|
[p53] The
Permanent Court of International Justice,
composed as above,
after deliberation,
having regard to Articles 40 and 48 of the Statute of the Court,
having regard to Article 62 of the Rules of Court,
Makes the following Order :
AS REGARDS THE POSITION OF THE PROCEEDINGS:
[1] Whereas, by an Application filed in the Registry of the Court on
November 2nd, 1937, the Estonian Government instituted proceedings before
the Court against the Lithuanian Government regarding the rights claimed by
the Esimene Juurdeveo Raudteede Selts Venemaal Company over the
Panevezys-Saldutiskis railway;
[2] Whereas the Application was presented having regard to the declarations
of Estonia and Lithuania acceding to the Optional [p54] Clause of Article
36, paragraph 2, of the Statute of the Court;
[3] Whereas the Application prays the Court to adjudge and declare :
"1. That the Lithuanian Government has wrongfully refused to recognize the
rights of the Esimene Juurdeveo Raudteede Selts Venemaal Company, as owners
and concessionaires of the Panevezys-Saldutiskis railway line, and to
compensate that company for the illegal seizure and operation of this line.
2. That the Lithuanian Government is under an obligation to make good the
prejudice which has been thus sustained by the Esimene Juurdeveo Raudteede
Selts Venemaal Company, and which is estimated, the proposals for a
compromise made by that company having been withdrawn, at the sum of
14,000,000 Gold Lits, plus interest at 6 % per annum as from January 1st,
1937."
[4] Whereas the Application was notified to the Lithuanian Government on
November 2nd, 1937;
[5] Whereas the Court did not include on the Bench any judge of the
nationality of either of the Parties and the Estonian and Lithuanian
Governments, availing themselves of their right under Article 31 of the
Statute each to nominate a judge, have nominated respectively in this
capacity, the Estonian Government, M. Otto Strandman, and the Lithuanian
Government, M. Mykolas Römer'is ;
[6] Whereas, by an Order made on November 15th, 1937, the President of the
Court fixed the time-limits for the filing of the Memorial,
Counter-Memorial, Reply and Rejoinder;
Whereas, within the time-limit thus fixed, the Estonian Government filed its
Memorial, in which it prayed the Court to adjudge and declare :
"1. That the Lithuanian Government has wrongfully refused to recognize the
rights of the Esimene Juurdeveo Raudteede Selts Venemaal Company, as owners
and concessionaires of the Panevezys-Saldutiskis railway line, and to
compensate that company for the illegal seizure and operation of this line.
2. That the Lithuanian Government is under an obligation to make good the
prejudice which has been thus sustained by the Esimene Juurdeveo Raudteede
Selts Venemaal Company and which is estimated at I) the sum of 6,850,000
Gold Lits representing the value of the railway, plus II) the sum
representing the annual payments due for the operation of the line by the
Lithuanian authorities from the date of seizure to the date of payment, the
annual payments being reckoned at the uniform rate of six per cent of the
value of the railway fixed above."
[7] Whereas on March 15th, 1938, the date fixed for the filing of the
Counter-Memorial, the Lithuanian Government filed preliminary objections
accompanied by a Preliminary Counter-Memorial; [p55]
[8] Whereas the Lithuanian Government raises two objections to the claims of
the Estonian Government, the first of these objections being based "on the
non-observance by the Estonian Government of the rule of international law
to the effect that a claim must be a national claim not only at the time of
its presentation, but also at the time when the injury was suffered", and
the second "on the non-observance by the Estonian Government of the rule of
international law requiring the exhaustion of the remedies afforded by
municipal law" ; and submitted that the claims of the Estonian Government
could not be entertained ;
[9] Whereas, under Article 62, paragraph 3, of the Rules, proceedings on the
merits are suspended as the result of the filing of the objections; whereas
accordingly the President of the Court fixed the time within which the
Estonian Government might present a written statement of its observations
and submissions in regard to the objections raised by the Lithuanian
Government;
[10] Whereas the Estonian Government, within the time-limit thus fixed,
filed its written observations and submissions praying the Court to overrule
the preliminary objections of the Lithuanian Government ;
[11] Whereas, in the course of public sittings held on June 13th, 14th,
15th, 17th and 18th, 1938, the Court heard oral arguments upon the said
objections presented by M. André Mandelstam, Agent, on behalf of Lithuania,
and by Baron Boris Nolde, Agent, on behalf of Estonia ;
[12] Whereas the submissions made in the documents of the written
proceedings were maintained by the Parties in the oral proceedings ;
[13] Whereas, in these circumstances, it is incumbent on the Court, under
Article 62, paragraph 5, of the Rules, either to give its decision upon the
objections or to join them to the merits ;
AS REGARDS THE PRELIMINARY OBJECTIONS :
[14] Whereas the preliminary objections of the Lithuanian Government aim at
obtaining from the Court a decision that the Estonian Government is not
entitled in the present case to take up the case of the Esimene Juurdeveo
Raudteede Selts Venemaal Company, nor to submit that case to the Court ;
[15] Whereas the Estonian Government submits that the said objections should
be overruled, on the ground, firstly, that the Lithuanian Government is not
entitled to present these objections as preliminary objections and,
alternatively, that they are not well-founded ;
[16] Whereas, at the present stage of the proceedings, a decision cannot be
taken either as to the preliminary character of the objections or on the
question whether they are well-founded; [p56] any such decision would raise
questions of fact and law in regard to which the Parties are in several
respects in disagreement and which are too closely linked to the merits for
the Court to adjudicate upon them at the present stage ;
[17] Whereas, in view of the said disagreement between the Parties, the
Court must have exact information as to the legal contentions respectively
adduced by the Parties and the arguments in support of these contentions ;
[18] Whereas, if it were now to pass upon these objections, the Court would
run the risk of adjudicating on questions which appertain to the merits of
the case or of prejudging their solution;
[19] Whereas the Court may order the joinder of preliminary objections to
the merits, whenever the interests of the good administration of justice
require it;
[20] Whereas, in view of these considerations, the objections submitted by
the Lithuanian Government should be joined to the merits ;
AS REGARDS THE FURTHER PROCEEDINGS :
[21] Whereas under Article 62, paragraph 5, of the Rules, it is incumbent on
the Court, when it joins objections to the merits, once more to fix
time-limits for the further proceedings ; and time-limits for the filing of
the Counter-Memorial, Reply and Rejoinder on the merits must therefore be
fixed ;
[22] THE COURT:
(1) joins the objections raised by the Lithuanian Government to the merits
on the proceedings instituted by the Application of the Estonian Government,
filed with the Registry on November 2nd, 1937, in order that it may
adjudicate in one and the same judgment upon these objections and, if need
be, on the merits ;
(2) fixes as follows the time-limits for the filing of the subsequent
documents :
(a) for the Counter-Memorial of the Lithuanian Government : September 1st,
1938;
(b) for the Reply of the Estonian Government : October 14th, 1938;
(c) for the Rejoinder of the Lithuanian Government : November 25th, 1938.
[p57]
[23] Done in French and English, the French text being authoritative, at the
Peace Palace, The Hague, this thirtieth day of June, one thousand nine
hundred and thirty-eight, in three copies, of which one will be placed in
the archives of the Court and the others will be transmitted to the Estonian
and Lithuanian Governments respectively.
(Signed) J. G. Guerrero,
President.
(Signed) J. López Oliván,
Registrar.
|
|