File E. c. XV

 

Docket XIII. 2.

 

Judgment No. 12

26 April 1928

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Sixth (Extraordinary) Session

 

Rights of Minorities in Upper Silesia (Minority Schools)

 

Germany v. Poland

Judgment

 
BEFORE: President: Anzilotti
Former President: Huber
  Vice-President: Weiss
Judges: Loder,Nyholm,Altamira
Deputy Judge(s): Yovanovitch,Beichmann,Negulesco,Wang
National Judge: Schücking, Count Rostworowski
 
REPRESENTED BY: Germany: Dr. Budding, President of the district of Marienwerder
Poland: M.J. Mrozowski, President of the Supreme Court  of Warsaw
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1928.04.26_upper_silesia.htm
  
Citation: Rights of Minorities in Upper Silesia (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 15 (Apr. 26)
Publication: Publications of the Permanent Court of International Justice Series A - No. 15; Collection of Judgments. A.W. Sijthoff’s Publishing Company, Leyden, 1928.
  
 

  

THE COURT
composed as above, [p5]
having heard the observations and conclusions of the Parties,
delivers the following judgment:

[1] The German Government, by an Application instituting proceedings filed with the Registry of the Court on January 2nd, 1928, in conformity with Article 40 of the Statute and Article 35 of the Rules of Court, has submitted to the Permanent Court of International Justice a suit concerning the exercise of the rights of minorities in connection with public schools in Upper Silesia, which rights are dealt with in Articles 74, 106 and 131 of the German-Polish Convention concerning Upper Silesia.

[2] In the original English version of the Application the Court is asked for judgment to the effect:

"that Articles 74, 106 and 131 of the German-Polish Convention relating to Upper Silesia of May 15th, 1922, establish the unfettered liberty of an individual to declare according to his own conscience and on his own personal responsibility that he himself does or does not belong to a racial, linguistic or religious minority and to choose the language of instruction and the corresponding school for the pupil or child for whose education he is legally responsible, subject to no verification, dispute, pressure or hindrance in any form whatsoever by the authorities; that any measure singling out the minority schools to their detriment is incompatible with the equal treatment granted by Articles 65, 68, 72, paragraph 2, and the Preamble to Division II". [p6]

[3] The German Government's Application was, in accordance with Article 40 of the Statute, communicated to the Polish Government on January 3rd, 1928.

[4] On January 2nd, 1928, together with the Application, the German Government had filed its Case in the suit. By an Order made on January 3rd, 1928, the President of the Court recorded the filing of the Case by the Applicant on January 2nd and fixed as follows, in accordance with Article 33, paragraph 3, of the Rules of Court, the time-limits for the filing of the subsequent documents in the written proceedings:

For the filing of the Counter-Case, by the Respondent,
Saturday, February 4th, 1928.
For the filing of the Reply, by the Applicant,
Wednesday, February 22nd, 1928.
For the filing of the Rejoinder, by the Respondent,
Saturday, March 10th, 1928.

[5] The Polish Government having asked for an extension of the time allowed for the filing of its Counter-Case, the date for the filing of this document was, by a further Order, made on February 3rd, fixed at February 20th, 1928. By the same Order, the time-limit for the filing of the Reply by the Claimant was fixed at March 1st. The Counter-Case and the Reply were duly filed on the dates thus fixed.

[6] The time allowed for the filing of the Rejoinder not having been extended, the last document of the written proceedings was filed on March 10th, 1928.

[7] Having regard to the fact that the written proceedings in this case, which was regarded as urgent, were to be concluded on March 10th, the extraordinary session, which had been convoked to enable the Court to give its advisory opinion on the question regarding the jurisdiction of the Danzig [p7] Courts before the forty-eighth Session of the Council of the League of Nations, was not declared closed before that date. The written proceedings having been concluded, the case concerning certain rights of minorities in Upper Silesia (minority schools) was on March 12th, 1928, entered in the list for the thirteenth (extraordinary) Session.

[8] In the course of hearings held on March 13th, 15th and 17th, the Court has heard the oral pleadings, reply and rejoinder submitted by Dr. Budding, President of the district of Marienwerder, Agent for the German Government, and M. J. Mrozowski, President of the Supreme Court of Warsaw, Agent for the Polish Government.
[9] Finally, the Court has had before it the additional documents enumerated in the Annex attached to this judgment.

[10] The submissions of the applicant Government are formulated in the original English version of the Case in the same terms as in the Application.

[11] In the Polish Government's Counter-Case the Court is asked:

"to dismiss the German Government's claim;

or, in the alternative, to give judgment to the effect that Articles 69, 74, 106 and 131 of the German-Polish Convention of May 15th, 1922, concerning Upper Silesia establish the freedom of every national to declare, in accordance with his conscience and on his personal responsibility, that he does or does not belong to a racial, linguistic or religious minority and also to declare what is the language of a child or pupil for whose education he is legally responsible".[p8]

[12] The submissions of the applicant Government are not amended in the Reply. On the other hand, the Respondent, in his Rejoinder, argues that the Applicant, in his Reply, has excluded the question of the interpretation of Article 69 of the Geneva Convention, and on this ground the Applicant submits that the Court "should decline jurisdiction".

[13] Furthermore, the Respondent in his Rejoinder formulates the objection already mentioned in the Counter-Case, to the effect that the case referred to the Court has already been settled by the Council of the League of Nations.

[14] The submissions of the Parties have not been substantially modified in the oral proceedings. The German Agent, however, referring to the new submissions made in the Polish Government's Rejoinder, has asked the Court for judgment on the merits in accordance with his submissions.

[15] The Polish Agent has maintained his claims in the oral proceedings, though he stated that he had not raised his objection to the jurisdiction as a preliminary objection, but that he meant it to be taken together with the merits.

The Facts.

[16] Under Article 88, paragraph 1, of the Treaty of Versailles, the inhabitants of the portion of Upper Silesia the boundaries of which are indicated in the same article, were to be "called upon to indicate by a vote whether they wished to be attached to Germany or to Poland".

[17] The plebiscite took place on March 20th, 1921, and the Conference of Ambassadors gave on October 20th, 1921, in accordance with the opinion given by the Council of the League of Nations, a decision concerning the partition of Upper Silesia between Germany and Poland and the manner in which this partition was to be carried out. This decision contains the following passages amongst others:

"II. The German and Polish Governments will conclude as early as possible….. a convention to give effect to the following provisions [FN1]:

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[FN1] Text taken from League of Nations Official Journal.
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K. Rights of Nationality and Domicile and Protection of Minorities in Upper Silesia.

[18] The Treaty with regard to the protection of minorities, etc., concluded on June 28th, 1919, between the United States of America, the British Empire, France, Italy and Japan of the one part, and Poland of the other part, shall be applicable to those parts of Upper Silesia definitely recognized as part of Poland. The principles of equity and the maintenance of the economic life of Upper Silesia demand that the German Government should be bound to accept, at least for the transitional period of fifteen years, dating from the definitive allocation of the territory, stipulations corresponding to Articles 1, 2, 7, 8, 9 (paragraphs 1 and 2), 10, 11 and 12 of the said Treaty, as regards those parts of Upper Silesia definitely recognized as part of Germany.

[19] The provisions of the agreement to be concluded between the German and Polish Governments, in order to put into force the above-mentioned principles, constitute obligations of international concern for Germany and Poland, and shall be placed under the guarantee of the League of Nations in the same way as the provisions of the Treaty of June 28th, 1919.

[20] Any petition addressed by one or more of the inhabitants of Upper Silesia to the Council of the League of Nations with regard to these provisions or to the execution of the provisions of the Treaty of June 28th, 1919, in so far as these provisions affect persons belonging to racial, religious or linguistic minorities, shall be sent to the Government in whose territory the petitioners are domiciled. This Government shall be bound to forward them, with, or without observations, to the Council of the League of Nations, for consideration.

[21] The following bodies shall be constituted to supervise the carrying out of these measures:

1. An Upper Silesian Mixed Commission, consisting of two Germans and two Poles, from Upper Silesia, and of a President of another nationality, appointed by the Council of the League of Nations.
2. An Arbitral Tribunal, entrusted with the duty of settling any private disputes which may result from the application of the convention referred to above. This Tribunal shall be composed of one arbitrator appointed by the German Government, and of one arbitrator appointed by the Polish Government. The Council of the League of Nations shall be requested to appoint the President of this tribunal. [p10]

All disputes regarding the execution and interpretation of this convention shall be settled in conformity with the provisions of this convention."

[22] The Treaty concluded on June 28th, 1919, between the United States of America, the British Empire, France, Italy and Japan, on the one part, and Poland, on the other part, is the Treaty of Minorities hereinafter quoted.

[23] The German-Polish Convention regarding Upper Silesia, negotiated in accordance with the Decision of the Conference of Ambassadors, was signed at Geneva on May 15th, 1922. The articles of this Convention which are of some importance in connection with the present case are reproduced in the

Annex.

* * *

[24] The dispute brought before the Court by the Application filed on January 2nd, 1928, by the German Government arises out of the application in practice of the provisions of the Geneva Convention concerning the protection of minorities.

[25] The history of this dispute is as follows, according to the reports adopted by the Council of the League of Nations, which have been corroborated by the statements of the Parties:

[26] During the year 1926, the Polish authorities ordered an administrative enquiry to be held in order to establish the authenticity of applications for admission to the minority schools and to ascertain whether such applications emanated from persons authorized to submit them, as also to verify the existence of the circumstances contemplated in Articles 106 and 131 of the Geneva Convention in regard to the children in respect of whom the applications had been made.

[27] As a result of the investigations, 7,114 entries of children in the registers of the minority schools were on various grounds declared null and void by the authorities, and at the beginning of the school-year 1926-1927 all pupils whose names had been struck off were excluded from attendance. In many cases police summonses were issued against parents who refused to send their children to school. A number of parents were condemned to pay fines for not complying with the law concerning compulsory attendance at school. [p11]

[28] On September 25th, 1926, the Deutscher Volksbund für Polnisch Oberschlesien sent to the Minorities Office at Katowice a petition based on Articles 149 to 157 of the Geneva Convention. In this petition, the Volksbund sought a declaration to the effect that the decisions of the Voiivode of Silesia, annulling entries in the school registers on the ground that the children entered did not belong to the linguistic minority, were illegal and also submitted that, until a decision had been given upon this petition, the Voiivode could neither "inflict penalties nor exercise measures of compulsion in respect of either the persons responsible for the education of children or of the children themselves".

[29] In accordance with Article 152 of the Geneva Convention, this petition was transmitted for his opinion to the President of the Mixed Commission with the observations of the Polish Minorities Office.

[30] In the Opinion given by him on December 15th, 1926, the President of the Mixed Commission arrived at the following conclusion [FN1]:

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[FN1] Text taken from League of Nations Official Journal
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"1. In view of Articles 75 and 131 of the Geneva Convention, the general administrative enquiry which took place in the summer of 1926 for the hearing of all parents, guardians, etc., who had entered children for the minority schools was not justified.
2. The following entries for the minority schools were wrongfully rejected:

A. All entries of children whose parents, guardians, etc., upon examination, formally expressed the desire to send their children to the German minority school irrespective of whether they stated the mothertongue to be Polish, German and Polish, or German.
B. All entries of children whose parents, guardians, etc., upon examination, made no declaration as to the school they desired their children to attend, irrespective of whether they stated the mothertongue to be Polish, German and Polish, or German. [p12]
С. All entries of children whose parents, guardians, etc., upon examination, expressed the desire to have their children taught in German and Polish, but did not specify whether they were to be taught in the German minority school or in the Polish majority school, irrespective of whether they stated the mothertongue to be Polish, German and Polish, or German.
D. The entries of the 1,307 children whose parents, guardians, etc., did not respond to the summons to appear for examination in the summer of 1926, and whose entries were annulled on this ground.

All the children included under А, В, С and D shall immediately and ex officio be admitted to the minority schools, with the exception of those who were excluded:

(a) because they did not possess Polish nationality;
(b) because they were entered by a person not legally responsible for their education;
(c) because they did not belong to the school district;
(d) because they should have attended another school;
(e) because they were no longer subject to the obligation to attend school.

The petitioner may submit special requests as regards these categories of pupils.

3. The competent authorities are requested to issue no police summonses for failure to comply with the law regarding attendance at school to parents, guardians, etc., of children who, in virtue of paragraph 2 of the present Opinion, are to be admitted ex officio to the minority schools. The authorities are also requested to withdraw the summonses already issued if the latter have not already been pronounced upon by the courts."

[31] After receiving the Opinion of the President of the Mixed Commission, the Voïvode of Silesia, on January 13th, 1927, declared that he was unable to comply with it in its entirety, though he added that he would satisfy any legitimate demands made by the German minority in Polish Upper Silesia in regard to educational matters.

[32] The Voïvode's declaration did not satisfy the Deutscher [p13] Volksbund and accordingly the latter announced its intention of appealing under Articles 149 to 157 of the Geneva Convention to the Council of the League of Nations. The Deutscher Volksbund's appeal dated January 15th, 1927, was transmitted on February 11th, 1927, through the Polish Government to the Secretary-General for submission to the Council. The Polish Government's observations regarding this appeal were submitted to the Council by a letter dated February 18th, 1927.

[33] The Council of the League of Nations considered the question at meetings held on March 5th, 8th, and 12th; one aspect of the question again came before the Council on December 8th, 1927.

[34] On March 12th, 1927, the Council adopted a Resolution which amongst other things directed the attention of the Polish Government to "the great importance of not insisting upon the measures taken by its local authorities to exclude from the minority schools the following categories of children for whom applications for admission have been received:

"1. Demands for admission invalidated because the parents, guardians, etc., did not comply with the invitation to appear at the enquiry held during the summer of 1926.
"2. Demands for admission invalidated on the grounds that the children to be admitted, whose mother-tongue was stated at the time of the enquiry to be both German and Polish, did not belong to the German minority."

[35] The Council also considered it inexpedient to admit to minority schools children who spoke only Polish. It decided to institute a system of enquiry into the concrete cases falling under the categories mentioned in 1 and 2 above which might appear doubtful to the Polish local school authorities.

[36] According to the terms of the Resolution adopted by the Council, "a similar system of enquiry might also be applied in the case of any fresh demands for the admission of children that may subsequently be received from persons legally responsible for their education, when such cases appear doubtful to the Polish local school authorities. The object of the [p14] enquiry will be to ascertain whether or not a child speaks the school language used in the minority school so that it can usefully attend that school."

[37] It was decided that the method of enquiry should be as follows: In every doubtful case the local authorities were to refer the question to the President of the Upper Silesian Mixed Commission, assisted by a Swiss national, who would be an expert in educational matters, appointed in principle by the Council of the League of Nations. If, in view of the expert's opinion as to the child's knowledge of German, the President declared that it would be useless for the child to attend the minority school, the child would be excluded from that school.

[38] This system of enquiry was also to be applied in the case of children in respect of whom the persons legally responsible for their education had declared at the enquiry of 1926 that their mother-tongue was Polish, should these persons express a desire to that effect.' In such cases, the child in question was to be allowed to enter the minority school if, in view of the expert's opinion as to its knowledge of German, the President declared that the child could usefully be admitted to that school.

[39] The Resolution in question was adopted after a discussion in the course of which the German representative pointed out that the report to the Council left open the legal question raised in connection with the case.

[40] The Polish Government, by means of a note from the Polish delegation to the League of Nations to the Secretary-General, dated October 18th, 1927, requested the Rapporteur to the Council upon the question to give a decision as to whether the system of enquiry, established by the Council Resolution of March 12th, 1927, was to be applied, in accordance with sub-paragraph 3 of paragraph II (quoted above) to 735 children of the school-year 1927-1928. This step was taken in accordance with paragraph IV of the above-mentioned Resolution, which runs as follows:

"Any question concerning the execution of the above provisions which the Polish Government or the President of the Mixed Commission may desire to have investigated shall, for greater convenience, be definitely settled by the [p15] Rapporteur to the Council unless the Rapporteur considers it necessary to refer it to the Council."

[41] It appears from the reply of M. Urrutia, the Rapporteur to the Council, that he considered that the system of enquiry instituted by the Resolution of March 12th, 1927, was applicable to the 735 children referred to in the Polish Note of October 18th, 1927.

[42] As the Rapporteur pointed out at the Council meeting of December 8th, 1927, this opinion did not prejudge any decision which the Council itself might be called upon to take in regard to the children of the school-year 1927-1928.

[43] At the same meeting, the German representative explained that the decision taken by the Council in March, 1927, had been regarded by him as applying solely to the children of the 1926-1927 class. He observed that there was a divergence of opinion amongst the Members of the Council in regard to this point, and held that the time had come finally to clear up the legal questions of principle governing the admission of children to German minority schools. Accordingly, since the dispute was one of a legal nature, he stated that it was now his intention to apply to the Permanent Court of International Justice for an interpretation of the relevant clauses of the Geneva Convention.

[44] The Council noted the statement of the German representative with the observation that it was understood that the examinations then proceeding of children belonging to the school-year 1927-1928 would continue. The decision to be given by the Court would determine whether children who, as a consequence of these examinations, might be transferred to the Polish school, should finally be admitted to the minority schools.

* * *

[45] In his oral address to the Court, the Agent for the German Government also alluded to the report concerning a new petition made by the Deutscher Volksbund of Polish Upper Silesia, which report was adopted by the Council of the League of Nations on March 7th, 1928. [p16]

[46] By means of a petition dated January 30th, 1928, and addressed directly to the Council of the League of Nations under Article 147 of the Geneva Convention, the Deutscher Volksbund submitted to the Council a question relating to the establishment of a minority elementary school in the school district of Biertultowy, in Polish Upper Silesia. In the observations submitted by it on March 1st, 1928, in regard to this petition, the Polish Government expressed the opinion that the main question raised in the petition, namely, the question concerning the opening of the minority school of Biertultowy, could not usefully be considered by the Council at the moment, since it was bound up with the question of the interpretation of Articles 106 and 131 of the Geneva Convention and the interpretation of these articles was then the subject of proceedings before the Permanent Court of International Justice at The Hague. The Deutscher Volksbund having pointed out that, prior to its direct appeal to the Council, it had submitted its petition to the Polish Office of Minorities at Katowice in accordance with the procedure laid down in Articles 149 to 157 of the Geneva Convention, but had been unable to obtain any answer concerning the action taken in regard to that communication, the Polish Government further explained that the reason why it had not hitherto seen fit to forward the appeal in question to the Council was simply because it held that the question forming the subject of the petition could not usefully be considered by the Council for the time being.

[47] The Council noted this statement of the Polish Government and decided to postpone consideration of the question concerning the creation of the minority school at Biertultowy until the Permanent Court of International Justice had given its decision upon the German Government's Application of January 2nd, 1928, to which the Polish Government had made reference. [p17]

The Law.

I.

[48] Article 72 of the Geneva Convention is as follows [FN1]:

(Article 12 of the Minorities Treaty of June 28th, 1919.)

1. - L'Allemagne agrée que, dans la mesure où les [p18] stipulations des articles précé¬dents affectent des personnes appartenant à des minorités de race, de religion ou de langue, ces stipulations consti¬tuent des obligations d'intérêt international et seront placées sous la garantie de la Société des Nations. Elles ne pourront être modifiées sans l'assentiment de la majorité du Conseil de la Société des Nations.
1. - La Pologne agrée que, dans la mesure où les stipulations[p18] des articles précédents affectent des persones appartenant à des minorités de rase, de religion ou de langue, ces stipulations constituent des obligations d’intérêt international et seront placées souns la grantie de la Société des Nations. Eles ne pourront être modifiées sans l’assentiment de la majorité du Conseil de la Société des Nations. Les États-Unis d’Amérique, l’Empire britannique, l’Italie et le Japon s’engagent à ne pas refuser leur assentiment à toute modification desdits articles, qui serait consentie en due forme par une majorité du Conseil de la Société des Nations.
2 - L'Allemagne agrée que tout Membre du Conseil de la Société des Nations aura le droit de signaler à l'attention du Con¬seil toute infraction ou danger d'infraction à l'une quelconque de ces obligations, et que le Conseil pourra procéder de telle facon et donner telles instructions qui paraîtront appropriées et efficaces dans la circonstance 2. - La Pologne agrée que tout Membre du Conseil de la Société des Nations aura le droit de signaler à l'attention du Conseil toute infraction ou danger d'infraction à l'une quelconque de ces obligations, et que le Conseil pourra pro¬céder de telle façon et donner telles instructions qui paraî¬tront appropriées et efficaces dans la circonstance.
3. - L'Allemagne agrée en outre qu'en cas de divergence d'opinion, sur des questions de droit ou de fait concernantces articles, entre le Gouvernement allemand et une Puis¬sance quelconque, Membre du Conseil de la Société des Na¬tions, cette divergence sera considérée comme un différend ayant un caractère internatio¬nal selon les termes de l'arti¬cle 14 du Pacte de la Société des Nations. Le Gouvernement allemand agrée que tout différend [p19] de ce genre sera, si l'autre Partie le demande, défère à la Cour permanente de Justice. La décision de la Cour permanente sera sans appel et aura la même force et valeur qu'une décision rendue en ver-tu de l'article 13 du Pacte. 3. - La Pologne agrée en outre qu'en cas de divergence d'opinion, sur des questions de droit ou de fait concernant ces articles, entre le Gouver¬nement polonais et l'une quel¬conque des Principales Puis¬sances alliées et associées ou toute autre Puissance, Membre du Conseil de la Société des Nations, cette divergence sera considérée comme un différend ayant un caractère international selon les termes de l’article 14 du Pacte de la Société [p19] des Nations. Le Gouvernement polonais agree que tout différend de ce genre sera, si l'autre Partie le demande, déféré à la Cour permanente de Justice. La decision de la Cour permanente qu'une décision rendue en vertu de l'article 13 du Pacte.


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[FN1] The English text quoted below follows the official English text of the corresponding article (12) of the Minorities Treaty.

1. Germany agrees that the stipulations in the foregoing articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations. They shall not be modified without the assent of a majority of the Council of the League of Nations.
1. Poland agrees that the stipulations in the foregoing articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations. They shall not be modified without the assent of a majority of the Council of the League of Nations. The United States, the British Empire, France, Italy and Japan hereby agree not to withhold their assent from any modification in these articles which is in due form assented to by a majority of the Council of the League of Nations.
2. Germany agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances. 2. Poland agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances.
. 3. Germany further agrees that any difference of opinion as to questions of law or fact arising out of these articles between the German Government and any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The German Government hereby consents that any such dispute shall, if the other Party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant.
3. Poland further agrees that any difference of opinion as to questions of law or fact arising out of these articles between the Polish Government and any one of the Principal Allied and Associated Powers or any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Polish Governmen thereby consents that any such dispute shall, if the other Party there to demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have thece stipulations constituent des same force and effect as an award under Article 13 of the Covenant.
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[49] Relying on paragraph 3 of this article, according to the terms of which any State being a Member of the Council of the League of Nations has the right to bring before the Court any dispute "as to questions of law or fact arising out of these articles" (that is to say, the articles which in Division I precede Article 72; see Annex), the German Government has, in its Application and in its Case, formulated the submission the terms of which have been reproduced above.

[50] This submission would seem to comprise three contentions the first two of which must be taken together and are, in the light of the discussions which have taken place before the Council of the League of Nations, designed to obtain from the Court a statement in accordance with the contention formulated before the Council by the German representative, namely, "that even a child which knows no language but Polish must be allowed admission to the minority school", and "that the decision as to which school the child is to attend depends solely upon its parents' wishes, irrespective of the language spoken by the child".

[51] The contentions comprised in the German Government's submission appear to be as follows:

(1) Articles 74, 106 and 131 of the Geneva Convention establish the unfettered liberty of any person to declare, according to his own conscience and on his own personal responsibility, that he does or does not belong to a racial, linguistic or religious minority, subject to no verification, dispute, pressure or hindrance in any form whatsoever on the part of the authorities.
(2) The above-mentioned articles also established the unfettered liberty of any person to choose the language of [p20] instruction and the corresponding school for the pupil or child for whose education he is responsible - likewise subject to no verification, dispute, pressure or hindrance in any form whatsoever on the part of the authorities.
(3) Any measure singling out the minority schools to their detriment is incompatible with the equal treatment granted by Articles 65, 68, 72, paragraph 2, and the Preamble to. Division II.

[52] The submissions of the Polish Government's Counter-Case have been set out above.

[53] It has also been remarked that in his written Rejoinder the Agent for the Polish Government submitted that the Court should decline jurisdiction and he maintained his submission in the oral proceedings, though stating that he did not raise this objection as a preliminary objection but intended it to be taken with the merits. The same applies as regards the objection to the effect that the matter had already been settled by the Council of the League of Nations.

[54] The word débouter (dismiss) in the Polish Government's main submission must be taken as possessing the meaning ordinarily attaching to it in French law; it is therefore clear that this submission relates to the merits of the suit and means that the Polish Government disputes the accuracy of the German Government's contentions and asks the Court to dismiss the claim.

[55] The terms of the alternative (éventuelle et subsidiaire) sub-mission of the Polish Government, if compared with the sub-mission of the German Government, also show that the Polish Government does not accept the German Government's contentions. The Court will later have to consider more closely the differences of opinion existing between the Parties in regard to these contentions. But it seems desirable to observe already in this connection that the following facts amongst others emerge from a comparison between the two submissions:

Poland holds that, as well as the articles quoted in support of the first two contentions of the German Government, Article 69 of the Convention must also be taken into account;
Poland does not admit that the articles in question bestow unfettered liberty on any person "to choose the language of instruction and the corresponding school for the pupil or [p21] child for whose education he is legally responsible", but only "liberty to declare what is the language of a pupil or child"; and
neither does Poland accept in its entirety the German contention regarding exemption in the exercise of these rights from any "verification, dispute, pressure or hindrance on the part of the authorities".

* * *

[56] The Court will now proceed to consider the objection to the jurisdiction formulated by the Agent for the Polish Government in his written Rejoinder. This objection is based on the following argument:

"It appears from the final observations of No. III of the Reply that the German Government excludes the question of the interpretation of Article 69 of the Geneva Convention when it says:

"No doubt can exist that Article 131, in connection with Article 74, regulates the question of admission to the minority schools exhaustively and clearly for both parts of the plebiscite district."

It is only in the Reply that the German Government defines the subject of the dispute so clearly, and this necessarily raises the question of jurisdiction. Only differences of opinion as to questions of law or fact arising out of the articles which precede Article 72, and not out of those which follow it, may be referred to the Court. The terms of paragraph 3 of Article 72 of the Convention are quite clear."

[57] In regard to this objection, the Agent for the German Government has in the first place submitted that it has been presented too late - since preliminary objections, according to Article 38 of the Rules of Court, must be made at latest in the Counter-Case. He argues that the Polish Government might very well have raised the question of jurisdiction in its Counter-Case, on the ground that the German Government had not cited Article 69 in support of its interpretation. He also denies that the German Government has adopted the standpoint that Article 69 should not be taken into consideration, but he regards this point as of no importance since he [p22] holds that the Polish Government is mistaken in its opinion that recourse may only be had to the Court for disputes concerning Articles 64 to 71.

[58] Article 38 of the Rules of Court is as follows:

"When proceedings are begun by means of an application, any preliminary objection shall be filed after the filing of the Case by the Applicant and within the time fixed for the filing of the Counter-Case.

The document submitting the objection shall contain a statement of facts and of law on which the plea is based, a statement of conclusions and a list of the documents in support; these documents shall be attached; it shall mention the evidence which the Party may desire to produce.

Upon receipt by the Registrar of the document submitting the objection, the Court, or the President if the Court is not sitting, shall fix the time within which the Party against whom the plea is directed may submit a written statement of its observations and conclusions; documents in support shall be attached and evidence which it is proposed to produce shall be mentioned.

Unless otherwise decided by the Court, the further proceedings shall be oral. The provisions of paragraphs 4 and 5 of Article 69 of the Rules shall apply."

[59] The object of this article was to lay down when an objection to the jurisdiction may validly be filed, but only in cases where the objection is submitted as a preliminary question, that is to say, when the Respondent asks for a decision upon the objection before any subsequent proceedings on the merits. It is exclusively in this event that the article lays down what the procedure should be and that this procedure should be different from that on the merits.

[60] But it does not follow from this that an objection to the jurisdiction which is not filed as a preliminary objection in the sense indicated above, can be taken at any stage of the proceedings.

[61] The Court's jurisdiction depends on the will of the Parties. The Court is always competent once the latter have accepted its jurisdiction, since there is no dispute which States entitled to appear before the Court cannot refer to it. Article 36 of [p23] the Statute, in its first paragraph, establishes this principle in the following terms:

"The jurisdiction of the Court comprises all cases which the Parties refer to it and all matters specially provided for in treaties and conventions in force."

[62] This principle only becomes inoperative in those exceptional cases in which the dispute which States might desire to refer to the Court Would fall within the exclusive jurisdiction reserved to some other authority. That, however, is not the position in the present suit; for the jurisdiction possessed by the Council of the League of Nations under Articles 147 and 149 of the Geneva Convention to decide upon individual or collective petitions, is entirely distinct from, and in no respect restricts, the Court's jurisdiction to hear and determine disputes between States. This is shown by the fact that the jurisdiction derived by the Council from these articles also covers the articles of Division I of this Part of the Convention in regard to which Article 72, paragraph 3, expressly confers jurisdiction upon the Court in the case of disputes between the States therein mentioned.

[63] The Court's position, in regard to jurisdiction, cannot be compared to the position of municipal courts, amongst which jurisdiction is apportioned by the State, either ratione materiœ or in accordance with a hierarchical system. This division of jurisdiction is, generally speaking, binding upon the Parties and implies an obligation on the part of the Courts ex officio to ensure its observance. Since in such cases the raising of an objection by one Party merely draws the attention of the Court to an objection to the jurisdiction which it must ex officio consider, a Party may take this step at any stage of the proceedings.

[64] The acceptance by a State of the Court's jurisdiction in a particular case is not, under the Statute, subordinated to the observance of certain forms, such as, for instance, the previous conclusion of a special agreement.

[65] Thus, in Judgment No. 5 the Court has accepted as sufficient for the purpose of establishing its jurisdiction a mere declaration made by the Respondent in the course of the proceedings agreeing that the Court should decide a point which, in the [p24] Court's opinion, would not otherwise have come within its jurisdiction. [And there seems to be no doubt that the consent of a State to the submission of a dispute to the Court may not only result from an express declaration, but may also be inferred from acts conclusively establishing it. It seems hard to deny that the submission of arguments on the merits, without making reservations in regard to the question of jurisdiction, must be regarded as an unequivocal indication of the desire of a State to obtain a decision on the merits of the suit. And, as the Court has already observed, the submissions of the Counter-Case aim at a decision on the merits.

[66] The Court is fully aware that the German Government submitted the Application instituting proceedings under Article 72, paragraph 3, of the Geneva Convention and, therefore, in its capacity as Member of the Council of the League of Nations, whereas, in regard to the questions submitted to the Court exclusively in virtue of the consent of the Parties, the German Government can only appear as a contracting Party to the Geneva Convention.

[67] The Court, however, holds that there is nothing in this Convention or in the principles governing the Court's jurisdiction to prevent questions not falling within the category of those in respect of which compulsory jurisdiction is established, from being submitted to the Court by agreement between the Parties, notwithstanding the fact that the suit has been brought on the basis of the clause conferring compulsory jurisdiction. The Court, in this connection, refers to what it observed in Judgment No. 5, already referred to, namely, that a dispute relating to Protocol XII of Lausanne, in regard to which no provision was made for its jurisdiction, had been validly submitted to it by virtue of the consent of the Respondent, and this was in a suit brought by the Greek Government under Article 26 of the Mandate for Palestine and in its capacity as a Member of the League of Nations. It is true that in this case the consent of the Respondent took the form of an express declaration, whereas in the pre-sent case, it only follows from the fact of having asked for a decision on the merits, without making reservations as to the question of jurisdiction. This circumstance, however, [p25] cannot, in the Court's opinion, justify a different conclusion, since there is no rule laying down that consent must take the form of an express declaration rather than that of acts conclusively establishing it.

[68] If, in a special case, the Respondent has, by an express declaration, indicated his desire to obtain a decision on the merits and his intention to abstain from raising the question of jurisdiction, it seems clear that he cannot, later on in the proceedings, go back upon that declaration. This would not hold good only if the conditions under which the declaration had been made were such as to invalidate the expression of intention, or if the Applicant had, in the subsequent proceedings, essentially modified the aspect of the case, so that the consent, given on the basis of the original claim, could not reasonably be held to apply to the claim in the form which it now assumes. And, in the Court's opinion, there is no reason for dealing otherwise with cases in which the intention of submitting a matter to the Court for decision has been implicitly shown by the fact of arguing the merits without reserving the question of jurisdiction.

[69] The Respondent seems also to share this view, a fact which appears from the manner in which he justifies, in his Rejoinder, the raising of his objection at this stage in the proceedings only. He bases his objection on the fact that the German Government in its Reply discards, as irrelevant to the case, Article 69 of the Geneva Convention; this fact, in his opinion, did not emerge so clearly from the German Case.

[70] The Court, however, does not consider that this reason is sufficient to justify the withdrawal of the consent already implicitly given. The Applicant, in his Reply, has not altered his submission in which he only cites, in support of his first two contentions, articles of the Convention following Article 72. The Counter-Case itself shows that the Agent for the Polish Government had already bestowed attention to this circumstance and that he might very well have raised the question of jurisdiction in his Counter-Case if he had wished. Instead of doing so, the Polish Government, in its Counter-Case, merely lays stress on the importance of Article 69 for the purposes of the decision on the merits of the suit, and [p26] the German Government, in its Reply, accepts this line of discussion and maintains that Article 69 constitutes an argument in support of its contentions. Even if one were disposed to regard the consent to the examination of the German submissions by the Court as depending on Article 69 being taken into consideration, this condition would thus have been fulfilled. Indeed, as will be shown later, the Court, when considering the merits, has itself taken up the standpoint that Article 69 must be taken into account, in conformity with the views expressed by the Polish Government in its Counter-Case.

[71] Furthermore, the declarations of the Polish Government which, as has already been stated, were recorded by the Council at its meeting of March 7th, 1928, also tend to indicate the significance to be attached to the fact that the Polish Government, in its Counter-Case, has replied on the merits of the suit without making any reservations.

[72] The Court, therefore, arrives at the conclusion that the Polish Government has implicitly accepted the jurisdiction of the Court to give judgment on the merits in respect of all the claims of the German Government and that the objection to the jurisdiction made in the Rejoinder cannot invalidate the acceptance which existed at the time of the submission of the Counter-Case.

[73] Moreover, even if this were not the case, the argument against the Court's jurisdiction, which is based on Article 72, paragraph 3, could have no bearing on the third contention of the German Government, in so far as that contention is based on Articles 65 and 68 of the Convention, which articles are amongst those contemplated in Article 72, paragraph 3.

[74] The Court, having established that it is competent in virtue of the acceptance of its jurisdiction by the Respondent, need not consider whether, and to what extent, the first two contentions of the German Government's submission would also fall within the scope of the jurisdiction conferred upon it by Article 72, paragraph 3, of the Geneva Convention.

[75] Nevertheless, as the German Government has expressed the opinion that the Court's jurisdiction covers disputes concerning the stipulations of Division II of Part III of the Convention, and therefore also the articles cited by it in [p27] support of its first two contentions, the Court desires to make the following observations.

[76] This opinion is based on the view that the League of Nations' guarantee, mentioned in paragraph 3 of the Preamble to Division I, also extends to the provisions of Division II.

[77] The Court is unable to accept this opinion.

[78] The Preamble in question runs as follows [FN1]:

"Whereas the Conference of Ambassadors decided, on October 20th, 1921:

1. that the Treaty with regard to the Protection of Minorities, etc., concluded on June 28th, 1919, between the United States of America, the British Empire, France, Italy and Japan of the one part, and Poland of the other part, should be applicable to those parts of Upper Silesia definitely recognized as part of Poland;
2. that the principles of equity and the maintenance of the economic life of Upper Silesia demand that the German Government should be bound to accept, at least for the transitional period of fifteen years dating from the definitive allocation of the territory, stipulations corresponding to Articles 1, 2, 7, 8, 9 (paragraphs 1 and 2), 10, 11 and 12 of the said Treaty as regards those parts of Upper Silesia definitely recognized as part of Germany;
3. that the provisions of the agreement to be concluded between the German and Polish Governments in order to put into force the above-mentioned principles, constitute obligations of international concern for Germany and Poland, and shall be placed under the guarantee of the League of Nations in the same way as the provisions of the Treaty of June 28th, 1919;

the two contracting Parties have agreed on the following provisions. ..."

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[FN1] The English text of those passages of the Decision of the Conference of Ambassadors which are reproduced in the Preamble is taken from the League of Nations Official Journal.
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[79] The object of the Preamble is to show the purpose of the provisions comprised in the first Division, and this appears clearly from its terms ("whereas the Conference of Ambassadors decided. . . . the two contracting Parties have agreed on the following provisions. . . ."). Then follow the provisions of the Division printed in parallel texts, one applying to Germany and the other applying to Poland. The provisions in Articles [p28] 65 to 72 are a repetition of those contained in the Minorities Treaty, which, in accordance with the Decision of the Conference of Ambassadors, Germany had to accept.

[80] It therefore clearly appears that it is the provisions of Division I itself which constitute the carrying out (or, according to the terms of the Preamble, "the putting into force") of "the above-mentioned principles laid down" by the Conference of Ambassadors [FN1].

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[FN1] In Annex 3 to the Recommendation made by the Council of the League of Nations and accepted by the Conference of Ambassadors, the phrase which in the English text corresponds to the phrase mettre en pratique of the French text is "put into force" (mettre en vigueur).
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[81] Had it been otherwise, it would have been possible to find elsewhere in the Convention an expression of the idea that the provisions of Article 72 - which unquestionably are there for the purpose of more precisely defining what is to be under-stood by the guarantee of the League referred to in the Preamble to Division I - should also apply to the provisions of Division II. But one searches in vain for an expression of such an idea in the Convention which, far from putting the numerous provisions of Division II on the same footing as those of Division I, draws a very marked distinction between them.

[82] It is true that the resolutions by which the Council of the League of Nations declared that it undertook the guarantee of the provisions of the Geneva Convention are so generally worded that they might lead to the supposition that it was not intended to distinguish between the provisions of the two Divisions. But such an inference cannot prevail in face of the terms of the Convention. The fact that, according to Division III, certain functions are conferred upon the Council with regard to the provisions of Division II as well, may moreover indicate that these provisions were considered as being guaranteed by the League of Nations, although in a different manner from the provisions of Division I.

[83] For these reasons, the Court is unable to accept a construction according to which the guarantee of the League of Nations as defined in Article 72 of the Geneva Convention would also extend to the provisions of Division II. [p29]

* * *

[84] The Court therefore concludes that it cannot allow the plea to the jurisdiction raised by the Polish Government. But, as has been stated above, the Agent for the Polish Government also raised the objection that, by virtue of Articles 149 and 157 of the Convention, "the matter had been settled by the Council of the League of Nations which is the final authority as regards measures to be taken", and that its "decision could not be subject to revision by the Court of International Justice".

[85] If, as the Court thinks, this objection must be understood as putting forward a plea on the ground that the German submissions could not be entertained, the Court cannot consider this plea as being well founded.

[86] The "decision" in question is the "Resolution" referred to above, which the Council adopted on March 12th, 1927, passing on an appeal made by the German Association for Polish Upper Silesia (Deutscher Volksbund für Polnisch Oberschlesien). It is consequently a resolution taken by virtue of powers conferred upon the Council by Article 149 of the Geneva Convention.

[87] The situation arising from the co-existence of these powers and of the jurisdiction conferred upon the Court by Article 72, paragraph 3, has not been defined by the Convention. But in the absence of any special regulation in this respect, the Court thinks it appropriate to recall its earlier observation, namely, that the two jurisdictions are different in character.

[88] In any case, it is clear from the discussions which took place before the Council that the latter did not wish to settle the question of law raised by the German representative and a solution to which is requested by the Application which gave rise to the present proceedings. The Resolution specifically states in paragraph V that: "The arrangement provided for in paragraphs II, III and IV above shall be regarded as an exceptional measure designed to meet a de facto situation not covered by the Convention of May 15th, 1922", and that "it shall not be interpreted as in any way modifying the provisions of that Convention". And if there were still any doubts left as to the scope of the Council's Resolution, the Council itself has dispelled them by specifically stating in the [p30] course of its meeting of December 8th, 1927, that the legal question had not been settled. On this point, the Court refers to what it has set out above.

[89] In the Counter-Case, the Agent for the Polish Government has, in respect of the third German contention, submitted observations which may be construed as making a reservation with regard to the plea that the suit could not be entertained by the Court. For he stated that he was not in a position to express any opinion with regard to the last part (the third contention) of the German submissions, because the German Government had nowhere in its Case supplied an example illustrating that contention and because, in the opinion of the Polish Government, it is not incumbent upon the courts to enunciate general principles otherwise than in regard to actual facts before them. However, the Polish Government reserves to itself the right of submitting its observations in the event of its adversary making a more precise claim and adducing concrete facts. The German Government having in its written Reply adduced certain facts which in its opinion showed the necessity for obtaining a decision by the Court in conformity with that Government's contention, the Agent for the Polish Government has not in his written Rejoinder stated anything in respect of that contention. In his pleadings before the Court, he confined himself either to putting in issue the existence of the facts invoked or to denying that these facts could be attributed to the Polish Government, or that they could be taken as demonstrating that there had been treatment of a discriminatory character to the detriment of the German minority schools in Polish Upper Silesia. There is thus no actual plea of inadmissibility for the Court to consider.

II.

[90] Before considering the case on its merits, the Court deems it necessary to establish what is the relationship existing between the provisions of Division I of the third Part of the Geneva Convention and those which are to be found in Division II of the same Part.

[91] The Court in this respect recalls the fact that the provisions of Division I are provisions the terms of which were settled, beforehand by the Conference of Ambassadors. They had to be [p31] accepted such as they were and subject to no modifications. This is clear from the Preamble to Division I and from the provision which is to be found in Article 72 under paragraph 1. These provisions constitute a separate category among the provisions relating to the protection of minorities, and subsequent provisions entered into between the contracting Parties cannot modify them or be construed as being contradictory and thus diminishing the extent of the protection provided. (See in this respect the Preamble to Division II quoted above, which declares that the provisions of this Division are adopted without prejudice to the provisions of Division I.)

[92] The final Protocol signed by the Parties on the same day as the Convention itself, by the terms of Article XV, further accentuates the fact that the provisions of Division I should not be overridden.

[Translation.]
"None of the provisions of the Convention modifies in any way the provisions of Articles 65 to 72."

[93] Article 65 confers upon some of these articles a still more predominant character when it lays down that the two contracting Parties undertake "that the stipulations contained in Articles 66 to 68 should be recognized as fundamental laws and that no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them". This provision is again repeated in Article 73 with the further addition that "the tribunals and courts of justice including administrative, military and extraordinary tribunals shall be competent to examine legislative or administrative provisions in order to ascertain whether they conflict with the stipulations of this Part".

[94] In view of the particular and predominant character of the provisions of Division I of the Convention, it follows that any construction of the provisions of Division II which would conflict with the meaning of the provisions of Division I must be excluded. The stipulations of Division II must be construed in the light of the stipulations of Division I and not the reverse. [p32]

[95] It follows from the proceedings in the present case that the Governments concerned are not in agreement as to the principle which, as regards the two portions of Upper Silesia, determines the question whether a person belongs or not to a racial, linguistic or religious minority. Basing itself upon Article 74, which prohibits the authorities from verifying or disputing "the question whether a person does or does not belong" to such a minority, Germany is of the opinion that by this article the Parties have by common agreement adopted the principle that this question must be left to the subjective expression of the intention of the persons concerned, and that this intention must be respected by the authorities even where it appears to be contrary to the actual state of facts.

[96] On the other hand, Poland considers that the question whether a person does or does not belong to one of the said minorities is a question of fact and not one of intention, and that such is the true meaning of the provisions of Division I of the third Part of the Geneva Convention, provisions which could not be modified by those of Division II of that Part. If Article 74 leads to the conclusion that the persons concerned may themselves declare whether they do or do not belong to the minorities in question, such a declaration must be in accordance with the facts. A, person who, in a manner clearly contrary to the facts, were to declare that he belongs to a minority would, in the opinion of the Polish Government, be committing an abuse which could not be tolerated.

[97] The Court is of opinion that Poland is justified in construing the Minorities Treaty (the provisions of which, subject to slight modifications of no importance in this connection, are embodied as such in Division I of the third Part of the Geneva Convention) as meaning that the question whether a person does or does not belong to a racial, linguistic or religious minority, and consequently is entitled to claim the advantages arising under the provisions which the Treaty comprises with regard to the protection of minorities, is a question of fact and not solely one of intention. The Treaty became directly operative over the whole of the territories which the Treaty of Versailles transferred from Germany to Poland. Although the Minorities Treaty does not specifically state what persons belong to a minority, it must not, therefore, be inferred that [p33] there exists a gap which must necessarily be filled by subsequent stipulations. The Treaty would fail in its purpose if it were not to be considered as an established fact that persons who belonged de facto to such a minority must enjoy the protection which had been stipulated.

[98] If this is the meaning which must be attributed to the provisions of the Minorities Treaty embodied in Division I of the third Part of the Geneva Convention with the purpose of conferring upon them the character indicated above, it does not, however, follow that the contracting Parties were unable validly to agree to extend the rights provided as regards minorities also to persons who do not in the normal course come within the conception of a minority. It would not be in conformity with a true construction of the provisions of the Minorities Treaty nor of the provisions of Article XV of the final Protocol referred to above, to consider as excluded the extension of the advantages of protection stipulated on behalf of minorities to persons who in fact do not belong to a minority. But, on the other hand, such an extension cannot be presumed. On the contrary, there is a presumption that the provisions of the Convention are in conformity with the principles underlying the Minorities Treaty.

[99] Among those of the articles of the Convention adduced by the German Government in support of its contention, Article 74 alone refers in general to the question whether a person does or does not belong to a racial, linguistic or religious minority. Article 131 solely deals with a special question, that of the language of the pupil or child.

[100] Article 74 runs as follows:

"The question whether a person does or does not belong to a racial, linguistic or religious minority may not be verified or disputed by the authorities."

[101] Does this stipulation provide a sufficient basis for the construction attributed thereto by the German Government and according to which it is a question of intention alone (the "subjective principle")? The Court does not think so.

[102] In the first place it should be observed that the article does not state in specific terms that it is a declaration by a person which is decisive as to whether such person belongs to a [p34] minority, nor that such declaration must be a declaration of intention alone and not a declaration determining what such person considers to be the de facto situation in the particular case. The prohibition as regards verification or dispute which is comprised in the article can be quite easily understood even if the construction placed upon it by Germany be rejected.

[103] There is reason to believe that, in the conditions which exist in Upper Silesia, a multitude of cases occur in which the question whether a person belongs to a minority particularly of race or language does not clearly appear from the facts. Such an uncertainty might for example exist, as regards language, where either a person does not speak literary German or literary Polish, or where he knows and makes use of several languages, and, as regards race, in the case of mixed marriages. If the authorities wish to verify or dispute the substance of a declaration by a person, it is very unlikely that in such cases they would be able to reach a result more nearly corresponding to the actual state of facts. Such a proceeding on the part of the authorities would, moreover, very easily assume in public opinion the aspect of a vexatious measure which would inflame political passions and would counteract the aims of pacification which are also at the basis of the stipulations concerning the protection of minorities.

[104] In the opinion of the Court, the prohibition of verification and dispute has as its object not the substitution of a new principle for that which in the nature of things and according to the provisions of the Minorities Treaty determines membership of a racial, linguistic or religious minority, but solely the avoidance of the disadvantages - particularly great in Upper Silesia - which would arise from a verification or dispute on the part of the authorities as regards such membership. That the principle has remained unchanged is further confirmed by Article 131, which, as will be shown below, provides for a declaration with regard to a question of fact (quelle est la langue d'un éléve ou enfant?) and not a declaration of intention.

[105] It must be admitted that the prohibition of any verification or dispute on the part of the authorities may lead to certain persons, who, in fact, do not belong to a minority, having to [p35] be treated as though they belonged thereto. That, in the opinion of the Court, is a consequence which the contracting Parties accepted in order to avoid the much greater disadvantages which would arise from verification or dispute by the authorities. If, according to what has been stated above, a declaration which clearly does not conform to the facts is to be considered as not in conformity with the Geneva Convention, it does not follow, as the Polish Government appears to maintain, that the prohibition to verify or dispute ceases to be applicable in such a case. The prohibition which is expressed in unqualified terms cannot be subject to any restriction. But it must not be inferred from this that the construction given above, according to which the declaration must on principle be in conformity with the facts, is therefore of no value. It is indeed of some importance to establish what is the situation at law.

* * *

[106] Turning, then, to the second contention advanced by the German Government, the Court recalls that this contention implies that persons legally responsible for the education of a pupil or a child have unfettered liberty "to choose the language of instruction and the corresponding school for such pupil or child, subject to no verification, dispute, pressure or hindrance on the part of the authorities".

[107] The provisions which the German Government invoked in support of the contention are, in addition to Article 74, the interpretation of which the Court has given above, Articles 106 and 131 of the Geneva Convention, the terms of which are as follows:

"Article 106.
§ 1.
1.- II sera créé une école minoritaire, sur la demande d'un ressortissant, appuyée par les personnes légalement responsables de l'éducation d'au moins quarante enfants d'une minorité de langue, à condition que ces enfants soient ressortissants de l'Etat, appartiennent a une même [p36] communauté scolaire (Schulverband - zwiqzek szkolny), aient l'âge où l'enseignement est obligatoire, et soient destinés a fréquenter ladite école.
2. - Si quarante de ces enfants au moins appartiennent à la même confession ou religion, il sera créé sur demande une école minoritaire du caractère confessionnel ou religieux demandé.
3. - Dans le cas où la création d'une école minoritaire n'est pas expédiente pour des raisons spéciales, il sera formé des classes minoritaires.

§ 2.
Il devra être donné satisfaction aux demandes mentionnées aux alinéas 1 et 2 du paragraphe premier, dans le plus bref délai possible et au plus tard au début de l'année scolaire qui suivra la demande, à condition que celle-ci ait été présentée neuf mois au moins avant le début de l'année scolaire [FN1].

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[FN1] Translation by the Registry:
Article 106.
§ 1.
1. - A minority school shall be established on the application of a national, supported by the persons legally responsible for the education of at least forty children belonging to a linguistic minority, provided that these children are nationals of the State, that they belong to the same school district (Schulverband - zwiazek szkolny), that they are of the age at which education is compulsory, and that the intention is that they should attend the said schools.
2. - If at least forty such children belong to the same denomination or religion, a minority school of the denominational or religious character desired shall be established on application.
3. - Should the establishment of a minority school be inexpedient for special reasons, minority classes shall be formed.
§ 2.
The applications mentioned in paragraphs 1 and 2 of § 1 shall be complied with as expeditiously as possible and not later than the beginning of the school-year following the application, provided that the latter has been submitted at least nine months before the beginning of the school-year.
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Article 131.

1. - Pour établir quelle est la langue d'un élève ou enfant, il sera uniquement tenu compte de la déclaration verbale ou écrite de la personne légalement responsable de son éducation. Cette déclaration ne pourra faire l'objet d'aucune vérification ou contestation de la part des autorités scolaires. [p37]
2. - Les autorités scolaires devront de même s'abstenir d'exercer toute pression, si minime qu'elle soit, ayant pour but le retrait de demandes de création d'institutions scolaires de minorités [FN1]."

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[FN1] Translation by the Registry:
"Article 131.
1. - In order to determine the language of a pupil or child, account shall be taken of the verbal or written statement of the person legally responsible for the education of the pupil or child. This statement may not be verified or disputed by the educational authorities.
2. - Similarly, the educational authorities must abstain from exercising any pressure, however slight, with a view to obtaining the withdrawal of requests for the establishment of minority educational institutions."
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[108] In order to indicate what is to be understood by "language of instruction", it is necessary to give also Article 132, which is as follows:

"Article 132.
§1.
Par langue véhiculaire ou par langue considérée comme matiére d'enseignement, on entend la langue littéraire correcte soit polonaise, soit allemande.
§2.
Là où la langue d'une minorité est la langue véhiculaire, elle Test pour l'enseignement de toutes les matières, sauf pour l'enseignement du polonais dans la partie polonaise du territoire plébiscité et pour l'enseignement de l'allemand dans la partie allemande dudit territoire, lorsque l'enseignement de ces langues fait partie du programme scolaire.
§ 3.
Les cours minoritaires de la langue de la minorité seront donnés dans cette langue .[FN2]"

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[FN2] Translation by the Registry;
"Article 132.
§1.
By language for imparting instruction or language considered as a subject of the curriculum is meant correct literary Polish or German as the case may be.
§2.
When a minority language is the language for imparting instruction, it shall be used for the teaching of all subjects except for the teaching of Polish in the Polish part of the plebiscite territory and for the teaching of German in the German part of that territory, when instruction in these languages forms part of the school curriculum.
§ 3
Minority courses in the minority language shall be given in that language."
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[p38]

[109] The Polish contention in the form in which it appears in the alternative (éventuelle et subsidiaire) submission is, on the other hand, that the persons legally responsible for the education of the pupil or child are free "to declare what is the language of the pupil or child". This contention is a negation of freedom of choice as regards language of instruction and the corresponding school. It also follows from the proceedings that Poland does not unreservedly accept that all verification or dispute by the authorities is excluded as regards the declaration.

[110] Besides the articles quoted in the German submission, the Polish Government relies on Article 69 of the Convention, the first paragraph of which should here be recalled:

1.-En matière d'enseignement public, le Gouvernement allemand accordera dans les villes et districts où réside une proportion considérable de ressortissants allemands de langue autre que la langue allemande, des facilités appropriées pour assurer que dans les écoles primaires l'instruction sera donnée dans leur propre langue aux enfants de ces ressortissants allemands. Cette stipulation n'empêchera pas le Gouvernement allemand de rendre obligatoire l'enseignement de la langue allemande dans lesdites écoles [FN1]
1. - En matière d'enseignement public, le Gouvernement polonais accordera dans les villes et districts où réside une proportion considérable de ressortissants polonais de langue autre que la langue polonaise, des facilités appropriées pour assurer que dans les écoles primaires l'instruction sera donnée dans leur propre langue aux enfants de ces ressortissants polonais. Cette stipulation n'empêchera pas le Gouvernement polonais de rendre obligatoire l'enseignement de la langue polonaise dans les-dites écoles. [p39]

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[FN1] Translation by the Registry:
1.- Germany will provide in the public educational system in towns and districts in which a considerable [p39] proportion of German nationals of other than German speech are residents, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such German nationals through the medium of their own language. This provision shall not prevent the German Government from making the teaching of the German language obligatory in the said schools. 1.- Poland will provide in the public educational system in towns and districts in which a considerable proportion of Polish nationals of other than Polish speech, are residents, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such. Polish nationals through the medium of their own language. This pro-vision shall not prevent the Polish Government from making the teaching of the Polish language obligatory in the said schools.

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[111] That Government infers that the minority language schools, classes or courses provided for by Article 105 of the Convention (see Annex) are only intended for pupils of a tongue other than Polish whose parents are also of that other tongue. The Polish Government consequently considers that the declaration provided by Article 131 for the purposes of establishing what is the tongue of the pupil or child contemplates the ascertainment of a fact and not the expression of an intention or of a wish.

[112] As regards the point whether Article 131 contemplates a declaration which ascertains a fact and not an expression of an intention or of a wish, the Court adopts the construction put upon it by the Polish Government. The terms of the article clearly bear this meaning {pour é'tablir quelle est la langue d'un élève ou d'un enfant). These terms are also completely in harmony with the terms of Article 105 (enfants d'une minorité de langue) as well as with those of Article 107 (élèves... . qui.... appartiennent à une minorité de langue). This construction is moreover in conformity with the meaning of the words dans leur propre langue used in Article 69. The Court does not find in the text of the Convention any grounds for construing Article 131 as does the German Government, as solely contemplating a declaration of intention or of a wish that the instruction of a child or pupil should be given in the minority language. On this point the Court refers also to what it has stated above in regard to Article 74.

[113] The Court having to adjudicate upon contentions submitted on the basis of the Geneva Convention, cannot attribute any particular importance to the fact that the Voiivode of Silesia, in conformity with an opinion given by the President of the Mixed Commission, has struck out from the forms for the requests provided for under Articles 106 and 107 [p40] the passage requiring a declaration as regards the "mother-tongue" of the child. This action may moreover be explained by the fact that the text itself of the articles in question does not require a declaration on this point and that the Convention does not employ the phrase langue maternelle (mother-tongue).

[114] Nor does the Court attach much importance to the argument which the German Government drew from the attitude adopted by the Polish Government during the negotiations which took place between Poland and the Free City of Danzig and which led to the Agreement of October 24th, 1921, concluded less than one month before the commencement of the negotiations with Germany relating to Upper Silesia. According to the German Government, the Polish Government had then demanded the adoption of the principle which the German Government now maintains. The Court does not find this to be quite correct. Poland then advocated two things: (1) that the admission to the minority schools at Danzig should not depend upon the condition that the child should be both racially and linguistically Polish, but that it should be sufficient for it to be either Polish by origin or Polish by language; (2) that the declaration of the person responsible for, the education of the child should be decisive as to whether the child was of Polish tongue or of Polish origin, any verification of the truth of this declaration by the school authorities being prohibited. Poland thus claimed two different bases each of which was to suffice for admission to minority schools, namely, either the Polish origin or the Polish tongue of the child. The second basis alone would seem to have been adopted in the Geneva Convention. The request of Poland in this respect appears to correspond perfectly with the substance of the first paragraph of Article 131 of the Geneva Convention and therefore cannot provide an argument in favour of the construction of this article proposed by Germany.

[115] But although the conclusion drawn by the Court from the terms of the Convention is that Article 131 contemplates a declaration which on principle must refer to the existence of a fact and not express an intention or a wish, that does not exclude the possibility, when appreciating those facts, of properly taking into account a subjective element. Indeed, [p41] what is to be understood as a person's tongue is not always clear and beyond doubt; particularly when a child reaching the school age is concerned, it is no doubt proper not exclusively to take into account the language which the child generally employs if the parents employ another language to satisfy their cultural requirements and if it is that language which they by preference consider as their own. What has just been stated is particularly true as regards Upper Silesia, considering the very special conditions which, according to the information supplied in the course of the proceedings, appear to exist there from a linguistic point of view.

[116] The German contention raises yet another question: namely whether, according to the Convention, the admission of a pupil or child to the minority schools (classes or courses) depends upon a declaration in accordance with Article 131.

[117] In this connection the Court observes that it seems to be beyond doubt that Article 69 does not imply an obligation for the States in question to grant "appropriate facilities" for instruction in the language of the minority to be given in public primary schools to other pupils or children than those whose language is that of the minority. But, according to what has been stated above in regard to the relations between the provisions of Division I and those of Division II, it would be unreasonable to construe these stipulations of the article in question as being opposed to an extension by the Convention of the participation in the same advantages to other pupils and children. The question therefore is whether the Convention has provided for such an extension. The President of the Mixed Commission considered that it was necessary to distinguish between, on the one hand, requests for the purpose of establishing a minority school or courses in a minority language - with regard to which Articles 106 and 107 laid down certain rules - and, on the other hand, simple requests for the admission of a pupil to an existing minority school. The latter, with regard to which the Convention has not laid down any rules, are not, according to him, subject to any formality or any condition, with regard to language. The basis of this construction appears in the first place to be the "subjective principle" which, according to the German Government, was laid down by Articles 74 and 131, but which [p42] according to the above construction placed on these articles by the Court cannot be inferred therefrom.

[118] Another ground for this construction would appear to be the right of equal treatment which Article 68 of the Convention guarantees to minorities; the terms of this article are as follows [FN1]:

Les ressortissants allemands appartenant à des minorités ethniques, de religion ou de langue, jouiront du même traite-ment et des mêmes garanties en droit et en fait, que les autres ressortissants allemands. Ils auront notamment un droit égal à créer, diriger et contrôler à leurs frais des institutions charitables, religieuses ou sociales, des écoles et autres établissements d'éducation, avec le droit d'y. faire libre-ment usage de leur propre langue et d'y exercer libre-ment leur religion.
Les ressortissants polonais appartenant à des minorités ethniques, de religion ou de langue, jouiront du même traitement et des mêmes garanties en droit et en fait que les autres ressortissants polonais. Us auront notamment un droit égal à créer, diriger et contrôler à leurs frais des institutions charitables, religieuses ou sociales, des écoles et autres établissements d'éducation, avec le droit d'y faire libre-ment usage de leur propre langue et d'y exercer librement leur religion.


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[FN1] Translation by the Registry :
German nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other German nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein. Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.
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[119] Although this article has not been invoked in the German submissions as regards the contention in question here, it appears from the proceedings that the German Government finds in Article 68 an argument to prove that there exists a freedom to choose the minority school without any obligation of making the declaration provided for by Article 131. The Court therefore considers it necessary to examine this argument. [p43]

[120] In the course of the oral proceedings the German Government expressed the opinion that the principle of equal treatment of all nationals laid down by Articles 67 and 68 of the Convention would be violated if, as regards the mere admission of a child to a minority school, a declaration containing anything besides a mere request for admission were to be demanded from the person responsible for the child's education. This reasoning appears to be as follows : no special declaration is required for the admission of the child to a majority school; consequently, by virtue of the principle of equal treatment, the same should be the case as regards admission to minority schools.

[121] The Court is unable to adopt this reasoning. It considers that Article 67 (see Annex) has no relation to the question set out above. As regards Article 68, it should be observed that it cannot be construed leaving Article 69 out of consideration. In laying down the obligation to grant appropriate facilities for a child speaking the language of the minority to be taught in public primary schools in its own language, this article clearly shows that it is perfectly compatible with the principle of the "same treatment" guaranteed by Article 68, to restrict the enjoyment of these "facilities" to children whose language is the minority language. And if, to ensure the observance of this rule, a declaration as to the language of the child is required, that also cannot be regarded as a violation of the principle of the "same treatment" established by Article 68.

[122] Article 69, in fact, bestows an advantage which is dependent on the fulfilment of certain conditions; the fact that this advantage is not obtainable if the conditions in question are not fulfilled does not therefore raise any question of equality of treatment. It follows from what has already been said that a refusal to admit to minority schools (classes or courses) children who, according to the declaration of the persons responsible for their education, only speak Polish or in respect of whom the declaration as to the child's language is lacking, cannot be regarded as contrary to the Convention.

[123] If a declaration has been made, it must always be respected. With regard to Article 131, as well as to Article 74, the Court [p44] holds that the prohibition as regards any verification or dispute does not cease to apply in cases where it appears that the declaration is not in accordance with the facts. In regard to this, the Court refers to what it has already said concerning Article 74.

* * *

[124] Approaching now the third contention of the German Government, the Court observes that Article 68 of the Convention is alone relevant in this connection. For Article 65 (see Annex), which the German Government has also cited, adds nothing to the principles contained in Article 68, but endows them with a peculiarly important and predominant character. As regards Article 72, paragraph 2, and the Pre-amble to Division II (see Annex), which are also cited, no explanation has been given enabling the Court to take them into consideration.

[125] According to the German contention, the measures in question are those described in the original English version as "singling out the minority schools to their detriment". This expression, in the opinion of the Court, means measures which constitute a treatment of minority schools less favourable or more unfavourable than the treatment accorded to other schools, and a treatment which is at the same time of a more or less arbitrary character.

[126] In support of its contention, the German Government, in its Reply, has alleged that, since the putting into force of the Convention, the German minority schools have been, in most cases, organized and maintained in face of strong opposition on the part of the Polish authorities. It has stated that more than 700 petitions emanating from members of the minority who complain of arbitrary interference on the part of the Polish authorities in the affairs of minority schools, are still pending, and that seven collective petitions also exclusively relating to minority schools, have been submitted to the Council of the League of Nations, in accordance with Articles 149 and 157. In proof of its statement that the attitude of the Polish authorities has been hostile to the minority schools, the German Government has cited the fact that, in an Opinion given on October 12th, 1927, the President of the Mixed [p45] Commission, in regard to the enquiry ordered by the competent authorities for the purpose of hearing all persons who had asked for the establishment of a minority school at Gieraltowice, made the following statement:

"L'interrogatoire dut faire aux personnes légalement responsables de l'éducation l'impression d'un essai de pression destinée à les faire renoncer à la création d'une école minoritaire, d'autant plus que la minorité est encagée depuis des années dans une lutte permanente avec les autorités sur le terrain de l'école minoritaire. D'après l'article 131, alinéa 2, il est interdit aux autorités d'exercer une influence, si minime qu'elle soit, en vue du retrait de la demande faite dans le sens de l'article 106; il est donc évident que les autorités compétentes ont violé cet article [FN1]."

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[FN1] Translation by the Registry :
"The persons legally responsible for the children's education must have received the impression that, the enquiry was an attempt to exert pressure to induce them to abandon the request for the creation of a minority school, more especially seeing that the minority has been engaged for years in a continuous struggle with the authorities in regard to the question of the minority school. Under Article 131, paragraph 2, the authorities are for-bidden to exercise any pressure, however slight, with a view to obtaining the withdrawal of requests made under Article 106; it is therefore obvious that the competent authorities have contravened this article."
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[127] As examples of a partial attitude on the part of the authorities, the German Government has also cited two special cases, one relating to the attitude adopted by the police of Brzezie in connection with a Christmas festivity arranged by the minority school, and the other concerning the fact that in the commune of Brzezinka, the school authorities had established the minor-ity school at a place situated about three quarters of an hour away from the locality where most of the children entered for the school lived, though premises could have been found in that locality.

[128] The Court considers that a generally hostile attitude on the part of the authorities in regard to minority schools, an attitude manifested by more or less arbitrary action, is not compatible with the principle laid down in Article 68. The Court, moreover, has found nothing in the documents and statements submitted in the course of the proceedings which would show that Poland questions, as not well founded, Germany's contention that any measure singling out the [p46] minority schools to their detriment is incompatible with the equal treatment guaranteed by Article 68. On the other hand, the Court does not intend to express an opinion on the question whether the attitude of the authorities has, in fact, been discriminatory, for it has not been asked for a decision in regard to any concrete measure alleged to be of this character.

[129] In these circumstances, the Court holds that it is not incumbent upon it to pass judgment on the third of the German contentions.

*

[130] FOR THESE REASONS,
The Court,
having heard both Parties,
by eight votes to four,
gives judgment as follows:

(1) that the objections, whether to the jurisdiction or respecting the admissibility of the suit, raised by the Respondent, must be overruled;
(2) that Articles 74, 106 and 131 of the German-Polish Convention of May 15th, 1922, concerning Upper Silesia, bestow upon every national the right freely to declare according to his conscience and on his personal responsibility that he does or does not belong to a racial, linguistic or religious minority and to declare what is the language of a pupil or child for whose education he is legally responsible;
that these declarations must set out what their author regards as the true position in regard to the point in question and that the right freely to declare what is the language of a pupil or child, though comprising, when necessary, the exercise of some discretion in the appreciation of circumstances, does not constitute an unrestricted right to choose the language in which instruction is to be imparted or the corresponding school;
that, nevertheless, the declaration contemplated by Article 131 of the Convention, and also the question whether a person [p47] does or does not belong to a racial, linguistic or religious minority, are subject to no verification, dispute, pressure or hindrance whatever on the part of the authorities ;
(3) that the Court is not called upon to give judgment on that portion of the Applicant's submission according to-which any measure singling out the minority schools to their detriment is incompatible with the equal treatment guaranteed by Articles 65, 68, 72, paragraph 2, and by the Preamble of Division II of Part III of the Convention.

[131] Done in English and French, the French text being authoritative, at the Peace Palace, The Hague, , this twenty-sixth day of April, nineteen hundred and twenty-eight, 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) D. Anzilotti,
President.
(Signed) Å. Hammarskjöld,
Registrar.

[132] M. Huber, Former President, M. Nyholm, Judge, M. Negulesco, Deputy-Judge, and M. Schücking, National Judge, declaring that they are unable to concur in the judgment given by the Court and availing themselves of the right conferred on them by Article 57 of the Statute, have delivered the separate opinions which follow hereafter.

(Initialled) D. A.
(Initialled) A. H.


[p48] Dissenting Opinion by M. Huber.

[Translation.]
[133] The undersigned regrets that he is unable to concur in the Judgment rendered by the Court. Relying exclusively upon the material to be found in the records of the proceedings before the Court - the only material which is legally relevant - , he considers that it is not within the jurisdiction of the Court to pass upon the submissions in the German Application in the circumstances in which this is recognized as possible in the Judgment. The Court must confine itself to adjudicating upon those submissions solely on the basis of Division I of Part III of the Geneva Convention, and that for the following reasons:

[134] In accordance with the terms of Article 36 of the Statute, "the jurisdiction of the Court comprises all cases which the Parties refer to it and all matters specially provided for in treaties and conventions in force".

[135] Although this delimitation of jurisdiction is wide, it is simultaneously limitative in character. In contradistinction to municipal tribunals, the Court has no jurisdiction independent of the will of the Parties and existing prior to such will. According to Article 40 of the Statute, cases are submitted to the Court either by notification of a special agreement or by written application.

[136] The German Application of January 2nd, 1928, invokes Article 72, paragraph 3, of the Geneva Convention - i.e. a jurisdiction derived from a convention in force, and Article 40 of the Statute. By these two clauses the Court's jurisdiction and the procedure to be followed are defined. The rules of substantive law upon which the submissions of the Application are based are those contained in Articles 65, 68, 72, paragraph 2, 74, 106 and 131, as well as in the Preamble to Section II of the Geneva Convention.

[137] Poland has not put forward a preliminary objection under the terms of Article 38 of the Rules of Court; she has admitted the jurisdiction of the Court, as accepted by her under Article 72, paragraph 3, of the Geneva Convention; but [p49] in adopting this point of view she has simply admitted this jurisdiction in accordance with the interpretation which the Court might put upon it. Indeed, the German Application is not of such a character as to exclude prima facie the possibility for the Court to pass judgment by virtue of Article 72, paragraph 3.

[138] It is true that the submissions in the Application and the Case of the German Government, on the one hand, and the Counter-Case of the Polish Government, on the other, have revealed the fact that the two Parties place differing constructions upon Article 72, paragraph 3. Whereas Germany considers that the jurisdiction of the Court extends both to Division II and to Division I of Part III, Poland, in its Counter-Case, maintains that this jurisdiction only refers to the articles preceding Article 72 and that consequently the submissions relating to the provisions of Division II should be considered with reference to Division I. The submissions in the Counter-Case may, from this point of view, be easily understood: they consist in asking either for the dismissal of the Applicant's submissions as going beyond the limits of the jurisdiction recognized - and this interpretation of the main Polish submission, although contrary to the ordinary meaning of the word débouter, appears to be the only one compatible with the context - or, in the alternative, that these submissions should be passed upon with reference to Article 69. After the German Reply had demonstrated the essential opposition between the two interpretations of Article 72, paragraph 3, Poland submitted in its Rejoinder a plea to the jurisdiction. Although presented too late if considered as a plea aiming at the arrest of the proceedings on the basis of Article 72, paragraph 3, and although too general in scope, since at least part of the German submission is based on Division I, the Polish plea retains all its force as showing that Poland has only recognized the jurisdiction of the Court within the limits of Article 72, paragraph 3. A consideration of the question as to what rules of substantive law should be applied by the Court in exercising the jurisdiction conferred upon it by virtue of Article 72, paragraph 3, certainly comes within the limits of that jurisdiction, and such a consideration may [p50] certainly be entered upon at any stage of the proceedings. The disputes as to the jurisdiction provided for under the last paragraph of Article 36 of the Statute are not necessarily, except in particular circumstances, preliminary pleas.

*

[139] The jurisdiction conferred by Article 72, paragraph 3, of the Geneva Convention only extends to Division I of Part III. In support of this point of view, the following arguments, should be added to those set out in the Judgment:

1. - It is a characteristic feature of the whole system of the Geneva Convention to provide different forms of jurisdiction and remedy almost for each Part or Division, or even for Sub-Divisions of Divisions. Consequently the extension of the jurisdiction relating to one section of the Convention, to another part of the same document, is not admissible, and still less so in view of the fact that Division III (Articles 147 et sqq.) lays down an elaborate and special system of individual and collective remedies as concerns the whole of Part III.
2. - Article 72, paragraph 3, is the literal reproduction of Article 12 of the Minorities Treaty of June 28th, 1919, and of analogous provisions of other treaties. The jurisdiction conferred, by this clause is in every respect very particular in character and goes beyond the province of general international law; for Article 72, paragraph 3, confers on every Power being a. Member of the Council, even if it is not a contracting Party to the Minority Treaties or to the Geneva Convention, the. right of appealing to the Court, and such judicial action is based upon stipulations which relate not to rights of the applicant State or to those of its nationals on whose behalf it might take action, but to the relations between the respondent State and its own nationals. In view of the very special character of the jurisdiction resulting from Article 72, paragraph 3, it seems difficult to deduce, from the mere fact of this article having been inserted in the Geneva Convention, an extension of that jurisdiction beyond Division I. The system established by Division I is, in so far as it constitutes a "minority treaty", according to the decision of the Conference[p51] of Ambassadors, applicable de piano to Polish Upper Silesia, and it is by virtue of the same decision that this system has, on a basis of reciprocity, been made applicable also to the German part. But Division II has a different character: it constitutes an agreement between the two States, taking into account the special conditions in Upper Silesia, and, according to Clause III of the final Protocol, may be modified by mutual consent in the same way as the other provisions of the transition régime. But it would appear to be inconceivable that the contracting Parties should have conferred otherwise than by an express stipulation upon third Powers, not being Parties to the Geneva Convention, the right of taking judicial action against them in regard to the interpretation and application of their agreement. Nor does Division II, in spite of its Preamble, reproduce in any way Article 72. This article consequently is not to be found within the body of rules which Division II purports to repeat.

*

[140] It follows from what has been said above that Article 72, paragraph 3, only relates to Division I and that from the point of view of procedure the Respondent has not abandoned this line of argument; on the contrary, he has maintained his contention that jurisdiction is restricted to Division I. But it is nevertheless possible that the Parties may have extended the basis of the Court's jurisdiction by an agreement arrived at between them.

[141] As it would not be a question of bringing a new suit, but of conferring on the Court new jurisdiction for a suit already submitted to it, the conditions of form laid down in Article 40 of the Statute need not be fulfilled. On the other hand, Article 36, paragraph 1, of the Statute is binding on the Court, and consequently also on the Parties, whenever jurisdiction is conferred upon the Court.

[142] It is common ground that a jurisdiction wider than that resulting from Article 72, paragraph 3, Would not be derived from a treaty in force, but from an agreement ad hoc. The question therefore is, whether the case, in so far as it goes beyond the limit of Article 72, paragraph 3, has been referred [p52] to the Court by the Parties ; in other words, have Germany and Poland submitted to the Court the question of the interpretation of Articles 74, 106 and 131 of the Geneva Convention?

[143] Reference of a case to the Court by the Parties means, under Article 36, reference by virtue of an agreement - a bilateral instrument - concluded between them in regard to a particular case; the typical case, but not necessarily the only one of this kind, is a "compromis" properly so-called. For a State to be able to bring a suit by unilateral application, a previous agreement must exist conferring this right upon it. But it is not to be presumed that Article 36 recognizes, apart from these two possible ways of bringing a suit before the Court, a third way according to which jurisdiction would result from the fact that a State has submitted by unilateral application, a claim which is, in part, at all events, outside the scope of any pre-existing jurisdiction, and that the Respondent has replied by argument upon the merits. Such an interpretation of Article 36 appears difficult to reconcile with the conceptions which, at the time of the preparation of the Statute, were current in Government circles in regard to compulsory arbitration, and it is itself contradicted by the records of the preparatory work.

[144] Germany has submitted her Application on the assumption that the Court's jurisdiction, under Article 72, paragraph 3, extends to the provisions of Division II in the same way as to those of Division I. According to what has been said above, this view is not legally sound. By proceeding thus, Germany has neither been able nor even sought to modify the jurisdiction established by Article 72, paragraph 3. The consent of the Parties could only be deduced from the attitude adopted by Poland in her Counter-Case, for from the Rejoinder onwards and throughout the oral proceedings, her dissent is obvious. The only thing which might constitute consent to an agreement - a consent which Poland could not go back upon - is the fact that the Polish Counter-Case discusses the interpretation of Articles 74, 106 and 131, not exclusively in relation to Division I, and that it formulates submissions in respect of the merits of the German Government's submissions. Nevertheless, the divergence between the standpoint of the two Parties as regards the relation between Divisions I [p53] and II, in so far as the question of jurisdiction is concerned, is already clear in the first phase of the written proceedings, and nothing is to be found in that phase to justify the assumption that the Parties intended to go beyond the scope of Article 72, paragraph 3, and submit the case to the Court on a new jurisdictional basis.

[145] In these circumstances, it seems impossible to say that there has been a consent on the part of the Parties to the establishment of a new basis of jurisdiction or to the adoption of a common interpretation of Article 72, paragraph 3, and the whole trend of the proceedings which have taken place before the Court is against the presumption of such consent. It is true that the attitude of the representatives of the two Parties before the Council seems to indicate that they both expected to obtain from the Court an interpretation of the articles cited with this object in the German submissions. But this fact is not relevant at law.

[146] As the jurisdiction of international tribunals is almost always derived from treaties or other instruments expressly declaring the intention of the State, it is difficult to conceive that new jurisdictional power - even in regard to a particular case only - could be indirectly inferred from the line of conduct of agents. It would be especially difficult to make such an inference in regard to the intention of the Parties in the first suit brought on the basis of the jurisdiction conferred on the Court under the treaties of minorities of 1919.

[147] Even, however, if the Parties had both similarly based the discussion on Division II, it would seem that an express acceptance, notified to the Court by the persons entitled to make declarations in the name of the Parties, would be required to authorize the Court to go beyond the limits of the jurisdiction derived from the treaty under which the case has been brought before it.

[148] The absence of a plea to the jurisdiction does not create j jurisdiction ; it merely enables the case to be proceeded with. When a case has been referred to the Court under a clause conferring compulsory jurisdiction and no objection to the jurisdiction is raised, the Court is not called upon, except under Article 53 of the Statute, ex officio to consider whether it has jurisdiction; it will assume that it has jurisdiction in [p54] the absence of an objection. But, when giving judgment in virtue of jurisdiction implicitly or explicitly recognized by the Parties, it must ex officio ascertain on what legal foundation it is to base its judgment upon the claims of the Parties. Jura novit curia. The Court's jurisdiction is determined by the treaty or special agreement establishing that jurisdiction, and not by the contentions maintained by the Parties in the particular case.

[149] Accordingly, it is Article 72, paragraph 3, of the Geneva Convention alone which determines the scope of the Court's jurisdiction in the present suit.

*

[150] Since the Court should base its judgment on Division I, it should only deal incidentally with the provisions of Division II. Interpretations and applications of the provisions of Division II are merely points of fact which may be considered in relation to their conformity with those of Division I. In this respect Article 68, which establishes the principle of equality of treatment, is especially important.

[151] Adopting the point of view taken by the Court in construing the German submissions, the following results are arrived at on the basis of Division I: (1) The submissions in regard to the interpretation of Articles 74, 106 and 131 as such fall outside the scope of the Court's jurisdiction. (2) In so far as the submissions relating to these articles concern the conformity of certain interpretations with the provisions of Division I, more especially the conformity of the so-called objective and subjective principles with Articles 68 and 69, a поп liquet is indicated. Articles 68 and 69 contain nothing forbidding a State to verify whether, according to objective criteria, a person belongs to a minority or what is a child's own language. But these articles which, like the whole of Division I, are intended to secure to minorities certain rights and a certain specially favourable treatment, do not prevent States, either by independent legislation or by convention, from granting minorities more extensive rights or a more liberal treatment. For this reason, the contentions of the [p55] two Parties in regard to the interpretation of Articles 74, 106 and 131 are neither supported by nor in opposition to the provisions of Division I. (3) The conclusion arrived at by the Court in regard to discriminatory measures in general would not be modified because it is already based on Division I.

(Signed) Max Huber.


[p56] Dissenting Opinion by M. Nyholm.

[152] The case before the Court comprises two questions: the question of jurisdiction and the question of the interpretation of Articles 74 and 131 of the Geneva Convention of May 15th, 1922 (the merits).

[153] It has been dealt with in four parts: (1) has objection to the jurisdiction taken by Poland been raised too late ? (2) has the objection been abandoned and, arising out of this, has an agreement been created between the Parties as a result of which the Court has jurisdiction ? (3) are there other grounds on which jurisdiction can be based, besides the agreement? (4) the merits of the suit.

I.

[154] The judgment rejects the argument to the effect that the objection has been submitted too late to be considered, on the ground that Article 38 of the Rules of Court, when it lays down that an objection to the jurisdiction must be submitted simultaneously with the Counter-Case, only contemplates a case where the Respondent asks a separate judgment upon the objection.

[155] Moreover, the Rules of Court cannot lay down a rule of procedure the effect of which would be to determine the Court's jurisdiction. The Court decides whether it has jurisdiction, but it does not lay down its jurisdiction. The rule, failure to comply with which does not render an objection null and void, is rather of an administrative nature, and its meaning is that the Registry will not receive an objection after the time fixed. It cannot exercise a legal effect for the simple reason that its wording also covers objections ratione materiœ; and, as regards such objections, the immutable principle holds go that they are admissible at any stage of the proceedings. [p57]

II.

[156] The judgment arrives at the conclusion that the Court has jurisdiction on the basis of the principle that the jurisdiction of the Court is determined by the intention of the Parties (Statute, Article 36); but in the present case this intention has not been sufficiently definitely expressed. According to Article 36, the Court's jurisdiction is based on one of two foundations only, a treaty or a special agreement. The present suit has been brought on the basis of a treaty, the Geneva Convention of May 15th, 1922. But, in point of fact, the judgment does not find in this treaty the basis of the Court's jurisdiction; it resolves the question by saying that the Parties have established the Court's jurisdiction by special "agreement" arrived at between themselves. Nevertheless, when the interpretation of an article of a particular convention is concerned, it would seem natural, in the first place, to look for the rules governing jurisdiction in the convention itself, and not at once to have recourse to some other source, such as the intention of the Parties. In any case, however, it must be further proved that there exists a special agreement concluded in due form, that is to say, constituting a definite and precise proof of the intention of the Parties.

[157] It is undeniable that the intention of the Parties, in the form of a special agreement, may determine the Court's jurisdiction.

[158] It would, however, seem impossible to dispense with the formalities which, in accordance with the letter and spirit of the Statute and Rules, must be complied with in the drawing up of a special agreement. The judgment would seem to be wrong when it refers to a precedent in the Mavrommatis case (Judgment №.5) and states that the Parties established the Court's jurisdiction in regard to a particular point in the course of the proceedings by means of an agreement between them, without any other formality.

[159] In the Mavrommatis case an objection to the jurisdiction was duly argued and overruled. In the course of the subsequent hearings on the merits, the Parties took what was in substance simply a step of procedure, when they asked the [p58] Court also to decide a point which had not previously been specifically referred to. It was, therefore, rather a question of a modification or extension of their submissions. No-definite reference seems to have been made to the Court's jurisdiction, and the request calling upon the Court to decide this further point was made without any specific indication of a jurisdiction which was not provided for beforehand. No precedent, therefore, for the omission of the formalities-accompanying the submission of a special agreement seems to exist.

[160] Apart, however, from the question of these formalities, it is at all events certain that a special agreement implies a definite intention on the part of the two Parties couched in express terms.

[161] Is there a definite intention in the present case ? In the first place, concordant declarations by the two Parties are altogether lacking. Nowhere has Poland stated that she accepted the Court's jurisdiction.

[162] Has she, however, in effect accepted it ? Again the answer is no. On the contrary, right up to and including her final submissions (the oral hearing of March 15th, 1928), Poland expressly maintained her objection to the jurisdiction.

[163] The judgment, which cannot cite, in support of the theory which it enunciates, either an express declaration or even a tacit acceptance, simply argues that an agreement has been created by the fact that Poland has argued the case on the merits "without making reservations". But reservations are to be found all through the proceedings. Even if, as the judgment says, Poland filed her Counter-Case with submissions on the merits "without raising an objection", the fact remains that in the subsequent proceedings and as soon as the attitude of Germany afforded an opportunity, Poland submitted that the Court had no jurisdiction. At all events, the proceedings before the Court - both written and oral -form a single whole. They comprise two phases and they end with the oral rejoinder, and it is impossible to argue -as does the judgment - that the fact that Poland began her presentation of the case by filing a Counter-Case on the merits constitutes a tacit acceptance. A decisive argument against this contention exists, moreover, in the fact that in the [p59] present case, the objection is an objection ratione materiœ which can accordingly be raised at any stage. The judgment appears, finally, to adopt the standpoint that implicit (not even tacit) acceptance results from the mere fact that Poland, at a time when the Court had before it submissions regarding both the question of jurisdiction and the merits, argued the merits. It will suffice to observe that such a contention directly conflicts with the principle of procedure that an objection may be joined to the merits, from which it follows that it is possible to argue both the question of jurisdiction and the merits at the same time.

[164] It must, therefore, be regarded as impossible to establish the existence of a "special agreement" between two Parties, one of which has done nothing but contest the existence of an agreement.

[165] It should also be added that in this case the Parties were even unable to conclude an agreement regarding the Court's jurisdiction. The Convention, on the basis of which the suit was brought, was imposed on the Parties by the Conference of Ambassadors, which, amongst other things, prescribed the rules respecting jurisdiction. Germany and Poland, therefore, cannot alter or establish these rules of their own free will.

III.

[166] It is impossible, therefore, in this case to base the Court's jurisdiction upon an "agreement" which does not and cannot exist.

[167] It is, therefore, necessary, and quite natural, to have recourse to an interpretation of the Geneva Convention, on which the suit is based. The judgment only considers it in a somewhat cursory fashion (see pages 26-27). The observations contained in the judgment may be supplemented or replaced by a reference to the Convention which, in point of fact, contains sufficient data for the decision of the question of jurisdiction.

[168] In consulting this instrument, the following should be noted. Article 131, the interpretation of which is sought, is found in Division II of the part of the Convention relating to minorities, namely, Part III, which contains Articles 64 to 158. This [p60] Part comprises three divisions: the first from Articles 64 to 72, the second from 73 to 146, and to this second Division is appended a third concerning means of redress (Articles 147 to 158). In referring to the text, which must be consulted in considering the question of jurisdiction, it may be mentioned that Division I is merely a reproduction of the Treaty of Minorities concluded between Poland and the Principal Allied and Associated Powers on June 28th, 1919, whilst Division II is the work of the Commission responsible for drawing up the Convention.

[169] Jurisdictional rules are to be found in Division I in Article 72, and in Division III in Article 147 and the following articles. Article 72 gives the Court jurisdiction in regard to the "foregoing" articles, that is to say, Articles 65 to 72. Article 147 gives the Council of the League of Nations jurisdiction as regards the whole of Part III including both Division I and Division II. A comparison of the foregoing observations with the text will enable one to understand the interpretation which at first sight seems indicated and which has found support, namely, that the Court is competent as far as Article 72 and the Council from Articles 73 to 158. And, since Article 131 is in the part falling within the sphere of the Council, the conclusion seems to be that the Court has no jurisdiction.

[170] But a study of the origin of the Convention and the system adopted by the Commission in drafting it, leads nevertheless to a different result.

After the conclusion of the Treaty of June 28th, 1919, relating to the protection of the rights of minorities, the principles of this Treaty required development and application in detail, and the Conference of Ambassadors decided on October 20th, 1921, that, with a view to the practical application of the principles of the Treaty, the German and Polish Governments should conclude an agreement in order "to put into force the following provisions: ....", namely, those contained in Articles 1, 2, 7, 8, 9 (paragraphs 1 and 2), 10, 11 and 12 of the Treaty.

[171] The Commission entrusted with the preparation of the Convention could choose between two methods: (1) it could either take as a basis the articles of the Treaty, adding to each article in the form, of appendices the articles required [p61] to expound in detail the principles of the Treaty, or (2) it could combine the principles with the detailed regulations. It adopted the latter method. Division II, in fact, which sets out the principles together with the new detailed regulations, forms a unity. At the same time, the articles of the Treaty were reprinted in a sort of preliminary annex or preamble and were given numbers in the Convention as Articles 65 to 72. The adoption of this method is referred to in the Preamble to Division II which states that the contents of Articles 65 to 72 are only repeated in the present section for the purpose of giving a general view.

[172] Division II, therefore, by itself really constitutes the Convention. The principles of the Treaty of 1919 are inserted in it and form a complete whole with the detailed rules to be added by the Commission.

[173] The first conclusion to be drawn from this is that the word "foregoing" loses its significance. Of course, the provision establishing the Court's jurisdiction for Articles 65 to 72 holds good, but the word "foregoing" does not create a barrier depriving the Court of jurisdiction as regards Article 75 and the following articles, that is to say, as regards Division II. This Division, which by itself constitutes the Convention, is subject to the Court's jurisdiction, not only as regards the principles set out therein, but also as regards those articles which develop them and which are merely a detailed application of them, and these latter articles cannot be separately treated, since they form a complete whole together with the principles. It would be inadmissible to extract certain articles and give the Court jurisdiction in respect of them alone. An examination of the articles of Division II shows that every one of them without exception is connected with one of the principles of the Treaty, so that no separation of the rules of jurisdiction is possible. Articles 69 and 131 afford an example of this. The provisions of Article 69 regarding education, as set out under the Treaty of Minorities, are very brief. But in Division II we see what a large number of detailed rules it has been necessary to elaborate in addition to the main principle contained in Article 69.

[174] But Division II, which is subject to the Court's jurisdiction, is also subject to that of the Council. [p62]

[175] In this connection, however, it is most important to note that the Council only has jurisdiction in respect of petitions and requests made by individuals, whereas the Court's jurisdiction only covers disputes arising between, on the one hand, either the Polish or German Governments, and, on the other, any of the Principal Allied and Associated Powers or any other Power, a Member of the Council of the League of Nations. The method of allocating jurisdiction adopted by the Commission in the Convention is suited to practical conditions and is calculated to fulfil this object. The Council's jurisdiction is established with a view to the very numerous disputes arising in connection with the detailed regulations of the Convention (Division II). At the moment, more than 700 cases are pending. The Court should not be called on to deal with them. If nevertheless the jurisdiction of the Court is recognized in regard to Division II, the reason is that the Court only hears cases brought by States and that States are relied upon to exercise their discernment so as not to bring actions in regard to trifling questions, but only where in connection with an article regulating matters of detail questions of legal principle arise or circumstances exist which may involve important consequences. This is the case in the present suit, an apparently unimportant point, namely, the construction to be placed on a declaration entering a child for a school, having had the effect of temporarily interrupting the education of a large number of children.

[176] These considerations clearly show the necessity for action on the part of States and it would be inadmissible to decline to take cognizance of such action; this, therefore, affords ground for maintaining that the Court has jurisdiction in regard to the articles concerning points of detail in Division II.

IV.

[177] The reply which the judgment gives to the question whether a declaration under Article 131 is of a subjective or objective character seems to be drawn up in terms which do not provide a satisfactory solution of the problem. The judgment justly recognizes the weight of the specific text according to which a declaration cannot be either verified or disputed, but [p63] it does not draw the necessary inference. For the operative part of the judgment admits that the declaration is objective in character when it lays down that it must (doit) relate to what its author considers to be the actual state of the facts and that there does not exist an unlimited right of choosing the language of the child with regard to whom the declaration is made.

[178] There appears here to be a contradiction in terms. A declaration which cannot be disputed or verified is entirely unimpeachable. Such a declaration cannot be limited by rules of law. The requirement according to which the declaration must correspond exactly to the facts is only a pious wish and any limitations as regards its sincerity come solely within a moral sphere. Since the declaration cannot be examined and since all objections or disputes in regard to it are excluded, the declarer is not subject to a legal obligation and the declaration must be taken as it stands. Consequently, the maker of the declaration may of his own free will make a declaration without considering whether it Corresponds to the actual state of affairs.

[179] Germany, whilst clearly concluding in favour of the right of the declarer to draw up a declaration freely, has in its submissions inserted the words "the parent must declare according to his own conscience and on his own personal responsibility". Since Germany has refused to accept the objective theory, the idea which these words express must be that the maker of the declaration may draw up such declaration as he wishes, true or false, but that, in doing so, he must from a moral point of view reflect on the substance of what his declaration contains.

[180] The principle underlying Article 131 is explainable by the particular state of affairs existing in Upper Silesia ; no precise limits exist either as regards nationality or as regards language. Besides the two literary languages: Polish and German, dialects are to be found as in all countries, and even commonly used dialect differing considerably from the Polish and German languages. The working class ordinarily and in domestic life exclusively speaks this dialect which consequently is the sole means of expression, to the exclusion of German and Polish, for children up to the time when the latter begin [p64] their school studies. Now the declaration only provides for an option between two languages, the German language and the Polish language. In these circumstances and in view of the facts set out above, there are cases in which the declaration, in opting for either German or Polish, cannot correspond to the actual state of facts. Owing to this situation, it further follows that the examination which the League of Nations has ordered cannot result in proving that the language of the child under such examination is not German. The child does not know Polish either. He is only acquainted with the dialect. A request for the entry of a child for a minority school cannot be, generally speaking, considered as having as its aim the denationalization of a child in reality of Polish nationality. The aim may be different, for example, that the parent, realizing that the child will automatically learn Polish, the language of the country, wishes for practical reasons to have him instructed in the German language taught in a minority school. Poland cannot complain of Article 131 nor endeavour to alter it by interpretation, since, in view of the reciprocal nature of the Treaty, the same rules hold good for the German part. It may further be added that the Polish complaint as regards the application of Article 131 mainly turns against Poland's own nationals, namely, against those Poles who send their children to a German school.

[181] As regards adults, the same principle has been applied (Article 74) for the definition of nationality, race and religion. It appears to follow that, having regard to the situation in Upper Silesia, the given solution is based on a rational basis according to the conditions prevailing in the country.

[182] It is of interest to add to the above remarks some information as to what took place in the Committee in which the Convention was elaborated. At its meeting of February 15th, 1922, it was pointed out on behalf of Germany that the principle which had been admitted by the draft proposal was (translation) "that each individual was himself to determine whether he belonged to a minority". In order to allow of the right of choosing being exercised subject to no hindrance or influence by the authorities, it was expressly provided that the authorities may not make any verification. That is -absolutely necessary precisely because of the particular situation [p65] in Upper Silesia, where the language is not the only criterion which decides whether an individual belongs to a minority. And similarly there is very little object in giving a rigid and objective definition of the idea of "minority" since the linguistic, religious and ethnical divisions cannot be disentangled. A definition of minorities solely based on the subjective principle must, for example, allow of an individual counting himself as one of a minority from a religious point of view ; on the other hand, it should not be impossible for the same individual to consider himself as belonging to the minority as regards schools but to the majority in other spheres, for example, as regards associations. The German Government considers that its proposals take this particular situation into account.

[183] No objection was made in the course of the meeting against the above-mentioned principle.

* * *

[184] The declaration being thus unimpeachable, it now remains to consider the problem which in effect is the one in which the Parties are interested. How far can the declaration be enquired into ? Article 131 prohibits any dispute or verification by the "school authorities". There is no reason for restricting the meaning of the words "school authorities" to the subordinate authorities of each school. The words "school authorities" must comprise all the organs of the State which deal with school matters from the lowest to the highest.

[185] As regards authorities not being specifically school authorities, one cannot within the meaning of the Convention deduce a right of examination.

[186] Any enquiry to verify the language implies a hindrance contrary to the right of free choice.

[187] Nevertheless, it might be objected that the authorities of a State could, from an administrative point of view, examine, not whether the declaration is in conformity with the true state of the facts, but whether there exists in reality a declaration within the meaning of the article, namely, for example, whether the person who had made the declaration had the necessary authority for so doing. [p66]

[188] It cannot be denied in this respect that abuses might arise. That is not contested by Germany. Poland is entitled to intervene in such cases, but good faith in the carrying out of the Convention requires that such special cases should not furnish grounds for general measures contrary to the substance of Article 131. But there is reason to have recourse to the good faith of the two States, having regard to the fact that the stipulations of the Convention are reciprocally applicable both to the Polish part and to the German part, and that consequently they may, should the occasion arise, be put into force against one or the other State.

(Signed) D. G. Nyholm.


[p67] Dissenting Opinion by M. Negulesco.

[Translation.]
[189] The undersigned, whilst concurring in the Judgment upon the merits, differs from the majority of the Court as regards the question of jurisdiction.

[190] The Court has laid down the principle, by virtue of Article 72, paragraph 3, of the Geneva Convention, that its jurisdiction extends to Articles 65 to 71 which precede Article 72, and not to the articles which follow that article. Now the German Application, which is based on Article 72, paragraph 3, of the Convention, must, in view of the written Reply and the arguments put forward by the Agent for the German Government in the course of the oral proceedings, be considered as relating solely to the interpretation of Articles 74, 106 and 131 of the Convention, and this must lead to the Court's ruling that it has no jurisdiction.

[191] Article 131 being closely related to Article 69 of the Convention, the Polish Government in its Counter-Case observes that the German Government, in its Case, makes no mention of Article 69: "and yet, the Polish Counter-Case states, Article 72, paragraph 3, upon which the Application is founded, refers to the articles which precede and not to those which follow" (translation).

[192] The plea to the jurisdiction having been mentioned in the statement of reasons of the Counter-Case, it cannot be said that in the final submission of the Counter-Case, by the words: de débouter le Gouvernement de sa demande, the Polish Government had renounced the plea. It is true that the final submission of the Counter-Case should in the first place have mentioned that the Court should rule it had no jurisdiction and, subsidiarily, that the German Government's claim be dismissed.

[193] The final submission of the Counter-Case should have been construed in the light of the grounds upon which this submission is based, and it should have been looked upon as subsidiary and only arising if the Court declared it had jurisdiction. [p68] Moreover, this hesitation on the part of the Polish Government to invoke the plea in the argumentation and not in the submissions of the Counter-Case can be explained by the indefinite character of the German Application, which, while asking for an interpretation of Articles 74 and 131 of the Convention, at the same time referred to Articles 65, 68, 72, paragraph 2, which might have conferred jurisdiction upon the Court in the event of a dispute relating to these articles.

[194] It is the German Reply which clearly brings out that the Application only refers to the construction of Articles 74 and 131 of the Geneva Convention, and consequently it is from that moment onward that no doubt could any longer subsist in the mind of the Polish Government as to the absence of the Court's jurisdiction. Those are the grounds which led the Polish Government in the Rejoinder to plead to the jurisdiction of the Court.

[195] The Agent for the German Government, by virtue of Article 38 of the Rules of Court, invoked in his oral pleadings the lateness of the submission of the plea, that plea not having been raised in the Counter-Case. The true view should be that the plea to the jurisdiction cannot be considered as submitted too late and that it can be raised at whatever state and at whatever stage of the proceedings. The plea to the jurisdiction in a suit submitted by application is not a question of procedure but a question relating to the merits, for the Court must consider the convention between the Parties in order to know whether the dispute submitted does or does not come within the limits defining its jurisdiction.

[196] The fact of "pleading the merits" does not imply that the defendants have given up their plea to the jurisdiction, particularly when it was raised in the Rejoinder and in the course of the oral pleadings as a plea joined to the merits; otherwise one would be obliged to consider the defendants, who on principle may raise a plea to the jurisdiction in the course of the oral proceedings (because - the Court has laid it down - there is no forfeiture under Article 38), as being debarred from doing so in view of a presumption of an acceptance of the jurisdiction of the Court. It would be difficult to see what object there would be in the right of raising the plea to the jurisdiction at any stage of the proceedings if this right were [p69] rendered nugatory by a presumption that its exercise had been renounced and that the jurisdiction of the Court had been accepted.

[197] The jurisdiction of the Court cannot be assimilated to that of a municipal court. The jurisdiction of the Court is not general, it is strictly limited by the will of the States which have brought the dispute before it. In case of doubt as to whether jurisdiction exists, it must be inferred that the Court has no jurisdiction.

[198] But even before municipal courts there is no presumption of forfeiture of a right unless a specific provision to that effect exists in the code of procedure (paragraphs 38 et sqq. of the German Procedural Code). Under several legal systems, a distinction is drawn between a plea to the jurisdiction and a plea to the admissibility of that particular judicial remedy, the latter being capable of being raised at any stage of the proceedings. The plea to the jurisdiction before the Court cannot be assimilated to a plea to the jurisdiction ratione personœ. It more nearly resembles a plea ratione materiœ, or even more a plea to the admissibility of the particular judicial remedy; and consequently the defendant cannot be compelled under penalty of forfeiture to raise the plea in limine litis. In order that such an obligation may be imposed upon the defendant, a specific provision must exist either in the Statute or in the Rules of Court to that effect; but failing such provision such a penalty cannot be applied. It cannot consequently be said that the Agent for the Polish Government has pleaded the merits without any reservations, because he did more : he raised the plea in his Rejoinder and maintained that plea in his oral pleadings.

[199] Moreover, a tacit acceptance of the jurisdiction of the Court which can be deduced merely from the documents of the proceedings is contrary to the provisions of the Statute and of the Rules of Court, which only recognize two methods for allowing the Court to take cognizance over any matter: an application and a special agreement. Article 36 of the Statute lays down that the jurisdiction of the Court extends to all matters specially provided for in treaties and conventions in force, as well as to all cases "which the Parties refer to it". [p70]

[200] It is by process of unilateral application that the Court is rendered cognizant, in the event of its having jurisdiction by virtue of treaties and conventions in force. On the other hand, it is by process of special agreement that the Court is rendered cognizant in cases "which the Parties refer to it". That these words refer to special agreement drawn up in due form and not to successive acts in the proceedings, is clearly shown on the one hand by Article 40 of the Statute, which lays down that "cases are brought before the Court, as the case may be, either by the notification of the special agreement, or by a written application. ..." and, on the other hand, by Articles 37 et sqq. of the Rules of Court, which define the conditions and the formalities to be fulfilled when a suit is submitted by' application or by notification of the special agreement.

[201] In the light of these clauses, it is difficult to say that the Court, which has no jurisdiction to give judgment on the Application of the German Government, which is based on Article 72, paragraph 3, of the Geneva Convention and relates to the interpretation of Articles 74, 106 and 131 of the Convention, has acquired jurisdiction by the tacit consent of the Parties inferred from the action taken in the successive stages of the proceedings, and without any special agreement in due form. Moreover, before it is possible to speak of an agreement giving the Court jurisdiction over and above the jurisdiction limited by Article 72, paragraph 3, of the Geneva Convention, it must be proved that the intention of Germany and Poland was to accept such jurisdiction. Now the German Application, which relates to the interpretation of Articles 74, 106 and 131 of Division II of the Convention, is based on the mistaken idea that Article 72, paragraph 3, bestows on the Court compulsory jurisdiction for the interpretation of those articles. Poland, on the contrary, has not made this mistake, for in her Counter-Case she observes that the Court has no jurisdiction under Article 72, paragraph 3, in regard to the articles which follow that article (Division II). It is, therefore, difficult to say that there has been an agreement between the Parties conferring on the Court jurisdiction over and above that derived from Article 72, paragraph 3, of the Convention. [p71]

[202] Those who argue that the Parties have tacitly agreed to transform the suit brought by application into a suit submitted by agreement, find it impossible to say at what moment this transformation took place.

[203] The Court seems to hold that this moment was the filing of the Counter-Case. It therefore believes that by a unilateral expression of intention on the part of the Respondent, the whole of the proceedings instituted by the German Application have been transformed into proceedings instituted by agreement, without troubling to ascertain whether the Applicant has expressed a similar intention. The Court, having adopted this point of view, declares that the objection raised by the Respondent in the Rejoinder has been made too late ; but it admits that the Respondent might have raised the objection to the jurisdiction by making reservations in his oral argument in the suit ; this amounts to saying that, by a unilateral expression of intention on the part of the Respondent, the effect of the agreement tacitly concluded with the filing of the Counter-Case might have been nullified.

[204] But even if it be held that an agreement has been created by the fact that the Respondent has agreed to argue the merits of the Application, since the latter was based on Article 72, paragraph 3, of the Convention, it should be established that the agreement between the Parties has the effect of extending to Division II of the Third Part the compulsory jurisdiction bestowed on the Court by Article 72, paragraph 3, which only covers Division I of the Convention.

[205] This extension of jurisdiction is not admissible owing to the special nature of Part III of the Convention. Article 72, paragraph 3, reproduces the terms of Article 12, paragraph 3, of the Treaty of Minorities. This Treaty, which was concluded on June 28th, 1919, between the United States, the British Empire, France, Italy and Japan, on the one hand, and Poland on the other hand, was extended to Upper Silesia by the Decision of the Conference of Ambassadors of October 20th, 1921. The Treaty of Minorities for Upper Silesia was also placed under the guarantee of the League of Nations.

[206] In these circumstances, the power bestowed on Members of the Council under Article 72, paragraph 3, of the Convention can only be extended to apply to another Division in [p72] virtue of the same agreements which are necessary to establish this power. Consequently, this power cannot be extended to cover Division II by a tacit agreement between Germany and Poland.

[207] Again, such an extension of the power of Members of the Council enabling them also to bring before the Court differences of opinion in regard to Division II of Part III, would diminish the jurisdiction of the Council to decide upon (Article 147) the interpretation and application of provisions of Part III of the Convention (Article 148), more especially seeing that, as regards Division II, the Council has exclusive jurisdiction. But it is obvious that such a diminution of the Council's jurisdiction cannot result from a tacit agreement between Germany and Poland and that the extension of the Court's jurisdiction to include Division II is inadmissible.

[208] Even if it were possible to effect a modification of the Convention at the will of Germany and Poland, Germany would have to appear in the suit proprio nomine and not, as in the present case, in her capacity as a Member of the Council (under Article 72, paragraph 3); this renders it quite impossible for her to effect a modification of the Convention of Geneva concluded between Germany and Poland.

[209] Again, it is impossible to speak of an agreement to extend the Court's jurisdiction beyond what is laid down in the Geneva Convention, because the German Application invokes the Court's jurisdiction under Article 72, paragraph 3, of the Convention, and Germany has never contended that an agreement in regard to jurisdiction exists over and above the provisions of that article.

[210] Even supposing that a tacit agreement regarding the Court's jurisdiction had arisen between the Parties as a result of the filing of the Counter-Case, it would be easy to show that another tacit agreement, overcoming the first, had arisen during the oral proceedings.

[211] In accordance with Article 43 of the Statute and of the Rules, proceedings before the Court are divided into two phases, one written and the other oral, and the agreement is to be sought for and considered in the final submissions of the Parties. Thus, in the Chorzów case, the Court recorded [p73] the amendment of the submissions contained in the Case and Counter-Case, effected by the final submissions presented to it.

[212] The Agent for the German Government, in his oral statement of the case, alleged, relying on Article 38 of the Rules, that the objection to the jurisdiction was submitted too late; but in his reply on March 17th, 1928, he admitted that there was no such thing as an objection being submitted too late under Article 38, and that the question of the Court's jurisdiction could be considered ex officio at any stage of the proceedings : "I am aware that you, the Judges of the Court, can investigate ex officio the question of jurisdiction at every stage of the proceedings."

[213] The Agent for the Polish Government has explained the reason for the late submission of the objection: "You see, Gentlemen, I have not raised this objection as a preliminary objection; I have joined it to the merits of the case."

[214] In these final submissions, the German Government persisted in its erroneous belief that the Court had jurisdiction under Article 72, paragraph 3; the Polish Agent, on the other hand, submitted that the Court had no jurisdiction. This proves that the Parties were unaware of the existence of a tacit agreement regarding the Court's jurisdiction and that their mutual intention was to abide within the limits of the jurisdiction established by Article 72, paragraph 3, of the Geneva Convention.

(Signed) Demetre Negulesco.

[p74] Dissenting Opinion by M. Schücking.

[215] I regret that I cannot concur in the judgment of the Court. As regards a statement of my separate opinion, I will confine myself to referring to Section IV of M. Nyholm's dissenting opinion; what is therein stated entirely represents my views.

(Signed) W. SCHÜCKING.

[p75] Annex I.

Geneva Convention concerning Upper Silesia

Signed at Geneva, May 15th, 1922.

Part III.

Protection of Minorities.

Division I.

Whereas the Conference of Ambassadors decided, on October 20th, 1921:

(1) that the Treaty with regard to the Protection of Minorities, etc., concluded on June 28th, 1919, between the United States of America, the British Empire, France, Italy and Japan on the one part, and Poland on the other part, should be applicable to those parts of Upper Silesia definitely recognized as part of Poland;
(2) that the principles of equity and the maintenance of the economic life of Upper Silesia demand that the German Government should be bound to accept, at least for the transitional period of fifteen years dating from the definitive allocation of the territory, stipulations corresponding to Articles 1, 2, 7, 8, 9 (paragraphs 1 and 2), 10, 11 and 12 of the said Treaty as regards those parts of Upper Silesia definitely recognized as part of Germany;
(3) that the provisions of the agreement to be concluded between the German and Polish Governments in order to put into force the above-mentioned principles, constitute obligations of international concern for Germany and Poland, and shall be placed under the guarantee of the League of Nations in the same way as the provisions of the Treaty of June 28th, 1919 ;

The two Contracting Parties have agreed on the following provisions:

Article 64.

The German Government agrees that for the transitional period of fifteen years the following provisions shall be applicable in the German part of the plebiscite area The Polish Government refers to the following provisions of the Treaty of June 28th, 1919, which shall be automatically applicable in the Polish part of the plebiscite area. [p76]

Article 65.

(Article 1 of Minorities Treaty of June 28th, 1919.)

Germany undertakes that the stipulations contained in Articles 66 to 68 shall be recognized as fundamental laws, and that no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them. Poland undertakes that the stipulations contained in Articles 66 to 68 shall be recognized as fundamental laws, and that no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them.

Article 66.

(Article 2 of Minorities Treaty of June 28th, 1919.)

(1) Germany undertakes to assure full and complete protection of life and liberty to all inhabitants without distinction of birth, nationality, language, race or religion.

(2) All inhabitants shall be entitled to free exercise, whether public or private, of any creed, religion or belief, whose practices are not inconsistent with public order or public morals. (1) Poland undertakes to assure full and complete protection of life and liberty to all inhabitants of Poland without distinction of birth, nationality, language, race or religion.

(2) All inhabitants of Poland shall be entitled to free exercise, whether public or private, of any creed, religion or belief, whose practices are not inconsistent with public order or public morals

Article 67.

(Article 7 of Minorities Treaty of June 28th, 1919.)

(1) All German nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or. religion.

(2) Differences of religion, creed or confession shall not [p77] prejudice any German national in matters relating to the enjoyment of civil or political rights, as for instance admission to public employments, functions and honours, or the exercise of professions and industries.

(3) No restriction shall be imposed on the free use by any German national of any language in private intercourse, in commerce, in religion, in the press or in public relations of any kind, or at public meetings.

(4) Notwithstanding any establishment by the German Government of an official language, adequate facilities shall be given to German nationals of non-German speech for the use of their language, either orally or in writing, before the Courts.

(1) All Polish nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or religion.

(2) Differences of religion, creed or confession shall not prejudice any Polish national in matters relating to the enjoyment of civil or political rights, as for instance admission to public employments, functions and honours, or the exercise of professions and industries.

(3) No restriction shall be imposed on the free use by any: Polish national of any language in private intercourse, in commerce, in religion, in the press or in public relations of any kind, or at public meetings.

(4) Notwithstanding any establishment by the Polish Government of an official language, adequate facilities shall be given to Polish nationals of non-Polish speech for the use of their language, either orally or in writing, before the Courts.
Article 68.

(Article 8 of Minorities Treaty of June 28th, 1919.)

German nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other German nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein. Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Polish nationals. In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein. [p78]

Article 69.

(Article 9, paragraphs 1 and 2, of Minorities Treaty of June 28th, 1919.)

(1) Germany will provide in the public educational system in towns and districts in which a considerable proportion of other than German speech are residents adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such German nationals through the medium of their own language. This provision shall not prevent the German Government from making the teaching of the German language obligatory in the said schools.

(2) In towns and districts where there is a considerable proportion of German nationals belonging to racial, religious or linguistic minorities, these minorities shall be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds under the State, municipal or other budget, for educational, religious or charitable purposes.

(1) Poland will provide in the public educational system in towns and districts in which a considerable proportion of Polish nationals of other than Polish speech are residents adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such Polish nationals through the medium of their own language. This provision shall not prevent the Polish Government from making the teaching of the Polish language obligatory in the said schools.

(2) In towns and districts where there is a considerable proportion of Polish nationals belonging to racial, religious or linguistic minorities, these minorities shall be assured an equitable share in the enjoyment and application of the sums which may be provided out of public funds under the State, municipal or other budget, for educational, religious or charitable purposes.

Article 70.

(Article 10 of Minorities Treaty of June 28th, 1919.)

Educational Committees appointed locally by the Jewish communities will, subject to the general control of the State, provide for the distribution of the proportional [p79] share of public funds allocated to Jewish schools in accordance with Article 69, and for the organization and management of these schools. The provisions of Article 69 concerning the use of languages in schools shall apply to these schools. Educational Committees appointed locally by the Jewish communities of Poland will, subject to the general control of the State, provide for the distribution of the proportional share of public funds allocated to Jewish schools in accordance with Article 69, and for the organization and management of these schools. The provisions of Article 69 concerning the use of languages in schools shall apply to these schools.

Article 71.

(Article 11 of Minorities Treaty of June 28th, 1919.)

(1) Jews shall not be compelled to perform any act which constitutes a violation of their Sabbath, nor shall they be placed under any disability by reason of their refusal to attend courts of law or to perform any legal business on their Sabbath. This provision, however, shall not exempt Jews from such obligations as shall be imposed upon all other German citizens for the necessary purposes of military service, national defence, or the preservation of public order.

(2) Germany declares her intention to refrain from ordering or permitting elections, whether general or local, to be held on a Saturday, nor will registration for electoral or other purposes be compelled to be performed on a Saturday. (1) Jews shall not be compelled to perform any act which constitutes a violation of their Sabbath, nor shall they be placed under any disability by reason of their refusal to attend courts of law or to perform any legal business on their Sabbath. This provision, however, shall not exempt Jews from such obligations as shall be imposed upon all other Polish citizens for the necessary purposes of military service, national defence, or the preservation of public order.

(2) Poland declares her intention to refrain from ordering or permitting elections, whether general or local, to be held on a Saturday, nor will registration for electoral or other purposes be compelled to be performed on a Saturday.

Article 72.

(Article 12 of Minorities Treaty of June 28th, 1919.)

(1) Germany agrees that the stipulations in the foregoing articles, so far as they affect persons belonging to racial, religious or linguistic minorities, [p80] constitute obligations of international concern and shall be placed under the guarantee of the League of Nations. They shall not be modified without the assent of a majority of the Council of the League of Nations.

(1) Poland agrees that the stipulations in the foregoing articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations. They shall not be modified without the assent of a majority of the Council of the League of Nations. The United States, the British Empire, France, Italy and Japan hereby agree not to withhold their assent from any modification in these articles which is in due form assented to by a majority of the Council of the League of Nations.

(2) Germany agrees that any Member of the Council of the League of Nations shall have the right to. bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances.

(3) Germany further agrees that any difference of opinion as to questions of law or fact arising out of these articles between the German Government and any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The German Government hereby consents that any such dispute shall, if the other Party thereto demands, be referred to the Permanent Court of International Justice. The decision [p81] of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant. (2) Poland agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances.

(3) Poland further agrees that any difference of opinion as to questions of law or fact arising out of these articles between the Polish Government and any one of the Principal Allied and Associated Powers or any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations. The Polish Government hereby consents that any such dispute shall, if the other Party thereto demands, be referred to the Permanent Court of International Justice. The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant.

Division II.

In order that the protection of minorities in the two portions of the plebiscite territory may be based on the principle of equitable reciprocity, and in order to take account of the special conditions resulting from the transitional; regime, the Contracting Parties, without prejudice to the provisions of Section I of the present Part, have agreed on the following provisions for a period of fifteen years.

The contents of Articles 65 to 72 are only repeated in the present Section for the purpose of giving a general view.

Chapter I

General Provisions.

Article 73.

(1) Poland and Germany undertake that the stipulations contained in Articles 66, 67 and 68 shall be recognized as fundamental laws, that no law, regulation or official action will be permitted to stand in contravention of or in opposition to these stipulations and that no law, regulation or official action shall prevail against them.

(2) Tribunals and courts of justice, including administrative, military and extraordinary tribunals, shall be competent to examine legislative or administrative provisions in order to ascertain whether they conflict with the stipulations of this Part.

Article 74.

The question whether a person does or does not belong to a racial, linguistic or religious minority may not be verified or disputed by the authorities. [p82]

Chapter IV.
Education.

Section I. - Private Education.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section II. - Public Elementary Education.

Article 105.
§ 1. For the purposes of the present chapter, elementary schools shall be taken to mean schools, other than extension (supplementary) schools, which children must attend if the prescribed tuition is not given to them in any other manner.
§ 2. The requirements of minorities as regards public elementary education shall be supplied by means of the following educational institutions:

(a) elementary schools employing the language of the minority as the language for imparting instruction, known as minority schools ;
(b) elementary classes employing the minority language as the language for imparting instruction attached to elementary schools employing the official language, known as minority classes;
(c) minority courses including:

(1) tuition in the minority language (minority language courses) ;
(2) religious instruction in the minority language (minority religious courses).

Article 106.

§ 1.
(1) A minority school shall be established on the application of a national, supported by the persons legally responsible for the education of at least forty children belonging to a linguistic minority, provided that these children are nationals of the State, that they belong to the same school district (Schulverband—zwiqzek szkolny), that they are of the age at which [p83] education is compulsory, and that the intention is that they should attend the said school.

(2) If at least forty such children belong to the same denomination or religion, a minority school of the denominational or religious character desired shall be established on application.

(3) Should the establishment of a minority school be inexpedient for special reasons, minority classes shall be formed.

§ 2.
The applications mentioned in paragraphs 1 and 2 of § 1 shall be complied with as expeditiously as possible and not later than the beginning of the school year following the application, provided that the latter has been submitted at least nine months before the beginning of the school year.

Article 107.

(1) On the application of a national, supported by the persons legally responsible for the education of at least eighteen pupils of an elementary school who are nationals of the State and belong to a linguistic minority, minority language courses shall be formed as soon as possible for such pupils.

(2) Under the same conditions, if not less than twelve of such pupils belong to the same denomination or religion, minority courses for religious instruction shall be formed for these pupils upon application.

Article 108.
§ 1.
(1) Minority educational institutions may only be suppressed if the number of pupils attending them has fallen below the number fixed for their establishment for three consecutive years.
(2) Nevertheless their suppression may be ordered at the end of a school year if throughout the whole of that year the number of pupils has been less than one half of the number contemplated.
§ 2.
In the event of the suppression of a minority educational institution, the minority may maintain such institution as a [p84] private concern. When circumstances permit, the premises and educational equipment used may be left at the disposal of the institution.

Section III. - Vocational and Supplementary Education.

Section IV. - Secondary and Higher Education.

Section V. - General Provisions.

Article 131.

(1) In order to determine the language of a pupil or child, account shall only be taken of the verbal or written statement of the person legally responsible for the education of the pupil or child. This statement may not be verified or disputed by the educational authorities.

(2) Similarly, the educational authorities must abstain from exercising any pressure, however slight, with a view to obtaining the withdrawal of requests for the establishment of minority educational institutions.

Article 132.
§ 1. By language for imparting instruction or language considered as a subject of the curriculum is meant correct literary Polish or German as the case may be.
§ 2. When a minority language is the language for imparting instruction, it shall be used for the teaching of all subjects, except for the teaching of Polish in the Polish part of the plebiscite territory and for the teaching of German in the German part of that territory, when instruction in these languages forms part of the school curriculum.
§ 3. Minority courses in the minority language shall be given in that language.
……………………………………………… [p85]

Division III.
Rights of Petition and Means of Redress.

Article 147.
The Council of the League of Nations shall be competent to decide upon any individual or collective petitions relating to the provisions of this Part or addressed directly to it by persons belonging to a minority. When the Council transmits such petitions to the Government of the State in the territory of which the petitioners are resident, this Government shall return them to the Council for examination, with or without observations.
………………………………………………….

Article 149.
As regards the application or interpretation of the provisions of this Part by administrative authorities who receive orders from their immediate superiors, persons belonging to a minority may, in accordance with the following provisions, submit a petition for consideration by the Office of Minorities of the State to which they belong. This Department shall, in accordance with the special conditions laid down in the following articles, transmit such petitions to the President of the Mixed Commission for his opinion. Should the petitioners not be satisfied with the solution given to the matter by the administrative authority, they may appeal to the Council of the League of Nations.

Article 157.
The appeal to the Council of the League of Nations provided for in Article 149 shall be addressed to the Office of Minorities. The latter shall cause it to be forwarded to the Council by the Government. [p86]

Annex II.

I. Documents Submitted to the Court by the Parties during the Proceedings.

A. - Documents transmitted by the Agent for the German Government.

Extract from the German-Polish Convention concerning Upper Silesia (May 15th, 1922).

Appeal by the Deutscher Volksbund of Polish Silesia concerning the admission of children to German minority elementary schools in the Voïvodeship of Silesia:

Note by the Secretary-General of the League of Nations (February 21st, 1927).

Letter of the Polish delegation to the Secretary-General of the League of Nations (February 11th, 1927).

Appeal of the Deutscher Volksbund (January 15th, 1927).

Observations of the Polish Government on the appeal of the Deutscher Volksbund of January 15th, 1927 (February 18th, 1927).

Sub-annex I to the Observations of the Polish Government: Declaration by the Voïvode of Silesia (January 13th, 1927).

Sub-annex II to the Observations of the Polish Government: Opinion given by the President of the Mixed Commission for Upper Silesia, dated December 15th, 1926, in Case No. 257.

Report by H.E. M. Urrutia to the Council of the League of Nations (March 5th, 1927), on the appeal of the Deutscher Volksbund of January 15th, 1927.

Extract from the minutes of the 44th Session of the Council of the League of Nations. - Third public sitting (March 8th, 1927).

Extract from the minutes of the 44th Session of the Council of the League of Nations. - Seventh public sitting (March 12th, 1927).

Extract from the minutes of the 48th Session of the Council of the League of Nations. - Fifth sitting (public and subsequently private - December 8th, 1927).

Circular of the President of the Government of Oppeln (August 4th, 1923).

Circular of the Voïvodeship of Silesia concerning the execution of the provisions of the Geneva Convention in the matter of minority schools (September 1st, 1923).

Article 227 of the Agreement of October 24th, 1921, between the Free City of Danzig and Poland.

Opinion of the President of the Mixed Commission for Upper Silesia on the application of the Deutsch-Oberschlesischer Volksbund (December 15th, 1926).

Opinion of the President of the Mixed Commission for Upper Silesia in the matter of the minority school at Gieraltowice (October 12th, 1927).

Award of the Upper Silesian Arbitral Tribunal in the case of the doctor of medicine Bruck of Katowice (October 15th, 1927).

Decrees of the Voïvode of Silesia:

I. Decree of December 29th, 1922.

Sub-annex A: Decree of August 21st, 1922, regarding the organization of elementary education. [p87]

Sub-annex B : Decree of August 21st, 1922, concerning the carrying out of paragraph 2 of Article 114 of the. German-Polish Convention.

II. Decree of June 26th, 1924.

Opinion by the President of the Mixed Commission for Upper Silesia on the application of Messrs. Jung and others (January 3rd, 1924).

Extracts from the minutes of the Eleventh Committee at Geneva :

I. First sitting (February 14th, 1922).

II. Second (……”…...15th, ” ).

III. Seventh ( ” 22nd, ” )

IY. Eleventh (March 3rd, 1922)

Extracts from the Convention between Poland and the Free City of Danzig, November 9th, 1920 (Chapter V, Article 33).

Extract from the Convention between Germany and Poland concerning Upper Silesia, May 15th, 1922 (Article 73).

Opinion by the President of the Mixed Commission for Upper Silesia concerning the closing of the minority school at Wilcza-Gorna (December 20th, 1925).

Opinion of the President of the Mixed Commission for Upper Silesia concerning the action of the Commandant of the local police and of the bailiff and mayor of Brzezie (December 2nd, 1927).

Opinion of the President of the Mixed Commission for Upper Silesia concerning the premises of the minority school at Brzezinka (December 14th, 1927).

B. - Documents transmitted by the Agent for the Polish Government.

Extract from the German-Polish Convention of May 15th, 1922, concerning Upper Silesia; articles relating to the protection of minorities.

Summonses issued by the Polish police in Upper Silesia.

Records of the examinations in the German language held by M. Maurer, the neutral educational expert, in the neighbourhood of Wielkie Piekary, June 1st, 1927.

Records of the examinations in the German language held by M. Maurer, the neutral educational expert, in the neighbourhood of Chwałowice, June 10th, 1927.

Extract from the minutes of the 19th Session of the Council of the League of Nations (seventh sitting, July 20th, 1922).

Extract from the minutes of the 18th Session of the Council of the League of Nations (ninth sitting, May 16th, 1922).
Opinion by the President of the Mixed Commission, dated June 30th, 1924, amending his Opinion of January 3rd in the case of Auguste Jung and others (Polish, French and German texts).

Letter sent on July 30th, 1926, by the President of the Mixed Commission to the Agent for the Polish Government.

II. Official Instruments Consulted by the Court.

Treaty of June 28th, 1919, between the Principal Allied and Associated Powers and Poland (Treaty of Minorities).

Extracts from the Polish-Czechoslovak Convention of November 29th, 1920.

Decision of the Conference of Ambassadors of October 20th, 1921.

Agreement of October 24th, 1921, between the Free City of' Danzig and Poland concerning school questions (Article 227, German text, with annex). [p88]

Resolution of the Council of the League of Nations and memorandum by the Secretary-General dated May 16th, 1922.

Minutes of the 19th Session of the Council of the League of Nations. - Seventh sitting (July 20th, 1922).

Report by M. da Gama, dated July 22nd, 1922, to the Council of the League of Nations.

Extracts from the minutes of the 49th Session of the Council of the League of Nations.- Fourth sitting (March 7th, 1928).






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