|
[p5] Preliminary Objections
taken by the Government of the Polish Republic.
THE COURT,
composed as above,
having heard the observations and conclusions of the Parties,
delivers the following judgment:
***
[1] The Government of the German Reich, by an Application instituting
proceedings filed with the Registry of the Court on May 15th, 1925, in
conformity with Article 40 of the Statute and Article 35 of the Rules of
Court, has submitted to the Permanent Court of International Justice a suit
concerning certain German interests in Polish Upper Silesia. These interests
concerned in the first place the taking over by a delegate of the Polish
Government of control of the working of the nitrate factory at Chorzów, the
taking possession by him of the movable property and patents, licences,
etc., of the company which had previously worked the factory, and the
removal from the land registers of the name of this company as owner of
certain landed property at Chorzów and the entry of the Polish Treasury in
its place. In the second place, these interests concerned the notice given
by the Government of the Polish Republic to the owners of certain large
agricultural estates of its intention to expropriate these properties.
[2] It is submitted in the Application:
1. (a) that Article 2 of the Polish Law of July 14th, 1920, constitutes a
measure of liquidation as concerns property, rights and interests acquired
after November nth, 1918, and that Article 5 of the same law constitutes a
liquidation of the contractual rights of the persons concerned;
(b) that, should the decision in regard to point (a) be in the affirmative,
the Polish Government in carrying out these liquidations has not acted in
conformity with the provisions of Articles 92 and 297 of the Treaty of
Versailles;
2. (a) that the attitude of the Polish Government in regard to the
Oberschlesische Stickstoffwerke and Bayrische Stickstoffwerke [p6] Companies
was not in conformity with Article 6 and the following articles of the
Geneva Convention;
(b) should the decision in regard to point (a) be in the affirmative, the
Court is requested to state what attitude should have been adopted by the
Polish Government in regard to the Companies in question in order to conform
with the above-mentioned provisions;
3. that the liquidation of the rural estates belonging to Count Nikolaus
Ballestrem; to the Georg Giesches Erben Company; to Christian Kraft, Fürst
zu Hohenlohe-Oehringen; to the Vereinigte Königs -und Laurahütte Company; to
the Baroness Maria Anna von Goldschmidt-Rothschild (nee von Friedländer-Fuld);
to Karl Maximilian, Fürst von Lich-nowsky; to the City of Ratibor ; to Frau
Gabriele von Ruffer (née Gräfin Henckel von Donnersmarck); to the Godulla
Company and to Frau Hedwig Voigt, would not be in conformity with the
provisions of Article 6 and the following articles of the Geneva Convention.
[3] In the course of the oral proceedings in Court, the German
representative stated that he withdrew submission No. 3, in so far as it
concerned the agricultural estate belonging to Madame Hedwig Voigt; this
statement was duly recorded.
[4] The Application instituting proceedings was, in accordance with Article
40 of the Statute, communicated to the Government of the Polish Government
on May 16th, 1925. That Government informed the Court on June 12th and 18th
that it felt obliged in this suit to make "certain preliminary objections of
procedure, and, in particular, an objection to the Court's jurisdiction to
entertain the suit"; these objections it intended to set out in a Case which
would be filed before the end of the month of June, that is to say in
sufficient time "to enable the Court to commence the oral proceedings in
regard to these objections of procedure on July 15th".
[5] The representative of the German Government, on being informed of the
Polish Government's communication, also made a statement to the effect that
the German Reply to the Polish Case on the question of jurisdiction would be
filed in sufficient time, whereupon July 10th was fixed as the date for the
filing of the German Counter-Case in reply to the Polish Government's Case
[p7] setting out the preliminary objections which that Government intended
to make.
[6] The Polish Case, which was headed "Réponse exceptionnelle to the
Application of the German Government dated May 15th, 1925", was filed with
the Registry and communicated to the representative of the German Government
on June 26th. It was submitted in this document that:
(a) in regard to suit No. I (the factory at Chorzów), the Court should
declare that it had no jurisdiction or, in the alternative, that the
application could not be entertained until the German-Polish Mixed Arbitral
Tribunal had given judgment;
(b) in regard to the suits grouped under No. II (the large agricultural
properties), the Court should declare that it had no jurisdiction, or, in
the alternative, that the application could not be entertained.
[7] The German Counter-Case, which is headed "Observations of the German
Government concerning the objections taken in the reply of the Polish
Government to the Application of the German Government concerning certain
German interests in Polish Upper Silesia", was filed with the Registry and
communicated to the Polish representative on the day fixed. The German
Counter-Case, whilst abstaining from making any definite submissions,
endeavours to refute the submissions made in the Polish Case.
[8] In support of their submissions or arguments, the Parties have placed a
number of documents before the Court, as annexes to their "Reply" and
"Observations". The German Government has also filed a collection of
"Documents concerning the question of the Nitrate Factory at Chorzów".
[9] Furthermore, the Court has heard, in the course of public sittings held
on July 16th, 18th and 20th, the statements of MM. Mrozowski and Limburg,
agents for the Polish Government, and of Professor Kaufmann, agent for the
German Government.
***
THE FACTS.
[10] Before commencing the legal examination of the preliminary objections
raised by the Polish Government, it is necessary briefly [p8] to state the
facts which have led up to the institution of proceedings by the German
Government. A distinction must be made between the facts relating
respectively to each of the two groups of interests referred to in the
German Application, namely, those connected with the factory at Chorzów and
those connected with the notice of an intention to proceed to expropriation
given to certain owners of large agricultural estates.
A. -The Factory at Chorzów.
[11] On March 5th, 1915, a contract was concluded between the Chancellor of
the German Empire, on behalf of the Reich, and the Bayrische Stickstoffwerke
A.-G. of Trostberg, Upper Bavaria, by which contract this Company undertook
"to establish for the Reich and to begin forthwith the construction of",
amongst other things, a nitrate factory at Chorzów in Upper Silesia. The
necessary lands were to be acquired on behalf of the Reich and entered in
its name in the land register. The machinery and equipment were to be in
accordance with the patents and licences of the Company and the experience
gained by it, and the Company undertook to manage the factory until March
31st, 1941, making use of all patents, licences, experience gained,
innovations and improvements, as also of all supply and delivery contracts
of which it had the benefit. For this purpose a special section of the
Company was to be formed, which was, to a certain extent, to be subject to
the supervision of the Reich which had the right to a share of the surplus
resulting from the working of the factory during each financial year. The
Reich had the right, commencing on March 31st, 1926, to terminate the
contract for the management of the factory by the Company on March 31st of
any year upon giving fifteen months' notice. The contract could be
terminated as early as March 31st, 1921, always on condition of fifteen
months' notice being given, if the Reich's share of the surplus did not
reach a fixed level.
[12] On December 24th, 1919, a series of legal instruments were signed and
legalized at Berlin with a view to the formation of a new Company, the
Oberschlesische Stickstoffwerke A.-G., and the sale by the Reich to that
Company of the factory at Chorzów, that is to say, the whole of the land,
buildings and installations belonging thereto, with all accessories,
reserves, raw material, equipment and [p9] stocks. The management and
working were to remain in the hands of the Bayrische Stickstoffwerke
Company, which, for this purpose, was to utilize its patents, licences,
experience gained and contracts. These relations between the two Companies
were confirmed by means of letters, dated December 24th and 28th, 1919,
exchanged between them. The Oberschlesische Stickstoffwerke Company was duly
entered on January 29th, 1920, at the Amstgericht of Konigshiitte, in the
Chorzów land register, as owner of the landed property constituting the
nitrate factory of Chorzów.
[13] On July 1st, 1922, this Court, which had become Polish, gave a decision
to the effect that the registration in question was null and void and was to
be cancelled, the pre-existing position being restored, and that the
property rights of the lands in question were to be registered in the name
of the Polish Treasury. This decision, which cited Article 256 of the Treaty
of Versailles and the Polish law and decree of July 14th, 1920, and June
16th, 1922, was put into effect the same day.
[14] On July 3rd, 1922, M. Ignatz Moscicki, who was delegated with full
powers to take charge of the factory at Chorzów by a Polish ministerial
decree of June 24th, 1922, took possession of the factory and took over the
management in accordance with the terms of the decree. The German Government
contends and the Polish Government 'admits that the said delegate, in
undertaking the control of the working of the factory, at the same time took
possession of the movable property, patents, licences, etc.
[15] On November 10th, 1922, the Oberschlesische Stickstoffwerke Company
brought an action before the Germano-Polish Mixed Arbitral Tribunal at
Paris. It called upon that Court
"to allow the claim submitted by the Oberschlesische Stickstoffwerke
Aktiengesellschaft, and to order the Polish Government, the respondent in
the suit, to restore the factory, to make any other reparation which the
Court may see fit to fix and to pay the costs of the action."
[16] In its reply to this application, the Polish Government asked the Court
to declare that it had no jurisdiction (in the alternative, to non-suit the
applicant).
[17] The suit was admitted to be ready for hearing on October 15th, 1923. It
is, however, still pending. [p10] Furthermore, the Oberschlesische
Stickstoffwerke Company brought an action before the Civil Court of
Kattowitz. It asked that Court
"to order the respondent to inform the applicant as to the movable property
found at the Chorzów nitrate factories at �a.m. on the morning of July 3rd,
1922, when the working of those factories was resumed by the respondent; to
state what debts it had collected; to restore to the applicant or to the
Bayrische Stickstoffwerke Company such movable property, or, should this be
impossible, the equivalent value, and also to repay to the applicant or to
the Bayrische Stickstoffwerke Company the amount of the debts collected."
[18] This action is still before that Court, which, however, decided on
December 7th, 1923, that there was no pendency, as notice of the action had
not yet been served on the Procurature générale at Warsaw.
B. -The large agricultural Estates.
[19] The Monitor Polski of December 30th, 1924, contains notice of the
Polish Government's intention to expropriate certain large estates situated
in Polish Upper Silesia and belonging to twelve proprietors, amongst whom
were
Count Nikolaus Ballestrem,
The Georg Giesches Erben Company,
Christian Kraft, Fürst zu Hohenlohe-Oehringen,
The Vereinigte Königs-und Laurahütte Company,
Baroness Maria Anna von Goldschmidt-Rothschild, née von
Friedländer-Fuld,
Karl Maximilian, Fürst von Lichnowsky, The City of Ratibor, Frau Gabriele
von Ruffer,
née Gräfin Henckel von Donnersmarck,
The Godulla Company,
Frau Hedwig Voigt.
[20] As stated at the hearing by the representative of the Polish
Government, and as already mentioned, notice was subsequently [p11]
withdrawn in the case of Frau Hedwig Voigt, the competent Polish authorities
having recognized that this lady was entitled to retain her domicile in
Polish Upper Silesia.
[21] These notifications were issued on the basis of the provisions of
Article 15 of the Germano-Polish Convention concerning Upper Silesia,
concluded at Geneva on May 15th, 1922. They contained an invitation to those
concerned to submit any objections or observations within a fixed time.
[22] It is not alleged that in any case such notice has been followed by
actual expropriation.
[23] Six of the proprietors mentioned above have brought actions before the
Germano-Polish Mixed Arbitral Tribunal, in accordance with Article 19 of the
Convention concerning Upper Silesia; the object of these actions is to
obtain an order suspending expropriation proceedings and a declaration that
such proceedings are illegal. Two of these actions are pending, but in the
other four notice of proceedings has not yet been served on the defendant.
As regards at least one of the actions pending, the Polish Government has
disputed the jurisdiction of the Mixed Arbitral Tribunal.
***
THE LAW.
[24] Before considering the preliminary objections made by Poland, it should
be observed that the two Parties agree in recognizing that Article 23 of the
Geneva Convention falls within the category of "matters specially provided
for in treaties and conventions in force", mentioned in Article 36 of the
Court's Statute, and the Polish Government does not dispute the fact that
the suit has been duly submitted to the Court in accordance with Articles 35
and 40 of the Statute. But Poland raises an objection and submits that the
Court should give judgment to the effect that the German Application refers
to a difference which is not covered by Article 23 of the Convention of
Geneva and, should this submission be rejected, that, even if the Court had
jurisdiction, the Application could not be entertained.
[25] The Court finds as follows: The Application states in two Chapters,
Nos. I and II, the facts and allegations on which its submissions [p12] are
based. Chapter I relates to the taking possession by the Polish Authorities
of the factory at Chorzów and of the movable property connected with it; it
also states the German Government's opinion concerning the scope of certain
clauses of the Polish Law of July 14th, 1920, and of the Treaty of
Versailles. Chapter II, on the other hand, deals with the notice of
intention to expropriate certain large agricultural estates.
[26] Submissions Nos. 1 and 2 of the German Application evidently relate to
Chapter I of the statement, whilst submission No. 3 relates to Chapter II.
[27] The Polish Objection, in its submissions, follows the division into two
chapters of the German Application, the first submission referring,
according to the actual terms of the Polish Case, to Chapter I, whilst the
second relates to Chapter II.
[28] It follows that the first Polish submission which refers to l'affaire
I, the so-called "Case of the Factory at Chorzów", of the German
Application, questions the Court's jurisdiction to deal with either
Submission No. 1 or Submission No. 2 of the German Application.
[29] In the form in which it is drafted, Submission No. 1 of the German
Application seems to deal exclusively with the Polish Law of July 14th,
1920, and the relation between this law and Articles 92 and 297 of the
Treaty of Versailles. It cannot be regarded as in terms relating to a
difference of opinion respecting the construction and application of
Articles 6 to 22 of the Geneva Convention. But in the light, more
particularly, of the statement contained in Chapter I of the German
Application, it is clear that Submission No. 1 may contemplate questions
relating to the case of the factory at Chorzów and may have been made in
regard to such questions.
[30] Having regard to this uncertainty as to the exact bearing of Submission
No. 1 of the German Application, a declaration by the Court that it has
jurisdiction to deal with l'affaire I mentioned in the first submission of
the Polish Objection, must in no way prejudice the question of the extent to
which the Court may see fit to deal with the questions contemplated by
Submission No. 1 of the German Application, in the proceedings on the
merits.
[31] For these reasons, the Court will consider separately the Polish
submissions regarding l'affaire I, relating to the factory at Chorzów, and
those relating to the large agricultural estates.[p13]
A. -The Factory at Chorzów
I.
The Plea to the Jurisdiction.
[32] Poland's first and principal objection, in the case of the factory at
Chorzów, is an objection to the Court's jurisdiction. It will be well at
this point to recall the terms of Article 23 of the Convention of Geneva on
which the Court's jurisdiction -if it has jurisdiction -to try the suit on
its merits must be based. This article runs as follows:
[Translation.]
"1. -Should differences of opinion respecting the construction and
application of Articles 6 to 22 arise between the German and Polish
Governments, they shall be submitted to the Permanent Court of International
Justice.
"2. -The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived
from the stipulations of the Treaty of Peace of Versailles shall not thereby
be prejudiced."
[33] Poland bases her objection on three different arguments; she contends :
(a) that the Court has no jurisdiction because the existence of a difference
of opinion in regard to the construction and applica-tion of the Geneva
Convention had not been established before the filing of the Application;
(b) that the Court has no jurisdiction be-cause the dispute is not one of
those contemplated under Article 23; and (c) that the Court has no
jurisdiction because submission 2 (b) of the Application is equivalent to a
request for an advisory opinion, which cannot be made by an individual
State, but only by the Council or Assembly of the League of Nations. As
regards the last point, the Court considers that it rather affects the
question whether the suit can be entertained, and will therefore take it
together with Poland's subsidiary submission.
* **
[34] -As regards the first argument advanced by Poland in support of her
contention that the Court has no jurisdiction to deal with submissions 1 and
2 of the German Application, the following [p14] facts should be noted:
Article 23, differing in this respect from many compromissory clauses, but
resembling certain other provisions of the Geneva Convention giving
jurisdiction to the Mixed Commission or to the Arbitral Tribunal set up by
it, does not stipulate that diplomatic negotiations must first of all be
tried; nor does it lay down that a special procedure of the kind provided
for in Article 2, No. 1, must precede reference to the Court. A comparison,
therefore, between the various clauses of the Geneva Convention dealing with
the settlement of disputes shows that under Article 23 recourse may be had
to the Court as soon as one of the Parties considers that a difference of
opinion arising out of the construction and application of Articles 6 to 22
exists.
[35] Now a difference of opinion does exist as soon as one of the
Governments concerned points out that the attitude adopted by the other
conflicts with its own views. Even if, under Article 23, the existence of a
definite dispute were necessary, this condition could at any time be
fulfilled by means of unilateral action on the part of the applicant Party.
And the Court cannot allow itself to be hampered by a mere defect of form,
the removal of which depends solely on the Party concerned.
[36] Lastly, it has been contended that according to Article 23 there must
be "a difference of opinion respecting the construction and {et) application
of" the articles in question, the conjunction et being regarded as having a
cumulative meaning. The Court cannot attribute this scope to the word et
which, in both ordinary and legal language, may, according to circumstances,
equally have an alternative or a cumulative meaning. This point, however, is
without practical importance, as the present case concerns both construction
and application. As will be demonstrated later, the discussion of the case
of the factory at Chorzów relates to a concrete instance of the application
of treaty stipulations differently interpreted by the Parties.
[37] 2. -The argument on which Poland seems principally to base her
objection, and on which the Cases and statements by Counsel chiefly bear, is
the alleged non-existence of a difference of opinion respecting the
construction and application of Articles 6 to 22 of the Geneva Convention.
The Polish Government contends that the difference of opinion between the
Parties does not relate to Articles [p15] 6 to 22 of the Geneva Convention,
but solely to the interpretation of the law of 1920. According to the
Application, this law is a measure of liquidation; in Poland's contention,
its effect is simply to annul acts alleged to be contrary to the obligations
arising out of Article 256 of the Treaty of Versailles and the Protocol of
Spa. And, in the view of the Polish Government, differences of opinion
regarding the interpretation of the law of 1920 do not fall within the scope
of Article 23 of the Geneva Convention which governs the Court's
jurisdiction.
[38] It is clear that the Court's jurisdiction cannot depend solely on the
wording of the Application; on the other hand, it cannot be ousted merely
because the respondent Party maintains that the rules of law applicable in
the. case are not amongst those in regard to which the Court's jurisdiction
is recognized. The Court must, in the first place, consider whether it
derives from Article 23 of the Geneva Convention jurisdiction to deal with
the suit before it and, in particular, whether the clauses upon which the
decision on the Application must be based, are amongst those in regard to
which the Court's jurisdiction is established.
[39] In this connection, the Court observes in the first place that the
objection to the jurisdiction filed by the Polish Government was submitted
at a time when no document of procedure upon the merits had been filed and
that, in consequence of the objection, the proceedings on the merits of the
suit were suspended. In these circumstances, and although Poland herself has
not refrained from taking some of the arguments advanced by her in support
of her objection from the merits of the case, the Court cannot in its
decision on this objection in any way prejudge its future decision on the
merits. On the other hand, however, the Court cannot on this ground alone
declare itself incompetent; for, were it to do so, it would become possible
for a Party to make an objection to the jurisdiction -which could not be
dealt with without recourse to arguments taken from the merits -have the
effect of precluding further proceedings simply by raising it in limine
litis; this would be quite inadmissible.
[40] The Court, therefore, for the purposes of the decision for which it is
now asked, considers that it must proceed to the enquiry above referred to,
even if this enquiry involves touching upon subjects belonging to the merits
of the case; it is, however, to be [p16] clearly understood that nothing
which the Court says in the present judgment can be regarded as restricting
its entire freedom to estimate the value of any arguments advanced by either
side on the same subjects during the proceedings on the merits.
***
[41] The preceding statement of the points in regard to which the Parties
disagree shows that the difference of opinion between them relates to the
question whether, in the case of dispossession under consideration, Articles
6 to 22 of the Geneva Convention are or are not applicable, that is to say
to the extent of the sphere of application of those articles.
[42] Article 6 of the Convention is as follows:
[Translation.]
"Poland may expropriate in Polish Upper Silesia in conformity with the
provisions of Articles 7 to 23 undertakings belonging to the category of
major industries including mineral deposits and rural estates. Except as
provided in these clauses, the property, rights and interests of German
nationals or of companies controlled by German nationals may not be
liquidated in Polish Upper Silesia."
[43] Thus Article 6 on the one hand recognizes Poland's right to
expropriate, in conformity with the provisions of Articles 7 to 23, certain
industrial undertakings and agricultural estates and, on the other hand,
stipulates that except as provided in these clauses, the property, rights
and interests of German nationals or of companies controlled by German
nationals may not be liquidated in Polish Upper Silesia.
[44] So that, whatever may be the relation between the two sentences of the
article, and whatever may be the scope, in this article, of the conceptions
of "liquidation" and "expropriation", it is clear that it is intended to
define Poland's powers in regard to this point and in the territory in
question.
[45] It follows that the differences of opinion contemplated by Article 23,
which refers to Articles 6 to 22, may also include differences of opinion as
to the extent of the sphere of application of Articles 6 to 22 and,
consequently, the difference of opinion existing between the Parties in the
present case.
[46] In the course of the oral proceedings it was contended on behalf [p17]
of Poland that the question was one of vested rights, a question governed by
Articles 4 and 5 of the Geneva Convention, in regard to which the Court was
not given jurisdiction. The German Government, on the contrary, had
maintained that the applicable clauses are those contained in Articles 6 to
22. These conflicting contentions, by emphasizing the fact that the
difference of opinion relates to the sphere of application of the articles
last mentioned, corroborate the view adopted by the Court.
[47] 3. -Poland considers that the Geneva Convention is not applicable and
that, therefore, the Court has no jurisdiction, because, as she contends,
the property in question does not belong to German nationals but to the
Polish State, as successor of the German Reich in the property rights under
Article 256 of the Treaty of Versailles, and that for this reason there is
no question of liquidation or expropriation of an undertaking belonging to
German nationals. In regard to this reasoning, the Court adopts the
following line of argument :
(a) It does not appear from the documents laid before the Court and it has
not even been contended that the industrial undertaking under consideration
at any time belonged, in its entirety, to the German Reich. The German Reich
had advanced, under the contract of March 5th, 1915, the funds for the
purchase of the necessary land and to construct the factory; for this reason
it had been entered in the land register as owner of the estate. But an
undertaking as such is an entity entirely distinct from the lands and
buildings necessary for its working, and in the present case it can hardly
be doubted that, in addition to the real property which had belonged to the
Reich, there were property, rights and interests, such as patents and
licences, probably of a very considerable value, the private character of
which cannot be disputed and which were essential to the constitution of the
undertaking.
As Article 6 of the Geneva Convention refers to undertakings of "major
industries" and as this article is intended to ensure the continuity of
economic life, the factory at Chorzów must be regarded as a whole. Whatever
may be the effect of Article 256 of the Treaty of Versailles as regards real
property which had belonged to the Reich, the undertaking as such, in the
opinion of the Court, falls under the terms of Article 6 and the following
articles of the Geneva Convention. [p18]
It is true that the application of the Geneva Convention is hardly possible
without giving an interpretation of Article 256 of the Treaty of Versailles
and the other international stipulations cited by Poland. But these matters
then constitute merely questions preliminary or incidental to the
application of the Geneva Convention. Now the interpretation of other
international agreements is indisputably within the competence of the Court
if such interpretation must be regarded as incidental to a decision on a
point in regard to which it has jurisdiction.
(b) It is established that the Bayrische Stickstoffwerke is a German company
the private character of which is not disputed. This Company had, under the
contract of March 5th, 1915, with the Reich and also under the
correspondence of December 24th to 28th, 1919, exchanged with the
Oberschlesische Stickstoffwerke a contract for the operation of the factory
obliging and authorizing it to work the factory under the same technical
conditions as its own factories. The taking over of the factory by Poland
put an end to this situation and consequently affected rights and interests
possessed by German nationals in Polish Upper Silesia. The real property,
the ownership of which Poland claims, was, at the time when the Geneva
Convention came into operation, entered in the land register as the property
of a German company which, as such, falls within the scope of Article 6 of
that Convention and whose existence as a German company is not disputed.
[48] The jurisdiction possessed by the Court under Article 23 in regard to
differences of opinion between the German and Polish Governments respecting
the construction and application of the provisions of Articles 6 to 22
concerning the rights, property and interests of German nationals is not
affected by the fact that the validity of these rights is disputed on the
basis of texts other than the Geneva Convention.
II.
Admissibility of the Suit.
[49] The Polish Government has not confined itself to raising an objection
to the Court's jurisdiction to deal with the German application concerning
the factory of Chorzów which is now before [p19] the Permanent Court of
International Justice. As an alternative it submits that this application
cannot be entertained until the Germano-Polish Mixed Arbitral Tribunal in
Paris has given judgment in the dispute regarding the same factory, which
the Oberschlesische Stickstoffwerke Company submitted to that Tribunal on
November 10th, 1922.
[50] Is this one of those grounds of defence based on the merits of the case
and calculated to cause the judge to refuse to entertain the application,
such as are generally called -in French law for instance -by the name of
fins de non-recevoir ? Or is it not rather . a genuine objection, directed
-like that which has just been considered by the Court -not against the
action itself and the legal arguments on which it is based, but against the
bringing of the action before the tribunal?
[51] In the case of a municipal court, it would be of some interest to solve
this question in order to determine at what stage in the proceedings such a
ground of defence might or should be put forward. But, in estimating the
value of the alternative submission to the effect that it should suspend
judgment in the suit before it, the Court has not to have regard to "the
various codes of procedure and the various legal terminologies" in use in
different countries.
[52] Whether this submission should be classified as an "objection" or as a
fin de non-recevoir, it is certain that nothing, either in the Statute or
Rules which govern the Court's activities, or in the general principles of
law, prevents the Court from dealing with it at once, and before entering
upon the merits of the case; for there can be no proceedings on the merits
unless this submission is overruled.
[53] The Polish Government considers that because the Oberschle-sische
Stickstoffwerke Company brought an action in 1922 before the Germano-Polish
Mixed Arbitral Tribunal sitting in Paris for the restitution of the factory
at Chorzów to that Company, which claims ownership of it, judgment on the
application subsequently submitted by the Reich to the Court in regard to
the same industrial concern must be suspended until judgment has been given
in the previous action, which is still pending.
[54] The way in which the Polish Government states its point of view and the
deduction which it endeavours to make therefrom show that it does not really
advance the plea generally known as litispendance. In point of fact this
word does not occur in the [p20] Polish reply; it has only been used in the
statements of Counsel, and chiefly, it would seem, as a convenient
expression. If, however, the plea were to be examined in accordance with the
principles generally accepted in regard to litispendance, the Court would
undoubtedly arrive at the conclusion that it is not well-founded. It is a
much disputed question in the teachings of legal authorities and in the
jurisprudence of the principal countries whether the doctrine of
litispendance, the object of which is to prevent the possibility of
conflicting judgments, can be invoked in international relations, in the
sense that the judges of one State should, in the absence of a treaty,
refuse to entertain any suit already pending before the courts of another
State, exactly as they would be bound to do if an action on the same subject
had at some previous time been brought in due form before another court of
their own country.
[55] There is no occasion for the Court to devote time to this discussion in
the present case, because it is clear that the essential elements which
constitute litispendance are not present. There is no question of two
identical actions : the action still pending before the Germano-Polish Mixed
Arbitral Tribunal at Paris seeks the restitution to a private company of the
factory of which the latter claims to have been wrongfully deprived; on the
other hand, the Permanent Court of International Justice is asked to give an
interpretation of certain clauses of the Geneva Convention. The Parties are
not the same, and, finally, the Mixed Arbitral Tribunals and the Permanent
Court of International Justice are not courts of the same character, and, a
fortiori, the same might be said with regard to the Court and the Polish
Civil Tribunal of Kattowitz.
[56] It would be useless to attempt to prove the contention of the Polish
Government in regard to this matter by pointing to the alleged opposition in
Article 23 of the Geneva Convention, and saying that this article, which
gives the Court jurisdiction to decide differences of opinion respecting the
construction and application of Articles 6 to 22 of that Convention, has, in
the final clause already referred to, expressly reserved the "jurisdiction
of the Germano-Polish Mixed Arbitral Tribunal under the Peace Treaty of
Versailles". This reservation is easily explained. Section III of the Geneva
Convention, to which it refers, relates in several respects to matters dealt
with in the Sections of Part X of the Treaty of Versailles, in regard to
which no jurisdiction is provided corresponding to that [p21] subsequently
conferred, by the first paragraph of Article 23 of the Geneva Convention,
upon the Permanent Court. It was, therefore, essential to state that the
right of appeal to the Court, given by this clause to the contracting States
as such, in no way affected the right conferred by the Treaty of Versailles
on private individuals who had suffered a wrong to bring an action before
the Mixed Arbitral Tribunal. The distinction between the two spheres of
jurisdiction is thus clearly brought out, and paragraph 2 of Article 23, far
from lending support to the Polish submission, supplies in favour of the
adverse contention an argument which is of some value.
[57] Thus, the alternative plea, submitted by the Polish Government in the
statement of its objections concerning the factory at Chorzów, for the
non-suiting of the applicant on the ground of inadmissibility, like the
principal objection to the Court's jurisdiction, also fails.
***
[58] Nor can the Court admit the fin de non-recevoir incidentally raised
against the German Application in the Polish Case and based on Article 14 of
the Covenant of the League of Nations.
[59] It is true that this article, which is referred to in the Preamble of
the Statute of the Permanent Court of International Justice, provides that
the Court may give advisory opinions at the request of the Council or
Assembly of the League of Nations ; a request of this kind directly
submitted by a State will not be considered. But, when the Government of the
Reich submits under No. 2 (a) of its Application that the attitude of the
Polish Government in regard to the Oberschlesische Stickstoffwerke and
Bayrische Stickstoffwerke Companies was not in conformity with Article 6 and
the following articles of the Geneva Convention, and under 2 (b) asks the
Court, should it confirm this submission, to give judgment concerning the
"attitude which should have been adopted by the Polish Government in regard
to the companies in question in order to conform with the above-mentioned
provisions", it is evident that the applicant State could not have intended
to obtain an advisory opinion, for which it was not entitled to ask. In
point of fact it asks the Court for a decision, but leaves for its Case on
the merits the development of the submission set out under point 2, letter
(b), of its application and the exposition of the facts to be laid before
the Court at that [p22] stage of the proceedings. The observations submitted
by the German Government in regard to Poland's statement of objections leave
room for no doubt as to the intentions of the former Government, and the
interrogative form in which the submission is formulated does not suffice to
establish a construction which would place that submission outside the scope
of Article 23 of the Convention on which the whole German Application is
based.
B. -The large agricultural Estates.
I.
Plea to the jurisdiction.
[60] As regards the large agricultural Estates, the Court's jurisdiction is
no less clear than in the case of the factory at Chorzów.
[61] For the reasons already stated in regard to that case, the absence of
diplomatic negotiations proving the existence of the difference of opinion
which is required under Article 23 of the Convention, cannot prevent the
bringing of an action in the present case. Moreover, such absence would be
of no practical importance, for even if the application were on this ground
declared premature, the German Government would be free to renew it
immediately afterwards.
[62] The notice given by Poland, in the Monitor Polski of December 30th,
1924, to the owners of large estates situated in Polish Upper Silesia is
based on Article 15, paragraph 1, sub-paragraph 1, of the Geneva Convention
which runs as follows:
[Translation.]
"Should the Polish Government desire to expropriate a large estate, it must
give notice of its intention to the owner of the estate before January 1st,
1925."
[63] Germany is of opinion that ten of the notices thus given are not in
conformity with the provisions of Articles 9, paragraph 3, sub-paragraph 2;
12, paragraph 1; 13, paragraph 2; and 17 of the Convention. [p23]
[64] The clauses in question are as follows:
[Translation.]
Article 9, paragraph 3, sub-paragraph 2.
"Rural estates which are principally intended to meet the requirements of
undertakings belonging to the group of major industries (dairy farming
estates, timber-raising estates, etc.} shall be considered, for the purposes
of this article, as forming part of the undertakings the requirements of
which they may serve."
Article 12, paragraph 1.
"Poland may expropriate estates of not less than 100 hectares of
agricultural land (hereinafter called large estates) belonging on April
15th, 1922, and on the date of notification-(Article 15) to German nationals
who are not entitled to retain their domicile in Polish Upper Silesia
(Articles 40 and 42) or to companies controlled by such German nationals.
The extent of such estates will be estimated in accordance with the
situation on April 15th, 1922."
Article 13, paragraph 2.
"Agricultural estates which, in accordance with Article 9, paragraph 3,
sub-paragraph 2, are to be regarded as forming part of undertakings
belonging to the category of major industries, shall not be included for the
purposes of the calculation of the total area of estates liable to
expropriation, and the provisions regarding the expropriation of rural
property shall not be applicable to them."
Article 17.
"German nationals who, ipso facto, acquire the nationality of an Allied or
Associated Power by application of the provisions of the Treaty of
Versailles or who ipso facto acquire Polish nationality by application of
the present Convention, shall not be regarded as German nationals for the
purposes of Articles 6 to 23." [p24]
[65] The German Government argues in support of its contention that in most
cases these notices refer to estates which are principally intended to meet
the requirements of undertakings belonging to the category of major
industries, and which are considered as forming part of the undertakings,
the requirements of which they serve (Article 9, paragraph 3, sub-paragraph
2), and are not subject to the provisions regarding the expropriation of
rural property (Article 13, paragraph 2) ; in other cases the estates
concerned are not liable to expropriation, because their extent is less than
100 hectares of agricultural land (Article 12, paragraph 1), or because they
belong to persons who have ipso facto acquire Czechoslovak nationality under
Article 84 of the Treaty of Versailles, or Polish nationality under Article
25, paragraph 1, of the Geneva Convention (Article 17), or again because
they belong to a company which "is not controlled by German nationals", or
to a city which "cannot be regarded either as a German national or as a
company controlled by German nationals" (Article 12, paragraph 1).
[66] Poland replies to these contentions that hitherto she has only given
notice of an intention to proceed to expropriation; so that up to the
present there has been neither expropriation nor a decision to expropriate,
and therefore the Court "is not yet competent" and the application "is
premature".
[67] It will, therefore, be seen that the Polish Government does not attempt
to deny that the subject matter of this part of the German Application is
governed by the above-mentioned provisions of the Geneva Convention (which
are to be found in Articles 6 to 22); it recognizes that, in principle,
these provisions apply to the property in question and that this must be
expropriated in accordance with the articles above-mentioned. It therefore
becomes clear that the Polish Government accepts in principle the
jurisdiction of the Court in this matter; what it does dispute is that, as
alleged by Germany, these provisions are to be interpreted as being
compulsorily applicable -and therefore as giving the Court jurisdiction-at
the present moment when Poland has merely signified an intention to
expropriate.
[68] But this difference of opinion, even when limited in this way, suffices
to make it clear that the Court has jurisdiction. According to the wording
of Article 23 of the Convention, it is precisely [p25] for cases in which
"differences of opinion respecting the construction and application of
Articles 6 to 22 arise" between them that the Court's jurisdiction has been
accepted by the two Governments. But as the question of notification is
governed by Article 15 in conjunction with Articles 9, 12, 13 and 17, that
is to say, by provisions included between Article 6 and Article 22 of the
Geneva Convention, it is clear that the dispute which has arisen regarding
the question whether notice has or has not been given in accordance with
these provisions is a difference of opinion respecting the construction and
application of certain of the Articles 6 to 22 of the Convention, and
therefore falls within the scope of Article 23.
[69] There are two distinct stages in the act of expropriating : notice of
the intention to expropriate and the decree of expropriation. Both are dealt
with in Article 15 of the Convention.
[70] How should Articles 9, 12, 13, 15 and 17 be interpreted in relation to
these two stages ? Should they be regarded as only concerning the latter,
which constitutes actual expropriation, or do they also refer to the first
step, the giving of notice ?
[71] Poland takes the former view and Germany the latter.
[72] There is, therefore, an undeniable difference of opinion.
[73] Poland, however, argues that notice of an intention to expropriate is
merely an invitation to those concerned to submit their respective claims
within a specified time, and that, therefore, the terms of the Convention
are not yet applicable to it.
[74] This observation in no way alters the terms of the question. The
difference of opinion still subsists ; for Germany, on the other hand, holds
that, even reduced to these terms, the act of notification, being an act
connected with the execution of measures of expropriation, is undoubtedly an
act in application of the Geneva Convention and therefore can only relate to
property liable to expropriation under the terms of Articles 9, 12, 13 and
17 of that Convention. Since the property dealt with in these articles can
under no circumstances be expropriated, it is clear that it cannot be made
the subject of an intention to proceed to expropriation.
[75] The Polish objection is not sound, not only because the right of
complaint granted by Poland to the owners is a matter of domestic concern
which cannot be used in argument against Germany, but also because,
according to Article 20, directly notice has been [p26] given, expropriation
is possible under the Geneva Convention without any restriction as to time,
and thus becomes for the owner a menace which may continue for two years;
and finally because under the terms of the same Article 20 and of Article
16, once notice has been given, the owner cannot, without the consent of the
Polish Government, alienate inter vivos either the estate to be expropriated
or its accessories, so that the giving of notice places serious restrictions
on rights of ownership.
[76] It follows from what has been stated that a difference of opinion
exists between Germany and Poland respecting the construction and
application of Articles 9, paragraph 3, sub-paragraph 2; 12, paragraph 1;
13, paragraph 2; 15 and 17 of the Geneva Convention (all being provisions
included between Article 6 and Article 22 of that Convention) in connection
with the notice given to the proprietors enumerated in the Application
instituting proceedings; the Court, therefore, under the terms of Article 23
of the same Convention, has jurisdiction also to reserve this part of the
suit for judgment on the merits.
II.
Admissibility of the Suit.
[77] In this part of her preliminary objections, Poland returns to the
question of the inadmissibility of the Application.
[78] In regard to this question, Poland argues as follows. Article 19,
paragraph 2, of the Convention runs as follows:
[Translation.]
"Should the Polish Government come to the conclusion that an undertaking or
estate really belongs to a German national, or that a company is really
controlled by German nationals, and should the interested party, after
notice has been given, contend that this is not the case, the latter may,
within one month after receipt of notice, appeal to the Germano-Polish Mixed
Arbitral Tribunal for a decision. If necessary, the Mixed Arbitral Tribunal
may provisionally suspend expropriation proceedings."
[79] Now the Polish Government says that "six of the proprietors named in
the Application filed with the Court have had recourse to this Arbitral
Tribunal before which the cases are still pending". [p27]
[80] But, besides the general considerations already set out in regard to
this matter in connection with the question of the factory at Chorzów,
considerations which apply with full force in the present case, it must be
added that, according to the statement of the Polish Government itself, only
six of the ten proprietors have appealed to the Germano-Polish Mixed
Arbitral Tribunal, and that in only two cases out of these six has actual
notice of proceedings been given. Thus, even if the considerations referred
to did not hold good, the Court would retain jurisdiction to deal with the
case in so far as it concerns the other proprietors.
[81] Furthermore, Article 19 of the Convention contemplates a situation
entirely different from that which the Court has to consider; for it only
applies to cases in which the Polish authorities are of opinion that an
undertaking or an estate really belongs to a German national or that a
company is really controlled by German nationals, and in which the
interested Party contends that this is not so. But, as has been seen, the
hypothesis submitted to the Court is entirely different.
[82] FOR THESE REASONS,
The Court,
having heard both Parties,
I. (1) In affaire I referred to in the plea filed by the Government of the
Polish Republic:dismisses this plea ;declares the Application to be
admissible;and reserves it for judgment on the merits.
(2) In the affaires II referred to in the plea filed by the Government of
the PolishRepublic:
dismisses this plea;
declares the Application to be admissible;
and reserves it for judgment on the merits.
II. Instructs the President to fix, in accordance with Article 33 of the
Rules of Court, the times for the deposit of further documents of the
written proceedings. [p28]
[83] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-fifth day of August, nineteen hundred
and twenty-five, in three copies, one of which is to be placed in the
archives of the Court, and the others to be forwarded to the Agents of the
Applicant and Respondent Parties respectively.
(Signed) Max Huber,
President.
(Signed) Ĺ. Hammarskjöld,
Registrar.
[84] M. Anzilotti, while agreeing in the conclusions of the Court, desired
to add the following observations in regard to one point in the statement of
reasons.
[85] Count Rostworowski, Polish National Judge, declaring that he was unable
to concur in the Judgment delivered by the Court, and availing himself of
the right conferred on him by Article 57 of the Court's Statute, delivered
the separate opinion which follows hereafter.
(Initialled) M. H.
(Initialled) A. H.[p29]
Observations by M. Anzilotti on one point in the Statement of Reasons.
[86] Amongst the reasons set forth in the Judgment, there is one point upon
which I regret that I am unable to agree with the Court; this point is, I
consider, of sufficient importance to compel me to state the grounds for my
disagreement.
[87] I refer to the idea expressed on page 16 and following of the Judgment,
where it is stated that the differences of opinion contemplated by Article
23 of the Geneva Convention may also include differences of opinion as to
the extent of the sphere of application of Articles 6 to 22, and,
consequently, the difference of opinion existing between the Parties in the
present case. This difference is, on page 16 of the Judgment, stated as
relating to the question whether, in the case of dispossession under
consideration, Articles 6 to 22 of the Geneva Convention are or are not
applicable.
[88] In my opinion, this notion is scarcely in harmony with the nature and
extent of the Court's jurisdiction.
[89] The nature of the enquiry which the Court must undertake in accordance
with Article 36, last paragraph, of its Statute in order to reach the
conclusion that the dispute submitted to it falls or does not fall within
its jurisdiction, has been laid down in Judgment No. 2 (the Mavrommatis
Concessions in Palestine) as follows:
"Neither the Statute nor the Rules of Court contain any rule regarding the
procedure to be followed in the event of an objection being taken in limine
litis to the Court's jurisdiction. The Court therefore is at liberty to
adopt the principle which it considers best calculated to ensure the
administration of justice, most suited to procedure before an international
tribunal and most in conformity with the fundamental principles of
international law.
"For this reason the Court, bearing in mind the fact that its jurisdiction
is limited, that it is invariably based on the consent of the respondent and
only exists in so far as this consent has been given, cannot content itself
with the provisional conclusion that the dispute falls or not within the
terms of the Mandate. The Court, before giving judgment on the [p30] merits
of the case, will satisfy itself that the suit before it, in the form in
which it has been submitted and on the basis of the facts hitherto
established, falls to be decided by application of the clauses of the
Mandate. For the Mandatory has only accepted the Court's jurisdiction for
such disputes."
[90] I regard this passage as a very accurate statement of the principles of
international law which govern the Court's jurisdiction, and I am very glad
to note that its essential idea is restated on page 15 of the present
Judgment.
[91] That being the case, it follows that, in order to reach the conclusion
that the Court has jurisdiction, it is not sufficient to find that the
difference of opinion between Germany and Poland relates to the question
whether Articles 6 to 22 of the Geneva Convention are or are not applicable
in the case of the factory at Chorzów.
[92] The applicability of the above articles is, on the contrary, the very
condition of the Court's power to deal with the dispute, for it is only as
regards disputes concerning the interpretation and application of these
articles that Poland has accepted the Court's jurisdiction.
[93] A dispute on the point whether a particular case falls within Articles
6 to 22 is nothing else than a dispute on the extent of the Court's
jurisdiction; it is in virtue of Article 36, last paragraph, of the Statute
-and accordingly when it considers the question of its competence -and not
in virtue of Article 23 -i.e. at the moment when it deals with the merits of
the case -that the Court can deal with such a dispute.
(Signed) D. Anzilotti.[p31]
Dissenting Opinion by Count Rostworowski.
[Translation.]
[94] I very much regret that I am unable to concur with the judgment given,
in the suit concerning certain German interests in Polish Upper Silesia,
upon the "Plea to the Jurisdiction" filed by the Polish Government on June
25th, 1925.
[95] Without reverting to the various facts set out in the Judgment, it is
necessary to take as a starting point the "plea to the jurisdiction"
referred to, in which it was submitted that:
(a) in regard to "affaire I” [FN1], the Court should declare that it had no
jurisdiction, or in the alternative that the Application could not be
entertained until the German-Polish Arbitral Tribunal had given judgment;
(b) in regard to "affaires II” [FN1] , the Court should declare that it had
no jurisdiction, or in the alternative that the Application could not be
entertained.
---------------------------------------------------------------------------------------------------------------------
[FN1] Of the German Application. [Author's note.]
---------------------------------------------------------------------------------------------------------------------
[96] The jurisdiction of the Permanent Court of International Justice, which
was accepted by the German Government in its first Application and
subsequently affirmed in the German Government's Observations of July 10th,
1925, and in the course of the oral proceedings, was thus disputed by the
Polish Government, both in its plea to the jurisdiction and in the
statements of Counsel. Poland occupied the position of Applicant. The case
was placed upon the list in so far as the objections in question were
concerned. The Parties were duly informed of the decision to extend sine die
the times fixed for the deposit of the documents of procedure in regard to
the merits, should such procedure take place.
[97] Proceedings having thus been commenced solely as concerns the
preliminary objections raised by Poland in regard to the Court's
jurisdiction, it will be well to examine the legal aspect of the problem.
[p32]
I.
[98] According to Article 36, last paragraph, of the Statute:
"In the event of a dispute as to whether the Court has jurisdiction, the
matter shall be settled, by the decision of the Court."
[99] Such a decision which, if taken, can clearly be based only on the
objective law applicable in the particular case, is of a purely declaratory
nature; and it can never create a right, i.e. bestow on the Court itself a
jurisdiction which is not supported by applicable rules of law either
general or particular.
[100] A general rule laid down by Article 36, paragraph 1, of the Statute
provides for a compromis between the Parties, which in the present case does
not exist. It also refers to special Treaty provisions.
[101] The German-Polish Convention regarding Upper Silesia, concluded on May
15th, 1922, at Geneva, constitutes a special source of jurisdiction of this
kind, for it gives the Permanent Court of International Justice jurisdiction
in two different sets of circumstances:
(1) that dealt with in Article 2, paragraphs 1 and 2, in conjunction with
Article 586, where the Court's jurisdiction is strictly limited and
subordinated in each particular case to a previous decision by the
German-Polish Mixed Commission; this clause does not come into account;
(2) that provided for in Article 23, which is the only clause that can be
invoked in the present case. And it is precisely the applicability of this
clause which was affirmed by one Party and denied by the other.
[102] The opposing Parties in the present case left it to the Court to
decide whether Article 23 was applicable, being agreed to obtain a decision
as to the Court's jurisdiction by means of an interpretation of this
article, that is to say by means of an interpretation of their own common
intention as expressed in this article.
[103] It would appear that this interpretation should be a strict and even a
restrictive one, in order to avoid the possibility of either of the
contracting States being placed in the painful position of [p33] having the
Court's jurisdiction imposed upon it in a case which had not been willingly
provided for in advance.
[104] The opinion given by Mr. Moore (Judgment No. 2, page 60) appears to be
must judicious:
"The international judicial Tribunals so far created have been tribunals of
limited powers. Therefore, no presumption in favour of their jurisdiction
may be indulged. Their jurisdiction must always affirmatively appear on the
face of the record."
[105] A general idea of the great care taken by the Court before deciding on
a similar point in the case of the Mavrommatis Palestine Concessions is
given by the three following passages of Judgment No. 2:
1. "It appears in fact from the documents before the Court and from the
speeches. that the preliminary question to be decided is not merely whether
the nature and subject of the dispute laid before the Court are such that
the Court derives from them jurisdiction to entertain it, but also whether
the conditions upon which the exercise of this jurisdiction is dependent are
all fulfilled in the present case." (Page 10.)
2. "Before considering whether the case of the Mavrommatis concessions
relates to the interpretation or application of the Mandate and whether
consequently its nature and subject are such as to bring it within the
jurisdiction of the Court as defined in the article quoted above, it is
essential to ascertain whether the case fulfils all the other conditions
laid down in his clause ." (Page 11.)
3. ". . . .the Court, bearing in mind the fact that its jurisdiction is
limited, that it is invariably based on the consent of the respondent and
only exists in so far as this consent has been given, cannot content itself
with the provisional conclusion that the dispute falls or not within the
terms of the Mandate. The Court, before giving judgment on the merits of the
case, will satisfy itself that the suit before it, in the form in which it
has been submitted and on the basis of the facts hitherto established, falls
to be decided by application of the clauses of the Mandate. For the
Mandatory has only accepted the Court's jurisdiction for such disputes."
(Page 16) [p34]
[106] It seems necessary to exercise similar care in the two suits (I and II
of the German Application) without losing sight of the fact that the Geneva
Convention, in general, and its Section III in particular which includes the
Article 23 in question, regulates the exercise of public authority by Poland
in Upper Silesia which became Polish after the plebiscite. Certain rights of
Poland, of the Polish authorities and of the Polish Government in various
branches of public administration, in accordance with the various carefully
defined legal domains, are dealt with in great detail. By freely consenting
to submit to the Court's jurisdiction certain clearly defined disputes,
Poland alone of the two Parties concerned was the one making concessions
-the only Party in practice compelled to appear before the Court upon the
application of the other Party; for the inverse situation could not arise.
When Article 6 of the Geneva Convention begins : "Poland may expropriate in
Upper Silesia undertakings..", it is the exercise of a right of
expropriation accruing to Poland only which is therein regulated.
[107] In an endeavour to devote the same care to the settlement of the two
groups of cases now before the Court, we will abstain from following the
learned distinction, adopted in Judgment No. 2, between the nature and
object on the one hand, and other conditions on the other hand, and we will
rest content with considering one by one the various conditions -all the
conditions -contained in Article 23 all of which are equally and to the same
degree important for the solution of the problem under consideration.
[108] Article 23, the only clause dealing with this matter, is part of
Section III -entitled "Expropriation" -of the Geneva Convention; This
article runs as follows:
[Translation.]
Article 23.
"1. Should differences of opinion respecting the construction and
application of Articles 6 to 22 arise between the German and Polish
Governments, they shall be submitted to the Permanent Court of International
Justice.
"2. The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived
from the stipulations of the Treaty of Peace of Versailles shall not thereby
be prejudiced." [p35]
[109] The first paragraph, which is positive in form, confers jurisdiction
on the Permanent Court of International Justice ; this clause we will take
first. The second paragraph, which is negative in form, constitutes a
reservation in regard to the first; it will be analyzed afterwards.
[110] A. - Jurisdiction is conferred on the Court subject to the fulfilment
of all the conditions of fact, which may be grouped under the three
following headings:
[111] 1.- In the first place, the facts must include an actual
interpretation and application of specified articles.
[112] The two contracting States are not in the same situation, Poland alone
being in a position both to interpret and apply the articles, whilst
Germany, or its Government, can only interpret them. Interpretation,
unaccompanied by application, even if undertaken by both countries, is not
sufficient, for it is devoid of all practical interest. It is interpretation
and application undertaken by Poland, the responsible power, combined with
the interpretation of the German Government, which alone can give rise to
differences of opinion and render applicable the provisions of Article 23.
Application must take a positive form, that is to say must consist of
finding that the provisions of some particular article have been fulfilled
and of the application of the contemplated sanctions or legal consequences.
An article may have been well or badly interpreted and applied, but it must
have been applied. The Court, therefore, is not given jurisdiction in the
case of certain expressly specified acts; it only obtains jurisdiction
indirectly through the use made by one of the two Governments of the
articles specially enumerated.
[113] 2. -In the next place, the only articles the interpretation and
application of which can give rise to a difference of opinion suitable for
submission to the Court are those exhaustively enumerated, namely, Articles
6 to 22 of the same Convention. Of the three sections included in the first
part of the Convention entitled General Provisions, only the third, Section
III, regarding Expropriation and including the articles referred to, is thus
in effect placed in a special position. Heading I concerning Laws in force
and Heading II concerning the Protection of vested rights, like any other
[p36] provisions of municipal or international law, are, on the contrary, as
regards their correct or incorrect interpretation and application, entirely
outside the Court's jurisdiction in so far as that jurisdiction is governed
by Article 23. Are they or are they not also under the protection of some
jurisdiction whether national or international ? Is it regarded as adequate
or inadequate ? These are questions of policy, of high international policy,
and, in my view, the Court of International Justice cannot, on the basis of
Article 23, be called upon either to answer them or to find a remedy.
[114] 3.-Lastly, resulting from this interpretation and application of the
articles mentioned, there must be a difference of opinion arising between
the German and Polish Governments. Such a difference must result from -that
is to say originate in -the interpretation and application, but it must also
arise, that is to say, take the form of an official controversy between the
two Governments. Article 23 does not specify the length of time which this
controversy must last ; nor does it include a clause similar to that which
exists in Article 26 of the Mandate for Palestine ("dispute.. . if it cannot
be settled by negotiation"). It is sufficient but also essential that this
disagreement, this contradiction, this opposition of legal arguments derived
from practical experience, should in the first place take shape in a
controversy which, far from being a mechanical juxtaposition of two
individual opinions, constitutes the mutual confronting of these opinions in
the form of diplomatic steps taken by the two Governments. If Article 23
requires that there must be a definite dispute between the two Governments,
this condition cannot be fulfilled by unilateral action on the part of the
applicant Party, and it does not rest solely with the Party concerned to
remove this defect of form. It is equally necessary that the other Party
should at least have an opportunity to decide upon its attitude with regard
to its opponent's contentions and to communicate its views to the latter.
Article 23, which makes a definite dispute one of the conditions for an
action before the Permanent Court of International Justice, cannot be
interpreted in a sense which would in fact lead to the elimination of that
condition ; and this would inevitably occur if the submission of the
application were regarded as sufficient evidence of the existence of a
difference of opinion. [p37] An action at law which is dependent on the
fulfilment of certain conditions cannot be confused with, nor substituted
for, one of these conditions. The practical importance of this essential
condition is especially worthy of notice, because, apart from the advantage
of seeing States have recourse to legal proceedings as an ultimum remedium,
the mere reading of diplomatic documents furnished by the Party or Parties
concerned in support of the application enables the Court at once to verify
whether the two other essential conditions are also fulfilled and, in
particular, whether the subject matter of the difference is indeed the
interpretation and actual application of Articles 6 to 22.
[115] Such being the sense of Article 23, paragraph 1, it is easy to see
that, if, on the one hand, that article indirectly provides individuals with
a complete safeguard by guaranteeing to the State whose nationals they are
the right of assuring that the articles concerning expropriation are
correctly interpreted and applied, on the other hand, it places no obstacle
in the way of the question of the Court's jurisdiction being examined and
settled independently of any factors belonging to the merits of the case.
The question of applicability or non-applicability in general of the regime
of expropriation contained in Articles 6 to 22 cannot even arise; for the
essential condition of actual application has indisputably placed the two
Parties on the same common ground, that of Section III, entitled
"Expropriation". The strict application of Article 23 in the sense referred
to, and in conformity with its terms, thus enables us to avoid two equally
undesirable possibilities : the possibility that the Court may affirm its
jurisdiction in a purely provisional manner, on the basis of the doubt that
may arise out of the very institution of proceedings, as regards the
applicability or non-applicability; with the risk that later, in the course
of proceedings on the merits, this doubt may be dispelled, in the sense that
the articles are found inapplicable and the Court thus without jurisdiction
; and, on the other hand, the possibility that the Court may affirm its
jurisdiction as the result of certain considerations relating to the merits
of the dispute ; with the danger of prejudging by the decision as to
jurisdiction some point or other which belongs to proceedings on the merits,
and of compromising by this encroachment the essential position of equality
which the two Parties are justly entitled to claim in entering on the field
of these subsequent proceedings. [p38]
[116] B. -Paragraph .2 of Article 23 contains a negative provision :
"The jurisdiction of the Germano-Polish Mixed Arbitral Tribunal derived from
the stipulations of the Treaty of Peace with Versailles shall not thereby be
prejudiced."
[117] Whatever may have been the object of this reservation, whether it were
to ensure that the jurisdiction of the Court of International Justice should
not in any way exclude the right of individuals to sue for their rights
before the Mixed Arbitral Tribunal, or whether it were to prevent one or
other of the Governments from substituting itself for its nationals and
transferring the suit to another sphere by making it the subject of a
dispute between two Governments, there is no doubt that we have here a
reservation which is indissolubly connected with the first paragraph and
refers to the Court's jurisdiction, which it defines, by elimination, as
compared with the jurisdiction of the Mixed Arbitral Tribunal of Paris. For
there can have been no idea of creating in the previous paragraph a
concurrent or privileged, nor yet a hierarchically superior jurisdiction. In
each of these three eventualities the competence of the Mixed Arbitral
Tribunal would, either as regards its sphere of activity, or as regards its
authority, have certainly been impaired. This Tribunal, in favour of which
Article 304 (g) of the Treaty of Versailles provides that:
"The High Contracting Parties agree to regard the decisions of the Mixed
Arbitral Tribunal as final and conclusive and to render them binding upon
their nationals",
thus remains, before and after the Geneva Convention, free in the exercise
of its jurisdiction both to protect the private rights of individuals, and
for this purpose to give a final interpretation of the law applicable in
each particular case.
[118] It follows that the jurisdiction of the International Court of
Justice, which cannot overlap with that of the Mixed Arbitral Tribunal in
Paris, must, within the sphere of its activities -a sphere very limited
ratione materiś -, differ from that of the Tribunal as regards its nature.
[119] It none the less remains a'true jurisdiction, and a jurisdiction for
the hearing of disputes ; but, starting from an examination of particular
instances of interpretation and application of Articles 6 to 22, which have
necessarily been submitted to it, it reaches a decision which is in its turn
an interpretation of the articles in question as regards the particular
cases referred to. Without [p39] remaining confined within an academic
sphere of pure doctrine -for this it avoids by dealing always with concrete
contested cases -it is none the less bound, in virtue of the mandate given
by the Parties in Article 23, paragraphs 1 and 2, to confine itself to
determining only differences of opinion between the two Governments
concerned, without endeavouring by its decision to impose on one or other
Government any obligation as regards individuals, for instance in the matter
of reparation or indemnity.
[120] It is solely in the interest of the Law - for Articles 6 to 22 of the
Geneva Convention constitute in this case the Law common to the two Parties
- that Article 23 of the same Convention, which has already been analyzed,
gives a very particular and very special jurisdiction to the International
Court of Justice.
II.
[121] When compared with the conditions laid down as necessary in Article
23, the German Government's Application instituting proceedings, as regards
conclusions i(a), 1(6), 2(a) and 2(6), does not show that any of these
conditions have been fulfilled. It is confronted with facts which are
contrary to them. The documents and statements by Counsel have clearly shown
that the steps taken by the Polish Government in regard to the
Oberschlesische Stick-stoffwerke Company, far from having constituted the
application and interpretation of Articles 6 to 22 of the Geneva Convention,
were inspired by other treaty provisions, such as Article 256 of the Treaty
of Versailles and the Spa Protocol, applied by the Polish legislative
enactments which were necessary for their execution. This fact is so well
established that the "Observations of the German Government" themselves
recognize it in the following passage (page 1):
"The German Government's complaint against the Polish Government is
precisely that the latter Government has not applied the articles in
question, although it should have done so."
[122] But a complaint in regard to the non-existence of a fact cannot
constitute its existence, or take the place of such fact.
[123] Considering that neither the conditions of fact in regard to the
previous official dispute nor those relating to the source and subject [p40]
matter of the dispute are realized; and considering that the submissions of
the German Application tend to raise quite another issue, that of the
applicability of the regime of expropriation, which stands outside the
limited sphere of Article 23 of the Geneva Convention, and extends over a
very large number of legal domains entirely foreign to that which had been
reserved by the Parties for the jurisdiction of the Permanent Court of
International Justice, I can only conclude that the Court has no
jurisdiction in the present case.
III.
[124] As regards the third conclusion of the Application in the matter of
the rural estates, it is to be noted that this is not based on the previous
existence of an official dispute between the two Governments and thus does
not satisfy one of the essential conditions laid down in Article 23.
[125] As regards its subject matter, the conclusion stands strictly within
the scope of Article 23, since the Polish Government expressly recognized
that it desired to avail itself of the rights provided in Article 12 and 13
of the Geneva Convention and that it had proceeded to apply Articles 6 and
following by notifying to the proprietors its intention of expropriating
them, as required by Article 15 of the Convention.
[126] The Court's jurisdiction being thus, as regards the subject matter of
the dispute, definitely established, it is none the less clearly to be
understood that the Court's enquiry and its decision can, in accordance with
Article 23, only extend to differences of opinion duly found to exist in
regard to the interpretation and application of Articles 6 to 22 of the
Convention, without extending to the questions of fact referred to in the
Application instituting proceedings (pages 6 and 8):
whether certain estates are or are not principally intended to meet the
requirements of undertakings belonging to the group of major industries;
whether a certain company is or is not controlled by German nationals;
whether the description of the property to be expropriated is or is not
sufficiently clear; [p41]
whether the extent of certain of the properties included in the
notifications is or is not less than 100 hectares of agricultural land ;
whether any given person is or is not of a certain nationality.
[127] These questions of fact (which clearly lie outside the jurisdiction of
the Court and the solution of which alone can give the Polish Government an
opportunity of expressing its opinion and arriving either at an agreement or
a disagreement with the German Government) form the subject matter of the
steps taken by the Polish Government in regard to the persons to whom the
notification of its intention was given. Six of the nine cases are still
pending before the Mixed German-Polish Arbitral Tribunal in Paris. One of
the ten cases -that of Madame H. Voigt, which was decided in favour of the
objector -gave the Polish Government an opportunity of showing -by the
immediate withdrawal of notice -that neither after nor before the decision
of the question of fact was there in the case at issue any difference of
opinion between it and the German Government in regard to the interpretation
and application of Articles 6 to 22 of the Convention. It is by no means
impossible that a similar agreement may become manifest after the solution,
in one way or the other, of other problems of fact which have arisen.
(Signed) ROSTWOROWSKI.
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