General List No. 41

 20 July 1931

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty Second Session

 

Customs Régime between Germany and Austria (Protocol of March 19th, 1931)

 

League of Nations v. Germany and Austria

Order

 
BEFORE: President: Adatci
Vice-President: Guerrero
Judges: Kellogg, Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Sir Cecil Hurst, Schücking, Negulesco, Jonkheer Van Eysinga, Wang
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1931.07.20_customs_annex_1_to_1931.09.05_customs.htm
  
Citation: Customs Regime between Germany and Austria, 1931 P.C.I.J. (ser. A/B) No. 41, annex 1 (Order of July 20)
Publication: Publications of the Permanent Court of International Justice Series A/B - No. 41; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1931
  
 

  

[p88]

[1] The Permanent Court of International Justice,

[2] composed as above,

[3] Having regard to Article 31 of the Statute and Article 71 of the Rules of Court,

[4] Having regard to the written statements filed, on July 1st, 1931, on behalf of the Austrian, Czechoslovak, French, German and Italian Governments, [p89]

[5] Whereas, on July 17th, 1931, the Court, after considering the application of Article 31 of the Statute and Article 71 of the Rules of Court in the case concerning the Customs régime between Germany and Austria, decided that it was not called upon to pronounce upon the question unless it was officially made cognizant of it;

[6] Having regard to the letter from the Agent for the Austrian Government of July 17th, 1931, whereby that Agent officially made the Court cognizant of this question, at the same time indicating that should the Court decide that the said articles were applicable, his Government would appoint a judge ad hoc;

[7] Having regard to the letter of the Agent for the Czechoslovak Government dated July 18th, 1931, whereby, in view of the fact that the Court had been made cognizant of the question above mentioned, that Agent officially informed the Court that, in the event of judges ad hoc being sanctioned in the present case, the Czechoslovak Government appointed one;

[8] After hearing the observations of the Agents of the Governments at present represented before the Court;

[9] Whereas the Austrian and Czechoslovak Governments have relied on the provisions of Article 71, paragraph 2, of the Rules, and of Article 31 of the Statute;

[10] Whereas, under Article 71, paragraph 2, of the Rules, in a question relating to an existing dispute between two or more States or Members of the League of Nations, Article 31 of the Statute shall apply;

[11] Whereas the question submitted to the Court for advisory opinion does in fact relate to an existing dispute;

[12] Whereas, under Article 31, paragraphs 3 and 4, of the Court's Statute, if the Court includes upon the Bench no judge of the nationality of the Parties, each of these may proceed to select or choose a judge and, should there be several Parties in the same interest, they shall for the purpose of the application of this article be reckoned as one Party only;

[13] Whereas all governments which, in the proceedings before the Court, come to the same conclusion, must be held to be in the same interest for the purposes of the present case; [p90]

[14] Whereas, on the one hand, the arguments advanced by the German and Austrian Governments lead to the same conclusion, whereas, on the other hand, the arguments advanced by the French, Italian and Czechoslovak Governments lead to the opposite conclusion;

[15] Whereas, therefore, for the purposes of the present case, the German and Austrian Governments, on the one hand, and the French, Italian and Czechoslovak Governments, on the other, are respectively in the same interest in the present proceedings before the Court within the meaning of Article 31 of the Statute;

[16] Whereas the Court as at present composed includes upon the Bench judges of German, French and Italian nationality,

[17] Decides:

That there is no ground in the present case for the appointment of judges ad hoc either by Austria or Czechoslovakia.

[18] Done in English and French, the French text being authoritative, at the Peace Palace, The Hague, this twentieth day of July, nineteen hundred and thirty-one, in six copies, one of which is to be placed in the archives of the Court and the remainder to be transmitted to the respective Agents of the German, Austrian, French, Italian and Czechoslovak Governments, on the occasion of the delivery of the Court's advisory opinion on the question at present before it.

(Signed) M. Adatci,
President.
(Signed) Ĺ. Hammarskjöld,
Registrar.

[19] MM. Adatci, Rostworowski, Altamira, Anzilotti and Wang declare themselves unable to concur in the order in so far as they have indicated their dissent there from in the following joint separate opinion. [p91]

Dissenting Opinion.

[20] The undersigned,

[21] Whereas the question submitted to the Court for advisory-opinion according to its actual terms only relates to Austria's international obligations towards States which have signed the Treaty of Saint-Germain and Protocol No. I of Geneva of October 4th, 1922; as, in these conditions, Austria is a Party to the dispute with reference to which the Court's opinion is asked, whereas Germany is not;

[22] Whereas Germany's intervention in the present proceedings, under the terms of Article 73 of the Rules of Court, cannot endow her with the capacity of a Party to the dispute in question; as accordingly, the question whether, Germany and Austria being in the same interest, Article 31, paragraph 4, of the Statute should be applied, does not arise,

[23] Are of opinion:

[24] That Austria was entitled to appoint a judge ad hoc in accordance with paragraph 2 of the said Article 31.

(Signed) M. Adatci.
( „ ) Rostworowski.
( ,, ) Rafael Altamira.
( ,, ) Anzilotti.
( ,, ) Wang Chung-Hui.

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