[p6] The Council of the
League of Nations on February 3rd, 1923, adopted the following Resolution:
The Council of the League of Nations having been apprised of certain
questions regarding the following facts:
(a) a number of colonists who were formerly German nationals, and who are
now domiciled in Polish territory previously belonging to Germany, have
acquired Polish nationality, particularly in virtue of Article 91 of the
Treaty of Versailles. They are occupying their holdings under contracts (Rentengutsverträge)
which although concluded with the German Colonization Commission prior to
the Armistice of November 11th, 1918, did not receive an “Auflassung” before
that date. The Polish Government regards itself as the legitimate owner of
these holdings under Article 256 of the Treaty of Versailles, and considers
itself entitled to cancel the above [p7] contracts. In consequence, the
Polish authorities have taken certain measures in regard to these colonists
by which the latter will be expelled from the holdings which they occupy;
(b) the Polish authorities will not recognize leases conceded before
November 11th, 1918, by the German Government to German nationals who have
now become Polish subjects. These are leases over German State properties
which have subsequently been transferred to the Polish State in virtue of
the Treaty of Versailles, in particular of Article 256,
 Requests the Permanent Court of International Justice to give an
advisory opinion on the following questions:
(1) Do the points referred to in (a) and (b) above involve international
obligations of the kind contemplated by the Treaty between the United States
of America, the British Empire, France, Italy, Japan and Poland, signed at
Versailles on June 28th, 1919, and do these points come within the
competence of the League of Nations as denned in that Treaty?
(2) Should the first question be answered in the affirmative, the Council
requests the Court to give an advisory opinion on the question whether the
position adopted by the Polish Government, and referred to in (a) and (b)
above, is in conformity with its international obligations.
The Secretary-General is authorized to submit this request to the Court,
together with all the relevant documents, to explain to the Court the action
taken by the Council in this matter, to give all assistance necessary in the
examination of the question, and, if required, to take steps to be
represented before the Court.
 On March 2nd, 1923, the Secretary-General of the League, by virtue of
this Resolution, sent to the Permanent Court of International Justice the
following request: [p8]
The Secretary-General of the League of Nations, In pursuance of the
Resolution adopted by the Council on February 3rd, 1923, a certified copy of
which is attached to this communication,
And in virtue of the authority conferred upon him by that Resolution,
Has the honour to submit to the Permanent Court of International Justice an
application from the Council requesting the Court in accordance with Article
14 of the Covenant, to give an advisory opinion on the questions which have
been referred to it by the above-mentioned Resolution of February 3rd, 1923.
The Secretary-General is also instructed by the Council to attach to this
communication a note explaining the action taken by the Council in the
matter; together with copies of such documents relative to the points under
discussion as have at present been communicated to the Members of the
In accordance with the aforesaid Resolution of the Council, the
Secretary-General will be prepared to furnish any assistance which the Court
may require in the examination of the question, and he will, if necessary,
arrange to be represented before the Court.
 By a letter of April 26th, 1923, the Secretary-General of the League of
Nations informed the Court that the Council of the League had, on April
18th, decided to transmit to the Court a report which had been submitted to
it on the subject of the interpretation of paragraph (b) of the Resolution
of February 3rd, and that the Council had approved this report, which is as
By a Resolution dated February 3rd, 1923, the Council decided to ask the
Permanent Court of International Justice for an advisory opinion concerning
certain points in regard to the German Minorities question in Poland.
In a letter dated March 22nd, distributed to the Members of the Council
(Doc. C. 272, 1923 V) the Polish Government[p9] expressed a desire that the
sense and bearing of paragraph (b) in this resolution should be confirmed in
order that this latter point might be stated with the absolute clearness
prescribed by Article 72 of the Rules of the Court.
All that is required is a statement that paragraph (b) refers exclusively to
the case of a special category of colonist farmers, namely those who occupy
holdings in virtue of leases contracted before the Armistice and still
unexpired, and who subsequently obtained after the Armistice amortization
contracts (Rentengutsverträge) for these holdings.
As this was clearly the intention of the Council when it took its decision
on February 3rd, I venture to propose that my colleagues should signify
their agreement with the Polish conclusions. If this proposal is accepted,
the Secretary-General would then forward to the Polish Government and to the
Permanent Court of International Justice copies of the present report, as
confirmed by the Council. The text of the Polish letter dated March 22nd,
1923, would also be communicated to the Court.
 In conformity with Article 73 of the Rules of Court, notice of the
request for an advisory opinion was given to the Members of the League of
Nations, through the Secretary-General of the League, and to the States
mentioned in the Annex to the Covenant. Furthermore, the Registrar of the
Court was directed to notify the German Government of the request.
 Together with the request were transmitted a certain number of documents
[FN1] 1. Account of the action taken by the Council of the League of Nations
in the matter.
2. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated November 9th, 1921.
Appendix : Telegram from the "Deutschtumsbund" to the League of Nations,
dated November 8th, 1921.
3. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated November 14th, 1921.
Appendix: Letter from the Polish Delegate to the League of Nations to the
Secretary-General, dated November 13th, 1921.
Annex to this Appendix : Extract from the ,,Berliner Tageblatt" of November
4. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated November 15th, 1921.
Appendix: Memorandum from the " Deutschtumsbund" to the Council of the
League of Nations, dated November 7th, 1921.
Annex to this Appendix: Law of July 14th, 1920 referring to property rights
of German States.
5. Note by the Secretary-General of the League of Nations to the Members of
the League, dated November 26th, 1921.
Appendix: Telegram from M. Askenazy to the Secretary-General, dated :
November 18th, 1921.
6. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated November 28th, 1921.
Appendix: Note sent by the "Deutschtumsbund" to the Council of the League of
Nations, dated November 12th, 1921.
Annex to this Appendix: Petition from Germans domiciled in Poland to the
Council of the League of Nations, dated November 12th, 1921.
7. Note by the Secretary-General of the League of Nations to the Members of
the League, dated November 21st, 1921.
8. Note by the Secretary-General of the League of Nations to the Members of
the League, dated January 23rd, 1922.
Appendix I: Report by MM. Hymans, Imperiali and Ishii, Members of a
Committee of the Council formed to consider certain petitions from German
Minorities in Poland.
Appendix II: Letter dated January 17th, 1922 from the Polish Delegate to the
League of Nations to the Director of the Minorities Section.
9. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated February 13th, 1922.
Appendix: Letter from the Polish Delegate to the League of Nations to the
Secretary-General, dated January 26th, 1922.
Annex I to this Appendix: Articles 113 and 115 of the Polish Constitution.
Annex II to this Appendix : Article 91 of the Treaty of Versailles.
10. Report to the Council by MM. Hymans, Imperiali and Ishii, dated March
11. Extract from the Minutes of the 5th Sitting of the 17th Session of the
Council, dated March 28th, 1922.
12. Report by MM. Hymans, Imperiaii and Adatci, dated May 17th, 1922.
13. Extract from the Minutes of the 11th and 12th Sittings of the 18th
Ses¬sion of the Council, (May 17th, 1922).
14. Note by the Secretary-General of the League of Nations to the Members of
the League, dated July 27th, 1922.
Appendix: Letter from the Polish Foreign Minister to the President of the
Council of the League of Nations, dated July 3rd, 1922.
15. Extract from the Minutes of the 7th Sitting of the 19th Session of the
Council, (July 20th, 1922).
16. Note by the Secretary-General of the League of Nations to the Members of
the League, dated August 29th, 1922.
Appendix : Letter from M. Askenazy, to the Secretary General of the League
of Nations, dated July 5th, 1922.
Annex to this Appendix : Information regarding the questions mentioned in
the Resolution of the Council of the League of Nations, of May 17th, 1922.
17. Note by the Secretary-General of the League of Nations to the Members of
the League, dated September 2nd, 1922.
Appendix: Letter from the Polish Delegate to the League of Nations to the
Secretary-General, dated August 30th, 1922.
18. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated September 2nd, 1922.
Appendix : Memorandum from the "Deutschtumsbund" to the Council of the
League, dated August 1st, 1922. Annexes to this Appendix :
1. Legal position of settlers under the Minorities Treaty of June 28th,
2. Question put by Deputies Spiekermann, etc. to the Polish Prime Minister.
3. Reply by the Minister, M. Dunikowski to No. 2.
4. Question put to the Polish Government by Deputy Daczko with regard to the
refusal of the Auflassung for certain properties.
5. Question put by Deputy Daczko and others with regard to the violation of
6. Decree regarding the revision of permission granted for conducting
19. Note by the Secretary-General of the League of Nations to the Members of
the Council, dated September 6th, 1922.
Appendix: Letter from M. Askenazy to the Director of the Minorities Section,
dated September 4th, 1922.
20. Report by M. da Gama and Resolution adopted by the Council on Sep¬tember
21. Extract from the Minutes of the 6th Sitting of the 21st Session of the
Council of the League of Nations, September 9th, 1922.
22. Report by M. da Gama and Resolution adopted by the Council of the League
of Nations, September 30th, 1922.
23. Extract from the Minutes of the 16th Sitting of the 21st Session of the
Council of the League of Nations, September 30th, 1922.
24. Note by the Secretary General of the League of Nations to the Members of
the League, dated September 28th, 1922.
Appendix I: Note from the Polish Minister for Foreign Affairs to the
President of the Council of the League of Nations, dated December 7th, 1922.
Annex to this Appendix: Memorandum concerning the questions dealt with in
the report of H. E. M. da Gama, of September 30th, 1922.
Appendix II: Telegram from the "Deutschtumsbund" to the League of Nations,
dated September 30th, 1922.
Appendix III: Letter from the "Deutschtumsbund" to the Council of the
League of Nations, dated November 13th, 1922.
Annexes to this Appendix :
(a) Notice from the District Land Office in Posen to M. Ernst Milke.
(b) List of 30 colonists evicted by the Land Commissioner.
Appendix IV: Letter from the Polish Delegate to the League of Nations to the
Director of the Minorities Section, dated December 13th, 1922. Appendix V:
Report by M. da Gama.
Appendix VI: Opinion of the Jurists Committee, September 26th, 1922.
25. Note by the Secretary-General of the League of Nations to the Members of
the League, dated January 31st, 1923.
Appendix: Letter from the Polish Delegate to the League of Nations to the
Secretary General, dated January 23rd, 1923.
26. Report by M. da Gama and Resolution adopted by the Council on February
27. Extract from the Minutes of the 10th Sitting of the 21st Session of the
Council, February 2nd, 1923.
28. Extract from the Minutes of the 13th Sitting of the 23rd Session of the
Council, February 3rd, 1923.
 [p10] Further documents were obtained from the Secretariat of [p11] the
League of Nations at the request of the President of the Court [FN1].
[FN1] Further documents supplied at the request of the President of the
1. Specimen of a Rentengutsvertrag.
2. Specimen of a Pachtvertrag.
3. Letters sent by the President of the Conference of Ambassadors to the
diplomatic representatives of Germany and Poland at Paris.
(a) To the Polish Minister; November 29th, 1921 ;
(b) To the Polish Minister; December 16th, 1921 ;
(c) To the German Ambassador; December 16th, 1921;
(d) To the German Ambassador, February 18th, 1922.
4. Judgment of the Supreme Court of Warsaw, given on June 9th, 1922.
5. Note by the Secretary-General of the League of Nations to the Members of
the Council, "transmitting a Note addressed by the Reparations Commis¬sion
to the League of Nations, dated August 24th, 1921.
6. Note by the Secretary-General of the League of Nations to the Members of
the League transmitting a petition from the Union of German Farmers on the
State domains in Poland, dated May 26th, 1921.
7. Petition sent by the Union of German Farmers on the State domains in
Poland to the "Conseil Superieur" at Paris.
Annex I: Proclamation addressed to Germans in Poland by the Committee of the
Supreme Council of Poland, June 30th, 1919.
Annex II: Letters from the Union of Tenants on the State domains, to the
Voivodats of Posen and Thorn, dated February 22nd and March 12th, 1921.
Annex III: Letter from the same Union to the same Voivodats, April 10th,
Annex IV: Extract from the Article "Domain Lands in the Voivodat of Posen".
Annex V: A list of 23 farmers related to or otherwise connected with
officials of the Domain lands.
Annex VI: Instructions of the Department for Polish Domain Lands to
Assessors and Directors.
Annex VII: The Polish-German Treaty of October 17th, 1919.
Annex VIII: Judgment of the Court of the District of Torun, given on June
Annex IX: Judgment of the Court of the District of Ostrowo, given on
September 10th, 1921.
Annex X: Judgment of the Court of the District of Ostrowo given on September
 [p12] Furthermore, the Court had before it a certain number of documents
transmitted to it on behalf of the Polish and of the German Governments
[FN1] 1. Letter from the Polish Minister at the Hague to the Registrar of
the Court, dated May 2nd, 1923, concerning the document entitled "account of
the action taken by the Council of the League of Nations regarding certain
questions concerning the protection of persons belonging to the German
Minority in Poland."
2. (a) Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated May 24th, 1923 (1 annex). Annex: Article by M. Kierski entitled
"The protection of Minorities".
(b) Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June 1st, 1923 (1 annex). Annex: Continuation of article by M.
3. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated May 28th, 1923 (1 annex). Annex: Article by M. Winiarski,
entitled "The aims of the two Treaties of Versailles".
4. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June 19th, 1923 (1 annex). Annex: Opinion by Professor Bellot
in the matter of the German Colonists in Poland.
5. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June 27th, 1923 (1 annex). Annex: Observations by Pro¬fessor
Zoll with regard to the opinion of Professor Kaufmann.
6. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June 6th, 1923 (1 annex). Annex: Observations by Pro¬fessor
Zoll regarding the opinion of Professor Kipp.
7. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated June 30th, 1923 (18 annexes). Annexes: 18 documents relat¬ing
to the Prussian colonisation of that part of Poland formerly belonging to
8. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 1st, 1923 (1 annex). Annex: Opinion by M. Bronislas
Stelmachowski regarding the German Colonists.
9. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 4th, 1923 (1 annex). Annex: Opinion by M. Waclaw
Komarnicki regarding the question of a certain category of German Colonists
10. Letter from the Polish Minister at the Hague to the Registrar of the
Court dated July 5th 1923 (1 annex). Annex: Opinion regarding the competence
of the League of Nations by M. Kierski published in the "Kuryer Poznanski".
11. Letter from the Polish Minister at th£ Hague to the Registrar of the
Court, dated July 7th, 1923 (1 annex). Annex: "The political and
administrative regime in Prussian Poland" (Fribourg, Lausanne 1918).
12. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 5th, 1923 (1 annex). Annex: Memorandum by Dr. Wojtkowski
entitled "The Policy of extermination adopted by the Prussian Government
with regard to the Poles (1740—1922)."
13. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 11th, 1923 (1 annex). Annex: Observations by Profes¬sor
Stanislas Kutrzeba in reply to the memorandum by Professor Erich Kaufmann.
14. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 13th, 1923 (annexes). Annexes: a certified true extract
taken from the Legal Gazette of the Polish Republic, No. 62, July 27th,
1920, giving the text of the law of July 14th, 1920, together with a French
translation of Articles 1, 2 and 5 of the said law.
15. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated July 21st, 1923 (1 annex). Annex: legal opinion by M. Limburg
on the question of the German Minority in Poland.
16. Letter from the Polish Minister at the Hague to the Registrar of the
Court, dated August 2nd, 1923 (1 annex, 4 sub-annexes).
Annex — Observations of the "Prokuratorja Generalna" of the Polish Republic
with regard to the question of certain German Colonists in Poland.
Sub-annex (a) "Gesetze und Ausfiihrungsbestimmungen fur die Ansiedlungs
(b) Typical "Rentengutsvertrag."
(d) Typical anti-Polish clauses.
17. Map of the provinces of Posen and West Prussia showing the settle¬ment
lands and settlements, and the State domains and forests.
18. Instructions from the Prussian Minister of Agriculture to the President
of the Settlements Commission regarding the acceleration of the
"Aufias-sung" for Settlement Holdings.
19. Instructions from the Minister of Finance to the Government of Posen
relating to the same subject.
20. Report of the Transvaal Concessions Commission, April 19th, 1901.
21. (a) Letter from the German Legation at the Hague to the Registrar, dated
June 28th, 1923 (2 annexes).
Annex 1 — Memorandum by the German Government concerning the question of the
German Colonists and farmers in Poland (in German). Annex 2 — Treatises on
the doctrine of State Succession — Three opinions by Sir Thomas Barclay, Dr.
A. Struycken, and Dr. E. Kaufmann (in German).
(b) Letter from the German Legation at the Hague to the Registrar, dated
July 21st, 1923 (annexes).
Annex 1 — French translation of the memorandum of the German Govern¬ment
Annex .2 — French translation of the opinions mentioned under 21 (a) annex 2
and of an opinion by Dr. T. Kipp.
Annex 3 — "The policy of the Kingdom of Prussia with respect to the Polish
inhabitants" (in German) by Dr. L. Bernhard.
Annex 4 — "Internal Colonisation in Prussia, etc" (in German) by Dr. F.
 The Court also heard, at the request of the Polish Government, the
statements of its representatives, Count Rostworowski, Professor at the
University of Cracow, and Sir Ernest Pollock, formerly Attorney-General of
Great Britain. It likewise heard M. Schiffer, former Minister of Justice of
the Reich, appointed by the German Government as its representative for the
purpose of giving explanations supplementary to those contained in the
 By the Treaty of Peace between the Allied and Associated Powers and
Germany, which was signed at Versailles on June 28th, 1919, and which came
into force on January 10th, 1920, Germany, in conformity with the action
already taken by the Allied and Associated Powers, recognized the complete
independence of Poland and renounced in her favour all right and title over
certain territory which is described in Article 87 and which includes the
territory in which the question now before the Court has arisen.
 Article 256 of the Treaty contains the following provision.
Powers to which German territory is ceded shall acquire all property and
possessions situated therein belonging to the German Empire or to the German
States, and the value of such acquisitions shall be fixed by the Reparation
Commission, and paid by the State acquiring the territory to the Reparation
Commission [p14] for the credit of the German Government on account of the
sums due for reparation.
For the purposes of this Article the property and possessions of the German
Empire and States shall be deemed to include all the property of the Crown,
the Empire or the States, and the private property of the former German
Emperor and other Royal personages.
 On July 14th, 1920, a law was enacted in Poland, containing, among
others, the following articles:
In all cases in which the Crown, the German Reich the German States, the
institutions of the Reich or of the German States, the ex-Emperor of Germany
or other members of the German reigning houses, are, or were, after November
11th, 1918, inscribed in the land registers of the former Prussian provinces
as owners or possessors of real rights, the Polish Courts shall, in
accordance with the terms of the Treaty of Versailles of June 28th, 1919,
inscribe ex officio in such registers, the Treasury of the Polish State, in
place of the persons or persons in law above mentioned.
Should one of the persons or persons in law referred to in Article 1, after
November 11th, 1918, have alienated or encumbered the immoveable property in
question, or if, after November 11th, 1918, a real right standing in the
name of the personalities enumerated in Article 1 has been at their request,
or with their consent, transferred, suppressed, or has undergone any other
change, the Courts shall restore the entry in the land register as it would
have been had the persons enumerated in Article 1 not made such request or
given the consent necessary to effect the changes made in the land register.
If the Registry of Mortgages receives a declaration of hypothec, or of a
mortgage upon the estate or upon the rent, and, if, and as soon as, it
appears from the [p15] contents of the declaration that any one of the
persons enumerated in Article 1 is the beneficiary under the hypothec or
mortgage, or was so after November 11th, 1918, the Court in that case shall
ex officio inscribe the Treasury of the Polish State as such beneficiary
under the hypothec or mortgage. The provisions of paragraph 1 of this
Article with regard to the restoration of the previous entries in the land
registers, shall be applied in a similar manner to the contents of these
The Treasury of the Polish State, inscribed in conformity with Article 1, as
the owner of an immoveable property, may demand the expulsion from that
property of persons who, on the basis of an agreement concluded with one of
the persons enumerated in Article 1, continue in possession of such property
after the coming into force of this law.
 In execution of this law, the Polish Government proceeded, through the
Courts, to oust the occupants of the land in pursuance of notices served on
them by the Polish authorities. The occupants resisted the attempt to oust
them, on the ground that this attempt constituted a violation of acquired
lights which they possessed under the law, and therefore an infraction of
the Polish Minorities Treaty.
 These occupants are to be divided into two classes: first, those
holding under contracts known as Rentengutsverträge, entered into with the
Prussian State acting through the Settlement Commission for West Prussia and
Posen; and second, those holding under contracts known as Pachtverträge
similarly entered into. Under the Rentengutsverträge the lands were made
over to the settler in perpetuity against payment of a fixed rental, subject
to a right of withdrawal and of repurchase on the part of the State on
certain conditions stated in the contract; under the Pachtverträge the lands
were leased to the settlers for a term of years. These contracts were made
under certain laws passed by Prussia. The first [p16] of these laws which is
dated April 26th, 1886, is entitled “A Law concerning the Promotion of
German Settlements in the Provinces of West Prussia and Posen”. Money was
placed at the disposal of the Prussian Government “for the purpose of
strengthening, by means of settling German peasants and workman, the German
element in the provinces of West Prussia and Posen against efforts to
Polonize the provinces”. With the money thus appropriated lands were
purchased by the Prussian State and delivered to the settlers.
 Of the Rentengutsverträge, two examples have been brought by the
representatives of Poland to the attention of the Court. One of these has
been called the “Posen” form, and the other the “Rattai” form. The rights
conveyed under these forms are in substance the same. Each form contains
certain “general conditions” and certain “special conditions”. The
Pachtverträge also contain general and special conditions.
 Under the Council's Resolution, the case before the Court relates only
to two classes of settlers; first, those holding under Rentengutsverträge,
concluded prior to November 11th, 1918, where there was no Auflassung before
that date; and secondly, those holding under leases (Pachtverträge)
contracted before November 11th, 1918, for which Rentengutsverträge were
substituted after that date.
 By the documents filed with the Court the present subject of
controversy appears to have been brought to the attention of the League of
Nations by a telegram addressed to the Secretary-General on November 8th,
1921, by the German League for the Protection of the Rights of Minorities in
Poland (Deutschtumsbund zur Wahrung der Minderheitsrechte in Polen) of
Bydgoszcz (Bromberg), which stated that several thousand families of farmers
of German origin had, in violation of the provisions of the Minorities
Treaty, been called upon by the Polish Government to vacate their lands
before December 1st. The telegram urgently requested that measures [p17]
should immediately be taken for the protection of the persons in question.
 The Secretary-General of the League, proceeding under a resolution of
the Council of June 27th, 1921, relating to the protection of minorities, at
once acquainted the representative of Poland near the Secretariat with the
contents of the telegram, and also duly advised the Members of the Council.
 Acting in conformity with a resolution of the Council of October 25th,
1920, the President of the Council, M. Hymans, representative of Belgium,
invited the Marquis Imperiali, representative of Italy, and the Viscount
Ishii, representative of Japan, to join him in the examination of the
question. The committee thus constituted, consisting of the representatives
of three of the Powers represented in the Council, examined the subject on
the basis of information furnished by the representative of Poland at Geneva
as well as by the Germanic League, and on January 23rd, 1922, made a
preliminary report advising that the Polish Government be asked to suspend
all measures which might in any way affect the situation of the settlers,
until the Council should have had the opportunity of considering the further
observations of the Polish Government.
 Various postponements of the execution of these measures were
subsequently requested and promised, while the Council through committees
appointed for the purpose continued its consideration of the subject. On May
17th, 1922, the Council, acting upon a report presented by the
representatives of Belgium, Italy and Japan, adopted a resolution by which
the Polish Government was requested, pending further consideration of the
matter by the Council, to suspend all administrative or judicial measures
which might prejudice the normal situation of the farmers of German race who
had become Polish citizens or whose character as Polish citizens depended on
the solution of questions which were raised in the report. A further
suspension was accordingly promised, and discussions were immediately
resumed between the Polish Delegation and the Secretariat of the League. At
an extraordinary session of the Council in London in [p18] July 1922 the
subject was again considered, a representative of Poland being present.
Further information was obtained from the Polish Government and its
representative as well as from representatives of the settlers; and on
September 9th, 1922, M. da Gama, representative of Brazil, made to the
Council, then sitting at Geneva, a report recommending that the legal
questions involved be submitted to a committee of jurists.
 This recommendation was adopted by the Council, and a committee was
accordingly appointed, consisting of M. Botella of Spain, M. Fromageot of
France, Sir Cecil Hurst of Great Britain, and M. van Hamel, Director of the
Legal Section of the Secretariat of the League of Nations.
 The conclusions of the Committee, so far as concerns the questions now
before the Court, were to the effect that, as regarded cases where
Rentengutsverträge were entered into before November nth, 1918, but no
Auflassung followed prior to that date, the expulsion of the settlers from
their lands was not justified, the Committee holding that various
circumstances, including the delay in the fixing of boundaries and the
settlement of plans, and the profound disturbance caused by the war, were
such as to excuse (justifier) the non-completion (defaut de regularisation)
of the transfer, and that such non-completion, not being imputable to the
settlers, could not justly be invoked against them, if in other respects
they had satisfied the obligations which their contract imposed. As to
settlers who held their lands under leases which were concluded before
November 11th, 1918, and which had not yet expired, the Committee held that
they should be left in possession conformably to their leases.
 The Polish Government questioned the soundness of the conclusions of
the Committee of Jurists, and the Council subsequently decided to send the
matter to the Court for an advisory opinion.
 The questions that have been discussed before the Court fall under two
general heads: First, that of the competency of the League of Nations to
take cognizance of the matter; and [p19] secondly, that of the right of the
settlers to continue to hold and cultivate the lands which they occupy. If,
as Poland has claimed, the subject matter of the controversy is not within
the competency of the League, the Court would not be justified in rendering
an opinion as to the rights of the settlers. The Court therefore will first
consider the question of competency.
 The Council, in taking cognizance of the matter, has acted under what
is known as a Minorities Treaty.
 By Article 93 of the Treaty of Peace, signed at Versailles on June
28th, 1919, to which Poland is a party.
“Poland accepts and agrees to embody in a Treaty with the Principal Allied
and Associated Powers such provisions as may be deemed necessary by the said
Powers to protect the interests of inhabitants of Poland who differ from the
majority of the population in race, language or religion.”
 The Treaty which Poland thus agreed to make was signed on the same day,
the signatories being the United States of America, the British Empire,
France, Italy and Japan (the Principal Allied and Associated Powers) on the
one hand, and Poland on the other. This is the Minorities Treaty now in
question, on the provisions of which the interposition of the Council in the
matter rests. The provisions of the treaty will be quoted only so far as
they are pertinent to the matter before the Court.
 The preamble of the Treaty, after reciting that the Allied and
Associated Powers had by the success of their arms restored the Polish
nation to the independence of which it had been unjustly deprived, declares
that the Allied and Associated Powers on the one hand, are “anxious to
ensure the execution of the provisions of Article 93” of the Peace Treaty,
and that Poland, on the other hand, desires “to conform her institutions to
the principles of liberty and justice and to give a sure [p20] guarantee to
the inhabitants of the territory” over which, she has assumed sovereignty.
For this purpose, so the preamble declares, the Minorities Treaty was
 By Article 1 of this Treaty, Poland undertakes that the stipulations
contained in Articles 2 to 8 shall be recognized as “fundamental laws” and
that no law, regulation or official action shall conflict or interfere with
or prevail over them. By Article 2, Poland further “undertakes to assure
full and complete protection of life and liberty to all inhabitants of
Poland without distinction of birth, nationality, language, race or
 The first paragraph of Article 7 provides:
“All Polish nationals shall be equal before the law and shall enjoy the same
civil and political rights without distinction as to race, language or
 The first sentence of Article 8 contains the following additional
“Polish nationals who belong to racial, religious or linguistic minorities
shall enjoy the same treatment and security in law and in fact as the other
 Without quoting further stipulations the Court will proceed at once to
the provisions of Article 12 of the Treaty, which reads as follows:
“Poland agrees that the stipulations in the foregoing Articles, so far as
they affect persons belonging to racial, religious or linguistic minorities,
constitute obligations of international concern and shall be placed under
the guarantee of the League of Nations. They shall not be modified without
the assent of a majority of the Council of the League of Nations. The United
States, the British Empire, France, Italy and Japan, hereby agree not [p21]
to withhold their assent from any modification in these Articles which is in
due form assented to by a majority of the Council of the League of Nations.
“Poland agrees that any Member of the Council of the League of Nations shall
have the right to bring to the attention of the Council any infraction, or
any danger of infraction, of any of these obligations, and that the Council
may thereupon take such action and give such direction as it may deem proper
and effective in the circumstances.
“Poland further agrees that any difference of opinion as to questions of law
or fact arising out of these Articles between the Polish Government and any
one of the Principal Allied and Associated Powers or any other Power, a
Member of the Council of the League of Nations, shall be held to be a
dispute of an international character under Article 14 of the Covenant of
the League of Nations. The Polish Government hereby consents that any such
dispute shall, if the other party thereto demands, be referred to the
Permanent Court of International Justice. The decision of the Permanent
Court shall be final and shall have the same force and effect as an award
under Article 13 of the Covenant.”
 It will be observed that by Article 12 the stipulations of the
preceding articles, so far as they affect persons belonging to racial,
religious or linguistic minorities, constitute “obligations of international
concern” and are placed “under the guarantee of the League of Nations”; that
Poland then agrees that “any Member of the Council” of the League shall have
the right to bring to the attention of the Council “any infraction, or any
danger of infraction, of any of these obligations”.
 When the matter now before the Court was first brought to the notice of
the League of Nations, it was dealt with by the Secretariat of the League
and by the Council in accordance with the procedure established by the
Council for such cases, and it was thus repeatedly brought to the attention
of the [p22] Council by at least three of its members, the representatives
of their respective States. Paragraph 2 of Article 12 provides that any
Member of the Council may bring to its attention any infraction or danger of
infraction of any of the obligations mentioned, and that the Council may
thereupon proceed to act on the subject. The Court does not think it
material to inquire how or by whom the member or members may have been
induced to bring the matter to the Council's attention. The Members of the
Council are by the terms of the Covenant the representatives of the States
by which they are appointed. States can act only by and through their agents
and representatives. So far as concerns the procedure of the Council in
minority matters, it is for the Council to regulate it. On the other hand,
it is impossible to say that the present matter has not been brought to the
attention of the Council by any of its members in accordance with the
provisions of Article 12. The report of M. da Gama, opens with the statement
that the matter had been brought to the attention of the Council by a report
presented by three of its members, and it does not matter that these members
were members of a committee formed under the Resolution of the Council of
October 25th, 1920, to facilitate the performance by the Council of its
duties in minorities matters.
 Moreover, the matter having been brought to the attention of the
Council, the Council, as has been seen, may at once proceed to “take such
action and give such direction as it may deem proper and effective in the
circumstances”. This stipulation clearly makes it proper for the Council to
exercise its power under Article 14 of the Covenant to request the advice of
the Court on points of law, on the determination of which its action may
 In connection with the power of the Council, in the performance of its
functions under § 2 of Article 12 of the Minorities Treaty, to refer the
present matter to the Court for an advisory opinion, the Court does not deem
it necessary to interpret paragraph 3 of Article 12, by which Poland
consents that any difference of opinion as to questions of law or fact
arising out of the preceding articles of the treaty may be [p23] brought
before the Court by any one of certain Powers for final decision as a
dispute of an international character. Paragraph 3, by its very terms,
supplements paragraph 2, but is not in any sense a substitute for it; and
the fact that a question brought before the Court by the Council under
Paragraph 2 might conceivably be brought before the Court by a single Power
as an international difference under Paragraph 3, cannot be accepted as a
reason for preventing the Council from discharging its duties under
Paragraph 2. The possible range of Paragraph 3, so far as concerns the
nature of the questions embraced in it, may be as great as that of paragraph
2. If the Court should refuse to take cognizance of a question presented
under either paragraph, on the ground that it conceivably might have been or
might be presented in a different way under the other, the result might be
to make both paragraphs practically ineffective.
 It is not necessary, having regard to the facts of this case, to decide
whether action by a Member of Council under § 2 is a condition precedent to
action by the Council itself.
 So far as concerns the question of competency, a further question
remains to be considered, and that is whether there is in the present case
any infraction or danger of infraction of any of the obligations included
under Article 12. While under the terms of the Minorities Treaty it
necessarily rests with the Council in the first instance to determine
whether an infraction or danger of infraction exists, the Court is of
opinion that upon the facts before it the existence of such a condition
 As has been seen, Article 7 of the treaty provides that all Polish
nationals shall be equal before the law and shall enjoy the same civil and
political rights without distinction as to race, language or religion. The
expression “civil rights” in the Treaty must include rights acquired under a
contract for the possession or use of property, whether such property be
immoveable or moveable.
 Article 8 of the Treaty guarantees to racial minorities the [p24] same
treatment and security “in law and in fact” as to other Polish nationals.
The facts that no racial discrimination appears in the text of the law of
July 14th, 1920, and that in a few instances the law applies to non-German
Polish nationals who took as purchasers from original holders of German
race, make no substantial difference. Article 8 is designed to meet
precisely such complaints as are made in the present case. There must be
equality in fact as well as ostensible legal equality in the sense of the
absence of discrimination in the words of the law.
 Article 5 of the law of July 14th, 1920, provides for the expulsion
from the lands in question of any persons who may occupy them under an
agreement with any of the proprietors for whom the Polish Treasury has been
substituted under Article 1 of the law, and by Article 1 it appears that
those for whom the Polish Treasury has been substituted include the German
States. The outstanding, fundamental point in the present case is the fact
that the persons whose rights are now in question are as a class persons of
the German race who settled on the lands in question under the Prussian law
of 1886 and subsequent legislative acts, under contracts made with the
Prussian State. Indeed, it is for this very reason that Poland contends that
the contracts now under consideration are to be held invalid. Hence,
although the law does not expressly declare that the persons who are to be
ousted from the lands are persons of the German race, the inference that
they are so is to be drawn even from the terms of the law. This is also
clearly established as a fact by the proofs before the Court. It undoubtedly
is true, as Poland has stated, that the persons whose rights are involved
were settled upon the lands in pursuance of a policy of Germanization which
appears upon the face of the legislation under which the contracts were
made. The effect of the enforcement of the law of July 14th, 1920, would be
to eradicate what had previously been done, so far as de-Germanization would
result from requiring the settlers in question to abandon their homes. But,
although such a measure may be comprehensible, it is precisely what the
Minorities Treaty was intended to [p25] prevent. The intention of this
Treaty was no doubt to eliminate a dangerous source of oppression,
recrimination and dispute, to prevent racial and religious hatreds from
having free play and to protect the situations established upon its
conclusion, by placing existing minorities under the impartial protection of
the League of Nations.
 There is yet another point which the Court will consider. Poland
contends that her action as regards the settlers has been taken in the
exercise of the rights conferred upon her by the Peace Treaty, and
especially by Article 256, and that the interpretation of this treaty does
not belong to the Council of the League of Nations when acting under the
Minorities Treaty. The Court is unable to share this view. The main object
of the Minorities Treaty is to assure respect for the rights of Minorities
and to prevent discrimination against them by any act whatsoever of the
Polish State. It does not matter whether the rights the infraction of which
is alleged are derived from a legislative, judicial or administrative act,
or from an international engagement. If the Council ceased to be competent
whenever the subject before it involved the interpretation of such an
international engagement, the Minorities Treaty would to a great extent be
deprived of value. The reasons urged by Poland for a restrictive
interpretation of the Treaty do not justify the Court in thus construing it.
By Article 93 of the Peace Treaty, Poland agrees to provide by a special
treaty for the protection of the interests of her racial, linguistic and
religious minorities. This pledge of protection would be altogether
uncertain and conjectural if the Minorities Treaty should cease to be
applicable whenever the act complained of involved the consideration, of a
stipulation of the Peace Treaty not specifically relating to minorities. In
order that the pledged protection may be certain and effective, it is
essential that the Council, when acting under the Minorities Treaty, should
be competent, incidentally, to consider and interpret the laws or treaties
on which the rights claimed to be infringed are dependent. [p26] Although
this case has been presented by the Polish Government as one under Article
256 of the Treaty of Peace, the Court is of opinion that the interpretation
of the various provisions of the Treaty of Peace and of the other
international agreements connected with it is to be considered as incidental
to the decision of questions under the Minorities Treaty.
 The Court, before entering upon the examination of the two points (a)
and (b) contained in the second question submitted to it, considers it
necessary to deal, in the first instance, with a question common to both
points, namely, whether and to what extent the date of the Armistice,
November 11th, 1918, affects the validity of the contracts now under
 According to Articles 2, 3, 7, and 8 the Polish Law of July 14th, 1920,
the validity of certain legal transactions relating to the property of the
German Empire and the German States, lying within the territories ceded to
Poland, depends on the fact whether these transactions took place before or
after November 11th, 1918, and that date appears in the questions submitted
to the Court. This question of date is raised upon a stipulation of the
Armistice as supplemented by the Final Protocol signed at Spa on December
1st, 1918, and upon certain provisions of the Treaty of Versailles.
 In the opinion of the Court, the date of November 11th, 1918, has not,
so far as concerns the rights of the settlers, the decisive character
attributed to it by the Polish Law of 1920.
 Article XIX, paragraph 3, of the Armistice contains the following
“While the Armistice lasts, no public securities shall be removed by the
enemy which can serve as a pledge to the Allies to cover reparation for war
 By the protocol concluded at Spa, December 1st, 1918, in relation to
the execution of the third and following paragraphs of Articles XIX of the
Armistice, it is provided that, [p27] while the Armistice lasts, “the German
Government shall take no measure that can diminish in any form whatsoever
the value of its public or private domain as a common pledge to the Allies
for the recovery of the reparation to which they are entitled”, and
particularly that it shall not alienate, cede or hypothecate railways,
canals, mines, woods or colonial, industrial or commercial enterprises which
belong to it or in which it has an interest.
 These stipulations are connected in the Polish argument with Article
256 of the Treaty of Versailles, which provides that the Powers to which
German territory is ceded shall acquire all property and possessions
situated therein, belonging to the German Empire or to the German States,
and that the value of such acquisitions shall be fixed by the Reparation
Commission and paid by the State acquiring the territory to the Reparation
Commission for the credit of the German Government on account of the sums
due for reparation. Article 92 of the Treaty provides that there shall be
excluded from the share of financial liabilities of Germany and Prussia,
assumed by Poland, that portion of the German or Prussian debt which,
according to the finding of the Reparation Commission, “arises from measures
adopted by the German and the Prussian Governments, with a view to German
colonization in Poland”; and that in fixing under Article 256 the value of
the property and possessions of Germany and the German States passing to
Poland, the Reparation Commission shall exclude from the valuation
buildings, forests and other State property, “which belonged to the former
Kingdom of Poland”, which property Poland was to acquire “free of all costs
 With regard to the last clause it is only to be observed that no claim
has been made that the lands now in question were the “property” of the
former Kingdom of Poland.
 The time at which territories formerly under German sovereignty passed
under Polish sovereignty is clearly shown by the terms of the Armistice,
together with those of the Minorities Treaty and the Treaty of Peace. [p28]
 By Article XII of the Armistice, which is found among the “Clauses
relating to the Eastern Frontiers of Germany”, German troops then in
territories which before the war formed part of Russia were required to
return within the frontiers of Germany as they existed on August 1st, 1914.
They therefore were not required to be withdrawn from German territories
which later passed to Poland.
 On the other hand, Paragraph 3 of the Preamble of the Minorities Treaty
runs as follows:
“Whereas the Polish State, which now in fact exercises sovereignty over
those portions of the former Russian Empire which are inhabited by a
majority of Poles, has already been recognized as a sovereign and
independent State by the Principal Allied and Associated Powers;”
and paragraph 4, as follows:
“Whereas under the Treaty of Peace concluded with Germany by the Allied and
Associated Powers, a Treaty of which Poland is a signatory, certain portions
of the former German Empire will be incorporated in the territory of
 This statement, which is in conformity with the historical events
leading to the restoration of the independence of the Polish nation, merely
denotes the fact, which is not disputed, that on June 28th, 1919, when the
Treaty of Peace and the Minorities Treaty were signed, although Poland was
recognized as exercising sovereignty over portions of the former Russian
Empire, the cession and occupation of the German territories were left to be
effected by the coming into force of the Treaty of Peace, and the German
Government as well as the Prussian State is to be considered as having
continued to be competent to undertake transactions falling within the
normal administration of the country during that period. Earlier dated were
applied in Alsace-Lorraine by virtue of special and specific provisions of
the Treaty. [p29]
 The question whether and to what extent the provisions of the Armistice
and of the Spa Protocol apply to dealings with the lands now in question,
will be examined hereafter in connection with points (a) and (b) of question
 The second question before the Court relates; to certain measures taken
by Poland affecting certain contracts entered into by the settlers with the
Prussian Government. Before proceeding to answer this question it should be
observed that German law is still in force in the territories ceded by
Germany to Poland, and that reference to German law is necessary in the
examination of the nature and extent of the rights and obligations arising
under these contracts. The Court, however, will not discuss distinctions and
exceptions which are not necessary for the present case.
 As regards the Rentengutsverträge mentioned in point (a) of the
question, they are both in form and in substance a special kind of contract
of sale. Specimens of such contracts are before the Court. The contract
states that the holder acquires the land as owner; he is described
throughout the instrument as a purchaser and he enters into possession of
the land upon the conclusion of the contract and the payment of a fixed sum.
The chief characteristics which distinguish these Rentengutsverträge from
ordinary contracts of sale are:
(1) part of the purchase price is paid before taking possession of the land
and the remainder is to be paid thereafter in the form of a fixed rent,
which may be redeemed on conditions stated in the contract; and
(2) under the special and general conditions (Bedingungen), which form part
of the contract, certain obligations are imposed upon the purchaser and
certain rights are reserved to the Prussian State, including in certain
specified cases the right of withdrawal and the right of re-purchase. But
except as otherwise provided in these special and general conditions [p30]
the ordinary rules governing contracts of sale apply to the
 Under German law the transfer of ownership of land is subject to
specific provisions. A contract of sale, for instance, even followed by
entry into possession on the part of the purchaser, is not sufficient in
itself to vest the legal ownership (Eigentum) in the purchaser. To effect a
transfer of such ownership, Auflassung and entry in the land registry are
necessary. The Auflassung consists in declarations of transfer of ownership
made at the same time by both parties before the land Registry Office
(Articles 873 and 925 of the German Civil Code). It follows that holders
under Rentengutsverträge where there was no Auflassung before November 11th,
1918 — had not acquired legal ownership of the lands prior to such date. But
it by no means follows that they had not acquired a right to the land.
 It has been contended that, before Auflassung, the rights of the
holders, if any, are only inchoate or imperfect rights which are not
enforceable at law. The Court is unable to share this view.
 An examination of the Rentengutsvertrag shows that it amounts to a
valid and enforceable contract for the ownership of the land. The first
clause is as follows:
“Der Landwirt .... erwirbt die im Teilungsplane des Ansiedlungsgutes ….
Kreis …., unter Z …. nachgewiesene Ansiedlerstelle in der Grösse von
ungefähr.... ha., bestehend aus den Flurstucken nebst den zugeteilten
Gebäuden — zu Eigentum gegen Rente unter den ihm bekannt gemachten, diesem
Vertrage als Anlage beigefügten, einen wesentlichen Bestandteil des
Vertrages bildenden allgemeinen und den hierunter folgenden besonderen
“…. farmer, hereby acquires as owner, in return for payment of a rent, the
settlement holding shown as .... on the allotment plan of the settlement
estate of…., in the district of….This holding is of about….hectares and
consists of the fields .... [p31] and the buildings appertaining thereto.
This contract is granted subject to the general conditions which have been
made known to the transferee, and which are annexed to the contract and form
an integral part thereof, and to the following special conditions . . . .”
 This is a plain statement that the purchaser acquires the specified
land as owner against rent (erwirbt zu Eigentum gegen Rente) subject to the
Special and General Conditions.
 The special conditions contain the following provisions: The purchaser
is to make a cash payment on accounts The rent is specified. The piece of
land is to be handed over on the payment on account being made. If the
payment on account is not made, the State may withdraw from the contract.
The rights of the purchaser may not be assigned except with the sanction of
 It is unnecessary to refer to the other special conditions.
 It is obvious that there is nothing in any of the Special Conditions
that prevents the purchaser from having a right to the land on the terms of
 The General Conditions require examination.
 In the form of contract furnished to the Court by the Secretary-General
of the League of Nations paragraph I provides that the purchaser is, within
a year, to make an “efficient economic settlement” (Leistungsfähige
wirtschaftliche Ansiedlung) on the land, and adds “the State shall judge
whether this duty has been carried out”.
 Paragraph 2 gives the State the right to withdraw from the contract if
the purchaser does not begin to cultivate within six months and complete the
cultivation within two years; also in the event of certain specified
breaches of contract by the purchaser, and further, if the right of the
purchaser against the State is seized by a creditor (Wenn der Anspruch des
Käufers gegen den Staat auf Uebertragung des Eigentums an der Stelle von
einem Gläubiger gepfändet wird).
 Under paragraph 3, the land is to be conveyed (aufgelassen) [p32] after
the purchaser has fulfilled to the satisfaction of the State his obligations
under the preceding paragraphs, and the State has provided the necessary
documents for the land register.
 This clause cannot be read as giving the State an arbitrary right to
refuse the Auflassung if the conditions of the contract have in fact been
fulfilled by the purchaser. In such a case the Auflassung may be enforced by
proceedings at law, and even if there were any difficulty about compelling
the Government to execute the conveyance, there would be no right on the
part of the Government to evict from the land the purchaser in possession
who had complied with his contract.
 It is obvious that in the ordinary course the State would execute the
conveyance if the terms had been fulfilled by the purchaser, and that, as
the State would not in such case have any right to evict, it would have
nothing to gain by postponing the Auflassung.
 Paragraph 6 makes provision against partial alienations of the land,
and also against alienation of the whole except to persons approved by the
 Paragraph 7 provides that the purchaser should himself reside on the
property and conduct the husbandry. The third clause of this Condition
provides that permission for a change of possession or ownership will be
refused by the State after the expiration of twelve years from the handing
over of the land only if it appears that the change may render doubtful the
attainment of the purpose of the Law of 1886.
 Some argument was addressed to the Court on behalf of the Polish
Government on the subject of Conditions 6 and 7, but these appear to have no
material bearing upon the case, and the same observation must be made with
regard to the right of repurchase reserved to the State in certain
eventualities by paragraph 9 of the General Conditions.
 Paragraph 11 contains the following condition:
Mit der Uebergabe erlangt der Käufer das Recht, die Stelle als Niessbraucher
zu nutzen. [p33]
“with the handing over the purchaser acquires the right of using the place
as a usufructuary.” Under German law the usufructuary is protected in his
possession and in the enjoyment of the fruits of the thing. Under other
forms of contracts presented to the Court, in which the purchaser is not
mentioned as a “usufructuary”, he acquires, as soon as the possession has
been transferred to him, a right to hold the land as if it were his own
 There is nothing else in the Rentengutsvertrag which calls for notice.
It appears to the Court to be clear that the purchaser had rights to the
land even before Auflassung. He gave valuable consideration in money and in
cultivation for the acquisition of this interest, and it was an interest
recognized by law and which might be safeguarded by legal proceedings. The
purchaser acquired a jus ad rem, and after Auflassung had a jus in re.
 The fact that there was a political purpose behind the colonization
scheme cannot affect the private rights acquired under the law, and indeed
it is self-evident that no scheme of colonization of this nature could
possibly succeed unless the settlers had security in the property for which
they had paid in money and in kind.
 The acquirer of the Rentengut, as well before as after Auflassung, has
not only a right to possession but is under an obligation to exercise that
right. Paragraph 7 of the General Conditions requires the purchaser and his
successors to live on the land and themselves to carry on the cultivation.
They cannot, without permission of the State, let the property or permit it
to be farmed by a deputy. Moreover, there are substantial limitations on the
right of resale. These obligations impose a material burden upon the
purchaser in addition to the payment of rent, while they deprive him of any
opportunity for speculative profit. This fully explains the fixing of a
 As to the right of a purchaser to the transfer of ownership under a
contract of sale, Article 433 of the Civil Code provides that “by a contract
of sale the seller of a thing is bound to deliver the thing to the purchaser
and to procure (for [p34] the latter) ownership of the thing”. Under
ordinary circumstances, therefore, a purchaser of a piece of land has an
undoubted right, enforceable by legal proceedings, to demand of the seller
the Auflassung which is necessary to complete the transfer of ownership. A
final judgment obtained by the purchaser under a Rentengutsvertrag takes the
place of the vendor's declaration of Auflassung (German Code of Civil
Procedure, Article 894).
 The fact that, in the present case, one of the contracting parties is
the State does not affect the legal situation, because under German law, the
State, in its relations under private law, is subject to the ordinary rules
of private law and can sue and be sued before the Courts (Article 4 of the
Introductory Act (Einführungsgesetz) to the German Code of Civil Procedure).
The claim which the purchaser of a Rentengut has against the State for
transfer of ownership is incidentally recognized by Clause 1, No. 5 of
paragraph 2 of the General Conditions. Nor is the State, in the opinion of
the Court, at liberty arbitrarily to deny this claim. Article 157 of the
German Civil Code provides that “contracts shall be interpreted according to
the requirements of good faith, ordinary usage being taken into
consideration”. This provision is applicable to all kinds of contracts and
resort to the Courts is always open unless expressly excluded.
 Having examined the nature and extent of the rights arising under the
Rentengutsverträge, and especially with regard to the time before
Auflassung, the Court must next consider what, if any, are the effects upon
these contracts of the change of sovereignty and of the ownership of State
property in the territories concerned.
 The representative of Poland made the following statement with regard
to those Rentengutsverträge where Auflassung had taken place before November
“The category of colonists not liable to expulsion under the Law of July
14th, 1920, comprises 17, 240 colonists, [p35] holding 262, 942 acres of
land, under Rentengutsverträge completed by Auflassung and registration of
title in the Land Registers, both having been granted by the Prussian
Government before November 11th, 1918. These colonists are all of German
race and language. The Law of July 14th, 1920, does not apply to these
Colonists. Their title to the land is recognized as valid by the Polish
Government subject to the terms of the Rentengutsverträge”.
 This recognition of title implies the admission that, after Auflassung,
legal ownership was vested in the holder of the Rentengut, so that the
ownership of Prussia having ceased to exist, such ownership could not pass
to Poland under Article 256 of the Peace Treaty.
 In the case of Rentengutsverträge, where no Auflassung had taken place,
and where the Prussian State appeared still in the land register as owner,
Poland, under Article 1 of the Law of July 14th, 1920, proceeded to the
substitution in the land register of the Polish Treasury for the Prussian
State as owner.
 It has been shown that under the Rentengutsverträge the purchaser has,
even before Auflassung, vested rights enforceable as against the vendor. The
principal question with which the Court is now confronted is the following:
The sovereignty and the ownership of State property having changed, is the
settler who had concluded a Rentengutsvertrag with the Prussian State
entitled to claim from the Polish Government as the new owner the execution
of the contract, including the completion of the transfer by Auflassung?
 Three views have been suggested.
 The first is that the contracts are of a “personal” nature and exist
only as between the original parties, i. e. the Prussian State and the
holder of the lands, so that the obligations of the former cannot be
considered as having passed to Poland. The reasons why this hypothesis is
not acceptable may be found both in what has been said as to the legal
nature of the [p36] rights of the holder under the Rentengutsverträge and in
what is now to be said concerning the effect of a change of sovereignty on
 Equally unacceptable is the second view, that the Rentengutsverträge
have automatically fallen to the ground in consequence of the cession of
territory. Private rights acquired under existing law do not cease on a
change of sovereignty. No one denies that the German Civil Law, both
substantive and adjective, has continued without interruption to operate in
the territory in question. It can hardly be maintained that, although the
law survives, private rights acquired under it have perished. Such a
contention is based on no principle and would be contrary to an almost
universal opinion and practice.
 There remains the third view that private rights are to be respected by
the new territorial sovereign.
 The general question whether and under what circumstances a State may
modify or cancel private rights by its sovereign legislative power, requires
no consideration here.
 The Court is here dealing with private rights under specific provisions
of law and of treaty, and it suffices for the purposes of the present
opinion to say that even those who contest the existence in international
law of a general principle of State succession do not go so far as to
maintain that private rights including those acquired from the State as the
owner of the property are invalid as against a successor in sovereignty.
 By the Minorities Treaty Poland has agreed that all Polish nationals
shall enjoy the same civil and political rights and the same treatment and
security in law as well as in fact. The action taken by the Polish
authorities under the Law of July 14th, 1920, and particularly under Article
5 is undoubtedly a virtual annulment of the rights which the settlers
acquired under their contracts and therefore an infraction of the obligation
concerning their civil rights. It is contrary to the [p37] principle of
equality in that it subjects the settlers to a discriminating and injurious
treatment to which other citizens holding contracts of sale or lease are not
 It remains now for the Court to consider whether the protection assured
by the Minorities Treaty in respect of civil rights is affected by any of
the provisions of the Peace Treaty, or whether the continuous validity of
the contracts is impaired by any of the contract clauses.
 Poland has invoked Article 91, paragraph 2 of the Peace Treaty, which
provides that German nationals or their descendants who became residents of
the ceded territories after January 1st, 1908, will not acquire Polish
nationality without a special authorisation from the Polish State. Poland
has further invoked Article 255, paragraph 2, of the same Treaty, which
provides that Poland, in taking over a portion of the debts of the German
Empire and the Prussian State, shall not be required to assume that portion
of the debt which, in the opinion of the Reparation Commission, is
attributable to the measures taken by the German and Prussian Governments
for the German colonization of Poland. Poland contends that these
stipulations indicate a purpose of de-Germanisation, and that consequently
she should not be required to perform any of the obligations or to recognise
any of the rights resulting from contracts into which the former sovereign,
in carrying out his policy of Germanisation, entered with reference to the
property which passed to the Polish State under Article 256 of the Treaty.
 The stipulations in question are specific, and respectively relate only
to a limited phase of the acquisition of nationality, and to the
apportionment of public debts. They have no bearing upon the preservation of
private rights; and an extension of them to that subject not only would be
inconsistent with the provisions of the Minorities Treaty concluded the same
day, but would also be inconsistent with other provisions of the Peace
Treaty directly bearing on private rights.
 Furthermore, Poland claims that she acquired the property [p38] of the
German States unburdened, because the Peace Treaty does not in terms require
her to fulfil the obligations which those States had contracted with regard
to such property. The Court, as has already been seen, is of opinion that no
treaty provision is required for the preservation of the rights and
obligations now in question. In the opinion of the Court, therefore, no
conclusion can be drawn from the silence of the Treaty of Peace contrary to
that resulting from the preceding statements. On the other hand, however,
the position of the Court as regards the protection of the private rights
now in question appears to be supported by the provisions of that Treaty.
 It is true that the Treaty of Peace does not in terms formally announce
the principle that, in the case of a change of sovereignty, private rights
are to be respected; but this principle is clearly recognized by the Treaty.
Under Article 75, contracts between the inhabitants of Alsace-Lorraine and
the former German authorities are as a rule maintained, and if terminated by
France in the general interest, equitable compensation must be accorded
under certain conditions. If this rule prevails in Alsace-Lorraine, which
under Article 51 was restored to French sovereignty as from the date of
November 11th, 1918, it is hardly conceivable that it was intended by the
Treaty to give discretionary powers as regards similar rights in territories
the sovereignty of which was acquired only by cession. Furthermore, by
paragraph 2 of the Annex to Section V (Contracts, Prescriptions, Judgments)
of Part X it is provided that, as between former enemies, the following
contracts are to be maintained:
(a) Contracts having for their object the transfer of estates or of real or
personal property where the property therein had passed or the object had
been delivered before the parties became enemies;
(b) Leases and agreements for leases of land and houses;
(c) Contracts of mortgage, pledge or lien;
(d) Concessions concerning mines, quarries and deposits; [p39]
(e) Contracts between individuals or companies and States, provinces,
municipalities, or other similar juridical persons charged with
administrative functions, and concessions granted by States, provinces,
municipalities, or other similar juridical persons charged with
 If as between enemies such contracts are maintained, it seems
impossible that the Treaty should have countenanced the annulment of
contracts between a State and its newly acquired nationals.
 Certain other considerations, relating to the conditions contained in
the Rentengutsverträge have been invoked in order to justify the annulment
of these contracts.
 First, the attention of the Court has been drawn to their mixed private
and public character. But the political motive originally connected with the
Rentengutsverträge does not in any way deprive them of their character as
contracts under civil law, and the few clauses which they contain of a
distinctively political character become inoperative without interfering in
the least with the normal execution of their essential clauses.
 Secondly, no argument for the annulment of the contracts can be based
upon the depreciation which has taken place since their conclusion in the
value of the currency in which the stipulated rent is payable. The Court is
not called upon to consider whether or how the disproportion between the
value of the estate and the depreciation of the rent can be legally
overcome. A similar disproportion has taken place in numerous other cases
more or less similar, and it would be incompatible with the principle of
equality to treat such disproportion as invalidating the contract only in
the case of the Rentengutsverträge.
 It remains to consider whether an Auflassung made after November 11th,
1918, was in violation of Clause XIX of the Armistice Conditions and Clause
1 of the Final Protocol signed at Spa, December 1st, 1918. Even assuming
that from any point of view the date of the Armistice, November 11th, 1918,
was the decisive date for determining tile validity of the contracts under
consideration, it may be observed that an Auflassung [p40], which is but the
fulfilment of a contract of alienation already entered into by the Prussian
State, cannot be considered as a “removal” (distraction) of public
securities within the meaning of the Armistice, nor as a “diminution” of the
value of the public or private domain within the meaning of the Spa
Protocol. The settlers were already in legal possession of the lands in
which they had invested their money, and to which they had already acquired
rights enforceable at law; and the Prussian State was not forbidden to
perform the usual administrative acts under its pre-existing contracts with
private individuals, especially where the delay in the performance of such
acts had been due to the disturbed conditions arising from the war.
 Point (b) in question 2 relates to leases (Pachtverträge) concluded
prior to November 11th, 1918. This point, according to the Resolution of the
Council of April 18th, 1923, transmitted to the Court by the
Secretary-General of the League of Nations on April 28th, “refers
exclusively to the case of a special category of colonist farmers, namely
those who occupy holdings in virtue of leases contracted before the
Armistice and still unexpired, and who subsequently obtained after the
Armistice amortization contracts (Rentengutsverträge) for these holdings.”
 Under the Pachtvertrag the place is handed over to the occupant, at
first without buildings, which so far as is necessary the State undertakes
to provide; but the settler is obliged to make a cash, deposit (1) for the
security of the State, and (2) for the acquisition of an inventory, and he
is also required to pay a percentage on the cost of the buildings as
security for their upkeep. The rent is payable (1) for the land, and (2) for
the use of the buildings. The settler's wife, when signing the lease jointly
with him, is liable as an individual debter. The lessee is required to keep
a stock of cattle of a certain value. He is obliged to hand back any part of
the land which may prove to be required “for [p41] the fulfilment of the
private law obligations of the State”. On the termination of the lease he is
entitled to a conditional compensation; and the fact is particularly to be
noticed that, by an express clause in the lease, the event of his taking
over the place under a “ Rentengutsvertrag” either during or at the end of
the lease, is dealt with, and the following conditions are provided: (1) the
security for the lease and the security for upkeep of the buildings are
credited as cash on the purchase-money for the buildings, (2) an allowance
of two years'rent is credited as cash on account of the purchase of the
buildings, and (3) an extension of time is given for the payment of the
balance of the purchase-money of the buildings, for which balance a mortgage
is also executed.
 The right of the lessee is enforceable at law even against third
parties. Article 571 of the German Civil Code provides that “where the land
subject to a lease is, after delivery to the lessee, transferred by the
lessor to a third party, the acquirer, during the period of his ownership,
takes the place of the lessor in the rights and obligations arising under
 What has heretofore been said in refutation of the argument that the
Rentengutsverträge need not be recognized by Poland because of the
“personal” character of the rights, the “political” nature of the contracts
and the disproportion of the rent to the value of the land, applies equally
to the argument against the recognition of the Pachtverträge and need not be
 It is evident that under the “Pachtverträge” a certain security of
tenure is assured, subject necessarily to the performance of the conditions
of the tenure. The holder becomes personally attached to the land, with a
reasonable expectancy of permanent occupancy, and it becomes his home, for
the preservation of which he gives his labour, as well as a part of what he
produces. The State proprietor on the other hand finds its compensation in
the cultivation, development and productivity of the land, which is thus
made to contribute to the wealth and prosperity of the State. [p42]
 For the reasons stated, the Court is of opinion that the Pachtverträge
were not affected by the transfer of sovereignty, and that they remain in
force unless they have expired or have been legally superseded by
 If the holder of a Pachtvertrag realised, by the fruits of his
industry, enough to enable him to undertake the expenditure incumbent upon
the holder of a Rentengutsvertrag, it was very usual for him to exchange the
Pachtvertrag for a Rentengutsvertrag, with its permanency of tenure. This
possibility is contemplated by the terms of the Pachtvertrag itself. The
question submitted to the Court relates to the rights of those holders of
Pachtverträge who had given their Pachtverträge in exchange for
Rentengutsverträge. The Polish Government has taken up the position that
this put an end to the Pachtvertrag, but that the Rentengutsvertrag, in
consideration of which the Pachtvertrag was surrendered, is void. It is
impossible to support such a contention. If the Rentengutsvertrag were held
to be void, in all fairness the purchaser would be entitled to have his
Pachtvertrag restored to him. But, in the view of the Court, the
Rentengutsvertrag was good. It is not obnoxious to any of the objections
which have been urged as already stated in this opinion. The exchange of the
Pachtvertrag for the Rentengutsvertrag was a reasonable and proper operation
in the ordinary course of management of land.
 Point (b) of the second question as explained by the Council inquires
whether the position taken by Poland to the effect that Rentengutsverträge
granted after November 18th, 1918, to holders of Pachtverträge are invalid,
is in conformity which her obligations. The Court is of opinion that the
position of the Polish Government is not justified. As the Prussian State
retained and continued to exercise its administrative and proprietary rights
in the ceded territory until this territory passed to Poland under the
Treaty of Peace, the only ground on which the position of Poland could be
justified is, in the opinion of the Court, the contention that the granting
of the Rentengutsvertrag was prohibited by the provision in the Spa
Protocol, by which the German Government [p43] engaged, while the Armistice
lasted, not to take any measure that could diminish the value of its domain,
public or private, as a common pledge to the Allies for the recovery of
reparations. The Court thinks that in view of the connection which has been
shown to exist between the Pachtverträge and the Rentengutsverträge, it
would be an unreasonable straining of the prohibition in the Protocol to
hold that it precluded the Prussian State from granting, prior to the
passing of the territory to Poland, a Rentengutsvertrag to the holder of a
Pachtvertrag granted prior to the Armistice.
 For these reasons,
The Court is of opinion,
That the points referred to in (a) and (b) of the Resolution of the Council
of the League of Nations of February 3rd, 1923, do involve international
obligations of the kind contemplated by the Treaty between the United States
of America, the British Empire, France, Italy, Japan and Poland, signed at
Versailles on June 28th, 1919, and that these points come within the
competence of the League of Nations as defined in that Treaty;
That the position adopted by the Polish Government, and referred to in (a)
and (b) of the said Resolution was not in conformity with its international
 Done in French and English, the English text being authoritative, at
the Peace Palace, The Hague, this tenth day of September, nineteen hundred
and twenty-three, in two copies, one of which is to be deposited in the
archives of the Court and the other to be forwarded to the Council of the
League of Nations.
(Signed) Å. Hammarskjöld,