[p4] The Court,
composed as above, gives the following opinion: [p5]
 On January 24th, 1931, the Council of the League of Nations adopted the
"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
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."
 In pursuance of this Resolution, the Secretary-General, on January 31st,
1931, transmitted to the Court a Request for an advisory opinion in the
"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."
 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].
[FN1] See Annex 1.
 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.
 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
 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.
 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].
[FN1] See Annex 2
 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:
 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".
 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".
 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."
 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".
 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.
 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.
 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
(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
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
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."
 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".
 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'
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]
 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."
 Such were the conditions in which the Resolution was adopted.
 Some months later the same difficulties again arose.
 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".
 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
 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.
 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
 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."
 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.
 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
 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
 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.
 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
 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
 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.
 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]
 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.
 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.
 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.
 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).
 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?"
 It is in these circumstances that the Court is now called upon to give
 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
 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
 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
 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.
 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.
 Similar observations may be made in regard to the consequences
resulting from the execution of the arrangement of March 12th, 1927.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 For these reasons,
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.
 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,
(Signed) Ε. Hammarskjφld,
 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.
 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
 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
 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:
 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.
 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.
 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.
 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.
 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.
 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
 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,
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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].)
[FN1] See the corresponding volume of Series C. of the Court's Publications.
[Note by the Registrar.]
 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].)
[FN1] See the corresponding volume of Series C. of the Court's Publications.
[Note by the Registrar.]
 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]
 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?
 The reply, in my opinion, must be in the negative for the following
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,
1. - Minutes of second meeting, September 9th, 1930. Point 2668, page 1310.
61st Session of the Council (September, 1930); Official Journal, November,
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,
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]
Documents Filed by the Parties at the Hearings.
Documents filed by the Agent of the Polish Government:
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
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,
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:
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
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
Opinion by the President of the Mixed Commission for Upper Silesia (December
Idem (October 10th, 1926).
Idem (December 16th, 1926).
Idem (March 31st, 1927 - supplementing the Opinion of December 16th, 1926).