Files E. c. VI

 

Docket X

 

Judgment No. 7

 25 May 1925

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Tenth (Extraordinary) Session

 

Case concerning certain German interests in Polish Upper Silesia (The Merits)

 

Germany v. Poland

Judgment

 
BEFORE: President: Huber
Former President: Loder
Judges: Nyholm, Altamira, Anzilotti,
Deputy Judge(s):

Yovanovitch, Beichmann, Negulesco

National Judge: Count Rostworowski
 
   
Represented By: Germany: Dr. Erich Kaufmann, Professor at Bonn
Poland: Mrozowski, President of the Supreme Court of Warsaw, Sobolewski, Assistant Delegate to the Reparation Commission
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1926.05.25_silesia.htm
  
Citation: German Interests in Polish Upper Silesia (Germ. v. Pol.), 1926 P.C.I.J. (ser. A) No. 7 (May 25)
Publication: Publications of the Permanent Court of International Justice Series A No. 7; Collection of Judgments A.W. Sijthoff’s Publishing Company, Leyden, 1926
  
 

  

[p5] 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 Applications instituting proceedings filed with the Registry of the Court on May 15th and August 25th, 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 suits concerning certain German interests in Polish Upper Silesia. These interests concerned in the first place the application of Articles 2 and 5 of the Polish law of July 14th, 1920, the deletion from the land registers of the name of the Oberschlesische Stickstoffwerke Company (hereafter called the "Oberschlesische") as owner of certain landed property at Chorzów, and the entry, in its place, of the Polish Treasury; the taking over by a delegate of the Polish Government of control of the working of the nitrate factory at Chorzw; also the taking possession by him of the movable property and patents, licences, etc., of the Bayerische Stickstoffwerke Company (hereafter called the "Bayerische"), which had previously worked the factory. 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 those properties. The Application of May 15th related to ten large estates; to these two others were added by the Application of August 25th.

[2] On receipt of notice of the first Application, the Government of the Polish Republic took certain preliminary objections of procedure and in particular an objection to the Court's jurisdiction.

[3] The Court on August 25th, 1925, gave judgment on the preliminary objections made by Poland. The operative part of this judgment runs as follows:

"The Court, having heard both Parties,
"I. (1) In affaire I referred to in the plea filed by the Government of the Polish Republic: [p6]
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 Polish Republic: 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."

[4] In the additional Application filed on the same day on behalf of the German Government, the latter, amongst other things, requested the Court to join that Application to the Application filed on May 15th, 1925. By a decision dated February 5th, 1926 (Annex I), the Court complied with this request by joining, for the purposes of the proceedings on the merits, the causes of action set out in the Request of August 25th, 1925, to those -also relating to the notice given by the Polish Government of an intention to expropriate certain large rural estates -mentioned in the Application of May 15th, 1925.

[5] The submissions made in the two Applications, the joinder of which was thus decided, were as follows:

"May the Court be pleased:
To give judgment. . . . :
I. 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; [p7]
2. (a) That the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke 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 Giesche's Erben Company; to Christian Kraft, Fürst zu Hohenlohe-Oehringen; to the Vereinigte Königs-und Laurahiitteé Company ; to the Baroness Maria Anna von Goldschmidt-Rothschild (née von Friedländer-Fuld) ; to Karl Maximilian, Fürst von Lichnowsky; 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."
II. "That the liquidation of the rural estates belonging 10 the Duke of Ratibor and Count Saurma-Jeltsch would not be in conformity with the provisions of Article 6 and the following articles of the Geneva Convention."

[6] These submissions have undergone amendments, either in the course of the written or oral proceedings, which will be indicated hereinafter.

[7] In accordance with the Judgment of August 25th, 1925, No. II, the President fixed the times for the filing of the documents of the written proceedings in regard to the suits in question as follows:

For the Case, by the Applicant: Wednesday, September 16th, 1925;
For the Counter-Case, by the Respondent: Wednesday, October 28th, 1925;
For the Reply, by the Applicant : Wednesday, November 25th, 1925; [p8]
For the Rejoinder, by the Respondent : Wednesday, December 23rd, 1925.

[8] The Case of the German Government was filed on the date fixed. The Polish Government having, before the expiration of the time allowed for filing of its Counter-Case, requested additional time, the President granted this request and decided, in virtue of the powers conferred upon him by Article 33 of the Rules of Court, to postpone by one month the date fixed for the filing of the next document; the times thus expired as follows:

For the filing of Counter-Cases by the Respondent: Saturday, November 28th, 1925;
For the filing of Replies by the Applicant: Saturday, December 26th, 1925;
For the filing of Rejoinders by the Respondent: Saturday, January 23rd, 1926.

[9] The documents of the written proceedings were duly filed with the Registry within the times finally fixed and were communicated to those concerned as provided in Article 43 of the Statute.

[10] By a decision taken in virtue of Article 23 of the Statute and in accordance with what had been agreed upon during the proceedings in regard to the preliminary objections made by Poland, as also with a Resolution adopted by the Court during its ninth session, the President convoked an extraordinary session of the Court for February 2nd, 1926; the Parties were duly notified.

[11] In the course of hearings held from February 5th-11th and from February 16th-26th, the Court has heard the oral pleadings, replies and rejoinders submitted by the above-mentioned Agents of the Parties.

***

[12] The amendments made to the original submissions of the applicant Party may be summarized as follows:

[13] I. For submission No. 1 of the Application of May 15th, 1925, the Case has substituted the following submission:

"May the Court be pleased
"To give judgment to the effect:
"That the application both of Article 2 and of Article 5 of the law of July 14th, 1920, in Polish Upper Silesia, decreed by the law [p9] of June 16th, 1922, constitutes a measure of liquidation within the meaning of Article 6 and the following articles of the Convention of Geneva in the sense that, in so far as the above-mentioned articles of the Convention of Geneva do authorize liquidation, that application must be accompanied by the consequences attached to it by the said Convention, in particular the entry into operation of Articles 92 and 297 of the Treaty of Versailles prescribed by the said Convention, and that, in so far as those articles do not authorize liquidation, that application is illicit."

[14] The respondent Party has made no objection to this substitution; on the contrary, it has, in the Counter-Case, accepted it as "not producing any change in the scope and essential object of the original submission".

[15] II. As regards submission No. 3 of the Request of May 15th, 1925, the applicant Party in its Reply has, "subsidiarily", couched it in the following form:

"May the Court be pleased
"To give judgment
"to the effect that the notices of an intention to liquidate the rural estates belonging to are not in conformity with the provisions of Article 6 and the following articles of the Geneva Convention."

[16] The respondent Party maintained in his Rejoinder that the adoption of the new formula implied the withdrawal of the original claim and the substitution for it of a new one which was essentially different both as regards its contents and its legal basis. Since, in his opinion, such an amendment of the submissions was inadmissible at that stage of the procedure, he asked the Court to decide that submission No. 3 of the Application had been withdrawn by the German Government. In his statement of February 5th, the Agent of the latter Government observed that, having regard to the close connection existing between expropriation and notice of an intention to expropriate, submission No. 3 of the Application, as originally drafted, and the subsidiary form expressed the same idea, and that the subsidiary form amounted merely to a slight [p10] modification in the mode of expression. He also added that the new wording had been expressly submitted as a subsidiary form only, and that, if in the Court's opinion the subsidiary submission constituted an essential amendment of the Application, which in his view would not be correct, the original wording had been neither replaced nor withdrawn.

[17] The Agent of the Polish Government, in his reply on February 8th, 1926, after admitting that the Court had overruled the contention submitted by his Government in the proceedings upon the plea to the jurisdiction and had ruled that the notices possessed a definitive character, stated that, in order to simplify the argument, he left aside all these questions of form, withdrew the submission set out in the Rejoinder and agreed to argue the matter on the basis of the so-called subsidiary submission, that is to say, the submission formulated in the Reply.

[18] III. The German Government, during the oral proceedings, has withdrawn its application in so far as certain estates mentioned in submission No. 3 are concerned.

[19] (1) As regards the estate of Frau Hedwig Voigt, the application was withdrawn by a statement made by the Agent of the German Government at the hearing of July 18th, 1925, after information had been supplied by the Polish Agent to the effect that the notification concerning this estate had been withdrawn. This statement was duly placed on record by the Court.

[20] (2) Regarding the estate of Frau Gabriele von Ruffer, the application was withdrawn by a similar statement made at the hearing of February 5th, 1926; the Agent of the German Government, in a further statement made at the hearing of February 8th, 1926, attached certain reservations to this withdrawal, which reservations were placed on record, but which do not otherwise affect the case now before the Court.

[21] (3) Regarding the estates of the Georg Giesche's Erben Company, the application was in part withdrawn by a statement made by the Agent of the German Government at the hearing of February 8th, 1926, in so far as concerns the Mała Dabrowka estate and the properties situated in the commune of Katowice. This statement was duly recorded. When subsequently the Agents of the Polish Government stated that the circumstances which had led to this [p11] statement -that is to say, the withdrawal by the authority competent to deal with questions of liquidation of the notice of an intention to expropriate -in reality related exclusively to the Mała Dabrowka estate and not to the properties at Katowice, the Agent of the German Government confined himself to noting this statement. The Court, being of opinion that the position resulting from these various statements and declarations was insufficiently clear, decided to ask the Parties for the necessary explanations. The Agent of the German Government, in his reply, requested the Court "only to regard the Application as withdrawn in so far as the Mała Dabrowka estate was concerned" and to give judgment in regard to the properties at Katowice. On the other hand, the reply of the Polish Government to the corresponding request for information, shows that, by a letter dated March 22nd, 1926, the Central Liquidation Office at Warsaw informed the Giesche Company that the notice of intention to expropriate the estates belonging to that Company did not affect the property situated in the town of Katowice. Moreover, the Polish Government, both in its documents of procedure and in the statements made on its behalf in Court, has manifested its intention not to expropriate the property in question.

[22] The Court duly records that the Application remains withdrawn only in so far as concerns the Mała Dabrowka estate.

[23] As regards the property of Baroness von Goldschmidt-Rothschild, the Agent of the Polish Government stated at the hearing of February 8th, 1926, that it would not be liquidated, and produced the number of the Monitor Polski of January nth, 1926, containing a rectification of the decision to give notice in respect of the Baroness's property. At the hearing of February 10th, 1926, the Agent of the German Government took note of these facts and stated that he was prepared to withdraw the application when the Polish Government had officially informed the Baroness von Goldschmidt-Rothschild that her lands were entirely exempted from expropriation. The Polish Government refused to comply with this request.

[24] As regards the landed properties situated at Katowice and attributed to the Vereinigte Königs -und Laurahütte Company, the Agent of the German Government confined himself to noting a statement made by the Agents of the Polish Government to the effect that the notice of an intention to expropriate these properties had been withdrawn. [p12]

[25] Having regard to the foregoing, the submissions made by the applicant Party may finally be. set out as follows:

"To give judgment to the following effect:
(1) That the application both of Article 2 and of Article 5 of the law of July 14th, 1920, in Polish Upper Silesia, decreed by the law of June 16th, 1922, constitutes a measure of liquidation within the meaning of Article 6 and the following articles of the Convention of Geneva in the sense that, in so far as the above-mentioned articles of the Convention of Geneva authorize liquidation, that application must be accompanied by the consequences attached to it by the said Convention, in particular the entry into operation of Articles 92 and 297 of the Treaty of Versailles prescribed by the said Convention, and that, in so far as those articles do not authorize liquidation, that application is illicit.
(2) (a) That the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stickstoff-werke 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 notices of an intention to liquidate the rural estates belonging to Count Nikolaus Ballestrem ; to the Georg Giesche's Erben Company, except the estate of Mala Dabrowka ; to Christian Kraft, Fürst zu Hohenlohe-Oehringen; to the Vereinigte Königs-und Laurahütte Company; to Baroness Maria Anna von Goldschmidt-Rothschild; to Karl Maximilian, Fürst von Lichnowsky; to the City of Ratibor ; to the Godulla Company; to the Duke of Ratibor and to Count Saurma-Jeltsch, are not in conformity with the provisions of Article 6 and the following articles of the Geneva Convention."

[26] To the submissions of the Applicant, thus amended, the Respond-ent opposes the following submissions: [p13]

"May the Court be pleased:
(1) To non-suit the Applicant as regards submission No. 1 of theRequest as formulated in his Case;
(2) to give judgment to the effect that there is no ground for a decision as to the conformity or non-conformity with the provisions of Article 6 and the following articles of the Geneva Convention of the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stick-stoffwerke Companies, seeing that no measures of liquidation have been taken by that Government;
(3) to nonsuit the Applicant as regards submission No. 3 ofthe Request and the submission of his second Application."

[27] The representative before the Court of the respondent Party, in addition to the declarations above mentioned regarding the intention of his Government not to expropriate certain parts of the estates in respect of which notice had been given, has made other similar declarations which will be dealt with later; the Court can be in no doubt as to the binding character of all these declarations.

***

[28] In support of their respective submissions, the Parties have filed with the Court numerous documents, either as annexes to the documents of the written proceedings, or in the course of the oral proceedings, or finally, in consequence of requests made or questions put by the Court (Annex III).

[29] The Court also has before it additional information which, in pursuance of an Order made by the Court on March 22nd, 1926 (Annex II), was furnished by the Parties at the hearings of April 13th, 14th, 15th and 16th, 1926, by means of the examinations of expert witnesses, in regard to the Ballestrem and Giesche (Mokre estate) suits. [p14]

THE FACTS.

So-called case of the factory at Chorzów.

[30] The history of this case up to the time when it was brought before the Court has been briefly indicated in Judgment No. 6; the Court refers to that Judgment.

So-called cases of the large rural estates.

[31] The history of the cases has also been set out in Judgment No. 6, to which, again, the Court refers. It will, in order to avoid repetition, be more convenient to mention pertinent facts relating to individual suits in connection with the discussion of these facts from a legal standpoint.

THE LAW.

1.

So-called case of the Factory at Chorzów.

I.

[32] Before approaching the examination of the questions submitted to it in regard to this case, the Court thinks it well to draw attention to the following:

[33] The Application sets out in two chapters the facts and allegations upon which the Applicant bases his submissions; the first chapter relates to submissions 1 and 2, whilst the second relates to submission 3.

[34] When considering the plea to the jurisdiction submitted by the Polish Government, the Court noted that that Government had, in the submissions made in this plea, followed the division into two chapters adopted in the Application and that the first submission made in regard to "Affaire I", the so-called case of the factory at Chorzów, questioned the Court's jurisdiction as regards both submission No. 1 and submission No. 2 of the Application. Having noted this, the Court considered separately the Polish submissions [p15] relating to "Affaire I" concerning the factory at Chorzów and those relating to the large rural estates. This course was especially indicated by reason of the fact that the Court at that time felt compelled to make certain reservations as to how far it could deal with the questions contemplated by the first German submission.

[35] In this way the present proceedings have been described as relating to two cases, the first of which relates to the factory at Chorzów. In reality, however, only the second submission of the Application relates to this case, whilst the first submission refers generally to certain relations between the Polish law of July 14th, 1920, and the Geneva Convention.

[36] The reservations which the Court made in Judgment No. 6, with regard to submission No. 1 of the Application, concerned this submission considered as a principal submission, independent of submission No. 2; they related to the fact that the submission in question, "in the form in which it was drafted", seemed 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, and that it could not 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.

[37] The new version of submission No. 1 -accepted by the Respondent -on the other hand directly contemplates the relation between Articles 2 and 5 of the Polish law of July 14th, 1920, and Articles 6 to 22 of the Geneva Convention. It is hardly open to doubt that by this amendment the German Government intended to preserve the character of submission No. 1 as a principal and independent submission, though at the same time it might also operate as a question preliminary to submission No. 2. The Agent of the Applicant has on several occasions explained in this way the relation between the two submissions, laying especial stress on their independence. It appears that this independence is to be understood in the following sense: Submission No. 1 may be regarded as preliminary to submission No. 2 in so far as the Polish Government, in taking over the Chorzów factory, invoked the law of July 14th, 1920; nevertheless, the application of that law in Upper Silesia was in itself not in conformity with the provisions of Articles 6 to 22 of the Geneva Convention (submission No. 1) and the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke [p16] and Bayerische Stickstoffwerke Companies was in itself not in conformity with the above-mentioned articles (submission No. 2).

[38] The Respondent, for his part, also seems to regard submission No. 1 as a principal and independent submission, for he disputes the Court's power to deal with it, whilst admitting that the question to which it refers might enter into consideration as a question preliminary to submission No. 2.

[39] For these reasons, the Court will consider separately submissions 1 and 2.

2.

[40] It having been expressly stated in Judgment No. 6 that "a declaration by the Court that it has jurisdiction to deal with 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", it is now necessary to consider the reasons for which the Respondent disputes the Court's power to give judgment upon this submission.

[41] These reasons appear to be as follows: (1) submission No. 1 cannot be regarded as relating to a difference of opinion respecting the construction and application of Articles 6 to 22 of the Geneva Convention ; (2) the examination by the Court of the question whether the Polish law of July 14th, 1920, is in conformity with the provisions of the Convention is contrary to paragraph 2 of Article 2 of the Convention ; (3) lastly, the abstract character of the decision asked for is hardly compatible with Article 59 of the Court's Statute.

[42] As regards the first of these objections, it will suffice to observe that, Poland having thought herself entitled to introduce the law of July 14th, 1920, into Upper Silesia and, on the other hand, the German Government having contended that this law deprives German nationals or companies controlled by them of their property, rights and interests in a manner contrary to Head III of the Geneva Convention, Part I, this certainly constitutes a difference of opinion as to the meaning and scope of Articles 6 to 22. [p17]

[43] (2) Article 2, paragraph 2, of the Convention runs as follows:

"Except as provided in paragraph 1, the question whether the provisions enacted by Poland are in conformity with the conditions of Article 1, may not be subjected to examination by an international tribunal, even in the case of 'evocation'."

[44] In order to understand this clause, it should be borne in mind that Article 1 begins by laying down in its first paragraph that the law in force in Upper Silesia is to be maintained, subject to consequences arising out of the transfer of sovereignty and modifications thereby involved. Paragraph 2, however, allows Poland to replace certain provisions of substantive law by new regulations applicable to the whole of her territory and also permits certain other modifications of existing legislation. It adds that, in so far as land and labour legislation are concerned, the new provisions must, as regards their contents, be suitable to be substituted for the provisions in force. It was only natural that provision should be made for the possibility of dispute as to whether certain provisions were or were not suitable to be substituted for the provisions in force: this is done by paragraph 1 of Articles, which regulates the procedure for the settlement of such disputes. Then comes paragraph 2 of the same article, which has been quoted above.

[45] In the Court's opinion, it is clear that this paragraph excludes from examination by an international tribunal, except as otherwise provided in Article 2, paragraph 1, only the question whether the provisions enacted by Poland are in conformity with the stipulations of Article 1. The question whether a law is in conformity with other clauses of the Convention is not covered by the paragraph under consideration.

[46] The reservation, referred to above, in regard to consequences arising out of the transfer of sovereignty and modifications thereby involved, cannot, in the Court's opinion, relate to laws such as that of July 14th, 1920, but rather to constitutional and public law provisions the maintenance of which would have been incompatible with the transfer of sovereignty. This reservation moreover does not seem to be relied on by the Respondent. [p18]

[47] The Polish Government has cited in support of its contention, paragraph 4 of Article 1, according to which:

" Clauses of Polish laws stipulating that these laws shall come into force in Polish Upper Silesia as from the date of the tranfer of sovereignty, shall be ineffective in so far as they relate to provisions the coming into force of which would be contrary to the stipulations of the present Convention, and shall remain ineffective so long as they continue to relate to such provisions."

[48] The law of July 14th, 1920, having been introduced into Upper Silesia by the law of June 16th, 1922, the question whether the latter law contains provisions contrary to the Geneva Convention and therefore to paragraph 4 of Article 1, would, according to Poland's contention, fall within the scope of Article 2, paragraph 2.

[49] The Court cannot admit this view. It follows from what has been said above that the case provided for in paragraph 2 of Article 2 is entirely different from that contemplated in paragraph 4 of Article 1. Again, it seems hardly open to doubt that this paragraph refers to laws dating from before the transfer of sovereignty and that its intention is to prevent such previously enacted laws from coming into force in the territory allotted to Poland. Paragraph 4 therefore contains no provision applicable to the Polish law of June 16th, 1922; if the latter law is contrary to the provisions of Articles 6 to 22, it does not constitute an infringement of Article 1.

[50] (3) In the last place, the objection based on the abstract character of the question which forms the. subject of submission No. 1 is likewise ill-founded. Article 14 of the Covenant gives the Court power to "hear and determine any dispute of an international character which the Parties thereto submit to it". There are numerous clauses giving the Court compulsory jurisdiction in questions of the interpretation and application pf a treaty, and these clauses, amongst which is included Article 23 of the Geneva Convention, appear also to cover interpretations unconnected with concrete cases of application. Moreover, there is no lack of clauses which refer solely to the interpretation of a treaty; for example, letter a of paragraph 2 of Article 36 of the Court's Statute. There seems to be no reason why States should not be able to ask the Court to give an abstract interpretation of a treaty; rather would [p19] it appear that this is one of the most important functions which it can fulfil. It has, in fact, already had occasion to do so in Judgment No. 3.

[51] Article 59 of the Statute, which has been cited by Poland, does not exclude purely declaratory judgments. The object of this article is simply to prevent legal principles accepted by the Court in a particular case from being binding upon other States or in other disputes. It should also be noted that the possibility of a judgment having a purely declaratory effect has been foreseen in Article 63 of the Statute, as well as in Article 36 already mentioned.

[52] It might be asked whether a difficulty does not arise from the fact that the Court would have to deal with the Polish law of July 14th, 1920. This, however, does not appear to be the case. From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States, in the same manner as do legal decisions or administrative measures. The Court is certainly not called upon to interpret the Polish law as such ; but there is nothing to prevent the Court's giving judgment on the question whether or not, in applying that law, Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.

[53] For the foregoing reasons the Court reserves submission No. 1 of the German Government for judgment on the merits.

***

[54] Before proceeding to consider this submission upon its merits, the Court finds it necessary to define what, in its opinion, is its real import.

[55] In the form finally adopted, submission No. 1, which is based on a particular understanding of the nature of the measures permitted or prohibited under Articles 6 to 22 of the
Geneva Convention, appears to be naturally sub-divided into two hypotheses, the first of which concerns measures called by the Applicant "authorized liquidation", whilst the second concerns so-called "unauthorized" liquidation. The two parts of the submission, regarded in this way, contain, however, a common feature: namely, the alleged incompatibility of Articles 2 and 5 of the law of July 14th, 1920, with the whole or a portion of the provisions of Articles 6 to 22 of the Geneva Convention. For, according to his first hypothesis, the [p20] Applicant submits that the mere application of the above-mentioned Articles 2 and 5 is incompatible with certain of the provisions in question, even in cases where expropriation is in itself allowed by these provisions; whilst, according to the second hypothesis, he submits that the articles and provisions in question are wholly incompatible in cases where expropriation is altogether prohibited.

[56] In these circumstances, the Court holds that in undertaking the examination of submission No. 1, it must in the first place be ascertained whether, generally speaking, Articles 2 and 5 of the law of July 14th, 1920, are or are not compatible with Articles 6 to 22 of the Geneva Convention; for, in the Court's opinion, were this point to be decided in the negative, there would be no need for it to consider separately the two hypotheses adopted in the submission and their soundness as a legal theory. For if the two groups of provisions were recognized to be generally incompatible, the distinction which the Applicant has desired to make between the measures respectively referred to as measures of authorized and of unauthorized liquidation ceases to have any importance for the purposes of the suit; since, if Articles 2 and 5 of the law of 1920 are, in themselves, incompatible with Articles 6 to 22 of the Geneva Convention as a whole, it is of no consequence whether, in certain circumstances, there may be special reasons rendering the pro-visions of the law incompatible with certain of the provisions of the Geneva Convention included in Articles 6 to 22.

[57] In approaching the question whether the two groups of provisions in question are or are not compatible with a view to giving judgment on submission No. 1, the Court must consider, on the one hand, the régime established by Head III of the Geneva Convention and, on the other hand, the scope and effect of the provisions contained in Articles 2 and 5 of the Polish law of July 14th, 1920.

***

[58] The first part of the Geneva Convention, entitled "General Provisions", includes three headings, the first of which is intended to secure for a certain time and under certain reservations, the maintenance of the German law in force in the Polish portion of the plebiscite area; the second secures the protection of vested rights and the third establishes Poland's right to expropriate in Polish [p21] Upper Silesia certain property of German nationals or of companies controlled by them, under certain conditions.

[59] It should first of all be observed that whereas Head II is general in scope and confirms the obligation of Germany and Poland in their respective portions of the Upper Silesian territory to recognize and respect rights of every kind acquired before the transfer of sovereignty, by private individuals, companies or juristic persons, Head III only refers to Polish Upper Silesia and establishes in favour of Poland a right of expropriation which constitutes an exception to the general principle of respect for vested rights.

[60] Head III is entitled "Expropriation". It includes a general rule (Article 6) and three chapters, the first (Arts. 7-11) and second (Arts. 12-16) of which respectively determine the conditions under which Poland may expropriate large industrial undertakings and large rural estates; whilst the third (Arts. 17-24) contains provisions applying both to large industries and large rural estates.

[61] Article 6 runs as follows:

"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."

[62] It is only in the second part of this article that the word "liquidated" occurs: as has already been stated, the section is headed "Expropriation", and in all the articles the words "expropriate" and "expropriation" are used. Having regard to the context, it seems reasonable to suppose that the intention was, bearing in mind the régime of liquidation instituted by the peace treaties of 1919, to convey the meaning that, subject to the provisions authorizing expropriation, the treatment accorded to German private property, rights and interests in Polish Upper Silesia is to be the treatment recognized by the generally accepted principles of international law. However that may be, it is certain that expropriation is only lawful in the cases and under the conditions provided for in Article 7 and the following articles; apart from these cases, or if these conditions are absent, expropriation is unlawful. [p22]

[63] Seeing that, as has been said, Head III is entitled "Expropriation", the Court will use that expression in the present Judgment to denote measures referred to in the Head in question.

[64] Further, there can be no doubt that the expropriation allowed under Head III of the Convention is a derogation from the rules generally applied in regard to the treatment of foreigners and the principle of respect for vested rights. As this derogation itself is strictly in the nature of an exception, it is permissible to conclude that no further derogation is allowed. Any measure affecting the property, rights and interests of German subjects covered by Head III of the Convention, which is not justified on special grounds taking precedence over the Convention, and which oversteps the limits set by the generally accepted principles of international law, is therefore incompatible with the régime established under the Convention. The legal designation applied by one or other of the interested Parties to the act in dispute is irrelevant if the measure in fact affects German nationals in a manner contrary to the principles enunciated above.

[65] It follows from these same principles that the only measures prohibited are those which generally accepted international law does not sanction in respect of foreigners; expropriation for reasons of public utility, judicial liquidation and similar measures are not affected by the Convention.

[66] The foregoing relates to the substance of the measures forbidden by the Convention. As regards the question of form, it may be mentioned that the Convention provides for the observance of a certain procedure; it requires notification to be given of intention to expropriate, and this notification -as the Court has observed in dealing with the so-called case of the large rural estates and as will be established later -must include only property subject to expropriation; and this presupposes a preliminary enquiry as to the existence of the necessary conditions. Such an enquiry, which in a special case is provided for in Article 19, paragraph 1, is not without importance for the attainment of the purpose of the Convention, to guarantee, in the interests of all parties, the continuity of economic life in Upper Silesia. If the principle of the preliminary enquiry is accepted for the case of an expropriation in the form intended by Head III, this seems to imply that, independent of that form, there may be no dispossession of property unless it be [p23] established by preliminary enquiry that the Convention of Geneva is not applicable.

[67] The Polish law of July 14th, 1920, which must now be considered in relation to the Convention, is entitled "law concerning the transfer of the rights of the German Treasury and of members of reigning German Houses to the Treasury of the State of Poland". The articles of importance from the standpoint of the question before the Court are Articles 1, 2 (par. 1) and 5; these articles are as follows:

Article 1.
"In all cases where the Crown, the German Reich, the States of Germany, institutions of the Reich or States of Germany, the ex-Emperor of Germany or other members of reigning houses, are or were entered after November nth, 1918, in the land registers of the former Prussian provinces -either as owners or as possessors of real rights -the Polish Courts shall, on the basis of the Treaty of Peace of Versailles of June 28th, 1919, in place of the above-mentioned persons or institutions, automatically enter the name of the Polish Treasury (fisc polonais) in these registers."
Article 2.
Paragraph 1.
"Should any of the above-mentioned persons or institutions have, after November nth, 1918, either alienated or charged the landed property in question, or should a real right, registered in the name of the aforesaid persons or institutions, have been, after November nth, 1918, either at their request or with their consent, ceded, struck out or modified in any way, the Court shall restore the entry in the land registers to the situation which would have existed if the aforesaid persons or institutions had not made any request or given the consent necessary to effect the changes in the registers."
Article 5.
"The Polish Treasury (fisc), having been entered in accordance with Article 1, as owner of a landed property, [p24] require the eviction of persons who, as a result of a contract concluded with one of the persons or institutions mentioned in Article 1, remain in occupation of such property after the coming into force of this law."

[68] It appears from the wording of Article 2 itself that Poland regards as null and non-existing rights which private persons may have acquired by deeds of alienation or other deeds, mentioned in the article, if such deeds were executed after November nth, 1918. And, by authorizing the Polish Treasury to demand the eviction of any persons who, after the coming into force of the law, remain, in virtue of a contract of the kind contemplated in Article 5, in occupation of one of the landed properties in question, this article recognizes a right to disregard even private rights derived from contracts previous to November 11th, 1918.

[69] These articles are applied automatically, without any investigation as to the title of ownership or validity of each transfer or contract; any alienation or creation of real rights subsequent to November 11th, 1918, is null and void, under Article 2, without regard to the nature or circumstances of the transaction; any contract concluded with the persons or institutions mentioned in Article 1 at any date whatsoever and giving to a private person a right to the possession or occupation of a landed property, may be annulled at the mere will of the Polish Treasury, under Article 5.

[70] No redress by legal action is open to interested Parties and no indemnification is provided for by the law.

[71] The Court considers that, apart from the questions which will be dealt with later, the application of Articles 2 and 5 of the Polish law of July 14th, 1920, in Upper Silesia is not compatible with the system established by Head III of the Geneva Convention. For, on the one hand, these articles may affect private property and withdraw it from the protective régime instituted by Articles 6 to 22, subjecting it to more serious measures prohibited by the Convention. On the other hand, they make no provision for any investigation concerning the validity of a title, and eliminate any previous investigation of an individual case, though such investigation is necessary for a correct application of the Convention. [p25]

***

[72] The Respondent, however, contends that the provisions of the Polish law considered above have no connection with Head III of the Geneva Convention. For, in the first place, he argues, they merely give effect to rights which Poland derives from the Treaty of Versailles and other international 'instruments connected with that Treaty; rights which are not affected by the Geneva Convention. In the second place, even supposing that this was not the case, the measures taken in application of Articles 2 and 5 of the above-mentioned law cannot be regarded as measures of liquidation within the meaning of Articles 6 to 22 of the Geneva Convention. The real question which the Court has to decide concerns these two points ; they will be considered in the order in which they have been mentioned.

A.

[73] In approaching the first point, the Court would recall that which it has already said in Judgment No. 6 : the interpretation of the Treaty of Versailles and of the other international instruments cited by Poland must be regarded as a question preliminary or incidental to the application of the Geneva Convention, and it is only from this standpoint that the Court can deal with it.

[74] A distinction should be drawn between Article 2 and Article 5 of the Polish law of July 14th, 1920.

[75] As regards Article 2, the essential thing is to decide the two following questions: (1) Is Poland justified, under the terms of clause 19 of the Armistice Convention, and, more particularly, of the first clause of the Protocol of Spa of December 1st, 1918, in regarding as null and void the acts contemplated in Article 2 ? and (2) Can the alienation or creation of real rights of the kind contemplated in Article 2 of the law, which took place between the date of the Armistice and that of the coming into force of the Treaty of Versailles, or between the latter date and the transfer of sovereignty over the part of Upper Silesia allotted to Poland, be regarded as forbidden by the Treaty of Versailles and more especially by Article 256 of that Treaty ?

[76] The clauses in question are as follows:

Armistice Convention of November 11th, 1918.
"19. Financial Clauses. -With the reservation that any future claims and demands of the Allies and United States shall remain [p26] unaffected, the following financial conditions are required:
"Reparation for damage done. "While the Armistice lasts, no public securities shall be removed by the enemy which can serve as a guarantee to the Allies for the recovery of reparation for war losses.
"Immediate restitution of cash deposits in the National Bank of Belgium, and in general, immediate return of all documents, specie, and securities of every kind (together with plant for the issue thereof) affecting public or private interests in the invaded countries.
"Restitution of the Russian and Roumanian gold removed by the Germans or handed over to them.
"This gold to be delivered in trust to the Allies until the signature of peace."

Protocol of Spa of December 1st, 1918.
"(1) While the Armistice lasts, the German Government undertakes not to take any steps capable of diminishing, in any form, the value of its public or private domain the com mon guarantee of the Allies for the recovery of the reparation to which they are entitled. The German Government under-takes, in particular, not to alienate, concede or mortgage the railways, canals, mines, woods, colonial, industrial or commercial enterprises belonging to it or in which it possesses interests.
"While the Armistice lasts and without prejudice to the arrangements to be adopted for the future, the German Government under-takes not to effect and not to allow to be effected any exportation of gold. In case it should find itself under an absolute necessity, for the normal needs of its economic life, to derogate from this stipulation, it would give prior notice thereof to the Allied Governments. The German Government also undertakes not to effect or allow to be effected, apart from the normal needs of its economic life, any transfer abroad, either directly or through an intermediary, of the portfolio of foreign bills of the Treasury and of the Reichsbank acting either in its own capacity or in its capacity as Foreign Exchange Central, as well as of foreign securities belonging to the German Government or the Reichsbank, or held by them on loan or pledge.
"Any measure taken contrary to the foregoing stipulations will be considered by the Allied Governments as null and void, and the German Government will bear all the consequences that may result therefrom." [p27]

Treaty of Versailles
Article 256 (paragraphs 1 and 2).
"Powers to which German territory is ceded shall acquire all property and possessions situated therein belonging to the German Empire or to the German States, and the value of such acquisitions shall be fixed by the Reparation Commission, and paid by the State acquiring the territory to the Reparation Commission for the credit of the German Government on account of the sums due for reparation.
"For the purposes of this article, the property and possessions of the German Empire and States shall be deemed to include all the property of the Crown, the Empire or the States, and the private property of the former German Emperor and other Royal personages."

[77] The Court has already been confronted with the problem of the scope of the Armistice Convention and of the Protocol of Spa in relation to the Polish law of July 14th, 1920, in connection with the question which formed the subject of Advisory Opinion No. 6. In that affair, however, the Court had only to consider certain less important aspects of the problem: in particular, it had not to decide the question whether Poland is entitled to rely on the two instruments in question. For the purposes of that affair, it sufficed to observe that the Armistice Convention did not possess the importance which Poland attempted to attribute to it; but the Court was careful to make an express reservation in regard to the point above mentioned.

[78] In the present case, the problem arises under different conditions. The Parties have argued at length in regard to this very question whether Poland is entitled to adduce the above-mentioned agreements, a question the importance of which is obvious, having regard more especially to the first clause of the Protocol of Spa, and which must be decided.

[79] In this connection it should, in the first place be noted that, in the Court's opinion, Poland is not a contracting Party either to the [p28] Armistice Convention or to the Protocol of Spa. At the time of the conclusion of those two Conventions, Poland was not recognized as a belligerent by Germany; it is, however, only on the basis of such recognition that an armistice could have been concluded between those two Powers.

[80] The Principal Allied Powers had, it is true, recognized the Polish armed forces as an autonomous, allied and co-belligerent (or belligerent) army. This army was placed under the supreme political authority of the Polish National Committee with headquarters in Paris. Without considering the question what was at this moment the political importance of this Committee, the Court observes that these facts-cannot be relied on as against Germany, which had no share in the transaction. On the other hand, Poland, as it was becoming constituted in the Russian territories occupied by the Central Powers, was undoubtedly not at war with Germany; it is precisely the absence of a state of war between Poland and Germany which explains the fact that Poland, which appears in the Treaty of Versailles as an Allied Power, is not entitled to benefit by Article 232 of the Treaty, which bestows on these Powers a right to reparation.

[81] This fact is confirmed, inter alia, by the agreement between the Allied Powers signed at Spa on July 16th, 1920, the provisions of which agreement regarding the apportionment of sums paid by Germany on account of reparations are declared to be inapplicable to Poland. The agreement provides that rights to reparation of prejudice sustained by Poland, in her capacity as an integral part of the former Russian Empire, remain reserved in accordance with Article 116 of the Treaty of Versailles. It must be noted that this reservation does not imply that Poland in fact possesses rights of such a nature under the article in question; the article only reserves the rights of Russia and does not mention States formed on part of former Russian territory.

[82] In the Court's opinion, there has been no subsequent tacit adherence or accession on the part of Poland to the Armistice Convention or Protocol of Spa. It has been argued that this was brought about as a result of the declarations of de jure recognition of Poland made by the Allied Powers and by Germany during the peace negotiations or in the Peace Treaty; but the instruments in question make no provision for a right on the part of other States to adhere to them. It is, however, just as impossible to presume the existence of such a right -at all events in the case of an instrument of the [p29] nature of the Armistice Convention -as to presume that the provisions of these instruments can ipso facto be extended to apply to third States. A treaty only creates law as between the States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States.

[83] In these circumstances, it is not necessary to consider the question whether Poland, assuming that she could be regarded as a Party to the agreements in question, could rely on them, in spite of the fact that she is not entitled to reparations under Article 232 of the Treaty of Versailles; nor -supposing that this possibility existed -the question whether she could assert her rights by her own individual action and without having recourse to the intervention of interallied organizations.

[84] 2. - Having thus shown that Poland cannot rely on the instruments relating to the Armistice in order to render inapplicable the provisions of the Geneva Convention, the Court must now examine from the same standpoint the Treaty of Versailles. The article of the Treaty to be considered in the first place in this connection is Article 256, which lays down the principle that Powers to which German territories are ceded acquire all property and possessions of the Reich and German States.

[85] A preliminary question arises: could the fact that the Treaty of Versailles, which came into effect as between Germany and Poland only on January 10th, 1920, has existed since June 28th, 1919, as a signed treaty, result in rendering illegal acts of alienation or other transactions referred to in Article 2 of the law of July 14th, 1920 ?

[86] Mention may here be made of Article 4 of the Geneva Convention, which, compared with the Peace Treaty, is a special Convention and subsequent to it. This article lays down that the date of transfer of sovereignty over the portion of Upper Silesia allotted to Poland is the decisive date for the purposes of the recognition of vested rights. It is true that this article makes a reservation in regard to Article 256 of the Treaty of Versailles; but that article contains no prohibition of alienation and does not give the State to whom territory is ceded any right to consider as null and void alienations effected by the ceding State before the transfer of sovereignty. Moreover, Article 92, paragraph 3, of the Treaty of Versailles confirms this construction with particular reference to Poland; [p30] for it speaks of property and possessions of the Empire or German States which pass to Poland with the territory transferred". Consequently, even if the reservation made in Article 4 of the Geneva Convention in regard to Article 256 of the Treaty of Versailles covered more than the transfer to Poland of the vested rights of the Reich and German States as they existed on the date of transfer, it could not in any case be construed as annulling or rendering liable to annulment any alienation of public property.

[87] The abandonment by Germany of her rights and titles under Article 88 of the Treaty of Versailles merely contemplates the possible renunciation of sovereignty over the territories in question and cannot involve the immobilization of all movable and immovable property belonging to the State during the period from the day of the coming into force of the Peace Treaty until the transfer of sovereignty over Upper Silesia.

[88] Germany undoubtedly retained until the actual transfer of sovereignty the right to dispose of her property, and only a misuse of this right could endow an act of alienation with the character of a breach of the Treaty; such misuse cannot be presumed, and it rests with the party who states that there has been such misuse to prove his statement.

[89] Nor would it be legitimate to construe the Treaty of Versailles in such a way as to incorporate therein certain clauses of the Armistice Convention and of the instruments following it, so as to carry back to November nth, 1918, the decisive date as from which rights acquired by individuals, under contracts concluded by them with the Reich and German States, should be regarded as void or liable to annulment. The special provisions of Article 75 which relate to Alsace-Lorraine, a territory restored to French sovereignty as from November 11th, 1918, and according to which the decisive date is that of the French Decree of November 30th, 1918, make it clear that a date previous to the latter could not have been contemplated by the Treaty in the case of territories which only change hands by cession. The decisive date therefore, for these territories, cannot be other than that of the transfer of sovereignty.

[90] Similarly, it is impossible, in the Court's opinion, to adduce Article 248 of the Treaty of Versailles in support of Poland's case. This article establishes a first charge on the property and resources of the German Empire and States, but it does not imply a prohibition of alienation. At all events, whatever the scope of this article [p31] may be, the rights reserved to the Allies under it are exercised through the Reparation Commission; the article cannot be construed as authorizing an individual Power on its own account to treat an alienation as null and void, even in the case of a Power entitled to reparations.

***

[91] As regards Article 5 of the Polish law of July 14th, 1920, Poland claims to have acquired, free from all charges, the property mentioned in Article 256 of the Treaty of Versailles.

[92] This question has already been considered by the Court in its Advisory Opinion No. 6. The Court has held that Article 256 of the Treaty of Versailles cannot be regarded as justifying Article 5, because, although the Treaty does not expressly and positively enunciate the principle that in the event of a change of sovereignty, private rights must be respected, this principle is clearly recognized by the Treaty. Nothing has been advanced in the course of the present proceedings calculated to alter the Court's opinion on this point.

[93] The Court, therefore, has arrived at the conclusion that no title of international law has been cited by Poland which enables Articles 2 and 5 of the law of July 14th, 1920, to be regarded as the exercise of a right overriding her obligations under Head III of the Geneva Convention.

B.

[94] The Respondent contends in the second place that, even if the Polish law of July 14th, 1920, were not justified by international titles which prevent the application of the Convention of Geneva, the suppression of private rights effected by it could not be regarded as a measure of liquidation within the meaning of Articles 6-22 of that Convention. For, he argues, the law is based on considerations foreign to the conception of liquidation: it applies to certain property, rights or interests without regard to the nationality of persons, whereas the régime of liquidation only applies to German private property as such.

[95] Relying on considerations of this nature, Poland, after requesting the Court to dismiss the Applicant's claim set out in submission [p32] No. 1, submits that there is no ground for a decision as to, the conformity or non-conformity with the provisions of the Geneva Convention of the attitude of the Polish Government in regard to the Oberschlesische and Bayerische Companies, seeing that no measures of liquidation have been taken by that Government.

[96] The German Government, on the other hand, has contended that liquidation within the meaning of the Treaty of Versailles and of the Geneva Convention includes any measure contrary to generally accepted international law which affects the property of German nationals, no matter whether such measure is authorized by a treaty provision (authorized liquidation) or whether it is not (unauthorized liquidation); liquidation, according to this argument, would embrace all cases in which a private right of a German national is not respected.

[97] Confronted with these conflicting arguments, the Court makes the following observation.

[98] In the German view, "authorized liquidation" includes any measure involving a derogation from generally accepted international law, in so far as such measure is expressly sanctioned by an international agreement. The Court has already observed that it has no need to stop to consider this theory, of which it notes merely the essential element, namely the fact that any such measure constitutes a derogation from generally accepted international law. A fortiori this is an element in the notion of "unauthorized liquidation".

[99] Now, the idea which clearly emerges from Head III of the Geneva Convention is, as has already been stated, that expropriation, in the cases and under the conditions mentioned therein, is the only measure not allowed by generally accepted international law which may be taken in regard to German private property in Polish Upper Silesia.

[100] On the other hand, as regards the Polish submission referred to above, the Court, though in no way denying that the liquidation regime established by the Treaty of Versailles and the actual measures of expropriation permitted by Head III of the Geneva Convention apply to German private property as such, cannot attach to the fact that Articles 2 and 5 of the law of July 14th, 1920, apply to a certain class of property, no matter what the nationality of the owners may be, the importance and effect which are attributed to that fact by Poland. Even if it were proved -a point which [p33] the Court does not think it necessary to consider -that, in actual fact, the law applies equally to Polish and German nationals, it would by no means follow that the abrogation of private rights effected by it in respect of German nationals would not be contrary to Head III of the Geneva Convention. Expropriation without indemnity is certainly contrary to Head III of the Convention; and a measure prohibited by the Convention cannot become lawful under this instrument by reason of the fact that the State applies it to its own nationals.

***

[101] In the last place, Poland has argued that abrogations of rights of the nature of those effected under the law of July 14th, 1920, would, in any case, come under Head II of the Convention, in regard to which Article 5 only provides for recourse by the interested Party to the Upper Silesian Tribunal.

[102] It is clear that any infraction of Head III of the Convention, which constitutes an exception to the general principle of respect for vested rights, is at the same time an infraction of Head II. The foregoing considerations have established that the measures in question are contrary to Articles 6-22; this conclusion cannot be weakened by the fact that these same measures are also contrary to Head II or to certain clauses of that Head. As Head III contains special regulations constituting a derogation from the régime established under Head II, it is necessary, in order to define the sphere of application of the clauses composing Head III, to begin by construing these latter clauses and not the more general rules contained in Head II.

[103] This conclusion cannot be affected by the clause in Article 5 which gives the interested Party the right to apply to the Upper Silesian Arbitral Tribunal for a decision on the question whether and to what extent compensation is due for the abrogation or diminution of vested rights, whilst paragraph 2 of Article 23 makes a reservation in regard to the jurisdiction acquired by the Germano-Polish Mixed Arbitral Tribunal under the provisions of the Treaty of Versailles. The two clauses only contemplate an action brought by the interested Party against the State, whereas the Court's jurisdiction is in respect of disputes between the German and Polish Governments. The Court is definitely given jurisdiction by [p34] Article 23, and there is nothing to prevent that jurisdiction from extending to cases in which the Upper Silesian Arbitral Tribunal and not the Germano-Polish Mixed Arbitral Tribunal would be competent to receive claims for indemnity on the part of the interested Party. The Court therefore does not find it necessary to enter into the question of the line of demarcation between the jurisdictions of these two Tribunals, seeing that this demarcation can neither restrict nor extend the Court's power, under Article 23, to take cognizance, as regards the two Governments concerned, of measures contrary to Head III of the Convention.

[104] The Court, therefore, is of opinion that the application in Upper Silesia of Articles 2 and 5 of the Polish law of July 14th, 1920, is not in conformity with Articles 6-22 of the Geneva Convention, in so far as the said articles affect the persons or companies referred to in Head III of the Convention.

3.

[105] Submission No. 2, which the Court will now proceed to examine, is divided into two parts, a and b, the latter of which is contingent upon the answer given to the first. The Court is in fact, in the event of its holding, in its judgment on submission 2 a, that the attitude of the Polish Government in regard to the Oberschlesische and Bayerische Companies had not been in conformity with Article 6 and the following articles of the Geneva Convention, asked to state what attitude on the part of that Government would have been in conformity with the provisions in question. In Judgment No. 6, the Court declared the application to be admissible as regards submission 2 b as well as submission 2 a. It recognized that the former submission was intended to obtain a decision and not -as contended by the Respondent -merely an advisory opinion. The Court therefore did not, at the outset, declare that it had no competence to deal with this submission, in spite of the fact that the Applicant had couched it in the form of a question. In proceeding thus, however, the Court supposed that the latter would, in his Case on the merits of the dispute, formulate properly set out claims in regard to 2 6 of his submissions. But, in the proceedings on the merits, the data anticipated by the Court have not been furnished, and the point in question has remained in its purely interrogative form. In these circumstances, the Court is not in a position to give [p35] judgment on this submission; for though it can construe the submissions of the Parties, it cannot substitute itself for them and formulate new submissions simply on the basis of arguments and facts advanced.

[106] The Court, therefore, when considering the second submission, will only have to deal with submission 2 a.

[107] In undertaking this, the first thing to be borne in mind is that the Chorzów factory was taken over by the Polish Government under the Polish law of July 14th, 1920. Now, if, as has already been demonstrated, the application of this law, in so far as it affects the property contemplated in Article 6 of the Geneva Convention, is contrary to Article 6 and the following articles of that instrument, the point which the Court has to decide, in order to be able to give judgment on submission 2 a, is whether the Oberschlesische and the Bayerische are really the owners of the rights which together constitute the Chorzów enterprise. For if this point is established, it automatically follows that these rights are protected by Article 6 of the Geneva Convention, the other conditions required by the article being fulfilled in the present case; subject, however, to the question as to the manner in which the principles laid down above in regard to international engagements resulting from the signature and the coming into force of the Treaty of Versailles apply in the present case.

A.

[108] As regards in the first place the Oberschlesische, it is common ground that the factory, which is situated in Polish Upper Silesia, is a large industrial undertaking, and it has not been contested that the Oberschlesische is a company controlled by German nationals.

[109] Before proceeding further, the Court considers it well to recall the following facts:

[110] Amongst the contracts or other legal instruments drawn up at Berlin on December 24th, 1919, with a view to the formation of the Oberschlesische and the sale by the Reich to that Company of the Chorzów factory, are included the following, amongst others:

(1) The deed founding a limited liability company called the Stickstoff-Treuhand-Gesellschaft (hereafter called the "Treuhand"), a Company formed for the purchase and sale of shares and other [p36] interests in companies for the manufacture of nitrates and also to act in the capacity of trustee in regard to the chemical industry.
(2) The deed founding the Oberschlesische, a Company formed forthe acquisition, construction and exploitation of nitrate works, more particularly in Upper Silesia, and of chemical works of all kinds.
(3) The contract concluded between the Reich, the Oberschlesische and the Treuhand, a contract according to which the whole of the factory for the production of nitrates, with accessory installations, situated at Chorzów, was ceded by the Reich to the Oberschlesische, the Treuhand taking over in the place of the Oberschlesische, as sole and independent debtor, all the obligations imposed by the contract upon the latter in regard to the Reich ; as guarantee for the debts due to the Reich under the contract, the Treuhand undertook to obtain for the Reich a lien on all the shares of the Oberschlesische. The Reich was authorized itself to exercise all the rights resulting from the possession of the shares, and in particular the right to vote at the general meeting of shareholders, but agreed that the management of the working of the Oberschlesische should be left in the hands of the Bayerische. An alienation of the shares so pledged would be authorized only with the approval of the Reich even after the lien had expired; even after that date the Reich would retain possession of the shares as a guarantee for the fulfilment of the obligation.

[111] On the basis of these facts, Germany maintains that Poland could only acquire the Chorzów factory, which was the validly acquired property of the Oberschlesische, under the conditions laid down in Article 7 of the Geneva Convention and that, in default of the application of this article, the attitude of Poland in regard to the Oberschlesische was not in conformity with Article 6 and the following articles of that Convention. For, according to the German argument, the factory is, under the second sentence of the article in question, immune from any measure of liquidation because it possesses the character of property, rights and interests of German nationals or of companies controlled by German nationals.

[112] Poland, on the other hand, denies that Article 6 and the following articles are applicable in this case, because no measure of liquidation has been taken by the Polish Government. In her contention, Poland, by applying the law of July 14th, 1920, has simply [p37] asserted the rights of ownership accruing to her under the Treaty of Versailles, and only in so far as these rights are secured to her by the Armistice of November nth, 1918 (clause 19), and by the Protocol of Spa of December 1st, 1918 (clause 1). She regards the transfer of the ownership of the factory from the Reich to the Oberschlesische as having taken place in violation of these international instruments, which, in her contention, determine the situation of the factory in regard to Poland and Germany; Article 6 and the following articles of the Geneva Convention cannot there-fore, she argues, be adduced by Germany against her in the present case.

[113] In addition to this main argument, based on international instruments such as the Armistice Convention, the Protocol of Spa and the Treaty of Versailles, Poland has, in the second place, disputed the validity in municipal law of the contracts by which the Oberschlesische was founded and has acquired the rights of the Reich in respect of the Chorzów factory.

[114] It appears, therefore, that Poland, in disputing the right of the Oberschlesische to the factory, relies principally on the contention that she herself possesses a better title, reposing on international agreements.

***

[115] The Court, in approaching this latter point, desires to observe that what it has had occasion to state above in regard to submission No. 1 applies equally to the particular case under consideration. Thus it has already been shown that the application of Articles 2 and 5 of the law of July 14th, 1920, to the Chorzów factory falls within the scope of Articles 6-22 of the Geneva Convention and that Poland cannot claim either under the Armistice or under the Protocol of Spa or under Article 256 of the Treaty of Versailles, rights which set aside the application of that Convention.

[116] It remains, however, to consider whether Poland can rely as against Germany on the contention that there has been a misuse of the right possessed by the latter to alienate property situated in the plebiscite area, before the transfer of sovereignty.

[117] In the Court's opinion, such misuse has not taken place in the present case. The act in question does not overstep the limits of the normal administration of public property and was not designed [p38] to procure for one of the interested Parties an illicit advantage and to deprive the other of an advantage to which he was entitled. The annulment of the contract concluded in 1915 between the Reich and the Bayerische and the substitution for it of the contract of December 24th, 1919, between the Reich, the Oberschlesische and the Treuhand appears in fact to have fulfilled a legitimate object of the administration, namely, the abandonment by the Reich of an entreprise showing a serious deficit, by means of a sale under conditions offering a reasonable guarantee that the capital invested would eventually be recovered. In this connection it should be observed that by the conditions of the contract regarding the sale of shares and in particular by reserving to itself 85-90% of the surplus obtained, the Reich guaranteed itself against the possible results of the depreciation of the mark. The Reich had, at all events, a contractual right to abandon the enterprise, in which case the Bayerische had, under its 1915 contract with the Reich, a right to acquire the factory. Moreover, it was the Bayerische which, in conjunction with another Company, the Deutsche Petroleum A.-G., had founded the Treuhand which owned all the shares of the Oberschlesische; and the purchase of the factory by the latter may therefore be regarded, in a sense, as the exercise, modified in accordance with circumstances, of the right of purchase possessed under the contract of March 5th, 1915, by the Bayerische which, by itself, had not the necessary funds at its disposal.

[118] In the same connection, the Court desires to observe that, contrary to that which has been maintained by Poland, there are not, in its opinion, sufficient grounds for regarding the business transacted by means of the instruments above mentioned as other than a genuine transaction.

[119] Again, the Court cannot regard the alienation as an act calculated to prejudice Poland's rights. At the time when the alienation took place (Auflassung and entry in the land register, January 28th-29th, 1920), the Treaty of Versailles was already in force. An opinion must therefore be formed regarding the good faith of the Government of the Reich in the light of the obligations arising out of this Treaty, and not on the basis of other international agreements-such as for instance the Geneva Convention - which did not exist at that date and the conclusion of which could not even be foreseen. Now, under the Treaty of Versailles, Germany could only foresee two possibilities, either that Poland would claim the [p39] factory as Reich property, or that she would claim the right to liquidate it as belonging to a company controlled by German nationals, such as the Oberschlesische. The advantage for Poland of the former alternative over the latter would have consisted in the possibility of directly acquiring the ownership under Article 256, at a price to be fixed by the Reparation Commission instead of obtaining it by application of the liquidation procedure referred to in Article 297. This difference, however, cannot suffice to justify the view that the alienation was contrary to the obligations arising under the Treaty of Versailles and that it was even null and void or contrary to the principles of good faith.

[120] Moreover, if the Reich had denounced the contract of 1915, as it was certainly entitled to do, and if no transaction, similar in result to that effected by means of the contracts of 1919, had taken place, Poland would most likely have been placed in a much less favourable position than that created by those contracts; for the Bayerische would have found itself unable to continue to operate the factory, in which case Poland would have found a factory closed down.

[121] The Court therefore declares that Poland's contention to the effect that the transaction of December 24th, 1919, was an act in fraudem creditorum, is unfounded.

[122] In the last place, Poland has contended that the transaction by which the transfer of the Chorz6w factory from the Reich to the Oberschlesische was effected, took place at a date when the Treaty of Versailles was signed though not yet in force, and has argued from this that as, in her opinion, the Treaty of Versailles did not permit Germany to alienate property, the action of the German Government in selling property situated in the territory included in the cession and placing the value of this property outside this territory was contrary to international law, which is essentially based on the good faith of the contracting Parties.

[123] As regards this argument, the Court may confine itself to observing that, as, after its ratification, the Treaty did not, in the Court's opinion, impose on Germany such obligation to refrain from alienation, it is, a fortiori, impossible to regard as an infraction of the principle of good faith Germany's action in alienating the property before the coming into force of the Treaty which had already been signed. [p40]

[124] In these circumstances, the Court need not consider the question whether, and if so how far, the signatories of a treaty are under an obligation to abstain from any action likely to interfere with its execution when ratification has taken place.

[125] The Court therefore arrives at the conclusion that there is no instrument of international law which can be adduced to prevent the application of the Geneva Convention to the rights of the Oberschlesische in respect of the Chorzów factory. Since it discards the arguments of the Respondent in regard to this point, the Court need not consider whether the alleged violation by Germany of an international engagement contracted by her would have justified Poland in treating the alienation as null and void; or whether, on that account only, reparation would be due by Germany for breach of an international engagement.

***

[126] If, for the reasons set out above, the alienation of the Chorzów factory under the contract of December 24th, 1919, does not constitute a breach of an engagement entered into by Germany in relation to Poland, the question of the applicability of the Geneva Convention to the Oberschlesische must be considered from still another standpoint. Does not the situation created by the contract of December 24th, 1919, though valid in municipal law and compatible with Germany's international obligations, evade the application of Articles 6-22 of the Geneva Convention ?

[127] This contract, more particularly in Article 6 and 9, secures to the Reich in its capacity as pledgee of all the shares of the Oberschlesische, rights, such as the right to vote at the general meeting of shareholders, which belong to the owner of the shares. The Applicant has stated amongst other things -and his statement has not been disputed -that the Reich, as it only holds the shares as security for the amount owing to it, has never exercised its right to vote, and that it has, in spite of this right, a fundamentally restricted influence over the Company owing to the fact that, under the same contract, it agreed, in relation to the Oberschlesische, that the management of the enterprise should be entrusted to the Bayerische. [p41]

[128] Nevertheless, even granting that the position of the Reich, as pledgee, were equivalent in fact and from an economic standpoint to that of owner of the shares, the application to the Oberschlesische of Article 256 of the Treaty of Versailles would not be justified. This article contemplates property of the Reich and German States, not private concerns in which the Reich or German States have a preponderant interest. The article in question, which relates to the transfer of public property as a result of cessions of territory, must, in accordance with the principles governing State succession -principles maintained in the Treaty of Versailles and based on considerations of stability of legal rights -be construed in the light of the law in force at the time when the transfer of sovereignty took place. Now at that time, the ownership of the Chorzów factory undoubtedly belonged to the Oberschlesische and not to the Reich.

[129] In a similar connection, the further question might be examined whether the Oberschlesische, having regard to the rights conferred by the contract of December 24th, 1919, on the Reich in respect of that Company, should be regarded as controlled by the Reich and, should this be the case, what consequences would ensue as regards the application of the Geneva Convention.

[130] It is, however, not necessary for the Court to go into this question. The Respondent, who adopts the standpoint that no measure of liquidation has been taken by the Polish Government in respect of the Chorzów factory, has not raised it, even as a subsidiary point, and it would seem that he does not dispute -apart from the argument regarding the fictitious character of the agreements of December 24th, 1919 -the fact that the Oberschlesische is a company controlled by German nationals. [p42]

***

[131] With regard to the argument of the Respondent to the effect that the contract of December 24th, 1919, and the transfer of ownership on the following January 28-29th, by means of Auflassung and entry in the land register, are fictitious or fraudulent, it should in the first place be observed that the Court cannot consider this argument, in so far as it may be assumed that the intention of the Respondent is to support it, by considerations of German municipal law, as an independent one ; for the Polish law, the application of which in regard to the Chorzow factory has led to the present dispute between the two Powers, is based neither directly nor indirectly on the validity or invalidity, from the standpoint of German municipal law, of the transfer of the properties covered by it; it is based exclusively on the date of the transfer in relation to November nth, 1918. In the next place, it must be observed that the Court, in the exercise of the jurisdiction granted by Article 23 of the Geneva Convention, will not examine, save as an incidental or preliminary point, the possible existence of rights under German municipal law.

[132] The Court has already observed that from the point of view of international law, the transaction under consideration must, in its opinion, be regarded as effective and as entered into in good faith. The Court has found in the arguments advanced by Poland in support of the above-mentioned contention no reasoning calculated to modify, from the standpoint of municipal law, the conclusion at which it has thus arrived on the basis of international law. In the present case, in fact, the Court holds that the Oberschlesische's right of ownership of the Chorzów factory must be regarded as established, its name having been duly entered as owner in the land register. If Poland wishes to dispute the Validity of this entry, it can, in any case, only be annulled in pursuance of a decision given by the competent tribunal; this follows from the principle of respect for vested rights, a principle which, as the Court has already had occasion to observe, forms part of generally accepted international law, which, as regards this point, amongst others, constitutes the basis of the Geneva Convention.

[133] This is true, though, as is pointed out by Poland, the contracts of December 24th, 1919, had been concluded at a time when, not having been entered in the commercial register, the Oberschlesische possessed as yet no legal personality. The Court, in fact, notes that the contracts in question were concluded after the creation of the Oberschlesische and by its [p43] regularly appointed Directors; it further notes that the transfer of the Chorzów factory was effected by means of the Auflassung, a transaction of the nature of a contract, and of the entry in the land register, which formality took place only after the entry of the Oberschlesische in the commercial register. Moreover, by acts, extending over a period of more than two years, all the Parties concerned have clearly shown that they still recognized the validity of the contracts in question.

B.

[134] One last point remains to be considered, namely, the rights of the Bayerische, a Company whose character as a company controlled by German nationals has not been disputed.

[135] In virtue of the contract concluded with the Reich on March 5th, 1915, the Bayerische had managed the exploitation of the factory of Chorzów on behalf of the Reich. For this purpose it was to make use of all its experiments, patents, licences, etc., and of its supply contracts. In consideration of the use of its patents, licences, experiments, etc., and for the management and organization of the sale of the products, the Bayerische was entitled to a payment per kilogram of nitrate manufactured and to a share of the profits. Following the contract concluded on December 24th, 1919, between the Reich, the Oberschlesische and the Treuband, the Oberschlesische and the Bayerische arranged by an exchange of letters dated December 24th and 28th, 1919, that the Bayerische should continue until March 31st, 1941, to manage the exploitation of the Chorzów factory, on behalf of the Oberschlesische, by analogous application of the contract for the exploitation of the factory concluded between the Bayerische and the Reich and expiring on December 31st, 1919. Some time later, on November 25th, 1920, a new contract was concluded between the Bayerische and the Treuhand Company, which owned all the shares of the Oberschlesische with the consent of the latter Company. This contract governs the relations between the three Companies and in particular modifies the arrangement made by the exchange of letters above mentioned, in the sense that the management of the exploitation was to be undertaken by the Management Committee of the Oberschlesische, which would be composed of not less than two nor more than four members of the Management Committee of [p44] the Bayerische, appointed by the latter and approved by the Treuhand.

[136] If, as the Court holds, the Oberschlesische is to be regarded as lawful owner of the Chorzow factory, the contracts concluded by it in regard to that factory must likewise be regarded as valid. The question is whether, by taking possession of the Chorzów factory on July 3rd, 1922, and, by operating it, making use of the experiments, patents and licences, etc. of the Bayerische, Poland has unlawfully expropriated the contractual rights of that Company. In regard to this point, the Court does not think that any importance attaches to the fact that, according to the contract of November 25th, 1920, the management of the exploitation was undertaken by the Management Committee of the Oberschlesische. In actual fact, it was the members of the Management Committee of the Bayerische, appointed for this purpose, who had the management of the exploitation. Moreover it is clear that the rights of the Bayerische to the exploitation of the factory and to the remuneration fixed by the contract for the management of the exploitation and for the use of its patents, licences, experiments, etc., have been directly prejudiced by the taking over of the factory by Poland. As these rights related to the Chorzów factory and were, so to speak, concentrated in that factory, the prohibition contained in the last sentence of Article 6 of the Geneva Convention applies in respect of them. Poland should have respected the rights held by the Bayerische under its contracts with the Oberschlesische and the Treuhand; and the attitude of Poland in regard to the Bayerische has therefore, like its attitude in regard to the Oberschlesische, been contrary to Article 6 and the following articles of the Geneva Convention.

[137] A study of the relations between the Reich and the various companies interested in the Chorzow factory, and between these companies inter se, shows that the industrial undertaking in question must be regarded as composed of two different elements, one of which -essential in character -namely, the technical and commercial element, is represented and always has been represented by the Bayerische. The length of the period for which the contract with that Company was signed proves that the intention was to establish the conditions necessary to enable it to bring into the concern the patents, licences, etc. belonging to it, in spite of the fact that the factory was not its property. The role of, first the [p45] Reich, and later the Oberschlesische, was rather to finance the operation of these patents and licences in the factory by the Bayerische. The factory has always constituted an economic entity under the management of the Bayerische.

II.

SO-CALLED CASE OF THE LARGE RURAL ESTATES.

I.

General Observations.

[138] Since the applicant Party, in the course of the proceedings, has amended the terms of submission No. 3 of the Application, and consequently also of the second Application, and made this amended submission a subsidiary one, the Court has, before proceeding further, to consider on which submission it should decide in the first place.

[139] In the Court's opinion it appears from the documents of procedure that the new submission, which is described as subsidiary, constitutes, in the German Government's view, merely a modification of language which does not affect the substance of the submission contained in the Application ; this being so, it is designed to replace the original wording and so to become the principal submission. Only if the Court were to hold that the new submission was inadmissible, or modified the substance of the submission contained in the Application, would the latter submission, never having been withdrawn, once more enter into consideration.

[140] The question of admissibility does not arise, as it has been disposed of by agreement between the Parties; it therefore only remains to ascertain whether the so-called subsidiary submission is substantially equivalent to the submission in the Application.

[141] This latter question is closely bound up with the question whether the notices contemplated in Article 15 of the Geneva Convention are only subject to the formal conditions resulting from that article, or whether they may also only be served in respect of estates liable to expropriation under Article 6 and the following articles; for in the latter case the notification of an intention to expropriate would only be in conformity with the Convention if the expropriation itself were so. [p46]

[142] The Parties do not seem to dispute the fact that it is the second of these alternatives which has been adopted by the Court in Judgment No. 6. When agreeing that the argument should be confined to the German subsidiary submission, after having admitted that the Court had ruled that the notices possessed a definitive character, the Agent for the Respondent also declared that he agreed to ask the Court not only to decide whether the notices were regular in form, but also and above all whether they have been served in respect of estates liable to expropriation under Article 6 and the following articles of the Geneva Convention.

[143] Indeed, only a judgment of this kind will now satisfy the interests of either Party : if the Court were now to decide that the notices were regular in form, but were at the same time to leave the question undecided whether the actual expropriation of the properties in respect of which notice was given would not be contrary to the Convention, the two Governments and the owners concerned would find themselves, seventeen months after January 1st, 1925, in the same situation as when the disputes arose.

[144] In the opinion of the Court, as stated in Judgment No. 6, the giving of notice cannot be regarded as in conformity with the Convention except in respect of estates in regard to which the conditions requisite for expropriation exist. The notice contemplated in Article 15 is in fact the first step in the procedure of expropriation, which constitutes a whole governed by the same principles. The serious restrictions upon rights of ownership which result from the giving of notice can clearly only be imposed on estates liable to expropriation and pending the final decree ordering expropriation. The long delay -of more than two years and a half -between the transfer of sovereignty and January 1st, 1925, would undoubtedly have enabled the Polish authorities to obtain information concerning the estates liable to expropriation before taking a decision in regard to them. There was nothing to prevent the Polish Government from approaching, if necessary for this purpose, the owners concerned in order to obtain their opinion with a view to deciding whether the conditions requisite for expropriation existed; and the Polish Government appears, indeed, to have availed itself of this possibility in certain cases. But this step should precede and prepare the way for, and not follow, the giving of notice, which sets in motion the procedure of expropriation. [p47]

[145] For the foregoing reasons, the Court will, for the purposes of its judgment, base itself on the so-called subsidiary submission.

***

[146] Although, in the Case, the notices given had already been criticized on the ground that they did not indicate sufficiently clearly the area to be expropriated, it is only in the Reply, and following upon certain explanations and remarks contained in the Counter-Case, that the Applicant felt in a position to state that a fresh difference of opinion relating to the interpretation and application of Article 15 of the Geneva Convention had arisen and requested the Court also to give judgment on this matter. This is the question which has been referred to as the question of the individualization of the estates to be expropriated.

[147] The Polish Government at first contended that the new German Request was not admissible on the ground that Article 23, paragraph 1, of the Convention, in submitting to the Court's jurisdiction differences of opinion respecting the construction and application of Articles 6 to 22, did not cover differences of opinion as to the meaning of terms used by the Polish authorities.

[148] Even on the assumption that this objection had not been abandoned, the Court could not admit it, because the difference of opinion in question relates to whether the Polish authorities have rightly or wrongly interpreted Article 15 of the Convention, and it is scarcely to be doubted that such a difference of opinion is amongst those contemplated by Article 23, paragraph 1.

[149] Although the Geneva Convention does no expressly deal with this point, it follows from the very nature of the notice contemplated in Article 15 that it must embody the indications necessary for the identification of the large estate which the Polish Government intends to expropriate. In regard to this point, there is no disagreement between the two Governments.

[150] On the other hand, it is also certain that Article 15 does not lay down any hard and fast form for the identification of estates ; this may therefore be done in any manner which attains the required result. Nullity is not expressly provided for in Article 15, and it cannot be presumed. There can therefore be no question of nullity unless there is a real uncertainty as to whether some particular [p48] estate is covered by a notice or not, and then only in so far as this uncertainty is ascertained to exist.

[151] It follows from these same principles that a notice which includes both land not liable to expropriation and land liable to expropriation, though ineffective as regards the former, remains effective as regards the latter.

***

[152] The rural estates covered by the notices referred to in the German Government's submission No. 3 are, in some cases, estates the exclusively agricultural character and use of which have not been disputed, and, in others, estates which, in the contention of the Applicant, are principally devoted to serving the needs of industrial enterprises. As regards this latter category, Article 9, § 3, paragraph 2, of the Convention is the applicable provision in every case; the Court therefore considers it expedient first of all to approach the interpretation of it from a general standpoint and thus to establish the principles in the light of which it will subsequently decide whether each of the estates in question does or does not fall within the scope of this clause.

[153] Article 9, § 3, paragraph 2, of the Convention runs as follows:

"Rural estates which are devoted principally to serving the needs of large industrial undertakings (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."

[154] It should at once be stated that this clause forms part of Chapter I of the Third Section of the Convention, a Chapter which deals with large scale industry, whilst large rural estates form the subject of the second Chapter. It would not therefore be correct, in order to be able to construe the clause in question limitatively, to regard it as an exception to the principle of the liability to expropriation of the large rural estates. Though it may be said that, in a sense, Article 9, § 3, paragraph 2, limits the general principle contained in Article 12, paragraph 1, it is nevertheless true that its place in the system established by the Convention is entirely different from that occupied by Article 12. Article 9, § 3, paragraph 2, being included in the system of rules relating to large scale industry, [p49] must be construed having regard, above all, to the relation in which it stands to those rules.

[155] Its object is undoubtedly to maintain industrial enterprises in their entirety and to their full capacity. It is clearly in consideration of this relation between an enterprise and rural property that the Convention, on the one hand, in Article 13, paragraph 2, sets aside the application of the provisions regarding expropriation of rural estates, in so far as concerns agricultural land which, in accordance with the terms of Article 9, § 3, paragraph 2, is to be regarded as forming part of such an enterprise. For the same reason, on the other hand, the Convention allows such land to be expropriated together with the enterprise, either under the special conditions contemplated in Article 7, or, in accordance with Article 8, after fifteen years from the transfer of sovereignty.

[156] The rural estates in question are those devoted principally to serving the needs of large industrial undertakings. The essential factor therefore is the purpose to which they are devoted, i.e. a situation of fact established by the will of man. No doubt the subserviency of the estate to the enterprise must be genuine and reasonable; but it is in no wise essential that this subserviency should be in the nature of a necessity. Rather should the standpoint be adopted that no one is better acquainted with the needs of an enterprise than its owner himself and that, consequently, it will as a rule suffice to ascertain that the subserviency exists.

[157] The purpose above referred to must be the principal purpose served by the estate. There is no need for it to be the only purpose served; if an estate is devoted principally to providing milk or meat for the workers, this subserviency is not disturbed by the fact that more than is required is produced and this surplus is sold to the general public.

[158] The principal purpose to which an estate is devoted, which purpose, in the Court's opinion, may also result from an accumulation of different uses, must be to serve the needs of an enterprise. It is chiefly with regard to the determination of these needs that the Parties disagree, the Polish Government contending that the needs must be genuine, actually existing at the present time, enduring and essential to the enterprise, whilst the German Government maintains that any genuine needs of an enterprise may be taken into account, even future or temporary needs, and needs not strictly essential to the enterprise as such. [p50]

[159] Of course, fictitious or imaginary needs are not needs within the meaning of the Convention. But provided that the needs in question are genuine needs of the enterprise, it would be contrary to the letter and spirit of the clause to impose other conditions or limitations. It is certainly therefore inadmissible only to take into account needs on which the very existence of the enterprise is dependent ; but it is also inadmissible to exclude temporary needs, if this temporary character is not incompatible with the notion of the subserviency of a rural estate, which could hardly be absolutely momentary; lastly, future needs cannot be ignored, since it is not only legitimate but necessary for every industrial undertaking to provide in good time for future requirements. Consideration of future requirements is so closely bound up with the life of enterprises that the Court can attach no importance to the argument to the contrary which the Respondent has endeavoured to draw from the words "shall be considered ... as forming part of the undertakings the needs of which they may serve". In the Court's opinion, this is merely an abbreviated form of expression which is in no way intended to limit the natural meaning of the language used in the first part of the clause and which determines its true scope.

[160] As regards the nature of the needs referred to in Article 9, § 3, paragraph 2, the examples added between brackets -"dairy farming estates, timber raising estates, etc." -show that they may differ widely and also that the economic and social needs of the workers are to be taken into account, as well as the technical requirements of the enterprise as such. Moreover, these are only examples, probably selected by reason of their especial importance under the industrial and social conditions prevalent in Upper Silesia, to facilitate comprehension of the principle laid down. Yet other uses of estates designed to ameliorate the living conditions of workers and employees of an enterprise are also covered by the clause: for instance estates may be utilized for the production of meat or other foodstuffs, for the construction of workers' houses or as allotments.

[161] On the other hand, it would hardly be justifiable to argue from the fact that the examples added within brackets in the text of the Convention only cover farming and timber-raising, that the mere possession of the surface, without devoting it to agriculture, cannot [p51] enter into account. The decisive words in this connection are: "rural estates which are principally devoted, etc." Uncultivated or uncultivable lands are certainly rural estates just as much as cultivable lands ; if in actual fact they are devoted to the required purpose, they also fall within the scope of Article 9, § 3, paragraph 2.

[162] The Court in the last place feels called upon expressly to state that it is obvious that an opinion can only be formed concerning the needs referred to in this clause in relation to the conditions peculiar to Upper Silesia.

***

[163] It is in the light of the foregoing considerations that the factors of the so-called question of subsidence must be determined from a general standpoint. The prejudice sustained under this heading, which is directly or indirectly caused by the possibility of the collapse or subsidence of the surface, may result either from the necessity of not completely exploiting seams in order to avoid damaging the surface, or from the obligation to indemnify its owner; such prejudice has greater or less economic effects according to the, nature of the soil and the manner in which it is used. The Court will, in connection with certain particular cases, consider more in detail the character of such prejudice and its consequences, it being understood that for subsequent cases the Court may refer to explanations given in regard to previous cases.

[164] The German Government has pointed out that mine-owners in Upper Silesia have adopted the system of securing for themselves possession of the surface in order to protect themselves from the economic consequences of subsidence which appear to be particularly serious and frequent in this mining area owing to the geological conditions peculiar to it. This Government regards that circumstance as constituting a devotion of the surface to the needs of the mining industry.

[165] The Polish Government has not denied that it has generally been by means of the acquisition of lands that the economic consequences of subsidence or the possibility of prejudice resulting therefrom have been avoided in Upper Silesia. It argues however that ownership of the surface is not now absolutely necessary for this purpose, because modern technical knowledge has introduced processes which enable any damage to the surface to be avoided. [p52]

[166] In the Court's opinion, the Polish Government's contention does not affect the fact that possession of the surface may fulfil a need of the mining industry; it merely establishes that possession is not in every case the only means of satisfying this need. This amounts to saying that possession of the surface with a view to protecting the undertaking against the economic consequences of subsidence is not in the nature of a necessity. But, even if this were correct -a point which the Court need not decide -Article 9, § 3, paragraph 2, does not, as has already been stated, require that the subserviency of a rural estate to the needs of an undertaking should be in the nature of a necessity. If the method consisting in securing ownership of the surface is in fact employed and if the state of subserviency exists, Article 9, § 3, paragraph 2, is applicable; the choice between several possible methods of satisfying the same need must be left to the owner of the enterprise himself.

[167] It appears from the explanations given by the expert witnesses heard by the Court in accordance with the Order made on March 22nd, 1926, that the employment of the methods to which the Polish Government alludes cannot wholly prevent the subsidence of the surface, but can only diminish its consequences. The method which consists in introducing a mixture of sand and water into the cavities resulting from coal extraction is moreover very costly and requires extensive installations. Generally speaking, therefore, it can only be employed in circumstances in which it is especially important to diminish and retard subsidence or to work seams the thickness of which only allows them to be worked in slices.

[168] Again, it appears from explanations furnished on the same occasion that it is of the greatest importance to mining enterprises to have the surface at their disposal in order, amongst other things, to avoid its being used in a manner which would aggravate the economic consequences of collapse or subsidence. Account must also be taken of the danger that the owner of the surface may speculate on the compensation to be obtained from the enterprise by using the land in a manner calculated to justify very heavy claims.

[169] Furthermore, it should be observed that damage resulting from subsidence does not exclusively occur on portions of the surface situated immediately above coal seams which have been or are being worked, but also extends to the surroundings where the surface [p53] suffers disturbances which involve an obligation to indemnify the owners.

2.

THE INDIVIDUAL CAUSES OF ACTION.

(a) Count Nikolaus Ballestrem.

[170] As regards the estates of Count Nikolaus Ballestrem, whose capacity as a German national has not been disputed, the official notice published in the Monitor Polski of December 31st, 1924, indicates that the notice applies to the "Ruda and Neu-Ruda estates, situated in the .district of Swietochlowice, of an area of 320 hectares". This area does not represent the whole extent of these estates but. only the parts farmed by the owner himself, plus 15 hectares of uncultivable land.

[171] It appears from maps and other evidence produced that all the lands covered by the notice are situated over mines owned by Count Ballestrem or mines of which he is co-proprietor.

[172] The Applicant has made two objections to the expropriation of Ruda and Neu-Ruda. In the first place, a principal objection, based on the fact that the estates in question completely cover mines belonging to Count Ballestrem or to associations (joint owners, in this case Gewerkschaften) to which he belongs ; and, in the second place, a subsidiary objection based on the circumstance that the estate is farmed as a dairy farm for the benefit of the workers. The Applicant has deduced from the topographical coincidence of the surface and the mining concessions that the former is, owing to subsidence, essential to the working of the mines underneath and that the principle laid down in Article 9, § 3, of the Convention should be applied. This contention has been supported by the following consideration : the economic consequences of such damage, which are now averted because the ownership of the surface belongs to Count Ballestrem, would come into play and be most harmful to the interests of the enterprise if this surface were taken from him by expropriation and fell into the hands of a third party. [p54]

[173] Throughout the written and oral proceedings, the Respondent has only opposed the main objection by arguing that there is no longer any occasion for damage by subsidence to occur. In regard to this question, the Court refers to the argumentation set out above. But the Court has to consider the question from the two following standpoints:

(1) Are the lands in question, covering mines belonging to Count Ballestrem's patrimony, principally devoted to serving the needs of the enterprise in view of the possibility of subsidence?
(2) Can the fact that Count Ballestrem, owner of the surface, is not sole owner of all the mines covered by the lands in question, deprive the objection raised of its force ?

[174] From the complementary information furnished by the Parties in pursuance of the Order of March 22nd, 1926, the Court has been able to deduce, with special regard to the present case, that, in the estates of Ruda and Neu-Ruda, a need to possess the surface above mining concessions exists owing to: (1) the geological identity of the land on which the Ballestrem estates are situated with the remainder of the Upper Silesian mining district, a fact which renders applicable to it the reasons already set out in general terms; (2) the existence in the Ruda and Neu-Ruda mines of coal seams of great size, and of seams at a short distance below the surface, seams the working of which always has an effect upon the surface; (3) subsidences which have already actually occurred in the woodlands of Ruda ; (4) the exact coincidence of the estates belonging to Count Ballestrem and the mining concessions, which coincidence is confirmed by the maps submitted to the Court, and which the Respondent has not disputed ; (5) the fact that the lands affected by the notice do not form an estate (or portion of an estate) characterized by geographical continuity and situated in one part only of the property, but consist of parcels separated from each other and distributed over the whole extent of the property, a circumstance which would be calculated to hamper communication between the other parts of the property and would therefore render exploitation difficult.

[175] The evidence of the expert witnesses has also proved, in regard to the present question, that a portion of the area covered by the notice had been bought by the mining undertaking precisely in view of subsidence, a thing which would never have occurred in a wellmanaged [p55] concern, unless it were confronted with a real probability of actual prejudice by subsidence.

[176] The second standpoint from which the Court must consider the question relates to the fact that Count Ballestrem is only co-proprietor of some of the mines below the surface of his estate. Does this circumstance render paragraph 2 of § 3 of Article 9 inapplicable ?

[177] The three mines in question are those belonging to mining companies of the type known as Gewerkschaften alten Rechts, which do not possess a legal personality. Count Ballestrem owns, in two of these mines, the majority of the shares, in the third one half of them. He has the principal interest and the controlling influence in them. The great majority of the mining shares belonging to him are included in his entailed property, which also embraces the estates in question.

[178] In these circumstances, it is clear that a third Party who has nothing to do with the concern and Count Ballestrem as a co-proprietor of it, cannot be regarded as on the same footing. The former will never have any interest in husbanding the profits of the concern, but will rather seek to turn to his own profit, even to the detriment of the mine, the fact of his ownership of the surface. The latter, on the contrary, would always have in view the fact that any injury or any new expense inflicted on the mine must necessarily affect his own interests as co-proprietor. In the present case, it is Count Ballestrem who will be the first and greatest sufferer from any injury done to the concerns.

[179] As regards a part of these enterprises, Count Ballestrem has linked them -an indisputed fact -with mines belonging solely to him, by means of a contract for their exploitation concluded in order to ensure the satisfactory working of the mines belonging to these concerns, which mines are not easily accessible except by way of the Brandenburg mine which belongs to the Count. But, according to one of the clauses of this contract, the Count is responsible for damage by subsidence, that is to say, is alone, from the point of view of the present question, in the position of owner.

[180] The Court is of opinion that the fact that Count Ballestrem is only co-proprietor of certain of the mines covered by his estate does not render paragraph 2 of § 3 of Article 9 of the Convention inapplicable to the lands in respect of which notice has been given, and that, by reason of subsidence, these lands are principally devoted to [p56]serving the needs of the Count's enterprises. It considers, therefore that the objection taken by the Applicant to expropriation is well-founded.

[181] In these circumstances, there is no need for the Court to consider in detail the subsidiary objection taken by the Applicant, which relates to the character of the farming conducted at Ruda and Neu-Ruda as dairy farming within the meaning of the Geneva Convention. The Court will confine itself to stating that it regards this character as sufficiently established by the evidence submitted on this point. Furthermore, it has formed the opinion, on the basis of the allegations of the Applicant which have not been successfully refuted by the Respondent, that this dairy farming is principally devoted to serving the needs of the working and other population connected with the industrial concerns of Count Ballestrem.

(b) The Giesche Company.

[182] The registered office of the Giesche Company (Giesche Spolka akcyjna) is at Katowice. It was founded in 1897 by the Bergwerks-gesellschaft Georg von Giesche's Erben of Breslau. To this new Company were transferred in March 1922 all mines of the Georg von Giesche's Erben Company situated in the territories allotted to. Poland, and at the same time the old name of the Company "Georg von Giesche's Erben", which appears in the notice and in submission No. 3 of the Application, was changed to "Giesche" Company, a fact which is mentioned in the Case of the Applicant and has not been disputed. It appears from the documents of procedure that a general manager of German nationality presides over the managing committee of the latter Company; that five of the seven members of the "board of control" of the Company are also German nationals; that all the shares of the Company belong to the "Bergwerksgesellschaft Georg von Giesche's Erben" which has its registered offices at Breslau and the German control of which has not been disputed. The Giesche Company at Katowice must therefore, in the Court's opinion, be regarded as a "company controlled by German nationals" within the meaning of the Geneva Convention. Moreover, there is no difference of opinion between the Parties on this point.

[183] The following lands belonging to the Giesche Company have been [p57] designated in the official announcement regarding expropriation published in the Monitor Polski of December 30th, 1924:

"The portions which have not been reafforested and which are not utilized for industrial purposes of the landed property situated in the district of Pszczyna, in the communes of Mokry, Laziska Gorne and Jedlina, in the district of Rybnik, in the communes of Baranowice and Kleszczow, in the district of Swietochlowice, in the communes of Nowy Bytom, Brzozowice, Kamien, Wielka Dabrowka, Brzeziny and Wielkie Hajduki, in the district of Katowice, in the communes of Antoniow, Bogucice, Brynow, Dabrowka Mała, Giszowiec, Janow, Myslowice, Rozdzien, Szopienice and Zaleze and in the city of Katowice."

[184] The Parties have made divergent statements in regard to the area of the lands covered by the notice. The official announcement published in the Monitor Polski mentions a total area of 3150 hectares, a figure which, according to the Polish Government, refers to the area of the whole of the property of the Company (including property not affected by the notice). The German Government has stated that the wording of the notice served on the Company and also the Polish and German texts published in the official Polish gazette, could only be taken to mean that the figure indicated referred merely to the property which it was intended to liquidate, but that this figure corresponded neither to the extent of the rural estates of the Company, which did not exceed 1730 hectares, nor to the total area of the property which amounted to 4218 hectares.

[185] The divergence in regard to the total area shows that there is in this case an irregularity in the notice. Apart from the question whether the lands covered by the notice are or are not liable to expropriation -a question which will be examined subsequently -the Court considers that the figure given in the notice seems to be erroneous and, at all events, renders uncertain the identification of the portions subjected to expropriation.

[186] It should be added that, by a letter dated March 10th, 1926, the Agent of the German Government has communicated to the Court three maps of the rural estates of the Giesche Company, in regard to which the Polish Government has submitted no observations.

[187] The Parties have made statements in regard to each of the [p58] Company's estates individually, namely, the estates situated at Katowice, the estates of Mała Dabrowka, Zaleze (including Dome Hajduki), Jedlin, Mokre, Baranowice and Gieszowiec (Gieschewald). The Court therefore will consider separately the case of each of these estates.

(1) Properties at Katowice.

[188] It has been stated above that the Agent of the Applicant Government, in reply to a question which the Court had decided to put to him, requested the Court to give judgment in regard to the properties of the Giesche Company at Katowice, in conformity with the submission of his Government and the declaration of the representative of the respondent Government.

[189] The Court records that the withdrawal of the notice is henceforth an established fact and that the properties above mentioned are therefore once and for all immune from any possible expropriation under the terms of Article 15 of the Geneva Convention.

(2) The Zaleze estate (including Dolne Hajduki).

[190] According to the applicant Party, the total of this estate is 482 hectares, of which 135 hectares is forest land and 347 hectares agricultural land ; the Respondent has not mentioned any figures during the proceedings and none is given in the official announcement constituting the actual notice. This document in fact confines itself to indicating the portions of the estate which it is intended to expropriate by a vague expression-which refers moreover to the whole of the estates of the Giesche Company - to the effect that the lands in question are "those which have not been reafforested and are not used for industrial purposes". It does not define the extent of the Zaleze estate any more than that of the other estates covered by the notice.

[191] The Applicant has raised a principal objection to the expropriation of the lands in question and also a subsidiary objection.

[192] The principal objection is based on the contention that the whole of the estate is situated above the Company's mines. The justice of this contention is established without possible doubt by the maps above mentioned. Moreover, the Respondent has not disputed this contention; he has confined himself to maintaining that the fact alleged is not relevant because modern methods of mining [p59] enable damage to the surface to be avoided. This argument has, however, already been rejected by the Court. The contention therefore on which the first objection raised by the Applicant is founded may be regarded as an established fact upon which the Court may base its judgment.

[193] The facts on which the subsidiary objection are based also seem to the Court to be established. These facts are that the greater part of the agricultural land, the total area of which is 347 hectares, is leased to workmen, the remainder ("a negligible portion") being farmed directly by the Company. This farming, which, moreover, is carried on at a loss, is conducted to supply the workers with foodstuffs and for the production of hay and straw for the pit ponies. The Respondent has not disputed these facts. He has confined himself to saying, in the Counter-Case, that the Zaleze and Dolne Hajduki estates constitute typical rural properties a portion only of which (the extent of this portion is not indicated by the Respondent) is leased to workers for short periods. To this argument it has been subsequently added that these estates, being purely agricultural, are ipso facto subject to expropriation under Article 12, paragraph 1, of the Geneva Convention.

[194] The Court cannot accept this view. In its opinion, the facts advanced by the Applicant, which have not been disputed by the Respondent, must, as has already been said, be regarded as established. Moreover, the present utilization of these lands for the benefit of the workers and for the production of forage for the pit ponies is sufficient to cause them to be regarded as principally devoted to the needs of the mining undertaking, as these needs have been construed by the Court.

[195] Consequently, both the principal and the so-called subsidiary objection must be regarded as well-founded.

(3) The Jedlin estate.

[196] According to the Case of the German Government, the total area of this estate is 589 hectares, of which 283 hectares is forest land, the remainder being agricultural land. The documents of the written procedure on the Polish side mention no figures, nor has this Government furnished any during the oral proceedings.

[197] It is established that the untimbered part of the Jedlin estate is [p60] now utilized for agricultural purposes. It appears, however, from statements made in Court by the applicant Government, which have not been disputed by the Polish Government, that this land is worked at a considerable loss.

[198] In support of his objection to expropriation, the Applicant alleges in the first place that this estate has been acquired, in spite of its lack of fertility, with a view to the use of the sand found upon it for the requirements of the Giesche mines. At the present time the sand is not yet being worked and the statements of the Parties differ as to the probable time when a beginning will be made. It must, however, be regarded as certain that the Jedlin estate will at some future time be effectively devoted to the needs of the Giesche Company, having regard to the fact that sand in large quantities is used for the hydraulic filling of mine workings.

[199] In reply to the Applicant's contention, the Respondent has argued that a future use does not come within the scope of Article 9, § 3, of the Geneva Convention ; the Court, however, as has already been stated, cannot regard this construction as sound. Consequently, it considers it as established that the Jedlin estate, as regards the principal purpose served by it, fulfils the conditions laid down in the above-mentioned article. In these circumstances, it appears superfhious to devote attention to the present purpose served by that part of the estate which is utilized for agriculture.

(4) Mokre estate.

[200] According to the statements made during the written proceedings, the area of the Mokre estate is 717 hectares, of which 316 hectares is forest land and 401 hectares agricultural land. It appears from the maps before mentioned that the Mokre estate is situated over mines or coal seams. A portion of the property is devoted to dairy farming.

[201] On the basis of these facts, the Applicant in the first place takes objection to the expropriation on the ground that the estate serves the purpose of safeguarding the owner against the consequences of subsidence; in the second place, he takes objection on the ground that the untimbered lands are at present utilized as a dairy farming estate devoted to supplying the population dependent on the concern. The situation thus indicated is similar to that of the Ballestrem estate and the arguments opposed by the Respondent to the contentions of the Applicant are the same. [p61]

[202] After hearing the evidence given by expert witnesses in pursuance of the Order made on March 22nd, 1926, the Court is in a position to recognize the justice of the objections taken by the Applicant. It has, in fact, been proved that the southern part of the mining concessions is covered by the surface lands belonging to the Giesche Company ; and that the seams already worked or to be worked are at a short distance from the surface, a fact which clearly demon-strates that this surface is needed by the concern and, at the same time, the serious danger of subsidence. Throughout the remainder of the concession, borings made have shown the existence of seams which will be worked in their turn. Furthermore, a document filed by the Agent of the Applicant at the sitting of April 13th, 1926, which document has not been disputed, decisively establishes the fact that the purpose served by the estate is as the Court understands it. The document in question is a letter sent to the Council of Representatives of the Georg von Giesche's Erben Company, dated October 10th, 1901. At that period steps were being taken to acquire the Mokre estate with a view to the future working of the mines situated on this estate, and in order to avoid the necessity of having, later on, when the mines were being worked, to acquire the same lands at a much higher price. It appears therefore that the object of the purchase of the Mokre estate was to avoid a speculation which would injure the interests of the concern.

[203] As regards the subsidiary objection taken by the Applicant to the expropriation of the estate, it will suffice to refer to what has been said in this respect in regard to Count Ballestrem's estate.

(5) The Baranowice estate.

[204] The total area of this estate is, according to the figures furnished by the Applicant, which have not been disputed, 1072 hectares. Different figures have been furnished by the two Parties in regard to the extent of the forest lands of this estate ; according to the German Government the area of forest land is 625 hectares, whereas the Polish Government observes that the Company concerned has given 550 hectares as the area under timber.

[205] It should be recorded that the Respondent, in his Counter-Case, has stated, in order to define the meaning of the words "portions not reafforested and not used for mining operations", that the lands [p62] employed for industrial purposes have been secured beforehand, by the notice itself, from any possible expropriation and that this also applies as regards wooded lands. This construction, however, only applies to those wooded areas which, under Article 12, paragraph 2, are not to be regarded as forming part, of large agricultural estates and which therefore are not, with them, liable to expropriation. It is therefore important to ascertain the extent of these wooded areas in relation to the total area of the estate.

[206] The Polish Government has contended several times during the proceedings that the exception provided for in Article 12 applies to the whole of the wooded portion of the Baranowice estate. This portion would therefore, in its opinion, be liable to expropriation just as much as the agricultural land. Thus, the whole estate -contrary to what is stated in the notice -would be liable to expropriation.

[207] The Polish Government seems to arrive at this fresh submission on the basis of a letter of the Giesche Company dated January 19th, 1925; a passage in this letter, according to the construction placed upon it by that Government, indicates that the wooded and agricultural portions of the Baranowice estate are so closely connected that if the latter were expropriated, the former could no longer be profitably exploited.

[208] The Applicant, however, has disputed this construction of the Respondent. Citing the complete text of the above-mentioned letter, he has maintained that the Company's statement should rather be understood in the opposite sense. This statement, indeed, contains amongst other things a passage to the effect that "all timber obtained from our estates in so far as it is not immediately used for agriculture, is distributed to our industrial concerns, in particular Baranowice. Owing to the close connection between agriculture and industry, the expropriation of our estates would endanger the exploitation of our factories and would inevitably be harmful to the national economic system." This passage does not indicate that the possibility of expropriating the agricultural part justifies the expropriation of the wooded portion.

[209] The Applicant, whilst recognizing the close connection existing between the two parts of the Baranowice estate, therefore lays stress on the preponderating importance of the timbered portion which makes this estate essentially a timber-producing property [p63] acquired as such for the production of pit props. In reply to this contention the Respondent has merely observed that the object for which an estate is acquired is irrelevant from the point of view of the application of the provisions of the Geneva Convention.

[210] It should moreover be noted that the Applicant has stated that the timbered portion is utilized for the needs of the mine (pit props) and that this statement has not been disputed by the Respondent. The Court therefore regards it as proved, for the purposes of the suit, that the Baranowice estate fulfils the conditions of Article 9, § 3, paragraph 2, owing to the exploitation of the timber.

[211] The same conclusion is indicated as regards the untimbered portion, because this land, which is devoted to agriculture, supplies foodstuffs for the workers and hay, straw, etc. for the pit ponies.

[212] The German Government has, moreover, added in its Reply that a large part of this land, when still under German rule, was made available for the execution of the agrarian reform ; that contracts were long ago concluded with the communes with this end in view; that the farmers are already in possession of their lands and that only the Auflassung remains to be granted. In reply to these statements, the Respondent has offered no argument, either in his Rejoinder or in the course of the oral proceedings. Now these statements, in so far as they concern the portions of the estate to which they apply, would have the effect of rendering applicable Article 9 to the exclusion of Article 12 of the Geneva Convention; they would therefore constitute circumstances tending to confirm the conclusion arrived at by the Court on other grounds.

(6) The Giszowiec (Gieschewald) estate.

[213] According to the statements made before the Court by the two Parties, the total area of this estate is 1120 hectares. This estate, according to the maps before mentioned, coincides throughout its extent with mining concessions belonging to the Giesche Company.

[214] It contains an untimbered portion which, according to the figures furnished by the respondent Government, includes 244 hectares of agricultural land. [p64]

[215] On the other hand, it is established that the greater part of the estate of Giszowiec (according to information furnished by the respondent Government, which has not been disputed, 876 hectares) was wooded. The timber has, according to the Parties' statements, been destroyed by fire and the work of reafforestation begun by the Company is beset with difficulties. In the Court's opinion, this latter fact does not deprive the land of its essential character as a timber growing estate, upon which no appreciable influence can be exerted by the circumstance that in the same estate there is a cultivated portion, the extent of which in proportion to the total area is small.

[216] It should also be observed that the word "essentially" used by the Applicant ("essentially timbered land") does not necessarily mean "exclusively", but rather contemplates the fact of being "principally" utilized, throughout the larger and more important part, in a certain manner. Now this is precisely the meaning of the sentence which, in Article 9, § 3, paragraph 2, determines the nature of the purpose which renders immune from expropriation by the Polish Government certain rural estates. Moreover, the part described as agricultural is to a considerable extent, as has been proved by one of the maps handed in, used for the construction of workmen's houses and for allotment gardens. This use of the land undoubtedly comes within the conception of devotion to the needs of the enterprise, as established by the Court.

[217] For all these reasons the Court is of opinion that the Giszowiec estate fulfils the conditions of Article 9, § 3, paragraph 2, of the Geneva Convention.

(c) Christian Kraft, Prince of Hohenlohe-Oehringen.

[218] The rural estates belonging to Christian Kraft, Prince of Hohenlohe-Oehringen are situated, according to the official announcement regarding the notice, in the communes of Bytkow (formerly Welnowiec) and Michalkowice, in the district of Katowice; according to the same announcement, the area of these estates is 361 hectares. [p65]

[219] The German nationality of the owner must be regarded as established.

[220] According to the Case of the German Government, the estates covered by the notice form part of the Prince's entailed property, and he has leased them to the Hohenlohe-Werke Company.

[221] The Application mentions the estates of Prince Hohenlohe-Oehringen amongst those principally devoted to serving the needs of industrial undertakings and for this reason immune from expropriation under Article 9, § 3, of the Geneva Convention. It should be stated that neither in the Application nor in the oral or written proceedings has any information been furnished as to the needs in question. The mere assertion of the existence of a contract of lease in favour of an industrial concern, a contract the object and duration of which are unknown to the Court, does not enable it to decide whether Article 9, § 3, is applicable or not.

[222] The terse reference, without any details, to subsidence, made by the German Agent in his oral reply, would, even apart from the question whether this argument had been put forward in sufficient time, not suffice to prove the assertion made in the Application. The Respondent has stated that he is not in a position to reply to this argument which was not put forward during the written proceedings.

[223] In these circumstances, therefore, the Court can only dismiss the Applicant's claim, for lack of sufficiently substantiated statements.

(d) The Vereinigte Königs-und Laurahütte Company.

[224] The lands affected by the notice and belonging to the Vereinigte Konigs-und Laurahütte A.-G. für Bergbau-und Hüttenbetriebe of Berlin, have been described as follows in the Monitor Polski of December 30th, 1924:

"The portions, which are not reafforested and not used for indus trial purposes, situated in the district of Rybnik, in the communes of Czerwionka, Czuchow, Döbiensko, Stare, Kamien and Leszczyny, in the district of Swietochlowice, in the communes of Chorzów, Wielka Dabrowka, Kroleska Huta, Lagiewniki and Nowy Bytom, in the district of Katowice, in the communes of Antoniow, Bangow, [p66] Maciejkowice, Przelajka and Siemianowice and in the city of Katowice."

[225] The total area of these estates is, according to the Polish Government, 1984 hectares. This figure has, however, been disputed by Germany.

[226] The Agents of the Polish Government, at the hearing of February 8th, 1926, stated that the notice of intention to expropriate the lands situated at Katowice had been withdrawn, since the Company did not appear to possess any land in that town; the Agent of the German Government noted these statements. Furthermore, it appears from communications made to the Court that a rectification in respect of these lands, establishing their non-liability to expropriation, was also published in the Monitor Polski of January 26th, 1926. The Court therefore is satisfied that the notice of intention to expropriate these properties has ceased to exist.

[227] The Applicant Government has indicated in its Case the proportion of forest land, parks and gardens, land unsuitable for cultivation, etc., included in the estates of the Company, dividing the latter into three groups (the properties of Siemianowice-Bangow-Przelajka, the properties of Maciejkowice-Antoniow and the properties of Czerwionka); the Respondent, whilst disputing the statements of the Applicant in this connection, has not made any observation? regarding the individual figures indicated. At the hearing of February 5th, the Agent of the German Government submitted to the Court two maps of the landed properties belonging to the Vereinigte Königs-und Laurahütte Company, in regard to which the representatives of the Polish Government have made no observations. It should be added that each of the properties mentioned above constitutes a large estate within the meaning of Article 12, paragraph 1, of the Geneva Convention.

[228] It appears from the statements made in Court on behalf of the applicant Government -which have not been disputed -that the landed property of the Königs-und Laurahiitte Company is in the main situated over the Company's mines.

[229] Again, it results from the documents of the suit that the produce of the agricultural lands is, at least in part, used to provide foodstuffs for the workers and to supply the needs of the industrial undertakings. [p67]

[230] The registered offices of the Company are at Berlin. It is, furthermore, established that three of the five members of the Committee of Management are Polish nationals and that the "Board of Control", consisting of eighteen members, includes eleven members of German nationality.

[231] As regards the distribution of the shares, the Applicant states that 80 % belong to four persons, subjects of countries other than Germany; he has not, however, indicated the period at which this distribution existed. The four persons in question are: M. A. Weinmann, of Aussig, a Czechoslovak national; M. Bosel, of Vienna, an Austrian national, M. Askenazy, of Warsaw, and Prince Henckel von Donnersmarck, of Neudeck, Polish nationals. The Respondent has not disputed that the situation in this respect is in fact as above stated; he has confined himself to the contention that no importance can be attached to the possession of bearer securities, since it is impossible to ascertain in whose hands they may be at a given moment. He has added that the circumstances indicated, in the Case may possibly refer to the position at. the time when the Case was prepared, but certainly not to that which existed at the decisive dates mentioned in Article 12. It does not appear that Poland, in the exercise of the right which is granted her under Article 19 of the Geneva Convention, has taken steps to ascertain by whom the Company was really controlled at the decisive dates. According to the reports upon the administration of the Company, two of the four persons indicated as principal shareholders were on the Board of Control of the Company during the year 1921-1922 in the course of which the transfer of sovereignty took place, whilst, all four have been upon it since 1923-1924. The Court is of opinion that these indications justify the conclusion that the great majority of the shares was in the hands of nationals of countries other than Germany, at all events at the second of the decisive dates mentioned in Article 12, paragraph 1.

***

[232] If the data furnished by the Applicant with regard to the composition of the management and of the Board of Control and also the nationality of shareholders at the decisive moments contemplated by Article 12 of the Geneva Convention are not disputed there is, [p68] on the other hand, a difference of opinion as to the relative importance to be attached to the various organs of the Company, in which German and non-German nationals are represented in different proportions. The opinions of the Parties also differ as to the possibility of taking into account the possession of bearer securities. These are the points on which the argument has mainly borne.

[233] As concerns the doubts expressed by the Respondent with reference to the facts in regard to the possession of the shares at the decisive dates mentioned in Article 12 of the Geneva Convention, the Court has stated the reasons for which it holds that, for the purposes of the present suit, it has been proved that, at all events at the time when notice was given, the majority of the shares was in the hands of nationals of countries other than Germany. Since the application of Article 12 is dependent on the property to be expropriated being owned by German nationals or by companies controlled by German nationals on April 15th, 1922, and at the date of the notice, it is sufficient for the purposes of immunity from expropriation that this condition should not have been fulfilled at one of the decisive dates.

[234] Relying mainly on the argument that the Konigs-und Laurahütte Company is not a company controlled by German nationals, the Applicant has denied that the estates of this Company fall within the scope of Article 12 of the Geneva Convention. The Respondent, on the other hand, contending that control is exercised by German nationals, considers that the article in question is applicable in this case.

[235] The Geneva Convention does not, any more than the Treaty of Versailles, define the factors which constitute control and the existence of which may involve the liquidation of a company's property. The Court is of opinion that the conception of control, in the Geneva Convention, is an essentially economic one and that it contemplates a preponderant influence over the general policy. Criteria of an external nature, such as the situation of the registered offices, the place of foundation, the legislation under which the Company has been formed, etc., which have long been applied, without any relation to the question of liquidation, by the legislation and jurisprudence of the different countries, seem to have been replaced in the Geneva Convention, and in so far as concerns [p69] the liquidation régime, by a more elastic criterion which enables, in spite of appearances, physical persons of a particular nationality to be reached. The régime is therefore based on the nationality of the citizens of the State subjected to liquidation, who are owners or beneficiaries of the property, rights and interests liable to liquidation.

[236] Seeing that the conception of "control" is an essentially economic conception, decisive importance must not be attached to the functions which, by law or under their Statutes, are performed by certain organs, such as, for instance, the Boards of Control of Limited Companies; such functions must not be taken as a rigid legal criterion. On the contrary, each case must be considered on its individual merits. There is, however, in the conception of control adopted in the Geneva Convention, one rigid juridical factor, namely, the nationality of the physical persons who exercise control. There is no occasion to consider what are the tendencies or connections of a person of a particular nationality.

[237] The two organs of the Company which, according to the opposing contentions of the Parties, enter into consideration from the point of view of control, are the Board of Control and the General Meeting of Shareholders. Both of these organs in fact may, according to the circumstances, exert a decisive influence. Nevertheless, regard must be had, in the first place, to the shareholders, for, under German law as well as under other systems of legislation, it is the general meeting of shareholders which exercises the supreme power of the Company. From the General Meeting, which is the constituent body, directly emanate the powers of the Board and, directly or indirectly, those of the management. It is a well-known fact that the acquisition of the majority of the shares is precisely the means by which an interested person or group of persons may seek to obtain control over a concern. Though it is true that the Board of Control may be regarded as possessing control in the very common event of the shares being distributed amongst a very large number of persons, to a great extent unknown to each other, the position is entirely different if -as in the case of the Konigs-und Laurahütte -80 % of the shares are in the hands of four large shareholders, all members of the Board of Control, who can exert their influence by means of their majority in the general meeting and who, although in a minority, can in fact also do so in the Board of Control. In such circumstances it is not material [p70] if the Company's Statutes, as in the present case, extend the powers of the Board of Control beyond those fixed by law. The Board remains, notwithstanding, responsible to the majority of the shareholders. Although the Statutes provide that members of the Board shall hold office for a period of four years and according to a system of rotation, the legal stipulation to the effect that the Board's mandate may be revoked, at any time, by a majority of three-fourths of the shares represented at a general meeting is maintained. Moreover, in the circumstances stated above, the majority of the members of the Board of the Company now under consideration is of Polish nationality.

[238] The Respondent has, in the second place, argued that the Konigs-und Laurahütte Company is a German "national" in virtue of the undisputed fact that its registered offices are at

Berlin, and that consequently it is governed by German law.

[239] The Court cannot share the opinion that these arguments in the present case lead to the conclusion deduced from them by the Respondent.

[240] The Geneva Convention has adopted, as regards the expropriation régime and in so far as companies are concerned, the criterion of control; this, however, does not prevent other criteria which might be applicable in respect of the nationality of juristic persons from possessing importance in international relations, from other standpoints, for instance, from the standpoint of the right of protection. Since the term "national" in the Geneva Convention generally relates to physical persons, whose legal situation is determined by the personal tie of nationality connecting them to a State, it is hardly possible to extend this conception, without special reasons, to companies, even such as are juristic persons, with regard to which a special conception - that of a "controlled company" - has been adopted.

[241] Of course the law applicable to the Company by reason of the fact of its registered offices being in Germany, gives the German authorities judicial and other powers; but it has not been argued and there is no reason to suppose that these powers could have the result of investing the authorities of the country in which the Company's registered offices are situated with control, within the meaning of the Geneva Convention.

[242] The Court having thus rejected the applicability of Article 12, [p71] it is not necessary to
consider the other circumstances put forward by the Applicant with a view to proving that the estates in question are not liable to expropriation.

(e) Baroness von Goldschmidt-Rothschild.

[243] According to the announcement published in the Monitor Polski of December 30th, 1924, the Polish Government has the intention to expropriate the following estates belonging to the Baroness Maria Anna von Goldschmidt-Rothschild, née von Friedländer-Fuld: the landed properties situated in the district of Rybnik, in the communes of Gorzyce, Belsznica, Jedłownik, Machlowice, Maruzse, Moszczenica, Mszana, Olza, Radlin, Turzyczka, Wilchwy, Wodzisław and Wodzisawski Zamek, amounting to an area of 1618 hectares.

[244] Notice was not served personally upon the interested Party. It has been stated above that the Polish Agent, at the hearing of February 18th, 1926, reiterated the declaration made by the Polish Government in its documents of procedure to the effect that the estates in question would not be expropriated. The Agent of the Applicant noted these declarations. The Parties are therefore agreed as to the legal situation of the estates in question which have been recognized to be immune from expropriation.

[245] On the other hand, there is a difference of opinion between the Parties in the sense that, according to the German Government, the notice was irregular, failing personal service upon the person concerned, whilst the Polish Government holds that notice has not been given.

[246] Article 15 of the Convention makes no special provision for the form in which notice is to be served. The procedure adopted by the Polish Government includes a notice served on the individual and the publication of an announcement in the Monitor Polski. This procedure seems indeed to fulfil the spirit of the Convention, for, whilst it is certain that the owner must be directly informed of the Government's intention to expropriate his property, the consequences which the notice is destined to produce, both as regards the German Government (Article 23, paragraph 1), and as regards third parties (Article 20), require that notice to the party immediately concerned should be accompanied by certain measures [p72] of publicity. It should also be observed that, since the Monitor Polski is official in character, an announcement published therein can hardly be regarded as having never been made, even if, in the absence of other essential factors, it is unable to attain its end.

[247] The justice of this observation is not affected by the fact that subsequently the decision to give notice in respect of the estates of the Baroness Goldschmidt-Rothschild was corrected, as has been stated above. Nevertheless this correction which annulled the notice, in so far as notice had been given, undoubtedly had the effect of depriving the German Government's Application in respect of these estates of its object. The Court is satisfied that, in these circumstances, the estates in question are once and for all immune from any possible expropriation under Article 15 of the Geneva Convention.

(f) Karl Maximilian, Prince of Lichnowsky.

[248] The rural estates of Prince Karl Maximilian Lichnowsky, in respect of which notice has been given by the Polish Government, are "portions of landed properties situated in the district of Rybnik, in the communes of Syrynia, with the estates of Grabowka and Syrynia, in the communes of Lubomia, and the estate of Lubomia, in the commune of Nieboczowy, with the estate of Nieboczowy, and in the commune of Ligota Tworkowska". According to the official announcement in the Monitor Polski, the area of these estates is 1930 hectares.

[249] Prince Lichnowsky, who was a German national at the time of the coming into force of the Treaty of Versailles, by a declaration dated January 1st, 1922, a copy of which has been submitted to the Court, opted for German nationality, in accordance with Article 84 of the Treaty of Versailles and the provisions of the German-Czechoslovak Convention of June 29th, 1920, regarding questions of nationality.

[250] The only difference of opinion existing between the Parties in regard to this case is in regard to whether the automatic acquisition of Czechoslovak nationality by the Prince actually took place and, if so, how this fact may be proved. If it is established, expropriation is, according to the statements of the Respondent himself, out of the question.

[251] In the opinion of the Polish Government, proof of the acquisition [p73] of Czechoslovak nationality can only be established by means of a certificate from the Czechoslovak Government recording the fact.

[252] The Court cannot take this view

[253] The Applicant, in his Case, has adduced a series of definite facts which, if regarded as established, destroy any doubt as to the applicability of Article 84 of the Treaty of Versailles and, consequently, as to that of Article 17 of the Geneva Convention. Prince Lichnowsky, in the document recording the exercise of his right of option, declared that he was domiciled at Kudulna (Kuchelna), a locality situated in Czechoslovak territory. The fact that the declaration of option did not encounter any objection on the part of the Czechoslovak Government has not been disputed. N��has it been denied that the Czechoslovak authorities gave the Prince permission temporarily to reside at Kudulna, under Article 12, paragraph 3, of the Convention between Germany and Czechoslovakia.

[254] Moreover, these data, furnished by the Applicant, relate, at least in part, to matters of common knowledge; Poland does not dispute their accuracy, she merely asks for documentary proof.

[255] The Court is entirely free to estimate the value of statements made by the Parties. It considers that the fact that the Prince was, at the decisive date, established in a territory recognized by the Treaty of Versailles as forming part of Czechoslovakia, is sufficiently proved by the statements made in the Case on the subject, which have not been disputed, and by the Prince's declaration, dated January 1st, 1922, by means of which he opted for German nationality in accordance with the terms of the German-Czechoslovak Convention.

[256] Article 17 of the Geneva Convention is, therefore, applicable in the case of Prince Lichnowsky.

(g) City of Ratibor.

[257] The Polish Government, according to the official announcement published in the Monitor Polski, has given notice of its intention to expropriate the landed property situated in the district of Rybnik, in the commune of Brzezie, belonging to the City of Ratibor.

[258] It has been indicated that the area affected by the notice is 297 hectares. [p74]

[259] At the hearing of February 5th, the Agent of the German Government handed to the Court maps showing the estates of the City of Ratibor situated in Polish Upper Silesia.

[260] As regards the lands affected by the notice, the German Government has contended that the area indicated being 297 hectares, the Waldpark, a wooded estate used as a place of recreation for the inhabitants of Ratibor, must be included ; this, in its opinion, would be contrary to the provisions of the Convention. The Polish Government, for its part, whilst admitting that the figure of 297 hectares is not perhaps absolutely correct, has denied that that figure includes the Waldpark, which it contends is not included by the notice. The Court considers, therefore, that these statements have definitively established that the Waldpark is not liable to expropriation.

[261] The Applicant denies that Article 12 of the Geneva Convention is applicable to the City of Ratibor.. which, in his contention, is neither a "German national" nor a "company controlled by German nationals" ; the Respondent, on the other hand, considers that the City of Ratibor must be regarded as a "German national" or as a "company controlled by German nationals".

[262] It is not possible to apply the conception of a "controlled company" to every kind of juristic person ; it would rather appear, in the light of war-time legislation to which the régime of liquidation belongs, that this conception refers more particularly to associations with an economic purpose, there being, moreover, no necessity to draw a distinction in this connection between associations which merely constitute a contractual relation and those which possess a distinct legal personality.

[263] On the other hand, the conception of a "national" also covers, in the Court's opinion, communes such as the City of Ratibor. It is true that, as has been explained in connection with the case of the Königs-und Laurahütte Company, the term "national" in the Geneva Convention generally contemplates physical persons. But a relation analogous to that which exists between physical persons and a State, and which is called nationality, also exists, although in a different form, in the case of corporations of municipal law.

[264] A Prussian commune is a corporation on a territorial basis, formed by the national inhabitants, upon whom municipal law [p75] confers the capacity of members of the commune. Generally speaking, only nationals will take part in the administration of the commune. Again, communes, outside their own sphere of activity, also exercise functions as organs of the State itself ; they are subject to the control of the State authorities as regards both the activities which are directly incumbent upon them and those which they undertake in virtue of powers delegated by the State. An essential and necessary bond therefore unites the commune and the State of which it forms part; consequently, it is natural, from the standpoint of the régime of liquidation, to assimilate such communities of nationals of a State to individuals who, precisely by reason of their nationality, are, in so far as their property is concerned, subject to the régime established for nationals of this State.

[265] It follows from the foregoing that the commune of Ratibor falls within the category of "German nationals", within the meaning of Article 12, paragraph 2, of the Geneva Convention. The Applicant has not disputed the agricultural character of those lands belonging to the City of Ratibor in regard to which the Polish Government's intention to proceed to expropriation has not been abandoned.

(h) Godulla Company.

[266] The estates belonging to the Godulla Company, in respect of which the Polish Government has given notice of its intention to proceed to expropriation, comprised, according to the Monitor Polski, "the portions which are neither timbered nor used for industrial purposes, of the landed property situated in the district of Swietochlowice, in the communes of Nowa Wies, Lagiewniki, Lipine, Orzegow, Godula, Nowy Bytom and Ruda, in the district of Pszczyna, in the communes of Paniowy, Jaszlowice, Zawada, Mokre, Ornontowice and Orzesze, in the district of Rybnik, in the communes of Bujakow, Chodow and Paniowki."

[267] The two Parties agree in regarding the Godulla Company as a "company controlled by German nationals" within the meaning of Article 12 of the Geneva Convention.

[268] The total area of the landed property of the Company, according to the figures supplied to the Court by the Applicant Government, is 3495 hectares ; on the other hand, the figure given in the official announcement concerning notice of expropriation is 2411 hectares. [p76]

[269] The German Government, in its Case, has submitted to the Court a table showing the area and use of all the estates of the Company (entered in the land registers on 478 different pages; in regard to this table the Polish Government, without going into details, has made certain reservations. These estates have been treated by the Respondent as forming two distinct groups, that of Orzesze and that of Orzegow-Czarnylas.

[270] At the hearing of February 5th, 1926, the Agent of the German Government handed to the Court maps relating to the estates of the Godulla Company, which maps have given rise to no observations on the part of the representatives of the Polish Government before the Court.

[271] It appears, in the first place, from the documents of procedure that a large proportion of the estates belonging to the Company do not reach the size mentioned in Article 12, paragraph 1, of the Geneva Convention, namely 100 hectares.

[272] The Polish Government has contended that the division of the properties into portions of less than 100 hectares does not destroy the right of expropriation if the total figure reaches 100 hectares. The Court cannot take this view. The provisions of the Geneva Convention regarding rural property seem to contemplate separate estates as such, rather than all the estates belonging to one and the same person. It should be observed, moreover, that the liability to expropriation of rural property constitutes, under the Geneva Convention, an exception; in case of doubt as to the scope of this exception, its terms must therefore be strictly construed.

[273] As regards the estates of the Orzegow-Czarnylas group which exceed 100 hectares of agricultural land, the German Government, in its Case, has stated that these lands are, for the most part, leased to workmen and that only 49 hectares at Orzegow and 61 at Czarnylas are worked by the Company itself. Without directly disputing these figures, the Respondent has made reservations, adding that he was not able to take up a definite position in regard to this point, because, arising out of the claim put forward by the Company concerned, several circumstances were still under investigation by the Polish authorities. He has laid especial stress on the fact that the lands are leased not only to workmen but also to third parties who are in no sense in the service of the Godulla Company.

[274] The Court is, in the first place, satisfied that the lands in question [p77] cover mining enterprises of the Company and, for this reason, the observations already set out on several occasions, regarding the relation existing between the ownership of mines and of the surface, apply to them.

[275] Furthermore, according to the maps of this group, which the Agent of the German Government has handed to the Court, the parcels devoted to agriculture are surrounded by industrial areas and themselves enclose portions the use of which for industrial purpose has been established. This, in the Court's opinion, is another circumstance rightly invoked by the German Government as an argument against the liquidation of these lands.

[276] On the basis of the foregoing considerations, the Court arrives at the conclusion that the whole of the Orzegow-Czarnylas group must be considered as devoted principally to serving the needs of the industrial undertaking. It is therefore hardly necessary to pause to consider the possible importance attaching to the fact, adduced by Poland, that the lands of the Company are partly leased to persons other than workmen or employees of the concern.

[277] As regards the agricultural lands of the Orzesze group, the German Government has stated that they were bought in three stages, 1838, 1850 and 1896, whilst the coal deposits which they cover were acquired between 1845 and 1858. The purchase was effected in view of damage by subsidence and with a view, when the time came, to sinking pit shafts and setting up the installations necessary for mining operations. The surface estates of the Godulla Company coincide almost exactly in extent with its mining concessions ; this circumstance, which has been advanced by the Applicant, is confirmed by the map relating to this group handed in by that Party's Agent.

[278] The mines belonging to this group are not yet being worked. Meanwhile the land is worked as farms; which are devoted to the needs of the concern : in particular, potatoes are grown, which are delivered to the central supply organization for the workers, milk and meat are supplied for the employees and workmen, hay for the pit ponies, etc. These facts, advanced by the Applicant, have not been disputed by Poland.

[279] In these circumstances, the Court holds that even the estates of the Orzesze group must be regarded as principally devoted to [p78] serving the needs of the industrial undertaking. It bases its decision on the fact that the lands entirely cover coal deposits which, under No. 1 of § 1 of Article 9 of the Convention, are held to be assimilated to large scale industry, and that they have been acquired with a view to future mining operations; as well as on the fact that the farming temporarily conducted upon them is devoted to serving the needs of the concern. It has already been stated that the temporary character of this use to which they are put cannot render Article 9, § 3, paragraph 2, inapplicable.

(i) Duke of Ratibor.

[280] The Polish Government has, according to the Monitor Polski, given notice of its intention to expropriate the following rural estates belonging to the Duke of Ratibor: those portions of his landed property situated in the district of Rybnik, in the communes of Adamowice, Bogunice, Cwalecice, Raszczyce and Zwonowice, of an area of 495 hectares.

[281] The fact that the Duke of Ratibor is of German nationality has not been disputed. It appears, moreover, from statements made in Court that the Duke of Ratibor had his domicile upon the estate which has since been divided by the frontier line and of which those portions situated in Poland have formed the subject of notice of expropriation.

[282] The only difference of opinion between the Parties is in regard to whether the Duke is amongst those German nationals who are not entitled to retain their domicile in Polish Upper Silesia and whose property, under the conditions indicated in Article 12 of the Geneva Convention, is liable to expropriation.

[283] In the contention of the German Government, the Duke has a domicile in Polish Upper Silesia because he was domiciled, before the partition of Upper Silesia, upon the estate of Ratibor and therefore upon the whole of his entailed estates of which one part, separated from the rest by the new frontier, has been allotted to Poland. The German Government does therefore not contend that the Duke has had two different domiciles, of which one upon the part now in Polish territory. On the contrary, according to the Case regarding the Application of August 25th, 1925, Germany does not maintain that the Duke is domiciled upon the estate of Rauden, of which a part is also covered by the notice. [p79]

[284] The German Government's argument is based on the idea that, in cases of cession of territory, and in particular having regard to the care exercised in the Geneva Convention to preserve coherence between the two parts of the plebiscite area, the domicile required to bestow upon an individual the right of choice between the two nationalities in question, merely presupposes a certain solid attachment of this individual to the land ceded and that this tie exists in regard to the whole of an estate, if the individual is established on this estate, residing upon it and working it himself, at the time of the cession of the territory.

[285] The Court cannot accept this view. Article 12 renders liable to expropriation large estates belonging to German nationals who are not entitled to retain their domicile in Polish Upper Silesia under Articles 40 and 42. The possession of a domicile in Upper Silesia, not merely a certain solid attachment to the land ceded, is the condition which may in certain circumstances protect the property of a person from expropriation. In the first place, therefore, the conception of domicile must be determined and, in the next place, it must be ascertained where the person concerned was domiciled at the decisive dates.

[286] The characteristic feature of domicile is the fact that from the point of view of law, a person is attached to a particular locality. This locality is normally -as the term "domicile" itself implies-the home, the house inhabited by the person concerned. If the whole -perhaps very considerable -extent of an estate could be regarded as a domicile, the precise localization of the legal rights and obligations of a person, which is the most essential feature of domicile, would be lacking. It is possible to have more than one domicile, but it is out of the question that the same domicile should be in two different localities, in two communes, or even in two different States.

[287] The definition of domicile to be found, in Article 29 of the Geneva Convention brings out the fact that, according to that Convention, the domicile is the place where an individual's activities and interests, both personal and economic, are mainly centred. His activities and interests extend to the whole of an estate, or to several estates, but the centre of them can only be his dwelling place, or at all events some fixed spot. If the idea that a person can only be domiciled at the principal centre of his activities and interests were to be discarded and it were admitted that he could [p80] be domiciled on any part of an estate, the inevitable result would be also to admit the possibility of domicile upon a part of the property which might, for instance, consist of nothing but uninhabited forests. Such a consequence is undoubtedly inadmissible.

[288] If, therefore, the Duke of Ratibor has not been domiciled in the sense indicated above upon the portion of his entailed estates allotted to Poland, he cannot have in Poland a domicile capable of retention.

[289] Now, it has not been contended by the Applicant that the Duke of Ratibor was, at the decisive dates, domiciled, in the sense herein adopted, upon the part of his entailed estates allotted to Poland. In these circumstances, the Duke cannot claim under Article 40 - the only provision which might enter into consideration - to retain his domicile in Polish Upper Silesia.

(j) Count Saurma-Jeltsch.

[290] According to the Monitor Polski of December 30th, 1924, the estates belonging to Count Wilhelm Saurma-Jeltsch, in respect of which the Polish Government has given notice of its intention to proceed to expropriation, are the landed properties situated in the district of Rybnik and in the communes of Bukow, Kamien (on the Oder) and Ligota Tworkowska, amounting to an area of 439 hectares.

[291] The case of the rural estates of Count Saurma-Jeltsch has been dealt with by both Parties in conjunction with that of the Duke of Ratibor.

[292] The facts and arguments advanced by the Applicant in the case of Count Saurma-Jeltsch are, in fact, entirely similar to those set out in the case of the Duke of Ratibor. It has not been disputed that the Count is not domiciled on a particular estate belonging to him and situated in Polish Upper Silesia; nor has the contrary been affirmed. The domicile which it has been submitted that the Count is entitled to retain in Polish Upper Silesia is simply the domicile which, in the German contention, covers the whole estate divided by the new frontier. For the reasons set out in the case of the Duke of Ratibor, the Court is of opinion that Article 12 of the Geneva Convention is applicable because Count Saurma-Jeltsch [p81] has no domicile in Polish Upper Silesia which he is entitled to retain.

[293] FOR THESE REASONS,
The Court, having heard both Parties,
gives judgment as follows:

(1) That the application both of Article 2 and of Article 5 of the law of July 14th, 1920, in Polish Upper Silesia, decreed by the law of June 16th, 1922, constitutes, in so far as it affects German nationals or companies controlled by German nationals covered by Part I, Head III, of the Geneva Convention, a measure contrary to Article 6 and the following articles of that Convention;
(2) (a) That the attitude of the Polish Government in regard to the Oberschlesische Stickstoffwerke and Bayerische Stick-stoffwerke Companies was not in conformity with Article 6 and the following articles of the Geneva Convention;
(b) that the Court is not called upon to say what attitude on the part of the Polish Government in regard to the Companies in question would have been in conformity with the above-mentioned provisions;
(3) (a) That the notice of intention to liquidate the rural estates belonging to Count Nikolaus Ballestrem is not in conformity with the provisions of Articles 6 to 22 of the Geneva Convention;
(b) that this also applies in regard to the notice of intention to liquidate the rural estates of the Giesche Company at Katowice;
(c) that the applicant Government's claim in respect of thenotice of intention to liquidate the rural estates belonging to Christian Kraft, Prince of Hohenlohe-Oehringen, must be dismissed;
(d) that the notice of intention to liquidate the rural estatesbelonging to the Vereinigte Konigs-und LaurahutteCompany is not in conformity with the provisions ofArticles 6 to 22 of the Geneva Convention; [p82]
(e) that the applicant Government's claim in respect of the notice of intention to liquidate the rural estates belonging to Baroness Maria Anna von Goldschmidt-Rothschild, has no longer any object;
(f) that the notice of intention to liquidate the rural estates belonging to Karl Maximilian, Prince of Lichnowsky, is not in conformity with the provisions of Articles 6 to 22 of the Geneva Convention ;
(g) that the applicant Government's claim in respect of the notice of intention to liquidate the rural estates belonging to the City of Ratibor must be dismissed, except as regards the Waldpark;
(h) that the notice of intention to liquidate the rural estates belonging to the Godulla Company is not in conformity with the provisions of Articles 6 to 22 of the Geneva Convention;
(i) that the applicant Government's claim in respect of the notice of intention to liquidate the rural estates belonging to the Duke of Ratibor must be dismissed;
(j) that the applicant Government's claim in respect of the notice of intention to liquidate the rural estates of Count Saurma-Jeltsch must be dismissed.

[294] Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-fifth day of May, nineteen hundred and twenty-six, 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) Å. Hammarskjöld,
Registrar. [p83]

[295] M. Weiss, the Vice-President, who sat in the Court throughout that portion of the extraordinary session devoted to consideration of the present case extending from February 2nd to April 15th, 1926, was compelled to relinquish his seat on April 16th by reason of illness.

[296] Lord Finlay, while agreeing in the conclusions arrived at by the Court in the present matter, desired to add the following observations in regard to the Armistice Convention of November nth, 1918, and the Protocol of Spa of December 1st, 1918.

[297] Count Rostworowski, Polish National Judge, declaring himself unable to concur in the Judgment delivered by the Court, and availing himself of the right conferred by Article 57 of the Statute, has delivered the separate opinion which follows hereafter

(Initialled) M. H.
(Initialled) A. H. [p84]

Observations by Lord Finlay.

[298] I agree with the conclusions at which the Court has arrived, and the following observations are directed merely to some of the reasons given for one of these conclusions.

[299] I had intended to deliver a dissenting judgment based on the view that, first, Poland is entitled to the benefit of the Armistice, and, second, that the first clause of the Protocol of Spa nullified the transfer by the Reich of the Chorzów factory.

[300] In preparing my judgment I reviewed the evidence bearing on this part of the case. The result of this fresh examination has been to confirm my view on the first of these two points, but not on the second.

(1) It was common knowledge that if the Allies succeeded, the independence of Poland would be one of the terms of peace. All Parties to the Armistice must have contracted with this present to their minds, and it must have been intended that Poland, whose army had been fighting on the side of the Allies as an autonomous army, should be bound by the terms of the Armistice and, when she came into existence as a recognized State, have the benefit of them. This would be a jus quœsitum, a right acquired for the new State as soon as it should come into existence. In business it is a matter of everyday practice through the machinery of trusts or otherwise to make contracts on behalf of companies not yet incorporated which take effect upon incorporation, and in my view the Allied States made the Armistice on behalf of Poland, which was about to become a State, as well as on their own behalf.
(2) But on the second of these points, the result of my further consideration has been to change my view. The paragraph in the Protocol providing for nullity of any disposition contrary to its terms is at the end of the first clause, and it should, I think, be read with reference to the language of the earlier part of that clause, which says in terms that the German Government was not to take any measure which might diminish in any way the value of the German domaine, "gage commun des Alliés pour le recouvrement des réparations auxquelles ils ont droit". [p85]

[301] The provision that any measure to the contrary should be considered as nulle et non avenue should be read as nullifying such dispositions only so far as the purpose expressed in the earlier part of the clause is concerned, viz. the preservation of the Allies'security for the payment of the amounts due for reparation. If this is so, it can have no effect for the purposes of the present case upon the transfer from the Reich to the Oberschlesische Company.

[302] I therefore agree with the conclusion at which the Court has arrived upon this portion of the case; though not with the whole of the reasoning on which that conclusion is based.

(Signed) Finlay [p86]

Dissenting Opinion by Count Rostworowski.

[Translation.]

[303] I regret that I am not able to agree with the conclusions and with certain of the reasons given in the Judgment delivered in the case concerning certain German interests in Polish Upper Silesia, and in particular with the following points ;

[304] 1. The Court, in its Judgment No. 6, dismissed the plea to the jurisdiction in the so-called case of the Chorzów factory, declared the Application to be admissible and reserved it for judgment on the merits, that is to say, for a decision above all of the dispute as to the applicability or non-applicability in the present case of the provisions of Articles 6 to 22 of Head III of the Geneva Convention, this dispute constituting the only real issue in the case. The jurisdiction which the Court held that it possessed under Article 36 of the Statute was based on Article 23, paragraph 1, of the Convention of Geneva, which, together with Articles 6 to 22 of the same Convention and Articles 92 and 297 of the Treaty of Versailles, has for effect to determine the sense of the solution to be given to the problem thus raised by the litigant Parties.

[305] The mandate conferred by the two States signatories of the Convention, far from being general and unlimited, is, on the contrary, special and circumscribed, both as regards the facts and as regards the legal principles to be applied in deciding whether these facts are or are not in conformity with them.

[306] The facts must in this case be presented in the form of acts falling within the category of acts regulated in an abstract way in Head III of the Convention, and must be examined in the light of the rules which are inscribed in the Convention.

[307] Facts not possessing the nature indicated, appear to be outside the scope of the Court's consideration, as also is the application of other legal principles, failing a common agreement between the two States, duly provided for in Article 23 which is decisive in fixing the limits of the mandate. The assertion of one of the Parties, for the purpose of interpreting these positive provisions in a wider sense, is not sufficient to overthrow the position of the other Party who relies on and holds strictly to the definite and decisive text of the mandate. [p87]

[308] The problem of the applicability of Articles 6 to 22 of the Convention can, it would seem, only be solved in so far as it is shown that the limits laid down by the genuine or presumed -but in any case common -wishes of the Parties have been observed.

[309] This leads me to think that in the present case the dispute between Germany and Poland might and should have been settled without its having been necessary to consider in detail and to give a definite decision on the legality or correctness of the acts with which the Parties charged each other, in so far as these acts were accomplished outside the special sphere delimited by Article 23 of the Convention. The extreme caution which seems to me necessary in the present circumstances is further warranted by the three following considerations :

(a) The system of the Geneva Convention consists of a very methodical division of subjects and a very ingenious distribution of international tribunals before which disputes may be brought -tribunals which are of very different class and nature, but which are directly connected -by the place which the provisions relating to them occupy in the text -with the rules of substantive law which they are called upon to respect and to cause to be respected ; each of these tribunals is enclosed in a water-tight compartment, without the power of its own accord to extend its jurisdiction or its competence over neighbouring sections.
(b) The Parties themselves were careful, by a useful or superfluous precaution, expressly to exclude the intervention of an international jurisdiction. Such is the meaning of Article 2, paragraph 2, of the Convention which, subject to the exception contained in paragraph 1, withdraws from consideration by an international tribunal, even in the case of evocation, the question whether (legislative) provisions enacted by Poland are in conformity with the stipulations of Article 1 ; and Article 1 contains at the beginning and at the end of paragraph 1 two important reserves : "In so far as the transfer of sovereignty does not involve other consequences, the provisions of substantive law which, at the date of the transfer of sovereignty, are in force in the Polish part of the plebiscite territory, will remain in force for fifteen years, subject to such modifications as may arise out of the transfer of sovereignty." The two reservations mentioned explain why Poland desired to place all classes of legislative provisions connected with the change of sovereignty outside the scope of international control. [p88]

(c) Poland was equally careful to withdraw from an international jurisdiction matters in regard to the interpretation of Article 256 of the Treaty of Versailles, as is shown in Article 4 of Head II and in Article 600 of the Convention of Geneva, and also in the documents relating to the origin of the Convention, from which it appears that the Polish Government was never willing to submit to international proceedings in this matter (Cf. the President of the Reichsgericht, Dr. Simons, in his article entitled: The International jurisdictions of the plebiscite territory of Upper Silesia-Blätter für Gesetzeskunde 1922, No. 6, page 538). In the face of an intention to the contrary so clearly expressed, it is permitted to ask whether the fact of accepting, without imperious reasons, jurisdiction over a dispute arising out of these reserved matters, as over a preliminary point, might not perhaps have for sole effect to compel Poland, by a roundabout method, to submit to what she had not of her own free will been willing to accept.

[310] In these circumstances I am all the more unable to approve of the method, adopted in the Judgment, of dealing with the legitimacy of acts standing outside the compass of Head III, seeing that, even if they were shown to be illegal, this fact would in no way render it unnecessary to return to the principal question, which still remained open, viz. the applicability of Articles 6 to 22 of the Convention.

[311] 2. In accordance with what has been previously said, the law which determines the question of applicability in the present case is exclusively found in Articles 6 to 22 of the Convention of Geneva and in Articles 92 and 297 of the Treaty of Versailles to which Article 7 relates. Its chief subject is liquidation, which we might call "Upper Silesian liquidation", and which forms only a part of the liquidation in its general sense laid down by the Treaty of Versailles. It is the latter Treaty which furnishes the essential elements and detailed rules.

[312] Head III of the Convention of Geneva cannot be separated from the trunk to which it is attached. The substance of liquidation consists, for the States authorized to apply it in relation to Germany, (1) in the right of dispossessing German nationals and companies controlled by German nationals of the object of their possession, and this solely on the ground of such nationality ; and (2) in the guarantee offered in principle to owners thus evicted of obtaining an equivalent or an indemnity in valuables not having [p89] any local connection in the country of liquidation. The detailed rules relate to the limitation of the categories of persons liable to liquidation, to the designation of those persons who must pay the indemnity and to the destination of the sums arising therefrom.

[313] Head III of the Convention of Geneva borrows from the Treaty of Versailles the essential elements of liquidation and the rules'relating to direct payment of the indemnity by the cessionary State to the owner. It adds a large number of special rules-especially as regards persons and objects liable to liquidation, procedure of liquidation, etc. Far from overthrowing this institution, which stands outside the ordinary principles of law, it retains it, while reducing it to more modest proportions. But that is precisely to what its function is confined, and especially that of Article 6, which, in its first clause, constituting a rule peculiar to Upper Silesia, indicates the limited category of persons and property subject to the liquidation system, and which, in its second clause, protects the property, rights and interests of German national from any liquidation except under this special system.

[314] I do not consider that anything can be found in this new arrangement of the internal system of liquidation, as found in Article 6, of a nature to have effected the slightest change in the working of rules, systems and institutions which are foreign to liquidation.

[315] The result could not have been different if, in Head III, liquidation in Upper Silesia had, as the German Government desired, been entirely prohibited.

[316] From the point of view of terminology it may be remarked that if, in Head III, the term "expropriation" is in preference employed, it is none the less certain that this expropriation has borrowed its whole contents from liquidation, of which it is only one particular application, and that, as is shown in the documents relating to the origin of the Convention of Geneva, the choice of this term was made in view of the indemnities payable to the owner, a fact which made this mode of liquidation similar to the institution of expropriation. But the second clause of Article 6 and the whole special structure of expropriation provided in Articles 7 to 22 are there to show that this particular expropriation has been quite unable to free itself from the bonds which attach it by the substance of [p90] liquidation to the Treaty of Versailles. Whether the expression "expropriation in the nature of liquidation" or "liquidation in the nature of expropriation" be used, the thing remains the same, the two terms "expropriation" and "liquidation" being there to explain and supplement each other. What, on the contrary, seems to me incompatible with the provisions of Head III of the Convention is that the whole idea of "liquidation" should be set aside and that, when use is made of the term "expropriation", this term should be employed in its general sense, quite apart from its most intimate connection with the very substance of liquidation.

[317] While I am happy to note that the Judgment admits that certain acts, such as expropriation for public purposes, judicial liquidation, etc., are not affected by the Convention, I regret that I cannot agree with the idea that the Convention affects either any other measures or those which general international law does not permit to be taken as regards foreigners. However worthy of all respect general international law may be, it is certain that it was not incorporated by the will of the Parties in any of Articles 6 to 22 of the Convention, and that Article 23 can in no' way serve as a basis for it.

[318] 3. The system then of Head III of the Convention is, as I have tried to show, a system of very well-defined outline and very definite in its consequences, in so far as these relate to the field of contentious procedure. I pass to the other body of facts and legal principles in regard to which a decision has to be given, whether the system of Head III is or is not applicable to it, and in the centre of which is to be found the Polish law of July 14th, 1920, introduced into Upper Silesia in 1922. This law is at the centre, for, the taking over of the Chorzów factory was only carried out in execution of that law, and, on the other hand, the law itself appears as a general measure of execution in relation to other rights and obligations of an international character connected with the change of sovereignty in the territories ceded to Poland by the German Reich. It is the application of Articles 2 and 5 of this law, according to the first German submission, which is to be considered in abstracto as a measure of liquidation within the meaning of Articles 6 and the following of the Convention of Geneva. It is further the application of the same articles in connection with the factory of Chorzów that, according to the German submission No. 2, when it speaks of the attitude of [p91] the Polish Government towards the Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke Companies, is to be declared as not in conformity with the provisions of Article 6 and the following of the Convention of Geneva.

[319] Now, between these two different systems, succession to the property of the Reich and liquidation of private property, there exists no common link. Their legal foundations are quite as different as their structure. The principal partners, Germany as ceding and Poland as cessionary State, are principally interested, without it being possible to forget the Powers concerned in the settlement of reparations. In its action Poland is endeavouring to obtain possession of Reich property which she claims as belonging to her by reason of the change of sovereignty. If individuals are affected, they are only affected accidentally, in a subsidiary and secondary manner. The differential character, so essential for the notion of liquidation, is entirely lacking here.

[320] It is sufficient to observe this in order to conclude that the facts mentioned in the German submission and placed before the Court in view of its decision, are not facts of liquidation or of liquidatory expropriation -and here I am glad to agree with the Judgment, which nowhere seems to recognize that they have that nature.

[321] It is sufficient to observe this in order to conclude further that these facts, not being facts of liquidation, cannot be considered or classified in the light of the provisions of Head III, and therefore cannot be recognized either as in conformity Or compatible, or not in conformity and incompatible, with these provisions -and here I regret I do not agree with the Judgment, which, on the contrary, seems to set out from the idea that this logical operation -apart from the notion of liquidation -would be admissible.

[322] Without entering into the details of this demonstration, I beg to dissent from it, by reason of the following general considerations:

(a) The applicability of Articles 6 to 22 of the Convention cannot, I think, be demonstrated by means of showing the incompatibility with these articles of the Polish law; for, in order to declare a measure incompatible, we must first admit, in any case in petto, that these articles are applicable. Two parallel systems may display certain differences without such differences leading to the conclusion that they are mutually incompatible.
(b) When the Judgment states that "having regard to the [p92] context of [Article 6 of the Convention], it seems reasonable to suppose that the intention was, bearing in mind the regime of liquidation instituted by the Peace Treaties of 1919, to convey the meaning that, subject to the provisions authorizing expropriation, the treatment accorded to German private property, rights and interests in Polish Upper Silesia is to be the treatment recognized by the generally accepted principles of international law", -it is permissible to see therein only a supposition which conflicts with the second clause of Article 6, which does not incorporate in Head III general international law and contents itself with prohibiting unlawful liquidation.
(c) When the Judgment states that "it is certain that expropriation is only lawful in the cases and under the conditions provided for in Article 7 and the following articles ; apart from these cases, or if these conditions are absent, expropriation is unlawful", it is permissible to ask on what notion of expropriation the Judgment is here based : is it on that of liquidatory expropriation or that of expropriation pure and simple ? For this fact is not without importance for the purpose of drawing, from the passage quoted, conclusions some of which would certainly be far distant from Article 6 of the Convention.
(d) When the Judgment, after stating that the expropriation admitted under Head III is a derogation from the rules generally applied as regards the treatment of foreigners and the respect for acquired rights, further adds : "As this derogation itself is strictly in the nature of an exception, it is permissible to conclude that no further derogation is allowed", it appears not to take account of the fact that the law concerning the treatment of foreigners is not included under Head III, and that the very principle of respect for acquired rights -apart from the derogation admitted under Head III -is pronounced under another Head -Head II -which, in itself, forms an independent body of special legal rules and contains an express reserve: "without prejudice to the provisions of Article 256 of the Treaty of Peace of Versailles".
(e) Finally, when the Judgment states that Head III contains certain prescriptions and formalities to be observed in liquidation procedure, I do not consider that it is possible to draw the further conclusion that the observation of these forms or similar forms is, [p93] by this fact alone, prescribed in other fields of international legal intercourse.

[323] 4. Passing to the last part of the Judgment, which is devoted, with reference to Head III of the Geneva Convention, to the consideration of the various international or national legal grounds on which were based, on the one hand, the Polish law of 1920 and, on the other hand, the contracts concluded on December 24th, 1919, by the Reich with the Oberschlesische Stickstoffwerke and the Stickstoff-Treuhand Gesellschaft -an argument which I regarded as not pertinent and not particularly necessary in the present case -, I confine myself to expressing my regret that I cannot associate myself either with the negative result of this examination, in relation to all the other grounds put forward by Poland, or with the positive results formulated in regard to the contracts of 1919.

(Signed) Rostworowski. [p94]

Annex I.
Decision concerning the Joinder of the Two Suits introduced successively by the German Government.(Annex I to Judgment No. 7)
5 February 1925
[Reproduced separately]

[p96]
Annex II.
Order of Court dated March 22nd, 1926.
[Reproduced separately] [p98]

Annexe III — Annex III.
DOCUMENTS SOUMIS A LA COUR PAR LES PARTIES AU COURS DE LA PROCÉDURE

DOCUMENTS SUBMITTED BY THE PARTIES DURING PROCEEDINGS.

A. — PIÈCES TRANSMISES PAR L'AGENT DU GOUVERNEMENT
ALLEMAND.

A. — FILED BY THE AGENT FOR THE GERMAN GOVERNMENT.

I. Affaire de Chorzów.

I. Chorzów.

Dr Paul Roth : Die Entsiehung des Polnischen Staates.

“Documents relatifs à l'affaire de Chorzów » :

1° Contrat du 5 mars 1915, conclu entre le Reich et les Bayerische Stickstoffwerke.
2° Fondation de la Stickstoff-Treuhandgesellschaft m. b. H., le 24 dé¬cembre 1919.
3° Augmentation du capital social de la Stickstoff-Treuhandgesellschaft, le 24 décembre 1919.
4° Fondation de la Oberschlesische Stickstoffwerke Aktiengesellschaft, le 24 décembre 1919.
5° Augmentation du capital social des Oberschlesische Stickstoffwerke, le 24 décembre 1919.
6° Contrat du 24 décembre 1919, conclu entre le Reich, les Ober¬schlesische Stickstoffwerke et la Stickstoff-Treuhandgesellschaft.
7° Correspondance relative à la continuation de la direction par les Bayerische Stickstoffwerke de l'exploitation de l'usine.
8° Transfert du siège social des Oberschlesische Stickstoffwerke, le 14 janvier 1920.
9° Reprise par la Stickstoff-Treuhandgesellschaft des actions des Ober¬schlesische Stickstoffwerke contre cession à la Stickstoff-Treuhandgesell-schaft des dettes des Oberschlesische Stickstofiwerke, le 17 mai 1920.
10° Modification statutaire des Oberschlesische Stickstoffwerke concer¬nant la transaction du 17 mai 1920 (n° 9).
11° Assemblée générale des Oberschlesische Stickstoffwerke relative au changement de l'année financière, le 21 juillet 1920.
12° Contrat du 25 novembre 1920, conclu entre la Stickstoff-Treuhand-gesellschaft et les Bayerische Stickstoffwerke.
13° Assemblée générale des Oberschlesische Stickstoffwerke relative au bilan, le 7 janvier 1922.
14° Inscription du Fisc polonais aux registres fonciers.
15° Reprise de l'Usine par le délégué du Gouvernement polonais.
16° Offre de vente d'actions des Oberschlesische Stickstoffwerke. [p 99]

« Documents relatifs à la genèse des dispositions de la Convention de Genève concer¬nant la liquidation» :
1. Extraits des procès-verbaux de la Commission X de la Conférence à Beuthen:

1° 3me séance, le 13 décembre 1921 ;
2° 4me séance, le 14 décembre 1921 ;
3° 5me séance, le 3 janvier 1922.

II. Résultat des négociations de Beuthen.
III. Consultation de M. E. Kaufmann, à Bonn.
IV. Consultation de M. Struycken, à La Haye.
V. Consultation de M. Vaughan Williams, à Londres.
VI. Mémoire polonais du 24 février 1922.
VII. Mémoire polonais du 3 mars 1922.
VIII. Réponse allemande du ... mars 1922.
IX. Mémoire polonais du 20 mars 1922.
X. Plaidoirie du plénipotentiaire d'Allemagne, le 23 mars 1922.
XI. Réponse de M. Struycken du 3 avril 1922. XII. Mémoire allemand du 5 avril 1922.
XIII. Suggestion d'un accord par le président Calonder, le 8 avril 1922.
XIV. Extrait de la première rédaction de l'accord, le 12/13 avril 1922.
XV. Extrait de l'accord signé par les deux plénipotentiaires, le 13 avril 1922.

Annexes au Mémoire du Gouvernement allemand.

Annexes to the German Case.

Annexe 1. I. Relations juridiques, assimilées à des sociétés, créées pour l'utilisation d'une propriété littéraire.
II. Relations juridiques, assimilées à des sociétés, créées pour l'utilisation commune de biens-fonds.
III. Relations juridiques, assimilées à des sociétés, créées pour l'utilisation d'une propriété industrielle.
Annexe 2. Extrait du projet d'accord de Boulogne du 2 juillet 1920 et de l'arrangement de Spa du 16 juillet 1920.
Annexe 3. Extraits de la Convention d'armistice du 11 novembre 1918.
Annexe 4. Extraits de Mermeix, Les négociations secrètes et les quatre armis¬tices. Paris, 5me édition : Fragments d'histoire de 1914-1919.
Annexe 5. Extrait du Protocole de clôture des travaux de la Sous-Commis¬sion financière de la Commission internationale d'armistice de Spa.
Annexe 6. Extraits de Mermeix, Les négociations secrètes et les quatre armis¬tices.
Annexe 7. N° 9 : Convention entre la Grèce et la Bulgarie, relative à l'émi¬gration réciproque, signée à Neuilly-sur-Seine le 27 novembre 1919.
Annexe 8. Convention concernant l'échange des populations grecque et tur¬que.
Annexe 9. Extrait de la note allemande du 22 mai 1919. (Kraus-Rödiger, Urkunden zum Friedensvertrage von Versailles, I, pp. 268-269.)
Annexe 10. Extrait de la note allemande du 29 mai 1919. (Kraus-Rödiger, Urkunden zum Friedensvertrage von Versailles, I, p. 513.)
Annexe 11. Extrait de la note de la Conférence de la Paix du 16 juin 1919. (Kraus-Rödiger, Urkunden zum Friedensvertrage von Versailles, I, pp. 651-654; p. 659.) [p100]
Annexe 12. Extrait du rapport du 20 mars 1919, présenté par Norman H. Davis, R. Hon. E. S. Montagu et M. Louis Loucheur. (Germain Calmette, Recueil de Documents, pp. 78-79.)
Annexe 13. Extrait du projet américain, présenté le 25 mars 1919 au Prési¬dent Wilson par Norman H. Davis. (Germain Calmette, Recueil de Documents, p. 85.)
Annexe 14. Extraits de l'avant-projet des clauses financières à imposer à l'Allemagne, présenté, par M. L. Klotz au Conseil suprême le 28 mars 1919. (Klotz, De la Guerre à la Paix, pp. 213 et suiv.)
Annexe 15. Extrait du rapport sténographique d'une séance tenue par le Président Wilson et les membres et experts de la délégation américaine le 3 juin 1919.
Annexe 16. Extrait de la note de la Conférence de la Paix du 16 juin 1919. (Kraus-Rödiger, Urkunden zum Friedensvertrage von Versatiles,I, pp. 659-660.)
Annexe 17. Germain Calmette, Recueil de Documents, pp. XXVIII-XXIX.
Annexe 18. Extrait de l'exposé historique de la question de Haute-Silésie, transmis par le président du Conseil suprême, le 29 août 1921.
Annexe 19. Extrait de la Recommandation du Conseil de la Société des Nations, transmise au Conseil suprême des Principales Puissances alliées le 12 octobre 1921.
Annexe 20. Extrait de la Décision de la Conférence des Ambassadeurs du 21 octobre 1921.
Annexe 21. Tribunal arbitral mixte germano-polonais. Cause n° 1233.
Annexe 22. Abkommen zwischen der Deutschen Regierung und der Tschechoslowakischen Regierung über die Anwendung des Artikels 297 des Friedensvertrages von Versailles. (Reichsgesetzblatt 1920, pp. 2279 et suiv.)

« Documents supplémentaires pour l'affaire concernant certains intérêts allemands en Haute-Silésie polonaises. »

I. Extrait de Masaryk, Die Weltrevolution.
II. Conventions de Trèves relatives aux prolongations de l'armistice.
III. Arrêt du Tribunal arbitral mixte germano-belge du 20 juillet 1925.
IV. Certificat d'option du Fürst Lichnowsky.
V. Extrait du Traité conclu entre le Reich et la Tchécoslovaquie au sujet des questions de nationalité.
VI. Actes et documents de la Conférence germano-polonaise.
VII. Extrait du dossier de l'affaire Marie-Anne von Goldschmidt-Rothschild contre État polonais.
VIII. Certificat du Reichspatentamt concernant la marque de fabrique des
Reichswerke.
IX. Acte de fondation du Stickstoffsyndikat en date du 8 mai 1919.
X. Documents relatifs à la participation des Bayerische Stickstoffwerke
à la Berufsgenossenschaft der chemischen Industrie.
XI. Contrats relatifs à l'usine de Chorzów.
XII. Documents concernant la direction et l'exploitation de l'entreprise.
XIII.Négociations concernant le maintien des contrats conclus avec des
fonctionnaires et employés de l'entreprise de Chorzów lors de l'arrêt
de l'exploitation en septembre-octobre 1919.
XIV.Extraits des notes de la délégation allemande relatives aux négocia-¬
tions concernant la question des liquidations en Haute-Silésie polonaise
du 8 au 13 avril 1921. [p101]
XV. Extrait de Karl Wieland, Hanâelsrecht.
XVI. Message du Conseil de Régence en date du 14 novembre 1918.
XVII. Comte Michael Rostworowski, La Question polonaise et sa solution juridique (extrait).
XVIII. Blociszewski, La Restauration de la Pologne et la diplomatie européenne (extrait).

B. — PIÈCES DÉPOSÉES PAR L'AGENT DU GOUVERNEMENT
ALLEMAND.

B. — PRODUCED IN COURT BY THE AGENT FOR THE GERMAN GOVERNMENT.

I. Affaire de Chorzów.

I. Chorzów.

Certificat d'enregistrement de la marque de fabrique des Oberschlesische Stickstoffwerke.
Extraits n° 3, mars 1904 ; n° 5, mai 1909 ; n° 7, juillet 1916 ; n° 13, juillet 1925, du Warenzeichenblatt édité par le Reichspatentamt.
Reichsbesteuerungsgesetz du 15 avril 1911 (Reichsgesetzblatt, p. 187).
Vollmacht, signée : Goldkuhle ; datée : Berlin, le 23 décembre 1919.
N° 2304 des Notariatsregisters für 1919, signé : Dr. Meidinger ; daté : Berlin, le 24 décembre 1919.
N° 2307 des Notariatsregisters für 1919, signé : Dr. Meidinger ; daté : Berlin, le 24 décembre 1919.
N° 2309 des Notariatsregisters für 1919, signé : Dr. Meidinger ; daté : Berlin, le 24 décembre 1919.
Vertrag zwischen :

der Vereinigte Industrie-Unternehmungen A.-G. ;
der Bayerische Stickstoffwerke A.-G. ;
der Mitteldeutsche Stickstoffwerke A.-G. ;
der Bayerische Kraftwerke A.-G., du 24 décembre 1923.

Quatrième original du contrat de vente des Reichstickstofiwerke, Chorzów, du 24 décembre 1919.
Schlussnoten concernant le versement du droit de timbre pour le transfert des actions des Oberschlesische Stickstoffwerke.
Acte de fondation de la Deutsche Werke A.-G., du 4 décembre 1919.
Procès-verbal d'une Assemblée générale de la Deutsche Werke A.-G., tenue le 16 janvier 1920.
Procès-verbal d'une Assemblée générale de ladite Société en date du 21 dé¬cembre 1921, avec annexes.
Déclarations tenant lieu de serment, déposée le 26 février 1926 par M. le Dr Edgar Landauer, conseiller supérieur de Gouvernement en disponibilité, ancien rapporteur au Reichsschatzministerium et actuellement directeur de la Vereinigte Industrieunternehmungen A.-G.
Contrat conclu entre le Reich et les Bayerische Stickstoffwerke A.-G., le 24 octobre 1919 et pendant la période suivante, concernant l'élargissement des usines en Bavière, le projet de la fondation des Bayerische Kraftwerke et le contrat de l'exploitation y relatif. [p102]
Actes et contrats concernant l'usine de Piesteritz.
Contrat de construction et d'exploitation, du 21 mars 1922, concernant les usines en Bavière et de l'Allemagne centrale.
Texte du dernier rapport du Conseil de direction de la Vereinigte Industrie-unternehmungen A.-G.

II. Affaires des grands fonds.

II. Large Rural Estates.

a) Pièces. — Documents.

Tableau récapitulatif fournissant des indications sur les grands fonds qui ont fait l'objet d'une notification.
Gazeta urzedowa Wojewödztwa Slaskiego, n° du 9 janvier 1925.
Commission de conciliation en matière de nationalité pour la Haute-Silésie — Procès-verbaux des 15 et 30 janvier 1926.
Statuts de la Société Vereinigte Königs - und Laurahütte.
Volume intitulé : Ueber die in Oberschlesien beim Abbau mit Spülversatz beobachteten Erdsenkungen. (XII. Allgemeiner Deutscher Bergmannstag in Breslau 1913).
Volume intitulé : Der gegenwärtige Stand des Spülversatzverfahrens in Ober¬schlesien. (XII. Allgemeiner Deutscher Bergmannstag in Breslau 1913).
Copie d'une lettre, en date du 10 octobre 1901, adressée au Repräsentanten-Kollegium der Bergwerksgesellschaft Georg von Giesche's Erben, Breslau, et signée « Bernhardi ».
Volume intitulé : Zeitschrift des Oberschlesischen Berg- and Hüttenmännischen Vereins. Dr. Hans Volk. 39me année, août 1900.
Jahres-Rechnung vom Gut Mokrau für die Wirtschaftsjahre 1920/21, 1921/22, 1922/23, 1923/24, 1924/25.
Jahres-Rechnung vom Wirtschaftsamt Ruda für das Wirtschaftsjahr 1924/25 (für eine Zeit vom 1/7/24 bis 30/6/25).
Volume intitulé : Die Milchversorgung norddeutscher Städte und Industrie-gebiete (1914).

b) Cartes et -plans. — Maps and Plans.

Extraits de la matrice cadastrale de Rybnik, relatifs aux domaines de la Ville de Ratibor.
Plans relatifs à certains domaines ruraux :
Besitz der Godulla Aktiengesellschaft im Jahre 1924 im Orzischer Revier.
Art. der Bewirtschaftung des Grundbesitzes der Godulla A.-G. im Jahre 1924.
Uebersichtskarte von dem Gräflich Ballestrem'schen Besitz in Ruda.
Kreis Swientochlowice.
Grund- und Grubenbesitz der Vereinigte Königs- und Laurahütte (deux cartes).
Domaines de la Ville de Ratibor (deux cartes).
Trois plans relatifs aux domaines de la Société Giesche.
Profil durch das Rittergut Mokre.
Uebersichtskarte des Rittergutes Mokre.
Profil A in der Achse der Ruda'er Mulde. [p103]
Stkbgw. cons. Brandenburg. Stkbgw. Neucons Paulus Hohenzollern Schaff-gotsch-Scht.
Stkbgw. Wolfgang u. Graf-Franz. Wetter-Scht. III.
Calques (coupes). — Drawings (sections):
Georg-Flöz, Veronika-Flöz, Einsiedel-Flöz, Gerhard-Flöz, Schuckmann-Flöz, Heinitz-Flöz, Reden-Flöz, Pochhammer-Flöz, Jakob-Flöz, Antonie-Flöz, Sonnenblume-Flöz.

C. — PIÈCES TRANSMISES PAR L'AGENT DU GOUVERNEMENT
POLONAIS.

C. — FILED BY THE AGENT FOR THE POLISH GOVERNMENT.

I. Affaire de Chorzów.

I. Chorzów.

Recueil des actes diplomatiques, traités et documents concernant la Pologne.

Tome I. — Karl Lutostanski : Les partages de la Pologne et la lutte pour l'indé¬pendance.
Tome II. — Stanislas Filasiewicz : La Question polonaise pendant la guerre mon¬diale.

Annexes au Contre-Mémoire du Gouvernement polonais.
Annexes to the Polish Counter-Case.

Annexe 1. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 183, n° 97) — 4 juin 1917, Paris — Décret de M. Poincaré, Président de la République française, relatif à la création en France d'une armée polonaise.
Annexe 2. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 535, n° 257) — 28 septembre 1918, Paris — Accord entre le Gouvernement de la République française et le Comité national polonais, concernant le Statut de l'armée polonaise.
Annexe 3. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 560, n° 267) — 11 octobre 1918, Foreign Office — Note de M. Balfour, ministre des Affaires étrangères de Grande-Bretagne, communiquant au comte Sobanski, représentant du Comité national polonais à Londres, la reconnaissance de l'armée polonaise comme armée autonome, alliée et belligérante, par le Gouvernement britannique.
Annexe 4. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 562, n° 268) — 12 octobre 1918, Rome — Note de M. Sonnino, ministre des Affaires étrangères d'Italie, à M. Skirmunt, représentant du Comité national polonais à Rome, lui communiquant la reconnaissance de l'armée polonaise comme armée autonome, alliée et belligérante, par le Gouvernement italien.
Annexe 5. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 575, n° 277) — 1er novembre 1918, Washington — Note de M. Lansing, secrétaire d'État aux Affaires étrangères des États-Unis d'Amérique, à M. Dmowski, président du Comité [p104] national polonais, l'informant de la décision du Gouvernement de Washington de reconnaître l'armée polonaise comme armée autonome et belligérante.
Annexe 6. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 584, n° 286)—30 novembre 1918, Foreign Office — Note de M. Balfour, ministre des Affaires étrangères britannique, à M. Pichon, ministre des Affaires étrangères de France, annon¬çant la décision du Gouvernement de la Grande-Bretagne de ne pas reconnaître le Comité national polonais comme Gouverne¬ment de fait.
Annexe 7. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 584, n° 285) — 30 novembre 1918, Foreign Office — Note de M. Balfour, ministre des Affaires étrangères de Grande-Bretagne, adressée à M. Sobanski, représentant du Comité national polonais auprès du Gouvernement britannique, au sujet de la participation d'un délégué polonais aux délibé¬rations de la Conférence interalliée relatives à la Pologne.
Annexe 8. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 589, n° 290) — 29 décembre 1918, Paris — Discours prononcé à la Chambre des députés française par M. Pichon, ministre des Affaires étrangères de France.
Annexe 9. Stanislas Filasiewicz : La Question polonaise pendant la guerre mondiale (p. 590, n° 291) — 15 janvier 1919, Paris — Note de M. Pichon, ministre des Affaires étrangères de France, à M. Piltz, délégué du Comité national polonais auprès du Gouver¬nement français, Iui communiquant que la Pologne pourra se faire représenter par deux délégués à la Conférence interalliée des préliminaires de paix.
Annexe 10. Convention additionnelle d'armistice du 16 février 1919.
Annexe 11. Rapport du Service financier de la Commission des Répara¬tions, en date du 19 février 1921.
Annexe 12. Lettre du président de la Conférence des Ambassadeurs à M. le comte Zamoyski, ministre de Pologne à Paris, datée de Paris, le 10 mars 1922.
Annexe 13. Extrait tiré de la Chemiker Zig., n° 19, 14 février 1922.
Annexe 14. Rapport du secrétaire général du Bureau d'informations à Berlin, à la Commission des Réparations (Service d'information), Paris, daté de Berlin, le 5 août 1920.
Annexe 15. Document en date du 14 mai 1917, signé par le ministre du Reichsschaizamt et par la Direction des Reichsstickstoffwerke de Chorzów.
Annexe 16 a. Lettre en date du 19 octobre 1918, émanant des R. St. W. de Chorzów.
Annexe 16 b. Lettre en date du 7 octobre 1918, émanant des R. St. W. de Chorzów.
Annexe 17 a. Lettre en date du 9 novembre 1918, adressée aux R. St. W. à Chorzów.
Annexe 17b. Lettre datée de Sosnowice, le 9 janvier 1918, adressée par le Kaufmännisches Büro des Kaiserl. Deutschen Kreischefs des Kreises Bendzin, aux R. St. W. à Chorzów.
Annexe 17c. Lettre datée de Chorzów, le 27 mars 1917, adressée par la Bauamt Reichswasserleitung au Regierungsbaumeister Schaefer, Betriebsdirektion R. St. W., à Chorzów.[p105]
Annexe 17 d. Lettre datée de Altwasser i/Schl., le 11 octobre 1918, adressée par la Wilhelmshütte A.-G. fur Maschinenbau und Eisengiesserei, aux R. St. W. à Chorzów.
Annexe 18 a. Lettre datée de Berlin, le 2 mai 1918, adressée par les R. St. W., Geschäftsführung : B. St. W. A.-G. Abteilung Reichswerke, au Werkvorstand der Reichswerke à Chorzów.
Annexe 18 b. Lettre datée de Berlin, le 28 septembre 1918, adressée par les R. St. W., Geschäftsführung : B. St. W. A.-G. Abteilung Reichs¬werke, Werkvorstand der R.St. W. à Chorzów.
Annexe 18 c. Lettre datée de Berlin, le 24 décembre 1918, adressée par la Zentrale (Betriebsleitung, Chorzów), aux R. St. W. Geschäftsführung : B. St. W. A.-G. Abteilung Reichswerke.
Annexe 18 d. Idem, le 18 juin 1919.
Annexe 19. R. St. W. Chorzów O/S. — Circulaire n° 93 en date du 8 février 1918.
Annexe 20 a. Accord daté de Chorzów le 18 mars 1918, entre le Reichskanzler (Reicksschatzamt) et le Gouvernement général de Var¬sovie.
Annexe 20 b. Contrats des 25 et 31 janvier 1919 entre la Staatliche Bergwerksdirektion et la B. St. W. A.-G.
Annexe 20 c. Contrats des 20 décembre 1919 et 9 février 1920 entre le Fiskus des Deutschen Reiches et le Preussischen Bergfiskus.
Annexe 21. Patentgesetz und Gesetz, betreffend den Schutz von Gebrauchsmustern. Systematisch erläutert von Dr Hermann Isay, Rechtsanwalt am Kammergericht und Privatdozent an der Technischen Hochschule Charlottenburg. Dritte Auflage, Berlin 1920 (p. 263).
Annexe 23. Protokoll aufgenommen am 3. Juli 1922 in der Direktion der O. St. W. A.-G. in Chorzów.
Annexe 24. VI. Die internationalen Instanzen für das Oberschlesische Abstimmungsgebiet (Art. 562-606. Schlussprotokoll Art. XXIII) vom Reichsgerichtspräsident Dr. Simons. Blätter für Gesetzeskunde, n° 6. Ausgegeben Berlin, Anfang August 1922 — p. 538.
Annexe 25. Conférence de la Paix — Rapport de la Commission financière, Actes de la Conférence, Partie IV (p. 36) — Annexe au P.-V. 6.
Annexe 26. Notes du Service juridique en dates des 19 novembre 1920, 17 février 1921 et 7 avril 1922, relatives à l'aliénation par l'Allemagne d'une usine d'État en Haute-Silésie.
Annexe 27. Conférence de la Paix — Rapport de la Commission financière (extrait).
Annexe 28. Lettre en date du 24 août 1921, adressée par le Service d'enre¬gistrement de la Commission des Réparations à la K regslastenkommission.
Annexe 29. Tribunal arbitral mixte germano-polonais, cause n° 18.
Annexe 30. Compte rendu par la délégation du Royaume des Serbes, Croates et Slovènes à la Conférence de la Paix, des travaux de la Section économique, financière et des communications — Paris, 1919.
Annexe 31. Arbitrage entre la Commission des Réparations et le Gouver¬nement allemand (Extrait de la 25me audience du 11 février 1924).
Annexe 32. Journal des lois de la République de Pologne (n° 67, p. 600) — Loi du 3 août 1922.[p106]

Annexes à la Duplique du Gouvernement polonais.

Annexes to the Polish Rejoinder.

Annexe 1. Journal des lois de la République de Pologne. — N° 46, du 22 juin 1922.
Annexe 2. Résumé d'une Conférence convoquée par M. Calonder, le 9 avril à 11 heures, à l'Hôtel Beau-Rivage.
Annexe 3. Lettre en date du 31 mai 1918, adressée par la B. St. W. au Président du Kreisaussckusses des Landkreises Kattowitz, Kattowitz.
Annexe 4. Circulaire du Staatssekretär des Reichsschatzamts, datée de Berlin le 13 mai 1916.
Annexe 5. Lettre datée de Berlin, le 5 novembre 1919, adressée par la B. St. W. A.-G. Zentrale, aux R. St. W. Geschäftsführung : B. St. W. A.-G. Abteilung Reichswerke.
Annexe 6. Moniteur polonais : n° 206, du 18 novembre 1918 (Partie offi¬cielle). Extrait.
Annexe 7. Moniteur polonais : n° 207, du 19 novembre 1918 (Partie offi¬cielle). Extrait.
Annexe 8. Moniteur polonais : n° 206, du 18 novembre 1918 (Partie offi¬cielle). Extrait.
Annexe 9. Moniteur polonais : n° 230, du 16 décembre 1918 (Partie offi¬cielle) . Extrait.
Annexe 10. Convention concernant la protection réciproque des intérêts en rapport avec la retraite des troupes allemandes des terri¬toires du groupe Kieff et de la 10me armée.
Annexe 11 a. Rapport en date du 14 janvier 1920 de la Kriegsamtstelle Düngerreferat, Breslau.
Annexe 11 b. Lettre datée de Myslowitz, le 4 avril 1920, adressée par le Hauptzollamt aux R. St. W. à Chorzów.
Annexe 11 c. Lettre datée de Kattowitz, le 18 juillet 1921, adressée par l'Oberschlesische Berg- und Hüttenmännischer Verein, E. V., aux R. St. W., à Chorzów.

II. Affaires des grands fonds.
II. Large Rural Estates.

Annexes au Contre-Mémoire du Gouvernement polonais.

Annexes to the Polish Counter-Case.

Annexe 33. Lettre datée de Kattowitz, le 19 janvier 1925, adressée par la Giesches A.-G. à M. le président de l'Office principal de liquidation, à Varsovie.
Annexe 34. Lettre en date du 5 octobre 1925, adressée par l'Office principal de liquidation à l'Administration apostolique de la Haute-Silésie, à Kattowitz. [p107]

D. — PIÈCES DÉPOSÉES PAR L'AGENT DU GOUVERNEMENT POLONAIS.

D. — PRODUCED IN COURT BY THE AGENT FOR THE POLISH GOVERNMENT.

I. Affaire de Chorzów.

I. Chorzów.

Procès-verbal de la séance de la iome Commission. Extrait daté de Beu-then le 9 décembre 1925.

II. Affaires des grands fonds.

II. Large Rural Estates.
Extraits du Monitor Polski, n° 7, 11 janvier 1926, et n° 17, 22 janvier 1926.
Lettre datée de Varsovie le 19 janvier 1926 et adressée par l'Office princi¬pal de liquidation à la Direction de la Société Georg von Giesche's Erben à Katowice.
Lettre datée de Varsovie le 19 janvier 1926, adressée par l'Office principal de liquidation à la Direction de la Vereinigte Königs- und Laurahütte A.-G. à Berlin.
Tableau récapitulatif fournissant des indications sur les grands fonds qui ont fait l'objet d'une notification.
Notification, datée de Katowice le 19 décembre 1924. signifiée à la Ville de Ratibor.

E. — PIÈCES TRANSMISES SUR DEMANDE DE LA COUR PAR LA COMMISSION DES RÉPARATIONS.

E. — FORWARDED BY THE REPARATION COMMISSION AT THE REQUEST OF THE COURT.

Droit pour la Commission des Réparations d'interpréter les articles qu'elle est chargée d'appliquer. (Avis du Service juridique n° 128.)
Vente des usines de Chorzów et de Piesteritz (Avis du service juridique n° 130 ter).
Deutsche Kriegslastenkommission. Déclaration du Gouvernement allemand en date du 15 septembre 1920. Z 581 et 581a.

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