General List No. 65 and 66

23 May 1936

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1936

 

The Pajzs, Csáky, Esterházy Case (Preliminary Objection)

 

Hungary v. Yugoslavia

Order

 
BEFORE: President: Sir Cecil Hurst
Vice-President: Guerrero
Judges: Baron Rolin-Jaequemyns, Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Negulesco, Jhr. Van Eysinga, Nagaoka
Judge(s) ad hoc: De Tomcsanyi, Zoričič
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1936.05.23_pajzs.htm
  
Citation: Pajzs, Csaky, Esterhazy (Hung. v. Yugo.), 1936 P.C.I.J. (ser. A/B) No. 66 (Order of May 23)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 66; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1936
  
 

  

[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";

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[FN1] The text of this Order will be published subsequently. [Note by the Registrar.]
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[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.


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