[p6] On July 7th, 1923, the
Council of the League of Nations adopted the following Resolution:
 The Council of the League of Nations having received notice of the
The Polish Government has decided to treat certain persons, who were
formerly German nationals, as not having acquired Polish nationality and as
continuing to possess German nationality, which exposes them in Poland to
the treatment laid down for persons of non-Polish nationality, and in
particular of German nationality:
On the one hand, on the ground that these persons were born in the territory
which is now part of Poland, their parents having been habitually resident
there at the date of this birth, it is maintained that in virtue of Article
4, paragraph 1, of the Treaty of June 28th, 1919, between the Principal
Allied and Associated Powers and Poland, they are ipso facto Polish
nationals, and [p7] consequently enjoy all the rights and guarantees granted
by the provisions of the said Treaty to Polish nationals belonging to
racial, religious or linguistic minorities.
On the other hand, the Polish Government considers itself entitled not to
recognise these persons as Polish nationals, if their parents were not
habitually resident in the above-mentioned territory both on the date of
birth of the person concerned and on the date of the entry into force of the
above-mentioned Treaty, namely January 10th, 1920. It is consequently
maintained that these persons cannot legally enjoy the guarantees granted by
Requests the Permanent Court of International Justice to give its Advisory
Opinion, if possible during the present session, on the following questions:
(1) Does the question regarding the position of the above-mentioned persons,
in so far as they may belong to racial or linguistic minorities, arising out
of the application by Poland of Article 4 of the Treaty of June 28th, 1919,
between the Principal Allied and Associated Powers and Poland, fall within
the competence of the League of Nations under the terms of the said Treaty?
(2) If so, does Article 4 of the above-mentioned treaty refer solely to the
habitual residence of the parents at the date of birth of the persons
concerned, or does it also require the parents to have been habitually
resident at the moment when the treaty came into force?
The Secretary-General is authorised to submit this request to the Court,
together with all documents concerning the question, to inform the Court of
the action taken by the Council in the matter, to give all necessary
assistance in the examination of the case and, if necessary, to arrange to
be represented at the Court.
 On the 11th of the same month, the Secretary-General of the League of
Nations submitted to the Permanent Court of International Justice a request
in the following terms: [p8]
The Secretary-General of the League of Nations, in pursuance of the Council
Resolution of July 7th, 1923,
and in virtue of the authorization given by the Council, has the honour to
submit to the Permanent Court of International Justice an application
requesting the Court, in accordance with Article 14 of the Covenant, to give
an advisory opinion to the Council on the questions which have been referred
to the Court by the Resolution of July 7th, 1923.
The Secretary-General has also the honour 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
up to the present been communicated to the Members of the Council and are
not yet in the possession of the Court.
The Secretary-General will be prepared to furnish any assistance which the
Court may require in the examination of the question, and will, if
necessary, arrange to be represented before 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. The Registrar was also instructed to
notify the German Government.
 The Secretary-General sent, both with the request and subsequently, a
number of documents relating to the question. At the same time the
Secretary-General referred to certain other documents, which he had sent to
the Court with the request for an Advisory Opinion regarding the question of
the German settlers in Poland, which question formed the subject of the
Advisory Opinion given by the Court on September 10th, 1923 (No. 6).
 Furthermore, the Court, at the request of the Polish and German
Governments respectively, has heard oral statements made by Count
Rostworowski, Professor at the University [p9] of Cracow, representative of
the Polish Government, and M. Schiffer former Minister of Justice,
representative of the German Government.
 The Roumanian Government, to whom notice of the request for an Advisory
Opinion submitted by the Council was despatched by the Secretary-General of
the League of Nations on August 6th, informed the Court only on August 25th
that it desired to be allowed to furnish information during the hearings in
regard to this Opinion. The Court, using the discretionary powers which it
possesses in the case of Advisory Opinions, at once deferred to the desire
thus expressed, and fixed September 3rd for the hearing of the Roumanian
representative. The period of time thus allowed was considered too short by
Roumania, but it was impossible to extend it beyond the date already fixed,
having regard to the fact that the completion of the Court's Agenda was
imminent, and to the Council's desire that the question should, if possible,
be dealt with during the present session.
 It appears from the documents [FN1] placed before the Court [p10] that,
whereas the question regarding the German settlers in Poland was brought to
the knowledge of the League of Nations by a telegram from the German League
for the Protection of the Rights of Minorities in Poland, of Bromberg,
addressed to the Secretary-General on November 8th, 1921, the question
relating to the interpretation of Article 4 of the Treaty signed at
Versailles on June 28th, 1919, between the Principal Allied and Associated
Powers and Poland, was referred to for the first time in the above-mentioned
League's petition to the League of Nations, dated November 12th, 1921, This
petition also dealt with the question of the settlers, and the Council of
the League subsequently considered both questions together.
[FN1] List of Documents Transmitted to the Court by the Secretary-General of
the League of Nations or to Which Reference is Made by Him.
1 Account of the action taken by the Council of the League of Nations in the
matter, dated July 11th, 1923.
2 Note by the Secretary-General of the League of Nations to the Members of
the Council, dated April 25th, 1923.Appendix: Letter from the Brazilian
representative to the Secretary-General of the League of Nations, dated
April 21st, 1923.
3 Report presented by the Brazilian representative to the Council on July
4 Note by the Secretary-General of the League of Nations to the Members of
the Council, dated June 27th, 1923.Appendix: Letter from the Polish Delegate
to the League of Nations to the Secretary-General of the League, dated June
5 Minutes of the 5th meeting of the 25th session of the Council of the
League of Nations.
6 Minutes of the 12th meeting of the 25th session of the Council of the
League of Nations.
7 Report by the representatives of Belgium, Italy and Japan, approved by the
Council on May 17th, 1922.
8 Petition of the " Deutschtumsbund" of November 12th, 1921.
9 Memorandum of the Polish Delegation to the League of Nations of January
10 Information regarding the questions of fact and of law mentioned in
paragraphs 1 and 2 of the Resolution of the Council of the League of Nations
of May 17th, 1922, presented to the Council on July 5th, 1922 by the Polish
Delegate to the League of Nations.
11 Memorandum emanating from the "Deutschtumsbund", dated August 1st, 1922.
12 Report by the Brazilian representative and Resolution adopted by the
Council of the League of Nations on September 9th, 1922.
13 Report by the Brazilian representative and Resolution adopted by the
Council of the League of Nations on September 30th, 1922.
14 Note by the Minister for Foreign Affairs of Polad to the President of the
Council of the League of Nations, dated December 7th, 1922.
15 Report by the Brazilian representative and Resolution adopted by the
Council of the League of Nations on February 3rd, 1923.
 The petition was brought to the knowledge of the Polish representative
near the Secretariat and was communicated to the Members of the Council, in
conformity with a Council Resolution on the protection of minorities, dated
June 27th, 1921. In accordance with the procedure laid down in its
Resolution of October 25th, 1920, the Council appointed a Committee
consisting of three of its Members to investigate the questions submitted to
the League by the German League in Poland. On the basis of information
supplied by the Polish representative at Geneva and by the League
above-mentioned, the Committee prepared a report which was approved by the
Council on May 17th, 1922. In the Resolution approving the report, the
Council requested the Polish Government to postpone any administrative or
judicial measures likely to affect the normal position of persons of German
origin engaged in agricultural work, whose status as Polish subjects was
dependent upon the decision taken with regard to the questions of
interpretation raised in the Committee's report.
 Subsequently additional information was submitted to the Council by the
German League in Poland and the Polish Government, and on September 9th,
1922, the Brazilian representative submitted to the Council, then in session
at Geneva, a report recommending that the question of the interpretation of
Article 4 of the Polish Treaty of Minorities should be submitted to a
Committee of Jurists. The Council approved [p11] this suggestion and
appointed the Committee, which was composed of MM. Botella (Spain),
Fromageot (France), Sir Cecil Hurst (Great Britain), and van Hamel
(Secretariat of the League of Nations). In a Resolution dated September
30th, the Council decided to request the representative of the Polish
Government to bring the report submitted by this Committee to the notice of
his Government at the earliest possible moment. The Polish Government
informed the President of the Council of the League of Nations that it could
not accept the interpretation of Article 4 of the Polish Treaty of
Minorities adopted in the report and added that in its opinion the said
Article was not amongst those placed under the guarantee of the League of
 When, on February 3rd, 1923, the Council decided to submit to the Court
for an advisory opinion the question regarding the German colonists, it
stated at the same time that since the interpretation of Article 4 of the
Polish Treaty of Minorities was at that moment the subject of negotiations
between German and Polish Delegations at Dresden, it would perhaps be better
for practical reasons not to submit that question to the Court for the time
being, and to await the result of the negotiations then proceeding, it being
understood, however, that the League of Nations reserved all the rights
which it possessed under the Treaty of Minorities.
 In the absence of information in regard to the progress of negotiations
at Dresden, the Brazilian Representative on the Council, on April 21st,
instructed the Secretary-General to ask the Polish Government to furnish all
information likely to throw light on the matter, in order that the Council
might once more consider the question. The Secretary-General having complied
with these instructions, the Polish Delegate to the League of Nations
informed him, on June 26th, that in the course of the negotiations at
Dresden the foundations of an agreement regarding the interpretation of
Article 4 had been laid, and that the agreement in question was under
consideration by the two Governments. The Polish Government therefore
requested the Council to refrain from including the question of the
interpretation of Article 4 of the Minorities Treaty upon its Agenda. [p12]
 Nevertheless, as the question had been included on the Agenda for the
25th Session of the Council, and as the German Consul at Geneva informed the
Secretary-General, on July 6th, that the German Government did not foresee
the possibility of a speedy settlement of the question by means of direct
negotiations, the Council decided to submit to the Court for its advisory
opinion the two following questions:
(1) Is the League of Nations competent to deal with the question of Article
4 of the Treaty of June 28th, 1919, between the Principal Allied and
Associated Powers and Poland?
(2) If the League of Nations is competent, what is the precise
interpretation of this Article?
 At the request of the Council, the President agreed to draw up the
final text of the request to be submitted to the Court. This text is that
which is reproduced at the commencement of the present opinion. The new
wording of the second question concentrates the Court's attention on the
difficulty arising out of the words "born in the said territory of parents
habitually resident there" which occur in Article 4.
 The first question to be decided is whether the matter dealt with in
the request is within the competence of the League of Nations.
 In contesting the competence of the League to deal with the question
regarding the interpretation of Article 4 of the Polish Treaty of Minorities
with respect to certain former German subjects, and regarding the manner in
which this Article has been applied by Poland to these persons, Poland
contends that the guarantee of the League of Nations established by the
Treaty does not extend to the provisions of Articles 3 to 6.
 Poland's contention in this respect is as follows. Article 12 of the
Minorities Treaty begins: [p13]
"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 guarantee of the League of Nations therefore only extends to the
preceding Articles of the Treaty in so far as the stipulations of these
Articles affect persons belonging to racial, religious or linguistic
minorities, and Poland does not admit that the persons contemplated in
Article 4 do in fact belong to a minority within the meaning of the Treaty.
The first paragraph of Article 4 runs as follows:
"Poland admits and declares to be Polish nationals ipso facto and without
the requirement of any formality persons of German, Austrian, Hungarian or
Russian nationality who were born in the said territory of parents
habitually resident there, even if at the date of the coming into force of
the present treaty they are not themselves habitually resident there."
 According to Poland's contentions, a person must be a Polish national
in order to belong to a minority within the meaning of the Treaty. But the
persons referred to in the paragraph quoted above — in this case persons of
German origin — cannot be considered as Polish nationals, since the question
to be decided is whether, under the terms of this Article, they do or do not
possess this status. At the most they can only be considered as candidates
for membership of a minority; it follows therefore that the competence of
the League of Nations as defined in Article 12 of the Treaty does not extend
to these persons.
 The first question which arises therefore is what must be understood by
a minority — in the present case a German minority — within the meaning of
the Polish Minorities Treaty. In order to reply to this question it is
necessary to [p14] bear in mind the conditions under which the Minorities
Treaty was concluded and the relations existing between that Treaty and the
Treaty of Peace which was signed on the same day.
 The independence of the new State of Poland was finally recognized by
the Treaty of Peace. At the same time Poland assumed certain obligations
towards the Principal Allied and Associated Powers who were co-signatories
with her of the Treaties of Peace and Minorities. According to Article 93 of
the Treaty of Peace:
"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."
 Again, in the Preamble of the Minorities Treaty Poland declares that
"to conform her institutions to the principles of liberty and justice, and
to give a sure guarantee to the inhabitants of the territory over which she
has assumed sovereignty."
 It is to be observed that these two clauses which serve as a basis for
the provisions embodied in the Minorities Treaty do not speak restrictively
of Polish nationals, that is to say of persons who in their capacity as
Polish nationals constitute minorities within the whole body of nationals of
the country; these clauses considerably extend the conceptions of minority
and population, since they allude on the one hand to the inhabitants of the
territory over which Poland has assumed sovereignty and on the other hand to
inhabitants who differ from the majority of the population in race, language
or religion. The expression "population" seems thus to include all
inhabitants of Polish origin in the territory incorporated in Poland. Again,
the term "minority" seems to include inhabitants who differ from the
population in race, language or religion, that is to say, amongst others,
inhabitants of this territory of non-Polish origin, whether [p15] they are
Polish nationals or not. This conclusion is confirmed by the terms of
Article 2 of the Minorities Treaty, according to which the Polish Government
undertakes to assure full and complete protection of life and liberty to all
inhabitants without distinction of birth, nationality, language, race or
religion, and declares that all inhabitants of Poland shall enjoy certain
rights which are therein enumerated.
 The terms of Article 12, which fixes the extent of the competence of
the League of Nations, are in entire accordance with the wider conception of
a minority derived from the Articles above-mentioned, since it speaks of
"persons belonging to racial, religious or linguistic minorities", without
attaching any importance to the political allegiance of these persons.
 Moreover, the Minorities Treaties in general, and the Polish Treaty in
particular, have been concluded with new States, or with States which, as a
result of the war, have had their territories considerably enlarged, and
whose population was not therefore clearly defined from the standpoint of
political allegiance. One of the first problems which presented itself in
connection with, the protection of the minorities was that of preventing
these States from refusing their nationality, on racial, religious or
linguistic grounds, to certain categories of persons, in spite of the link
which effectively attached them to the territory allocated to one or other
of these States. It is clearly not a purely fortuitous circumstance that the
Treaties for the protection of minorities contain provisions relating to the
acquisition of nationality. Again, the fact that in some cases these
provisions merely repeat, either in their entirety or in part, principles
laid down in the Peace Treaties, would appear to be explained by the
intention to extend to these principles the guarantee of the League of
Nations, no matter what points of difference or resemblance there may
between these treaties.
 Poland therefore, at the moment of her final recognition as an
independent State and of the delimitation of her frontiers, signed
provisions which establish a right to Polish nationality, and these
provisions, in so far as they are inserted [p16] in the Minorities Treaty,
are recognized by Poland as fundamental laws with which no law, regulation
or official action may conflict or interfere (Article 1 of the Treaty of
Minorities), Though, generally speaking, it is true that a sovereign State
has the right to decide what persons shall be regarded as its nationals, it
is no less true that this principle is applicable only subject to the Treaty
obligations referred to above.
 The observance by Poland of the provisions regarding the acquisition of
Polish nationality, which she accepted in signing the Treaty of Peace, is of
supreme importance to persons of non-Polish origin who are entitled to avail
themselves of the provisions in question in order to become Polish
 In view of the importance of this matter, the Principal Allied and
Associated Powers desired to create a sure guarantee in favour of these
persons; with this object in view they inserted stipulations on the subject
in the Minorities Treaty, thus indicating their intention that these persons
should benefit by the protection provided for under Article 12. The very
fact that Articles 3 to 6 are included in the Minorities Treaty seems thus
to show that, in so far as these Articles establish a right on the part of
persons of German origin to Polish nationality, this right is placed under
the guarantee of the League of Nations, which is specially fitted to
undertake the protection of the persons of German origin referred to in the
Minorities Treaty, to which Germany was not a signatory.
 It seems therefore evident that since the Minorities Treaty in general,
and Article 4 in particular, does not exclusively contemplate minorities
composed of Polish nationals or of inhabitants of Polish territory, Poland,
by consenting, in Article 12 of the Treaty, to the preceding Articles being
placed under the guarantee of the League of Nations in so far as they
concern persons belonging to racial or linguistic minorities, also consents
to the extension of this protection to the application of Articles 3 to 6.
 If this were not the case, the value and sphere of application of the
Treaty would be greatly diminished. But in the Advisory Opinion given with
regard to the questions put [p17] concerning the German colonists in Poland,
the Court has already expressed the view that an interpretation which would
deprive the Minorities Treaty of a great part of its value is inadmissible.
In the present case it would be still less admissible, since it would be
contrary to the actual terms of the Treaty, which lays down in Article 12
that the clauses preceding this Article, including therefore those contained
in Article 4, are placed under the guarantee of the League of Nations.
 The Council of the League of Nations, in the second place, has
requested the Court to give its opinion regarding the construction to be
placed upon the above-mentioned stipulation of Article 4, paragraph 1, of
the Minorities Treaty of June 28th, 1919, between the Principal Allied and
Associated Powers and Poland, and in particular upon the words "habitually
 The Polish Government maintains that when the Treaty places it under an
obligation to admit and declare to be Polish nationals persons of German,
Austrian, Hungarian or Russian nationality, born in the territory which has
now become Polish, of parents habitually resident there, the meaning is
that, of the individuals of German origin born in this territory, only those
can claim Polish nationality whose parents were habitually resident there
both on the day of the coming into force of the Treaty (January 10th, 1920)
and on the day of the birth of the individual.
 Such an assertion is in contradiction with the terms of the provision
which it claims to interpret and is not supported by the precedents supplied
by international practice.
 When saying that persons born in the territories ceded to Poland of
parents habitually resident there are admitted to Polish nationality, the
Treaty clearly takes the date of birth of those persons as a basis and
establishes a close relationship, an intentional synchronisation between
their birth and the habitual residence of their parents. On the other hand,
to [p18] require furthermore the continuance or the reestablishment of this
habitual residence at the time of the coming into force of the Treaty would
amount to an addition to the text and would go beyond its terms. Persons
whose parents were then, but then only, habitually resident in the new
Poland would not have been born of persons habitually resident there, and
there was never any intention of making Article 4 applicable to them. Why
should the fact that the parents had been habitually resident at a previous
period change the natural meaning of the words? Since the choice lay between
the two systems which in various forms and combinations have always been
adopted when it has been necessary to determine the effect of a territorial
adjustment upon the nationality of the inhabitants of the territories
annexed or ceded, the Treaty adopted both the principle of habitual
residence and the principle of origin; it has combined these two systems.
 In Article 3, which supplements Article 91 of the Peace Treaty of
Versailles, it declares in the first place to be Polish nationals, subject
to a right of individual option, all German nationals habitually resident in
the territories incorporated in Poland.
 In the second place, under Article 4, it grants the same nationality to
persons born in the above-mentioned territories, that is to say, originating
from these territories, provided they are born of parents habitually
resident there, and that they do not renounce, within a period of two years,
the nationality which they have acquired. In laying down the condition with
regard to the residence of the parents the authors of the Treaty desired to
reduce as far as possible the element of chance. A birth occurring in a
family established in the territory, on the regular and permanent footing
presupposed by habitual residence, would not be an accidental circumstance
taking place during a temporary sojourn or visit. The establishment of his
parents in the territory on this basis creates between the child and his
place of birth a moral link which justifies the grant to him of the
nationality of this country; it strengthens and supplements the material
bond already created by the fact of his birth. [p19]
 To require in addition that the parents should have renewed or
preserved their habitual residence in the ceded territories at the time when
the Treaty of Minorities came into force would be to lay down a useless
condition not to be found in any Treaty of annexation hitherto concluded.
The habitual residence of parents at the time of the coming into force of
the Treaty does not in any way concern or affect the individuals whose
nationality has to be determined. Many of these individuals have doubtless
reached the age of manhood; some perhaps have already reached old age; at
all events, most of them have attained an independent existence and a home
of their own. What in these circumstances would be the use of ascertaining
whether their parents, whose house they have left and whose destinies they
no longer share, were or were not habitually resident in the territories
incorporated in Poland on a day following this incorporation? The inquiry
thus prescribed would be entirely arbitrary; and there could be no reason
for it unless the habitual residence of the parents in the territories in
question implied or was calculated to create a presumption that the children
themselves were habitually resident there and that in consequence of this
residence there was a closer, more enduring and more powerful link with
Poland, which had become their fatherland. But the first paragraph of
Article 4 itself is careful explicitly to dispel a presumption of this kind,
when it declares that it is not necessary for the persons with whom it deals
to be themselves habitually resident in the territories incorporated in
Poland at the date of the coming into force of the Treaty. The solution thus
adopted by the Treaty appears further to be justified, having regard to the
great number of persons who were forced by the war to abandon their homes in
the present Polish territories.
 Furthermore, what is the position of those whose parents died before
January 10th, 1920, or transferred their residence abroad in the interval
between that date and the date of birth? Would such death or change of
residence, for which the children are in no way responsible, prevent them
from availing themselves of the provisions of Article 4, should they think
fit to do so? According to the theory that the habitual residence of [p20]
the parents in Poland on the day of the coming into force of the Treaty is a
necessary and hard and fast condition, this question can only be answered in
the affirmative. This is sufficient to condemn such a contention.
 Finally, is it necessary to point out that the adoption of the Polish
standpoint would by no means render it impossible for one and the same
person to possess more then one nation-ality, a consequence which the
exponents of that standpoint have indicated, pointing out the danger
involved? It would undoubtedly have the result of diminishing this danger,
by reducing the number of persons who become Polish under Article 4. But the
possibility of cases of double nationality would by no means be eliminated.
Only an international agreement between the interested Powers could produce
this desirable result.
 The Court's task is clearly defined. Having before it a clause which
leaves little to be desired in the nature of clearness, it is bound to apply
this clause as it stands, without considering whether other provisions might
with advantage have been added to or substituted for it. The Minorities
Treaty (Article 4, paragraph 1) admits and declares to be Polish nationals,
ipso facto, persons who were born in the territory of the new State "of
parents habitually resident there". These words refer to residence of the
parents at the time of the birth of the child and at this time only. It is
necessary, but on the other hand sufficient, that on the date of birth the
parents should have been habitually resident, that is to say should have
been established in a permanent manner, with the intention of remaining, in
the territory which subsequently became incorporated in Poland. To impose an
additional condition for the acquisition of Polish nationality, a condition
not provided for in the Treaty of June 28th, 1919, would be equivalent; not
to interpreting the Treaty, but to reconstructing it. [p21]
 For these reasons
The Court is of opinion
That the position of the persons contemplated in the Resolution of the
Council of the League of Nations of July 7th, 1923, arising out of the
application by Poland of Article 4 of the Treaty of June 28th, 1919, between
the Principal Allied and Associated Powers and Poland does fall within the
competence of the League of Nations under the terms of the said Treaty;
That Article 4 of the above-mentioned Treaty does refer only to the habitual
residence of the parents at the date of birth of the persons concerned.
 Done in English and in French, the French text being authoritative, at
the Peace Palace, The Hague, this fifteenth 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) A. Hammarskjold,
 Mr. Moore took part in the deliberations of the Court concerning the
present Opinion, but had to leave the Hague before its terms were finally
settled. He declared that he concurred in the conclusions of this Opinion.
 Lord Finlay, while agreeing in the conclusions arrived at in regard to
both questions before the Court, desired, to add the following observations
in regard to the question of the competence of the League of Nations in the
A. H. [p22]
Observations by Lord Finlay on the Question of Competency.
 I concur in the conclusions arrived at by the Court on both questions,
but I desire to add some observations as to the reasons given for their
opinion on the first question, that of competency.
 The situation in the present case may well be and has indeed been
expressed as follows:
 In the case before the Court, the contention of the Polish Government
that the Polish nationality of the persons concerned must be established
before they constitute a minority within the meaning of the Minorities
Treaty, may involve an interpretation of Article 4 of the Treaty and goes
therefore to the merits of the main question. It will be observed that those
who, upon a true construction of Article 4, fall within the Article, are
Polish nationals ipso facto and without the requirements of any formality.
As will be shown hereafter, the Court is of opinion that the persons
referred to in the Council's request do fall within the Article. They are
Polish nationals. They are not a future minority, as was contended by the
representative of Poland, but an existing minority, and as such are clearly
affected, within the meaning of Article 12, by the refusal of rights of
citizenship; so that even assuming that the Polish contention of restricting
minorities to Polish nationals was correct, the Court reaches the same
conclusion as that which has already been stated regarding the competence of
the League of Nations.
 The present belongs to a large class of cases in which the decision on
relevancy and the decision on the merits both depend on the finding to be
arrived at on some one point of law or fact. The question of relevancy is in
its nature preliminary, but if it depends on a point which is also decisive
of the merits, both questions may most properly be considered together. In
this case the one vital question was [p23] whether Article 4 requires
domicile of the parents on Polish territory at the time of birth only, or
also at the time when the Treaty of Peace came into effect. The Court holds,
and I agree, that domicile at the date of birth is all that is required by
the Article. It follows that the Polish contention is wrong on the merits
and also on the question of competency. As pointed out above, the persons
became Polish nationals ipso facto, and the withholding of their rights as
nationals was a wrong to them, as members of what may be called the German
Minority in the aggregate of Polish nationals.
 It is only in so far as the stipulations of the preceding Articles
affect persons belonging to minorities of race, language, or religion, that
they are placed under the guarantee of the League of Nations by Article 12
of the Treaty of Minorities.
 Article 4 of that Treaty recognizes as ressortissants polonais, ipso
facto, persons of German and certain other specified nationalities who are
born on Polish territory of parents domiciled there, although such persons
were not themselves domiciled there when the Treaty took effect.
 It is admitted that there is a German minority in Poland. Does this
Article affect persons of German race belonging to such a minority in
Poland? Manifestly it does. It confers upon them, ipso facto, the status of
Polish ressortissants, de plein droit et sans aucune formalité, if born of
parents domiciled in Poland at the time of birth. It is apparent that
Article 4 affects, and may have a very important effect upon the members of
the German minority in Poland. It confers upon them Polish nationality in
certain events, and to withhold the rights of Polish nationality when these
events have occurred is an infraction of the Treaty to the prejudice of
these persons. [p24]
 A question has been raised: With regard to what body of persons as a
whole is the existence of a minority for the purposes of Article 12 to be
ascertained? In my opinion it must in most cases be ascertained with a
reference to the whole body of Polish ressortissants of which they form
 On this point reference must first be made to Article 93 of the Treaty
of Peace. That Article makes the following provision:
"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."
 This pledge was carried out in the Minorities Treaty, which was signed
on the same day as the Treaty of Peace, and it is on the terms of the
Minorities Treaty that the question now before the Court must be decided.
It. is not to the purpose to observe that under Article 93 a treaty might
have been framed in wider or in narrower terms. The question for the Court
is defined by the Treaty of Minorities itself.
 The Treaty of Minorities by its second Article provides that Poland
engages to grant to all the inhabitants full and complete protection of life
and liberty, without distinction of birth, nationality, language, race or
 This provision, it will be observed is in favour of all inhabitants of
Poland, and it was natural that protection for life and liberty should be
ensured to all inhabitants. But, on the other hand, in Articles 7, 8 and 9,
which are those relevant to the present purpose, a different line is
adopted. Article 7 provides that all ressortissants polonais shall be equal
before the law and enjoy the same civil and political rights, without
distinction of race, language or religion. In Article 8 it is provided that
ressortissants polonais belonging to racial, religious or linguistic
minorities, shall enjoy the same [p25] treatment and equality in law and in
fact as other Polish nationals.
 The matter is even clearer upon Article 9. That Article lays down that
in towns and districts in which a considerable proportion of Polish
nationals of other than Polish speech are resident, Poland will provide, in
the public educational system, facilities for instruction being given to the
children of such Polish nationals through the medium of their own language.
The second paragraph of the same Article provides that in towns and
districts where there is a considerable proportion of Polish nationals
belonging to racial, religious or linguistic minorities, they should have a
fair share of any funds provided by the State or by any public body for
educational, religious or charitable purposes, and a provision is added that
this Article shall apply to Polish citizens of German speech in that part
only of Poland which was German territory on August 1st., 1914.
 It therefore appears that while such elementary rights as those of life
and liberty are secured to all inhabitants, there are a great many rights
secured to Polish ressortissants only, and it is with regard to such rights
that the question of unfair treatment of minorities must arise in the
immense majority of cases. Of course, it is conceivable that there might be
a case in which protection for life and liberty was refused to some
unpopular minority of inhabitants. In that case the minority would be one of
a mass of inhabitants, whether Polish nationals or not; but such cases must
be rare. The point will arise in the immense majority of cases with regard
to such Articles as 7, 8 and 9 and the rights which they confer on all
Polish ressortissants including German or other minorities.
 The district within which the whole body for the purpose of finding a
minority must be taken may vary a good deal. For some purposes it would be
necessary to take the whole [p26] of Poland. In cases of local
administration it may be a district more or less extensive. But, for the
purposes of the present case, it would make no difference with regard to our
definition of such minorities what is the area to be selected in this
particular instance. Whatever area might be selected in the part of Poland
with which we are concerned, there would be in it a minority of German race
and language, in contradistinction to the other Polish ressortissants of
Polish race or to the other inhabitants.
 The objection raised that persons fulfilling the conditions of Article
4 are only candidates for Polish nationality, but do not become Polish
nationals until they have been recognized as such by the Polish Government,
does not bear examination. By the express words of Article 4, they are ipso
facto Polish nationals. If Polish law requires registration or any other
formality for the effective exercise of their rights as Polish citizens, the
Polish Government is bound to provide for this; and most certainly the
Polish Government could not set up any wrongful refusal of theirs as
justifying their contention that these persons are not Polish citizens.
 I should have desired that the Court should not merely have based its
answer to the Polish contention as to competency on the view that the
minority contemplated by Article 12 may be one of inhabitants simply, but
that it should also have pointed out that, for the reasons stated above, the
Polish case fails even if the minority were to be taken on the basis of
ressortissants. But I am glad to think that any points on which I differ
from the Court are mainly academic and that in the resent case the same
result would follow upon either view.