|
[p4] The
Permanent Court of International Justice,
composed as above,
after deliberation,
having regard to Articles 40 and 48 of the Statute,
having regard to Article 62 of the Rules of Court,
Makes the following Order:
AS REGARDS THE POSITION OF THE PROCEEDINGS:
[1] Whereas the Royal Hungarian Government, by means of an Application dated
December 1st, 1935, presented to and filed with the Registry of the Court on
December 6th, 1935, has instituted proceedings before the Permanent Court of
International Justice against the Royal Yugoslav Government in regard to
three judgments rendered on July 22nd, 1935, by the Hungaro-Yugoslav Mixed
Arbitral Tribunal under Nos. 749, 750 and 747; [p5]
[2] Whereas the Hungarian Government, in its Application, relies in this
case, firstly upon Article X of Agreement II for the "settlement of
questions relating to the agrarian reforms and the Mixed Arbitral
Tribunals", signed at Paris on April 28th, 1930, inter alia by Hungary and
Yugoslavia, which Article is as follows:
"Article X. - Czechoslovakia, Yugoslavia and Roumania, of the one part, and
Hungary, of the other part, agree to recognize, without any special
agreement, a right of appeal to the Permanent Court of International Justice
from all judgments on questions of jurisdiction or merits which may be given
hence-forth by the Mixed Arbitral Tribunals in all proceedings other than
those referred to in Article I of the present Agreement.
The right of appeal may be exercised by written application by either of the
two Governments between which the Mixed Arbitral Tribunal is constituted,
within three months from the notification to its Agent of the judgment of
the said Tribunal."
[3] Whereas the Hungarian Government, in support of its Application,
adduces, secondly, Article XVII of Agreement II and Article 22 of Agreement
III of Paris, which are as follows:
II. "Article XVII. - In the event of any difference as to the interpretation
or application of the present Agreement and failing agreement between the
Parties interested on the choice of a single arbitrator, any State
interested shall be entitled to address itself, by written application, to
the Permanent Court of International Justice, and shall not be barred by any
decision of the Mixed Arbitral Tribunal under Article I of the present
Agreement."
Agreement III. "Article 22. - In the event of any difference as to the
interpretation or application of the present Agreement, and failing
agreement between the Parties interested on the choice of a single
arbitrator, any State interested shall be entitled to address itself, by
written application, to the Permanent Court of International Justice."
[4] Whereas the Hungarian Government, in its Application, adduces, lastly
and in the alternative, the declarations made by Hungary and Yugoslavia
accepting the Optional Clause of Article 36 of the Court's Statute;
[5] Whereas, in regard thereto, while Hungary, on May 30th, 1934, renewed
her acceptance of this clause for a period of five years as from August
13th, 1934, Yugoslavia, on May 16th, 1930, only accepted the clause for a
period of five years as from November 24th, 1930; whereas, since this
acceptance has not been renewed, Yugoslavia had ceased to be bound by the
Optional Clause on December 6th, 1935, the date on which the Application of
the Hungarian Government was filed; and [p6] whereas this is a point on
which the Parties are in agreement;
[6] Whereas the time-limits for the presentation of the documents of the
written proceedings, after successive extensions, were so fixed that the
time allowed to the Hungarian Government for the presentation of its
Memorial expired on January 20th, 1936, and the time allowed to the Yugoslav
Government for the presentation of its Counter-Memorial expired on March
5th,
1936;
[7] Whereas the Hungarian Government, in the Memorial filed by it within the
time-limit thus fixed, prays the Court:
"A. 1. To admit the appeal;
2. To adjudge and declare, as a matter of law, after admitting the appeal,
preferably by way of revising the three judgments in question, that the
Mixed Arbitral Tribunal has jurisdiction to adjudicate upon the claims of
the Hungarian nationals, stating fully the reasons on which the judgment is
based and requiring the Mixed Arbitral Tribunal to conform to such statement
of reasons;
B. Alternatively or cumulatively, as the Court may see fit:
1. To adjudge and declare, generally, how Agreements II and III of Paris are
to be interpreted and applied, and to redress the situation created by the
Yugoslav Government's attitude, since that Government, either under its
domestic legislation as portrayed in Article 11, paragraph 3, of its law of
June 26th, 1931, or under an erroneous interpretation of that legislation by
the administrative authorities - though alleged by it to be authorized by
and in conformity with Agreements II and III of Paris - at present refuses
to recognize in respect of all Hungarian nationals its obligation to pay the
sums due to them in accordance with the national treatment applicable to
them under its domestic legislation in respect of their lands expropriated
in the course of its agrarian reform - extending to them an entirely new and
unforeseen treatment discriminatory in character and not provided for in
Agreements II and III of Paris - instead of only proceeding in this way in
the case of Hungarian nationals who submitted claims in respect of the same
lands before the Mixed Arbitral Tribunal and who have had their claims
recognized by judgments of the Mixed Arbitral Tribunal against the Agrarian
Fund, as laid down in Agreements II and III of Paris;
2. To order the Kingdom of Yugoslavia, in particular:
(a) in its attitude and proceedings, strictly to conform to the
interpretation and application of Agreements II and III, [p7] so laid down
as correct, and to respect the rights of which the existence was assumed by
those Agreements;
(b) to make good the damage and refund the costs and expenses occasioned to
Hungarian nationals by its present attitude and proceedings which are
unwarranted by Agreements II and III of Paris;
C. To adjudge and declare that the Kingdom of Yugoslavia is also under an
obligation to indemnify the Government of the Kingdom of Hungary for all
costs and expenses incurred by the latter in obtaining redress for its
nationals for whose situation the Kingdom of Yugoslavia, in spite of
warning, is responsible, including the cost and expenses of the present
proceedings before the Court";
[8] Whereas, within the time-limit fixed for the presentation of its
Counter-Memorial, the Yugoslav Government filed a document entitled:
"Counter-Memorial of the Yugoslav Government including the formal submission
of an objection presented to the Court in the proceeding instituted by the
Hungarian Government as an appeal from the three judgments Nos. 747, 749 and
750, rendered by the Hungaro-Yugoslav Mixed Arbitral Tribunal", and praying
the Court:
"1. To adjudge and declare, before entering upon the merits, that the appeal
of the Royal Hungarian Government against the three judgments of the Hungaro-Yugoslav
Mixed Arbitral Tribunal cannot be entertained and is contrary to Article X
of Agreement II of Paris;
2. To adjudge and declare, before entering upon the merits, that the request
of the Royal Hungarian Government for a general interpretation by the Court
of Agreements II and III of Paris cannot be entertained because the
essential conditions laid down by Article XVII of Agreement II and Article
22 of Agreement III have not been fulfilled;
3. Alternatively, to adjudge and declare that the appeal of the Hungarian
Government under Article X of Agreement II is ill-founded, and to confirm
the three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal;
4. Alternatively, to adjudge and declare that the three judgments of the
Hungaro-Yugoslav Mixed Arbitral Tribunal are in accordance with the true
interpretation of the Paris Agreements;
5. To order the Royal Hungarian Government to refund to the Royal Yugoslav
Government all costs and expenses incurred in the present proceedings";
[9] Whereas, in an Order made on March 10th, 1936 [FN1] , under Article 38
of the Rules then in force, the Court - holding the first two submissions of
the Yugoslav Government to be in the nature of preliminary objections -
fixed April 3rd, 1936, as the date by which the Hungarian Government might
present a written Statement of its observations and submissions [p8] in
regard to these objections ; whereas, by the date thus fixed, the Hungarian
Government filed a Statement praying the Court:
"To overrule the preliminary objections of the respondent State;
To declare itself to have jurisdiction;
To order the continuance of the proceedings on the merits";
---------------------------------------------------------------------------------------------------------------------
[FN1] The text of this Order will be published subsequently. [Note by the
Registrar.]
---------------------------------------------------------------------------------------------------------------------
[10] Whereas the two Parties concerned have availed themselves of their
right under Article 31 of the Statute each to nominate a judge to sit in the
case;
[11] Whereas, at public hearings held by the Court on April 29th and 30th
and May 1st, 4th, 5th and 6th, 1936, M. Stoykovitch, the Agent finally
appointed by the Yugoslav Government, and M. Gajzago, the Agent appointed by
the Hungarian Government, respectively presented the oral observations of
the Parties upon the objections above mentioned ; whereas the Agent for the
Hungarian Government in his oral statements maintained the submissions on
the objections made in the Hungarian written Statement and the submissions
on the merits made in the Hungarian Memorial; whereas, for his part, the
Agent for the Yugoslav Government also maintained as they stood the two
submissions made by the Yugoslav Government as preliminary objections in its
Counter-Memorial, including the formal submission of an objection on the
proceeding instituted by the Hungarian Government;
[12] Whereas, at this stage in the proceedings, the Court must under Article
62, paragraph 5, of the Rules in force, either give its decision on the
objection or join the objection to the merits;
AS REGARDS THE PRELIMINARY OBJECTION:
[13] Whereas it appears from the written statements and verbal explanations
of the Parties that the Court is confronted with the two following
objections:
(1) that the appeal of the Hungarian Government based on Article X of
Agreement II of Paris cannot be entertained because, contrary to the
contentions of the Hungarian Government, the cases forming the subject of
the judgments appealed against are not, as required by Article X, cases
other than those referred to in Article I of that Agreement and because the
said judgments are not judgments on questions of jurisdiction or merits
within the meaning of Article X;
(2) that the request of the Hungarian Government based on Article XVII of
Agreement II and Article 22 of Agreement III cannot be entertained because
that Government has lodged an application with the Court without its first
having [p9] been established that the Parties concerned have failed to agree
on the choice of a single arbitrator;
[14] Whereas the questions raised by the first of these objections and those
arising out of the appeal as set forth in the Hungarian Government's
submissions on the merits are too intimately related and too closely
interconnected for the Court to be able to adjudicate upon the former
without prejudging the latter;
[15] Whereas the purpose of the second objection of the Yugoslav Government
is to frustrate a request which is presented "alternatively or cumulatively
as the Court may see fit" to the "appeal" based on Article X of Agreement II
to which the first objection relates; whereas, in so far as this request is
in the nature of an alternative, the objection in respect of it can likewise
only be dealt with in the alternative;
[16] Whereas the further proceedings on the merits, by enabling the Court to
obtain a clear understanding of the relation in which the appeal under
Article X of Agreement II stands to the request for the interpretation of
Agreements II and III under Articles XVII and 22 of these Agreements, and of
the meaning and scope to be attached to the submissions presented
"alternatively or cumulatively as the Court may see fit", will place the
Court in a better position to adjudicate with a full knowledge of the facts
upon the second objection of the Yugoslav Government;
[17] Whereas both objections should therefore be joined to the merits, so
that the Court will give its decision upon them and, if need be, upon the
merits in one and the same judgment;
AS REGARDS THE FURTHER PROCEEDINGS:
[18] Whereas, under Article 62, paragraph 5, of the Rules in force, if the
Court joins the objection to the merits, it must once more fix time-limits
for the further proceedings;
[19] Whereas, upon the presentation of the objection of the Yugoslav
Government, the Court suspended the proceedings on the merits; whereas
however the document filed by the Yugoslav Government within the time-limit
fixed for the presentation of its Counter-Memorial in itself constituted,
according both to its title and contents, a Counter-Memorial on the merits;
[20] Whereas, in these circumstances and in accordance with the Order of
March 10th, 1936, it now only rests with the Court to fix the time-limits
for the presentation of the Reply and Rejoinder on the merits; [p10]
[21] THE COURT
(1) joins the objections lodged by the Yugoslav Government to the merits in
the proceedings instituted by the Application of the Hungarian Government
filed with the Registry on December 6th, 1935, and will adjudicate upon
these objections and, if need be, upon the merits in one and the same
judgment;
(2) fixes as follows the further time-limits for the filing of the documents
of the written proceedings:
(a) for the Reply by the Hungarian Government: July 3rd, 1936;
(b) for the Rejoinder by the Yugoslav Government: August 14th, 1936.
[22] Done at the Peace Palace, The Hague, this twenty-third day of May,
nineteen hundred and thirty-six, in three copies, one of which shall be
placed in the Archives of the Court and the others shall be transmitted to
the Royal Hungarian Government and to the Royal Yugoslav Government
respectively.
(Signed) Cecil J. B. Hurst,
President.
(Signed) Ĺ. Hammarskjöld,
Registrar.
|
|