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[1] The President of the
Permanent Court of International Justice,
[2] Having regard to Article 48 of the Statute of the Court;
[3] Having regard to the Application instituting proceedings dated November
25th, 1926, filed with the Registry of the Court on November 26th, 1926, on
behalf of the Belgian Government bringing before the Court a suit in regard
to the denunciation by the Chinese Government of the Treaty concluded on
November 2nd, 1865, between Belgium and China;
Having regard to the Order indicating measures of protection made on January
8th, 1927;
[4] Whereas, by a communication dated February 3rd, 1927, the Agents of the
Belgian Government before the Court in this suit have informed the Court
that, the Chinese Minister for Foreign Affairs having declared the Chinese
Government to be willing to apply to Belgium as a provisional régime a
certain specified treatment, the Belgian Minister at Peking has accepted
this proposal on behalf of the Belgian Government;
[3] Whereas the agreement which is said to have been concluded will comprise
the following treatment:
(1) Adequate protection will be granted to Belgian subjects, including
missions, and to their property and vessels, in accordance with the rules of
international law;
(2) The customs tariff at present applied to other countries will also be
applied to merchandise imported into China from Belgium or exported from
China to Belgium;
(3) Civil and criminal suits in which Belgian nationals are implicated will
be heard by the modern courts only, with the right of appeal, Belgian
subjects being authorized to obtain the assistance of advocates and
interpreters of Belgian or other nationality, duly approved by the courts;
[4] Whereas the aforesaid Agents have, on behalf of the Belgian Government,
formally requested the President of the Court to revoke the abovementioned
Order of January 8th, 1927;
[5] Whereas they have indicated that a decision by the President revoking
the abovementioned Order would be in accordance with the wish of the Chinese
Government; [p10]
[6] Considering that there is no question in this case of an agreement
regarding the settlement; of the dispute under the terms of Article 61,
paragraph I, of the Revised Rules of Court, since the Chinese Government has
addressed no communication to the Court either in regard to the
abovementioned treatment or conveying a desire for the revocation of the
Order in question;
[7] Considering that the present suit has been brought by unilateral
application and that, as the time allowed for the filing of the Counter-Case
has not expired, the Respondent has not had an opportunity of indicating
whether he accepts the Court's jurisdiction in this case;
that, in these circumstances, there is nothing to prevent the Applicant,
subject to the decision of the Court, from modifying his original
submissions;
[8] Considering that it is Belgium which, by proposing in its Application
instituting proceedings the indication of measures of protection and by
developing that proposal in its Case, has caused the Court to consider
whether circumstances required the indication of such measures in this case;
that, as set out in the grounds for the Order of January 8th, 1927, the aim
of that Order is exclusively to safeguard certain rights which Belgium might
be entitled to assert on the basis of the Treaty of November 2nd, 1865, if
that Treaty were held by the Court not to have ceased to be effective;
[9] Considering that the agreement which, according to the terms of the
communication received from the Agents of the Belgian Government, has been
concluded between Belgium and China, would provisionally take the place of
the régime provided for in the Treaty of 1865, in particular as regards the
rights accruing to Belgium under that Treaty, which rights it is the aim of
the Order of January 8th, 1927, to preserve until the Court shall have given
its final judgment;
that, consequently, the aforesaid Treaty would provisionally cease to be
operative as regards these rights, which could not, therefore, no matter
what the tenor of the Court's final judgment may be, serve as a basis for
any claim enforceable at law and put forward on the ground of some violation
of these rights during the period for which the new regime agreed upon
between the Parties might be applicable; [p11]
that, furthermore, a unilateral declaration by the Belgian Government to the
same effect, which should be regarded as a modification of that Government's
original submissions, would suffice, were it accepted by the Court, to
produce the same result;
[10] Considering that, under these conditions, the new fact brought to the
knowledge of the Court by the abovementioned communication from the Agents
of the Belgian Government has removed the circumstances which, according to
the terms of the Order of January 8th, required the indication of measures
of protection;
[11] Considering that in the present case there are no other circumstances
independent of the legal situation created by the Parties, resulting either
from agreements concluded between them or from unilateral declarations in
regard to matters concerning which they may use their discretion, which
would point to the indication of measures of protection in the interests of
the procedure alone;
[12] Considering that measures of protection, indicated by the Court as
being for purely legal reasons rendered necessary by circumstances, cannot
be dependent, as regards their applicability, upon the position of
negotiations that may be in progress between the Parties;
that, consequently, the Order of January 8th, 1927, indicating measures of
protection can, if revoked, only be so finally and in its entirety,
[13] Declares that the Order indicating measures of protection made by him
on January 8th, 1927, shall cease to be operative.
[14] Done at The Hague, this fifteenth day of February, nineteen hundred and
twenty-seven, in four copies, one of which shall be deposited in the
archives of the Court and the others transmitted respectively to the
Government of China, to the Government of Belgium and to the Council of the
League of Nations.
(Signed) Max Huber,
President.
(Signed) Paul Ruegger,
Deputy-Registrar.
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