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[p31] The Court,
composed as above,
delivers the following judgment:
[1] By an Application instituting proceedings, dated December 1st, 1935, and
filed with the Registry of the Court on December 6th, in accordance with
Article 40 of the Statute and Article 35 of the Rules of Court (as then in
force), the Royal Hungarian Government has instituted before the Court
proceedings relating to the above-mentioned judgments of the Hungaro-Yugoslav
Mixed Arbitral Tribunal. In order to establish the jurisdiction of the
Court, the Applicant relies upon the jurisdictional clauses contained either
in Article X of Agreement II, signed at Paris on April 28th, 1930 (which
concerns the settlement of questions relating to the agrarian reforms and
Mixed Arbitral Tribunals), or in Article XVII of the same Agreement and in
Article 22 of Agreement III signed on the same occasion (which concerns the
organization and working of an Agrarian Fund known as Fund "A") ; the
Applicant also adduces, "but only as a second alternative and purely by way
of precaution", the "Optional Clause of Article 36 of the Statute of the
Court".
[2] According to the Application, "the subject of the dispute" concerns, in
the first place, the judgments whereby the Hungaro-Yugoslav Mixed Arbitral
Tribunal "declined jurisdiction" in cases Nos. 749, 750 and 747 (Pajzs,
Csáky and Esterházy versus the State of Yugoslavia) and "in the alternative
only", "the attitude which the Kingdom of Yugoslavia has seen fit to adopt"
in the dispute which is alleged to have arisen from the fact that Yugoslavia
has refused to all Hungarian nationals, including those who do not receive
larger compensation from the Agrarian Fund, the benefits of the national
régime governing compensation for property expropriated under the agrarian
reform introduced in that country. [p32]
[3] After a brief account of the facts leading up to the submission of the
case to the Court, the Application proceeds to state "the claim" by saying
that the intention of the Royal Hungarian Government is to pray the Court,
on the basis of Article X of Agreement II, "to review the said judgments"
and, in the alternative, on the basis of Article XVII of Agreement II and
Article 22 of Agreement III, "to interpret the Agreements of Paris .... and
cause them to be justly applied", thus causing Yugoslavia "to alter the
attitude" above mentioned, and to adjudge that the Government of that
country shall "allow all Hungarian nationals, who have been affected by the
agrarian reform in Yugoslavia and who have no claim upon the Agrarian Fund,
to have the benefit, equally with all other persons similarly situated and
without discrimination, of national treatment in so far as concerns the
payment of local indemnities for property of theirs expropriated in the
carrying out of the agrarian reform".
[4] According to the Application instituting proceedings before the Court,
the judgments in question rendered by the Hungaro-Yugoslav Mixed Arbitral
Tribunal on July 22nd, 1935, were notified to the Agent for the Hungarian
Government before that Tribunal on September 7th, 1935; this has not been
disputed by the Yugoslav Government. Accordingly, the application has been
made to the Court "within three months from the notification" to the Agent
of the Royal Hungarian Government of the judgments complained of by that
Government under Article X of Agreement II.
[5] On December 6th, 1935, notice of the Hungarian Government's Application
was given to the Yugoslav Government through the Yugoslav Minister to the
Netherlands. On December 12th, 1935, the communications provided for in
Article 40 of the Statute and Article 36 of the Rules (as then in force)
were despatched to all States entitled to appear before the Court.
Furthermore, on December nth, 1935, the Registrar, pursuant to Article 63 of
the Statute and Article 66 of the Rules, notified the States which, together
with Hungary and Yugoslavia, had signed the Treaty of Peace of Trianon of
June 4th, 1920, and Agreements II and III of Paris of April 28th, 1930, of
the institution of these proceedings by the Royal Hungarian Government. On
receipt of these notifications, the Roumanian and Czechoslovak Governments,
availing themselves of the terms of Article 44 of the Rules (Art. 42 of the
former text), asked for the documents of the written proceedings in the
case. With the consent of the Parties concerned, this request was complied
with.
[6] As the Court included on the Bench no judge of the nationality of the
Parties, the Hungarian and Yugoslav Governments availed themselves of their
right under Article 31 of the Statute each to nominate a judge.
[7] By an Order made on December 12th, 1935, the President Court, as the
Court was not sitting, fixed January 20th, 1936, as of the [p33] the
time-limit for the filing by the Hungarian Government of its Memorial in the
case ; he also fixed the time-limits for the filing of the other documents
of the written proceedings. The latter were extended by an Order made by the
Court on February 22nd, 1936, March 5th, 1936, being ultimately fixed as the
time-limit for the filing by the Yugoslav Government of its
Counter-Memorial.
[8] In its Memorial, which was duly filed by the date fixed as indicated
above, the Hungarian Government formulated its submissions as follows:
"May it please 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 reviewing 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 in all
circumstances to the interpretation and application [p34] of Agreements II
and III 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 the situation in which the Kingdom of Yugoslavia placed them,
in spite of warning, including the cost and expenses of the present
proceedings before the Court."
[9] By the date fixed for the filing of the Counter-Memorial, the Yugoslav
Government presented a document entitled "Counter-Memorial of the Yugoslav
Government embodying the submission of a preliminary objection lodged with
the Permanent Court of International Justice in the case of the appeal of
the Hungarian Government against the three judgments Nos. 747, 749 and 750
of the Hungaro-Yugoslav Mixed Arbitral Tribunal". This document, in the
first place, and "before entering upon the merits", lodges certain
objections to the submissions of the Hungarian Memorial; in the second
place, "with the object of .... avoiding any fresh adjournment of the
proceedings in case the Court should consider that it is able to examine the
merits", this document presents to the Court a "general statement" on the
merits. The Counter-Memorial makes the following submissions:
"May it please 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 Hungarian Government's
appeal, under Article X of Agreement II, is ill-founded, and to confirm the
three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal; [p35]
4. Alternatively, to adjudge and declare that the three judgments of the
Hungaro-Yugoslav Mixed Arbitral Tribunal are consistent with a correct
interpretation of the Paris Agreements;
5. To order the Royal Government of Hungary to repay to the Royal Government
of Yugoslavia the costs and expenses incurred in the present proceedings."
[10] On receipt of this document, the Court, on March 10th, 1936, made an
Order in which, after declaring that "this Counter-Memorial is to be
regarded as lodging a preliminary objection" within the meaning of Article
38 of the Rules (as then in force) and that, as a result of the filing of
this preliminary objection, "the proceedings on the merits are suspended",
it fixed April 3rd as the date of expiry of the time-limit within which the
Hungarian Government might present a written statement of its observations
and submissions in regard to the objection; the Court also declared in the
recitals of the Order that it regarded the document filed by the Yugoslav
Government within the time-limit fixed for the presentation of the
Counter-Memorial as constituting "a Counter-Memorial on the merits".
[11] The written proceedings in regard to the Yugoslav objections were
completed by the filing by the specified date of the statement mentioned
above. This statement prayed the Court to overrule the objections, to
declare that it had jurisdiction and to order the continuance of the
proceedings on the merits.
[12] After hearings held on April 29th and 30th and May 1st, 4th, 5th and
6th, 1936, the Court, on May 23rd, 1936 [FN1], made an Order whereby,
adducing Article 62, paragraph 5, of the Rules now in force, it joined "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 stated that it would
"adjudicate upon these objections [those presented in the Yugoslav
Counter-Memorial] and, if need be, upon the merits in one and the same
judgment". On the same occasion the Court fixed fresh time-limits expiring
on July 3rd and August 14th, 1936, for the presentation of the Reply and
Rejoinder on the merits.
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[FN1] Publications of the Court. Series А./В., Fasc. No. 66
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[13] In its Order of May 23rd, 1936, and with reference to the fact that the
Hungarian Government in order to establish the jurisdiction of the Court
relied "as a second alternative" upon the Optional Clause of Article 36 of
the Court's Statute, the Court recalled the following circumstances :
While Hungary, on May 30th, 1934, had renewed her acceptance of this Clause
for a period of five years as from August 13th, 1934, Yugoslavia, on May
16th, 1930, had only accepted the Clause for a period of five years as from
November 24th, 1930; and, as this [p36] acceptance had 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 had been
filed; the Court also observed that the Parties were in agreement on this
point.
[14] The last documents of the written proceedings on the merits were duly
filed within the prescribed time-limits. The Hungarian Reply "recapitulates
and defines" the Applicant's submissions as follows :
"May it please the Court:
I. To overrule the preliminary objection of the respondent State; To declare
that it has jurisdiction ;
II. (A) 1. To admit the appeal under Article X of Agreement II;
2. To adjudge and declare, as a matter of law, alternatively :
(a) (if the judgments complained of are held to be decisions as to
jurisdiction) that the Mixed Arbitral Tribunal has jurisdiction and that it
can entertain the claims of the Hungarian applicants and adjudicate upon
them in accordance with Article 250 of the Treaty of Trianon, there being
nothing in the Agreements of Paris rendering that Article inapplicable in
this case on the ground either of lack of jurisdiction or of limitation,
since there is nothing either in the actual provisions of these Agreements
or in their general purpose, as indicated by their origin and the manner in
which they are framed, to show that the Agreements do more than lay down in
what respects the rules previously in force are to be modified; and this
only applies in respect of certain claims of a different kind from those
concerned in this case. The very silence of the Agreements proves that in
all other respects they leave the pre-existing law intact; in particular,
there is nothing to prevent the application of Article 250 of the Treaty of
Trianon in this case in any of the following: Articles I, VII, XIII (or even
Article XVI and all that goes with it, as already construed and applied by
the Mixed Arbitral Tribunal in previous cases, viz.: those of the so-called
first series, in judgments from which there is no appeal and which have
acquired the force of res judicata) or the Preamble of Agreement II; this
Preamble even expressly says that as regards any questions not settled in
the Agreements, as in the present case, the pre-existing law is maintained
in force, subject to the right of free interpretation reserved on either
side ; nor is there anything in Article 10 of Agreement III to prevent the
application of Article 250; [p37]
(b) (if the judgments are held to be judgments on the merits) that it is for
the Court itself to decide on appeal all the questions, whether those of a
preliminary character indicated above or those on the merits; preferably, it
will do this by way of revising the judgments appealed from, in conformity
with the relevant customary or treaty law, applying in particular Article
250 of the Treaty of Trianon and the provisions of Agreements II and III,
and will declare that, as regards the claimants, the suspension or refusal
of national treatment, as regards the payment - either in the form of rent
or interest, or of a lump sum in cash or of bonds - of the local indemnities
due to all landowners to whose property genuine measures of agrarian reform
have been applied under the terms of the local law, are inconsistent with
these provisions, notwithstanding the fact that this action is alleged to
have been taken in application of, or at all events to be based upon the
construction placed by the Yugoslav authorities upon, the provisions of
Article 11, paragraph 3, and perhaps also paragraph 4, of the Yugoslav law
of June 19th, 1931, for winding up the agrarian reform; for the present
claimants do not belong to the group of Hungarian claimants of another
category whose claims have been admitted against the Agrarian Fund for
indemnities larger than the local indemnities - which the latter category of
claimants would also obtain comprised in the larger indemnity paid by the
Fund; thus this refusal to apply the national régime would deprive the
present claimants - without any act or omission on their part or any other
reason - of any indemnity in respect of the property taken from them, a
state of affairs which is not contemplated by any provision of Agreements II
and III and which cannot be lawful in the absence of express provisions to
that effect; the refusal amounts to discrimination against them as compared
with all other owners, even other Hungarian nationals - a state of affairs
which is incomprehensible because these latter are, under the Agreements,
acknowledged to be entitled to indemnities considerably larger than the
local indemnities - as well as Yugoslav nationals; the refusal amounts to
the retention of money or other assets due to these Hungarian nationals and
thus constitutes a measure of 'disposal' in itself forbidden by Article 250
of the Treaty of Trianon and doubly so since it also constitutes, as
observed above, a measure of discrimination against them as compared with
Yugoslav nationals; [p38] it is also a violation of Article 250 of the
Treaty of Trianon bringing into play the jurisdiction of the Mixed Arbitral
Tribunal which on appeal passes to the Court; as regards the merits, Article
250 requires full restitution; Yugoslavia is bound to comply.
(B) In the alternative, or concurrently, as the Court may see fit:
To adjudge and declare, by means of the interpretation and application of
Agreements II and III, under Article XVII of Agreement II and Article 22 of
Agreement III, that: the attitude of Yugoslavia is inconsistent with the
provisions of Agreements II and III as specified above under A; this
attitude has manifested itself either through the adoption of the
legislative measures in Article 11, paragraph 3, and perhaps also paragraph
4, of the law of June 19th, 1931, for winding up the agrarian reform, or
through the interpretation of these measures adopted and applied in practice
by the Yugoslav authorities ; for these measures, or their interpretation,
have resulted in the suspension as regards the past and the refusal as
regards the future of national treatment in the case of Hungarian nationals
- even those who have never had any intention of claiming more than national
treatment or whose claims against the Agrarian Fund have been rejected; this
national treatment consists in the payment of the local indemnities due to
all landowners, in respect of property to which genuinely agrarian measures
have been applied, either in the form of rent or interest or in the form of
a lump sum in cash or bonds, in accordance with the national law; such
treatment would deprive these Hungarian nationals, without any act or
omission on their part calculated to affect the payment of their local
indemnities and without any other reason whatsoever, of any indemnity at all
in respect of the property taken from them; such a state of affairs is not
contemplated in any of the provisions of Agreements II and III cited above,
and cannot be justified in the absence of express provisions to that effect;
it amounts to discriminatory treatment against these Hungarian nationals as
compared with all other owners, even all other Hungarian nationals; this
state of affairs is incomprehensible, seeing that other Hungarian nationals
are, under the Agreements themselves, acknowledged to be entitled to
indemnities much larger than the national indemnities; it also amounts to
discriminatory treatment as compared with all Yugoslav [p39] nationals ;
this latter form of discrimination is however definitely forbidden by
general international law and by the Treaty of Trianon; this Treaty also
forbids any measure which, though not discriminatory, can be described as a
measure of 'retention' or 'disposal' of Hungarian property in territories
detached from Hungary; and the special rules laid down in Agreements II and
III of Paris ultimately rest on general international law and the Treaty of
Trianon, so that a breach of the latter cannot ensue if the former are
properly applied; the authorized deviations from the normal law being
explicitly indicated ; accordingly, the mere pretence of executing the
Agreements, though they are not in fact being carried out, cannot serve to
excuse a breach either of general international law or of the Treaty of
Trianon; the state of affairs described above is, as has been indicated,
contrary to law, more especially since it is alleged in Yugoslavia that it
constitutes the carrying out of the Paris Agreements ; in these
circumstances, Yugoslavia is bound to remedy this situation and all its
consequences and to ensure that the Agreements are strictly and fairly
applied in this respect within their proper limits as regards all Hungarian
nationals concerned, whether the actual claimants in the three cases in
issue who are also referred to under submission A, or others known or
unknown at present.
(C) To adjudge and declare that the Kingdom of Yugoslavia is under an
obligation to indemnify the Government of the Kingdom of Hungary for all
costs and expenses incurred by the latter and its nationals in obtaining
redress for the situation in which they have been placed by the illegal
action of the Kingdom of Yugoslavia, including the cost and expenses of the
present proceedings before the Court."
[15] On the other hand, the Royal Yugoslav Government in its Rejoinder made
the following submissions:
"May it please the Court:
1. Adjudicating as a Court of appeal in virtue of Article X of Agreement II,
to reject all the submissions of the Hungarian Government and to confirm the
three judgments of the Hungaro-Yugoslav Mixed Arbitral Tribunal, which are
complained of before the Court ;
Alternatively, in case the Court should consider that the three judgments
are ill-founded, to refer the case back to the Hungaro-Yugoslav Mixed
Arbitral Tribunal, in order that the [p40] latter may adjudicate on all the
questions which were raised before it, but upon which it has not yet passed
judgment in the judgments impugned before the Court.
2. Adjudicating in virtue of Article XVII of Agreement II and Article 22 of
Agreement III of Paris, to declare that the claims of the three Hungarian
nationals are covered by the settlement on a lump-sum basis in the Paris
Agreements and that the three Hungarian nationals may not institute
proceedings against Yugoslavia based on Article 250 of the Treaty of Trianon
but that they must be allowed to lodge their claims in respect of the lands
expropriated by the Yugoslav agrarian reform against the Agrarian Fund."
[16] In the course of public sittings held on October 26th, 27th, 28th,
29th, 30th and 31st, and November 2nd, 3rd, 5th, 6th, 7th, 9th, 10th, nth
and 13th, 1936, the Court heard :
M. Gajzago, Agent for the Royal Hungarian Government, on behalf of Hungary;
and M. Stoykovitch, Agent for the Royal Yugoslav Government, on behalf of
Yugoslavia.
[17] The two Agents, who had in the course of their oral arguments amended
or supplemented the submissions presented by them in the written
proceedings, filed at the conclusion of the oral proceedings the final
submissions of their respective Governments.
[18] The submissions of the Hungarian Government, dated November 13th, 1936,
are as follows:
"May it please the Court:
I. To overrule the preliminary objections of the respondent State; To
declare that it has jurisdiction ;
II. (A) 1. To admit the appeal under Article X of Agreement II;
2. Preferably, to review the judgments complained of and to adjudge that the
Mixed Arbitral Tribunal was competent, there being nothing in Agreements II
and III of Paris inconsistent with its jurisdiction. Applying Article 250 of
the Treaty of Trianon, to order the respondent State, in accordance with the
claim lodged by the applicants before the court of first instance : to treat
the latter on a footing of equality with Yugoslav nationals as regards the
delivery to them of the valuable consideration (in cash or bonds)
constituting the so-called definitive local indemnities due to them in
respect of lands of theirs to which the agrarian reform has been applied
under a non-discriminatory domestic law; to cause these local indemnities,
which at the moment are refused to them for no valid reason deducible from
Agreements II and III of Paris, to be paid to them - this refusal amounting
to a [p41] retention of assets (not land), and being their only ground of
complaint in the present case and one which constitutes discriminatory
treatment against them.
(B) Alternatively:
To adjudge and declare by means of the interpretation and application of
Agreements II and III, under Article XVII of Agreement II and Article 22 of
Agreement III, that the attitude of Yugoslavia, described above, is
inconsistent with the provisions of Agreements II and III; this attitude has
been adopted towards all Hungarian nationals, even towards those who have
never had any intention of claiming more than national treatment and those
who had sought to obtain more from the Agrarian Fund which had been
constituted in the meantime but whose claims against that Fund had been
rejected by the Mixed Arbitral Tribunal, in the same way as those of the
claimants in the three cases referred to above; the inconsistency of
Yugoslavia's attitude with Agreements II and III of Paris is all the more
remarkable because this policy has been adopted and maintained in Yugoslavia
on the ground that it actually constitutes the carrying out of the Paris
Agreements, which is contrary to the fact. The Court is asked to ensure that
the Agreements are strictly and fairly applied in regard to this point.
III. May it further please the Court:
1. To take note that the Hungarian Government, while making full
reservations, no longer relies in the present case on the third of the
clauses adduced by it as conferring jurisdiction on the Court, namely the
Optional Clause of Article 36 of the Court's Statute, in view of the fact
that Yugoslavia's acceptance of that Clause expired while the Application
was in process of drafting, a few days before it was filed, and has so far
not been renewed.
2. To reject the last portion of the submissions formulated by the
respondent State in its oral rejoinder, under No. 5, as constituting an
impeachment of those judgments of the Hungaro-Yugoslav Mixed Arbitral
Tribunal - the so-called first series of judgments – - rendered in agrarian
actions more than three years ago, awards from which there is no appeal and
which have not been complained of by the Hungarian Government; these
judgments should have been complained of in due time by the Yugoslav
Government - had it wished to do so - by way of a request for the
interpretation and application of [p42] the Agreements, and, as regards the
form, this should have been done at latest in the Counter-Memorial by way of
a counter-claim under Article 63 of the Rules of Court, so as to enable them
to be adjudicated upon at the instance of the Respondent in the present
proceedings, always assuming that it would have been possible, in these
actual cases, and after the lapse of three years, to impeach them by such an
exceptional recourse to the method of interpretation and application of the
Agreements, solely under Article XVII of Agreement II, in regard to a point
decided finally and without appeal by the Mixed Arbitral Tribunal three
years previously - a point as delicate as the question of the observance by
a very large number of owners of a short time-limit of six months, which
expired three years ago.
3. 3. To reject as ill-founded all the submissions of the respondent State,
presented in its oral rejoinder under Nos. 1 to 3 and 4 to 6.
IV. To order that the Kingdom of Yugoslavia shall refund to the Kingdom of
Hungary all costs and expenses incurred by it in the present proceedings."
[19] On the other hand, the final submissions of the Yugoslav Government,
also dated November 13th, 1936, are as follows :
"May it please the Court
A. 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 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. To exclude from the present proceedings all questions concerning the
interpretation of the reservations made by the three Governments of
Yugoslavia, Roumania and Czechoslovakia in the Preamble of Agreement II of
Paris.
B. In the alternative:
4. Adjudicating as a Court of appeal in virtue of Article X of Agreement II,
to reject all the submissions of the Hungarian Government and to confirm the
three judgments of [p43] the Hungaro-Yugoslav Mixed Arbitral Tribunal which
are complained of before the Court;
alternatively, in case the Court should consider that the three judgments
are ill-founded, to refer the case back to the Hungaro-Yugoslav Mixed
Arbitral Tribunal in order that the latter may adjudicate on all the
questions which were raised before it, but upon which it has not yet
adjudicated in the judgments complained of before the Court.
5. Adjudicating in virtue of Article XVII of Agreement II and Article 22 of
Agreement III of Paris, to declare that the claims of the three Hungarian
nationals are covered by the settlement on a lump-sum basis in the Paris
Agreements, and that the three Hungarian nationals may not institute
proceedings against Yugoslavia, based on Article 250 of the Treaty of
Trianon, but that they must be allowed to lodge their claims, in respect of
the lands expropriated by the Yugoslav agrarian reform, against the Agrarian
Fund.
С 6. To order that the Royal Government of Hungary shall refund to the Royal
Government of Yugoslavia the costs and expenses incurred in the present
proceedings."
[20] Accordingly, it is upon these submissions that the Court has finally to
adjudicate.
[21] Numerous documents have been produced on behalf of each Party, as
annexes to the Application and to the documents of the written proceedings,
either in regard to the preliminary objections of the Yugoslav Government or
on the merits [FN1].
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[FN1] See list in Annex.
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[22] Similarly, in the course of the oral proceedings on the objections and
on the merits, each of the Parties has produced new documents [FN1], either
at the request of the Court, or with the consent of the other Party.
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[FN1] See list in Annex.
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[23] In this connection, the Court has twice been called upon in the
following circumstances to take decisions under Article 52 of the Statute
and Article 48 of the Rules.
[24] 1. In the course of the oral proceedings in regard to the preliminary
objections, the Agent for the Hungarian Government, at the invitation of the
Court, produced the application submitting to the Hungaro-Yugoslav Mixed
Arbitral Tribunal one of the three cases which culminated in the judgments
forming the subject of the present proceedings. In the course of the oral
proceedings on the merits, he referred to the application submitting another
of these three cases and indicated his intention to produce the text. The
Agent for the Yugoslav Government consented to the production of this
document, but subject to a condition which was subsequently [p44] proved not
to have been fulfilled. The Court decided to allow the document to be
produced in view of the desirability of having in its possession the
documents which had been before the tribunal which had rendered the
judgments forming the subject of the proceedings before the Court.
[25] 2. In the course of his first oral argument on the merits, as also in
the oral proceedings in regard to the objections, the Agent for the Yugoslav
Government referred to the minutes of a meeting of the Managing Commission
of the Agrarian Fund provided for by the Paris Agreements of April 28th,
1930 ; in this connection he requested the Court to ask the proper authority
for a certified copy of this document of which he himself only had an
unofficial text. The Court did not comply with this suggestion and, when the
Yugoslav Agent once more invoked the text in question in his oral rejoinder,
the Hungarian Agent stated that he could not consent to use being made of
this document which had not already been produced. The Court decided not to
admit the document in question.
*
[26] The origin of the case submitted to the Court is as follows :
[27] Even before the final organization of the new Serb-Croat-Slovene State
after the War of 1914-1918 an agrarian reform had been contemplated in that
country. Thus "transitory measures having the force of law in preparation
for the agrarian reform" were issued on February 25th, 1919. Under this
legislative measure, promulgated by an ordinance of the Council of Ministers
which was ratified by Parliament in 1922, "all large estates in the
territory of the Serb-Croat-Slovene Kingdom are subject to expropriation",
the areas expropriated to be "used for the purpose of distributing land to
those nationals who are engaged in agriculture but do not possess land or do
not possess a sufficient quantity of it" [FN1]. The ordinance gave a
provisional definition of large estates and laid down as a principle that
"the large landowners would be compensated for the land expropriated".
---------------------------------------------------------------------------------------------------------------------
[FN1] The foregoing is rendered from the French translation supplied by the
Yugoslav Government. The Hungarian Government submitted a French
trans¬lation which may be rendered as follows in English : "All large
estates in the territory of the Serb-Croat-Slovene State are subject to
expropriation. These lands will only be given to Serb-Croat-Slovene
nationals, whose occupation is agriculture and who either possess no land or
do not possess sufficient land."
---------------------------------------------------------------------------------------------------------------------
[28] A series of other legislative measures in regard to agrarian reform
followed, among which should be mentioned the decree of July 27th, 1919
(ratified on May 20th, 1922) regarding the inalienability and exemption from
seizure of large landed estates and the decree of September 3rd, 1920 (which
became the law of May 20th, 1922), concerning letting of large landed [p45]
estates on four-year leases. The first of these decrees prohibited, save by
special permission, "the alienation of landed property" belonging to the
category of "large estates" as defined by the law itself; the mortgaging of
such landed property was also forbidden by this decree. The second decree
authorized the Government "to take over, pending the final apportionment of
large estates, the administration" of the areas affected by the agrarian
reform and "provisionally to lease them" for a period of four years to
certain categories of persons or associations. The leases might be extended
so long as the areas in question had not become the property of the lessees
[FN1]. The latter were to pay the greater part of the rent direct to the
owners by way of annuity or indemnity.
---------------------------------------------------------------------------------------------------------------------
[FN1] The above quotations are rendered from French translations supplied by
the Yugoslav Government. The translations supplied by the Hungarian
Govern¬ment are slightly different.
---------------------------------------------------------------------------------------------------------------------
[29] The first period of compulsory leasing was to extend from October 1st,
1920, to September 30th, 1924. On July 18th, 1924, the Minister for Agrarian
Reform, on the basis of the legislative measures above mentioned, issued a
decree to the effect that "all provisional leases" were "extended until the
enactment of the law for the expropriation and settlement of the large
estates" [FN2].
---------------------------------------------------------------------------------------------------------------------
[FN2] Rendered from the French translation supplied by the Hungarian
Government
---------------------------------------------------------------------------------------------------------------------
[30] The measures taken, under the agrarian reform legislation briefly
analyzed above, in respect of large estates situated in Yugoslav territory
but belonging to Hungarian nationals gave rise to a number of actions
brought by these nationals before the Hungaro-Yugoslav Mixed Arbitral
Tribunal under Article 250 of the Treaty of Trianon. The same thing had
occurred with regard to the other countries of the Little Entente, before
the Hungaro-Roumanian and Hungaro-Czechoslovak Mixed Arbitral Tribunals. The
three Mixed Arbitral Tribunals, by a series of decisions rendered in typical
cases, held that they had jurisdiction to adjudicate upon the merits of the
claims which had been submitted to them. These disputes had become
particularly acute in the case of landowners who had remained Hungarian by
opting for Hungarian nationality.
[31] The differences of opinion on this subject between Hungary and Roumania
had been submitted to the Council of the League of Nations ; but no
settlement had yet been reached when the difficulties were brought up at the
Conferences convened to meet at The Hague in August 1929 and January 1930,
for the settlement of questions concerning liabilities for war reparations.
A series of proposals, known as the [p46] "Young Plan", had been prepared
for settling the difficulties inherent in the question of war reparations -
German and other - but the existence of the difficulties above mentioned
rendered the entry into operation of this plan impossible, without the
adherence of the States concerned, i.e., not Hungary alone but also
Roumania, Czechoslovakia and Yugoslavia.
[32] The adherence of these countries was secured in principle at the second
Conference at The Hague, thanks to mutual concessions made by the States
directly concerned and to financial assistance granted by Belgium, the
British Empire, France, Italy, Japan and Portugal. This Conference resulted
in the adoption on January 20th, 1930, of an "Agreement relating to
Hungarian obligations under the Treaty of Trianon" ; to this Agreement were
annexed texts laying down and defining "the bases of the agreements which
now and henceforth constitute an undertaking on the part of the signatory
Governments". The Agreement provided that the final texts were to be drawn
up "on these bases" by a Committee which was to include a representative of
each signatory Power and was to meet in Paris.
[33] The Conference which met in these circumstances in Paris, under the
chairmanship of M. Loucheur, resulted in the adoption, on April 28th, 1930,
of four Agreements "relating to the obligations resulting from the Treaty of
Trianon". These Agreements were preceded by a General Preamble according to
which, inter alia, the French and English texts were to be equally authentic
and the Agreements were to be "considered as inseparably connected and
ratified accordingly". They came into effect on April 9th, 1931, and were
registered by the Secretariat of the League of Nations on August 20th, 1931,
in accordance with Article 18 of the Covenant [FN1]. The Governments of the
States of the Little Entente signed all the Agreements, but Hungary, though
a signatory of the General Preamble, was not interested in Agreement IV, did
not cause her representatives to sign the fourth of the Agreements concluded
at Paris.
---------------------------------------------------------------------------------------------------------------------
[FN1] League of Nations, Treaty Series, Vol. 121, No. 2785.
---------------------------------------------------------------------------------------------------------------------
[34] The provisions of these Agreements will so far as may be necessary be
examined later in this judgment. For the purposes of this account of the
origin of the case it will suffice to say the following: under Article I of
Agreement II, it was "agreed that Yugoslavia" should "promulgate the
definitive law [of agrarian reform in that country] before 20th July 1931";.
Under Article XVI of the same Agreement, "after the promulgation of the
definitive law, the Governments of Hungary and Yugoslavia will reach an
agreement in order to determine from [p47] what act laid down in the said
law the period of limitation (six months) shall begin to run". Until the
promulgation of the Yugoslav law the time-limits allowed for the filing of
applications were those fixed by the rules of procedure of the Tribunal.
Lastly, under Article X of Agreement II, the States of the Little Entente
and Hungary recognize in certain circumstances "a right of appeal" to the
Permanent Court of International Justice, while, under Articles XVII of
Agreement II and 22 of Agreement III, any State interested is entitled, in
the event of a difference as to the interpretation or application of these
Agreements and subject to certain conditions, to address itself to the Court
by written application.
[35] The Paris Agreements were promulgated as a Yugoslav law on May 27th,
1930. The "definitive law", known as the "law concerning the completion of
the agrarian reform in respect of large estates", is dated June 19th, 1931,
and was promulgated on the 26th of that month.
[36] According to the Agent for the Yugoslav Government, "the amount of land
affected by the agrarian reform", as defined by that "law", is the same as
that defined by the law of May 20th, 1922, concerning "the letting of large
landed estates on four-year leases". In addition, paragraphs 3 and 4 of
Article 11 of the definitive law should be reproduced here [FN1] :
---------------------------------------------------------------------------------------------------------------------
[FN1] Rendered from the French translation supplied by the Hungarian
Govern¬ment
---------------------------------------------------------------------------------------------------------------------
"3. With regard to the expropriation of large landowners of Hungarian
nationality, to whom apply the provisions of the law of May 27th, 1930,
concerning the application of the Agreements, particularly of the
obligations resulting from the Treaty of Trianon, etc., between Hungary and
the victorious Powers, the following action will be taken : in accordance
with the pro¬visions of the above-mentioned law, the whole of the estate
will be expropriated forthwith for the purposes of the agrarian reform and
will be transferred to the State and registered. Then the maximum areas
prescribed by the provisions of the present law will be restored in full and
entire possession to the owners, and their names will be entered in the land
registers.
4. The indemnities for the expropriation of these estates being paid by the
State into Fund A, the agriculturists to whom these expropriated lands have
been ceded will pay to the State the sums which they would otherwise pay,
under the present law, as purchase money."
[37] The agreement between the Hungarian and Yugoslav Governments which, as
stated above, was provided for by Article XVI of Agreement II of Paris, was
promulgated on December 15th, 1931, in the two countries concerned. [p48]
[38] Among the Hungarian nationals owning land in Yugoslavia and affected by
the measures of agrarian reform prior to the promulgation of the "definitive
law", were the petitioners (Pajzs, Csáky and Esterházy) in the three cases
in which the Hungaro-Yugoslav Mixed Arbitral Tribunal rendered the judgments
forming the subject of the present proceedings.
[39] A limited number of Hungarian nationals owning land in Yugoslavia and
expropriated under the agrarian reform, had brought no action against anyone
for compensation for the expropriation of their estates. In consequence of
the promulgation on June 26th, 1931, of the Yugoslav definitive law, which
referred expropriated Hungarian landowners to the Agrarian Fund, the
landowners in question have accordingly received no compensation at all.
[40] The three petitioners (Pajzs, Csáky and Esterházy), on December 21st,
22nd and 28th, 1931, instituted proceedings before the Mixed Arbitral
Tribunal against the Agrarian Fund created by the Paris Agreements, asking
for judgment against the Fund for an indemnity, the amount of which was
specified, in respect of their lands which had been "taken", "seized", or
"expropriated"; they also presented certain minor claims.
[41] The expropriation decisions referred to in Article 11 of the
"definitive law" were not taken until May and June, 1932, in respect of
these estates; the decisions were notified to the interested parties in
December of that year. In the words of these decisions, "the indemnity ....
is to be paid by the Kingdom of Yugoslavia .... to the Agrarian Fund which
will pay this indemnity" to the interested parties ; the latter are informed
that they "may .... submit their application to the Mixed Arbitral Tribunal"
within a certain limit of time after receipt of the notification. In point
of fact, the applications had been lodged before the decisions in question
had been notified.
[42] These proceedings culminated in judgments rendered by the Mixed
Arbitral Tribunal on April 21st, 1933 ; by these judgments the Tribunal -
save with regard to a piece of land belonging to one of the petitioners in
respect of which an agrarian reform measure was applied for the first time
under the definitive law - declared the applications out of time and
dismissed the petitioners' claims.
[43] The latter, therefore, on June 15th, October 18th and October 19th,
1933, instituted fresh proceedings before the Mixed Arbitral Tribunal, this
time against Yugoslavia as defendant. The three applications, while stating
that the actions were the outcome of the measures of expropriation for the
purposes of agrarian reform which had been applied to the estates in
question, invoked Article 250 of the Treaty of Trianon in asking for
judgment against Yugoslavia for an indemnity in respect of these estates
payable to the petitioners. In two of the [p49] applications it is stated
that in the intention of the petitioners the indemnity sought is the
so-called "local indemnity" which Yugoslavia pays to her own nationals
owning large estates expropriated under the agrarian reform; thus the
petitioner Pajzs asks for "the indemnities for expropriation under the
agrarian reform .... at the same rate and in the same way" as if he were a
Yugoslav subject. The petitioner Esterházy, while stating that "his case
does not fall under the Paris Agreements", asks for an indemnity the amount
of which he calculates on the basis of Article 10 of Agreement III. The
three petitioners invoke the dismissal of their previous applications by the
Mixed Arbitral Tribunal; one of them also states that, since then, he had
applied direct to the Yugoslav Government for an indemnity, but that his
claim had remained unanswered.
[44] To these applications the Yugoslav Government lodged a preliminary
objection praying the Tribunal to adjudge that the applications could not be
entertained, that they were out of time and that the Mixed Arbitral Tribunal
had no jurisdiction.
[45] On July 22nd, 1935, the Mixed Arbitral Tribunal delivered judgment in
these three cases. These judgments, which in form adjudicate only upon the
first Yugoslav objection, are the judgments now complained of before the
Court.
[46] In these judgments the Tribunal declared that the applications could
not be entertained "because they are based on Article 250 of the Treaty of
Trianon" ; it added that, "having established that they cannot be
entertained, there is no need to adjudicate upon the other preliminary
objections lodged by the defendant State".
[47] The grounds on which all three of these decisions were based may be
summarized as follows :
According to the Mixed Arbitral Tribunal: (a) the subject of the
petitioner's complaint is the refusal of an indemnity after an expropriation
effected in application of the legislation relating to the agrarian reform;
accordingly the case is one "in regard to the agrarian reform" within the
meaning of Article I of Agreement II; (b) in that Article it is provided
that in all the cases enumerated therein Yugoslavia is relieved of all
responsibility; (c) it is provided in Article VII of Agreement II that "in
the legal proceedings referred to in Article I, the Mixed Arbitral Tribunals
shall not be competent .... to interpret Article 250 of the Treaty of
Trianon" ; (d) "the arrangement set forth in Agreement II" is effective only
if it covers all cases which have been or may be brought by Hungarian
nationals against Yugoslavia in regard to the agrarian reform ; Article I of
Agreement II covers them all - whether pending or future - and none of these
cases may henceforth be based on Article 250 of the Treaty of Trianon. [p50]
[48] The judgments were notified to the parties concerned in September 1935.
According to a statement made in Court by the Agent for the Yugoslav
Government, that Government received from the Hungarian Government on
November 12th, 1935, a note asking it "purely and simply to renounce the
advantages which it derived from the judgments of the Mixed Arbitral
Tribunal and to resume the direct payments of the local annuities to the
Hungarian nationals. If this were not agreed to, the Hungarian Government
stated that it would be obliged to bring the matter before the Permanent
Court of International Justice by lodging an appeal and by making
application for the interpretation of the Paris Agreements."
[49] According to the same source, "the Yugoslav Government replied to this
note on December 3rd, 1935. It denied the Hungarian Government's right to
lodge an appeal and pointed out that .... it was not entitled to apply to
the Court for a general interpretation", since, in the Yugoslav Government's
contention, one of the essential conditions upon which the exercise of the
latter right was dependent had not been fulfilled in this case.
[50] On December 6th, 1935, the Application of the Hungarian Government
instituting the present proceedings was filed in the Registry of the Court.
*
[51] These are the circumstances in which, pursuant to the Order made on May
23rd, 1936, the Court is now called upon to adjudicate upon the Application
filed by the Hungarian Government and upon the objection lodged by the
Yugoslav Government.
***
[52] The first point to be considered is whether the Court can entertain the
appeal of the Hungarian Government from the three judgments rendered by the
Mixed Arbitral Tribunal on July 22nd, 1935 ; this appeal forms the subject
of the main submission of the Application before the Court and of the
objection lodged by the Yugoslav Government.
[53] According to Article X of Agreement II of Paris,
"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 henceforth by the
Mixed Arbitral Tribunals in all proceedings other than those referred to in
Article I of the present Agreement. [p51]
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."
[54] As may be seen, the existence of a right of appeal from a judgment of
the Mixed Arbitral Tribunals is dependent on the following conditions : (1)
the judgment must have been rendered subsequently to the Agreements - in
this respect, no question arises in the present case; (2) the judgment must
be on a question of jurisdiction or merits ; and (3) the judgment must have
been rendered in a case other than those referred to in Article I of
Agreement II.
[55] There is no reference to the form in which proceedings must have been
instituted before the Mixed Arbitral Tribunal in order to give a right of
appeal.
[56] In the three suits in which the judgments appealed from were rendered,
the petitioners, as has been explained above, adduced in support of their
applications various arguments derived from sources other than the Paris
Agreements and of which the purpose was to obtain a decision that the
provisions of these Agreements were not applicable to them. The three
judgments in question, however, notwithstanding the finding to the effect
that the applications cannot be entertained, are all three based on the view
that the above arguments are not well-founded and that, on the contrary, the
Paris Agreements are applicable, i.e. they are in reality based on questions
of substance raised by the applications.
[57] Accordingly, there is no need in this case to decide whether a
distinction must be drawn before the Court between the inadmissibility of a
claim and lack of jurisdiction on the part of the international tribunal
called upon to adjudicate thereon ; it will suffice to observe that in the
three suits in question the Mixed Arbitral Tribunal, in adjudging that the
claims could not be entertained, passed upon their merits.
[58] The only question remaining is whether the three suits in which these
judgments were rendered were or were not proceedings referred to in Article
I of Agreement II of Paris, as laid down in Article X.
[59] The Court must examine these suits, not only from the point of view of
the form of the applications submitted to the Hungaro-Yugoslav Mixed
Arbitral Tribunal, but also and more especially from the point of view of
the substance of the applications.
[60] First of all, the provisions of Article I of Agreement II must be
recalled, since these are the only provisions specified [p52] in Article X
as defining the proceedings in regard to which there is no right of appeal.
[61] Article I begins with the following general provision :
"As from the date on which the present Agreement comes into force, the
responsibility of the defendant in all legal proceedings brought prior to
January 20th, 1930, by Hungarian nationals before the Mixed Arbitral
Tribunals, against Czechoslovakia, Yugoslavia and Roumania, in regard to the
agrarian reforms, shall be solely incumbent upon a fund to be called the
'Agrarian Fund'."
[62] This first clause is general in scope and provides that henceforth the
Agrarian Fund, instead of the three States of Roumania, Czechoslovakia and
Yugoslavia, will assume responsibility in all proceedings brought prior to
January 20th, 1930, by Hungarian nationals before the Mixed Arbitral
Tribunals against Roumania, Czechoslovakia and Yugoslavia in regard to the
agrarian reforms.
[63] As regards their dates, it will suffice to note that the three
judgments under appeal were rendered in respect of applications filed after
January 20th, 1930, viz. : on June 15th, 1933 (the Esterhazy case, No. 747),
on October 18th, 1933 (the Pajzs case, No. 749), and on October 19th, 1933
(the Csaky case, No. 750).
[64] Following the general clause referred to above, Article I contains a
paragraph 1. This paragraph relates solely to Roumania and is of no
immediate relevance in the present case which concerns Yugoslavia.
[65] The same applies to paragraph 3 which only concerns Czechoslovakia.
[66] On the other hand, paragraph 2 is devoted to Yugoslavia ; the first
sub-paragraph runs as follows :
"2. The same rule shall apply to any legal proceedings which Hungarian
nationals may later institute before the Mixed Arbitral Tribunals, in regard
to the agrarian reform, against Yugoslavia, in which country the agrarian
reform has not yet formed the subject of a definitive law, on account of
properties which, by virtue of the laws and decrees in force, are already
subject to the agrarian reform and in regard to which the owner's right of
free disposal has been limited prior to January 20th, 1930, by the effective
application to his property of the provisions of those laws and decrees."
[67] Paragraph 2 also contains two further sub-paragraphs which provide as
follows :
"It is understood that any proceedings which may be instituted in respect of
properties referred to in the first paragraph and paragraph 2 of the present
Article, as a result of the [p53] application of the new Yugoslav law
finally settling the manner in which the said properties are to be dealt
with, can only be instituted against the Agrarian Fund, Yugoslavia being
relieved of all responsibility.
In this connection, it has been agreed that Yugoslavia shall promulgate the
definitive law before July 20th, 1931, and shall take the necessary action
to ensure that the new legislative provisions are applied to the properties
referred to above as rapidly as possible and in any case before December
31st, 1933."
[68] As will be seen, and the point is one of importance, the only clause in
Article I which describes the characteristics of the proceedings in question
is the first sub-paragraph of paragraph 2.
[69] It is no less important to note that no reference whatever is made in
this text to the actual indemnity which may be claimed by a petitioner in
his suit.
[70] Sub-paragraph 2 of paragraph 2, while applying the principle of the
responsibility of the Agrarian. Fund laid down by the general clause at the
beginning of the Article, does no more than state against whom the
proceedings described above are to be instituted, when they are instituted
as a result of the application of the new Yugoslav law finally settling the
manner in which the properties in question are to be dealt with.
Sub-paragraph 3 only fixes the time-limits allowed to Yugoslavia in
connection with her new law which was not yet in existence at that date.
[71] The characteristics of the suits so contemplated are therefore limited
to the following : they must be suits brought (a) by Hungarian nationals;
(b) after January 20th, 1930; (c) in regard to the agrarian reform in
Yugoslavia; (d) before the Mixed Arbitral Tribunals; (e) in respect of
properties which are already, by virtue of the laws and decrees in force,
subject to the agrarian reform and in regard to which the owner's right of
free disposal has been limited by the effective application to his property
prior to January 20th, 1930, of the provisions of those laws and decrees.
[72] It is not disputed that the three suits have been brought by Hungarian
nationals - that they were brought in June and October 1933, i.e. after
January 20th, 1930, and that they were brought before the Mixed Arbitral
Tribunal.
[73] An examination of the applications submitted to the Mixed Arbitral
Tribunal enables one to ascertain whether they satisfy the two other
conditions prescribed by Article I, paragraph 2, namely whether they were
submitted "in regard to the agrarian reform" and "on account of properties
which .... are already .... subject....", etc.
[74] In application No. 747 (Esterházy case), the petitioner states that an
area of 7,854 cadastral jugars 1407 square toises of [p54] his land was
expropriated as early as 1919 and 1922, according to the evidence attached
to the application, and that, having only received compensation in respect
of 348 cadastral jugars 1102 square toises, he was still entitled to an
indemnity in respect of 7,506 cadastral jugars 305 square toises; he added
that, according to Article 10 of Agreement III of Paris, the value of a
jugar was 387 gold crowns. The petitioner then prayed the Mixed Arbitral
Tribunal to order the Yugoslav State "to pay him, within fifteen days, an
indemnity in respect of 7,506 jugars 305 square toises at the rate of 387
gold crowns per jugar, making 2,904,894 gold crowns, besides twenty per cent
of that sum - 580,979 - for subsidiary damage, viz. : a total of 3,485,873
gold crowns, besides all legal expenses".
[75] In application No. 749 (in the Pajzs case), the petitioners, after
describing the measures of expropriation to which their estates were
subjected in 1919 and 1922 in respect of 1,361 cadastral arpents 779 square
toises, submit that the Yugoslav State should indemnify them for the
expropriation under the agrarian reform of the aforesaid 1,361 cadastral
arpents 779 square toises to the same extent and in the same manner as if
the said petitioners were Yugoslav nationals.
[76] Similarly, in application No. 750 (Csáky case), the petitioner
indicates the area of her landed estates which came, in part, under the
agrarian reform and had thereby been subjected to measures of expropriation
as early as 1919 ; she prays the Mixed Arbitral Tribunal to declare that the
Yugoslav State is bound, to grant her the same compensation as would be
accorded to her if she were a Yugoslav national in respect of the
expropriated area of 756 cadastral arpents 556 square toises, yielding a
revenue, computed on the basis of the cadastral area, of 15,104 gold crowns.
[77] The documents produced by the three petitioners in support of their
respective claims were all intended to furnish actual evidence of the
measures of expropriation to which they had been subjected in 1919 under the
agrarian reform.
[78] If these three applications are compared with the text of Article I,
paragraph 2, referred to above, it is seen that these three suits were
undoubtedly instituted in regard to the agrarian reform and on account of
properties which, on January 20th, 1930, had already fallen under the
agrarian reform and had, for that reason, been subjected to the measures of
expropriation specified in Article I of Agreement II of Paris. Nevertheless,
the Hungarian Government maintains that the three suits had not thereby
become legal proceedings within the meaning of Article I of Agreement II.
[79] It has been shown that the three suits in question had been instituted
in these peculiar circumstances - is to say, [p55] the petitioners had
already, in accordance with paragraph 2, sub-paragraph 2, of Article I,
lodged their claims for expropriation indemnities against the Agrarian Fund,
- but the claims had been declared out of time because the petitioners had
allowed the period accorded to them by Article XIII of Agreement II to
expire and had therefore failed to act within the required time. The three
petitioners explained that it was for this reason that they re-submitted
their claims, instituting the proceedings on this occasion, not against the
Agrarian Fund, but against the Yugoslav State. They declared, in effect,
that since their claims had been ruled out of time and they had not been
able to obtain compensation from the Agrarian Fund, the Yugoslav State could
not as against them rely on the provisions of the Paris Agreements or
contend that the Agrarian Fund had taken over the liability of the State, as
stipulated in Article 11 of the Yugoslav Agrarian Reform Law of June 19th,
1931 ; that they were, in consequence, being subjected to treatment
inconsistent with Article 250 of the Treaty of Trianon, and that in virtue
of the aforesaid Article 250 they were entitled to claim from the Yugoslav
State, according to the first petitioner (Esterházy case, No. 747), payment
of the value of the expropriated land, assessed on the basis of Article 10
of Agreement III, and according to the other two petitioners (Pajzs and
Csáky cases, Nos. 749 and 750), payment of the indemnity granted by the
Yugoslav law to Yugoslav nationals.
[80] Neither the circumstances nor the wording of the three suits under
appeal can alter the fact that they present the different characteristics
specified in Article I, paragraph 2, and set out above.
[81] Neither the fact that the proceedings were instituted against
Yugoslavia, instead of against the Agrarian Fund, nor the fact that the
claims had been previously declared out of time in regard to the Agrarian
Fund, nor again the fact that the petitioners believed that they were
entitled to rely on Article 250 of the Treaty of Trianon, nor the fact that
two of the petitioners claimed Yugoslav national treatment, nor, lastly, the
fact that one of the three petitioners (Esterházy case, No. 747) asked for
an indemnity representing the value of the property computed according to
Article 10 of Agreement III, could exclude or deprive of its effect any one
of the characteristics of the legal proceedings contemplated by the Paris
Agreements, and which are present in the three suits under appeal. These
suits were not thereby removed from the sphere of the aforesaid Agreements
and they could not escape their operation.
[82] As regards the fact that the petitioners have instituted their
proceedings against the Yugoslav State and not - as prescribed [p56] in
sub-paragraph 2 of paragraph 2 of Article I - the Agrarian Fund, it is
difficult to see anything in that circumstance which could affect the actual
character of the suit. It is because a suit presents the characteristics
laid down in Article I, paragraph 2, sub-paragraph 1, that the Agrarian Fund
becomes liable in place of the Yugoslav State ; it is not the fact that a
suit has been instituted against the Agrarian Fund, or against the Yugoslav
State, that determines whether or not it acquires the characteristics set
forth in paragraph 2 of Article I. How can it be argued that the Paris
Agreement intended to leave it open to the petitioners to determine the
nature of their suit at their own will and to settle for themselves by their
selection of the defendant, who it was who was to be held liable for the
expropriation indemnity ? Again, there is nothing in the text of any article
of the Paris Agreements which would justify the view that, when the rule as
to time-limits penalizes the belated submission of a claim by an
expropriated Hungarian owner, it would have the singular result of making
the Yugoslav State responsible for this belated submission of the claim by
debarring it from employing the method of settlement provided by the Paris
Agreements.
[83] Again, as regards the amount and the method of computing the
indemnities claimed by the petitioners in the three suits, it has been shown
that the three cases differ from one another; for while one of the
petitioners claims the actual value of his property computed according to
the method laid down in Article 10 of Agreement HI, the other petitioners
reckon the compensation due to them according to the scale of indemnities
laid down by the Yugoslav laws for Yugoslav nationals. But neither the
amount of the indemnity claimed, nor the method of computing it, nor again
the basis on which it is alleged that the indemnity should be computed, can
modify the character of the claims and, thereby, the character of the three
suits, seeing that - as has been shown - their character is precisely that
which is described in Article I, paragraph 2, sub-paragraph 1.
[84] The chief argument used in favour of the Hungarian case is drawn from
the fact that two of the petitioners have claimed the right to be treated on
a footing of equality with Yugoslav nationals; this, they say, entitles them
to hold the Yugoslav State liable to pay them the expropriation indemnities
granted to Yugoslav nationals by their national laws.
[85] The Hungarian Government's argument is really that the Paris Agreements
related solely to the legal proceedings that were pending at that time, or
to future legal proceedings, such proceedings being in either case intended
to secure the exemption of the Hungarian nationals from the operation of the
agrarian reform itself, and that the Agreements did not [p57] render the
Yugoslav national régime any less applicable than before to the Hungarian
nationals. According to the construction placed on the Agreements by the
Hungarian Government, the legal proceedings referred to in Article I were
exclusively proceedings directed against the agrarian reform, and aiming at
the complete restitution of the property or, failing restitution, payment of
the actual value of the property; and the words "in regard to the agrarian
reform" have to be understood solely in that sense.
[86] At the time of the conclusion of the Agreements - the argument
continues - there were no suits in regard to the agrarian reform in
existence other than those directed against that reform. Therefore - in the
Hungarian Government's view - the Paris Agreements are only applicable to
suits that were then in existence or to future suits of like character ; to
contend that they were generally applicable to other kinds of claims for
expropriation indemnities in regard to agrarian reform would be to overstep
the limits of the Agreements. Hence, in the case of Hungarian nationals who
do not wish to avail themselves of the Paris Agreements, and who are content
to claim only Yugoslav national treatment, the Paris Agreements do not apply
at all; the position of such nationals remains unaffected by those
Agreements.
[87] The Hungarian Government points out, in this connection, that the
Preamble of Agreement II refers, in the first place, to legal proceedings
which were pending in 1930 and which were then giving rise to the grave
difficulties referred to above between Hungary, on the one hand, and
Roumania, Czechoslovakia and Yugoslavia on the other hand. No other question
was in issue at the time. When Article VII of Agreement II lays down that
the Mixed Arbitral Tribunals are not to adjudicate upon the differences of
principle, set forth in the Preamble of the said Agreement, nor on the
interpretation of Article 250, it refers, and could only refer to the suits
mentioned in the Preamble, and these were precisely the suits which disputed
the application of the agrarian reform itself to Hungarian nationals.
[88] Moreover, the argument continues, when the Paris Agreements constituted
the Agrarian Fund, and computed the sums that it would require to meet the
charges for which it was to be made liable, they were only concerned with
landed property, that form of property being the subject of the proceedings
then pending and of those of like character which should be instituted
later. The basis for this calculation, it is said, was supplied by the
Hungarian Government in a Memorandum annexed to Agreement III, and that
document, it is pointed out, is only [p58] concerned with the lands that
were the subject of the proceedings then pending. That again, in the
Hungarian Government's submission, is a proof that the legal proceedings
referred to in Article I of Agreement II were only suits that fell within
those limits.
[89] Such an interpretation, involving the restriction of the scope of the
Paris Agreements, can scarcely be reconciled with the comprehensiveness of
the text of Article I, paragraph 2, sub-paragraph 1, of Agreement II. Over
and above the particular criteria already mentioned, no restriction figures
in this text; in particular the text contains no restriction, mention or
allusion as to the view with which or the form in which a claim for an
expropriation indemnity has to be presented.
[90] Even admitting that, at the time of the conclusion of the Agreements,
there were in existence no proceedings instituted by Hungarian nationals
other than suits in which the said nationals claimed exemption from every
measure of agrarian reform and the complete restitution of their estates,
this does not justify the inference that the Agreements are not designed to
prevent and do not prevent the possibility of new suits being instituted in
the future, in regard to agrarian reform, and of such suits giving rise to
new difficulties, as in the example furnished by the present case. So far
from overstepping the boundaries of the Agreements one would appear to be
keeping within them by rejecting an argument which would impose by a mere
presumption so serious a restriction on their effectiveness ensuing from the
scrupulous and precise application of Article I of Agreement II.
[91] Nowhere was it laid down that the future legal proceedings contemplated
by the Agreements were exclusively proceedings instituted—like those that
were pending in 1930 - with a view to contesting the application of the
agrarian reform and to obtaining either the restitution or the full value of
the expropriated properties. Nowhere was it laid down that future legal
proceedings which were not directed to those objects were to be regarded as
extraneous to the Agreements and excluded from their operation.
[92] On the contrary, where the States concerned desired that certain suits
should be kept outside the Agreements, they did not fail to specify this in
express terms, as is apparent from the letters exchanged on April 26th,
1930, between the President of the Conference and the first delegates of the
States of the Little Entente on the eve of the signature of the Agreements,
and of which copies were supplied to the first delegate of Hungary.
[93] It is true that the Hungarian Government's Memorandum concerning the
extent of the lands affected by the agrarian reform in Yugoslavia, which is
appended to Agreement III of Paris, had been submitted when the Agreements
were being [p59] negotiated at The Hague as a basis for computing the sums
that would be payable by Yugoslavia ; but other circumstances supervened
later on ; restitutions of land had to be envisaged and carried into effect;
calculations of a somewhat retrospective and hypothetical character were put
in by the respective parties on this subject; there is nothing here which
could be regarded as decisive evidence of the contention now maintained by
the Hungarian Government.
[94] The Hungarian Government is equally unsuccessful in the argument which
it seeks to derive from Article VII of Agreement II. That Article lays down
that, in the legal proceedings referred to in Article I, the Mixed Arbitral
Tribunals shall not be competent to pronounce on the differences of
principle set forth in the Preamble of the aforesaid Agreement II, or in
particular to interpret Article 250 of the Treaty of Trianon. - That is
merely evidence that these differences of principle cannot be submitted for
adjudication to the Mixed Arbitral Tribunals, and that Article 250 of the
Treaty of Trianon may not be adduced before those tribunals in the
proceedings referred to in Article I. Henceforth the Agreements can only be
construed in these suits as a prohibition of future claims in regard to
agrarian reform based on Article 250.
[95] If the Hungarian argument were sound, not only would the Yugoslav State
be bound by the Paris Agreements to make the payments specified in the
Agreements to the Agrarian Fund, but if, for any reason, which might be due
to a mistake or lack of diligence on the part of the Hungarian national
himself, the Agrarian Fund was relieved of liability, the Yugoslav State
would none the less have agreed that in any case it would remain responsible
and liable for the payment of at least the local indemnity. That is a result
which Yugoslavia contests, and which Hungary affirms.
[96] If the scope of the Paris Agreements is restricted in the manner
contended by the Hungarian Government, the Agreements would scarcely appear
to give effect to the principle of lump-sum payments which they were
intended to establish.
[97] When we read in Article 2 of Agreement III that the payments to be made
by Yugoslavia to the Agrarian Fund are on account of local indemnities ; and
when we read in Article 10, paragraph 2, of the same Agreement III that the
annuities paid by Yugoslavia represent "a lump-sum settlement of the total
indemnities which may be allotted by the Yugoslav law" then in preparation
"for the expropriated lands of present and future claimants within the terms
of Article I", we are justified in considering these clauses as evidence
that the Agreements provided for the settlement of all the agrarian claims,
those which were already pending at the time of the signature of the
Agreements as well as future claims, subject only to the [p60] condition
that, in accordance with Article I of Agreement II, such claims must be put
forward on account of measures applied to properties already subjected to
the agrarian reform prior to January 20th, 1930, and quite irrespective, it
may be observed, of the amount of the indemnity claimed by the petitioners.
[98] No matter what may have been the actual position in 1930, if the
intentions of the negotiators of the Paris Agreements among whom were
included representatives of the mediating third States - are to be invoked,
it is impossible to disregard the terms of the first paragraph of the
Preamble of Agreement No. IV : "By an Agreement of even date with the
Hungarian Government the questions relating to the agrarian reforms have
been settled." Those words clearly express a conviction on the part of the
signatories of this Agreement which, although Hungary was not a party to it,
was recognized as being "inseparably connected" with the other three, that
they have settled, once and for all, every question concerning agrarian
expropriations in Roumania, Czechoslovakia and Yugoslavia.
[99] If the Paris Agreements were to be interpreted and applied as having
left the door open to fresh claims on the part of the Hungarian nationals
and to new demands for expropriation indemnities not covered by those
Agreements, it might be said that the appeasement which was aimed at by the
Paris Agreements in regard to the difficulties raised by the agrarian
reforms would not really have been attained.
[100] The Court finds that, in view of the express terms of Article I of
Agreement II, the three judgments under appeal were not delivered in
proceedings other than those referred to in that Article. The Court
therefore finds that, in accordance with the provisions of Article X of
Agreement II, the appeal lodged against these three judgments cannot be
entertained.
***
[101] The Hungarian Government prays the Court, in an alternative submission
in case the appeal under Article X of Agreement II should not be admitted by
the Court :
"II. B. To adjudge and declare by means of the interpretation and
application of Agreements II and III, under Article XVII of Agreement II and
Article 22 of Agreement III, that the attitude of Yugoslavia, described
above, is inconsistent with the provisions of Agreements II and III ; this
attitude has been adopted towards all Hungarian nationals, even towards
those who have never had any intention of claiming more than national
treatment and those who had sought to obtain more from the Agrarian Fund
which had been constituted [p61] in the meantime but whose claims against
that Fund had been rejected by the Mixed Arbitral Tribunal, in the same way
as those of the claimants in the three cases referred to above ; the
inconsistency of Yugoslavia's attitude with Agreements II and III of Paris
is all the more remarkable because this policy has been adopted and
maintained in Yugoslavia on the ground that it actually constitutes the
carrying out of the Paris Agreements, which is contrary to the fact. The
Court is asked to ensure that the Agreements are strictly and fairly applied
in regard to this point."
[102] In response to this alternative submission presented by the Hungarian
Government, the Yugoslav Government presents the following preliminary
objection :
"A. 2. To adjudge and declare before entering upon the merits that the
request of the 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."
[103] In this connection, the terms of Article XVII of Agreement II and of
Article 22 of Agreement III should be recalled. Those Articles run as
follows :
"Agreement 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."
[104] These provisions are based on the assumption (a) that there must be a
difference as to the interpretation and application of the Agreement, and
(b) that no agreement has been reached between the Parties interested on the
choice of a single arbitrator.
[105] (a) The proceedings instituted by the Hungarian Government and the
counter-arguments presented by the Yugoslav Government make it difficult to
deny that the present case constitutes a difference of opinion between
Hungary and Yugoslavia as to the interpretation and application of the
Agreements. [p62]
[106] It is clear that this difference of opinion, as stated in the present
judgment in connection with the Hungarian Government's main submission,
concerns, in the first place, the sphere of application of the régime
established by the Paris Agreements which, as contended by the Hungarian
Government in opposition to the view of the Yugoslav Government, is confined
to certain categories of Hungarian nationals affected by the agrarian reform
in Yugoslavia, and, in the second place, the right which according to the
Hungarian Government those nationals possess to have the benefit of the
Yugoslav national régime if they do not benefit by the régime of the Paris
Agreements.
[107] (b) With regard to the absence of prior agreement on the choice of a
single arbitrator - the only argument advanced by the Yugoslav Government's
Agent in support of his preliminary objection - it is easy to perceive that
that refers and can only refer to the non-fulfilment of a condition of fact,
that is to say, it refers to the case in which the Parties interested have
not agreed to substitute simplified arbitral proceedings before a single
arbitrator for proceedings before the Permanent Court of International
Justice.
[108] Any other interpretation of the words in question would involve a
condition the fulfilment of which would be dependent on the will of either
of the interested Parties. Moreover, there is no reason why the clauses in
question should have made it necessary for a party desirous of applying to
the Court, first of all to enter into negotiations on the choice of an
arbitrator, while stating at the same time that, for its part, it would not
consent thereto.
[109] For these various reasons, the Court holds that the preliminary
objection taken by the Yugoslav Government to the Hungarian Government's
alternative submission is ill-founded and that, in principle, there is
nothing in the present proceedings to justify the rejection of this
alternative submission as being inadmissible.
[110] On the other hand, with regard to the substance of the Hungarian
alternative submission and in case the Court should entertain that
submission, the Yugoslav Government presents the following submission :
"B. 5. Adjudicating in virtue of Article XVII of Agreement II and Article 22
of Agreement III of Paris, to declare that the claims of the three Hungarian
nationals are covered by the settlement on a lump-sum basis in the Paris
Agreements, and that the three Hungarian nationals may not institute
proceedings against Yugoslavia, based on Article 250 of the Treaty of
Trianon, but that they must be allowed to lodge their claims, in respect of
the lands expropriated by the Yugoslav agrarian reform, against the Agrarian
Fund." [p63]
[111] In the first place, with regard to the substance of the Hungarian
alternative submission and if that submission is read aright, it is seen
that "the attitude of Yugoslavia" referred to therein is constituted by the
alleged refusal by the Yugoslav Government of the so-called local
indemnities to Hungarian nationals whose estates had been subjected to the
agrarian reform in Yugoslavia and who, for one reason or another, have
received no compensation from the Agrarian Fund.
[112] This attitude, which Yugoslavia believes that the Paris Agreements
entitle her to assume, takes the form of withholding from the aforesaid
Hungarian nationals the so-called local indemnities payable under her
agrarian legislation to other expropriated landowners.
[113] The Hungarian submission states that Yugoslavia has adopted this
attitude in regard to all Hungarian nationals, that is to say, on the one
hand to Hungarian nationals in the same position as the three petitioners in
the suits under appeal and, on the other hand, to other Hungarian nationals
who have never had any intention of claiming more than Yugoslav national
treatment.
[114] As regards Hungarian nationals in the same position as the three
petitioners in the suits under appeal, the Court observes that the reasons
why the appeal against the three judgments rendered by the Mixed Arbitral
Tribunal on July 22nd, 1935, cannot be entertained by the Court, are
furnished by the interpretation and application of the Paris Agreements.
[115] Where the circumstances are the same, the same interpretation and the
same application can but be repeated.
[116] With regard to Hungarian nationals who have never had any intention of
claiming more than national treatment, the Hungarian alternative submission
amounts to a request for judgment to the effect that the Yugoslav régime of
national treatment remains applicable to all Hungarian nationals who have
not been admitted to claim against the Agrarian Fund.
[117] Here again, the Court is really confronted with the same argument as
to the limited scope of the Paris Agreements put forward by the Hungarian
Government on the basis of a particular interpretation and application of
these Agreements. But the Court has been led to discard this Hungarian
argument precisely by means of interpreting and applying the Agreements.
[118] Again, if certain Hungarian nationals, for reasons of which they are
sole judges, have not seen fit to claim in due time against the Agrarian
Fund in accordance with the Paris Agreements, they have only themselves to
blame. [p64]
[119] Subject to the foregoing considerations, it is to be observed that the
fact that the Hungaro-Yugoslav Mixed Arbitral Tribunal has dismissed the
claim of a Hungarian petitioner by applying one provision rather than
another of the Paris Agreements, and the regrettable consequences ensuing
therefrom, are things for which Yugoslavia cannot be held answerable, nor
can the situation created by the Paris Agreements in so far as concerns
Hungarian nationals whose estates in Yugoslavia have been subjected to the
agrarian reform be altered thereby.
[120] In the opinion of the Court, the Paris Agreements were intended to
secure for Hungarian nationals affected by the agrarian reform treatment
different from and in reality better than the Yugoslav national treatment
accorded to other foreign nationals and to Yugoslavs.
[121] Furthermore, it is against the Agrarian Fund that Hungarian nationals
whose estates in Yugoslavia have been affected by the agrarian reform and
who wish to obtain an indemnity of any kind, must bring their claims by
making application to the Mixed Arbitral Tribunal.
[122] As regards the alternative submission presented by the Yugoslav
Government praying the Court to declare that the three Hungarian petitioners
Pajzs, Csáky and Esterházy must be allowed to lodge their claims against the
Agrarian Fund, the following observation should be made. This submission
really relates to the actions which were brought by those three petitioners
in 1931 against the Agrarian Fund and which the Mixed Arbitral Tribunal
dismissed as out of time. Those judgments of the Mixed Arbitral Tribunal are
outside the scope of the proceedings instituted before the Court by the
Hungarian Government.
[123] For this reason, the Court holds that it cannot pass upon those
judgments.
***
[124] To recapitulate : in that part of the present judgment dealing with
the appeal, the Court has given its interpretation of Agreements II and III
of Paris in so far as concerns the claims made by Hungarian nationals in
respect of expropriations under the agrarian reform. Having reached the
conclusion that these Agreements were framed with the object of finally
settling all claims which might result from the agrarian reforms in the
States of the Little Entente, the Court has explained the reasons why it
holds that the Hungarian nationals, having secured under the Agreements the
right to special preferential treatment involving the payment of indemnities
by the Agrarian [p65] Fund, are not free to claim indemnities from
Yugoslavia, since that country is relieved of all responsibility.
***
[125] In their submissions, each Party has asked the Court to order the
other to refund the costs incurred by it in the present proceedings.
[126] The Court sees no reason to deviate in the present case from the
general rule laid down by Article 64 of the Statute that, unless otherwise
decided by the Court, each party shall bear its own costs.
***
[127] In the opinion of the Court, the remaining submissions of the Parties
do not call for examination.
[128] FOR THESE REASONS,
The Court,
by eight votes to six,
(1) decides that the appeal of the Hungarian Government against the three
judgments rendered by the Hungaro-Yugoslav Mixed Arbitral Tribunal on July
22nd, 1935, in cases Nos. 749, 750 and 747 (Pajzs, Csáky and Esterházy
versus the State of Yugoslavia) cannot be entertained ;
(2) dismisses as ill-founded the preliminary objection lodged by the
Yugoslav Government to the effect that the alternative submission of the
Hungarian Government cannot be entertained;
(3) adjudicating upon the alternative submission of the Hungarian
Government, decides that the attitude of Yugoslavia towards the Hungarian
nationals affected by the agrarian reform measures in Yugoslavia has been
consistent with the provisions of the Paris Agreements ;
(4) rejects the alternative submission of the Yugoslav Government praying
the Court to declare that the three Hungarian nationals, Pajzs, Csáky and
Esterházy, must be allowed to present their claims against the Agrarian Fund
;
(5) takes note that the Hungarian Government no longer relies on the
Optional Clause of Article 36 of the Statute of the Court;
(6) decides that there is no reason to deviate from the general rule laid
down in Article 64 of the Statute of the Court to the effect that each party
shall bear its own costs. [p66]
[129] Done in French and English, the French text being authoritative, at
the Peace Palace, The Hague, this sixteenth day of December, nineteen
hundred and thirty-six, in three copies, one of which shall be placed in the
archives of the Court and the others forwarded to the Royal Hungarian
Government and the Royal Yugoslav Government, respectively.
(Signed) Cecil J. B. Hurst,
President.
(Signed) J. Jorstad,
Deputy-Registrar.
[130] Mm. Anzilotti, Nagaoka, Hudson, Hammarskjöld, Judges, and De
Tomcsányi, Judge ad hoc, declare that they are unable to concur in the
judgment given by the Court and, availing themselves of the right conferred
on them by Article 57 of the Statute, have appended to the judgment the
separate opinions which follow.
[131] Jonkheer Van Eysinga, Judge, concurs in the opinion expressed by Mr.
Hudson.
(Initialled) С J. В. Н.
(Initialled) J. J. [p67]
Separate Opinion of M. Anzilotti.
[Translation]
[132] I am unable, much to my regret, to agree with the view set forth in
the Court's judgment. The statement which follows shows the main grounds of
my dissent ; I desire to add, however, that I agree, generally speaking,
with the separate opinion of Judge M. O. Hudson, which appears below.
[133] 1.— The fundamental ground of my dissent relates to the manner in
which the question of the admissibility of the appeal ought to have been
presented and decided.
[134] The appeal had been submitted under Article X of the Agreement II of
Paris, dated April 28th, 1930 ; its admissibility, therefore, depended upon
the fulfilment of the conditions prescribed by that Article.
[135] Two of those conditions, namely that the right of appeal must be
exercised within a period of three months, reckoned from the notification of
the judgment of the Mixed Arbitral Tribunal, and that the judgments impugned
must be judgments upon the jurisdiction or the merits, may here be left on
one side; it suffices to say that, for the reasons stated in the separate
opinion referred to above, I hold that they were fulfilled.
[136] A question of chief importance — the only question, indeed, which the
Court took under consideration — was whether the three judgments of the
Hungaro-Yugoslav Mixed Arbitral Tribunal, against which the Hungarian
Government appealed, were delivered in legal "proceedings other than those
referred to in Article I" of the Agreement. The path to be followed n order
to answer this question is quite evident: one has first to determine what
are the essential features which characterize the category of "proceedings
.... referred to in Article I", and then to ascertain whether these features
are present in the three suits in question.
[137] The essential features of the proceedings referred to in Article I of
Agreement II emerge with perfect clearness from the provisions of that
Agreement ; it need hardly be said that all the provisions which bear upon
these proceedings must be taken into consideration. I think that they may be
summarized as follows:
(a) As regards the Parties, the proceedings must lie between the Hungarian
nationals and the Agrarian Fund (Arts. I, II and III, etc.). This Fund does
not appear in the proceedings as representing Roumania, Czechoslovakia or
Yugoslavia, but in [p68] its own name and on its own behalf : for it is upon
the Fund that "the responsibility of the defendant" is solely incumbent
(Art. I, para. 1, Art. II, Art. III), while Roumania, Czechoslovakia and
Yugoslavia are "relieved of all responsibility" (Art. I).
(b) As regards the grounds for the claim, the causa petendi, they must be
expropriations carried out in application of the agrarian reform, in so far
as rights are thereby conferred upon the Hungarian nationals in virtue of
Agreement II. For the Mixed Arbitral Tribunal must deliver and frame its
judgments "solely upon the basis of the present Agreement" (last part of
Art. VII) ; hence, the provisions of Agreement II can alone be invoked in
support of the claim.
(c) Lastly, as regards the object of the claim, the res petita, the
proceedings in question must be suits in which nothing else is claimed than
the indemnity referred to in Agreement II, which consists in a share in the
apportionment of the assets of the Agrarian Fund (Art. VIII, paras. 1 and 2,
Art. VI).
[138] It may be added that the proceedings in question are suits in which a
summary procedure, partly judicial and partly administrative, is employed
(Arts. IV and VIII, second para.), and in which the powers of the Mixed
Arbitral Tribunal are confined to verifying the fulfilment of the conditions
laid down in paragraph 1 of Article VIII, to the exclusion of decisions on
questions of principle: it is manifestly in view of these characteristics of
the procedure that Article X excludes the right of appeal in the case of
judgments delivered in such suits.
[139] If we now examine the applications of the Hungarian nationals in the
suits which culminated in the judgments under appeal, we note the following
points:
(a) That the proceedings were instituted against Yugoslavia and not against
the Agrarian Fund; there is, therefore, a dissimilarity in regard to the
parties.
(b) That the applications were based on Article 250 of the Treaty of
Trianon, and not upon Agreement II ; there is, therefore, a dissimilarity in
regard to the ground for the claim (causa petendi).
(c) That the object of the claims was the indemnity prescribed by the
national legislation, or at any rate — possibly, in the Esterházy
application — an indemnity other than that laid down in Agreement II; there
is, therefore, a dissimilarity in regard to the object of the claim.
[140] It can also be said with certainty that the procedure observed was not
that laid down for agrarian suits, and that the Mixed Arbitral Tribunal did
not direct its examination to the points indicated in the first paragraph of
Article VIII of that Agreement, but to questions of an entirely different
nature and scope. [p69]
[141] I therefore feel quite justified in concluding that the suits in which
the judgments under appeal were delivered were not the proceedings referred
to in Article I of Agreement II, and that the appeal was therefore
admissible.
[142] 2. — The appeal having been found to be admissible, the Court should
have proceeded to examine the Hungarian Government's grounds of complaint
against the impugned judgments.
[143] It was from that standpoint, and not from the standpoint of the
admissibility of the appeal, that the Court should have examined the
question whether the Paris Agreements, and, in particular, Article I of
Agreement II, excluded the possibility of proceedings other than the
proceedings referred to in that Article being instituted in regard to the
agrarian reforms.
[144] If it is certain — as in my opinion it is — that the suits in which
the judgments under appeal were delivered, were proceedings other than those
referred to in Article I of Agreement II, it is none the less certain that
they were proceedings in regard to the agrarian reform.
[145] The Mixed Arbitral Tribunal held that agrarian suits based on Article
250 of the Treaty of Trianon could no longer be instituted after the Paris
Agreements. The Hungarian Government's complaint against the judgments of
that Tribunal was that they failed to appreciate the fact that the three
actions brought by the Hungarian nationals against Yugoslavia, though
brought in regard to the agrarian reform, did not fall within the scope of
the Paris Agreements.
[146] In my view, the Paris Agreements, judging by their terms, their origin
and their purpose, do not contemplate all cases in regard to the agrarian
reforms but only certain of these cases, namely:
(a) Actions which had been brought before January 20th, 1930, and in which
Hungarian nationals, denying the consistency of the agrarian reforms with
Article 250 of the Treaty of Trianon, claimed the restitution of their lands
or, alternatively, full compensation.
(b) Future actions, whereby the Agreements, in order to avoid the
reappearance of difficulties such as that which had just been settled,
afforded Hungarian nationals, who had not yet instituted proceedings, the
possibility of obtaining — subject to conditions and time limitations which
were strictly defined — advantages corresponding to those granted to
petitioners of the first category.
[147] These future actions are regarded as purely hypothetical: ".... legal
proceedings which Hungarian nationals may later institute...."; this is the
wording consistently used in Article I of Agreement II to indicate this
category of cases. It is difficult to avoid the conclusion that this wording
would be curiously [p70] ill chosen if it were intended to mean that
proceedings of this kind would henceforth be the only method open to
Hungarian nationals for obtaining any compensation whatever in respect of
lands of theirs expropriated in connection with the agrarian reform.
[148] No other proceedings in regard to the agrarian reforms are
contemplated by the Paris Agreements.
[149] 3. — Supposing that the actions contemplated by Article I of Agreement
II were the only actions in regard to the agrarian reform which could still
be brought under the Paris Agreements, it would obviously follow that these
Agreements, derogating from the ordinary law, imposed on all Hungarian
nationals whose estates had been subjected to the agrarian reform in
Yugoslavia and who desired to obtain any compensation at all, an obligation
to bring proceedings with this object against the Agrarian Fund.
[150] In my opinion, there is no justification for this view. It is certain
that nowhere in the Paris Agreements is to be found any express provision
laying down that it is incumbent on Hungarian nationals to bring proceedings
against the Agrarian Fund in order to obtain compensation. As stated above,
the wording used in Article I of Agreement II rather suggests the contrary.
Yet it would have been easy to formulate this obligation and it would have
been very natural to do so, since the Agreements laid down a very rigorous
system of time limitations, which were very brief, and failure to observe
which must involve loss of any compensation.
[151] Not only do the Paris Agreements contain no express provision making
it an obligation for Hungarian nationals to have recourse to the Agrarian
Fund, but furthermore they contain no provision from which it is possible
implicitly to deduce an intention on the part of the contracting parties to
impose such an obligation. The only argument which the Yugoslav Government
had been able to adduce in this connection is the lump-sum character of the
payments which Yugoslavia has to make to the Agrarian Fund, which payments,
it is contended, release her from any obligation towards the Hungarian
nationals expropriated in connection with the agrarian reform.
[152] This argument is not sound. It is clear that all depends on the
purpose which the lump-sum payments were intended to serve. But the relevant
provisions, namely, paragraph 2 and the last paragraph of Article 10 of
Agreement III, expressly say that the sum which Yugoslavia pays in full
discharge of her obligations to the Agrarian Fund, represent a lump-sum
settlement in respect of the local indemnities for lands forming the subject
of proceedings under Article I of Agreement II. To deduce from this that
Hungarian nationals are obliged to bring such proceedings is clearly a
petitio principii. [p71]
[153] In my opinion, therefore, it is impossible to prove and it has not
been proved that the Paris Agreements oblige all Hungarian nationals, whose
estates have been affected by the agrarian reform in Yugoslavia and who wish
to obtain any compensation, to bring proceedings against the Agrarian Fund
for the purpose.
[154] It follows that if these Hungarian nationals do not wish to or cannot
avail themselves of the advantages afforded them under the special law
created by the Paris Agreements, the ordinary law continues to apply to them
and they must be treated in this matter on the same footing as nationals.
[155] For these reasons and for others which are stated in Mr. Hudson's
separate opinion, my conclusion is that, to this extent, the complaints of
the Hungarian Government were justified.
[156] There is no need for me to consider whether the consequences which
that Government sought to deduce therefrom, were likewise all justified.
(Signed) D. Anzilotti. [p72]
Separate Opinion of M. Nagaoka.
[Translation]
[157] Much to my regret I am unable to concur in the judgment of the Court.
In his separate opinion, Judge M. 0. Hudson has amply explained his
standpoint with which I am in complete agreement, and I have but little to
add to it. I desire simply to indicate my views in regard to the following
points.
[158] 1. According to the applications of the three Hungarian nationals, the
so-called suits "of the second series" were brought against Yugoslavia with
a view to obtaining from that country the local (national) indemnity in
respect of estates expropriated under the agrarian law. There is therefore
no doubt that these suits were brought in regard to the agrarian reforms in
consequence of the application of the new Yugoslav law. But the question
arising is whether legal proceedings which are instituted in regard to the
agrarian reforms must necessarily, in all cases, fall within the category of
the proceedings referred to in Article I of Agreement II. In other words,
the question is whether the authors of the Paris Agreements intended that
the words "all legal proceedings" should be understood as meaning all kinds
of legal proceedings, of what¬ ever description, instituted in regard to the
agrarian reforms.
[159] This question, which is the very essence of the problem, cannot be
answered in definite and precise terms unless the spirit of the Paris
Agreements be first considered. It is, therefore, essential to start from
the actual events which induced the Powers to conclude the Agreements, for
in no other way is it possible to apprehend the true import of Article I of
Agreement II.
[160] The situation existing before the Conferences at The Hague and at
Paris has been well described by M. Loucheur, the President of the Paris
Conference, in the following terms : "The Roumanian Government contended -
and this was also the standpoint of the Governments of Prague and Belgrade -
that Article 250 was designed to protect the Hungarian nationals against
measures applied to them qua Hungarian nationals, but was not applicable in
the case of agrarian reforms which affected all landowners alike,
irrespective of their nationality. The Hungarians replied that Article 250
was to be construed literally, and that its provisions gave the Hungarian
nationals absolute protection against any measures of seizure or
liquidation." In other words, the Hungarian nationals, relying on Article
250 of the Treaty of Trianon, claimed the restitution [p46] of their lands
which had come under the agrarian reform, or, the payment of indemnities
representing the full value of those lands, whereas the three States of the
Little Entente were only disposed to pay the indemnities on the national
scale.
[161] The Agent of the Yugoslav Government confirmed that version of the
facts in his Rejoinder (p. 1) where he said: "The chief aim of the Reply
seems to be to show : (a) that the proceedings instituted by the Hungarian
nationals before the Mixed Arbitral Tribunals, prior to January 20th, 1930,
were designed to obtain full compensation ; (b) that the Little Entente
States have consistently declared that their agrarian legislation was based
on the principle of absolute equality of treatment as between their own
nationals and the Hungarian nationals. These two facts have never been
disputed by Yugoslavia."
[162] It is thus evident that there would have been no dispute between the
Little Entente States and Hungary if the Hungarian nationals had been
content, from the outset, to accept the local indemnities.
[163] What was the nature of the arrangement by which it was found possible
to reach an agreement with a view to putting an end to this dispute ? The
Paris Agreements furnish a clear answer to that question:
(a) On the one hand, the States of the Little Entente were only required to
make payments in respect of the local indemnities. On the other hand, it was
decided, in order to meet the demands of the Hungarian nationals, that, in
addition to the above-mentioned payments, the annuities laid down in Article
2 of Agreement III should be contributed by Powers other than the three
States referred to above.
(b) All these sums were to be paid into the Agrarian Fund, which was created
by Agreement II of Paris.
(c) The Agrarian Fund was not required to make any payment until it had
received notification of the whole of the judgments (Art. IV of Agreement
II); as soon as the Managing Commission, which represents the Fund in virtue
of Article 4 of Agreement III, had received notification of the whole of the
judgments delivered in the proceedings referred to in Article I of Agreement
II, and in any case before December 31st, 1932, it had to make a
proportional distribution of the Fund, between the persons entitled to the
benefit of the judgments, as laid down in Article VI of Agreement II.
[164] 4. Two conclusions emerge from the foregoing: (1) the suits referred
to in Article I of Agreement II must be suits instituted with the object of
obtaining indemnities from the Agrarian Fund, that is to say, indemnities on
a higher scale than the [p74] local indemnities; (2) the Agrarian Fund was
created solely in order to pay these indemnities, on a higher scale than the
local indemnities.
[165] 5. These two conclusions, or premises, show clearly the true import of
paragraph 1 of Article I of Agreement II, which states that "the
responsibility of the defendant in all legal proceedings brought prior to
January 20th, 1930, by Hungarian nationals before the Mixed Arbitral
Tribunals against .... Yugoslavia .... in regard to the agrarian reforms
shall be solely incumbent upon .... the Agrarian Fund". There can be no
doubt that what is meant here is "all legal proceedings" in which "full"
indemnities are claimed. The same applies to the legal proceedings referred
to in (2) of the same Article, because it is laid down therein that the
defendant in these suits must, in all cases, be the Agrarian Fund, which is
created solely for the payment of full indemnities.
[166] Hence, the legal proceedings referred to in Article I of Agreement II
only include proceedings instituted in order to obtain indemnities larger
than the local indemnities from the Agrarian Fund. It follows that the
so-called suits "of the second series" do not fall within the category of
proceedings referred to in Article I of Agreement II, notwithstanding the
fact that they were instituted before the Mixed Arbitral Tribunal in regard
to the Yugoslav agrarian reform.
[167] As it has thus been shown that the Court possesses jurisdiction as an
appeal tribunal in respect of the present' application, I shall refrain from
entering upon an examination of the questions raised by the Parties as
alternative submissions. I shall also refrain, in view of the Court's
judgment, from examining the judgments forming the subject of the appeal,
although my opinion is that they are not well-founded and ought to be
revised.
[168] In conclusion, I would once more emphasize the fact that neither the
Conference at The Hague nor the Paris Conference did more than settle the
questions which had for years been disturbing Central Europe. The question
of the claim to local indemnities did not arise at those Conferences, and
there was no reason why they should have examined it, since it was precisely
the States of the Little Entente which maintained the principle of
non-discriminatory national treatment and the payment of local indemnities.
If, as has already been observed, the Hungarian nationals had accepted that
standpoint, there would have been no necessity whatever to seek a solution
of the agrarian reform problems.
[169] Between the suits instituted for full indemnities, and those in which
local indemnities are claimed, there is no relationship [p75] whatsoever.
The Paris Agreements in no way modify the position of the Hungarian
nationals, in regard to their right to claim local indemnities. The lump-sum
payment made by Yugoslavia to the Agrarian Fund, under Article 10 of
Agreement III, cannot relieve that State of her liability to the Hungarian
nationals in respect of local indemnities. The lump-sum payment merely
discharges Yugoslavia's obligations to the Agrarian Fund, which has the duty
of distributing its assets among the persons entitled to the benefit of the
judgments delivered in the suits referred to in Article I of Agreement II.
In other words, the annuity paid by Yugoslavia to the Agrarian Fund is
solely intended to cover a part of the full indemnities which the Agrarian
Fund will have to distribute among the beneficiaries. That annuity has,
therefore, no relation whatever to the local indemnities which the Hungarian
nationals are claiming from the Yugoslav State.
[170] The essential point is that the Hungarian nationals should be assured
of national treatment on a footing of equality with the Yugoslav nationals.
The fact that the Paris Agreements confer larger rights than those enjoyed
by Yugoslav nationals cannot in any way prejudice the fundamental rights to
which the Hungarian nationals are entitled.
(Signed) H. Nagaoka. [p76]
Separate Opinion of Mr. Hudson.
I.
[171] This appeal from the judgments given by the Hungarian-Yugoslav Mixed
Arbitral Tribunal in cases Nos. 749, 750 and 747 is brought before the Court
under Article X of Agreement No, II, signed at Paris on April 28th, 1930.
The Agent of the Yugoslav Government has raised a preliminary objection to
the Court's entertaining the appeal. This requires, first of all, an
interpretation of the provisions of Article X. The text consists of French
and English versions which read as follows:
"Article X. — Pour toutes les sentences de compétence ou de fond rendues
désormais par les tribunaux arbitraux mixtes dans tous les procès autres que
ceux visés par 1'article premier du présent Accord, la Roumanie, la
Tchécoslovaquie et la Yougoslavie, d'une part, et la Hongrie, d'autre part,
conviennent de reconnaître à la Cour permanente de Justice internationale,
sans qu'il у ait besoin de compromis spécial, compétence comme instance
d'appel.
Le droit d'appel pourra être exercé par voie de requête par chacun des deux
Gouvernements entre lesquels se trouve constitué le Tribunal arbitral mixte,
dans un délai de trois mois à dater de la notification faite à son agent de
la sentence dudit tribunal.»
"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
henceforth 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. "
[172] An interpretation of this text involves, necessarily, some
consideration of all the Paris Agreements, in the course of which the Court
must take account of their history and of both the general and the specific
purposes which they were designed to serve. After negotiations in which
seventeen Governments took part, first at The Hague and later at Paris, four
Agreements and a covering "Preamble" were signed at Paris [p77] on April
28th, 1930, and brought into force on April 9th, 1931. Agreement No. I
effected certain "arrangements between Hungary and the Creditor Powers" with
respect to reparations; Agreement No. II dealt with certain questions
relating to the Agrarian Reforms of Czechoslovakia, Roumania and Yugoslavia,
and with the continued functioning of the Mixed Arbitral Tribunals set up
under the Treaty of Trianon of June 4th, 1920; Agreement No. III dealt with
"the organization and working of an Agrarian Fund entitled 'Fund A' "; and
Agreement No. IV, which was signed by only a limited number of Governments
(not including that of Hungary), dealt with the "constitution of a special
fund entitled 'Fund B' ". In so far as these Agreements dealt with questions
relating to agrarian reform, they were designed to afford escape from the
difficulties which over a period of several years had paralyzed the Mixed
Arbitral Tribunals; these difficulties had been the subject of protracted
consideration by the Council of the League of Nations, and in consequence
they had come to interest a wider group of States than those immediately
concerned.
[173] While an interpretation of these Agreements must be approached with a
disposition to give effect to their general purpose, the fact cannot be
ignored that Agreement No. II, especially, embodied a transaction between
Czechoslovakia, Roumania and Yugoslavia on the one hand and Hungary on the
other hand. The special limits of that transaction must be respected. This
is made the more imperative because of the fact that Agreement No. II
constitutes a departure from Article 250 of the Treaty of Trianon which had
re-established the common international law, and because of the carefully
guarded language employed by the parties. It is commanded, also, by the
provisions of the preamble to Agreement No. II. The three Governments of the
States of the Little Entente entered into the Agreement "in a spirit of
conciliation", expressly reserving "their legal points of view". "On its
side", the Hungarian Government expressed "the same desire for
conciliation", and it maintained, "from the legal point of view", the
"position which it had previously adopted". On both sides, the Governments
expressly refused to surrender the rights derived by their nationals from
the Treaty of Trianon "in respect of any questions the settlement of which
is not envisaged" in Agreement No. II.
[174] Article X of Agreement No. II sets two principal conditions for the
"right of appeal" to this Court, i. e., for this Court's "compétence comme
instance d'appel"; (1) the judgments appealed from must be "judgments on
questions of jurisdiction or merits" (Fr., sentences de compétence ou de
fond); and (2) the judgments appealed from must have been given by a Mixed
[p78] Arbitral Tribunal in "proceedings other than those referred to in
Article I". Are these two conditions fulfilled in this case?
[175] (1) "Jurisdiction or merits" is an expression quite commonly employed
in a global rather than a restrictive sense. In an international instrument
such as Agreement No. II, there is no reason for giving it a technical as
opposed to a general meaning. It was obviously employed in Article X to
embrace rather than to exclude. In the same sense, it was employed by M.
Titulesco in his declaration concerning Article X, made on behalf of the
Czechoslovak, Roumanian and Yugoslav Delegations at the Paris Conference on
April 28th, 1930. Hence it seems quite immaterial that, formally, the
judgments appealed from were merely to the effect that the applications were
not receivable. Even if the distinction drawn by some systems of national
jurisprudence between questions of receivability and questions of
jurisdiction or merits may be said to have been adopted by international
jurisprudence — a point on which it seems unnecessary to express an
opinion—there ought to be no doubt that the general language to be found in
Article X covers the judgments which are the subject of this appeal. The
first condition set by Article X was therefore fulfilled in this case.
[176] (2) Article X excepts from appeal judgments given in proceedings
"referred to in Article I". What was the reason for this exception ? Quite
obviously, it was because the proceedings "referred to in Article I" were
made subject to a special procedure, the purpose of which would in some
measure be defeated if appeal were allowed. Appeal was envisaged only as to
proceedings in which the normal judicial procedure was applicable.
[177] This becomes quite clear on an examination of the nature of the
special procedure prescribed for proceedings "referred to in Article I". It
was to be an administrative rather than a judicial procedure. Article VII
restricts very narrowly the legal field within which the Mixed Arbitral
Tribunals are to function in such proceedings: they are to frame their
judgments "solely upon the basis" of Agreement No. II; they have no
competence "to pronounce upon the differences on questions of principle"
referred to in the preamble to Agreement No. II; and "in particular" they
have no competence "to interpret Article 250 of the Treaty of Trianon" which
had theretofore served as the basis of claims by Hungarian nationals
relating to agrarian reform. Article VIII proceeds to enumerate the precise
questions to which the Mixed Arbitral Tribunals are to address themselves,
providing that they are to "ascertain" two questions of fact: (a) "whether
the claimant is a Hungarian national qualified by virtue of the Treaty of
Trianon", and [p79] (b) "whether his property had been expropriated in
application of the agrarian legislation". Thereafter, the Mixed Arbitral
Tribunals have only to fix the amount of compensation "to be charged against
the Fund", and this they are to do "by a summary procedure" in accordance
with methods "drawn up in advance". Taken together, Articles VII and VIII
clearly indicate an intention to place the "proceedings referred to in
Article I" outside the field of normal judicial action, to remove them from
all contest on questions of principle, and to confine them to the
determination of bare questions of fact. The aim was to expedite all these
proceedings and to get them out of the way. Hence Article X excepted them
from the appeal provided for. It must be concluded that the exception from
the "right of appeal" applies only to those cases to which the special
procedure was made applicable.
[178] In the three cases to which this appeal relates, the special procedure
was not applicable, and neither the applicants nor Yugoslavia nor the Mixed
Arbitral Tribunal sought to apply it. The proceedings having been brought
against Yugoslavia, the Hungarian-Yugoslav Mixed Arbitral Tribunal made no
pretence of applying Article III of Agreement No. II, which provides that
"claims introducing legal proceedings" against Yugoslavia "referred to in
Article I, shall be treated henceforth as having been made against the
Agrarian Fund"; the Agent of Yugoslavia appeared, not under Article XII of
Agreement No. II "for the purpose of furnishing information", but as the
representative of the respondent State. Even if the failure to substitute
the Agrarian Fund for Yugoslavia as the respondent was erroneous, however,
it is to be noted that the applicants sought indemnities, not on the basis
of any provision in Agreement No. II, but on the basis of Article 250 of the
Treaty of Trianon which, if the Tribunal had followed the special procedure,
it would have had no competence to interpret. Moreover, it is significant
that the parties before the Mixed Arbitral Tribunal were permitted to
conduct their written proceedings, not in accordance with the special
Règlement of August 4th, 1931 concerning agrarian cases, which envisaged
only the filing of an application and an answer, but in accordance with the
more general Règlement of August 4th, 1931, which envisaged also the filing
of a reply and a rejoinder.
[179] The conclusion seems to be inescapable that as the special procedure
was not applicable to the cases to which this appeal relates, the
proceedings in these cases did not fall within the exception in Article X.
Hence the judgments appealed from were given in "proceedings other than
those referred to in Article I"; and the appeal should be entertained. [p80]
II.
[180] Entertaining the appeal, the Court should deal with the opposing
submissions of the Parties concerning the judgments given by the
Hungarian-Yugoslav Mixed Arbitral Tribunal in cases Nos. 749, 750 and 747.
The three judgments follow the same general lines; in each of them the Mixed
Arbitral Tribunal based its conclusions on the same reasons as in the
others. Briefly, it was the view of the Tribunal that the proceedings were
"in regard to the agrarian reform" (Fr., à profios de la réforme agraire);
that Article I of Agreement No. II covers all the proceedings brought by
Hungarian nationals against the States of the Little Entente "in regard to
the agrarian reform"; and that since the Paris Agreements came into force no
such proceeding can be based upon Article 250 of the Treaty of Trianon. The
broad question before the Court is whether this is a proper interpretation
of the Paris Agreements. In other words, the question before the Court is
whether within the meaning of the Paris Agreements the expression "legal
proceedings.... in regard to the agrarian reforms" is as inclusive as the
language employed would seem to suggest, or whether on the contrary it has a
more limited purport. If so, the sense in which the expression is used in
the Agreements must result from the Agreements themselves.
[181] Before dealing with this question, it is to be observed that the Paris
Agreements contain no indication of a general purpose to deal with all
possible claims "in regard to the agrarian reform". If this had been the
desire of the negotiators at The Hague and at Paris, apt terms could easily
have been found for effectuating such a purpose. There is a statement in the
preamble of Agreement No. IV that "by an agreement of even date.... the
questions relating to the agrarian reforms have been settled" (in the Hague
draft this was limited to the "questions raised concerning agrarian
reform"); but this is immediately followed by a statement that "nevertheless
there remain outstanding.... important differences concerning the
application", inter alia, of Article 250 of the Treaty of Trianon. The
guarded language in the Agreements, particularly in Agreement No. II, is
consistent only with the idea that the Agreements were to serve a more
limited purpose. An interpretation urged upon the Court by the Agent of
Yugoslavia would compel all Hungarian nationals who desire to receive an
indemnity for the expropriations effected in the course of the agrarian
reform to formulate claims against the Agrarian Fund in proceedings before
the Mixed Arbitral Tribunal. Such a displacement of Article 250 of the
Treaty of Trianon, which as [p81] pointed out above restored the common
international law, would require clear and explicit provisions in the
Agreements, but such provisions are not to be found in the text. Nor can
that obligation of such Hungarian nationals be deduced from the "lump-sum
settlement" referred to in Article 10 of Agreement No. III, for that
settlement is limited to "claimants within the terms of Article I of
Agreement No. II".
[182] Article I of Agreement No. II refers throughout to "proceedings" or
"legal proceedings". In so far as they concern Yugoslavia, the several
paragraphs of Article I relate more particularly to three categories of
proceedings, all of which are considered to be "in regard to the agrarian
reform": (a) proceedings brought prior to 20th January 1930; (b) proceedings
instituted after 20th January 1930 on account of properties which on that
date were already subject to the agrarian reform and as to which on that
date the owner's right of free disposal has been limited; (c) proceedings
instituted after 20th January 1930 in respect of such properties "as a
result of the application of the new Yugoslav law". This description does
not constitute a definition of the proceedings referred to in the Article:
it merely constitutes a limitation within the range of the proceedings the
definition of which must be sought else- where.
[183] The definition of the proceedings dealt with is to be found in the
preamble of Agreement No. II, which expressly refers (para. 2) to "legal
proceedings" pending or to be initiated. The context clearly shows that the
proceedings thus referred to are those which relate to "a certain number of
claims based on Article 250 of the Treaty of Trianon.... submitted by
Hungarian nationals against the three Governments of Czechoslovakia,
Yugoslavia and Roumania as a result of the application of the agrarian
reforms in those countries" (para. 1); the said Governments declare that
they do not "in any way recognize the justice of the said claims" (para. 3).
[184] What were the claims in question, and consequently the "legal
proceedings" referred to ? On the 20th January 1930 more than five hundred
proceedings were pending before the three Mixed Arbitral Tribunals, all of
them of the same general character. Basing themselves on Article 250 of the
Treaty of Trianon, the applicants attacked the legality of the measures of
agrarian reform applied to their properties, and they sought either
restitution or complete indemnities in lieu of restitution. It would seem,
then, that to the extent that proceedings instituted after 20th January 1930
are referred to in Article I of Agreement No. II, they must be proceedings
of [p82] the same general character. Not only is this conclusion consistent
with the general purpose which Agreement No. II was designed to serve; it is
also impelled by the language used and by the general nature of the
arrangement made for impersonalizing agrarian claims.
[185] The preamble of Agreement No. II refers in the first paragraph to "a
certain number" of pending claims and in the second paragraph to "legal
proceedings" (Fr., ces procés); it is then added that "other proceedings may
be instituted" (Fr., d'autres pourraient être engagés). This is clearly an
assimilation of later-instituted to pending claims. Article IV of Agreement
No. II points to the same assimilation in providing that "the Fund shall not
be called upon to make any payment until it has received notification of the
whole of the judgments". Article VI has the same effect in providing that
when the Managing Commission of the Fund has "received the whole of the
judgments delivered in the legal proceedings referred to in Article I", it
shall make a "proportional distribution" among judgment-holders; and this is
to be done "in any case before 31st December 1932", whereas the ultimate
date for the application of the new Yugoslav law was fixed in Article I as
31st December 1933. The outline of the special procedure envisaged by
Articles VII and VIII for "the legal proceedings referred to in Article I"
carries further the idea of assimilation. Moreover, the financial
construction of the Agrarian Fund set out in Agreement No. III shows that
the negotiators anticipated that for meeting the judgments given against it
in proceedings referred to in Article I of Agreement No. II, the Fund would
have something more than the amounts paid by the States of the Little
Entente "on account of local indemnities", that it would have, also, the
amounts representing the contributions of other States.
[186] These various provisions of the Agreements indicate that
later-instituted proceedings were, like the proceedings brought before 20th
January 1930, envisaged as proceedings in which the applicants sought
complete indemnities in lieu of restitution. Nor is this indication rebutted
by the provisions of Article 10 of Agreement No. III concerning a "lump-sum
settlement of the total indemnities" to be allotted by the new Yugoslav law;
the "lump-sum settlement" was only "for the expropriated lands of present
and future claimants within the terms of Article I of Agreement No. II",
"whatever may be the extent" of those lands. Article 10 is entirely
consistent with the view that all the proceedings referred to in Article I
of Agreement No. II were envisaged as proceedings of the same general
character, i. e., proceedings which attacked the [p83] agrarian reform and
sought complete indemnities as a substitute for restitution.
[187] What has just been said sufficiently explains the proper
interpretation of the expression "legal proceedings.... in regard to the
agrarian reforms", as used in Agreement No. II and more particularly in
Article I of that Agreement.
[188] Clearly, the proceedings before the Hungarian-Yugoslav Mixed Arbitral
Tribunal were not of that character. The Tribunal itself drew no distinction
between the three cases; in two of them, if not in all of them, the
expropriation was treated as a fait accompli, the legality of which was not
challenged, and the applicants sought neither restitution nor complete
indemnities in lieu of restitution, but local indemnities on a footing of
equality with Yugoslav nationals. In case No. 749 (Pajzs), the applicants
asked expressly que I'État yougoslave nous accorde les indemnités.... dans
la тêте mesure et de la тêте façon que si nous étions sujets yougoslaves. In
case No. 750 (Csaky), the applicant asked for le тêте dédommagement que
celui qui lui serait accordé si cette derniére était ressortissanté
yougoslave. If case No. 747 (Esterhazy) is not so clear on this point, even
there the applicant claimed le droit d'intenter un proces contre I'État
yougoslave pour violation des dispositions de Varticle 250 du Traité de
Trianon, vu que топ affaire n'est pas visée par les Accords de Paris. All
three of these proceedings were, therefore, outside the categories of
"proceedings referred to in Article I" of Agreement No. II.
[189] The conclusion follows that the Mixed Arbitral Tribunal erroneously
envisaged these proceedings as being covered by the provisions in Article I
of Agreement No. II, and that since its judgments were based on this
conclusion they should be reformed. It is unnecessary for this opinion to
deal more particularly with the disposition of the appeal.
III.
[190] The conclusion that the appeal should be entertained would make it
unnecessary for the Court to deal with the alternative submission of the
Hungarian Agent concerning the "difference as to the interpretation or
application" of Agreements Nos. II and III.
[191] Since the Court has decided that the appeal is not receivable,
however, and since it has decided in consequence to deal with the
"difference as to interpretation or application", it may be added in this
opinion that, in line with reasons given above, [p84] the undersigned cannot
agree with the considerations which have led the Court to decide that the
attitude of Yugoslavia in regard to the Hungarian nationals whose properties
have been expropriated in the course of the agrarian reform is in conformity
with the dispositions of the Paris Agreements.
(Signed) Manley O. Hudson. [p85]
Separate Opinion of M. Hammarskjöld.
[Translation.]
I.
[192] Being unable, much to my regret, to concur in the judgment of the
Court, I feel obliged very briefly to state my own opinion in regard to the
case decided by this judgment.
[193] The first question arising is whether the appeal can be entertained.
As it has not been contended that the appeal was out of time (Art. X, para.
2, of Agreement II), the point to be decided is whether the two conditions
laid down in Article X, paragraph i, of Agreement II have been fulfilled.
[194] The most important of these conditions is that the judgments impeached
must have been rendered in "proceedings other than those referred to in
Article I" of Agreement II, in order to enable the Court to entertain an
"appeal" from them. The answer to the question whether this condition is
fulfilled depends, in my view, upon the results of a comparison between, on
the one hand, the external characteristics of the proceedings culminating in
the judgments impeached, as these characteristics emerge from the
applications instituting proceedings, and, on the other hand, the procedural
requirements resulting from Article I, which, for the purposes of defining
the "proceedings" referred to in that Article, must be read in conjunction
more especially with Articles VII and VIII. For the reasons, i. a., which
are set forth in M. Anzilotti's separate opinion, I hold that the answer to
this question must be in the affirmative. I have one observation only to add
to these reasons : under Article I, paragraph 2, sub-paragraph 2, of
Agreement II, "any proceedings .... instituted .... as a result of the
application of the new Yugoslav law" — this is true of the three cases
referred to the Court —"can only be instituted against the Agrarian
Fund....". In fact the three suits culminating in the judgments forming the
subject of the appeal to the Court were brought against Yugoslavia. In my
view, the provision in Article III to the effect that "the claims
introducing legal proceedings against .... Yugoslavia, referred to in
Article I, shall be treated henceforth as having been made against the
Agrarian Fund" is not even applicable to the proceedings referred to in
Article I, paragraph 2, sub-paragraph 2.
[195] I am also led to an affirmative conclusion as regards the fulfilment
of the condition that the judgments impeached before the Court must be
"judgments on questions of jurisdiction or [p86] merits". For my reasons for
so doing, I would refer to what Mr. Hudson says in the first part of his
separate opinion.
[196] It follows that in my opinion the appeal should be entertained. It
therefore becomes necessary to consider whether the judgments are sound.
[197] In my view, the applications lodged with the Mixed Arbitral Tribunal
raised two questions on the merits:
(1) whether, after the coming into force of the Paris Agreements, it was
still open to the claimants to make application to the Mixed Arbitral
Tribunal for national treatment under Article 250 of the Treaty of Trianon ;
(2) and, if so, whether the conditions laid down by that Article were
fulfilled in the particular cases.
[198] The Yugoslav Government lodged three objections to these applications
before the Mixed Arbitral Tribunal: that they could not be entertained ;
that they were out of time; and that the Tribunal had no jurisdiction. The
judgments impeached actually dealt with the first of these objections only.
They were however based on reasoning which bore so directly upon the first
question on the merits stated above, that the soundness of the judgments
depends entirely on whether the conclusion reached by the Mixed Arbitral
Tribunal on this question is well-founded; that conclusion is that "the
arrangement worked out" in Agreement II "is only effective if it covers all
proceedings brought or which may be brought by Hungarian nationals against
.... Yugoslavia in regard to the agrarian reform. Article I of the Agreement
covers them all and none of these suits may henceforth be based on Article
250 of the Treaty of Trianon...."
[199] It is impossible for me to agree with this view because, for the
reasons already given by M. Anzilotti in his separate opinion and by Mr.
Hudson in part II of the separate opinion which he has appended to the
judgment, I hold that the expression "proceedings .... in regard to the
agrarian reforms...." used in Article I does not bear a purely literal
meaning, but a special and limited meaning which is sufficiently defined by
the preamble of Agreement II. This special meaning implies that there are
eases which, though "in regard to the agrarian reform", are not covered by
Article I of Agreement II. In my opinion, the three cases before the Court
are among those to which the Paris Agreements are inapplicable. They are
"proceedings .... instituted .... as a result of (à la suite de) the
application of the new Yugoslav law". Such proceedings are dealt with in
Article I, paragraph 2, sub-paragraph 2, of Agreement II. But that
provision, in my opinion, only relates to suits which arise from an
expropriation decree issued under the definitive law and which are directed
to obtaining the compensation contemplated by the Agreements in respect of
areas to which an [p87] "effective" measure of agrarian reform is applied
for the first time as a result of this decree. And the three cases in
question obviously do not fulfil the two latter conditions.
[200] My conclusion therefore is that the judgments impeached are
ill-founded and should be reviewed.
[201] The Yugoslav Government has submitted that in the event of a decision
to this effect, the cases should be referred back to the Mixed Arbitral
Tribunal in order that the latter may adjudicate upon the objections that
the claims are out of time and that it has no jurisdiction. I do not
consider this submission to be well-founded. In my view, the Mixed Arbitral
Tribunal, in rendering its decision and in reasoning as it did in so doing,
must be held to have accepted jurisdiction and to have recognized as a
foregone conclusion that the applications instituting proceedings were not
out of time.
[202] But I hold that the second question on the merits raised by these
applications — namely the question of the application as distinct from the
applicability of Article 250 of the Treaty of Trianon — does not, in view of
the circumstances of the case, arise before the Court adjudicating "on
appeal". This question should therefore be referred back to the Mixed
Arbitral Tribunal for decision.
[203] Since, in my view, the appeal should be entertained, there would be no
occasion to adjudicate upon the alternative request for the interpretation
and application of Agreements II and III of Paris submitted by Hungary.
Accordingly, my "separate opinion" might terminate at this point.
II.
[204] I desire however to add that the vote which I have felt bound to
record against the judgment of the Court applies not only to the rejection
of the appeal, but also to the decision to the effect that "the attitude of
Yugoslavia towards Hungarian nationals affected by the agrarian reform
measures in Yugoslavia has been consistent with the provisions of the
Agreements of Paris" and to the reasons on which that decision is based. As
my dissent, however, is only partial in this regard, I feel that I should
briefly explain my view.
[205] If one takes the standpoint, as adopted by the Court, that the appeal
cannot be entertained, the next questions which present themselves are the
admissibility of the request for the interpretation and application of the
Agreements, and the definition of the "attitude" of Yugoslavia, which is
referred to in that request. In regard to these points, I find myself in
agreement with the judgment, and I do not think it necessary to [p88]
consider whether the "attitude" in question corresponded — and, if so, to
what extent — to a refusal to pay the local indemnities.
[206] At this point, I find it necessary to draw a very clear distinction
between, on the one hand, the three petitioners in the proceedings forming
the subject of the main submission to the Court (with such other Hungarian
nationals as may be similarly situated, and may have filed applications
after April 28th, 1930) and, on the other hand, the Hungarian nationals "who
have never had any intention of claiming more than national treatment".
[207] In regard to the former category, it follows, by hypothesis — seeing
that the appeal has been rejected — that their cases come under Article I of
Agreement II of Paris. In my view that by no means implies that the same
arguments which have been used as grounds for the rejection of the appeal
can be employed as they stand in regard to the request for interpretation
and application : for, a decision of the Court delivered "on appeal" is of
an entirely different legal character from a decision delivered on a request
for interpretation ; the former has the force of res judicata in regard to
the parties, and perhaps also in regard to the Mixed Arbitral Tribunal,
while the second is only of a declaratory character ; moreover, the appeal
related to judgments delivered by the Mixed Arbitral Tribunal, whereas the
request for interpretation relates to the attitude of Yugoslavia ; lastly,
the applications which led to the judgments under appeal were based on
Article 250 of the Treaty of Trianon, whereas the "attitude" of the Yugoslav
Government, which is the subject of the request for interpretation, is
alleged to be based on the Paris Agreements. But it follows, no doubt, from
the fact that the cases of the three petitioners (and the other similar
cases) fall by hypothesis under Article I of Agreement II, that the whole of
the Agrements, including Article 10 of Agreement III, are also applicable to
them. That Article provides that the capital of the Agrarian Fund shall be
reduced to a certain extent in respect of the lands belonging to owners who
were "actually claimants" on April 28th, 1930, "in regard to whom the Mixed
Arbitral Tribunal decides that it has no jurisdiction or whose claim it
dismisses"; and this reduction finds its counterpart in "a reduction in the
annuity to be paid by Yugoslavia". But the same rule does not apply in
regard to lands belonging to Hungarian nationals who — like the petitioners
in the three suits — did not become claimants until after the
above-mentioned date. It follows that the local indemnities of claimants
belonging to the latter category fall inevitably — if the hypothesis in
question is accepted — within the scope of the lump-sum settlement referred
to in Article 10 of Agreement III. [p89]
[208] So far as concerns these claimants, the "attitude" of the Yugoslav
Government would therefore appear to be in conformity with the Paris
Agreements.
[209] The position is different in regard to the Hungarian nationals, owners
of large estates in Yugoslavia, who have been expropriated under the
agrarian reform but have never instituted any legal proceedings before the
Mixed Arbitral Tribunal ; for their cases cannot be considered as being
covered by the Paris Agreements, unless it is assumed that the effect of
those Agreements was to compel all Hungarian nationals either to institute
proceedings before the Mixed Arbitral Tribunal, or to abandon their title to
any indemnity at all; and, for the reasons, among others, given in M.
Anzilotti's separate opinion, I feel it is impossible to accept such an
assumption.
[210] Moreover, even if it were admitted that these cases, as such, came
under the Paris Agreements, claims for local indemnities would not, for the
reasons I have already given, be covered by the only clause in Article I of
Agreement II which might possibly be thought applicable, viz. :
sub-paragraph 2 of paragraph 2 of that Article. Neither would, therefore,
the provisions of Agreement III be applicable to them. If one adopts the
latter standpoint, it is, accordingly, manifest that the "attitude" of the
Yugoslav Government towards the Hungarian nationals in question was not
consistent with the Paris Agreements.
[211] If, however, one takes the view that the cases of these Hungarian
nationals are not covered by the Agreements, one also arrives at the same
conclusion. For, the Agreements constitute a derogation from the rule
prescribed in Article 250 of the Treaty of Trianon, which, in its turn, in
derogating from the exceptional rule laid down in Article 232 of the same
Treaty, reverts to the ordinary law. But a derogation from the ordinary law
cannot be presumed ; it has to be explicitly laid down in the texts. It
would therefore be impossible to use the silence of the texts as a ground
for justifying an action which, beyond doubt, constitutes such a derogation.
It follows that, since the cases in question were not expressly provided for
in the Agreements, it is impossible to find in the latter any ground for
refusing treatment in accordance with the régime of ordinary law to the
parties concerned. A "refusal" based on such grounds, and producing such
effects, would not therefore be consistent with the Paris Agreements.
(Signed) Å. Hammarskjöld. [p90]
Separate Opinion of M. De Tomcsanyi.
[Translation]
[212] I regret that I am unable to agree with the Court's judgment.
[213] As regards my own opinion on the matter, it will suffice that I refer
to Mr. Hudson's dissenting opinion, for what is stated therein is entirely
in accordance with my own view.
[214] Founding myself on the arguments set forth in the above-mentioned
opinion, I would summarize my views on the question as follows:
[215] The Hungarian Government's appeal against the judgments delivered by
the Hungaro-Yugoslav Mixed Arbitral Tribunal on July 22nd, 1935, in cases
Nos. 749, 750, 747, Pajzs, Csáky, Esterházy versus the Yugoslav State,
should have been enter-tamed, and the judgments should have been reviewed,
as being ill-founded.
[216] As the Court did not entertain the appeal, it should, interpreting and
applying the Paris Agreements, have declared that the attitude of Yugoslavia
- that is to say the Yugoslav Government's refusal to pay the so-called
local indemnities to the Hungarian nationals who had never intended to claim
anything except Yugoslav national treatment, and who had therefore never
instituted proceedings against the Agrarian Fund, or to the Hungarian
nationals who had instituted proceedings against the Agrarian Fund, but
whose claims against the Fund have been disallowed by the Mixed Arbitral
Tribunal - that this attitude was not warranted by the Paris Agreements and
that it was therefore contrary to the normal rules of international law, for
it constituted discriminatory treatment of the above-mentioned Hungarian
nationals.
(Signed) G. P. De Tomcsányi.
Annex.
Documents Submitted to the Court.
I. — Documents Filed on Behalf of the Hungarian Government (Applicant).
Preliminary objection.
A. — In the written proceedings :
1. Peace Treaty concluded with Hungary and signed at Trianon on June 4th,
1920 (Art. 250).
2. Judgment of the Hungaro-Yugoslav M. A. T. dated April 21st, 1933, in the
case of Dr. Jules Pajzs and his wife v. the Agrarian Fund (No. 733).
3. Judgment of the Hungaro-Yougoslav M. A. T. dated April 21st, 1933, in the
case of Countess Felix Csáky v. the Agrarian Fund (No. 735).
4. Judgment of the Hungaro-Yugoslav M. A. T. dated April 21st, 1933, in the
case of Prince Paul Esterházy v. the Agrarian Fund (No. 734).
5. Judgment of the Hungaro-Yougoslav M. A. T. dated July 22nd, 1935, in the
case of Jules Pajzs and his wife, née Anne Bischitz, v. the Yugoslav State
(No. 749).
6. Judgment of the Hungaro-Yugoslav M. A. T. dated July 22nd, 1935, in the
case of Countess Felix Csáky, née Elisabeth Fernbach, v. the Yugoslav State
(No. 750).
7. Judgment of the Hungaro-Yugoslav M. A. T. dated July 22nd, 1935, in the
case of Prince Paul Esterházy v. the Yugoslav State (No. 747).
8. Dissenting opinion, signed on July 22nd, 1935, by the neutral judge,M. J.
A. van Hamel, in the case of Dr. Jules Pajzs v. the Yugoslav State (No.
749).
9. Dissenting opinion, signed on July 22nd, 1935, by the neutral judge, M.
J. A. van Hamel, in the case of Countess Felix Csáky, née Elisabeth
Fernbach, v. the Yugoslav State (No. 750).
10. Dissenting opinion, signed on July 22nd, 1935, by the neutral judge, M.
J. A. van Hamel, in the case of Prince Paul Esterházy v. the Yugoslav State
(No. 747).
11. Dissenting opinion of the Hungarian national judge, M. A. Székács, in
the cases of Prince Paul Esterházy (No. 747), Jules Pajzs and his wife (No.
749), and Countess Felix Csáky, née Elisabeth Fernbach (No. 750), v. the
Yugoslav State.
12. Dissenting opinion of the Roumanian judge, rendered in connection with
the judgments of the Roumano-Hungarian M. A. T. affirming its jurisdiction
in the cases relating to the agrarian reform.
13. Dissenting opinion of the Czechoslovak judge, rendered in connection
with the judgments of the Hungaro-Czechoslovak M. A. T. affirming its
jurisdiction in the cases relating to the agrarian reform.
14. Dissenting opinion of the Yugoslav judge, rendered in connection with
the judgments of the Hungaro-Yugoslav M. A. T. affirming its jurisdiction in
the cases relating to the agrarian reform.
15. Protocols, minutes and decisions concerning the methods of assessment to
be employed in fixing the indemnities to be paid to Hungarian applicants in
agrarian cases, which methods have been adopted by the Managing Commission
of the Agrarian Fund and by the Roumano-Hungarian, Hungaro-Czechoslovak and
Hungaro-Yugoslav M. A. T. [p92]
16. Notes exchanged between the Royal Government of Hungary and the Royal
Government of Yugoslavia concerning the fulfilment of the mandate received
by them from the Conference of Paris in Article XVI of Agreement II, April
28th, 1930.
17. List giving the names of a number of Hungarian nationals interested in
the case pending before the Permanent Court of International Justice.
B. — At the oral proceedings:
1. Complete text of the Paris Agreements of April 28th, 1930.
2. Applications filed with the Hungaro-Yugoslav M. A. T. in the Pajzs case,
on December 21st, 1931, and October 18th, 1933 (with annexes).
3. Rules of Procedure of the Hungaro-Yugoslav M. A. T. (Oct. 3rd, 1924, and
Aug. 4th, 1931).
4. Rules of Procedure of the Hungaro-Yugoslav M. A. T. for agrarian cases
(Aug. 4th, 1931).
5. Yugoslav law of June 19th, 1931, concerning the liquidation of the
agrarian reform on the large estates (French translation).
6. Yugoslav law concerning the Douztimés provisoires (1925); Article 38
(French translation).
7. Yugoslav financial law for the years 1926-1927; Article 150 (French
translation).
Continuation of the proceedings.
A. — In the written proceedings:
1. Chambre des Deputés of the French Parliament. Session of 1931. Report by
M. Loucheur, Deputy, on behalf of the Committee for Foreign Affairs upon the
Bill for the approval of the various Agreements concluded in Paris on April
28th, 1930, for the complete and final settlement of the obligations
resulting from the Treaty of Trianon.
2. Twenty-eight applications filed in connection with the agrarian reforms
before the Roumano-Hungarian, Hungaro-Czechoslovak and Hungaro-Yugoslav M.
А. Т., and serving as a basis for the decisions concerning jurisdiction in
these cases.
3. Three judgments of the Roumano-Hungarian, Hungaro-Czechoslovak and
Hungaro-Yugoslav M. A. T. affirming their jurisdiction in the so-called
agrarian cases of Hungarian nationals.
4. Fifty-seven applications filed with the Hungaro-Yugoslav M. A. T. by
Hungarian nationals in regard to the agrarian reforms.
5. Fifty-seven judgments rendered by the Hungaro-Yugoslav M.A.T. concerning
the responsibility of the Agrarian Fund brought in regard to the agrarian
reforms; judgments allowing the petitioners' claims against the Agrarian
Fund ; judgments dismissing the petitioners' claims against the Agrarian
Fund.
6. Case not yet decided (extract from the Application).
7. Yugoslav Ordinances, Decrees, Decree-Laws and Decisions concerning the
agrarian reform, promulgated before June 19th, 1931 (French translation).
8. Some examples of decisions or other acts dating from well before June
19th, 1931, taken by the Yugoslav authorities involving agrarian measures
determining the dates as from which the time-limits for the filing of
applications will begin to run (French translations).
9. Answer of the Agent of the Agrarian Fund containing an objection to the
effect that the so-called cases of the first series are out of time.
10. Collection entitled: "Agreements concerning the obligations resulting
from the Treaty of Trianon, signed at Paris on April 28th, 1930" (Budapest,
The Athenaeum Press).
11. Documents "concerning the methods of summary assessment not reproduced
in the Annex IX/1-4 of the Memorial" of the Hungarian Government: [p93]
(a) Report to the Managing Commission of the Agrarian Fund by the Hungarian
member on the subject of the methods for the assessment of agrarian
compensation, to be laid down under paragraph 2 of Article VIII of Paris
Agreement II.
(b) Preliminary expert report concerning the valuation of agricultural
property belonging to Hungarian nationals and situated in territory
transferred under the Treaty of Trianon from Hungary to Roumania, Yugoslavia
and Czechoslovakia.
(c) Expert report on the valuation of immovable property.
(d) Report by M. Borel, neutral expert, on the report of the Hungarian
experts.
(e) Exchange of views upon one of the questions — deprivation of enjoyment —
in regard to which a jurisprudence is already growing up in the
Roumano-Hungarian M. A. T.
(f) Jurisprudence of the Roumano-Hungarian M. A. T. (case of T. Beliczay v.
the Agrarian Fund).
(g) Revised jurisprudence of the Roumano-Hungarian M. A. T.
(h) Survey of the procedure in regard to the valuation of forests.
(i) Expert report on the valuation of forests.
(j) Memorandum on the method of procedure for the valuation of forests.
(k) Minutes of the Roumano-Hungarian M.A. T. regarding the interpretation of
the expert report on forests.
12. Work in two volumes, entitled : Bericht über die Tătigkeit der Deutsch
österreichischen Friedensdelegation in St. Germain-en-Laye.
13. French Official Journal, issue of March 25th, 1931. Parliamentary
debates, No. 52, verbatim report of the Chambre des Députés, 1st and 2nd
meetings on March 24th, 1931 (speech delivered by M. Loucheur, Deputy).
14. Collection of documents of the Hungarian Parliament concerning the "Bill
for the inclusion among the laws of Hungary of the agreements concerning the
obligations resulting from the Treaty of Trianon".
15. Work entitled "Les lois roumaines de réforme agraire devant le T. A. M.
roumano-hongrois. Quelques types d'affaires. Mémoires déposés par les
différentes parties en cause relativement à l’exception d'incompétence
soulevée par l'État roumain. (Printed at Paris.)
16. Pierre Jousse : Les tendances des réformes agraires dans I'Europe
centrale, l’Europe orientale et I'Europe méridionale (1918-1924) (1 vol.).
17. Milan Ivšič : Les problèmes agraires en Yougoslavie (1 vol.).
18. Tchédomir Srebreno-Dolinski 1 : La réforme agraire en Yougoslavie (1
vol.).
B. — At the oral proceedings :
1. Document supplementing the application filed on December 21st, 1931,
under No. 733, with the Hungaro-Serb-Croat-Slovene M. A. T. by Dr. Jules
Pajzs and his wife against the Agrarian Fund (with annexes).
2. Decree of the Yugoslav Ministry for Agrarian Reform concerning the
optional sale of large estates, dated October 8th, 1925 (French
translation).
3. Twenty-five applications2 filed with the Hungaro-Serb-Croat-Slovene M. A.
T. by Hungarian nationals against the Serb-Croat-Slovene State.
4. Extracts from the Budapesti Közlöny of August nth, 1935 (notes from the
Managing Commission of the Agrarian Fund to the Hungarian Government, Oct.
17th 1934, and July 24th, 1935).
5. Extracts from more recent publications of the Agrarian Fund, i.e. of
April 30th, 1936 [p94]
6. Decision of the Yugoslav Minister for Agriculture (June 25th, 1932).
7. Application Esterházy v. Yugoslav State (case No. 747 ; June 15th, 1933)
(with annexes).
8. Application Csáky v. Yugoslav State (case No. 750 ; Oct. 19th, 1933)
(with annexes).
9. "Annexes to the Csáky case", No. 735 (Dec. 28th, 1931).
10. "Annexes to the Esterházy case", No. 734 (June 24th, 1932).
II. — Documents Filed on Behalf of the Yugoslav Government (Respondent).
Preliminary objection.
A. — In the written proceedings :
1. Judgment of the Hungaro-Yugoslav M. A. T. dated January 23rd, 1934, in
the case of Count and Countess Sigismund de Batthyány v. the Agrarian Fund
(No. 732).
2. Extract from the temporary measures having the force of law preparatory
to the agrarian reform, dated February 25th, 1919 (Art. 9; French
translation).
3. Extract from the decree of July 27th, 1919 (ratified by the law of May
20th, 1922) on the inalienability and exemption from seizure of large landed
estates (Art. 1; French translation).
4. Extract from the decree of February 12th, 1920 (ratified on June 4th,
1922) concerning the carrying out of the expropriation of lands belonging to
the large estates in the general interest, their colonization and the
construction of dwellings and of gardens for workmen and officials (Arts. 1,
3 and 13 ; French translation).
5. Extract from the law regarding the liquidation of the agrarian reform on
the large estates, dated June 19th, 1931 (para. 61 ; French translation).
6. Decision in third instance of the Minister of Agriculture, No.
38,820/VIа/32, dated June 25th, 1932, concerning the expropriation of the
property of the Hungarian national Dr. Jules Pajzs (French translation).
B. — At the oral proceedings :
1. Yugoslav decree of September 3rd, 1920, which became the law of May 20th,
1922, on the leasing of the landed estates on four-year leases (French
translation).
2. Objection lodged on April 2nd, 1934, by the Yugoslav Government against
the application filed in the case of Prince Paul Esterházy v. the Yugoslav
State (No. 747).
Continuation of the proceedings.
At the oral proceedings :
1. Yugoslav law of May 27th, 1930, concerning the ratification of the Paris
Agreements (French translation).
2. Extract from the decree of July 27th, 1919, ratified on May 20th, 1922,
concerning the inalienability and exemption from seizure of the large landed
estates (Art. 2; French translation).
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