General List No. 63

31 October 1935

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Third-Fifth (Extraordinary) Session

 

Consistency of certain Danzig legislative decrees with the constitution of the free city

 

The German National members of the Danzig Popular Assembly, the Social-Democrat members of the Popular Assembly, and the Centre Party and the Centre Party members of the Popular Assembly v. Senate of the Free City of Danzig

Order

 

 
BEFORE: President: Sir Cecil Hurst
Vice-President: Guerrero
Judges: Baron Rolin-Jaeouemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Jhr. Van Eysinga, Wang, Nagaoka
 
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1935.10.31_danzig_annex_1_to_1935.12.04_danzig.htm
  
Citation: Consistency of Certain Danzig Legislative Decrees with Constitution of Free City, 1935 P.C.I.J. (ser. A/B) No. 65, annex 1 (Order of Oct. 31)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 65; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoffĺs Publishing Company, Leyden, 1925
  
 

  

[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) ┼. Hammarskj÷ld,
Registrar.


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