within the sphere of public order, then—and only then—there must be considered the main question, namely, whether public order, if not expressly permitted by the Convention, can be invoked at all; whether it has been properly invoked in the present case; and, if so, whether the Law on Protective Upbringing has been applied by the Swedish authorities in a manner which is reasonable and not manifestly contrary to the object and the principles of the Convention.

Does the conception of ordre public operate at all in the present case? This is the central issue before the Court. It can be examined here only in brief outline:

In the first instance, the Convention now before the Court is a Convention of public international law in the sphere of what is generally described as private international law. This means: (a) that it must be interpreted, like any other treaty, in the light of the principles governing the interpretation of treaties in the field of public international law; (b) that that interpretation must take [p 92] into account the special conditions and circumstances of the subject-matter of the treaty, which in the present case is a treaty in the sphere of private international law.

Secondly, in the sphere of private international law the exception of ordre public, of public policy, as a reason for the exclusion of foreign law in a particular case is generally—or, rather, universally —recognized. It is recognized in various forms, with various degrees of emphasis, and, occasionally, with substantial differences in the manner of its application. Thus, in some matters, such as recognition of title to property acquired abroad, the courts of some countries are more reluctant than others to permit their conception of ordre public—their public policy—to interfere with title thus created. However, restraint in some directions is often offset by procedural or substantive rules in other spheres. On the whole, the result is the same in most countries—so much so that the recognition of the part of ordre public must be regarded as a general principle of law in the field of private international law. If that is so, then it may not improperly be considered to be a general principle of law in the sense of Article 38 of the Statute of the Court. That circumstance also provides an answer to the question as to the nature and the content of the conception of public policy by reference to which there must be judged the propriety of the Swedish legislation in the matter. Clearly, it is not the Swedish notion of ordre public which can provide the exclusive standard in this connection. The answer is that, the notion of ordre public—of public policy—being a general legal conception, its content must be determined in the same way as that of any other general principle of law in the sense of Article 38 of the Statute, namely, by reference to the practice and experience of the municipal law of civilized nations in that field. It is by reference to some such considerations that I have, in an earlier part of this Opinion, attempted to answer the question whether the Swedish Law on Protective Upbringing can properly be regarded as falling within the domain of ordre public.

For these reasons the correct interpretation of a convention on private international law must take that general recognition of public order fully into account. The same result is reached by way of another, no less cogent, principle of interpretation: In a case concerned with the interpretation of a treaty relating to a particular matter with regard to which the law and practice of both parties recognize the applicability of certain principles, due weight must be given to those principles. To give an example: If the law and practice of Sweden and Holland were to recognize that the distance of twenty miles is the proper limit of territorial waters, and if these two States were to conclude a treaty laying down that their vessels shall be bound to submit to certain restrictions within their res-[p 93]pective territorial waters, then the expression "territorial waters" would have to be interpreted in the sense attached to it by the law and practice of those two States, namely, as extending to twenty miles. By the same token, if the law of Sweden or Holland recognizes the exception of public order in the sphere of private international law, then that factor must be considered as relevant to the interpretation, as between them, of the treaty in question. It is well known, and it is admitted by both Parties, that both in Sweden and Holland ordre public constitutes a valid reason for the exclusion of foreign law. Accordingly, the fact that a particular subject of private international law is covered by a convention does not, in the absence of an express prohibition to the contrary, in itself exclude the operation of ordre public, even if the convention is otherwise silent in the matter—provided always that the State invoking ordre public is, if its decision to invoke it is challenged, willing to submit to an impartial judicial or arbitral determination of the issue. The latter condition follows inevitably from the principle that a State which invokes an exception not expressly recognized by the treaty cannot claim the right to determine unilaterally whether that exception applies.

At the same time, and this is the third main consideration in the present context, the circumstance that the Parties are bound by treaty in relation to a particular subject of private international law sets a limit to the application of ordre public. It does so in three respects:

In the first instance, the existence of the treaty imposes upon municipal courts an obligation of restraint in invoking ordre public —a restraint additional to that which they impose upon themselves in matters of private international law generally. This is admitted by both Parties. In fact, it is one of the objects of a treaty bearing upon private international law to set some further limit to reliance upon ordre public.

Secondly, the existence of a treaty limits the discretion of national courts in determining whether a particular subject is within the domain of ordre public; it limits it in the sense that in case of a dispute, and provided that an international tribunal is endowed with the requisite jurisdiction, it is for that tribunal to determine the matter. This, too, is in substance admitted by both Parties.

Thirdly—a view contended for by Holland but denied by Sweden —in the case of a dispute as to the manner in which the national authority has applied the exception of ordre public, that question is subject to review and determination by an international tribunal, if otherwise competent in the matter. That aspect of the question is examined later in this Opinion.

Applied to the present case, these principles mean, in general, that the exception of public order is admissible within proper limits [p 94] and that, there being a dispute as to whether these limits have been observed, it is for the Court to decide whether the notion of public order has been properly invoked and applied. As stated, I have come to the conclusion that reliance on ordre public in relation to a Law on Protective Upbringing is fully justified and that, therefore, ordre public has been properly invoked. I will revert presently to the question whether the proper application of ordre public has been satisfactorily proved in this case.

***
Reference must be made in this connection to certain views expressed during the written and oral proceedings with regard to ordre public, in particular the opinion that reliance upon it is inconsistent with the purpose of treaties on private international law and that ordre public ought to be interpreted restrictively in that sphere or refused recognition altogether. In particular, it was argued that because of its comprehensiveness and elasticity it has been the cause of uncertainty and confusion, that it has been a disturbing element in that field, and, more emphatically, that it has been destructive of private international law. There is some substance in these considerations. However, they cannot in any way be decisive.

Admittedly, the notion of ordre public—like that of public policy —is variable, indefinite and occasionally productive of arbitrariness and abuse. It has been compared in this respect, not without some justification, with the vagueness of the law of nature. Admittedly also, it has often been the instrument or the expression of national exclusiveness and prejudice impatient of the application of foreign law. Yet these objections, justified as they are, do not alter the fact that the principle permitting reliance on ordre public in the sphere of private international law has become—and that it is—a general principle of law of most, if not all, civilized States. More than that: It is, on its own merits, part and parcel of the entire doctrine and practice of private international law almost from its very inception; the two are inseparable, not only as a matter of history but also of necessity; they have grown together in a mutual interaction and compromise. The purpose of private international law is to make possible the application, within the territory of the State, of the law of foreign States. This is an object dictated by considerations of justice, convenience, the necessities of international intercourse between individuals and indeed; as has occasionally been said, by an enlightened conception of public policy itself. But there is an obvious element of simplification in the view that the law of a State should be deemed to have consented or that it should reasonably be expected to consent in advance to the application of foreign law without any limitations, in any circumstances whatsoever, without [p 95] a safety valve, without a residuum of contingencies in which, because of the very nature of its structure and the fundamental legal, moral and political conceptions which underlie it, it should be able to decline to apply foreign law.

Within the State, the judicial use of public policy—of ordre public—has often been exposed to criticism. But it is seldom, if ever, suggested that it is not an indispensable instrument of the interpretation, application and development of the law. If that is so in relation to the national law of the State which may be changed by ordinary legislative processes, it is particularly so in relation to foreign law over which the State has no control and which, in certain circumstances, its courts may find it inconceivable to apply. History—modern history—has occasionally produced examples of legislation manifesting eruptions of malevolent injustice, or worse, to which courts of foreign countries may find it utterly impossible to give effect and with regard to which the right to denounce the treaty may not provide a timely or practicable remedy.

It is that residuum of discretion, it is that safety valve, which has made private international law possible at all, and which, if kept within proper limits, is one of the principal guarantees of its continued existence and development. It is significant that an important part of the contribution of the most illustrious exponents of private international law—such as Story, Savigny and Pillet— lay in their effort to formulate the notion of ordre public and the limits, often wide and general, of its application. Ordre public is, and ought increasingly to be, subject to reasonable limitations in accordance with the main purpose of private international law. But the problem cannot be solved by the device of shelving it. It can be alleviated by the existence of international remedies of judicial control and review whenever there exists the requisite jurisdiction of an international tribunal. The present case afforded an opportunity for acting in that way.

***
The preceding considerations may also offer assistance in answering the question whether the existence of a treaty sets a limit to reliance on public policy in the sense that the latter cannot be properly invoked unless the treaty contains an express exception to that effect. That question must be answered in the negative. Obviously, the treaty may expressly, or by implication, prohibit recourse to ordre public. Thus it is occasionally maintained that the Hague Convention of 1902 on the Conclusion of Marriage contained such prohibitive implication by enumerating exhaustively the [p 96] reasons for which the lex fori could disregard the impediments to marriage established by foreign law. (Yet it is significant that, in spite of the Convention, practically all parties to it refused to recognize, prior to the Second World War, the impediments established by the German Nuremberg Laws. Although Dutch Courts applied the Convention in this respect, they often found circuitous means of defeating the Nuremberg Laws in question.)

However, apart from an express or clearly implied prohibition, the correct principle seems to be that a convention in the sphere of private international law does not exclude reliance on ordre public. Nothing short of an express prohibition can rule out reliance on a firmly established principle of private international law. This seems to me to be the fairly unanimous view of writers. They include authorities of the calibre of Professors Batiffol and Niboyet. This is also the emphatic view of an author who has devoted special attention to questions of private international law in relation to treaties (Plaisant, Les règles de conflit de lois dans les traités, 1946, pp. 91-94). Professor Lewald, a balanced and authoritative writer to whose views I attach importance, provides no clear exception to that virtual unanimity. In 1928, writing in the Revue de droit international privé (pp. 164 et seq.), he stated, though with very considerable hesitation, that, a priori, if the treaty is silent on the ques-tion of ordre public, the latter cannot be invoked. In 1930, when writing in the Répertoire de droit international (Vol. 7, p. 308), he expressed a different view, namely, that in such cases the answer to the question depends on the interpretation of a particular treaty and that it is impossible to give an answer a priori. There is little judicial practice directly applicable to this matter.

***
In this connection reference may also be made to the preparatory work of the Convention of 1902. The study of that preparatory work shows that there was opposition—effective opposition—to incorporating in the Hague Conventions any general clause permitting reliance on ordre public (though no discussion on the subject took place with regard to the Convention on Guardianship). Does that mean that there was an intention to exclude altogether recourse to ordre public unless in cases expressly authorized? It may be doubted whether that was so. The authors of the Conventions wished to avoid the complications of a general and express authorization, of a general blank cheque, with regard to a notion so elastic and so comprehensive as ordre public. It is natural that they did not wish to inject into the Conventions, in express terms, a potential source of controversy or abuse. But does that mean that, by mere silence, the authors of the Conventions excluded indirectly from the operation of the Convention a firmly-established principle of private [p 97] international law? That is not probable. It is doubtful whether Governments would have signed and ratified these Conventions if they had expressly denied the right to invoke, in any circumstances, their ordre public as a reason for excluding foreign law.

***
There is one factor of importance which is directly relevant to the question whether ordre public can be invoked by the Parties in the present case in relation to the Convention of 1902. That factor is that in this respect the Court is confronted with a substantial measure of agreement between the Parties. The Dutch Government has repeatedly, although in a highly qualified manner, given an affirmative answer to that question—subject to the obligation of the parties to the Convention to proceed with particular caution, with special restraint and with exacting meticulousness in limiting the operation of the treaty by reference to ordre public. That attitude was maintained in Conclusion II of the Netherlands, in which the denial of the right to invoke ordre public is qualified by the word "generally" and, even more so, in Conclusion III, A and B, which asserts the power of the Court to determine whether the conditions of ordre public have been complied with, having regard to the character of the case and the provisions of the Swedish Law on Protective Upbringing—a conclusion which can be understood only on the assumption that there was no intention to deny, in principle, the right to invoke ordre public. This—the agreement of the parties on a matter of basic principle— is a significant legal aspect of the situation; it makes it difficult to maintain that public order cannot be invoked unless specifically provided for in the Convention.

Admittedly, the Dutch Government denies that in the present case there is room for resort to ordre public. It does so for two reasons: The first is that the obligation of caution and restraint binds the Parties not to invoke it unless there is a requisite element of close territorial connection, and that there is no such connection in the present case. It is difficult to follow that contention. It is not easy to imagine a closer connection between the minor in question and the country which relies on ordre public. Elisabeth Boll was born in Sweden; so far as is known, she speaks Swedish only; she has resided permanently in Sweden since her birth. I do not find convincing the argument that, according to Dutch law, Elisabeth Boll shares the legal Dutch domicile of her Dutch guardian or that, if she is not domiciled in Holland, it is only because the Swedish measure of protective upbringing, said to be in violation of the Convention, prevents her from being brought to Holland. The question of domicile, which is a question of fact and intention, is not properly answered by arguments of this nature. [p 98]

Neither is it easy to follow the second reason advanced by the Dutch Government in the sense that the necessary territorial connection is lacking, seeing that this is a "transfer case", namely, that if only the transfer of the child to Holland were made possible, in accordance with the Convention, then there would be no question of anything happening on Swedish territory which is contrary to Swedish ordre public. There is no more force in this argument than in the suggestion that a State has no reason to refuse to hand over a political refugee to prosecution and persecution in a foreign country considering that such prosecution and persecution will take place in foreign territory. Yet it is apparent that in cases such as these the very fact of intended transfer is decisive for the purpose of relying upon ordre public seeing that the transfer is deemed contrary to the fundamental notions of public law of that State and that it may be productive of a revulsion of public opinion as being flagrantly offensive to national conceptions of decency. Public opinion is not easily reconciled to the view that the moral and social responsibility of the State has been discharged by the simple device of removing to a foreign country the object of possible persecution and suffering. This would be too easy a means of salving the conscience. When, therefore, it is argued that a "removal case" is not sufficiently connected with the country of the forum to warrant the application of ordre public, the correct answer is probably that there are very few occasions in which the connection is more obvious.

These, then, are the two main grounds—the two only grounds— which the Netherlands have adduced against the application of ordre public in this case: the absence of connection and the character of a "removal case". Neither of these grounds seems to be acceptable. If they are not acceptable, then there are no grounds which, on the Dutch submission, prevent reliance upon ordre public.

***

There must now be considered the question of the extent to which the Court is called upon to examine the issue of the propriety of the appeal to and of the manner of application of ordre public in the present case. It is upon the answer to a question of this kind that there must, to a substantial degree, depend the position of ordre public in the development of this branch of the law.

Both Parties are in agreement that the Court is competent to decide whether the Swedish Law on Protective Upbringing comes within the sphere of ordre public and whether it has been properly invoked for that purpose. In particular, the Government of Sweden does not deny that the Court is competent to determine whether in principle the Swedish Law on Protective Upbringing belongs to the category of ordre public. In its Conclusions it asked the' Court to [p 99] hold that the Convention of 1902 does not affect the right of the Parties to impose upon foreign guardians the restrictions called for by their public order. The agreement of the Parties on this question removes to a large extent the ground from the criticism directed at reliance on public order by reference to its disintegrating effect as opening wide the floodgates of wholesale nullification of this and similar Conventions by the simple means of asserting unilaterally that a particular law under which the measure was taken is in the domain of ordre public. For both Parties agree that it is for the Court, and not for them, to decide that issue.

At the same time, the Parties are not in agreement on the question whether the Court is entitled to examine the grounds on which, by reference to the Law on Protective Upbringing, the Swedish authorities decided to decree and to maintain the measure which they had taken. Sweden denied such competence in her Conclusions and in the course of the written and oral proceedings. On the other hand, the Government of the Netherlands repeatedly asserted the competence of the Court in that respect. This it did both in the Conclusions and by way of a formal intervention in the course of the oral proceedings. The Agent for the Netherlands insisted that the Court was competent to examine "every fact, every circumstance, every motive" pertaining to the application of the Swedish law and that this being a case of a treaty obligation no reliance on a charge of denial of justice was necessary for that purpose.

I accept the Dutch Conclusion III A, according to which the Court is competent to appreciate, in the light of the relevant facts and circumstances, whether the conditions of ordre public have been complied with. The Court is competent to decide not only whether the Law on Protective Upbringing falls within the notion of ordre public, but also whether it has been applied reasonably and so as not to defeat the true objects of the Convention. I am unable to accept the Swedish view that the Court, not being a court of appeal, is not entitled to examine that aspect of the question. Suppose the Swedish authorities had decided to apply the Law of Protective Upbringing to a child of Dutch nationality, born in Holland and speaking Dutch only, and who had been resident in Sweden only for one month. Would this Court be precluded from taking these facts into consideration? Recourse to ordre public, especially if not expressly authorized by the Convention, is in the nature of an exception. It is a permissible exception. But it is an exception which must be justified with some particularity. If a State takes action which, on the face of it, departs from the language of the Convention, then it cannot confine itself to proving generally that the Law under which it acted falls within the permissible exception; it must show that that exception was applied reasonably and in good faith. [p 100]

When there is no treaty binding upon a State, it has very considerable—although not unlimited—discretion in applying its system of private international law in relation to ordre public. But when that State is bound by a treaty in relation to a particular subject-matter, it can invoke public order only if, in case its action is challenged, it is prepared to submit the legality of its action to impartial decision. It is that jurisdiction which removes the notion of and recourse to ordre public from the orbit of uncertainty, pure discretion and arbitrariness and which endows the treaty with the character of an effective legal obligation. It is that subjection to judicial or arbitral determination, as the very condition of legitimate reliance on ordre public in cases not expressly provided by the treaty, which saves ordre public in such cases from the reproach of being a cover for a unilateral repudiation of the treaty and which gives it the character of an attempt to secure a just and reasonable interpretation of treaty obligations. The present case provided an opportunity for asserting and giving effect to that principle. The task of such factual examination may be difficult, and, occasionally, invidious. Nevertheless, it constitutes a proper exercise of the judicial function in relation to a dispute which is one both as to the law and fact in the meaning of Article 36 of the Statute of the Court.

In the present case the Parties have not laid before the Court the facts which would enable it to decide with any assurance on this aspect of the question. The Government of Sweden did not act upon the offer, formally made by it in the final Submissions in the Counter-Memorial and repeated during the oral proceedings, to lay before the Court the relevant documents. It is true that it was open to the Court, at any stage of the proceedings, to ask for their production. In particular, Article 49 of the Statute provides that "the Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanation". However, it is not necessary in this connection to consider the problem of the function of the Court, under that and other Articles of the Statute and the Rules, as an agency called upon to clarify and substantiate the basis of its decisions by active initiative in the elucidation of the relevant factors both before and during the oral proceedings. For there was no reason why the Government of Sweden should not have supplied the necessary information of its own accord, in the event that the Court should find that it could properly examine it. A State invoking an exception cannot be too forthcoming in producing evidence in justification of it. It ought not to limit itself to vague—and, from the point of view of ordinary rules of evidence, probably inadmissible—allusions as to the possible contents of the evidence which, by its own decision, it has failed to produce. At the same time, in the exercise of its jurisdiction of review, a legal tribunal must attach importance to the appreciation of the facts by local authorities—of the authorities of the State [p 101] where the child was born and is domiciled. Their decision must not be lightly disturbed. This is so in particular if the applicant Government, while inviting the Court to decide upon the factual aspects of the-issue and the motives underlying the decision of the local authorities, has failed to bring to its notice any facts suggesting that the discretion of the Swedish authorities has not been exercised properly and in good faith. In all the circumstances, on such evidence as there is, I am bound to assume that the action of the Swedish authorities was not such as to constitute a misapplication of the Law on Protective Upbringing on which they were clearly entitled to rely as part of their ordre public.

***

The above considerations explain why, subject to differences of approach and reasoning, I concur in the operative part of the Judgment rejecting the demand of the Government of the Netherlands.

(Signed) Hersch Lauterpacht.


[p 102]
SEPARATE OPINION OF JUDGE MORENO QUINTANA
[Translation]

To my great regret, although I am fully in agreement with them concerning the judgment at which they arrive in this case, I am unable to share the opinion of the majority of my colleagues who give as the sole determining reason for their decision the fact that the Swedish law of June 6th, 1924, on the protective upbringing of children is of a different nature from the Convention of 1902 which governs the guardianship of infants as between the Netherlands and Sweden.

The chief consideration in my mind is that a question of principle has to be settled, namely, the question whether the ordre public of one of the Parties in the case can be invoked against an international Convention which is binding on both Parties. The Applicant in this case attaches fundamental importance to this question, as also does the Respondent. Decisive as it is for the settlement of this dispute, the reason first mentioned above does not, in my view, furnish sufficient ground for a decision on a dispute relating to a fundamental question of law. I hold a very definite view on this question, and I must also point out that, far from ruling one another out, the two grounds supplement each other quite logically. For, though the Convention in question is not infringed in this case, because legally it is of a different nature from the law on protective upbringing, it is the ordre public character of that law which marks the difference. A law of an entirely different nature could never, even in an incidental way, impede the complete accomplishment of an international convention.

Side by side with its function of deciding "in accordance with international law such disputes as are submitted to it", as mentioned in Article 38, paragraph 1, of its Statute, the International Court of Justice has also—notwithstanding the limitation which Article 59 prescribes for its decisions—a doctrinal function of the greatest importance. The Court can and must discharge this function in the present case with a view to the progressive development of international law on the question submitted for its consideration concerning the principle of the relationship between ordre public and an international Convention. Paragraph 1 (d) of Article 38 of the Statute moreover enjoins the Court to apply "the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law".

For these reasons, I shall furnish grounds for my separate opinion, which is in favour of the contention advanced by the Respondent, by analyzing the legal scope of the said principle in this case. [p 103]
***

The case before the Court is one which relates to questions within the domain of private international law. Such a situation was dealt with by the Permanent Court in its judgment in the Serbian Loans Case in the following terms:

"Any contract which is not a contract between States in their capacity as subjects of international law is based on the municipal law of some country. The question as to which this law is forms the subject of that branch of law which is at the present day usually described as private international law, or the doctrine of the conflict of laws. The rules thereof may be common to several States and may even be established by international conventions or customs, and in the latter case may possess the character of true international law governing the relations between States. But apart from this, it has to be considered that these rules form part of municipal law." (Collection of Judgments, Series A, Nos. 20/21, p. 41.)

These are notions that are applicable to the present case since treaties which, like that with which it is concerned, are designed to achieve unification of the rules deriving from the application to private persons of particular State laws, undeniably have the character of private international law treaties. The original title: "Case concerning the guardianship of an infant" was subsequently, and very wisely, changed to "Case concerning the application of the Convention of 1902 governing the guardianship of infants", and this new title is undoubtedly much more in accord with the scope of the judgment to be given by the Court in this case.

We are confronted with an intervention of what may properly be described as public international law in the matter of the interpretation of an international Convention. And it is for the Court, as a judicial organ, to decide the matter. The Court's jurisdiction is clearly established by Article 38, paragraph 1, of the Statute— to which I have already referred—the imperative character of which is beyond doubt. A conversion of private international law into public international law has occurred and this enables the Court to exercise its judicial powers.

The Court has to adjudicate upon the case of an infant. This infant was the subject of a measure of protective upbringing taken by the competent Swedish authorities which, it is argued, falls outside the legal framework of the Convention and, furthermore, falls within the ordre public of Sweden. To this the Applicant has replied that the Respondent is in breach of the Convention which constitutes the legal norm applicable to the guardianship of infants of both countries. It is not precisely a denial of justice that the Applicant alleges against the Respondent, but rather the fact that a measure deriving from the law of Sweden has been applied to a [p 104] child whose guardianship is governed by the law of the Netherlands. In other words, the Netherlands consider that Sweden has violated her international obligations under the Convention, which provides that the national law of the infant is the norm applicable to its guardianship. Without disputing this view, the Respondent contends that the measure adopted is not covered by the Convention, and that since, in any case, it comes within the domain of ordre public, it constitutes a bar to the application of the foreign law.

A wise rule on the subject which must serve as a point of departure for the decision in the present case is supplied by the great Savigny, in his Systeme du droit romain actuel. The judge, he says, must apply to each legal relationship the norm which is most in conformity with the specific and essential nature of that relationship. This law may be the law of a person's own country or it may be that of a foreign State. But this principle, which establishes a uniformity of law between the different States, is subject to an important restriction—the restriction based upon the existence of several species of laws of a special nature, including laws which are positive and strictly compulsory in character, such as those which are dictated by reason of general interest (publica autoritas) (see French translation, Paris, i860, Vol. 8, para. CCCXLIX).

In the present proceedings, the crux of the case is constituted by the question whether ordre public may validly be invoked against an international convention. That is to say, the question at issue is that of the relationship between the application of the 1902 Convention which governs the guardianship of infants and which is law as between the Netherlands and Sweden, and the measure of protective upbringing taken by Sweden in respect of Marie Elisabeth Boll. Both Parties attribute cardinal importance to this, devoting to it the greater part of their arguments. While the Netherlands claim that the maintenance of the measure is contrary to the Convention on the ground that it impedes the full exercise of guardianship', Sweden contends that she has merely applied her ordre public in the present case. However, what are involved are procedures which are of different scope, which are carried out in two different national legal spheres but which affect one and the same situation, the custody of the infant. It is on that point that there is conflict between two laws, the Dutch law on guardianship and the Swedish law on protective upbringing. Sweden has in no wise challenged the legal existence of the guardianship instituted under Netherlands law in accordance with Article 1 of the Convention. In its decision of September 16th, 1954, the Norrkoping court rejected the application to this case of the Swedish law on guardianship. Sweden maintains that her law on the protective upbringing of infants, of June 6th, 1924, is quite different in object and in scope from the institution of guardianship, a typical institution of family law, to which the 1902 Convention relates. But the difference of the Swedish Law in relation to the 1902 Convention will not [p 105] of itself enable the Law to override the Convention. To do so it must fall within the or dire public, a concept which confers upon it the validity which enables it to extend its legal effects on the international plane.

***
The concept of ordre public which is so clear and well defined in the legal systems derived from the so-called continental law in the latin countries, does not seem always to be understood in the same way in other legal systems. As a result, certain of the interpretations given by the Parties in the present case, have become somewhat distorted. In order to arrive at a legal solution, there is, I think, no need to construct theories and draw distinctions which merely confuse the issue. I understand ordre public to be the whole body of laws and legal instruments whose principles cannot be set at naught either by special conventions or by a conflicting foreign law. Its provisions have retrospective effect and definitively acquired rights cannot be invoked against it. The judges should apply it in spite of any international convention. It finds its basis in the need of each State to provide itself with fundamental institutions in the field of its political and social organization. Those institutions, in particular, which govern the family, child welfare, inheritance and public morals, indubitably have this character.

The Swedish Government contends in its Rejoinder (pp. n et seq.) that its law on protective upbringing falls within the sphere both of public law and of ordre public. But although the effect of these two elements may be the same in regard to its invocation as against the application of a foreign law, what are involved are different legal concepts. Indeed, public law has a very specific role: that of providing for the political structure of the State by adjudicating upon interests that are supremely collective. In this connection, the constitution of a country, its economic system or its social organization are manifestations of the activity of its public law. But it is not always easy to draw a hard and fast line between the two branches of law. A single law, such as that of Sweden on protective upbringing of children, may reveal aspects of public law and aspects of private law. It belongs to public law in so far as it protects children in general; it belongs to private law when it affects the position of individuals. The concept of ordre public, being much broader, embraces that of public law. That is why it is unnecessary in the present case to invoke the scope of public law in order to show that the protective upbringing of children is one of the primary institutions of ordre public. [p 106]

In relations which are derived from private international law there is a principle of the limitation of the authority of a foreign law. This principle comes into play whenever the foreign law is in conflict with the ordre public of the country where it is to be applied. Each State interprets it by virtue of its national legislation according to the principles which may at a given moment govern its social organization. This concept may vary considerably from State to State, but one common feature is always recognized: the feature which identifies it with the permanent interests of a nation when that nation provides for its State function of securing respect for individual rights. In those circumstances, the full force of the lex fori which has the character of a law of ordre public remains unimpaired in the relations flowing from private international law. In its judgment, which I have already cited, in the Serbian Loans case the Permanent Court referred to the difficulty of defining ordre public "a conception the definition of which in any particular country is largely dependent on the opinion prevailing at any given time in such country itself..." (Collection of Judgements, Series A., Nos. 20/21, p. 46). The well-known Cuban international lawyer, Antonio Sanchez de Bustamente, the author of the code of private international law which bears his name, agrees that laws which he calls of domestic ordre public, such as those governing the status and capacity of persons, family relationships, inheritance, etc., in a State are peremptory in character; they are binding both on persons having their residence in the State and on the nationals of the State, and prevent the application of a foreign law (Art. 3, para. 1).

It has also been suggested that there is a difference between national ordre public and international ordre public on the ground that the latter is of wider scope with regard to its invocation against a foreign law. Many writers recognize that this is so. Others, including myself, consider that only national ordre public may constitute a bar to the application of a relationship of private international law. International ordre public operates within the limits of the system of public international law when it lays down certain principles such as the general principles of the law of nations and the fundamental rights of States, respect for which is indispensable to the legal co-existence of the political units which make up the international community. The natural society of nations, to which Francisco de Vitoria looked forward, in the 16th century, the society which involved the co-existence of perfect communities within a universal community as propounded by Francisco Suarez in the following century, the Civitas Maxima described by Christian Wolff in the 18th century, as constituted by all States on the basis of a tacit covenant, and the legal community of States bound by the performance of certain duties, as defined in the last century by Friedrich Karl von Savigny, are all necessarily based on these principles and these rights. These principles—we are all quite familiar with them because they are very limited—and these rights, [p 107] too, have a peremptory character and a universal scope. On the one hand, the freedom of the seas, the repression of piracy, the international continuity of the State, the immunity of jurisdiction and the rules governing warfare; and on the other hand the inviolabilit3' of treaties, the independence and legal equality of States. But, in any event, what is involved is a conception that is entirely different from the one laid before the Court by the Parties in this case.
Even in the absence of an express reference, any international agreement laying down rules of private law necessarily runs up against the concept of national ordre public. No foreign law is applicable when the principle of the extraterritoriality of laws comes up against a case that is specifically governed by a local law. And, by virtue of their sovereignty, States possess at all times the power to regulate their own ordre public. Authors enjoying universal authority assert that this is so beyond any doubt. The decisions of several national courts are also quite decisive on this point. Teachings in this matter are to be drawn from these authors and from these decisions. Ordre public is indissolubly bound up with the general principles of law recognized by civilized nations which, under Article 38, paragraph 1 (c) of the Statute, the Court is required to apply as a main source of law in discharging its function of deciding in accordance with international law such disputes as are submitted to it. This means that the application of these principles is the subject of an international undertaking by all Members of the United Nations and by those States which have adhered to the Statute of the Court. Jus posteriori derogat priori says the well-known Roman maxim in accordance with which Article 103 of the Charter of the United Nations prescribes that, in the event of a conflict between the obligations imposed on Member-States by the Charter and obligations arising from any other international agreement, it is the former obligations that shall prevail. The national ordre public of Sweden consequently prevails over the provisions of the 1902 Convention which governs the guardianship of infants as between that country and the Nether-lands. Moreover, none of the provisions of that Convention, and none of the opinions expressed in the course of the preparatory work for it justify the view that the application of the principle of ordre public was excluded.

***
Is the Swedish law on the protection of infants a law of ordre public or is it not ? It regulates in great detail the practical methods to be employed in the upbringing of infants who fall within the various categories contemplated in Article 22. In particular, Articles 1, 20 and 21 which relate to the protection of children in each commune, the supervision by the provincial governments [p 108] with a view to ensuring the welfare of children, and the functions of the Director-General of Social Affairs, are all provisions of ordre public. In itself and in so far as the Court is concerned, the Swedish law in question is no more than a fact. In its Judgment on German interests in Upper Silesia, the Court said: "From the standpoint of international law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures" (Collection of Judgments, Series A, No. 7, p. 19). Consequently the origin of the law, the intention of the draftsman and the possible results to which it may lead are questions which do not fall within the jurisdiction of the Court. It is sufficient for the Court to scrutinize the text of the law in order to ascertain whether or not it is a law of ordre public.

However, before the ordre public of a country may be validly invoked against an international convention there must exist a substantive connection between the person concerned and the territory. The Parties to this case agree—and rightly so—that permanent residence by a person in a territory can constitute such a substantive connection. But the Applicant contended that, in the case of the infant Boll, her residence in Sweden is a forced residence through the application of the measure of protective upbringing. No proof however has been brought forward by the Applicant to show that the residence of the infant in Sweden is contrary to her personal wish. The Applicant has thought it sufficient to invoke its national law, according to which the domicile of a ward is chosen by its guardian. No reference has been made to any expression of a personal desire. In any case, it is to be presumed —and this is a presumption juris tantum—in the absence of any proof to the contrary, that the child's living with her grandparents, her mother's parents, in the place where she was born, where she grew up and where her affections are centred, by no means constitutes a forced residence. Ubi bene, ibi patria, says the well-known maxim.

***

The facts and the law in this case appear to be as follows. An infant born in Sweden, but of Netherlands nationality because of the nationality of her father and of the nationality acquired by her mother who was originally Swedish, is placed under a measure of protective upbringing in the country which she has not left since her birth. The guardianship of this infant must be governed by her national law in accordance with a convention between Sweden and the Netherlands. This guardianship has been duly established by decisions of a Swedish court in the first place and subsequently by a decision of a Dutch court, but the right of custody of the infant is impeded by the adoption of this measure of ordre public. Is this contrary to international law? I do not consider that it is so. The consequences flowing from legal situations produced [p 109] by the application of territorial laws are not in opposition to the obligations flowing from international treaties. This is the special feature of the present case: it is concerned with a territorial law the application of which does not debar the application of a convention but affects a de facto situation constituted by the custody of an infant.

Any appraisal of ordre -public in international relations is necessarily a matter for interpretation by a court, provided that such an interpretation does not—to use the words of the Permanent Court in its advisory opinion concerning Polish postal service in Danzig—"lead to something unreasonable or absurd" (see Judgments, etc., Series B, No. 11, p. 39). And would the Court's decision be unreasonable or absurd if the result of it was to obviate the transplantation and the suffering of a child who would otherwise be torn from the arms of her grandparents, carried away far from the country of her birth and obliged to live in a foreign atmosphere ? The law is not a metaphysical creation, a consequence of cold and abstract reasoning of the human mind, which has no regard for social reality. And States like the Netherlands and Sweden, which have incorporated rules of private international law in their international law, surely do not contemplate the application of inhuman solutions. Our own Court stated in the Anglo-Iranian case that it could not base itself on a purely grammatical interpretation of the text and that it must seek the interpretation which is in harmony with a natural and reasonable way of reading the text (see I.C.J. Reports 1952, p. 104).

The specific facts of the case, which led the Swedish authorities to take the measures objected to by the Netherlands Government, are not a subject of disagreement between the Parties. That is why the Court decided to adopt no position with regard to them. Knowledge of them might, however, have been extremely useful in determining whether in this particular case Sweden has acted justifiably in putting Marie Elisabeth Boll under protective upbringing. For, if this was not the case, I wonder whether the Respondent would be able, before a judicial organ, to sustain its ordre public to impede the effects of a foreign law derived from an international convention. The decision of this Court in the Nottebohm case, in which it wisely dissociated the questions of nationality and of diplomatic protection as regard their capacity for functioning independently in different national judicial systems, allows me to think that they would (see I.C.J. Reports 1955, p. 26). Not being cognizant of the facts, and no denial of justice having been alleged against the Respondent, I must logically assume that the latter has made a proper use of its ordre public.

(Signed) Lucio Moreno Quintana

[p 110]
SEPARATE OPINION OF JUDGE WELLINGTON KOO

I am in agreement with the operative part of the Judgment of the Court, but I find more direct justification for it in Article 7 of the Convention of 1902 governing the guardianship of infants and I propose to develop the reasons for my opinion.

I

The Swedish measure of protective upbringing applied to Marie Elisabeth Boll by the Child Welfare Board of Norrkoping is based upon Article 22 (a) of the Swedish Law of June 6th, 1924, as amended, for the protection of children and young people. Paragraph (a) provides that the Child Welfare Board will take measures concerning

"a child under sixteen who, in the family home, is ill-treated or exposed to serious neglect or any other danger affecting its physical or mental health".

The application was ordered in respect of Marie Elisabeth Boll for the protection of her mental health as affirmed in the successive decisions of the Child Welfare Board, the Ostergotland Provincial Government and the Supreme Administrative Court.

Article 7 of the Convention of 1902 authorizes the application of such protective measures by the local authorities. It reads:

"Pending the institution of a guardianship, and in all cases of urgency, measures required for the protection of the person and interests of a foreign infant may be taken by the local authorities."

Although the laws for protection of children in several countries, including Sweden, have been enacted after the conclusion of the Convention on Guardianship in 1902, the general subject of child protection had been discussed in the national legislatures, as in the case of Sweden, before the third Hague Conference on private international law in 1900. It appears, therefore, reasonable to presume that the authors of Article 7 of the Convention were not unaware of this legislative interest in the subject of child protection as a function and responsibility of the State.

II

The question of the justifiability of the measure of protective upbringing applied to Marie Elisabeth Boll is the crux of the dispute [p 111] in the present case and comprises two aspects: its adoption and its maintenance. Are they both compatible with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the Convention of 1902 governing the guardianship of infants?

Marie Elisabeth Boll was placed under protective upbringing on April 26th, 1954, by order of the President of the Norrkoping Child Welfare Board, and this order was confirmed by the Board at its meeting on May 5th, 1954. It was stated in the "Extracts from the Minutes of the Meeting" placed before the Court that Marie Elisabeth Boll had been placed on April 26th, 1954, in the care of her teacher, Mrs. Birgit Berg, and that she would remain there pending an examination in a psychiatric clinic for children. In confirming the action taken by its President, the Board also resolved to make Marie Elisabeth Boll a ward of the Board pursuant to Article 22(a) of the Swedish Law of June 6th, 1924, for the protection of children and young people. No reference was made to the Convention of 1902, and understandably so, because it was considered at the time as purely a case of a Swedish ward since the father had been registered as her guardian in accordance with Swedish law on guardianship on March 18th, 1954, by the Norrkoping Court on his own application without mentioning his Dutch nationality.

There can be no doubt that the protective measure was adopted and confirmed as a case of urgency, for the President of the Board took the initial action by virtue of Article 31 of the said Swedish Law, which reads as follows:

"If, in cases covered by Articles 22 or 29, the need for protective upbringing or for transfer to public care is thought to be so urgent that action cannot be postponed until the Infants' Bureau (that is, the Child Welfare Board) has taken a decision, the President will have the right, pending a decision by the Infants' Bureau, to take the person in question in charge."

Likewise, the Child Welfare Board, in confirming forthwith the decision of its President to place the minor under protective upbringing, also acted on the ground of urgency by virtue of Article 25, paragraph 3, of the said Law, as amended by the Law of May 31st, 1934, which provides:

"If the Infants' Bureau considers that the execution of the decision concerning protective upbringing cannot be postponed without risk, it has the right to decree that the decision will be executed without delay." (Annex E to the Counter-Memorial.)

Even the plaintiff State in the case, in its Reply to the Counter-Memorial, appears to have acknowledged the element of urgency in regard to the initial adoption of the measure of protective upbringing, for it is therein stated on page 16: [p 112]

"Soon after the decease of his wife Mr. Boll was accused, in Sweden, of having committed an infamous crime against his little daughter, then eight years old.

Now, as long as this accusation was pending, one can well understand and appreciate that the Swedish authorities felt extremely reluctant to abandon the child to a father-guardian whose possible depravity might seriously and permanently endanger its physical and mental health."

It is clear that the application of the protective measure to Marie Elisabeth Boll was based upon an urgent need. The fact that no reference was made to Article 7 of the Convention of 1902 is immaterial. The important point is that the measure in question was in fact ordered and applied on the ground of urgency, and as such it clearly falls within the meaning and scope of "measures required for the protection of the person of a foreign infant" provided for in the said Article 7. The initial application of the measure of protective upbringing to the infant was therefore clearly com-patible with the Convention.

III

Is the maintenance of this protective measure justifiable in the face of the Convention of 1902, particularly in view of Articles 1 and 6 thereof?

It was contended by the plaintiff State that this measure should have been discontinued after the accusation against the father was dropped "by the end of 1954 or the beginning of 1955" and, in any case, after he had been released of his guardianship and replaced by Mrs. Postema, because Sweden is under the obligation to discontinue it in view of the Convention of 1902.

Now the initial application of the protective measure has been shown to be compatible with the Convention. Whether its maintenance is justifiable in view of the Convention obviously depends upon the question whether the original urgent need which had called for it still continues. If it still exists, clearly the measure cannot be terminated without prejudice to the health of the infant.

It may be said that Article 7 of the Convention is ancillary to Article 1 and Article 6, which are the predominant provisions of the instrument. But it is also to be noted that the language of Article 7 makes it clear that the effective operation of these two Articles may be retarded for a period of time in an exceptional case when the urgent need for protection of the person or interests of a foreign infant calls for action on the part of the local authorities for the purpose of such protection. The right of the national guardian to custody in the present case is not denied, but its exercise is only incidentally impeded. It is open to the guardian to make a [p 113] fresh application to the Swedish local authorities to end the protective measure, at which time presumably the need for continuing it will be reconsidered in the light of the prevailing facts and circumstances.

An examination of the text of Article 7 shows that it authorizes necessary protective measures to be taken by the local authorities for the benefit of the foreign infant in two kinds of circumstances: (a) pending the organization of the guardianship; and (b) "in all cases of urgency". Any measure taken under (a) must obviously be ended as soon as the guardianship is organized and known to be organized, thus indicating a time-limit, whereas in the case of a measure taken under (b), there is no indication as to when it should be ended, except the tacit implication that it should be ended when the urgency which has called it into being comes to an end. If this interpretation is sound—and there is no valid reason to doubt this—the continuance of the measure may be justified even after a guardianship based on the national law of the infant has already come into existence. For, unlike the circumstance in (a), the test here is the continuing need of an urgent character.

In this connection, the plaintiff State contended (Memorial, pp. 4-8) that Article 7 permits only special measures for the protection of the infant and "does not and cannot permit general measures virtually amounting to guardianship". As a general proposition this is correct. But it is to be observed that the Swedish measure of protective upbringing does not deal with guardianship, and it does not amount to a virtual guardianship. The Dutch guardianship of Johannes Boll, the father, and his subsequent replacement by Mrs. Postema in accordance with the decision of the Dordrecht Court, was clearly recognized by the judgments of the Court of First Instance of Norrkoping, the Court of Appeal of Gota, and finally the Supreme Court of Sweden. To attempt to draw a distinction between special and general measures of protection and to declare that the former is permissible under Article 7 and the latter is not, does not clarify the issue in law. The reason is simple. Although the measure of protective upbringing applied to Marie Elisabeth Boll is part of a general law for the protection of children and young people, it is, nevertheless, one of several kinds of measures prescribed in the law and, as such, it can well be considered as a measure of special character chosen to meet the requirements of the particular case.

Moreover, the Swedish measure in question is aimed at the protection of the person of the infant. For this purpose the nature and degree of the protection must necessarily correspond to the requirements of each case. If it is a matter of protecting the health of the infant, as it is in the present case, appropriate measures must be taken, whether they may be described as general or special in character. [p 114]

Finally there remains the argument advanced by the plaintiff State that the concept of urgency must not be confused with the concept of desirability, since a measure is urgent only as far as it is desirable and as far as it cannot suffer any delay. This is undoubtedly correct. The question to consider in the light of this definition, however, is whether the circumstances which called for the application of the measure of protective upbringing continue to exist and whether, in these circumstances, there still persists an element of urgency for the continuance of the measure.

On the face of things the protective measure applied to Marie Elisabeth Boll appears to have been maintained over an unusually long period. It is four and a half years since it was first ordered by the Child Welfare Board on May 4th, 1954, and more than two and a half years since it was again confirmed by a decree of the Supreme Administrative Court of February 21st, 1956. The important point to determine, however, is whether the need of protection for the infant continues to exist and whether the element of urgency in the need remains. These are questions of fact, and the limited information available to the Court gives no indication as to the present state of the minor's health or as to how or why a change from the existing regime would affect her mental well-being. What is known is the undisputed fact that all of the decisions of the Child Welfare Board, the resolutions of the Provincial Government, and the decrees of the Supreme Administrative Court, acting on application or appeal of the father-guardian, the legal guardian and the deputy-guardian for ending the measure of protective upbringing, alluded to the consideration of the health of the infant and stressed the need of protection from danger to her mental health, with one exception, i.e. the Resolution of the Provincial Government of October 28th, 1955, which was, however, overruled by the Supreme Administrative Court by a decree of February 21st, 1956. Thus the minutes of the Child Welfare Board Meeting of May 5th, 1954, mentioned an examination in a psychiatric clinic for children; the resolution of the Provincial Government of June 22nd, 1954, spoke of an opinion on Marie Elisabeth Boll, rendered by Dr. Eberhard Nyman, M.O. of the Lund Hospital Psychiatric Clinic, Infants' Division; the decree of the Supreme Administrative Court of October 5th, 1954, stated that "the removal of the child to a wholly strange environment would at present seriously endanger her mental health"; the minutes of the Child Welfare Board Meeting on June 3rd, 1955, indicated that the Board "resolved to obtain further expert medical advice before deciding whether the girl should be removed from her present home"; and finally the decree of the Supreme Administrative Court of February 21st, 1956, after reviewing the evidence produced before the Provincial Government and the Child Welfare Board, rescinded the resolution of the former and confirmed the decision of the latter to continue the protective [p 115] measure, because, "according to the evidence in the case, the child is still in need of wardship".

As to the present situation concerning the health of the infant, the point is left obscure by both Parties. However, it is unnecessary for the Court to appraise this situation. Since no charge of any abuse of power in applying and maintaining the measure of protective upbringing has been made against the Swedish authorities, nor has their good faith in so acting been impugned in any way, it is reasonable to presume, on the basis of the decisions of the Swedish authorities referred to above, that the protective measure relating to Marie Elisabeth Boll has been maintained because of the existence of a continuing necessity for the protection of her mental health, and that it will, on review or on application of her guardian, be ended as soon as this necessity ceases to exist.

IV

For the reasons stated, I am of opinion that the application of the Swedish measure of protective upbringing falls within Article 7 of the Convention of 1902 as a right of permissible exception, even though its exercise affects for the time being the exercise of the rights of guardianship provided for by Articles 1 and 6 of the Convention, and that, as of the present moment, the maintenance of the measure cannot be said to be in contravention of the Convention.

(Signed) Wellington Koo.

[p 116]
SEPARATE OPINION OF SIR PERCY SPENDER

Whilst concurring in the decision of the Court I deem it appropriate to deal individually with and to make certain additional observations upon certain aspects of this case.

I propose to confine my remarks firstly to the interpretation of the Convention in relation to the facts of this particular case, and secondly to the submissions by the Government of the Kingdom of Sweden on Ordre public (Public Policy).

Is "Protective Upbringing" in conformity with the obligations binding upon Sweden vis-à-vis the Netherlands by virtue of the Convention of 1902?

The task with which the Court is confronted may I think be expressed thus:

(a) Is the Swedish Child Welfare Law 1924 as amended or any provision thereof inconsistent or incompatible with the Convention?

(b) Are the measures of protective upbringing taken and maintained in respect of the child under the provisions of such law inconsistent or incompatible with the Convention?

These questions will be determined primarily by the proper construction to be given to the Convention. It is also necessary to consider the terms of the Swedish law under which the measures sought to be impugned by the Netherlands were taken and to do this in the light of the interpretation to be accorded the Convention.

The aim in the interpretation of the Convention must be to determine whether the particular case with which we are called upon to deal, is or is not within its ambit. Our task does not require us to go further.

The Convention, expressed as it is in general terms, must in my opinion be interpreted and understood according to its subject-matter. The occasion for the Convention, its purpose, the object sought to be obtained are important considerations. Its subject-matter determined in the light of these considerations will mark out its scope and operation.

What was the situation before the Convention? What were the defects in that situation with which it sought to deal? In what manner was it sought to remedy these defects and for what reasons? These are all pertinent enquiries in the task of interpretation. The answers do not admit of much dispute.

The Convention was one of a number entered into about the same time dealing with conflict of laws. It dealt with problems there-[p117]tofore existing when such conflict occurred in relation to the administration of the guardianship of minors, as between the different States. It sought to formulate rules which would resolve difficulties inherent in this state of affairs and to achieve agreement as between the contracting States as to the proper law which should be applied in order to do this. The task of the drafters was directed to a problem of conflict of laws in relation to guardianship and its administration. This and this alone was the nature of their task.

The Convention accordingly sought to lay down rules and to impose obligations upon the contracting States to achieve this end. Its aim was to bring to an end the state of affairs where the law to be applied to the administration of the property and to the custody and control of an infant was the subject of competing and conflicting laws between such States. Its provisions were designed to assimilate within the respective national legal systems of the contracting States certain provisions, in conformity with one another, where a conflict of laws in relation to the administration of guardianship occurred.

Where previously this conflict of laws was left to operate according to the separate laws of each State, the aim of the Convention was to introduce certain uniform legal rules and provisions and to substitute in cases of conflict of laws thereafter arising these rules and provisions on the administration of guardianship for the national laws of each State thereon.

In the light of these observations, it is at once obvious that the purpose of the Convention was to resolve a conflict of laws existing at the time of, or which might arise during, its currency between one contracting State and another, in respect of the law to govern guardianship and its administration where a child, the national of one country, was habitually resident in the country of another contracting State, and that in order to accomplish this purpose, it provided, subject to the provisions elsewhere appearing therein," that the proper law to govern the guardianship should be the national law of the infant.

It contemplated the contingency of a conflict between the laws of two States—on the subject-matter of guardianship in each State. It was not directed to the laws of States generally. It was confined and limited to a conflict of the laws on guardianship and its administration. It was concerned with that subject-matter and with none other.

Is any limitation or restriction on the guardian's right to custody and control resulting from the operation of a law of a contracting State where the child is habitually resident, which is not a law of or on or dealing with guardianship incompatible or inconsistent with the Convention?

The answer must turn upon the scope and operation of the Convention and this in turn depends upon its subject-matter. [p 118]

The characterization or subject-matter of the Convention must be determined by looking at it as a whole. The fundamental questions are: what is its essential character; to what subject-matter in substance does it relate? The answers are not to be found in any abstract formulation of a general test or criterion but by the considerations to which I have already referred.

Its essential character is in my opinion clear enough. It is that of guardianship: its administration, and conflict of laws in respect of guardianship and its administration. That is its subject-matter. And that in my view marks out its scope and operation. The Convention must be construed accordingly. So construed it does not confer upon the guardian any such immunity. His exercise of the right to custody and control may be restricted even in a major degree by the effects of other laws dealing with entirely different subject-matters, without any conflict of laws within the contemplation of the Convention arising.

But are the provisions of the Swedish Child Welfare Law of 1924 as amended, by virtue of which the protective upbringing was brought into being, laws on the subject-matter of guardianship?

A law may produce an effect in relation to a subject-matter without being a law on that subject-matter. The substance of the relevant law is to be determined by what it does—not by the effects in relation to other matters of what the law does.

The Swedish Child Welfare Law forms a composite whole. Its provisions are interrelated. Its subject-matter is child welfare and delinquency in the content of the social problem they create, and the protection and welfare of society in relation thereto.

Child welfare and delinquency recognized increasingly as a vital social problem is of concern to the State not only in the interest of children but primarily in the interest of the community, so that young people may become useful members of society and not a burden upon it. In my opinion, the main purposes of the Swedish law, which gives direction to our enquiry, are:

(a) the prevention of the creation and the continuance of corrupting homes, and the prevention and reformation of child delinquency, and

(b) the protection of society against the consequences of the bad upbringing of the young.

Whatever is the subject-matter of the Swedish law, it is not a law of or in relation to "guardianship". I would hardly think any nation that has comparable legislation would itself ever think so.

It cannot be disputed that the Swedish law does in certain circumstances produce effects which bear on guardianship. In the [p 119] present case Sweden does not deny that these effects are such as to interfere in a major degree with the guardian's exercise of the right of custody and control. That, however, does not, in my opinion, make it a law on or in relation to or in respect to or of guardianship. Its essential character is not determined by the effects of the law operating on particular facts and circumstances; or by the acts which may properly be done pursuant to it and their bearing or effect on a guardian's right to custody and control. No conflict of laws with which the Convention is concerned accordingly arises in principle between the Netherlands law on guardianship and those of the Swedish law on child welfare. They relate to different subject-matters. Their scope and operation are separate and distinct. The Convention was concerned with and its scope and operation was limited to conflicts of laws arising in relation to the one subject-matter, namely guardianship. In principle the Swedish law is outside the domain of the Convention.

But this does not complete our enquiry. A State, party to the Convention, may not, whatever the subject-matter of the law under which it acts, do anything which contravenes the provisions of the Convention.
Is then the protective upbringing established in this case a rival guardianship?

Is its maintenance inconsistent with the Convention or any specific provision thereof?

As to the first question, the answer must in my view be "no" and for the reasons given in the opinion of the Court.

And if this be so, the answer to the second question must depend upon some specific provision of the Convention, for apart therefrom, for reasons already advanced, no incompatibility between the measure of protective upbringing and the Convention could be said to exist.

Is there then any specific provision of the Convention with which the protective upbringing may be said to be inconsistent? The only specific provision which I think needs to be adverted to is Article 7.

Does this Article mean that all other measures which may be said to protect the person of the infant are precluded irrespective of the subject-matter or context of the law under which or the circumstances in which those measures are taken? In particular does it on its proper construction preclude the measure of protective upbringing?

I think not. The Article certainly in terms does not so provide. It is in my opinion solely directed to the protection of the person of the child in the contingencies stated therein. It must be read within the scope and operation of the Convention of which it is part. On its proper construction it was never intended to preclude other measures such as protective upbringing which have no relation whatever to guardianship. [p 120]

Article 22 (a) of the Swedish law taken together with the associated articles thereof must be read also within the scope and operation of that law of which it is an integral part. They cannot be lifted out of their context. These provisions of the Swedish law and Article 7 of the Convention operate in different fields altogether. Neither the relevant provisions of the Swedish law nor the protective upbringing established thereunder have anything to do with guardianship as such or with its administration; they he wholly outside the provisions of Article 7 of the Convention. There is no inconsistency or incompatibility.

One further observation needs to be made.

If in a particular case it could be shown that a law comparable to the relevant provisions of the Swedish law had been used by a contracting State not bona fide to carry out that law but for a purpose aliunde, for example to interfere with and restrict a guardian in the exercise of his right of custody and control as such, other and quite different considerations would arise. But that is not the instant case. The Netherlands has very properly conceded that Sweden acted in complete good faith under the provisions of its law. Nor does any question of denial of justice arise. The challenge of the Netherlands has been exclusively directed to whether the measure of protective custody is itself in conformity with the Convention.

In my opinion the Netherlands has failed to make out any case that Sweden has not observed the provisions of the Convention.

Ordre public (Public Policy)

The principal issue to which the Parties to this case directed their attention was whether the Convention should be interpreted as containing an implied reservation authorizing on the ground of ordre public or public policy the overruling of the application of the foreign law recognized as normally the proper law to govern the guardian's right to custody and control of the infant. Whilst the opinion of the Court does not pronounce in any way upon this, nor is it necessary to do so, I think it proper, having regard to the manner in which each Party has conducted its case and the importance attached to the issue, that I should express my views on it. For I would not wish any silence on my part to admit of any reason for thinking that the case for Sweden might have successfully rested upon the submissions made by it under this heading.

The Swedish Government contended that ordre public or "public policy" is reserved from the Convention, that the Swedish Child Welfare Law, 1924, as amended, is a law of ordre public, that accordingly the "protective upbringing" established by the Swedish authorities is not a breach of the Convention of 1902. [p 121]

Consideration of this branch of the argument raises questions which may be of not inconsiderable importance. Whilst we are concerned with a Convention which relates to a conflict of laws within what may be referred to as the field of private law, none the less it is in every sense an international convention between sovereign States. Were support given to the Swedish contention that such a reservation should be read into the Convention it could provide a basis for arguments that similar reservations should be read into other and quite dissimilar conventions and treaties.

The maxim pacta sunt servanda is of special significance in considering this contention of the Government of Sweden. One should be constantly alert lest anything that might be said—or, indeed, fail to be said—should give any currency to a view that nations, under "public policy", may fashion their own yardstick to determine their obligations under international treaties or conventions (cf. Greco-Bulgarian Communities, P.C.I.J., Series B, No. 17, p. 32).

Sweden's submissions as formally presented to the Court at the conclusion of argument were as follows:

"That the rules pertaining to conflict of laws which form the subject-matter of the 1902 Convention on the guardianship of infants do not affect the right of the High Contracting Parties to impose upon the powers of foreign guardians, as indeed of foreign parents, the restrictions called for by their ordre public (public policy).

That these rules leave unaffected in particular the competence of the administrative authorities reponsible for the public service of the protection of children.

That the measure of protective upbringing taken in respect of Elisabeth Boll cannot accordingly in any way have contravened the 1902 Convention relied upon by the Netherlands."

The argument to substantiate these submissions was developed as follows. Two premises were sought to be established.

The first was that the application of the personal law of a foreigner must yield before those provisions of the lex fori which are within the domain of ordre public (public policy), or at least of international ordre public.

The second was that the provisions of Swedish law relating to protective upbringing in fact have that character.

It is to be noticed that the first premise advanced by Sweden does not state that it is every law of the lex fori before which the personal law of the foreigner must yield. It is only such laws as are within the domain of public policy, or at least within the domain of international public policy.

Nor is it contended that every rule or law of public policy must have priority over the personal law of children nationals of States signatories to the Convention. It is only that part of ordre public (public policy) to which the legislatures clearly attach such impor-[p 122]tance that, not only do they make it applicable to foreigners upon their territory, but they will not suffer the application of the foreign law. This part of public policy (ordre public) is referred to as international ordre public or private international ordre public.

I refrain from making any examination of these descriptive words, or any determination whether they do or do not involve any definable concept of law, or are merely indicative in a general sense of certain kinds of laws to which others may attach different descriptive labels. It is important however to understand the sense in which these terms are used by Sweden.

This the Swedish argument proceeded to indicate. A judgment of the Belgian Cour de Cassation of 4th May, 1950 (Pas. 1950, 1. 624) was quoted as follows:

"A law of domestic ordre public is only of private international ordre public in so far as it was the intention of the legislature to lay down by means of its provisions a principle which the legislature regards as essential to moral, political or economic order and which, on that ground, must necessarily, in its eyes, exclude the application, in Belgium, of any rule to the contrary or any different rule in the personal law of the foreigner."

So it was argued that public policy (ordre public) is applied to cases where:

(a) the application of foreign law is prevented—the negative effect;

(b) the application of territorial law is made compulsory—the positive effect.

Further, it was submitted that territorial measures which are made binding in the public interest, so as to prevail over the foreign law, may in some cases result in complete elimination of the foreign law, and the substitution or enforcement of the lex fori; in others the application of the foreign law may be only partially affected.

It is hardly necessary to refer to the many instances where, in accordance with domestic law of a country, the Courts of that country have, apart from obligations imposed by treaty, refused to recognize foreign laws or judgments or rights arising out of foreign laws, on the grounds of ordre public or public policy. Each nation does so to the extent to which it deems its fundamental principles of public policy demand.

Public policy in every country is in a constant state of flux. It is always evolving. It is impossible to ascertain any absolute criterion. It cannot be determined within a formula. It is a conception. The varying legal approaches made by the different domestic or municipal courts of different countries in the cases on which they have been called to adjudicate, and the wide differences of views on various and important aspects of public policy (ordre public) [p 123] expressed by learned authorities are fairly evident. The truth of the matter is whether ordre public (public policy) is based upon considerations analogous to Article VI of the French Civil Code, or on broad principles of moral or political or economic order, or on the imperative nature of domestic laws, or on their territorial application to all people within the State whether foreigners or nationals, or on differences or supposed differences between positive and negative laws, or whether they are public or private laws, administrative or non-administrative laws, or ordre public as such or international ordre public (or private international ordre public), etc.; decisions giving effect to public policy within the municipal domain are based either upon the specific terms of legislative law or upon a more or less elastic conception of what public policy demands or permits in relation to the particular case under consideration.

It is difficult to ascertain, if indeed that is possible, any common thread or line of reasoning to bind all the different cases together, or to harmonize them one with another, other than the general conception of public policy as developed in each municipal system from law to law, from case to case, and from time to time. Cases, no doubt, may be said to fall within general principles or into wide and somewhat unspecific categories. It is, for example, within one's knowledge that the domestic courts of the same country may vary in their application of principles of public policy to new and evolving sets of circumstances. Some are reluctant to assert any new head of public policy or to extend existing principles to new sets of circumstances. Others are not so reluctant.

Attempts have been made to discern some definable principle or principles to explain or harmonize the different cases so decided in different countries, and to elevate these principles to the level of rules of international law. For myself, I am bound to say that I do not find them convincing. This is at least understandable. In each country, however or in reliance upon what domestic laws or general principles it may call in aid ordre public or public policy, is determining for itself, by its legislation, by its administrative agencies, or through its courts, the extent to which, if at all, it will admit or exclude foreign laws, or foreign rights otherwise applicable. It is, in each case, no doubt for good and sufficient reasons in the view of the State concerned, an assertion of national sovereignty.
It is not, therefore, to be wondered that, in attempts to enunciate some rules of guidance, laws described as of an absolute and imperative character are divided into two categories (Savigny, English translation by Guthrie, p. 78): those "enacted merely for the sake of persons who are the possessors of rights", and those that are [p 124] not so enacted but rest on moral grounds or on the public interest "where they relate to politics, police or political economy".

We find Brocher describing these two categories as "Lois d'ordre public interne" and "Lois d'ordre public international", respectively. This distinction is presented for the purpose of indicating that laws within the first category are applicable only where the internal law of the forum applies, whilst the second imperatively demands application even in the sphere of private international law of the country.

Niboyet has other ideas, and so has Bartin and so has Mancini. The many authorities quoted during the course of the argument on both sides at least should satisfy one, if that were necessary, that ordre public (public policy) is but a general description of the operation by which nations reject or refuse to accept foreign laws in the pursuance of, or presumed pursuance of, its fundamental principles of "public policy" as understood from time to time (see Dennis Lloyd, Public Policy: A Comparative Study on English and French Law, 1953, and cf. Serbian Loans Case, P.C.I.J., Series A, Nos. 20/21, p. 46).

But whatever may be the position in any municipal system at any given time, once an international agreement or convention or treaty comes before this Court, then the considerations which, in my opinion, are applicable to the problem, are completely different.

The difficulties in applying public policy (ordre public) to treaties and conventions were not underestimated by the Swedish Government. This appears particularly in Sweden's Rejoinder to the Netherlands Reply. The latter had advanced what are, in my opinion, powerful arguments against ordre public being invoked against State conventions on conflict of laws. No useful purpose can, I think, be served by referring to the learned authors quoted by each side to support their respective submissions. On the one hand Sweden claims that practically all authors on conflict of laws support their contention that ordre public (public policy) can override— or is excepted from—private law conventions, whilst the Netherlands contend the position is the reverse. It seems to me that Sweden felt obliged in its Rejoinder to meet the force of the observations of Wolff (Das internationale Privatrecht Deutschlands, p. 70) and Melchior (Grundlagen, p. 359), quoted in the Netherlands Reply. These observations are, in my opinion, of such persuasive force that they should be quoted in full:

"Lewald rightly emphasizes the dangers that arise, once ordre public is upheld in respect of State conventions. This would enable any State practically to restrict the application of the convention [p 125] ad libitum and, in such manner, to divest the convention of practically its entire value." (Wolff, l. c.)

"In my opinion it should be held, in case of doubt, that within the realm of State conventions on conflict of law, application of ordre public cannot be allowed. Normally the States that are parties to the international conventions will intend to create obligations of an equable and predictable character. If, however, one admits exceptions by virtue of ordre public, one must interfere considerably with the State convention, and this in a manner that can hardly be foreseen on contracting, since ordre public is less clearly defined than other conflict principles. And if one is to permit the courts to apply ordre public within the realm of State conventions, one must necessarily also approve such ulterior laws of a contracting State as undermine the convention in the name of ordre public." (Melchior, l.c.)

Whilst not retreating from the position it had taken up in its Counter-Memorial, Sweden in its Rejoinder presented its argument somewhat differently and within limits which, no doubt, it thought were less susceptible to attack. Having stated the issue as follows:

"The issue is whether the Swedish Government has been guilty of a breach of the 1902 Convention in applying to a Dutch child its law relating to the protection of children, in spite of the Dutch law relating to guardianship which is recognized as being applicable to that child",

the Swedish case went on to say that the law for the protection of children, being part of the public law, is applicable throughout the territory to any foreign child there; that no national or foreign law can stand in the way of its application, and that the 1902 Convention was in no way intended to alter this situation.

Rules of public (or of administrative) law are, it was submitted by it, absolutely mandatory.

It seems unnecessary to argue that if a domestic law has been validly passed which, either expressly or by necessary implication, is made clearly to apply, in terms obligatory upon the judicial and administrative organs of that country, to all persons or things within the territorial limits of a sovereign and independent State, the mandatory nature of the law upon all persons, foreigners or nationals, within the territorial limits of the State must, within its municipal system, be observed by those judicial and administrative organs. Indeed, assuming the constitutionality and validity of the Act within the domestic legal system of the State concerned, it is competent for a State party to any treaty or convention to pass a law binding on its own authorities to the effect that, notwithstanding anything in the treaty or convention, certain provisions thereof [p 126] binding on that State shall not apply, or to legislate in terms clearly inconsistent with, and intending to override, the terms of an existing treaty (cf. Sanchez v. United States, U.S. Supreme Court, Reports, Vol. 216, at p. 167). Whether described as mandatory or otherwise, public or otherwise, that law would have full force and effect within the territorial limits of the State in question. But that in no way would be relevant to the question whether that legislation—or an act done pursuant to it—is or is not in breach of or incompatible with obligations binding upon the State by virtue of a treaty or convention.

The argument of the Swedish Government on this aspect, as stated in its Rejoinder and as applied to this case, may be stated thus:

(1) There is a distinction between public policy and public law as a justification for the application of the lex fori.

(2) This is more than a difference in legal approach.

(3) Public policy may be relied upon as a ground for excluding foreign law otherwise applicable and for applying the territorial law, by way of exception.

(4) On the other hand, the obligatory rules of public law are normally and mandatorily applicable to all those resident in the territory, regardless of any foreign law whatsoever.

It is to be observed that Sweden's case is that, whereas "public policy" may be invoked by way of exception, the obligatory rules of "public law" apply to all resident in the territory regardless of any foreign law whatever, whether arising under convention or treaty or otherwise; "public law" does not even admit the principle of the applicability of the foreign law. But if either "public policy" or "public law" may be invoked in respect of the present Convention, it is, I think, clear—however the argument is presented—that this may only be done on the basis of an implied reservation from or exception to the Convention. In my opinion such a reservation should not be implied in the absence of clear necessity that it must be so implied in order to give effect to the intentions of the parties.

What is the character or definition of a "public law"? Opinions are varied. There is no agreement.

In a wide sense, legislative laws are often conveniently categorized as public or private, the former being of general application, directed to the organization of society and applicable to all within the domain of the State concerned, the latter rather directed to special interests of individuals, etc., as distinct from society as a whole.

But "public law", in the context of the present dispute, needs to be more definitively indicated. The Rejoinder of Sweden left me in [p 127] some doubt as to whether the concept of "public law" was claimed: to be part of, or separate from, that of "public policy". In Sweden's-final submissions this is still somewhat unclear. But whether it is one or the other, it is reasonably clear that "public law", as the term is used by Sweden, is a law which by its terms applies to nationals and foreigners alike within the territorial limits of a State, and which is made obligatory upon all persons and upon all instrumentalities called upon to enforce it. It includes rules of constitutional law, of procedure and of administrative law.

"Public law" is described, if not defined, by others sometimes in. similar, sometimes in different, senses. To some it is synonymous with a "social law". Others give it the specific role of providing for the political structure of a State and include within it the Constitution of a country, electoral laws, criminal laws and certain administrative and fiscal laws. In this context the field occupied by "public law" is different from that occupied by "public policy". The two are seen by some as separate concepts whose domains may touch, but never overlap.

Others consider "public law" as a special branch of the law whose boundaries are fairly precise and which may be defined "as the collection of rules—legislative, departmental and Judge-made— which fix, or ought to fix, the relation between the authorities and the different administrative organizations or public authorities as well as with one another as with individuals. It comprises, therefore, constitutional and administrative law." (Droit public and ordre public, Transactions of Grotius Society, 1929, Vol. 15, pp. 83 et seq.)

"Public law", so described, seems to me not only to overlap but to occupy a substantial part of the area generally considered as-within that of "public policy". It presumably would include a public law of the kind indicated by Sweden, but it clearly enough includes very many others. I would think that "public law" in the sense used by Sweden is either part of the concept of "public policy" or, if a separate concept, occupies with it a substantial area of the same field. It is not, however, for the purpose of this case necessary in my opinion to determine this one way or the other. For, in either case, in whatever words the argument is put, what the Court is being asked to do is to read into the Convention a reservation—in other words, to imply a clause or proviso—excepting from the terms and operation of the Convention all laws of "public policy" and/or "public law". On this basis, the arguments presented by Sweden on each stand or fall together, for that on the one is, in my view, indistinguishable in principle from that on the other. [p 128]

If, indeed, "public law" is to be considered as a concept separate and distinct from "public policy" and in no way part of it, the argument for Sweden is, in my judgment, clearly unsound (cf. Polish Nationals in Danzig, P.C.I.J., Series A/B, No. 44, p. 24). For, irrespective of anything which might appear in this (or any) Convention dealing with conflicts of laws, it would be permissible and consistent with the Convention for some contracting State to pass a "public law" of the character indicated by Sweden which provided, notwithstanding anything to the contrary contained in any such convention, that certain provisions of the "public law" should take effect. Even suggested safeguards to keep the invocation of the reservation of "public policy" within reasonable or governable limits could hardly find a place where what is done under a reservation, exception or exclusion of "public law" may be done "regardless of any foreign law whatsoever".

I cannot regard a proposition that could lead to such results as sound (cf. Advisory Opinion concerning the Polish postal service in Danzig, P.C.I.J., Series B, No. 11, pp. 37 and 39).

Moreover, Sweden appears to have disregarded or paid insufficient attention to the fact that measures which might be made the subject of "public" laws in some countries are in others governed by the Civil Code.

I think the issue in this case would have been clearer had less attention been directed to "ordre public" (public policy) and "public law", and more to consideration of the subject-matter, purpose and scope and operation of the Convention having regard to the terms in which it was drafted and agreed to.

It is understandable however that the latter received less specific attention than the former since the submissions in favour of a reservation or exclusion of "public policy" or "public law" depend on considerations which lie largely outside the terms of the Convention. Assuming such a reservation or exclusion exists—which it was the aim of the Swedish case to establish—the terms of the Convention in this particular case were, for the purposes of the argument, of secondary importance. On the submissions of Sweden, all that is necessary to be established is that the law under which the disputed action is taken is one of "public policy" or of "public law"; that, in the absence of any allegation of denial of justice, concludes the matter, whatever may be the terms of the Convention.

Public policy is principally and primarily a concept of municipal law. When, however, an international obligation is involved upon which this Court is called upon to pronounce, as in the present case, we are in a different field altogether. Treaty and convention obligations, whatever they are, must be faithfully observed. The provisions of municipal law cannot prevail over those of a treaty or [p 129] convention (Greco-Bulgarian Communities, P.C.I.J., Series B, No. 17, p. 32).

It should be repeated that what the Court is here being asked to do is to read into, or in legal terms to imply, a reservation—in what precise terms has never been made clear—excepting from the operation of the Convention all laws of contracting States which fall within "public policy" or within "public laws". The strongest of cases would have to be made out to justify the Court in doing so, for to do so permits States to determine for themselves the extent of their obligations under the Convention. It would permit this to be done even in derogation of what otherwise are obligations the Convention imposes. This could reduce the Convention to a shell. It is difficult to imagine what value the Convention in those circumstances would have, or why, having regard to the problem with which it sought to deal, it was ever entered into.

Before the Court would be justified in implying a clause of reservation, it would need to be quite satisfied that this was essential to be done in order to preserve the intention of the Parties. For otherwise there would be imposed a new and different agreement upon the contracting States.
No evidence was forthcoming that this was the intention. Reliance, however, was placed upon a so-called principle that such a reservation or exclusion must be read into conventions dealing with private law. Put in another way, "public policy" operates retroactively, and even definitively acquired rights cannot be invoked against such a Convention.

It was open to the Parties expressly to stipulate such a reservation. Indeed in Sweden's case it was urged that a reservation of public policy is expressly stipulated in almost all treaties and those that do not do so are the exceptions. The Parties to the present Convention did not so stipulate. It is not I think for the Court to speculate as to why they did not. The minds of the drafters were clearly directed during the preparatory work to the question whether some clause to that effect should or should not be included. They deliberately refrained from including one. It would in my opinion be going against all rules of construction as I understand them to imply such a reservation now.

It is, I think, proper at this point to offer some general observations on the exercise of having recourse to preparatory work in seeking the proper interpretation to be accorded to treaties and conventions. Recourse to preparatory work of treaties or conventions may, in certain cases, be necessary. But whenever it is permissible it should, I think, be done with caution and restraint. For there is always the danger that, instead of interpreting the relevant treaty or [p 130] convention, one will find oneself tending to interpret the preparatory work and then transferring that interpretation across to the treaty or convention which is the sole subject of interpretation.

The case before us presents, in my view, an example of this possibility. Some find nothing in the preparatory work of any real value, one way or the other. Others claim that it clearly supports the view that "public policy" is excepted from the Convention. Others are equally satisfied that the preparatory work just as clearly supports the opposite view. For my part, I would think this somewhat unsafe ground upon which to base any reasoning.

Those who contend that such a reservation should be implied are obliged, I think, to concede that—subject to any review by this Court—it is at the discretion of States, applying within their territorial limits their own ideas of public policy, to determine to what extent it will permit the Convention to operate. It is suggested that a State invoking the reservation is under some kind of duty to show that its public policy has been applied reasonably—whatever this in the present context means—and in good faith. The State should be ready to submit its actions to examination. In cases of dispute it is further urged that the acts of the States are subject to review by this Court provided it has jurisdiction. But what if the Court in any given case has not jurisdiction? Moreover, if we are to determine, as we must, the meaning of the Convention at the time it was entered into—1902—any consideration that in event of dispute this Court would be available as a reviewing tribunal, to mitigate the consequences of, or control the unreasonable use by a contracting State of, the reservation, is irrelevant. And what is to be the test or standard of reasonableness that is to be applied? (Cf. Serbian Loans, P.C.I.J., Series A, Nos. 20/21, p. 46.)

Were such a reservation implied it would be a reservation of an indefinable character and there would be little left in any legal sense of any obligations under the Convention. For their content would be variable, quite indefinite, quite unpredictable, depending on the will of different parties. I find it difficult to understand legal obligations so undefined and indefinite.

In my opinion, the submissions of Sweden on these issues are without substance.

The views which I have earlier expressed on the proper interpretation of the Convention reject any reservation, exception or exclusion of "public policy" or "public law".

In this case—and the decision must, of course, be limited to this case in its surrounding facts and circumstances—the result at which [p 131] I arrive is the same as that reached by those who support such a reservation, exception or exclusion.

But the grounds on which we reach our conclusion are, in my judgment, not immaterial. They represent not mere methods of approach; they are fundamentally different.

A reservation or exception of "public policy" would, in my judgment, set the Convention at large. What is given by one hand may be taken away by the other. Obligations clearly enough intended thereunder to be imposed upon all contracting States would have no constant—if, indeed, any predictable—meaning. Such obligations could never be defined or ascertainable in terms reciprocally understood and binding on the parties.

The judgment of the Court, however, in which I have concurred, in my view leaves the Convention unimpaired and intact. It preserves within the domain of the administration of guardianship, to which its scope and operation is limited, the full force and integrity of its provisions and of the obligations thereunder undertaken by the Contracting Parties.

(Signed) Percy Spender.

[p 132]
DISSENTING OPINION OF JUDGE WINIARSKI

[Translation ]

To my great regret, I am unable to concur in the Judgment and I believe I must state as briefly as possible the reasons for my dissent.

The Court is confronted with a specific and particularized case which I have every reason to regard as exceptional. In order to ascertain whether the Submissions of the applicant Party are well-founded in law, the Court must, as it has always done, carefully scrutinize the facts which are at the origin of, and characterize, the disputed situation; it must examine all the facts in the case, including the national laws of the Parties and their application, in order to decide whether these laws, as applied by the national authorities, are or are not inconsistent with the international obligations of the State.

The decision of the Swedish administrative authorities of April 26th, 1954, is based on Article 22 (a) of the Swedish Law of 1924 on the protection of children and young persons. Paragraphs (b), (c) and (d) contemplate much more serious cases of juvenile delinquency and pre-delinquency. On the other hand, paragraph (a) refers to the case of a "child under sixteen who, in the family home, is ill-treated or exposed to serious neglect or any other danger affecting its physical or mental health". Since the documents in the case do not disclose ill-treatment or serious neglect in respect of the infant, it follows that the only reason why the Child Welfare Board took the infant in charge is constituted by "the danger affecting its physical or mental health". Indeed, the same reason is to be found in the decision of the Supreme Administrative Court of October 5th, 1954: "It is obvious that the removal of the infant to a wholly new environment would at present seriously endanger her mental health."

1. The administrative decision of April 26th, 1954, was taken during the brief period of the Swedish guardianship organized on the application of the father of the infant. It is common ground that the Swedish administrative authorities acted correctly in applying the measure of protective upbringing at the time to the infant; the same must be held with regard to the maintenance of the measure during the confused period of transition when, along with the Swedish guardianship, there existed the guardianship of the father-guardian organized in the Netherlands.

But the situation changed entirely following two judicial decisions: on August 5th, 1954, the Dutch Court of First Instance of Dordrecht released the father from the guardianship, appointed a woman guardian and "orders the said infant to be handed over to the said guardian"; on September 16th of the same year, the Swe-[p 133]dish Court of First Instance of Norrkoping, having regard to the Dordrecht judgment, "orders that the guardianship ... shall cease to be regulated in conformity with Swedish law"; it thus made way for guardianship within the meaning of the 1902 Convention.

From that time onwards, the position is clear: by the concurring judicial decision of Dordrecht and Norrkoping, the second following the first, the guardianship of the infant is governed by Dutch law in accordance with the Convention.

2. Article 1 of the Convention should here be recalled:

"The guardianship of an infant shall be governed by the national law of the infant",

as well as Article 6, paragraph 1:

"The administration of a guardianship extends to the person and to all the property of the infant, wherever situated."

Paragraph 2 provides that this rule may admit of an exception in respect of a certain type of immovable property; no exception, however, is provided with regard to the person. No effort of interpretation could make these clear provisions say what they do not say. The Convention was open only to States represented at the Third Conference of Private International Law and the members of this little family of nations who are bound by this Convention have, with regard to guardianship, a very old common fund of ideas and principles which was formulated in Roman law: Tutor non rebus dumtaxat, sed et moribus pupilli praeponitur. And furthermore: Personae non rei vel causae datur tutor.

It should also be noted that Article 6, paragraph 1, does not constitute a rule regarding conflicts of laws. It contains a common substantive rule, in accordance with the intention of the contracting States as expressed in the preamble:

"Desiring to lay down common provisions to govern the guardianship of infants."

3. The legality of the Dutch guardianship is not disputed by Sweden; however, it is respected only as regards the administration of the property and legal representation. On the other hand, the fact is—as has been recognized by the Respondent—that the Dutch guardian is unable to obtain the delivery of the infant to which she is undoubtedly entitled by virtue of Dutch law which is binding on both Parties by virtue of the Convention; her right is confronted by the Swedish administrative measure, taken and maintained by an authority which, as has been said, holds "a portion of the public power". The Respondent has recognized in its Counter-Memorial that the measure taken at Norrkoping "constitutes an obstacle" to the exercise of the right of custody by the regularly instituted guardian. The concurring judicial decisions [p 134] of the two countries cannot be executed by reason of the Swedish administration with regard to the essential question of rights relating to the person : the right to custody, by virtue of which the guardian may determine where she shall reside with the ward or may send her elsewhere, and necessarily the right of education as well.

However, although the taking in charge of the infant for protective upbringing was legitimate at the time when it was applied, its legality may be challenged from the moment when: (i) the Swedish Court, informed of the institution of the Dutch guardianship, recognized this guardianship as regularly instituted and cancelled the Swedish guardianship, and (2) the guardian asked for delivery of the infant.

It might possibly be argued that if the Swedish authorities had wished to find a provision in the Convention to justify the measure taken, it could have sought it in Article 7 which is in the following terms:

"Pending the institution of a guardianship, and in all cases of urgency, measures required for the protection of the person and interests of a foreign infant may be taken by the local authorities."

However, the Swedish Government has not relied on Article 7. Indeed, the character of the measure as maintained for four and a half years excludes any idea of urgency, even though protective upbringing could otherwise be regarded as fulfilling the conditions laid down in Article 7.

4. Like the Court, I do not regard the Swedish administrative measure as a rival guardianship constituting a direct and deliberate violation of the Convention; I am however unable to regard it as constituting no more than a certain temporary restriction on the exercise by the guardian of her right—and duty—of custody and education. The measure encroaches deeply upon the attributes of national guardianship which are guaranteed by the Convention and in the circumstances of the present case, is not compatible with the Convention.

The infant was nine years old when she was taken in charge by the Swedish administrative authorities. As the Court is giving its decision in the present case, she is thirteen and a half years old. The measure has therefore already lasted four and a half years. There is nothing in the file to indicate that the ending of the measure is in imminent contemplation by the authorities which took it; the last decision in the matter, in which the Supreme Administrative Court briefly found that the infant is still in need of protective upbringing, is dated February 26th, 1956; it was therefore taken two years and eight months ago. In other words, protective upbringing is being applied to the infant at an age when the measure must necessarily and irrevocably impart to the child a definitive [p 135] personal, family, professional and national orientation. That is what constitutes the essence of guardianship, the principal duty and right of the guardian.

5. I am unable to content myself with the finding that the Convention was designed to settle conflicts of civil laws, that the case referred to the Court is not a case of a conflict of laws, and that the measure maintained by the Swedish authorities cannot therefore be regarded as incompatible with Sweden's international obligations.

In the first place, I would recall what I have just said, that Article 6, paragraph I, does not constitute a rule regarding conflicts of laws but rather a common substantive rule. Furthermore, I find it difficult to agree that the subject-matter of the Swedish Law is outside the subject of the Convention and that, whatever the Swedish authorities may do in pursuance of that Law, cannot in any way contravene the Convention; for the common factor in the Law and the Convention is, in the final analysis, the infant. It cannot be asserted at the very outset that since a law has a different aim or purpose, it cannot be inconsistent with the Convention when, in fact, the law paralyzes the effects of the Convention and renders its execution impossible. I am not referring to cases in which a State, without violating a treaty directly, holds it in check by indirect means of enacting or utilizing laws and regulations which appear to have a different purpose but which in practice make the provisions of a treaty inoperative. The Swedish Law of Ï924 is no doubt not incompatible as such with the 1902 Convention; but our case shows that the manner in which the law is applied in a specific case may bring it into conflict with the Convention.

6. Of course the effect of the Convention cannot be to confer upon the infant or the foreign guardian immunity from the whole of the local legislation. Without referring to police and security laws, laws relating to the entry and residence of foreigners, foreign exchange regulations, etc., which are not in any way related to guardianship and which extend indiscriminately to all persons who find themselves, even briefly, in the territory of the State, there is no doubt that certain legislative provisions considered to be in the public interest in respect of infants may be applicable to foreign infants residing in the country. Like the Court, I agree that the Swedish Law of 1924 belongs to this category of laws. But the conditions in which these laws are applied to foreign infants are-not a matter of indifference and it is the application of these laws which makes it possible to decide whether they are in conformity with the international obligations of the State.

Some of the decisions of the Supreme Court of the Netherlands, which have been cited in the proceedings emphasize one of these conditions which is directly relevant to the case before this Court. Those decisions stress the necessity of protecting society "whenever [p 136] children living within its territory are endangered by the acts of the parents"; "the interest which society has that children shall not grow up in Holland in such a way as to be threatened with moral or physical harm." Vollmar carefully specifies and repeats: children residing in the country, a situation which may arise here.

But it is one thing to apply the administrative measure as long as the infant resides in the country for one reason or another, for example, the will of the father or of the guardian; it is a different thing to retain the infant in the country in order to maintain the measure. One example will help to illustrate the problem.

Let us suppose that the law of the State of residence can overrule the lex tutelae by making the infant subject to compulsory primary education until an age that is greater than the one provided in his national law, i.e. sixteen years instead of fourteen. The infant has just reached his fourteenth birthday. If the guardian sought to return with his ward to his national country because primary education there is not compulsory beyond the age of fourteen and the ward could therefore begin to work, the local authorities would certainly not be entitled to prevent the departure of the infant in order to make him enjoy two further years of the compulsory education already initiated; they could not legitimately prevent them from changing their residence.

It is abundantly clear from the file that the Swedish administrative authorities are not applying the measure of protective upbringing to the infant because she has her residence in Sweden but that they are retaining this foreigner in Sweden in order to subject her to protective upbringing. This manner of applying the law must be held to be clearly incompatible with the obligations assumed by Sweden under the Convention.
It appears to be likewise clear from the file that the measure in question is not based upon the supposed insufficiency of the Dutch guardianship (Article 22 a) in case the infant were handed over to her guardian, with whom she already has her legal domicile. Indeed, Dutch guardianship, functioning under the effective control of the national authorities, does not provide fewer guarantees with regard to the protection of the interests of the infant than Swedish protective education; the question of the application of Swedish protective education by the Dutch authorities or vice versa clearly does not arise. The Netherlands, moreover, possess legislation on the protection of children and young persons that is generally similar to that of Sweden.

7. It should be noted that in the Swedish judicial decisions concerning the infant, the question of ordre public never arose. The Judgment of the Court of Norrkoping which cancelled the regis-tration of the Swedish guardianship and maintained the god man referred to the interests of the infant; the Court of Appeal of Göta [p 137] which confirmed the decision of the Court of First Instance considered the interests of the infant and reached its decision "having regard, in particular, to the close links between Elisabeth and Sweden". The Supreme Court, which removed the last traces of the Swedish guardianship by releasing the god man from his duties, merely held that the case could not be reduced to one of major necessity as the Court of First Instance had considered.

The interest of the infant is the ratio legis, the purpose and the aim of the legislative or treaty provision. The Swedish courts, which alone were entitled to do so, have not applied the exception of ordre public. This Court cannot substitute itself for a national court in order to decide what is required by the ordre public of the country of that court.

In the Rejoinder, the Respondent partially modified its position and contended that the Applicant wrongly referred to ordre public in the specific meaning of the term in private international law.

"Nothing of the sort is involved in the present case... The Swedish case is that the law for the protection of children, being part of the public law, is applicable throughout the territory and to any foreign child there, that no national or foreign law relating to the status of the child can stand in the way of its application, and that the 1902 Convention was in no way intended to alter this situation. The Government of the Netherlands has clearly lost sight of this absolutely mandatory character of the rules of public law, or of administrative law, which perhaps the Swedish Government itself has failed sufficiently to stress."

In itself, the distinction is well taken. With regard to the contention, I shall revert to it before I conclude.

8. Although the 1902 Convention regulates matters of private law, it is a convention of public international law and like all international conventions, creates rights and duties in respect of the States which entered into it. The Convention is binding upon the States, of which the courts and administrative authorities are the organs. By signing the Convention, the contracting States could regard it as certain that the decisions of their courts would be in conformity with the rules laid down by the Convention and that execution of these decisions would be effectively secured by the State of the courts concerned.
It is natural that the Government of the Netherlands should have adopted the cause of its nationals for it thus defends its own right which is guaranteed by the 1902 Convention and which has been disregarded by the Swedish authorities.

By the Convention, the Netherlands have acquired the right that the guardianship of infants shall be governed by the national law of the infant and in particular that the right relating to the person, right of custody and education should be treated inseparably from guardianship. The Netherlands have acquired this right, [p 138] not vis-à-vis the Swedish Courts but vis-à-vis the Swedish State which must prevent the manner in which its national law is applied by its administrative organs from rendering inoperative the decision which it has taken, in accordance with the Convention, through its Courts. The decisions of the Courts were in conformity with the Convention; in the event of the administrative authorities hesitating between two possible manners of applying the law, the State must prefer the manner which does not bring it into conflict with its international obligations.

9. The solution which has my preference does not involve either an interpretation or a criticism of the Swedish Law. In one of its first judgments, the Permanent Court adopted an attitude in this connection from which it never subsequently departed:

"The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court's giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Convention." (Case concerning certain German Interests in Polish Upper Silesia, Series A, No. 7, p. 19.)

With regard to the relationship between an international undertaking and the municipal law, the Permanent Court expressed its view on several occasions:

"It is a generally accepted principle of international law that in the relations between Powers who are contracting parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty." (Greco-Bulgarian Communities, Series B, No. 17, p. 32.)

And again:

"It is certain that France cannot rely on her own legislation to limit the scope of her international obligations." (Free Zones, A/B, No. 46, p. 167.)

It has been argued before the Court that the Swedish Law is an enactment of public law. In this connection, the Permanent Court has expressed the following view:

"A State cannot adduce as against another State its Constitution with a view to evading obligations incumbent upon it under international law or treaties in force." (Treatment of Polish Nationals in Danzig, Series A/B, No. 44, p. 24.)

The Constitution is a classic example of public law.
I therefore reach the conclusion that the Court ought to have adopted the first Submission of the Government of the Netherlands.

The second Submission of the Government of the Netherlands merely constitutes a legal consequence of the first Submission. The Government which has created an irregular situation by its administrative measure is under an obligation to end the measure.

(Signed) B. Winiarsky.

[p 139]
DISSENTING OPINION OF JUDGE CORDOVA

Much to my regret, I have to disagree with both the reasoning and the conclusion reached by the Court in this case.

The judicial authorities of Sweden set up the guardianship of Marie Elisabeth Boll, a minor living in Sweden but of Dutch nationality, on March 18th, 1954. This guardianship, according to Swedish law, only refers to the administration of the interests of the infant, but does not include the custody and control of her person. The same authorities put an end to this guardianship on July 2nd, 1955, when the Supreme Court of Sweden discharged finally the god man appointed by the inferior judicial authorities.

The Swedish administrative authorities, on April 26th, 1954, applying Article 22 (a) of the Swedish Law for the Protection of Children and Young Persons (Child Welfare Law) of June 6th, 1924, put Marie Elisabeth Boll under the system called skyddsufpfostran, which, according to both Agencies, should be translated into English as "protective upbringing", and as "education protectrice" into French.

This protective measure—which the Swedish authorities still maintain after four and a half years—according to the Swedish Law gives the custody and control of the infant to the Swedish Infants' Bureau.

On their side, the judicial authorities in Holland, applying the Dutch laws, set up the guardianship of the same infant, and on August 5th, 1954, appointed Mrs. Catharina Postema as her guardian. According to Dutch law, the guardian has the right, as well as the duty, to take custody and control of the infant.

Neither the judicial authorities of Sweden which first set up and afterwards terminated the guardianship, nor the administrative ones which instituted the protective upbringing, in the whole of their proceedings, made the slightest reference to the Convention governing the Guardianship of Infants, signed by their country and Holland on June 12th, 1902, notwithstanding the fact that this Convention was called to their attention (para. 5, Swedish Counter-Memorial) .

In putting an end to their own guardianship, the Swedish authorities applied their own law of 1904 (Counter-Memorial, Annex D a). They have, therefore, recognized the Dutch guardian, Mrs. Catharina Postema, with full rights to the administration of the infant's interests, but in fact made it impossible for her to exercise her right of custody and control of the infant's person on account of the infant being subject to the protective upbringing.

Counsel for Sweden tried to justify this disregard of the Convention—among others of lesser importance with which I do not [p 140] consider it necessary to deal here—on the main contention that the Convention of 1902 should not be considered as applicable, because the Swedish Law of Protective Upbringing of 1924, being a public law and relating to the public order of the State, may be applied to all infants, Swedish and foreign alike, notwithstanding the provisions of the Convention.
The decision of the Court, although based on different grounds, reaches the same conclusion that the Convention of 1902 is not applicable to the present case.

Without rejecting expressly the ordre public theory relied upon by Sweden, the Decision is predicated upon the theory that the Law for the Protection of Children and Young Persons of 1924—under the authority of which the "protective upbringing" was instituted and is still maintained—having a different aim and scope than that of the Convention does not violate the provisions of the latter, even though, in fact, it makes it impossible for the Dutch guardian to fully exercise her rights and fulfil her duties as derived from the Dutch laws and the Convention itself, in so far as it denies her the custody and control of the person of Marie Elisabeth Boll.

The two theories, that of ordre public and public law and that of the different aim and scope, have the same effect with regard to a Convention; they both make it possible for the State, party to the Treaty, to avoid the fulfilment of its obligations as prescribed in the international contract by relying on its own laws. The theory upheld by the Court is nothing less than the same theory of ordre public under a different guise; but perhaps still more dangerous in its implications. It is true that the decision does not require of the national law to be a public law or one related to public order, but, as far as giving to a State signatory of a Convention the possibility of infringing its provisions and its natural, logical and expected legal consequences, it opens the door still wider than the theory of ordre public to the possibility of raising the national laws as exception against the binding force of treaties.

In my opinion there is no national law, whatever its classification might be, either common or public or with different aim and scope, which in the face of a treaty dealing with the same subject-matter can juridically claim priority in its application. Laws of procedure, substantive criminal law, political or fiscal legislation, passport regulations, and even laws related to the sovereignty of a State over its own territory, are sometimes put aside and suspended by treaty provisions and, what is more—in some cases—by international law and by international courtesy alone, even in the absence of any treaty stipulation. Such is the case of the regime of capitulations, of diplomatic criminal immunities and fiscal exemptions, and of transfer of territory by treaty provisions. In all these cases the stipulations of a treaty or convention are binding upon the parties, notwithstanding the public character of their affected national legislations. Therefore, in my opinion, there is not much juridical [p 141] value in the proposition that or Are -public, or a law with a scope and aim different from that of a treaty, can, by themselves alone, be opposed to the application of a convention or treaty, thus making negatory its intended juridical and practical effects. It seems clear to me that the legislation of a State party to a treaty dealing specifically with a subject-matter otherwise normally regulated by its own laws has to yield before the provisions of such treaty.

It has been said that treaties and conventions cannot be set up as a barrier to the power to legislate in the future of a State party to such international contract. The argument is not valid, because treaties and conventions usually may be denounced, leaving the parties in complete liberty to change again their legislative principles and laws; and, even when, as in certain cases of transfer of territory, a treaty may not be considered as subject to denunciation, this restriction upon the legislative power which results for a State party to such treaty should be deemed as a consequence agreed upon of its own will by such State. It has also been argued that there is a well-known principle of interpretation of treaties dealing with conflicts of national laws, the so-called Convention of Private International Law, which gives to the parties to such treaties the right to disregard its provisions relying on their own public laws or on their laws relating to public order. I do not believe that there is such principle of Public International Law—the only law between nations; on the contrary, I have always known the time-honoured and basic principle of pacta sunt servanda, which makes it impossible for the States to be released by their own unilateral decision from their obligations according to a treaty which they have signed.

The place to be given to the national laws of ordre public and to those with a different scope and aim, whatever their classification might be, depends upon the interpretation of the treaty; but when such interpretation clearly includes within its provisions a subject-matter otherwise normally regulated by those kinds of national laws, the provisions of the treaty should be considered as having priority over them. To decide differently would mean complete anarchy in the relations of States, would leave the binding force of treaties in the unilateral hands of the legislative, judicial and administrative authorities of the States parties to such treaties and, finally, would completely destroy the indispensable hierarchy of the laws of the States and that of the international legislation.

An international jurisdiction, in the interpretation of a treaty or convention, must determine the extent of the consent of the parties to such instrument. In so doing it must take into consideration the real will of the signatory States as determined by the text of the treaty itself, by the antecedents of the international contract, or by any other means at its disposal. [p 142]

I agree with the Court in that the parties to the Convention of 1902 had mainly in mind questions of the conflict of laws with regard to guardianship; and also that they implicitly excluded generally all national laws, either public or common, dealing with subject-matters different from that of guardianship, like criminal laws, those organizing the judiciary and the political structure of the government, passports, and even perhaps the correction of delinquent infants. But I do believe that all matters relating to the guardianship of infants, including all the legal as well as practical effects of guardianship, such as the custody and control of minors, measures relating to the protection and welfare of infants, should be considered as falling within the terms of the Convention, although they might be dealt with by national public laws, laws relating to the public order of the State or by laws with a different aim and scope from that of guardianship. The decision of the Court, although putting aside the theory of or ire public, and basing its reasoning on the theory of the aim and scope differing from that of the treaty, nevertheless tries to interpret the Convention of 1902, stating that it was only intended to regulate the conflicts of national legislations regarding guardianship, a subject-matter alien and completely different from the protection of children and young persons, which is the only aim and scope of the Swedish Law of June 6th, 1924. With this basic proposition, I cannot agree.

In my way of thinking, the 1924 Swedish Law—at least as far as its Article 22 (a) is concerned—is far from having an aim and scope different from that of the Convention.

In substance, guardianship and the laws for the protection of children are remarkably the same, and their means of realizing their purpose is identical: the custody and control of the person of the minor. As far as the intention of both is concerned, the guardianship dealt with in the Convention and the "protective upbringing" have one and the same objective: the protection of infants. Guardianship fulfils its purpose by giving the custody and control of the child to the individual parent or guardian, and only when this method of protection fails does this system of State protection intervene by means of the "protective upbringing" and other similar measures, taking away from the parent or guardian such custody and control.

In spite of the Netherlands' own admission and Sweden's allegation to the contrary, it is my understanding that Article 7 of the Convention clearly comprehends the protective measures included in Article 22 (a) of the Swedish Law of 1924, when it refers to the possibility of the local authorities to take "in all cases of urgency" measures "required for the protection of the person" of the infant. In order to prove the contrary, it has been argued that the national laws of all parties to the Convention, dealing with the protection of infants, were enacted a long time [p 143] after the signing of the Convention, but that is not the case, at least with regard to the two States before the Court, the Netherlands and Sweden. I believe that the reference to protective measures included in Article 7 was not accidental and meaningless. Its inclusion strongly suggests that the necessity to introduce a provision making it possible for the States of residence to apply measures of protection to the foreign infant, according to their present or future legislations, in "cases of urgency", was clearly present in the minds of the framers of the Convention. This is the natural and, perhaps, the only reasonable interpretation of Article 7. Moreover, although the Dutch law introducing the system of protection of infants was enacted after the year 1902, such legislation was already contemplated and prepared since 1901, and Sweden enacted its own law regarding protective upbringing in the year 1902, which makes it evident that the Netherlands and Sweden had already in mind the application of protective measures. It seems to me that the framers of the 1902 Convention, seeking only the good of the infants, although mainly referring to guardianship, tried to organize the adequate application of the different protective methods of the signatory States, guardianship as well as any other protective measures. They tried to make compatible the institution of national guardianship with the local protective legislations and measures by giving priority to the former (Articles 1 and 6) over the latter (Article 7).

I hold the above view in spite of the position of both Parties to the litigation before the Court which, as I have pointed out, believe that Article 7 of the Convention is not applicable. If the 1902 Convention had been a bilateral treaty, their common interpretation with regard to one of its Articles—Article 7—would have been enough for me to consider such a construction as final; but the 1902 Convention being a multilateral treaty, it is possible, I believe, to hold a different opinion from that of the two Parties before the Court with reference to the applicability of its Articles.

Since according to the laws of the Netherlands, this right of custody and control belongs to the guardian, there is sufficient legal reason to decide that Catharina Postema, according to the Convention itself, may rightfully claim the custody and control over Marie Elisabeth Boll, the basic principle of the Convention being that guardianship shall be governed by the national law of the infant (Articles 1, 2, 4 and 8 of the Convention). That is undoubtedly the reason why the Netherlands Court of First Instance of Dordrecht, August 5th, 1954, when appointing Madame Postema as guardian, ordered at the same time that the girl should be handed over to her. But if this were not enough, Article 6 of the Convention will take away the slightest doubt when it says: "the administration of the guardian extends to the person..." of the infant. [p 144]

Therefore, I feel safe in concluding that the Convention does regulate both the right to custody and control and the protective measures in general, including, of course, the protective measure called "protective upbringing" referred to in Article 22 (a) of the Law for the Protection of Children and Young Persons of June 6th, 1924. As a corollary it necessarily follows that the Convention should have been applied by the Court, and the case of Marie Elisabeth Boll should have been decided exclusively according to its terms. The task of the Court should thus have been very much simplified, and its decision should have been, in my opinion, the right one.

Even if the Swedish authorities, on April 26th, 1954, when they instituted the "protective upbringing", did not know about the Dutch nationality of the infant Boll, and even also if they did not take into account the terms of the 1902 Convention, I believe that the protective measure taken by them to put the Dutch girl under the regime of protective upbringing was a legal act according to the terms of the Convention. Thinking their action urgent, as the}' must necessarily have judged it, this measure is perfectly justified in the light of Article 7 of the Convention, which makes it possible for the local authorities to take, in "all urgent cases, the measures required for the protection ... of a foreign infant...". Therefore, the setting up of the protective measure does not constitute in itself a violation of the Convention. I go as far as to believe that the Swedish authorities seem to have been under a moral as well as a legal obligation to take such protective measure judging from the meagre knowledge the Court has of the real situation of the minor Boll.

It only remains to decide if, according also to the terms of the Convention, the maintenance of such protective measure can be considered compatible to the provisions of the Treaty of 1902. In my opinion this question should have been answered in the negative. An urgency of four and a half years is inconceivable, specially having, as I do, the understanding that the urgency contemplated in Article 7 of the Convention requires two elements, one of fact and the other a legal one. That is to say, a practical need of the infant as well as the lack of an efficient protection, either because the guardian has not yet been appointed or, if already appointed, does not or cannot act efficiently.

The practical need may extend for an indefinite period of time, but, once the aim of the Convention is fulfilled in the sense that the foreign infant can be considered as sufficiently protected according to the laws of its own nationality, the concept of urgency cannot any more apply; in the present case, as soon as Madame Postema showed herself legally and practically able to take charge of the infant Boll and to exercise her rights and duties as a guardian according to the Dutch laws. I cannot understand the object of Article 6 of the Convention in any other sense than to make obligatory for the local authorities, should they be judicial or adminis-[p 145]
trative, to release the foreign child to the custody and control of the guardian appointed in compliance with the national laws of the infant; therefore, only in the case that the child Boll will remain in Sweden after having been turned over to the Dutch guardian, and the future facts warrant again the State intervention in favour of the child and against the legally appointed guardian, shall the Swedish authorities be entitled—by their own laws and entirely independent of the Convention with which they had already complied—to set up a new "protective upbringing", but the provisional one now in existence should be at once discontinued.

I refuse to accept the idea that the Convention is not applicable in this case, and also the interpretation of the Swedish law of protective upbringing, as giving right to the State of residence to keep a foreign minor—in this case Marie Elisabeth Boll—indefinitely in its territory in order to impose upon her its protection by means of denying the release of the child to the legally appointed guardian —Madame Postema—which is the logical, juridical, intended and expected effect of Article 6 of the Convention.

The most strange effect of the law of protective upbringing, to keep a foreign child within the country of residence against the expressed will of the legally appointed foreign guardian, seems to me unwarranted and illegal according to the general principles of international law, even in the absence of a Convention as the one of 1902.

Such would be the case, for instance, of a so-called public law, or law of ordre public which would impose forced labour in the fields upon infants, native and foreign alike, in order to collect the needed crops for the community. This law would certainly have an aim and scope completely different from that of the Convention dealing with guardianship, but could one say that the foreign guardian cannot avoid such forced labour being imposed upon this foreign ward by taking him or her out of the country of residence? Could the local law impede the taking out of the country of the foreign infant because it is a public law or related to the public order, or because it has a different aim and scope than that of the Convention?

I would reach the same conclusion, I believe, even in the absence of any treaty or convention in the case of any national law different from the penal ones, which would have the effect of denying the right to a foreigner, adult or minor, to leave the country of residence.

From all that I have said, it is my considered opinion that the Second Final Conclusion of the Dutch Government, which the Agent for the Netherlands included in its Submissions of October 3rd last, that Sweden is under the obligation to end the protective upbringing, should have been granted by the Court.

(Signed) R. Cordova.

[p 146]
DISSENTING OPINION OF JUDGE "AD HOC" OFFERHAUS

[Translation]

I. In this case, which concerns the application of the Convention of 1902 on guardianship, the question is one of an infant of Dutch nationality, born on May 7th, 1945, in Sweden, the daughter of a father of Dutch nationality and of a mother Swedish by birth, who had acquired Dutch nationality by her marriage. The mother died on December 5th, 1953, and the father became, by operation of law, guardian of the infant, in virtue of his national law (Art. 378, B.W. Netherlands).

The Convention of 1902 governing the guardianship of infants is applicable in this case because according to its Article 9 it applies to the guardianship of infants nationals of one of the contracting States who have their habitual place of residence in the territory of another of those States.

The organization of the national guardianship in this case passed through various phases before reaching its present state. A deputy-guardian, in the person of M. Idema, was appointed only on June 2nd, 1954. Then, on August 5th, 1954, the Dordrecht Court relieved the father, Johannes Boll, of his functions as guardian, and appointed instead Mme Catharina Trijntje Postema, widow Idema, hereinafter called Mme Postema.

Meantime, in Sweden, the Swedish authorities had taken measures of "protective upbringing" which at once made apparent a conflict with the organization of the national guardianship. On May 5th, 1954, evidently not yet being aware that Dutch nationals were involved, the Child Welfare Board of Norrkoping approved the taking in charge of Marie Elisabeth Boll by its President pursuant to Article 22(a) of the Swedish Law of June 6th, 1924, a measure which was confirmed and therefore maintained in the proceedings of June 22nd and October 5th, 1954, and again, on a fresh application, maintained in the first and the last of the three decisions in 1955. After a provisional phase, the child was entrusted to her maternal grandfather, M. Lindwall.

The decision of June 22nd, 1954, to maintain the measure was taken in full knowledge of the nationality of the parties and of the appointment of M. Idema as deputy-guardian, and that of October 5th, 1954, in full knowledge of the appointment of Mme Postema as guardian in place of the father. Clearly, when the measure of protective upbringing was taken on May 5th, 1954, the Swedish authorities were unaware of the foreign nationality of the infant— which was perhaps also due to the fact that, by mistake, Johannes Boll had, on March 18th, 1954, had himself registered as guardian in Sweden, that is to say as guardian in the limited sense of adminis-[p 147]trator of the child's property, according to Swedish law, in addition to the custody which Sweden allowed him according to Swedish law. This mistake, although regrettable, in my opinion did not prejudice the father's rights. Moreover, the father's Swedish guardianship was revoked on September 16th, 1954, and the god man who had been appointed, was discharged on July 2nd, 1955. Only the custody is in issue.

2. In the six decisions regarding protective upbringing, no mention was made of an accusation brought against the father, except in the resolution of the Government of the Province of Ostergotland of October 28th, 1955, the allusion to a suspicion which existed at the time of the first taking in charge by the Child Welfare Board. In all the decisions, even in the first one, allusion is only made to a danger to the moral or mental health of the child and, after the appointment of the female guardian, to the fear that notwithstanding her powers, the child would remain under her father's influence. Even this fear was based only on negative data, that is on the lack of information regarding the circumstances in which guardianship was being exercised in the Netherlands, and on the presumed ignorance of the Dordrecht Court as to the reasons for the Swedish measures.

In the Swedish law of June 6th, 1924, on protective upbringing, Article 22 enumerates the cases in which such measures are permissible. The text of Article 22 runs:

"In conformity with Articles 23-25, the Child Welfare Board will take measures concerning:

(a) a child under sixteen who, in the family home, is ill-treated or exposed to serious neglect or any other danger affecting its physical or mental health;

(b) a child of the same age who, by reason of the immorality or negligence of its parents or of their unsuitability for the duty of educator, is in danger of becoming a delinquent;

(c) a child under eighteen whose delinquency is so serious that special educational measures are required to correct it; and

(d) a person between eighteen and twenty-one who is found to be leading an irregular, idle or immoral life or who exhibits other serious vices, the correction of which calls for special measures on the part of society (law of April 14th, 1944)."

Under Article 34, a non-delinquent child will, in the absence of special circumstances, be placed in a suitable family.

The one case which, in the view of the Swedish authorities, arose in the present instance was that mentioned in paragraph (a). There was no question of the infant's being ill-treated or exposed to serious negligence, the question was of a danger regarding her physical or moral health. Article 22 (a) requires that this danger should be one threatening her in the family home. The Swedish authorities [p 148] based the measures which they took on the existence of such a danger. This comes under the title of the Law which, according to the French text, concerns "la protection des enfants et la protection de la jeunesse" ["the protection of children and young people"].

It is certainly to be regretted that the Court only knows the decisions and the facts which these bring to light. For whatever reason, neither Government has given the Court more detailed information, and the mystery of incomplete reports and statements has been maintained—marked in the decisions by dots. One does not know whether the child is familiar with her national language nor how she is getting on in the family where she is placed. Following the exhaustion of the local remedies, and pending the Judgment on the Application of the Netherlands Government, the pres-ent situation has continued.

However, the Court had to decide whether at the moment of the institution of the protective upbringing and of its maintenance, these measures were compatible with the Convention, and, if not, whether they should be ended. Therefore, in my view, one must adjudicate on the facts advanced by the Parties which, however incomplete they may be, show that the protective upbringing has only been instituted and maintained for reasons connected with the moral or mental health of the infant. It is the right of the Parties in the case to ask the Court to give its Judgment on these facts alone.

3. Although in the Judgment of the Court the measure of protective upbringing is considered as outside the scope of the Convention—an opinion with which I cannot agree—the Court accepts that, in particular in the decision of the Supreme Administrative Court of October 5th, 1954, the capacity of the Dutch female guardian to concern herself with the person of the infant was recognized. This is the starting point for the ensuing considerations in which the Court holds that the protective upbringing cannot be regarded as a rival guardianship to the guardianship instituted in the Netherlands.

Next, it is said of the protective upbringing that it impedes the exercise by the guardian of the full right to custody which is hers by Dutch law in conformity with the Convention.

It may indeed be said that the whole dispute concerning the question whether protective upbringing has an object other than the organization of the guardianship presupposes the recognition of the Dutch guardianship.

None the less, I should have preferred a categorical declaration in which the Court held that the guardianship of the parental guardian and that of Mme Postema or at least the latter, constituted guardianship within the meaning of the Convention. The Court would thereby have rejected the Swedish Government's contention that Mme Postema's guardianship was based on the puissance [p 149] paternelle of Johannes Boll and that it could not, for that reason, be recognized. Furthermore, by such a formal declaration, the Judgment would have interpreted the Convention in a strict and clear fashion. However, in my view, the Judgment will none the less have the same effects.

For the interpretation of the Convention in this sense, I attach great importance to the indications to be found in the Acts of the Hague Conferences of 1893, 1894 and 1900 which, in this respect, are more important than the representatives of the two Governments have indicated. In particular, it appears that the application of the national law of the infant, as regards the reasons for guardianship, mentioned in Article 5, is equally valid for Article 1. For example, if the death of one of the parents deprives the infant of the care of both its parents, there is then a "guardianship" in an "autonomous" sense acceptable for other countries.

4. If it be accepted that the guardianship of the two successive guardians instituted in the Netherlands is wholly governed by the Dutch law of the infant, this means in the first place that the national law is to be applied in the contracting States as regards everything that concerns the exercise of guardianship until that is finally terminated. In the Acts of the Second Hague Conference of 1894 (p. 112, Report of the Fourth Commission), mention is made of the difficulties which the application of a foreign law involves, and the Commission therefore proposed to regulate the matter in such a way that the competence of the courts and of the authorities and the law applicable should coincide. The Commission clarified its point of view by stating that the difficulties were already most embarrassing and that "those involved in the organization of a complete juridical situation, in all its phases and with all its complications, would be even more so". This same expression "guardianship in all its phases" recurs in the commentary on Article 1, also on page 112. Apparently, the aim was to regulate the whole organization of guardianship, in conformity with the Preamble to the Convention, which refers to "common provisions to govern guardianship".

In the second place, for the father-guardian or the mother-guardian, and also as regards the non-parental guardian, guardianship within the meaning of the Convention includes the custody of the person of the infant. This is also recognized by the Court. If the content of the notion of "guardianship" is determined by the national law, and if the national law includes custody, the con-tracting States are bound to recognize this right of custody. Moreover, in the original text of the Swedish law of July 8th, 1904, which was intended to make possible the accession of Sweden to the Convention (Rosters and Bellemans, p. 723), Article 5 of Chapter 4 regulates the appointment of a delegate to look after the property and the person of the infant (cf. also the present text in Annex D (a) of the Counter-Memorial). [p 150]

Guardianship, within the meaning of the Convention, must therefore include the national guardianship for the whole period of guardianship and for all the care that the person of the infant requires, so to speak in extrinsic and intrinsic totality. It follows that one may not say that the Convention was only meant to regulate conflicts of laws. Above all, what is important is to determine the scope of the provisions comprised in such a conflict.

Now, the scope of the Convention is fairly wide. Guardianship formed part of a whole system of international conventions which was in contemplation at The Hague, including the guardianship of adults, which became the Convention concerning interdiction and similar measures of protection—as, in the 1893 programme, a convention was planned on puissance paternelle as well.

In the Acts of 1894 (pp. 111-112), the Fourth Commission expressed the view that what was involved was protection through guardianship—the word "protection" was used three times—and this is asserted in Article 6, which provides that the administration of a guardianship extends to the person and to all the property of the infant, and also in Article 7, which allows measures for the protection of the person and interests of a foreign infant to be taken by the local authorities.

As regards the extrinsic scope of guardianship, this institution could in no way and nowhere exist or function without intervention and permanent supervision by the courts or the administrative authorities, or both. Literally, tutela means protection. The institution of guardianship does not fall exclusively within the domain of private law. From the outset, the public interest was involved and it is so at present in an even larger measure, in all the contracting States.
The present regulation of Dutch guardianship includes the removal or discharge of a guardian if he neglects his obligations (Art. 419, para. 1, No. 2, Burgerlijk Wetboek)—the right of the Department of the Public Prosecutor to entrust the infant to a Guardianship Council (Voogdijraad, since 1955 Raad voor Kinder-bescherming) in case of the removal of the guardian (Art. 421 a)— the discharge of the guardian at the request of the Department of the Public Prosecutor or the Guardianship Council (Art. 423 j° 374 a, B.W.)—supervision by the deputy-guardian—various rights of the Guardianship Council and the Children's Judge—guardianship exercised by bodies, as ordered by the Court (Art. 396). There is always a competent court in the Netherlands, by virtue of the requirement that the deputy-guardian should reside within the territory, as well as a Guardianship Council dealing with infants residing abroad (Art. 461 a).

Further, there are the provisions concerning the placing under supervision of a child in danger of moral or physical harm which are applicable both in the case of the exercise of parental power and also in that of the exercise of guardianship (Arts. 365 to 373, recently [p 151] amended by the Law of July 20th, 1955, j° 418 B.W.). A family guardian is appointed by the Children's Judge. The latter may place the infant in an establishment or elsewhere. The whole of this institution was described by the Applicant Party as a measure for the assistance of the guardian in the matter of the upbringing of the infant. The guardian may be removed by the Court should he seriously neglect the directions of the family guardian or prevent the application of measures for the placing of the infant (Art. 419, para. 1, No. 7).

Ever since the entry into force of the codification of 1838, the surviving father or mother has had the guardianship; there has been a deputy-guardian (except in the irrelevant case of Art. 421 B.W.); the court has had the right to remove the guardian; the guardian has had the duty of taking care of the person of the infant and, if he had serious misgivings as to the latter's conduct, the guardian could apply to the court for the detention of the infant (Arts. 422, 423, 437, 441, 442, B.W., French translation by G. Tripels, 1886). Thus there was already a system of protective rules which have gradually been increased and improved.

Sweden, like other contracting States, was in a position to know of this system of protection, as also of the draft law of February 6th, 1901, which came into force on December 1st, 1905, by which the protection of children was modernized.

In Sweden the first law on protective upbringing dates from 1902. The consequences of all these laws must have been foreseen before Sweden ratified the Convention in 1904—and afterwards the Convention was not denounced.

In all the contracting States, legislation on the protection of children, which in the beginning was little developed, has gradually progressed and, as was mentioned in the Swedish arguments, national organizations are, in conferences at Stockholm and elsewhere, still right up to the present concerning themselves with measures to be taken in common agreement.

The question whether these rules are to be found in the Civil Code or in a special law is, in this connection, quite formal and secondary. In the Netherlands they are to be found in the Civil Code, both as regards puissance paternelle and guardianship. In Sweden, where codification is of another kind and where custody and guardianship are distinguished, they have been dealt with separately, although in the 1949 law there are various provisions whereby custody is entrusted to the guardian.

5. From these considerations I draw the conclusion that the Convention governs the organization of guardianship in its totality, with the aim of protecting children. In principle, it refers to the national law, but this law gives way to the law of the place of residence, as far as may be necessary. As an exception, if guardianship is not or cannot be set up in accordance with Articles 1 and 2, [p 152] it is instituted and administered in conformity with the law of the place of habitual residence of the infant abroad (Art. 3). As an exception also, Article 7 provides that pending the institution of a guardianship, and in all cases of urgency, measures required for the protection of the person and interests of the infant may be taken by the local authorities.

As soon as the nationality of the child became known to them, why did the Swedish authorities not study the Convention and, in compliance with Article 8, inform the Dutch authorities of the situation "as soon as it was known to them" ? According to the Swedish law of July 8th, 1904 (Chapt. 4, Art. 2), a letter to the Swedish Ministry of Foreign Affairs would have sufficed.

The Swedish authorities might have considered the application of Article 7 as a measure of urgency. But in their decisions there is no allusion to the 1902 Convention.

I do not share the view that in cases of urgency Article 7 only concerns special or partial measures. Article 7 allows temporary measures of urgency, even if they cover the whole intrinsic sphere of guardianship.

As to the decisions of the Dutch courts, the applicability of Article 7 has, in my opinion, been affirmed by the Judgment of the Supreme Court (Hoge Raad) of May 1st, 1958 (N.J. 1958, 432), concerning an infant of German nationality, placed under temporary guardianship in virtue of Article 391 B.W. The Supreme Court added—obiter dictum, moreover—that, even in the case of a well-founded fear of the interests of the infant being neglected (Art. 391, para. 2), the temporary guardianship should give way to the authority appointed by the national law of the infant, that is to say, that it is for that authority to judge whether, having regard to the child's interests, the measures laid down in the national law of the country to which the child belongs should be modified.

As to the question whether the measure of protective upbringing taken on May 5th, 1954, should, after the event, be described as urgent in the sense of Article 7, I would reply in the affirmative. If there could be any hesitation on this point, it would be for a reason of quite another kind: if one admits that the Child Welfare Board was aware of the foreign nationality of the child, it should have applied Article 8 of the Convention and should then have taken action on the basis of the obligations laid upon it by this Convention.

Article 7 cannot, after the event, be regarded as applicable to the decision of the Government of the Province of Ostergotland of June 22nd, 1954, and to the decisions which followed, because the nationality of the father and the appointment of the deputy-guardian were then known. The Government of the Province should have abstained from taking any such decisions and should have left the child to the care of her guardian and the supervision [p 153] of the deputy-guardian. After the change of guardian, moreover, it was only the child's health which was regarded as a reason for the decisions. Hence, the situation was thenceforward completely governed by the national law. In the Swedish decisions there is to be found no reproach or fear as regards the guardian Mme Postema, except the fear that the child would remain under the influence of the father. Nothing in these decisions justifies any urgent measure for the moral health of the child.

6. The second and the more important conclusion that I draw from a comparison of the two systems, the Dutch and the Swedish, for the protection of infants is the following: the provision of Article 22 (a) of the Swedish Law of June 6th, 1924, and the measures taken in execution of this single provision are of the same nature as those laid down in the Dutch law applicable according to the Convention. Obviously, they are directed towards the interest of the infant. The situation before the Child Welfare Board was one for which the rules regarding Dutch guardianship would have offered a similar solution. The care of the physical and moral health of the child, as also for her intellectual and religious education, the choice of schools, the selection of the place of residence for the child best adapted to her interests, are in the hands of the person who has the child's custody under the supervision of the authorities. Once the Convention is involved, it is not the local law but the national law which prevails. In this case, the application of Article 22 (a) has, in fact, in contravention of the Convention, prevented the exercise of the guardian's rights and, consequently, of the rights of the Dutch authorities.

Thus, it is not permissible to put children who are in a vulnerable condition outside the scope of the Convention. How many children of the present day are so vulnerable! It is a subject of anxiety for all parents. It would be interesting to examine the percentage of such cases among children under guardianship.

It should not be said that the removal of the infant constitutes a danger in the sense of Article 22 (a). It is for the national guardian and for the national authorities to see whether, in the circumstances, a removal is possible or whether, temporarily, the child should stay in Sweden. As we know, the guardian had already made arrangements in this sense.

For these reasons, I am of opinion that the application of Article 22 (a) of the Swedish Law of June 6th, 1924, should, in this case, be judged incompatible with the Convention, with the exception of the first taking in charge of the child in so far as that falls under Article 7.

7. It follows from the foregoing that no obstacle can be placed in the way of the application of the Convention of 1902, on the ground that the whole subject of the Swedish law on protective [p 154] upbringing is outside the scope of the Convention, because of the aim of this law to provide a social guarantee.

In considering the object of the whole of this law, the different cases in which it may be applied are no longer distinguished. The Swedish authorities had in view only the protection of the infant against a danger concerning her physical or moral health, and this in the family home. They applied Article 22 (a) only.

If one views the four cases enumerated in Article 22 according to the same criterion, there is a whole legislative sphere which is much larger than that involved in the present case. Delictual and quasi-delictual situations are included. There is a risk, therefore, of the social guarantee aspect imposing itself imperatively in cases where the interest of the infant prevails. For the same reason also there is reluctance to admit the apparently unacceptable consequences of a Swedish law which has an extraterritorial effect and which would have to be applied to Swedish infants in a foreign country. But these consequences do not arise because the Swedish law is confined to children "within a (Swedish) commune" and because if the Convention was applied to such Swedish infants, this would merely mean that the local authorities tolerate the handing over of such an infant to the person who is in charge of him.

Without making any imputations as to the aims of the Swedish legislators, I think that it might be an attractive policy to include in local legislation rules governing a whole series of matters which, without such rules, would be covered by the Convention, or to unite in one law provisions of a penal and a civil nature, or to pass legislation covering the whole question of the custody of children from the point of view of a social guarantee—and this in opposition to the legislation of those States which, with a view to the protection of children, have included provisions covering the same matter in their Civil Code. Merely by means of the label affixed to a law, the aim of the Convention could thus be defeated.

It is not, indeed, a question of another subject, but of another purpose in the legislator's mind. In this connection, the English word "purpose" is more indicative than the French word "objet". The subject-matter is the legal relationship in question and the rules which are applicable to it. In the present case, the legal relationship is constituted by the personal situation of an infant who is not under the puissance paternelle or the parental power of her two parents; the legal rules are the provisions governing the custody of such an infant. This subject-matter is the same in all States.

What is different is the purpose aimed at by the rules. Here the legislators and the courts are guided by "pre-occupations of a moral and social order".

In fact, what is being done is to make an exception for the application of public law enactments or the principles of inter-[p 155]national ordre public, which thus come in again in disguise by the window after having been chased out of the door.

The Applicant has rightly made an objection with regard to the category of public law enactments. If indeed such a category exists, it has by its absolute and static character a much wider scope than the exception based on international ordre public, which is relativist and dynamic and which, in any case, should be applied with great prudence. This exception does at least allow an examination of the question whether, in a concrete case, the points of attachment to the juridical system of the country of residence are strong enough.

In the case of the Convention on guardianship, I would reject the general exception based on international ordre public because in the Hague Conventions which were drawn up at the Conferences of 1893, 1894 and 1900 the general formula of ordre public was deliberately rejected and the system of individual treatment of special cases was adhered to—cases in which, for reasons of public or social interest, a different conflict rule seemed necessary. (Actes 1893, I, pp. 37-38, 41, 46-47, 74 et seq.; Actes 1894, pp. 15, 48, 118, 125 et seq.).
8. It cannot be denied that there are other subjects which are not included in the Convention, such as puissance paternelle and the interdiction of adults. It is a question of terminology and phrasing for the draftsmen of conventions. The laws on compulsory education, vocational training and health supervision, regulate other matters, but that does not mean that the guardian of an infant of foreign nationality does not retain the right to decide the residence of the infant and that he may not, by such decision, put an end to the application of such laws. And if these laws had to be complied with, the guardian would remain in personal contact with the infant to look after his welfare. Everything here depends on the circumstances of the case, and one must not generalize.

The distinguishing of the competence of administrative organs, to show the powers of local tribunals, is not decisive. The designation as an administrative or a judicial organ is often accidental or secondary. The Swedish Government has described the decision of its Supreme Administrative Court as a judicial one. In the Netherlands it is the Court which appoints the guardian and directs the supervision of the guardianship.

Also, the application of the Convention does not lead to negative conflicts of jurisdiction. Clearly, the measures of local supervision are not enforceable in other States, but the institution of guardian-ship, as a whole, as it is regulated by the national law, meets the needs. With regard to the Dutch institutions, I would refer to the provisions enumerated above, which include the measures to be taken by the courts, as well as the action of the Guardianship [p 156] Council, the Amsterdam Council being competent as regards every infant of Dutch nationality not residing in the Netherlands (compare Arts. 460 to 461a, B.W.). These provisions apply in the case of a Netherlands infant residing in Sweden or elsewhere. The guardian is responsible for the care of the infant's health and well-being and he can be removed or other measures can be applied should he fail to discharge his obligations. The local authorities must respect this application of the national law. Inversely, in the case of a Swedish infant who is in the Netherlands or elsewhere, the local authorities are obliged to respect the measures of guardianship ordered in Sweden. In the "juridical community" between the contracting States, which has been invoked as far back as the Acts of 1893, it is the rules of the national law which must be observed, in conformity with that reciprocity which is at the basis of the Convention.

I conclude that only Article 22 (a) of the Swedish Law of June 6th, 1924, is in issue and that the maintenance of the measures of protective upbringing is not in conformity with the obligations binding upon Sweden by virtue of the 1902 Convention.

(Signed) J. Offerhaus.

 
     

 

 

 

 

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