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[p69] The
Permanent Court of International Justice,
composed as above,
Having regard to Article 31 of the Statute and Article 71 of the Rules of
Court,
Makes the following Order:
[1] Having regard to the Request of the Council of the League of Nations
dated September 27th, 1935, asking the Court to give an advisory opinion on
the question whether two legislative decrees issued by the Senate of Danzig
on August 29th, 1935, and amending the Penal Code and the Code of Criminal
Procedure of the City of Danzig, are consistent with the Constitution of the
Free City, or, on the contrary, violate any of the provisions or principles
of that Constitution;
[2] Having regard to the Order made by the President of the Court on October
4th, 1935, the Court not being in session, declaring that the Free City of
Danzig was to be regarded [p70] as fulfilling, for the purposes of this
case, the conditions set out in Article 73, paragraph 1, second
sub-paragraph, of the Rules of Court;
[3] Having regard to the special and direct communication addressed the same
day to the Senate of the Free City informing it that the Court was prepared
to receive from it a written statement and, if desired, to hear at a public
sitting an oral statement made on behalf of the Senate by a duly authorized
representative;
[4] Whereas the Senate of Danzig has appointed an Agent to represent it
before the Court in this case;
[5] Whereas the Agent for the Senate of Danzig transmitted to the Court, on
October 5th, 1935, a letter bearing the same date, in which the Senate asked
the Court to authorize it to appoint a judge ad hoc in this case, adducing
the following reasons in support of its request:
"Though it is true that, under Article 71 of the Rules [of Court], an
appointment of this kind is only expressly provided for in the case of a
dispute between several States or Members of the League of Nations, it is
also true that, in the present case which involves examination of provisions
of the domestic constitutional law of the Free City, it would be extremely
desirable to have a judge thoroughly familiar with Danzig constitutional law
upon the Bench. The Free City of Danzig would be prepared to appoint a judge
who was familiar with its constitutional law."
[6] Whereas the President of the Court, the Court not being in session,
caused the Agent for the Free City to be informed by letter dated October
10th, 1935, that the request of the Senate raised a question of principle
and that consequently it was desirable that the Agent for the Free City
should state orally in Court, more fully than had been possible in the
letter above mentioned, the arguments relied upon by the Senate;
[7] Whereas, at the public sitting held on October 30th, 1935, the Agent for
the Free City explained the various reasons which, in the opinion of the
Senate, would justify the presence in this case of a judge ad hoc appointed
by Danzig;
[8] Whereas the decision of the Court must be in accordance with its Statute
and with the Rules duly framed by it in pursuance of Article 30 of the
Statute;
[9] Whereas the constitution of the Court is governed by Articles 25 and 31
of the Statute; and as under the said Article 31 provision is made for the
presence on the Bench in certain contingencies of judges ad hoc only in
cases in which there are parties before the Court;
[10] Whereas this condition is not fulfilled in the present case; [p71]
[11] Whereas, under Article 71, first paragraph, of the Rules, advisory
opinions are given by the full Court composed as provided in Article 25 of
the Statute;
[12] Whereas the Court, in accordance with the above-mentioned Article 30 of
the Statute, has, by Article 71, paragraph 2, of its Rules, made the
provisions of Article 31 of the Statute regarding the appointment of judges
ad hoc in certain contingencies applicable in advisory proceedings, but only
in cases where such proceedings relate to an existing dispute between two or
more States or Members of the League of Nations, as was, moreover, recalled
by the Court in its Advisory Opinion of April 6th, 1935, in the case
concerning the Minority Schools in Albania;
Whereas the second paragraph of the said Article 71 at present constitutes
the only exception to the general rule, and as therefore this exception
cannot be given a wider application than is provided for by the Rules;
[13] For These Reasons,
The Court
decides that there is no ground for granting the request of the Free City
for permission to appoint a judge ad hoc in the present case.
[14] Done in English and French, the French text being authoritative, at the
Peace Palace, The Hague, this thirty-first day of October, one thousand nine
hundred and thirty-five, in two copies, one of which is to be deposited in
the archives of the Court and the other to be forwarded to the Council of
the League of Nations.
(Signed) Cecil J. B. Hurst,
President.
(Signed) Å. Hammarskjöld,
Registrar.
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