General List No. 40

Advisory Opinion No. 19

 15 May 1931

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty First Session

 

Access to German Minority Schools in Upper Silesia

 

Advisory Opinion

     
 
BEFORE: President: Adatci
Vice-President: Guerrero
Judges: Kellogg,Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, Altamira, Anzilotti, Sir Cecil Hurst, Schόcking, Negulesco, Jonkheer van Eysinga
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1931.05.15_upper_silesia.htm
  
Citation: Access to German Minority Schools in Upper Silesia, Advisory Opinion, 1931 P.C.I.J. (ser. A/B) No. 40 (May 15)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 40; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1931
  
 

  

[p4] The Court, composed as above, gives the following opinion: [p5]

[1] On January 24th, 1931, the Council of the League of Nations adopted the following Resolution:

"The Council of the League of Nations has the honour to request the Permanent Court of International Justice to give an advisory opinion, in accordance with Article 14 of the Covenant, on the following question:

'Can the children who were excluded from the German Minority schools on the basis of the language tests provided for in the Council's Resolution of March 12th, 1927, be now, by reason of this circumstance, refused access to these schools?'

The Secretary-General is authorized to submit the present request to the Court, to give any assistance required in the examination of the question and, if necessary, to take steps to be represented before the Court."

[2] In pursuance of this Resolution, the Secretary-General, on January 31st, 1931, transmitted to the Court a Request for an advisory opinion in the following terms:

"To the Permanent Court of International Justice.
The Secretary-General of the League of Nations,
in pursuance of the Council Resolution of January 24th, 1931, and in virtue of the authorization given by the Council,
has the honour to submit to the Permanent Court of International Justice an application requesting the Court, in accordance with Article 14 of the Covenant, to give an advisory opinion to the Council on the question which is referred to the Court by the Resolution of January 24th, 1931.
The Secretary-General will be prepared to furnish any assistance which the Court may require in the examination of this matter and will, if necessary, arrange to be represented before the Court."

[3] The Request was accompanied by the Report upon which the Council had adopted the Resolution quoted above. The minutes of the meeting at which this Resolution was adopted were sent subsequently. The Secretary-General also forwarded to the Court the documents indicated in the annex [FN1].

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[FN1] See Annex 1.
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[4] In conformity with Article 73, No, 1, paragraph 1, of the Rules of Court, the Request was communicated to Members of the League of Nations and to States entitled to appear [p6] before the Court. Furthermore, the Registrar, by means of a special and direct communication, informed the German and Polish Governments, which were regarded by the Court as likely, in accordance with the terms of Article 73, No. 1, paragraph 2, of the Rules, to be able to furnish information on the question submitted to the Court for advisory opinion, that the Court was prepared to receive from them written statements and, if they so desired, to hear oral statements made on their behalf at a public hearing to be held for the purpose. At the same time, the interested Governments were requested to indicate the times within which they would be ready to file their written statements, if any.

[5] On receipt of this information, the President of the Court, by an Order made on February 24th, 1931, fixed March 25th, 1931, as the date by which were to be filed the written statements the submission of which had been announced by the two Governments; he added that it was not the intention of the Court to call for the submission of a second written statement, but that should the two Governments, or one of them, desire it, the Court would be prepared to receive a second statement on April 13th. On the former of these dates, statements were filed on behalf of the German and Polish Governments; on the second a statement was filed on behalf of the German Government only, the Polish Government announcing that it did not intend to submit a second written statement.

[6] In the course of public sittings held on April 15th, 16th, 17th, 18th, 20th and 22nd, 1931, the Court heard the oral arguments of M. Erich Kaufmann, on behalf of the German Government, and of M. Jean Mrozowski, on behalf of the Polish Government, and also the replies given by them to questions put to them by the Court.

[7] In addition to the statements and observations of the Governments concerned and the documents transmitted by the Secretary-General of the League of Nations, as stated above, the Court had before it a series of documents placed on the record in the course of the hearings by the representatives of the two Governments or sent to it by the Secretary-General of the League of Nations at the Court's request [FN1]. [p7]

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[FN1] See Annex 2
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***

[8] The above being the state of the proceedings and the submission of the case being in all respects regular, the request for an advisory opinion arises in the following circumstances:

[9] Article 69 of the Convention of May 15th, 1922, between Germany and Poland concerning Upper Silesia lays down, in paragraph 1, that the Polish Government "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".

[10] According to Article 74 of the same Convention, "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".

[11] Article 131 adds: "(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."

[12] Lastly, by Article 132, paragraph 1, the German and Polish Governments have stipulated that "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".

[13] In 1926, difficulties arose between the Deutscher Volksbund, representing the German Minority, and the Polish authorities, following upon a rush of applications for the admission of children to the German schools for the school year 1926-1927, and as the result of an administrative enquiry held by the [p8] Polish authorities into the regularity of these applications and the rejection of a large number of them by those authorities on the ground that they were irregular or that the children did not belong to the German Minority.

[14] A petition on the subject submitted by the Deutscher Volksbund to the Polish Minorities Office, was, in accordance with Article 149 of the Convention, referred to M. Calonder, President of the Mixed Commission set up under the Convention, for his opinion. M. Calonder's opinion not having been accepted by the Polish authorities, the Deutscher Volksbund; acting under the same article, appealed to the Council of the League of Nations on February 12th, 1927.

[15] After receiving this appeal, the Council adopted the following Resolution on March 12th, 1927:

"I. — The Council, having examined the appeal by the Deutscher Volksbund of Upper Silesia:

(A) notes the Polish Government's statement to the effect that children have been admitted to the minority schools whose mother-tongue, according to the declarations made by the persons legally responsible for their education during the enquiry held in the summer of 1926, was German;
(B) directs the Polish Government's attention 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.

Accordingly, an opportunity should be given to children in these two categories to enter the minority schools as soon as possible and without fresh application, except when the child

(a) did not possess Polish nationality; [p9]
(b) was entered for the minority school by a person who was not legally responsible for the child's education;
(c) did not belong to the school district;
(d) should have attended another school;
(e) was no longer of compulsory school age.

Children who, in view of the above considerations, should be admitted to a minority school but are at present attending a Polish school may remain there until the end of the present school year.
All proceedings therefore should be suspended that may have been taken against the person responsible for the child's education because the child did not appear at the Polish school when such child, in virtue of the foregoing considerations, should be admitted to a minority school.

II. — The Council considers that it is inexpedient to admit to minority schools children who speak only Polish.
The Council decides to institute a system of enquiry into the concrete cases falling under the categories mentioned in paragraph I B, 1 and 2 above, which may appear doubtful to the Polish local school authorities.
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 enquiry will be to ascertain whether or not the child speaks the "school" language used in the minority school so that it can usefully attend that school.
The method of enquiry will be as follows:
In every doubtful case, the local authorities shall refer the question to the President of the Upper Silesian Mixed Commission, assisted by a Swiss national, who shall be an expert in educational matters, appointed by the Council of the League of Nations or by the present Committee. If, in view of the expert's opinion as to the child's knowledge of German, the President declares that it would be useless for the child to attend the minority school, the child shall be excluded from that school.
The financial arrangements concerning the expert shall be made by the Rapporteur, with the assistance of the Secretary-General, on a basis of payment of costs by the League of Nations, subject to refund by the Polish Government. [p10]

III. — The system of enquiry laid down in paragraph II above shall also be applied in the case of children in respect of whom the persons legally responsible for their education declared, at the enquiry held in 1926, that their mother-tongue was Polish, should these persons express such a desire. In such cases the child in question shall be allowed to enter the minority school if, in view of the expert's opinion as to its knowledge of German, the President declares that the child could usefully be admitted to that school.

IV. — 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 Rapporteur to the Council unless the Rapporteur considers it necessary to refer it to the Council.

V. — 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; it shall not be interpreted as in any way modifying the provisions of that Convention."

[16] This Resolution adopted the proposals made by the Rapporteur, who stated that the proposals were inspired by the "desire to find a practical solution of this extremely urgent matter without attempting to deal with certain legal questions".

[17] In the course of the observations made on that occasion by the German representative, who was then President of the Council, and by the Polish representative, the German representative made the following statement:

"The German Government regards the proposal submitted by the representatives of Colombia, Italy and the Netherlands as a way out of the difficulties which recently arose in connection with the Minority schools in Polish Upper Silesia. Let me express to the members of the Council who drew up this report my thanks for their efforts.
I wish, however, to point out that the report: which we have just heard read; out leaves open the legal question in connection with this affair. I wish to add a. few words on this subject. [p11]
Articles 74 and 131 of the Geneva Convention lay down quite explicitly that the statements of the children's parents may be neither verified nor contested, and, to my mind, there can be no doubt that the opinion given by M. Calonder lays down the legal situation in an absolutely accurate manner. It follows that, from the legal point of view, there can be no question that even a child which knows no language but Polish must be allowed admission to the Minority school. The principle that the decision as to which school the child is to attend depends solely upon its parents' wishes must in future be rigidly maintained, irrespective of the language spoken by the child. I am glad that on this point I find myself in agreement with the views of the Polish Government, which, in a note dated July 19th, 1921, concerning Polish schools in the Free City of Danzig, states that 'the question whether the child speaks Polish or is of Polish origin must be determined solely by the verbal or written statement of its legal representative. The school authority is not entitled to examine the statement made in the parents' declaration.'
If the German Government makes no objection to the report, notwithstanding the legal position which I have outlined, it is because, as is emphasized in the last paragraph of the report, the solution in the present case is to be regarded only as an exceptional measure and applicable only to an exceptional situation. The object of that solution is to get over an exceptional emergency which could not be foreseen; in the interests of the children a speedy solution had to be found, and therefore there was, unfortunately, no possibility of solving the legal question which arises in this particular case; otherwise the children would have continued to have no regular schooling for months to come. M. Calonder, too, has pointed out that the legal position may result in educational disadvantages — a point of view which also favours a practical solution.
The German Government, however, could not agree to the report if the examination of the children proposed in it were also to apply to subsequent disputes and if the result of the present settlement were to introduce any new permanent factor into the Geneva Convention.

We confidently expect that no question as to the legal position will arise in the future. Should that position, however, again be called in question, Germany would be obliged to press for a fundamental and final decision with regard to it." [p12]

[18] No objection was raised to this statement, and the Rapporteur merely pointed out that:

"The statements made do not in any way amend our proposals, and I hope that they will be unanimously accepted. It will be sufficient to include these statements in the minutes of this meeting."

[19] Such were the conditions in which the Resolution was adopted.

[20] Some months later the same difficulties again arose.

[21] On October 18th, 1927, the Polish Government, relying on paragraph IV of the Resolution of March 12th, requested the Rapporteur "to make a pronouncement as to whether the system of enquiry established by the Resolution of March 12th, 1927, should by the terms of the third paragraph of Part II, be applied to 735 children of the school year 1927-1928".

[22] The Rapporteur having replied in the affirmative, the German Government took exception to this view and brought the question before the Council, contending that the Resolution of March 12th referred "solely to those children whose entry in the school registers was then under discussion, that was to say, those belonging to the 1926-1927 class", that there was a divergence of view "concerning the scope of the March Resolution", and that it had now become necessary "to clear up finally the legal questions of principle governing the admission of children to the German Minority schools".

[23] Before the Council, the German representative declared that his Government intended to apply, under the Convention of 1922, to the Permanent Court of International Justice for an interpretation of the relevant provisions of the Convention.

[24] He assumed "that the Council would immediately notify its agreement with the proposition that the decision of the Permanent Court should also definitely regulate the position of the children belonging to the 1927-1928 class".

[25] The President then proposed that the Council "should note the German representative's declaration. It must be understood — he said — that the examinations at present proceeding [p13] of children belonging to the school year 1927-1928 would continue. The decision which might be taken by the Court would decide whether children who, as a consequence of the examinations, might be transferred to the Polish school, should finally be admitted to the Minority schools."

[26] This proposal of the President was adopted, purely and simply, and in this way, a second Resolution of the Council of the League of Nations dated December 8th, 1927, came into existence.

[27] The system of examinations which had been begun under M. Maurer, a Swiss expert, after the passing of the Resolution of March 12th, was, accordingly, carried on during the summer and autumn of 1927, and until February 1928.

[28] Meanwhile, the German Government, in conformity with the intention which it had announced, instituted proceedings before the Permanent Court of International Justice by means of an application in which it asked for judgment to the effect that the German-Polish Convention relating to Upper Silesia, and in particular Articles 74 and 131, provided for declarations of a purely subjective character, merely expressing the desire of the parents that their children should be admitted to a German Minority school, and that such declarations were not subject to any enquiry, dispute, pressure or hindrance whatever.

[29] In answer to this application, the Polish Government maintained, on the contrary, that the Convention no doubt allowed the parents freedom to make declarations, but that such declarations must be of an objective character and must state whether or not the child belongs to a minority and what is the language of the child.

[30] In its judgment of April 26th, 1928, the Court decided:

"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 of child for whose education he is legally responsible; [p14]
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 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".

[31] In May, 1928, requests for admission to the German schools were submitted on behalf of 172 children who, at the time when entries for the Minority schools were being made for the year 1928-1929, had just undergone the language test and had been found not to possess an adequate knowledge of German.

[32] These applications were, like the preceding ones, rejected by the Polish authorities. Once more, the Deutscher Volksbund submitted petitions to the President of the Mixed Commission (September 1928 — January 1929), contending that the decisions excluding children who had failed to pass the tests had ceased to operate after the expiry of the school year 1927-1928.

[33] On February 15th, 1929, the President of the Mixed Commission delivered his opinion. In it he recalled the interpretation given by the Court and observed that "if he took into consideration only the Geneva Convention and the judgment of the Court, he would have had to give an opinion to the effect that all the pupils in question should be admitted to the Minority schools, seeing that the persons responsible for their education had declared in each case that the child's language was German". But, he added, there was another factor which had, as an exception, to be taken into consideration in the present case, namely the Resolutions of the Council of March 12th and December 8th, 1927, and the language tests carried out in pursuance thereof, which had shown that these children who had been examined between May 24th, 1927, and February 27th, 1928, did not possess an adequate knowledge of the German language. [p15]

[34] Considering that this was a situation of a quite peculiar character, transitional between the Council's Resolutions and the Court's judgment, the President of the Mixed Commission felt "authorized and compelled to cause considerations of equity and of a conciliatory school policy to prevail, as an exception, over the strict legal principles enunciated in the judgment of the Hague Court, which prohibit any questioning of a declaration as to the language of a child and oblige it to be respected without regard to its accuracy". M. Calonder added that it was not possible for the children to have learned German in the short time which had elapsed between the examination and the application for admission, that, for the future, he would be bound by the judgment of the Hague Court, but for the present, it was manifest that the declarations were not in conformity with the facts. He, therefore, upheld the decision of the Polish authorities that the children should be excluded.

[35] Again, in November-December 1929 — this time with reference to the school year 1929-1930 — the same questions were raised by the Deutscker Volksbund in regard to sixty children who had been excluded as a result of M. Maurer's examinations in 1927-1928.

[36] On this occasion the President of the Mixed Commission, in an opinion dated February 10th, 1930, ruled that these children should be admitted to the German Minority schools, while the Polish authorities maintained, on the contrary, that the Council's Resolution of March 12th, 1927, must be construed as signifying that the results of the language tests should be regarded as possessing a permanent and definitive character.

[37] As the opinion of the President of the Mixed Commission was thus not accepted by the Polish authorities, the Deutscher Volksbund once more appealed to the Council of the League of Nations (September, 1930).

[38] On January 24th, 1931, the Council decided to ask the Court for an advisory opinion, as provided in Article 14 of the Covenant, in regard to the following question:

"Can the children who were excluded from the German Minority schools on the basis of the language tests provided for in the Council's Resolution of March 12th, [p16] 1927, be now, by reason of this circumstance, refused access to these schools?"

[39] It is in these circumstances that the Court is now called upon to give its opinion.

***

[40] In order to reply to the question put to the Court, it is necessary to determine the character, force and scope of the arrangement adopted by the Council in its Resolution of March 12th, 1927, and the effects of its application.

[41] In the first place, it is clear that the arrangement adopted on March 12th, 1927, by a unanimous vote of the members of the Council, is evidence that, for the school year 1926-1927, both the Polish and German Governments had come to a compromise in regard to their respective standpoints: Germany by accepting the proposal for language tests, and Poland by consenting to admit to the German schools a number of children whom its authorities had excluded.

[42] However, without going into the question whether the arrangement adopted by the Council's Resolution of March 12th, 1927, was solely an agreement in the nature of a compromise between the two Governments concerned duly accepted by the Council, or whether the assent of the respective Governments resulted from their participation in the unanimous vote of the Council, so that the character of the Resolution as a Council resolution was not affected, it suffices to note that the arrangement was accepted by both sides. It was regularly adopted by the Council, no matter whether that body intended to act under Article 149 of the Convention, or in virtue of the general powers conferred on it by the Covenant. It is not disputed that the arrangement, as accepted, was valid and binding for both countries.

[43] On the other hand, the Council declared that it did not intend to modify the Convention. As has been seen (para. V of the Resolution), it carefully abstained from doing so. The system of language tests was expressly described, with the acquiescence of the two Governments signatories of the Convention, as an "exceptional" measure, solely intended to meet a temporary situation, namely the existence of a large number [p17] of children whose admission to the German school had been applied for but who had been excluded therefrom.

[44] In point of fact, since different opinions were held as to the interpretation of the provisions of the Convention, no question of applying these provisions arose. At a later date, it became necessary to determine the interpretation of these provisions. That was the object of the recourse to the Court of Justice and of the judgment delivered on April 26th, 1928.

[45] Similar observations may be made in regard to the consequences resulting from the execution of the arrangement of March 12th, 1927.

[46] The system of language tests provided by the Council had in view (1) "concrete cases falling under the categories mentioned in paragraph I (B), 1 and 2 above": in other words, children in respect of whom applications for admission to the German schools had been made for the school year 1926-1927, and who had been excluded by the Polish authorities on the ground of failure on the part of the parents to appear at the administrative enquiry or that they did not belong to the German minority; — and (2) children whose parents had not yet submitted an application and who therefore had not been excluded but whose cases likewise seemed doubtful to the Polish school authorities.

[47] This system of tests, as sanctioned by the second Resolution of December 8th, 1927, was restricted to children in respect of whom applications for admission to German Minority schools for the school year 1927-1928 had been made.

[48] No adequate proof has been furnished that, in the present case, the "school year" should be regarded as meaning anything other than the period (September to June) during which instruction is given in the public schools. It is therefore only in respect of the school years for which applications for admission had been made, that the language tests were instituted.

[49] One does not understand how these language tests could have resulted in settling the situation of these children throughout the whole period of their compulsory attendance at school and thereby cause the effects of the arrangement to prevail over the application of Articles 74 and 131 of the Convention. [p18]

[50] This appears all the more evident because it is not disputed that there is nothing to prevent parents from demanding the transfer of children from an ordinary Polish school to a German Minority school during the period of their school attendance.

[51] The only object of the system of language tests, and its only consequence, was to ascertain whether children could profitably attend schools in which literary German was the language of instruction. The Council did not intend — as has been seen — to replace the system of declarations provided in Articles 74 and 131 of the Convention, the legal scope of which was disputed, by another system. As was specifically stated, the legal issue was left open, and it was only resolved by the Court's judgment of April 26th, 1928.

[52] Thus, when, in December, 1927, the Council had to consider the same difficulty in regard to the school year 1927-1928 as had been submitted to it a few months previously in regard to the school year 1926-1927, it provided in its Resolution of December 8th for the system of language tests to be continued only for the year 1927-1928. As at that moment a legal interpretation of the Convention, which would enable the latter to be applied strictly, was expected very shortly — which had not been the case in the previous March — the Council expressly provided that the children excluded from the minority schools as a result of the tests might nevertheless be transferred to those schools, if such were the consequence of the decision to be given by the Court.

[53] The Council therefore did not create a special and permanent situation for the children in question: it could not do so without modifying the Convention, and this was not its intention; it simply adopted a measure which was intended to disappear when the interpretation of the Convention was determined by the solution of the questions of law left open.

[54] It has been contended that the tests took the place of the declarations. But the purpose of the declarations was different from that of the tests; there is nothing to justify the assumption that the Council intended to substitute the latter for the former.

[55] The language tests no doubt established that in 1927 certain children did not possess a knowledge of German adequate [p19] to enable them to profit by instruction in the German schools. It is equally true that, according to the Court's judgment, the declarations as to a child's language must be in accordance with the facts. But, as has also been seen, these declarations are conclusive and can neither be disputed nor verified. To admit that the result of the tests made in 1927 could subsequently be invoked to invalidate a declaration made — say — in 1931 under the Convention, would be to admit the possibility of adducing evidence against such a declaration; but this is prohibited by the Convention. To attach such an effect to the language tests would be tantamount to modifying both the Convention and the Council Resolution itself, and the Resolution expressly disavowed any idea of doing this.

[56] Moreover, in a district where the language which children commonly use to express their thoughts is usually a local dialect, it may happen that some children do not know their "own language" (as that phrase is used in the Minorities Treaties) well enough to be able to profit by instruction imparted in that language. But while the language tests were simply intended to ascertain whether a child could profit by instruction imparted in German, the declarations provided for by the Convention have a different purpose, namely, to determine both whether a child belongs to the minority and what its "own language" is. These declarations are conclusive and, as a matter of fact, there is nothing to prevent a child who was unable in 1927 to profit by instruction imparted in the language of his minority, from being able to do so some years later.

[57] Though, in accordance with the rules of law, the interpretation given by the Court to the terms of the Convention has retrospective effect — in the sense that the terms of the Convention must be held to have always borne the meaning placed upon them by this interpretation — it does not follow that the results of the purely practical measures to which. the Council legitimately had recourse in order temporarily to obviate the difficulties resulting from the uncertainty prevailing as to the meaning of the rules to be applied, are necessarily null and void.

[58] These results were operative for the period during which provisional measures of a practical nature existed; all the more [p20] so because those measures were, after all, independent of the interpretation of the Convention. But from the moment when these measures ceased to be applicable — i.e., from the end of the school years 1926-1927 and 1927-1928, and practically speaking, from the time when the legal interpretation of the Convention had been determined by the judgment given on April 26th, 1928 — they could not be invoked in order to deduce from them consequences incompatible with the provisions of the Convention as duly interpreted.

[59] If the foregoing considerations are sound, it follows that admissions to the German Minority schools in the case of children who passed the tests for the school years 1926-1927 and 1927-1928 remain valid and fully effective; that, on the other hand, applications for admission submitted subsequently, even in the case of those who failed to pass the tests, fall under Articles 74 and 131 of the Convention as construed by the Court and must, accordingly, be dealt with solely on the basis of the declarations of the persons responsible for the education of the children.

[60] For these reasons,
The Court,
by eleven votes to one,
is of opinion:
that the children who were excluded from German Minority schools on the basis of the language tests provided for by the Council's Resolution of March 12th, 1927, cannot now, by reason of this circumstance, be refused access to these schools.

[61] Done in English and in French, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of May, one thousand nine hundred and thirty one, in two copies, one of which is to be placed in the archives of the [p21] Court, and the other to be forwarded to the Council of the League of Nations.

(Signed) M. Adatci,
President.
(Signed) Ε. Hammarskjφld,
Registrar.

[62] Count Rostworowski, Judge, declaring that he is unable to concur in the opinion given by the Court and availing himself of the right conferred on him by Article 71 of the Rules of Court, has delivered the separate opinion which follows hereafter.

(Initialled) M. A.
(Initialled) A. H. [p22]

Dissenting Opinion by Count Rostworowski.
[Translation.]

[63] Being, to my great regret, unable to concur in the conclusion of the Advisory Opinion, I feel it my duty to use the right given by Article 57 of the Statute and to append to the Court's opinion a statement of my own opinion.

[64] The question referred to the Court in the terms of the Council's request only concerns one of the legal effects of the Resolution of March 12th, 1927, namely, exclusion from Minority schools and the question whether or not the fact of such exclusion can now be invoked against the declarations provided for in Article 131, paragraph 1, of the Geneva Convention.

[65] In the reply to be given to the question defined in this manner, I think that — without going into points of detail of secondary importance raised in the course of the written or oral proceedings — it is desirable and necessary only to concern myself with two factors which I venture to regard as relevant and of fundamental importance:

[66] 1. The legal significance of the two Resolutions of the Council of March 12th and December 8th, 1927, inasmuch as they constitute the initial legal act the legal consequences or effects of which have to be determined.

[67] 2. An examination of the relevant provisions from the point of view of whether they can now be validly relied upon to .resist the free operation of these legal effects.

I.

[68] With regard to the first point, I think it important to remember that the Council had before it the view maintained by the Polish Government that the exclusion or non-admission to Minority schools of children speaking only Polish was justified. This view was based on Article 69, paragraph 1, of the Geneva Convention, which compelled the Polish Government [p23] to provide adequate facilities for ensuring that, in the primary schools, instruction should be given to children of such Polish nationals through the medium of their own language.

[69] Now, the application of Article 69, paragraph 1 — an article of fundamental importance placed under the guarantee of the League of Nations and containing the principle governing the Minority school system — was thrown out of gear by the operation of Article 131, paragraph 1 — an article taken from Division II of the Third Part of the same Convention and belonging to the transitional school regime. This latter provision established what may be called a technical method for determining the language of a child or pupil, by giving the persons legally responsible for a child's education the right to make a declaration on the subject, which declaration was alone to enter into account and could not be verified or disputed in any way by the school authorities. In the opinion of the Court (see Judgment of April 26th, 1928, Collection of Judgments, Series A., No. 15, p. 34), 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.

[70] The application of Article 69, paragraph 1 — the fundamental article — was thrown out of gear by the operation of Article 131, paragraph 1 — an article of secondary importance because the latter did not offer the smallest guarantee against declarations not in accordance with the facts and thus left open a door whereby children who in fact spoke Polish only might gain admittance to Minority schools.

[71] It was partly to remedy the inconvenience alluded to that the Resolution of March 12th, 1927, was unanimously adopted, the representatives of the Governments signatories of the Geneva Convention participating in the vote.

[72] Whilst terminating the appeal proceedings in paragraph I of the Resolution, the Council, in paragraphs II, III, IV and [p24] V moreover approved an agreement or arrangement concluded between the two Governments mentioned thanks to the mediatory action of the Council and under the auspices of the League of Nations. The two Governments, which were the Parties to this agreement, were covered, in so far as they were concerned, by the terms of paragraph III of the Final Protocol of the Geneva Convention: "The two contracting Parties may, by mutual consent, amend or abolish all provisions of the transitional regime." In the case under consideration, there was no question either of amending or abolishing any article relating to the transitional regime, as moreover appears from the final phrase of paragraph V of the Resolution of March 12th, 1927, according to which the arrangement "shall not be interpreted as in any way modifying the provisions of that Convention". It is nevertheless true that the Council, in agreement with the two Governments, though leaving intact the terms of the Convention, sanctioned a departure from its terms in a series of concrete cases, and this more particularly with regard to Article 131, paragraph 1.

[73] The character of the arrangement as a departure from the terms of the Convention resulted less from the introduction of an international system of language tests, which could not be said to be excluded by the terms of that article, than from the institution of a new decisive criterion for the admission or exclusion of children — a criterion which was to be applied, notwithstanding the terms of Article 131, paragraph 1, which laid down that account was only to be taken of the declarations made by persons legally responsible for the education of children.

[74] The new criterion consisted in a test to be undergone before the neutral expert appointed by the Council. Children failing at the language test could not be admitted to the school.

[75] Thus, outside but parallel to the normal system laid down by the Convention and as a derogation from the latter, the Council inaugurated a special system for a certain well-defined category of children.

[76] The arrangement provided for under paragraphs II, III and IV of the Resolution was, according to paragraph V, to be regarded as an exceptional measure designed to meet a de [p25] facto situation not covered by the Geneva Convention. But what to my mind prevents its being considered solely as an expedient, is that it was also destined to give effect to an idea which is set out at the beginning of paragraph II of the Resolution as follows: "The Council considers that it is inexpedient to admit to Minority schools children who speak only Polish." All that follows the enunciation of this idea, which reproduces Poland's main contention, can and should, in my view, be regarded as applying this idea.

[77] Considered from the point of view of its purpose, the tests were to bear upon the question whether a child spoke the language of instruction of the Minority school sufficiently well to be able to profit by attendance at that school.

[78] Considered from the point of view of its immediate aim, i.e., the putting into practice of the idea formulated at the outset of paragraph II, the tests were to serve as a ground for excluding from Minority schools children devoid of an elementary knowledge of German, that is to say children belonging to the category of those speaking Polish only.

[79] Finally, considered from the standpoint of its function in relation to Article 69, paragraph 1, the tests afforded direct evidence that the German language, when in a given case a child's acquaintance with it fell below the standard indicated to the expert, could not apparently be regarded as that child's own language — evidence which released the Polish Government from the obligation to admit the child in question to a Minority school.

[80] This exceptional system derogating from the ordinary one was, from the outset, even understood to be temporary, but its duration was not strictly defined. It was applied to children of the school year 1926-1927 and again to those of the school year 1927-1928. In the absence of a proposal recommending the application of the same system to children of subsequent school years and in the consequent absence of a further Council resolution, the tests were not continued. The system ceased to serve as a source for the production of fresh evidence by the expert originally appointed.

[81] But the fact that the system itself has ceased to operate does not — to my mind — by any means necessarily involve the [p26] cessation of its legal effects and does not deprive the evidence legally recorded in the past of any effect in the future. However temporary the exceptional system may have been, it is certain that, besides the character of an expedient, it also implicitly possessed an essential, protective character, in relation to the legal interest put forward by the Polish Government in its claim. To my mind, it is difficult not to have regard to the serious effort, on both sides, made to satisfy this appeal to the real import of Article 69, paragraph 1. To assume, for instance, that the tests which were continued until February, 1928, had ceased to be operative in May of the same year, when the entries had to be made for the school year 1928-1929, Would accordingly perhaps be unduly to undervalue the importance of this effort.

[82] It seems to me on the contrary that the maintenance of the legal effects beyond the end of the school year 1927-1928 is justified in the first place by the consideration that the main idea, to the carrying out of which the special system was devoted, had by no means ceased to hold good when the tests came to an end in February, 1928.

[83] In the first place, the Council, on June 9th, 1928, in connection with a petition of the Deutscher Volksbund in another case, did not fail, in a resolution in the vote on which the representatives of the Governments which signed the Geneva Convention participated, to make the following statement: "The Council would point out that the difficulties which have arisen in this matter are due to the fact that many persons responsible for the education of children who do not speak the language of the Minority have, nevertheless, requested that these children be admitted as pupils in Minority schools. In this connection, the Council would refer to the opinion expressed in its Resolution of March 12th, 1927, to the effect that it is inexpedient to admit into Minority schools children who speak only Polish....".; thus, far from disappearing, the idea which had governed the arrangement of 1927 continued, in the view of the Council, to constitute an important feature of the Minority school system.

[84] In the second place, the President of the Mixed Commission, in his opinion of February 15th, 1929, also expressed himself to the same effect: ".... apart from the question of law, [p27] stress should be laid on the fact that pupils who do not speak the Minority language should not, for educational reasons, attend a Minority school, as their admission is not in accordance with a true appreciation of the interests of either the parents or the Minority school". (Permanent Court, Distr. 1858, p. 38 [FN1].)

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[FN1] See the corresponding volume of Series C. of the Court's Publications. [Note by the Registrar.]
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[85] The maintenance of the legal effects beyond the date of the disappearance of the system itself also seems to me to be justified for the reason that if all value is denied to evi¬dence already recorded by the method of direct investigation and if children excluded from Minority schools are brought under the system of indirect proof provided for by Article 131, paragraph 1, these children will be exposed to the risk of finding themselves sent, on the basis of declarations not in accordance with the facts, to schools not meant for them. The opinion of the President of the Mixed Commission shows that this danger is by no means imaginary and that, on the occasion of the entries for the school year 1928-1929, a large number of declarations conflicting with the conclusions of the expert were handed in. In view of this circumstance, the President of the Mixed Commission abandoned the idea of applying what he regarded as the strict law; made, as an exceptional measure, strict law give way before considerations based on equity and on a conciliatory school policy; and decided to reject the declarations in question. (See Permanent Court, Distr. 1858, p. 38 [FN1].)

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[FN1] See the corresponding volume of Series C. of the Court's Publications. [Note by the Registrar.]
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[86] To summarize: an examination of the Resolution of March 12th, 1927, and that of December 8th, in so far as the latter continues the system of the former — an examination both of the form and of the intention underlying the establishment of the exceptional system — leads, to my mind, to the conclusion that it was right that the effects of that system should continue after the system itself has ceased to operate — subject only to the existence of legal provisions to the contrary expressly indicating that these effects should not make themselves felt afterwards. [p28]

II.

[87] Amongst the relevant provisions are the following:

1. The actual Resolution of March 12th, 1927, which however contains no clause providing or prescribing that the results of the tests ordered were to be entirely without operative effect in years subsequent to that in which they were held.
2. The Resolution of December 8th, 1927, prescribing the continuation of the tests for children of the school year 1927-1928, certainly contains a reservation to the effect that the decision which the Court might give will decide whether children who, as a consequence of these examinations, may be transferred to Polish schools, are finally to be admitted to Minority schools. In this hypothetical and conditional form, the reservation quoted (leaving aside the tests provided for the school year 1926-1927, to which it does not relate) cannot, to my mind, directly affect the legal consequences even of the tests contemplated therein. For it to have this result it would have had to be immediately followed by a request from the Council itself asking the Court for an advisory opinion on this very question; failing a request by the Council, another way of bringing the matter before the Court remained open: namely, an application from the German Government with a view to obtaining a judgment on the same question, but the contents of this application were then unknown and were entirely in the hands of the German Government. But the reservation made the ultimate maintenance of exclusions — past or future — dependent, not on some future judgment, no matter what it was about or what its contents were, but on a judgment deciding whether in certain circumstances the transfer of the children in question was possible. Considered in itself and in relation to the whole mass of children examined in the years 1927 and 1928, it was devoid of any immediate effect upon the future consequences of the exclusions decreed. [p29]
3. The German Application and the Court's judgment of April 26th, 1928. The Court's judgment keeps within the limits of the conclusions of the German Application. (See Case of the German Government of December 31st, 1927, and the Application instituting proceedings of January 2nd, 1928, in the Court's Publications Series C, No. 14 — II, pp. 87 and 89.) The Application placed the dispute on a plane entirely different from that of the arrangement of March 12th and December 8th, and from that contemplated by the reservation of December 8th, 1927: it was concerned solely with the interpretation of Articles 74, 106 and 131 of the Geneva Convention, and contained no reference whatever to the Council Resolutions and their effects. Accordingly, the Court was not in a position to concern itself with the exceptional system, its intrinsic value and the duration of its effects. Still less does the judgment contain anything regarding the transfer contemplated by the reservation in the Resolution of December 8th, 1927. Owing to the silence observed in this respect by the judgment of April 26th, 1928, — a silence due to the contents of the Application instituting proceedings — neither the judgment nor the reservation which had referred to it beforehand, can, in my opinion, be invoked as legal impediments to the continuance of the effects of the Resolutions of 1927.
4. Lastly, it remains to consider one legal source which has been relied on in the course of the written and oral proceedings: namely, the Convention of Geneva of 1922. In regard to this, the question may be put as follows: Can this Convention — as it has existed since its entry into force and as construed, in respect of certain articles, by the judgment of April 26th, 1928 — be validly invoked, simply because it exists, to impugn the legal effects of the Resolutions of March 12th and December 8th, 1927?

[88] The reply, in my opinion, must be in the negative for the following reasons:

The Convention of 1922 contains in Division II of Part III the common, normal, ordinary law regarding the transitional regime for Minority schools. The Court's judgment, in fixing the meaning of some of its articles, has not overstepped the limits of this same ordinary law. Having regard to its declaratory [p30] character, it has neither supplemented nor modified the Convention. The text of the Convention, as it existed when concluded and as it was in the year 1927, when the two Council Resolutions were adopted and when it in no way prevented the conclusion of a valid exceptional arrangement, — so it remained in 1928 when the Court was called upon to pass on the points left open by the Council and referred to it by the German Government; and finally so it remains now, and in this form it cannot in the future prevent the conclusion by the signatories of the Convention — should they see fit — under the auspices of the League of Nations of an agreement, compromise or arrangement either identical or similar or entirely different, which in its turn may depart in regard to some point from a provision of the transitional regime established by this Convention. And, in my opinion, it cannot do so because, being itself the common, normal, ordinary law, it is incapable of preventing the arising of exceptional law which, by definition, would be law derogating from the ordinary law. Just as it appears difficult to me to admit that the exceptional regime, which is essentially a derogation from the ordinary, can, as regards its validity, be discussed with reference to the provisions of the ordinary law from which it is a valid derogation, so the same difficulty arises when it is a question of invoking these provisions of ordinary law against the effects of an exceptional regime conceived and built up on an entirely different legal basis. However clear and emphatic the terms, meaning and operation of Article 131, paragraph 1, may be in the field of ordinary law, this article cannot on this account be invoked in the domain of exceptional law, for there it ceases to operate. The two regimes, general and special, derive their binding effect from the same source, namely the consent of the States concerned, the object of which is, in the one case, the establishment of the ordinary law, and in the other the creation of exceptions thereto.

(Signed) M. Rostworowski.

[p31] Annex 1.

I. - Documentation Relating to the Decision Taken by the Council on January 24th, 1931, to Consult the Court.

60th Session of the Council (September, 1930); Official Journal, November, 1930:
1. - Minutes of second meeting, September 9th, 1930. Point 2668, page 1310.

61st Session of the Council (September, 1930); Official Journal, November, 1930:
1. - Annex 1249, page 1640 :
(a) Appeal by the Deutscher Volksbund of June 5th, 1930.
(b) Observations of the Polish Government accompanying the Appeal.
(c) Opinion given on February 10th, 1930, by the President of the Mixed Commission for Upper Silesia.
2. - Minutes of fifth meeting, September 27th, 1930. Point 2713, page 1521.
Apart from the Acts of the Council.
Opinion given by the President of the Mixed Commission for Upper Silesia on February 15th, 1929, mentioned in the Opinion of February 10th, 1930.

II. - Documentation concerning the Language Tests Mentioned in the Council Resolution of March 12th, 1927.

44th Session of the Counci (March, 1927); Official Journal, April, 1927:
1. - Annex 942 (a), page 481:
Appeal by the Deutscher Volksbund of January 15th, 1927.
2. - Minutes of third meeting, March 8th, 1927.
Point 1884, page 376.
3. - Annex 942, page 474:
Report by M. Urrutia.
4. - Minutes of seventh meeting, March 12th, 1927.
Point 1915, page 400.

48th Session of the Council (December, 1927); Official Journal, February, 1928
1. - Annex 1003, page 217:
Polish Note of October 18th, 1927.
2. - Annex 1003 (a), page 218:
Letter from M. Urrutia, .of November 4th, 1927.
3. - Annex 1003 (6), page 219:
Telegram from the German Government, of November 14th, 1927.
4. - Minutes of fifth meeting, December 8th, 1927.
Point 2086, page 156. [p32]

Annex 2.

Documents Filed by the Parties at the Hearings.

Documents filed by the Agent of the Polish Government:
Forms:
Transfer to the Polish school (procιs-verbal).
Enrolment in the Minority school (declaration).
Transfer to the Minority school (declaration).
Statistics of the Minority schools in Polish Upper Silesia. (Reasons for the annulment of applications for admission in respect of the school year 1928-1929).
Idem (school year 1929-1930).

Lists of children attending the Minority schools, etc.
Notification concerning the transfer of children from a German Minority school to a Polish Majority school, or vice versa (issued on May nth, 1927).

Letter from the President of the Mixed Commission to the Voyvode of Silesia (June 27th, 1927).
Telegram from the Voyvode of Upper Silesia to the Agent of the Polish Government (April 21st, 1931).
Letter from the President of the Mixed Commission to the Director of the Silesian Minorities Office (April 21st, 1931).
Legal provisions concerning compulsory school attendance (extract).
Order by the Minister of Public Worship and Education, dated December 6th, 1923 (extract).
Вekanntmachung concerning enrolment in schools (issued on May 14th, 1928).
Idem (issued on May 15th, 1929).
Idem ( ,, 12th, 1930).

Documents filed by the Agent of the German Government:
Forms:
Application for transfer to the German Minority school.
Application for enrolment in the German Minority school.
Enrolment of a child on first beginning compulsory school attendance.

Application for transfer from the Polish school to the German Minority school.
Enrolment in the public primary Minority school (protocol).
Transfer to the public primary Minority school (protocol)
Membership of the German Minority and enrolment in the public primary school of the said Minority (protocol).

Documents Sent by the Secretary-General of the League of Nations at the Court's Request.

Opinion by the President of the Mixed Commission for Upper Silesia (December 20th, 1925).
Idem (October 10th, 1926).
Idem (December 16th, 1926).
Idem (March 31st, 1927 - supplementing the Opinion of December 16th, 1926).



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