General List No. 60

29 July 1933

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Twenty-Ninth (Extraordinary) Session

 

Case concerning the Polish Agrarian Reform and the German Minority (Interim Measures of Protection)

 

Germany v. Poland

Order

 
BEFORE: President: Adatci
Vice-President: Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, Anzilotti, Urrutia, Sir Cecil Hurst, Schücking, Negulesco, Jhr. Van Eysinga, Wang
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1933.07.29_agrarian_reform.htm
  
Citation: Polish Agrarian Reform and German Minority (Germ. v. Pol.), 1933 P.C.I.J. (ser. A/B) No. 58 (Order of July 29)
Publication: Publications of the Permanent Court of International Justice, Series A./B. No. 58; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1933.
  
 

  

[p175] The Permanent Court of International Justice,
composed as above,
Makes the following Order:

[1] Having regard to Articles 41 and 48 of the Statute,

[2] Having regard to Article 57 of the Rules of Court,

[3] Whereas by an Application of July 1st, 1933, filed with the Registrar of the Court on July 3rd, the German Government, availing itself, in its capacity as a Member of the Council of the League of Nations, of the right conferred upon it by Article 12 of the Treaty between the Principal Allied and Associated Powers and Poland, signed at Versailles on June 28th, 1919, brought before the Permanent Court of International Justice a suit against the Polish Government [p176] concerning the application of the agrarian reform to the German minority in the voivodeships of Posnania and Pomerelia, and kindred questions;

[4] Whereas, in the said Application, the subject of the dispute is described in the following terms:

"The German Government holds that the Polish Government has acted inconsistently with the obligations assumed by it under Articles 7 and 8 of the Treaty of June 28th, 1919, by discriminating against Polish nationals of German race of the voivodeships of Posnania and Pomerelia, in the carrying out of its agrarian reform, particularly in the application of its agrarian reform law of December 28th, 1925, as also in the application of the decree of the German Bundesrat of March 15th, 1918, concerning authorization of the transfer of estates, and of the Prussian decree of December 23rd, 1918, regarding the State's right of pre-emption as confirmed and amended by the decree of the Commissariat of the Supreme Council of the Polish nation of June 25th, 1919, by the decrees of December 29th, 1919, and of June 18th, 1920, and by the law of June 23rd, 1921.
The German Government also considers that Poland has not fulfilled the obligations incumbent upon it in this respect under Article 1 of the Treaty of June 28th, 1919."

[5] Whereas, in the Application, the "claim" is formulated as follows:

"The German Government requests the Permanent Court of International Justice to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race and to order reparation to be made";

[6] Whereas, by letter of May 26th, 1933, the German Government, in announcing that it would shortly file its Application, had informed the Court that it had appointed its Agent in the case;

[7] Whereas, on July 3rd, 1933, the Agent of the German Government filed with the Registrar of the Court, together with the aforementioned Application instituting proceedings, a request dated July 1st "for the indication of interim measures of protection pursuant to Article 41 of the Statute and Article 57 of the Rules of Court";

[8] Whereas, in this request, "the German Government requests the Court to indicate interim measures of protection in order to preserve the status quo until the Court has delivered final judgment in the suit submitted by the Application";

[9] Whereas, upon receipt of this request, the Vice-President, as Acting-President of the Court — the latter not being in session — on July 3rd, 1933, pursuant to Article 23 of the Statute and Article 57 of the Rules of Court, [p177] arranged for a hearing for July nth, in order to give the Parties an opportunity, should they so desire, to present their observations;

[10] Whereas, on July 4th, 1933, the Polish Government informed the Court that it intended to present observations in accordance with Article 57 of the Rules of Court, but asked for a postponement of the hearing arranged for July 11th until the end of the month;

[11] Whereas, on July 5th, 1933, the Agent of the German Government informed the Court that that Government desired to present observations, in accordance with Article 57, paragraph 3, of the Rules;

[12] Whereas the postponement sought by the Polish Government was not granted; and as the Polish Government stated, by letter of July 9th, 1933, delivered to the Registrar on the 10th of that month, that, notwithstanding the intention it had previously expressed, it was unable to present its observations at the hearing of the Court fixed for July 11th;

[13] Whereas, in these circumstances, the Court, at the hearing on July nth, merely adjourned until July 19th the hearings on the request of the German Government for the indication of interim measures of protection;

[14] Whereas, on July 12th, 1933, the Polish Government informed the Court that it had appointed a representative to present its observations on the request of the German Government;

[15] Whereas, at the hearings of July 19th, 20th and 21st, 1933, the Court heard the observations and reply of M. Viktor Bruns, Agent of the German Government, and the observations and rejoinder of M. Th. Sobolewski, representing the Polish Government;
Whereas, at these hearings, the Agent of the German Government filed the documents enumerated in the Annex;

[16] Whereas, under Article 41 of the Court's Statute, "the Court shall have power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to reserve the respective rights of either Party";

[17] Whereas, according to this provision, the essential condition which must necessarily be fulfilled in order to justify a request for the indication of interim measures, should circumstances require them, is that such measures should have the effect of protecting the rights forming the subject of the dispute submitted to the Court;

[18] Whereas, according to the terms of the Application instituting proceedings which have been quoted above, the subject of the dispute is the contention of the German Government [p178] that the latter Government has acted inconsistently with the obligations assumed by it under Articles 7 and 8 of the Treaty of June 28th, 1919, by discriminating against the Polish nationals of German race in the voivodeships of Posnania and Pomerelia, in the carrying out of its agrarian reform, particularly in the application of the Polish agrarian law of December 28th, 1925, and other supplementary acts;

[19] Whereas, on the basis of this contention, which is not admitted by the Polish Government, the German Government has requested the Court to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race and to order reparation to be made;

[20] Whereas, in accordance with the verbal explanation given by the Agent for the German Government at the hearing on July 19th, 1933, the German Government, by the request for interim measures, asks the Court to indicate to the Polish Government that it should not include other members of the German minority in the nominal lists for expropriation, that it should not proceed with the expropriation of the estates of members of the German minority included in nominal lists already published and that it should not transfer to other persons estates taken from members of the German minority, or establish settlers upon such estates;

[21] Whereas, whilst the suit brought by the German Government is presented as having for its object to obtain a declaration confirming that, as alleged by it, infractions have been committed in certain individual cases where the measures in question have already been applied, and, if necessary, reparation in respect of such infractions, the request for interim measures covers all future cases of the application of the Polish agrarian reform law to the Polish nationals of German race and aims at securing an immediate indication to the effect that henceforth, and until judgment has been pronounced, the said Polish law shall not be applied in respect of the said nationals;

[22] Whereas, accordingly, the interim measures asked for would result in a general suspension of the agrarian reform in so far as concerns Polish nationals of German race, and cannot therefore be regarded as solely designed to protect the subject of the dispute and the actual object of the principal claim, as submitted to the Court by the Application instituting proceedings;

[23] Whereas, in these circumstances, the Court, without having to consider the scope of Article 12 of the above-mentioned Treaty of June 28th, 1919, as regards the indication of interim measures of protection, and irrespective of the question whether it may be expedient for the Court in other cases to exercise [p179] its power to act proprio motu, and without in any way prejudging the question of its own jurisdiction to adjudicate upon the German Government's Application instituting proceedings, or the admissibility of that Application, confines itself to the statement that the request for interim measures now before it is not in conformity with the provisions of Article 41 of its Statute,

[24] The Court,
Dismisses the request of the German Government for the indication of interim measures of protection.

[25] Done in French and English, the French text being authoritative, at the Peace Palace, The Hague, this twenty-ninth day of July, one thousand nine hundred and thirty-three, in three copies, one of which shall be placed in the archives of the Court and the others transmitted to the German and Polish Governments respectively.

(Signed) M. Adatci,
President of the Court.
(Signed) A. Hammarskjold,
Registrar of the Court.

[26] Baron Rolin-Jaequemyns, M. Schücking, and Jonkheer van Eysinga, Judges, declare that they are unable to agree with the Order, and append thereto the statements of their dissenting opinions which follow.

[27] M. Anzilotti, Judge, declares that he disagrees with the Order to the extent which he has himself set forth in his dissenting opinion, in the following terms. [p181]

Dissenting Opinion by M. Anzilotti.

[Translation]

[28] Though I have, reached the same conclusion as that at which the Court has arrived, I find myself unable to subscribe to the reasons on which the Order is based.

[29] I wish to state in the first place that, speaking generally, if there was ever a case in which the application of Article 41 of the Statute would be in every way appropriate, it would certainly be so in the case before us. The German Government alleges that certain acts of expropriation, which have been, or are being carried out, involve discriminatory treatment of Polish citizens of German race, as compared with Polish citizens of Polish race and, hence, that on this ground these acts are contrary to the Treaty of June 28th, 1919: founding itself on this reason, it asks that the expropriations now in progress should be suspended, as an interim measure of protection, until the Court has finally decided whether the said expropriations are legal or illegal. If the summaria cognitio, which is characteristic of a procedure of this kind, enabled us to take into account the possibility of the right claimed by the German Government, and the possibility of the danger to which that right was exposed, I should find it difficult to imagine any request for the indication of interim measures more just, more opportune or more appropriate than the one which we are considering.

[30] Apart from all questions relating to the interpretation of Article 12 of the Treaty of June 28th, 1919, for the protection of Minorities, the only reason which, in my view, made it impossible for the Court to grant the German Government's request, in the present state of the proceedings, was the uncertainty which the Application instituting the main proceedings allows to subsist as to what the said Government seeks to obtain from the Court, and, in consequence, as to the extent of any rights which the interim measures would have to protect.

[31] In the opinion of the Court, the proceedings instituted by the German Government were designed to obtain a declaration that certain alleged infractions of the Treaty had been committed in individual cases, in applying the agrarian reform law, and, further, to obtain reparation for the said infractions; such is indeed the impression conveyed — at any rate, at first sight — by the wording used in the Application to indicate the object of the claim: "to declare that violations of the Treaty of June 28th, 1919, have been committed to the detriment of Polish nationals of German race, and to order reparation to be made". If that is really so, it is manifest that the interim measures [p182] applied for would go far beyond the limits of the right that is in dispute. Interim measures of protection would certainly have been possible and expedient; but they would need to have been confined to the individual cases which the German Government had in mind. And since neither the Application, nor the request for the indication of interim measures, made it possible to ascertain which were these cases, the Court found itself unable, in practice, to indicate the measures as requested.

[32] But was that really the meaning of the German Application? Was not its intention rather to obtain from the Court a declaratory judgment, to the effect that the Polish Government's conduct in the application of the agrarian reform law was not consistent with its obligations under the Treaty of June 28th, 1919? In other words, the issue is not — or is not only — this or that violation of the Treaty committed to the detriment of this or of that Polish citizen of German race; the issue is the whole body of acts by which the Polish authorities have applied the agrarian reform law; and it is the inconsistency of the attitude, resulting from this whole body of acts, with the Treaty of June 28th, 1919, that the Court is asked to declare. If such was the object of the claim in the German Government's Application, it is quite comprehensible that it should have asked — as an interim measure of protection — that the application of the agrarian reform to Polish citizens of German race, in general, should be suspended.

[33] I am inclined to think that that is really the meaning of the Application; more especially, because it would seem incomprehensible that the Court should be asked to declare that violations of a treaty had been committed, without the violations being specified: such an application would moreover be null and void, owing to the complete absence of certainty as to the object of the claim.

[34] But I must admit that the German Government's Application is open to different interpretations, and this in regard to a point on which perfect clarity is essential. As it is only fair that a government should bear the consequences of the wording of a document for which it is responsible, I could readily understand that the Court should, on that ground, refuse to grant the request for interim measures of protection. This, however, should not prejudice the German Government's right to submit a fresh application indicating the subject of the suit with the necessary clearness and precisions, and to follow it up by a fresh request for the indication of interim measures appropriate to the rights claimed.

(Signed) D. Anzilotti. [p183]

Dissenting Opinion of Mm. Schücking and Jonkheer Van Eysinga.

[Translation]

[35] The undersigned are unable to concur in the Order made by the Court.

[36] They would recall that when, after the World War, Germany was obliged to cede to Poland a considerable part of her territory inhabited to a large extent by persons of German race, Poland, for her part, accepted and agreed to embody in a treaty with the Principal Allied and Associated Powers such provisions as those Powers deemed necessary to protect the interests of inhabitants of Poland who differ from the majority of the population in race, language or religion (Art. 93 of the Treaty of Versailles of June 28th, 1919). Effect was given to the obligation accepted by Poland by means of the Treaty of Minorities signed the same day. This Treaty prescribes equal treatment for Polish nationals belonging to the majority and those belonging to the minority, and this regime of equality is placed under the guarantee of the League of Nations. Supervision of this regime is entrusted to Members of the Council of the League of Nations, who are entitled if necessary to refer any matters observed by them to the Council or to the Permanent Court of International Justice (Art. 7, 8 and 12 of the Minorities Treaty). Resolutions of the Council of the League of Nations adopted in 1920, and subsequently modified on various occasions, provide for minorities' committees appointed from amongst the Members of the Council which are to deal with private petitions in connection with the minority regime.

[37] In the present case, violations of the Minorities Treaty, resulting from the application of the Polish law of December 28th, 1925, concerning the carrying out of the agrarian reform — which law, according to the Member of the Council who has applied to the Court, is not in itself inconsistent with the Minorities Treaty — have formed the subject, first, of private petitions, next of recourse to the Council by one of its Members, and finally of recourse to the Permanent Court of International Justice by the same Member of the Council (Germany).

[38] The complaint addressed to the Council by this Member was examined most carefully by a committee consisting of the representatives on the Council of Great Britain, Italy and Japan, of which committee M. Nagaoka was the spokesman. This Committee, in. close collaboration with both the [p184] Member of the Council who had drawn the Council's attention to the violations of the Minorities Treaty and Poland, devoted no less than twenty-one meetings to the matter in question. It appears from its report that, in so far as concerns the rate of application of the agrarian reform in the voivodeships of Posnania and Pomerelia to the majorities and the minorities respectively, it was able to take as its basis the data established by a Minorities Committee on which sat the representatives of Persia, Great Britain and Italy, and which had studied in 1930 and 1931 the petitions above mentioned addressed to the League of Nations by Polish citizens members of minority.

[39] These data show in the case of the voivodeship of Posnania that whilst 65 % of the total area of estates belonged to members of the majority and 35 % to the German minority, the contribution to the agrarian reform of the majority for 1926-1929 was only 49.9 % and that of the German minority 50.1%. The corresponding figures for the voivodeship of Pomerelia are 39.3 % and 60.7 %, and 27.2 % and 72.8%. These figures show a considerable disparity between the area of the estates contributed for the purposes of the reform by landowners belonging to the majority and the area of the estates contributed by members of the minority.

[40] The conclusion of the 1930-1931 Minorities Committee was that this disparity, which was inconsistent with the equal treatment provided for by Articles 7 and 8 of the Minorities Treaty, should be eliminated. When the Nagaoka Committee, at the end of 1932, prepared its report to the Council, it was able to record some improvement, but nevertheless the disparity unfavourable to the German minority still amounted to 5,500 hectares in the voivodeship of Posnania and 3,900 hectares in the voivodeship of Pomerelia, i.e. a total for the two of 9,400 hectares. The Nagaoka Committee accordingly proposed the suspension of all measures in application of the previous "nominal lists" pending complete rectification of the disparity noted, i.e. that the actual expropriation of the 5,500 hectares in the voivodeship of Posnania and the 3,900 hectares in the voivodeship of Pomerelia, thus temporarily suspended, should not take place until such time as it could be applied without again leading to disparity between the respective contributions of majority and minority landowners to the agrarian reform. It seems clear that this suspension would after some time rectify the disparity between the respective contributions of the minority and of the majority to the agrarian reform and that it would by no means paralyze the carrying out of the Polish law of 1925; the result of the suspension would simply be that the normal proportion of the estates to be contributed by the majority [p185] landowners would be restored before minority estates were once more called upon to contribute to the agrarian reform.

[41] The three representatives on the Nagaoka Committee did not conceal the fact that the solution proposed by them was not in itself likely to give full and entire satisfaction to every one of the minority landowners, the more or less excessive expropriation of whose land had led to the general disparity which had to be rectified. In this sense, the Nagaoka Committee was justified in pointing out that its proposal was not a strictly juridical one. It is, moreover, well known that the representative of the Member of the Council who drew the Council's attention to the violation of the Minorities Treaty held that he could not accept the proposal of his three colleagues and had recourse, pursuant to Article 12, paragraph 3, of the Treaty of Minorities, to the other organ of the League of Nations which is called upon to guarantee the protection of minorities in Poland, namely, the Permanent Court of International Justice.

[42] The subject of the dispute submitted to the Court is the same as that which had occupied the Minorities Committee of the Council in 1930 and 1931, and which was brought to the attention of the Council by one of its Members in 1932. The issue is still that of violations of the Minorities Treaty committed by the Polish authorities in the execution of the agrarian reform law of December 28th, 1925, to the detriment of Polish nationals of German race. The execution of this law is a continuous administrative process. A period of several years may intervene between the time when a given minority estate is placed on the so-called nominal list, and the time when it begins to be worked by the new settlers. Moreover, fresh cases of expropriation are constantly being initiated; the Nagaoka Committee had before it some cases with which the Minorities Committee of 1930 and 1931 had not been acquainted; and similarly the Court has to consider cases of which the Nagaoka Committee was necessarily ignorant. "The various questions" raised, as we read in the letter of January 19th, 1932, in which one of the Members of the Council brings the matter before that body, under Article 12, paragraph 2, of the Minorities Treaty (Official Journal of the League of Nations, 1932, p. 1424), and "the violations of the Treaty of June 28th, 1919, committed to the detriment of Polish nationals of German race" mentioned in the Application instituting proceedings, are so many expressions denoting the same attitude which is made up of a number of individual acts, developing gradually, until they achieve their complete effect, and having their volume constantly augmented by fresh acts of the same description. [p186] It is the incompatibility of this attitude with the terms of the Minorities Treaty that the Member of the Council seeks to demonstrate to the Court, and it is the further persistence in this attitude which the request for interim measures of protection seeks to arrest, pending the Court's decision on the merits. The effect of the interim measures would be, inter alia, to prevent any expropriations which may have been previously initiated by entries in a nominal list, from being made definitive — a contingency which is by no means hypothetical, as is shown by the cases instanced by the German Government's Agent.

[43] This conception of the subject of the dispute cannot be upset by deducing an interpretation of the Application instituting proceedings — as the Polish Government's Agent has done — from the emphasis he has placed on the past tense in the word "committed". Having regard to the continuous character of the acts impeached, the undersigned consider that any attempt to read into the words formulating the object of the dispute, in the Application instituting proceedings, a definite distinction between acts which have already been accomplished and those which belong to the future, would be an utter distortion of the clear meaning of the application. It would also be entirely inadmissible to construe the Application instituting proceedings as meaning that it was the intention of the Member of the Council, who was impelled to draw the Court's attention to the illegal character of certain previous entries in the nominal lists, to refrain from contending that any action taken in the future to give effect to the expropriation already initiated was also illegal.

[44] In submitting the application on the merits, the Member of the Council had to consider two facts, the importance of which must not be underestimated when considering the expediency of the request for the indication of interim measures. First, the rate of execution of the agrarian reform law of 1925 had been so far relaxed that, even if the Polish authorities had desired to do their utmost to restore within a short time the balance in the contributions made respectively by the majority and the minority to the agrarian reform, the process of restoration would have required a considerable time. For, though Article 11 of the law provides for an area of 200,000 hectares to be subdivided in 1933, this figure is very far from having been attained, and the nominal list published by the Polish Government on March 31st, 1933, only affects an area of 2,475 hectares.

[45] Secondly, the Member of the Council who brought the matter before the Court had to consider the fact that the year 1933 did not reveal any progress towards a restoration of equilibrium. The undersigned, point out in this connection [p187] that, according to the oral statement of the Polish Government's Agent at the public sitting on July 19th, 1933, the respective contributions of the Polish and German estates to the agrarian reform in 1933 — taking count of voluntary subdivisions of estates — were as follows: in the voivodeship of Posnania, Polish estates contribute 65.2 %, German estates, 34.8%; in Pomerelia, Polish estates contribute 39.8%, German estates 60.2%. These figures show that, though the percentages for 1933 correspond to the percentages of the total areas owned by the majority and the minority respectively, and even though they are very slightly in favour of the minority, it is none the less true that, in practice, the year 1933 will witness no progress whatever towards the restoration of the balance, so that Poland is doing practically nothing during the present year to effect that rectification which was described as necessary by the Minorities Committee of the Council in 1930 and 1931.

[46] Having regard, on the one hand, to this absence of cooperation with a view to restoring that equilibrium so essential for the equality of treatment which is aimed at by the Minorities Treaty, and having regard also to the fact that minority estates which had previously been entered in the nominal lists are still being expropriated, and, hence, that infractions of the Minorities Treaty are still occurring, while at the same time the retarded rate of execution of the agrarian reform makes it difficult to restore the balance between the majority and the minority, the Member of the Council in question asked the Court to indicate, as an interim measure of protection under Article 41 of the Statute, a suspension of the very same kind which the Nagaoka Committee of the Council had proposed in December 1932, as a definitive solution of the infractions that had then been pointed out.

[47] The undersigned are of opinion that the Court has before it a typical case in which interim measures would be entirely appropriate to preserve the rights of the German minority in Poland. They consider that the effect of such measures of protection would be considerably to facilitate the reparation of these rights, by their preservation, rather than by compensation for their loss. They are even of opinion that, if no Member of the Council had made a request for interim measures of protection, the Court should have indicated such measures proprio motu, availing itself of the powers conferred upon it by Article 41 of the Statute (see also Art. 57 of the Rules of Court).

[48] The undersigned are also of opinion that, before the Court can give a decision one way or the other, on an application by a Member of the Council for the indication of interim [p188] measures, where the said Member has applied to the Court under Article 12 of the Minorities Treaty, the Court must first decide whether an application made under paragraph 3 of the said Article 12 can furnish legitimate ground for such a request for the indication of interim measures. Poland has denied that it can do so; after careful consideration, the undersigned state that they do not agree with this view; but they are of opinion that it is not necessary in the present dissenting opinion to go into that question in greater detail.

(Signed) W. Schücking.
( „ ) V. Eysinga. [p189]

Annex.

Documents Submitted to the Court

Documents Filed in the Course of the Oral Proceedings:

By the Agent for the German Government:

Article 99 of the Constitution of the Republic of Polan (Dz. Ust. R. P., No. 44 of June 1st, 1921, pos. 267, p. 633)
Law of December 28th, 1925, concerning the carrying out of the agrarian reform (Dz. Ust. R. P., No. 1 of Jan. 9th, 1926, pos. 1, p. 2).
Minutes of the 69th Session of the Council (L.N., Official Journal, XIIIth Year, No. 12 (Part Two), Dec. 1932, pp. 1970 et sqq.).
Minutes of the 69th Session of the Council (L.N., Official Journal, XIIIth Year, No. 12 (Part Two), Dec. 1932, pp. 1987 et sqq.).
Minutes of the 70th Session of the Council (L.N., Official Journal, XIVth Year, No. 2, Feb. 1933, pp. 223 et sqq.).
Law of March 17th, 1933, concerning the publication of the nominal list of rural estates subjected to compulsory sale in 1933 (Dz. Ust. R. P., No. 21 of March 29th, 1933, pos. 150, p. 443).
Decree of the Council of Ministers of March 30th, 1933, concerning the preparation of the nominal list of rural estates subjected to compulsory sale for the year 1933 (Dz. Ust. R. P., No. 22 of March 31st, 1933, pos. 175, p. 466).
Photographic reproduction of the “nominal” lists for 1926, 1927, 1928, 1929, 1930 and 1932.
Judgment of the Roumano-Hungarian Mixed Arbitral Tribunal of July 4th, 1925.

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